The Impact of Criminal Law in the Family Law Jurisdiction
Pursuant to section 61DA of the Family Law Act 1975 (Cth), the presumption of equal shared parental responsibility exists within family law proceedings. However, this presumption does not apply in circumstances where parents have engaged in family violence due to the effect of section 61DA (2)(B). Effect of Family Violence Orders on Parenting Orders The Family Court may enforce a Family Violence Order against a parent of the relationship, despite the imposition of a subsequent parenting order relating to that person. Section 68R(1) allows the court to make or vary family violence orders, which may involve reviving, varying, discharging, or suspending a parenting order. However, the Court’s power also works in the opposite manner. For example, the Court may override a protection order made under the Domestic and Family Violence Protection Act with a parenting order. This power is outlined in section 68R of the Family Law Act. The existence of these powers allows the Court to remove any inconsistencies between the two orders and simplify proceedings. Family Violence and Court Procedure Typically, parties must attend mediation and gain a certificate of dispute resolution before proceeding with the matter to court litigation. However, section 60J of the Family Law Act provides an exception to attending mediation on the grounds of abuse (or a risk of child abuse) if the orders were to be delayed, or, family violence (or risk of family violence) by one of the parties. Furthermore, where a Notice of Risk has been filed alleging child abuse or risk of abuse, section 67ZBB of the Family Law Act provides the Court must take prompt action to not delay an order. Criminal Actions and False Allegations If there are serious ongoing criminal investigations (such as murder, child abuse, rape, etc.) relevant to the parties to a current family law proceeding, the Court may refuse to make final orders. These examples are outlined in cases such as Moresco & Ors v Budimir [2015] VSC 51. As serious criminal investigations are likely to significantly impact a party to a family law proceeding, it would not be appropriate for the Court to make final orders when the future needs of the accused persons are currently ongoing. Where parties to a family law proceeding make false allegations against the other, the court has wide powers in determining the appropriate course of action. In the case of Kapicic & Bakal [2014] FAMCA 236, Justice Berman found the false allegations of the Mother that the child of the relationship had been sexually abused by the Father were made with “malicious intent”, subsequently ordering the children to live with the Father and granting him sole parental responsibility. Apprehended Violence Order (AVO) Although an AVO is not a criminal conviction, it may seriously impact career aspirations and opportunities. Therefore, this order should not be taken haphazardly. If you are or intend to seek professional employment in a position that involves working with children, an AVO will appear on a “working with children” check. If you have criminal charges brought against you for a breach of the AVO, this may result in difficulties in obtaining parenting orders in family law proceedings. It is important if faced with this situation to seek legal advice on your options in disputing the AVO and ensuring no breaches occur. Source - Criminal Law in Family Law Proceedings
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What if your Spouse Entitled to Your Lottery Winnings?
At one point or another, everyone has thought about the possibility of winning the lottery. But what happens to the lottery winnings if you are currently in a marriage? In the case of Elford & Elford, the court heard an appeal in relation to property settlement at the end of a relationship. In this case, Mr. Elford has won approximately $622,000 in the first 12 months of the couple’s marriage. After placing the money into an interest-earning account, the amount totaled over $1,000,000.00 at the time of separation. The Wife argued that the money should be considered as ‘joint’, as the contribution was made during the course of the marriage. The court dismissed the Wife’s appeal and held that Mr. Elford was solely responsible for the financial contribution. Why Would the Lottery Winnings Not Be Split? The unique, and perhaps predominant feature of this case, was that the couple throughout the course of the marriage had kept their financial assets separate. The Husband’s accounts were used to pay expenses associated with property and utilities and the Wife’s accounts were used to pay for expenses relating to the three children (to a previous marriage) and groceries. The couple did not have a joint bank account. Some additional factors the Court considered included:
Read More: 4 Key Points To Note About Property Settlements Although this case featured very distinctive features that allowed the Court to view the winnings as the financial contribution of only one party, it does show how assets can be treated in property settlements. Article Source: lottery winnings Brisbane In the last five years, the High Court of Australia has heavily criticised sentencing principles which implement an oversimplified approach and place significant weight to broad sentencing ranges and individual factors. As a result of this increased criticism, the court’s approach has slowly shifted to sentencing approaches which implement an order determined on balancing all circumstances of the case to reach a single judgement, as opposed to specific process or components. Historical Approach Taken Despite criticising these certain sentencing principles, the High Court has fluctuated in judicial reasoning over the last 10 years. Historically, the most commonly applied sentencing approach has been centred around the notion of proportionality. This can be evidenced in the Court’s conclusion in Veen v The Queen[No 2] where the High Court upheld the maximum penalty imposed against the defendant. When considering the criminal punishment principle such as protection of society, general and specific deterrence and reform, the proportional penalty was not manifestly excessive in the circumstances. As the category of offence and the facts involved in the crime amounted to being categorised in the worst possible manner, the High Court held the maximum penalty was proportionate as the need to protect society from the offender was paramount. This conclusion clearly indicated the Court will not impose a lesser penalty for an offence merely because it is possible to envisage a more serious offence. The Modern Sentencing Approach A more modern approach fostered by the Court has aligned with the recent criticism of the High Court. In Markarian v The Queen the original sentence of 8 years imprisonment for the commercial supply of heroin was overturned. As the sentence passed had adopted the ‘two-tier approach’, the defendant was preliminary given a sentence with relevant facts then subtracting the time required to be spent in custody. This approach distinctly broke down the case into individual factors and did not take into consideration the magnitude of facts. Consequently, the High Court found the original sentence had been wrongly applied, as the complex issues warranted a preliminary sentence should not have been imposed. Read More: No Ill Will: What is Testamentary Capacity? The more favourable approach implemented by the High Court addressed the recent criticisms and instead imposed the ‘instinctive synthesis’ method, which is a sentencing approach balancing the competing facts against the appropriate sentence. As a result of this method, a valued judgement can be imposed, as opposed to reaching a preliminary determination which may unfairly prejudice the offender. Visit Article Source - Sentencing Approaches Undertaken by the Australian Court Sentimental Value in Property SettlementIn determining how the property pool is split, the Court has previously highlighted the difficult and sometimes unique circumstances where one party may have sentimental value in an asset.
In one particular case, the Husband of the proceedings was given 14 days to retrieve the ashes of his deceased parents which had been laid in a memorial on the family farm. During the divorce proceedings, the farm had been awarded to the wife. Property Settlements Where couples separate and are unable to decide how the assets of the relationship will be divided, the Family Court is able to decide on their behalf once an application has been made to the Court. This process essentially involves the Court looking at all the assets and dividing them between the two parties. The relevant considerations taken into account by the Court during this process involve the contributions made by each party to the marriage (either financial, non-financial, or homemaker), whether one party has a greater financial need than the other, and whether the proposed property split is ‘just and equitable’ based on the circumstances. How These Factors Affect Settlement In the case mentioned above, the Family Court determined that contributions made throughout the relationships were even, and, the wife had successfully argued the property could generate income through a bed and breakfast business. As the Wife had not worked for approximately 18 years, the Court agreed that this option was the most likely option for the Wife to gain meaningful employment to sustain her financial needs. Consequently, although the Husband has a significant sentimental value attached to the family farm, he was forced to re-locate his parent’s ashes. Read More: 4 Key Points To Note About Property Settlements This case acts as a reminder that during Family Law proceedings, the Court does not adopt a single set of rules which apply to everyone. In property settlements, the Court continues to have the discretion to make orders which best suit the circumstances of the parties. Article Source: Sentimental Value |
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