VIC What to Do with Interim Intervention Order?

Discussion in 'Family Law Forum' started by GlassHalfFull, 28 August 2018.

  1. GlassHalfFull

    GlassHalfFull Well-Known Member

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    Hi there,

    Long story short, my wife and I recently separated due to an accusation made against me (I won't go into details but the accusation was untrue, however I wasn't allowed to return to the family home). I was told that I should only have supervised visits (the supervisor being my wife) to see my children at any location other than the family home until an investigation concluded.

    This was the case for a few weeks until a week went by where my wife wasn't allowing me to see the children and then suddenly, out of nowhere, I received an interim intervention order. The IVO was basically entirely untrue and twisted around to make me look bad, but even if taken at face value seems very weak and not really justifying an IVO (in my opinion anyway).

    No actual accusation of violence at any time in the last 12 months was made (there was an accusation about an incident from over 12 months ago where actually she was the aggressor but where neither of us contacted the police) and I have strong evidence that we had been entirely civil and reasonably calm in text messages recently, which was the only form of communication my wife and I had since I had left the house weeks earlier.

    In short, there should not have been any reason to think I had been or would imminently be a danger to my wife or my children, but somehow she convinced the police officer who made the application on her behalf - I suppose by playing the emotional victim card rather than showing any actual evidence of any threats.

    My question is, is there anything I can do to challenge the IVO in the short term? Can I, at the mentions hearing, argue anything at all? Can I ask that my children be taken off the IVO at that stage even if my wife remains on it (because that's my primary goal), or can that only be done at the full contested hearing?

    My hearing is almost 2 months away which is a really long time to be denied access to my children (I was the primary carer of the elder child until recently) and my understanding is that I won't have any opportunity to do anything at the first hearing, which will essentially be the opportunity for me to either agree to the IVO, agree to an undertaking (which according to the Vic Legal Aid website, is very unlikely when the police makes the application), or contest it.

    I understand that if I contest it, it will get sent to the 'back of the queue' and I might have to wait another 2 months before an actual hearing?? That will mean because of a frivolous IVO, I will have been prevented from seeing my kids for 3-4 months. :( And that's assuming I can even demonstrate that there's no basis to the IVO and my wife is using it as a weapon against me.

    I'm confident I can demonstrate it, but it seems like the whole IVO system seems to revolve around the rights and needs of the applicant rather than the respondent... I'm just really sad and worn down by the whole thing.
     
  2. sammy01

    sammy01 Well-Known Member

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    Hey mate, sorry to hear your story.

    I'm a punter, just like you, so please don't think I have any agenda here.

    If you do, then my opinion is get a solicitor. Accept the AVO without admission and spend lots of money getting to see your kids via family law

    Sorry for the situation you find yourself in. Been there, done that.
     
  3. GlassHalfFull

    GlassHalfFull Well-Known Member

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  4. GlassHalfFull

    GlassHalfFull Well-Known Member

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    Strange, I said a lot more thank just Thanks Sammy. I said I tried to email you on Mensline but that I got an email bounceback... I guess the post(s) has been censored? I wasn't aware it was against the rules to do that too?
     
  5. Rod

    Rod Well-Known Member
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    Start a parenting matter at the Federal Circuit Court so you can get orders to see your children.

    For the IVO, yes, ask for the children be taken off. And then ask for amended orders to say you can contact ex to arrange handover of children say via text or email.

    re: Undertakings. They are certainly doable with police as the applicant, BUT you need to convince the police you are very low risk. Might pay to have a chat to the copper applicant well before court and see what can be arranged. Whatever you do, do not argue with the copper. Plead you side and see how you go. Do not denigrate your ex, keep it all about the children.

    You will also get another chance on the day at court. The police prosecutors dealing with family violence will often 'cut a deal' on the day if you are low risk. You can have access to a duty lawyer/community lawyer on the day as well and they have good experience in these matters and often know how the police prosecutors will likely see your case.

    Suspect you are now entering what is going to be a difficult time in your life. Pleased to see you have already contacted Mensline.
     
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  6. CarlD

    CarlD Member

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    Do not consent without admission. Contest the order take it to final hearing, consenting without admission implies her allegations are true and will severely hurt your family law matter.

    Test the evidence. You will need a lawyer to cross examine all witness.

    The final order is the same whether you consent or its found to be fact

    If she has made 3 allegations against you and only 1 is found to be fact that will work in your favour in family law than if you consent then it's implied all allegations are true.

    If the evidence is shaky the police will push you to final hearing, hoping you will consent without admission, but they will withdraw before the actual hearing.

    Yes it's hard not seeing your kids for a few months but if she gets an order she can make it even harder.
     
  7. sammy01

    sammy01 Well-Known Member

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    This is an old thread. But I fancy an argument.

    Carl. I disagree (mostly.)

    Yup he'll need a lawyer. Expensive. Accept without admission. Ask for the kids to be removed. Keep your money for family law to help you get to see your kids. So hypothetically. The AVO won't exist but there won't be any orders or agreement about seeing the kids. So you don't have an avo but you're still not seeing the kids unless she agrees and you've spent money and achieved very little.

    Call Relationships Australia organise mediation and start saving for family court.
     
  8. GlassHalfFull

    GlassHalfFull Well-Known Member

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    Like Sammy said, it's good to have some different opinions in here... :) I'm curious to hear what people think. Although its true that it's an old thread, my first hearing is actually in a week and a half now. I do have a lawyer now, but they're mainly dealing with the family court application for parenting orders which have now been filed.

    They have suggested that I get a barrister for my first hearing in order to get the best initial outcome, possibly to negotiate taking my children off the order at the very least. But as Sammy said, the problem is if the children are taken off the order, it doesn't actually give me the rights to see the children when I please, because they are still at her house and I have no right to return to the home because she is still on the order.

    My lawyer has said it would take about $10k to fight the IVO all the way to the final hearing. That's on top of the family court costs which could go as far as $50k depending on how it pans out. I don't have that kind of money, but I'm going to try to get what I can, and save it for what matters most (the family court).

    My lawyer said that more than half of family court applications have an active IVO due to how easy it is get them, and although it doesn't look GOOD, it doesn't necessarily look terrible either. The judges know that IVOs are used for strategic advantage in the family court and, I am led to believe, will to some extent investigate the allegations made in the IVO as part of the parenting matter.

    Obviously they can't remove the IVO because it's a state magistrates court thing, but they have the power to create orders that supersede the IVO in practice. I am still debating whether to accept without admission or fight it, but this discussion is giving me a bit more information to make that decision. Keep it coming. :)
     
  9. CarlD

    CarlD Member

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    Hi Sammy,

    Sorry but consent with out admission is the worst thing to do. (Unless you are guilty of violence)

    Yes lawyers will cost money but it's well worth it

    The only way the children will be taken off the order is if the applicant agrees and what are the chances of that? Slim at best, she only needs to suggest abuse and the magistrate will side with caution.

    Yes family law over rides the AVO and yes you will get to see your children but all the applicant needs to do is allege a breech of the AVO and then you have criminal charges against you and all of a sudden you can't see your children again.
     
  10. GlassHalfFull

    GlassHalfFull Well-Known Member

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    CarlD, good points. Yes that's something that my lawyer also raised, that with an active IVO in place, it is so much easier to have criminal charges laid on you for something you either didn't do or did do but wouldn't normally result in criminal charges if not for the IVO. While there is an active IVO, you are really under the magnifying glass as far as your family is concerned. This is the biggest problem with the system and the climate around domestic violence at the moment...

    All it takes is an accusation without evidence, and suddenly you are in a position where you almost considered guilty until proven innocent. I'm all for IVOs when they are truly necessary, but there really has to be an investigation of both sides (and actual evidence to support it) before it's put in place. It's just utterly unfair that a baseless accusation can be made so easily and so easily believed by police/magistrates. And on top of that, the delays in actually getting to a point where you can defend it in court.

    On the subject of the children being taken off the order, apparently it is a possibility because it's not my ex that is the applicant, it's the police (although apparently that doesn't make it any easier, only harder). But my understanding was that the magistrate can take the children off the order without the consent of the applicant?
     
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