WA Contesting Family Violence Restraining Order - Help?

[NotBorisJohnson]

HI all,

I need some help. I am in South Australia and started proceedings to get access/custody of my children in the Federal Circuit Court last month.

My wife has left the state and taken our children with her. She has cited Domestic Violence but there has been none. There are no DVO's/FVRO's either here in Australia or back in the UK.

I had the first hearing a few weeks ago where the judge requested me to serve her with the papers via email, as I do not know where she is, so I served them that evening and filed an affidavit of Service. The next hearing was last week and a lawyer turned up on her behalf.

At the hearing, the lawyer claimed there was a DVO out on me in Western Australia. I have never visited Western Australia, heck I have only been out of Adelaide twice. I am a Pom on a temporary working visa who will qualify for PR in February next year. I informed the Court that I had not been served with a DVO / FVRO.

After the hearing, I phoned WA Police who wouldn't give me any details over the phone and told me to go into a Police Station. I attended one here in Adelaide around lunchtime, after waiting an hour I was called into a side office and served with an FVRO. The FVRO was filed almost one week after the Court Papers for the Parenting Case were served, what a coincidence hey...

I have the Affidavit filed and it states there is a DVO in place on me in SA. There is not, apart from this Interim Order there is no DVO's/FVRO's here or in the UK. The Police here have confirmed there are NO orders and that I have a clean offenders record. I am getting this in writing via a Freedom of Information request I made last month with regard to the Parenting Case. She also claimed SAPOL assisted in leaving the State, the Police have confirmed they do not assist in the removal of children from a State.

The Affidavit is a bit of a joke, the legal advice I am getting relating to the Parenting Case has it and has said it is an absolute joke. 4 of the 5 incidents happened back in the UK, the most recent in January 2017. Just over twelve months later we had emigrated over 12,000 miles to South Australia where neither of us had any family or friends.

Two of the "incidents" related to my son who had a habit of hiding in cupboards/wardrobes and would you believe in one of the incidents in the wheelie bin in the back garden. The other incident she was in the house at the time but is claiming she was ill. I don't recall she was ill and will be making this clear in my Affidavit. He managed to let himself out of our brand-new house and the Police found him immediately, I changed the lock after this.

The other incident he hid in a bin on the property and told the police he could hear me frantically calling his name, but thought it was funny that daddy could not fine him. Even the police had a laugh, took no action and told him he was naughty as he had worried both daddy and the police. On both occasions, I was the one who called the police and they took no action.

In one of the incidents in early 2017, she assaulted me, punching, kicking, ripping my shirt and throwing yoghurt all over me. I called her father to calm her down, she called the Police. They requested I stayed somewhere else to let her calm down. I was not removed from the home so I went to my mum's. The following month we got the Visa, and in less than 12 months we were in Australia.

In another, a month or so later my 4-year-old daughter got injured whilst I was putting her to bed. I had put her to bed already but she basically got up, went into her brother's room and started to mess around. I asked to leave twice but she ignored me. So I took her hand and lead her out of the room whilst she was screaming and throwing her head around.

I did not know she had done this until the next morning after I had left for work as she had a bump on her head. My wife rang me to tell me. The school reported it to the police who interviewed me over the phone. The call lasted 2/3 minutes, the Detective accepted my explanation and no further action was taken. My wife claimed in her affidavit there was further action, there was not.

My wife has also it seems taken up with a former boyfriend from the UK who lives in WA. I found this out back in May when I finally got access to my Facebook account. She banned me from using my original account not long after we met in 2009, this is how I met her. I had plenty of female friends mainly ex-school and a number of admirers I met via the Zoosk app when I was single and in shape.

Upon accessing this account that I had not used since June/July 2009, I found a list of recommended friends. At number one was her former boyfriend, when I clicked on him it said you have one mutual friend. I will give you one guess. He lives in WA.

She tried to make out she had taken our children out of the country and back to the UK. Sending me emails at 4pm Adelaide time, or around 7am back home with things like "just got up and am about to take the children to school".

Anyway back at the start of last month, I received a Google Security Alert. Before she left she came into the house and removed many of my personal possessions including my Android Tablet. The alert then came up with the last location it was used, in WA. I thought that is strange isn't that where the former boyfriend lives so I did a search on Facebook and found him.

Guess what the main profile photograph and only one I could see was?

Him and my wife looking cosy. Underneath were comments from his friends congratulating them on their relationship. Now, I was banned after she left or rather blocked from her Facebook account. On another hunch, I searched for her and guess what?

I found her.

Guess what her profile and indeed the only photograph I could see was?

Yes, the same one as the new guy, underneath were her mother and sister commenting on the photograph, as well as the girlfriend of one of her older boys who live in the UK. As well as likes from him and his older brother.

If I search with another FB account she created for me 3 years ago, I get access to everything on the page including posts about the children and the pop music she likes. Weird, hey?

She has cited in the affidavit I have cyberstalked her. I certainly have not although I would like to know where my children are.

I am contesting the Family Violence Restraining Order as everyone I have spoken to has said it is blatantly malicious, being filed almost a week after I served papers on her.

Any help would be appreciated. Thank you.

 

[GlassHalfFull]

As with most of us here, we're not lawyers and can't really help with the legal side that much, all we can do is give our experiences. Does certain sound like, from your side of the story at least, to be a pretty malicious and calculated ploy. I'd like to think that eventually the courts will see it for what it is, but if your experience is anything like mine, it will be a long and painful journey to get there. In Victoria, it took me over a year to get to a point where I was able to contest my domestic violence order. In the end I didn't actually contest it because my lawyer's advice was that it was generally better to accept it without admission because a finding of violence against you would have a negative effect on the family law case (which is where most of the real decision making goes on, not the state magistrate's court). Out of principle, because mine was essentially a stitch-up too, I wanted to contest, and I took it as far as the day of the contested hearing, but had my lawyer write to the police to ask for an agreement that I would accept a further 6 months if my children were taken off the order (a token offer really at that point, since they had been on the order for 12 months already and by then I had family court orders allowing me to see them).

My advice to you is to focus your attention on the family law side of things. The DVO will be a thorn in your side and an injustice, but ultimately the decisions made in the family court/federal circuit court will be what (hopefully) gets your children back. Thankfully, because of how easy it is to obtain a DVO, most family law courts don't give it much weight (especially when it's interim and there has been no finding, even if you accept without admission), and will look at the affidavits to make interim orders. What you haven't really mentioned is whether you have a lawyer already representing you or whether you are self-represented at this point? Obviously there's nothing wrong with having a lawyer and still asking questions here. I've done that many times along my journey, because my lawyer hasn't always been very good at communicating with me and I like to get a second opinion at times.

My gut feeling at the moment is that it probably won't be easy to get the children back immediately. Maybe I'm wrong on that though, especially if they had ties to your location in SA, and it appears she's essentially ripped them away from their lives for her own self-interest. It may also work in your favour that she disappeared all of a sudden and left you without your children. What you haven't really said is how that occurred. Did she give you any warning that she would do it? Did she literally disappear and you weren't aware until after she was gone, or was it something you were aware of happening? For all of the information you've given, there seems to be a few gaps that make it hard to fully understand what happened and why.