QLD Family Court - Guidance on Responding to Protection Order?

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PaulDee

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9 January 2018
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Hi All,

My ex-wife has taken out a protection order through police service in Qld. I will self-represent myself on this matter in March. I have had one lodged by my ex but was removed after mediation and assets were split.

My question is, when responding to her claims made in her affidavit, will the magistrate be requiring emails/diary entries/photo's of visits with children whilst in her presence in order for him/her to make a judgement that her claims are not correct?

Any assistance/insight into the process the magistrate will follow would be great to help in ascertaining the best way to respond and plan for my day in family court.

Regards to all
 

Rod

Lawyer
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27 May 2014
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You need to respond to each and every allegation if you are going to defend yourself. Possibly prepare a response and then have a lawyer look at her affidavit and your response to fix the mistakes you will undoubtedly make.
 
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sammy01

Well-Known Member
27 September 2015
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why not accept without admission. Easier Cheaper and I hate to say it but probably your best option.... IN NSW the threshold is not on 'beyond reasonable doubt' it is 'on the grounds of probability?
Apprehended violence orders

WTF - So the threshold a magistrate needs to be convinced of to apply one of these things is 'probability' - that is kida 50/50... If a toss a coin is it probable that the coin landing on heads.... See what I mean...

Now given the cops have made the application... That means they believe there are grounds (kinda - they hand these things out so they don't get in trouble IF. Imagine being the copper who refused one only for the ex to then kill the applicant) But - Maybe, I'm being harsh... Look cops do knock them back, BUT if the cop's have made the application, I reckon you're on a hiding to nothing by challenging it...

Mate I had one of these. First solicitor said to accept without admission. So I sacked him and found another solicitor.... Who said the same bloody thing....

Now the AVO should not stop you seeing the kids. So since this thing has happened have you still been seeing the kids?
 
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AllForHer

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23 July 2014
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Sadly, I agree that accepting without admissions is generally the better option, but there's a few reasons I say this, beyond just the cost of proceedings.

First, state jurisdictions are very liberal with making DVOs. They're not criminal matters, and they don't become criminal matters unless the respondent breaches the order. With it being a civil matters and not a criminal matter, there's close to no real consequences to the respondent of making an order.

As such, the Court is predispositioned to take a 'better to be safe than sorry' approach - if the Court denies an application for a protection order because the evidence isn't persuasive enough, then the respondent ends up murdering the aggrieved, it's the Court that will be targeted in the media frenzy, and that's blood they don't want on their hands.

In short, there's a very high chance the DVO will be made, even if the evidence supporting the application is nearing on laughable.

The next thing to consider is what actually happens as a consequence of contesting the application.

The main elements the other party needs to prove on the balance of probabilities is that a relevant domestic relationship exists, that domestic violence has occurred and that the DVO is therefore necessary and desireable to protect the aggrieved.

In state legislation, the definition of domestic violence is very loose - in the QLS handbook on domestic violence, even discussing the quality of household chores is considered domestic violence. If you've ever had an argument with your ex, then technically, it could be said that you've committed an act of domestic violence. Ridiculous, I know, but this is the impact of social panic about domestic violence that we're all living at the moment, most against our will.

So, from here, as you know, there's two options.

If you decide to accept without admissions, the evidence supporting the application is never tested at trial, which means the allegations made against you are never proven to be true. This is great in Family Court because a DVO accepted without admissions is hardly worth the paper it's written on when determining what's best for the kids - it doesn't prove you're a violent person at all.

If, however, you decide to contest the application, the evidence will be tested at trial, and if an order is made (which, as I said, is pretty likely), then what you end up with is a finding from the Court that domestic violence has actually occurred.

Where the evidence has been tested and an order made accordingly, the Family Court is going to have a lot more trouble ignoring that, because the trial basically does say that you've committed an act of domestic violence.

I understand this will feel like a terrible injustice, and truthfully, it is - you can thank the current social climate for that. But if your focus is on the kids, as it should be, then a DVO is really just child's play in the greater scheme of getting parenting orders through the Federal Circuit or Family Court.

Parenting orders overide DVOs anyway, and if you accept without admissions, guess what? You have the perfect excuse never to talk to your ex directly again - lucky you!

If you don't want to accept without admissions, another option is to propose entering into undertakings with your ex, which is a promise to the Court to be of good behaviour, but is not actually enforcable, so if you breach it, you won't be charged with a crime. All it does is make it a bit easier for the other party to get a DVO later if things don't improve.

If you still want to defend against it, then you need to file an affidavit which provides your version of the facts surrounding the incidents of which the other party has complained. You will of course be cross-examined on the contents of your affidavit, and you will have an opportunity to cross-examine the other party on the contents of their affidavit.
 

PaulDee

Member
9 January 2018
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Thank you Rod, Sammy and All for her for your guidance. I appreciate the time you have taken to respond to my question. I can provide a little more back story as to the current situation relating to me journey.

My original post mentioned family court but magistrates court is obviously where matter is being heard for the protection order.

- I do still see my son as per our federal court orders pertaining to shared responsibility's of the children which were granted on January 2017.

My daughter is 9 and refuses to come as of Oct 2017 but I am not being led into another battle with the ex, I will let my daughter make the conclusions on her own volition. I will continue to write her letters every fortnight.

- I would like to have my say regardless of if i fail in the attempt at explaining the situation to quash the DVO. I will seek advice on affidavit preparation and addressing the magistrate.

I see this as my last opportunity to have my say on the whole sorry mess then leave it behind. She is claiming I came to harass her at work, which was the process server trying to serve divorce papers, and the whole usual he said she said cacophony of junk that fills a marriage breakdown.

- She has a concerted effort to wipe me from the kids lives. I am willing to give it a go to say my peace and let the dice fall where it may.
 

AllForHer

Well-Known Member
23 July 2014
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Mate, forgive me, but the Court is not a platform for voicing your opinion about the whole debacle between you and your ex. It is not the place to 'have your say'. The consequences are palpable, and if you end up with a finding from a Court of law that you have been violent, it may pave the way for mum to reopen proceedings about the kids. Indeed, I would argue that by going to trial, your ex has quite successfully led you right back into another battle with her, hasn't she? And frankly, it would make more sense to fight about your daughter's right to have a relationship with you than about who said what and when and why in a trivial DVO matter.

Look, the best way to put the mess behind you and get closure is to just put it behind you and accept that as closure. Focus on living well and free of the drama.
 
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sammy01

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27 September 2015
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yup - agree.... Look if you want to fight the avo..... Here is what you should do.... Take yourself to the local court... So I live in a small country town.. Every Thursday is court day... I've gone to watch once or twice... It is a bit of fun..... The drink driver rocking up in a Jim Beam Shirt and telling the magistrate that he has been drink driving for years and is good at it... So should be let off...

The pot head who has been caught with a bag of weed who rocks up to court wearing a cap with a marijuana leaf on the peak wanting to tell the magistrate that pot is a natural product, kills fewer people than alcohol and that he should be given a medal for supplying drugs to sick people because medical marijuana is a proven fact... - Magistrate roles his eyes before finding a conviction for drug possession...

And sadly, the father, who has had stuff all to do with the law and has an AVO application against him... He attends wearing a suit. Has a bit of a speech prepared for the magistrate and naively thinks he will get to say his speech and maybe even get a good result BUT is quickly shut down by the clerk of the court when he starts his well prepared and very polite speech.... And while he tries to present his speech the magistrate turns away, presenting body language that says he doesn't give a ****....

Now mostly, these blokes learn and just shut up.... Some (God bless them) are so exacerbated and frustrated at not seeing their kids that they just continue and get angry (rightly bloody so, as far as I'm concerned) but those guys get the worst result of all.... So like I said, if you are thinking of fighting the thing, go for it... BUT your first stop should be a day or two sitting inside the court house... Count how many AVO applications go through, count how many are accepted without admission... Count how many are contested... AND worse, count how many are contested and won.... Get back to us with the results AND then tell us IF you still want to contest the thing.

... I'm assuming the application was made by the police? That means that the ex has managed to convince a police officer that she genuinely fears for her safety.... Now if she has managed to convince a police officer, then the police prosecutor at the court house is not gonna be interested in dropping the case...

One more thing - have you noticed how much attention the media gives to DV.... Do you think a magistrate is interested in letting some bloke off the hook and risking his own job because IF you happen to be the one in a million that murders the ex after being let off by the magistrate - wel that ain't gonna look good for the magistrate true....

Oh ok... one more one more thing, since you've got me started.... Do a google search for 'challenging and AVO in QLD". Have a read... It is madness, you won't get far down the list before you'll come across articles explaining how to apply for an AVO OR the consequences of breaching an avo... But you wont get much advice on how to defend yourself... you'll probably get a few hits from law firms claiming to be able to help for a fee... I had a brief look and I think this article is worth your consideration
Domestic violence: How do courts decide who needs protection?

Meanwhile, do a search for 'applying for an AVO in QLD' and you get lots of links, in those links there will be FREE assistance, phone numbers, links names of govt funded service providers to help the applicant. Just goes to show what you're up against....

Oh all right, absolute final - you challenge it... And lose (which is most likely). The ex gets to go home and claim a victory. I'm sure she will be only too happy to tell daughter how she stood up to Mean and Nasty YOU.... and won.... OR lets say you happen to win and it gets thrown out.... What then? Well ex gets to go home and cry about how she lives in fear and is a victim and it will re-enforce the daughter's negative perspective of you.... So what have you actually won.

Sorry mate - I hate every word I have written...