VIC What to Do with Interim Intervention Order?

[GlassHalfFull]

I was at court yesterday, it would be an excellent idea for you to visit one.

Yeah, that much I can agree on. I plan to go tomorrow or Friday if possible. I'm interested to see how they play out. I doubt my ex is going to withdraw the application though, since it's the police prosecuting her case, not her.

Technically she isn't even in control over whether to drop it or not from what I understand, although I am sure they would consider it if she did not want to pursue it. I'm not even sure if she's expected to be in court for the initial hearing. It may just be the police prosecutor and I for all I know. I will find out soon enough. Congrats on your ex dropping the case. Must be a relief. What were your thoughts on the other cases?

 

[Rod]

I plan to go tomorrow or Friday if possible.

Call the court first. Courts can have special sitting days for IVOs. ie not every day will have IVO applications heard.

And good result Miguel.

 

[miguel]

You should. I say 'should' because in theory you get the opportunity, but sometimes it is forgotten about.

We are now seeing instances where people abusing the system are having kids taken off them because they can't and won't co-parent, but in my view more still needs to happen. When someone, anyone, is proven to have lied in an affidavit in order to deprive a parent of access, they should be denied parental responsibility for a period of time and ordered to undertake parenting courses which they MUST successfully complete before being given another chance at shared parenting.

Yes

Yeah, that much I can agree on. I plan to go tomorrow or Friday if possible. I'm interested to see how they play out. I doubt my ex is going to withdraw the application though, since it's the police prosecuting her case, not her.

Technically she isn't even in control over whether to drop it or not from what I understand, although I am sure they would consider it if she did not want to pursue it. I'm not even sure if she's expected to be in court for the initial hearing. It may just be the police prosecutor and I for all I know. I will find out soon enough. Congrats on your ex dropping the case. Must be a relief. What were your thoughts on the other cases?

Rod says the magistrate can take the kids off the order although that contradicts what I was told yesterday by a VLA lawyer. I believe Rod as the VLA lawyers tend to say things to push the numbers through. Therefore think about how you can convince the magistrate to get the kids off the order. What words can your barrister say that might sway the magistrate. Your barrister isn't your mate who'll do the right thing wink wink nod nod.

Tell the barrister things like I accept I harmed my partner and am committed to not doing it again. Her character might be partly to blame but I could have avoided the situation. I've undertaken, undertaking or enrolled in a mens behavioral change program, I'm open and willing to change, I accept my actions have consequences. Since the IVO serving I've been careful to abide by the orders. I have not committed FV since that date, I have not breached the orders, this proves that I am unlikely to do it in the future.

The most important thing for the future is being a good father, I want to be a great role model for my kids. If you haven't enrolled into a mens behavioral change program do it tomorrow. The provider needs to be endorsed by the say no to violence group.

The key is you must convince everyone that you will not commit FV in the future. As Rod mentioned before FV has a very broad meaning. And then do it.

 

[miguel]

Yeah, that much I can agree on. I plan to go tomorrow or Friday if possible. I'm interested to see how they play out. I doubt my ex is going to withdraw the application though, since it's the police prosecuting her case, not her.

Must be a relief. What were your thoughts on the other cases?

I'm f***ing pissed off. I witnessed kids torn from their dad's ex partner. In some cases the first thing Dad will know is when he's tossed out of the house by the police in the next couple of days. It made me sick. The overwhelming testimony was by legal aid lawyers, the re-occurring theme was controlling behavior 'he husband objects to my client seeing x, the husband is not giving my client the money to run the family home (because she spends it on ice), the husband is intimidating, he uses strong language making my client fear for her safety, he threatens my client physically. No proof needed, just words. Hence my earlier commentary on control.

I watched 8 cases, 5 mother's getting interims ex-parte like confetti. 2 lesbian couples both applicants denied. In both cases the applicant was given a hard time by the judge in direct contrast to the 5 mothers. And 1 husband with a barrister prosecuting an ice addict mum. The mum had pushed Dad off a chair, had physically assaulted the kids, kids often not at school, kids ringing their grand mother (Dads father) saying mum had locked herself in a room for 2 days, they where hungry. Nup, not FV, application dismissed.

It's a f***ing joke.

With regards to my ex, she had 1 witness, a family member. I had 5, 3 of whom she would have considered allies. They are sick of her manipulation and lies. They know I'm a good Dad. I suspect this lead to her lawyer suggesting withdraw. I also cross applied a couple of weeks ago but didn't get an interim. I withdrew this too.

Put the ALP last at the upcoming election, as they've been infiltrated by special interest groups. Although there is bi-partisan support, the LNP are less susceptible to the types of special interest groups pushing this agenda. Putting the ALP last on the ballot is the only way to send a strong message that this isn't the right way for change. Tell your mum, dad, uncles, aunties and siblings to do the same. Tell them to tell there friends. They need to go, this isn't fair.

 

[GlassHalfFull]

I would hope that you would have the opportunity to explain to the magistrate the consequences of the order for your existing family court orders, and for him/her to be reasonable in creating them. But I've started to become accustomed to a legal system in which fairness to the respondent is less important than fulfilling political goals so as to be seen as 'tough on violence'.

You should. I say 'should' because in theory you get the opportunity, but sometimes it is forgotten about.

Hi Rod. I forgot to report back after my IVO hearing. Long story short, I did request to vary my interim order to remove my kids from it so that there would be no potential for conflict with the family court orders that I hope to get, but with the family court hearing just a week later, the magistrate said no and adjourned for another 2 months to see how the family court case progresses.

The magistrate also said that removing the kids from the order to avoid conflicts is not going to happen because they are very familiar with the interactions in the family court and would only put an order in place that overrides the family court order if there was a particularly good reason to do so. In other words, she did not see it as a good enough reason to remove them.

Anyway, so even though I decided to contest the IVO (and reserve my right to consent without admission down the track if I change my mind), the magistrate basically just delayed my ability to contest it by two months by setting a date two months later for further mentions, rather than giving me a contested hearing date. Very frustrating, considering I already had to wait 2 months just to get my first mentions.

So I don't know how soon after my further mentions date that I'll have a contested hearing date but it will be AT LEAST 4 months from the date the interim order was made against me. If it's another 2 months before I can contest it then it will be 6 months delay before I even have an opportunity to fight back. This just isn't fair and reasonable. Justice should be quicker than this. My only consolation is that my family court case is likely to progress faster than that, and is likely to have more bearing on my access to my kids anyway. At least, I hope.

 

[sammy01]

OK so it hurts. But whether or not the kids are on there or not is irrelevant. Especially as I reckon you'll have interim family orders providing access to the kids before the avo is finalised. So hypothetically kids are removed and no family court orders. You can technically go pick up the kids from school and you don't need the ex to agree. Great... But it will make her mad. AVO or not.

A mad ex is a bad thing. She will make sure you know it. So remember family law is a marathon, not a sprint. You want to do all you can to make sure in 2 yrs or so the avo is long gone and you're getting good access to the kids.

But I reckon the avo will get backdated to when the initial application was made. So that is one small win.

Yup the delays are bad... But that is the system you're working with

 

[Rod]

Ta for the update.

Did you have representation on the day?

Did anyone attempt consent orders with the police on the day?

The magistrate was butt covering effectively waiting to see what the FCC does, while at least giving you a chance later. Remember that you now have a chance for the FCC to override the interim IVO.

 

[GlassHalfFull]

Did you have representation on the day?

I decided to go with the duty lawyer on the day, and although she was very good and gave me more time to listen to the details of my case than I was expecting (about 45 minutes all things told), it was almost a disaster. I checked in to the court in the morning and told them I wanted to speak to a duty lawyer.

They told me to sit down in a bank of chairs and wait to be called by the lawyer. I waited for about an hour and was called into an office that turned out to be a respondents family violence counsellor, who tried to talk to me about 'my violence' and had I considered seeking help for it (so much for being innocent until proven guilty in these courts, but I appreciate their efforts to try to get people to confront issues like this outside of the actual legal process). I tried to explain that I was intending to contest the order and I did not consider myself violent, but was forced to sit through a series of questioning and 'advice' regardless.

Anyway, when it was finally over, I said I was still waiting for duty lawyer representation and he assured me that don't worry, they would have let him know if I were called. Anyway, I waited another hour and didn't get called, so I went back to the desk where I signed in and asked if it was normal to have to wait 2 hours to see a duty lawyer. The lady at the desk said they had been calling me for some time (I can only assume it was when I was in the office, as I did not hear my name at all) and that they would need to stand it down temporarily.

Seconds later, my name was called into the court and I had to explain to the magistrate that I did not get an opportunity to speak to the duty lawyer! Anyway, when I finally got representation, she was very good. I just felt a bit let down by the waiting process that let me slip through the cracks.

Did anyone attempt consent orders with the police on the day?

I'm not sure what you mean by that exactly. The duty lawyer did discuss things with the police prosecutor (to what extent I do not know as I was not there) but they were apparently unwilling to negotiate at all. I did not want to consent without admissions unless my children were removed from the order.

The magistrate was butt covering effectively waiting to see what the FCC does

Yeah, although she was, in effect, delaying my justice in the process. Let's say the Family Court does not give me access to the children (I assume they will to some degree but we will find out). I have to wait 2 more months before even getting back to the Magistrate's Court. Surely if I want to contest the order, it is my right to without further delay? I did not really have the confidence to argue the point with the Magistrate at the time and did not know my legal position in detail.

The Duty Lawyer said this particular magistrate does not like communicating with the Duty Lawyer on behalf of their client and wants the parties to speak directly with her, but of course it is intimidating to do so. At one point, I felt like the magistrate was trying to convince me to consent to the order despite my already declaring my wish to contest it.

She reminded me that consent without admissions does not make you guilty, and I said I understood that but still felt like it could negatively affect my FCC. She then tried to remind me that a positive finding of violence in the magistrates court might carry more weight in the FCC than consent without admissions (which I do appreciate her telling me, but I was aware). I told her it was my understanding that I could still consent without admissions at any point prior to the the contested hearing if I wanted to, and therefore I do want to contest it. But I definitely felt the pressure from her to just take the easy route and consent.

Remember that you now have a chance for the FCC to override the interim IVO.

That was my thinking. And as the magistrate said, she is very aware of the interactions between the two courts and would not put an order in place that conflicted with the Family Court unless she had compelling reasons to do so.

From what you were saying the other week, it could easily happen by accident but she assured me it would not. I can only trust that she is right! Do you know if I will definitely get the same magistrate at the next hearing, or could it just as easily be seen by a different magistrate who has a different point of view?

 

[Rod]

it is my right to without further delay?

No. Courts are public resource and people should not get to jump the queue.

But I definitely felt the pressure from her to just take the easy route and consent.

Yep. Means the matter is dealt with there and then and no need for a final hearing. Saves time and court resources.

Do you know if I will definitely get the same magistrate at the next hearing, or could it just as easily be seen by a different magistrate who has a different point of view?

Not sure about Heidelberg Court. At Ringwood there is a good chance it would happen that way. Magistrates are no different to other professions and some tend to specialise in certain types of matters. You can always ask at the court how they run IVO cases.

I can only trust that she is right!

Nope. You keep reminding them so it is not forgotten. It is your responsibility. Though if the magistrate does forget to consider the parenting orders, it gives you grounds for appeal.

 

[GlassHalfFull]

No. Courts are public resource and people should not get to jump the queue.

I think you missed my point here Rod. I wasn't arguing that I should jump the queue in any way. I have patiently waited my turn. I was arguing that the magistrate should not have delayed my ability to contest the order by adjourning for a further mention when I had already advised my intention to contest it.

Unless it is perfectly normal procedure for me to wait 2 months for the initial mention, then wait 2 more months for a further mention just to see if anything has changed? With all due respect to the magistrate, if I want to contest the order (which was made ex parte to begin with), I don't see how any change of circumstance or progression of my case in the family court should affect that right?

My understanding is that if I contest the order at the mentions hearing then it should go straight to a directions hearing? Simply adjourning for another 2 months without any progression towards a contested hearing seems to be delaying justice for no good reason.

I understand that court resources are precious, but so are my children precious to me, and my children were taken from me. An order that can be made so easily without even hearing any evidence from me should not be so difficult to contest.

Yep. Means the matter is dealt with there and then and no need for a final hearing. Saves time and court resources.

I understand that, but is it fair and reasonable for a judge who is supposed to be impartial to try to convince me to consent to an order that I do not agree with and already advised that I wished to contest? Surely a parent's right to have a normal relationship with their children is more important than court time and resources, as I said above.

People's lives are affected by this stuff. The least a magistrate could do is show some respect for the process of defending oneself against accusations and not just try to convince people take the 'easy' route of making an order final just because it's difficult and expensive to contest... If the court's time and resources were so important, they should be more careful before making these orders in the first place.