VIC What to Do with Interim Intervention Order?

[Rod]

I totally agree with your points. I didn't miss the point you were making, just saying how IVOs work at a practical level day in day out.

Trouble is we do not live in a perfect world and we have an imperfect justice system. It is not a bad system and better than most others in the world.

It can be better, but I can't see any radical changes to it when people are dying through domestic violence and there is a great deal of public pressure to reduce deaths and serious injuries.

Having said that, your situation is exactly where the current system fails and more can and should be done to prevent people abusing the system for their own personal and petty motives My favourite solution is to punish people who are proven to be lying in affidavits on important details aimed at stripping access of a parent to their own children. The court has the power to punish people now, but doesn't.

Important principles are being tossed out the window because certain groups are pushing the domestic violence problem at all costs regardless of the harm they do to people who have done no wrong. I intensely dislike this aspect of family law.

With the current public pressure I feel sad that people who do the right thing are being punished for the wrongdoing of others. You are an 'unfortunate statistic' in our Family system.

 

[GlassHalfFull]

It can be better, but I can't see any radical changes to it when people are dying through domestic violence and there is a great deal of public pressure to reduce deaths and serious injuries.

No, you're right. The public pressure to do something about this is very strong right now. I just wish they didn't try to have a 'one size fits all' approach to these things. An applicant should have to do more to justify their request for the order and a magistrate should do more to question it at the first instance. If there really is a clear and immediate danger, it surely should be possible to demonstrate it and it should be explained on the intervention order. Lumping all accusations of domestic violence in together, as if some arguments and some yelling in front of the kids (in which both parties are often equally to blame for anyway) is the same as beating your partner up because they didn't cook your favourite dinner or they wouldn't tell you where they were the other day or whatever, is just wrong.

My ex did not demonstrate sufficient justification IMO, nor did she have to provide any evidence from what I can tell. And IMO even what she did twist and lie on her application, it still did not demonstrate an imminent threat to my children. A mere claim to be fearful of what might happen should not be enough. Plenty of people are fearful without justification, especially with emotions running wild after a messy separation.

I mean, a police officer cannot arrest someone without a damn good evidence and reason, and yet they are on the front line of serious injury and death on a daily basis. If they are required to demonstrate solid evidence before arresting someone, surely a magistrate should expect the same before approving an intervention order that restricts access to someone's children and removes them from their own home (not to mention all their property still stuck at the house).

My favourite solution is to punish people who are proven to be lying in affidavits on important details aimed at stripping access of a parent to their own children. The court has the power to punish people now, but doesn't

That would be nice. There being no real consequence to lying is likely to just force the other party to lie too, in order to try to level the playing field. In the end, it's the truth that suffers.

 

[GlassHalfFull]

As a little update to my case, my ex has actually shockingly (to me anyway), in her family court affidavit, admitted to a couple of incidents of violence towards me (while still maintaining that I was also violent to her). What I am wondering is, can I use this affidavit in the Magistrates Court to demonstrate that her narrative that she was the victim and I was the perpetrator is untrue? I still deny being a perpetrator of violence and have not admitted to it at any stage. I understand that the magistrate will likely say that just because she has been violent, that doesn't mean I haven't been. I understand that I might still have to somehow prove her claims about me to be wrong. But how much do you think it would weaken her case? Alternatively, I imagine the magistrate might conclude that at the very least, we both have been violent. If so, in a situation where both parties are 'equally to blame' for a violent relationship, is it still the case that whoever gets in first with the intervention order 'wins' or do you think a magistrate is going to dismiss it due to the lack of a clear victim and perpetrator?

I guess the problem with this question is that it's hard to get into the mind of a magistrate, especially when each one will have their own opinion on how to handle situations like this. Maybe there's precedence, maybe there are guidelines? Would this admission from my ex of violence towards give me grounds for an intervention order against her? My understanding is that if there is no current threat of violence (since we have no physical contact now because of her intervention order against me), then a counter intervention order is therefore unlikely to be granted.

 

[Rod]

can I use this affidavit in the Magistrates Court

Strictly speaking - no. A self repper might get away with it. Better to ask for permission from the family court (FCC?) You would need to quote special circumstances - this being accusations against you by the same person in another court.

But how much do you think it would weaken her case?

I suspect you know the answer but were hoping for a miracle - No idea. Depends on the detail of your case.

is it still the case that whoever gets in first with the intervention order 'wins' or do you think a magistrate is going to dismiss it due to the lack of a clear victim and perpetrator?

Depends on the discretion of the magistrate you get.

Would this admission from my ex of violence towards give me grounds for an intervention order against her?

Quite likely - if you can use the affidavit.

My understanding is that if there is no current threat of violence (since we have no physical contact now because of her intervention order against me), then a counter intervention order is therefore unlikely to be granted.

Not necessarily true. She can still hassle you by various means that you want stopped. She could also still approach you and commit family violence.

 

[GlassHalfFull]

Strictly speaking - no. A self repper might get away with it. Better to ask for permission from the family court (FCC?)

Hmm, do you know on what basis it wouldn't be allowed? I don't pretend to understand the rules of evidence in various courts but I would think a sworn affidavit, even if from a different court, should be about as good as evidence gets? Could she be cross-examined and asked about her affidavit then, and whether she indeed admitted to being violence in it? I mean, I don't understand how that couldn't be relevant?

I suspect you know the answer but were hoping for a miracle - No idea. Depends on the detail of your case.

Yeah, I figured that was the case. Still, it's worth a shot. I intended to contest it regardless, even with the recognition that it's often difficult to prove the absence of something like violence and especially when the balance of probability seems to lean towards the accuser being automatically believed, but if I can use her admission, so much the better.

 

[Rod]

do you know on what basis it wouldn't be allowed?

Yes. There is an implied undertaking that material produced for a court case is only used for that court case. A court in theory needs all the evidence presented to it so it can arrive at the 'right' decision. If people are cautious about bringing in evidence because it opens them up to even more claims then that particular case is compromised. So courts developed a rule that effectively says 'what is given to us, stays with us'. Of course this is a very simplistic answer to what can be a complex area with various exemptions.

 

[GlassHalfFull]

Ahh, I see. Frustrating though, because such a rule contributes to the 'wrong' decision being made in a different court case. I assume that I could possibly still bring the subject up in cross examination though, even if I couldn't submit the affidavit itself as evidence? And when I was questioned by my barrister, say that I saw with my own two eyes the affidavit in which she said it. Or do you think that would also be prohibited?

Anyway, it does sound like her admission in the affidavit would still be useful evidence for me in the court it was submitted to (the Family Court, where the most important aspects will be nutted out over time), and might help to minimise the impact of any unfavourable outcome in the Magistrates Court, should I be unable to persuade the magistrate of my innocence. In other words, a family court judge may think: "Yes, you were found to have committed violence in your intervention order case, but by her own admission, so did your ex, so I won't draw any substantial conclusion from this result at this stage". Anyway, again, this is all speculation and perhaps more speculative than can really be useful at this stage, but it's still good to think about how certain things are likely to play out.

 

[Rod]

If concerned about the IVO, then send in a request to the Family Court asking for their consent to use the affidavit. Nothing ventured nothing gained. Its something your lawyer can do fairly easily.

 

[Migz]

Stick that section of her affidavit in you Magistrates affidavit as an annexure. Ive done this before. The DV Magistrate was very interested to know what had been happening in our relationship prior to it breakdown, I've also annexed a page from our family report where the ex agreed that she had an issue with drugs previously. I'm not going to lie to you, but after being in the ring for 2 years straight, this is just a mud slinging match, and a money making machine...

 

[Complex16]

Yeah, I agree with you. As much as I would love to see my ex suffer through the consequences of an IVO like I have had to, I agree that it isn't going to serve my long term prospects particularly well. As much resentment as I have towards my ex, I genuinely do want to have a cordial relationship with her that allows us to co-parent properly.

I want to know what is going on with my children while they're at my ex's house. I want her to know what's going on with them while they're with me. It's just plain sad that these IVOs (and ultimately the attitude of my ex) prevents it from happening. Ah well, such is life.

How does one attain a cordial relationship whilst also wanting to see them suffer?!

Looks like this is all about you and not your kids. If you don’t change your mindset you’re in for a harsh shock.