Donate Child Support Calculator
Skip navigation

DVO?

Add Topic

Can I get one?

My ex and I share a communication book for child visitation purposes. It is mainly used to abuse me in a denigrating fashion. I have decided not to view this book because it spoils my visits with my son but my partner has viewed it and has told me it is several pages of slander again. Can you get a DVO out for this? I believed it was just for physical violence but surely you can't get away with this? What can I do? I am not responding as I'd have to read it first and the last time it  just put a downer on what should have been a brilliant day.
The current legislation relating to a DVO (ADVO) requires a person fears for their safety and there is a standard of evidence required that would meet the "Reasonable Person" test.  This is probably going to change in the near future and under the new definition I would think there is a probably grounds to apply.

Current Definition
The current definition of family violence in the Family Law Act is:
family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the persons family that causes that or any other member of the persons family reasonably to fear for, or reasonably to be apprehensive about, his or her personal well-being or safety.

Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal well-being or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal well-being or safety The Family Violence Bill proposes a completely new definition of family violence that specifies the types of behaviour that constitute family violence.

The proposed definition recognises that family violence can take the form of physical assault, harassment, emotional manipulation, financial abuse and threatening behaviour.

The background to the new definition of family violence is part of a recommendation by the ALRC in its report 128 released in October 2010 in a joint release with the then, NSW Attorney General John
Hatzistergos and the Federal Attorney General, Robert McClelland, to bring all States and Federal Government definitions of Family Violence into one concise definition.

The NSW State Government did not get time to put this new definition before the Parliament before they were removed from office. The Federal Attorney General has been left on his own to
deliver a hastily drafted Bill before the Parliament. Although saying this there is a new enquiry under way in NSW Government currently seeking inputs into changes in state domestic violence law.

New Definition
The new definition of family violence has been extensively extended from the existing definition in the Family Law Act 2007

4AB Definition of family violence etc.
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family (the family member), or causes
the family member to be fearful.

(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c ) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his
or her child, at a time when the family member is entirely or
predominantly dependent on the person for financial support;
or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family members family, of his or her liberty.

(3) For the purposes of this Act, a child is exposed to family violence
if the child sees or hears family violence or otherwise experiences the effects of family violence.

(4) Examples of situations that may constitute a child being exposed to
family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the childs family towards another member of the childs
family; or
(b) seeing or hearing an assault of a member of the childs family by another member of the childs family; or
(c ) comforting or providing assistance to a member of the childs family who has been assaulted by another member of the childs family; or
(d) cleaning up a site after a member of the childs family has intentionally damaged property of another member of the childs family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the childs family by another member of the childs family.

What is disturbing is that any judicial test or "reasonable grounds to fear" for a persons safety have been completely erased from the landscape. There is no longer any test whatsoever and nebulous
words are inserted coerces, controls or causes a family member to be fearful are all that is required to meet the requirements.

This is unacceptable in any other law jurisdiction but may soon be a reality in State Laws as well…

There is no rational basis at all for the removal of any test that can qualify and give courts guidance in relation to matters of Family Violence. Rather than eliminate the test and hence hamper the court
from applying scrutiny of the veracity of allegations and their basis in reality or perception, more evidence and testing of evidence should be the rule to enable judges to accurately assess the real
risks faced by children.

Dumbing down the courts ability to deal with allegations not only burdens the court but potentially leaves children more exposed to danger.

Family Violence

The words and sentences in the definition are critically important in the interpretation and operation of the law. Judicial officers interpret the law and interpret the meaning not in any literal or lay sense
but in a legal and precise sense.

The definition of Family Violence has been so vastly widened as to capture many ordinary events in the everyday life of Australians and their families.
The new definition will surely capture most day to day arguments in non-separating households.

For example:
4AB Definition of family violence etc.
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family (the family
member), or causes the family member to be fearful.

Issues Arising: No Judicial test

Coerces or controls will result in large numbers of allegations of family violence.

(2) Examples of behaviour that may constitute family violence include
(but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
© stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or

Issues Arising: Doesnt differentiate between transitional and prolonged conduct In the lead up to a separation there are many words said in intact and separating families. Where a partner in sheer frustration kicks the letter box or slams the door and perhaps the door handle breaks or is grasping to be united with his/her children after a period of denial of contact. Is that sort of activity sufficient damage to warrant the application of the definition so precisely?

(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or
predominantly dependent on the person for financial support;

Issues Arising: Doesn't provide for modern varieties in individual banking arrangements There are many examples where one parent has taken large sums of money from a joint account and then closed the account by way of withdrawing approval at the Bank to operate the account leaving the other parent without funds. In a number of families it is quite usual for only one parent to control the payments and monthly bill payments and bank accounts.

or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family members family, of his or her liberty.

(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the childs family towards another member of the childs family; or
(b) seeing or hearing an assault of a member of the childs family14 by another member of the childs family; or
(c ) comforting or providing assistance to a member of the childs family who has been assaulted by another member of the childs family; or
(d) cleaning up a site after a member of the childs family has intentionally damaged property of another member of the childs family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the childs family by another member of the childs family

Simple old spousal unfaithfulness is now sufficient to trigger a no fault divorce or separation with allegations of Partner Violence and unsuitability of Fatherhood because of it. There is no issue other
than personal effrontery or narcissistic grieving offered as reasons to destroy families. No external threats, no security issues, just paranoid fear of a partner in a stressful time for all concerned and
use of the children as pawns in a power struggle, enabled by affluence and consumerism.

Criminalisation of human behaviour characterises this whole sad and failed paradigm.

I have mostly dealt above with the Family Law Act provisions and you are looking at a State Act for an ADVO/other sort of intervention order.

In your case you might want to look at any existing orders to see if denigrating the other party are included.

If so let the other party know it is an offence if they don't comply. In any event I would suggest writing a kindly worded note in the hand over book to suggest the behaviour and notes stop forthwith as it is not constructive and benefits no one. Set out what you expect to see in the book. Take a photo copy of relevant pages before the book goes back. If the other party knows you may take some action the book may not appear again. If you can't get the nasty comments stopped have a solicitor write to her with an appropriately worded letter. If that doesn't do the trick have a Federal Magistrate make amendments to your orders.

In the meantime have your partner view the book and only tell you the things that are related to child focused and friendly commentary. That way you won't see anything that upsets you… Welcome to the world of a non co-operating parent who holds that all the evils of the world are perpetrated by you.


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
 
Just to be clear. You have not read the entry but you suggest you have sufficient fear or apprehension to require the protection of a intervention order?

"When there is no enemy within, the enemies outside can not hurt you"

Executive of SRL-Resources
Posts from this topic have been moved by members. 2 posts have been transferred to topicview.

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
 
make sure you photocopy each letter designated to you in this book, try not to let it up set your time spent with child
best of luck xx

Children are innocent and should never be involved in adult saga!
Im not qualified to give legal advice and only give advice on my personal experiances:thumbs:
1 guest and 0 members have just viewed this.

Recent Tweets