VIC Family Court Order vs IVO - which one trumps?

[kimbapuppy]

Initially, I was going to apply for leave to vary the order to get access to my children. I do not think my chances are good as the person with the IVO(s) is always discriminated as the bad person already (guilty until proven innocent).

Now knowing the LRO, I am considering lodging the LRO and to Vary the Order at the same time. The LRO is not used frequently (if at all). Likely the magistrate will go, what is this?

Am interested in your opinion as to the best approach get back access to my children and to be able to see my children next week for their 8th bday.
Option a) Apply for leave to vary order only
Option b) Apply for LRO only
Option c) Do both Option a and b.

Which of the above will give me the greatest chance to see my kids early, and why?
I have a suspicion that DO NOTHING and accept the IVO without admission is the least path of resistance and the best outcome. So I won't see my children best case scenario for either 1.5 years or 2.5 years.

I no longer have any money to spend on lawyers and can't get access to legal aid either. I got a free legal appointment tomorrow and chances are I will be advised on the process for Option a) rather than "legal advice" and no one will know what the LRO is. I did see a paid lawyer for an initial consultation who suggested filing an urgent application to the federal circuit court (which I did but was rejected probably because I self-represented), and the second lawyer from another firm said federal circuit court has no jurisdiction and needs to be dealt with magistrate court and adviced to accept without admission. None of the lawyers mentioned LRO but I think that is because they don't know about it.

 

[Muxaul]

Initially, I was going to apply for leave to vary the order to get access to my children. I do not think my chances are good as the person with the IVO(s) is always discriminated as the bad person already (guilty until proven innocent).

Now knowing the LRO, I am considering lodging the LRO and to Vary the Order at the same time. The LRO is not used frequently (if at all). Likely the magistrate will go, what is this?

Am interested in your opinion as to the best approach get back access to my children and to be able to see my children next week for their 8th bday.
Option a) Apply for leave to vary order only
Option b) Apply for LRO only
Option c) Do both Option a and b.

Which of the above will give me the greatest chance to see my kids early, and why?
I have a suspicion that DO NOTHING and accept the IVO without admission is the least path of resistance and the best outcome. So I won't see my children best case scenario for either 1.5 years or 2.5 years.

I no longer have any money to spend on lawyers and can't get access to legal aid either. I got a free legal appointment tomorrow and chances are I will be advised on the process for Option a) rather than "legal advice" and no one will know what the LRO is. I did see a paid lawyer for an initial consultation who suggested filing an urgent application to the federal circuit court (which I did but was rejected probably because I self-represented), and the second lawyer from another firm said federal circuit court has no jurisdiction and needs to be dealt with magistrate court and adviced to accept without admission. None of the lawyers mentioned LRO but I think that is because they don't know about it.

When I was in your position I too asked my then lawyer about LRO. They were like “what is LRO?” Then I pointed the link to them and they were like “ oh I need to read it first”. I don’t think much lawyers are even aware of LRO, nor the court has received much applications if at all.

If I were in your situation I’d self represent and go with LRO, and seek

1. Declare ex as vexatious litigant and LRO to be put on her,
2. Her IVO application is suspended immediately and interim IVO cease to be in effect, until she is granted leave.

in the mean time, use this as an example of her not supporting child spending meaningful time with you and frequently raising conflict ( best interest of child factor) and see if there is any grounds to change parenting order.

my current lawyer advised me that frequently taking legal actions and raising conflict is a big no no (even when there is legit grounds to do so) because it is about the child’s best interest and I need to show my effort to mitigate conflict rather than further intensify it. They told me that party who does this often would end up with very little time with child. Either I was poorly advised or if they are right, I’d seek same standards to be applied on ex.

A caveat is that it is only my own opinion and you should discuss it with a lawyer first.

 

[kimbapuppy]

Thanks Muxual, your opinion gives me hope. Wished you can be my magistrate!

If I understand correctly, I need to first seek leave to apply for LRO. This means another hearing will be set (not hopeful it will be before my daughter's bday) before the magistrate will consider a LRO. It will be unlikely the LRO will be granted in a 5 minute hearing (especially since I am guilty till proven innocent). Magistrate will likely err on the conservative side incase his/her name is splashed on the front page of the newspaper that someone died under his/her watch. Any advice and ideas on getting the odds on myside would be greatly appreciated.

 

[Muxaul]

Thanks Muxual, your opinion gives me hope. Wished you can be my magistrate!

If I understand correctly, I need to first seek leave to apply for LRO. This means another hearing will be set (not hopeful it will be before my daughter's bday) before the magistrate will consider a LRO. It will be unlikely the LRO will be granted in a 5 minute hearing (especially since I am guilty till proven innocent). Magistrate will likely err on the conservative side incase his/her name is splashed on the front page of the newspaper that someone died under his/her watch. Any advice and ideas on getting the odds on myside would be greatly appreciated.

I'm not sure if a leave to apply LRO is compulsory to anyone, or is only for a party who is already a subject of LRO, to enable them applying LRO against someone else.

Whether a leave for LRO is compulsory or not, is a procedural question, thus can be and should be answered by court registrars.

 

[Atticus]

Not detracting from the worth of an LRO, but at this point I think you would do best to go with that which is most likely to get you what you want, ie, to see your kids as per current family court orders, & IMO that would be the application to vary, & I think that is best done as a stand alone application rather than complicating the process with a joint application for an LRO

The LRO may be a useful application at a later date, IF, you can prove to the court that her applications are indeed vexatious in nature... maybe not an easy task.... The application to vary though is a simple request that the interim order be varied to remove the children's name & reinstate the children's contact as per FC orders until the outcome of your contested IVO hearing in February.... If you are successful in that hearing, or she withdraws, then may be a better time to make an LRO application

 

[Muxaul]

Not detracting from the worth of an LRO, but at this point I think you would do best to go with that which is most likely to get you what you want, ie, to see your kids as per current family court orders, & IMO that would be the application to vary, & I think that is best done as a stand alone application rather than complicating the process with a joint application for an LRO

The LRO may be a useful application at a later date, IF, you can prove to the court that her applications are indeed vexatious in nature... maybe not an easy task.... The application to vary though is a simple request that the interim order be varied to remove the children's name & reinstate the children's contact as per FC orders until the outcome of your contested IVO hearing in February.... If you are successful in that hearing, or she withdraws, then may be a better time to make an LRO application

If OP succeeds LRO, his ex's IVO process and even the interim IVO can be deemed invalid immediately, that solves the issue from its core and gets OP what he wants straight away. I support your view on contesting IVO and at least vary the condition on the interim order . However that is also very hard to achieve. My ex falsely alleged that I "yelled at her" only and the child was not even in Australia at the time, and I did ask to remove child from interim IVO while I contest the order as whole. Guess what, magistrate still put child into interim IVO.

Since OP cannot afford lawyer and has to self represent or use duty lawyer, What do you think about contesting IVO and applying LRO simultaneously? In my opinion, on LRO application OP can seek his interim IVO to be suspended immediately until a leave is granted to her ex. His ex is causing conflict and if no consequence applies to her even when she is caught out making false allegation, why should OP, who is protecting his and his child's interest and is only responding to his ex's frequent veracious conduct be considered in any negative way? OP has got nothing to lose, and no harm applying LRO.

 

[Atticus]

What do you think about contesting IVO and applying LRO simultaneously? In my opinion, on LRO application OP can seek his interim IVO to be suspended immediately until a leave is granted to her ex

I think the chances of getting an LRO granted by a magistrate at a first mention without the IVO applicant present for questioning & based only on what is front of the mag to determine if the applicant is vexatious would be very slim indeed

 

[kimbapuppy]

Agree with all the points above. The reality is that my chances are not good at all considering the circumstances.

Saw the free legal service today. She recommended pursuing to vary the order first and to contest. LRO can come later if contest is successful, as we don't know what evidence will be produced.
I think this is a really good approach but time is not on my side and the legal proceedings will be protracted and self-representing as a respondent is not possible in a contest, etc, so a lot of challenges there already.

Still deciding based on the discussion thread here, but am leaning towards applyng for LRO leave and to vary order at the same time (if the magistrate allows me, but unlikely).
Very unlikely the order will be varied at the 5 minute hearing as there is limited space on the application form and on the surface my application looks really bad having a history of IVOs and the exwife's slanderous allegations.
LRO application has provisions to provide further explanations and requires an Affidavit, allowing me to provide justifications that the current IVO and the past IVOs are frivolous and vexatious.
If I get questioned by the magistrate, at least I can refer to the Affidavit containing hard evidences such as the Family Report, Child Support arrears Certificate , etc.
I guess if I am going to contest anyway, might as well launch the LRO as there may be a slim chance the IVO can be struck out as Muxaul pointed out and let me see the kids that little bit sooner.
Even if not struck out, at least the magistrate might be lenient in granting me the variation after understanding the exwife's motive.

Although I am expecting disappointment as in the end, the magistrate will throwing the books at me and chopping off my balls, or whatever is left from the way I was treated by the previous judge (when I self-represented).

 

[Atticus]

Saw the free legal service today. She recommended pursuing to vary the order first and to contest. LRO can come later if contest is successful,

That was my advice as well.... Just gives you the best chance of seeing your kids sooner

I think this is a really good approach but time is not on my side and the legal proceedings will be protracted and self-representing as a respondent is not possible in a contest, etc, so a lot of challenges there already.

If you're successful or not at the contested hearing in February isn't as important as having the current interim IVO varied ASAP so you can see your kids... If the interim IVO is varied, then even if you are not successful at the contested hearing, there would be very little chance of the kids names being included on a final IVO.... You don't sound super confident to self rep so keep it as simple as possible is my advice

 

[Muxaul]

3.1.1 - Applying for an Extended LRO

[VPA ss 18(1) and 19(3)]

While the Attorney-General may apply for an Extended LRO as of right, other applicants must first obtain leave from the relevant court.

[VPA s 18(2)]

Applying for leave

An application for leave must be in Form 4 of the Magistrates Court (Family Violence Protection) Rules 2008 and supported by an affidavit. Further, the applicant must not give notice of their application for leave to any person unless the court orders otherwise.​

There is the answer. You must apply a leave first.


3.1 - Vexatious litigation restraint orders

[VPA s 94]

An Extended LRO made under section 19 prevents a person from commencing or continuing a proceeding relating to intervention order legislation without leave of either the Magistrates’ or Children’s Court.​

Also in 3.1.1 - Applying for an Extended LRO

An application for an Extended LRO can be made ... by...A person who has had a vexatious application made against them; ​

Combine the two, my understanding is that you don't need to prove your current IVO case to be vexatious before you are qualified to seek leave and/or applying LRO. You only need to claim that ex has had veracious claim against you in the past, to seek an order to stop her current IVO case. Therefore you don't need to wait until you win the current contested hearing of IVO case before you can apply for LRO. At the final hearing of your LRO application, you and your ex will need to present evidence in regards to past false allegations, which you already have, and your ex will need to show evidence that her current claim is legit and she doesn't have it.

Very unlikely the order will be varied at the 5 minute hearing as there is limited space on the application form and on the surface my application looks really bad having a history of IVOs and the exwife's slanderous allegations.

It is quite possible that you won't get the interim order varied. So form your strategy based on this assumption would be the most reasonable one.

Assume you won't be able to see your child until the contested hearing anyway, it won't make things worse by applying LRO in the meantime. As I said before, you've got nothing to lose at this stage. Applying LRO maybe beneficial to your IVO case should you succeed.