Law

Letter of Advice

25 January 2022

Ms. Amelia Hart

4 Cornet Street, Yeronga

Re: Domestic Violence and parenting matter- Hart & Hart

Dear Amelia,

We do confirm that we have been asked to provide you with advice regarding the parenting and domestic violence matter during the appointment on 24 January 2022. On the basis of the information which you provided, it has been identified that there are various issues with which you are dealing. After hearing all of the issues we observed that physicaland psychological violence is happening against you as well as your children. Hence, you and your children are the victims in this case¹.Australia has various relevant legislation regarding domestic violence. They are the Domestic and Family Violence Protection Act (QLD) 2021 and Family Law Act 1975. Additionally, there is National Plan to Reduce Violence against Women and their Children 2010-2022. Moreover, you said that you think that your husband is stalking you and according to the legislation of Australia, stalking is also considered an offense. According to your statement, your husband is breaching these laws.

The Family Law Act needs the court to consider the requirement to protect children’s rights and also to promote the welfare of the children in various matters with which it basically deals under this Act. The primary consideration should be the best interest of the child. The main motive of the Family Law Act with regards to children is to make sure that the child receives proper and adequate parenting in order to help them reach full potential and also to make sure that the parents are fulfilling the responsibilities and duties concerning the welfare, development, and care of the children². All of these are not fulfilled in this case.

Family and domestic violence can impact the wellbeing of a child and they may become depressed and anxious. Family violence also impacts their mental health badly and they may not feel good about themselves³. They may have an eating disorder that will harm their physical health. In this case, Danny forces his children to finish their food which may harm their physical health and he also fights with their mother in front of them which affects their mental health. So it is better to avoid fights in front of them.

Any person who is the parent and their children is under 18 year’s holds parental responsibility of their child. Parental responsibility refers to all the duties, responsibilities, authority, powers, and rights which legally the parent has related to their child and the property.

While considering the orders, section 66G FCA and 60 CG FLA offer that the court should make sure that it is constant with the order to family violence and no person expose to the unacceptable family violence risk.

Potential court orders such as orders of domestic violence, restraining order for violence, intervention order for family violence, and restraining order for domestic violence⁴. These orders basically utilized the mechanism of justice response in order to ensure the safety of children and women who are exposed to family or domestic violence. In this case, this potential order to court will safeguard Amelia and her children from domestic violence.

The key consideration that Australian Courts usually undertake for children being exposed to domestic violence is making sure that their best interests are being served and fulfilled. By evaluating the scenario, it is clear that both the children, Henry and Thomas are being subjected to domestic violence as per sections 4AB (3) and 4AB (4) of the act. It is clarified by both the act that it is the ultimate responsibility of the court for protecting children’s rights, as well as promoting their welfare and give protection to them from issues like family violence⁵. The Court needs to follow and abide by Section 60CC(3)(j) of the family violence act for taking into consideration a child, children or a family member who is dealing with family violence. Apart from this, by following Section 60CC (3) (k), it is necessary for the Court for taking into serious consideration the order of family violence⁶. When children are tackling domestic violence by the above-mentioned sections, the court is bound to give them protection orders. Part 3 of the protection order is suitable in this case which has the extension of five years and is applicable under a specific condition that is stipulated by the court. In other circumstances, reasons are needed by the court for placing the order to be valid for less than five years. Section 97 of the domestic violence act relates to this. Besides this, the court can also give a temporary protection order by following and maintaining section 44 of the act. In addition to this, family reports need to be produced along with seeking advice from family consultants to look after this serious matter of domestic and family violence⁷. This is a scenario of family law where it might be ordered by the court for getting certain individuals engaged to do conversations with family consultants.

Writing a family report would be essential to bring clarity to the case with proper evidence. Family consultants would also be appropriate as they specialize in this field for interviewing children and other victims of domestic violence. The court can also consider the lighthouse project in this specific scenario⁸. This is considered a unique approach for undergoing the screening process in order to evaluate risks for children and adults. The project has the key emphasis to enhance outcomes and living conditions of families engaged within the family legal system. But it is my perspective that it would not be essential for the Evatt list. The matter would not go so long and can be resolved by other previous conditions already mentioned. The Evatt list is basically the court’s initiative comprising a greatly qualified group of judges for helping in the smooth progress of the case containing potential threats and risks. The Lighthouse Pilot Project’s successful implementation would be enough for resolving the issues of the case. The court might give notice to Amelia by showcasing evidence from sections 67ZBA and 67ZBB of the Family Law Act 1975⁹. Section A denotes one party might put family violence threat to another party during the time of proceedings. Section B specifies a notice must be filed by an interested individual in a prescribed format within the court to hear the proceedings as well as serve the notice’s original copy upon the referred party. This can be a great dispute resolution procedure for Amelia and her two children¹⁰. They might not be likely to witness long-term psychological and physical effects and eliminate chances of mental disorders like depression and anxiety.

Yours faithfully,

FAMILY + CHILDREN’S LAWYERS

Per:

HAMISH BATTY

Yours faithfully,

,

References

Article-Books-Journals

ALRC, “The Best Interests Principle | ALRC”, ALRC (Webpage, 2022) <https://www.alrc.gov.au/publication/seen-and-heard-priority-for-children-in-the-legal-process-alrc-report-84/16-childrens-involvement-in-family-law-proceedings/the-best-interests-principle/>

Anrows, “Domestic And Family Violence Protection Orders In Australia”, Anrows.Org.Au (Webpage, 2019) <https://www.anrows.org.au/wp-content/uploads/2019/02/16_4.1-Legal-WEB_FINAL_0.pdf>

Dfvbenchbook, “Unacceptable Risk And Best Interests – National Domestic And Family Violence Bench Book”, Dfvbenchbook.Aija.Org.Au (Webpage, 2022) <https://dfvbenchbook.aija.org.au/family-law-proceedings/unacceptable-risk-and-best-interests/>

Dss, “Domestic Violence Laws In Australia”, Dss.Gov.Au (Webpage, 2019) https://www.dss.gov.au/sites/default/files/documents/05_2012/domestic_violence_laws_in_australia_-_june_2009.pdf

Austlii edu, “FAMILY LAW ACT 1975 – SECT 60Cchow A Court Determines What Is In A Child’s Best Interests”, Www5.Austlii.Edu.Au (Webpage, 2022) <http://www5.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s60cc.html>

Fcfcoa gov, “Family Violence- Lighthouse Project”, Www.Fcfcoa.Gov.Au (Webpage, 2022) <https://www.fcfcoa.gov.au/fl/fv/lighthouse/faq#:~:text=The%20Lighthouse%20Project%20is%20an,identification%20and%20management%20of%20safety>

Fcfcoa gov, “Guide For Parties In The Evatt List”, Www.Fcfcoa.Gov.Au (Webpage, 2021) <https://www.fcfcoa.gov.au/fl/pubs/guide-parties-evatt-list>

Cases

Kirjalainen, Toni and Ulla Valtonen, “41 Digital Technology, Post Separation Violence And Stalking” (2016) 22(Suppl 2) Injury Prevention

Koegler, Erica et al, ““When Her Visa Expired, The Family Refused To Renew It,” Intersections Of Human Trafficking And Domestic Violence: Qualitative Document Analysis Of Case Examples From A Major Midwest City” (2020) 6(11) Journal of Interpersonal Violence

Legislation

Family Law Act 1975 (Cth)

4AB (3) and 4AB (4) of the Family Violence Act

Section 60CC (3) (j) and Section 60CC (3) (k) of the Family Violence Act

1ALRC, “The Best Interests Principle | ALRC”, ALRC (Webpage, 2022) <https://www.alrc.gov.au/publication/seen-and-heard-priority-for-children-in-the-legal-process-alrc-report-84/16-childrens-involvement-in-family-law-proceedings/the-best-interests-principle/>

2Anrows, “Domestic And Family Violence Protection Orders In Australia”, Anrows.Org.Au (Webpage, 2019) <https://www.anrows.org.au/wp-content/uploads/2019/02/16_4.1-Legal-WEB_FINAL_0.pdf>

3Dfvbenchbook, “Unacceptable Risk And Best Interests – National Domestic And Family Violence Bench Book”, Dfvbenchbook.Aija.Org.Au (Webpage, 2022) <https://dfvbenchbook.aija.org.au/family-law-proceedings/unacceptable-risk-and-best-interests/>

4Dss, “Domestic Violence Laws In Australia”, Dss.Gov.Au (Webpage, 2019) <https://www.dss.gov.au/sites/default/files/documents/05_2012/domestic_violence_laws_in_australia_-_june_2009.pdf>

5 Austlii edu, “FAMILY LAW ACT 1975 – SECT 60Cchow A Court Determines What Is In A Child’s Best Interests”, Www5.Austlii.Edu.Au (Webpage, 2022) <http://www5.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s60cc.html>

7 Fcfcoa gov, “Family Violence- Lighthouse Project”, Www.Fcfcoa.Gov.Au (Webpage, 2022) <https://www.fcfcoa.gov.au/fl/fv/lighthouse/faq#:~:text=The%20Lighthouse%20Project%20is%20an,identification%20and%20management%20of%20safety>

8 Koegler, Erica et al, ““When Her Visa Expired, The Family Refused To Renew It,” Intersections Of Human Trafficking And Domestic Violence: Qualitative Document Analysis Of Case Examples From A Major Midwest City” (2020) 6(11) Journal of Interpersonal Violence

9 Fcfcoa gov, “Guide For Parties In The Evatt List”, Www.Fcfcoa.Gov.Au (Webpage, 2021) <https://www.fcfcoa.gov.au/fl/pubs/guide-parties-evatt-list>

10 Kirjalainen, Toni and Ulla Valtonen, “41 Digital Technology, Post Separation Violence And Stalking” (2016) 22(Suppl 2) Injury Prevention

Note: Footnotes are not added to this Letter of Advice., but the same will be added in the booked Assignment task.