Read on if you have:
a) Been subject to a temporary protection order that was made permanent, or defended (and lost), and
b) Notified the Family Court you wished to be heard about it being made permanent but the order was made anyway despite your defence, and
c) The hearing was held 42 days after you gave notification you wished to be heard (or defend) the application.
Section 76 of the Domestic Violence Act 1995 relates to making temporary protection orders permanent and provides that:
(1) Where the court makes a temporary order under this Act, the respondent is entitled to notify the court that he or she wishes to be heard on whether a final order should be substituted for the temporary order.
(2) The temporary order must contain a notice to the respondent that clearly states -
(a) the respondent’s right under subsection (1); and
(b) that, subject to sections 36, 78, and 79, if the respondent does not take any steps in the proceedings, the temporary order becomes final in accordance with section 77 by operation of law 3 months after the date on which it is made.
(3) Where the respondent notifies the court, in accordance with subsection (1), that he or she wishes to be heard, the Registrar must assign a hearing date, which must be -
(a) as soon as practicable; and
(b) unless there are special circumstances, in no case later than 42 days after the receipt of the respondent’s notice.
The key words here relate to the 42 day limit. In a case where a respondent to a temporary protection order has been made subject to a permanent protection order in a Family Court hearing held well over the 42 days limit good grounds exist to have the order overturned by judicial review in the High Court on the grounds of illegality and procedural impropriety. Note a judicial review by a High Court judge is not an appeal on the facts, but a review of the appropriateness of the decision and actions of the Family Court. In other words was the outcome made according to the rules and accepted principles such as natural justice, and free of bias, etc?
Section 76(3)(b) of the DVA 1995 is absolute. If the Family Court judge making the order made it at a hearing held over 42 days after the respondent filed his (its always a him sadly) defence then the order is illegal and made contrary to procedure set down by statute (in law). Applications for judicial review on procedural impropriety and illegality grounds have the highest rates of success than any other ground in judicial review.
The High Court is the supervisory court of the District and Family Courts. It is the keeper of the rules. The Family Court is known for its pragmatic application of family law, which is frequently its undoing in judicial review because in order to get a resolution of the case, Family Court judges often interpret the law wider than the High Court is prepared to go. The Family Court has a poor track record of success in judicial review.
The Family Court is obliged by convention to abide by the decision of the High Court in judicial review, so it won’t fight the application for review, but the second respondent (the applicant for the protection order) may choose to do so, and if successful obtain costs against you. Unlike the Family Court, costs are almost automatic in the High Court.
If the second respondent (the applicant for the protection order) doesn’t want to fight it, you will still encounter opposition in the form of the Crown Law Office who will act as amicus curiae (friend of the court – but no friend to you) to provide an opposing argument. This is because our adversarial system of justice always requires an opposing argument to be put in every case. The Crown Law will appoint a senior Crown lawyer to argue against your case (and by default for free on behalf of the respondents). But the amicus is obliged to concede any points in law that are absolute, and so if your argument is based on a breach of the rules, then he/she is bound to conceded that point, but attempt to mitigate against it.
Taking a case for judicial review to the High Court is not cheap. The filing fee alone is $1200. However, by law the cost of amicus is met out of the public purse, so if you lose you won’t be liable for these. You can also argue for a fee waiver if the case is in the public interest (which you could argue this one is as yours is not likely to be the only case). You can also apply for a fee waiver if you are on a low income or are a student.
Brian and Gerry for GerryMen Fathers’ Action