Provision in courts for quick orders

Press, 12 November 1979, Page 4

Provision in courts for quick orders

Quick non-molestat:on orders are the exception, not the rule. Whether a woman is granted a non-molestation order quickly, or whether she has to wait a week or 10 days, depends on the type of application made to the court, says Christchurch's senior magistrate, Mr F. G. Paterson. S.M. Applications are usually made "on notice,” which means that the husband is notified and he is given the opportunity to put his side of the story in a defended hearing.

The husband must be given time to prepare a : case and find supporting 1 witnesses, and evidence i says Mr Paterson. The I courts must also find a suitable time and place for the hearing to take place. But even a week or 10 s days is "instant service" j for a defended hearing I when other matters may ’ be two months in coming i to court, says Mr Pater- ■ son. i However, if a woman i can produce evidence that any delay would cause “iri reparable injury' or undue I hardship” ’ there are I grounds for an “ex parte” : application, says Mr Pa- ' terson. In these cases it is ! possible for a woman to i see a magistrate “right i away,” and have a noni molestation order granted immediately. Mr Paterson emphasises that this is an emergency procedure and is less desirable, as there are

always “two sides to a story.” Some time ago there had been a lot of these applications coming before the courts.

"Our feeling was that thev were being used as a matter of course, not as a matter of urgency." says Mr Paterson.

Applications for quick non-molestation orders are often made in the heat of emotions when each person is looking for a weapon to use against the other, Mr Paterson says. The court’s task is to ensure that there is a "genuine need” for the order.

It is a matter of record that magistrates have made themselves available for hearing this type of application, in chambers, for many years, says Mr Paterson. But once a case becomes defended matter it cannot usually be heard in chambers.

In conjunction with non-molestation orders courts have also made interim orders giving wives the right to exclusive occupation of the matrimonial home. The courts have always realised that it is "dangerous” to grant interim orders for exclusive occupation as it is “tantamount to anticipating a separation order." says Mr Paterson. Other possibilities, such as conciliation, must always be probed. However, in a 1978 decision the Supreme

Court said that it felt that this kind of interim order had not been contemplated by Parliament. In some cases this type of interim order might be an acceptable course of action. But on the whole all the facts should be evaluated first, and a substantive order for exclusive occupation then made. This was something that Parliament might have to look at as the position of a non-molestation order was a little complicated if the wife did not have exclusive occupation of the home, says Mr Paterson. Non-molestation orders ceased to be effective if the husband and wife started to live together again, or if either applied for the order to be rescinded. Non-molestation orders were usually only necessary for a short time, once things had settled down, says Mr Paterson. It was not desirable for them to remain in effect too long, as they stopped a couple from "getting together on matters of mutual concern" and also provided difficulties for access to children. Mr Paterson says that some of the deaiys in mat-

ters coming to court are a shortage of magistrates in Christchurch. It is hoped that a new appointment for Christchurch will be made early next year, he says.