DOMESTIC VIOLENCE IN AUSTRALIA

Domestic Violence in Australia has been recognised as a major public health problem and it affects all people, irrespective of economic, educational, social, geographic or racial background 

Domestic Violence Statistics  

Statistics reveal that, on average, at least one woman a week is killed by a partner or former partner in Australia and one in three Australian women has experienced physical violence since the age of 15. Violence against women in Australia is costing Australia approximately $21.7 billion each year. Whilst the statistics for violence against women in Australia are alarming, it is important to note that men can also experience, and be a victim of, domestic and family violence.  

What is Domestic Violence ?family violence on women

Domestic violence behaviour encompasses more than physical violence and includes behaviour that is physically or sexually abusiveemotionally or psychologically abusive, economically or financially abusive, and comprises behaviour that is threatening and coercive or in any way controls or dominates a person causing them to fear for their safety or wellbeing or that of someone else. Examples of domestic violence include the following behaviour: 

  1. causing personal injury to a person or threatening to do so; 
  2. coercing a person to engage in sexual activity;  
  3. damaging a person’s property;  
  4. depriving a person of the person’s liberty;  
  5. threatening a person with the death or injury of the person, a child of the person, or someone else;  
  6. threatening to commit suicide or self-harm so as to torment, intimidate or frighten the person to whom the behaviour is directed;  
  7. causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the person to whom the behaviour is directed, so as to control, dominate or coerce the person;  
  8. unauthorised surveillance of a person;  
  9. unlawfully stalking a person. 

GPS Monitoring for Domestic and Family Violence Perpetrators  

The Queensland Government is committed to ending domestic and family violence and has already toughened penalties for Order breaches. Following recent legislative changes, high risk domestic and family violence perpetrators are now less likely to be granted bail. 

GPS tracking fro Domestic ViolenceIn an effort to enhance community safety and reduce reoffending, the Queensland Government has explored options to monitor high risk perpetrators of domestic and family violenceIn 2018, Queensland Courts were permitted to fit domestic violence offenders with electronic monitoring devices as part of their bail conditions. The GPS device is used to track the location of perpetrators of domestic and family violence and acts as a warning device requiring the Police or another authority to monitor the device and respond. 

It is important to note that whilst the GPS tracking device is an option to improve victim safety, it is merely one part of an integrated safety plan for victims and should not be used as a stand-alone strategy. These devices are not without problems in operation and rely on line of sight to several satellites, and various environmental factors can adversely impact on the signal quality leading to a loss of signal. More importantly, given that GPS monitoring technology can only track the movements of a perpetrator, and noting that most forms of domestic and family violence are unable to be detected, the GPS device cannot be expected to keep domestic and family violence victims safe on its own and needs to be part of a wider approach.   

Read related articles:  5 Tips to Start a Prenup Discussion with your PartnerWhat will happen to my pet after separation?Inheritance and Property Settlement During Divorce

 

If you have experienced or have been charged with a serious domestic violence offence, Cornerstone Law Offices can help.

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    Selling property after a separation.

    Divorce and Family Law A separation or divorce can be one of the toughest things a person will face during their life. There is a lot to think about; where will you live, who gets what, who will the children and pets live with etc. Here are the things to keep in mind when selling a property after separation.
    One thing that can be particularly time-consuming and difficult to deal with in the sale of a property. How you proceed with selling the property after separation will come down to the relationship itself, how the parties are coping with each other and what they each want to do with the property.  

    There are two ways property is sold:

    1. Through agreement and negotiation of both owners, or 
    2. via court orders. 

    As you can expect, if you are in agreement with respect to selling the property, it is a lot easier than proceeding with option and seeking court orders to sell it. 

    Most people need to settle a property sale as soon as possible once they separate, as either one or both parties need to move out and find new accommodation. This is not easy to do if you are still paying a mortgageThere are many things to keep in mind, even if you have both agreed to sell the house. As we know in all relationships, each person has strengths and weaknesses and more often than not, there is one party who is better at handling matters like this and making quick decisions.  

    During the sale of a house, there are a few very important things that need to happen for a seller:

    1. Both parties need to give instructions to their solicitor. When dealing with a separation matter, your solicitor is unable to negotiate or act on your instructions until the same instructions are received from both parties. Remember, as you are both owners of the selling property, you are both considered that solicitor’s clients.  
    2. Some of the things you may need to sign include a Discharge of Mortgage if you have any mortgages over the property, Transfer documents to allow the property to be legally transferred into your name at settlement, Client Documents which is the initially written questionnaire and accompanying documents your solicitor will give you.
    3. Both parties will need to agree with the figures. This is where it can get particularly tricky.Family Law Property settlement

    Many separated couples struggle to agree on figures if a purchaser requests a reduction under a condition of the contract, most commonly the building and pest condition. Until both parties agree on the reduction, they are willing to give, no negotiations can be entered into with the buyer. 

    Some people also struggle on the split of funds at settlement. Someone may have paid off more of the mortgage during the relationship, someone may have put a lump sum into it, someone may have paid for renovations, someone’s parents may have gifted them the deposit, and the possibilities go on and on. 

    At the beginning of the matter, your solicitor will ask you if you have agreed on how the funds will be split at settlement. If you have not by that time, they will let you know you need to before settlement. When it comes close to a settlement, you will be given a statement showing how all adjustments (rates, water, mortgage discharges, reductions etc.) have been accounted for. They will detail cheques required to pay off their fees, any outstanding bills, any commission to your real estate agent, any payout figure to your bank. Most of the time there will be a lump sum left over – which you both, as the clients, need to instruct your solicitor on the agreed split of those monies.

    If you are unable to provide agreed on instructions on the way this will be split; your solicitor will have no choice but to retain all the excess funds from the settlement in their trust account until you can agree. This is generally when the parties will be instructed to take the matter further to obtain a court order for the way these funds will be split.

    Property SettlementShould parties not agree on the split of funds or one party refuses to give instructions or sign documents, your solicitor will then require that one party seeks independent representation in settlement of the contract or recommend you apply for orders to force the sale/detail the split of funds. Court orders (option 2 above) take time to be put in place, especially during the COVID-19 Pandemic. The courts are extremely busy, and it may take you many months to obtain a Judgment as to how the funds will be split at settlement.  

    Court orders can also be sought at the very beginning of the matter if one party does not want to sell the property. Please note the time it will take to obtain a Judgment and the cost of seeking the orders from the court.  

    As you can see, while it can be a very hard thing to deal with, especially when going through a separation, it is in everyone’s best interest to agree with selling the property and how the funds will be split, before you proceed to sell the property. 

    Each separation is different, and each party needs to do what is right for themselves in that situation. However, if you do need to sell a property following a separation, please keep in mind the above pitfalls and potential traps you may encounter so you are prepared for what may come.  

    Related articles What will happen to my pet after separation?Inheritance and Property Settlement During Divorce .

    Talk to your Family Lawyer now

      What will happen to my pet after separation?

      Every couple who are about to get separated will have this question “what will happen to their pets after separation?Family Law Property settlement

      Pets are your bundle of joy and a valued member of your family. They deserve to be cared for with love and respect.  When separation occurs, it can be a difficult time and even more difficult when there is disagreement as to what will happen with your pet’s future care and living arrangements.

      How does the court deal with pets in Family Law 

      Family Law is generally broken into two sections – Parenting and Property. The Family Law Act does not have specific provisions to deal with pets.  As a result, there is no clear or determinative way as to how the Court treats petsBut generally, the ownership of pets after separation falls under property and unfortunately, they are usually treated similar to inanimate objects such as chattels, furniture and white goods.

      Depending on the circumstances, and whether there are children involved in the matter, there is generally no possibility for shared ownership of the pets following separation since ownership goes solely to one person to finalise their financial relationship once and for all.  It may be the case that market value is attributed to the animal (which is inconsistent with the emotional value of the animal), and it forms part of the asset pool available for division. The person who keeps the animal then compensates the other for the value of the animal in consideration of the whole asset pool, including superannuation and the other assets, liabilities, and financial resources they are retaining. 

      While pets are considered property, the Court does acknowledge the comforting nature of pets. In many cases involving a child/ children, the Court will decide to make orders that the pet accompanies the child or children in moving between the parents’ homes 

      What factors does the Court consider?  
      1. If the pet is registered with the council, under whose name the pet is registered.
      2. Who is registered on the pet’s microchip.
      3. When the animal was purchased (before, during and after separation) and who paid for the purchase of the pet;
      4. Who the pet resided with before, during and after separation;  
      5. Who paid the bills for the pet (e.g. training, vet bills, food, etc.). 
      6. Who was the main caregiver of the pet.  
      7. With whom the pet has an emotional bond. 
      8. If there are children, the children’s bond with the animal and who the children live with. 
      9. Each of your living circumstances and whether it is suitable for the pet (e.g. pet-friendly, large backyard, fenced, etc.).  
      10. Any other relevant matters involving the pet’s care.   

      What are youoptions?  

      1.Negotiate directly with your former spouse/partner  

      Instead of leaving the decisions relating to your pet’s future arrangements to be determined by the Court, it is best to try and amicably negotiate directly between yourselves because you both know the pet the best and each of your circumstances If you are unable to negotiate directly between yourselves, you can consider attending mediation. With the help of an independent third party to assist you in reaching an agreement to decide who the pet lives withthe time the pet will spend with the other party and who pays for the pet’s expenses etc. You can maintain control over the outcome that works for both of you and is in the pet’s best interests.

      2. Consent Orders or Binding Financial Agreement which includes provisions for your pet

      If you can reach an agreement with your former spouse/partner, it is important to understand that the agreement is not legally enforceable. Until the agreement is formalised, it is only a reflection of your intentions.   For a legally enforceable agreement, you and your former spouse need to formalise the agreement by way of: Binding Agreement

      a)    Consent Orders; or b)    Binding Financial Agreement.                                                                                                                                                                   These documents cover property settlement matters but can also include provisions for your pet which will be considered as part of your property settlement.    

      3.Make an application for property orders in Court which includes your pet

      If you have exhausted all options, including negotiation and mediation with your former spouse, you can make an Application for Property Settlement Matters with the Court, which includes seeking specific orders for your pet.  If you take this option, you will need to consider the associated legal expenses to pursue ownership of the pet, with no guaranteed outcome at the end given the Court’s unclear way of dealing with such issues. It is also important to understand that the courts are often reluctant to deal with issues relating to pets. As is often the case with other chattels, such as furnishings and white goods, possession can often be a determinative factor of the issue.

      If we can assist you or provide you with further information relating to your pet and your unique circumstances, please do not hesitate to contact our office. Talk to us and let one of our family lawyers guide you in reaching an agreement best for your valued family member.   

      Related articles Inheritance and Property Settlement During DivorceWhat is a property settlement and can you get it done before your divorce?

       

        COVID-19 Impact on Parenting Orders.

        We understand that during these unprecedented times surrounding the Covid-19 pandemic, parents are naturally concerned about the safety of their children and how the restrictions will affect their lives and executing parenting orders during COVID-19.

        Children benefit from structure, routine and consistency. Therefore, as far as possible, parents should ensure that they continue to comply with parenting orders and parenting agreements, to facilitate time being spent by the children with each parent.

        COVID-19 Impact on Parenting Orders:

        However, it is understood that every family’s circumstances are different. If parents are unable to comply with Court orders in relation to parenting arrangements, and that failure to comply is out of their control, for instance, the children’s Contact Centre where supervised time/changeover was occurring is no longer operating due to Covid-19, parents must continue to communicate with one another (providing it is safe to do so) to find a workable solution and reach new or revised arrangements. Parents should always consider the safety and best interests of the children when attempting to reach alternate parenting arrangements, as opposed to what suits them personally.

        Where parents are successfully able to reach alternate parenting arrangements, this agreement should ideally be written down via text message or email between each other, which will assist all concerned, including the Court, to understand what arrangement is in place.

        If the parties are unable to agree to vary the agreement, or if it is unsafe to do so, and one or both parents continue to have real concerns about the children’s safety, the parents are encouraged to attend mediation. If that fails, then they are at liberty to apply to the Court to seek a variation of the orders.

        Read more about binding child support agreement.

        The Federal Circuit Court of Australia and the Family Court of Australia remain open to assist parents during this time of crisis and Judges will be prioritising urgent matters. Where there is no Brisbane-courts-supreme-districtagreement, parents should keep the children safe until the dispute resolves. Moreover, during this period of dispute, it is each parent’s responsibility by law, to ensure the children are spending time with their other parent, consistent with the parenting orders or arrangements, such as by Facetime, zoom, Social Media, or if that is not possible, by telephone. This is to ensure the purpose of the orders are respected when considering altering arrangements, and parents act in the best interest of the children at all times.

        As the Government has not mandated an absolute lockdown (quarantine), although there is substantial guidance on physical distancing, parents are unlikely to be justified in withholding the children unless complying with specific quarantine rules. When considering whether or not to withhold the children from the other parent, parents must act reasonably. To act reasonably, or to have a reasonable excuse for not complying with Court orders, is a matter that is considered by the Court.

        Related Five Myths of Divorce and Separation.

         

        How we can help in parenting matters?

        Cornerstone Law Offices remains open to assist Australian families in these challenging times and offers the following services during this time of crisis:

        1. Provide advice to parents and/or carers regarding parenting arrangements.
        2. Engage in negotiations/mediation to attempt to reach new or revised parenting arrangements.
        3. Formalising new or varied parenting agreements by way of consent orders and filing them with the Court.
        4. Appear on behalf of parents and/or carers in parenting matters currently before the Federal Circuit Court of Australia and the Family Court of Australia.

          GPS tracking as a bail condition

          As of 31 March, 2018 Queensland courts can now compel a person, accused of committing serious domestic violence offences, to be fitted with a GPS tracking device, as a condition of their bail.

          This initiative was one of the recommendations of the report entitled, ‘Not Now, Not Ever: Putting an End to Domestic and Family Violence in Queensland’.

          The Court can impose this bail condition on any person, who might be granted bail. It is not specifically restricted to domestic violence-related offences.

          The fundamental purpose of fitting the tracking device to a person’s ankle, as a condition of their bail, is to allow police to locate and monitor the wearer twenty-four hours a day, seven days a week. Police will be able to know where and when the wearer goes to a location and it is regarded as a deterrent so that the wearer will not further breach an existing protection order, such as one providing an exclusion zone to protect the alleged aggrieved.

          This tracking device could be fitted to a person, merely on the word of one person against their partner or former partner, without evidence having been formally tested by way of a hearing.

          It must be said, the fitting of the device alone is not an adequate risk minimisation measure, it is merely a warning device and requires the Police or another authority to monitor the device and respond.

          As a further condition of the wearer’s bail, Police can enter their premises to inspect equipment necessary for the device’s operation, without a warrant or permission from the wearer. If the wearer is to undergo a medical procedure, he/she will have to seek a bail variation from the Court, prior to the procedure, to permit the removal of the device. The wearer has to also inform the Police, at least two business days before flying as to why they will be flying when they will be leaving and returning.

          These devices are currently in use, being fitted to parolees or prisoners, who are subject to a continuing supervision order, as a dangerous prisoner. The expansion of the program means, people on bail, not yet convicted of having committed any offence could be required to wear the same, often visible device.

          These devices are not inexpensive. In 2017 the Queensland government committed $265 million dollars over six years to fund the tracking of 500 parolees and 91 high-risk sexual offenders. More of these devices will need to be purchased and maintained as the program is extended to include wearers, who are required to wear the devices as a condition of their bail.

          These devices are not without problems in operation. GPS tracking relies on line of sight to several satellites, and various environmental factors can adversely impact on the signal quality leading to a loss of signal. Wearers must regularly charge the device, at least two hours of continual charging daily and carry their mobile telephones to resolve technical issues when required.

          If you have been charged with a serious domestic violence offence, Cornerstone Law Offices can help.

          For more information on how we can help you, contact Cornerstone Law Offices on:

          Phone: 1300 267 637

          info@cornerstonelawoffices.com.au

           

           

           

          New Recognised Domestic Violence Orders

          Protection Orders are state-based, civil orders, which aim to prevent the commission of domestic violence.  Some, but not all of the orders, which can appear on a Protection Order are that one party be ‘of good behaviour’ toward another, that a party remain a certain distance from another, or that there is to be no contact between the parties.  Protection Orders can have as few as one order, or as many Orders required to enact protection of the aggrieved party. This article encloses all-new recognised domestic violence orders.

          Before 25 November 2017 each state-issued and enforced only their own Protection Orders, with aggrieved persons having to register their Protection Orders in their new state of residence if they move.  A Queensland issued Order was not recognised in New South Wales, without registration, a particular issue for those living in the Tweed Region.

          On 25 November 2017, the law relating to Protection Orders was changed to incorporate a new national recognition scheme.  All Protection Orders made on or after 25 November 2017, will be recognised nationally, meaning that there is no need for victims of domestic violence to register their Protection Order in the state they will be living or visiting if it’s not the state of issue of the Protection Order.

          Prior to this new change, each state based Protection Order had to be registered with any state other than the state of issue.  This meant if victims were travelling interstate, and were afraid that the perpetrator would follow them, or also lived in that state, would have to apply to the local or Magistrates Court of the relevant state to have their Protection Order registered, allowing their order to be enforced by that states police force.  If they didn’t register their Protection Order and were a further victim of domestic violence, the perpetrator could not be charged with a breach.

          All Protection Orders issues prior to 25 November 2017 can be declared to be Nationally Recognised Protection Order.  In Queensland, to have a Protection Order declared a Nationally Recognised Protection Order, an application needs to be made in the Magistrates Court.  The Respondent in the matter will not be notified such an application has been made unless consent is given in writing.

          Nationally Recognised Protection Orders will allow victims and their children to travel and relocate interstate without having to worry about notifying perpetrators and going through the Court system, with potential for re-traumatisation.

          Nationally Recognised Protections Orders, like Protection Orders issued prior to 25 November 2017, can still be varied.  To vary a Protection Order, the relevant form must be completed and filed at the Magistrates Court.  Nationally Recognised Protection Orders and state recognised only Protection Orders require the completion of different forms for varying the conditions of the Protection Order.

          If you currently have a Protection Order issued by a state court which has not expired and need assistance having it declared a Nationally Recognised Protection Order; need assistance making an application for Protection Order; varying the conditions of a protection order; or have been served with an Application for Protection Order, call us on 1300 267 637 for a confidential consultation.

          Understanding the Conditions in a Domestic Violence Order

          This article will make you understand the conditions in domestic violence orders. Domestic violence orders have conditions that are intended to protect the person seeking protection (known as the “aggrieved”). The person the order has been made against is known as the “respondent.”

          If you are the respondent, it is crucial that you obey all of the conditions stipulated in the domestic violence order. Any failure to comply with the conditions constitute a criminal offence.

          A domestic violence order will have a standard condition included in it, namely “to be of good behaviour and not commit domestic violence against the aggrieved or any other person named on the order.” However, the court can add other conditions to the order.

          There is more information regarding the conditions included in domestic violence orders in this video from Queensland Courts (see below). Please watch it and share it with anyone you think could benefit from this important information. (This is the final video in our series of six. Check our other posts for more insight into these processes).

          If you have any questions, or you need help with any family law matters, please contact Cornerstone Law Offices today for a confidential chat about your situation.

          Call us at 1300 CORNERSTONE or email: info@cornerstonelawoffices.com.au

          Queensland Courts have published a series of videos explaining the court process for making domestic violence orders. If you are applying or responding to a domestic violence order, there is information on their website for you. Domestic Violence Orders are part of a strategy to protect the safety of all members of our community and to stop the violence. If you would like additional information please visit: http://www.courts.qld.gov.au/courts/magistrates-court/domestic-and-family-violence/domestic-violence-videos

          I am served with DV orders.What next?

          A Domestic Violence Order is issued by courts with the aim of providing protection to people in domestic violence situations. It is a legal document that is issued on behalf of a person claiming to be suffering abuse. But what do you do if you are served with a Domestic Violence Order?

          It is very important that you read the paperwork carefully, so you understand the allegations that have been made against you. You should also note the date and time mentioned in the document for your court appearance.

          You must attend the court appearance or you run the risk that the magistrate will make an order in your absence. The magistrate could also issue a warrant for you to be taken into custody by the police.

          The next steps are all outlined in this informative video from Queensland Courts (see below). Please watch it and share it with anyone you think could benefit from this important information. (This is the fifth video in our series of six. Check back for our next post which will give you even more insight into these processes).

          If you have any questions, or you need help with any family law matters, please contact Cornerstone Law Offices today for a confidential chat about your situation.

          Call us at 1300 CORNERSTONE or email: info@cornerstonelawoffices.com.au

          Queensland Courts have published a series of videos explaining the court process for making domestic violence orders. If you are applying or responding to a domestic violence order, there is information on their website for you. Domestic Violence Orders are part of a strategy to protect the safety of all members of our community and to stop the violence. If you would like additional information please visit: http://www.courts.qld.gov.au/courts/magistrates-court/domestic-and-family-violence/domestic-violence-videos

          What happens in court after an application for domestic violence order is filed?

          What happens once an application for domestic violence has been filed in the court? What are the next steps in the legal process? And what happens in court?

          The first court date after an application for domestic violence order has been made is called a mention. At this time, yours and other applications are heard by the magistrate, one at a time.

          The next steps are all outlined in this informative video from Queensland Courts (see below). Please watch it and share it with anyone you think could benefit from this important information. (This is the fourth video in our series of six. Check back for our next post which will give you even more insight into the process).

          If you have any questions, or you need help with any family law matters, please contact Cornerstone Law Offices today for a confidential chat about your situation.

          Call us at: 1300 CORNERSTONE or email: info@cornerstonelawoffices.com.au

          Queensland Courts have published a series of videos explaining the court process for making domestic violence orders. If you are applying or responding to a domestic violence order, there is information on their website for you. Domestic Violence Orders are part of a strategy to protect the safety of all members of our community and to stop the violence. If you would like additional information please visit: http://www.courts.qld.gov.au/courts/magistrates-court/domestic-and-family-violence/domestic-violence-videos

          How do you apply for a protection order?

          A Domestic Violence Order is made by the court in order to stop threats or acts of domestic and family violence. How to apply for Protection Order?

          You can apply for one yourself. But did you know that the police, your friends or family members can also apply for an order on your behalf?

          Police can also help by applying for a Temporary Protection Order to provide you interim protection until a longer order can be made by the court.

          Watch this video from Queensland Courts that addresses all of this and more, and then please share it with anyone you think could benefit from this important information. (This is the third video in our series of six. Check back for our next post which will cover what happens in court).

          If you have any questions, or you need help with any family law matters, please contact Cornerstone Law Offices today for a confidential chat about your situation.

          Call us at: 1300 CORNERSTONE or email: info@cornerstonelawoffices.com.au

          Queensland Courts have published a series of videos explaining the court process for making domestic violence orders. If you are applying or responding to a domestic violence order, there is information on their website for you. Domestic Violence Orders are part of a strategy to protect the safety of all members of our community and to stop the violence. If you would like additional information please visit: http://www.courts.qld.gov.au/courts/magistrates-court/domestic-and-family-violence/domestic-violence-videos