Family lawyer providing Q & A on the 2GB Chris Smith Afternoon Show discussing family violence – 24 July 2018
Tuesday, 24 July 2018
CS – Chris Smith /CP –Catherine Parks /C1,2,3, etc – Callers
CS Yes at the beginning of this month – we are all so shocked to the core by the horrific story of violence in the north west of Sydney. A father, John Edwards had murdered his 2 teenage children in their West Pennant Hills home before going home and committing suicide. Now we know John and his estranged wife had been engaged in a lengthy and very bitter custody battle and that one of his other ex-wife’s had taken out a temporary AVO against him previously, but what’s puzzled everyone – from the NSW Police Commissioner right through to family law experts is how he was able to get his hands on a gun. Why red flags weren’t raised earlier? When his children had expressed to friends and family that they were fearful of their father. Well the NSW Police Minister Troy Grant and Police Commissioner Mick Fuller are calling on the Federal Government to bring in urgent reforms to the Family Law Act to ensure the safety of children who are at risk because there are still big loopholes in putting them at risk we are hearing and that’s what we’ll talk about among other things in today’s Legal Matters segment, brought to you by Turner Freeman Lawyers. That telephone number if you’ve got any questions on the subject of family law, 131 873 but the lesson in these segments is always that you’ve got to get in quick. 131 873 to jump to front of the queue and thanks to Turner Freeman Lawyers and their legal matters segment, I’ve got a $100 Westfield voucher to give away once again to one of our listeners. A $100 Westfield voucher will go to one of our listeners in the next 20 minutes. Turner Freeman Lawyers provide a range of specialised legal services including compensation and negligence law, asbestos litigation, superannuation and disability claims, family and employment law, wills and estates and property law. Their NSW offices you’ll find in the Sydney CBD, Parramatta, Campbelltown, Penrith, Newcastle and Wollongong and their Queensland offices in Brisbane, Logan, North Lakes, Ipswich, Toowoomba, Gold Coast, Sunshine Coast and Cairns. Well Catherine Parks is a Senior Associate based in Turner Freeman’s Parramatta office and Catherine specialises in family law and child protection. She’s happy to take your calls right now. 131 873 – some free legal advice. Catherine. Thank you very much for your time this afternoon.
CP Thank you.
CS Now, what exactly happened in the case of John Edwards do you think that we should be concerned about apart from obviously the death of two teenagers.
CP Of course. Look I think that one of the things that has been highlighted by this case is the fact that when there are abuse allegations made in any family law proceedings, Family and Community Services in the relevant states are notified through a document called the “Notice of Risk”. It seems there is a big deficit in the system in that NSW police or police in whichever jurisdiction these allegations are made are not notified if there are allegations of violence or domestic violence of any sort.
CS So if it’s a Notice of Risk, it’s a Notice of Risk to who?
CP Well the Notice of Risk at the moment is going to the relevant Child Welfare Authority. Whether this needs to be, and it seems that it should, expanded so that police in various jurisdictions have access to information. It is, I think the issue that’s being raised by the Attorney General – or at least, sorry Mr Grant.
CS So basically there is a system whereby a Notice of Risk is issued by it’s who it’s issued to.
CP That’s right.
CS That needs to be refined and maybe police in the local area where the notice has been issued need to be aware of it all. I wonder whether that would have changed in the John Edwards case. If for instance the local police had have known of a Notice of Risk, I wonder what would have changed in the John Edwards case.
CP It’s hard to know isn’t it? I mean one of the problems that Family and Community Services have on my understanding with the Notice of Risk is that so many allegations are made and trying to trawl through those that are real, those that needed to be acted upon ,those that are perhaps less urgent is in itself a huge problem. So whether police then would have the resources available to work out which persons need further protection through AVOs or other protective mechanisms, it’s difficult to know what the result would be.
CS His estranged wife had an AVO out of him I’m sure.
CP She didn’t. So…..
CS She didn’t?
CP So he had a previous wife and she did have an AVO out on …….
CS The previous wife had the AVO?
CP That’s right and it was nearly 10 years old and that’s my understanding of why he was able to obtain firearms because the AVO was so far behind in time. The current wife had not and can I say it is my experience that a lot of women in the Family Court’s sphere don’t take out AVOs because they feel that it might inflame the situation. It’s sometimes a difficult process, particularly……
CS They have to be served right?
CP They have to be served and then there is obviously a Magistrate has to determine that the AVO should be made final. Police get a lot of complaints in a domestic violence sphere and I think that there is a bit of passing between police and the Family Court who should be dealing with the issue. But it’s not a simple process to get an AVO, it can take many months, it obviously involves litigation and if police don’t support you in applying for an AVO, then you have to privately undertake that process which usually involves paying a lawyer and the costs associated with that.
CS And therefore there’s another reason why it doesn’t happen.
CP That’s right.
CS 16 to 2 pm is the time. John in Wollongong. You’ve got a question for Catherine. Go right ahead.
Caller 1 – John
John Oh G’day Smithy. G’day Catherine.
John Yes. I’m calling for a friend of mine where the couple have broken up in the marriage and the father’s moved out about 8 months ago and he is now threatening that he is sort of just going to move back in. Just – there’s no Orders or anything in place. I was just wondering what’s the best advice to give her?
CP Look, the difficulty is that if the property is in joint names, there’s nothing at Law that stops either party living in the house, save for a Judge making an Order for exclusive occupancy. So exclusive occupancy effectively means that someone is prohibited from living in their own house and you can imagine that Judges certainly do do that but not if it’s just simply a case of one party being uncomfortable with the other party. It’s usually in cases where there is fairly severe domestic violence or good reasons why one party should live in the house to the exclusion of the other.
CS Has it been evidenced previous to this John of that?
John There’s quite a lot of possible moments when there’s no AVO’s or anything, you know evidence of any violence or anything like that, but would certainly not going to be a good thing for the kids for both of the parents to reside there.
CP It’s not. But that’s not enough because the difficulty is, is where does the other party live if one has exclusive occupancy’s house? It might be that the property has to be sold and they need to divide assets or find some final resolution but it really is only in situations where it’s intolerable that someone will be excluded from the house all together.
CS Alright John. Thank you very much for your call. Hopefully that’s helpful. Phil in Orange. Go ahead Phil
Caller 2 – Phil
Phil Hey Smithy – what’s happening?
CS Ah lots, including you.
Phil Hahah, cool. My question is that my partner left about roughly 2 years ago. I have custody of two young boys, 4 and 7. The current situation is that they travel approximately – it’s approximately 4 hour drive every second weekend. So they will drive down on Friday. I’ll drive them down on Friday and then on the Sunday they return. I was just wondering what distance or timeframe is it too much for that to be – for the children to I guess have to do that every………..
CS Oh – I would have thought – Catherine this is the subject of much discussion in the Family Court.
CP It is. It is. But I do think you’d have to be cognisant of the primary concern of the Family Court is obviously safety of children but secondly the right of children to have a relationship with both parents. So there’s a balance between ensuring that they see their mother regularly and kids who are 4 and 7 certainly need to see both parents on a regular basis and how much discomfort it’s causing for the children, not so much you or your former partner but the children and it’s just sort of a working out what’s best for them. I would think that while it’s not very comfortable, the preference would be that they see their mother regularly and….. unless you could show that there was significant detriment to the children, such as they were doing poorly in school or were suffering in some way, most Judges would suggest that that relationship with their mum should be the primary concern.
CS What if they moved interstate and this is not part of any kind of Order of the Court?
CP Look there’s no obligation if there’s no Order. It has to just – it’s just by agreement but that’s right, moving interstate becomes a huge problem. Of course things change as kids get older. So a 13 year old doesn’t need to see a parent quite as regularly because they can have face time or text or telephone communication and keep a relationship up just by seeing them on school holidays. But very young children psychology will tell us need very regular time with both parents.
CS Okay – Catherine. Don’t move. We’ll go to our callers straight after a quick break from Turner Freeman, Catherine Parks and we are talking Family Law this afternoon. We are here courtesy of Turner Freeman, I’ve got that $100 Westfield voucher to give away as well. Catherine Parks from Turner Freeman ready to take your calls. 131 873.
Caller 3 – Bob
Bob G’day mate.
Bob Mate – I’ve just a bit of a family dispute and a family member moved out and they’ve left a heap of gear there. Like trailers and pretty much half their belongings and we’ve sent them messages and emails and everything and had no response and just wondering how do we get rid of it?
CP Ah, it’s probably not my exact area Bob I’m afraid, but I think the answer is that if their gear is unclaimed that you have a right to remove it. But perhaps if Chris you could give me Bob’s details and I can find out a little bit more about that area from someone who is a bit more specialised.
CS Yes – Let’s do that. Bob, I’ll put you through to Hansel and we’ll get your details and get someone within Turner Freeman who could help you a little bit better with that kind of special question. Janet. Hi.
Caller 4 – Janet
Janet Hi Chris. Hi Catherine.
Janet My daughter’s ex-boyfriend showed no interest in their bub when she – and she had a bub…. He’s only seen her three times, which is only his doing, not her doing. We just – we decided then because of …. he has no interest in the bub that we didn’t put him on the Birth Certificate because we don’t want child support or anything, we’ll look after the baby on our own, can he change that at any time? Can he have himself put on the Birth Certificate and may claim say 5 years down the track if he decides he wants to be a father?
CP He can Janet. And so it would probably be through an application through the Family Court. He can ask for his name to be on the Birth Certificate and he can ask to have time with the baby however,………
Janet I think he has time now, he just doesn’t do it.
CP Yes…. so that’s right.. I mean effectively the Court is always going to consider what are the best interests for the child. And so it can’t be imagined that even if the child were 5 years old that he would suddenly start having every second weekend and half the school holidays or anything like that. He would have to prove that he had an interest in the child, that it was in the child’s best interest to spend regular time with him and even on the question of the Birth Certificate, it would have to be proven that it is in the child’s best interest for that to occur.
Janet Oh okay. Oh well that’s good – even the grandparents have shown no interest – they have only seen her once in three months and they have no interest at all. So….. you know what, we don’t need anything from you we’ll look after our own….
CP No… and maybe it is something that needs to be reviewed on a periodic basis is obviously if the child can have a father who has some interest in their life, even if it comes a little bit later, if he proved himself and he could be consistent and he could ensure that he was a benefit to the child, then it could be a good thing for all people but at the moment it doesn’t sound like it’s going to happen anyway.
CS Yeah that’s good advice. Janet. I’ve got a $100 Westfield voucher for you.
Janet Thank you Chris.
CS Alright – stay right there and we’ll get it to you. Fantastic. Courtesy of Turner Freeman – the $100 Westfield voucher. Catherine, that’s all the time I’ve got for today but thank you very much for making time for us.
CP Thank you very much.
CS Good on you. Catherine Parks. Senior Associate based in Turner Freeman’s Parramatta office.