WA How to Prevent Harassment When Restraining Order has Expired?

[NDM0808]

Hi all

My Violence Restraining Order expires today which effectively means there is nothing to stop my ex from coming to my house, phoning me, emailing me, etc. He won't physically hurt me now that he is clean, I no longer have that fear. I am however concerned about the constant harassment I am likely to endure.

He is very bitter - he accepted that he had drug & alcohol addictions, gambling issues and was mentally unstable, however, he wouldn't accept that it was over. I had no choice but to apply for a VRO which he accepted without admission.

He hasn't seen our daughter (who is almost 12) for several months now - he moved about 2 hours away and works at night - it appears every night. As predicted, when he moved I knew it would only take a few weeks before he stopped bothering (he doesn't bother to pay child support either).

The last time he actually said he was coming down to see her, he sent a text half an hour before the agreed pick up time and said he wasn't coming. He has not requested to see her since. One of the orders in the VRO was that she was to call him 3 times per week - she has fulfiled that - always within the required time slot although he doesn't always answer. Sometimes a couple of weeks goes by before she actually speaks to him.

My concern is, he will turn up at my door demanding to see our child. He has told her when the VRO expires, it will be a lot easier as he can come and see her whenever he pleases (there are no family court orders - only an informal agreement documented by his lawyer, that she will live with me). He asked her for our address via text - she ignored it but he got it from his lawyer anyway and his parents had it as they would pick her up.

I have sent him a letter via email stating I do not wish for him to come to my house, etc, to approach me, call me, etc. That handover will take place at a prearranged meeting place and if he would like to see his daughter to please email me in advance to make arrangements. He has not commented and he has not answered his daughter's calls since then.

If he does start harassing me, turning up at the house, our daughter's school - what can I do?

 

[AllForHer]

I don't think I need to really say this, but for the benefit of other forum users, at least, you must understand that there's a fine line between what the Court considers communication for the purposes of parenting, and what the Court considers domestic violence by way of harassment. If his reason for contacting you is to discuss, or spend time with, the child, even if that discussion becomes heated because one of you isn't getting what you want, the Court is unlikely to view it as an act of domestic violence, particularly where there's no current order in place preventing or limiting contact.

So, I would consider there to be three real options.

First, you could try to have the VRO extended, but if he has at no time been convicted of breaching the VRO that existed previously, the Court is extremely likely to dismiss the application because you won't be able to show there's a future risk of violence reoccurring.

Pro: You could get an extended VRO for protection;
Con: it probably has a fairly low chance of success.

Second, you could consider pursuing consent orders for parenting that restricts how and when you and the other parent have contact with one another. It's common to see the Court make orders for changeovers to take place at a public location like a local McDonald's, and it's also common for the Court to make orders that communication between the parents may only be written via communication book that passes with the child between the houses. This eliminates the likelihood of conflict occurring, but still enables parents do discuss parenting issues as required.

Pro: A parenting order will stabilise the care arrangements for the child and place restrictions on the actions of the father, such as stopping him from collecting the child from school without your knowledge or attending on your property;
Con: If you and the father can't agree about what's in the consent orders, you might end up in Court, which can be a costly and drawn-out process.

Third, you could wait and see if your fears actually do come to fruition. If the father is now sober, has not breached the preceding VRO and has not yet attempted to make any genuine contact about the child, then he may well have gotten his act together and may have no intention of coming to your property. He may simply want things to just be civil, or he may do nothing at all.

Pro: Your fears may not be founded and you don't have to spend money on legal fees dealing with a problem that proves to be non-existent;
Cons: You can't exactly predict what will or won't happen.

In my view, it's your third option that you should consider going with for now. An extended VRO probably won't succeed without evidence of continuing risk, but proceedings for parenting orders absolutely guarantees that you'll have to have contact with the father, whereas if you just sit tight and wait, you might find that you don't have to have contact at all.

 

[NDM0808]

Thanks, I perhaps should have pointed out that he had been convicted and charged with breaching of the VRO - a total of 10 breaches. He was forced to attend a DV program and was put on a 6 month good behaviour bond.

 

[AllForHer]

In that case, you may have luck extending the VRO for another two years. It may be worthwhile trying, at least.

 

[NDM0808]

Thank you. I might wait, see what happens. If he does start harassing me, then I guess I could assume I would have a very good case to have another VRO. We are talking about a man that is refusing to do a property settlement as well - we offered him 50% and he still said no. Probably as he knows the minute any money touches his account, the ATO and Child Support and all his other creditors will probably garnish it.

My only option is to take him to Court but I can't afford it and no one knows where he is anyway. Even Child Support can't find him. Sigh. We have a phone number and that is it.

 

[AllForHer]

Have you talked to Legal Aid?

 

[NDM0808]

Oh, I have a lawyer, which I can't afford. She very kindly let's me pay her $50 a fortnight until it's paid off. She is urging me to file the Initiating Application - she believes it will never get to Court that he will negotiate but I know him - he is stubborn and believes he should have it all.

We are only talking $100K here and that he shouldn't have to pay child support, blah, blah, blah. His lawyer is very pompous and intimidating and repeatedly asks the same questions. We now just forward the original answer to him. It's a game sadly.

 

[AllForHer]

Some things to try and remember about lawyers is they can give all the legal advice they want, but at the end of the day, they still have to follow the instructions their client gives them. Every time you send correspondence, it's the client who advises how to respond, not the lawyer. Thus, while the lawyer might seem pompous and intimidating, he's really just doing what he's told.

They're also getting paid a lot of money for their role in your dispute. Every time you send an e-mail, their client pays them to read it, and their client pays again to respond to it. It's in the lawyer's best interests to draw the matter out for as long as their client wants them to, because they're getting paid just to be a part of the process.

However, even if negotiation is the most painful process in the world and it seems impossible that an outcome will be reached by consent, most lawyers also don't want to go to trial with a bad client, and they're very skilled at dissuading their client from doing so. Most will hire a barrister, which can cost $8,000-$10,000 per day of trial, plus the lawyer will still be present which can be another $4,000 per day of trial, and they will usually advise that what they're likely to get out of going to trial will be lost on legal fees anyway, so it's better to settle.

This, I would say, is particularly true for an asset pool of only $100,000. Most property settlements that do go to trial can cost in excess of about $30,000. Let's say you've offered a 50/50 split (which is actually very generous of you, considering you have care of the child), which would be $50,000, and then he goes to Court and ends up with only $40,000, less legal fees of $30,000, and he walks away with $10,000 - a fraction of what was originally offered, and that's provided the Court doesn't also make a costs order against him.

Of course, he won't find out about the reality of this situation until he's actually facing a trial because until then, it's not beneficial to the lawyer's pockets to emphasise this reality in any meaningful way. In my experience, even the most stubborn individuals will settle when they are told how truly detrimental it would be to them to fight it. I was absolutely convinced that my husband's ex would never agree to 50/50 care of their daughter - she is an intensively stubborn woman whose stubbornness has led to two restraining orders against her, but honestly, I could even see the strengths in her case as to why we wouldn't get what we were asking for, but the moment her lawyer told her that just the barrister would cost $8000 a day for trial, she entered into negotiations for consent orders with us and we got the 50/50 we were after.

In short, leading up to trial, it's basically a contest of head-to-head to see who will fold first. Many don't settle until just before, or on the day of trial, but they still settle, nonetheless, and you'll have several mediation conferences in the intervening period to give you both an opportunity to assess how much you're each willing to sacrifice. What is a definite truth is that he won't get anywhere near 100% of the property. Even 50% is generous, really.

 

[NDM0808]

Thank you for your wisdom.

Mediation failed - well he didn't show up. I'm really at a loss as to what to do as I cannot get an address for him to serve papers in any case. I will instruct my lawyer to send one more letter to his lawyer (I will draft it) and he if refuses to accept it, then I guess I have no choice but to head down the Court road.

Sadly, my ex won't care if he ends up with nothing - as long as I end up with nothing. The fact that any money I have directly impacts on the life of his daughter is lost on him.

 

[AllForHer]

If he has a lawyer, you can serve the papers on his lawyer.

If he's that difficult, you could also seek an order for costs so he'll have to pay not just his court costs, but also yours, as well.