VIC False Accusation to Get an Intervention Order - Help?

Discussion in 'Family Law Forum' started by I_m_determined, 10 March 2019.

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  1. I_m_determined

    I_m_determined Active Member

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    Hello, mates.

    My ex, after seven days of formal separation, went to the station and created a story that two months ago, I held her hand during an argument and got an intervention order restraining me to go near her and my daughter.

    At the hearing:
    • Should I get my own lawyer? ($1350)
    • Would it be good to use the legal aid lawyer and show them the letter informing separation showing a date 7 days before she went to the station? (Police from her side)

    Thanks for helping a mate in trouble.
     
  2. sammy01

    sammy01 Well-Known Member

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    Call Relationships Australia to organise a mediation.

    In the meantime, ask solicitor to write to the ex requesting you spend time with the child at specified times.

    So this is complex, so hold on... I reckon you should accept the avo without admission, especially if the ex has responded to letter from solicitor agreeing to give you some access. See my thinking is you can spend thousands trying to defend the thing, or spend the $$$ on family law. And what say you do win and get the avo removed. The ex still has the kid and is unlikely to provide access. Things get messy if you then just go and pick up the kid and keep her.

    How old is the kid?

    Mate, I will write more later but I gotta get to work
     
  3. sammy01

    sammy01 Well-Known Member

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    So based on a few recent posts here. Let me give you two options.

    1. Defend the thing. It will take months. while you're defending it there will still be an interim AVO. So much for innocent until proven guilty. One thread here indicated it took 8 months to get to a final hearing to defend the AVO.

    I know in QLD these things can go for 2-5 yrs but I think in Victoria they tend to expire after a year... 8 months waiting/stressing to defend it vs accepting without admission, saving the $$$ and the stress for family law seems a better option.

    BTW if you have a job you're unlikely to get legal aid to support you.
     
  4. Tremaine

    Tremaine Well-Known Member

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    I agree with the above, but I will add that the chances of successfully contesting the application is pretty much Buckley's and none.

    This is a finnicky sort of field in law, because it's far more subjective than most other areas - it's heavily focused on the aggrieved's feelings, rather than just the facts of what happened. For example, let's say you raised your voice to be heard during a disagreement because you couldn't get a word in edgeways at the time.

    The circumstances around the yelling is immaterial - if you're the respondent, it doesn't even matter if your ex was cursing like a sailor, throwing plates all over the kitchen or smashing every article of furniture in the house before you yelled at her to stop. (Similarly, it doesn't matter that the application was made seven days after you separated).

    What matters to the court is whether, on the balance of probabilities, your ex felt scared or intimidated by you when you raised your voice. How do you argue that someone's feelings are invalid?

    The other thing is that it's perceivably safer for the credibility of the court if it hands out domestic violence orders like Oprah hands out cars on her birthday.

    First, the consequences to the respondent of having a DVO against them are not necessarily life-altering, so why not make a DVO? Sure you can't have a gun and it's definitely going to show up in the ex's affidavit when you file for parenting orders, but it's not a criminal record. It only becomes a criminal matter if you breach it.

    Second, the court can't know for certain whether it's actually putting someone in danger by refusing a DVO application, so again, why not make a DVO since it's better to be safe than sorry? This is particularly potent given the social climate about domestic violence at the moment - I'm sure you're familiar with the #believethem and various other movements, right? Hell hath no fury like a lot of women outraged to hear that an account of domestic violence hasn't been believed (even in spite of the due process which saw the story thrown out of court!).

    I don't like it any more than you do, but it is what we have to work with for now.

    The other thing is that if you contest a DVO application at trial, and you fail, you get the DVO made against you anyway, but you also now have a finding from a court of law that you've committed an act of domestic violence. Accepting without admissions means no evidence has been tested, so if the same allegations were presented in a parenting order application, it would be up to the FamCA/FCCA to judge the situation for itself, and the methodology behind the FamCA/FCCA's approach to domestic violence is very different to that of state courts.

    If a state court has tested the evidence as required at trial and finds that you have committed an act of domestic violence (which is necessary for a DVO to be ordered, and remember that we already talked about how willing the court is to grant them), that is something the FamCA/FCCA can't so easily dismiss.

    And also, that $1350 is presumably for representation at your first mention? It goes up from there. You're better off directing that money to where it matters - parenting orders for the care of the kids. Like I said, a DVO accepted without admissions doesn't have anywhere near as much gumption as a DVO made after a trial.
     
  5. Jimbo!

    Jimbo! Well-Known Member

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    - Have you objected to the VRO?
    - Go the court and get a copy of the affidavit and transcript
    - I don't understand why your daughter was included on the VRO?
    - Do you have consent orders or a parenting agreement

    Why did you separate? Would she be interested in reconciliation? The reason I ask is your best chance of defending this is to honeytrap her. If this VRO is vexatious and without merit and/or she would consider a reconciliation then she will breach the conditions of the VRO by contacting you, coming into your house emailing you etc. Record all phone calls and film anything you can. At the mention (do you have a mention date) this evidence can be used to negotiate a mutual undertaking.

    If, however, she has zero interest in contacting you and is adamant she wants the 2 years (?) VRO then your options are limited. It doesn't matter whether you're innocent or guilty and it doesn't matter whether you can prove it and/or prove the VRO is without merit because the time is taken and cost involved is simply nor worth it.

    I have a VRO taken out by my ex. On Friday she asked if I could pick her up and take her to our daughters swim carnival, which I did and we walked in together and chatted as we watched my daughter race. She now wants to come along on a Mums group camping trip.... all the while we have this VRO. I have lots of emails, SMS, a video that demonstrate that she is clearly not in fear of me and the VRO is vexatious, but there isn't much I can do about it.

    Our mention date is April, if we can't come to an agreement we go to trial and that would take at least 8 months and cost close to $4k. I can apply to have the VRO cancelled based on my evidence and the advice I've been given by multiple people is that I now have a strong case, but again that takes time. I think I have to wait a few months to have my application heard and if that hearing goes well the magistrate will set another hearing and that would be 6 months+, so again close to 8 months in total. And this is 8 months from the mentioned date which is 3 months after the VRO was first served, so over a year.

    Sadly for a lot of people, the best option is to agree to the VRO as soon as they have it. In my situation my ex has realised that if I stick strictly to the VRO then our contact will be very limited, she doesn't want that and is suggested a 2 - 3 months CAO. Complete joke, but I have no other option. I could go to the mentioned date and negotiate for a mutual undertaking using my evidence, but if she's backed into a corner, she will come out fighting and we will go to trial.

    What state are you in? In WA there are free legal services e.g Northern Suburbs Community Legal Centre that will give you a 30 - 45min free, no-obligation consult. There are also some law firms that do this. Most will charge $400 for an initial consult. I used the Community Legal Centre, Legal Aid (over the phone advice) and emailed a few lawyers who replied to me with info at no charge as well as this forum (cheers guys). So after all that I've got a pretty good grasp on my situation without actually having to engage a lawyer.

    Read the VRO and be crystal clear on what you can and cannot do. Do not breach. Record everything and any contact with your ex, be as nice as pie irrespective of how you really feel. Let go of any anger and bitterness, it will just eat you up. Smile, accept sometimes life throws you curve balls and get through it.
     
  6. Jimbo!

    Jimbo! Well-Known Member

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    Damn right. My ex was in court from 9.17am to 9.19am, no evidence presented.
     
  7. I_m_determined

    I_m_determined Active Member

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    Thank you, all.

    When you say "Accepting without Admission", does that mean I provide an undertaking that I will not go near her, but I don't accept the allegations. If not, please clarify.

    What would be the impact of providing an undertaking that I will not go near her, on the child care arrangements that will follow after this? The child is 9-year-old.

    Also, if she is keeping the child in shared accommodation, to save money (she earns about 50k) and the child is interested in spending equal time with both the parents, is there anything else that I can do right now? She earlier removed the child from her old school and put her in a new school near her work location. She has refused all possible parenting arrangements already and not willing to cooperate. I am worried about the safety of the child.
     
  8. Jake Matherson

    Jake Matherson Well-Known Member

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    Accepting without admission basically means to put it in your words that you don't accept the allegations to be true, however you understand that it is not in your interests to fight it and you agree to accept and follow the proposed IVO.

    If there are conditions that say "you must not attend the child's school" or "you must not contact the mother" then you must follow these. However, there will likely be a clause that states something like you must not contact the mother unless it's via text message and for the purposes of spending time with the child. Or you must not go to the mothers house unless it's for the purpose of spending time with the child as organised in writing previously etc...

    Once you have accepted this the only way to get more time with your child outside of your Ex being prepared to share is to get Family Court Orders which will overrule any orders you have in your accepted IVO.

    IVO might say don't go near the child, but you get family court orders that say see the child every fortnight. The Family Court Orders will be the ones to follow.


    No, Unless the child is in immediate danger of physical violence or sexual abuse the police, child service or any other service wont do anything without Family Court Orders.

    Call relationships Australia, enrol in mediation, get your 60i certificate and apply to family court to get time with your child.

    I am not a lawyer.
     
  9. sammy01

    sammy01 Well-Known Member

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    My advice - accept without admission. Save your $$$ get yourself into court asap. But to do that you'll need a mediation certificate, so get onto Relationships Australia ASAP. Once you get that certificate apply to court. If she won't give access you're going to need to apply some pressure. best way to do that? apply to court.
     
  10. okanynameyouwishthen

    okanynameyouwishthen Well-Known Member

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    It sounds like you've got the type of now ex that sadly sees you as an annoying sperm donor. Worse she sees her wish to not have to deal with her annoying sperm donor as somehow more important than your child's rights & future mental well being. What no forum can do for you bro is answer with unflinching crystal clear honesty the question of have you ever in any way, shape or form abused or been a prick to your 9-year-old.

    Not judging at all but if you can't ark up & say " F*ck No ! Nothing even remotely close & you know deep down your child & you aren't fully bonded/connected & they may even be fearful of you for past act or behaviour, then accept without admission & use time to correct your issues.

    If that's not the case & you've just sadly become the latest guy f*cked over by a sister of victim-hood, then the sooner you realize the chick you laid with, though you loved & created a child with has gone brother. Sadly due to her gender & near a decade of feminazi driven sculpting of this degenerate field of supposed law she is susceptible to the masses of the legal professional's out there that will fall over themselves to represent her as she is now a cash cow & assured money earner the longer they keep her as a client.

    Adjournments & jumping through hoops of you in the hope that you falter will be seized upon & used to complete the jigsaw puzzle that has you in monster pose & adds to their contention that you were a prick throughout the relationship that thank f*ck the mum & kid escaped from & they are there to ensure that she stays safe & is left alone to parent in peace if that's what she so desires.

    You know she wants that already so my opinion is never admitting without admission if there is no truth to the claims.

    In a perfect world this scenario" Accepting without admissions means no evidence has been tested, so if the same allegations were presented in a parenting order application, it would be up to the FamCA/FCCA to judge the situation for itself, and the methodology behind the FamCA/FCCA's approach to domestic violence is very different to that of state courts." as advised above may be true but the problem is no testing of evidence will be done until trial which could be after months/years of interim hearings & orders.
    As the poster described the Courts attitudes to dishing these orders out in state court it becomes even more so in Family court because of the child's safety being paramount so they will err on side of caution until all evidence has chance to be suitably tested.

    If she has nothing you stand a better chance of explaining what is really going on to a state court magistrate who has to decide factoring in both yours & ex's rights than you do in Federal court throughout drawn out interim stages with a Judge to rule & whereby both yours & ex's rights are a distant 3rd to the child's.

    Never accept without admission. Especially if in SA as it's for life once accepted & whilst true it isn't a " criminal record " it's worse. It's power in the hands of someone self-centred enough to uproot your kid's school for personal convenience & prepared to spend the next 9 years manipulating the mind of an innocent child in order to justify removing her father from her life - if & I stress you are undeserving of being slapped with the order.

    Read up brother coz from here on in you are at war with lawyers & broken unfit for purpose quasi laws & an abuser of children.

    Good luck & don't be baited into breaching order even the interim order & record record record & have witnesses to any in-person contact regardless of how brief or friendly you feel things are at. There are literally 10's of thousands of horror stories of entrapment by ex's especially when "advised" by any pond scum legal puppeteer she signs up with.

    Never give up on your kid they need you more than ever now.
     
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