NSW Falsely Accused of Domestic Violence - Does Wife Need Evidence?

[DadonaMission]

Hello,

I have been falsely accused of child abuse and domestic violence.

I have not seen my children in more than 2 months. I have been offered only supervised access to the children at about that time. There is an interim AVO which I am fighting. It was a once off incident which occurred post separation and was so minor but now the police have given me another set of statements from her and her mother (also there) which exaggerates the AVO incident further.

Yesterday I had the first mention and the parties couldn't agree because I don't believe I need supervised access. My wife's barrister only had to mention the AVO in the first sentence to the judge and he ordered immediately that I receive only supervised access. The judge ordered children's lawyer, children's psychologist report (something like this I don't have the orders right now). My wife was so well represented.

Regarding the AVO there are now 3 different and inconsistent accounts of the incident; the first when the incident occurred, another statement to the police which adds assault (something I was not questioned on) and was allegedly noted on the day and also a third recollection which is different again and is contained in her family law affidavit.

I have produced a family law affidavit where I deny all her allegations of child abuse and family violence. She has not produced any evidence such as police reports (other than the current AVO) or DOCS or any other such evidence. Question, does she need to? We were married 12 years and there was never any report of violence or child abuse.

My family lawyers advice has been to submit nothing in the way of subpoenas and says that we just have to sit back and make them have to prove the allegations; that it's her word against mine and that she has no evidence other than her affidavit. My wife's lawyers have thus far not produced any subpoenas.

The interim hearing is coming up soon in October.

Any advice is greatly appreciated.

 

[AllForHer]

I'm not clear on what your question is. Can you please clarify what you'd like insight on?

 

[DadonaMission]

Ok sure.

1. How much weight on child access does a situational advo have at the interim hearing?
2. How long and involved is the interim hearing? Does the judge read both of our affidavits in detail? If so, if he's not convinced there has been child abuse or family violence is it possible he will make an order for me to get significant access?
Actually my wife's accusations are quite frivolous. None of it serious in her affidavit and in my view the court should see she is wasting everyone's time. Her lawyer should also be responsible.
3. If I don't get anywhere near the child access I desire at the interim hearing when will be my next opportunity?
4. Is it worth my side getting subpeonas to police and docs to show there is nothing there?

 

[AllForHer]

Cheers.

1. Care arrangements for children supersede AVOs insofar as is necessary to facilitate the child spending time with each parent. If an AVO is already in place, and there have been no allegations of incidents occurring since the AVO was implemented, the court may determine that no additional protection is needed in terms of care arrangements at this point, so it may order unsupervised time. Of course, outcomes in court can never be predicted because there's so many variables, but it is a possibility. If there is no other supporting evidence from a third party, such as a police report or a DOCS report, then the court will likely give the allegations even less weight because the only evidence is he-said-she-said, which doesn't have a great deal of credibility. Remember that AVOs don't require a conviction, they're just a measure of protection.

2. Interim hearings usually last only about five or ten minutes. The judge is unlikely to look at the affidavits in full detail because the evidence can't be tested anyway, but s/he will notice if there's no third party evidence supporting the allegations made in the affidavit. If she hasn't bothered to report to DOCS or the police, the allegations made can't be that serious, anyway, can they? That's often the court's interpretation, anyway.

3. If you don't get the time with your child that you're seeking at interim hearing, you can file an application in a case ahead of the next hearing date to request changes to the interim orders that facilitate more time between you and your child. Just make sure there are no intervening incidents, and it also helps to show the court you're committed to co-parenting, even if your ex doesn't want to. The average time between interim hearings is anywhere from two months to six months, but I've always found it to be around three months.

4. Is it worth getting subpoenas? No. The burden of proof for allegations of domestic violence is on the party making the allegations. Thus, it's up to the mother to prove the allegations she's made against you make you a risk to the children. It's not up to you to disprove the allegations. People can't simply make up a story and then sit back while the alleged perpetrator is made to flounder around having to prove their innocence, after all, so I agree with your lawyer on this one.

Look, there is nothing your ex can say or do that the judge hasn't seen before - particularly if your case is on Judge [D]'s docket. Judges are experienced, realistic and firm, and you'll find that out fairly swiftly, I think, at interim hearing, but so will your former spouse - it's not unheard of for judges to give parents a good dressing down to try and persuade them they don't want the court deciding their parenting dispute for them. Try and remember as well that her lawyer has to act on her instructions, even if it's against his own advice to your ex. Lawyers will often work to avoid final hearing if they feel the other party is a reasonable person, so you have a better chance of reaching consent orders if you always show that you're a reasonable person.

Trust, though, that the judge wants your kids to have a relationship with you. He's there to uphold your kids rights, after all.

 

[DadonaMission]

Thank you.

My lawyer told me that the interim hearing would go for longer than that perhaps 1-2 hours. I don't know. I'm so worried that the judge won't properly read her affidavit. She and her lawyer are abusing the system. My lawyer also told me after the interim hearing the orders would be in place until the final hearing and no other chance to fight further. Not true? If not true then what should I think of my lawyer and their experience??

They have appointed an independent child lawyer who apparently will read the affidavits. Thank god. Will this be in detail? There will also be a child inclusive conference or something. I hope this helps me too.

I've just read the interim and final orders she's seeking. They are so unfair.

Basically I have to do 4 anger and parenting courses before supervised access can stop then over 21 months I gradually go from unsupervised Saturday daytime a fortnight to 1 weekend a fortnight. I don't even get their birthdays; only a Saturday for 4 hours before or after their birthdays.

So I end up having to earn 1 weekend a fortnight with no evidence of anything just he said/she said (and not even bad stuff). All there is is the situational avo which happened recently. Doesn't make me not a great and capable father.

This would destroy my relationship with them.

There is an avo where I took her phone outside and read it where she says I pushed her and threw a chair down to stop her following me. I disagree, however, what her lawyer has down is fill the Risk form with things like "He through a chair at me on this date and an avo was taken out". Imo this is unethical and so unfair. How do you stop these vindictive women? I'm thinking to get even more expensive lawyers.

Can someone provide an idea of the normal final parenting orders if minor child abuse and family violence claims are not proven. I live close to where they would live. I have spent a lot of time with the children and bringing them up.

 

[AllForHer]

My husband had allegations made against him - that on an occasion when the ex took his phone (not the first time she had done so to contact and threaten his then partner/s), he "put her in a headlock and choked her until she couldn't breathe" to recover it. There was a DVO ordered against both of them, and we applied for parenting orders shortly after. We won 50/50, which is better than what he had before he allegedly "choked" her.

 

[AllForHer]

Summary: one incident of alleged domestic violence doesn't have much impact on proceedings.

 

[DadonaMission]

I need some advice from an independent family lawyer who is willing to be paid to read the affidavits and to provide direction.

I need someone experienced with tackling false accusations and mental health issues of the accusing party; ideally.

We need to be prepared for the interim hearing. I am wondering whether we should be making counter accusations now because of her recent actions which have not been in the children's best interests.

 

[DadonaMission]

Interesting, but they both had DVO. Anyway she has made a couple of other unfounded statements in her affidavit and also in her risk doc added dramatic lines such as "throughout the marriage he has been physically violent such as throwing me into walls, pushing me, hitting me and throwing garden sheers at me". Yes garden sheers.

She is going for final orders of supervised access until I complete 4 courses in anger management and parenting. Then I can have a Saturday every fortnight for 3 months, then I can have 1 night per fortnight for 6 months, then I can have 2 nights for 9 months, then I can have a weekend per fortnight. I cannot see the kids on their birthdays only the Saturday before. The kids are to be placed onto the airport watch list so I can't take them on holidays overseas which we used to do.

 

[okanynameyouwishthen]

mate I feel for you as I too have been forced to sit by whilst my relationship/bond with my child is completely upended. Has almost been too much to bear personally as it was my decision to end the farcical and dysfunctional coupling that we had become for the sole reason of shielding our daughter(5 at time) from ever increasing nasty verbal altercations,obvious lack of love and mutual respect ( by both ) and our both being 12 years into it we were well and truly in that rut.......

basically we both knew it was over & for child's sake had to end but for a while both too lazy to do it.I thought long and hard about making that final call & asking her to leave & go stay with her parents & honestly feel put my own needs/wants & self serving thoughts as a distant 3rd purely for our daughter to be raised & have a father figure in her life instead of the pathetic "whipping boy" 5 years of her totalitarian ruling had seen me become.

Her own mental health issues were never seen as a problem even to the point of her OCD slowly swamping the home for living space & I'm sure she longed for my return home from f/t employment each day simply to have her inept,bumbling,hen pecked useless sidekick to vent her daily stresses etc. at. A simple request to quieten down & talk out in rumpus room when daughter was asleep would be met with the ridiculous accusations that I was undermining her parenting.Got so stupid that 3rd nappy change I was banned from any more as I took too long,bathing daughter stopped due to the odd tangle in child's down to her bum hair that were exacerbated due to her sensitive scalp.I pegged washing out wrong,I unpegged washing wrong,folded clothes wrong along with many more illogical claims .

The one that I nearly lost my mind to was after remaining silent for days to the fact of there not being clean crockery etc * my offers to do a load of dishes turned into claims of failure supposedly on my part.One night as she slept together with child after putting her to bed I crept silently around my own kitchen trying to fill,wash & stack some much needed dishes only to have ex come flying in with customary claims I was taunting her but also to my stupidity that " I was doing them in the wrong order " !

Same pathetic immoral lawyer instigated action befell me with what is becoming stock standard action by these unscrupulous litigation seekers...Interim Intervention Order sought at police station & who are under increasing pressure to assist any woman seeking one no matter how flimsy the detail they can peruse as they type up her affidavit, due to political & increasing media demands.Here in SA it doesn't appear as easy to be not slapped with one as AllForHer would allege & I dare say same in your state if you read the fine print to the legislation .Cause one to "fear" for their safety !!

How can you prove under civil court rules ( AVO is civil & breaching it is criminal ) what someone fears or doesn't fear ? Near impossible & therefore any court will " err on side of caution " & grant the slanderous abuse of process demand.So good luck there brother.

DO NOT BREACH THE ORDER ! Interim or final as to do so will see a frothing at the mouth counsel for ex painting you as evil as a Nazi SS guard totally unable or unwilling to take court orders seriously which then means you must be seeking paybacks as it's all about you and your wants isn't it Mr................ !!??

I begged for an ICL to come on board & was presented with one that is on too familiar/friendly terms with ex's counsel for my liking & recommendations near word for word same as. I have recently sent her correspondence seeking clarification as to why she has breached a handful of professional conduct rules & protocols that she has supposedly taken an oath to abide by together with her complete reversal to guidelines she must follow as an ICL more importantly.

I am a SRL that has provided absolute ,masses of evidence that counters ex's claims & sheds light on true history of our time together & am awaiting judgement as we speak but I fear I will have to fold into the establishments blackmail demand & pay exorbitant monies to buy justice for my little girl & I through the appeals process as I don't hold out much hope the judge seen the truth in this matter & it reeks of denying me procedural fairness throughout.

Do everything asked of you mate it's all you can do in a femininely biased arena such as our Family Law in this country at present.Good Luck.......fight the good fight & always think of the kids= they damn well deserve a dad in their life & research plenty of now available stats & data that shows what awaits these poor innocent victims should they be ordered to be raised by a self serving single mother !