Monday, October 15, 2012

Tips and observations about Australian restraining orders and dealing effectively with nasty a***holes, from someone who knows only too well

Police and others sometimes recommend to people who have been assaulted or victimized in some way that they should pursue a restraining order (RO), with the promise that if any further incident or offense happens, the police response with be more prompt and set at a higher priority, and the police will be more able to prosecute the offender with something. This promise might be kept in some police districts, but might not be fulfilled in others. In our experience, an RO is only as good as the local police officers. A station full of cops who aren’t interested might not be magically transformed into a dynamic law enforcement machine should you get your piece of paper from the local court.

An RO might not be worth the time, the hassle, the rubbing-shoulders with riff-raff in court waiting rooms, the lost work time and the child care costs involved with getting a full RO. A full RO can involve a number of hearings and a trial. Some people hire lawyers to deal with such proceedings, which can be very expensive.

In the place where we live, the RO system is in great need of reform because it is still modeled on the “wife-beater” and other "love gone wrong" scenarios. Where we live the court forms and the procedures pertaining to ROs are suitable for domestic violence situations, but are in many ways inappropriate for other violence and victimization situations. The name and the residential address of the person to be restrained by the RO is required to begin the process of getting an RO. This should be no problem when the “villain” is a wife-beater, but getting a name and a home address can be nigh-impossible when the “villain” is an anonymous stooge acting on the behalf of some other person in a public place, or is a person known to the “victim” but has an address or name unknown to the “victim”. Police can be completely useless as help in obtaining such information, citing privacy laws that restrict them from divulging information that they might have at hand. The infamous Australian privacy laws are a thing to be reckoned with, but in our experience some people in positions of authority with access to information often want to help others who are seeking to get an RO and need to get information. There can be interesting situations in offices in which an authority figure gets up from a swivelling office chair, pointing and saying: “That file there on my desk might have some interesting information in it, and oh look, there’s also a note pad and a pen on my desk.” and then walks out of the room for a few moments….. Decent people don’t give a damn about the privacy of a***holes. There are things that you can do yourself to find information about people. Ask around and network. Most people want to help others who are in trouble, and some people simply wish to make trouble for a***holes, which is a completely admirable motivation. Municipal councils keep records of the owners of homes and properties in their city council area, and requests can be made for the names of people who own particular homes. A statutory declaration might be needed to access such information, and an owner of a property might not be the resident of the property. There's every chance that scummy people are renters, and the names of renters might require some investigation to obtain. You might find that real estate agents can help, but privacy issues might be a bar to that. Scummy people might also be the clients of various public housing programs. In your area there might be a telephone number or an office that you can contact with a complaint about the conduct of public housing tenants, but you might not get any information out of them. The most reliable information about the ownership of a house or residence might be the office of land titles in your state. You might need to pay a fee to access these records. Some folks still have their names and addresses in the white pages telephone directory, which is available in book and online formats.

Even if you do not wish to apply for a RO, it can be useful to get the correct name, address and possibly even phone number of the offender. Knowing that you know who they are and where they live should give pause for thought. I think it is possible that something like a placebo effect might account for any effectiveness of ROs, in that being served with an RO demonstrates to the offender that the "victim" now knows their name and address and is also motivated and able enough to take action against the offender through the legal system. If the offender is a minor (a child or adolescent under the age of 18) then presumably the parents of the offender will go though the experience of having police visit their home and serve the RO. Such an experience must surely be cause for concern, even for the most negligent parents.

Do not assume that you will have any privacy in a court hearing or trial pertaining to a RO. Legal hearings can be done in group sessions. The transcript of the hearing or trial might be a public document – check for your self – and the other party might be entitled to a copy of proceedings about them which were conducted in their absence.

You might find that in the place where you live it might be possible to get someone banned from the public transport system. Such a ban might not be completely enforceable, but it might be worth considering if there are safety issues regarding travel on public transport.

There are some ROs that compel the person that the RO is against to not enter or to leave immediately any bus or train that the person to be protected is on.

In the place where we live schools are completely able to deal with ROs between students, and the courts are able to tailor ROs to deal with students of the same age at the same school. Possibly some schools might not like to deal with such situations, but that’s tough.

There are different types of ROs in various countries and states of Australia – make your own inquiries about what is most suitable or obtainable for you.

Keep in mind the real possibility that the other party in the RO proceedings might fail to turn up in court for hearings.

The RO system is open to abuse, at least in the earlier stages of the process of getting a full RO. The process can be started, with an interim order involving an unpleasant visit from police to your home or workplace serving an order which is completely based on lies. As the process continues the vexatious applicant should either fail to pursue the order or lose credibility in court.

In our experience we have been given loads of conflicting and wrong advice about the legality of making sound recordings and video recordings, and the standards that need to be met for such recordings to be admissible as evidence in court. Some of this poor advice has been given by police officers. The value of recordings is certainly not limited to their use as legal evidence. There’s nothing like a good recording to convince others that some event actually did happen.

Court proceedings pertaining to ROs and the transcripts of such proceedings can be hilarious reading, and can also be very useful sources of information and possibly legal evidence. You might be entitled to a free transcript of proceedings about you that happened in your absence. Such proceedings might be particularly enlightening, as the other party might not realise that you can get a copy of the proceedings, and they might have said things that they wouldn’t have said in your presence.

In our experience police officers routinely make judgements that some offences are not worth pursuing in investigations because as a case it would not stand up in court. Police seem to view the courts as the problem, but our experience of the court system has generally been positive, and we feel better served by the law system than we do by law enforcement system.

You might have a full RO in place supposedly protecting you from some person, but God only knows what is in the police computer records system. Are their records kept up-to-date? Do the police officers know how to use the system and understand the information in the system? Is their computer network currently out to lunch?

Rather than seeking to have an RO issued to protect you from some nasty piece of work, you might find that you get more mileage from getting a good lawyer, or getting a weapon, an effective security system, or a sturdy pair of steel-capped boots. 


Socrates said...

a sturdy pair of steel-capped boots


Lili Marlene said...

Ha ha ha