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Dismissed AVO's

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If an AVO was ordered to be dismissed by a court, can the other party still include it in their affidavit (including their version of events leading up to the AVO application), at a later date in order to assist their case?

If an AVO was ordered to be dismissed by a court, can the other party still include it in their affidavit (including their version of events leading up to the AVO application), at a later date in order to assist their case?
Gran1956,
             I'm pretty sure that it can be as it is evidence of the other parent's methods/actions.
Yes they can. And as we have discussed privately - I feel it works in the father's favour in this situation. Let them do it. Its irrelevant.

The fact that there a 2 unsuccessful AVO applications speaks volumes in itself. Evidence of failed AVO applications may in fact support the fathers case. Its not evidence that is necessarily prejudicial to the father.

If the mother wants to focus on AVO stuff - then fine. It demonstrates that she is not focussed on the NEEDS OF THE CHILD, but focussing on her personal conflict with the father.

The danger for the father with the AVO material advanced by the mother is that he will GET SUCKED INTO conversations about this material and distract by matters which are only peripheral and NOTHING TO DO WITH THE NEEDS OF THE CHILD.

Rather then keep preaching this point to you, perhaps I need to put to you this question - "How are past unsuccessful AVO applications by the mother relevant to the Magistrate who is considering parenting arrangements for this child?"

Then explain to me this - How is the mother's boyfriend - a person who does not live with the mother, not married nor engaged to her - relevant to consideration of parenting arrangements for this child?"

The father has MORE IMPORTANT things to work on than worry about than what the mother or her boyfriend is saying. If the Mother or boyfriend raise an issue (assault/AVO stuff) which the father disputes, all he needs to do is briefly deny the asserted fact(s) and move on to THE NEEDS OF THE CHILD. He does not need to engage in any futher discussion about these matters unless questioned my the Magistrate.

Don't 'validate' or make the AVO/Assault material 'relevant' by OVER-RESPONDING to the mothers or the boyfriends assertions.

You seem stuck.

I am becoming very concerned at your ongoing preoccupation about the AVO/assault materials and the degree to which you are being distracted by it.

There are other things that need urgent attention:

1. The structure and wording of interim orders around the fathers rostering. Where are you with that?

2. Have you put together a second set of interim orders for 'supervised contact arrangements' should you unsupervised orders not get up?

3. Has the father arranged for himself some kind of counselling support?

These are your priorities NOT what the mother is or isn't saying, doing, or whatever….

Last edit: by 4mydaughter


4MYDAUGHTER
Thank you both.  Not having been through this before, there's such a lot to take in and it's a bit overwhelming at times. It's not always easy trying to evaluate what's going to be important and what isn't.  We just want to be sure we have it all clear in our minds and I guess as time goes on, it will be easier to process everything.

We shall do our best to make sure we don't fall into the trap of over-responding to their assertions and to keep focussing on the needs of the child.

Once again, your advice is very much appreciated.
As far as the assault goes, it is and isn't relevant.

Remember that the altercation involved 2 parents (fathers) with children at the centre. As far as the FM is concerned, who started it doesn't matter. It shouldn't have happen under any circumstances. But it happened and it doesn't not reflect well on either parent.

As state previously, if the mother argues against the father having contact, she also arguing the case for the child to have no contact with her boyfriend. This is a real quandary for the mother. And I know its already a factor in her thinking because of the wording of her interim orders, i.e. "Child to spend time with father consistent with best interests" or words to that effect. She not seeking orders that the father have no contact. Why? Because her solicitor told her that her boyfriend might also be bar from having contact with the child. She has in effect already capitulated and you are much closer to obtain the interim orders you seek. You just need to not stuff things up by engaging in further conflict.

The FM might question the mothers judgement in getting involved with two idiots! Not that I'm saying your son's an idiot.

The FM will just want the father to acknowledge this - to be 'REAL' about that incident - and understand how the father proposes to ensure that this type of incident doesn't happen again.

If the FM sees the father involved/engaged in continuing parental conflict with the mother at the interim hearing, he's not going to have much confidence that the father has the self-control or personality not to let such an incident happen again.

If the father maintains his cool and doesn't engage in conflict before the FM - avoids conflict at all costs - it changes the dynamics of the proceedings before the FM and effects his perceptions of what's going on between the parents - and therefore the FM's interpretation of the facts.

Do you get where I'm coming from?

4MYDAUGHTER
Hi 4myd, re the AVOs, I wasn't referring to the assault matter.  I meant the 2 AVOs which she tried to take out previously, which were subsequently dismissed by the Registrar.  She is now using them in her affidavit.  I thought that once a matter was dismissed, it was dismissed and couldn't be used again.
Your not getting this.

Two SUCCESSFUL AVO applications is barely relevant.

Two unsuccessful AVO applications is even less relevant. Not relevant at all. ZIP!

They do indicate parental conflict.

If the FM witnesses both parents in conflict before him in proceedings that relate TO THE NEEDS OF THE CHILD - he may not be willing to give the father orders to spend time with the child!

Have you not read my affidavit? I contested and successfully defended two AVO applications. The last one was a doozy! I do understand how these AVO matters are received by the courts. I been involved in other SRL proceedings where AVO's have been an issue.

And against the background of these AVO proceedings and was successful in two Final Hearings as a SRL because I ran a 'low conflict' strategy at both final hearings. My cross-examination of the mother and the grandparents was LOW CONFLICT. I smiled a lot. I shared a joke with the Judge which had him in stitches.

Low conflict. Big smiles.

Last edit: by 4mydaughter


4MYDAUGHTER
Hi 4myd.  I do hear what you're saying.  I think there's been a misunderstanding because my initial post today was re two previous AVOs, but your response at 35946 referred to the assault so I was just letting you know that I was in fact referring to a different matter.  Anyway, I hear you loud and clear and fully appreciate what you're advising about the irrelevance of the AVOs.

I guess at the end of the day, I was just wanting to know whether a person is permitted to introduce something into evidence which was dismissed, regardless of whether it's relevant or not.   I know for example, that a person is not permitted to re-introduce something from a dismissed AVO into a new AVO.   Hope that explains it.
The answer is yes a dismissed AVO can be introduced, but try to minimise its importance and concentrate on the needs of the child instead.
Gran1956 said
I guess at the end of the day, I was just wanting to know whether a person is permitted to introduce something into evidence which was dismissed, regardless of whether it's relevant or not.  

I think what I would do is simply to respond to the other parties affidavit point with saying that the AVO was dismissed by the court. Note that I have no real court experience and have not even produced an affidavit and am not even sure about the format.

Eg

Applicant's Affidavit

33. AVO applied for on …….


Respondent's Affidavit

10. In response to the applicant's Affidavit point 33, the mentioned AVO was dismissed by the ?????? court on dd/mm/yyyy.


Is that what you would do 4My Daughter?
I think dismissed AVO says it all, it was dismissed, not relevant, not in force, not validated, etc etc.
I certainly wouldn't include it in my documentation as a 'credit point' save I look like an idiot when I have to admit 'Oh yes Your Honour, I did include that in my affidavit however it was dismissed but I still think you should hold this against the person as unfounded, or moreso unsubstatiated, as it is'.
@ MikeT

Is that what I'd do? Exactly.

Keep it very belief.

If in the course of the mother advancing this AVO material, a serious and false assertion is made by her (or the boyfriend), then from an technical legal evidentiary point of view, you need to 'deny' the asserted fact as false. Then in the absence of corroborating evidence either way, it becomes a matter of 'he said, she said' and that line of evidence material leads nowhere.

The AVO material is not necessarily prejudicial to the father. I reckon the AVO material advanced by the mother my help the father and in fact undermine the mother's case.

HOWEVER - it may be relevant at a final hearing if 'ongoing parental conflict' is raised as an issue by the mother to rebut presumption of 'shared parental responsibility' or may undermine the the confidence of the FM to make interim parenting orders in favour of the father.

Perhaps gran1956 doesn't understand fathers can be denied 'substantial and significant time' on the basis of 'ongoing parental conflict' alone and in the absence of the AVO/assault matters which are in play here?






4MYDAUGHTER
My son finally had his interim hearing yesterday and the magistrate awarded him 3 hrs a day, 2 days a week (unsupervised) until the final orders.  He also said that it could be which ever days he wanted.  They weren't happy about that and objected, however, the magistrate said again it could be whenever my son wanted.   The drop off point was to be the Tuggeranong police station until suitable arrangements could be made with Marymead changeover service.

So after not seeing his son for almost 3 months, he requested 12.30-3.30 today and tomorrow, however, she didn't turn up.  He subsequently got an email from her solicitor telling him that a suitable third party wasn't available to drop him off today and tomorrow and they also dictated what times he's permitted to have his son and that he would have to wait until 29 December.  He wasn't permitted to have him between 11.30-2.30 each day as this was his sleep time.  Can they do this?  
Hi I really feel for you. Good luck with everything.
gran1956 said
"the magistrate awarded him 3 hrs a day, 2 days a week (unsupervised) until the final orders."

Get your languaging right. Parents aren't 'awarded' anything. Children get to 'spend time with or 'live with' parents.

I take it the Magistrate did not view the history of AVO actions or the current assault matter as relevant? Is this the case?

Before commenting on the mothers latest actions since the hearing, what EXACTLY do the orders say with respect of parenting arrangements for the child to spend time with the father?

Is there an order relating to Christmas?

Last edit: by 4mydaughter


4MYDAUGHTER
The wording on the orders is important and this site likes you to say things from the childs prespective eg child is allowed time with father.

Me, I know where you are coming from and I am glad that you and your son were awarded time with your grandchild. Without knowing the wording I suspect that what she is doing is wrong. I hope you see the child this week.
gran1956 said
If an AVO was ordered to be dismissed by a court, can the other partystill include it in their affidavit(including their version of events leading up to the AVO application), at a later date inorder toassist their case?
It is very important that you do not spend all your time arguing about why an AVO was not made. Others have said a similar thing. Clearly the other side dislikes you and wants to discredit you and says you are abusive and violent. There is much conflict here (entrenched conflict) and they want to show that to the Federal Magistrate in the substantive family matter. ANYTHING can be introduced in Affidavit form and whether the Federal Magistrate will consider it is another thing. The dismissed AVO matters are the least of the issues as has also been stated. A court has already found there is no matter to answer so why would the Federal Magistrate spend time on something already determined.

However what the Federal Magistrate will be extremely interested in, is the entrenched conflict between the parents which is NOT in the best interests of the children, and how he/she will deal with orders that facilitate some sort of workable arrangements between the parents that will facilitate the children having contacts and any sort of reasonable life without constant at war parents.

It is in this area you need to be assisting the court by coming up with a set of draft orders you could present as part of your material.

Is this matter in a Federal Magistrates Court?

Orders like this are completely inadequate.
3 hrs a day, 2 days a week (unsupervised) until the final orders.  He also said that it could be which ever days he wanted.
What do the orders ACTUALLY say. Are these orders made at a mention or interim hearing ? When is the final matter to be set down? Saying something to the parties is completely meaningless and will not be adhered to or enforced. What is written up as orders counts. Dropping off and picking up from a local police station is simply NOT on and the lawyer should have immediately argued a different location. The children are not criminals (and at school are briefed by community police that they take "bad people" to the police station) and why should they have to be forced to have hand over at a police station where there are usually a range of undesirables lurking or about to be taken into custody. It is entirely inappropriate and I am really surprised that if this matter was before Federal Magistrate that you would have such orders. What was the rational behind dropping off and collecting from a police station?
 

 

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
@ SPCA I don't like drop-offs at Police Stations but there is history of an alleged altercation between father and mother's boyfriend. There is a possibility that the mother may attempt to 'set up' the father, she may have already done so.

Police station is an ok solution in the interim.

4MYDAUGHTER
It was an interim hearing and the final hearing has been set for 6 April. My son finally got a copy of the interim orders today.As I don't have a copy in front of me, I don't know the exact wording, however, he said he was awarded (sorry but I don't know what other word isgramatically correcthere)two days a week, 3 hrs each day, on days nominated by the father to fit within his roster on the basis that she arrange a third party to handover.

He suggested a police station half way in order to avoid her boyfriend, but she wantedthe police stationcloser to her home. The magistrate ordered the one closer to her home until such time that my son was able to secure an enrollment ata specific changeover service.The police station obviously doesn't make her feel "safe" as she refused to bring him yesterday or today because shewas unable to arrange a third party to hand over. The orders didn't say subject to her being able to find a third party. Apparently it didn't go down too well with her when the magistrate allowed contact so we believe she's making every effort to try and prevent it.
 
My son attended the duty solicitor today and after reading through the orders, she advised thathis ex isin breach of the orders so he's lodged a contravention. He has also let her solicitor know the days/times he would like to spend time with his son. It will be interesting to see whether they will comply this time.

The hearing was at 10am however, the magistrate adjourned until the afternoon so he could have time to read the documentation. He did say at the time that the assault incident had no relevance, however, in the afternoon in front of everyone, he said he didn't think my son had a chance with "self defence" (even though he doesn't know the full story). I'm sure this will get passed on to the boyfriend. He may have then though the assault incident was of some relevance which is why he may have ordered the police station and only "awarded" 2 days (for 3hrs each day). My son had requested 5 days a fortnight which is what he had prior to the incident.

My son was a bit disappointed too because through his inexperience, he wasn't sure how or when to bring things up in his affidavit which he thought were relevant.
gran1956 said
My son was a bit disappointed too because through his inexperience, he wasn't sure how or when to bring things up in his affidavit which he thought were relevant.

Disappointed? He got the result he was looking for didn't he?

As I have stated previously, it would be better for your son to obtain information/advice on this site directly himself rather than vicariously through you. Its getting a little frustrating to be honest.

I've previously sent you my affidavit, drafted interim orders for him, provided feedback on both your affidavits - and he hasn't bothered to call and thank me.

So I'm done.


4MYDAUGHTER
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