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Downsides of Contesting a Domestic Violence Order?

Discussion in 'Family Law Forum' started by Reginald, 13 June 2016.

  1. Reginald

    Reginald Active Member

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    Hello,

    I appreciate the general consensus on this page is to not contest an interim Domestic Violence Order, but submit without admission, and follow up with initiating documents to the family court, saving money and allowing the higher Family or Federal Circuit Court make the call on whether a Domestic Violence Order is appropriate in the circumstances.

    However, is there any legal downside of contesting the DVO, and failing to be successful? Does the Family Court / Federal Circuit Court hold the magistrate's finding in higher regard i.e. that the violence is real and likely to occur, rather than a tool of separating the non custodial parent from the children.

    What if the DVO contest is successful?

    Thanks
     
  2. sammy01

    sammy01 Well-Known Member

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    So firstly - the bar for establishing the need of an AVO / DVO is 'on the balance of probability' not beyond reasonable doubt. Hence, the general recommendation to accept without admission.

    The difference between accepting vs. contesting and failing? In practical terms nothing in financial terms, lots if you pay a solicitor to defend and sadly, you've gotten yourself caught up in a stupid game called 'family law'.

    So my thoughts are that contesting will almost certainly fail because the bar is so low and even more importantly a magistrate will err on the side of caution, especially given the current climate when it comes to domestic violence... No magistrate wants to be the one who let some bloke off only for that bloke to then go and hurt/kill the ex...

    Oh and one more thing - defending and losing gives the ex a greater sense of entitlement, etc.

    So my ex is a nutter. I accepted without admission. She started calling me lots. I went to the cops and they told her not to call me. She kept calling. I went back to the cops and they threatened her with an AVO...

    As far as I was concerned the AVO was great - it meant I didn't have to listen to her. But if I defended it and lost she would have seen how easy it is to abuse the system. As it was, she made several attempts to have me charged with breaching the terms of the AVO. So on that front, accepting without admission had an unexpected side effect. The copper who served me the thing was cool. He was apologetic because her statement was so piss weak that he was embarrassed. So by playing nice with the cops and not causing them extra work meant that when she started making frivolous complaints, the cops were more prepared to give me a warning and a stern talking to rather than charging me because they had started to understand that we were dealing with a nutter...

    So if you choose to defend it, can you let us know how you go? Just out of interest.
     
  3. Rod

    Rod Well-Known Member

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    I agree with Sammy. Sometimes it is better to save your ammunition for a higher court rather than waste it on a Magistrate who, unless there is overwhelming evidence supporting your side, will take the cautious route (ie grant the DVO).

    I once tried fighting an IO (Intervention Order in Vic), granted against me because I wanted to talk to the ex about a property settlement we needed to have. I went to the place she was staying to talk property settlement. Talked for a bit, no violence, no shouting. After about 10 mins she told me to leave. I tried to reason with her for two more minutes, no violence, no shouting saying this will cost her and me thousands in lawyer fees. A few days later got an IO against me. Tried to fight it - with a barrister, lost. Appealed to county court, lost. And yep, settlement later cost $ks in lawyer fees.

    Many years later someone gave me some sage advice - You can't stop unreasonable people from being unreasonable.
     
  4. MartyK

    MartyK Well-Known Member

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    The Federal Circuit Court and Family Courts do not consider if a DVO is appropriate in the circumstances. The DVO will still be enforced even if you consent without admission. Parenting Orders and a DVO can be in operation contemporaneously.

    I know of a couple of people who have successfully contested a DVO, on technicalities and then been a party in Family Law proceedings. One did very well, ended up with shared care and still going well. The other started with shared care, ended up in the Court again due to another DV incident and now doesn't see their child.
     
  5. Reginald

    Reginald Active Member

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    Thanks Sammy01, yes I’ve joined the silly game of Family Law.

    Well, I decided to contest despite, which still left me with option at very last minute prior to trial to accept without admission. And in the week or so prior to the date was very intense.

    The following occurred – Police Prosecution lost faith in the complainant, and wanted to drop the DVO, however they cannot do so without complainant authorisation. Needless to say complainant did not agree.

    Family court papers served on complainant prior to DVO hearing date. DVO hearing then adjourned (our preference, together with PP, who never wants to go to trial on these things) until after first date with Family Court.

    Appreciate comments everyone, MartyK, got a couple of questions for you – what type of technicalities? And the person that that ended up with shared care – was this awarded by the court, or did they agree along the process? I'd love to hear about this as this is the path that I am now on.
     
  6. AllForHer

    AllForHer Well-Known Member

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    Okay, so, the risk with contesting a DVO is that you may end up with a finding of fact from the Court that an act of violence has occurred and there is such a risk of re-occurrence in future that a domestic violence order is both necessary and desirable.

    Consenting without admissions can be overlooked easily enough by the Family Court - it means the allegations of violence haven't actually had a chance to be proven by a Court of law, so they remain just that: allegations.

    A finding of fact from a State Court, however, is a bit more challenging for the Family Court to ignore - the evidence has been tested, and the allegations of violence found true, so they're not just allegations anymore. They're genuine concerns.

    Now, I personally am not a fan of the 'accept without admissions' argument, at least not unconditionally. If you're innocent, contest it, but do so with the knowledge that there are still options available to you in the lead-up to, and on the day of trial, including:
    • Possibility of the other party discontinuing proceedings;
    • Consenting without admissions on the day;
    • Entering into undertakings on the day;
    • Entering into consent orders for parenting that addresses the risk of domestic violence by limiting party-party contact as a DVO would (but it's no longer a criminal matter in the event of a breach); or
    • Going ahead with the trial.
    I've been personally affected by three DVO matters - all contested, all discontinued. If you're in Queensland, it's worthwhile remembering that while the standard of proof is on the balance of probabilities, the burden is on the other party to prove that domestic violence has occurred and that there is a future risk of re-occurrence such that the domestic violence order sought is both necessary and desirable. Without police support, this turns into a burdensome task. She may be compelled to discontinue before the trial anyway.
     
  7. sammy01

    sammy01 Well-Known Member

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    Yup, I think it is one thing that requires a solicitor / barrister. Money is best spent in family court...

    One more thing - Beating the AVO doesn't help you in family court. Losing the AVO trial does...
     
    Rod likes this.
  8. Reginald

    Reginald Active Member

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    Thanks, everyone.

    Ok, so now preparing for the first appearance at court – the first hearing.

    So as you know as per above I will be appearing as an applicant with interim DVO. My lawyer has suggested that we ask for supervised access at a contact centre. Obviously, I’d like more, however, with the allegations, the judge will be cautious I am told (despite PP wanting the complainant to drop the DVO as per above).

    So my questions are:

    1. Will the judge make such a decision on the first hearing?

    2. What would happen if the respondent doesn’t turn up, or doesn’t complete the affidavit, will this delay an order of supervised access?

    3. Will taking my lawyer make any difference to whether an order is made for supervised access? Do I need to take my lawyer, given the DVO allegations, to assist in influencing the decision to provide supervised access? Considering the cost, and suggestions on this page. I’m considering self-representation at this hearing.

    4. What happens if the respondent doesn’t complete reply affidavit 7 days prior (I believe) – does this affect the decision at all? i.e. will the judge adjourn ? At what point is the latest that I can submit an affidavit to her response documents?

    5. Will the judge set a date for the next hearing at this hearing, is that how it works ?

    And the last question which is less court related – what is a “reasonable amount of time” for a person to fill in and post-enrolment documents required by a contact centre? This is a requirement to get on the waiting list for a time slot that both parents complete the paperwork).

    Thanks in advance! I cannot wait to get to court!
     
  9. sammy01

    sammy01 Well-Known Member

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    So AVO/ DVO is at the local court...and is different to the family law court? Which one are you attending? AVO is criminal law matter and has nothing to do with child access.
     
  10. Reginald

    Reginald Active Member

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    Good question, sorry I wasn't clear. the first hearing that i refer in the question 30 mins ago, is the Federal Circuit Court.
     

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