QLD DVO Claim While Undergoing Parenting Case?

[Thefactsonly]

Long time since being in here but now a new question - what's the use of a DVO in an ongoing parenting case? 12 months in and there is little progress but still at directions hearings. It doesn't seem that they will ever agree but one party now puts a DVO claim against the other (although evidence is old, it's all in written form and has harassed other party significantly in past).

What difference does that make to a parenting case? Are they not heard in different courts? I'm a little lost as to why they would follow this path now.

 

[Migz]

Going through the same thing, and story sounds nearly identical. Have since been to Federal Circuit Court since she put it on, and the ex needed to get it across to the judge straight away that she had taken out a DVO.

The judge was very good about it, and asked her, what he was charged with on the day of the DVO taking place. Was it grievous bodily harm, assault and battery, sexual abuse, or verbal abuse abuse? To which the ex said, umm, well, he wasn't charged with anything... To which the judge replied, OK, Let's move on.

So why take out a DVO at this late stage? Simple, its called "one upping" and as you are coming to the pointy end of the case and you might end up with what you want in your orders. They will try any trick in the book.

My opinion, save your money, consent without admission, use the money for your fed circ court trial, and take it upon yourself to immediately enrol into a DV group therapy course, or attitudinal change course, whatever they call it in your state. Runs between 16 to 20 weeks, and quite frankly its been a real eye opener, and tools they give you are quite handy when having to deal with a crazy ex.

 

[AllForHer]

Mm, sounds like a tactical move to gain the advantage, but unless the DVO is accompanied by an actual charge, the order alone won't prove the allegations of violence that your ex is probably trying to make.

Save yourself some time and money by just accepting without admissions and just focus on the parenting matter.

 

[sammy01]

What does a court look at in parenting cases?

Parenting cases - the best interest of the child - Family Court of Australia

The second point mentions 'violence'.

So a parent that wants to keep the kids away from the other parent can claim violence to get an upper hand and play the victim... Given all the publicity about DV in the media in the last few yrs, accusation of DV are common place. In fact it is almost impossible to read a case without violence / harassment being used by one party...

Sad state of affairs really - But those folk at the front of the room with the funny wig, hammer and all that are pretty savy. So once they've worked out that one party is trying to pull one over them, they don't respond all that well.... Most important thing in court is credibility... Once you lose that, your case starts sinking...

Migz is right - it is 'one upping' spot on.... He's a smart fella... But more importantly, don't play the same game. No need for you to go into court and scream liar liar pants on fire.... It is not your job to make the ex look like a fool. If they are a fool, they will prove that without your help. That is why they are fools...

Your job is to prove that you and the ex can effectively co-parent. Sure there has been some negative issues, obviously - if there wasn't you'd still be living in happily ever after, but you have to establish that you feel that you will be able to effectively co-parent with the fool (oops I meant ex) and you can remain child focused and your priority is the best interests of the kiddies...

Read that last paragraph again... Memorize it... Understand that it is better than Shakespeare as far as legal stuff goes.

 

[Rob Legat - SBPL]

From the very small amount of experience I have in the Family Court, the DVO is a common add on. Unless it's actually warranted, it amounts to either a speed bump or a roadblock - largely dependent on the attitude of the judge you get. In Family Court, that can vary. As it becomes more prevalent, it will become less and less useful the more they're put up without adequate grounds. However, they'll keep being used while they remain in the best interests of the client unless there is some sort of penalty imposed for an abuse of process. And given their nature I don't see that happening.

 

[Thefactsonly]

Thanks all. What would likely happen if it's contested yet is found to be warranted...so not accepting without admissions but rather fighting it but being found guilty?

Would that change anything?

 

[AllForHer]

Well, if you contest it, a few things could happen.

The first is that the evidence supporting the DVO will be tested at trial, in a State Court. The threshold for what is considered 'domestic violence' is pretty loose at the state level because they prefer to hand out DVOs fairly liberally to ensure they're providing blanket support to potential victims, with no real detriment to the respondent since it's an order, not a criminal conviction.

If the Court tests the evidence and determines that violence has occurred to the threshold required under state law, which is a necessary element to prove before the Court can issue a DVO, then a DVO will of course be issued.

But even though you won't have a criminal convictions or charge associated with the allegations, what you will have is a finding from a Court of law that you have been violent.

In Family Court, a DVO accepted without admissions means the allegations of violence remain as just allegations, but a DVO made after trial is supported by tested evidence that you have been violent, and that's harder for the Family Court to ignore.

 

[sammy01]

'On th grounds of probability'. I'm in nsw...but my understanding is that is the threshold is not beyond reasonable doubt... is it probable...? Well that is a pretty low threshold true...

So this is all just my opinion...it is a very sad state of affairs. The powers that be have passed laws that assume guilt and they have done so in response to the very loud protests about DV... So the politicians can chant about how they have fixed the problem.... They have not. Sadly.

But they have created a scenario where AVO is a strategy and using the strategy when there was no DV comes with no legal consequence, but magistrates are smart punters. So my opinion is to accept without admission. Why?

1. Waste of time fighting it

2. Put your energy into family law.

3. Family law judges know that the system that they have committed their working life to is being abused for a political agenda and they are not impressed

 

[Thefactsonly]

Thanks for thoughts. So if it was contested, and obviously this happens in a different court to the family matters, does it impact time wise on the family matter? As in would the presiding judge be notified if a dvo application was put through?

I guess I'm wondering if the courts 'talk' if that makes sense... it all seems like a big big mess this law matter.

 

[sammy01]

Family law magistrates are smart punters... They see this all the time... My solicitor told me to accept that AVO without admission. If the ex wants to make claims of DV in family law, she will have to provide sufficient evidence to convince the magistrate that the DV is so bad that the kids need to be kept away from you as it is not in their best interest because of the DV...

Now the other thing is they are smart, so even if there was some DV in the past, now that you're not living together the opportunity for DV is no longer present...