NSW Fighting Against Apprehended Domestic Violence Order - Thoughts?

[DadonaMission]

My ex has an Apprehended Domestic Violence Order (ADVO) against me based on a very weak set of circumstances where I picked up her mobile phone and left the house post separation. She phoned the police and had me arrested, no charges but prelim Apprehended Domestic Violence Order for 6 months with basic conditions 1 a,b,c.

I am fighting in the local court with upcoming trial that there should be no Apprehended Domestic Violence Order at all. However, since this time, the ex has been phoning the police most days and claiming I'm either stalking by phoning for example my daughter's extra curricular activities once and for attending her school on one occasion to see her (no family court orders in place against either. The police have since accepted her application to have Apprehended Domestic Violence Order conditions extended to keep me away from my daughter's school, her home and where the smaller children go to preschool.

I have done nothing to deserve this, have broken no laws or orders but the police are behind her. I have spoken with the OIC and she mentioned it may be because I didn't cooperate with the police during my arrest for picking up the phone so the OIC is admitting to vengeance.

I have Interim hearing at Family Court just after Local Court Apprehended Domestic Violence Order hearing. I don't know whether to fight the Apprehended Domestic Violence Order altogether or to consent without admission but then I have to accept other unjust conditions.

According to this document protection orders made without admission have less probative weight than those made by contest (presumably where you fight them and they're made anyway).

Allegations of family violence and child abuse in family law children's proceedings - Appendix E: Classification of evidentiary material | Australian Institute of Family Studies

Any opinions? Does anyone have experience about how much importance Apprehended Domestic Violence Orders play in the allocation of parenting time?

 

[Victoria S]

If you didn't commit the offence, then wouldn't you not consent to the order? See Is someone asking the court to make an AVO against you? - Legal Aid NSW for more information.

 

[DadonaMission]

I beat the ADVO. It was dismissed following a hearing in the local court.

There is hope for others. Winning this has significantly assisted in settling Family Law matter.

 

[AllForHer]

That's really great to hear, DadonaMission! Hopefully this will progress your parenting matter significantly, keep us updated on how things go.

 

[DadonaMission]

It has helped immensely winning the ADVO case. I also completed anger management course and received good family consultant memorandum. Funnily enough she has now conceded that I am apparently stepping up as a father as she puts it after she tried to crucify me.

She's settled finances. Interim hearing about parenting in the morning.

She's offering very little contact with the children only one overnight with two eldest and no overnight with 3 yo boy.

If you could help me on what to say about allowing the 3 yo boy to stay over. He is quite grown up although attached to mum but very close with his older sisters.

I am shooting for 5 nights per fortnight at the interim and shared care as the final orders. I live and work flexible and very nearby so have a good chance of this I believe.

 

[AllForHer]

What's the 3yo's relationship with you like? Does he know you as dad?

 

[DadonaMission]

Oh absolutely he knows me very well. I lived with him until 6 months ago. During separation he's called me on the phone. He's very attached to mum at the moment cos I've only had 4 hours per week

 

[AllForHer]

Remember, this isn't legal advice.

Realistically, if the child has an attachment to you, there no reason overnight time shouldn't commence. People - single parents in particular - tend to have such an old-fashioned, one-size-fits-all view about overnight time being unsuitable for young children, but the reality is that they've already spent overnight time with you, such that it would almost be weird for them not to have overnight time. Divorce doesn't suddenly make a kid uncomfortable in one parent's care and it doesn't make a parent suddenly incapable, either. The court tends to avoid overnight time only where a child:
A) is still breastfeeding; or
B) has never at any time spent overnights with the parent in question; or
C) has very little attachment to the parent in question.

You might also find that any distress the youngest might feel at being separated overnight from the mother is going to be alleviated by the presence of the older children, but if the child has a good relationship with you, the court shouldn't have any reservations about facilitating overnight time.

One night a fortnight, or even once a week, is unlikely to lead to the children having a meaningful relationship with you, particularly where the mother is unable or unwilling to encourage the children's relationship with you. You would not have much of an opportunity to engage in their day-to-day activities with them, and nor does one night reflect substantial and significant time according to the Family Law Act.

Five nights is achievable, though I would consider the breakdown of those five nights a fortnight. A five-night block might not be as suitable as, say, every second weekend and one overnight each week, particularly for the youngest as it might be a shock to suddenly be away from the mother for several days at once (3yos don't have the cognitive ability to understand the passage of time). Breaking that time down into smaller, more frequent periods would probably be better, and then argue for a shift to block time and maybe even six or seven nights a fortnight when the youngest starts prep. Make sure you include holidays and special occasions as well.

Focus on how it's in the child's best interests to spend more time with you so they can continue having and building a meaningful relationship with you, whereby you can participate in their day-to-day routines and activities with them and play a bigger role in their upbringing. Raise concern that without this additional time, you're concerned the children will not be able to have a meaningful relationship with you. Clarify how you intend to communicate with the other party (either e-mail or Our Family Wizard or communication book), request both parents attend a post-separation parenting course, and ensure all changeovers take place at school, or if a non-school day, at a public place.

Anyway, good luck today. Let us know how it goes.

 

[AllForHer]

@DadonaMission - how is your case going?