Monica Blizzard is our brilliant Family Law Specialist (LIV) from 20 years’ experience working in family law and is an Accredited Family Law Specialist with the Law Institute of Victoria, a trained mediator and collaborative lawyer.ot only does she provide specific legal commentary following each of our stories she has also contributed to Part Two of the book – Understanding Laws and Behaviours. Monica has
Here is some excerpts from Part Two of the book – Understanding Laws and Behaviours. You can also read some of Monica’s legal commentary following Suzie’s Story HERE
THE FAMILY LAW SYSTEM IN AUSTRALIA
For many, the family law system in Australia is confusing. This may, in part, be due to the many issues that appear to be covered by this area of law, which include:
- Divorce and separation.
- Children’s and parenting matters (including relocation applications and complex litigation)
- Property and financial matters (including complex property settlement litigation)
- Spousal maintenance (married and de facto)
- Binding financial agreements
- Consent orders
- Family dispute resolution (Section 60I Certificates)
- Family violence and intervention orders
- Multi party disputes (including corporate entities, and grandparent applications)
- Superannuation splitting
- Injunctions and restraining orders
- Child support agreements, child support applications and adult child maintenance
- Lesbian, gay, bi-sexual, transgender, intersex, queer, asexual+ (LGBTIQA+) related family law matters
- surrogacy, donor agreements and adoption
- International children’s matters (including child abduction)
There are both state-based courts (Children’s Court of Victoria and Magistrates Court of Victoria), and federal courts (the Family Court of Australia and the Federal Circuit Court) operating within the area of family law. In general, the federal courts deal with the majority of issues that arise from separation, including property settlements and parenting disputes. The state-based Magistrates Court can, in certain circumstances, also deal with such matters. The state-based Children’s Court typically deals with applications concerning children and young persons at risk and is categorised as follows:
- The Family Division deals with the protection and care of children and young people, including applications relating to children who may be at risk; and applications for intervention order matters;
- The Criminal division deals with criminal offences of children and young people.
If there is a parenting dispute, the state-based courts may have jurisdiction over and above that of the federal courts. Two examples of this are:
- Where a party has sought the assistance of the Magistrates Court for an intervention order, and urgent orders are required for parenting or property matters which are made at the same time.
- Where the DHHS has issued an application in relation to children of a relationship through the Children’s Court, seeking a protection order. Typically this is done in circumstances where the DHHS has determined that the parents are not acting protectively towards the child/ren.
In the book Monica also discusses:
THE COURT STRUCTURE IN VICTORIA, AUSTRALIA
THE LEGAL PATHWAY FOR A PARENTING CASE
PARENTING ORDERS IN THE FEDERAL COURTS
PARENTING ORDERS OR A PARENTING PLAN?
PARENTAL ALIENATION SYNDROME
NARCISSISTIC PERSONALITY DISORDER
Drug use: When allegations of drug use are raised, the best way to defend such an application is by voluntarily providing supervised drug screens or a hair test. If a positive test is made, then this could lead to supervised time with the children being ordered. If no positive test is found then often the accusations can be found to be baseless. Accusations regarding criminal behaviours such as drink driving offences and being drunk and disorderly can be disproven by issuing a subpoena to the police. Allegations regarding stalking and threats can be proven or disproven in multiple ways. One way is by obtaining records to show your location at the time of the alleged incident, whether by social media apps, CCTV, or telephone records.
Sexual abuse: Allegations of sexual abuse can be a sinister weapon, as the court is likely to act protectively and provide for supervised time, in a reflex action, leaving the allegations untested until an interim defended hearing, or a final hearing, which can be twelve to eighteen months later. When dealing with allegations of this nature, a lawyer can prepare in advance by providing a psychological assessment of the accused, and character witnesses in their support. But the risk to the child is so concerning, that even in those circumstances, the court may order supervision, or limited time with the children and the accused, until the final hearing stage.
With the modern technology we have available via our smart phones, I often advise clients to record an incident or the aftermath of an incident, in full view of the other party, as proof of what has transpired. This can often be a key part of the case, or act as a deterrent to a party taking legal action or reporting the matter to the police. There may otherwise be CCTV available in public areas, and if there are concerns around the potential behaviours of the other party, then it is important that the location of changeover is secure.
SAFETY ACTION POINTS
Ideally, seek legal advice from a specialised family lawyer before separating from your partner. This will allow you to:
- Create a safety plan around you leaving, noting that a person is most at risk of family violence in the period immediately leading to and following separation
- Ensure you have safe accommodation to move to at the time you leave which can accommodate yourself and the children
- Ensure you have the children in your care, when you leave
- Ensure you have access to financial information from your relationship to enable advice to be obtained in relation to your settlement
- To enable you to have the primary care of the children, pending agreement being reached as to future care arrangements.
Legal Commentary by Monica Blizzard Accredited Family Law Specialist (LIV)