NSW Have Children Removed from DVO?

[mckell]

My husband has been issued with a temporary DVO and to appear in court next week. We don't have an issue with having no contact with the ex-wife but we want to know, can we disagree with having the children on it?

It states that no domestic violence is to be in front of children. Domestic violence these days can be misconstrued as telling your kids off for bad behaviour. There are no family court orders or custody of children issues.

I pick the children up every second weekend and we have them all school holidays.

 

[AllForHer]

Your husband can certainly advise that he's happy to accept the conditions of the DVO provided the children are removed from it. The Court will probably accept that, but if the mother won't, then he may be better off contesting it just to have the kids' names removed.

Your husband might like to consider alternatives though, such as entering into mutual undertakings (which is a promise to the court to be of good behaviour) or otherwise negotiating a parenting plan that eliminates direct contact between him and his ex-wife.

 

[mckell]

Thank you ,that all sounds simple, but unfortunately, we are dealing with someone who knows the system and baits us very well.Is he best to represent himself or have a lawyer with him?

 

[AllForHer]

Assuming this is your first mention of the matter, all the judge will be doing is:

1. Assessing the elements required for a DVO on a prima facie basis, that is:
   1. That a relevant relationship exists; and
   2. That the complaints filed with the application constitute domestic violence;
2. Asking what your husband, as the respondent, would like to do in this situation, usually either:
   1. Consent without admissions to the order being made; or
   2. Contest the DVO at trial; or
   3. Adjourn the matter for another mention in future.

If he decides to consent to the order without admissions, then the order will go into place as is.

If he decides to contest the DVO at trial, then he will be given a trial date (usually about three months after the mention), plus a list of documents he will need to file and when to prepare for trial.

If he adjourns, the matter will simply be held over until the next mention date.

It's when the judge asks what your husband would like to do that he can state he would be open to consenting to the DVO without admissions provided the children are removed as named parties, or otherwise that he will contest the DVO at trial.

Technically, it's always best to get a lawyer, but at a mention, they cost money with not a great deal of purpose because a mention isn't terribly insightful nor decisive. There's no cross-examination, no need to prepare affidavits, no evidence to present and no points to prove to the Court, it's literally just the judge reading over the application and then asking what the respondent wants to do, so it's usually fairly safe for a party to self-represent at this point and get a lawyer later on. With that said, if your husband is not confident or familiar with Court proceedings, he may find comfort in having a lawyer present, but most respondents don't bother with a lawyer at first mention.

The Court will ordinarily have a duty lawyer available on the day for free legal advice before your matter is heard, so it may be worth having a chat with them first, if he decides to self-represent. You might also like to give Legal Aid a call before the trial to see if you can book a free consultation for legal advice.

 

[mckell]

Thank you.

Just another little question?

This is his second DVO. The other one is finished now. If he goes and requests the children to be taken off, will they look at past history? He accepted the last DVO without admission, suggested by his lawyer.

I am concerned that if they do not take the children off this one when they are with us, any little thing can be classed as domestic violence and can be twisted and then he will be charged.

Sorry, I know this is a blog for legal stuff, but I am at a loss of what direction we take. We have sought a little legal advice and because domestic violence is such a broad issue it's a tricky one.

 

[AllForHer]

Were there any breaches of the first DVO?

 

[mckell]

Were there any breaches of the first DVO?

Yes, but no charge

 

[AllForHer]

The Court does look at the preceding DVO, but for a second DVO to be applied, there usually has to be some persuasive evidence that domestic violence has continued to be an issue. A breach without a charge may not be persuasive on its own, but it really depends what the ex presents to the Court as evidence.

If none of the reported breaches have been against the children, and the children are continuing to spend time with the father, then there should be no issues getting their names removed from the proposed DVO.

To me, it sounds like conflict is still an issue, so I'm inclined to ask what's the situation with the kids? Are their care arrangements governed by a parenting plan or a parenting order, or is it all informal?

 

[mckell]

There are no court orders. Tried mediation but she will not go. This all started again because we have moved to NSW and one of the children wanted to come with us full time. Conflict is a huge part of this and unfortunately he does not see his other 2 children from this marriage from lies also.

I simply don't understand if my husband is such a threat and such an awful person she makes him out to be. why would she still let us bring them across the border so they can visit with us. I pick them up every second Friday we drop them back Sunday, and we have them all school holidays.

 

[sammy01]

How old are the kids? How far do you live from the kids?

If the older one wants to live with you guys then don't return child after next visit. Simple...

Apply to court to get orders around the kids. Forget trying to negotiate with a nutter