VIC Family Law.. when is enough really enough..

[Fordmustang]

Hi,
A quick run through of my situation. I’ve been through the family courts and final order was made this time last year. I have full custody of my three kids, my ex was ordered to supervised visits which my ex only attended I’m pretty sure it was four out of eight sessions. My ex were do I start, couldn’t be contacted for mediation, didn’t attend the first hearing of family court, produce dirty drug screens to dhs and asked if they could change the result, has moved with her partner 4 hours away, the same guy that hit my son and left two hand prints on his back, you get the drift of the sort of person she is. ( he is on the court order never to have contact in person or by phone with my kids ).

My first problem..
Now she hasn’t seen or made attempt to come down to see the kids since July last year. It’s in the order she can call between certain times and days. During these phone calls she is mentally hurting these kids promising things or promising that she coming to see them and it never happens. They’re still waiting on last years birthday and Christmas presents. Also saying things like they have to forget what happened with partner and that he has changed. she told my eldest that she was pregnant and my eldest was very upset by hearing this and starting crying her my replied if your not going to accept this baby your going to make me have a miscarriage.
What can I do to stop her saying these things to the kids, can I stop the phone calls?

Second problem..
I received a letter in the mail last week from fdrs stating that she has been referred by her lawyer for mediation and if I don’t accept they give her a letter to go back to court. Now I’m worried that if we won’t come to any agreements, she is not a reasonable personthere will be a chance that we’re back in the family courts. I payed close to $68,000
last time I’m not in the position to pay that amount again, and knowing her she will push it to that point because she gets legal aid funding.

Third problem...
I received a knock on the door last night from the police and they served me with a family violence order.
The order stats that I verbally abused her over the phone and she fears for her life etc. Not sure if she done this because she thinks it’s going to help her in mediation, though the concerning part is that she has put the kids names on the order when they are in my care. I tried to explain this to the police officer but they didn’t want to hear it also I showed them the family court order, they couldn’t give me a straight answer. My question is how do I fight this because she has tried this before and I have a court extract that she lied under oath and was caught out, all the charges against me were dropped and the family violence order was cancelled. Also one last thing the court I have to attend is where she resides witch 4 hours away, can I get it moved closer to me.

Any information would be a great help thanks.

 

[thatbloke]

Problem 1: How do you know what is being said in the calls? Your child sounds old enough to terminate a call themselves, all it takes is to push a button. ALso, no court can force a parent to see a child

Problem 2: I would very much doubt that your ex can get back into court without a major change in circumstances soon, google RIce V Asplund'

Problem 3: FIght the intervention order r and simply stop talking to your ex! Lets face facts, we have a woman who does not see the kids trying to make the kids part of a DVO. It sounds like you are being set up by her to allow her to bypass RIce V Asplund. Dont take the bait. Cease ALL verbal communications immediately. I dont get why people think its a good idea to talk to their ex on the phone.. a paper trail is king

 

[AllForHer]

Generally, I agree with the above. It sounds like mum is trying to line her ducks up for getting back into Court.

The first problem, the phone calls.

I don’t think it’s a good idea to stop the phone calls with mum. First, that really will give her a reason to get back into Court under a contravention orders application, but second, while she may be saying manipulative things to them, the kids still have a right to a relationship with both parents, even if one of those parents is a total deadbeat. Kids are smart, let them work it out on their own. If mum wants to earn their resentment, that is her prerogative. Interfering with that process will only make you the bad guy. You just focus on your own relationship with them and be the parent they can rely on to provide positive influence and support.

The second problem, mediation.

There's kind of two options here.

The first is to tell the mediator there is a family violence order application on foot and see if they'll even let you mediate. Family violence is, after all, one of the few reasons people can avoid mediation and go straight to Court.

The reason I even mention the above is because if mediation either doesn't go ahead or does (which is the second option) and fails, and she decides to file for Court, you have a very significant advantage.

You already have final orders, so if she files another initiating application for parenting orders, you can raise a Rice & Asplund objection and seek an order for the application to be dismissed. Rice & Asplund is a case law precedent holding that parenting order should not be varied unless there has been a significant change in circumstances, such that the orders no longer reflect the best interests of the children. The threshold is pretty high for what constitutes a significant change in circumstances, and considering her time was ordered to be supervised, I can’t think of any such circumstances that might meet the test. Maybe if you abandoned the kids? I don't know. Regardless, it's a problem you probably don't need to worry about until you actually have an initiating application served on you by mum.

I also highly, highly doubt mum will get Legal Aid funding for this. Legal Aid requires their clients to have reasonable prospects in their matter. With final orders already on the table and no significant change in circumstances to speak of, those prospects are pretty low.

The third problem, the family violence order.

It sounds like mum has made a civil application, meaning she's done it of her own accord, rather than at the discretion of police. Police don't generally pursue family violence orders when the only complaint is about what he said/she said on the phone and the aggrieved lives four hours away. But, police still have the responsibility of serving such applications on the respondent, even if they don't agree with it. So, don't put too much weight on how the police officers viewed the thing - they don't have any power to tell your ex that she's being an idiot.

State Courts tend to be fairly lenient with how they distribute family violence orders - they take a 'better to be safe than sorry' approach since they don't really have any consequences for the respondent unless the respondent breaches the order. On those grounds, I would usually just advise that you consent without admissions and cut her off.

But if I were in your shoes, in circumstances where the Court has made you the residential parent, and her application names the children as protected parties, I'd be inclined to contest it. Going solely by the facts you've provided, there's a pretty good chance the application will get thrown out. It's going to be hard for her to persuade the Court that you have caused her to fear for her life from a phone call when she lives four hours away, and on top of that she hasn't seen the kids since July, but wants to include them on a protection order against you, the residential parent? Doesn't make sense. I'd even wager a bet that mum will discontinue proceedings herself.

The other option is to consent without admissions, conditional on the children being removed from the order, or see if you can negotiate undertakings. An undertaking is an unenforceable promise that you won't commit family violence against her, so if mum starts making complaints that you've done something wrong, you won't be charged with a criminal offence, she'll just find it easier to get an actual family violence order the second time around.

Obviously, you're concerned about costs, but you can probably navigate representing yourself at least until a trial date is drawing near, and don't stress about the parenting matter yet. Rice & Asplund is not an easy threshold to overcome.

 

[Fordmustang]

Problem 1: How do you know what is being said in the calls? Your child sounds old enough to terminate a call themselves, all it takes is to push a button. ALso, no court can force a parent to see a child

Problem 2: I would very much doubt that your ex can get back into court without a major change in circumstances soon, google RIce V Asplund'

Problem 3: FIght the intervention order r and simply stop talking to your ex! Lets face facts, we have a woman who does not see the kids trying to make the kids part of a DVO. It sounds like you are being set up by her to allow her to bypass RIce V Asplund. Dont take the bait. Cease ALL verbal communications immediately. I dont get why people think its a good idea to talk to their ex on the phone.. a paper trail is king

Thanks for the reply it's very much appreciated.
You provided very useful information.
Also as for talking to her I ceased that ever since we went to court. Its true you could never trust a ex.

 

[thatbloke]

Also as for talking to her I ceased that ever since we went to court. Its true you could never trust a ex.

So if you ceased phone contact how can she be accusing you of abusing her on the phone?

I don’t think it’s a good idea to stop the phone calls with mum

I meant he should stop talking to her ;-)

 

[AllForHer]

Oh, I was responding to the OP's question about if he can stop phone calls between the mother and the kids.

I agree with you that he most definitely should stop any phone calls between the mother and himself, no question.

 

[thatbloke]

Oh, I was responding to the OP's question about if he can stop phone calls between the mother and the kids.

I agree with you that he most definitely should stop any phone calls between the mother and himself, no question.

I am all ears wondering how someone who supposedly has no phone contact can have the police rock up claiming phone abuse

 

[Rod]

VicPol have very strict guidelines they are to attend to all reports of family violence. Doesn't matter if there is no violence, which has a wide definition in Vic - suspect ex has been coached on what to say.

With regards to the IO, who is the applicant on the order- the ex or a police person? This matters a lot and will dictate how best to proceed.

And yes, whatever you do get the kids off the order.