Tackling Victorian Family Violence

Wow. Tackling family violence in Victoria. It's a huge topic. A vexed topic. And thankfully it isn't quite the topic of this post.

My work in community legal centres and legal aid has taken me to three different places in Victoria where I have appeared in family violence matters in three different magistrates courts - Werribee, Geelong and now Morwell in the Latrobe Valley.

I'm more familiar with procedures in NSW with Apprehended Violence Orders (AVO) which were once dealt with under Part XVA of the Crimes Act. Victoria has a scheme for granting civil orders protecting victims of family violence which is governed by the Family Violence Protection Act 2008 (FVPA) which was introduced in December 2008. This Act provides for police issuing safety notices and applying to the Court for intervention orders (often referred to as 'IVO's).

Police can also issue criminal charges against the perpetrator where there's enough evidence to base a charge of assault. Criminal charges are made in addition to, not instead of, a civil IVO.

A victim can obtain a final IVO for a defined or indefinite period of time. This can be granted on the first occasion when the matter is in court, and will be granted:

* if the defendant/perpetrator does not show up to court in which case it will be dealt with in their absence. Usually the applicant/victim will be put in the witness box and asked about incidents of violence and the nature of fears to the victim's safety as well as the safety of any children and property of the victim.

* if the defendant/perpetrator does show up and agrees to the making of orders, often without admitting any of the allegations made by the applicant/victim.

If no agreement is reached on the first occasion the matter is in Court, the parties can agree to have the matter delayed ('adjourned') to a future date to allow them more time to negotiate.

Social Security is no piece of cake

“Dole bludger” is a phrase we often hear. So is “Centrelink mum”. They are phrases used to stigmatise people requiring income support (or who are trying to access such support) through the Centrelink system.

Popular mythology tells us that it is so damned easy to dip into the taxpayers’ largesse. Just go to the Centrelink office, fill out a form and viola! Start receiving more money than us poor battlers could dream of.

If only it was that easy. But try reading the Social Security Act 1991 (Cth). Better still, get your solicitor to try reading the Act and make sense of it.

I’m looking at a matter at the moment involving Section 1237AAD. Just think about that. Imagine the average punter trying to locate that even with the benefit online legislation navigation tools. Just imagine the average punter trying to read it all and understand it.


And you thought managing tax was complex.


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QLD: Some thoughts on Murgon

Murgon is a one-horse town located somewhere between Brisbane and Cape York. No, that isn’t a lie. Okay, it isn’t very helpful.

Here’s a better description.

Murgon is located in the South Burnett Shire. It is inland from Gympie, which is the gun capital of Queensland. Murgon is around 100 km from Gympie. It is also around 40 km from Kingaroy, the peanut capital of Australia and home to a huge number of orthodox and not terribly orthodox Christian denominations.

Speaking of which, Murgon is the home of perhaps the most unorthodox denomination in the southern hemisphere. There’s a bloke from the nearby town of Tingoora who meets with his disciples at the Murgon hall. His message is quite simple really – that he is Jesus Christ. He has a girlfriend with whom he is living in ... er ... sin. Her name’s Mary Magdalene. At least that’s what it is now that she’s changed it.

But for my purposes, Murgon’s most important feature was that it was my home for some four months. It was also my place of work.

In the short time I was there, I grew quite fond of the place. I also grew fond of the people I worked with. Hopefully that fondness was reciprocated.

I worked in what was regarded as the toughest and least desirable location for a solicitor seeking employment in the QLD legal profession. This assessment was made by just about every other QLD lawyer I spoke to. Here’s a sample of the typical and more polite reactions:

“You poor arsehole.”

“Fuck, they sent you there?”

“Mate, they’re all fucking deadbeats over in Murgon. And the clients from there are fucking worse.”

“Murgon, eh? Fucking hole of a place.”

“I wouldn’t last there 4 months.”

Well I did last there 4 months. The people were lovely. The clients were interesting. And I enjoyed the experience immensely.

More later.

Words © 2011 Irfan Yusuf

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QLD Victims of Crime

Queensland has a (relatively) new scheme for compensating victims of crime. Unless corresponding schemes in Victoria and NSW, the QLD scheme isn’t so much compensation as reimbursement. To quote from their official guide:

The Queensland Government provides financial assistance to eligible victims of crime to pay for or reimburse the costs of goods and services you need as a victim to recover from the effects of a violent crime.

If you were the victim of an act of violence that happened on or after 1 December 2009, you can obtain your financial assistance without first having to go to court. If the act of violence happened before 1 December 2009, you will not be able to bring a claim until:

•The offender is convicted in the District/Supreme Court; or
•You’re notified that the offender cannot be convicted.


Violent Crime

The “violent crime” has to have occurred in QLD and must have resulted in your suffering physical or psychological injury.

A violent crime is an act of violence that causes injury to at least one person. It includes:

•Assault
•Sexual assault/rape
•Grievous bodily harm
•Domestic/family violence
•Kidnapping/deprivation of liberty
•Stalking
•Murder/manslaughter
•Death caused by dangerous driving.


Injury

This basically refers to any of the following:

•Disease
•Intellectual impairment
•Mental illness/disorder
•Bodily harm
•Adverse impacts arising from sexual assault
•A combination of these injuries, including resulting pregnancy.



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The Best Interests of the Child

Australian family law is governed by federal legislation called the Family Law Act, enacted in 1975. This legislation sets out how children of a relationship are to be looked after by their parents and how disputes are to be resolved should the relationship break up.

The basic rule is that any court making orders under the FLA must ensure that the best interests of the child are met. Section 60CA states that:

... a court must regard the best interests of the child as the paramount consideration.

The Objects

Section 60B(1) sets out how the objects of FLA dealing with the best interests of the child are to be met. Four objects are set out:

•Ensuring children can benefit from both parents having a meaningful involvement in their lives;

•Protecting children from physical or psychological harm, from abuse, neglect or family violence;

•Making sure children get adequate/proper parenting to help them achieve full potential; and

•Making sure parents meet duties and responsibilities re care welfare and development of children.


The Principles

Section 60B(2) sets out five principles underlying these objects. These principles apply unless where they are contrary to the child's best interests. The principles are:

•Children have the right to know and be cared for by both parents. This applies regardless of whether parents are married, separated, have never married and have never lived together.

•Children have the right to spend time with and communicate with both parents on a regular basis. Children also have this right when it comes to other people significant to their care and welfare e.g. grandparents and other relatives.

•Parents have joint duties regarding care, welfare and development of children.

•Parents should agree on their children’s future parenting.

•Children have the right to enjoy their culture, including with people who share that culture.


Special Consideration for ATSI Children

When it comes to culture, Aboriginal and Torres Strait Islander children hace special rights which recognise their unique cultures. Section 60B(3) states that an ATSI child's right to enjoy his/her ATSI culture includes the right to maintain a connection with that culture. It also includes the right to have any necessary support and encouragement to explore and develope a positive appreciation of that culture.

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CRIKEY: Those who judge judges, lawyers need a lesson in depression

Here’s a great way to improve the quality of lawyers in Australia. Ensure that lawyers who want to renew their licences after five years of practice are made to sit through a rigorous psychological and psychiatric examination. They should also provide copies of all medical records.

Why? Lawyers are officers of the court. Some go on to become magistrates and judges. We need our legal profession to consist solely of stable, sane and depression-free individuals. We also need world peace, an end to all poverty and a Prime Minister worth voting for.

Two NSW magistrates have had to front up before the Parliament and explain to a bunch of politicians why their mental illness should not render them unfit to perform their duties. One wonders how many of the honourable members listening have (or should have) appointments with psychiatrists pencilled in their diaries.

This is the same Parliament whose numbers once included an opposition leader whose unfortunate gaffe led to a suicide attempt and admission to a psychiatric clinic. This traumatic roller-coaster ride has not stopped John Brogden from becoming chief executive of the Financial Services Council.

Brogden’s depression, a condition he shares with one in five of his countrymen and women, is not deemed by the financial services industry to render him incapacitated to do his job of overseeing the investment of about $1.4 trillion through superannuation, funds management and life insurance organisations. Yet for some reason, the Judicial Commission in its wisdom has decided that magistrate Brian Maloney is incapacitated after being diagnosed with bipolar II, an illness known to be very treatable with standard psychopharmacological treatments.

With respect, those who judge our judges and lawyers should understand that law is one of those professions very conducive to depression in its practitioners. Perhaps a good way to describe a lawyer’s job is to always assume the worst scenarios are going to happen and then protect his or her client from each of them. The best lawyers are almost always the ultimate pessimists. Too much positive thinking is dangerous in the legal game.

Life is especially tough for many small operators whose sources of work are drying out or legislated out of existence. These are often the lawyers prepared to do low-paying legal aid work for average punters. These are the lawyers who would struggle to pay their own hourly rate let alone the fees of the average private psychiatrist.

As magistrate Maloney told the NSW Parliament: “Interestingly, researchers have found that 40% of law students, 20% of barristers and 33% of solicitors have a mental illness. It is from this demographic that judicial officers are drawn. In the past 12 months three barristers have sadly taken their own lives. In recent years, two judges.”

So much of our criminal and civil justice system is carried out by the magistrates courts — simple traffic matters, drink-driving offences, family violence orders, debts and much more. A huge number of unrepresented persons, punters who can’t afford a lawyer and whose matter doesn’t come within legal aid guidelines, are seen by magistrates who generally bend over backwards to ensure no party is unfairly dealt with.

We need magistrates who have empathy and genuine life experience. That includes the experience of the large number of people suffering from mental illnesses who are disproportionately represented in our prisons, as parent-litigants in child protection cases and in so much of the business that comes before magistrates courts.

You’d think having a magistrate on the bench who is successfully managing mental illness would be an asset to the court. In short, if a magistrate is readily deemed incapacitated because of depression or bipolar disorder, the entire court system is potentially put at risk. And that’s enough to make anyone sick.

Words © 2011 Irfan Yusuf



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On Glorious Mackay ...

Check out this awesome website. And check out this amazing scene.

Some of you may find it hard to imagine how anyone could resist working in such an environment. And just thinking about it makes me wonder why the hell I left the place.

One of the fringe benefits of working in the community legal sector is that you actually get the time to walk outside your office, indeed to drive away from your office, at around 5:30pm in time to enjoy a place like this. Better still, you feel good about yourself because you've actually helped people who simply cannot afford to go anywhere else.

In October 2009, after I'd finished writing and publishing and promoting my book, I had made a conscious decision not to go back to private practice in the big smoke. Community sector law proved a little less generous on my bank balance, but the benefits as far as lifestyle have been superb. It has also allowed me to see and live in parts of Australia I never expected to visit even on holidays.

Surviving on $65,000 per year for putting your unrestricted practising certificate on the line may not sound like a terribly good return on a 6 year study and decade work investment. Still, if it means sitting down on a hilltop cafe overlooking this ...

... whilst avoiding the inevitable second divorce and/or impending nervous breakdown of many a partner of a metropolitan law firm, then surely the pay cut is worth it.

Stupid me stayed in this gorgeous place only 10 months. At the time I regarded Mackay as a cultural wasteland, a veritable Boganville. And yes, in some ways it truly was.

But one of the great things about Mackay was its proximity to Airlie Beach and the Whitsundays, where the view was often even more spectacular.

It was a truly pleasurable 10 months. Among the areas of QLD law I managed to discover were:

a. A mega-tribunal that dealt with just about every jurisdiction under the planet. And calling itself QCAT. Pretty funky name.

b. The horrors of the QLD child protection system, one where sadly indigenous kids are over represented.

c. The rather scary prospect of being slapped with a "peace and good behaviour order" if I wasn't nice to my neighbours.

d. The amazing work done by an army of underpaid community and social workers, disability advocates and legal aid lawyers (though they got paid much more than we at the community legal centre did).

This isn't the kind of law I even knew existed in the days when I was busy working ridiculous hours defending employers who refused to dismiss their workers properly and/or pay award entitlements.

Words & Photos © 2011 Irfan Yusuf

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