Author: Strategic Lawyers

The purpose of this blog post is to explain your legal rights if your partner is preventing you from seeing your children.

In family law it is in fact very common to see one parent unlawfully withholding access to children from another.

It Is in the Best Interests of Your Child to Maintain a Relationship with You

One of the most important parts of the Family Law Act 1975 (Cth) is Section 60CC(2)(C) because this section states that when a court is trying to determine what is in a child’s best interest it must consider:

“The benefit to the child of having a meaningful relationship with both of the child’s parents.”

If you’ve been denied access to your child, then it is likely your ex-partner is not acting in the kid’s best interests.

Call 13 14 LAW or fill out a webform to speak to one of our Townsville Family Lawyers now.

What You Can Do if You’re Denied Access to Your Child

If your ex-partner is preventing you from seeing your child, one of the most legally potent strategies available is to go to the Family Court and apply for a recovery order.

In many circumstances the courts will hear your application on an urgent basis – because there is a risk of psychological harm to your child as a result of being cut-off from contact with you.

This means the matter could be heard and resolved within weeks.

In cases where your ex-partner refuses to hand over the child the Australian Federal Police or other local authorities assist in getting them back.

Applications for recovery orders are more likely to succeed if they are filed shortly after you are first denied access to your child.

If you have not seen your child for some time you still have legal options and these are discussed below.

Call 13 14 LAW or fill out a webform to talk to our lawyers about a child recovery order now.

The Best Step if you Haven’t Seen Your Child for a Long Time

In many cases parents separate without putting any binding legal agreements in place.

And it is often in circumstances like these where we find a person has been denied access to their child for quite a long period of time.

If this is your case it is open to you to get lawyers to act on your behalf to negotiate parenting orders which will mean you see you child.

If your ex-partner refuses to negotiate then we can go directly to the Family Court on your behalf.

To get one of our Townsville Family Lawyers working on your parenting orders call 13 14 LAW or fill out a webform.

A Message from Our Key Family Lawyer Robert Ballais

Helping parents regain access to their children is one of the most meaningful things I do as a family lawyer.

Having acted in a number of urgent recovery applications I can honestly say there are few better moments than when a parent calls you to say thank you – as they’re holding their child for the first time in months.

I personally believe that in the vast majority of cases it is a good thing for children to see both their parents on a regular basis and that’s reflected in the law.

If you are missing your child because your partner is withholding access, please, get in touch for a free case appraisal by calling 13 14 LAW, or filling out a webform.

The Federal Government’s proposed changes to the Migration Act 1958 (Cth) are no doubt popular with the segment of the Australian public who are keen to see foreign citizens who have been convicted of criminal offences have their visas revoked.

However, there is a hidden truth behind these changes which it is important for the public at large and particularly people facing deportation to understand.

The proposed new laws set out a number of new offences that will automatically lead to their visa being cancelled by the Department of Immigration when a person is convicted of them.

The offences, that are proposed to be added to the list include violent crimes like murder, manslaughter, kidnapping, assault, aggravated burglary and the threat of violence.

Call 13 14 LAW or fill out a webform to talk to one of our lawyers now.

Further non-consensual sexual offences such as sexual assault, the sharing of an intimate image and the commission of an act of indecency, would also result in mandatory visa cancellation. 

Additionally, a person who breaches a court issued protection order – such as an Apprehended Violence Order, or a Domestic Violence Order – would see their visa cancelled after conviction.

Finally, the proposed laws take aim at members of gangs such as outlaw motorcycle gangs and other criminal groups and state if people are involved in the commission of an offence their visa will be revoked.

This shifts the legal position from where it is now in two ways.

Firstly, under the current legislation a person has to have served more than 12 months in jail for their visa to be automatically cancelled.

And secondly the only offences that are currently specifically identified in the legislation are: genocide, war crimes, crimes involving torture or slavery, crimes against humanity, or, crimes of international concern.

However, while the Morrison Government is eager to present itself as being tough on crime, its announcements around these issues fail to address the key fact that having your visa cancelled does not necessarily mean you will be deported.

Read other posts from our blog:

What Gets Our Lawyers Out of Bed

Can you Legally Kill Someone Who’s Broken Into Your Home?

Registered Migration Agent and Immigration Lawyer at Strategic Lawyers, Steve Hodgson explained that while the Department of Immigration may cancel a person’s visa that decision is still very much open to appeal.

“Whatever your political beliefs on deporting foreign citizens who have committed crimes are, it is worth knowing that when the government cancels a person’s visa you can fight this,” Mr Hodgson said.

“Anyone whose visa has been cancelled is able to retain lawyers to appeal that decision, in the first instance to the Department of Immigration and if unsuccessful there, to the Administrative Appeals Tribunal.”

“On appeal a number of factors are weighed when considering whether a person should be deported, including the likelihood they will re-offend, the extent to which they contribute to Australian society, their family connections to Australia and the extent to which deporting them to their country of origin will expose them to a risk of harm.”

“While someone convicted of murder would have a tough time having a revocation order overturned, a person convicted of a low-level assault, or, sharing an intimate image without consent would likely be able to present a better case to the Department of Immigration.”

“Regardless of whether these laws are passed these matters are highly time-sensitive and as such, I would urge anyone who has been given notice that their visa will be revoked on character grounds to get in touch with lawyers as soon as possible.”

Here at Strategic we have recently began profiling our staff and putting together short pieces explaining what motivates them to do their jobs.

The first two lawyers we profiled were our key family lawyer Robert Ballais and our criminal lawyer Anthony Sturgeon.

Over the coming weeks we will be profiling our other legal professionals and you can see these as they come out on our Facebook page.

Without further delay here is what Rob and Anthony respectively had to say about their motivations for working in their areas of law:

Working in Family Law is not easy.

The hours are long, the work difficult and taxing, the ethics complicated and testing.

However, there are moments that make it all worth it.

When the media shows you photos of the people I defend you just see someone shielding their face from the cameras.

If you read the story or watch the news report, you usually only hear about what they’re accused of doing.

And in the comments on social-media, almost without fail, you see people calling for harsher sentences – sometimes even the death penalty.

You’re asleep in your bed, your family is happily tucked away, then you hear footsteps.

At first you think it’s your pet.

But then you hear doors being opened, cupboards being rummaged through.

And at that moment the sickening realisation dawns on you, someone has broken into your home.

It’s an extreme situation but one which a relatively large number of people have confronted.

For some people the first instinct may be to call the police for help, others may choose to hide and some will choose to arm themselves with whatever comes to hand and confront the intruder.

Should you ever be in this situation this is what the law has to say about it.

Read other posts from our blog:

North Queensland Man Beats DUI Charge with Surprising Defence

How Child Support is Really Calculated

The Right to Property Against the Right to Life

One way to answer questions about a person’s right to defend their property against an intruder is to use the approach of criminal lawyer Kenneth Lambeth.

Lambeth considers the question as a competition between two rights – a person’s right to own property and the intruder’s right to life.

He argues that: “unlike life property has never been a fundamental right.”

This answers the first question, in Australia, a person can not kill someone, or attempt to kill someone simply because their property is threatened.

In Queensland this legal fact is also articulated in the Criminal Code 1899 (Qld) which states a person can not lawfully cause grievous bodily harm in the process of defending their property.

Call 13 14 LAW or fill out a webform and book an appointment with one of our lawyers.

The Right to Defend Yourself and Your Family

Obviously, the thing most people are worried about if an intruder enters their home is not their possessions but their personal safety and that of their loved ones.

To this extent the law does give people the right to use reasonable force to defend themselves and their family.

Exactly what reasonable force means has been set out in several cases and is articulated in the Criminal Code 1899 (Qld).

The law in Queensland states if someone is the victim of an unlawful, unprovoked assault and the assault is so serious that they reasonably believe their life is in danger – they are able to use force to defend themselves.

This is the case even if the force used results in death, or grievous bodily harm.

Further, the Criminal Code 1899 (Qld) also states it is lawful for you to use that same degree of force to defend a second person – for example your family member – from the same threat.

But This is Not the End of the Story

While the two points above are a clear statement of the law as it stands there are historical cases where people have been found not guilty of murder after killing people who entered their property.

For example, in 1957 the Victorian Supreme Court heard a case where a chicken farmer shot a man who had broken into his sheds to steal three hens.

The farmer’s family had been plagued by break-ins, with thieves targeting their birds.

A series of bells had been set up to alert the family to the presence of someone in their sheds and a loaded .22 calibre rifle, with 15 shots in it, was kept in the house.

When he heard the bells ringing the farmer made his way down to the chicken sheds and saw a man running away with his fowls.

From a large distance, he lined the thief up in his sights and fired five bullets – not all found their mark – but the man was killed.

At trial the farmer was found not guilty of murder but guilty of manslaughter.

Juries don’t produce written judgments on what influenced their decision so it’s hard to see exactly what their reasoning was.

However, the decision was later appealed to the Full Victorian Supreme Court.

And when the panel of judges considered the case they upheld the juries verdict – a controversial decision which has since been widely criticised.

Thus, while the law may be clear in stating a resident can not lawfully kill someone who has broken into their home, the act has not always resulted in a conviction of murder.

The Queensland Government’s proposed Non-consensual Sharing of Intimate Images Amendment Bill 2018 should put at ease the mind of anyone who has sent their ex some sexy selfies.

The bill criminalises the act of threatening to post nude-images of your former partner on the internet and was intended to provide legal redress for victims of revenge porn.

Section 229A of the new legislation – which will be inserted into the Criminal Code 1899 (Qld) states a person can face up to three years jail for making a threat to distribute an intimate image of another person: “without the other person’s consent and in a way that would cause the other person distress.”

The new laws also set out the types of images captured by the legislation and include: “a visual recording of the person, in a private place or engaging in a private act, made in circumstances where a reasonable adult would expect to be afforded privacy.”

Read other posts from our blog

The Qld Teachers who are Allowed to Smack Students

How Domestic Violence Orders Impact Access to Children

In addition to the above the new laws also make it an offence to post or threaten to post to the internet, or share: “a visual recording of the person’s genital or anal region, when it is bare or covered only by underwear, made in circumstances where a reasonable adult would expect to be afforded privacy in relation to that region.”

When the laws were introduced to Queensland Parliament on August 20, 2018, Attorney-General Yvette D’ath said: “The definition will extend to photoshopped images – where an image has been altered to look like a person is portrayed in an intimate way.”

The Bill also allows courts to make a rectification order –the images must be removed or deleted, and if they aren’t a person faces a two-year jail term.

“Revenge porn is a horrible violation, designed to humiliate, and it speaks volumes about the person sharing the image,” Ms D’Ath said.

“It is time for us to step in because this behaviour isn’t just abhorrent, it is criminal.

Call 13 14 LAW or fill out a webform to speak to one of our lawyers now.

“And we also know that while sharing intimate images can affect anyone, it disproportionately affects women and girls.

The Bill also includes the threat to distribute – whether an image exists or not.

“Victims often don’t know whether there is material in existence; but a threat to distribute material—even material that may not exist— provokes extreme fear and can be used to control, coerce, and harm a person,” Mrs D’Ath said.

“I would hope this Bill also serves as a reminder for young Queenslanders, in particular, around the dangers in sharing such material.”