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VIC Intervention Order - Grounds to Have Custody Orders Overturned?

Discussion in 'Family Law Forum' started by Shadz, 6 September 2016.

  1. Shadz

    Shadz Active Member

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    Hi all,

    I would just like to check whether being breached on an Intervention order / Domestic Violence Order and receiving a criminal conviction is grounds to apply to have custody of children orders overturned?

    Info -

    I've just been advised via text by the ex-wife that she intends to make a 3rd attempt at an intervention order against me, (1st withdrawn by her, 2nd struck out as she failed to show - just one week ago), then when I breached that one (which will no doubt be lied about) she will use my resulting criminal conviction to apply to have the current custody orders overturned and gain custody of the children. - I have 100% custody and sole parenting responsibility, atm.

    She is apparently going with the strategy of throwing enough...excrement...until something sticks.

    I ask less out of actual fear of the above actually occurring but more out of curiosity as to whether a criminal conviction for a state DVO/intervention order is even grounds to apply for a federal custody order to overturned?
     
  2. AllForHer

    AllForHer Well-Known Member

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    It depends on the nature of the breach of the IVO, really, and whether it is of such severity that it constitutes a risk of harm to the children. If, for example, you end up hospitalising your ex at a changeover, then the Family Court is probably going to determine that you pose a risk of harm to the kids well enough to remove the kids from your care.

    If, however, you are convicted of breaching it because you sent her a text message about care of the kids, then the Family Court is probably going to roll its proverbial eyes and dismiss it with a firm shake-down about wasting Court time and resources.

    As a general rule, though, a breach of an IVO has to establish that you pose an unacceptable risk of harm to the children for it to have influence in the Family Court.

    When you say you have 100% custody and sole parental responsibility 'at the moment', do you mean there are proceedings currently afoot for parenting orders and the Court has made interim orders to that effect?
     
  3. Shadz

    Shadz Active Member

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    Cheers for the response.

    The "a breach of an IVO has to establish that you pose an unacceptable risk of harm to the children for it to have influence in the Family Court." was what I needed to know for extra piece of mind.

    The basis for current IVO applications against me is the 2 emails I sent to her requesting her to contact a debt collection agency that has been trying to contact her through me. She's already got a documented history of using my identity/income without consent to apply for phone accounts, credit cards, etc. and then leaving them unpaid and defaulted - I've taken her to court previously via QCAT and it's been ruled she pay the debt amount to me.

    I requested in the emails that she provide a letter/statement from the agency detailing how my information was used/related/attached to this debt and whether I could be held legally liable for the debt. As she is the 'primary', the agency is unable to provide the information to me without her consent due to privacy despite making references to the fact I was a co-signer/co-borrower.These 2 emails in 3 months have translated (in her mind) to "harassing me by text and email on a daily basis".

    Re. 100% custody + sole parental - I've had this since the original final custody orders were made in 2014 and have had the children in my care since 2012 when we separated.

    The ex-wife filed to have the orders overturned this year but filed a notice of discontinuance and failed to show at the hearing to review the family report as it accurately portrayed her mentality/personality and the negative impact she's had on the children's lives in the last 4 years, as such, the final orders remained unchanged re. 100% care + sole with the only change being to restricted her visitations even further.
     
  4. AllForHer

    AllForHer Well-Known Member

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    Sounds like a real nice lady.

    The crazy thing about an IVO is that you still have to show that some form of domestic violence has occurred which would warrant future protection. Unless you called her a plethora of colourful names in these emails, then communicating about a debt collection agency for which she is responsible doesn't fit into that category (and certainly doesn't reflect a risk of harm to the kids).

    As an added level of protection, she would need to meet the rules of Rice & Asplund to have a hearing for changing the parenting orders anyway, meaning she would need to show there has been a significant change in circumstances such that the current orders no longer meet the best interests of the children. This is usually in the form of a major relocation of one of the parents or a criminal conviction for a serious crime. "He sent me two emails about a debt collection agency" does not equate to a significant change in circumstances.

    I think you're safe, but if she's prone to filing and discontinuing proceedings all the time, you have options available to you to stop this from happening.
     
  5. sammy01

    sammy01 Well-Known Member

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    Nope - she's got nothing. Mate, I had an AVO against me but still saw my kids. My ex did the same thing. Had all sorts of fun making false complaints, eventually, the cops worked it out.

    One thought... Depending on the contents of the text message you might consider chatting to the cops and see if they will take out an AVO on her.

    I'm in NSW - these things are different from state to state. My understanding is that in most cases the police apply for the AVO not the 'victim'. At very least showing the cops the text messages you can show that is threatening you.... If you go down that path make it clear to the cops that you feel she is trying to intimidate and harass you.
     
  6. Shadz

    Shadz Active Member

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    "Sounds like a real nice lady." - The full honest truth of it would blow your mind but if I had the time and energy to type all of it out I'd go try to find a publisher for a book or tv show and try to get paid for it. Pretty sure there'd be a market for it somewhere and I could definitely use the money. Doubt there's too much literature out there from a single dad's point of view.

    Thank you for your input and help, I can now remove one more thing off the list of things to stress over and yes, I've already discussed with the lawyer about filing a DVO for harassment/factitious litigation etc. but I keep thinking each time will be the last time and that she'll actually stop and frankly it would only cause to validate further her in her mind that I'm the bad guy.
     
  7. AllForHer

    AllForHer Well-Known Member

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    Yes, there are definitely a few stories in this forum alone that would be worth a pretty penny or two, but unfortunately, we're all bound by the gag orders of s 121 of the Family Law Act 1975. Pity, it makes it very difficult to compel reform in this field of law when nobody can actually tell their story.

    If you ever end up in Court again, specifically for parenting matters, it would be worth your while to seek an order that the ex is restrained by injunction from commencing any new proceedings against you in any Court without having gained leave of the Court first. Makes it much harder to get you back into the courtroom because she can't do so unless the Court agrees that she actually has a case to try.
     
  8. Shadz

    Shadz Active Member

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    Oh, thank you very much for this information. I wasn't even aware that was a possibility. Whilst I've been lucky enough to get legal aid for the 2 custody cases, it's meant that there's basically been one initial meeting with my lawyer to go over the history, then no real contact until the day of court appearances beside an email or 2.

    I understand the reasoning behind this given the minimal amount of funds allotted and the amount of unseen hours they put into it so I'm not complaining about them directly but it does unfortunately means advice like yours was missed.
     
  9. AllForHer

    AllForHer Well-Known Member

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    Yes, there is an awful lot I wouldn't know if it weren't for a) my law degree and b) my personal experience with self-representation. Sites like this help fill those gaps, though, so I'm glad you've found it useful.
     

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