If you have been subjected to false allegations during a child custody dispute, it’s imperative that you stay calm, and secure legal counsel to ensure you take the necessary steps to protect yourself. Today, our team of Family Lawyers are here to share their insights into managing false allegations, outlining what steps should be taken to ensure your child custody dispute is resolved based on facts and not on hearsay.

What Constitutes a False Allegation in Custody Disputes?

A false allegation can be defined as any untrue claim made against a party during any legal dispute. In the context of child custody disputes, or even divorce or separation cases, false allegations are often made to impact the outcome in favour of one parent or party over another.

Some examples of false allegations that can be made during a custody dispute include:

• Claims of emotional manipulation
• Claims of parental alienation (coaching the child to favour one parent over another)
• Claims of child abuse
• Claims of domestic violence/spousal abuse
• Alcohol and substance abuse claims
• False claims relating to the mental health of one party
• Financial deception (i.e. hiding assets, and other forms of misrepresentation of financial status)
• Falsified evidence that’s designed to favour of one party over another

The Legal Consequences & Risks of Making False Allegations

As damaging allegations can hold great impacts on the outcomes of Family Law disputes, both the Family Law Act of 1975 and the Criminal Code Act of 1995 include provisions for false allegations. As such, the Federal Circuit and Family Court of Australia are authorised to deliver criminal penalties and Family Law consequences to the party that has been recognised for making false allegations.

Legal Consequences of Making False Allegations

Legal repercussions for false accusations, perjury, and the making of false statements in Court are all covered under Part 7 (Public justice offences) of the Crimes Act 1900. Under Division 2, 314 of the Act:

A person who makes an accusation intending a person to be the subject of an investigation of an offence, knowing that other person to be innocent of the offence, is liable to imprisonment for 7 years.

This means that if one party has made a false criminal accusation (i.e. allegations of domestic violence, child abuse, etc.), that has opened another party up to unnecessary police investigation, the accuser may be facing incarceration if they’re found to be guilty of falsifying the allegations made. Additionally, legal consequences resulting from perjury and/or defamation of character charges may also be applied to compound the criminal consequences of making false allegations.

Under the Family Law Act of 1975, legal repercussions for false allegations also includes provisions for the accusatory party being required to cover the other party’s Family Law costs resulting from their having to respond to the falsified claims made against them.

Risks of False Allegations in Property & Financial Settlements

If one party has been found to have made false allegations designed to manipulate property or financial settlement proceedings, the Court may seek to adjust the settlement terms in favour of the party that has been wrongfully accused as a means of compensation for being subjected to the false allegations.

The false accuser may also be required to provide more spousal maintenance if the costs of legal proceedings resulting from their false allegations negatively affects the property and asset pool during the settlement.

Risks of False Allegations in Child Custody Disputes

In the context of child custody disputes, Court officials may find that the party that has made false allegations was not acting in the best interests of the child/children. The impact on the false accuser’s reputation can go on to affect child custody arrangements and parenting agreements, as the accusatory party may be recognised as unable to co-parent effectively.

In some cases, the Court may even use the filing of false allegations as grounds to approve the accused party’s requests for sole custody, either on a long-term basis or even short-term pending the accusatory party’s attendance of parenting counselling sessions. 

How Courts Assess False Allegations in Custody Disputes

False allegations in child custody disputes are actually more common than you may expect. In fact, in a recent study funded by the Australian Institute of Criminology, researchers found that 50% of the work conducted by the Family Court across all 288 custody and access dispute cases that were assessed, revolved around assessing the legitimacy of child abuse claims by one party against another.

This is because false allegations can be quite time-intensive to address in Family Court. In fact, the process of addressing false allegations can take at least 12 months spanning from family mediation sessions to your final hearing. The process of addressing false allegations will also inevitably include multiple court dates, including interim hearings and directions hearings, with interim hearings being designed to implement interim Court orders whilst allegations are being addressed (i.e. establishing interim Orders stipulating supervised visits for accused parents until the allegations have been assessed), and directions hearings being scheduled to determine the best course of action by the Family Court and both parties in assessing the claims being made.

Keep in mind that cases of defamation are governed by the ‘balance of probabilities’ standard rather than the criminal standard of ‘beyond a reasonable doubt’. As such, whilst false allegations surrounding Family Law matters like child custody disputes are taken very seriously by the Court, the Court also takes into consideration the behaviour, conduct, and cooperation of both parties during court proceedings.

For parents who are falsely accused during child custody disputes, the best thing you can do to continue acting in the best interests of your child/children is to comply with all interim Court orders made during your interim and directions hearings and in the lead-up to your final hearing.

What to Do if you’re Subjected to False Allegations

Follow the Advice of your Legal Counsel & Adhere to Court Orders

Although the Family Law Act of 1975 is designed to be on your side if false claims are made against you, it can still be disheartening and even embarrassing to be subjected to supervised visitation and other interim Court Orders. As such, the best piece of advice that can be offered to parents facing false allegations is to simply stay calm and keep in mind that the Court is not acting to punish you, but rather to ensure the best interests of your child/children.

You can demonstrate that you are also acting in the best interests of your child/children by maintaining communication with your legal counsel, following the advice they provide, and most importantly, by adhering to all interim Orders made in the lead-up to your final hearing.

Secure Suitable Legal Representation

Honesty and open communication with your Family Lawyer is key when navigating false allegations. As such, it’s imperative that you find the right Family Lawyer to represent you in these proceedings.

It’s advised that you partner with a Family Lawyer who you have built rapport with to streamline the process of finding and collating evidence to support your case. 

Want to make sure you’re asking the right qualifying questions when selecting a Family Lawyer to represent you? Check out our list of 6 key questions to ask in your first consultation.

Write a Statement Addressing & Categorically Denying the Claims

Maintaining a balanced, evidence-based approach is key in the face of false allegations. One of the best ways to start on firm footing when it comes to collating evidence is by simply preparing a written statement that outlines and respectfully denies all the claims made against you.

Collect Evidence Supporting your Case

Children’s matters are determined based on the child or children’s best interests. The strongest evidence that you can collect to support your case in the face of false allegations is evidence that simply demonstrates your consistency to act in the best interests of your children.

Some examples of useful evidence to disprove allegations in child custody disputes include:

• Text messages and emails (to the other parent or even to grandparents, aunts, uncles, educators, etc.) that contradict the allegations being made
• Witness statements from other family members, educators, etc. who may be able to support your case
• School records, police reports, medical records, and other official documentation that demonstrates your care for the child/children

Prioritise your Mental Health & Wellbeing

Finally, don’t lose sight of the fact that fighting false allegations under any circumstances can be taxing and even traumatising. Add to this the fact that you’re fighting false allegations within the context of an ongoing child custody dispute, and it’s enough to make any parent crumble.

But you can’t act in the best interest of your child or children with poor mental health. So stay strong and don’t let yourself become affected emotionally or maintain any behaviour that may place you in contempt of the Court. Don’t be afraid to lean on your support network if needed, and to prioritise your own health and wellness in the form of maintaining a strong diet and exercise routine.

And if you feel you’d benefit from sessions with a psychologist or therapist, don’t hesitate to schedule these for yourself. Records of these sessions may also be used as supporting evidence in your case that you are acting in the best interests of your child/children by investing in your own mental health.

Defend against False Claims with Support from Oxford Partners Lawyers

In our list of top behaviours to avoid during divorce proceedings, making false allegations takes the cake as the #1 thing you should never do. And whilst throwing stones at the other party is always advised against (especially if those stones also happen to be falsified claims), shutting down emotionally or even getting overly emotional (either in Court or even in texts/social media, etc.) can also be damaging to your case.

If you’d like to protect the best interests of your children in the face of false allegations made against you as a responsible parent, then the first step you must take is consulting with a Family Lawyer. Our legal team at Oxford Partners Lawyers is well-versed in both Family Law as well as Criminal Law, making us uniquely positioned to ensure the strongest possible outcome for child custody cases involving false allegations.

Whilst it may feel like the end of the world, being subjected to false allegations may just be the evidence you need to support your parenting order, if you’re looking to be named the primary caregiver. 

If you have recently been subjected to false allegations within your ongoing child custody dispute, get in touch with our team to book your free preliminary consultation with our Family Lawyers. We’ll make sure your accusers are held liable for their damaging behaviour, and will strive to achieve an outcome that considers your family’s best interests.

Understanding Contempt Of Court

When it comes to contempt of court, there are generally two different types: civil and criminal. Criminal contempt addresses any conduct that has been intentionally defiant of court authority. In the realm of family law, we deal with the other type of contempt — civil. Civil contempt concerns situations where a person (in this case a parent or guardian) does not follow a court order. There are also two different types of civil contempt, coercive and compensatory, but coercive civil contempt is most common in child custody proceedings.

Coercive Civil Contempt

Coercive civil contempt is a process in which a party in violation of a court order is forced to comply/obey the order. Co-parents deal with coercive civil contempt when attempting to have the other parent/party adhere to the specifics of court ordered parenting plans. Unlike civil contempt which in some cases can lead to imprisonment, coercive civil contempt sanctions can be avoided if the person found in contempt begins following the specifics of the court order.

Sanctions for civil contempt of court may include:

• Fines
• Court-ordered supervised visitation
• Updates to the original parenting plan
• Imprisonment – Under the Family Law Act 1975, the Federal Circuit and Family Court of Australia (FCFCA) has the same power as the High Court to punish for contempt. This means the FCFCA can sentence a person to imprisonment.

Proof Of Contempt

Violating parenting orders is extremely serious and any parent found to be in contempt of a court order may have severe sanctions imposed on them. Due to the serious nature of this, the court will require concrete evidence of willful disobedience of the court order. If you are considering contempt proceedings, it is imperative that you have proof in the form of documentation of past communication in order.

Having unimpeachable records of all communication that can help to prove willful disobedience is absolutely key in both making and/or protecting yourself from the other party’s claims. The applicant-party must state the specific terms in the order that were breached and in what way the breach was committed. Another significant allegation that may be included is the damage caused by the violation. Do note that ​​the law requires something more compelling than cases of forgetfulness or simple neglect in compliance.

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If you require more information or advice on the topic of contempt of court in family law, do not hesitate to contact one of our experienced family lawyers by calling us at (03) 9670 7577.

As you can imagine, it is paramount that parties comply with their duty to provide full and frank disclosure as it will help assist parties to both identify and even reduce issues in dispute. It is important to note that failure to provide disclosure (or providing false information) can result in the Family Court making final orders that you may deem unfair or even worse, parenting arrangements that are not in the best interest of the children.

So, What Exactly Am I Required to Disclose?

When it comes to financial matters, the duty to disclose relates to including information as to income, property, interests or any other financial resource that the party has access to. 

This can include but is not limited to:

• Pay slips and Centrelink statements;
• Thorough details of assets, including appraisals of these assets;
• Tax returns, estimates and/or assessments;
• Bank statements, credit union accounts and/or building society;
• Superannuation statements;
• Loans and credit card statements;
• Interests in any trust or company with supporting documentation.

Both parties will also be required to disclose information relating to the disposal of assets if the said disposal has occurred either during the year prior to separation or since separation. Disposal includes the sale of items (transferred, assigned or gifted) and items purchased with the funds that were acquired from the sale of assets. 

If there are children involved, parties have a duty to disclose matters related to the care and living arrangements of a child. This can include school reports, medical reports, notes, letters, photos and any other relevant information that relates to the parenting capacity of both parties.

What Is Discovery? 

If your ex-spouse has chosen to contest your case (or vice versa), either party may ask for “discovery”. Discovery refers to the organised exchange of information between parties and its purpose is to prove the case of the examining party or to disprove the case of the party examined. The party who is being discovered is legally required to produce all the documents they have for inspection about the matters in question. Some of these documents may include financial statements, tax returns, bank statements and credit card statements. However, it is important to note that in cases where there are documents in dispute, the existence of the documents must be proven.

In cases where the process of discovery is necessary, parties have two options: informal discovery or formal discovery. Informal discovery involves gathering information on your own, without the help of a lawyer. In order for informal discovery to be successful, the other party will have to be cooperative with the discussion. If they choose not to be, formal discovery with the help of an experienced family lawyer is recommended. Formal discoveries may involve interrogatories or written questions the other party will be required to answer in writing and under oath.

Is Discovery Beneficial?

Although discovery will indeed add more time and costs to your case, it is the only way both parties can enter a courtroom with full knowledge and disclosure about what the other party has up their sleeve. This is an integral process that will help to ensure that both parties have a fair and just chance in court. If you require assistance with your Family Law matter, one of our experienced family lawyers will be able to guide you through the process in detail. Call us at (03) 9670 7577 or contact us via our contact form for the best chance at a successful outcome for your case. 

A lot of the time, we freely share information without even thinking of the potential consequences they may have which brings us to today’s topic – how does social media impact Family Law proceedings?

In this article, our Family Lawyers at Oxford Partners Lawyers will look at the impacts of social media on Family Law proceedings and how something as simple as a status post on Facebook could potentially end up having a major impact on you and your family’s day in Court as well as the long-term outcome of your Family Court proceedings.

From financial settlements to divorce proceedings and more, here’s how your social media activity may become a point of focus across a wide range of Family Law proceedings in Australia.

Digital Content Can Be Used As Admissible Evidence

Before the days of social media, most aspects of Family Law were based on a matter of he-said, she-said. Thanks to social media and our innate desire to share much of our lives online, digital content can now actually be used as evidence against you in Court. Evidence in the form of photos, videos, social media posts and comments are increasingly relied upon in 2021 to prove certain facts in the Family Law Courts.

Additionally, personal or instant messages can also be called upon as evidence in your case. This is why it is always advised for individuals to be cautious about messages sent, comments made or information that is shared to the public on social media. More often than not, digital evidence has the potential to do a lot more harm than good, so think twice before you decide to send off heated messages to your spouse as they just may come back to haunt you.

Social Media Content That Can Impact A Family Law Dispute

Another important thing to consider is the impact that the content you post can have on a Family Law dispute. Aside from messages, comments and photos, there are a number of factors that could possibly jeopardise the outcome of your case. These include:

• Disparaging or slandering your partner and/or children.
• Sharing private and confidential information about your spouse, children or case. 
• Posting content that discloses risky, and anti-social behaviour when your case involves child custody matters.
•  Sharing sexual/provocative photographs of yourself online.
• Screenshots of private messages.
• Publish content that identifies a party, child or witness involved in Family Law proceedings – a direct violation of Section 121 of the Family Law Act.

Social Media Vs. Parenting Orders

If your case involves child custody matters, your digital footprint matters more than ever. Child custody disputes and parenting orders are made by a Court in the ‘best interests’ of a child, and a primary consideration is the protection of children from harm or family violence.

As such, in cases where child safety is disputed, photos, videos or social media posts that show a parent acting violently or recklessly may be used in Court. Comments on social media that are of a threatening nature may also be used as evidence against you/your partner. This is why Family Lawyers advise that individuals experiencing conflicts in a marriage or de facto partnership refrain from sending inflammatory digital messages. Maintaining a pragmatic approach when navigating communications during or in the leadup to separation or divorce proceedings and subsequent child/spousal maintenance proceedings can help reduce risks of social media content being used as evidence against you.

Spousal and Child Maintenance

After separation or divorce, one spouse/parent may be required to provide spousal maintenance or child support to ensure ongoing financial support is available for both parties as well as any children following the dissolution of a marriage or de facto partnership. In most cases, the Courts will decide upon who is responsible for maintenance after a thorough assessment of both parties’ financial status. 

In some situations, the party who is responsible for providing maintenance may claim hardship or outright fail to make their payments. If this is the case, evidence found on social media of holidays, parties, and new homes/cars can be used as evidence when resolving such issues. In other words, if you claim hardship but your social media profiles paint a different picture, you may be penalised and any agreements with your former spouse would be a breach that could lead to enforcement proceedings.

Tips For Using Social Media During A Family Law Dispute

Most Family Lawyers will advise their clients to practice mindful sharing when using social media in anticipation of Family Law proceedings. Here are some simple yet effective tips for reducing the risks of your social media content impacting any of your upcoming Family Law proceedings.

• Pause all social media accounts until after the Court case is finalised.
• Avoid posting private or personal information about your spouse, children or case. 
• If you are using social media to gather evidence, be sure to take screenshots and save files and documents. Avoid actively contributing.
• Don’t post, tweet, or share anything online that you wouldn’t want the judge to read — this includes emails and text messages.

Prepare your Digital Footprint for your Family Law Proceedings

Looking to find out more about the impact of social media on Family Law proceedings. Speak with one of our Family Lawyers at Oxford Partners Lawyers now to find out more about how digital information can lawfully be used in your family dispute case.

Call (03) 9670 7577 or place an enquiry via our website to book your preliminary 30 minute consultation with our Melbourne Family Lawyers today.

Every Man (or Woman) For Themselves 

First and foremost, one of the most important things to know is that in Family Law proceedings each party will normally be expected to bear his or her own legal costs. This is the starting point for all applications that come before the Court and is a stark difference when compared to other types of law proceedings where court orders are commonly made in favour of the successful party. As a rule of thumb, each party is responsible for their own legal costs should they choose to receive legal advice or counsel to represent them. However, as with most things in life, there are some exceptions to this rule. 

When Might The Courts Make A Costs Order?

Under Section 117(2) of the Family Law Act, the court may make a costs order as it considers just. Orders for costs can be made at any stage of the family law proceedings, including during interim applications where Court Orders are made before matters are officially finalised.

Some of the things the courts will consider include: 

1. Where one party breaches a Court order that subsequently requires the other party to file an Application to the Court due to the breach;
2. Where one party fails to comply with standard Court procedures. Some examples include failing to provide disclosure of financial circumstances which then requires the other party to file an Application to the Court.
3. If the litigation is found to be frivolous or vexatious in nature.
4. If a party has been wholly unsuccessful in their Application before the Court.
5. Where a written offer of settlement was by one party but rejected by the other party and following a determination by the Court, the person who made the offer is awarded an amount equal to or greater than the offer.
6. Such other matters as the Court considers relevant. 

Important: Do note that there is no requirement for there to be more than one of the above factors to be present for an order for costs to be made. 

Indemnity Costs

The last thing to consider is indemnity costs. This comes into play as a direct result of the conduct of the other party, such as where a party’s conduct has been unreasonable or uncooperative.  In such a situation, the Court can award the payment of all costs to the other party  in what is known as “indemnity costs”. 

Some examples of where indemnity costs may be awarded include:

• When a party makes false or irrelevant allegations against the other. 
• Where evidence exists of misconduct that causes loss of time to the Court and the parties.
• When a party unduly prolongs a case with groundless allegations.
• When a party unreasonably refuses an offer to settle.

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If you have any questions or require advice about your family law matter, do not hesitate to call us at (03) 9670 7577 or send us an email at admin@oxfordpartners.com.au. One of our experienced family lawyers will be in touch as soon as possible in order to assist you with your query.

Violence and Abuse

Putting your child in an environment that leaves them vulnerable to violence and abuse is something that the DHHS takes incredibly seriously. It should be quite obvious that exposing your child to such treatment or environmental are absolutely grounds for losing custody. In situations where a parent is found to exhibit violent or abusive behaviours and patterns, a child custody will then be transferred to the other parent. In some instances where both parents are found to be unfit, a child may even end up in foster care until further notice.

Neglect

A big part of parenting responsibilities includes paying attention to a child and ensuring that all their physical, mental and emotional needs are met. If the courts find that a child is being neglected in one form or another, custody may be revoked. Neglect is often something that is hard to prove, but some telling signs may include poor health, lack of hygiene and proper clothing or failure to thrive.

Dishonesty And/Or False Allegations

Most of us know that honesty is always the best policy in legal matters, but it isn’t uncommon for parents to sometimes stretch the truth amidst a custody battle. Unfortunately, if the courts find that a parent is lying, regardless of what that may be about, there is a high chance that custody will not be granted. Parents who are in the middle of a custody battle are always encouraged to tell the truth, even if that may be incredibly difficult or confronting.

Substance Abuse

If one or both parents are suffering from substance abuse, it is more than likely that the courts won’t look upon this behaviour in a favourable manner. Do note that this doesn’t mean that a parent who enjoys a drink once a week is going to lose custody, but abusing alcohol and or drugs on a regular basis (to the level of impairment) is definitely an absolute deal breaker.

Mental Health Issues

Although the courts do not stigmatise or discriminate against mental illness, the truth is that in some situations a parent’s mental illness may be something that gets in the way of them being able to care for their child. In such a situation, a mental health professional will be called in to assess the situation before making an educated suggestion to the courts. Do note that a diagnosis alone is not enough to influence parenting orders that are in the best interest of the child. Instead, it is important to demonstrate how and to what extent a parent’s mental health condition may negatively impact the child.

Interfering With Parenting Time

If parents have shared custody rights but for some reason one parent makes it incredibly difficult for the other to see his or her children, the DHHS may make a decision that results in the difficult parent losing custody. Deliberately interfering with parenting time and plans or engaging in actions that keep the other parent from a child is seen an unsavoury behaviour by the courts and may result in severe and permanent consequences for the parent at fault.

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While divorce is never a pleasant experience for all involved, there are a variety of things that parents can do in order to lessen the impact that a divorce may have on a child. We hope that this article has given you some insight into some of the situations and or behaviours that parents should avoid in order to ensure that custody is something that remains on the cards.

If you need any advice or help on family law matters, do not hesitate to reach out to us at (03) 9670 7577 today.

In order to broaden the spectrum of abuse that is recognised by law, countries across the globe (including the United Kingdom) have now criminalised coercive control, also known as “controlling behaviour”. In 2015, England and Wales marked history by becoming the first countries in the world to criminalise controlling behaviour, making it a crime that is punishable by a maximum penalty of up to five years in jail.

A decade on from this monumental policy implementation, and the United Kingdom have cultivated stronger public awareness of the dangers of controlling or coercive behaviours and the relationship between these behaviours and criminal domestic violence cases. 

And with domestic violence becoming a hot topic issue here in Australia, there’s one question left to ask: is the Australian Government looking to follow in the UK’s footsteps and officially criminalise controlling behaviours nationwide?

Our team of Family Lawyers at Oxford Partners are here to answer this question today, sharing what constitutes controlling behaviour, and other key pieces of information that all Australian families should know surrounding domestic violence and seeking legal assistance.

What Is Controlling Behaviour?

“Controlling” behaviour is referred to in legal contexts as coercive control. Coercive control is defined by a pattern of controlling and manipulative behaviours within a relationship.

In order to better understand what the blanket term controlling behaviour refers to, we have to look at situations in which coercive behaviour might be identified. Some of these situations include perpetrators instilling fear in their victims, showing signs of threatening behaviour and or intimidating someone as a method of controlling their behaviour and actions. 

In many cases, coercive control is not always physical but pervades a victim’s daily life for a prolonged period of time. Victims may end up isolated from loved ones as well as losing their independence and access to money that is necessary to survive. In line with current laws, victims of domestic abuse who showcase physical injuries, bruises or lesions are able to apply for intervention orders in order to protect themselves from their abuser. Unfortunately, it is much more difficult for a victim to secure an intervention order when the abuse they are experiencing cannot be seen by the naked eye.

12 Potential Signs of Coercive Control

Whilst you may think it’s difficult to define coercive control, global networks of family counsellors and domestic violence investigators are working tirelessly to develop frameworks for domestic violence education. One of these frameworks provided by Relationships Victoria, outline 12 potential signs of coercive control. These are as follows:

1. Isolation
2. Monitoring
3. Denying freedom or autonomy
4. Gaslighting
5. Criticism
6. Limiting access to money
7. Forcing domestic duties
8. Weaponising children against a spouse
9. Controlling your health and/or body
10. Jealousy and violence 
11. Sexual control and sexual violence
12. Threatening children or pets as a form of intimidation

If you’ve observed any of these behaviours either in your own relationship or across your friends and family, consider filing a police report with your local police, or calling 1800RESPECT on 1800 737 732, a nation-wide sexual assault and domestic family violence helpline. If you feel you’re in immediate danger, we highly advise calling Triple 000 to secure urgent police assistance.

Coercive Control Laws in Australia: State by State

Currently, coercive control has only been criminalised in three Australian states, with other state governments also planning actions to criminalise controlling behaviours in the near future.

Coercive Control Laws in Victoria – CRIMINALISED

Whilst Victoria is regarded as the first state to recognise coercive control as a criminal act, Victorian law does not explicitly criminalise coercive control, but rather addresses these behaviours through the state’s existing family violence laws (as per the Family Violence Protection Act (2008) – Section 5: Meaning of family violence). This means that victims of domestic violence in Victoria can secure legal protection against abusers via intervention orders and can take further legal action including pressing charges against abusers.

Coercive Control Laws in Queensland – CRIMINALISED

Queensland became the second state (after Victoria) in Australia to formally criminalise coercive control under the state’s Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Bill 2023. This amendment bill was officially passed in the Queensland Parliament on the 6th of March, 2024.  

The maximum penalty for coercive control in Queensland is up to 14 years imprisonment.

Coercive Control Laws in New South Wales – CRIMINALISED

Coercive control was criminalised in New South Wales as of July 1st, 2024 under the state’s Crimes Legislation Amendment (Coercive Control) Act 2022. This makes New South Wales the third and final state in Australia to criminalise coercive control to date. The maximum penalty for coercive control in New South Wales is up to seven years imprisonment. 

This recent decision to criminalise coercive behaviours in New South Wales came after the New South Wales Domestic Violence Death Review Team identified a strong correlation between reported cases of coercive control and intimate partner homicide deaths. According to their 2021 report, coercive control was recorded across 97% of domestic violence cases that ended in intimate partner homicides. This discovery prompted immediate action by NSW lawmakers.

Coercive Control Laws in South Australia – LEGISLATION UNDERWAY

In South Australia, lawmakers have committed to criminalising coercive control in response to public sentiments surrounding domestic violence. Today, South Australian lawmakers are still in the process of drafting legislation relating to the criminalisation of coercive control. It’s likely we will see coercive control be criminalised in South Australia in the very near future.

Coercive Control Laws in Tasmania – TBD

In Tasmania, coercive control is outlawed under the state’s general family violence laws, however coercive control is yet to be formally recognised or defined as a criminal act. Given evolving domestic violence risks in Australia, however, state lawmakers have agreed that action is essential. As of today, it’s unknown whether legislation is being drafted. 

Coercive Control Laws in Western Australia – LEGISLATION UNDERWAY

In Western Australia, the Cook Government has proposed amendments to the Restraining Orders Act 1997 to expand on the definition of ‘family violence’ to include specific references to coercive control. Whilst this proposed amendment is yet to be passed in Western Australian Parliament, sources say that it’s only a matter of time until the legislation is formally drafted and the amendment bill is passed.

Coercive Control Laws in the Northern Territory – TBD

In the Northern Territory, coercive control is outlawed under the state’s general family violence laws, however coercive control is yet to be formally recognised or defined as a criminal act. Given evolving domestic violence risks in Australia, however, state lawmakers have agreed that action is essential. As of today, it’s unknown whether legislation is being drafted.

Coercive Control Laws in the Australian Capital Territory – TBD

In the Australian Capital Territory, coercive control is outlawed under the state’s general family violence laws, however coercive control is yet to be formally recognised or defined as a criminal act. Given evolving domestic violence risks in Australia, however, state lawmakers have agreed that action is essential. As of today, it’s unknown whether legislation is being drafted.

Will Australia Criminalise Controlling Behaviour?

A question that is often asked is if Australia is going to follow the example of the UK and criminals’ coercive behaviour. The NSW Government’s speedy response to their domestic violence investigation is testament to the fact that Australian lawmakers are ready to act. Both Queensland and NSW’s monumental legislation followed increased advocacy after the gruesome and merciless killing of Hannah Clark and her three children and the murder of Preethi Reddy. 

However, even with these new legislations, significant structural and systemic issues must still be addressed in order for coercive control legislation to be both effective and equitable. Due to this, some domestic and family violence experts are urging caution. 

One prime example of ongoing systemic concerns is the role of racial profiling and non-western cultural considerations in domestic violence cases. Unfortunately, the over-policing and racial profiling of marginalised communities may cause confusion for law enforcement, especially when victims or perpetrators do not speak English. In order for the criminalisation of controlling behaviour to be effective, further police training will be required to better prepare law enforcement for the rollout of such an offence. The family law system will also have to ensure that a system is set up to support and protect victims of coercive control.

Controlling Behaviour in Australian Law: Know your Rights

In a nutshell, it seems that Australia is well on its way to criminalising controlling behaviour nationwide, but the full effects of state legislation are still one half of the equation. A combination of extensive education for police and sector partners who respond to family and domestic violence is necessary in order to ensure that victims are supported in the best way possible. If you need any advice on a family law matter, do not hesitate to reach out to our team of trusted Melbourne Family Lawyers at Oxford Partners today.

In order to truly understand the situation, it is important that we differentiate the Family Court of Australia VS Federal Circuit Court jurisdictions. In today’s article, we have a look at just that and how the two courts differ.

Family Court

In line with the Family Law Act 1975 (Cth), the Family Court is responsible for handling and determining complex family law matters. It has jurisdiction to handle all family law matters with the exception of divorce. Some of the matters the Family Court deals with include:

• Adoption
• Validity of Marriage
• Consent Orders
• Matters exceeding a 4 day hearing time
• International Relocation
• International Child Abduction
• Medical procedures such as gender reassignment
• Allegations of child sexual abuse
• Disputes as to whether a case should be tried in Australia

Federal Circuit Court

The Federal Circuit Court, also once known as the Federal Magistrates Court, has jurisdiction to handle a majority of Family and federal law disputes including divorce. The Federal Circuit Court was formed in order to assist the Family Court in relieving its workload and to better help families in complex or urgent situations. Due to this, the Federal Circuit Court often deals with a higher number of cases than the Family Court.

In cases where a Family Court dispute is considered less complex, cases are often referred to the Federal Circuit Court. Some of such scenarios include:

• Divorce
• Child Support / Maintenance
• Parenting Matters
• Financial Matters
• Contraventions
• Location and recovery of children
• Court Injunctions

Determining Which Court To File With

The general consensus is when in doubt, file with the Federal Circuit Court. Due to overlapping jurisdictions, it is always best practice to file in the Federal Circuit Court and allow the court to determine if your case should be transferred to the Family Court. It is not uncommon for families to sometimes file with the wrong court, and there is no need to worry if you do so as there are protocols in place for either the court or a party to transfer the matter to the relevant court.

The Merger

As mentioned at the start of this article, as of 17 February 2021, the Merger Bill that intends for the Family Court and Federal Circuit Court to be amalgamated into one single court has been passed (Federal Circuit and Family Court of Australia (FCFC). This merger intends to help bear the burden of the current system that is chronically under-resourced and over-burdened. Many critics fear that the merger will do more harm than good and may have devastating impacts on families as well as result in a loss of structural and systemic specialisation.

As of March 2021, stakeholders continue to oppose the bill due to concerns over increased costs, delay and added stress for families.

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If you have any questions about filing a case with the Federal Circuit Court of Australia and Family Court of Australia (FCFC), do not hesitate to reach out today and one of our expert team members will be able to assist with any of your questions or concerns.

There is no doubt that COVID-19 has wreaked havoc all around the world, causing businesses to shut, people to lose their incomes and of course, lockdowns that have proven to be challenging for all of us. Sadly, another victim of COVID-19 has been families all around the nation who have found themselves in unpleasant situations due to the increased levels of domestic abuse and violence that have been a direct result of COVID-19.

In order to stay on top of this very serious issue, The Family Court of Australia and the Federal Circuit Court of Australia established a dedicated court list to deal with urgent family law disputes in April 2020. The good news is that as of January 2021, this list of priorities has expanded to include many other situations and predicaments in order to ensure that the people of Australia have the chance to be heard by the courts.

What is the COVID-19 Priority List?

In 2020, as the lockdowns and other pandemic restrictions were in full effect, and an uptick in family violence cases was documented, the fast tracked COVID-19 priority list was implemented by
the Family Court & Federal Circuit Court of Australia. After being received positively during its initial run, it was decided that the priority list would continue into the new year and beyond, ensuring that those experiencing urgent family law matters can be heard and their cases can hopefully find a quicker resolution.

Do I Qualify For The COVID-19 Priority List?

Here is a list of criteria that you need to need in order to qualify for the COVID-19 priority list. As long as you meet at least one of the following points, you are eligible to send in your application as soon as possible:

• Family Violence: Examples of family violence include (but are not limited to) domestic violence or abuse, breach of a family violence order, recent child welfare agency involvement with the family related to family violence concerns.
• Suspension of Parenting Orders: Where either parenting orders or a parenting plan have been suspended by an ex parte family violence order made during the COVID-19 pandemic and a party seeks that the Court make further parenting orders.
• Vaccinations: Disputes about a minor/child receiving the COVID-19 vaccine.
• Medical Reasons: If either party cannot fulfill their parental obligations due to parent or child testing positive for COVID-19. This includes medical complications arising from contracting COVID-19 or concerns about quarantine requirements.
• Travel Arrangements: If both parents live in different states and there is difficulty for the child travelling between states due to border restrictions and closures.
• Supervised Contact: If the parenting arrangements involve supervised contact, and the contact centre is closed and both parties cannot agree on an alternative arrangement.
• Urgent Financial Issues: If either party is experiencing financial issues or loss of income due to COVID-19 and requires urgent court orders for sale/occupation of a property.
• COVID-19 Related Employment: If either party is a frontline or essential worker who is connected to COVID-19, thus impacting parental agreements or responsibilities.

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As the effects of COVID-19 become more widely understood, regulations are slowly shifting to reflect these new needs. With further changes likely to be implemented along with the shifting circumstances of those impacted, it’s important that those in need have all the information they require to effectively process and handle their situation.

If you require any assistance in making your COVID-19 Priority List application or are looking for more information, please do not hesitate to reach out to one of our lawyers today.

What Is A Family Trust?

We’re going to start with the absolute of basics, which is dissecting exactly what a family trust is. In a nutshell, a family trust is often created to benefit family members and can be made to protect assets, hold family assets, avoid challenges or arguments about a family member’s will and also for tax purposes. Family trusts are a fantastic way to organise your finances and act as a form of protection for beneficiaries who may make hasty and unplanned financial decisions if assets were controlled in their own name. 

Why Structure A Business As A Family Trust? 

In Australia, establishing a trust is one of the most common ways to run a family business. If a family or family member is looking to build a business that can be passed down from generation to generation, utilising a family trust structure is a reliable and tax-effective solution for those who are aware of the legal technicalities. 

According to Tax and Super Australia, any income that has been distributed to beneficiaries from the family business/trust is taxed at the same marginal rate that would apply if the money had been personally earned by the beneficiary. This results in significantly less tax paid overall which is why many family businesses structure themselves as a family trust. 

While all this sounds like a great idea, it is very important to pay attention to the fact that trusts can be extremely complex and result in unsavoury consequences if not coordinated properly. This is especially apparent when there is a disagreement amongst members of the family. 

Challenges in Family Business 

Let’s look at a few scenarios in which a family trust may encounter challenges or be  litigated against: 

• The Event of Divorce

Even though most people don’t want to entertain the thought of divorce or separation, it is something that is very important to take into consideration as it can have a huge impact on the family trust. The last thing anyone would want is for an ex-spouse or in-laws to take control over your family business or be on the receiving end of substantial income as a beneficiary of the trust.

A great example of such a situation would be the case of Australian mining heiress Gina Rinehart. Her public dispute with her four children was a classic example of a game of tug of war when it comes to “who gets what”. While your family business and trust may not involve billions of dollars, it is prudent to take into consideration potential disagreements that may occur with third parties in the long run.

• Unequal 

Challenges can arise if there are unequal allocations of income between beneficiaries of a discretionary trust. In situations where one party may expect a higher level of income than another, it is all too easy for mistrust, complications and arguments to ensue. This can be further strained when there is mistrust between beneficiaries and the appointer of the trust. An appointer has the power to remove a trustee and appoint a new one. While it is recommended to have an appointer who can deal with a trustee who is in breach of their obligations, in some instances the appointer can also abuse their power and remove beneficiaries even when there has been no breach of obligations. In such a situation, the trust may encounter challenges or find itself being litigated against. 

Navigating these kinds of challenges on your own, so we highly recommend consulting a family law trust expert before tackling any issues. 

80 Year Shelf Life

One might think that a family trust is an indefinite part of family security, but did you know that thanks to the “rule against perpetuities”, most trusts only have a shelf-life of 80 years? This can prove to be a challenge as after the 80 year period, the trust will be automatically distributed among beneficiaries. In many cases, this will also trigger a capital gains tax which means that beneficiaries may end up owing a significant amount of money to the federal government. 

Naturally, this can cause a great amount of anxiety to beneficiaries who don’t actually have the right to change the vesting date in the trust deed. This can result in arguments, disagreements and overall chaos amongst family members who may have not been around when the trust was initially set up and are now potentially in a situation where they owe the government a hefty amount of money. 

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We hope that this article has helped you understand some of the challenges that may arise with discretionary trusts or businesses set up under a family trust. However, if you need any assistance or are looking to set up your own family trust, we highly recommend contacting us to enlist the help of one of our experienced lawyers who will be able to guide you through the entire process.