Legal Advice

[superroo]

Just wondering if anyone has any help for a mate of mine.

He's had two restraining orders put up against him because of his ex girl.

What happened is they broke up ages ago but still had disagreements. About a month ago he went and had a talk to her in an attempt to sort things out. The talk went well and that was that. He has had no contact with her since then.

Then one night not long ago, her letter box got torched. And for some reason she thinks it him. So her and her boyfriend have put out restraining orders against him. I can guarantee it wasn't him (only my word, no proof).

So now he has to go to court, so that the finalities of the restraining orders can stand. He can't afford a solicitor and is getting the courts legal help. He is also getting a character witness to help with his case.

Does anyone have any ideas on how he can win the case??

Cheers

PS. by ideas I generally mean ideas/ways that are legally sound and will stand up in court.

[bArNsY]

It is a civil matter so all he needs to do is plead his case stating "there is no evidence that the alleged incident happened", stating where he was at the time. Dates, times, places, character references (preferably respectable community members/figureheads if possible) are all integral for a successful case.

The Judge's decision is based on the balance of probabilities.....if the judge believes that neither parties will cause any undue distress to each other, then he will have not choice but to throw it out of court. Vice versa, the judge will implement these orders, perhaps on both sides!?

What are the reasons and conditions written down on the restraining order for both parties?

I'm studying this a bit at uni didn't really go much into this tho, hope this helps

[superroo]

Didn't go into full on details with him, but what we came up was the same as what you said, "what evidence is there that it was him". He also using the fact that since the incident happened at 3 am, and that he had been out till 10 playing sport, then had to get up at 6 the next morning for work, he had no real reason to be up at that hour.
There is evidence of what happened, her letter box has burn marks on it, and not sure if cops were called.
His characters witness is his boss that he's been doing some pluming work for the past two months.

Cheers

[Ultimate]

If this is a long time since the breakup without incident that would have to stand for a fair bit.

Jeff

[Yaw]

I have been in a similar psotion before myself.
It really depends on what he wants to do.
There are a few options.
1. Plead guilty and take the restraining order.
2. Accept the restraining order without admission. (most commonly used option)
or
3. Defend his position that he had nothing to do with it.
(which I did and won without a solicitor)
you have every right to defend yourself. I would however make sure you can prove where you were, who with etc etc.
However along with this option comes a Temporary restraining order as it well should. This is to set a date for a hearing and to ensure in the mean time the plaintif is kept safe during the "due course" it takes to get the matter heard.
A temporary Order must be followed but does not remain on any record if successfully defended.

Originally Posted by Yaw

I have been in a similar psotion before myself.
It really depends on what he wants to do.
There are a few options.
1. Plead guilty and take the restraining order.
2. Accept the restraining order without admission. (most commonly used option)
or
3. Defend his position that he had nothing to do with it.

1. Do not do
2. While it sounds like a good idea, it isn't. Once inplace the protected person can make a complaint and defending a breach is very very difficult.
3. This is the best option. It will take time, but you need to be able to dispute each and every allegation

[fangq]

Originally Posted by devil cv8

1. Do not do
2. While it sounds like a good idea, it isn't. Once inplace the protected person can make a complaint and defending a breach is very very difficult.
3. This is the best option. It will take time, but you need to be able to dispute each and every allegation

I'm not a lawyer, and don't play one on TV either, but what happended to innocent until PROVEN guilty. Are restraining orders based on a different tenet of law ?
Steve

[XRchic]

Originally Posted by fangq

I'm not a lawyer, and don't play one on TV either, but what happended to innocent until PROVEN guilty. Are restraining orders based on a different tenet of law ?
Steve

Generally that is in the criminal law context but generally that is the way it works in theory in all allegations/claims. As stated above, in this case, it would be decided on the balance of probabilities, ie a civil matter.

The point is that the burden of proof is on the people seeking the restraining order to prove that it is required - ie proof that your mate did it (not just that it was done). If you can demonstrate that you werent there at that time (ie alibi) with a reliably witness then your mate should be fine.

Im not sure how far a restraining order would be set up and enforced based on a letterbox burning incident anyway... for a restraining order, there usually has to be some threat to the person seeking it - a threat which is real and the basis for which can be proven. I would think it is debateable that torching a letterbox could be perceived as a direct threat to a person. It could be but it might not be.

If your mate didnt do it and can demonstrate where he was at the time, then they wont be able to prove he did it and IF they could for some reason, it would still be hard to say whether that would be enough. It would be for an action such as criminal damage, but the issue is the threat to the person.

I would say your mate is fairly safe at this stage and shouldnt worry too much.

Good luck!

Jac

Originally Posted by fangq

I'm not a lawyer, and don't play one on TV either, but what happended to innocent until PROVEN guilty. Are restraining orders based on a different tenet of law ?
Steve

One big problem with restraining orders (AVO in NSW) is if you get breached once, the next time you are breached the presumption of bail is denied hich means you are locked up until it gets to court. If you plead not guilty, you will remain in jail until the court case. It can be quicker to plead guilty, get the sentencing out of the way (unlikely to be a jail term) and be on your way.

Not to mention an AVO means you must surrender any firearms and are unable to obtain a firearms license for 10 years.. this can have a big effect depending on employment and hobbies.

[superroo]

Thanks for all your help. You all seam on a similar track to what we were thinking when we were discussing it, but it all helps in the end

A very big CHEERS