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hey all,after reading some judgements of family court recently i've become confused regarding the presumption of equal shared parental responsibility under s.61DA ,once a finding is made that there has been family violence, the presumption is rebutted .So say an AVO is granted the mother in a state magistrates court despite there being no evidence of prior family violence,merely her "fear of what may occur".Later on when the parents are in Family court regarding children's issues does the judge automatically see there is an AVO in place & therefore family violence was deemed to have happened-hence rebutting presumption of equal shared parenting or is the judge obliged to rehear the claims & defense.
cheers
The Judge should hear all claims and examine the evidence.
In reality though this is not often the case and Judges tend to go forward with caution.
Once an AVO or DVO is granted it can have a negative impact in court for the person who has the order against them.
Hmmm,Yes that's the feeling i was getting lately.I'm due up end of month for trial as hell yeah i'm contesting.Will be making doubly sure every second sentence i utter will be reminding mag.that me & ex are also locked in @ Family Court regarding our daughter so if he grants the damn thing-without there being any evidence to back up her claims-but supposedly i intimidate & make her fearful of what "might" happen( sorry but is that just the most pathetic law ever to be enacted in this country,followed up by a bees dink of no penalties for false "victim" claims,or do i miss something on that ?)seems they mustn't have got the memo at my local mag.court regarding expediating cases through when kids are involved as come trial time it will be bang on 6 months i've been leashed albeit by an "interim order" !!!
Yes do mention that you are in family court, but do not be obnoxious about it.
Your best defence is to have answers for all her allegations and witnesses as to you not being a danger. You should use any available witnesses who have a long acquaintance eg have known, lived with or been part of your life for a long time. If someone is not available then try to have at least a statutory declaration from them that demonstrates their view that you are not a danger.
Good Luck

yes

 Yes, if you have any further hearings at the magistrates court, it is very important that you let them know that there will later be family court proceedings.

WHAT YOU ARE SAYING IS SO LAST CENTURY.

Mainly an exiting restraining order is a problem in the early stages of the application. You can expect to be discriminated against by the mediation counsellors and later by the Court staff. Hopefully this will not extend to the Family Court Judge whom is probably quite aware that many restraining orders are made "just in case", and by consent without hearing, and just to put space between people so they can have a chance to cool off following emotional seperations. Some are made by persons whom have been worded up on how to play the system to their advantage. I believe this 'taking advantage' is more likely to occur if social workers are involved.




kalimnadancer said
 If someone is not available then try to have at least a statutory declaration from them that demonstrates their view that you are not a danger.
A Statutory Declaration CANNOT be used in a Family Court. Evidence relating to behavior/character can be lodged in Affidavit form so that it can be challenged. Any evidence that is of a professional nature ie you are not a danger must come from a qualified professional.
The suggestion was for a statutory declaration to be used in AVO application which is usually local court.
Affidavits are used in family law and at the time of trial witnesses are listed by each party. Not all affidavits are used in a final hearing and not all affidavits are challenged or that person needed to attend as a witness in the final hearing. The final hearing is the only time witnesses are called.
From start in family law to final is not a quick process and things change over time.
In regards to AVOs - if you did do something to warrant the AVO, it would be best to 'consent without admissions'. The nice police prosecutor will be only too happy to help - cough, cough!
The reason for this, is that you do not want the local Magistrate making a finding of fact. This would really hurt your family law case.

If you did nothing you have two choices - consent without admission to get it over with or fight. If you are going to fight I really suggest using a barrister called Mario Licha (NSW only) as he has won costs against the police. He also wrote a legal paper on it.

Last edit: by monteverdi


Executive Member of SRL-Resources, the Family Law People on the site (Look for the Avatars).   Be mindful what you post in the public areas. 
Unfortunately I am not in NSW as I have read up on Mario.I am adamant I have done no wrong & hence will not be "accepting without admission".If there is nothing to admit,why would I accept?
Would I not still be viewed in Family Court later as a Domestic Abuser?
I intend to prove my ex as a vindictive,spiteful manipulator with about as much credibility in court as Ivan Milat.
Her ridiculous spew our daughter wants nothing to do with mecountered with 21 voice messages to home phone expressing her missing me and really wanting to come see me.
Her assertion she was sole provider of raising daughter financiallycountered with dozens of bank statements showing her Facebook addiction stretching back several years.
Her hand written journal entries documenting bouts of self harm & questioning her own mental health.Also detailing her identity fraud & kleptomania.
Alleged incidents in 2008 & 2010 respectively that supposedly involved me yet was only made aware of June last year when I sourced a copy of her Affidavit as no "inquiries or investigations" were ever made for reasons unknown.

No DVO sought then & neither day of seperation when she felt police assistance was needed to return to property to gather possessions from front yard as I hadn't responded to her text messages.Nor so during the following 3 weeks within which she had rejected offer to accompany me to counseling,scoffed at the 8 page draft proposal of a parent plan I had requested she take a week to return it highlighting any concerns,reneged 3 separate times the morning of agreed to visits to me from our daughter.Changed her kindergarten,enrolled her in a different primary school than the one we had agreed upon - both without the decency to involve me in decisions.
As the chronology shows it was 3 days after informing her I had been rang informing me we were found a spot with local FDR & my assessment/interview was to occur in a fortnights time…Domestic abuse claims were first documented by way of affidavit.

If the timing of all that wasn't suspicious ,surely, after fronting with a belief of needing "protection" from such an abusive man who apparently couldn't care less about his daughter & had supposedly no parenting skills….surely any mother with those "genuine" fears would NOT personally deliver the child to the fathers house for an afternoons ( 4hrs.) visit…unsupervised 3 days after documenting her "fear".

Admittedly the AVO hadn't been granted by then ( that took another 3 weeks till i was served ) but she had documented this "fear".
Now I don't intend to enter Mag.court with a cocky attitude as realistically I am shi*ping my pants to be honest but if these things are determined by law on a " balance of probabilities " & she has got nothing but a quivering lip & puppy dog eyes against all i have ( i have much more also ) evidence wise,I tell you now come end of Jan.if you turn on tv & see some twit chained up atop some piece of government infrastructure with a banner of some sorts unfurled…..you'll be able to point & say " oh ship,that's a guy from our forum & looks like he got shafted by the ol' SA Magistrates courts therefore there's another poor little girl kidnapped by the system !
Cheers to you all.

Basic edit to make it easier to read. No words changed. Monti

Last edit: by monteverdi


If your ex obtained the DVO in court when you were not present. It may be wise to obtain the transcript of the hearing. It is amazing what some people will say to a magistrate to initially convince them to get the interim order. I think many applicants don't realise you can obtain this transcript and therefore say whatever they want when your not there to defend yourself.
Twentypercent said
If your ex obtained the DVO in court when you were not present. It may be wise to obtain the transcript of the hearing. It is amazing what some people will say to a magistrate to initially convince them to get the interim order. I think many applicants don't realise you can obtain this transcript and therefore say whatever they want when your not there to defend yourself.
 
Hey there twenty……I asked after that & wouldn't you know it…the day they started without me the old lady typing was off & the audio recorders weren't activated.They got very stroppy when I said "I thought it was a court of public record ? & How could I mount an appeal when I don't know what was said in my abscence,do you think I should ask my ex or her police advocate to inform me of what went down?"…..But hey as long as their " one note xylophone" was operational to amuse the 5- C4 boys in the foyer-all peachy !!!:king::king:
I have never heard of a transcript not being available. Maybe someone else on here may no more about how to handle this.

Have you obtained all of the documents that were lodged in the application? If not you should at least get these.

Any successful hearing in relation to AVO/DVOs that I have sat through seem to always be focused on the application not being able to meet the threshold test. So you maybe should read the legislation inarticulate the threshold that is required to be proved and see what aspects of this you can challenge.
Different state maybe.But after they tweaked the act over here(SA) few years back apparantly,it basically resulted in defendant having to prove an applicant isn't fearfull of what MIGHT happen.How can you show a mag.she's not scared or feeling intimidated,merely milking it ? She sticks with it…..your stuffed  !!
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