WAITING IN “ANTICIPATION”

What do you do if your partner or spouse gets an interim protection order against you which you know is completely false, and which prevents you from seeing your children and effectively has been used to evict you from your home.

Firstly, one must look at what an interim protection order is. When a person in a domestic relationship feels that that they are under threat from another person in that relationship, the person can apply to the Domestic Violence Court for an interim protection order against the person who is threatening them.

Domestic relationships include persons that are or were married to each other, persons that live or have lived with each other, parents of children, family members, people dating or people who simply share the same home.

The threats may include; physical abuse, sexual abuse, emotional, verbal and psychological abuse, economic abuse or damage to property etc.

The person feeling threatened will complete the application forms at Court and the forms will be given to the Magistrate who will make an interim order. The Magistrate can decide what order will be most appropriate given the persons facts. The Magistrate can order that, where any threat against minor children by a person is involved, that the person only be allowed supervised contact with the children. The Magistrate can also order that the person be removed from their home and prohibited from returning.

The Magistrate will then allocate a date that all the persons involved in the application should come back to Court for the final hearing. This date may sometimes only be in a month or two’s time.

The delay may have severe consequences for the person against whom the interim order was made, especially if the application is false, as they will be forced to find somewhere else to stay and may be prevented from seeing their children unless otherwise supervised.

So what happens if your partner brings an application against you that you know is false and now you cannot go home or see your children without somebody supervising you?

The simple answer would be to anticipate the return date. You would be required to sign an affidavit commenting on all the false claims made against you and set the record straight with your version.

The Magistrate who made the interim order will read your affidavit and decide on a suitable order to make. The Magistrate may decide to completely dismiss the claim against you or the Magistrate may vary the interim order made. This may include that you be allowed to see your children without supervision or even that you may be allowed to return home but prevented from going into certain parts of the house. Each case is decided on its own merits.

If the interim order is not cancelled or varied however the Magistrate is of the opinion that the applicant may not have given the whole truth, the Magistrate can order that the return date be held sooner than previously ordered.

It is always best to obtain the assistance of an attorney to help prepare your affidavit to anticipate the return date to ensure that your version is properly before the Court as it could be risky to prepare an affidavit in haste.

Contributor: Jenna Freeguard (Associate) (Litigation & Matrimonial Departments) (PMB Office)

E-mail: jennaf@tmj.co.za

Tel: 033 - 341 9100