VIC Contesting a permanent IVO

[Mark77]

Hi Guys,

I have been happily married for 19 years and have a nine-year-old and six months old. I have never had any complaints/police matters or even traffic offences against me. Here's a summary of the events that left me with an IVO.

Since the birth of our six months old, my wife's behaviour has changed. She is ten years younger than me. My wife and I have worked all our lives; she took a 1-year break when our eldest was born. With the newborn, she went back to work just after three months and works full time now. Her parents are staying with us for the past six months and are here till December to help with the newborn. I never forced my wife to go back to work, and it was her decision to have her parents here so she could go back to work. For the past three months, she and her parents have been ignoring me. They'd mostly talk and spend time together in her parent's room without me, having the door shut all the time. She is also very careless with the newborn and would often leave the infant on the floor unattended with the 9yo running around, forgets to harness him when in the cradle or car seat (and completely ignores me if I tell her to put the baby in the harness). She even forgot the baby in the bathtub with the nine-year-old who tried to pour hot water on the baby, thinking the baby is cold. At these times, I have tried to tell her that it's not safe for the baby, but she has ignored me.

Last weekend, I had my brother over with his 6YO. My wife left the baby again on the floor, and my eldest and the 6yo were running around the baby. I panicked and raised my voice, asking the 9yo to be careful. She came out and asked me not to say anything to the 9yo and took both the 9yo and the baby in her parent's room. After my brother left, I asked the 9yo to be careful with the baby as it could be dangerous. She and her parents came out and said that I am too harsh with the 9yo and we had an argument in which I asked her parents to go back to their home if they don't like it here. She couldn't handle that and went back into the room with the 9yo and her mother while her father and I calmed down and discussed how to settle calmly. His father complained that I come home late at night for the past two weeks, and I reminded him that I am doing a course at TAFE to which he agreed. While we were calmly talking, there was a knock at the door, and I was surprised to see the police. The moment missus opened the door, she put the 9yo in front of the cops, and the officer asked him if I had hit him to which he said yes. Officer then asked my father in law if he had seen it to which he said no. In the statement, police wrote that the AFM has confirmed there was no physical violence against her but I have been aggressive and controlling, and I held the 9YO from his arm and smacked him on his torso. In the report, it was written that the respondent was worried about the baby's safety and yelled at the 9yo, and there have been no other reports of any domestic violence. Also that there were no visible bruises anywhere on my eldest's body. I was served with an interim IVO and was asked to leave and attend a magistrates court in 3 days. I couldn't make sense of what has happened and thought it was the heat of the moment that has lead to this, so I attended the magistrates' court thinking it'll be all over. I had never been to court or police station before that. Once at the court, I was advised that I should get a lawyer asap. Through a friends reference, I called a lawyer who asked for payment in cash and came in 20 minutes late. Without hearing me out, he spoke to the police and asked me to consent without admission. I didn't know what that means so I did what he told me hoping I'd get a chance to say something to the magistrate. It was all over soon, and I was served with a 12-month final IVO restricting me from the house and kids.

My biggest mistake was not to prepare myself for the court. Missus told the police that the marriage is over and she wants a divorce. I still can't make sense of how and why she is thinking along those line as this wasn't even a heated argument. I believe I am falsely accused and want to get back together with the family. IVO was put in place by the police. Both my sons and the missus are on the IVO as protected persons. IVO strangely also had an exception that allows me to text/email my wife regarding our children and any childcare arrangements( even though this contradicts with the kids being on the IVO as the protected persons) so I sent her a text and with no response.

I have been reading a lot lately and wondering if someone can advise on my situation and tell me if there is any benefit in contesting the order in the county court or if anything can be done in my case. I am devastated and stressed out, trying to make sense of what has happened.

 

[Rod]

Sadly I think you are in for a separation. I suspect you gave an undertaking and this mean you have a better chance of seeing the kids when things get worse and you need to apply for parenting orders.

I'd start saving as much money as possible, I think you are going to be spending more on lawyers.

 

[Been2Trial]

Without meaning to sound offensive, you're married to a chinese girl aren't you....

I've heard multiple stories of what you have just described, almost to the letter, before from guys who have had this happen to them. Its uncanny how similar every one of them has been, almost like it's a script they follow.

If I'm wrong, just ignore my wild speculations haha

 

[sammy01]

ok, so sorry for what you're going thru.
Be careful, minimise communication, you can ask to see the kids via text message. But if there is no response or an agressive response walk away. Don't engage.

Mate you can ask the police to help you collect some stuff from the house. Go see the local cops. No guarantees But worth a shot.

Next - contact Relationships Australia. The can organise mediation for free / very cheaply / govt subsidised. They can help you get an agreement about the time you spend with the 9yr old.

Stay calm.

 

[Mark77]

Thanks all. Appreciate the input.

I was informed by one of the law firms that it's possible to appeal in the magistrate's court again to contest the IVO stating I didn't have time to talk to my lawyer and didn't understand the proceedings in the first instance, which is true. Is there a point in doing this? Or is it worth contesting the IVO in the county court? The accusations on me have no ground, and there is no evidence either. Missus been buying the eldest toys weekly and as such manipulated him to make a statement.

Secondly, utility bills and the joint credit card (I have now put a hold on the credit card) are in my name and are due next week. I can pay them for this time but who is supposed to pay them going forward. I am paying for my bills, rent, food now that I am out of the house. The house she is living in is less than three years old and has no mortgage. It has nil electricity bills due to solar, has water tanks and gas bills are low due to the insulation.

Is it possible for me to take my name off the utility bills or should I offer to pay a portion of it as I don't want my children to be affected by all this. Though, I am not sure though how much I'd be able to help as my salary barely covers for my expenses and now legal costs on top.

I do believe they are a flight risk as well. Does anyone know if there is a way I can put an airport watch without involving lawyers?

Finally, I did call Relationships Australia and was told they don't do mediation if there is an IVO in place. Is that the case or I got the wrong person on the phone?

Thanks

 

[Rod]

Her next step will likely be child support. If that happens, cut off all other financial support. In the meantime until she raises the issue of child support you may be better off co-operating on bills.

Possibly start talking through the lawyer about selling the house. This may give you a gauge as to whether she is serious about ending the relationship.

re: Airport watch list. Fill in a form available on the Federal Police website, though you will need to file for a court order granting the request.

 

[GlassHalfFull]

Both my sons and the missus are on the IVO as protected persons. IVO strangely also had an exception that allows me to text/email my wife regarding our children and any childcare arrangements( even though this contradicts with the kids being on the IVO as the protected persons)

It's not really a contradiction. Although it sounds like you're paraphrasing a bit. Mine says (and I assume you are referring to the same thing) "The respondent may: b) negotiate child arrangements by letter, email or text message". That is child arrangements. Not childcare arrangements. That means that if you write to her and she agrees to let you see the children, you can see the children. However, it is 100% reliant on her responding and agreeing to do so, and it seems clear that she isn't going to agree to it. The other reason that clause exists is because you are also allowed to do anything that is permitted under a family law order. This means that *IF* you already had some orders via the family court, it should permit you to continue following those orders which might allow you to see your children, and to communicate with your partner about the arrangements. However, in your case, because the IVO is the first step in what is likely to be a very long and difficult journey into family law, there are unfortunately no family law orders in place that you could fall back to.

Finally, I did call Relationships Australia and was told they don't do mediation if there is an IVO in place. Is that the case or I got the wrong person on the phone?
Thanks

I was told the opposite. That in most circumstances, Relationships Australia can do mediation when there is an IVO in place, although they ask to see a copy of it and cannot guarantee that mediation will take place. In my case, I was invited to an intake session but they later decided that mediation could not take place due to involvement from child protection. So long story short, it really depends on how messy your precise situation is. Mediation is completely dependent on the other half being willing to discuss it anyway and it sounds like she is not (she holds the balance of power currently, and controlling vindictive people tend to want to keep it), but you might as well give it a try. I would call them back and say you were told by 'a friend' who had mediation through Relationships Australia previously that an IVO does not NECESSARILY mean you cannot proceed with mediation. Perhaps they have changed their policy in the last year or so. It can't hurt to get a second opinion anyway.

Also, I have to say, you were a bit foolish to go to court without having done a bit of homework on what it was you were there for. Admittedly, we all learn the ropes as we go along and clearly nobody is born knowing about intervention orders (and nor should we - they are in most cases a judicial abomination), but aside from that, it sounds like the lawyer who represented you really didn't explain it properly and that's very frustrating. For something as important as an IVO, it's crucially important that you know what you are agreeing to. Realistically though, the reality is that in most cases, you won't get any justice in the magistrate's court. The only way to really get access to your children back is likely to be through the family court. Even if you were to contest the IVO, it could take 12 months to get to the contested hearing due to ridiculous backlogs in the system (due to - surprise surprise - other IVOs!). In my case, I have my contested hearing date set 13 months from the date of the original interim IVO. Yes, I've had to wait THIRTEEN MONTHS for my day of justice. I would have been better off accepting a 12 month order without admissions at the initial hearing but I didn't know that at the time.

 

[Mark77]

Thanks all, appreciate your input.

She has applied for child support. I am still paying for all their bills (Most of the bills are solely on my name). She has also withdrawn around $20,000 from our joint account, and her lawyer has sent a letter to us stating the funds are for her and children's living expenses. I wonder if I still have to pay child support or raise it with CSA?

I sent her a text to see my children to which she didn't respond, and I haven't contacted her since. I miss my kids and have trouble sleeping now.

Secondly, her lawyers are continually sending me emails asking for the last three years worth financial documents to settle the property. They have asked me to reply in 14 days else they have warned me that they may take this to federal court and seek expenses from me. Can they do that? Also, why aren't they taking finances into account for the last 19 years? I have asked them to get me access to kids with no response. They keep forcing on the property settlement.

Regarding the property settlement, I have always earnt more than her. She has worked most of the time during the relationship. I built the house as an owner-builder doing most of the work myself. I am also ten years older than her. She has refused to pay for investment properties, and I am paying the shortfall after rent, on top of my living expenses and CS, as well as their bills. How can I get CSA to take the actual circumstances into account to calculate the CS payable to her? She has no mortgage (on the PPOR) to pay and living comfortably while I live away from the house paying for rent and all other expenses.

Appreciate some guidance.

Thanks

 

[Rod]

OK, things are escalating fairly fast.

I think you get the message now that she will do whatever it takes to look after herself and 'her kids' at your expense. I'd be removing remaining money in the joint account.

I suggest giving me a call to work out your next steps. You are likely to need advice at this stage without necessarily committing to anything else, particularly as you are dealing with what seems like an aggressive lawyer on her side. Making the right moves now may save money later.

Before I became a lawyer I made decisions without advice in a family law matter that in hindsight cost me a lot of money.

My contact details can be found through my signature below.

 

[Atticus]

Before I became a lawyer I made decisions without advice in a family law matter that in hindsight cost me a lot of money.

I agree... In cases where the other party is showing no sign of being reasonable & 'the writing is on the wall', it's often quicker & ultimately less costly to get solid legal advice & be proactive rather than being behind the eight ball