The scam you must AVOid: beware the parallel universe.
Part
1 – The very high price paid by Australian families for the lack of intellectual
rigour and public policy clarity
emanating from the Fe’ral Family Court
- The
Family Court queue and dearth of rules remains the underlying problem - Because of the interminable
delays in the Family Court, parents maintain contact with their kids by
staying in the family home post a decision to separate. Loosing contact
with kids is relevant in custody issues, and with a dearth of rules, the
desire to be close to the kids, financial issues, the possibility of blame
arising from the kids, and no date to sell property (the main asset), but
most importantly the 2 year court
delays, well no one “moves on”. While the fe’ral (bring out your inner Martin
Ferguson) Family Court incentivises you to stay with the kids, your spouse
also wants contact with// control of the kids, and has financial
incentives to control them, and to be fair, has mummying instincts. You’ve
had enough of each other but no one wants to blink. The Family Law Act has
a way to break this deadlock, called “Sole Occupancy Orders”, but that
route involves disclosure, takes time, is uncertain, and can be fair and
balanced. Ergo, some highly adversarial (but “no fault”, of course) family
destructionlawyers hate using it. Thus economic incentives and professional obligations drive them to advise on, and sometimes devise, other isoquant schemes so as to evict you from the house.
- Says what : demand creates it owns supply - One of the
evolving legal rules is that you must obey your wife’s commands and
dictates in a divorce, no matter how utterly batty, absurd, nutty, provocative
or unreasonable. You can’t yell or get angry. Nowadays the making of
bizarre satanic cult like claims of child abuse are viewed with much
suspicion as a dirty tactic in family law, aren’t believable, can back
fire, and so are no longer a “viable” outlet for emotional dislocation.
Thus even the scummiest of the ambulance chasers won’t “suggest to
clients” to go down that route in order to exact vengeance on a former
partner. Accordingly lawyers now go “forum shopping” for a new WMD (Weapon
of Marital Destruction), and their favourite is the Angry Vengeance Order
(“AVO”). To do this they get the flock out of the feral family court and
head to the NSW state traffic infringement courts. An Angry Vengeance
Order is used by many in the legal profession so as to obliterate the
concept of no fault divorce, discipline dissent, and take control of the
trajectory of a divorce. In what’s known as the “3 minute interim scam”, it’s
not really law, but rather “litigation tactics” that are deployed so as to
AVOid being honest and open in the Family Court, and instead having the
matter dealt with surreptitiously by an under resourced, and very low
level magistrate in your local state court, as a processing matter (the
“shopping” being the search for the new court). Technically the law in question is not called an Angry Vengeance
Order (its street name) but instead goes by the draconian legal label
“Apprehended Violence Order” (“AVO”), which proscribes lots of stuff, but
principally, in practice “anti-social” yelling allegations. Note the
“apprehension” and wonder about all that emotional angst that isn’t being
dealt with on a shrinks couch. Anyhow, seeing this relative weakness in
one set of courts, family lawyers just can’t help themselves. However the
core problem for a great many decent folks, even some lawyers, is that a trip to the NSW Local Court for
a middle class yelling scam AVO very often involves perjury and the making
of weird claims, will utterly devastate kids’ lives, is seen to be undertaken
by nutters joining the affray who don’t bother to understand what’s going
on, will rip apart the local community, massively poison community
concerns for genuine victims of domestic bashings, besmirch respected
members of the judiciary, and will make no fault divorce impossible, so
they just won’t go down this route. For other citizens’ and far too many
ambulance chasers, perjury, exaggeration, and very often out and out fraud,
is quite justifiable if it delivers what their mate// client wants, as it allows
an outlet for vengeance to be exacted at the end of the marriage. Some
people can rationalise fraud as being
“in the best interests of the children”, if it achieves something like moving on
with her life. And male anger is presumed to always be wrong, and he needs
to pay. So the ends justify the means, and some folks, with all the
uncertainty, are upset and see themselves as Anne Frank, so yes any lie is
ok and fark the Family Court anyway, its too slow. Sure a large number of AVOs
arise at the very time of separation which indicates actual violence. But
in addition a large number of middle class AVOS arise well down the
track-some 6-12 months later when everyone is frustrated with the Family
Court. The community had a way to sort much of this out which you recall as called 50/50 parenting, that was
certain and would move people “out of the conflict zone”; but the Family
Court prefers queues to clarity. Doubtless some verbal angst does build
up, yet there is also a desire to exact vengeance most clearly in play.
Watch out for the wing nut in
support, who genuinely believes that ripping the lives of kids to bits is
to be applauded, and that surreptitiously dobbing someone in, intervention
sans understanding, is the only way they, and only they, can resolve the
situation, or support their new friend, and who cares about the
disproportionate consequences. The people who orchestrate these litany of
lies this are the female equivalent of Fathers4 MakingKateWinsletLookLikeafreakingTwerp.co.uk;
people who contrive stories and hate the fact the alternate mechanism of
going to the Family Court may not be fair to their mates, who clearly
deserve 90% of the property proceeds and the kids all the time. Fark no fault divorce and find me a gullible
fool willing to do what I want.
- That’s what you get for waking up
in Brisvegas:- When legislated c. 7 years ago the AVO regime was
intended to prevent punching (and threats to punch), and “etc.”. What the “etc.” bit now results in is a
mechanism to move people out of their family homes if they argue. For argument shows “anger” , and anger
can, or might be , or may possibly be, or could be, or with apprehension, and / or
worry, in some cases,
possibly, at times, be considered , or asserted, to be
“intimidation”; that is “in
the eyes of the beholder, when stressed at a time of divorce”. And
“intimidation” is one legal word used to “define” (but rather extend, and
rather ambiguously) the concept of “violence” under the AVO regime. So
that’s where the law begins to get very weird indeed, in large part
because it’s not made by the Federal Parliament but rather by the State
Parliament and no genius has worked out what the relative goals and
impacts are, save for our little buddies in the family law section of the legal
profession. When enacted in 2007 by
a branch of The Obeid Corporation Pty Ltd, The NSW Labor Party (to use its phoenix corporation name), some civil libertarians (yes yes ,they still exist, same pair of moccasins) suggested that the new regime be limited to threats of physical violence by persons with existing criminal records, as they were concerned that “the, etc.” would be widely misused. And that there be limits otherwise there would be an explosion of claims that would rip the community to bits, and benefit only the ambulance chasing lawyers (a key constituency inside da’ Laba’ movement). For history, after all, was on the side of the civil libertarians because all experiments with fiddling on the edges of criminal law have always been an abject disaster and moral panics have inevitably lead to abuse where there are no clear rules. Similar debates raged in all Australian states about how to “not criminalise”, just “prevent” at all costs , “ not crimes” but rather “anti- social behaviour”. Because asking you to not talk or not to live in your house, is we are told, just a minor inconvenience. Nonetheless the civil libertarian folks were grandly assured by the VSPs (very serious people) who supported the AVO regime, that it was ”just precautionary”, was based on a British “ASBO” law, rah rah, would operate like a civil injunction, and not to worry as the cops (yes, that’s right, the very same NSW cops who took money to turn a blind eye to Dolly Dunns pedo-porno collection; don’t chortle) and most especially The Chaps and Chapesses in The Courts They Went to Law School With, would operate to stop any teething issues with misuse. In short the VSPs were quiteconceitedconvinced that “flood gates” were not going to open and that any criticism of their genius was just fear mongering: there would be no AVO Industry.
- “We are
never, ever, ever getting back together” – Yelling is the issue
for the vast bulk of contested middle class AVOs. The AVO is technically
not a criminal law matter, thus typical justifications like self-defence don’t
really apply ,almost definitely not when an interim order is sought. The
reason given is that it’s all about
protecting the “victim”(i.e. the person who raced to court first), not
punishment (well, apparently one is to ignore jail threats), and hence the very lowest possible level
of civil law “concern”, not proof, is
acceptable. Accordingly, provocation (or violence or yelling by your
spouse (or any traditional Crimes Act defences) just aren’t seen to be
relevant to “intimidation” or “harassment” interims, and in practice those
words just mean “someone far king irritates someone”. There is no need to prove intention,
prior behaviour, reason, and the making of a complaint effectively presumes
you are a gonna. Technically the law applies as between the sexes- women
annoying men- but in practice the regime is seen to “deal decisively and
quickly with the issue of mens anger”.
(The cause of such anger is, of course, ignored; in practice the AVO becomes a weapon by angry and stressed
women under pressure to allege
anything at all and that’s now its biggest problem: zero credibility). Anything
verbal can be “intimidation”, which is to be applied “in the eyes of the
beholder, sort of not unreasonably, but urgently, but not panicking
urgently, ish, well sort of, sort of, ish, um”. Confronting someone with
the truth can be harassment. It’s enough that someone, somewhere could or
may or might find you to be “objectionable” for some reason, and they appear
somewhat honest and hold that view and aren’t salivating at the corners of
the mouth when filing. Thus while for some folks arguing can be “intimidation”,
for others its robust discussion;
not intimidation but rather “exasperation”. But it doesn’t matter that you
get frustrated that your wife is cheating by hiding assets, limiting
access to the kids, or hitting them- its sufficient that you get angry
about anything at all for any reason and that your anger may not be always
be seen or could be seen not to be immediately “not unreasonable” (the
lawyers double negative) by each
and every person you come into contact with, informed, sober when filing,
or otherwise. If you’ve got a story, an eggshell skull, forget it mate you
are knicked just for not being “normal under stress”. With all this mono
focus, or apparent search therefore, there is no “prohibited act “ for an
Angry Vengeance Order- its how it “feels” to the recipient. Ergo, raising
your voice two octaves is enough (unless you are Taylor Swift) if it can
be asserted (and it is) that there is a morass of motive- e.g. he withheld
the credit card to intimidate me; he got his brother to scream at me so as
to intimidate me (your father said she “far king” shouldn’t have told the
kids, unilaterally, about the divorce); hubbie yelled at me I am a money grubbing
gold digger b** (she is asking for 90%; but you get the picture). In any
event its all sophistry because importantly “interim” AVOs are issued
“urgently” as an act of “uber urgent preventative justice”, so there are
no rules at all- its complete bedlam and weird allegations are often made
by a collection of foaming middle class village idiots. Police get
involved in the issue of Angry Vengeance Orders and just love this scam
because they can take huge advantage of the lowest level of proof to facilitate
the most bizarre of allegations ; arbitrage the absence of any evidentiary
standards; mercilessly exploit the abject failure of the Chief Magistrate
to issue basic practice directions for an adequate information disclosure
regime; bully people which they really enjoy; and abuse the interim nature
of the order so as to take advantage of the time honoured Quisling like
behaviour of the very lowest level of the judiciary. There need be no actual violence, no
history of violence, no yelling as such; a standard narrative and some allegations
will suffice. The court must ignore what’s driving arguments, and there is
no need for proper evidence. Your family and friends are often not
interviewed, instead police vomit up rent-a- loonies as shuffled in front
of them by divorce lawyers, and this is sometimes people you have never
met before, or inevitably the village drunk whose larger lout husband
bashes her kids; none of whom are ever asked if they have an axe to grind,
owe you money, are having sex with your ex-wife, or whatever. It’s
sufficient that your ex-wife alleges that she, is or may, feel stressed by
yelling. Or appear to be so.
Whether she actually is, that’s quite irrelevant; it’s good enough that
she looks stressed. So we have middle aged career women who utterly
terrify their subordinates at the office, turning up in court, arguing
that because their husband called them a “silly b*tch” twice that they are
“intimidated” (look, I wore black to court and I’m crying on cue). Acting
that even Arec Bawin (surely the greatest actor of all time, especially in
Team America) would be ashamed of. But it’s a scam, all the lawyers
do it, so that’s good enough. And it’s done with no notice, by a bait and
switch technique, by withholding critical evidence, making the allegations
as peculiar and voluminous as they can, and by the lawyers ensuring that
absolutely no time is allotted in case you try to bring in any contrary
evidence or LOL at how inane and unfair it all is. The interim AVO is then used for cash
rewards under the Family Court “property lotto” system and the “let’s give
mummy the kids, god I’m busy ” inclination system in the Court un Famile. Hanging
Judge Jeffries (or Dr Bonham’s Bullies @ Star Chamber.yougov.courts.uk) would have just loved this stuff. For if
you dare do anything at all that’s
lawful after that, you will be threatened that “you meant, I think to
intimidate frail old me” by that lawful act- anyway jail time lurks for
you ( because although this isn’t apparently a criminal law, it is once
the Magistrate rubber stamps their chummy chums 2 page document and
asserts that compliance with safeguards for abuse will be dealt with at
some later point, but only if the matter proceeds to the next stage, which
it won’t as you will be lying out on the footpath at that point). It’s a completely bogus process that is,
in effect, the return of the “unreasonable behaviour” allegations of fault
base divorce” – that is absent any right to be heard.
For example, calling a person “not
a proper aboriginal” or “a white university lecturer” or observing that the
person has “an English mother” can be intimidating to that person, even if put
on a website: Eatock v Bolt [2011] FCA 1103. Its hard for
some judges to distinguish between offensive behaviour, insults, humiliation
and intimidation, so they lump it all in. At the interim stage :intimidate”
means “annoy, defame, cause someone to not like feel well”. Anything which is
“socially corrosive behaviour” (whatever that means) can be attacked,
especially at the interim stage. Unlike defamation, having an honest opinion or
behaving reasonably is no defence in AVO World. Arguably there maybe some
protection for political speech but who wants to spend $300K to find out? Magistrates
who don’t even read the existing Act won’t trail blaze this one. Note that its
intimidation for any purpose under the 2007 Act- not racial intimidation, or
financial intimidation, but any feeling. Theoretically feeling intimidated
because someone could sue you is sufficient, and it is in practice to dress it
up as something else- he yelled at me he was going to sue me, I only felt
intimidated by the yelling part of that threat. Its quite batty. A parallel
universe.
- Quinoa Salad: the recipe (for
disaster)- The legal focus is supposed to be a pattern of behaviour
of yelling, not just a one off….
well sort of. Marriages don’t break down due to one heated argument, so
there’s your “course of conduct”. And , actually one comment is often enough.
Mostly though yelling allegations are vague, there are lots of them (40-50
in some cases) ; they change, all the time, and they can go back 5 years
or more. It is harassment to undertake anything that’s perfectly lawful,
if you do it with “the wrong alleged intent” and the “protected person
genuinely feels intimidated”. A
sort of female flip side Sharia Law, with everyone displaying their inner
Nurse Ratched qualities (sometimes men get AVOs against women - there is a
huge tactical advantage in filing first). The “AVO game” as the lawyers
club delightfully calls it, relies on that other good old Australian game
of “verballing”; frankly, almost as popular as 2-up. In a time of
divorce, with tensions high, the feral family law system in total melt
down, the temptation to “go verballing “ is enormous. In order to work in
many middle class divorces, the lawyers have to hold their noses and
pretend they have only “been given instructions” and are not obliged to
think twice about the evidence. Or some such. Much of the direct facilitation
of a bogus interim AVO is not done by the lawyers (technically, false
evidence is a criminal offence, although no one gets prosecuted) and it’s
dodgy, so in jumps the murky world of “divorce support groups” (i.e.
people who have done this scam before). If the ex-wife “perceives anger”
or there is (an evolving concept of) “patriarchal emotional abuse” that
may be sufficient, least to commence your descent into a rabbit hole of
Alice in Wonderland proportions.
- Lessons for socialist dreamers 101:
behind every ideological Leninist, lurks someone like Koba the Dread, who gets
left with the task of implementation- So how have the NSW magistrates gone as filters on abuse ? Well the “possible
floodgates” concerns were indeed wide of the mark. However, on the other
hand, the delightful expectations of the legislations promoter, the late,
and decent, Jeff Shaw QC, AG, have also proven to be especially well wide
of the mark. There have an explosions of tens of thousands of interim AVO
orders granted year in year out- so not floodgates, it’s been boat people like tsunamis (just
what is with wet socialists, numeracy, and social policy naivety?). A massive
increase on the number promised by the legislations promoters at the time
of enactment. In middle class
domestic marital disputes it is now very common practice for one spouse to
request the police to issue a “possible intimidation as I see it in my current
frail state of mind” AVO to evict a partner from their house, and, surprisingly
over half these allegations often come to light 180 days after the break
down of a 20 year marriage and just after a 3rd consultation
with a lawyer. (Gosh, who would have thought repressed memory surfaces so
frequently this way; aren’t the overworked lawyers who haven’t got time to
go to the Family Court and seek Sole Occupancy, just great ?). “Possible feeling
intimidated interims” are claims, not facts, rather they are assertions that arguments
“ got loud, twice, ish, aaaargh I want control, control, control and I am
not a b**tch”. Technically Parliament never passed a law that said “mate, you
can’t argue with your wife, loudly, if you are getting a divorce”, but the
Magistrates, back from a lunchtime viewing of Ellen de Generis, think
that’s an entirely plausible reading of the key word “intimidation”, and
thus state based judges, well aware of the federal Family Courts inability
to resolve any dispute, of any kind, in any sort of timely manner, seem to
reckon that “what the hell” they may as well separate couples anyway. And magistrates
do so like headless chooks in a manner that has now largely subverted the
Sole Occupancy regime. Reasons aren’t given until later (upon request, and
begrudgingly) and very often in practice you aren’t allowed to understand
what the core allegations are at the time the order is given. The cops and
the magistrates thus become the meat in some divorce lawyer’s sandwich. So
complainants are lodged surreptitiously with police that the arguing is
“intimidating”. And with all the functionality of Chief Bill Rawls, the
Wallopers vomit forth and let the courts “decide” when any complaint is
filed (as that way police cannot possibly be criticised if things
backfire- after all they took cash from Dolly Dunn, and now it seems some
priests, to ignore pervasive acts of male rape, so who trusts the cops
anyway ?). No investigation ,
analysis, or rudimentary due diligence or screening of claims at all. No
understanding of family complexity, axes to grind, money owed, sexual
issues, nor impact on the kids, just assertions, many that clearly look like
extremist hallucinations; and very
often fabricated. But it’s about volume. No investigations, no talking to
close friends, nothing. In turn NSW Magistrates hand out interim Angry Vengeance
Orders with as much glee and speed as Dolly Dunn at the door of a lollipop
factory. So when neighbours yell across fences, or tradesmen ask for their
F **g bills to be paid 6 months after they are due an AVO is issued pretty
much on demand (AVOs apply to all “harassment”; not just domestic
disputes). The AVO Industry now takes up more time in Local Courts than
most other matters. There is no attempt to sort for mental health, what
happened, or what the arguments were over, its all assertion so thus while
the Act was supposed to apply for domestic violence its in fact applied
for everything. This modern day
experiment on the far left fringes of criminological theory, and running
counter to the many lessons of criminal law history, should have been
controlled by the courts. Indeed the legislations promoters asserted that it
would be rigorously controlled: hah, hah, far king hah. Constitutional law
professors dream about how ALL judges are supposed to be a bulwark for the
citizenry against state excesses- but most economists understand that in
game theory, repeat players almost inevitably come to sub optimal (Nash
dis equilibrium) outcomes. Whatever, you don’t need to have the Beautiful
Mind of Sir Russell Crowe to work this one out, for reality is that the magistrates
are about as constitutionally alert as Sir Joh (don’t you know?), and have
never even attempted any semblance of supervisory rigour. It’s all about
“form based compliance” and substantive compliance is just way beyond them
until you get to a higher court, which you don’t. The Magistrates are
doing a worse job than any government bureaucrat selected at random would.
Anyway its out the door, on demand, as you are dumped faster than you were
at 13 after that Gary Glitter concert. As a consequence of this sloth and
ineptitude the interim AVO regime has turned into a dodgy scam of mammoth
proportions. It’s the magistrates blessing the actions of the nanny state,
all undertaken with the moral zeal of a modern day A.O. Neville.
http://en.wikipedia.org/wiki/A_Beautiful_Mind_(film) ; or if you are a dullard, Prof Lucian Bebchuk, A New Theory
Concerning the Credibility and Success of Threats to Sue, (1996) 25 J. Legal Studies 1 . Note
that there are 165 such officers in NSW police- a little industry really; they
have to find something to do.
“There are
various matters that the court takes into account in considering when deciding
whether to give a spouse exclusive occupancy. These considerations include but
are in no way limited to the following:
- Can a party be adequately
housed elsewhere?
- Are funds available from
either party’s resources, to provide that housing?
- For whom, husband or wife,
is it less convenient to have to live away from the matrimonial home?
- What are the interests of
any children of the parties and what would be in their paramount interest?
- What are the relevant
proprietary rights of the spouses?
- Whether the conduct of a
party may justify the other party in asking for sole occupancy?
- Would a non-molestation
order be an appropriate alternative to an order for exclusion from the
matrimonial home?
- Is a party engaging in
improper behaviour such as intimidation or manipulation to prevent their
spouse from pursing his/her rights should they continue to reside in the
one home?
- The
possible injustice of forcing a party to establish for her/himself another
home, or otherwise accept inferior accommodation without just cause.”
- She
just smiled, as I never gave her a
vegemite sandwich The vast bulk of interim middle class AVOs
are about “intimidation as seen by the applicant”, as that’s the easiest
legal claim for the police to assert. Real violence or threats attract a
criminal law charge. There are real AVOs taken for real reasons but
divorce lawyers are more keen to jump on a bandwagon of moral panic and
just don’t care , at all, about real victims of domestic bashings as otherwise
they wouldn’t debase the coinage. The kids aren’t their clients, so who
cares what an AVO allegation does to families: lawyers just can’t be sued.
Like tax lawyers with
Lord Sauronthe late and great Kerry Packer, the family lawyer’s duties are to tell their clients what can be done, not to ensure systemic integrity. KP stayed inside the law, but pushed it to its limits. Some family lawyers on the other hand justengage in pure fraud, but far too manypretendgenuinely hold a view that they are advising simply about the legal “ambit” of AVO Land (here’s the advice: there is no ambit, as any claim works) and are not orchestrating anything. Sure. Of course they do. Anyway the critical tool for the divorce lawyerprocuring this scamobserving The Wallopers in action is the “interim” order as it is the very flimsiest part of the Australian legal system.
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