QLD Got a DVO from Ex - Help?

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Gon

Member
26 June 2017
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I was served with a Temporary DVO and scheduled to appear on June 28 2017.

My 1-month-old son was 2 weeks old when she left home taking away my son. The pain that I am going through at the moment is unbearable and feel like I am exploding.

I went to a lawyer and they advised me to consent without admission on the condition that she will remove my son in the order, to consent only to good behavior and the rest order (not allowed 100m from her, no communication with her except when communication with child etc.)

My question is if say, the ex is not willing to remove the name of my son and other orders (that I am not allowed to get near her, contact her etc.), shall I consent? How many months or years do you think the protection order will be in place? How can I see my son if he is included in the order?

I have contacted a private mediator to facilitate a mediation regarding child visit and she indicated that she is open to mediation and want to be called back next week probably after the DVO first appearance in magistrate.

Any help please...
 

sammy01

Well-Known Member
27 September 2015
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So you can ask for the child's name to be removed...If I were the ex, I would refuse... So ATM, there are no rules about the child, except the AVO rules. So if there was no AVO, then you could pick the kid up from pre-school and keep the kid... But the AVO is stopping you...

So if she refuses to have the child's name removed, you're still stuck... Trying to defend it is hard work. The AVO will last for either 1 year or two - I have to be honest, I'm not sure about QLD - they are a state by state thing and I'm only familiar with NSW...But given the age of the child, I'd suggest not fighting it... Just accept without admission and save your energy and money for family law...

Start by calling Relationships Australia. They should be able to help you.
 

AllForHer

Well-Known Member
23 July 2014
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So, the first hearing will just be a mention. The Court will assess a) if the parties were in a domestic relationship as defined by the Domestic and Family Violence Protection Act 2012, and b) if the grounds given for the DVO actually constitute domestic violence. It doesn't make any findings about the evidence or make a final order at the first mention, but the Court will ask what you would like to do. You have a few options available to you.

The first option is to consent to the order without admissions. Basically, this means that you'll agree to the order that your ex is seeking, but that doesn't mean you've admitted guilt to the allegations made against you. The pros are that it's cheap and easy to do, and they have very limited impact on future proceedings for parenting orders. The cons are that it make employment difficult if your line of work is in the police or requires security clearance of some description, and if you breach the order and are convicted accordingly, you will likely end up with a criminal record.

The second option is to contest the order. This means you'll seek to defend the order at trial, where the evidence will be tested. The pros are that there is a significant period of time between the mention and the trial date, which is a period you can use to a) sort out the parenting matter; b) see if the other party will file a discontinuance for the DVO application; and failing that, c) consent without admissions at a later date. The major con is that if you do end up having the matter heard at trial, and an order is made against you, then you will not only have a DVO, you will also have a finding from a Court of law that you have committed an act of domestic violence against the other person (as this finding forms part of the requirement for a final DVO to be ordered). The Courts that hear parenting matters can ignore a DVO consented to without admissions easily enough, but it's less likely to ignore a finding from a Court that violence has occurred.

There are also variations of the above options. For example, you can agree to consent without admissions conditional on the other parent agreeing to remove the child as a protected person. If they don't agree to remove the child as a protected person, you can contest the matter and then use the time leading up to trial to try and sort out the parenting matter and see if the other party will discontinue proceedings voluntarily. The advantage here is that you can also consent without admissions at any time leading up to, and on the day of, trial.

Another option is to offer to enter into undertakings with the Court, which is basically a promise not to commit any acts of domestic violence against the other party. Breaches of undertakings do not result in criminal convictions, but can make it easier for the other party to get a DVO later on. Undertakings are very common, as well.

Some things to note when considering your options is that DVOs are very easily granted by the Court, even at trial. The reason for this is because a) it usually takes a better-to-be-safe-than-sorry approach to such orders in order to extend blanket coverage to genuine victims; and b) it does not want to discourage genuine victims from seeking help due to lack of faith in the Court. As such, the likelihood of having an order made against you is significantly higher than the likelihood of the Court dismissing the application, even if the evidence supporting the application is flimsy.

For your other questions, how long will a DVO last? The Court can make an order that lasts for up to two years, with the option to extend if necessary. The Court will usually only extend an order if there have been breaches recorded during the course of the existing DVO.

And how will you see your son if the order is in place? Well, this is a question that maybe deserves a thread of its own, but the shortest answer is to get parenting orders in place.

Parenting orders, which are made either by consent between you and your ex, or by a judge following trial in the Family or Federal Circuit Court, stipulate what time your son spends with you (among other things), and they override domestic violence orders (including those which name your son as a protected person and say you must stay 100m from him). As such, your goal should be on getting parenting orders in place, rather than dabbling in domestic violence orders.

Like I said earlier, a DVO consented to without admissions has very little bearing on how the Court determines parenting orders, so you might find consenting without admissions to be the easiest option so you can turn your full attention to where it is most important - getting parenting orders in place so you can protect your time with your son.
 

Gon

Member
26 June 2017
2
0
1
Hello all thanks for the reply.

As per the lawyer that I have spoken to, he said that the DVO now can last up to 5years.

So if say the EX doesn't want to remove the name of the child and all other orders and say I will consent to the Temporary DVO as is - does this mean that the magistrate will automatically issue the final DVO with the same orders and indicate the duration of the DVO?

If say I consent without admission got final DVO and she agreed to have a mediation - and say we agree to a parenting arrangement to visit... say 1hr weekends or what ever. how will the DVO be treated? as I am not allowed to get near him or her at 100m or talk to the EX.

The wife filed a Child support a week back and just received a letter from CSA - all the applications now are getting into her favor - though I am not running away with my obligation with my son but I should at least be allowed to see my son - will the magistrate consider this when mentioned in the court once he issue a final DVO order?

Thank you again
 

sammy01

Well-Known Member
27 September 2015
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OK have a look at the AVO...

Read the fine print - it will say something about exceptions... So you can't go near her unless for the purposes of facilitating time with child. So once you get an agreement to meet at Mcdonald's or whatever... you can meet her, say hello and take the kid, then meet back at maccas to drop off child.

Go sit at maccas on a Saturday morning... You will see 3 or 4 anxious blokes waiting for their ex to drop off their kids.... Welcome to family law...

Mate things will get better
 

Migz

Well-Known Member
20 November 2016
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Gon how did you go with this? Facing the same thing myself, and off to court later this week to have my daughter removed from the DVO.

Cheers
 

Rod

Lawyer
LawConnect (LawTap) Verified
27 May 2014
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www.hutchinsonlegal.com.au
If there is no violence shown to the pregnant mother or the child, the court should consider removing the child from the IVO. The age of child in the OPs case is against him at 1 month old.

If it was me I'd be getting into the Federal Circuit Court with a parenting case fairly soon.