Consistency and Understanding the Key for Courts Dealing with Family Violence

In August 2016, TC Beirne School of Law and the Australasian Institute of Judicial Administration released (http://www.lawyersweekly.com.au/wig-chamber/19479-judges-draw-on-new-guide-for-family-and-domestic-violence) the initial version of their ‘bench book’ for Courts across Australia dealing with family violence. A bench book is a guide to Judges and Magistrates to assist them in applying risk assessment systems, case law, and making suggestions in coming to decisions.

It is a difficult task for lawyer, judges and people caught in the family violence systems to ensure they can assess situations with the impartiality, reality-testing and credibility required of them, and the guide aims to simplify this process for the judiciary, resulting in a more consistent framework that better protects those in need, and better recognises when people are not being genuine in their desire for, or opposition to, an order being made.

Clients will often speak of a Judge or Magistrates having taken a view about them personally and not treating them, in their view, fairly. This guide should help in ensuring that there is a consistent and clear approach and restore damaged confidence in aspects of the system. 

Of course our lawyers (http://www.nffamilylawyersmelbourne.com.au)  have many decades of experience dealing with family violence matters and providing clients with realistic and sensible advice in obtaining, opposing, or renewing orders and if you do have a concern about your situation, we encourage you to call us to discuss your situation. 

We are available on 03 9614 7111 or by email on melbourne@nevettford.com.au.

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Won’t somebody please think of the children? – issues to consider when wanting to relocate interstate

Parenting with a separated former partner can have its challenges, and one of the most polarising can be the decision of one parent to relocate across the country.

The guiding principle in this area of the family law is the best interests of a child, with the two competing primary considerations being the benefit to a child of having a meaningful relationship with both parents, and the need to protect a child from risk of harm in a variety of forms. The second consideration is ‘weighted’ more heavily than the first. There are a number of secondary considerations in the Family Law Act 1975 that are also taken into account.

From a practical standpoint, what this means is that there must be a compelling reason that a move would not benefit solely or simply a parent, but more importantly the child. Very clear consideration must be given to how, in the event of a move, a relationship with the other parent is maintained.

Reasons for a move might include greater cultural and educational opportunities, specialised services being available in the new region not available in the previous region, better family and emotional support for a child being in one region or another, or a parent being able to obtain much more fruitful employment in a new region, meaning that their child has a better chance at a greater quality of life.

Incidences of family violence and isolation for a parent in one region can also play a significant role in a proposed move. There may be very good reasons not to move as well, including cultural ties that would not be available in a new region, the loss of Indigenous connection to country should a move occur, and estrangement from a parent.

It is important if considering such a move that there be very clear communication with the other parent involved, and that intentions and reasoning are clearly set out for discussing.

You may not find that a parent confronted with such a proposal necessarily acts rationally or calmly at first, but it is important that a solid foundation and clear communication is established early on.

Every situation is different of course and you should obtain expert advice specific to your circumstances. The guide in this article is at a general level and should not be taken as legal advice for your specific circumstances. We are available to discuss these issues with parents considering making, or responding to someone proposing, such a move, at any time on 03 9614 7111, or by email at Melbourne@nevettford.com.au

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How to Speak when your Family Lawyer is Listening

The Australian Institute for Family Studies (“AIFS”) has just recently released its report (https://aifs.gov.au/publications/evaluation-2012-family-violence-amendments)  into the 2012 changes to the Family Law system that brought in, amongst other things, more of a focus on family violence in the family law area, as well as ‘screening’ for family violence in all cases.

Despite these changes, a significant proportion of those involved in family law disputes, or even in families that never enter the formal family law system of mediation, lawyers and Court, did not report family violence or safety concerns that they held.

In 2014, it was found that 38% of parents holding either family violence or safety concerns did not report those concerns to lawyers or Court officers; a very considerable 46% of parents involved in family dispute resolution / mediation did not report their safety or family violence concerns.

This type of information is sure to give family lawyers pause and should cause them to rethink how and how often they are asking their clients whether they have safety concerns.

This is a very real and concerning issue for lawyers, as a failure for a client to disclose that they are fearful, and potentially intimidated, may compromise a client’s ability to give instructions or make good decisions.

For clients, this revelation opens a discussion of a common practice I see day to day – where clients decide that they are going to hold back some information from their lawyers for one reason or another.

In situations where family violence has been a factor or concern, this is often out of embarrassment, shyness, a feeling of some sort of shame at having lived through such a situation, or refusal to believe that this type of thing would happen to you.

This affects people coming out of relationship no matter their gender.

Whilst these are understandable reactions, withholding information from your lawyer puts you at a disadvantage because you cannot prepare yourself, or take remedial action to address the issues that may be of concern.

Your lawyer is left fighting with one arm tied behind their back.

Additionally, if actions are taken without these concerning issues being raised at an early stage, Courts and lawyers will often regard later disclosures by you with a great deal of scepticism, thinking that the information is only coming out at a stage when it can be used to delay proceedings rather than for a genuine safety reason.

Whilst it may be confronting and difficult to raise issues of family violence or abuse from a relationship, your lawyer will have heard these issues, and unfortunately much worse, in their career, and you should find a lawyer with whom you feel comfortable raising and discussing these issues so you are prepared and on the front foot.

Call our senior lawyer Richard Hamilton or accredited specialised Elizabeth Hall on 03 9614 7111 or email Melbourne@nevettford.com.au to discuss your situation in an obligation-free call and get a better understanding of how the family law would take into account your particular circumstances and history.

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