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Derek Legal Blog

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Derek Legal Blog

Number of blogs returned: 1 to 5 records of 36

Domestic Violence

Domestic violence is a scourge in our society. When one thinks of domestic violence one thinks of something physical, but the definition of domestic violence contained in the Domestic & Family Violence Protection Act 2012 is very wide.

It includes behaviour that is physically or sexually abusive, is emotionally or psychologically abusive, is economically abusive, is threatening, is cohesive or in any other way controls or dominates someone and causes that person to fear for that person’s safety or well being or that of someone else.

Some examples of behaviour that constitute domestic violence are coercing a person to engage in sexual activity, depriving a person of a person’s liberty or threatening to do so, threating to commit suicide or self-harm so as to torment, intimidate or frighten the person to whom the behaviour is directed and the list goes on.

If you are a victim of domestic violence you can bring a domestic violence action against the person in the Magistrates Court using a solicitor, or you can make a complaint, so police can prosecute on your behalf.

Contact Rita Derek of this firm for further advice.

Posted in: Derek Legal Blog at 12 December 18

Equal Shared Parental Responsibility

Cameron & Brook [2018] FamCAFC 175 is an interesting case.

There the parties had entered into Consent Orders in 2015, which provided for parental responsibility being equally shared between them. The Orders also provided for a dispute resolution assistant to resolve any dispute regarding parenting. This was to be done with the assistance of a Family Dispute Resolution Practitioner prior to commencing proceedings in a Court.

One of the children was aged 14 and attended a school that participated in an overseas student exchange program. If the student was chosen, the student would attend a school overseas for a period of between four and eight weeks. The mother wished to authorise the child’s participation in the program, but the father did not asserting that the child was insufficiently mature to do so.

The mother applied to the Federal Circuit Court for an Order that the child be permitted to participate in the program. This did not mean that she would in fact be selected for the program, but if she was, she would then be required to have schooling overseas for a period of time.

The Judge’s at first instant decided the situation was analogist to Rice v Asplund [1978] FMCA 84 where a material change of circumstances is necessary before an Order can be varied. He held that only where it was such a change of circumstances that the Court ought to intervene, or the parents or the child didn’t have capacity, or where the situation is unworkable that an existence of unacceptable risk to the child is apparent, had to be present before the Order could be made. In the event he did not make the Order.

The Full Court was not persuaded that the situation was analogist to Rice v Asplund saying, “there is here no attempt to reagitate issues previously agitated or issues addressed in civil by the Consent Orders that were made three years previously. The instant application involves a new question relating to an aspect of parental responsibility, that was not at all in the contemplations of the parties at the time of the original Consent Order”. The Court decided that there was jurisdiction and power to make the Orders sought and ordered, “Notwithstanding equal shared parental responsibility, the mother shall have sole authority and responsibility for authorising the participation of the child in the process of the selection for inclusion in the exchange program at the school”.

Contact Rita Derek of this firm for further advice.

Posted in: Derek Legal Blog at 26 November 18

Fixed Costs – Initial Appointment

Marriage breakdown is a stressful time for the parties. It is important to get legal advice early, as that is the best way of relieving stress and gives you the best chance of an inexpensive and speedy resolution to matters that must be dealt with when a marriage breaks down namely parenting matters and the division of the matrimonial property.

Rita Derek has 37 years’ experience in Family Law and has helped thousands of clients resolve their family law issues. She offers a fixed fee of $275.00 inclusive of GST for the initial consultation of your family law matter. If you have a family law issue, it is important to act quickly and contact Rita on (07) 5591 5900 or ritaderek@dereklegal.com.au.

Posted in: Derek Legal Blog at 24 October 18

Domestic Violence

Unfortunately, there is domestic violence in our society.

Apart from threatening and abusive behaviour, the following is domestic violence as set out in the explanation of Domestic Violence Order.

Domestic violence includes the following behaviour;

(a) causing personal injury to a person or threatening to do so;

(b) coercing a person to engage in sexual activity or attempting to do so;

(c) damaging a person’s property or threatening to do so;

(d) depriving a person of the person’s liberty or threatening to do so;

(e) threatening a person with the death or injury of the person, a child of the person, or someone else;

(f) threatening to commit suicide or self-harm so as to torment, intimidate or frighten the person to whom the behaviour is directed;

(g) causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the person to whom the behaviour is directed, so as to control, dominate or coerce the person;

(h) unauthorised surveillance of a person;

(i) unlawfully stalking a person.

Unauthorised surveillance, of a person, means the unreasonable monitoring or tracking of the person’s movements, activities or interpersonal associations without the person’s consent, including, for example, by using technology.

Examples of surveillance by using technology include:

- reading a person’s SMS messages;
- monitoring a person’s email account or internet browser history;
- monitoring a person’s account with a social networking internet site;
- using a GPS device to track a person’s movements;

- checking the recorded history in a person’s GPS device.

Contact Rita Derek of this firm for further advice.

Posted in: Derek Legal Blog at 19 September 18

What is a Subpoena?

A Subpoena is a document which is served on a person or a corporation requiring the recipient to attend Court and give evidence or produce documents, or in the case of an actual person both. When a Subpoena is served it must be accompanied by conduct money, which is sufficient for the return travel between the place of residence or employment and the Court. In the case of a Subpoena that is served interstate, the conduct money would include the cost of air travel.

A person or corporation served with a Subpoena has a right to apply to the Court to set aside all of it or part of it. A Subpoena may be set aside if it’s found to be an abusive process. If it is not being issued for some legitimate forensic purpose, it will be set aside.

Factors that may support finding it an abusive process are relevance, that Subpoena is too wide or oppressive that has been issued for a collateral purpose.

A person or corporation does not have to comply with Subpoena produced documents if they are not in the possession of custody or control of that person or the corporation. A document that is privileged must be produced to the Court, so the Court may rule upon the question of privilege.

Apart from conduct money, the person who is served with a Subpoena may make application for an Order for the payment of his or her loss or expenses incurred in complying with the Subpoena.

Contact Rita Derek of this firm for further advice.

Posted in: Derek Legal Blog at 11 September 18

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