Domestic and Family Violence and Wills and Enduring Powers of Attorney and Superannuation Nominations

 

The definition of domestic and family violence is widely drawn in Queensland, and an increasing amount of attention is being paid to what is described as coercive control. It would not be uncommon for 2 people who are married or in a de facto relationship to write wills or EPOA’s appointing each other as attorneys and executors. These appointments do not change unless you take steps to implement changes. Therefore if your wishes change, you need to act to give effect to your new intentions and wishes. 

If you are making plans to leave a relationship, changing your will or your enduring power of attorney is a step that you can consider taking as part of your preparation. If you have already left your relationship, this is something not to forget to attend to. In most situations it should be straightforward and it will not be necessary to notify your former partner, but it would be preferable to take legal advice as there may be situations in which this may not be so straightforward. Your enduring power of attorney qld allows you to appoint someone you trust to make decisions for you during your lifetime.

Another consideration is your Super fund, and whether you have made a Binding Nomination to your Super fund. If you are in a de facto relationship that ends then an entitlement to receive a payment on death will cease when the relationship ceases, but for people who are married the entitlement only ceases on divorce, so again make sure you consider this. Also don’t overlook that Super Fund nominations usually need to be renewed every 3 years, or they will lapse.

For Family Law Advice with a practical focus or need an Enduring Power of Attorney QLD, Call Aylward Game Solicitors on 1800 217 217

Learn more here: Family Lawyer Brisbane & Estate Lawyers QLD

Domestic Violence | Family Court Brisbane

 

Domestic violence of any shape or form is not tolerated in our community.

What are domestic violence and family violence?

Domestic and family violence involves one person in a relationship using violence or abuse to maintain power and control over the other party in the relationship. It is normally an ongoing pattern of behavior aimed at controlling the other person through fear.

Avoid the legal consequences and seek representation to avoid complications.

The Department of Communities, Child Safety, and Disability Services have listed many forms of domestic violence and this can include:

• physical abuse (including slapping, hitting, punching, pushing, kicking)
• threatening to hurt you, your children, pets, relatives, friends, or work colleagues
• threatening to disclose your sexual orientation to other people against your wishes
• threatening to, or depriving you of your liberty (including locking you in the house so you cannot go out)
• stalking (including constantly following you by foot or car, constantly calling you by phone, text message, and email, or staying outside your house or workplace). Stalking is a criminal offence in Queensland.
• damaging property to frighten and intimidate you (including punching holes in walls, breaking furniture, harming pets)
• emotional abuse (including criticising your personality, looks, the way you dress, saying you are a bad parent or threatening to hurt you, your children, or your pets, or threatening to damage personal items you value)
• verbal abuse (including yelling, shouting, name-calling, and swearing at you)
• sexual abuse (including forcing or pressuring you to have sex or participate in sexual acts)
• financial abuse (including taking control of your money, not giving you enough money to survive on, forcing you to hand over your funds, not letting you decide how it is spent)
• threatening to stop providing care for you if you don’t do what you are told (this sometimes happens to an elderly person or a person with an illness, disability, or impairment who relies on another person to care for them)
• social abuse (including controlling where you go, not letting you see or have contact with your friends or family)
• depriving you of the necessities of life such as food, shelter, and medical care
• spiritual abuse (including forcing you to attend religious activities against your wishes or stopping you from participating in the religious or cultural practices of your choice)
• threatening to commit suicide or self-harm to torment, intimidate or frighten you

Effect on Children

Domestic violence can be very damaging to children in a family that is subject to this form of behavior. It can have an ongoing and permanent effect on their interaction with other children, their schooling, and later relationships with other persons.

The Department of Communities, Child Safety, and Disability Services have recognised certain behaviors that children may show if they are being affected by domestic and family violence which include:

• copying the abusive or violent behavior
• sleeping difficulties such as nightmares
• trying to intervene to stop the abuse (this is how some children become injured during domestic and family violence incidents)
• being stunned into a terrified silence by what they see
• blaming themselves
• being afraid, angry and depressed
• bullying others or being bullied by others
• being cruel to animals
• regressive behaviours like bed wetting and thumb sucking
• being nervous and withdrawn
• changes in behaviour and/or academic performance at school
• displaying psychosomatic illnesses including unexplained headaches, asthma and stuttering
• running away from home
• attempting suicide or self-harm
• abusing alcohol and substances (in older children).

Domestic violence is controlled through the Magistrates Court of Queensland and in other State Courts in Australia.

Who can apply?

• the person experiencing the domestic and family violence (the aggrieved)
• someone else, for example a solicitor or social worker, can apply on behalf of the aggrieved with the aggrieved person’s consent
• a police officer attending a call out due to an incident of domestic and family violence. The consent of the aggrieved is not required for a police application
• someone acting under another Act for the aggrieved, for example, a guardian for a personal matter, or an administrator for a financial matter under the Guardianship and Administration Act 2000
• the Adult Guardian can apply if they believe that the aggrieved needs legal protection but does not have the capacity to apply for a protection order
• someone who is appointed as the attorney of the aggrieved under the Powers of Attorney Act 1998 and who makes the application under the enduring power of attorney.

Orders can be issued by the Court on a temporary or permanent nature. The general order made by the Court is:

1. The respondent (the person who uses abuse or violence) must be of good behaviour towards the aggrieved (the person who needs the order to protect them) and not commit domestic violence
2. If a named person is specified in the order the respondent must be of good behaviour towards the named person and not commit an act of associated domestic violence against the person.

Other orders can be made by the Court confiscating fire arms, removing a party from the family home, limiting the powers of a party to contact the person affected by the domestic violence including children and orders prohibiting a party from being in the vicinity of the family home, the work place of the other party or contacting the party by any means.

What are the police powers in relation to this?

The role of the Queensland Police is to respond to threats or incidences of violence and bring the matter before the Court. Many police officers are called to domestic violence incidents by victims or concerned neighbors.

 

The first priority of a police officer called to an incident is to ensure the safety of the parties involved.

A Queensland Police publication advises that:

If a police officer reasonably suspects an incident of violence (including physical, sexual, verbal or financial abuse; damage to property; harassment or intimidation; or threatening to do any of these), it is their duty to investigate the matter thoroughly.

This investigation may include:

• Separating the parties
• Asking personal questions — such as the history of the relationship and the reason for the present problem™
• Searching the premises for anything associated with causing injury or harm
• Removing the person using domestic violence and placing them in custody for up to four hours.

Can I make my own domestic violence application?

If the police are involved and if the police bring an application on behalf of a person who has suffered domestic violence then the Prosecutors of the Police Department will represent that party in domestic violence proceedings.

However a party may have their own lawyer engaged to bring the domestic violence application on their behalf. The lawyer can draft the necessary application ensuring that it contains all relevant information that the Court will require to consider that application. The lawyer can represent the party in all aspects of the application and the subsequent hearings in the Court.

At Family Law, we have the knowledge and experience to advise and guide our clients through the many and varied intricacies associated with domestic violence proceedings. We will draft the necessary documents to ensure they set out all relevant circumstances to comply with the legislation requirements to achieve the best outcome and to represent our clients in domestic violence Court proceedings. We are only too happy to act on your behalf in this regard.

Article Source: Domestic Violence

THE CHANGING FACE OF DOMESTIC VIOLENCE IN AUSTRALIA

  

Good on you Bettina Arndt

Setting out the true facts in regard to DOMESTIC VIOLENCE

Bettina wrote in Weekend Australia dated 09/10 July 2016, “for years now all the key players in our well-orchestrated domestic violence sector have been singing from the same page, happily accepting government funds to promote the idea that domestic violence is all about dangerous men terrorising their partners”.

Where have all the hundreds of millions of dollars gone that Turnbull has boasted about going towards government funded domestic violence organisations?

Where have the monies gone?

Bettina goes on to say, “what started out as a sensible campaign to raise money for an important cause – providing support for battered women – has morphed into a huge propaganda industry determined to promote a simplistic male – blaming perspective on this complex social issue”.

Bettina refers to the powerful female bureaucrats running these thriving organisations which downplay statistics demonstrating the women’s role in family violence and which organisations promote the myth that the only way to tackle domestic violence is through teaching misogynist men (& boys) on behalf of themselves. Bettina goes on to say, “never mind that this flies in the face of the huge body of research showing most family violence involves aggression from both partners and that sexist attitudes are not a major risk factor for domestic violence in western countries such as Australia”.

Bettina in her article refers to Jim Ogloff a world-renowned researcher on violence who is in charge of research at the Victorian Institute of Forensic Mental Health. He warned the Victorian Royal Commission into Family Violence that it was misleading to suggest domestic violence was caused by patriarchal attitudes, that at least a third of family violence cases involved violent women and that family violence showed high levels of violence in both male and female partners. Violence in a relationship is unacceptable irrespective of gender.

Family violence involves a complex array of behaviors.

The fact is that a significant proportion of family violence against children is perpetrated by women – and this goes largely unreported.

It is our view that the misguided politicians have upped the vote-catching chant and have further distorted the true position in regard to domestic violence. It is not a gender issue. Women are also to blame. It must be treated in its true context of domestic violence is to be eradicated from our society. Solely blaming men is not the answer.

Certain sections of the Judiciary have also fallen into the misconception that men are to blame. It goes both ways. It is too easy for women now to claim domestic violence and have the fathers pulled out of their children’s lives with the devastating consequences of the children being alienated from their father figure. It could have serious consequences for young children in their later lives in forming stable relationships with their own families.

The sooner that domestic violence-related causes are dealt with within their true context the better it will be for all concerned.

Please check out some other articles on Domestic Violence below:

• Men and Domestic Violence
• Dedicated Domestic Violence Court Pt 1
• Dedicated Domestic Violence Court Pt 2
• How To Protect A Child From Domestic Violence

Article Source: THE CHANGING FACE OF DOMESTIC VIOLENCE IN AUSTRALIA

NEW DEDICATED DOMESTIC VIOLENCE COURT AT SOUTHPORT: GOOD NEWS FOR WOMEN OR MORE TROUBLE FOR EQUAL RIGHTS? PART 1

  

During 2014 the then-Premier, Campbell Newman commissioned former Governor-General Dame Quentin Bryce to draft a report on the prevalence of domestic violence in Queensland.  The resulting Not Now, Not Ever: Putting an End to Domestic and Family Violence in Queensland report was delivered to now Premier Annastacia Palaszczuk, at Parliament House in Brisbane recently.

The state government has announced that a dedicated domestic violence Court will be established at Southport on the Gold Coast in an attempt to provide access to justice for victims of domestic violence.

With a 20% rise in domestic violence incidents reported to police last year over the previous year I think everyone agrees that the more avenues for victims of domestic violence gain access to justice and protection the better!

The importance of stamping out domestic violence in our society is of the highest priority.  Such initiatives as the long-running White Ribbon campaign highlight the plight of the victims of domestic violence and sets out to bring out into the open the real dangers many people face.  Long-time supporter and ambassador of the campaign and Rugby League tough guy, Gorden Tallis is clearly a thoughtful choice to highlight to the community that we should all be embarrassed by the high levels of domestic violence in our Australian community.  The message is clear: Tough guys don’t abuse women.

It’s not only men

While women are more likely to experience domestic violence it is common for our Family Law practice to act for men who are victims of physical, verbal, and emotional abuse on a regular basis.

It is very often the case that people who are subject to domestic violence end up in a cycle of violence where certain events or stressors trigger the violence and the violence is repeated time and time again.  This can leave victims feeling powerless due to the imbalances in a domestic relationship related to strength, size, or simply the aggressive nature of the perpetrator.

So for all victims of domestic violence, the heralding of a specialist domestic violence Court to deal only with this worrying phenomenon is great news.  The dedicated Court will mean that the judicial staff who will be at the coal face of the problem, dealing with the real-life accounts of domestic violence will be well equipped to handle the difficult decision that comes with the job.

Should the pilot Court be a success it would seem likely that other dedicated domestic violence Courts may be considered in regional centers around Queensland and hopefully the rest of the country so that victims of domestic violence can have their sometimes life-threatening matters dealt with as quickly as possible.

Keep an eye out for next week’s installment of Charles Noble’s domestic violence court update.  “The Cons of greater access to domestic violence orders: What about those who are not victims of domestic violence and claim to be?  What are their motivations and how does it affect those around them”

Article Source: NEW DEDICATED DOMESTIC VIOLENCE COURT AT SOUTHPORT: GOOD NEWS FOR WOMEN OR MORE TROUBLE FOR EQUAL RIGHTS? PART 1

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

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