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New SRL - Advice Needed on Undertaking Wording

Hi guys, Im attending a mention hearing on Monday for my wifes application for a VRO against me. I have had advice from a lawyer to offer an undertaking to get the VRO dropped which I am happy to do.

My biggest issue with the VRO is not being able to pick up or drop off my kids to the ex's house and also to be able to communicate with the ex (written only) regarding child issues.

My undertaking would be something like;

No verbal communication with wife. (I would prefer to be able to have written communication for child issues only)

Remain greater than 20 metres away from wife at all times.

Participate in family dispute mediation.



If anyone has some advice on wording and if I should add more points I would be most grateful.

I am also keen to see if I can get a transcript of a mention hearing where something similar to this has occured soI can understand the process of the mention. Obviously I can not present this letter to my wife as there is an interim order in place, but can I raise it to the magistrate and ask that the court hand it to my wife for her to review and consider?

Thanks in advance

Matt
You can offer an undertaking but it does not mean you will get it. It may be too late to hand up to a magistrate on the day. You have to address this before the hearing. You can communicate with her $olicitor beforehand if she has one or if she doesn't then you can use the court officcer as a conduit.

For the time being suggest no communication with the wife for anything other than regarding child issues. For this initiate a communications book. Be meticulous and factual and pleasant in this book NO MATTER WHAT

Have a neutral place in mind for changeovers, either a Police Station, public place, contact centre. Yes it is not the best but you need to think about the RO for the time being and insisting on attending the ex house my be an issue that will prevent the undertaking being accepted. Ask if you can keep changeovers there but have a backup plan.

Contact your court and speak to the family violence co-ordinator and ask them for common wordings for the orders. They are generally a proforma where items are added or taken off. You can follow one of these.

This mention hearing my be the final hearing so you had better be prepared. You may have left your run a little late. There is no point getting a transcript as they rarely run in a similar way.

If you are going to fight the application try for what you can work with and might be able to acheive at court rather than what you want. You may have to change your way of thinking about this. The fact that it has be taken this far means that you may not be able to hope for friendly chatting with the ex and attending her house again. You will have to make the best of what you have and work within acheivable parameters. Remember there are many reasons why these applications have been made so don't fall into any traps.

"When there is no enemy within, the enemies outside can not hurt you"
Thanks Dominik, Some good tips there. I have a lawyer for the settlement of assetts and they are communicating with her on my behalf. Unfortunately due to geographical and money issues my assett settlement lawyer can not represent me regarding the restraining order. I can assure you I have no desire to talk to her unless it is related to the care of the children and even then it would only be via a written media to eliminate any allegations of verbal abuse or intimidation. I will speak to the court family violence officer first thing Monday. My mention isnt until 2:15 so I should have a little time. Even if I can negotiate the VRO down to make things easier for changeover I would be happy with that although fully aware of potential tricks in the future. The reality is, it is in the best interest of the children that picking them up and dropping them off can be done without putting them at risk. I have no intention of getting out of the car or entering the ex's house so I hope a 20 metre exclusion and no verbal contact should cover that. I will also be indicating that I have intiated mediation to develop a parenting plan.

Another question, How do I refer to the ex in the courtroom?
You refer to the ex as Ms so and so, or Miss Such and such. It depends what surname she uses, but this should be on the court paperwork. It is formal, but court is a formal matter.

If in doubt with a court official, your honour is always good. If you have overcompensated with the registrar, it can do you no harm.

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. 
Well I had my day in court and the ex was determined to go ahead with the restraining order so I offered an undertaking and teh magistrate explained it to her and she accepted. the conditions are the same as the VRO. One condition is 100m seperation. Once dismissed I left the court room first and the ex was hot on my heels. I could hear her shoes clicking on the hard surface and I think she was less than 2m behind all the way out of the building and almost right up to my car. I am sure the court has CCTV which would show this. I was madly trying to get my phone camera out to capture it but it took ages to boot up after leaving the court room.



Would that be considered as a breach or contempt? She was clearly trying to get me to react and she had the undertaking explained to her in full before she left the court room. She constantly stared at me in court but I never gave her the satisfaction of making eye contact. I looked only at the magistrate.
It was fortunate for you to recieve this. Now that you have it what ever you do abide by it DO NOT breach it in any way whatsoever. Even if she invites you to meet with her or calls you etc. Neither of you is able to alter the conditions without going to court. If you do you are both breaching it. You are directly breaching it and she is aid and abetting. A direct breach will be proceeded with however an aid and abett rarely is.

I know you are not suggesting that she should have waited for you to be 100 m away before you left the court. It would not be considered a breach or contempt. It would be considered her being a pain and you being one if you tried to report her. Yes offcourse she was trying to get you to react. Why else would she do it? Let it go. If you continue on this path you will be setting yourself up for a fall. Do not fall into the trap of playing tit for tat. Do you want to become like her? Be the bigger man.

Keep a diary. Note any times she breaches it herself. If something serious happens that you need protection from, report it to the police but other wise just keep a note. It is important to remember that although the legislation is not gender specific in reality it is. There are reasons for this which I wont go into, however if you want to try to challange the disparity that is reality.. good luck.

Can I give you an EG. A man is at a sports match watching his kids. His ex walks up to him and hits him in the face causing his glassess to break. He hits her back. It goes to court. Who gets convicted?

What can you do? Take note, keep records, carry a recorder, DO NOT BREACH THE ORDER. Now that you(she ) have headed in this direction be aware of how she may now try to use it in Family matters. Do not give her any ammo. The above can be used sucessfully in Family Matters if need be, as a defence and to show her form.

Hope it goes well

"When there is no enemy within, the enemies outside can not hurt you"
I agree with Dominik to the extent that you should make sure that if ever the undertaking is breached it is clearly she who breaches it and not you. And then if she ever tries to claim she is in fear of you, you can show the judge evidence about the many times since this undertaking that she has voluntarily come near you for no real reason. Would negate any arguments that she is fearful of you, as far as I'm concerned.

Don't actually run away from her though if she approaches - you'll just look like a tool.
Dominik said
It was fortunate for you to recieve this.
Indeed so, as an "Undertaking" is a much better solution than a AVO or DVO which have very significant impacts on a wide range of activities and further any family courts matters. Follow the undertaking to the letter and be sensible about this. Obviously if there are children involved you will need to communicate so try and look upon this as a good outcome and much better than you could have had. In respect to undertakings where you have children it has to be practical. Be aware if you go back for a breech of the undertakings the judicial officer will not want an excuse and will be quite unsympathetic. You have been given a "Get out of jail free card" so use it wisely and attempt to resolve issues that led to this state of affairs.


Executive Secretary - Shared Parenting Council of Australia
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Well heres one for the books. I called the bank and told them I can not afford to pay my mortgage anymore as the debt my ex has left me on top of child support is sending me broke.  Out of the blue, my ex phones me today. Of course because of the Undertaking I hung up as soon as I realised who it was. She left a voice mail saying she wants to talk about finalising settlement and that her lawyer said we are allowed to talk. I am still refusing communication until i speak to the courts tomorrow. Im not doing anything until I have something in writing from the courts that I can talk without getting in trouble.



Anyone got any experience on this? She does seem sincere but I still am extremely weary of her motives for being so nice after being difficult only a couple of months ago. She initially told my daughter she only wanted to talk via email regarding the settlelment but now she is calling as well.
My undertaking would be something like;

No verbal communication with wife. (I would prefer to be able to have written communication for child issues only)

I assuming that this is in the undertaking???

While discussing is the best opportunity to make headway in any settlement discussion, AVO's and undertakings that come alongside are very powerful tools and protections which are taken seriously. I have seen many an occasion where one party who has taken out an AVO has said don't worry about it lets discuss things in person, and then when things don't go their way take action for the AVO contravention.

While your ex may sound sincere and I am sure she is, I would go with your gut instinct that says wait till you have something in writing which approves discussing these issues in person/telephone. Perhaps send her an email saying you are more than willing to discuss settlement but under the circumstances it would be best that it is done by email.

In relation to the mortgage, in may case the bank was very accommodating, but asked that I let them know how things were progressing. I think if you are upfront and explain the situation they will be OK, as long as they can see a light at the end of the tunnel. In saying this though, my matter was before the GFC so things may have changed, check your your mortgage docs to see if there is any mortgage holiday options etc.

Cheers.

 
Thanks Schultz, I will err on the side of caution I think. It has just come to light the real reason for her change in demeanour, she wants to move back to New Zealand to live with her internet boyfriend and take one of my daughters with her (13yo). She is even offering a 50/50 on the assetts to get me to agree. I dont like the idea of splitting up the children.
I hope you have kept that voicemail message… Sometimes the ex speaks with forked tongue  ;)

If she was willing to lie in her DVO application then she won't be above lying in an AVO contravention application.

I don't think it's good to split kids up either. Does anyone know whether courts approve of the practice?
Well I should have guessed there was a motive behind her sudden change of heart. Her willingness to discuss settlement had an underlying motive of getting me to let her take my youngest daughter to New Zealand to live for 4 years with a guy she has spent 3 weeks with a month back. She was offering a 50/50 split but……….I had to let her take my daughter, as soon as I said said I would never allow it, she went straight on the offence saying she now has an open cheque boook from her boyfriends employer in New Zealand and that she will not stop until she gets my daughter out of the country. I asked her why she would leave our oldest daughter behind and split the siblings up she was very nonchalant in saying because the other daughter didnt want to go with her.

I initiated family mediation some months back and she has been delaying it intentionally and I now have an appointment in january as she moved it from December. She then calls me today and says we can get mediation in two weeks if I would go. I said no thanks as she deferred it so she can live with it. I have heard she expects to leave in January with my daughter but I cant see that she will get a passport for her anyway as there is no way I will sign the form and even in the remote chance she can get a passport it will take a long time to push it through the courts as we must attempt mediation before they will look at it. I also dont believe that the courts will allow her to seperate the children.

I am trying to get in contact with her boyfriends employer to clarify if what she is saying is true and yes I do have it in writing from her that she has an open chequebook to fight me with. Her boyfriends employer is a large privately owned steel merchant in New Zealand and Australia which I am reluctant to name at this point.

Lastly I got a letter in the mail today saying I was terminated as a member of the family trust in which I have a 1/4 share of a $1M house(currently on the market) as an investment with her and her parents. I am hoping that it does not mean they can refuse to give me my share of the wealth there so I am going to have to hand this off to a lawyer I think. She is also refusing to allow me to refinance the house I am living in so i can consolidate the $40k of debt plus the mortgage so  dont lose the house. She made it clear that she wants me to lose the house.

Other than that everyting is going great. lol.
I would take a few deep breaths and think of things laterally. There would not be many employers offering an open cheque book for an employee on a Family Law matter unless they were the CEO or some Noble prize winner who had the secrets to business success. Lots of things get said in these matters, and mostly it is merely puff.

In regards to the house and family trust, who sent you the letter? was it the wife?, there are lots of rules governing family trusts and it would not be as open and shut as it has been portrayed to you. You say that you will be speaking to a Lawyer regarding this, I would try and find one who has experience in equity and trusts, although someone on here may also have some experience with Family trusts that can point you in the right direction. 
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