Throughout the past year I have had to combat the most furious onslaught by a victim Ex and a hell have no fury solicitor. Throughout this I have received letter upon letter stating an AVO will be applied for. To date I have not received one.
If there was a crack in my amour I'm certain it would be attacked. I'm keeping my amour in very good condition and have become a walking diary to help.
However due to the malicious nature of this matter I still keep an ear out for that knock on the door.
Hey guys, sorry to be a downer for those depending upon debunking the frivolous AVO applications, but my experience in December from the new Ex is that all she has to do is say that she perceives a threat of anything that is classified as "family violence" these days and an AVO/DVO is heard in court.
Remember, that means ANYthing (my case: yelling at each other, which apparently made her feel threatened), and it's off to the magistrates' court for an application stating that she perceived a threat of feeling threatened!
Not sure how it goes if you decline to consent to the order, as I was under duress and threat from her about not seeing our kids; but that's a whole other story…
To get an AVO you need to apply to magistrate's court in your state. It is a state matter.
The family court does not grant AVOs/DVOs. It will take them into consideration in your case.
I believe a AVO/DVO is easier to get in NSW due to the new changes in law.
I contemplated taking out an AVO on someone and was strongly advised against it. The courts are generally good about it when you approach them and are lodging it. It depends how rational or hell bent the applicant is though.
He said/she said AVOs are always going to be hard to prove or disprove.
Junior Executive of SRL-Resources
Executive Member of SRL-Resources, the Family Law People on this site (Look for the Avatars). Be mindful what you post in public areas.
Agog, are you saying that the family court can slap an AVO on me?
What reference to family law do you mean?
I do not believe that is what Mr Agog means.
AVO and DVO matters are dealt with in the Magistrates not Federal Magistrates Courts. Once you are in the local system you MUST appear on the summons date. DO NOT MISS this for any reason whatsoever (Even an Alien invasiuon) Usually a Police officer will deliver the summons. At that point you have two options. Have a solicitor represent you, be self represented. You will be dealing with the Police Prosecuter. There must be some reasonable evidence. You need to be clear and convey to the Police Prosecuter that you will not accept an AVO/DVO order without a hearing and that the matetr is simply to gain advantage in a Family Court Matter and how laughable is it that both complainents are best friends.
Now at this time the Judge does not want to hear from you because it is not yet "Being Heard". The Judicial officer is likley to ask the Police Prosecuter as to what the matter is all about and then may ask your versions. Probably not and he will put it back in the list for you to be harrassed by the Police Prosecuter for a time or ignored or agree to an AVO/DVO order.
Often undertakings are made at this stage and that is what we prefer because it will not affect your Family Matters or future employment.
IF undertakings are NOT made then the Judicial Officer will set down a later hearing usually same day. You then argue your case carefullly and clearly from your written notes you made earlier before you got to court. Of course you mention the Family Law Matters at that time and the dubious relationship of the two complainants. In most cases we have found the Judiciary to be relatively "switched on" and will get to the bottom of matters quickly.
These things are often very difficult to determine a result. For example we have been attending matters lodged in December, two hearings later and a third to be had in April and still we cannot get the case closed. The party we support has agreed to an "undertaking" only in this case but the Police are hell bent on proving a case that has such flimsy hearsay evidence it should never have got up in the first place. Taxpayesr are paying for all this nonsense.
What does all this mean?
We think that the laws in this area need a complete overhaul. The courts are completely snowed in with AVO/DVO (and DIC hearings ) based only on a "fear". Go an attend any local court on AVO days. The parliament in NSW says all men are the primary perpetrators of family violence so its a very tough job to extracate the male species from this debacle.
Research over the past ten years, here, in New Zealand and in the US, demonstrates conclusively that women, as well as men, are significant perpetrators of violence and abuse against women, men and children. A considerable proportion of violence perpetrated by men to men and women to women, as well as mothers to children, is largely ignored and there are no State or Federal programs nor campaigns for victims in these groups.
A complex mix of social factors including, for example, race and poverty, are often its underlying triggers. We have never wanted to encourage a debate on who is the more violent….. We make these observations simply because radical feminist theory has categorised family violence as a male-only problem. This thory has left us in a mess of legislation minutiae.
We recognise that male-initiated violence is a serious concern and we support measures to curb and deal with it. However, a narrow approach to violence will not solve the problem of violence against women. Research on intimate partner violence consistently finds that men and women use similar types of aggression.
The SPCA has this area of legislation on it's agenda but due to limited resources I do not see any light on this issue in the near future.
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 requested the original summons and only after great effort did I find that the courts had lost the files! What was the complaint?
Sad to say, but this appears to be a common occurrence where the evidence or claim is provable as false or fabricated.
To prove such would cause criminal charges against the false accuser which is a no no. AVO's and the like are for the protection of abusive and or controlling woman. Hence the Court Clerks loose doc's and transcripts from time to time that would support a man.
Throughout this I have received letter upon letter stating an AVO will be applied for. To date I have not received one.
A number of things come to mind, proof of the purpose for the false claims of her feeling threatened to gain advantage in the FamCA is the number of letters you have received.
These may be prosecutable as emotional abuse under State Law of unreasonable threat to cause a detriment/harm by falsehood of your character. That would mean you would need to have NO MISTER MEANERS committed by you. No hidden stories or physical evidence including witnesses or doctors reports of threatening behaviour. Threatening behaviour is dependent on a perception of the mind not proof of intent as required at criminal law.
Police Prosecutors are not the only persons that prosecute AVO's, my Ex used a lawyer who specialised in that area of law, he was well aware the photos of love bites where not evidence of claimed assaults and it was makeup that was being claimed as black eyes but his duty was to his client not me or the law.
The Order I did not object to was not a no contact but behaviour consistent to what I always do, try and walk away when ever she would start yelling at, pushing or hitting me hence her need to put makeup on her eyes to claim in the State Court 1 black eye and the FamCA 2 black eyes. The truth is she has never had a black eye and defiantly not from me, The Judge claimed you could not use makeup to look like you have a black eye, hence all bruises, injuries and black eyes you see on TV must be real.
Read Division 11 (s.68N-T), s.114, s.114AA and 114AB of the Family Law Act (the Act).
In the FamCA AVO's and the like are called injunctions, their purpose is the same but the evidence required is arguably to be more proper (physical and or witnessed) evidence than in the State.
69ZR gives them the power to make any Order, determination or judgement they like at any time during a matter.
s.69ZX.3 (b) of the Act gives them the power to take the fact an Order has been made by a Court to claim the Order is evidence there was evidence presented before such an Order could be made. This makes no allowance for agreed to Orders to save Court effort, a lack of want to cause the criminal behaviour of the Ex that would cause the Ex to go to jail or the like or, as is so often falsely claimed, let her have her way and she will calm down and become more reasonable. IT ALMOST NEVER HAPPENS, they have won if you roll over and that is all they are looking at, what they WANT not what is best for anyone and least of all the children often, apologise to those in true need of protection.
The Order like an AVO is all the proof required by FamCA Judges to prove you are a violent person with a total disregard for the reason the Order was sought like position and contol in the FamCA and the evidence which was a claim to being fearful without good reason other than insubility of their mind.
Unless you have an application in the Mag Court for an Order (AVO) against the other party at the same time, the Court can not make an Order against your Ex even if the evidence supports making an Order against her and they will not normally cause her to be prosecuted for her crimes against the Court, purjury or the like but you will be.
This will be dependant on if you have committed assaults on them of any type, including an over application (bloodied nose on her and only a black eye on you or less). I know a guy how pushed a girl away after she split his lip and his eyebrow, he spent 2 months in jail waiting a bail hearing them the matter got trown out.
Check your State Laws on what constitutes assault. That's not Family Violence Law but Criminal Law, this has a higher standard of proof. The Law of self defence is another area I would look at, NOTE what is allowable and when an action of assault is in self defence plus that an over application (more than reasonable force) of an action in self defence becomes assault.
That over application of an action in self defence is what woman and the Court rely on to turn the woman's assault into you assaulted her, not just you defended yourself.