QLD Using Affidavit from Federal Circuit Court in Magistrates Court?

[Migz]

Hi All,

My next Federal Circuit Court appearance is towards the end of this month, directions hearing. Last weekend I was served a DVO from the police from the ex. Stating I was carrying out emotional violence. It went to court last Tuesday and was adjourned until mid July. The existing Federal Court Orders remain in place and visitations with my daughter continue on as normal.

Upon looking at the paperwork for this DVO the ex has had a copy of her affidavit from the Family Law Courts stapled to the DVO and a couple of emails from over 16 months ago have been highlighted where I called her a sl*t, after a huge fight.

My question is; is the affidavit that has already been served on me during the ongoing Family Law Court Cases allowed to be used like this in the Magistrates court? I would have thought that s121 or the Harman undertaking would apply here?

Cheers

 

[Rod]

s 121 won't help you.

Harman undertaking may not. She is producing her own document in the magistrates court, not using a document found in discovery or by subpoena, however I'm no expert on these undertakings.

You may be better off not contesting the DVO and waiting till the FCC hearing. The FCC can overrule DVOs, especially where there is no finding of fact against you.

 

[Rod]

Also be on good behaviour and have as little contact with the ex as is possible. Any contact you do have, record it, even if nothing happened. It may come in handy as she is now ramping up her campaign to remove you as father of HER kids.

Maybe keep a diary of contact with the kids as well till after the FCC hearing. Record the activities you do, how happy the kids are, help with schoolwork etc.

 

[Migz]

Thanks Rod I appreciate the help.

I've made an appointment to see an attorney on Thursday for an hour. More so for the upcoming FCC than the trumped up DV. Yes I agree with you on not contesting the DV.

Cheers

 

[Lennon]

I think it depends what is in her FCC affidavit. If the FCC affidavit refers to documents or evidence that she obtained through the FCC proceedings, her affidavit will be subject to the implied/Harman undertaking.

If her FCC affidavit refers only to things that were within her own knowledge (not knowledge/documents gained through the FCC proceedings) she can probably use it. It's not particularly useful though, it would have been better (for her) if she had sworn a new affidavit in the DVO proceedings that was directly addressed to the matters raised in those proceedings.

 

[teflongirl]

Is there any truth to the DVO? I would object. Because that DVO has lots of implications in Family Court and access and DOCS. Seek advice.

 

[happily dazed]

s 121 won't help you.

Harman undertaking may not. She is producing her own document in the magistrates court, not using a document found in discovery or by subpoena, however I'm no expert on these undertakings.

You may be better off not contesting the DVO and waiting till the FCC hearing. The FCC can overrule DVOs, especially where there is no finding of fact against you.

 

[happily dazed]

Hi Migz (+ rest of peeps posting comments)

I noticed this thread and am wondering if you would mind sharing how things have panned out for you at this point ?

I have a similar situation of my own, good times all round ?

A private application for a DVO was made by my wife in mid April 2017, the heinous crime committed - reading my 3 kids a bedtime book when Mrs wasn't in the best of moods

The initiating application for final parenting orders was filed early may 2017, the main focus - non-existent DV supported by the above mentioned Temp DV order;

Without so much as laying eyes on each other in the time between dvo application, and fcc application, DV escalated into a affidavit 55 pages long with 8 annexures attached, including random photos I assume were obtained from internet of sawn off shotguns, drugs, and all kinds of other un-favourable items that don't help a person to be seen as a candidate for parent of the year ;-)

There is no nice way of describing the over all experience, how false DVO's impact you as a person / man, being that by nature the order openly declares to the world your believed to be a woman and child abuser, and your own family are needing protection from you, its not a great feeling, or place to find yourself;

The impact on any children involved is never positive, there's all the court and disruptions to your life, the rest of those involved lives, public perceptions and so on, it all well and truly sux ass, in a really big way;

Even the part where its hard to expect a fair result, due to the system being bogged down with vexatious Orders, which serve no other purpose than a manipulator own personal gain in parenting orders and property settlement matters, which is also leaving real victims vulnerable, sux ass as well !!!

But it is what it is, and what it is, is not likely to change any time soon, it seems the best anyone can do in the situation, is try and play the game as smart as you possibly can, in pretty difficult circumstances to think straight or make good decisions, and hope the truth is learnt by the right people at some point sooner than later;

ATTN: ROD -

I just wanted to ask what you mean by the FCC can overrule DVO's ?

Do you mean that they can make parenting orders that contradict the terms set out in a DVO ?

or do you mean the fcc can overrule a DVO in it's entirety ?

I would love to hear what i have learnt is wrong, and it's the 2nd option ?

If so, could you please share any further information, or reference points you know of that support what you suggest, i haven't found anything myself, and any and all legal advice has been the opposite, magistrates orders can not be over thrown in fcc ?

Cheers

 

[sammy01]

Federal law overrides state law... Family law federal - AVO is state law.

So If you have court orders that say you have the kids on Saturday and you pick them up from Macca's then that doesn't change because of an AVO... Otherwise you could have a hypothetical where dad finally gets court orders so he can see his kids THEN at the first drop off mum claims DV and the kids are protected under the AVO and as a result dad would not see the kids until the AVO expires, so the court orders for access would be a waste of time.
BTW your avo paperwork will say something on them about an exemption... So I can't go near my ex wife unless it is for the purposes of facilitating family court orders.

 

[Rod]

1. Do you mean that they can make parenting orders that contradict the terms set out in a DVO ?
2. do you mean the fcc can overrule a DVO in it's entirety ?

I would love to hear what i have learnt is wrong, and it's the 2nd option ?

1. Yes.
2. Yes.

Keep in mind though the FCC doesn't have to override Qld protection orders (PO). The PO should be acknowledged in the FCC order and explicitly overrule the PO, at least where the kids are concerned, and possibly when it comes to contact with the ex for arranging handover.

However the Family Law Act 1975 allows subsequent acts of violence to be dealt with at a state level and vary FCC orders without needing to go back to the FCC for a variation in the FCC orders. This is starting to become complex though and if in this situation a family lawyer will more than likely be needed.