Case facts
Our client and his ex-wife were in a relationship for approximately 20 years with one child, who was nearly a teenager at the time of the allegations. They were in the middle of Family Court proceedings which had (as many often do) become quite heated. He and his ex-wife had been separated for a year due to his ex-wife’s problems with alcohol and gambling. Sole custody of their son was awarded to our client. Our client’s ex-wife’s problems had progressed so far that she no longer had unsupervised visits with her son and only had a limited number of supervised visits (supervised by personnel from an independent organisation as a result of Family Court Orders).
Our client came to us, already having a Final Apprehended Domestic Violence Order in force against him. Sometimes people accept the terms of an AVO knowing that they will not breach it – rather than contesting the need for an AVO. This case study is a good case on point that if the complainant has told lies to get the AVO, it is pretty easy for them to then tell further lies and get the defendant charged. We see this frequently. Our job in those circumstances is to expose the lies and clean up the mess.
Approaching Christmas, our client in good faith organised through his Family Law solicitors to contact his ex-wife’s solicitors to organise a supervised visit on Christmas Day. This was agreed to following some negotiations as to the conditions of the visit – specifically that the ex-wife be supervised by both her mother and father at their residence between specified hours.
On Christmas morning, our client was slightly delayed in dropping off his son and sent a text message to his ex-wife indicating he was running late. This message was responded to with three abusive text messages from his ex-wife. At this point our client became concerned for the well-being of his child while in the mother’s care. Regardless, at 9.30am he arrived at the house. Only the ex-wife and her mother were home at the time of the alleged offence – despite the agreement stipulated that both grandparents must be home.
At this point, the ex-wife ran to the car screaming abuse and trying angrily to get the child out of the seat in the car. It was then falsely alleged that our client pulled his ex-wife out away by the shoulders while she was trying aggressively to remove the child from the car.
After the alleged assault, our client informed his ex-wife that he would park the car and bring the child over. Our client, concerned for his child, drove off with his child to ensure his protection.
Charges
The client was charged by police with Common Assault (Domestic Violence related) pursuant to section 61 of the Crimes Act 1900 (NSW) and Contravene (breach of) AVO (Domestic Violence related) pursuant to section 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
Potential penalties
The penalties set out in legislation include:
| Common Assault | 2 Years Imprisonment |
| Contravene (breach of) AVO | 2 Years Imprisonment and/or $5,500 fine |
Nyman Gibson Miralis was approached by the client with only one week to go prior to the hearing date. Fortunately for the client, we were available and immediately set about taking instructions in preparation for a defended Local Court hearing. Needless to say, the instructions were significantly at odds with those of the complainant.
Evidence gathering
In addition to taking instructions, steps were then taken to gather information and documentation from the Family Law solicitors and to preserve the text messages sent by the ex-wife. This matter obviously called for the expertise of criminal defence lawyers to handle the contested hearing.
Hearing
An impenetrable defence was mounted at court. This started with an extensive cross-examination of the ex-wife on several subtle inconsistencies. By cross-examining these well-hidden differences at length her credibility was in tatters – so much so, that the Magistrate commented that the extensive cross-examination revealed that she was not a credible witness.
Case result
With her credibility sadly lacking, the complainant was shown various documents which confirmed that she was aware of the requirement for both grandparents to be present to supervise her with the contact visit. It was the complainant who contravened the agreement. The aggressive text messages sealed the fate of the allegations – both dismissed. Not guilty.
What to do if you are facing AVO-related charges
This case is a clear example of how easy it is to fall into the trap of accepting AVO orders, not believing that another person would stoop to the level of making false allegations. Unfortunately it happens often. The risk with AVOs and AVO related charges is that it can result in a criminal conviction, limitation on contact with children, and restrictions on the method of contact.
Nyman Gibson Miralis provides expert advice and representation in AVO and assault matters, including where AVOs have been breached. Contact us if you require assistance.
