Family and Domestic Violence

The existence of domestic violence in relationships is sadly widely spread in today’s society. The perpetrators and the victims of domestic violence cannot be narrowed to one single social class or to their level of education or their wealth, it can affect people of all ages, gender, cultures and ethnicity. Frequently, marriages and de facto relationships end as a result of domestic violence. In such cases, it is necessary to act quickly to protect the victims of violence which predominantly are women and children. Each State and Territory in Australia has legislation addressing domestic violence designed to provide a fast and efficient method to obtain immediate and urgent protection from the violent party.

What Is Domestic Violence?

AIHW Family, domestic and sexual violence in Australia, 2018

AIHW Report: Family, domestic and sexual violence in Australia, 2018

The term “family violence” and “domestic violence” is defined differently in the ACT and NSW. Normally, the term is defined broadly, beyond simply physical violence on a person. In the ACT, the relevant legislation is named the Family Violence Act, 2016 which defines “family violence as the following behaviour by a person in relation to a family member:

  1. physical violence or abuse;
  2. sexual violence or abuse;
  3. emotional or psychological abuse;
  4. economic abuse;
  5. threatening behaviour;
  6. coercion or any other behaviour that—
  7. controls or dominates the family member; and
  8. causes the family member to feel fear for the safety or wellbeing of the family member or another person; or
  9. behaviour that causes a child to hear, witness or otherwise be exposed to behaviour mentioned in paragraph (a), or the effects of the behaviour;
  10. sexually coercive behaviour;
  11. damaging property;
  12. harming an animal;
  13. stalking;
  14. deprivation of liberty.

What Can a Victim of Domestic Violence Do?

If you are in immediate danger please call 000.

There are numerous other services available for victims of domestic violence such as:

ACT Domestic Violence Crisis Service Ph: (02) 6280 0900 (24 hours)
NSW Domestic Violence Line 1800 656 463
Canberra Rape Crisis Centre Ph: (02) 6247 2525
Victim Support ACT Ph: 1800 822 272 (24 hours)
Victims of Crime Assistance League (VOCAL) Ph: (02) 6295 9600
Lifeline Ph: 131 114 (24 hrs)
White Ribbon Australia
Kids Helpline Ph: 1800 551 800 (24 hrs)

Family Violence Orders and Apprehended Violence Orders

In the Australian Capital Territory and in New South Wales there is legislation in existence which allows parties to obtain orders to protect them from the violent member of the family: in the Australia Capital Territory these are known as “family violence orders” (FVOs), and in New South Wales as apprehended violence orders (AVOs).

Urgent Family Violence Orders

A victim of family violence may obtain urgent Family Violence Orders by applying directly to the Court (1), even after hours including weekends. Police officers may also bring an application on behalf of a victim.

The system is designed to be simple, quick and inexpensive. This applies in the ACT Courts and the NSW Courts. An application once lodged goes before the Court within a short time the same day in the absence of the perpetrator or alleged perpetrator of violence. If the Court considers that it is appropriate, interim Family Violence orders will be made and subsequently served on the perpetrator. The matter is normally listed for further mention afterwards to afford the other party the opportunity to put his/her side of the story and, to defend the matter in a final hearing.

If you have a family or domestic violence matter or just have some general enquires we can be contacted on 02 6206 1300. We are always ready to discuss this important but serious subject matter with you.

If you would like more information or to make an appointment in either our Canberra or Queanbeyan office please contact Gemma Sutherland:

+61 2 6206 1300 | e: gsutherland@elringtons.com.au

Financial Agreements

Binding Financial Agreements (BFAs)

AN INTRODUCTION

The terms “financial agreement”, “binding financial agreement” or “BFA” are often used loosely by lawyers and non-lawyers alike in reference to contractual agreements which parties may enter under the Family Law Act (1975) and other legislation such as the Child Support Assessment Act (1989).

As described below, there are maybe ten different variations of BFAs which parties may sign up to.

Among the most popular BFAs, there are two categories:

  1. Cohabitation agreementswhere parties make a contract about the future regarding their property and how it may be divided if they separate;
  2. Property settlementswhere parties have already separated and wish to formalise legally the division of their assets.

If you are considering singing up into a BFA and would like more information or to make an appointment in either our Canberra or Queanbeyan office please contact Carlos Turini:

p: +61 2 6206 1300 | e: cturini@elringtons.com.au

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Court should become the last resort for resolving family parenting and property disputes!

The Crisis in the Family Court System

There are numerous media reports about the fact that the Family Court system is in a state of crisis. There are long delays in the resolution of parties’ disputes by the Court and this causes much angst for the parties and their children often resulting in mental health issues for all involved but is especially concerning in children. One recent article on the topic is from Katherine Gregory entitled Judges go public: Family Court shouldn’t be ‘making do’ . Fingers are pointed in various directions to cast blame depending on who you listen to including that there is a chronic lack of funding and resources, that the aggressive attitude of some lawyers is to blame and so on.

As a significant measure, in an attempt to address the existing crisis in the Family Court System, the Federal Attorney General announced some months ago, quite unexpectedly and without much apparent consultation, the merger of the Family Court with the Federal Court. There has been substantial criticism about this measure, for example by the Law Council of Australia President, Morry Bailes who stated:

“Our current understanding is the Australian Government will not make any new appointments of judges to the specialised Division 1 of the new court, meaning the quality of the family law justice system would reduce under this change. Australians may no longer have access to a court that specialises in family law.”

The message from various Judges and other people involved in the Family Court system is that a Court having to resolve a family law dispute should be the last resort.[1]

Alternative Dispute Resolution

Former Federal Circuit Court Judge, now barrister, Stephen Scarlett suggested that alternative dispute-resolution methods, like mediation and arbitration should be more prevalent so only matters needing a judicial decision made it to court in the first place:

“Only those that can’t be resolved that way should go to a hearing.” [2]

This would not only reduce the load on the courts but offer faster and often more effective means to achieve suitable outcomes for the parties in dispute. Alternative dispute resolution offers many ways to resolve family matters quickly, fairly and inexpensively through mediation and negotiation.

In some circumstances the ADR process cannot be applied:

  • There always must be a level playing field between the parties involved in the process.
  • Sometimes, the parties are not suitable.
  • There may be a history of domestic violence in a case which makes the prospect of parties having to negotiate via an ADR process inappropriate.

However, in the clear majority of cases, about ninety-five per cent (95%) parties want to resolve their dispute and they manage to resolve their family law dispute before the matter reaches a final hearing. [7]

The family lawyers at elringtons are committed to following all avenues of negotiation and mediation before suggesting court proceedings.  Elringtons has two family lawyers, Carlos and Anya, who are nationally accredited mediators , Carlos is also a NSW Family Law Accredited Specialist.

To contact Carlos or Anya or to make and appointment in either our Canberra or Queanbeyan office:

Carlos Turini: Accredited Specialist Family LawSpecialist accreditation and Nationally Accredited Mediator

e: cturini@elringtons.com.au  | p: +61 2 6206 1300

Anya Aidman: Family Law Solicitor and Nationally Accredited Mediator

e: aaidman@elringtons.com.au | p: +61 2 6206 1300

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[1] https://www.lawcouncil.asn.au/media/media-releases/as-it-stands-merging-courts-unlikely-to-alleviate-family-law-crisis

[2] https://www.abc.net.au/news/2018-10-31/judges-go-public-family-court-shouldnt-be-making-do/10450514

[3] https://www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Pages/default.aspx

[4] https://elringtons.com.au/2018/11/family-law-dispute-resolution/

[5] http://www.mondaq.com/australia/x/170796/Arbitration+Dispute+Resolution/Alternative

[6] Ibid.

[7] https://elringtons.com.au/2011/03/family-law-settle-out-of-court/

Family Law Dispute Resolution

Resolving family disputes without going to court!

Parties involved in a family law disputes are encouraged to attempt to negotiate a solution to parenting arrangements  and property settlements between themselves without resorting to taking their matter to court.  This process is called Family dispute resolution (“FDR”).  FDR, before parties commence court proceedings, may take many forms:

  1. Parties negotiating by themselves;
  2. Parties negotiating with the assistance of a mediator;
  3. Parties negotiating with the assistance of their lawyers and a mediator;
  4. Parties negotiating with the assistance of their lawyers without a mediator (“four-way meeting”);
  5. Parties engaging on collaborative law;
  6. Parties engaging an arbitrator to rule on their dispute.

In all cases, parties should obtain legal advice about their rights, obligations and prospects before they embark on the FDR process.

Is Family Law Dispute Resolution compulsory?

Whilst it is not compulsory for parties to engage in FDR before people commence family law property proceedings in court, it is compulsory to do so for parenting matters before starting court proceedings unless the matter falls under some specific exceptions as, for example, in urgent cases or domestic violence cases. It is also a requirement for those seeking changes to an existing parenting order.

Dispute resolution has many advantages and it’s a better method to resolve family law disputes because it is normally:

  • Cheaper
  • Quicker;
  • More flexible
  • The range of outcomes available to parties in FDR is wider ranging than what a court may do
  • Parties involved in FDR are only limited by their own imagination with regard to the possible outcomes that may be achieved

Two of our solicitors at elringtons’ Lawyers, Carlos Turini, Director and Anya Aidman, Associate, are specialist family lawyers and are also accredited as mediators by the Resolution Institute under the National Mediator Accreditation Standards (NMAS).

Carlos and Anya are experienced litigators and court advocates. They engage in the FDR process at times as mediators and at times advising their clients and representing them in the process. They find the discipline of dispute resolution satisfying as practitioners as they are able to assist their clients to advise them and represent them and to devise together with their clients tactical and strategic considerations during the dispute resolution process.

To contact Carlos or Anya or to make and appointment in either our Canberra or Queanbeyan office:

Carlos Turini: Accredited Specialist Family LawSpecialist accreditation and Nationally Accredited Mediator

e: cturini@elringtons.com.au  | p: +61 2 6206 1300

Anya Aidman: Family Law Solicitor and Nationally Accredited Mediator

e: aaidman@elringtons.com.au | p: +61 2 6206 1300

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Testimonials

Family Lawyer Reviews

From our clients

“Hi Carlos,

I though the mediation session was very successful.

I came into the session not believing mediation would be possible however you focused solely on coming to an agreement rather than the bureaucratic side of things.

I would have no hesitation in recommending you to anyone should they need mediation.

Thanks again and kind regards

K. W.

“Dear Anya,

We wanted to thank you for everything you did to assist us throughout our surrogacy journey…

O is now 3 ½ months old and full of smiles. A continues to be as incredible as ever and our surrogate family is madly in love with this beautiful little girl.

Sending much love from our family to yours”

K & H


“Thank you Carlos,

I have found you and Phoebe way more professional and detailed than anyone previous and this has given me great confidence that I am finally in good hands and you are both decent lawyers.”

C


Hi Phoebe,

“I’d just like to thank you for your dedication, efforts and amazing work today.  

Although, my mum didn’t receive what she was hoping for, a huge weight has now been lifted off her shoulders. At least she can finally move on and focus on the important things in her life.”

J


Good morning Phoebe and Carlos

“I am the father of D.

I just wanted to pass on my sincerest gratitude to you both for not only the legal support but also the personal support during the recent AVO and custody issues she has been dealing with.

Being so far from your children, it is often difficult watching them stress and go through traumatic events that domestic issues can present. However, it is pleasing when you hear your daughter talk so positively of her legal team.

In my work I have seen many legal experts forget they are dealing with real people with real feelings and emotions, however from D’s daily contact I can sense you guys are different. “

G & D


Hi Carlos

“Thank you so much,

you are super man.”

E.


“Dear Anya,

Thank you for making a horrible experience bearable.

We really appreciated your talent to combine professionalism with empathy.

We wish you all the best in your career. We think you are wonderful”

K & E