When dealing in Family Law matters I pretty much see it all. Sometimes I see the best in people but sadly, I also see the worst. And when it comes to domestic violence, protecting a child, whilst trying to balance the relationship that child has with an abusive parent or parents, is not always as clear cut or as easy as you could imagine.
In an attempt to find the right balance, the government has a Bill before the Federal Parliament seeking to amend some of the deficiencies in the current legislation, whilst at the same time improving the ability of courts, to protect children who might be at risk from family violence.
In short the Bill is seeking to widen the definition of “abuse” to include psychological abuse and serious neglect and provide clear examples of family violence such as stalking, repeated derogatory taunts, intentionally causing death or injury to an animal and, intentionally damaging or destroying property. Other examples include social isolation and withholding financial support.
For the first time the Bill also includes a statutory definition of “exposed”:
“For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence. Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b) seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c) comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s
The Bill makes it abundantly clear that a child’s right to be protected from family violence is greater than the right of the abusive parent to have contact with the child or children. Family Law disputes are hard for everyone involved – particularly children. It may be difficult, but it is vital to ensure their well being at all times, particularly when emotions are running high and the temptation is there to say or do things that you wouldn’t dream of under normal circumstances.
by Leisa Toomey
As Grant Hackett tries to sue his lawyers for failing to ensure a Binding Financial Agreement (pre nuptial agreement) was prepared correctly it is a timely reminder that these documents must be carefully written, prepared and executed – this also means that the other party must also receive advice to ensure they understand the implications of the agreement they are signing. The ageing couple in the story below also found themselves in a situation where the husband organized …his separation and divorce with the ex wife compelled to accept the agreement he had his lawyers draw up – that was until 26 years later when she sought ownership of the house he had promised to put in her name. He didn’t keep the house and she ended up with $1.2million.
The bottom line is you should seek the expertise of an Accredited Family Law Specialist who has been trained in this highly complex area of Family Law as it is something you simply cannot afford to get wrong. At Schultz Toomey O’Brien Lawyers we have accredited family law specialists that can help you get it right the first time, please contact us for an initial free consult.
For family lawyers, Christmas and the ensuing holiday period is one of our busiest times. People who have been thinking of separating often wait until Christmas is out of the way to instigate divorce proceedings and those who are already separated can have family issues relating to the custody of children.
For the people going through it, family issues are incredibly emotional. Couple that with a few drinks, the fact that your ex has a new partner or that they have not returned the children on time and it can make for quite an unhappy holiday. To stay on track and avoid turning what can be a nice break into a Christmas nightmare I have put together a list of things to remember these holidays:
- Plan access visits as soon as you can and put them down in writing so that there are no misunderstandings. If you are not on friendly terms with your ex have an impartial third party assist you to do this.
- Try to put aside your own feelings and encourage your children to make a special gift or card for the other parent. Even if this is not reciprocated you have helped the children do something nice for your ex and also been a good role model.
- Make an effort to keep old traditions alive and start new ones. If you used to go to Carols by Candlelight as a family try and continue the tradition but add a twist like having fish and chips by the beach first.
- Don’t make the children feel guilty if they are holidaying with your ex. Tell them how you can’t wait to hear about their holiday and try to enjoy your “me” time.
- No matter how much you dislike your ex, during the holiday season put on a happy face for the sake of your children. You may not feel like being happy but it’s important to the children and you may end up getting into the swing of things.
- Watch your spending over this period. Many of my clients say they wanted the kids to feel everything was “normal” and over spent try to achieve this.
- If your ex has your children and you are not going to be at work, try volunteering. It will take you mind off being alone and may give you fresh perspective.
- Don’t face the prospect of being alone for the holidays with dread. Have a bubble bath with a glass of wine, read a good book, watch your favorite movies, order take away, catch up with friends or go for a walk along the beach.
- And finally, Christmas and the holidays is just one time of the year. There are so many more things to look forward to, so enjoy any free time you have and make the most of having some precious moments to really relax!
by Leisa Toomey, Partner
Accredited Specialist – Family Law
Legal matters can be complex and confusing to the lay person. Family law is not exempt from this and as legal practitioners we try to ensure our clients understand what is going on and what processes we need to follow.
When it comes to matters that involve family violence and abuse, regardless of whether it is alleged or proven, there is a Best Practice Principal in place to assist all parties involved in the case. This includes, but is not limited to, the courts, legal practitioners, service providers and litigants.
Developed by the Family Court of Australia and the Federal Magistrates Court of Australia they aim to strengthen the courts efforts to protect children and any other person who has suffered from family violence and abuse.
In essence the Best Practice Principles recognises that family violence is an issue and has a place in the Family Law Act (1975). It also recognizes the harmful effects it has on its victims. It also specifically recognizes that where there are allegations of sexual or serious physical abuse of children that the Magellan case management system be followed[i].
All Family Law cases that involve family violence or child abuse are required to be assessed under the Best Practice Principles as they act as a tool for gathering and subsequently providing important background information for all those involved in the case.
At the heart of this document is the courts desire to ensure both children and parents are protected from all forms of harm resulting from family violence and abuse. This includes protecting a victims’ rights to feel and be safe when having to deal with the court on Family Law matters. The courts are able to create an individually tailored safety plan which may provide them with options for how they appear in court. Various options such as appearing by video, staggering the appearance times (so they do not come face to face with the alleged abuser), attending with support persons and in some instances with security are all available to ensure the safety of those who require it.
Safety planning is a big issue for those who are living in fear as a result of family violence. The Family Violence Best Practice Principles goes a long way to assisting those who are victims and the legal practitioners and courts who are trying to ensure their safety.
[i] The Magellan program was developed to deal with Family Court cases involving serious allegations of physical and sexual child abuse. As these cases involve the most vulnerable children, the family Court has implemented this fast track program in all of its registries.
By Leisa Toomey, Partner
Accredited Specialist – Family Law
Does harassing your ex into agreeing to something they don’t really want to agree to constitute bullying? That was one of the many factors a judge had to recently consider when deciding whether to set aside property orders.
In the recent case of Hogan & Hogan Ms Hogan alleged that throughout her marriage of 17 years she had suffered stress and anxiety as a result of the violence she had been subjected to at the hands of her husband. When the marriage was over she alleged that she had continued to be subjected to stalking and abuse by her ex Mr Hogan in an attempt to get her to agree to the property orders which she subsequently signed.
The Consent Orders in question provided for Ms Hogan to receive approximately $58,000 in assets out of a pool said to be worth approximately $583,000 at the time.
In his judgement his Honour had to consider what did and did not constitute “duress” in the context of family law litigation. Whilst not agreeing that Mr Hogan’s persistent telephone calls and text messages were sufficient enough to be described as “duress” the judge deemed them to constitute “unconscionable conduct”. Mr Hogan knew Ms Hogan did not wish to speak to him and as they both had their own legal representation he should not have been contacting Ms Hogan at all.
Ms Hogan was ultimately successful in her application to have the deed of settlement set aside. However, in setting aside the orders the judge also took into consideration that Ms Hogan’s legal advice at the time was not “appropriate in the circumstances” and that the disproportionate percentage Ms Hogan was provided for in the Consent Orders, given the length of the relationship was not equitable. In fact the judge described Ms Hogan’s entitlement under those orders as “manifestly inadequate”.
A Judge is entitled to turn parties away if that Judge is presented with an agreement that presents as grossly unfair after taking in all the facts of the marriage/relationship. A Judge can also set aside Binding Financial Agreements if the circumstances allow for it like a grossly unfair settlement. This type of power is available to the court to overcome the power imbalance in some relationships.
The upshot in all of this is that good legal advice is absolutely essential before you sign any form of contract. A good lawyer will advise you whether it is in your best interests to agree to what the other party if seeking. If you find that you are being harassed into agreeing to something you don’t want to agree to you should contact your lawyer without delay.
Source: Federal magistrates Court of Australia – Family Law, Hogan & Hogan  FMCAfam 1255 (9 September 2010)
By Leisa Toomey, Partner
Accredited Specialist – Family Law
Colin* recently came to see me as he had separated from his partner of two years. He was a hard working young guy and had saved well. He had purchased a small unit, had a nice car that he had paid off, and had some money in the bank. His girlfriend had a part-time job and was studying. She had not contributed to the relationship in any real financial sense but now she was now seeking half of everything he owned. Understandably Colin was worried about his future as he had never really given a lot of thought as to what would happen if their relationship ended.
There is a lot of misconception about what people are entitled to when a relationship fails so this month we will briefly look at what a Binding Financial Agreement (BFA) is and when it might be necessary. In short a BFA is something that married couples or couples living in a de facto relationship can enter into before, during or after a marriage or de facto relationship. You will often hear people refer to them as ‘prenuptial agreements’.
A BFA can be set up in a number of ways and can specify things like the financial settlement or break up of the asset pool, the level of financial support one spouse will give the other and any incidental issues, after the breakdown of a marriage or a de facto relationship. In Colin’s case he could have had a BFA that clearly specified that should the relationship fail, the girlfriend would not be entitled to make a claim on any of the assets he had prior to the relationship.
By having a BFA in place couples can have some certainty over how the asset pool will be broken up when the relationship ends. However, it is strongly recommended that they be reassessed at least every two years and in particular after a significant event has occurred in the relationship such as the birth of a child or one party inheriting a sum of money.
Since their introduction Binding Financial Agreements have come under quite a bit of scrutiny so it is essential that both parties must also have sought and received independent legal and financial advice prior to signing the document and, as stated above, they also need to be reviewed by your solicitor on a regular basis.
Going to court to settle a divorce can be expensive and time consuming, particularly if there is a large asset pool to divide. A BFA may remove the need to go to court at the end of the relationship, but in itself can be a time consuming and costly exercise to complete. However, for those with a large asset pool it may be a worthwhile investment.
*Not his real name.
One of the wonderful things about the technology that is available to us these days is that we can be in touch with each other, at any time of the day or night. We have the world at our fingertips and we can source anything we want from anywhere in the world – all at the click of our mouse. However, the downside to that is that there is no such thing as flying under the radar when you use social networking sites like Facebook and Twitter. Such was the story of a man recently served legal documents via his Facebook page.
This is the second time this has happened in Australia, and by no means will be the last. In April 2010, Federal Magistrate Stuart Brown decided in the case of Bryne & Howard that a paternity test order be served via Facebook. In this case the man in question had a brief relationship with a woman who later had a child. When she sought child support she was unable to prove the child’s paternity as the father was not listed on the birth certificate.
The woman’s lawyers tried unsuccessfully to contact the man who moved regularly and did not respond to their letters. However, it was discovered that the alleged father was a regular Facebook user and after being advised that a private message could be sent via Facebook the magistrate made the order that the documents be delivered to him electronically.
The documents were duly sent and soon after, the man closed his Facebook page down. However, the story does not end here. As a result of closing down his profiles on both Facebook and MySpace the Magistrate said “I am satisfied Mr Howard has been properly served with the documents and the parentage test can have only one outcome because he is (the child’s) father.” The mother was ultimately found to be entitled to child support which was payable by the now confirmed father.
Whilst this particular case has made news headlines this year, five years from now it will most likely be accepted as a normal means of contacting and serving legal documents on people who think they can remain elusive, yet still maintain a profile on social networking sites like Facebook.
Leisa Toomey is a partner at Schultz Toomey O’Brien Lawyers. Leisa is also an Accredited Specialist in Family Law. To speak with Leisa or one of our other Family Lawyers call us on 1300 STO LAW.