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Jo C.
Jo C., Barrister
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Experience:  Over 5 years in practice
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What is the legal position person given a restraining

Resolved Question:

What is the legal position for the person given a restraining order when the person the order is supposed to protect harasses the defendant by phone calls and texts and turning up at their home? And this behaviour is repeated and regular and causes the person with the restraining order to breach the order?
Submitted: 1 year ago.
Category: Law
Expert:  Jo C. replied 1 year ago.
So, in short, the person who is the subject of the order is encouraging breaches?
Customer: replied 1 year ago.
Yes. This case relates to my son (who has the restraining order) and the mother of his child who constantly invites him to breach it. He went to court for the first breach and received a 100 hours Community Payback order. He has breached it again by text message contact 1) because their is a culture of her flagrant disregard for the order and 2) because he believes the Family Court gave them permission to text to come up with a mutual parenting plan. He has now been arrested again for breaching the order and is on remand. He refused to plead guilty in The Magistrates Court and has opted for trial at Crown Court. Thank you :)
Expert:  Jo C. replied 1 year ago.
Oh yes, this goes on all the time. There are not many instances of a restraining order being used for it's proper purpose actually. Mostly they are just used by the subject to control and abuse their partner.It does depend what the messages say. However, if they are fairly innocuous then he does have a defence on the basis that he had reasonable excuse to contact her. He needs to get access to her telephone records from the Crown before trial.The problem is that in the meantime he is in custody.When released, he needs to get the restraining order removed by visiting the issuing court with evidence that she is contacting him.However, he would be much better off having no contact with her at all as she will only start making allegations of other offences.Young ladies like this are vexatious accusers. Sadly, some men have come to accept that conduct in women and it is not acceptable. Quite frankly, he would be much better off getting himself a dog than continually returning to somebody who calls the police when she can't have what she wants.Can I clarify anything for you?Jo
Customer: replied 1 year ago.
OK, so the messages began about child access but then his messages (read out in court) included very unpleasant swearing and criticism of her ability to be a parent. I don't know what hers said but I can imagine they were equally vitriolic. My question therefore is:
does my son, as he is pleading not guilty, have any defence by bringing to trial evidence of her perjury that had him convicted previously
and evidence of her provocation now to encourage this breach?
I don't know how we could get her phone records, but we could produce my son's. And I believe (as I have his written authority) I should be able to get his phone back from the CPS.
If we employed a barrister to represent him would his case be more clearly made?
Thank you
Customer: replied 1 year ago.
... persuasively made!
Expert:  Jo C. replied 1 year ago.
If he was abusive then it is probably better to plead guilty I'm afraid. It depends on the terms of the order ut that is likely to be prohibited.You ask for her phone records in the defence case statement.
Customer: replied 1 year ago.
Thank you. What if the abuse is 50/50 ? And further to my conversation above - can her continual invitations to breach the order be used in my son's defence?
Expert:  Jo C. replied 1 year ago.
Her invitations do help to argue that there was reasonable excuse.50-50 abuse can be helpful but it depends how abusive the messages were.These things always turn on facts. I get a lot of people off these things but I do pick the fights fairly carefully.
Jo C., Barrister
Category: Law
Satisfied Customers: 69788
Experience: Over 5 years in practice
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