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AVO against my partner who I live with from my daughters

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Hi to all, apoligies in advance first post new to site.

In a nutshell my ex has put an AVO on my partner … against her (my ex)and my daughters meaning that theycannot stay were I live.

There has been no threatening behaviour from my partner to my ex.

There has been a couple texts and emails but never anything threatening. We are planning on fighting it but were wondering if there is any way of getting it revoked or amended thru Family Law Court, this basically stops me from having my girls stay were I live. Thank you

Last edit: by Secretary SPCA

I have made minor edits to the topic to try and make it easier to read.

Firstly the Police would normally take AVO proceedings. We have filed AVO proceedings with the court directly but these are treated a little differently and given different levels of priority.

Your ex (the mother of your daughters) has had someone (Police?) lodge AVO proceedings, so there is an INTERIM AVO in place… Is that correct?

The Interim AVO covers the ex and the daughters and is against your current partner (Is that correct?)

If it is an AVO it will be heard in a Magistrates Court not a Families Court (Federal Magistrates or Family).

It will entirely depend on what the AVO documents issued by the Police say as to contact with the girls. It may just say your partner must not molest for example. It will also depend on what Federal Magistrates or Family Court orders you may already have in place as they are a superior court.

You will need to publish the exact wording of the order.

As a side note the title suggests the daughters have taken out the AVO.


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
 
Hey there Hardlyharty

I have been in this situation, so can offer some insight from my experience. You definitely need to check the terms of the order. If this has recently been served on your partner by police, and you are certain there was no violence or confrontation between the ex and your new partner, it is most likely an interim order made by a chamber magistrate. This type of application does not require any solid proof - your ex simply has to attend a chamber magistrate's officice and give them a run down of her reasons for seeking an AVO. If her alleged incidents meet the criteria, the chamber mag will grant the application, regardless of whether the "evidence" is true or not; it is not their job to ascertain the accuracy of the claims, they have to err on the side of caution and set a date for mention, so the matter can be heard in court. An interim AVO will be instigated from the moment your partner is served the papers, and she will be bound to abide by the terms of it until the hearing. The papers will list options for terms, which will say something to the effect of:

a) "the defendant must not stalk, molest, harrass or intimidate the applicant or protected persons".
b) "the defendant must not be within 100 meters of the protected person, or any school or place of work they attend"
(this is just a rough recollection off the top of my head, but you get the picture).

The terms that apply to your partner will have been specified.

If the latter applies, then generally speaking, no, your partner can not approach the children. If it is only the former, then your children can stay with you and your partner, so long as she refrains from "stalking, molesting, harrassing, or intimidating" your kids. Ridiculous, I know. This was the situation I was in. Initially we thought I wouldn't be able to see my step daughter, but that wasn't the case.

However, if you have contact orders in place for your children, those will generally override the AVO.

If she truly did nothing wrong, then it's unlikely the AVO will be continued after the hearing. The onus is on your ex all the way to prove that she has reasonable fear, and in fact fears your partner. While the standard of proof is lower than in criminal proceedings, your ex will still be expected to corroborate her version of events with some form of evidence. Your partner needs to get a decent lawyer and fight it hard. This kind of move is often used simply as an intimidation tactic. Some people get all the way to the hearing with lawyers blazing the way ahead, hoping that their confidence and bravado will scare the defendant into consenting without admissions to the AVO to avoid the hearing (not recommended!). My partner's ex bluffed her way right up to the morning of the hearing, and had her barrister try to negotiate with my solicitor for me to consent without admissions. When she realised it was not going to happen and she was about to enter a hearing with no evidence to back her allegations, she withdrew the application against me. Much like your ex, if she had lost the case, she would have been liable for my court costs. So unless your ex has a pretty solid case against your partner, she would be a fool to risk a hearing for which she has to pay first for her own solicitor, and then potentially pay your partner's costs as well. There's no legal aid for AVO cases, so she could end up 2-5000 dollars out of pocket for nothing.

But yes, it would be helpful if you could clarify the terms of the interim order and any family court orders you have in place. Then you will get more accurate and relevant information.

Thanx to all copy of restraining order

Attachment
copy of restraining my daughters are in the bottom section
178 views (1.40 MB)
This is an "Interim" AVO in which you may not contact or go within 20 Metres of the named parties unless you are attending court.

It stops everything for the moment until you defend the matter in the Magistrates Court which I would assume will be fairly soon.

It is extremely unusual for such an order to be made directly from the court without some sort of very reasonable grounds. In the East it is usual for the serving of documents on you first. However WA does not always adhere to normal conventions and has a star chamber approach it seems where the application will be heard in a closed court meaning the public will not have access to the court. The applicant is asked to give verbal evidence or provide an affidavit to the Court and if an order is granted it is an interim Violence Restraining Order.

The Court will prepare the interim order and the police will serve it on the respondent. The interim order only comes into force when it is served.

It is not an order made or executed by front line Police it is an order that has been made by application to the court or so it appears. The party taking out the AVO must have had a very good story to tell because it covers the children as well as the mother , or so it appears. Why did you not know this was coming?

You need to treat it VERY seriously and as a matter of great importance and some urgency. This particular order may well over ride any other orders. You have 21 days from being served to either lodge a consent or objection to the order. You will of course have lodged an objection I assume. If the respondent (YOU) consents (or does nothing within 21 days after being served) the interim order becomes a final order and both parties will be notified by mail. Interestingly these orders when final are for a minimum of 2 years in WA. We normally see one year in the East unless you are a very naughty person.

The application form I see asks you to declare if there are any current family orders relating to the respondents rights in relation to children who may be affected by a restraining order? If this is the case I am surprised there is no mention of that.

Also the form is fairly clear in the reasons:

Have you been committing an act of abuse against the person seeking to be protected
Have you been behaving in a way that could reasonably be expected to cause fear that a person seeking to be protected will have an act of abuse committed against him or her
Have you been exposing a child to an act of family and domestic violence; or
Have you been behaving in a way that could reasonably be expected to cause fear that a child will be exposed to an act of family and domestic violence

If you have been doing any of those four things expect to have an order made. The law may change after March/April and they may remove the "reasonably be expected" bit so almost all allegations will succeed after that date when the new legislation is brought in around Family violence amendments… (Unless we are able to have it altered)

That's how it works in WA.

It is possible that if you have Family Court orders that these might allow you some flexibility with the kids as you will have specific orders made from a higher court that must be followed. I am not entirely sure in WA if this is the case so you will need to seek advice with the Magistrates Court as they will presumably have been given a copy of any Family orders by the ex and I see no mention of those. It is a mandatory requirement to advise the court of any other orders. One thing is for sure that it is not just about a few texts and emails. Prepare carefully and get you objection in immediately.

An interesting case. Keep us posted.

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
 
Wow… that's quite a harsh interim order. Either something has happened or she is an extremely talented liar..? Either way, I can't help you at all with W.A. proceedings. It's like another planet when it comes to the legal system. Good luck, and as already suggested, take this seriously.
Thanks Guys,

In answer to the secretary none of those things have happened. There has never been anything against my children from my partner or any of her family. From my partner there has been no threatenning communication at all. There was a text from her 18 yr old daughter, that told her to shut her mouth or she will make her life hell. And 1 phone call that was threatening but that is it. Have taken the transcript to a lawyer and he couldn't really see anything. What to me is unforgivable is that this will mess with the relationship my girls have with my partner. Both of my girls love my partner alot she generally gets more attention than I do. My ex has included in her statement for the VRO that her daughters were present whilst this was being discussed, I would like to know how this was possible as any communication was by phone and after about 9 pm from memory.

 She makes the comment " I just want to make it clear  I am not looking to interfere. I   am very happy for my husband with the children, there's no problem with that relationship. I just have a concern with them going to the house, I'm just concerned with my little ones that they're going to be used to cause more trouble."

JP replies " But this is only for you",   ex " and my daughters" ,   JP " No this is for you only",   ex  " was meant to be for my daughters too", JP  " No it's not, nothing here about children" ,  EX " Okay there is a problem because I wanted my daughters included too" ,   JP " Well it I can put them under section 68"

JP" How long this going on for what's the relationship been like" Ex " There was an incident back in August, a confrontation when I went to pick up my daughters once from there house and the daughter (my partners 18 yr old daughter) threatened to hit me. There's been niggle, niggle for months over just all silly stuff."

JP " Well have they been threatening you in all that time?" ,   Ex "No, no just niggling you know"

Some of this is hard to make out exactly who is saying what. This is my interpratation of it.

JP "But how would you feel if we didn't grant this order today? " not sure on this think JP and misunderstood or typed " The only threat has been back in August when the daughter threatened to hit me."

Ex " Well what about this one where she said ? And this one now."

JP maybe "Okay?- Ex " And my other concern is then, I've rung myex  husband after the daughter has rung (my partners 18 yr old daughter) and said " I'm going to come and slit your throat", the mother (my partner) has got on the phone and said," you deserve it for what you've said" (which is untrue about what my partner said), (and also untrue that her daughter said she was going to slit her throat). Someone did make a phone call along those lines though.

JP  " Whats going to happen if we don't grant this",  Ex "that my daughters will go over there and keep getting, you know for me it's just been niggle, niggle, niggle. I don't know these people. I don't know why people do stuff like this. I don't - I'm scared. I'm lying in bed lookig at the ceiling. I've got my brother sleeping over.

JP " All right. My colleague and I believe you are going to need some protection further down the track I think?"  EX  "Thank you"

JP " In this case we can put children in under sect 68, okay"  Ex " thank you"

JP "Which we will do?" Ex  " I just want to say I'm not trying to interfere. I don't want you to think I'm doing the "

JP " All right. Sit back and relax and let us do our work, allright?"  Ex  " Thank you"

More on girls names etc, school, the restraining order details. Final comments JP  " Thank you very much ladies"   Ex " thank you"  JP  " Have a nice afternoon" Ex " yes you too? I will now thank you"
I shake my head in bewilderment… Goodness me, I am glad I don't deal with WA courts all that often… I despair for the future with proposed legislation changes as this is an example of how it will operate in the East. I wonder if my SRL-R colleagues can offer advice here.

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
 
I've sat in a number of WA Family Court hearings where the Magistrate has varied Violence Restraining Orders to facilitate care so the answer is yes.
In respect to contact with the girls it seems to me 20 Metres is not that far. You might be able to have your
This should read "your partner" not your ex
go out for a while OR in another area of the house when your girls are over… I would measure an area so there is no doubt as to the distance. She cannot talk to them however even if they talk to her. With these orders we often see the protected party (In this case the girls most likely) make contact or want to talk to the other person. It gets particularly messy if the mother argues that they were coerced into talking with your partner so to make it simple try and manage the order on face value that is have no contact whatsoever with any of them. You cannot communicate about any matter… I will repeat that comment for clarity.. You cannot communicate about any matter. So if she calls to talk about school issues you have an interim order that currently prohibits you from discussing such issues. She might start to get the picture of what she has done if you implement the order fully. Its complete nonsense it seems in this case. Niggle niggle niggles is all I read. Goodness me get a life !

Last edit: by OneRingRules


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
 
In addition to what Secretary_SPCA suggest, it is very common for false allegations AVO, VRO's etc to be used to enact vengeance and or for financial gain. If this is the underlying reason then by making adjustments to accommodate the orders will undermine such a reason. Additionally making such judgements could well be seen by a magistrate or judge in a good light and thus make it even more likely that they would see the best interests of the children being served by overriding the orders.
I'm in agreeange with Secretary SPCA  - this seems ludicrous. Her main complaint is "it's just niggle niggle niggle" ?? I assumed she must have done some pretty good story telling to get this far, but it seems that all she needed to do was give a vague allegation of a threatening phone call - no real details or evidence mind you - and they were all too happy to take her at face value!

As MikeT says, these kinds of orders are so often used for vengeance or other underhanded tactics.

However, there's another possible motive that I have seen many times myself now. You state that your daughters love your current partner and are very excited to spend time with her. If your ex is the jealous type, this could be the sole reason for her actions. It may be that she is just furious at the prospect of her daughters enjoying the company of another female in a somewhat maternal role, and will do whatever it takes to cut this off. In my experience, this kind of jealousy seems to be most common with daughters rather than sons. Don't understand it myself - I have 2 daughters, and when their father has had a partner now and again, I've just been happy for my girls if she treats them with love and respect and they like her. But some women it seems, just can't handle seeing their daughter/s forming a bond with another woman.
Thanks for your replies and comments.

Fairgo,

How do I go about such proceedings have seen a lawyer and he is going to see if he can possibly get it amended at the mention date. But I feel the whole thing is a crock, we have my mother and one of my uncles that are prepared to be character witnesses as to the interaction between all the family members which is my partner, myself, her 18 yr old daughter, 16 tr old son, 12 yr old son and 3 yr old daughter with my 4 and 6 yr old daughter. I have sent my ex an email stating that this is bull and if she is really that concerned about contact from my partner we are prepared to do an undertaking of the court and copy and pasted the definition of it from the family law court. My thoughts on course of action from here and advice from lawyer is to start mediation/family resolution proceedings. What are your thoughts on this and can you offer any advice.

To the Secretary,

Unfortunately I am still allowed to communicate with her,there is no order against myself other than communicating anything from my partner to my ex. As for my partner being her or any where near my girls that wouldn't work as my eldest daughter generally wont leave my partner alone. To me this goes against the best interests of the children and how could have they been included there was nothing in the transcript to say they were at risk and for that matter there was nothing in the transcript against my partner. As for my partners 18 yr old daughter there has been no continual ongoing threat of violence or intimidation only retaliation to the niggle niggle.

On a side note apoligies if this not correct place but goes to the back ground and some of why this has possibly come about. I am basically to nice for my own  good. I earn a good income so maintenance for my girls is in the region of $1000 a fortnight. My ex partner already had a son when we got together and his father rarely paid maintenace. Her son was attending a private school when we split up. I paid over and above the 1000 maintenace, for most of the last almost 2 yrs I was paying an extra $800 a fortnight. Making my payments to my ex $1800  a fortnight. My girls also attend a private school. During the course of the time I also gave $4000 towards the cost of a car as an incentive for him to behave and finish school. We my ex and I had a disagreement about wether my partner could come too the girls christmas concert. When it was first discussed she threatened to remove the girls from the concert if my partner was going to attend in front of my girls which upset my eldest daughter. My  ex had also been having problems with her son he was being violent and was almost expelled from school. So he was spending alot of time at his fathers. And this idiot here was paying for everything. That was when I ceased some of the extra payments which was near to the end of the school term. My ex told  me she still had about 3 to 4 thousand to pay and wouldn't finish paying it to early this year. My reply to her was to get his father to front some money or sell the $8000 car and get cheaper one. I drive a $2000 car. Due to tyhe restraining order being put on and personal  reasons like the fact that I have not been at work since early November I ceased all extra payments. I have been borrowing money to pay maintenace and some of the extra payment as I have not been paid all the time since coming off in November probably in the order of at least $7000 short. Did I go to CSA and alter my payments no. Also have more to add to this line but it goes more towards property settlement advice. So were is the best place for posting that.

Thank you
hardlyharty said
…. I have sent my ex an email stating that this is bull and if she is really that concerned about contact from my partner
Just be careful she doesn't append you to the order.
hardlyharty said
We are prepared to do an undertaking of the court and copy and pasted the definition of it from the family law court.
It needs to be considered very carefully as should any issue arise after the undertaking the Police can immediately implement an order. In my view unless BOTH parties take out the undertaking it does not level the playing field. Some say it doesn't matter and an undertaking is nothing much. You will have to weight such undertaking with what may possibly transpire in the future and it will leave a sour taste in the matter that you have had to agree to something which you should never have had to agree in the first place. There are probably no employment implications but a joint undertaking should be sought.

What is this definition you have from the Family Court. You refer to the Family Court. Are there significant orders existing?
hardlyharty said
My thoughts on course of action from here and advice from lawyer is to start mediation/family resolution proceedings. What are your thoughts on this and can you offer any advice.
It is way to late for that. You have to deal with this in the Magistrates Court.
hardlyharty said
…Unfortunately I am still allowed to communicate with her,there is no order against myself other than communicating anything from my partner to my ex. As for my partner being her or any where near my girls that wouldn't work as my eldest daughter generally wont leave my partner alone. To me this goes against the best interests of the children and how could have they been included there was nothing in the transcript to say they were at risk and for that matter there was nothing in the transcript against my partner. As for my partners 18 yr old daughter there has been no continual ongoing threat of violence or intimidation only retaliation to the niggle niggle.
Your current ex is not able to have contact or communicate. Regardless of your feelings about the matter the order is now in place. It makes it impossible to have a proper operational relationship at your location with your current partner involved. I am not sure if your 18yo old is named as a protected party. Perhaps that relationship may continue.

I would be trying to reduce contact, support, assistance and financial support to your ex until she sees this is a complete nonsense. That may set some reality in place. I liked the response from rabbit as it seems very plausible and an argument your partner should certainly use.
hardlyharty said
…I have been borrowing money to pay maintenance and some of the extra payment as I have not been paid all the time since coming off in November probably in the order of at least $7000 short. Did I go to CSA and alter my payments no. Also have more to add to this line but it goes more towards property settlement advice. So where is the best place for posting that.
If you have no employment and a reduced income why have you not advised the CSA? Borrowing money to pay the child support is a recipe for disaster.

There are a number of CSA forums but Mike T and a number of others here have expertise in that area

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
 
If you have no employment and a reduced income why have you not advised the CSA? Borrowing money to pay the child support is a recipe for disaster.

There are a number of CSA forums but Mike T and a number of others here have expertise in that area

If you have a reduced income then you should submit an income estimate which should affect the CS immediately, although the CSA have a tendency to try to hinder anything that reduces the amount transferred or collected. I would suggest that you put anything in writing. If you do use phone contact then for legal purposes you are advised to record the call say via a recording device recording from the speaker phone (basically it's illegal to use the phone system itself to record but it's not illegal if not using the system). If you do record the conversations you have no need to inform the other party and it is inadvisable to inform the CSA as operatives frequently and also wrongfully hang-up.

It is good to be pre-informed. A useful tool is the CSA Guide which can be found at www.cas.gov.au and then by clicking on the Guide (in the Navigation Bar at the top) or by moving the mouse over Legal Professionals and then clicking on The Guide. You'd likely want to have a look at Section 2.5.1: Income Estimates. Here's a link to that section The CSA Guide - 2.5.1: Income Estimates
hardlyharty - SPCA has provided most of the answers you need. Whist you appear to need court orders for the care of your children, the VRO is a different matter that requires immediate attention. However if you initiate the Family Court process (mediation etc...) this may get the ex to rethink the reasons behind the VRO application and she might drop it. Regardless the outcome and given that mediation has failed, when you apply to the Family Court for Interim orders, a variation to the VRO to facilitate care would be amongst the orders sought.
It's only an interim AVO. The Registrar in this instance is a moron.

Re the incident back in August. Registrar should have asked ex, "Why did you not report this incident back in August sooner?"

The only conclusion is - "ex didn't have genuine concerns about it." The Registrar should have picked up on this.

Are there Family Court orders in place?


4MYDAUGHTER
Hey 4MyDaughter,

Thanks for your comments  and no court orders are in place.
JP maybe "Okay?- Ex " And my other concern is then, I've rung myex  husband after the daughter has rung (my partners 18 yr old daughter) and said " I'm going to come and slit your throat", the mother (my partner) has got on the phone and said," you deserve it for what you've said" (which is untrue about what my partner said), (and also untrue that her daughter said she was going to slit her throat). Someone did make a phone call along those lines though.

You say "someone did make a phone call along those lines". So something was said by your partner or you partners ex?

Why is you partner or your partners daughter contacting your ex at all?

Messy situation. You need to set some boundaries in your household.

Perhaps you should explain to the 18 year old that breaking the FVO is a criminal offence, with potential jail time.






4MYDAUGHTER
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