VIC Intervention order procedures

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rajb

Active Member
23 April 2020
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Hi guys,

My ex wife and I are separated for over a year now. Last week she filed an interim restraining order stating that I can't come near her or my daughter. She created a story which is not entirely true but to restrict me from seeing my daughter (2yo).
What is my best cause of action before my court appearance? I don't want to spend thousands of dollars fighting it out as we are both struggling at the moment and her decision seems a bit irrational during this period of uncertainty in the world.
I need to get a lawyer to represent me in court for the IVO? Do I find someone to initiate a mediation prior to the court case? I am a bit distraught and overwhelmed by how everything is panning out.
 

Atticus

Well-Known Member
6 February 2019
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What is my best cause of action before my court appearance? ....... do I need to get a lawyer to represent me in court for the IVO?
Your first court appearnce will just be to either accept (without admissions) or oppose the interim IVO.... No need for a lawyer if you can't afford one
Last week she filed an interim restraining order stating that I can't come near her or my daughter. She created a story which is not entirely true
So what are the grounds for including your daughter (specifically) on the order....

Do you have any court orders or a formal parenting plan CURRENTLY in place regarding contact with daughter?

At this stage If possible, you want to try to include communication with mum concerning visitation, either directly or via a mediation service (not communication via lawyers only)...

Do you have family/friend support?.
 

sammy01

Well-Known Member
27 September 2015
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You're not gonna like my advice.
Accept without admission. Forget trying to get the order changed so daughter isn't on it. WHY? Well lets say you do and you succeed in getting it changed. The ex still has the child and you don't.

So call relationships Australia to sort mediation. That is the best way to get to see your child. Be patient.

Remember, the child is very young. I know it hurts for you to not see her, but she wont remember any of this. So just focus on that.

Other piece of advice. If you can afford a solicitor - it will cost about $1000 maybe a bit more. But solicitor can write to ex asking for her to agree to a parenting plan where you have the child overnight once a week. The ex might agree, she might not, but worth a shot.
 

rajb

Active Member
23 April 2020
12
0
31
So what are the grounds for including your daughter (specifically) on the order....
She said she fears for her safety as well. I am loving father and would never hurt my only daughter.

Do you have any court orders or a formal parenting plan CURRENTLY in place regarding contact with daughter?
Not yet - we only had informal agreement of seeing my daughter 3 days a week.

At this stage If possible, you want to try to include communication with mum concerning visitation, either directly or via a mediation service (not communication via lawyers only)...
My mother in law is fine with me but I am worried if I will be breaching the IVO if I contact a family member. My ex used to bring my daughter to my see my family (grandparents) once a month if lucky but now she is not even doing that.


Do you have family/friend support?.
only support I have at the moment is my parents
 

rajb

Active Member
23 April 2020
12
0
31
You're not gonna like my advice.
Accept without admission. Forget trying to get the order changed so daughter isn't on it. WHY? Well lets say you do and you succeed in getting it changed. The ex still has the child and you don't.

So call relationships Australia to sort mediation. That is the best way to get to see your child. Be patient.

Remember, the child is very young. I know it hurts for you to not see her, but she wont remember any of this. So just focus on that.

Other piece of advice. If you can afford a solicitor - it will cost about $1000 maybe a bit more. But solicitor can write to ex asking for her to agree to a parenting plan where you have the child overnight once a week. The ex might agree, she might not, but worth a shot.
Thank you so much!
 

Atticus

Well-Known Member
6 February 2019
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221
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You're not gonna like my advice.
Accept without admission. Forget trying to get the order changed so daughter isn't on it.
@rajb .... I'm going to disagree with sammy's advice

I agree with his advice to initiate mediation with an accredited provider such as Relationships Australia, & you should go ahead & DO THIS NOW, regardless of what you do with the IVO....

Arguments against just accepting with out admissions right from the start.... (unless of course you are in actual fact guilty of FV & therfore pose a threat)

1) This is a private application not a police application....While it carries the same weight in terms of it's restrictions, you will not be facing a police prosecutor (should it reach the stage of a hearing beyond the first mention) If it doe's go that far, you can self represent.... I would NOT be spending money on a lawyer for an IVO defence BAD idea

2) It's early days.... Things may calm down a bit, or perhaps she will shortly come to realize that including the child is going to create more problems than it solves..... By accepting without admission (AWA),at the start, ESPECIALLY as it includes your child as a protected person, you are locking that in as a confirmed IVO.... As a consequence, there will be NO further opportunity to get this back before a court other than you applying for a variation to remove child (more difficult to get as you are going to almost certainly need your ex to agree to it.... Why would she)

3) By AWA with your child named as a protected person, relationships Australia (or any mediation provider or lawyer for that matter) can not make a parenting plan that opposes the restrictions of that order, even if both parents agree.... So your ex would need to apply to court to vary the IVO.. Funny thing with people is when they have opportunity to reflect & talk to friends (females especially take a great deal of notice from friends unfortunately) there is a the very real possibility that she will not seek that variation..... She may offer you to come around & visit the child anyway... You are very tempted because you miss the child.... Long story short, things turn sour again, cops are called, you now face a criminal charge of breaching the order & WILL be facing a police prosecutor..... This can be a great dagger to hang over your ahead to have you accept any amount of abuse or bad behavior on the protected persons part

So my advice is
A) Call a mediation service TODAY. Get that happening, lock in an initial appointment date.... It's something you can then tell the magistrate at the first mention, & gives him/her room to move regarding communication about child because you can demonstrate a path forward already in place... You DON'T want comm restricted to lawyers only..

B) At the first mention, ask that the child's name be removed from the IVO by claiming you are not a present or future risk to the child (nothing in supporting affidavit from her application to suggest you are is there?) .... May be refused, but worth a try

C) You can also propose an undertaking in place of an IVO, but she would have to be present at the first mention & agree to accept that, (but that can also be a later option if things calm down)

By opposing the order (not agreeing with it) at the first mention, doe's NOT mean you are locked into a second court date (a hearing)... fact is, at any stage you can pick up a phone or go to any police station or local court with your interim order & tell them that you have decided to AWA ... you could even do it at the hearing.

Even legal aid recommend that >>>> it is worth going to court to have your say about the conditions of the order, especially if you have children.

SOURCE >>> Options for dealing with an intervention order | Victoria Legal Aid
 

Geddius75

Active Member
24 April 2020
6
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Sorry Sammy, disagreeing with you here.

If you are dealing with an ex you have no intentions of seeing, then yes, agree without admission if you do not intend on owning a gun. HOWEVER...

You have a child together. Your child is listed on the AVO. Accepting this AVO means that you will not be allowed to get a Working with Children's Check approved for 5 years after the completion of the AVO. You cannot help your child and his/her class. You cannot go on excursions. You cannot help in anything where a WWCC is required.

Also with your child listed, a Family Law judge may see fit to restrict access to your child in interim orders. This will usually include supervised visits only

In this case, I would suggest you do your best to fight this in the courts. As mentioned, no lawyer needed for the initial hearing. Speak to a duty lawyer on the day. Advise that you disagree and wish to contest. Come Directions, you will again advise that you wish to contest and your ex will be required to provide Further & Better Particulars (Evidence) to you within 2 weeks, and you provide your response within 2 weeks after that. The only evidence that she can submit is anything directly related to the AVO. Your response should be the same. Ignore anything where she may say "In 2013 he called me names". If there is no evidence beyond a claim, do not address it. if she gets sidetracked, ignore it.

If you remain self represented through to the contested hearing, the magistrate usually provides funding for legal aid to obtain a lawyer to question your ex, as you are unable to do so without a lawyer. I've yet to see this funding be denied by a magistrate.

All the best.
 

rajb

Active Member
23 April 2020
12
0
31
Thanks guys - some solid information from all of you. I have finished my initial mediation session today and they said it may take weeks to get us both together to get a resolution.

Lot of you guys are saying no lawyer is needed for the initial hearing and while I have been asking around the going rate for lawyer attendance at the magistrates varies from $1000 - $1500 plus initial consultation which goes north of $300. It is a bit daunting to self-represent though but I can tell the duty lawyer that I am contesting.

Accepting this AVO means that you will not be allowed to get a Working with Children's Check approved for 5 years after the completion of the AVO.
This is a very worrying and I definitely don't want this to happen! My daughter is only turning two and I want to be there for her all the way.

B) At the first mention, ask that the child's name be removed from the IVO by claiming you are not a present or future risk to the child (nothing in supporting affidavit from her application to suggest you are is there?) .... May be refused, but worth a try
How do I go about removing my daughters name from the IVO? Do I tell the duty lawyer that I am contesting the IVO and want my daughter's name removed?
Even if they do remove her name how would I be able to see her without coming into contact with my ex wife? She seems to be in-control of everything related to my daughter and I have no say in anything. My ex wouldn't bring my daughter to my house and I can't even go 200m of my daughters house.
 

Geddius75

Active Member
24 April 2020
6
0
31
You want to seek a variation to exclude your daughters name. At that point, you can choose to accept without admission and not have to worry about the repercussions pertaining to your daughter being on the AVO. The duty lawyer can request this on your first mention if you choose to do down this path

Worth nothing that here in VIC, a duty lawyer will not help you contest a hearing so anything beyond the first mention (directions & contest) will require you either self represent, seek legal aid or your community legal centre, or obtain a private lawyer.
 

Atticus

Well-Known Member
6 February 2019
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How do I go about removing my daughters name from the IVO? Do I tell the duty lawyer that I am contesting the IVO and want my daughter's name removed?
As @Geddius75 comment below
You want to seek a variation to exclude your daughters name. At that point, you can choose to accept without admission and not have to worry about the repercussions pertaining to your daughter being on the AVO. The duty lawyer can request this on your first mention if you choose to do down this path
Even if they do remove her name how would I be able to see her without coming into contact with my ex wife?

Request that the interim order conditions be made/varied to allow you to communicate with your wife about parenting & property issues via an accredited mediator.... IMPORTANT MAKE SURE you have contacted a mediation service & preferably have a date booked for your initial interview ... That will help you get that variation so you won't be restricted to communication via lawyers only.