ACT Father with AVO Wanting More Time with Child

[SingleFather]

My wife and I had an argument last year. She grabbed me and pushed me backwards. I pushed back wanting to get her off me and she bumped a wall. We both agreed not to make a statement or press charges.

My children from my first marriage were staying with her sister, against my consent and she wouldn't let them return to our home. A few days later, I had an AVO served on me and was unreasonably kept from my child for 6 weeks without contact.

At this point, the mother agreed to a meeting with the child and I at a park. At this meeting, I asked the mother when I could see my child next, and was arrested, charged and found guilty for breaching my AVO, by asking verbally to see my child instead of putting it in writing.

During the time of my AVO, she has also breached it, but was not been charged or held accountable. I have never been charged for assault or violence related offences.

Fast forward a year, she has unreasonably kept my contact very limited from my child with her, and has committed violence against my daughter from my first marriage and is facing serious charges. She now has an AVO against her. She is the primary parent and carer of our young child we had together and is very stingy with my contact, also she suspended my contact for 8 weeks recently based on lies and deceit.

I initiated family court proceedings against her to get my unsupervised time back with my child and the judge found in my favour and reinstated unsupervised contact with my child, on a limited basis. All I want is reasonable time with my child and am fighting the system to get some fairness and more time with my child, which is in her best interests.

It's hard for me, as not wanting to give myself away here but may risk that with the detail I have here. I am fed up with my lawyer's position which is that I can't get 50/50 care of my child, so I will continue to fight for my daughter's sake so I can have a proper relationship with her.

 

[sammy01]

How old is the child?

Look 50/50 is hard to get, especially when there is high conflict and clearly there is... But 4-5 a fortnight and half holidays is reasonable - depending on the age of the child.

So the meeting at the park and subsequent police action - do you reckon it was a deliberate ploy on her part to get you in trouble? I've been there too. Mate, it just goes to show you how clinical you're gonna have to be. Do everything by the book.

Now as far as solicitor goes - look they really are as bad as their reputation. 50/50 probably is out of the question, but you should get some indication about what sort of time you can expect. And expect the solicitor to be conservative - that way if you get more time, the solicitor can rant about how good they did their job.

But stay calm - yep, it is a slow process. So when are you back to court? Do you have a family report pending?

 

[SingleFather]

I'm back in court in January 17 and our child is turning 4 in early January. Yes, it was a deliberate action to have me charged for breach. She has been very underhanded, making frivolous complaints to police about me which are unfounded, in an attempt to have my AVO extended in January.

I want to contest the extension of the AVO but my lawyer advises me not to because if the judge finds against me this could adversely affect my proceedings in the family court matter. My lawyer advises me to consent to extending the AVO but suggests we can ask to have the child removed from the order. I am frustrated that she continues to hide behind the AVO as a reason to further limit my contact with our child.

 

[SingleFather]

Furthermore, it is fair to say that the mother breached her own AVO in March this year, and doesn't appear to seem genuine about her fear of risk to her or the child, therefore the AVO should be dismissed.

 

[sammy01]

So to get the AVO extended, she is likely going to need to get support from the cops (I think). I hate to say it but accepting without admission ain't a bad idea... Why? Well, every dollar you spend defending it is a dollar you don't have to go to family law court so you can see your kid. What is more important to you, your reputation (proving that you are not violent) or your kid?

Mate AVO's get abused. I hate it... But let's be practical in our approach to this thing. I wish you never agreed to meet her at the park. But let's learn from it... She is gonna play dirty. Ok good. Now you know that you know what you're up against.

So when you have seen the kid. What were the arrangements?

Look my thought - play along. Accept the AVO. Get to court on the 17th Jan - I'm assuming that is family court? Is that in interim hearing? What sort of arrangements are you after?

 

[Migz]

Singlefather...I'm with you all the way mate. I personally aren't on an AVO but I'm keeping my nose clean, which means don't rock the boat, don't contact the ex, and don't ask for anymore than the pitiful 2 hours a week I'm given on Saturdays.

Anyone would think I'm a complete criminal for limited time my ex lets me see my daughter. The system moves way too slow.

The system is entirely in favour of the Primary Care Giver.

The system allows the Primary Care Giver to rule the system.

The system allows the Primary Care Giver to spend Child Support money on herself and not the child.

The system is broken, and it's a well known fact and even the legal fraternity use it all the time, that if the Primary Care Giver is being pressured, for more visitation time by the non primary care giver then they just advise the primary care giver to get an AVO.

It;s time this bulls**t was put to an end... I even went to my daughter's doctor the other day and asked to view her medical records...I had the birth cert and the dna test paperwork with me... They turned around and said if you're not the Primary Care Giver then you will need to subpoena them. What a complete crap shoot.

Contest the AVO all the way mate. Sounds like a complete set up.

 

[sammy01]

Migz, I have to disagree with evverything you have said.

Stuff like "and it's a well-known fact and even the legal fraternity use it all the time" is seriously problematic. Nope, it is not a 'well known fact'; it is your opinion. That is all. Now all folk here are welcome to express an opinion, but you gotta accept that others will disagree.

So for example - why go see the doctor? People go see their doctor when they are sick. They don't go looking for 'evidence' about their kid. Being a bush lawyer hurts your cause and recommending others to do the same is naïve.

So I reckon it is dumb to say defend the AVO all the way. You could spend $30 000 or more defending it all the way. Let's say he wins - great, happy days. But he will have spent $30 000 in the process. Now that is a waste of money and more importantly, it is money that is better spent on getting the family court to let him see his kid.

Migz. I get it - I really do, but the system ain't that broken and even if it is, I'd rather have a meaningful relationship with my kids than be a martyear who never sees his kids but can hold his stupid head high because he stood up to the system. Sorry for the emotive language, but I wanna be emphatic here. Play the system, don't fight it.

 

[Migz]

Sammy01, I expected you to disagree with everything I have said. As your case is an all but rare one, where by which you have gone from non-primary care giver, with stuff all access to your children to now many years later being the primary care giver after a judge found in favour of you.

As I said your case is rare.

Meanwhile, the other 99% on this forum haven't and aren't as likely to be so lucky. And I stick to my guns by saying that, "The system is broken, and it's a well known fact and even the legal fraternity use it all the time, that if the primary care giver is being pressured, for more visitation time by the non-primary care giver, then they just advise the primary care giver to get an AVO." as this happens more often than you are letting on.

As for going to see my child's doctor, to view her medical records, as she has not been 100% for the past 3 months but she also has a persistent cough that isn't going away, it was interesting to once again find out how few rights the non-primary care giver has in relation to their own biological daughter. Once again Sammy01, you wouldn't have this problem being the primary care giver of your children, but the non-primary care givers may have an issue with it, just as I do.

So Sammy01 as I've outline in my previous message, please note that I've only been caught up in this Family Law System for the past few months, and from where I'm sitting, the system is completely broken. It takes too long, and in the meantime, important bonding time during these formative months just whistles on by. And I'll say it again, not everyone on this forum will have the good fortune that you have had in the Family Law Courts, take that into consideration when posting.

Cheers

 

[AllForHer]

I agree that AVOs are exploited often and for the wrong reasons in family law, but your case is not the place to rally for reform. To advance your case, you must work with the system as it is, not the way you want it to be.

Don't fight the AVO. It's a waste of precious resources. State Courts often determine AVOs on a better-to-be-safe-than-sorry basis, particularly since they don't become criminal matters until the AVO is breached, so it's unlikely you'll succeed in defending it anyway. An AVO accepted without admissions also has limited applicability in the Family Court because it's not an order made after evidence has been tested to show that you've been violent.

If you defend the AVO, however, you will be spending a lot of money and you may end up with a finding by the Court that family violence has taken place. That means the Family Court won't even have to decide if a risk exists because a State Court will have already decided that for them.

So, let the AVO do what it needs to do, but do as your lawyer suggested about having the child removed, then focus your attention on the parenting matter.

If your ex is facing charges in relation to violence against your other child, why aren't you arguing for primary carership on grounds that she also poses a risk to the child in question?

 

[sammy01]

Migz - the system ain't broken - and I sympathise with your position. I was there, too, and I had an AVO against me. I was also removed from my place of work by the cops and arrested (but not charged) with breach of AVO. Can you imagine the trauma of having the cops knocking on your door and asking you to come with them? BTW I'm a teacher, so you can imagine how that went down around the playground. But this ain't about me...

So, like I said, the system ain't broken. What is broken is the morality of people who abuse / manipulate. Look, it is the best system we've got and certainly has some flaws.

So - yep, AVO's get abused. Heaps - the ramifications for some are really bad. If you are a security guard, for example, you can find yourself unemployable as a result... Same for cops, and yep, they definitely get abused for advantage in family law. But the funny bugger at the front of the room with the silly looking wig knows all about it and that is why an AVO alone without any history based on evidence - medicals reports, criminal convictions, etc., mean an AVO alone isn't a big deal in family court and that is why defending an AVO is a waste of money.

Oh, and here are a few more really good reasons why defending it is a waste of time/ money:

1. It is almost impossible - If the cops have made the application, then the prosecutor will pursue it.

2. It is almost impossible - The legal requirement in NSW is "on the grounds of probability". So when the threshold is so low, what are the chances of success? Not much.

"A court may, on application, make an apprehended domestic violence order if it is satisfied on the balance of probabilities that a person who has or has had a domestic relationship with another person has reasonable grounds to fear and in fact fears:"

Apprehended violence orders

Now I used to hate that - but I guess the thinking is that given the current climate around DV, no judge is gonna risk letting someone off on an AVO only to read the paper the next day and find that same person has committed a horrible crime against their ex. So while the threshold is low, it kind of needs to be after all DV happens behind closed doors and as such makes it hard to prove one way or another so they err on caution.

3. You're not gonna win a costs case even if you manage to get the thing dropped. "Section 99(3) prohibits a cost award in ADVO proceedings against an applicant unless the court is satisfied the application was “frivolous or vexatious”.

4. The energy spent is better spent on family law so you can see the kids.

Now Migz - yup, the system is slow. No dispute. And this is where politics interferes. DV is all the rage and the politicians have jumped on it. Politicians are stupid. So, they take money out of the court system and siphon it into DV - then make declarations about how they're stopping DV.

A few more family law magistrates would definitely help. No dispute - so write to your local MP about it. I have. Didn't get a response - not even a fridge magnet.

Now as far as the system providing a better rub to the primary carer - I almost agree. The legislation says shared responsibility. The legislation says a magistrate must consider 50/50 shared care. Yep, they rarely do and 5 fortnight seems the most consistent result, but court orders rarely give one parent more authority.

What does happen is one parent tries to dictate terms and when that happens, court is a much better option because in court a magistrate makes the rules, not a nasty vindictive ex.

Yup - my case is rare. Yup, I did OK out of the stupid system, but it was only a little bit of luck. I think my result was because I studied, learned both family law and the DHS rules and I'm not a solicitor, wouldn't not want to be one, but given all the stuff I read - I reckon it a waste of effort not to share it with others, so you don't have to agree with me and I don't have to agree with you.

So to the original poster - Mate, don't waste your time money fighting an AVO. In fact - I reckon an AVO is a good thing. Nope I'm not mad... See my thinking goes like this: AVO's stop communication.

So if I can use my case as an example. As soon as the AVO expired (even before), the ex was communicating with me. We were still sorting out asset division and up to that point, it was all done through solicitors - mediation had failed, etc, etc. So with the AVO finished, the ex was pulling out all stops to try and sweeten me up for asset division.

When that didn't work, she started with threats and contacting my parents, etc, etc. I spoke to her in good faith and at every corner, she railroaded me / shafted me... It cost more money and more stress. Would have been better to leave it with the stinking solicitors.

But migz - there are clearly some really crap rules around all this crap. My least fave one, as far as non-primary carers, go is this - 34.999% care is rounded down to 34% meanwhile 64.1% care is rounded up to 65.

Now I'm no math teacher but I understand the basics of rounding numbers. Now that little quirk nearly cost me about $15 000 a year.

My opinion for both posters - read lots of cases from austii. Get to know how it all works and then play along. The more you learn from here, or places like here, and from case notes from family law courts, the less money you'll spend on solicitors and you'll also be better informed to direct your solicitor rather than just agreeing with what the well-dressed used car salesmen tell ya - because that is what solicitors are - well-dressed used car salesmen.

Rant over.