VIC Wrong Allegation of FV - What is the Family Court Procedure?

[Loveson]

Hi everyone, I am now in a family court process.

The background is as followed:

My ex applied IVO against me, both her and my son (3 soon turning 4) are in there after separation. I chose to consent without admission after reading many posts from this forum. My ex still allowed me to see my son about 3 times a week while she was around before mediation.

We went to mediation for two times but failed to come in agreement. I asked for 5 overnights per fortnight, she insisted only 2 per fortnight. During the mediation, I had 4 overnights within the half month period.

After two times mediation without coming to an agreement of parenting plan, my ex suddenly stopped all contact of me and my son at a supposed change over the location with an allegation of me verbally assaulting her. I later went to the police to get them to investigate and disapprove her allegation, with a polite letter saying I did not breach IVO.

Since my ex did not allow me to see my son, I had to apply application in federal circuit court. She is using legal aid lawyer. She later responded with an affidavit alleging me and grandparents being violent towards her and my son. Lots of lies and terrible allegation were there. We went to 1st court date, my solicitor tried to tell the judge I had been having regular time with my son and this should continue. But judge ordered supervised time instead because her allegation was very terrible. And the matter was transferred to family court.

I have been going to supervised time with my son every week for only 2 hours. I treasure every second being with him in the limited time. After months, I went back to direction hearing in family court. My supervisor gave me a very good family report based on her observation. However my lawyer did not file any affidavit before going back to the court. But my ex filed another affidavit of sexual abuse during the marriage only 2 days before court date. Registrar stood down the court and asked us to come up with some agreement.

My lawyer tried to ask for unsupervised time, but the other side insisted supervised to be continued. In the end, both parties agreed on only a few more to be continued and reportable, then both parties will have to negotiate again before going back to the next direction hearing. My lawyer also asked for ICL to be involved.

My questions are:

Is it a normal procedure outcome? Supervised time, more supervised time, aiming for an unsupervised time, hoping for some overnights. I feel like I am not making progress and frustrated knowing the fact that more supervised time to come. If both parties did not come in agreement during stood down, will registrar make any decision?

Can anyone please give me some suggestion? I only want to get more time with my son, and co-parent with my ex. Am I in the right approach?

I appreciate any help and thank you in advance!

 

[sammy01]

Stay calm. Mate be patient. And avoid un-necessary contact with your solicitor to save money and no contact with the ex to prevent more accusations.
Based on what you've written I think you're doing the right things...

Remember this - your son is young - You'll be able to make up for lost time. And more importantly, at 4 yrs of age, a magistrate will reluctant to agree to 50/50 or even close. So the longer this drags out the better... and the longer it takes the greater the chance that legal aid will stop funding the ex. Especially, if she continues to make unfounded accusations. Mate the magistrates see this crap all the time.

They don't like the legal system that they have dedicated their lives to being taken advantage of for personal gain and to punish a parent like in your situation. But they do have to err on the side of caution... Once her lies are tested and their validity questioned she will have lost the trust/confidence of the magistrate...

But in the meantime, expect more allegations. After all these allegations have been successful for her up till now true? She's likely to continue using the same strategy, thinking it is getting her the results she wants... But once tested in a final hearing she'll have problems.

 

[Loveson]

Thank you Sammy for your advice. I did stop contacting my ex, as I know she would use all opportunity to accuse me. Am I supposed to file for any new report or affidavit everytime going back to direction hearing?

My ex during relationship always turned on her mobile to record our conversation and now looking back it all make sense now. She would create some drama and record our argument or ask for financial question in normal conversation. I felt very weird and now I know that there is purpose behind the confusion. She made things ready for her but I was only trying to solve things out. I wonder audio recording of our daily conversation can be used in the final, since I was not aware and sometime argue with her in temper.

 

[sammy01]

there is this thing called common sense... IT is a good thing.
Mate if she has audio recordings - she could be breaking some laws as far as privacy.... But it is not normal behaviour... So magistrates are reluctant to give that sort of stuff much weight. It looks like entrapment... Mate if she is baiting you and you got suckered, that isn't a crime... but it is entrapment. That, on top of allegations - assuming they're all lies - they will get tested in court. BTW arguing is not a crime. What couple don't have heated words sometimes? BIG DEAL.

Ok - so as far as affidavits everytime? don't know. I'd have thought you do the original affidvit then follow court orders from there.

Legal advice? follow what solicitor says. Stay calm. Don't give the ex anything to use against you.
Personal advice - google search - borderline personality. AND shrink4men. Mate I"m in no position to diagnose yoru ex. Maybe she is just a nasty piece of work, maybe she has a mental illness... WHO CARE - what matters, is you get good strategies around you to learn how to deal with nutters.

Just to give you a little ray of sunshine. I had an avo, could not see or go near the kids. I live in a small town and I'm a teacher. The ex let everyone she could know that she had an avo against me... For a while I was at the cop shop weekly because she had accused me of breaching the avo... She could not find her car keys.... I must have broken into the house and took them... WTF? Crazy s**t.... Anyways - I eventually got 5 nights a fortnight via mediation. Shortly after that she left the kids with me to move to be with the new love of her life... That didn't last long either.... The legal system sometimes feels like it is seriously fcuk*d up. But I do think if you play smart and have not done anything wrong you will get a good result. Just a pity the $$$ it costs to get there...

Last thing - my ex had legal aid. I was bleeding money to a solicitor... In the end the ex lost her legal aid grant and had to start funding her own case. That was a huge game changer... It took some time, but when legal aid could see through the lies they dumped her. She then had to deal with deciding between giving me decent access to the kids OR paying a solicitor $$$$ thousands to try to keep me away from the kids. She caved, gave me 5 nights a fortnight and like i said, shortly after that she handed the kids over and left....
stay strong

 

[Loveson]

there is this thing called common sense... IT is a good thing.
Mate if she has audio recordings - she could be breaking some laws as far as privacy.... But it is not normal behaviour... So magistrates are reluctant to give that sort of stuff much weight. It looks like entrapment... Mate if she is baiting you and you got suckered, that isn't a crime... but it is entrapment. That, on top of allegations - assuming they're all lies - they will get tested in court. BTW arguing is not a crime. What couple don't have heated words sometimes? BIG DEAL.

Ok - so as far as affidavits everytime? don't know. I'd have thought you do the original affidvit then follow court orders from there.

Legal advice? follow what solicitor says. Stay calm. Don't give the ex anything to use against you.
Personal advice - google search - borderline personality. AND shrink4men. Mate I"m in no position to diagnose yoru ex. Maybe she is just a nasty piece of work, maybe she has a mental illness... WHO CARE - what matters, is you get good strategies around you to learn how to deal with nutters.

Just to give you a little ray of sunshine. I had an avo, could not see or go near the kids. I live in a small town and I'm a teacher. The ex let everyone she could know that she had an avo against me... For a while I was at the cop shop weekly because she had accused me of breaching the avo... She could not find her car keys.... I must have broken into the house and took them... WTF? Crazy s**t.... Anyways - I eventually got 5 nights a fortnight via mediation. Shortly after that she left the kids with me to move to be with the new love of her life... That didn't last long either.... The legal system sometimes feels like it is seriously fcuk*d up. But I do think if you play smart and have not done anything wrong you will get a good result. Just a pity the $$$ it costs to get there...

Last thing - my ex had legal aid. I was bleeding money to a solicitor... In the end the ex lost her legal aid grant and had to start funding her own case. That was a huge game changer... It took some time, but when legal aid could see through the lies they dumped her. She then had to deal with deciding between giving me decent access to the kids OR paying a solicitor $$$$ thousands to try to keep me away from the kids. She caved, gave me 5 nights a fortnight and like i said, shortly after that she handed the kids over and left....
stay strong

Thank you again Sammy for your comment! When you went through the multiple direction hearing, did you go in there to come up some sort of temporary agreement with your ex every time. If not being able to agree on anything, what would happen?

 

[sammy01]

My understanding was that the directions hearings are a chance for magistrate to see if there has been any compromise. If no agreement, then based on accusations I reckon you'll find supervised visits will continue. But stay calm. Eventually, the ex will have to establish grounds for maintaining contact centres and when they're not able then her case will start to fall over...

 

[Jake Matherson]

Thank you again Sammy for your comment! When you went through the multiple direction hearing, did you go in there to come up some sort of temporary agreement with your ex every time. If not being able to agree on anything, what would happen?

For me all of the directions hearings have been before a Registrar and not a Judge. Not sure if this is always the case however it would make sense to me if it was.
Registrars have limited power to make orders and direction hearings are not the correct hearing type to make long term parenting orders.

However if the parents have gone away and agreed on a temporary agreement and have written it up signed and dated the Registrar is able to implement those Orders by consent as all parties agree.

So yes, it is advantageous to try and have agreements with your Ex prior to all direction hearings as it is an opportunity to have minor changes implemented. However it does require all parties to agree. If your Ex does not agree then no changes will be made. If you're not able to agree on anything you would need to progress to an Interim Orders Hearing to get formal Interim Orders or file an application in case due to significant changes occurring and you needing new Interim Orders prior to progressing to the Final Hearing.

Every court date is a date that you can get stuff done. It just depends on how co-operative everyone is being.

 

[Loveson]

Thank you everyone

 

[Loveson]

Just another question, how long does the supervised visit have to go on? I am starting to negotiate with the other party for unsupervised time with my very good family report by contact service, what if the other side keep saying no and the supervised time needed to be going on? Thank you.

 

[Jake Matherson]

Hey Mate,

I don't have a formal answer for you as i'm not a lawyer but my current situation might be of use to you.

I am on the other side, I have the child and my Ex is on supervised visits at a contact centre. Now she hasn't actually had a visitation yet (she has chosen not to) but if she had made regular visits, had a "very good family report" and I felt comfortable that there was no risk of her running away with the child I would start entertain the thought of allowing supervised time with one of my family members outside of a contact centre for a while and then following an amount of time of good behaviour short periods of unsupervised time. The more bits of paper she had from professionals such as the contact centre, ICL, Family Report etc... stating that this was a good idea the easier I would be to negotiate with.

However for all of this to happen I would need a Court Order that the child lives with me because there is no way I'm handing the child over to the Ex and allowing her to run away easily.

So to answer your question how long does it need to go on. Well without a Court Order granting you unsupervised time with the child I expect that you're in for a long wait as you Ex appears difficult to deal with.
Pretty much I foresee you having to wait until you're able to negotiate a Consent Order with the Ex at one of your directions hearings or..... file an application in case for amended Interim Orders after you have a bunch of recommendations for unsupervised time because she wont consent or....... get to trial and be awarded time by a Judge.

Just a bloke thinking out loud.