TAS Do I have grounds to contest a DVO

[JustWantToBeDad]

Hi All,

My Ex and I split nearly 1 year ago, with 1 child (2.3 yo).

Recently, we had falling out over a prearranged fishing trip with my daughter, which she took umbrage to at the last minute. She hit me three times. After the first two times I told her to f**k off and to stop hitting me. The third was a full-blooded hit to the face which warped my glasses. I called her a "c**t of a human". There were no witnesses.

I took me daughter fishing, and did not go to the police. My ex-partner did go to the police and I was served with a 1 year DVO.

The DVO was for calling her a c**t. I feel that any reasonable person being assaulted would have reacted similarly, and part of it was to stop her from hitting me.

The questions I have are;
- Does calling her a "c**t of human" in the context of extreme provocation constitute "domestic violence"?
- Do I have grounds to appeal this, and is it likely that I would win?

I don't like being labelled a domestic violence perpetrator, and I need a clean police check for my job.

Thanks guys!

 

[sammy01]

I don't like my advice.... I'm familiar with this stuff in NSW. Not familiar with Tassie law. But it is all pretty similar across the country.

So you can accept without admission. The conditions on the avo will stick and you need to check because in some states the AVO / DVO can last up to 5 yrs. (QLD). But it looks like you know this thing will only be 1 year? GOOD.

So you can challenge it. But you need so cold hard facts. BTW I'm guessing the cops are the applicants? not her? there are some technical differences. But let's assume it is the cops. So you challenge it. You are challenging the police prosecutor. So she isn't paying for legal representation. YOU will. Not a good idea to DIY this stuff. so $$$$.

Next cold hard fact. You go to court, it is adjourned. While it is at interim stage the DVO stands.... Now, you know the one about the wheels of justice moving slowly? So, story time. I read a case on this site (I will try and find it). Anyways, he challenged it. After 11 months over that time he had several court mentions, delays, etc etc and on each mention he paid the solicitor to be there $$$$. After 11 months he made the decision to accept without admission. The thing is back dated to the time of application, so for all of his attempts to fight the bloody thing, in the end the interim avo would remain while he was waiting for a hearing. That meant it would have been faster, cheaper and less stressful to have accepted without admission on day one.

So 'beyond reasonable doubt'. Isn't that what the law does?... Nope NSW law "on the grounds of probability". WTF? Now I'm guessing you don't even have her police statement at this point in time? So you don't even know what she told the cops.
Next have a read... Applying for an AVO through the Police - Step by step guide
read the bit about - "step 1 speak to the police"
Read the bit about if you feel scared... WTF? so all she needs to do is 'feel scared'. wow Im gonna take an avo out against my ladder because I'm scared of heights. Hmm probably not in the mood for humour right now? But all she has to do is be scared. How do you prove she isn't scared? I don't like my advice sometimes... Sorry mate. But this is the madness of domestic violence laws.

So let me give you a little ray of sunshine or two...
1. Unless you need a gun licence for your job the DVO wont impact on work. Check with the union, or tell us about your job. But police checks are checking for a criminal record. Accepting without admission is NOT a criminal conviction. Mate I'm a teacher, I need a working with children check and my ex took one of these things on me and my kids were 'protected persons'. But I'm still teaching.
2. I eventually got to love my avo... WTF? Seriously, I did.... See me and the ex would fight. She'd hit me. I'd leave. I'd stay away for a bit until she called, I'd go back. BUT then she got an avo on me. I wasn't allowed back. I wasn't even allowed to talk to her. So when she started calling me and calling me and calling me I NEVER answered. I visited the cops and they called HER and told her that she was harassing me. 12 beautiful months of not having to listen to her BS.
3. My kids now live with me and spend time with her....


What to do?
1. Accept without admission. Tell us about the conditions on the thing and you'll get more good advice here. You can seek to have the conditions amended so you can communicate via text message for the purposes of organising to see the child.
2. Get mediation going to see the kid if you need.
3. Play smart. I've got a mate who is a solicitor. He reckons Macca's should charge for parking. Macca's has become the common place for drop offs. Crowds, security cameras etc etc. Makes it hard for the ex to make up BS.
4. Play smart. Story time. Dad has an avo on him.. Mum calls dad. She says she is at the bowling club. She calls on a private number. She says he needs to come get the kids because she has been drinking. He goes. She's not there. He calls her mobile. NO ANSWER. He sends text messages. No answer? She calls on a private number.... She says 'sorry darling. we're now at the pub'. He goes to the pub. NOT there? Isn't answering the mobile phone. He sends a text message asking where the fcuk is she?.... She walks into the cops shop stone cold sober. Show the cops that he has been calling her and sending messages. He does 3 months in jail for breach of avo.

Some advice. Don't tell her you're going fishing. Work on 'being nice' FFS. But don't tell her details. That way she can't fcuk your plans up. Play the game. Child is 2? when is child 3? See at this age you wanna avoid family law. YOU always wanna avoid family law but especially with a child that young. So do everything you can. Do yoga - learn to bend over backwards to keep her happy... (I hate my advice). But I'll give you 1 bloody good reason to at least consider my advice... That one bloody good reason? your kid. Learn to play the game so when the kid is 5? 7? 10? 15 and 21 you're there and mate the child is gonna need you more at 7 than at 2. So play the long game.

Now go outside and kick the dog (metaphorically) because my advice sucks. But it is accurate.

 

[Atticus]

Sadly I have to agree with most of what @sammy01 has written ... Looks like he has covered most relevant questions that may help us give more info to you..

The story about the lady setting up the bloke to breach, should be taken seriously...... In 2021, a protected person doesn't even need to be clandestine about setting up a prescribed person.... They can do it quite deliberately & be immune from prosecution unless their actions place a child in potential harm by doing so.... In Tasmania it's Section 13C of the Family Violence Act 2004 >>> FAMILY VIOLENCE ACT 2004 - SECT 13C Limited liability of affected person for instigating, &c., breach of protection order

SO ... Don't respond to anything from her unless there are specific terms in the FVO that allow it... Get back to us with some more info. Especially the kind of application. A PFVO, or a FVO

 

[GlassHalfFull]

Yeah, the story that Sammy is telling about trying to fight the DVO made it last longer than if I had just consented without admission from day 1, that's mine. It's BS, and it's total injustice that you should have to wait so long to have your day in court, particularly in circumstances where there's no 'bail' equivalence that assumes you're innocent until proven guilty and allows you to continue living your life until your trial. There's none of that, you're assumed guilty until proven innocent, and the burden of proof is extremely low. It would come down to the pragmatism of the presiding magistrate on the day, and I have no idea which way they would tend to lean in circumstances such as yours. They'd probably just uphold the DVO on you and suggest you should have made a cross application to get one on her. Such is the insanity of the system. From what I understand, magistrates are loathe to remove a DVO just in case it comes back to bite them down the track. Arse-covering, in other words. They figure "what's the harm? It's only a civil matter and you two probably shouldn't be in contact anyway", completely ignoring the repercussions for your mental health, your career, your relationship with your children, and the fact that justice simply isn't served in many cases.