Tactical Restraining Orders: a personal view
Four years after my separation and around the time I started dating my current wife, my relationship with my ex-wife deteriorated sharply. One day, upon returning from work, I saw a card stuck in my door. It informed me that police had been to visit and I should attend upon the local police station. When I did so, I was served with a restraining order. Three days earlier my ex made an ex-parte (‘without the other party’) application for a restraining order in the Magistrate’s Court. Two days later she would make an application in the Family Court seeking sole custody of our children — once again ex-parte.
The aim of the restraining order was clearly tactical and it was a tactic that worked wonders for her. While the restraining order was in force, she filed over half a dozen complaints against me for alleged breach of VRO. I was arrested twice and locked up in the back of a paddy wagon. Once for a spam message accidentally sent via LinkedIn to my entire email contact list (including her). Another time for attending a community centre with my family in a location where 24 hours later my daughter (the ‘protected person’) would be within its vicinity. The aim was clear. An expert appointed by the family court concluded:
Her vindictiveness towards father at that time was revealed by her concern that VRO breach charges might not be heard before the major trial because she wanted father to have a ‘criminal record’ before the trial
The interim VRO was in force for over two years. Once, after a year or so, my daughter snuck a phone call to wish me a happy birthday. It went straight to voicemail. There was nothing in the world I wanted more than hearing my daughter’s voice but doing so would have sent me to jail. By then I knew the Restraining Orders Act 1997 back-to-front. I knew there is no defence for accident and I knew of the ludicrous provision (s61B of the Act) which states ‘In the sentencing of a bound person… any aiding of the breach of the order by the protected person is not a mitigating factor.’ I now wonder whether that phone call was a honey trap, part of my ex’s plan.
Over six and a half years have passed since the day I was served with that VRO. Over six and a half years have passed since I have last seen my children.
By now, a family court has found that my ex has ‘lied and misled others.’ The claims she made have now been proven false or found mistaken — but all this is too little, too late.
Now in its seventh year, after well over 100 days of hearings in multiple jurisdictions, the matter is still before the courts. My ex’s case now is that the truth does not matter. By now the children believe I am a terrible man and that they have lost the love they once had for me. The wheels set in motion by those ex-parte hearings can no longer be undone.
I have no recourse against her for severing the loving relationship I had with my children, for the stress and anxiety I went through over the past years, for my depression, loss of employment and the astronomical financial costs these proceedings have burdened my family with (costs that have long surpassed the hundreds of thousands).
I know the unknowing reader might think ‘where there is smoke there is fire,’ but they would be wrong. Like the Star Chamber or the Spanish Inquisitors, this jurisdiction follows no evidence rules and judges matters by subjective rather than objective beliefs. ‘Truth’ appears to be of little interest or significance and ‘Justice’ is nothing more than a pre-nominal attached to those in charge of committing the greatest of injustice.
I write my story, not out of vengeance, but as a warning to society at large. History has taught us that evil prevails when some people have special rights while others are stripped of theirs. Natural rights are absolute and no cause can defend their abolition. Naturally, the protection of the vulnerable is an important responsibility of government but that it no excuse for doing away with the legal rights that took us two thousand years to perfect. Government should not use the rights of some to trample the rights of others — without first establishing with due process that a wrong has been committed. Good intentions alone are not a justifiable defence.
Surely, there are ways of balancing competing rights and needs while affording natural justice so that my story and the stories of thousands like me are not repeated every day.
