NSW Will ADVO Against Husband Hurt Our Family Court Case?

Australia's #1 for Law
Join 150,000 Australians every month. Ask a question, respond to a question and better understand the law today!
FREE - Join Now

MummyOf2

Well-Known Member
18 September 2015
28
0
121
My husband was issued with an application for apprehended domestic violence order this morning. To begin with, they filed the wrong application as my husband and my ex's wife have never been related or in any domestic relationship. Not saying that the ADVO would have been the right move to make either obviously.

Basically the application is all lies bar 2 things, 1 of which my husband was completely within his legal rights to do. Point 1 that is true is that my husband called my ex's wife disgusting and point 2 that is true is that my husband filmed them. He was legally within his rights to film them as my husband was on my property filming them in a public car park within hearing distance of other people and shops that surrounded them. Every other detail they put in the application were lies and slandering my husband and accusing him of things that they actually did.

My concern is that I already have an open case in the family court and I am stressing that they are doing everything in their power to take my son away from me, even though I have been the responsible parent and have done everything in my power to encourage a relationship between my son and his father. They have already accused my husband and I of abuse that has never taken place and now are trying to accuse him of abusing them since they can't prove that we abuse my son.

My question here is mostly, what is the judge going to think of this? I plan on raising this at the CIC in 2 weeks as an issue for the psychologist to cover.

Also what are the chances that a judge will actually approve the ADVO when my husband attends the hearing? My husband hasn't done anything wrong and opposing the application made against him. Their application only includes 2 occasions, both occasions I called the police on them as they were in the wrong and or breaching family court orders.
 

sammy01

Well-Known Member
27 September 2015
4,974
710
2,894
What if I said that you were disgusting, would you perceive it as harassment? Is it intimidation? Yep, it is...

Filming people - Against their wishes? Harassment? Yup...

So hubby has done some stuff wrong. Warrants an AVO? get proper legal advice, but I would suggest it could be granted - yes.

So your hubby has given them some ammunition... Learn from the mistakes - I'm not a solicitor and neither are you.... So don't assume you know what constitutes as 'evidence' or 'proof' - filming people without their knowledge and/or without their consent is a bad idea and possibly criminal.

Impact on family law? Look AVO / DVO, etc are relevant - level of importance? Magistrates are clever - why else do they get to sit there and pass judgement on the rest of us. So they know sometimes folk try to abuse the system.

Of more importance - the capacity (or otherwise) of the parent to foster a meaningful relationship with the other parent. So do you reckon your hubby being abusive towards your child's step-mum shows a capacity to co-parent? Nope.

Now it don't matter if they were throwing Molotov cocktails at your house. You would have had a better win to do nothing - Definitely not a good idea to try and provoke them and guess what - calling someone disgusting then filming their response... well can you see the problem...

Like I said before - learn from the mistakes.
 

MummyOf2

Well-Known Member
18 September 2015
28
0
121
I should have provided more details, sorry.

filming people without their knowledge and or without their consent is a bad idea and possibly criminal....
The filming came first when they barricaded us into our property, they were fully aware of being filmed at the time as we were recording their behaviour towards us. I even let the cop know that attended that my husband had filmed and the cop thought nothing of it as it was in a public setting.

The law states that it is legal to film someone in a public area as long as there is reasonable reason to believe that they can be overheard by others, consent is not needed in this situation. Which was all relevant at the time. My husband did nothing illegal or harassing in this circumstance, they were the ones harassing us and following us around our property not letting us leave with my son, my husband simply recorded it.

We don't plan on using it as 'proof', it is simply for our own peace of mind that we did nothing wrong that day.

what if I said that you were disguisting..... Would you percieve it as harassment? is it intimidation? YEP it is...
On the occasion that my husband called my ex's wife disgusting we know he did the wrong thing, I even told him to stop in the middle of what he was saying, I was even on the phone to the cop at the time and the cop heard it all.

I understand my husband's behaviour though as my ex's wife had once again retained my son from me after I had gone to court to make sure it would not happen again and he was frustrated. Yes, he did the wrong thing and he has promised not to speak out of term again.

Impact on family law? Look AVO / DVO etc are relevant - level of importance???? Magistrates are clever - why else to they get to sit there and pass judgement on the rest of us. So they know sometimes folk try to abuse the system
I do understand the severity of AVO/DVO's, I am unsure of the role it will play in my open court case if they chose to use it as evidence against me to say my husband is creating a hostile environment when he clearly is not. They are fully abusing the legal system, it is scary that they even think it is OK.

So do you reckon your hubby being abusive towards your child's step-mum shows a capacity to co-parent? NOPE
If this really was the case I would agree. I do not believe one comment out of frustration shows a lack of co-parenting. My husband has been hospitable and respectful towards them until now. He has played nice and stayed as far away as possible unless he needed to drive me anywhere like he did on the day that this incident happened.

The court orders state that myself and the father should be communicating on matters regarding my son. His wife has constantly overstepped her boundaries taking my son from me, bullying me, harassing me with constant emails, facebook messages and then blatantly refusing to leave me alone with my son after my sons time with his father has ended constituted them showing a lack of capacity to co-parent.

I think this definitely outweighs one comment made by my husband in the middle of an argument between myself and my ex's wife. It seems petty that they even thought it warranted an AVO. The cop I called even refused to initiate an AVO for them, they had to do it themselves, that is how silly it is.

You would have had a better win to do nothing - Definatley not a good idea to try and provoke them and guess what - calling someone disguisting then filming their response... well can you see the problem...
We have never provoked them. We completely ignore them until they do something wrong, we don't even attend changeover as it is at my sons school. My husband filmed because they surrounded our property and barricaded us in, I had to call the police. They had 2 cars and 5 people outside my property.

As soon as my husband walked out the back door to his car one of them ran to my front door to make sure I didn't leave that way with my son. The step mothers father was swearing at my husband. I don't see how filming it was harassing them after they had already been harassing us?

We did not call them disgusting and then film their response, we did not even pull our phone out on that date. And it wasn't to harass them, they had already kept my son from me as I mentioned before. It was one comment made out of frustration during an argument.
 

AllForHer

Well-Known Member
23 July 2014
3,664
682
2,894
So, first...

Don't call the police if they reach parenting orders. It's outside of police jurisdiction unless the Court makes an order that gives them power. All you end up doing is exposing the kid to a very tense situation involving the police, which is basically like telling the kid the other parent is dangerous, and the Court doesn't look highly on that because it's not really doing anything to support and encourage the relationship there, is it? If they breach the parenting orders, follow the correct avenue and file for a contravention order.

Now, how a family court takes into consideration a violence order is difficult to predict. Sometimes, judges give them weight, sometimes they don't. The Family Court tends to be more concerned with the allegations than the actual order, and whether or not the evidence of such allegations is persuasive, but it doesn't need to be persuaded that violence has actually taken place, only that there's an unacceptable risk to the child.

It doesn't sound like that will likely be established, but you do need to seriously address how you handle interactions with the ex and his wife before it really does become a problem for the child, and the Court.

If the Court finds that a relevant relationship exists and therefore, an AVO can be pursued, your husband should consider his options and how they will impact the broader picture. Consider entering an undertaking or accept without admissions. He really has no reason to be interacting with your ex or his wife, so why argue in favour of the freedom to do so?

Finding a way to co-parent is the most important thing you can do in Family Court. If your husband's involvement is stopping you from co-parenting, then limit his involvement.
 

MummyOf2

Well-Known Member
18 September 2015
28
0
121
Don't call the police if they reach parenting orders
I have avoided calling the police on every occasion except the two that I mentioned. The first time was because there was serious risk of harm and on the second occasion it was in a medical centre and there was risk of disturbance to patients in the medical centre. I am restraining myself otherwise fortunately.

you do need to seriously address how you handle interactions with the ex and his wife before it really does become a problem for the child, and the Court.
I think this is going to be our biggest hurdle and something we seriously need the psychologist at our CIC to take into account when making their report for the judge. It's jumping from mildly hostile to wildly hostile with every event that occurs.

I need my ex's wife to allow communication between myself and my ex to take place so that there aren't incidents like these where my husband is being served with an AVO for things he didn't do.

Consider entering an undertaking or accept without admissions.
Will this seriously impact how court proceeding go forward? My ex's wife has already tried to say that I was once denied legal aid for lying which was a big fat load of [email protected]#p. They are petty enough to try to use this to say that he is just accepting without admissions to get away with something he didn't do anyway.

He doesn't want anything to do with them but the orders they are seeking stop him from even living in our home or attending school pickup and drop of with me like we have always done. They are ordering that my husband is always 100metres away from them yet my ex's work place is on the next block from my home. It's completely messed up.

Finding a way to co-parent is the most important thing you can do in Family Court. If your husband's involvement is stopping you from co-parenting, then limit his involvement.
My husbands involvement usually only extends to driving me where I need to be and being my support person. He does not usually have anything to do with parenting my older son. Filming them and getting frustrated with them and saying a couple of stupid things is the only communication he has even had with them besides when he served my ex for me.

As far as co-parenting goes though, he does not get in the way of anything regarding parenting my son, the court case or even having anything to do with my ex or his family, he has barely even held a conversation with them. The most he ever said to my ex was over a year ago when he said that if my ex was ever interested in becoming a part of my sons life he would gladly step aside as the main male role model for them. My husband has been so respectful and then for them to do this...

I want more than anything for my ex to stand up for his son and start working with me to resolve this issue, instead he is standing aside and letting his wife run the show. I can't even get him to email me, his wife does it. I have tried texting him while he is at work and the only responses I get are short and rare and never about fixing our problems. I want to co-parent, I'm just not being given the opportunity.
 

MartyK

Well-Known Member
4 June 2016
419
61
794
@MummyOf2 - Judges of the Family Courts are often faced with allegations of violence and abuse, parties with current or past DVO's, parties with histories of mental health issues, parties who make applications that are not meritorious the list goes on.

In terms of the legislative pathway, more considerations than only DV are looked at.

If videoing from your own private property or calling a person 'disgusting', on one occasion, while not polite, was the worst a person could do to have a grave consequence on the orders made, then those litigants who have said or done far worse to their former partners (other parent), and had domestic violence order made against them because of it, would not be seeing their children. Most still are. Some are even in shared care arrangements.

The question I have is why was your former partners new wife even near your premises?
 

MummyOf2

Well-Known Member
18 September 2015
28
0
121
The question I have is why was your former partners new wife even near your premises?
My ex's wife refused to return my son to me during Christmas. She even made false allegations to FACs which I personally cleared up.

On the first day of school, I walked in and took my son back under advisement from FACs and lawyers so that I would not be putting my son in danger if I tried to get him back beforehand. When my ex's wife and mother, father and brother-in-laws all found out that I had my son back they surrounded my property doing everything they could to stop me from leaving with my son.

The brother-in-law even raced around to my front staircase (I live on the second floor of my building) when my husband left through the back to move our car so that he could grab my son if I tried to leave through the front.

They have been fully chastised by the court for their actions. They are fully aware they were in the wrong, yet they still insist on all this horrible behaviour including slapping an ADVO application on my husband for things they did to us.
 

MartyK

Well-Known Member
4 June 2016
419
61
794
If you needed to call the police due to the behaviours of above you could always make a cross-application for intimidation, threatening behaviour and harassment. Up to you.
 

MummyOf2

Well-Known Member
18 September 2015
28
0
121
We have been advised to be the bigger person and let them hang themselves with their own behaviour. We only seek to stop the orders being made in the ADVO application because it stops my husband from even living with us or being a part of our family at all.

We have a second child to think about to so if the orders are granted my husband would not be able to live with our son, they have a closer relationship then I do. It just would not be right to tear them apart.
 

MartyK

Well-Known Member
4 June 2016
419
61
794
You need to do what you think is right. Just keep in mind that ADVO proceedings are 'civil' and that it will likely be easier to do the cross-application, given you do have grounds for it, than to contest it. You could explain the reasoning for the cross-application to the Family Court in your materials.

You said the Judge has already chastised them. I'm assuming you mean from the Family Court? Was this in relation to the same situation they now are now seeking the ADVO for? If it is, then it will not look good for them when you appear before the Court again and the Judge is made aware of the ADVO.