Archive for the ‘Family Law’ Category

Protection from Domestic Violence

Protection from Domestic Violence

There has been an upswing in media reportage of domestic violence. With domestic violence campaigner Rosie Batty as the 2015 Australian of the year, domestic violence has never been so topical or newsworthy.

The media seems to mostly shine its light on the physical side of domestic violence – the murders, the beatings, the actions that physical scars and bruising. This physical violence, while tragic, is not the only type of domestic violence experienced by Australians.

Statistics

A snapshot of domestic violence in Australia from the Domestic Violence Prevention Centre provides the following statistics:

  • Just under half a million women reported that they experienced physical or sexual violence in the last 12 months.
  • 8% of these women said the perpetrator was a current or ex-partner.
  • 4% said that the perpetrator was a male family member or friend.
  • 7% of men who had experienced physical or sexual violence in the last 12 months had had the violence perpetrated by other men.

What constitutes domestic violence?

The Australian Parliament has defined the following as being examples of domestic violence:

  • Emotional abuse, including attacks on the victim’s self-esteem, undermining, and unjust blaming of the victim for all the problems that are experienced in the relationship;
  • Verbal abuse, including swearing and yelling in public and private;
  • Social abuse, such as isolating the victim from friends, family and the community;
  • Economic abuse, including not allowing the victim to make or keep their own money, leaving them reliant on the abuser;
  • Psychological abuse, such as making threats about the safety of children, dangerous driving, terrorising in order to scare the victim and keep them compliant;
  • Spiritual abuse, which can involve denying the victim access to their own religion or using religious beliefs as an excuse to abuse the victim;
  • Physical abuse, including food and sleep deprivation, using physical violence, locking the victim out of the house or hurting child victim/s to control the adult victim; and
  • Sexual abuse, including rape, coercing the victim into unwanted sexual activity, degrading the victim sexually, not using protection to prevent STD transmission or pregnancy or even forcing the victim to have sex with other people outside of the relationship.

Why don’t these victims just leave? They don’t have to put up with this!

Domestic violence is a very complex issue, and there are rarely ‘textbook’ cases. Some abusers are members of the victims birth family, and have been abusing them for their whole lives, isolating them and keeping them away from functional family members who might recognise that there is a problem. Some abusers use the victim’s children as living hostages to ensure that their parent won’t risk harm coming to them. Some victims have no money, no access to transport and do not speak English. They may have been told that the world outside their walls is more dangerous than the world within. Some victims have a disability that makes it hard for them to communicate. Some victims live in remote areas and no one knows they are there at all.

The most compelling reason that victims of domestic violence don’t leave is that they do not see how they can.

Domestic Violence in Australia

According to the Australian Bureau of Statistics, 1 in 5 women and 1 in 20 men have experienced violence at the hands of an intimate partner.

Domestic violence is prevalent in Australian society, with hundreds of thousands of families affected. Domestic violence incudes a wide range of abusive behaviour and can be found across a wide range of Australian society.

What should you do?

In a family law matter, the Court can make orders restraining one or both parties from engaging in certain conduct. A restraining order is usually intended to protect people or property, or it might be to force one person to vacate the parties’ former home.

The Court takes the issue of family violence very seriously and that is often a factor in making a restraining order. The Court also takes the breach of restraining orders seriously, and it has the power to impose a range of significant penalties.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Social media and family law – Just don’t do it!

Social media and family law – Just don’t do it!

Social media – Facebook, Instagram, Twitter, Snapchat and the like – can be a lot of fun and have become an accepted part of modern life.  Many of us use such forms of electronic communication to share the exciting, as well as the banal events in our lives, to express our views and to stay in touch with loved ones.  But what happens when people going through a relationship breakdown take to social media?  Usually little good comes of it, and sometimes quite a lot of bad can result.

Social media as evidence

If you are going through a separation, you should expect your former partner, their lawyer or the children’s lawyer to search social media to see if they can find out anything damaging about you that could be used as evidence. For example, if you are involved in a financial dispute and might be claiming that you cannot afford to pay spouse maintenance or increased child support, it would probably not be a good idea to share on Instagram photos of your latest holiday or new car.

Similarly, when involved in a parenting dispute, you would be wise not to post to Facebook about your latest “big night out”, especially if the children were in your care at that time.

When making a decision about where children are to live and with whom they are to spend time, the Court can take into account the ability of the parents to communicate and cooperate with one another.  So, it is not likely to be helpful if the Court is shown evidence of abusive or derogatory posts you have made on social media about your former partner.

Of course, many people have social media privacy settings which limit the information that can be seen by non-“friends”. If you haven’t set your social media privacy in that way, you would be wise to do that while you’re sorting out the issues arising from your relationship breakdown. However, even with tight privacy settings, it’s still better to be very careful about what you post, or just don’t do it at all.

Social media and prosecution

The law prohibits the publication, including by electronic means, of information relating to family law proceedings which identifies the parties involved, people associated with those parties or any witnesses. Anyone who breaches that rule is guilty of an offence, the maximum penalty for which is 12 months imprisonment.

That prohibition has not prevented some people involved in family law proceedings from using social media as a weapon against their former partner, by carrying out a campaign of cyber-bullying against their former partner, his or her lawyers, the children’s lawyers and the judicial officers involved in the case.

In two recent cases involving such unlawful social media publication, the Court focused primarily on two things.

Firstly, the Court invoked its child protection jurisdiction and concerned itself with the harm that might befall the children if, as a result of social media publication of information relating to family law proceedings, members of the public could identify the children involved, such that the children might then be exposed to ridicule, curiosity or notoriety.

Secondly, the Court considers it in the public interest to preserve public perception of the integrity and impartiality of the Courts and judicial system, which some litigants have used social media to attack.

In both cases, the Judges commented on the difference between unlawful publication of information about family law proceedings in a one off newspaper article, for example, and publication on the internet, which is and remains available for quick and easy access by anyone, anywhere, at any time.

In one of those cases the offending parent was ordered to remove all references to the parties and the proceedings from the website he or his family had set up to cyber-bully the mother and to expose the lawyers and judges involved in the case as “corrupt”. In addition, the Court ordered the Federal Police to investigate whether the father had committed an indictable offence.

Similar orders were made in the other case in which the offending party, again the father, had used Facebook to denigrate the mother and her lawyers, the Court, the Department of Community Services and the children’s lawyer.

Can social media be good?

The cases referred to above involved ongoing bitterness and acrimony between the separated couple. Happily, that isn’t always the case, and some separating parents can respectfully communicate and cooperate with each other for the benefit of their children. In such a situation, tech savvy parents may find a way to use electronic communication or social media to their mutual advantage, for example privately sharing necessary information about the children and their activities.

Conclusion

Unless you and your former partner can find a way to privately use electronic communication to help you co-parent your children after separation, the general guideline when it comes to social media and family law disputes is just don’t do it.

Not only would you not want to find your Facebook posts being used as evidence against you in court proceedings, you could even expose yourself to prosecution by the Federal Police for breaching the law against publication of information relating to family law proceedings.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Domestic Violence

A Domestic Violence Order may be obtained if the Aggrieved spouse is able to convince a court that: –

  • There has been a history of domestic violence;
  • It is likely that an act of domestic violence will be repeated in the future.

Domestic violence includes an intentional assault, a threat to assault, intentional damage to property and intimidation/harassment and indecent behaviour against the other party.

In addition, the aggrieved spouse and the respondent spouse must be in a domestic relationship; usually they are husband and wife or de facto partners.

The court can make a Temporary Order which will remain in force until the next court date.

Usually, a party who says that an act of domestic violence has taken place will go to the police station or to the courthouse and either the police will make an Application on behalf of that spouse or the spouse will need to make the Application themselves.

This involves filling in a form and filing it with the court.

The police generally serve the Application for a Domestic Violence Order.

Domestic Violence Orders may be made on the standard conditions, ie that the Respondent spouse be of good behaviour and not commit any further acts of domestic violence.

There can be other Orders made such as that the Respondent spouse not approach within a certain distance or that the Respondent spouse will not contact the Aggrieved spouse or other named parties including relatives/associates/children.

Common Orders include not to come to a home or workplace.

If you have any questions or would like to speak with one of our solicitors, please contact us.

Parenting matters

The Family Law Act now provides for a presumption of equal shared parental responsibility.

Unless a court makes a different Order, then the parents of a child have equal shared parental responsibility.

Parental responsibility refers to the long term decision making responsibly that parents have in relation to a child. In general, long term decisions relate to children and: –

  • Their health (apart from emergency health issues);
  • Their name;
  • Their religious upbringing;
  • Their education;
  • Their cultural upbringing;
  • Changes to their living arrangements which would make it more difficult for a parent to spend time with a child.

The presumption of equal shared parental responsibility can be rebutted if the court accepts evidence that a parent has been abusive or violent or that it is not otherwise in the best interests of a child that that presumption is applied.

Parents now have a positive onus to consult with each other in relation to major long term issues and to make a genuine attempt to come to a joint decision about those issues.

The practical effect of the court making that presumption of equal shared parental responsibility is that a court must then consider making an Order in relation to the children which sees the children spending equal time with both parents or significant and substantial time with both parents.

Significant and substantial time means at least time: –

  • On school days;
  • On weekends;
  • On holidays.

In general it means time which would allow a parent to be involved in a child’s daily life and also on special occasions.

We can help you if you wish to make an application to the court for an order in relation to children.

Parties must endeavour to reach agreement by attending mediation prior to commencing proceedings, save in certain extraordinary circumstances.

Parenting plans

Parents can make informal arrangements, ie not Orders, for their children by entering into a parenting plan.

A parenting plan is a document which is signed and dated by the parents of the child.

A parenting plan can deal with: –

  • Where a child lives/with whom a child lives;
  • The time which a child spends with parents and significant others;
  • The allocation of parental responsibility;
  • How parents will make decisions about their children;
  • How disputes will be resolved;
  • How arrangements for children spending time and travelling can be changed;
  • Financial support.

We can help you if you wish to enter into a parenting plan.

We can refer you to child counsellors, family dispute resolution centres and mediators.

The overriding considerations in relation to parenting plans continue to be what is in the best interests of the children.

Parenting plans may vary or end existing Court Orders if these pre-date the parenting plan.

Applying to Court

Both parents have equal shared parental responsibility for the care and welfare of the children unless there is an Order in place which provides something different.

If the parents cannot agree where the children should live after a separation, then the court has power to make a parenting Order.

Parenting Orders can be agreed between the parties at any time until a Judge makes a decision and even after that time.

Parenting Orders can deal with many matters effecting children including: –

  • The person with whom the children are to live;
  • The time which children are to spend with other parties/people;
  • Parental responsibility;
  • How parents will make decisions about children;
  • Communication by children with other parties;
  • How disputes can be resolved;
  • Anything else which is necessary in a case about children including, eg medical treatment, religious upbringing, which school should be attended by children.

If you wish to obtain advice about arrangements for children after separation or If you have any questions and would like to speak with one of our solicitors, please contact us.

The court may make parenting Orders which include: –

  • With whom a child lives with;
  • With whom a child spends time with;
  • With whom a child communicates with.

The paramount consideration is the best interests of the children.

The Family Law Act sets out various factors which must be taken into account and these include: –

  • Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent possible provided that is in the best interests of the child;
  • Protecting the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence;
  • Ensuring children receive adequate and proper parenting to help them achieve their full potential;
  • Ensuring that parents fulfil their duties and meet their obligations regarding the care, welfare and development of their children;
  • Children have the right to know and be cared for by both their parents regardless of whether or not their parents are married, separated, have lived together or not;
  • Children have a right to spend time with and communicate with their parents and other people significant to their care, such as grandparents;
  • Parents jointly share duties and responsibilities about the care, welfare and development of their children;
  • Parents should agree about the future parenting of their children;
  • Children have a right to enjoy their culture and to share that culture with other people who enjoy that culture.

These factors help the court decide what is in the best interests of the child.

Primary consideration

The benefit to the child of having a meaningful relationship with both of their parents.

The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

Additional considerations

  • Any views expressed by the child (subject to the child’s maturity or understanding) that the court thinks are relevant.
  • The nature of the relationship of the child with their parents and any other significant persons.
  • The willingness and ability of the parents to facilitate and encourage a close and meaningful relationship between the child and the other parent.
  • The likely effect of any changes in the child’s circumstance including a separation from a parent or other person with whom the child has been living.
  • The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially effect the child’s right to maintain relations and contact with the child’s parent on a regular basis.
  • The capacity of each of the child’s parents and any other significant person to provide for the needs of the child including the emotional and intellectual needs of the child.
  • The maturity, sex, lifestyle and background of the child and of either parent and the characteristics of the child that the court thinks are relevant.
  • If the child is an Aboriginal or Torres Strait Islander child then cultural considerations will be taken into account.
  • The extent to which each of the child’s parents have fulfilled or failed to fulfil his or her responsibilities as a parent and in particular the extent to which each parent has taken or failed to take the opportunity: –
    • To participate in making decisions about major long term issues, spent time with the child and communicated with the child;
    • Has facilitated or failed to facilitate the other parent participating in making decisions about major long term issues in relation to the child, spending time with the child and communicating with the child;
    • Has fulfilled or failed to fulfil the parent’s obligation to maintain the child (paid child support);
    • Events that have happened and circumstances that have existed since separation.

The court must consider whether an Order providing that children spend equal time with both parents or significant and substantial time with both parents is reasonably practicable. In making a decision about whether an order is reasonably practicable, the court must consider: –

  • How far apart the parents live from each other;
  • The parents’ current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the parties;
  • The parents’ current and future capacity to communicate with each other and resolve difficulties that may arise in implementing such an arrangement;
  • The impact that such an arrangement would have on the child;
  • The particular circumstances of the case.

The court has a wide discretion. The court must make the order which is in the best interests of the child.

If there is an order in place and a parent wishes to make a change, then the parties can agree to change the Order.

If you have any questions or would like to speak with one of our solicitors, please contact us.