VIC Family Court Order vs IVO - which one trumps?

[kimbapuppy]

Indeed. This is just one of the many stupid aspects to the system. An applicant for an IVO can get one from police with no evidence and it comes into force immediately with no immediate right of reply from the respondent, and can override the existing family law orders that the respondent spent tens of thousands of dollars in legal fees and reports to achieve. The respondent will then have to spend many thousands more to fight the IVO with private legal representation and wait over a year to get to a contested hearing. Meanwhile the applicant gets free police representation and a year with complete control over the children, and with zero consequences even if the accusation is eventually found to be based on lies. It's just appalling.

Ironically the IVO Is to protect the vulnerable and victims from dying, however in practice, the IVO is abused and the innocent becomes the victims and takes his/her own life due to the mental stress and damaging the children in the process as you highlighted. Even more people die than before.

 

[Atticus]

yes, the kids name are on the IVO including the ex.

The quickest way to address the kids being named on this is as you are doing, that is, seek leave with the issuing court to apply for a variation..... If granted, this is your opportunity to convince a magistrate that there is no compelling reason for the kids names to be included as protected persons on the interim IVO.... You will need to ask that the kids names be removed & that the contact as set out in the existing family court orders be allowed... You will need to satisfy the magistrate that this can be accomplished whilst still meeting the other conditions of the IVO regarding your ex.... Mate, this is important... if you are not confident in being able to represent yourself & the facts, do yourself a favour & spend a few hundred to get some guidance or representation

Maybe she will lift the ivo temporarily to communicate to me to pay and then she will put the IVO back.

Dosen't work that way... she dosen't get to choose to drop & reinstate it at will

 

[Atticus]

Also... Don't make this about her or her reasons for taking out the IVO.... This one is just about getting the kids names removed & the contact provisions in the family court order recognized in the varied interim IVO ... You can tackle her reasons for taking it out at all at the later trial if you choose to

 

[kimbapuppy]

Also... Don't make this about her or her reasons for taking out the IVO.... This one is just about getting the kids names removed & the contact provisions in the family court order recognized in the varied interim IVO ... You can tackle her reasons for taking it out at all at the later trial if you choose to

This is really good advice. But how do I convince the magistrate that I didn't do all those family violence allegations, it's my word against a single mum? There won't be enough time to go through the allegations one by one to disprove it.

I have a court ordered family report (filed in the family court) that dismissed my ex's family violence allegations for the previous IVOs and other allegations in her affidavits. The psychologist found no evidence of family violence comitted against the children as well. This report was written last year. The previous IVOs only had 1 condition which was not to commit violence (1 couldn't be revoked as it was issued by the police, the second was withrawn).

Is this sufficient to vary the order, what else can I do when presenting my case to the magistrate?

Btw, for fyi the second IVO was placed on me to blackmail me to remove an IVO I had on her brother for phsically assaulting me in front of the kids.

Yes, I represented myself in the past and it turned out to be a disaster, went backwards by a million steps.

 

[Atticus]

If you want to challenge the IVO in February the family report may be useful in as much as it shows she may have past form in false or misleading accusations.... Unfortunately that can't discount the possibility that she has a genuine fear of you now... To be honest it may well come down to the magistrate of the day...

YOUR MAIN FOCUS for now, should leave to vary be granted, is convincing the mag that there is no compelling reason to have the kids named as protected persons & that the contact as per FC Orders be reinstated... It sounds like you need to see a solicitor along with all the facts for guidance on what you need to present & how best to do it..

 

[kimbapuppy]

If you want to challenge the IVO in February the family report may be useful in as much as it shows she may have past form in false or misleading accusations.... Unfortunately that can't discount the possibility that she has a genuine fear of you now... To be honest it may well come down to the magistrate of the day...

YOUR MAIN FOCUS for now, should leave to vary be granted, is convincing the mag that there is no compelling reason to have the kids named as protected persons & that the contact as per FC Orders be reinstated... It sounds like you need to see a solicitor along with all the facts for guidance on what you need to present & how best to do it..

In the application to apply for leave/vary the order, there is a question that asks for "What are the change of circumstances that demonstrate/justify the need to vary the order"?
What should I answer this question?

The ex took out the IVO because she doesn't want to pay me child support (and I have evidences to substantiate this). I agree with you that I shouldn't use this reason to push to vary the order. My arguments to reinstate the children's orders:
1) Family Court Final Children's Order were made a month earlier (and the exwife declared there was no abuse/family violence and that the children are not at risk of abuse/family violence).
2) I have had a long standing shared cared arrangements with the children since separation without any family violence incidents.
3) Family Report (a year old) dismissing the exwife's allegations of family violence.
I don't know if these reasons are strong enough for the magistrate to reinstate the family court order considering the magistrate will err on the conservative side to prevent another Luke Batty.
What are your thoughts, and can I use the reason that my ex taking out the IVO because she doesn't want to pay child support, to give my application more weighting? If not,what else can I use to give it more weighting?

To make it easier for the magistrate to vary the order, should I propose that the kids are under supervision (by my parents at all times)?
I am desperate as I don't want to miss out my daughter's 8th birthday in 2 weeks time. What else can I put in my application to increase my chances of the order being varied?

I have an Affidavit (meant for the Federal Circuit Court, however the urgent application was rejected) that goes into the above in more details (and have annexures of documentation evidences) - is this a good idea to hand to the magistrate? Somehow I have a feeling this is a bad idea so keen on your thoughts.

 

[Atticus]

In the application to apply for leave/vary the order, there is a question that asks for "What are the change of circumstances that demonstrate/justify the need to vary the order"?
What should I answer this question?

Basically you want to satisfy the mag that including the kids as protected persons is not warranted, & further that varying the interim order to allow visitation as set out in the current family court orders remains consistent with the best interests of the children...

I think the points 1, 2 & 3 as you have set out is good... Offering supervised visits with your parents is a good option to include in case the mag is erring a bit.

Remember... This is not about making the applicant (your ex) look bad. It's all about seeing the kids as you were before this.. As such, I doubt that providing pages of affidavit with annexures is necessary.... Again, I personally wouldn't be mentioning the child support issue as a possible reason for her application at this point.... It's only your opinion after all , but it will confirm that there were arguments that related to the children.

These are just my thoughts & I am not a lawyer, so I repeat what I have previously suggested.... please consider getting some proper legal guidance on what to present & how best to do it. You want to maximize your chances of success

 

[Muxaul]

Mate, if your ex had made false allegation in the past, do consider applying
Vexatious litigation restraint orders against her
3.1 - Vexatious litigation restraint orders

 

[kimbapuppy]

Mate, if your ex had made false allegation in the past, do consider applying
Vexatious litigation restraint orders against her
3.1 - Vexatious litigation restraint orders

Wished I knew this when my ex put 2 IVOs on me last time. This IVO was granted because of the 2 past IVOs.
Thanks so much for the info!

The ex has lied under oath at the magistrate court and was caught out y the magistrate and no action was taken.
I wonder what penalty is in place for this? Also, the ex failed to provide further and better particulars to the allegations in the past IVOs, TWICE and the magistrate didn't do anything.

 

[Muxaul]

Wished I knew this when my ex put 2 IVOs on me last time. This IVO was granted because of the 2 past IVOs.
Thanks so much for the info!

The ex has lied under oath at the magistrate court and was caught out y the magistrate and no action was taken.
I wonder what penalty is in place for this? Also, the ex failed to provide further and better particulars to the allegations in the past IVOs, TWICE and the magistrate didn't do anything.

Based on what I read from the above link, Under section 3.1:
"An Extended LRO made under section 19 prevents a person from commencing or continuing a proceeding relating to intervention order legislation without leave of either the Magistrates’ or Children’s Court."

My interpretation is once succeed, you may able to STOP her current IVO proceeding unless she is granted leave by the court. To obtain court leave, the burden of prove is put on her once again. And to my understanding, until then, Interim IVO should be deemed invalid.

Under Section 3.1.2:

"The making of an Extended LRO relating to intervention order legislation contains three elements. The court must be satisfied that:

• The litigant has frequently commenced or continued;
• Vexatious proceedings;
• Under intervention order legislation."

Looks like you are qualified for this order.

As I have not personally applied this order nor have any real involvement on this, I have posted another thread to seek clarification and experience from someone who had won this order. Hope someone gave give all of us some knowledge.