Posts

Urgent calls for Australian government to do more about family violence

The Easter long weekend saw five women and children in Australia die from a result of domestic and family violence.

Two, in particular, were high-profile incidents that have made headlines across Australia.

The first occurred last Wednesday afternoon and involved a woman named Fiona Warzywoda, who had been with her partner for 18 years. She had separated from him just before Christmas, and on Wednesday morning had appeared in a court in the Melbourne suburb of Sunshine to take out intervention orders against her former partner.

According to police, Ms Warzywoda had left her solicitor’s office just minutes before she was allegedly stabbed to death in the middle of a busy shopping strip in Sunshine. Her ex de facto husband, Craig McDermott, handed himself in to police on Thursday morning. Mr McDermott appeared in the Melbourne Magistrates Court later on Thursday night and was charged with the murder.

The second incident occurred on Easter Sunday in the Melbourne suburb of Watsonia. Two little girls named Savannah and Indiana, aged 3 and 4, were found dead. The girl’s father, Charles Mihayo, has been charged with their murder; further circumstances have not been explained. According to reports, the parents of the girls had been married but recently separated.

The horrifying events have drawn attention to the Australian statistics surrounding domestic and family violence.

Last year, information from the Australian Institute of Criminology found that at least one woman a week in Australia is killed by a current or former partner. It further found that 36 per cent of all homicides take place in a domestic setting, 73 per cent of which involve a woman being killed by her male partner.

Now, many are calling for more to be done about raising awareness of just how significant the problem of domestic and family violence has become.

While White Ribbon Australia does much to end men’s violence against women, there have been requests for the government – and especially the prime minister, Tony Abbott – to step up and do something about domestic violence, just as he voiced a plea to end drunken street violence after the death of Daniel Christie in December 2014.

Journalist Clementine Ford wrote an opinion piece for Daily Life yesterday, stating:

Violence against women and children in this country is in a state of national emergency, and yet it receives scant attention. I applaud the efforts of state governments to combat the effects of ‘coward punches’ on our young men, but I question why the perilous state of women’s safety is so routinely ignored and downplayed. Street violence has claimed the lives of young men, but at approximately 1/7th the rate of that of domestic homicides.

Just yesterday, in the wake of all these tragedies, Domestic Violence NSW – the peak body for specialist domestic and family violence sector organisations in NSW – launched the No Excuse campaign, which aims to highlight that there are never any valid excuses for domestic and family violence.

CEO of Domestic Violence NSW, Tracy Howe, said:

Australia has had a gutful, enough is enough. Too many lives are being lost and there are there is no excuse for violence against women and children, ever.

Domestic and family violence is killing women and children in horrific numbers. If Australians were dying with this regularity and in these numbers as a result of terrorism, food poisoning, natural disaster or coward punches on the streets, the nation would be united by outrage and grief.

Domestic and family violence is a national outrage. There are no excuses for these murders. It is time for government, non-government and community to acknowledge the horror and to urgently come together to find solutions for this.

It has been asked for all Australians to sign a petition which calls on our leaders to recognise domestic and family violence as a national emergency and to take urgent action against the violence.

If you would like to sign it, please click here.

Contact us

Contact us

Send us your contact details and one of our specialist family lawyers will call you today for an initial, obligation-free discussion and assessment of your circumstances at no cost.

Victorian judicial system “failing” victims of family violence

The Age newspaper has reported on just how significant the problem of family violence has become in the state of Victoria.

Despite the State Government investing more than $90 million this year towards preventing family violence, there have been numerous incidents in which serial offenders have repeatedly breached intervention orders issued by the courts.

The Sunday Age quoted Victorian Police data from the past financial year, which revealed that:

– More than 820 offenders breached intervention orders at least three times;
– 200 of the 820 offenders violated orders more than five times and 15 committed more than 10 separate breaches in one year; and
– 88 people were charged with breaching an order three times in just 28 days.

The newspaper also noted that the courts are processing a record number of breaches – that is, more than 12,000 last year.

They noted that, as a result, the judicial system is “overworked” and that courts “struggle to process” the breaches. This has resulted in the failure of protecting victims of family violence, as abusers are able to harass victims while still awaiting trial for previous breaches.

There is currently a notable focus on family violence in Victoria, where family violence cases have been making headlines for months – particularly after the death of 11-year-old Luke Batty earlier this year.

Last week, the Victorian government also proposed new laws relating to family violence that would make it a crime to not disclose a case of child sexual abuse. The crime carries a maximum three-year imprisonment term.

The proposed laws contain a specific exemption for people who fail to report child sex abuse because they feel their safety is threatened – however, victim support groups are still concerned that the mothers of abused children will be too scared to report their abusive partners, and that these women may end up being unfairly jailed.

Victim support groups are also highly concerned that, despite new laws being put in place, there is still not enough focus on just how dangerous family violence can be.

The Age quoted Fiona McCormack, chief executive of Domestic Violence Victoria, who referred to there being 29 family-violence-related deaths in Victoria alone last year:

If we saw that many people being killed on public transport I think there would be a lot more of a response.

Contact us

Contact us

Send us your contact details and one of our specialist family lawyers will call you today for an initial, obligation-free discussion and assessment of your circumstances at no cost.

Proposed Victorian child abuse laws spark debate

The Victorian government has proposed new laws relating to family violence that have the potential to make a significant difference in the way these matters are handled by the courts.

The laws, proposed by the Napthine government, would make it a crime to not disclose a case of child sexual abuse. The crime carries a maximum three-year imprisonment term.

Although the proposed laws contain a specific exemption for people who fail to report child sex abuse because they feel their safety is threatened, they have come to the attention of victim support groups who believe that the mothers of abused children will be too scared to report their abusive partners – and that these women may end up being unfairly jailed.

Attorney-General Robert Clark said:

The bill makes clear that the protection of children from sexual abuse is of paramount importance, while also recognising the domestic violence context in which child sexual abuse may be occurring. The legislation does not prevent any organisation informing police whenever and however the organisation becomes aware that abuse has occurred.

The proposed laws have already proved to be contentious, with the first debate kicking off this week on breakfast television.

Journalist and host of Studio 10, Joe Hildebrand, caused an uproar with his comments about the proposed laws during the show’s broadcast on the morning of the 2nd April.

Hildebrand was interviewing Rosie Batty, the mother of Luke Batty, an 11-year-old boy who was murdered by his father while at cricket training in January this year.

Greg Anderson, Luke’s father, suffered from mental health problems and was verbally and physically abusive towards Rosie Batty. Rosie told News Limited that while Anderson’s threats towards her were serious, she never feared for her or her son’s life.

Because of Anderson’s behaviour, intervention orders were made, which allowed Anderson to continue to have contact with Luke in public places. Tragically, it was in a public place where Anderson attacked Luke – striking first with a cricket bat and then with a knife.

Luke was not fearful of his father – it was Luke who had asked to spend “a few more minutes” with his father after cricket training. Rosie agreed, thinking her son was safe.

Rosie Batty has since made several media appearances in the hope that her son’s story will bring some awareness to family violence and just how dangerous it can be. However, her interivew on Studio 10 made it evident that she, a victim of family violence, is unhappy with the proposed Victorian laws.

Joe Hildebrand opened the discussion with the following:

Obviously you can’t help but feel a huge amount of sympathy for anyone who’s in an abusive relationship but … you have to get out, you absolutely have to get out. There are huge economic costs associated with that, yes there are often other things, but anything is better than staying in an abusive relationship. Frankly, to say that you’re going to not report a case of child abuse or child sex abuse by your partner because you are scared for your own safety, I’m sorry, it is not an excuse.

Rosie replied to Hildebrand, telling him that his comments were “misguided” and that she was “absolutely outraged”:

I was living in hope that because of Luke’s tragic death it would bring a huge awareness to family violence. This is beyond my comprehension how, again, the woman who is the victim is punished.

Joe needs to look at his views as a man and he needs to step up and get informed. Because when I hear comments like that I am so saddened that the focus is still on the woman. Where the hell is the perpetrator? Why isn’t he being jailed for three years?

Rosie also released a statement after the interview, writing that the onscreen debate “has raised a huge opportunity for discussion and that has to be a good thing. Joe has raised comments that are very popular amongst both men and women and by discussing why this has raised such heated debate will make all of us wiser and more informed”.

Contact us

Contact us

Send us your contact details and one of our specialist family lawyers will call you today for an initial, obligation-free discussion and assessment of your circumstances at no cost.

Roberts & Waters: Risk of harm to the child

On the 31st of January, 2014, the Family Court handed down the decision of Roberts & Waters [2014] FAMCA 34 (referred to as R & W); it involved the best interests of the child, and determined whether the father posed an unacceptable risk of harm to the child.

The Family Law Act 1975 (Cth) focuses on the importance of both parents playing a meaningful and active role in the lives of their children after they have separated – unless, of course, it is contrary to the child’s best interests. That said, an important aspect of this objective is protecting children from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence. This very issue of family violence was a concern in R&W.

R&W involved a separated couple and their child from the relationship, a five-and-a-half-year-old boy. The couple met while the father was a prison inmate, serving time for a charge relating to attempted murder; he also had a lengthy criminal history, including two convictions for assault. Once he was released from prison in 2005, R & W were in a relationship for a few years, but separated in 2009.

The child continued to live with the mother after the separation, and at one point the mother sought an AVO against the father for her protection, which he was charged with contravening. Various interim orders were made for the father to spend time with the child; however, only one overnight visit with the father was permitted by the mother.

Ultimately, the mother and father did agree that once the child was of school age, overnight visits with his father were in his best interest; the mother had no concern that the father would ever harm his child. However in the meantime, “she did not believe that he had any understanding of the emotional and developmental needs of young children”.

A Family Consultant prepared a report of her assessment of the child and his parents. The consultant’s overall recommendations were that while the child had developed a good relationship with his father, she had serious concerns about the father’s parenting capacity and – without a psychiatric assessment- could not make recommendations about the time that the child should spend with him.

Justice Kent considered the submission made by the Family Consultant, as well as the submission made by a consultant psychiatrist who carried out a psychiatric assessment on each of the parents.

His Honour said that he was “not satisfied that the mother is genuinely fearful of the father or concerned that his behaviour may be detrimental to the child”, and noted that the mother had ultimately consented to the child having overnight time with the father.

While Justice Kent still considered whether the father’s behaviour raised concerns about an unacceptable risk of harm to the child, he determined that he was not satisfied that the father’s time with the child should be restricted because of his behaviour.

As a result, it was ordered that the child was to live with the mother, while also spending regular weekends and time during the school holidays with the father.

Contact us

Contact us

Send us your contact details and one of our specialist family lawyers will call you today for an initial, obligation-free discussion and assessment of your circumstances at no cost.

Batkin & Batkin: Mother to be arrested if she continues to disobey orders

The recent family law case of Batkin & Batkin [2013] FamCA 44 involved a separated couple and three children that had been born of the relationship.

The trial initially came before Justice Murphy in November 2011.  At the time, Murphy J adjourned the parenting trial until February 2013, and made interim parenting orders by consent of the parties (referred to as the 2011 Orders).

The aim of the 2011 Orders was to reintroduce the father into the lives of the children; they’d had no direct time with him for over four years, due to a “longstanding dysfunctional relationship” between the parents.

The 2011 Orders included orders to engage with a therapist, and follow directions given by the therapist, with a view to re-establishing the relationship between the children and the father.

However, at the commencement of the final trial of parenting proceedings in February 2013, affidavit evidence submitted by the therapist disclosed that:

 

  • the mother had opted out of the counselling process following the 2011 Orders, and that she had indicated to the therapist by way of SMS message that this was “because the boys do not wish to see their father”; and
  • the boys did not express any concern about spending time with their father, they appeared more to be echoing the views of their mother rather than expressing their own independently-formed opinions.

In reviewing the evidence, the Court observed that the mother “appears to have a complete block so far as recognising the needs of [the] children to be able to form their own views of their father”.

As a result, Justice Kent was concerned that the boys had no opportunity to form their own views of the father; they had simply “regurgitate[d] the views expressed by the mother…and…her negative views of [the father].”

As a consequence, Justice Kent was concerned not to make final parenting orders in the matter until the father had a proper opportunity to re-engage with the lives of his sons, and to demonstrate to the Court that spending unsupervised time with them was in their best interests.

The Court therefore adjourned the final hearing and made interim parenting orders, which included:

  • the father would spend four hours per month supervised time with the boys at a nominated contact centre; and
  • at the end of six months, a report would be produced about the outcome of the father’s time with the boys to assess the father’s wish to graduate ultimately to unsupervised time with the boys each alternate weekend.

To ensure that the mother did not continue to obstruct the process, Kent J also included orders which provided that a warrant be issued for the mother’s arrest should she not deliver the boys to the contact centre at the times required.

Contact us

Contact us

Send us your contact details and one of our specialist family lawyers will call you today for an initial, obligation-free discussion and assessment of your circumstances at no cost.

Allenby & Kimble: De facto relationship declared to have existed

On 2 August 2012, the Family Court of Australia handed down the decision of Allenby & Kimble [2012] FamCA 614 (referred to as A & K).

A & K involved competing declarations sought by each party under s90RD Family Law Act 1975 (Cth) (FL Act); essentially, the court had to determine whether their relationship constituted a proper de facto relationship under the FL Act.

Courts are generally asked to determine this issue in the context of property claims made by one party against the other party to the relationship. However, property settlement claims cannot be made unless the parties were either married or in a de facto relationship.

 

The FL Act provides that two people will be in a de facto relationship if they lived “together as a couple on a genuine domestic basis”.

The legislation does not define precisely what constitutes a ‘genuine domestic relationship’; however, when determining the issue a court will have regard to various matters, such as the duration of the relationship, the nature and extent of their common residence, the care and support of children and several other factors which you can read about here.

In A & K, Ms Allenby sought a declaration from the Family Court that her relationship with Mr Kimble was a de facto relationship; Mr Kimble disputed that they had a de facto relationship of the kind contemplated by the F L Act.

Ms Allenby and Mr Kimble had been in a relationship for approximately 10 years, but only lived together over the last five of those years. They did not own property together, nor did they pool resources, but they did attend family events together, spend time with each other’s family and travel together.

Upon reviewing the legislation, case law and evidence, Justice Murphy concluded that the parties were in a de facto relationship, and that such relationship had subsisted for a period which included two continuous years up to the date of separation.

His Honour attached particular weight to factors such as that the couple had shared the master bedroom, and that the relationship moved from ‘separateness’ to a cohabitation.

Having overcome this threshold issue, Ms Allenby was free to pursue her property claims against Mr Kimble under the property settlement provisions of the FL Act.

Contact us

Contact us

Send us your contact details and one of our specialist family lawyers will call you today for an initial, obligation-free discussion and assessment of your circumstances at no cost.