IS IT DOMESTIC VIOLENCE? HOW DO YOU KNOW AND WHAT SHOULD YOU DO? PART 1

  

Is the abuse you receive in your relationship considered Domestic Violence? How do you know and what should you do?

It is clear from the enquiries we receive from our client’s that in most cases they are not sure if what they are subjected to by a partner or other actually amount to domestic violence.

Section 8 of the Domestic and Family Violence Protection Act 2012 (Qld) sets out the types of domestic violence that are covered under the act.

Definition of domestic violence

Domestic violence means behaviour by a person (the first person) towards another person (the second person) with whom the first person is in a relevant relationship that—

1. is physically or sexually abusive; or

2. is emotionally or psychologically abusive; or

3. is economically abusive; or

4. is threatening; or

5. is coercive; or

6. in any other way controls or dominates the second person and causes the second person to fear for the second person’s safety or well being or that of someone else.

WHAT CONSTITUTES DOMESTIC VIOLENCE?

The further sections of the act set out in detail specific instances and behaviours that constitute domestic violence and what exposure to domestic violence is.  It is quite long and descriptive however it is an easy read for those not legally minded and very much worth looking at to give you a good idea of what domestic violence actually is.

As domestic violence has been well documented and studied over recent decades (and in particular in recent years) many common behaviours once thought acceptable in a domestic relationship now come under the law and penalties may arise.

The main purpose of the act and domestic violence qld Courts in the current climate is to emphasise to the public the need to protect people subject to domestic violence and that they can act quickly and effectively to do so.

Should you believe you or your family members are being subjected to domestic violence and there is a risk of further harm it is important to act quickly as the law can protect your family and at very short notice.

POLICE INVOLVEMENT

Many people fail to realise that should domestic violence occur, and if there is a need for the Police to become involved, that the Police have a duty to charge a perpetrator with domestic violence offences and may themselves see action in the Domestic Violence Courts until a Protection Orders is made for those affected.  Don’t feel as though you will be left alone to go to Court against an abusive partner if the violence is real and you are at risk.

If a Protection Order is warranted and you feel the need to apply quickly you can fill out an application and take it to a Magistrates Court anywhere in Queensland and a Temporary Protection Order is likely to be made.  Should you make an allegation of any type of domestic violence mentioned above and set out further in the Queensland Act it is likely you will be granted a Temporary Protection Order.

Be very careful however penalties can apply and legal action may be possible by a perpetrator of domestic violence should your allegations prove to be false and fictitious.

Tomorrow we will look at how it works and what you will need to do.  In the meantime remember; if you need help the Courts and the Police can act quickly and they have a positive obligation to do so when they are approached for help, so contact them now if you or your family are at risk.

Article Source: IS IT DOMESTIC VIOLENCE? HOW DO YOU KNOW AND WHAT SHOULD YOU DO? PART 1

IS IT DOMESTIC VIOLENCE? HOW DO YOU KNOW AND WHAT SHOULD YOU DO? PART 2

  

In PART 1 we discussed that you think the abuse you are subjected to in your domestic relationship amounts to domestic violence and now you know that fast effective help can be sought through the Magistrates Court with or without the help of the Police.

Our last blog post set out that it is important for you and the other party that the allegations you make are true.  What if you are still not sure? (Domestic Violence)

The next step is to speak to a Family Lawyer who is experienced in domestic violence matters.  The lawyer will be able to help you understand your chances of success and of the support services available to you if you do make an application for a Protection Order.

The Power Of Domestic Violence Orders

Domestic Violence Orders / Protection Orders are very powerful tools.  If it is necessary for a party to exclude another party to the relationship from the shared home this may be achieved if there is a real risk of harm to the person alleging domestic violence (“the aggrieved”) or to children living with the parties (the “named persons”).

Common terms of temporary and final Protections Orders are that:

1. A Respondent must be of good behavior towards the aggrieved and not commit acts of domestic violence towards the aggrieved or a named person (often a child or another relative who lives with the aggrieved);
2. A Respondent may not contact or have another person contact an aggrieved or named person;
3. A Respondent may not approach to within a certain distance of the aggrieved or named persons or go to a place where the aggrieved or named person may be or frequents; and
4. The Order may set out the only circumstances that contact may occur between the parties (through lawyers or at certain places such as Court events) or by what method for communication such as by text message or by email.

The Police are empowered to enforce both temporary and final Protection Orders if a party is in breach.  This can lead to criminal charges for the perpetrator and if serious enough the perpetrator may be arrested on the spot.  This gives a strong sense of protection for an aggrieved party should they need to rely on the orders they have obtained.

What is the likelihood that a Magistrate will provide a Temporary Order

Asset out in our last blog in this series on domestic violence the ambit of what the Court considers domestic violence is wide.  Due to this, in short; the answer is very likely.

The attitude of the Court is that if someone has gone out of their way to apply for a Protection Order then until the matter is settled then an Order should be made.

Expect a Temporary Order to made whilst the matter is set down for hearing and time allowed for the parties to file their evidence and respond to evidence with the Court.

What is the likelihood a Magistrate will provide a final Protection Order?

If evidence is made out at the final hearing of the matter (the Trial) that domestic violence has been perpetrated against the aggrieved and or named persons then other factors will need to be considered by the Magistrate.  Under the Domestic and Family Violence Protection Act 2012 (Qld) the major considerations then are whether it is necessary or desirable to make a Protection Order.

Unless there is a compelling reason why it is not necessary for the Order to be made (which is rare) it must also be desirable that the Order be made.  In Queensland, there is no consideration required as to what the effect the making of the Order may have on the Respondent (in some other state this is a consideration of the Court).

It should be remembered that the determination of whether an Order is necessary or desirable is at the discretion of the Court.  In our recent experience, it has almost always been the case that even without concrete evidence that domestic violence has occurred (meaning that the evidence may be allegations alone) it is very likely that a Court will make a final Protection Order for the aggrieved.

Court Protection Orders

The Court makes protection Orders readily as it is believed that should they not, and a perpetrator then harms (or worse) an aggrieved, then in such case, the whole premise of protection by the Courts would be null and void.

In our opinion it is likely that should a party seek a Protection Order that it will probably be made if there is evidence to support that domestic violence did take place.

This gives assurances to people who are the victims of domestic violence however it can often be used by vindictive or malevolent parties to a relationship as a tool to cause problems for another party and in many cases to stop a parent from having contact with a child.

Should a party make false claims of domestic violence that lead to a Protection Order being made a person who has Orders made against them may appeal to the District Court.  In this case, there is a good chance that if domestic violence allegations are disproved then the Protection Order may be overturned.

Our next installment in domestic violence looks at the Court procedure and the methods by which parties can settle matters without a determination by a Magistrate at the Court and the effect to parities of a Protection Order being made in their various forms.

Article Source: IS IT DOMESTIC VIOLENCE? HOW DO YOU KNOW AND WHAT SHOULD YOU DO? PART 2

SEPARATION, DIVORCE AND FINANCIAL PLANNING

  

SEPARATION, DIVORCE AND FINANCIAL PLANNING: What You Need To Know

My financial advisers in their recent newsletter provided advice to their clients in regard to a separation in their relationship. The financial adviser wrote, “It is an unfortunate fact of life that couples will separate and even divorce.  The financial adviser went on to say that their advisers have dealt with these difficult issues and have become sensitive to the requirements of a separating couple.

The advice given in the newsletter was, “If you and your partner have decided to separate your first course of action is to contact a solicitor who can take you through the legal process of separating your assets.  Assets include the family home, any investment properties, cash in the bank, managed funds, your superannuation, home contents, cars, etc.”  While the division of all these assets has to be determined by the Family Law Courts your adviser can help you with the following.  The newsletter went on to list the various areas where a financial Planning adviser can assist.  The assistance they provided was as follows:

Budgeting

The financial adviser can help you to establish a new budget for you in line with any changes in income and assets.

Managing joint loans

Most couples will have some form of joint loans.  The financial adviser can help you with the best way to pay these off or bring the debt down to make it more manageable for each partner.

Selling any property

The adviser went on to say that they can assist in selling the property in the most tax-effective way.  The newsletter goes on to say that sometimes the couple may choose to keep the family home and rent it out or one partner may choose to buy the other out.  The adviser can discuss the most tax-effective way for their client to sell any property investments that they have due to separation.

Re-financing and obtaining a new loan

The financial advisers have a financial Planning team that can discuss re-financing with their clients if they choose to take on the loan of the other spouse or obtaining new finance for a new property to live in.

Changing beneficiaries for super and insurance policies

The newsletter goes on to say that the clients’ superannuation is classed as an asset when it comes to the separation of property and the client will have assigned a beneficiary on the superannuation and insurance policies in the event of death.  The newsletter further states that when a client separates it will be necessary to change the beneficiaries on both of these policies and potentially even split safer assets with their former partner.

Managing long term financial needs

The financial advisers state that whether it be investing, budgeting, or making a property purchase the financial adviser can assist with the long-term goals and decisions of the client.

The newsletter concludes with the following statement, “While all of our advisers are impartial and each members’ details are strictly confidential we do recommend that if our members are separating that one member considers taking on another adviser within the financial advising group.  This will not cost either party but enables us to offer you both the best possible advice without any concern for impartiality or conflict.”

This differs entirely from the practice in a legal firm.  Solicitors can only act for one party and are unable to provide any advice whatsoever to the other party in a separation.

It is always beneficial to parties when separating to not only obtain legal advice but to obtain financial advice on all financial issues which may be affecting them as a result of the separation but in particular in regard to taxation consequences and the restructuring of their assets once the separation has occurred.

Article Source: SEPARATION, DIVORCE AND FINANCIAL PLANNING

SEX DISCRIMINATION HICKIE V HUNT & HUNT

  

“Marea Hickie, a contract partner with Sydney law firm Hunt & Hunt, brought a complaint against her employer after her request to work part-time following the birth of her child was refused. She claimed the firm had given away her client base while she was on maternity leave. In a complaint heard by HREOC, Commissioner Evatt found that the law firm had indirectly discriminated against Ms. Hickie by requesting to work full-time in order to maintain her practice. The firm was ordered to pay $95,000 in compensation. The case highlighted the importance of employers putting in place flexible working arrangements.”

The Commission had to examine whether there was enough evidence to support direct or indirect discrimination. At that time, in order to prove direct discrimination there had to be an appropriate comparator, meaning, to compare one individual’s treatment against the general standard of treatment in the given organization. This would assist the Commission to decide whether the person in question has been directly discriminated against.

In contrast with direct sex discrimination, in order to prove indirect discrimination, Ms. Hickie had to prove that a requirement or policy existed which a substantially higher number of men than women could comply with. Ms. Hickie also had to show that she could not comply with the requirement and that the requirement was not reasonable in the circumstances.

The Commission found that the firm had indirectly discriminated against Ms. Hickie because the firm removed Ms. Hickie’s practice from her due to her intention to work part-time. This amounted to a requirement, policy, or condition that she work full-time to maintain her plaintiff practice.

The Commission further found that failing to renew Ms. Hickie’s contract amounted to indirect sex discrimination which was not reasonable in the circumstances. It was Commission’s view that the requirement to work full-time would disadvantage women. The firm’s own records showed that most part-time workers at the firm were women. The employer failed to prove that Ms. Hickie couldn’t complete all duties allocated to her showed that the requirement to work full-time was unreasonable.

Article Source: SEX DISCRIMINATION HICKIE V HUNT & HUNT

TELL TALE SIGNS SOMEONE YOU KNOW IS SUFFERING DOMESTIC VIOLENCE

  

Sometimes evidence of domestic violence is obvious, but that’s not always the case. Then there’s the issue of emotional abuse as well. Physical injuries can heal, but often it takes a lot longer to heal the emotional damage caused in these unfortunate situations.

The emotional scarring can potentially be a lot more damaging than physical bruising and can affect every area of a person’s life.

Everyone is different and so is every circumstance unique, but there are some tell-tale signs you can look out for if you fear someone you know is suffering from domestic abuse.

Obvious Physical Injury

Injury to many areas of the body can quite easily be covered up with clothing. However, bruising or marks on the neck, face, or hands even are not so readily concealed. It’s quite common when someone is physically abused by their partner that they won’t admit what’s really going on. Lame excuses will often be made in an attempt to explain away the injury. Often the denial is based on fear of more abuse to come if the victim confides in somebody.

The Person Is Always Edgy

If a person you know used to seem quite calm, relaxed, and in control, but now always seems to be on edge, then this is a sign that something is definitely going on. The person is certainly stressed about something. When it comes to a domestic violence Australia situation, the person in question might incessantly be checking the time, constantly looking all around, and generally unable to relax. They might always be in a hurry to go home, for fear of being late or getting accused of something. Sufferers often fear their abusive partner is always somehow watching them, or has someone keeping an eye on them.

Withdrawn Emotionally

Generally, when a person is involved in a healthy or happy relationship, they tend to put off positive energy and perhaps become even more outgoing. The opposite is commonly true if a relationship turns toxic and becomes abusive; either emotionally, physically, or both. If you know someone who used to be vibrant, but these days seems very quiet, withdrawn, and closed off emotionally, it could be a red flag that there is an abusive situation happening on the home front.

Low Self-Esteem

The occurrence of low self-esteem is a very common symptom of emotional abuse from somebody. As domestic violence and psychological abuse are often related to having control over someone, part of the plan to gain that control is to belittle someone, demean them to the point where they feel worthless. This gives the abuser even more control.

Don’t Suffer In Silence

If you are enduring an abusive situation at home, or you know someone you suspect might be, don’t remain silent about it. Help is out there.

If the police get involved, although the prosecutor representing the police department will handle the case, it’s also comforting to have a representative from your own law firm assisting you through the process.

At Aylward Game Solicitors in Brisbane, we are not only experts when it comes to legal matters pertaining to domestic violence in Australia of all descriptions, but we are also sympathetic as well.

Article Source: TELL TALE SIGNS SOMEONE YOU KNOW IS SUFFERING DOMESTIC VIOLENCE 

THE RULE IN AKINS V NATIONAL AUSTRALIA BANK

  

In Akins v National Australia Bank, the New South Wales Court of Appeal considered the relevant principles of an application to call fresh evidence. Although the rule that the court considered only allowed fresh evidence on special grounds, the criteria which were applied assist in cases like this. The test the court applied had three conditions:

(a) The evidence could not have been obtained with reasonable diligence for use at the trial;

(b) The evidence must be such that there is a high probability that there would be a different result; and

(c) The evidence must be credible.

In essence, the High Court of Australia had to consider if the explanation of the obligations to which the wife entered into was adequate and whether there was any undue influence in relation to taking up the mortgage.

The argument from the applicants’ side was that— there are express findings that she was not told to get independent advice; there is an express finding that she was not told and was not aware of the status of the accounts and there was an express finding in relation to the Bank officers that she was not advised to consider her own interests.

Whether this was a case whereby the wife’s position in the transaction was one of suretyship without any recompense, except the advantage of the husband, and that the wife saddled herself of her property with liability for her husband’s debts.

The Court considered that regardless of the view taken about the present validity of the formulation of principle contained in the judgment of Justice Dixon in Yerkey v Jones [1939] HCA 3; (1939) 63 CLR 649, the particular circumstances of this case, are such that an appeal would enjoy no real prospect of ultimate success. Accordingly, the application for special leave to appeal was refused.

Article Source: THE RULE IN AKINS V NATIONAL AUSTRALIA BANK

6 MOST COMMON QUESTIONS ABOUT GRADUATE VISAS & IMMIGRATION

  

We asked Abolfazl Moghadam who has worked on hundreds of legal matters relating to Graduate visas and immigration applications and is a fully accredited immigration agent. He is also responsible for all Common Questions About graduate visas & Immigration on behalf of Aylward Game Solicitors. Abolfazl quickly answered the top 6 questions our clients have asked over the past month but if you have any specific questions relating to your circumstances.

1. 1.What do I do to qualify?

Basically, in order to qualify for this visa, the international applicant should have a recent qualification in a Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS), hold an eligible Australian visa, and be under 50 years of age. In addition, the applicant must have a qualification relevant to an occupation on the skilled occupation list and, among others, meet the Australian health and character requirements.

2.How long does it take?

The processing time for this visa is approximately 4-5 months. Once the visa is approved and depending on whether it is the Graduate Work stream or the Post-Study Work stream, it allows the applicant to stay in Australia for up to 18 months or between 2 and 4 years depending on the applicant’s qualification.

3.What are the benefits (of study in au?)

With this visa, the qualified applicant can live, study, and work in Australia temporarily. Pretty big benefit.

4.What traps to be aware of?

The applicant of this visa must have and maintain adequate health insurance for the whole of his/her stay in Australia. The applicant of this visa cannot be granted if he/she previously received a subclass 485 or a subclass 476 visa as a primary visa holder. You must find your own employment while on this visa.

5.What about my family?

If the applicant of this visa is approved, he/she can apply for family members to join him/her in Australia. The duration of their graduate visas and immigration will depend on the applicant’s circumstances. 

6.When can I start the process?

Usually, the applicant of this has held a student visa within the past 6 months before lodging the application and holds either a substantive or Bridging Visa A, or Bridging Visa B. If the applicant’s student visa was canceled, but in the past 28 days the Tribunal has notified him/her of a decision to set aside and substitute the Minister’s decision not to revoke the cancellation, then the application for this visa can be processed.

Article Source: 6 MOST COMMON QUESTIONS ABOUT GRADUATE VISAS & IMMIGRATION