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The February 2020 Senate Inquiry into Domestic Violence – Part 2

13 August 2020 4:20 pm Comments Off

The February 2020 Senate Inquiry into Domestic Violence

Did it fail?

PART 2

Well, let’s look at some of the recent statistics:

The overall number of deaths has fluctuated but shown no sustained decrease;
There’s been less physical violence since the 90’s but an increase in sexual assaults; and
In Queensland, we’ve had a double-digit increase in various domestic violence applications.

If the numbers show an increase in applications, is this a failure? Or have we merely been successful in pulling back the rug from an issue much greater than anyone originally thought? One report stressed that a number of factors contributed to this such as increased confidence in victims, improved court accessibility and changing police practices.

The government’s focus has been on changing cultural attitudes and early prevention which is much more difficult to measure. In 2017, a national inquiry revealed a mixed result in the scorecard of society’s views – we’re more aware that family violence goes beyond just physical encounters and we’re also more willing to intervene when seeing someone verbally abusing their partner. However, the report also said Australia was going ‘backwards’ in some areas such as understanding that men are more likely to perpetrate family violence.

What standard then do we use in measuring success in our efforts? We simply don’t know and there are too many variables to definitively answer the question at this point in history. As an example: since our population and volume of applications for protection has climbed but our number of deaths hasn’t, this is at least shows some measurable improvement in the total percentage of families who suffer from the ultimate tragedy – even if the problem hasn’t been eradicated entirely.

Our latest inquiry suggested a ‘wait and see’ approach in examining whether our existing efforts will have lasting success before Australia looks at a new National Plan. This cautious answer was deemed insufficient and a new inquiry into family, domestic and sexual violence has already been proposed to be answered by a different committee.

However, if the issue is rooted in evolving societal attitudes, is this new inquiry fated to come to the same conclusion as the last one?

It takes time to change a culture but if the latest statistics are anything to go by, we’re making some progress. Let’s hope the inquiry finds where we can improve so we can Stop it at the Start.

Joshua Noble is a Solicitor at Zande Law Solicitors, Suite 7, Norwinn Centre, 15 Discovery Drive, North Lakes. To contact Joshua for advice, phone 3385 0999.

The information in this article is merely a guide and is not a full explanation of the law. This firm cannot take responsibility for any action readers take based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.

The February 2020 Senate Inquiry into Domestic Violence – Part 1

23 July 2020 4:35 pm Comments Off

The February 2020 Senate Inquiry into Domestic Violence.

Did it fail?

PART 1

Following the horrific murder of Hannah Clarke and her three children in February this year, our Federal Senate referred an inquiry to the Legal and Constitutional Affairs committee to report on and grade the efficiency of our current strategies in combating domestic and family violence, where improvements could be made and how effective we have been as a country in meeting our targets.

The result? After three months, the report was handed in early and, in a “somewhat unprecedented” move, the committee failed to hold a single hearing or seek any submissions from public bodies. Ultimately, the committee noted the comprehensive work done in the previous inquiries and felt that another lengthy and wide-ranging one at the present time would be of limited benefit and divert attention and resources away from front-line services.

In a scathing rebuke, South Australia’s Senator Rex Patrick tore shreds through the inaction of the committee to advise on whether our current measures are being implemented effectively. At face value, it might be easy to agree with Mr Patrick that the February 2020 inquiry was a colossal waste of time and taxpayer money. But before we all condemn this committee and label all the Government initiatives as ineffective, it is important to look at both the statistics and see what work was already underway before the February 2020 Senate inquiry was commissioned.

While these stories rarely make the front page, in 2010 Australia adopted a National Plan with the goal of a significant and sustained reduction in violence against women and their children. Since 2015, we’ve already looked into how effective our measures have been on multiple occasions and one as recently as June last year.

Although each State has separate legislation for domestic violence (and the criminal act of breaching protective orders), there have been significant improvements championed nationwide. In recent years we’ve seen court orders now being recognised across state lines, the establishment of a Minister for Women Cabinet position, greater cooperation between police agencies, the creation of a specialised Family Violence Court and record levels of federal funding towards tackling family violence. The public and private availability of emergency assistance for victims looking to escape violent situations are also undoubtedly excellent initiatives.

Overall, the focus on early prevention programs such as Queensland’s ‘Stop it at the Start’ ad campaign and positive relationships being taught in our schools as part of the curriculum have been assessed to be having a positive effect though it is still early days.

However, the obvious questions remain – how do we measure progress in this area? Can we be confident the current government-led initiatives have any chance of success? In part two of this series we will tackle these questions and more.

Joshua Noble is a Solicitor at Zande Law Solicitors, Suite 7, Norwinn Centre, 15 Discovery Drive, North Lakes. To contact Joshua for advice, phone 3385 0999.

How does Covid-19 impact on legal services and the law

9 May 2020 11:03 am Comments Off

How does Covid-19 impact on legal services and the law

Although undoubtedly, the present restrictions on human contact and movement are having an unpresented impact upon Australia’s economic prosperity and these same factors are undoubtedly impacting also on many people from a mental health perspective. For the most part, none of these restrictions should effect the way the law or the delivery of legal services have operated and/or apply.

Family Law Cases

The Chief Justice of the Family Court has issued a public announcement that unless a particular family is actually suffering a Covid-19 infection, the Court expects that pre-existing arrangements for the share of care and decisions making for the children should continue on unaffected. The existing family law principles already are flexible enough to adapt to a world where the value of businesses, stock market investments, superannuation and/or Real Estate are undergoing dramatic fluctuations as a consequence of broad base external factors as was previously seen with events such as the property boom in the late 90’s early 2000’s and the consequent global financial crisis of 2008. Otherwise, the Family Court itself is still very much open for business and is presently running all of its cases via telephone and video link. All court documents are now being filed via the Court’s online portal, a system which has been up and running now for several years. There are some disruptions and delays, but by enlarge the court is still functioning as normal.

Buying and Selling Real Estate

Although worries over job security and the potential for a dramatic drop in real estate prices are undoubtedly impacting on confidence and the consequent willingness of parties to enter into and/or proceed to complete real estate deals, the terms of the standard REIQ real estate contracts and the overall structure of the conveyancing process are both well capable of adapting to Covid-19 issues. Under the standard REIQ contract, there are already specific clauses that will suspend the operation of a contract should events such as a Covid lockdown occur. Under those same terms, the seller is also given the right to terminate the arrangement if government restrictions are to continue for an extended period. House inspections can still legally occur and the only events which are currently not possible are the group gatherings associated with auctions and open houses. In terms of the conveyancing process, the innovation of e conveyancing which has now been in operation for some time, now permits every task of the conveyancing exercise to be conducted online with the one exception of witnessing of signatures but this task can still be easily completed in face to face meetings provided social distancing is used.

Preparation of Wills and Enduring Powers of Attorney and the administration of Deceased Estates

Although much of these tasks have historically been conducted through face to face meetings, all of the required tasks to prepare and sign a will, an enduring power of attorney or attend to the administration of a deceased estate, can be conducted via use of telephone or video conferencing and in extreme cases this too can extend the execution of wills and enduring power of attorneys documents although most law firms preference is to continue to have these documents executed in face to face meeting which are all still perfectly doable provided everybody respects social distancing and hand sanitising.

General Legal Business and Consultations

Again with the ability to conduct business via telephone or video conferencing and also via the use of email and online document sharing platforms such as drop box, the business of providing and receiving general legal services is well capable of continuing to be conducted amidst a Covid lockdown environment.

So, the message generally from Zande Law and indeed the legal industry at large is that we are still open for business and do not foresee that any developments associated with Covid-19 will impact on our ability to provide services for you.

Impact of Covid -19 Issues on Family Law Child Care Arrangements

10 April 2020 1:00 pm Comments Off

Impact of Covid -19 Issues on Family Law Child Care Arrangements

With the rapid spread of Covid-19 infections worldwide and the consequent sudden and dramatic government imposed restrictions on human movement and general contact, separated families which have been operating under existing Family Court consent orders, parenting plans and/or personal informal agreements are understandably in a present state of confusion as to where their rights and responsibility lie in the current environment where we are all facing in the imposition of government restrictions (including large fines for non-compliance) not to mention the medical advice about the extreme nature of precautions that we must all now take to avoid causing the spread of infection.

If these issues are currently impacting upon your family, here are some important tips to take note of:-

The Chief Justice of the Family Court has in recent days, issued a public announcement to state that as far as the Family Court is concerned, parents currently bound by Family Court Orders are expected to continue to adhere to those orders in terms of facilitating change overs between households for the care of their children and ongoing co-operation between the parents concerning the making of decisions for the children’s welfare. The Chief Justice’s announcement also confirms that if any particular household is actually impacted by a Covid-19 infection then obviously in those circumstances, both households will need to comply with the government restrictions on self-isolation but short of an actual infection, the court has clearly stated that it will not tolerate behaviour where one parent is, for example, refusing to allow a child to return into care of another parent on suspicion that that parent or persons with whom that parent associates might become infected.
Parents who have entered into child care arrangements under the terms of parenting plans or informal personal agreements are not directly answerable to the family court should they breach those arrangements however the message from the Chief Justice in many ways equally applies to these families because if there are breaches in the agreement, the end result eventually will be that one side or the other will be taking the matter to the Court at which time, the Chief Justice’s message will be will certainly become applicable.
If you are facing a situation where the other parent has refused to return the children amidst unfounded Covid-19 fears, please note that the Queensland Police have NO power to directly enforce Family Court orders. If the police are called as first responders, the only things that they are able to do is take all actions necessary to keep the peace/quell any domestic disturbance and otherwise conduct a welfare check on the children to ensure that they are at least safe and adequately cared for in the household of the parent who is withholding them. The enforcement of the orders can only be undertaken via applying back to the Family Court for a recovery order. Once the recovery order is granted, the Family Court then has the ability to through its Federal Marshal to deputise local Queensland Police Officers to go out to the house and enforce the order and recover the children.
Without a doubt, if there are issues going on between the parents and they can not sort them out voluntarily then the preferred method for resolving that dispute remains mediation.

We at Zande Law would like to wish you and your family all the very best of safety and good fortune during these troubled times. Should you have particular issues concerning the implementation and operation of Family Law children’s orders amidst this Covid-19 crisis then please do not hesitate to contact our office.

Michael Zande

Principle, Zande Law

DIVORCE: Can one spouse kick the other out of the house?

7 April 2020 11:59 am Comments Off

DIVORCE: Can one spouse kick the other out of the house?

In the breakdown of any marriage or defacto relationship, the law gives to each of the spouses the right to apply for a Court Order that will force the other spouse to exit and remain away from the family home. There are two ways that this can be done:

An “Ouster Order” which is made under the Qld Domestic Violence and Family Protection Act; or
An Exclusive Occupancy Injunction which is made under s.114 of the Family Law Act

For many years now, the Ouster Order option has been the preferred solution. There are no filing fees , easy to complete forms, an expedient and simplified hearing process in front of a local Magistrates Court, and perhaps, most importantly of all, the availability of the local Police who can assist (in varying degrees) with the obtaining, service and enforcing of the Order.

Potential detractions with Ouster Orders however, is that to be entitled to one, the applicant spouse must be prepared to hit the other spouse with a full Domestic Violence Order (DVO) which of course also requires that spouse to prove that there has been “violence” within the household. DVO’s of course are entirely necessary and appropriate where violence is in play, but there are many other situations where non-violent behaviours can make things so uncomfortable in the home, that continued sharing of the home is rapidly becoming intolerable and – it’s only a matter of time before someone cracks.

In these more border-line situations, an Exclusive Occupancy Injunction (EOI) might be a better solution. In a recent decision of the Family Court, the Court said that whilst it would not normally grant an EOI on the mere existence of tension in the home, it was similarly not necessary to prove that a shared home life had become intolerable and that instead, the Court only needed to be satisfied that it was not reasonable or sensible to expect the parties to continue to share a home together.

In that case, the availability of another residence where the Wife could live (rent free) was a sufficient tipping point for the Court to grant an EOI in favour of the Husband against the Wife, even though there was no evidence to say that there was any prospect of violence between them.

Michael Zande is a Queensland Law Society Accredited Family Law Specialist with over 30 years’ experience in the field. He is the principal at Zande Law Solicitors, Suite 7, Norwinn Centre, 15 Discovery Drive, North Lakes. To contact Michael for advice, phone 3385 0999.

DIVORCE: How do you divide up Superannuation?

9 March 2020 11:57 am Comments Off

DIVORCE: How do you divide up Superannuation?

For many Australians, Superannuation is one of the most valuable assets they own. Consequently, the right to seek a division of Superannuation and the process by which it is done often becomes a critical part of the asset division following any relationship breakdown. Here are some of the important points to note:

Under Family Law, Superannuation is as fully divisible as any other asset and those rights are available equally to both married and defacto couples alike*. The actual division of Superannuation is commonly referred to as “Superannuation Splitting” and importantly, any money split from the Super Fund of one spouse, must be paid into a fully compliant Super Fund in the name of the other spouse. The money can’t ever be paid out directly to the other spouse as cash.

Each spouse must make full disclosure as to the current balance of their Super Funds and, if a spouse fails to do this, the other spouse has the right to go directly to the Super Fund and get the information from source.

As for working out the actual value of the Superannuation, a good staring place is the 30 June Member Benefit Statements all Super Funds send out each year. There is however no obligation to fix the value as at 30 June and the Super Fund can give an updated value at any time. Backdating the value of the Superannuation to an earlier point in time like the date of separation is possible but actually splitting the Supers on these backdated values without agreement from the other spouse is not. Also, the value which the Super Fund gives on its standard Member Benefit Statements is not always the correct value to be used for Family Law purposes. In some cases, the Family Law Rules require a different calculation to be used. This should always be checked with the Super Fund before a Superannuation Split is finalised.

Splitting the Superannuation is not always mandatory. In appropriate cases each spouse can leave their own Superannuation account intact and instead trade-off the Superannuation Split amount against other assets in the overall property division exercise.

If a Superannuation Split is to occur, it must be contained in documentation that is fully compliant with both the Family Law Act, the rules of the particular Super Fund and the overall governing legislation that regulates the Super Industry. If a mistake is made with any of this paperwork the Superannuation Split will be completely ineffective.

* Although, for defactos the relationship generally must have lasted for at least two years.

DIVORCE: Liars Beware!

10 February 2020 11:52 am Comments Off

DIVORCE: Liars Beware!

For many persons facing a relationship breakdown, there is often great worry that the other (now ex) spouse will give in to all of the negativity of the separation and unleash a tirade of abuse and untruths.

Although abuse can be very confronting, it is generally easy enough to spot and it can be fairly effectively stopped with our strong anti-domestic violence laws. In reality, it is often the untruths that become the real menace because lies are fairly easy to manufacture, and liars are generally very good at convincing others that they are speaking the truth. The lies could take the form of false allegations about domestic violence or other false assertions about important historical events that will fundamentally change how parenting arrangements for the children and/or property might be divided. For anyone facing these sorts of lies, the thought of having to expend considerable amounts of time, energy and money to prove the truth, coupled with the possibility that the liar may still be believed would, understandably fill the strongest of us with dread. But take heart, the worst day of your life may yet turn out to be the best thing that ever happened to you.

Under the formal family law system, there are plenty of reasons to take hope that all will be all right in the end.

The first is that once the lie is spoken or published, it will usually be impossible for the liar to further embellish it without exposing the first statement to be false. For the victim of the lie therefore, there is comfort in knowing that matters probably cannot get any worse because the upper limit of the potential damage of the lie is now known and capped.

Second, once the lie is out in the public space, the lie is exposed, isolated and vulnerable to attack and defeat because usually, the liar will not be able to create new lies to conceal the fallacy of the first one.

Third, it is the liar who still bares all of the responsibility of actually proving it and within that exercise, it is the victim that now gains considerable rights and powers which are all there to defend the truth.

Defeating a lie of course will rarely ever turn out to be the best thing that might ever happen to you, but at least in the family law space, a lie does not usually cause the worst day of your life.

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