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QLD Rights the Father will Have Once DVO has Expired?

Discussion in 'Family Law Forum' started by Celia Woodbridge, 27 September 2017.

  1. Celia Woodbridge

    Celia Woodbridge Active Member

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    Hi,

    I have a few questions regarding parental/ legal rights to a child post-completion of 2 year domestic violence order or DVO.

    The biological father of my now 11.5 month old son was placed under a 2-year (no conditions) domestic violence protective order when my son was 4 months old. The order was organised by the district court to protect both my son and myself (mother) from my son's biological father as he became physically and verbally abusive toward my newborn son and myself by the time my son was three weeks old.

    The abusive incidents toward my son continued and worsened over the following month. I then told his father he had to find somewhere else to live and was not allowed to touch our newborn son without my permission until his departure.

    My son's father refused to move out and the domestic violence continued until I managed to get the landlord to evict him from the premises. Once he was gone, I went through the process of applying for the protective order, which was finalised (as said) by the time my son was four months old.

    I am wondering what happens once the DVO ends? Will my son's biological father gain parental rights as soon as the DVO has ended?

    Side note - the father is not on the birth certificate as he was not present (nor did he want to be) when my son's birth was registered.

    The father himself has no desire to be a part of his son's life, however his mother (my son's grandmother) is a highly manipulative woman who is sour over the fact as a result of her son's actions toward my son. I ceased contact with her, meaning she doesn't see her Grandson...

    She is an extremely firm influence on her son (my son's abusive father) and I wouldn't be surprised if she pushes him to gain rights once the DVO has ended so that the both of them get to see my son.

    It is no way in hell in my son's best interest to have his biological father in his life or for him to spend regular time with him due to the mere fact he was abusive toward him as a newborn!

    If someone could please tell me what the father would be entitled to in regard to my son post completion of DVO that would be great, as the idea of being forced by courts to leave my son with his previously abusive father for any amount of time supervised or unsupervised scares me everyday!

    Thank you!
     
  2. AllForHer

    AllForHer Well-Known Member

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    Well, your ex doesn't have rights, per se, but your son is entitled to know, spend time and communicate with both parents on a regular basis, regardless of the nature of the relationship between said parents, insofar as your son's best interests can be met. That's his right, under s 60B of the Family Law Act.

    If he's not currently enjoying that right, then the father can follow the necessary steps to file an initiating application with the Court for parenting orders that enable his son to have a meaningful relationship with him.

    Will he succeed?

    No idea, but if you're banking just on a DVO as evidence that he poses an unacceptable risk to your son, then I'd say he's got a very good chance of winning.

    A DVO on its own doesn't prove a person has been violent or that he poses an unacceptable risk to his son. It's just a protection order, it doesn't equate to a criminal conviction. You'd need evidence beyond just your word to prove that element of unacceptable risk exists.

    Notably, though, a DVO doesnt stop a parent from seeking parenting orders because parenting orders override DVOs anyway. If he hasn't contacted you in all this time, he probably won't.
     
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  3. sammy01

    sammy01 Well-Known Member

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    I agree (mostly) with the last post... Dad did have and still does have shared parental responsibility. It would appear he has not tried to exercise it.

    Questions - Did he attempt mediation with you? Does he pay child support?

    Both he and the grand-mother could both seek mediation with you. You can choose to refuse, then their only option is court.... Kinda.... So I don't mean to scare you but without the protection of the AVO - technically, there is nothing stopping dad from picking the kid up from pre-school and putting you in the position of having to apply to court.

    Now if that did happen, you would be in court really fast, much faster than if he applied to court and if he were to just take the kid from pre-school he will have done his case nothing but harm.

    Look the AVO is not there to stop a dad from seeing his kid. So like the other poster said, if he hasn't contacted you, it is unlikely that he will just because the AVO has expired... But I'd like you to answer the questions I've asked above as it might change the advice I'd be giving you.
     
  4. Celia Woodbridge

    Celia Woodbridge Active Member

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    Hi,

    Thanks for your feedback. Just to clarify, the DVO was organised to protect my solely protect my son, not myself. The court ordered it to cover both of us though but as said, it wasn't organised to protect me or organised due to issues between his father and I. The judge made it a nonconditional DVO as it was to protect my son so it is different to a standard DVO in which my sons father cannot override the DVO with a parenting order even if he tried (as you explained is able to be done for standard dvo's)... if that makes sense?

    It was my son who was violently abused more so than me, when I went to court all talk was about protecting my son from him and his abuse as opposed to me.

    The police wanted me to make formal statements re his abuse of my son (including obscene verbal abuse and several counts of assault resulting in bruises etc). I haven't gone ahead with making the statements out of fear basically.

    My son's father is an extremely unpredictable, spiteful, unstable individual so the thought of making statements leading to him being questioned and possibly charged scared the hell out of me... as I have no idea how he would react or what drastic way he may retaliate - he knows where I live and everything.

    I chose to not make the statements as since the DVO had been placed things had quietened down. There was no contact from him and all the fear associated with the prior traumatic incidents with him mistreating my son started to die down if that makes sense. I didn't make statements as once the DVO was in place we felt safe again, home was happy again.. I didn't want to cause any further tensions or aggravate his father if her were to en up being questioned/charged by police.

    Considering the DVO that is current is different from the standard and mainly in place to protect my son from him, and also has no conditions available for his father to override it with a parental order does that change anything once the dvo finishes?

    Would it be in my best interest to go ahead with the formal statements and potentially have his father charged? ... I'm not sure if there would be enough evidence for him to be found guilty though, I am the only witness other than my mother - who was with me when we discovered bruises and when she heard verbal abuse. The only other witnesses are his mother and her partner, she witnessed extreme verbal and violence toward my son but she would never testify in court against her own son (my sons father).

    It's a complex situation. I sure hope you are right - by saying if he hasn't contacted me yet he probably won't but I can't help but fear the worst and also try plan for the worst in case he does try and gain access once the DVO has ended.

    Thanks for your help :)
     
  5. Migz

    Migz Well-Known Member

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    So here is a Father who was Alienated from his child just weeks into its life, so you took out a DVO, no charges have ever been laid in relation to your "so-called" abuse, and the Father has also abided by the DVO and no breaches have been carried out in the two years the DVO was put on him. The fact that you won't even foster a relationship between not only the Father but also the paternal Grandmother is deplorable.

    So it was quite alright for you to go to bed with this fellow then carry the child for 9 months, but then have him removed from the child's life by way of a DVO, with no charges being carried on the DVO was served. All I can say is, how do you live yourself.... and I seriously hope, if not the Father but the Grandmother take it to court so they get some quality time with the child.

    Secondly, how is it a 2-year protection order, when it was taken out when the child was 4 months and its now finished and the child is 11.5 months... sounds like a 6 month DVO to me.

    To answer your legal question, just tell the police you live in fear and you require the DVO extended...just make sure you keep alienating your child.

    I can only hope Pauline Hanson gets her way with 50/50 being the norm in courts, as this is a perfect example of where it should be used.
     
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  6. sammy01

    sammy01 Well-Known Member

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    Yup, look kinda agree. We have your side of this story... Everyone involved here is evil, evil granny, evil daddy. And you've expressed on interest what so ever in fostering a relationship with this child and their father..

    It is pretty easy to see from here that you've made a decision for a child to not know their dad..
     
  7. AllForHer

    AllForHer Well-Known Member

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    Well, I assume the DVO is only six months into its two-year duration, there's nothing here to suggest it's expired, and frankly, Migz, you're coming from a place of personal frustration, and I can't imagine taking it out on the OP helps you or her.

    But, for the benefit of other forum users, please understand there is no DVO in the state of Queensland that can supersede a parenting order. Law 101: federal law takes precedent over state law, parenting orders are federal law, DVOs are state law, and on top of that, the Family Law Act states that while the Court must try to make parenting orders that operate concurrent with any protection orders, the parenting order will take priority over the protection orders insofar as is necessary for the parenting order to work.

    So, if you have a DVO that says no contact with child, and dad gets a parenting order that says yes contact with child, dad's parenting order wins for contact with the child. If you have a DVO that says no contact with you, and dad gets a parenting order that says he can contact you about the child, then dad's parenting orders wins for contact with you about the child.

    It doesn't matter what your DVO says or looks like or how it's apparently different to others, State Court orders - whether made in the Magistrates, District, Supreme Court or otherwise - simply do not override Federal Court orders.

    Since dad doesn't have parenting orders yet, the DVO wins for no contact.

    But dad can get parenting orders, you should know that, OP, and by the general gist of your post, it sounds like you applied for the DVO yourself, rather than the police on your behalf? Did dad attend the hearing for the DVO when it was made?
     
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  8. Celia Woodbridge

    Celia Woodbridge Active Member

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    Wow, what nerve do you think you have. I posted on here to get some non-judgmental legal help regarding an extremely important situation to me.

    How dare you judge, assume and share such a horrible negative opinion of me when all I sought was some unbiased legal advice. For your information, the DVO is a 2 year DVO, it ends in March of 2019. I was seeking help early so I knew what to expect or how to plan for when it ends.

    I did tell the police the reason I was hesitant about making statements was because I was scared of how my son's father would retaliate as he is an extremely spiteful, unstable and dangerous person. I did not join this site and ask for legal input so that someone could fill in blanks themselves of my life and judge me and my decision-making when they have no idea what my life has been like nor any idea of what my son's father put him through as a newborn, how dare you!

    I have done so far everything in my power to protect my son which is exactly what a mother should do! I didn't merely 'alienate' my son from his father because I don't like him (as you seem to feel is the case). I sought plenty of advice and did exactly what I needed to do to protect my son!

    You know if I hadn't followed the legal advice and organised the DVO and ant further abuse occurred while all 3 of us remained living in the same home, I could have been considered a neglectful mother and child services would have removed my child from both him and I as I would have not done what the law considers as necessary for a mother to do to protect their child.

    When I went to court for the DVO the judge was so disgusted at the incidents I had honestly documented, along with a letter from my parents they wrote as witnesses describing the incidents they had been around for she first asked if my son had been checked out by a doctor since the abuse occurred (which obviously he had, I had made sure he was checked out by 2 different doctors). She then said good because this man should never be allowed anything to do with your son again, the things he did yo your son could have left him with permanent brain damage and dislocated hips.

    I have not merely alienated my son from his father for bull s**t reasons or because I merely don't like him. It was a very serious, traumatic situation to go through and I sure as hell hope none of you ever have to bear witness to the man you loved and had been with for over two years suddenly changing into a physically abusive monster as soon as your first baby was born and harming your newborn.

    How dare any of you judge me and assume things. He seriously abused his own newborn son and not just once! How can any of you take this as me merely alienating my son from his father for personal relationship reasons?

    You know he also had the option in court to disagree with any and all incidents documented on the DVO application. He could have said 'No I do not accept this, I did not do anything documented here, or no this is all lies' and things would have been looked into and the DVO wouldn't have automatically been placed. But he didn't he accepted it, no qualms whatsoever as everything in kt was 100% true.

    You lot are horrible. I am a great mum and have done everything a mother should do to protect their child upon occurrence of a horrendous unforeseen and totally unexpected damaging situation.
     
  9. Celia Woodbridge

    Celia Woodbridge Active Member

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    Do you blame me? If the father of your newborn physically abused your helpless newborn out of sheer anger, frustration and jealousy (as admitted to by him!), would you think it in the best interest of your prior abused infant to assist with them maintaining a relationship?

    You speak as if I'm merely a crazy woman who thinks the world is evil. Well I am not, but there are people in the world who do some extremely evil things and unfortunately one of those surprisingly ended up being my son's father!
     
  10. Celia Woodbridge

    Celia Woodbridge Active Member

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    Thanks for that information re DVO's vs parenting orders. No actually I did not know that as law isn't my area of expertise (obviously, why else would I be seeking help). I was going merely off what was explained to me following the court hearing for the DVO by the judge, obviously I misunderstood the info she gave me.

    Yes my son's father was at court for the DVO hearing and he accepted everything, while he had the option to disagree with it and say no, I didn't do any of that or it's all lies. He accepted it because everything was 100% true!
     
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