VIC Breach of AVO - Contravention of Parenting Orders - Application to Vary Parenting Orders

Discussion in 'Family Law Forum' started by sahil Saini, 30 October 2019.

  1. sahil Saini

    sahil Saini Active Member

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    Hi Community,

    First of all, I would like to thank the entire community for setting up such an informative and helpful forum.

    Background
    2011 - we eloped to get married
    2017 - we have a boy child
    October 2018 - Me and my brother in law got involved in a physical fight, my son being present, Later my Ex-wife called the police and blamed me. Police took a family safety notice against me.
    Nov 2018 - we go to bali to celebrate our son Bday and try and reconcile.
    Dec - March 2019 - I progress from supersived arrangements to unsupervised night stays for three nights a week.

    Last week of March - Mother got upset with me and charged me for a breach (later she withdrew and police withdew all charges), she also withheld my 1.5yrs year old son. I then initiated a family court application for parenting orders.

    June/July 2019 - We finalised parenting orders with three nights a week and detailed breakdown of special days and holiday time.

    I also consented to her IVO application without admissions for a limited order with following conditions
    1. No Family violence
    2. No going to her house.
    3. Complying with family court or written agreement.

    July - September 2019 - I spent regular time with my son, 3 nights a week, regularly spoke with my ex via text messages and she later started coming to my house and later we shared some intimate moments.

    Current Issue

    September 2019 - she asked me if i wanted to return back with her for our son. I said NO, and that really upset her. Further, I started conversations regarding property settlement. She got offended further and reported me to the police for a breach of IVO, blaming that i harassed her by sending her text msgs in ratio of 5:1 (incorrect it was 1:1.2). My bad (during our conversation in text i did threatened her that if she does not settle soon i will report her fraudulent activites) - i really screwed up here. She downplayed and only reported me for harassment and not threat.

    I pleaded guilty to sending her text msgs and the magistrate only gave me an undertaking for 1 year with $500 fine with no criminal convictions.

    Since then, My ex has been withloding our son against the family court orders and not letting me see him, she has also removed him from the childcare on the days I can pick him.

    Further, she has initiated an application at family court to vary family court orders for me having no contact with the child and no parently responsibility.

    She alledges
    1. Old Family violence
    2. I am verbally abusive
    3. I am forcing her to have intimate relationships
    4. i am tracking her
    5. I am harassing her via text messages
    6. I am depressed and split personality disorder,
    7. i dont give her emotional and physical support.
    8. I am not paying child support (currently only owing $200).

    My Questions
    1. Does she have a reasonable excuse to hold our son? As breach matters have been finalized and family court orders have not been changed yet. 18th November is our first hearing at the court. Would she be able to justify the courts that she has a reasonable excuse?

    3. What can i expect at my interim hearing? Would the judge resume my time with my son?

    3. In her affidavit, she claims that prior parenting orders by consent were made, i blackmailed her with an intimate video of her, that is why she agreed to it. I never did. She had a lawyer back then and now aswell. Can this be a reason to vary the existing order?

    3. My breach of IVO - is that a material change for Rice and Asplund's argument?

    4. My lawyer is holding me on to not file recovery orders or application of contravention against her? She suggest that its best that we do not touch her contravention for now as then the courts will only have to rely on Rice and Asplund argument to vary these orders. Which as per my lawyer is in my favour.

    Regards
    S




     
  2. Atticus

    Atticus Well-Known Member

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    So you breached an IVO for sending a text message after you pi**ed her off with a knock back....from that you got a talking to & a fine.. No biggie. Lesson learnt I hope. Mate if you are not interested in getting back together, go elsewhere for intimacy..

    Is it reason to breach a family court order... Can't see how

    She has filed for a variation.... Still no reason to ignore current orders because until those orders are set aside or varied, they are still in force & you both have an obligation under law to abide by them..

    That list of 'allegations' is all about her & her opinion... If that is the basis of her seeking to vary the order I hope it gets thrown out.

    A breach of an IVO, especially a minor breach concerning text messages of which she was fine with till you knocked her back is not even close to a material change, the kind of which is needed to satisfy Rice & Asplund..

    I think your lawyer is on the money.... At the least I would expect that she be told to return to complying with the orders at the interim hearing... With any luck, the whole thing will be dealt with on that day
     
  3. sammy01

    sammy01 Well-Known Member

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    In your response to her applictation I'd be seeking
    1. Immediate resumption of orders
    2. Make up time.
    3. New orders that increase your time with the kid
    4. a cost order against her.
     
  4. sahil Saini

    sahil Saini Active Member

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    Atticus - Thanks for your response. Yes! lesson learnt in a big way! I realise she is not the same person I loved and got married to.

    I am hoping this matter is thrown out of the courts asap so that I can move on with my life and give my son a better environment with the best of me and his mum. The whole system is a bit biased and I understand its a game of chess. My goal is to create a safe environment for my child. I will play this game with patience.

    I have a duty list hearing on 18th, is it the same thing as interim hearing? I am preparing my affidavit for the same now. trying to be as detailed and specific as possible.

    My lawyer also advised that nothing might happen on the first date and the judge might order a 11F or Family report before he makes any interim orders.
     
  5. sahil Saini

    sahil Saini Active Member

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    Thanks Sammy for your valuable suggestions, i am including your suggestion in my application. I am hoping to use some of the makeup time if granted to take my son overseas to meet his paternal grandparents.

    My ex has just made it impossible to let them have any contacts with them. My father is not well and he cant travel, my ex wont allow for my son to travel. I am also applying for a holiday orders for my son travel.
     
  6. Jake Matherson

    Jake Matherson Well-Known Member

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    Yes. Orders can be made about where the child lives among other directions such as Family Reports etc...

    If this said "Directions Hearing" no orders about where the child lives would e made.
     
    sahil Saini likes this.
  7. sahil Saini

    sahil Saini Active Member

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    Twist in the tail.

    18 days before my court date, her lawyer calls my lawyer to advise that my ex has got the family orders suspended in the magistrates based on that i have been repeatedly messaging her for child custody (as per family court orders) when she has advised me that she does not want to comply with orders.

    Further, her lawyer has withdrawn from the case as we raised a conflict of interest. But he advises that he is removing himswlf because he does not like to deal with my lawyer.

    questions

    1. can my ex seek extension of family court date on 18th nov

    2. I believe her lawyer is withdrawing because he has F ed up and wants to save a face in the court.

    3. How can a magistrate’s courts suspension of family court orders affect my family court hearing on 18th?

    4. My ex is now using magistrates court to make it harder for me to access my child. Is that duress? And can i sue her for that?
     
  8. Atticus

    Atticus Well-Known Member

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    All part of the new DVO laws that came into affect reasonably recently... Hasn't taken long for self absorbed twits to start abusing them... Surprise surprise.. Afraid you can't sue...

    What's your lawyers take on it?... Probably best guided by that advice, but the Family court can still override & make her comply with existing orders. As always consistent with the best interests of the child.... Based on what I have read here, she thinks the world should revolve around her... Hope she gets told as much..
     
  9. sahil Saini

    sahil Saini Active Member

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    We come from a indian background where duress is a common strategy to deal with parenting matters. I hope she gets told off by the magistrate.

    My Lawyer was very happy with this development as she believes it gives her another strong reason to convince the judge that mother is acting unreasonable and causing harm to the child in the process.
    she believe the family court magistrate will have the powers to overwrite that suspension and bring them back into play,

    my main worry now is that as her lawyer has withdrawn himself from representing her, can she apply for an extension of the court date and delay my contact with the child further?

    i cant even dob her for any contravention from here onwards as the family court orders now stand suspended.
     
  10. Atticus

    Atticus Well-Known Member

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    I agree... Sounds like your lawyer has this
    Was her lawyer funded by legal aid?.
    If she is going to seek an adjournment she should do so as soon as practicable. I imagine your lawyer will oppose it, at which point it's up to the court.
     
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