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Family Law, DVO

Hi All,

I am not sure really what I need to know - I am about to head into court over Children & Property, I have a legal aid funded lawyer, who the police tell me is very good. However, prior to her I had a legal aid lawyer who I believe may have damaged my case.

Following breakup last year DV continued, resulting in myself making civil application and receiving in January a 'full DVO' with the children as named persons, the ex consented to the order. I then agreed to attend mediation (my lawyer insisted it was faster, and if did not work would look better for me that I had tried). Mediation took place 5 months later, I was not happy with the arrangement, but signed, as my lawyer said it would be better to agree and as was not court orders could be ripped up later and renegotiated, but so the kids could see their dad would be better to sign. so i signed. The arrangement agreed to joint responsibility, approx 40% time spent with to the ex, and had clauses in it about contact between parents (communication book only), parenting classes - both parents, anger management - father, etc

This arrangement lasted for 2 months before being suspended by myself following an incident, which not only breached the arrangements, but also breached the DVO, in front of the children. Prior to this there had been a number of incidents which required police attention (though no charges) and the eldest child stopped seeing her dad at all, and is contemplating 'divorcing him' herself. I am counselling her against this.

Father recently took me to trial in attempt to have the children removed from the DVO - only the clause regarding no contact with the children was removed in the end (which I consented to quite happily), all other clauses still apply. Also have in writing that father offered to drop litigation about that matter if I would make a false statement to FAO and CSA!!! While this was going on - the father had given an undertaking to the court to return the children to me (he had during one of the mentions threatened to 'not bother to return the children') and had also during this week of time with the children returned them to me for a day (the one following the court date), and just yesterday returned them an entire day early.

Now he is taking me to FMC over property and children - not a problem (my application was about a day behind his :P), however, I believe he is going to be claiming Parental Alienation and that I have 'been involving the children in adult matters'. His affadavit to the court is maybe 4 pages long with entirely incorrect dates, and claiming he had only hit me once - and never ever the children!! My response (to be whittled down by the lawyer) so far is 50 pages long with just my timeline of events ( to be clear - 50 pages of DV with correct dates :P). I will be asking in my response for sole responsibility for all three children (8, 12, 15), sole physical responsibilty for the eldest, and for him to have only significant and substantial time with the younger 2 children.

I guess I'm a little unsettled as to which way the courts would go, I should also mention I have recently, prior to separation, had a head injury, which left me with a number of difficulties which include speech dysphasia, a general slowdown in processing speed, along with severe headaches, and an inability to 'change direction' midthought (yes this is being pursued in compensation settlement - WBI of 15%). My concern is how I would react in the courtroom, as I am not able to swiftly answer questions etc. My over-riding fear is he will get full 50/50 shared care with his denials (prior to police involvement this year - police not involved at all, no proof).

The children already are concerned, they often request to come home when they do see their father, their father questions them about my personal life and my new partner - which resulted in the incident which led to the suspension of the written arrangement (he asked our 12 & 8 year old if they would like it if he(dad) just left and my new partner was their dad, ms12 responded no (she later said i knew what to say mum cos dad eyes were all wide and his nostrils were going in and out) but mr8 shrugged and said 'yes' - dad responded by telling mr8 not to bother coming back to see him….) This caused obvious problems at the next pickup… (He later denied saying anything of the sort)

Aaaargh!! reassurance maybe is what I'm looking for… advice always appreciated
you asked, you get :) Well actually you don't. I'm going to limit my opinion one hell of a lot and say the following :-

I believe that you both have a great deal that you could potentially lose, there is absolutely no way that with just the one side of the argument that it can be said which way things will go. Even if the other side of the argument were available, the third side wouldn't be until the day that the third side makes the decision. I think, from some of your words, you understand that you are both gambling and the stakes are yourselves and your children.

Although you mentioned matters of concern, it still appears that a relationship with both parents is what you wish.

In your situation I would consider if there is anything that I could do, however irksome that might seem, to patch the family up. If it means eating humble pie, so stuff yourself full of that pie, the after taste can actually be very pleasant. It's far better than being dished what appears to be the lovely meal the courtroom dangles and then ending up with the dregs that leave such a bitter taste for such a very long time. A taste that the children would likely also have to bear.
Mike thank you for your response, and while I realise that you don't know the details lets just leave it at -  and i quote "If you take the kids, I'll hunt you down like a dog - and you know what I do to dogs…."

I would prefer to flee with the children to another country and start over, I would be happy to do without child support to do this. I cannot communicate or come to any further arrangements with this man, which is why I am relying on the courts to (cross my fingers, praying to all known deities…) see through this mans lies, he is experienced in the courtroom - he has been in jail, and avoided jail on many occasions. The only thing protecting the children and myself from this man is a piece of very thin paper and his fear of returning to jail.
Having said that, the younger children love their dad, though they get confused and scared by his behaviour.
I believe he does love them - in his own way. I just know from experience that it is not in any way a healthy kind of love - they are possessions to him, nothing more. They are objects to bring out in public to say 'see I am a happy family man, a loving father'… when behind closed doors that is not the case.
I am afraid of what he will do to them in the long run, for 15 years I put up with his behaviour, I am a completely changed person, struggling hard to be the woman I know I used to be, I have watched the innocence in my children's eyes die over the years to be replaced with calculating glances… oh so evident when they return from his house, and watched the fear and confusion in their faces as he torments and abuses them.
 Yes I stayed, I was cowed - completely and utterly, but I came to my senses, I left and am now struggling to allow my children the freedom to be themselves, to grow up knowing they can be  and do whatever/whoever they want without fear, and know that no matter what they can come home any day/time and be safe.
As Mike says I will limit my thoughts…alot.

One thing that realy stands out though is your affidavit. 50 pages of Domestic Violence!!! You must have a really good look at the Family Law Act and take advice from your solicitor on this. Family Court is not an oppurtunity to tell someone about your poor relationship and how badly you were treated. There are other places you need to go to deal with this. Off course it is relevant and must be brought to the courts attention but if this is soley what your case revolves around then you are indeed in trouble. Your ex's solicitor will make a meal of this. Have a look at some case law and you will see there are parents with significant criminal and violent history, male and female, who have time with their children. You must focus on the future and what you can do for your children in the way of developing a workable arrangement. If your eldest does not want contact with him then she will be able to express this to the family consultant and at her age it will carry significant weight. Consider strict conditions that may deal with what concerns you have such as contact/changeover times and locations, communication methods etc. Whatever you do do not go to court with the mindset of he treated me badly so he doesn't deserve time with the children. This will not work. This is not my opinion but the courts.

You have left the man. Good for you! Unfortunately you will still have to deal with him for a long time. It will take quite a while until you both get into a settled routine. For some this never happens. When you do get your orders done it should hopefully be easier for you as there will be guidlines for everyone to follow. To get what you want though you will have to show the court that you are asking for orders that are best for the children. I am not saying you are not but this you will have to prove to a court.

Also there is quite a lot of detail in your post. You should consider the secure site.

"When there is no enemy within, the enemies outside can not hurt you"
Thx Dominik, yes I am aware that many criminals have access to their children, I am not stopping him from seeing the children (as much as i might want to), although I have had to on occassion suspend a visit or two due to the children's own fear - once they are feeling safer and more comfortable back they go.
And no I am not of the mindset he treated me badly - he should not see the children, I am of the mindset he continually treats the children badly - so should not have equal influence in their lives, I am not quite sure how to be clear exactly what I mean by that - Yes restrict the amount of time, but more than just that too. I don't want them to grow up believing the image of themselves (yes and me) that he plants in their heads.

I know I will be dealing with this man for the rest of my life, I just want to limit as much as possible exactly how much I have to have to do with him. (We had an arrangement which did not work - he would breach it consistently - keep in mind here that he used it to try to get around the terms of the DVO)
 Keeping the children safe while they are with him is my priority, while I do my best to be unbiased, to not speak badly of him, I'm sure I have probably failed in either my tone of voice or a look on my face…
Admittedly he has not been as brutal to the children as to me (though the eldest daughter copped a lot when she hit puberty - which is now where daughter no2 is…). He has somewhat calmed down over the last month … but when you compare one month to 15 years of intermittent abuse… it doesn't leave much evidence of change.

As for 50 pages? yes I know… I sat down one day to start writing my timeline of events for the affadavit (it was also something my counsellor had recommended I do some time ago - I just hadn't had the guts to yet) - it was a hard slog - I remembered things that should have stayed buried under fog. I was horrified when I brought it up to date with last year (the rest is documented with my lawyer) and looked down at the 'pages' in the corner of word to see the numbers 50. As I said - it will be whittled down by my lawyer - I'm sure there are many many things in there which will mean nothing, but I know there are also things in there she will find useful. I am not being vindictive, nor do I want anything more for myself and my children than peace and the freedom to move forward.
There is so much more, I just want advice on how to best give the children what is best for them - and yes that does include a relationship with their father - no matter how scared I am for them, as long as they will be safe.
Your affidavit needs to focus on sections 60 CC and 65 DAA of the Family Law Act 1975. Your focus on DV for 50 pages will back fire - it presents you in a bad light. As said earlier, your daughter is of an age where her opinion is listened to.

 Unfortunately DV allegations are over used in the family court and they are often seen as a tactical play. To over come this there has to be reports to the police and an order in place, even then the court will be cautious as an order is relatively easy to obtain. This does make it difficult for those in real need and protection but that is the result of time wasters.

In your affidavit, under a sub heading of DV put in a few paragraphs to cover all that happened. Do not focus on DV in the affidavit - it is the children that you focus on. The current focus on DV in your affidavit makes you an easier target in the courtroom. The one common mistake a lot of mothers make is to have 'control issues'.

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. 
Just another win/lose case for the parents.  Money for the lawyers.  Stress for the parents.

Children are resilient.  Surely you have noticed that by the comments your children make to you about their father, as unfortunate as they are, that your children are able to see through their fathers behaviour.

Many children all over Australia are currently being raised by drug addicts, alcoholics and child abusers in intact households.  I haven't met a parent yet that is able to protect their child/ren entirely from even their own confused and misguided egos and insecurities.

Kids aren't going to hang around if they are being abused not when they have an alternative.

Also, i'm not going to bite my tongue as others have.  Reading that post presented you in a light that might have been unfair to you, or perhaps i just read it that way.  It's about the children….and it is so very easy for all of us to think that we know what is best.

A 50 page DVO??  Wow??  He said lots of nasty things.  So do all of us.  The world is full of wankers.

My dad wasn't perfect…but then neither was my mum.  But my mum hated my dad and did everything to prevent us seeing him.  He was abusive and violent to her, but he treated us like princesses and princes.  We never saw his violence.  I actually never heard him raise his voice to anyone.  Sure, he was wrong, wrong, wrong to treat her as he did.  But that is their sh*tfight and none of my business.  But i got to decide that he was wrong, through my own eyes.

He fulfilled his role as a father to me and my siblings, he provided for us in so many ways.  She just used his violence towards her as an excuse to prevent him seeing us.  But i used to watch her wind him, and wind him up…and then push his buttons.  I'm not validating his behaviour, but she was subtle, clever and conniving in how she did it.

Too many of us seem to enjoy winning the battle over our children.  But it will be in the years to come that we find out if we made the right decisions.  I got what i wanted.  A gradual progression to 50/50 over a couple of years for my very young baby.  She's still a toddler and i have almost 50/50.  But not a week goes by that i don't re-examine that decision and hope and pray that it was the right one for my daughter.  I despise my ex, with a passion.  But i would find it very difficult to say that i am a better parent.  I find it arrogant in the extreme that one person can say they are a "better parent" than another.  Is there a test?
Daddy1, thank you.

Yes I know it sounds a lot - but it also has the events surrounding each incident and no it wasnt he said nasty things to me, there was actual abuse involved to me and also the kids. He has an anger management problem - he genuinely loves the kids, but until he has that issue under control I do not feel the children are entirley safe with him. No they dont feel entirely safe either but they love their dad and want to see him, they just want to be able to come home if he is getting out of hand.

I should make clear there is no.. vindictiveness on either side, we both want the best for our children, its just he does not yet realise how his behaviour affects us all, and particularly how it affects the children - tho I believe he is starting to learn as he has been attending therapy :D

And no I dont think I know it all, I know I am -at the moment - a more stable and loving parent than he can consistently be - at the moment. The arrangement you mentioned is exactly the sort of thing I want - yes my kids are a lot older, but the circumstances are different - to gradually have them in his care, allow them all to adjust, particularly as he was never really a huge part of family life when we were together. and now our 2 eldest children are teenage girls - 'quiet, responsive' dads have trouble with teenage girls :P its just the way he reacts to things can sometimes be overly excessive (and I do mean physical here).

I dont want to stop them from seeing him, they love their father, I want them to be safe, and I want to be secure in that knowledge.  
Hey Wiccapixie,
Since making that post, i was worried i might have been a bit heavy handed or unfair.  I was tempted to go back and delete the comment if i could.

I guess i am still a little burnt by my own proceedings.  My ex only had a 32 page DVO.

Thank you for not taking my comments personally and dealing with them in the way you did.  They were not intended to hurt, but i note they may have been a little sharp…or pointed.

He just sounds like a bloke who needs some (maybe a lot) help.  And it sounds like he might be getting it with the therapy you mentioned.  You see, i reckon if we all really cared about our kids as we say we do, then we don't only attempt to correct our own mistakes, but the mistakes of others who impact upon our children.

Kids need their daddies!!!
Wiccapixie I think you'll find parents have problems with teenagers or more to the point teenagers have problems with parents because of their need to be provocative and risk takers, it's all normal but we all collide at times through these stages.

Unfortunately because of the nature of false allegations it's easy to prejudge situation reflectively and defensively.

By the sounds of things you are doing your best to help your children adapt to the situation that they are in by providing and implicating such things as not having to go to dads if they feel he is becoming  angry or moody. Realistically speaking he may well be suffering a form of depression that creates these moods which is beyond his control, due to earlier life he may not have been given the tools to deal with these emotions and he responsively deals with them through anger. If this is true and he is seeking help things may well change for the positive in time.

After reading a few of your posts I may be able to help with something, you use a lot of power phrases or empowerment phrases, perhaps because you are trying to establish your independence and control of your own life and therefore it comes across as " I did this ", " I controlled this ", " I made the decision " when in many cases it seems that in discussion with your children they enlightened you to a problem and you offered a solution then had the courage to take a stand for them. This is not you enforcing your will on their father but when you write this impression comes forth. This combined with ( sorry to say this ) a victims attitude seems to have you coming of as manipulator.

Don't get me wrong I think you are genuinely a victim of domestic abuse who is trying to get her life back on track, you are not the problem, the problem is the amount of exposure many have had to manipulators and they mimic what a true victim goes through which effectively minimizes peoples humanity towards true victims, it is a sad state of affairs that this is being put on you but you help those who do respond with your patience in explaining your thought of what you are trying to achieve.

Concentrate on Monti's post and remember kids get to the age where they do their talking with their feet so stay you and keep that relationship as healthy as possible with their father and they will let you know as they have in the past.

  

Every parent has arguments with their children occassionally. Some people would call this an argument , some would call it a debate, some parental guidance etc. One of those is not grounds for destroying shared parenting. If parents do not allow themselves time to have parental discussions in person or on the phone, it takes place in front of the children, and naturally, ocassionally, the two parents will not immediately agree with each other. It takes two to tango.  I would have thought that expessing to the ex and the kids that one is grateful that there is another parent to help out when one is under the weather ( or injured), would go a long way to keeping the peace.
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