Management of application proceedings

Key points:

Where possible, judicial officers should endeavour to dispose of protection order application proceedings in a timely manner, as these proceedings are frequently stressful. A victim’s application (or an application by police that a victim is willing to support) for a protection order may signify their recognition that they are in danger and be a definitive step towards ending their relationship with the perpetrator. The application period may therefore be a time of heightened risk for the victim, and the victim may require immediate protection. Interim orders can also be a source of frustration to perpetrators; these orders are usually made on limited evidence and may impose significant restrictions on their liberty until the application is finally determined. Adjournments may be necessary to ensure that parties are afforded fair and equal access to justice. However, there may be some cases where a party delays proceedings, fails to appear, evades service, initiates applications or makes cross-applications with the intention of further harassing, controlling and abusing the victim and may be a form of systems abuse. Whether there are legitimate or questionable reasons for an adjournment, judicial officers may need to make additional interim orders or arrangements for the duration of the adjournment to ensure the safety and wellbeing of the victim and other protected people.

In some cases, a victim may withdraw their application for a protection order or consent to the dismissal of the proceedings. Sometimes the reason for this may be the victim’s fear of retaliation by the perpetrator. A study found that the higher the threat and the closer the victim’s attachment to the perpetrator, the less likely the victim was to complete the application process. This may be alleviated if the police make the application on the victim’s behalf. Another reason for the victim not completing the application process may be a perception by the victim of positive changes in the perpetrator’s behaviour. Courts may consider it appropriate in these circumstances to adjourn rather than dismiss the application proceedings to give the perpetrator the opportunity to sustain positive behavioural changes. Where an application has been withdrawn or dismissed, the parties should be made aware that this does not preclude a subsequent fresh application in the event that a party requires protection from further domestic and family violence. In some jurisdictions there may be a mechanism available for parties to revive and amend an earlier application rather than having to make a fresh application.

Where a victim makes an application for a protection order (rather than the police on the victim’s behalf), and particularly in cases where the victim is self-represented, judicial officers should be aware of how the victim may be adversely impacted by the proceedings if, for example, they feel a responsibility to prosecute their own case, or if they feel at risk of further harm or abuse, or if they feel the abuse they’ve experienced is being denied or minimised or is somehow their fault. Judicial officers should, where possible, be proactive in taking steps to improve the victim’s experience of court processes and minimise the risk of secondary abuse.