NSW Appealing Unfairly Served AVO at District Court - Thoughts?

[Renaud K.]

Hi there,

I am a nice bloke from Brunswick, Victoria. I have been served with AVO in NSW and can't contact neither my 5yo little boy or his mum for a period of 2 years. I believe my ex wife is lying to the magistrate in order to have power over me, over our son depicting me as a person I am not. Ex wife has, I believe, been diagnosed with a mental disorder and is of a violent nature. I have lodged a complaint against the magistrate that sentenced this AVO with NSW Judicial Commission as I believe she tried to intimidate me in an unlawful manner, all has been recorded on tape, at this point still waiting on a result, apparently the local court is taking an awful amount of time to deliver the material.

I am appealing at District Court next Monday, sorry about the short notice.

There will be apparently no duty solicitor at court to help us and I have called a private law representative that quoted me a fee of $2000, that is nowhere near a price I could afford. I hope to find here some help under Family Law that will help me run this operation.

Here follows what the orders are from memory as I can't find the original paperwork of the original AVO, also the written document that I have been working on for the magistrate at the district court.

AVO is:

1. Not to molest, harass, intimidate etc
2. Not to contact, approach within a range of 200m
3. Not to approach either the house or my son's school

Document for District Court I wrote ("E" is the ex wife and "V" is our son)

Your honour of the district court,

1. My background: I am the oldest of 2 brothers, middle class family From Grenoble, France. My mother and father were working in scientific roles and gave me the best loving and caring frame to support my healthy upbringing they could. My father, uncle and mother are still to me some of the most influential role models that have been in my life. There is absolutely no violence or breakup history in my family background even as far as the broader family. Also, none of my past relationships have been characterized by any sort of violence, ever.
   
   
2. E. and myself have been married over 7 years and have one child of 4 and a half years of age named V. Our relationship have been suffering of recurrent strikes of anxiety and depression from E., coming of an unknown cause, her family was well aware of this condition that their daughter was suffering from. E. attempted suicide many times whilst we were living together. Possibly the result of poor treatment from her stepfather when she was growing up, her mother left her father when she was at young age and she was abused by her stepfather, as I gathered. I have been her main carer until the day V. was born, I believe E. has been diagnosed with mental illness or disorder, she is on a disability support pension still at this stage. Her medication is now more moderate as I believe having a young child in her life has been helping lots in that regard however she has to realise that it is only a temporary delusion as one day V. will get out of the nest and fly of his own wings then E. may dive again in deep destructive depressive state.
   
   
3. Today I am attempting to appeal against the decision of the magistrate of the Milton local court that have sentenced me without really listening to what I had to say. None of it was considered and I now have no means to get in touch with my little family, or at least my son. I have been treated unfairly and I have never committed any offence.
   
   
4. Last year in December, I went to see them and E. was very rude with me, possibly due to a rechute of anxiety as she had been doing real well in the past months. I had to stay out of the house sitting on the veranda working on my laptop or fixing things around the house, gardening, fix the fence etc. We went out to the fair for V.’s birthday and to the school party, the beach, the restaurant etc.. but was treated with bad regards. I did not really react to that and kept acting normally and positively, did not start any argument or anything although I kept being yelled at repeatedly.
   
   
5. At some point, as I was trying to fasten the legs of the trampoline I bought for V., E. went off in a rage as she said this will void the warranty. I think she called the police. I left the premises right away without a chance to say goodbye to V., I did not come back.
   
   
6. I can admit that I went there in December 2014 against E.’s will but she changed her mind pretty much at the last minute and my visit was planned since at least October 2014. I know E. very well and know for sure that sometimes she just gets like that and when I’m there it’s all good so I took the risk. However it was different this time, I was indeed surprised.
   
   
7. At this stage I am willing to commit to not visit at all unless I am invited as I do not want E. to go berserk again, it would not be helping at all. However, to be treated this way is just not helping anybody I think, especially someone that never had any violence in his past relationships and family. V. has got nothing to do with this, he wants to see his dad and we miss each other very much. He is indeed in the list or protected persons on the AVO…
   
   
8. I wish sincerely that you can understand this situation better than the previous court. We are not a very strong family as we have low income, issues due to instability and to my humble opinion, this order is compromising all our chances to go any better at this point in time.

I must now leave to your discretion to decide what is best in our case, to vary, revoke or leave as is.


Yours sincerely

 

[AllForHer]

AVOs are state legislation, family law is federal, so they're two different fields, but the way they interact is that parenting orders override AVOs to facilitate a child spending time with each parent.

Your appeal needs to argue that the court made an error of law in its judgement. What you've written into your letter is not in the right format, and it is a request for an appeal on compassionate grounds, rather than evidential. The court is a cold place that depends on fact to make its determination, not feeling and speculation, so a letter saying, "Look, guys, just trust me, okay?" is not very persuasive, considering they've already decided you pose a risk to the other party.

AVOs are hard to fight because the court prefers a 'better to be safe than sorry' approach, and they don't have any consequences to the respondent party unless they breach the order. Further, if you're not at risk of breaching it, the court isn't going to see any reason why it shouldn't be left standing.

Is your main concern how the existing AVO affects your capacity to have a relationship with your child?

 

[Renaud K.]

This AVO might be a violation of laws, not sure but to me it has been set on assumptions. No evidence material has been delivered from the plaintiff. So how can I frame that? Any example?

My main concern is indeed my incapacity of having a contact with my boy with that stupid AVO in the way. I would like to have the "not contact not approach..." taken out, only the "not to harass..." thing kept in as this is the only bit that makes sense..

 

[sammy01]

I had an avo with a no contact clause BUT that doesn't mean you can't start family law proceedings to see your kid. So an AVO doesn't mean you can't see your kid until the AVO expires.

You should aim for an undertaking to be a good boy rather than appealing the grounds of the avo.

 

[AllForHer]

Agree with the above. If your concern is the child, focus on getting orders granting him his right to have a relationship with you. This is through parenting orders with the federal courts, not an appeal of the AVO in state courts.

Your first step is contact Legal Aid tomorrow and request that they organise a family dispute resolution conference between you and your ex, which is not a breach of an AVO. On Monday, you can tell the court that you have commenced proceedings for parenting orders and seek to have the existing AVO amended so the parties can communicate in writing about child-related matters as is necessary and conduct changeovers, at a supervised location like a police station if necessary. You could also offer to enter into undertakings to be on good behaviour, in place of the AVO.

 

[Renaud K.]

I'm very close to have completed the paperwork for family court. Will get there soon.

AVO is not acceptable on any level I must go and tell them no matter the outcome it is my duty as a honest citizen.

What's that thing with the good behaviour, I don't understand. Can you elaborate?

Blessings

 

[sammy01]

you can tell them but it won't change a thing. So what I did was I stood up, said I accept without admission and then I looked into the camera that films proceedings, because I knew the ex was watching from the safe room. And I told the camera that my ex wife is a liar who has used the court as a mechanism to continue her abuse of me AND your honour you've been used by my ex wife too. Many thanks.

Changed nothing, made me feel better but...

 

[AllForHer]

Entering into undertakings is a formal agreement between you and the other party to be civil and well-behaved. It makes parenting matters less complicated because it means you'll still be able to communicate about parenting matters.

I agree with the above - you can do whatever you please in the name of being an honest citizen, but it won't change anything. The court is an institute of facts and evidence, not compassion and speculation. Being an honest citizen is not going to persuade the judge to lift the AVO.

 

[Renaud K.]

Entering into undertakings is a formal agreement between you and the other party to be civil and well-behaved. It makes parenting matters less complicated because it means you'll still be able to communicate about parenting matters.

So how do you get this done?

I agree with the above - you can do whatever you please in the name of being an honest citizen, but it won't change anything. The court is an institute of facts and evidence, not compassion and speculation. Being an honest citizen is not going to persuade the judge to lift the AVO.

Prosecution has none of that. They have no material to prove, but only and a he says she says. Anything I can do to reverse the pressure there?