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need advice on avo and joint custody

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My 2 month old son's mother recently told me she's going to get an AVO on me and try to stop me from seeing my son. Just wanted to see if anyone knows what my options are with regards to fighting a false AVO and getting access to my son. If you need more details I'm more than happy to elaborate.
Fight an AVO as if one is granted seeing your child will be very difficult.

If not seeing your son apply for mediation so as to start time with the child.

What exactly is mediation? sorry but I know nothing about family law.
Mediation is the first step when not seeing a child.

You need a certificate from mediation before you can start the court process unless there is a reason for exemption.

Contact Relationships Australia and they should be able to start the process and also explain mediation to you more fully.

The idea is to come to an agreement without court. I do not know how often that actually happens.

I am NSW so hope this helps.

With AVO have witness if possible and answer all allegations with an explanation. Prove you are no threat with your testamony.
AVO's are actually quite difficult to apply for unless there is an imminent threat of harm to the mother or child. The police would need to have a strong case for it to get up in court before a magistrate. The burden of proof rests on the mother to prove that she has a 'reasonable fear or apprehension of impending violence'. Yo need to rebut this and providing you have not threatened her, damaged her property or engaged in intimidating behaviour you should have a good defence.
kalimnadancer is correct, you need to prove that you are no threat and never have been so your actions need to reflect that.
If you have engaged in any threatening behaviour at anytime then you need to address that as the laws on DV are hot topics right now and rightly so.
So, if you have never acted in a threatening or intimidating manner you have nothing to fear as the evidential burden of proof will rest on the mother.
As for seeing you child, again kalimnadancer is right, you will need to set up mediation and it is a pre-requisite now to any possible court action in the future i.e. you must have an 'FDR' certificate before commencing legal proceedings.
Things to look at when seeking time with your child is the practicality of the arrangements you seek as in your working hours, the age of the child, geographical distance and how involved you have been to date. You have a right to see your son as he does to see you providing of course there are no DV issues.
Good luck with it all and I hope things work out for you.
Loujane I am not sure what planet you are from, but AVO s are the easiest things in the world to apply for and all someone has to be is frightened. Lies also help.
Loujane I'm sorry but I'm with Kalimnadancer - what planet are you from???

AVO's are EXTREMELY easy to apply for and be heard before a magistrate, and police don't even need to be involved. Anybody can walk into a chamber magistrate's office and make a complaint, and unless the complaint itself contains no indication of any kind of harrassment, the chamber magistrate will err on the side of caution and grant the application. This means the complaint does not have to be based on facts, it just needs to state that the applicant was stalked, harrassed, molested or threatened at some point recently. The chamber magistrate will not attempt to substantiate the claims, nor will they question the validity. They will simply grant the application and set a date for mention.

As for the "burden of proof", AVO's are a civil matter rather than criminal, and therefore the standard of proof is a lot less stringent. In civil matters it is the "balance of probabilities", as opposed to the criminal standard of "beyond reasonable doubt". This means that based upon evidence presented, the court must be satisfied that it is "more probable than not" that the alleged events occurred - a difficult thing to substantiate if there are no witnesses for the defendant, even more difficult if there is a false "witness" willing to corroborate the alleged story. On top of that, the issue of proving that "A person has reasonable grounds to fear, and in fact fears" the defendant, can also be problematic. Actual events (arguments etc) can be misconstrued or twisted to appear threatening. This leads to a situation where the event itself is not being denied, but the details are questionable. Her word against his. In a civil case, this is  enough for the judge to assume the woman's fear is "reasonable", and even though the evidence is not clear cut, it is at his/her discretion whether or not to grant the AVO. As I've said before, my solicitor informed me that it may sometimes be simply a case of which story the judge finds "more compelling". There are no guarantees of a positive outcome for an innocent defendant.

AVO's are way too easy, and one of most commonly manipulated tools used to deny access to children. As I always say, you should avoid them at all costs. Bigcol, if your ex has threatened that she will apply for an AVO to prevent you seeing your son, believe her! Don't take it for granted, take action now, because if she is that way inclined, she can and she will. An AVO can weigh heavily against you in the family court (ie, custody cases etc), so take it seriously. Get a journal and start taking notes of every interaction you have with her - day, time, place, what was said by both parties - starting with the threat she made. This will be very useful if you do wind up in court defending false allegations. If you have to interact with her, ALWAYS have a friend or relative present as a witness. Keep your conversations brief, never engage in an argument. You can even take a voice recorder and record conversations either covertly or openly as a means of deterring false claims. This is perfectly legal under the listening devices act. Get in contact with your local Family Relationship Centre immediately and tell them you would like to mediate with your ex. They will guide you through everything you need to know about the process. It is imperative that you get the mediation process underway as soon as possible, as it can be quite lengthy and the longer you go without seeing your son, the more reluctant the courts will be to let you have reasonable access to him. In the meanwhile, use the search feature on this site and get reading on all related info (there are many topics where this stuff has been covered in greter detail). That way once you get to mediation you will be informed and educated, and you won't be duped into agreeing to an undesirable situation. Good luck.
'lies also help', 'complaint does not need to be based on facts' 'magistrate will not attempt to substantiate the claim' wow you guys are right - it is too easy!
That's just it Loujane. The way I see it, AVO's aren't really that useful to anybody. In a case where somebody truly fears for their safety, an AVO is of little benefit. A genuinely violent and irrational person will not hold back because the court said so. These kinds are not in control of their anger, and if they wish to visit and assault the person in question, a court order will not stop them. The more common use for AVO's is for a woman to manipulate the system to her advantage and gain the upper hand in custody disputes. And why not? They are simple to get, effective for discrediting the ex, and if the claims are not substantiated and the application dismissed, there are no penalties; it is extremely difficult to prove the claims were vexatious (even if it is blatantly obvious to all involved), and due to changes in the legislation, costs are never awarded to the defendant if there is/has been a domestic relationship between the two. Which of course, there will have been in most cases. The "victim" however, can seek to to recover costs if the application is granted - regardless of domestic relationship! So really, these vindictive kinds of women have nothing to lose in trying.

Unfortunately the legislation that has been developed to make it is easier for the real victims of domestic violence to seek protection, has also made it easier for the manipulators of the world to take advantage of the legal system to further their own selfish agendas - often at the expense of their children's happiness.  
bigcol,

What a terrible situation if your ex has decided to be so vindictive. Be proactive and don't give her any chance to accuse you of anything.

Eg. Keep any interaction between you and your ex at a minimum. When it's necessary to make contact, make sure it is in a public area and don't react emotionally (as hard as that is). But she is obviously going to use anything she can against you.

KEEP A DIARY of all your contact with her, and your child, of what happened and at what times. and be business-like. If you have something important to discuss about your child, write it in a letter and hand it to her (and keep copies!). Or Email her. Never be intimidating or threatening, but keep it child focused. Talk about positives that can be achieved if you can work amicably with each other. Anything she can use against you in the way of intimidation, she will.

Try calling your local Family Dispute Resolution service and talk to them about it, and book in a session. They will listen to your side of the story, and invite her to do the same. They will usually discuss ways with you to deal with the situation effectively and they are non-biased towards the mother or father. The difficult thing about this is that if there's any accusations of you being violent (whether it's true or not), they might not consider it appropriate to continue the mediation. Either way, you will get a certificate that means you can take it to court. But it's compulsary to try mediation first. It's your best bet to initiate mediation so you can show you are doing your best to work through this in a professional manner.
You can do mediation over the phone through Family Relationships advice line on 1800 050 321, or physically have an appointment at your nearby one, found in most major towns.

Also, these Family Relationship Centres usually offer parenting courses. I strongly recommend you attend one of these, as they will build up a portfolio of evidence that you are trying to work with your ex, rather than work against her. It will show a judge that you are doing the right things. Often the judge will order you to do these courses anyway, but why not be proactive and be one step ahead?

I don't know much about the law of fighting an AVO but I hope my general advice is helpful. This is exactly what I'm doing anyway, and it's working well.

 

same here

Yeah i have the same situation, my ex left 4 weeks ago to this day, every weekend i would pick my son up for weekend access, but today i call her to arrange to pick up my son, and she informs me i have an AVO placed on me "first i don`t even know about it, i have not been severed with any papers" any way things were doing good up until she starting talking to her sister and her solicitor, apparently her so called solicitor advised her to get the AVO on me, if this is not abuse of the system i don't know what is….
In the end shes hurting me and our son " stopping a parent or guardian seeing a child is one major form of child abuse"

So where do i stand, i thought i had the right to see my son O_o
coil - This is where you stand. You have no rights however the child has the right to a relationship with both parents. The mother is usually deemed the parent most able to meet the emotional needs of the child unless you can show that she suffers from a mental illness or like. You being the father is seen as the provider and less able to meet the emotional needs of your children. Therefore the court will usually give greater care time to the mother. If the mother needs $$$ they usually try to reduce the care to below 35% so they can collect 100% of family benefits and more child support. Maximum child support is payable when you have less that 52 nights per year. I'm not sure what you have been up to but the AVO would need to include your son for you to stop seeing him otherwise the court would vary the order to facilitate handover.
coil said
Yeah i have the same situation, my ex left 4 weeks ago to this day, every weekend i would pick my son up for weekend access, but today i call her to arrange to pick up my son, and she informs me i have an AVO placed on me "first i don`t even know about it, i have not been severed with any papers" any way things were doing good up until she starting talking to her sister and her solicitor, apparently her so called solicitor advised her to get the AVO on me, if this is not abuse of the system i don't know what is….
In the end shes hurting me and our son " stopping a parent or guardian seeing a child is one major form of child abuse"

So where do i stand, i thought i had the right to see my son O_o

Well there can't be an AVO in place on you if you haven't been served papers. An interim telephone order may have been made by a magistrate at the request of the police but this would be for more serious urgent matters.

Perhaps the mothers making it up? Perhaps she approached the police about it but they didn't do anything. Call the Police and find out!

AVO's are a pain in the a^^^. But in child related proceedings they don't necessarily mean anything in a Family Law Court.

Are there parenting orders in place?

If so and assuming you're in NSW, unless the AVO was suspended family court orders under section 68R, the orders are still in effect. Which raises the issue of contravention of orders.


4MYDAUGHTER
No there is no orders in place and i have been doing a workshop via relationship australia, they say i need to do this to get a parenting plan or something, It seems like the AVO might be a made up cause its been 4 days now and i have not heard a thing from the police, should i just call them to find out if i have one in place ?
Should you call them to find out? I'd suggest yes. You need to know what the situation is, one way or another.

If there is no AVO in place, perhaps send her a letter summarising the facts in relation to her withholding contact. You could call it "Notice of Denial of Parenting Time". You need to develop in evidence trail.

Example

Notice of Denial of Parenting Time

1. I arrived for changeover at XXXX on XXX to pick up XXXXX as per our parenting arrangements

2. As you are aware, the parnting arrnegemnt for the last XXX years has been …………….

3. Upon arrival you told me "that an AVO had been issued preventing me from having contact" or words to that effect.

4. I am not aware of any situation, circumstance, incident or event that would form a proper basis for an AVO.

5. On this basis of this alleged AVO, you withheld at XXXX changeover and therefore he/she has prevented from spending time with me.

6. On the bais of the information provide by you, I contacted the NSW Police and was reliably informed that no such AVO exists as you alleged.

7. Therefore, I will be in attendance at XXXX on XXXX for changeover to pick up XXXX as per normal parenting arrangements.

4MYDAUGHTER

DVRO

Hi All

Well I can tell you that my ex attempted a DVRO (in SA) some 6 years ago when she took the children when we had shared care.

The matter went to Court and I fought it - but at the time SAPOL prevented me accessing the school each week to ascertain the wishes of the children if they wanted to reside with me - basically they tried to breach me twice on the Interim DVRO.

My ex - told me here legal aid lawyer (and I might add my ex exceeded the granting cap on legal aid) told her to do the DVRO to make it difficult.

Then because I took it to the Family Court (round 2 of many) and got some orders for contact - the ex dropped the DVRO like hotcakes because I was having contact again.

But….

By that time I had lost 6 months of my contact time, and funnily enough 4 years later CSA decided when they found out about the DVRO to change the records in the CS Register and accredit me with "no care" and the ex with 100% care!!

Not that it cost me money - I just think it is wrong how they recognise an act that was deliberate and wrong!

So fight any AVO or the like and do it through the Family Court as that should take precedent over a state based AVO
4mydaughter said
AVO's are a pain in the a^^^. But in child related proceedings they don't necessarily mean anything in a Family Law Court.
In child related proceedings AVOs can actually mean a great deal.
  • Contact may be suspended whilst related allegations/claims are investigated.
  • They slow down proceedings often causing staggered Interims.
  • The Court has to decide whether a child might have witnessed or may witness violence between the parents.
  • If children are included on the AVO the process becomes exacerbated.
There is the hoary chestnut of "Just consent without admissions, it does not mean anything" only to find it is immediately raised in a Family Court.

SRL-Resources. the Family Law People on this site (look for the Avatars) www.srl-resources.org  Non gender Professional and peer support for SRLs. Closed site, no public forums, no search engines, no lurkers, guests or the other side and their Lawyer and Friends.

Our bubs

One successful interim NSW ADVO, then ADVO, followed by District Court appeal, then back to Local Court and dismissed.
Bubs was taken to Tasmania and all attempts to visit through contact centre have been at best, hampered.
Second FVO through Tasmania 3 mentions, intelligent magistrate inferred Police were mislead and dismissed.

Cost is astronomical and the process is slow, distressing and you may be excluded from bubs for a long time. Don't retaliate, don't lie and ensure you keep your cool.

Just remember, you both loved each other once and although most distressing, accept the wrong doings of the other person and take responsibility of any of your actions or inactions that contributed to the dissolution of the partnership.

Focus on the child you both share and avoid putting the other person down.

REMEMBER, people do actually get harmed or murdered and we can't blame the beaks/magistrates for taking the safe option.

If an ADVO is issued and you do something, the magistrate was right.  If you don't, it presumed the ADVO was effective.

f in NSW, the Police have a Code of Practice, (Google it) and on page 23 it is clear, the victim, alleged offender (you) and any witnesses must be interviewed & evidence collected.

If it is not, object on grounds of procedural fairness as you have not Ben given the opportunity to provide your evidence.  Ensure you collect as much physical evidence as possible.  
Just remember, domestic violence includes threats, intimidation, stalking and physical violence.  Ensure you do not engage in this.  Screaming is "domestic violence" in the eyes of the law.  Your reaction is your actions in response to your feelings.  No person can make you act or react, only you can control you.

I cry everyday still, but remember, some people get the chance once loved ones are lost through crimes of hate.   

Good luck to all.
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