Lisa Foley and Deborah Awyzio presented for TV Education Network, a portal for Continuing Professional Development (CPD)  on 25 November 2020. The webinar was recorded and on the topic of preparing for mediation with practical tips and resources to maximise the chance of reaching a settlement.
Deborah spoke of the different conflict management styles and to know your client’s style before mediation. The different styles of mediation include:

Competitor
The goal is to win at all costs regardless of repercussions for the other party,.

Compromiser
The negotiator is prepared to concede to get a deal.

Collaborator
Using this style the mediator is willing to listen and understand other parties needs and interests.

Accommodator
The accommodator is prepared to put others’ interests before their own.

Avoider
The avoider puts their head in the sand and attempts to avoid conflict.

This presentation was for a webinar and is suitable for lawyers Australia wide. It has been designed to deliver the professional skills compulsory subject CPD unit for the CPD year ending 31st March 2021 and is available for purchase on the Television Education Network.
The post The Styles of Mediation appeared first on Family & Divorce Lawyers Brisbane.

 
Coercive Control has been described as a form of intimate terrorism, but is it illegal in Australia?
What is Coercive Control?
Coercive control is the term given to a series of behaviours abusers use to dominate, manipulate and micro-manage every aspect of their victim’s life. Behaviours may include
restricting access to bank accounts, isolating from friends and family, or monitoring their phone conversations and Facebook messages.
Doctor and Psychiatrist Dale Archer in an article The Dangers of Manipulative Love [2] published on Psychology Today’s website warns that most relationships with Coercive Controllers begin with love bombing where the abuser comes across as the perfect partner, generous with gifts and compliments [1]. Archer describes it as a way of conditioning a person, like training an animal and love bombing is the reinforcement.
Actions that fall under the umbrella of Coercive Control

Emotionally manipulating
Stalking, tracking, tracing
Pinching
Surveillance through continuous texts or calls
Limiting access to money, family, friends
Internet shaming and social media monitoring
Controlling movement such as limiting time spent away from the house
Isolating
Humiliating
Stealing the victim’s identity, credit, or property
Taunting and insulting
Threatening

The effect of COVID-19 on Coercive Control
A paper published by the Australian Government Department of Criminology in July 2020 [3],  revealed results of a survey of 15,000 Australian women and their experience of domestic violence during the initial stages of the COVID-19 pandemic.
5.8% of women reported experiencing at least one form of abuse, harassment or controlling behaviour with two-thirds of the surveyed group having experienced an increase of violence and abuse that coincided with the pandemic.
 
Identifying factors in the increase of Coercive Control during COVID?
The findings reported in the statistical bulletin which are believed to have increased in severity and prevalence during COVID were:

Social isolation and restricted movement during lockdown periods
Financial stressors
Job Insecurity
Offenders spending more time alone with their victims [4]

 
Is Coercive Control a crime?
There are calls to make coercive control a crime nationwide, but it’s not straightforward. ABC News reported that gaps in the legislation are putting people in danger. There are moves to bring about changes to the current domestic violence law with each state taking a different tact. If South Australia’s proposed legislation goes ahead, coercive control would attract the strictest sentences throughout Australia [5]. If approved, the changes would mean offenders could receive up to 7 years in jail if convicted.
Tasmania is the only state to recognise coercive control as a crime and while in other parts of our country these types of behaviour are only punishable if there is a domestic violence application order violation [6],
 
Applying for a Domestic Violence Order
If your spouse deliberately:

Injures you
Damages your property
Intimidates or harasses you
Treats you indecently without your consent
Or threatens to do any of these things
you are a victim of domestic violence. You can get help from the law.

DA Family Lawyers can help you to apply to the Magistrates Court of Queensland for a protection order. The court will make an immediate (temporary) order if the magistrate is satisfied on the evidence submitted to court that there is a relevant relationship and the respondent has committed domestic violence. The court will make a final protection order if it is satisfied that there is a relevant relationship, the respondent has committed domestic violence and the protection order is necessary or desirable to protect the aggrieved.
 
Who can make a domestic violence application?
As of September 2012 the law provides protection from violence for people who have been in, or are:

An intimate personal relationship: for example, de facto, engaged, dating, married.
An informal care relationship: this is where a person is dependent on another for help in an activity of daily living such as cooking for them or dressing them.
A family relationship: of a child, your relatives, a parent or former parent.

It should be noted that the definition of ‘relevant relationship’ pursuant to the Domestic and Family Violence Protection Act 2012 does not cover:

Neighbours
Flatmates
If children under 18 are violent towards parents. This is considered within the scope of the child protection system.

 
What is a protection order?
A protection order tells the abusers that their behaviour will not be tolerated. It details the terms and conditions that must be followed. These must be adhered to from the day the order is made. If protection orders are breached, the respondent will be charged with a criminal offence.
A standard condition of a protection order prohibits the respondent from owning a weapon or holding a weapons licence. The court may also include other conditions in the order.
There are good domestic violence support groups set up to assist victims and perpetrators of domestic violence.
 
Family and domestic violence support:

1800 Respect national helpline:
1800 737 732

Women’s Crisis Line:
1800 811 811

Men’s Referral Service:
1300 766 491
Lifeline (24 hour crisis line):
131 114
Relationships Australia:
1300 364 277
Qld DV Connect Womensline:
1800 811 811
If you would like further information about what behaviours constitute domestic violence, and what to do if you (or someone you know) is experiencing it, call our office on 3238 5900 and also take the time to read our article ‘What is domestic violence, and what can I do if I am experiencing it?’
 
Reference

Business Insider: Manipulative people hook their victims with a tactic called ‘love bombing’ — here are the signs you’ve been a target
Psychology today: The Danger Of Manipulative Love Bombing in a Relationship
Australian Institute of Criminology: Statistical Bulletin
Coercive control: The ‘Panopticon Effect’
ABC News: Hannah Clarke’s domestic violence murder highlighted coercive control — but has anything changed?

 
 
 
 
 
The post Is Coercive Control illegal in Australia? appeared first on Family & Divorce Lawyers Brisbane.

If you have reached a stage with your ex where you have not been able to come to an agreement about how to divide your assets, and you have tried to resolve the matter by mediation, you are probably now considering going to court.
If you haven’t been told already, it can take many months and sometimes years for your matter to be determined by a Judge (if you don’t settle it in the meantime). It can also cost a lot of money if you engage legal representation as there are usually numerous adjournments, interim applications, valuations, and significant communication and correspondence needed to progress your matter.
There is also the terrifying prospect that when your matter is eventually listed for a final hearing, it will be adjourned on the day as there may be a  more urgent matter that needs to be heard by the Judge (such as a parenting matter). And so your court proceedings continue.
There is another process more and more people are choosing to adopt to have their property settlements determined. It’s called arbitration and it’s been around for a very long time but, unlike mediations, it doesn’t seem to get the publicity it should.
Arbitration is a confidential and private process where an Arbitrator (a solicitor or barrister who has completed specialised training) is appointed by the parties to consider all of the evidence including submissions made by the parties and thereafter make a final decision (called an ‘award’). The award is then registered with the court and is final.
Arbitration is a contract-based resolution process whereby the Arbitrator (as opposed to a Judge) makes a decision about the dispute, and that decision is final (unless of course there are any appellable grounds such as a mistake of law, mistake of fact or an issue pertaining to procedural fairness or bias in which case the award can be appealed to the court). Unlike court, the entire arbitration process can be commenced and concluded within as little as approximately 6 weeks.
Think of Public vs Private healthcare. You can wait around in the public system for years in the queue, but with private healthcare, you get what you need faster and usually with a medical practitioner you have chosen. This is also true when comparing court proceedings and arbitrations. If you apply to Court, you can be in the ‘system’ for a very long time however arbitration ensures a swift resolution via a process that you are directly involved in planning.
Here is an overview of how most arbitrations work:
1. The parties select an Arbitrator.

If the parties cannot agree on an Arbitrator, they can either approach the Australian Institute of Family Law Arbitrators and Mediators (“AIFLAM”) and ask them to appoint an Arbitrator or they can apply to the court for one to be appointed for them. 
If the matter is court-referred, the parties approach the relevant List Judge for an order and the court will then issue the order through to the appointed Arbitrator.

2. Once the Arbitrator is appointed, they will ask the parties for all material filed in the court to-date (if the matter is already before Court) or for a position statement from each of the parties. The Arbitrator will then prepare a draft arbitration participation agreement for the parties to consider.
3. Once the arbitration participation agreement is signed, the Arbitrator will call a planning meeting with the parties (and their lawyers). In this meeting, they will discuss the structure of arbitration to be used.

‘Off the papers’ – the parties agree on what documents are to be provided, or consolidated as well as each providing written submissions;
‘Off the papers’ but with a face-to-face event to provide oral submissions (but no further evidence); or
An actual hearing with cross-examination (also known as the usual court process).

4. At the planning meeting, the parties will also discuss with the Arbitrator matters such as:

Where the arbitration will be conducted (if there is any face-to-face aspect);
The Arbitrator’s fee and how that is to be paid; and
Timelines for the providing of documents, oral submissions, cross-examination, and when the award will be issued.

5. Following the planning meeting, the Arbitrator will send the parties a participation agreement for them to sign.
6. The parties comply with the agreed timelines for the process and the award is delivered by the Arbitrator within 14 days of the arbitration hearing.
7. The parties then register the award with the court.
Arbitration involves the parties in the planning of the process to ensure they completely understand it beforehand. It is a private and confidential process that provides parties with the certainty of efficient finalisation. Best of all, parties do not have to go to court to have their property settlement resolved. 
There is a new Arbitration List in both the Family Court and the Federal Circuit Court that is dedicated to assisting the swift resolution of property settlement matters by referring parties to the arbitration. By the end of January this year (before the List was made), there were 141 matters that had been referred to arbitration. That number is set to rise significantly with the unavoidable further delays of matters due to the COVID-19 pandemic and the Arbitration List managing such matters effectively.
Arbitrations assist parties by alleviating controversy and resolving disputes in the least destructive way to the parties themselves, their families and the community as a whole.
At DA Family Lawyers, our Accredited Family Law Specialist Ms Deborah Awyzio is an Accredited Arbitrator and Mediator. In addition to advocating for their clients at court, D A Family Lawyers are skilled in representing clients in arbitrations and assisting them to achieve final results in short timeframes that are only available by adopting that process.
The post Family law Settlements: An Alternative to going to Court appeared first on Family & Divorce Lawyers Brisbane.

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A recent Legal Services Commission (“LSC”) case has highlighted the consequences for practitioners who communicate with judges without the prior consent of opposing parties. In a recent hearing before the Queensland Civil and Administrative Appeals Tribunal, the solicitor in question was charged with and found to have engaged in 3 counts of unsatisfactory professional conduct. […]

The post Communicating with the Court – Solicitors’ Responsibilities appeared first on Family & Divorce Lawyers Brisbane.

As a result of people needing to remain in their homes during the COVID-19 pandemic, there has been a significant increase in the number of reported domestic violence situations. It is a very scary and stressful time for many people who cannot readily escape their situation due to limited finances or no access to a […]

The post Free Uber rides for people experiencing domestic and family violence appeared first on Family & Divorce Lawyers Brisbane.

Superannuation payment splits pursuant to financial agreements when parties have been separated for less than 12 months and the member’s total withdrawal value exceeds the low rate cap amount that financial year Each financial year, the Australian Taxation Office sets a ‘low rate cap amount’ which is a limit on taxable components for lump sum […]

The post What Separated Couples Need to Know About Superannuation Payment Splits? appeared first on Family & Divorce Lawyers Brisbane.

Does the Magistrates Court have the power to grant a permanent stay of proceedings due to an abuse of process?

In a recent appeal to a decision made by the Southport Magistrates Court, the District Court of Queensland discussed whether Magistrates Courts have the power to stay applications made under the Domestic and Family Violence Protection Act 2012 (“DFVP Act”).
The matter of HDI v HJQ [2020] QDC 83 involved a couple who had a lengthy history of litigation before both the Magistrates Courts (for domestic violence applications) and the Family Courts (for both parenting and property matters). The appellant was the husband, who had filed an Application to Vary a Domestic Violence Order in the Southport Magistrates Court. The application sought to remove the parties’ two children from that order, and to remove a number of conditions. 
The matter was listed for final hearing on 8 August 2019. At that final hearing, the solicitors for the respondent (wife) made an oral application for the Magistrate to permanently stay the application on the grounds that it was an abuse of process. The Magistrate heard submissions from both parties on this point and also considered the material filed before adjourning the hearing to 14 August 2019. 
On 14 August 2019, the Magistrate granted a permanent stay of the husband’s application to vary and as such, the contested final hearing did not proceed.
The husband filed a Notice of Appeal on 27 August 2019. A number of grounds in the appeal were nonsensical however, the appellant included within his written submissions a contention that the discretion applied by the acting Magistrate (to stay the application) was not justified by law. The District Court of Queensland considered this to be an active ground of appeal and as such, reviewed both the relevant statutes and case law on the point.
In providing authority for the permanent stay of the application, the Magistrate had referred to the authority of SGLB v PAB [2015] QMC 8 (“SGLB”). Interestingly, this is the case mentioned in the Domestic and Family Violence Benchbook under Part 5.5 ‘Permanent Stay of Proceedings for an Abuse of Process’. That was a matter involving an application made under the DFVP Act. The District Court of Queensland highlighted important matters that were overlooked by the Magistrate in SGLB, such as the facts of the cases relied upon and a unanimous 2005 Queensland Court of Appeal decision that a Magistrate in Queensland has no implied power to stay committal proceedings.
The District Court of Queensland was therefore not satisfied that SGLB supports a finding that a Magistrate in Queensland has the power to grant a permanent stay of an application under the DFVP Act.
Relevant statutes were discussed together with the clear power of the Magistrates Court to dismiss applications made pursuant to the DFVP Act. The DFVP Act provides that the Magistrates Court may summarily dismiss applications that are frivolous, vexatious or an abuse of process.
The Appeal was allowed and an order made that the Magistrate’s staying of the application be set aside as a nullity.
So what do we take away from this recent decision? Don’t apply for a permanent stay – apply for a dismissal under the relevant sections of the DFVP Act.
For the full judgment please click the following link: https://archive.sclqld.org.au/qjudgment/2020/QDC20-083.pdf
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The Chief Justice of the Family Court and Federal Circuit Court has just released a new practice direction, creating an urgent list dedicated to parenting matters impacted by COVID-19.
A national bank of Judges is available to hear parenting applications within three days of filing an application if the criteria are met. More importantly, parents are required to show how they have attempted to negotiate a resolution of the issue before being placed on the COVID-19 list unless they can demonstrate it would be unsafe to attempt to negotiate.
All applications for inclusion on this priority list can be filed by email and any hearing will take place by telephone.
The following is the practice direction issued by the Chief Justice with the specific requirements and expectations, including the Pro-forma affidavit to be filed in support of any application (not to be more than 6 pages).
It is refreshing to see how the Family Law Courts have so quickly responded to the current pandemic and utilised electronic means to continue to service the public who are unable to resolve disputes and require a judicial determination.
The post Family Law Courts respond to COVID-19 appeared first on Family & Divorce Lawyers Brisbane.

The draft Residential Tenancies and Rooming Accommodation (Covid-19 Emergency Response) Regulation 2020 which is not in force yet, will have the following effect for victims of domestic violence:

They will be able to terminate a lease agreement if to do so, is necessary to protect them from domestic and family violence.
They are able to recover their proportion of bond payment if they terminate the lease
They will not be required to pay for any repairs for damage caused by domestic violence against them.

To terminate a lease on the grounds of domestic and family violence a victim will have to show one of the following by way of supporting evidence:

A protection order.
A temporary protection order
A police protection notice
A injunction for personal protection under the Family Law Act
A report in an approved form from a doctor, social worker, refuge or crisis support worker, domestic violence support worker, aboriginal medical centre.

The post Changes coming to Residential Tenancies and Rooming Accommodation Regulations appeared first on Family & Divorce Lawyers Brisbane.

A recent Legal Services Commission (“LSC”) case has highlighted the consequences for practitioners who communicate with judges without the prior consent of opposing parties. In a recent hearing before the Queensland Civil and Administrative Appeals Tribunal, the solicitor in question was charged with and found to have engaged in 3 counts of unsatisfactory professional conduct.

In that matter, there were proceedings before the New South Wales Supreme Court which had proceeded to hearing with no orders or directions made for the parties to make further submissions. The 3 charges of unsatisfactory professional conduct related to three emails sent by the solicitor to the judge’s associate following the hearing which detailed further arguments that had been referred to in oral submissions by counsel. He copied the opposing solicitor into those emails albeit, the emails were sent without the prior consent of the opposing solicitor. 
After the first email was sent, the opposing solicitor sent an email in response making clear that no prior consent or notice was provided before the communication was sent to the court and opposing any directions being made for the provision of further submissions. The judge’s associate emailed both parties and made clear that the judge would not accept any further submissions.
Despite this, the solicitor proceeded to send a further email to the judge’s associate wherein he made reference to extracts of cases and other written materials that had been referred to by counsel in oral submissions. Again, the opposing solicitor sent an email making clear that no prior consent or notice was provided before the communication was sent.
The third email sent by the solicitor (that was subject to charge 3) was some two weeks later, wherein he provided an update to the judge about further developments in the matter.
The conduct complained of occurred in 2012 when the Legal Profession Act 2007 was still in-force. Rule 18.6 of that Act was the rule alleged to have been contravened. Rule 22.5 of the Australian Solicitors Conduct Rules (that came into force only 2 months after these events) is the equivalent rule.
Rules 22.5 of the ASCR states:
22.5 A solicitor must not, outside an ex parte application or a hearing of which an opponent has had proper notice, communicate in the opponent’s absence with the court concerning any matter of substance in connection with current proceedings unless:
22.5.1 the court has first communicated with the solicitor in such a way as to require the solicitor to respond to the court; or
22.5.2 the opponent has consented beforehand to the solicitor communicating with the court in a specific manner notified to the opponent by the solicitor.
In his defence, the solicitor argued that his copying the opponent solicitor into the emails did not breach the Rules. QCAT disagreed.
QCAT were of the view that merely copying parties into electronic communication does not amount to compliance with the Rules. Communication with the judiciary must only be done with the prior consent and knowledge of the other party (unless exceptions apply). 
The importance of the court maintaining independence and impartiality with respect to matters it is adjudicating was discussed and paragraph 41 of the judgment in particular explained this as follows:
[41] It is fundamental to the maintenance of the rule of law and the proper administration of justice that a judge is, and is able to be seen to be, impartial and independent of the parties whose dispute is the subject of adjudication. It is an incident of every legal practitioner’s paramount duty to the administration of justice to ensure that the actuality and appearance of this judicial independence is preserved and, equally, to avoid any conduct which might have the effect of causing that independence to be questioned.
In a world of instantaneous email communication, it is easy to send quick correspondence to chambers when need be. In time-pressure situations, it is also easy to do this without having regard to Rule 22.5 of the ASCR.
So the next time you consider a need to email the court, don’t even think about it until you have discussed same with the other party and obtained their consent to do so. 
There very limited exceptions to this rule, such as:

Any ex parte urgent proceedings if the other party has been given reasonable notice of same.
If the court has first contacted you and requested a response.

The post Communicating with the Court – Solicitors Responsibilities appeared first on Family & Divorce Lawyers Brisbane.

I am excited to see the focus of the Family and Federal Circuit Courts of Australia, towards arbitration. A media release has been issued by the courts indicating that matters being referred to arbitration will be in a dedicated list, to be managed electronically by a Judge in each court.
Arbitration is an efficient, quality service which determines disputes much quicker than the public court system. The Family Law Courts were struggling to cope with their caseloads even prior to COVID-19 restrictions being in place.
Australians have long recognised the benefits of private health insurance over our public health system and it has astounded me that for so long there has not been the same recognition about the superior benefits of Arbitration.
Arbitration is the private health insurance of the legal system. When you compare what can be achieved in the public court system from a timing perspective against arbitration it looks like this:
Arbitration

a delivered award within one month (or other contracted period), guaranteed.

Public court system

A trial date for property matters not before 18 months.
Once the trial date occurs, a delay in receiving the judgement of between three to twelve months (historically).

Why wouldn’t you be steering your clients towards this more efficient method to determine their dispute, if mediation is not able to achieve an outcome.
The post Arbitration – Private Resolution appeared first on Family & Divorce Lawyers Brisbane.

What is gaslighting
Gaslighting is a term used to describe emotional abuse by a partner, parents, sibling, friend or even a boss, to get the upper hand by using manipulative strategies making you question your reality, events and even memories.
Where did the term gaslighting originate from?
The term gaslighting originates from a 1944 movie ‘Gaslight’ starring Ingrid Bergman and Charles Boyer. The plot focuses on a young newlywed couple. The husband has a secret that he will do anything to protect, even if it means convincing his wife she is crazy.
In some cases, you may not even realise you’re a victim of gaslighting. It’s done over a period of time, making you feel like you’re the one at fault and losing your mind. It is considered a form of domestic violence and even children can become victims to gaslighting. It may occur when parents separate. The gaslighter is usually the parent who feels like they are losing control and will use manipulative tactics to get the child/children to side with them.
During times of crisis such as the COVID-19 outbreak, cases of domestic violence tend to rise. If you are living with a gaslighter during this time, social isolation may be a very stressful and anxious time for you and your family.
6 Traits of a Gaslighter
1. Prone to exaggerating and lies
Gaslighters frequently lie and exaggerate. They brag about their accomplishments and belittle your achievements to gain control. They will use sentences such as “You always…”, “You never…” in an attempt to make you feel inferior.
2. They don’t like to lose
When you’re arguing a gaslighter plays to win. There’s no such thing as second place. When their integrity comes into question instead of sulking or raging out the door, gaslighters may turn to using untrue allegations and intimidation techniques.
3. Inflated self-worth
Gaslighters see themselves as all-powerful and dominant, as nothing they ever do is ever wrong. They gain pleasure from pointing out others’ failings and disrespect others opinions, particularly those who may disagree with them.
4. Above the law
Many gaslighters believe they are exempt from rules and boundaries that apply to everyone else. They may engage in underhanded business dealings, helping themselves to things that aren’t theirs, even internet trolling or hate speeches. They tend to be risk takers.

5. Tendency to have mood swings
Living with a gaslighter can be like navigating a minefield—you’re never entirely sure where and when they’re going to explode. Showing independence or any self-worth is often a trigger. They may also switch from easy-going to irate when you fail to meet their expectations or don’t agree with their point of view.
6. Manipulation
Manipulation tactics are often used to ensure you do as you’re told or come around to the gaslighters way of thinking. Through continual exaggeration, the twisting of reality, bullying and/or abuse, gaslighters will have their victims believing they are the one at fault. They may even use positive reinforcement against you. For example; “Why are you acting this way when you know I love you?”
 
7 Red flags you are being targeted by a gaslighter

1. You feel like nothing you do is good enough
A gaslighter will undermine your confidence. Whether you’ve baked a cake or cleaned the house, your attempts won’t be good enough. For example; “I don’t know why you bother…just leave it to me!”
2. “I’m sorry…” is part of your daily vocabulary
You are constantly apologising for things to keep the peace, even if you’re pretty sure it wasn’t your fault.

3. You take the blame for the gaslighter’s behaviour
In addition to apologising, you also take responsibility for the reason your partner is in a bad mood and find yourself justifying their behaviour by telling yourself “If only I hadn’t done this or reacted this way, then…”
4. You struggle to make important decisions
Fear and lack of confidence can make even the most simple decisions like what to cook for dinner a struggle.
5. You feel like you’re losing your mind
Your abuser may make you paranoid that friends and family are concerned for your wellbeing and emotional stability, or talking behind your back. This is an effective way of isolating you from those close to you.
6. Your thoughts and feelings aren’t valid
If you express emotions, you may be told you’re overreacting or to settle down, can’t you take a joke. Over time this can wear away at your confidence levels and make you question whether you are too sensitive.

7. You’re constantly walking on eggshells
In a relationship you should be free to express your opinion, but when you’re dealing with a gaslighter, you always filter your thoughts and feelings to avoid arguments.

If you are a victim of domestic abuse you can call DVConnect 24/7 helpline 0800 811 811. Alternatively, if you want to discover what your legal rights are, please contact DA Family Lawyers on (07) 3238 5900.
 
References:
Psychology Today, Stephanie A. Sarkis Ph.D. Gaslighting
Healthline: Recognising Gaslighting & getting help
IMDB.com Gaslight

The post Are you a victim of gaslighting? appeared first on Family & Divorce Lawyers Brisbane.

As a family lawyer, I often speak to parents who are concerned about their child or children being harmed in the care of the other parent or persons connected to the other parent. Sometimes those parents have already made a complaint or a report to the Department of Child Safety (“the department”) expressing their concern. Often these parents report to me that no action has been taken by the department and they cannot understand why.

The Child Protection Act 1999 (Qld) (“the Act”) provides for the protection of children. The main principle for administering the Act is that the safety, wellbeing and best interests of the child, both through childhood and the rest of the child’s life, are paramount.

Section 10 of the Act defines who is a child in need of protection for the purpose of the Act. A child in need of protection is a child who:

1.  Has suffered significant harm, is suffering significant harm, or is at unacceptable risk of suffering significant harm; and
2.  Does not have a parent able and willing to protect the child from the harm.

Any person may make a report to the department if they reasonably suspect that a child may be in need of protection. You are able to remain anonymous. Your details are kept confidential and your identity is protected. The department will respond to the report in one of the following ways:

1. Record the report as a child concern report. A child concern report is when child protection concerns are received but do not meet the threshold to be recorded as a notification. In responding to the child concern report, the person who makes the report (called the notifier) may be provided with advice or referral to another agency for ongoing support or intervention.

2. If the report suggests that a child has been harmed or is at risk of being harmed and does not have a parent willing and able to protect the child the report will be recorded as a child protection notification.

a. If a notification is recorded the department will undertake an investigation and assessment.

If the department records the report as a child concern report, often no further action is taken by the department and the parent making the report may feel at a loss as to what to do to protect their child from the harm they believe exists in the home of the other parent.

Even if notification is recorded, sometimes as part of the investigation and assessment the department form the view that there is at least one parent who is willing and able to protect the child from harm. Often, in this case, the department will take no further action. The rationale from the department’s perspective is, that parent, who is willing and able to protect the child from harm, can take their own steps to protect the child from harm. For example, making an application to the Family Court or Federal Circuit Court for parenting orders designed at protecting the child from harm.

My recommendation, as a family and child protection lawyer, is always to seek legal advice prior to or contemporaneously with making a report to the Department of Child Safety.

To view the original article please visit Managing Director, Lisa Foley’s LinkedIn Profile.
The post I reported harm to the Department of Child Safety, and they didn’t take any action appeared first on Family & Divorce Lawyers Brisbane.

Death. It’s not something a lot of us like to contemplate and certainly not discuss with others. But as they say, there are two things certain in life – we are born, and we die. What can make life a tiny bit easier for your loved ones after you leave this earth, is for you to have made a Will. A Will tells your loved ones how they are to administer your estate (as opposed to them needing to follow the rules provided by law when a person dies without a will).
Something else we often fail to discuss either by choice or because we just keep living our lives without consideration of the “what ifs” is the importance of having an Enduring Power of Attorney (“EPOA”). That is a document that operates during your lifetime, in the event you lose capacity to make decisions on your own behalf. It appoints an Attorney/s to act on your behalf for either or both financial and personal/health matters. Having an EPOA makes it easier for your loved ones to help you in the event you lose capacity, as it is clear you have an Attorney/s who have the ability to make decisions and they do not need to go through any ‘red tape’.
Another important document to consider having is an Advanced Health Directive (“AHD”). An AHD is a document where you specify your wishes in relation to various medical decisions. Your Attorney/s under an EPOA do not necessarily have the authority to make such decisions, and you therefore need an AHD to make this plain. To complete this document, you first of all go through it with your General Practitioner who will explain the various medical procedures you need to contemplate. You then attend upon a lawyer to finalise it and sign it.
At DA Family Lawyers, we offer all three of these documents however, the Wills we prepare are simple in nature. If you would like to have a Will, Enduring Power of Attorney or Advanced Health Directive prepared, please contact us.
The post Wills, Enduring Powers of Attorney and Advanced Health Directives appeared first on Family & Divorce Lawyers Brisbane.

Amidst the sea of government-issued rules and restrictions our country is facing today in a concerted effort to stem the spread of the deadly COVID-19 virus, there is another silent and significant danger faced by many Australians as a direct result of these rules. Domestic and family violence.
What are the current restrictions?
We are faced with a situation never encountered before, where it is mandated that we all stay at home and not leave unless we are shopping for essentials, receiving medical care, visiting a terminally ill relative, complying with court orders, exercising or travelling for work or education. And if we break these rules, penalties apply. New directions issued last night also now allow up to two visitors at any one time to attend upon you at your home.
An order declaring a public health emergency was declared on 29 January 2020 under the Public Health Act 2005 (Qld) (“the Act”). The order specified that the area considered to be a ‘public health emergency’ was for ‘all of Queensland’.
On 2 April 2020, the Queensland Chief Health Officer made further directions pursuant to the Act for ‘Home Confinement, Movement and Gatherings’. Those directions are what are currently in place – https://www.health.qld.gov.au/system-governance/legislation/cho-public-health-directions-under-expanded-public-health-act-powers/home-confinement-movemment-gathering-direction
I am in a domestically violent situation so what does this mean for me?
If you are in imminent danger – take yourself out of that situation (if you can) and call triple zero. Otherwise, you need to comply with the restrictions. This is a very concerning situation whereby thousands are in dangerous situations within their own home. The new directions issued by the government last night allow you to take in two visitors or to visit others within their home. Take advantage of this new direction to be with family and friends if you are in a domestically violent household.
There is a support that can be accessed via telephone such as DVConnect Womensline (1800 811 811), DVConnect Mensline (1800 600 636) and 1800 RESPECT (1800 737 732).
Are the courts still operating? 
Yes. It is business as usual for all Queensland Magistrates Courts and for the family courts, with the only difference being the practicalities of how matters are heard. 
I need advice and / or help now
If you need legal advice – whether you are contemplating leaving a relationship, are concerned with complying with court orders or need the protection of domestic violence order, please contact us at DA Family Lawyers. We are here for you.
The post COVID-19 – Implications for Victims of Domestic Violence appeared first on Family & Divorce Lawyers Brisbane.

Shared parenting can be difficult at the best of times, even more so during a global pandemic like the coronavirus. In these challenging times, it can be difficult to keep a level head. We have comprised a list of coping strategies for parents sharing custody to help remind you of what you can do to relieve stress and anxiety for all parties involved.

1.Uphold your parental duties
A global pandemic such as the COVID-19 outbreak is not an excuse to overlook the terms and conditions of your parenting orders. It is still important to fulfil your obligations unless there is a genuine and valid reason why that’s not possible. If you are unable to meet your parental duties due to school closures, government travel restrictions, self-isolation or quarantine, apply the laws of common sense. Be sure to provide your ex-partner with a logical explanation and give as much notice as possible to allow them to make alternate arrangements. See our blog on interstate travel for parents who may live outside of Queensland.
2.Be flexible
Taking a flexible approach and being adaptable is important when we are undergoing societal changes. In our generation, we’ve never been forced to self-isolate or quarantine on a global scale. There are a lot of new regulations and restrictions in place and it’s a steep learning curve for everyone. Be prepared to put temporary measures in place and be versatile. If your children are unable to see a parent or guardian, organise to stay in touch via video chat or phone calls.
3.Make sure you’re on the same page
Differences can arise if you can’t agree on how to deal with this crisis as a family. Talk about what your expectations are, how much you want your children to know about what’s going on, and what’s considered to be acceptable behaviour during this time. For example; you may want to shield your children from the extent of the virus whereas your ex might want to be more honest than you’re comfortable with. You may want to take your kids out of school. Your ex may disagree with you, wanting to keep things as normal as possible. Whatever you decide to do has to be mutually agreed upon to prevent unnecessary conflict.
4.Be available for your kids
We are facing a serious health crisis and it can be a scary time for your children. It’s scary enough for those of us who are adults. Now, more than ever, your children need you to be present and available to answer their questions and provide reassurance. It can be harder for those with teenagers who are isolated from their friends and experiencing disappointment from major school events such as formals, athletic events, birthday parties cancelled. Even your adult children who need to cancel weddings, holidays or find themselves jobless need your support.
5.Protect your health

The Australian government has enlisted strict regulations to protect us and help stop the spread of COVID-19. Stay home where possible, wash your hands regularly, avoid touching your face and keep your distance from others. It’s important to do what you can to protect your health and the health of your children. Lead by example. With shared custody, it’s important that both parents uphold the same hygiene standards. For a comprehensive list of the government health guidelines during the coronavirus outbreak, please click the following link. government health guidelines about coronavirus (COVID-19)
6.Plan ahead
In the case where you or your ex-partner, or one of the children contract coronavirus, agree on a plan of action ahead of time. Where will you self-isolate? Who will carry out your parenting duties on your behalf if you are unable? What happens if your child shows symptoms? If you both contract the virus, who will look after the children?
7.Honestly is the best policy
Coronavirus is highly contagious, and while you may get only mild symptoms, your children or those around you, may be more susceptible. If you are unwell, experiencing symptoms, or may have been exposed to the virus, be honest with your ex-partner. You are required to adhere to the government mandatory requirements if you have been in contact with someone who has tested positive for COVID-19.

8.Show empathy
This pandemic is on a scale of nothing like we’ve experienced before, so there’s no rule book and that everyone deals with stress and anxiety differently. You don’t have to like your ex but they are important in your children’s life. Showing a little empathy, understanding and compassion will make life a little easier. It will also reduce the number of disagreements.
9.Patience is a virtue
No one truly knows how long this COVID-19 outbreak will last. Most are simply guessing, but there’s no overnight solution. We will come to know a new normal. The way we communicate and socialise is going to evolve. Explaining to your children that don’t understand why they can’t see a parent, grandparents or attend sporting activities like before is going to require plenty of patience. You’ll need patience when your ex-partner requires you to make sacrifices or when circumstances prevent shared parenting issues from being carried out. You’ll need patience when job losses mean you’re not receiving your entitled child support payments. You’ll need patience if your case is going before the courts. There may be lengthy delays.
10.Be the solution
Unless you’re still best friends, shared parenting will always have its ups and downs. Be prepared to work together and focus on solutions, not creating problems. At all times, ask yourself “What is in the best interest of our children?” Put yourself in the other parent’s shoes. What are you prepared to compromise on? If you can’t compromise, involve a mediator.

The most important thing to remember is “We are all in this together!” We’re all experiencing these life-changing moments. If you are not coping or these 10 coping strategies don’t help your shared parenting responsibilities any easier, please contact us. We are open for business, however, we are strictly adhering to the government regulations for social distancing. #inthistogether

Source: Legal Aid Queensland

The post 10 Coping strategies for parents sharing custody during coronavirus appeared first on Family & Divorce Lawyers Brisbane.

Restrictions have now come into place for Queensland border control. These restrictions will affect parents whose children live outside of Queensland and parents who have children, whose other parent lives outside of Queensland. The important information to be aware of:

Children who live outside of Queensland who are travelling to spend time with a parent in Queensland pursuant to a court order will need to apply for a border pass, to be able to enter Queensland.
Parents who live outside of Queensland who are travelling to Queensland to spend time with a child in Queensland pursuant to a court order will need to apply for a border pass.
Children who have to travel out of Queensland to spend time with a parent interstate can leave Queensland unrestricted and can regain entry to Queensland as they are a Queensland resident. As a Queensland resident they are an exempt person and on their return to Queensland would not have to self-quarantine unless they have been outside the border of Australia or to other parts of Australia that may be decided by the Chief Medical Officer and published on Queensland health website in the future.
There does not appear to be an avenue to apply for a border pass if there are no court orders governing parenting arrangements.

For more information about the border restriction requirements from Queensland Heath
To apply for a border pass

Some helpful general information to assist separated parents to navigate these times is provided by the Family Law Section of the Law Council of Australia

Please stay safe in these unprecedented times. Our thoughts at D A Family Lawyers are with you and your family.
 
The post Travelling interstate for children of separated parents appeared first on Family & Divorce Lawyers Brisbane.

Domestic violence is a common theme, encountered by Family Lawyers. It has been brought into the more public sphere by the incidents that occurred in Camp Hill last week.
It is interesting to understand how breaches of domestic and family violence orders are dealt with in the Queensland Courts with a decision made last week.
The Facts

Offender was a 38 year old male
He had an “unenviable criminal history” from when he was 14 years old, involving numerous periods of imprisonment for drug offending and offences of violence
He had breached bail conditions and conditions of suspended sentences previously
On 5 September 2018 he committed two offence of assault occasioning bodily harm against his female partner
On 14 February 2019 he was sentenced to 18 months imprisonment for those two offences. A parole release date was nominated as 18 June 2019 and he was released on that date.
On 29 June 2019 whilst on parole, he went to the house of his former partner (who was still protected by a domestic and family violence order from his offences in September 2018). He argued with his former partner over mobile phones.
His former partner was scared and called police and when they arrived she was found hiding in a manhole in the ceiling.
On 23 September 2019 he was sentenced for breaching the terms of the domestic and family violence order, for the incident on 29 June 2019.
The sentence imposed was imprisonment for six months. The maximum possible penalty was three years imprisonment.
The sentence also set his parole eligibility date to 10 February 2021, so he would not be eligible to get parole prior to serving this sentence.
He appealed, submitting that the sentence was “manifestly excessive” and the parole eligibility date should have been earlier.
The District Court on appeal found that the sentence was appropriate, but that the parole eligibility date should be brought forward to 14 February 2020.

The struggle that the court faces when imposing any sentence for a criminal conviction is the balancing of principles set out in the Penalty and Sentences Act 1992 (Qld). Allowance in that act has already been made for offences of violence or offences that result in physical harm having primary regard to the principles of risk to victims or members of the public and the need to protect from that risk and the safety of the public. In those cases the principle about a sentence of imprisonment being the last resort does not apply.
This serves as one illustration of the complexity and intersection of domestic violence in our community. The “Not Now, Not Ever” Taskforce recognised that complexity which was reflected in the wide-ranging recommendations for reform.
The post Breaches of Domestic Violence Orders appeared first on Family & Divorce Lawyers Brisbane.

The Discreet Property List
Recently, the Federal Circuit Court of Australia in Brisbane has implemented a new model to assist parties in resolving financial (property settlement) matters. This model is called the ‘Discreet Property List’. Essentially, the Discreet Property List is a process to streamline financial matters that come before the court by guiding parties through the initial steps required to progress matters to resolution. It is focused on resolving financial disputes as quickly as possible, whilst encouraging parties to maintain control of the ultimate outcome. Its intended purpose is also to free up Judges to have more time to deal with the first mention of parenting matters.
All Initiating Applications that are filed in the Federal Circuit Court of Australia in Brisbane for property orders only will automatically be placed in the Discreet Property List.  All matters in the Discreet Property List are initially heard before a Registrar and (ideally) remain with that Registrar until the parties have agreed to final orders. Some matters will be unable to stay within this model and must, therefore, be referred to a Judge.
The Discreet Property List is a model implemented for property matters only. The following are matters which are unable to be heard by the Registrar presiding over the Discreet Property List:

Child support
Parenting
Jurisdictional issues
Declarations for discovery in the interest of justice
Undefended cases
Interim hearings for

spousal maintenance
part property settlements
injunctions
lump sum litigation funding of dollar for dollar orders

Even if yours is a matter involving property and parenting (or some other matter) it will not go before the Registrar.  The Discreet Property List is for property matters only.
What to expect at the first court date
The Court needs your matter to be progressed as quickly as possible towards dispute resolution (i.e. mediation).  This means that the net pool of property available for distribution between the parties needs to be determined. The property pool is determined through the exchange of financial disclosure and the appointment of independent valuers if the parties are unable to agree on the value of any item of property.  The court will want the parties to identify:

what factual issues remain in dispute
what (if any) items of financial disclosure need to be exchanged
what (if any) property needs to be valued and if so, what valuer will be appointed to prepare a valuation 

The Court will not:

Simply adjourn the matter (unless the court is satisfied there is a good reason for doing so)
Make orders for the parties to exchange panels of proposed valuers and/or mediators to select

At the start of the day, all matters before the Registrar will be called into Court and the Registrar will conduct a call over where he/she goes through the list of matters before them that day and has a brief conversation with the parties about what is happening. After the call over has finished, parties have an opportunity to talk with each other and try to reach an agreement (at least on an interim basis). If agreements are reached, then parties will sign consent orders and provide them to the Registrar to consider. If acceptable, the Registrar will make the orders and will adjourn the matter for no more than approximately 6 weeks.
In the event, the parties are unable to reach an agreement about any interim issue, or if the matter falls into any of the above categories that are unable to be heard by the Registrar, it will be referred to a Judge. Once a matter is referred to a Judge it does not normally return to the Registrar.
Between the first court date and the second court date
It is expected that parties will comply with the orders that were made on the first court date in order to ready themselves for dispute resolution. Any remaining financial documents must be exchanged and any valuations must be completed. The parties should also have reached an agreement in terms of a mediator or other dispute resolution process (i.e. conciliation conference).
If everything has been completed and the matter is ready to proceed to dispute resolution, the parties must jointly write to the court certifying:

The exchange of disclosure is complete
Any valuations that were required have been completed
The matter is ready to proceed to the dispute resolution
The name of the mediator (or other dispute resolution process) agreed between the parties together with the date it has been scheduled

If the Registrar considers the matter is indeed ready to proceed to dispute resolution, and the date of the dispute resolution is not before the second Court date then the Registrar will vacate that second Court date and administratively adjourn it to date not long after the dispute resolution has taken place.
In the event the matter is not ready to proceed to dispute resolution, then the parties will be required to attend the second Court date where the Registrar will assist the parties to resolve the remaining issues to proceed to dispute resolution. Just like the first court date, if the parties are unable to reach an agreement about any interim issues then the matter will be referred to a Judge.
Is the Discreet Property List actually helping people?
The Discreet Property List has been utilised in the Newcastle registry of the Federal Circuit Court of Australia for more than two years and of all of the matters which have proceeded through that model, there has been an impressive 65% which have reached final settlement within a short time (approximately three months from the first court date).
In a short time, the model has been implemented in the Brisbane registry, there have also been a significant number of matters which have resolved on a final basis. The Discreet Property List has fast-tracked many financial matters that otherwise may have been languishing in lengthy Court lists and this has allowed parties to achieve final orders much sooner than they may have experienced otherwise.
As stated herein, the Discreet Property List will not be appropriate for every financial matter that appears before the Court, and it is inevitable that some matters need to be judicially referred. 
 
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