QLD Will DVO Affect My Profession and Blue Card?

[Jethro Tambo]

Hi Folks,

Background:

My wife and I have been having problems for about a year, and there are always two sides to every coin. I was fighting the "black dog" and chronic back pain for the last half of this year. She has always enjoyed a wine or two but then it started getting serious when she drove home several times well over the limit (there is anecdotal evidence from her family that she has done this sort of thing before).

On one occasion, when she was well over the limit and tried to leave in her car, I physically restrained her. I was so shocked by the result (bruises on her arms) that on later occasions I just hid car keys and let her walk out.

In August she admitted she was seeing some one else. Over the next few months, she repeatedly said she wanted to make it work... and yet kept in contact/seeing the other person. The week before Christmas, I found out she was still in contact with this person and lost it. I asked her to leave.

On Christmas Eve, I was served with a DVO and on very short notice, was forced to leave my house (the local coppers were awesome in trying to help out where they could).

The DVO states I was physically and verbally aggressive towards her and I tried to isolate her. It also says that I was verbally and physically towards her 16-year-old son (who I took to his Rugby training twice a week, games and even arranged for driving lessons!)

Since it has been issued I have followed the letter of the law and been nowhere near her, the house, etc She has made two allegations that I have been to or in the area of the house - the local coppers were not impressed. She has also alleged I was in the local IGA bad mouthing her loudly!

As a teacher, I am concerned that this DVO will affect or effect my Blue Card! I am being represented by a solicitor.

Questions:

What is the best way to combat such false allegations (it will be my word against hers I guess)? But do the courts listen or always take the side of the female (as the word on the street suggests)?

If the DVO is upheld, how will it affect my status as a teacher (and Blue Card)? If the DVO is upheld, I cannot afford mortgage payments and rent. She could not pay the mortgage period.

Is there any way of forcing her to move on, or forcing sale of the house?

If the DVO is dropped/not upheld, can she stop me from accessing the house? If so, what is my recourse?

I would prefer to just sit down and try and sort it all out without all of this - but she and her new partner are not cooperating at all!

Any help would be appreciated!

Thanks in advance

 

[Lance]

Hi Jethro,

First of all, the best way to combat allegations would be to be very careful what you write on an open forum. While I appreciate your intent you may have admitted to physical assault (physically restraining your ex) and even hiding keys or keeping someone from leaving even to prevent them from killing themselves could in some circumstances be viewed as emotional or physical abuse.

You could have your lawyer get hold of the IGA footage that alleges you were at the shop. But the rest of it will be her word against yours, not to mention she has evidence of violence (bruises at the time of the DVO which I'm guessing is all detailed in the DVO documentation).

The DVO will likely impact your blue card and could impact future employment. Your lawyer should detail your financial situation to the court and specifically your inability to support two households.

The problem you have is that even if a DVO is withdrawn it will probably still appear on your future police checks.

I hope you can sort it out.

 

[sammy01]

Ouch - sounds heaps like my story.

I'm a teacher in NSW. Ex took an AVO a few years ago and my kids were included on it. I accepted the AVO without admission. I've just recently done the police check. It is my understanding that an AVO won't matter.

Here is some info about NSW - because that is what I'm familiar with:

[PDF]Fact sheet 14: Assessment requirement triggers (Schedule 1)

Look as far as Lance suggesting of getting the footage from the IGA - yep, you could. But it will cost you. My thoughts: Accept the AVO without admission. Save your money - fighting it will cost heaps - you're better off using that money in family law so you can see your kid

The cops hate these things - they became cops to catch the bad guys. So be nice to them when you're called in. Again, been there - it sent me mad - really mad. Mate, I was withdrawing money from ATMs for no other reason than having a receipt to show where I was in the hope it would help prove the ex was making crap up.

So call Relationships Australia to organise mediation. Ask your solicitor about it. Sadly, everything you've heard about solicitors is true. If you don't ask, they won't tell ya. You can do mediation with solicitors - it will cost heaps and you will get the same result you could have gotten by doing it with Relationships Australia for a minimal cost.

Solicitor won't tell you this because it will mean you don't pay him for the mediation.

Now as far as the mortgage goes - stop paying it. Simple - she is living there right? So stop paying it.

Mate I was paying mortgage, child support, rent, solicitors. I was broke. It ain't sustainable. The ex had no reason to want to change that set up. But when I stopped paying the mortgage and she was getting nasty letters from the bank, her attitude changed. All of a sudden she had some motivation to come to an agreement about how we could finalise everything.

So I had a bargaining chip to get access to see the kids. But while you're paying for everything, why should she want to change that dynamic?

Mate, stay calm. Get advice from everywhere and make up your own mind. Check info where you can. So for example - check what I've said about the Blue Card with union...

If you do, can you get back to us?

I submitted mine recently and have not heard back - kind of losing sleep over that one, but - here is one piece of concern I really really want you to check. Accepting without admission keeps you employed, but fighting it and losing it might not. Accepting without admission is not proof of guilt - taking it to trial and losing is proof of guilt and that can change the dynamics as far as police checks go...

Now in NSW, AVO's are granted on 'the grounds of possibility' not beyond reasonable doubt. Wow, that hurts - so the bar is so bloody low that I reckon accepting without admission makes sense - especially given that the money involved in fighting it could be better spent on a family law solicitor.

For the minute - do nothing to make the situation worse - stay calm. Look after yourself.

Just a ray of sunshine - my kids now live with me and I've bounced back from the financial arse kicking the divorce game me.

Now I think I got lucky, but I also got smart.

 

[AllForHer]

I'll be frank.

The fact that you used such force on her that you left bruises means a domestic violence order is absolutely justified. It's irrelevant that you were depressed and had back pain. It's irrelevant that you were trying to restrain her from driving because you felt she was over the limit. It's also irrelevant that you were shocked that you'd bruised her. All that shows is that you think your actions were somehow justifiable, which makes a DVO doubly necessary.

So don't waste your time and money fighting it. A DVO is not a criminal conviction. It only becomes a criminal matter if you breach the DVO, and it's usually only if you breach it that it might affect your Blue Card.

The suggestion to accept without admissions is good guidance. It means none of her allegations will be proven. However, if you defend it at trial and the Court accepts the evidence of your wife, then you won't just have an allegation that you were violent, you may also have a finding by a Court of law that you were violent.

Such a finding may impact your property settlement because it may open the gateway for a Kennon adjustment to be considered. A Kennon adjustment is where a property settlement awards a higher percentage of the assets to a spouse who can prove that violence within the marriage affected their capacity to contribute.

It's likely best to accept without admissions and communicate only through her lawyer for property settlement. I dare say you won't be able to defend it because of the bruising incident.

 

[Rod]

... It's irrelevant that you were trying to restrain her from driving ...

A domestic partner has a duty of care to their other half. Using reasonable force to stop your drunk partner getting into a car and driving would likely be OK. Also keeping a drunk off the road protects other road users.

It has a half a chance of being acceptable to a court but proving it to the satisfaction of a court is the hard part.

As much as it grates on me to say it, the 'no admission' suggestion seems the safest way to proceed.

 

[sammy01]

Wow, freakish timing... So I just checked my work emails and got my working with children check cleared... So while I'm in NSW - I'm still more than confident that the AVO accepted without admission won't harm your career.

I kind of agree with AllForHer As far as accepting the AVO.

Mate - I lost the lot - took the shirt off my back kind of deal. Offered a property settlement where she got 105% - Yep 105%, madness...

In the end it was kind of OK. I've lost photos of my 20's trip to Europe. So what I had not looked at them in years. I lost all my stuff. I worked out a new surfboard was heaps cheaper than going to court to get the old one back... Same with all the other stuff and guess what - it is just stuff and that change in thinking really helped me...

Be patient - things are still very raw right now and it would be bloody easy to do something dumb.

So just out of interest, has the child support agency contacted you?

 

[AllForHer]

Using reasonable force to stop your drunk partner getting into a car and driving would likely be OK.

This is an inaccurate method of applying negligence precedents to a domestic matter.

First, if she'd gotten into the car and had an accident in which she was at fault, the injured party would be allowed to bring an action against her, the driver, because she is the party who has a duty of care to other road users. It would not be allowed to bring an action against him, the driver's husband, for not 'using reasonable force to stop his drunk partner from getting in the car and driving'.

Likewise, she, the driver, would not be allowed to bring an action against him for not restricting her from driving, either. Owing a duty of care to someone is about eliminating a foreseeable risk of harm to others by managing their own actions. It's not about depriving another of their ability to act.

So, would a State Magistrates Court determine that using force to stop your drunk partner getting into a car and driving is okay? No, it would not. It would determine that he used physical force to control her. That's domestic violence, plain and simple.

 

[MartyK]

The cops hate these things - they became cops to catch the bad guys.

What an odd thing to say here sammy. A person who commits an act of violence against another, whether it be in a domestic situation or otherwise, is still guilty of that act. It is this kind of thinking, and past inactions, that has led to State Governments, moreso in recent times, amending legislature to increase the responsiveness of police to domestic/family violence call outs and for the better protection of victims.

I am well aware that this can, and does, have negative consequences for separated parents and their children and can lead to, in my view, appalling legislative changes within the Act. But I cannot agree that violence in any way shape or form can, or should, be readily tolerated or accepted, simply because the violence itself falls within the category of domestic.

Your own 'stories' are a very good example of how violence orders, at this point in time at least, do not always dictate Family Court outcomes.

Insofar as your questions go Jethro Tambo, I concur with AllForHer.

 

[sammy01]

Nope, disagree Marty given my comment was in relation to the OP's concerns about the ex using AVO as a means to advance their cause in family law. You seem to agree with me that does happen. My advice was also to be nice to the cops, that is all. Now, can you please point me in the direction of any comment I have made anywhere that suggest that I condone violence... Nope, didn't think so...

In my experience the cops spend lots of time having conversations / warnings etc because of minor accusations of breach of AVO... It is time consuming police work with no real benefit. -
Beyond anything else lets not nitpick...

But back to the OP - just checking - the 16 year old is not your child? Just checking you don't have kids with her?

So she is living in the house. If there are no kids involved then stop paying the mortgage. Contact the bank and explain the situation. Especially if there is equity in the house they will give you some grace to sort it. But again, speak to your solicitor first. I would also encourage you to take any mutual funds and put them where she cant access them.

I reckon you ought to accept the AVO without admission. Get your solicitor to write to her and suggesting that she either take over the mortgage / title of the house or that she moves out and you move in or that an agreement be made about selling the joint.

Now I have one more idea for you. Go see the cops and ask if they can help you get your stuff. So when I was in your situation, I spoke to the cops, the guy I spoke to was great. He asked me to make a list. I did, sadly it was a bit rushed.... But he called the ex and asked if we could come around and get the stuff. She agreed. Easy....

The other thing that might be available to you is to seek a recovery order. Speak to solicitor about it. But I think you could accept the AVO without admission, but ask for an opportunity to go to the house with the cops to get your stuff. - not sure on that one - so ask solicitor...

But more importantly - stay calm. This won't end your career. Strangely enough I reckon it might be a good thing. What? Well look, my marriage was on the rocks lots of arguments etc. Then the ex took the avo... So no more arguments - no more talking at all... Great and that gave me some time and distance from her to do a little reality check and realise that life was gonna be a hell of a lot better without her...

Previously, there had been arguments - apologies (mostly from me). But the AVO fixed that.... Now a solicitor said to me something like this - the conditions of an AVO are ok. If you're not the sort of person who goes about intimidating people then so what... It kind of made accepting it just a little bit easier.

 

[MartyK]

"The cops" hate this thing...I believe "cops" refers to State Police, not Family Court, yes?

"This thing"...the only "thing" I can see mentioned by the OP, besides questions about possible implications of a violence order on property settlement, and occupation, is in relation to the making of a State violence order against him.

As well as, of course, an admission of an incident which did resulting in physical injury.

The rest I will leave to your own assumptions.