Family Violence and the Family Law Act
The Australian Government is firm in its view that family violence is unacceptable and cannot be tolerated.
The Australian Government is committed to taking action to prevent violence and abuse, and to improving the protections offered through the family law system to those affected by violence and abuse.
The Family Relationships Online website has information about services for families affected by family violence.
Budget measures
As part of the 2017-18 Budget, the Australian Government announced a number of initiatives to further improve the family law system’s response to family violence. These include:
- $55.7 million for community legal centres, directed to front-line family law and family violence services
- $10.7 million for the family law courts to employ additional family consultants. Family consultants are qualified social workers and psychologists who prepare family reports to inform the court about risks to family safety
- $12.7 million to establish Parenting Management Hearings, a new forum for resolving family law disputes between self-represented litigants
- $3.4 million to expand the national pilot program for Specialist Domestic Violence Units to six additional locations across Australia. The Specialist Domestic Violence Units provide wrap‑around legal and other support services to women who are experiencing, or at risk of, domestic and family violence
- A comprehensive review of the family law system, to be conducted by the Australian Law Reform Commission, to ensure that the family law system meets the contemporary needs of families and effectively addresses family violence and child abuse.
Proposed amendments to the Family Law Act 1975
Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2017
On 17 July 2017, the Australian Government released an exposure draft of the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2017 with an accompanying consultation paper, for public comment. The proposed amendments would address the issue of direct cross-examination of victims by their alleged perpetrators in family law proceedings.
Family Law Amendment (Family Violence and Other Measures) Bill 2017
On 9 December 2016, the Australian Government released an exposure draft of proposed legislative amendments to the Family Law Act to improve the family law system’s ability to protect victims.
Law, Crime and Community Safety Council Family Violence Working Group
Effectively responding to family violence and child abuse is a responsibility shared by federal, state and territory governments.
On 19 May 2017, the Law, Crime and Community Safety Council established a family violence working group, including representation from justice officials from each state and territory and the Commonwealth. The working group will progress measures to improve the interaction between the federal family law and state child protection and family violence systems. The working group is being co-led by the Commonwealth and Victoria, and is chaired by the Attorney-General’s Department.
National Domestic Violence Order Scheme
All governments are working together under the Council of Australian Governments, to implement the National Domestic Violence Order (DVO) Scheme.
The scheme will ensure the automatic recognition and enforceability of DVOs across all Australian states and territories, without the victim needing to manually register their DVO in a new jurisdiction.
All governments are working towards commencement of the scheme on 25 November 2017. The scheme will comprise model laws giving effect to the automatic national recognition and enforceability of DVOs, and a national information sharing system to share DVO information between courts and police across Australia.
National Plan to Reduce Violence against Women
The National Plan to Reduce Violence against Women and their Children 2010-2022 was endorsed by the Council of Australian Governments and released in February 2011. The National Plan is being delivered over 12 years through a series of four three-year action plans. Further information about the National Plan is available from the Department of Social Services website.
Third Action Plan
The Third Action Plan 2016-2019 is the halfway point of the National Plan. The Australian Government has provided a funding package of $100 million for the implementation of the Third Action Plan. As part of this funding package, the Attorney-General’s Department is providing funding of:
- $6.2 million for Family Relationship Centres to deliver legally-assisted and culturally‑appropriate family dispute resolution to separating and separated families from Indigenous and culturally and linguistically diverse backgrounds experiencing family violence
- $18.5 million to legal aid commissions to deliver integrated duty lawyer and family violence support services in family law court registries around Australia. These services are known as ‘Family Advocacy and Support Services’.
Training for professionals working in the family law system
Improving the ability of professionals working in the family law system to understand family violence dynamics is a priority for the Commonwealth.
National Domestic and Family Violence Bench Book
The Attorney-General’s Department commissioned National Domestic and Family Violence Bench Book was completed in June 2017. The bench book is a national online resource for judicial officers which promotes best practice and consistency in judicial decision making in cases involving family violence. The bench book is available on the Australasian Institute of Judicial Administration website.
Funding for judicial training
The Attorney-General’s Department is funding the National Judicial College of Australia to develop and deliver training for judicial officers, to increase their awareness and understanding of family violence. This training will be rolled out nationally in 2017 and 2018, and builds on the National Domestic and Family Violence Bench Book.
AVERT : collaborative responses in the family law system training package
The Addressing Violence Education Resources and Training (AVERT) package for trainers is designed to give professionals a sound and practical understanding of family violence and promote the safety of those involved in the family law system. The package was developed by Relationships Australia South Australia, and caters for a range of professionals working in the family law system. For more information or to get a package, visit the AVERT Family Violence website.
Evaluation of the 2012 amendments
The Attorney-General’s Department commissioned the Australia Institute of Family Studies (AIFS) to evaluate the 2012 family violence amendments to the Family Law Act 1975. The results of this evaluation were published in 2015 and are available on the AIFS website.
Sunshine Coast

Maternal grandmother gives evidence about her care of the child
The Evidence of the Maternal Grandmother
- The maternal grandmother adopted her affidavits as true and correct.
- Under cross-examination by counsel for the father she said that the father stayed with her and her husband in Queensland once for four to five days and seemed fine. On other visits he stayed in a hotel. She only knew he was in Queensland when he visited X for four to five days on each occasion. Either she or Mr G were there all the time.
- She recalled a visit in November 2014 when the father attended with Ms N. The father had X on Saturday to Sunday but not overnight. She left decisions to her husband. She was concerned that X fired a firearm. She had other concerns which were not in her affidavit. She did not know about the firearm until X told her. The father said this was an air rifle.
- The maternal grandmother was cross-examined about a birthday party on X’s birthday in 2016. This was at (omitted) and X met the paternal relations. X was excited. He thought, however, that the birthday party would be typical with balloons and other such matters. In fact, he was not excited at meeting the paternal grandmother. She had told him he would meet the paternal grandmother and X went “okay”. She said he is always like that in everything.
- X was not happy but was slumped in his seat and wanted to leave. He was excited to start off with but then very disappointed because he did not get what he expected. She accepted that X walked with the father to the pier. She was not able to say whether he enjoyed it because they were somewhat far away but she was watching. They had left when the meal was over and X said goodbye to the father.
- The father had phoned for up to three times per week for a very short period. This upset X too much. Then he phoned about once a week until he stopped. She said there was no way there were weekly calls from 2014 to 2016. Not a chance. Phone calls were sporadic without any pattern. She has spoken to the father about helping with X’s schoolwork. She had tried several other strategies. The one with the father did not work so she stopped it.
- When cross-examined about the (omitted) park meeting on 16 April 2016 she said X was excited to go. He loves the (omitted) park and was riding his scooter. It is a large (omitted) park. X said hello to his father and talked to him for three to five minutes and then went (hobby omitted). The (omitted) park has a length of approximately 50 metres. She sat down on a seat to watch him.
- The father said he did not want to sit and watch his son. He became angry. X moved around near them and was going round and round. The father was loud. People were looking at them. She did not agree that X was not aware of this. She went to Victoria Legal Aid (the affidavit material asserts that the mother refused the father’s request for overnight time and this is what made him angry).
- Mr Skinner has said at the (omitted) park that he wanted a court event. She was partly concerned about paternity but also what might happen if a case occurred. The maternal grandmother lost her train of thought at this point.
- Telephone contact stopped about that time. X told the maternal grandmother that the father has said he would move closer to him. In her mind she thought maybe the father knew where they were. This was a safety risk. The main thing was that he was using X to his own advantage because she had cut off contact.
- When questioned as to whether X wanted to see the father she said the only thing X has said is more relief he does not have to deal with it, not to have to travel to see the father. X is relieved not to have anything to do with his father. X has said, “I do not want anything to do with Mr Skinner”, several times, usually when court events are coming up most of the time. She responds, “If that is your choice you are entitled to have your opinion”. She tries to support X in his choices.
- The grandmother said when X was younger she hid everything about the father from him. X is now older and she talks differently now. She had never told X that his father did not love him. She said the father loves him in his own way. She said that X understands people love him when he gets what he wants. Contrary to paragraph 32 of the family report, she had not told X about the court proceedings and affidavits. X asks about court and she says she cannot answer. She tells him she will not break the law for him.
- X is aware he does not live with his parents because they are drug users. He goes to an organisation that helps children with this difficulty. He has been with that organisation most of the time they have been in Melbourne and started three to six months after they came to Melbourne. X has activities with them for one full day each school holidays. They do fun stuff. The last time was (omitted). There is another girl in his class with the same problem and he talks about her a lot. X says his parents use drugs. The grandmother would be honest and say so. There are no complaints by X that his father is violent.
- X is now less physically affectionate as he gets older. She could not say when this had changed. On one occasion she had told X to give the father a hug and he said he was not comfortable. He said she had told him he did not have to. X tries so hard to be a good boy. He hugs her and her daughter and also the rest of her family.

Court view on parenting arrangements
Court view on parenting arrangements
- The Court encourages parents to make arrangements that meet the needs of the children and family.
- The Court encourages families to make their own decisions and offers a range of mediation services to help them do so.
- Contact with family members is considered to be the right of a child (not the right of a parent).
- Where children express a view and are of sufficient maturity, their views should be considered by parents. There is no set age for this as all children and families are different.
- The Court usually considers that it is in the child’s best interest to maintain contact with both parents.
- Denial of contact with the other parent may have serious consequences for the child’s development.
- Children need to be safe and protected from harm and the Court will make decisions based on a child’s unique circumstances.
For agreements such as Parenting Plans to work, parental cooperation is essential. Without this cooperation, parenting is bound to become difficult and cause problems for both you and your children.
As parents, you are in the best position to make decisions about your children because you know them so well. Older children usually like to play a part in the decision-making as well, so it is important to listen carefully to them when they express opinions or feelings about parenting arrangements. Family and child mediators and counsellors may be able to help you and your children discuss their needs.
When parents cannot agree, the Court will make the arrangements considered to best meet the needs of the children. Judges consider carefully the circumstances of your family before making final decisions and then it is up to both parents to follow the orders made.
An important point to remember is that most children love both parents and although they may have many feelings about the separation, in most cases they miss their parents and want to keep in contact with them.

Grandparenting – caring for children for parents
Grandparenting – caring for children for parents
Grandparenting – Many parents confront issues related to their participation in employment, and face decisions about caring for children and providing care to others. Below, we focus on one aspect of care that is especially valued by parents: care provided by grandparents. This care not only helps parents manage their work responsibilities, but provides opportunities for development of relationships across generations.
We know that grandparents are often called upon to care for their grandchildren, sometimes instead of, and sometimes as a supplement to, other care arrangements.10
According to HILDA in 2011:
- 65% of grandparents aged 40-69 years sometimes cared for grandchildren (with 28% at least once a week);
- 27% of grandparents aged 70 years and over sometimes cared for grandchildren (with 10% at least once a week).
Some gendered patterns in grandparent care are apparent, with 54% of grandmothers providing care to grandchildren (25% at least weekly), compared to 46% of grandfathers (18% at least weekly). Of course grandparent care may be provided by a couple. Of the grandfathers providing weekly grandparent care, 90% had a spouse; of grandmothers providing weekly grandparent care, 72% had a spouse.
Figure 6: Relationship/marital status of men and women across all ages

Source: HILDA, Wave 11
Figure 7: Attitudes vary with relationship status

Elder Abuse Awareness Reforms
Elder Abuse Awareness Reforms
Queensland’s peak legal body has launched a trial designed to raise public awareness of physical, emotional and financial abuse being suffered in silence by society’s vulnerable elderly community.
Queensland Law Society President Christine Smyth today (Wed June 14) announced a campaign to raise the issue of “Elder Abuse” by launching a trial that encouraged potential victims to disclose suspected abuse with their most often trusted confidante – their local doctor.
The Society’s trial, run with the assistance of the Australian Medical Association of Queensland, will enlist the help of general practitioners and staff from 315 clinics to look out for the symptoms of elder abuse and by referring patients to support services such as “Elder Abuse Helpline” and QLS’s Find a Solicitor Service.
Ms Smyth said abuse of the elderly takes many forms, in particular physical, emotional and financial.
“Our vulnerable senior citizens should not suffer from abuse in any form. Elder abuse is real, it is insidious and can happen to anyone across all walks of life,” Ms Smyth said.
“Imagine feeling isolated, alone, taken advantage of and perhaps as if you were a burden to your family.
“Unfortunately this is what many elder Australians feel each and every day, in a time of their lives when they should be enjoying the fruits of their labour.
“Our elderly deserve better. In a society beset with violence, we must protect the vulnerable. It is our duty.
“Financial elder abuse. Emotional elder abuse. Physical elder abuse. Sexual elder abuse. Neglect.
“Do those who raised us deserve this?”
In launching the trial, QLS has produced materials and resources for GPs.
Ms Smyth said it was hoped that after a successful trial the program could be extended throughout Queensland and the rest of Australia.
“Our genuine wish is that this trial will create a robust public debate to help de-stigmatise an issue many elderly people feel uncomfortable speaking about,” Ms Smyth said.
“The Not Now, Not Ever Report was a springboard for community dialogue and action around the scourge and shame of domestic and family violence.
“The same report recognised elder abuse as a form of domestic violence.
“On the eve of World Elder Abuse Awareness Day, we wish to highlight the issue of elder abuse and ensure that our elderly are included in this important dialogue.
“As a society I think we also need more than dialogue, we need action. We need to say to those who have suffered or are suffering from elder abuse that you are not alone, you do not deserve this and it is not your fault.
“As a profession, we must hold true to our duty to help the vulnerable, those who cannot help
themselves.’”

Parenting Orders or Parenting Plans?
Parenting orders and parenting plans are used by separated parents to regulate their children’s time with each parent.
Both are documents that set out when, where and how, parents spend time and communicate with their children, including during school terms, school holidays and special days like birthdays, Christmas, Mother’s Day and Father’s Day.
The advantage (or disadvantage as the case may be) of a parenting plan is that, unlike a parenting order, it cannot be enforced by a court.
This means that if one parent “breaks” the terms of the parenting plan, such as by not returning the children to the other parent when the plan says they are supposed, they cannot be “penalised” by a court.
If parents are parties to parenting orders, and one of them “breaks” the terms of the orders, such as described above, then the court can “penalise” the parent who “breaks” the order, unless that parent satisfies the court that they had “reasonable excuse” to do so.
Most separated parents prefer the certainty and security of parenting orders. Some parents manage to mutually treat these orders as their “fall back position” if they can’t reach agreement from time to time about issues concerning the children. Other parents choose, out of necessity (such as when there is little if any trust or goodwill between the parents)or otherwise, to follow the terms of parenting orders strictly.
At Freedom Law, we offer a free initial consultation for all new clients to discuss whether a parenting order or a parenting plan is best for their situation.
Recusal application dismissed
Recusal application dismissed
Nimmo & Bush
- This is an application for recusal by the applicant of the Court on the grounds of conduct which was identified as follows:-
- First, when the matter was first called, the Court was informed that the parties were seeking to explore resolution. The Court, in those circumstances, engaged in identifying for the parties the benefit of a consensual resolution and encouraged the parties to try and reach a conclusion which they agreed to.
- The Court identified a number of difficulties, including some problems with the expert report by the consultant which made no reference to the psychiatrist’s report annexed to the husband’s affidavit albeit it was said that the consultant had read the psychiatrist’s file notes. The mental health of the respondent was identified in the consultant’s report as an issue and the psychiatrist’s opinion and observations were not addressed by the consultant.
- The Court also made reference to the fact that the consultant, in relation to a particular incident, had failed to consider the possibility of provocation in relation to that incident. The Court also identified steps that might be taken for the parties in resolving the matter to ensure progression of the husband’s contact and relationship with the child if the child continued to live with the mother which the Court identified had been the position for the last three years.
- The Court identified that a resolution that included something along the current lines might be one that took into account a changeover at the grandmother’s house rather than at the third party independent location which was at the cost and expense of the applicant husband. The Court identified reasons in the best interests of the child as to why the parties should try and resolve the matter.
- That conduct is not conduct that has a logical basis upon which a reasonable person would conclude that the Court would determine the contested matter otherwise than in accordance with its merits. The further conduct identified was after an hour, the Court came back in having foreshadowed to the parties the Court would return within an hour, and the Court was informed the matter still had not been resolved.
- The Court made further observation in relation to the possible resolution of the matter and how the parties might address the issues of whether the mother was required to continue to reside with her grandmother as well as issues in relation to Christmas holidays and alternate times in that regard and increasing times as the child grows older.
- In the course of having encouraged the parties on the second occasion to explore resolution, Mr Alexander of Counsel rose to his feet to identify that an alleged criminal assault in the State Court was of considerable concern to his client.
- The Court responded by indicating that the Court was not impressed by that submission and that this Court’s powers, not the State court’s powers, will determine the relationship of the parties and child. There is no logical connection between the conduct identified and a reason why a reasonable person would consider that the Court would not determine the contested matter otherwise than on its merits.
- Further, a fair minded lay observer would be reasonably informed. That means the fair minded lay observer would be aware of the object and principles identified in s.60B of Part VII of the Act and of the paramount consideration imposed upon the Court by s.60CA and s.60CC of the Act.
- The fair minded lay observer would be aware of the general scheme of Division 6 of Part VII and the re-statement of the statutory duty imposed on the Court as to paramount consideration in s.65AA of the Act, the power under s.65D of the Act to make parenting orders, the mandatory considerations under s.65 DAA of the Act including s.65DA(7) of the Act and the duty of the Court under s.65DA of the Act.
- Accordingly, a fair minded lay observer would take into account the positive statutory duty imposed upon the Court in parenting matters to determine the best interests of the child. That positive duty requires a more active role by the Court than ordinary adversarial litigation, including the statutory considerations under s.60CC(3)(l) of the Act to try and bring an end to ongoing disputes in relation to the child.
- The fair minded lay observer would be aware that in family matters the Court generally will familiarise itself with the Court file prior to hearing and the Court would still remain impartial and retain a mind reasonably open to persuasion. The fair minded lay observer would be aware that in family parenting matters, the Court has a role to try and de-escalate the dispute and to actively encourage consensual resolutions by the parties. The fair minded lay observer would be aware that any proposed consensual resolution by the parties is one in which the Court still has a power to exercise in determining whether the consent orders are appropriate and in that regard, the Court must still give paramount consideration to the best interests of the child.
- I am not satisfied that the conduct identified is conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Court might not bring an independent and impartial mind to the determination of the merits.
- The application for recusal is dismissed.
Happy Halloween!!!!!!
Happy Halloween!!!!!!
Gaelic and Welsh influence
An early 20th-century Irish Halloween mask displayed at theMuseum of Country Life.
Today’s Halloween customs are thought to have been influenced by folk customs and beliefs from the Celtic-speaking countries, some of which are believed to have paganroots.[35][36] Jack Santino, a folklorist, writes that “there was throughout Ireland an uneasy truce existing between customs and beliefs associated with Christianity and those associated with religions that were Irish before Christianity arrived”.[37] Historian Nicholas Rogers, exploring the origins of Halloween, notes that while “some folklorists have detected its origins in the Roman feast of Pomona, the goddess of fruits and seeds, or in the festival of the dead called Parentalia, it is more typically linked to the Celtic festival ofSamhain, which comes from the Old Irish for “summer’s end”.[35] Samhain (pronounced sah-win or sow-in) was the first and most important of the four quarter days in the medieval Gaelic calendar and was celebrated in Ireland, Scotland and the Isle of Man.[38][39] It was held on or about 31 October – 1 November and a kindred festival was held at the same time of year by the Brittonic Celts; called Calan Gaeaf in Wales, Kalan Gwav in Cornwall and Kalan Goañv in Brittany. For the Celts, the day ended and began at sunset; thus the festival began on the evening before 1 November by modern reckoning.[40] Samhain and Calan Gaeaf are mentioned in some of the earliest Irish and Welsh literature. The names have been used by historians to refer to Celtic Halloween customs up until the 19th century,[41] and are still the Gaelic and Welsh names for Halloween.
Snap-Apple Night, painted by Daniel Maclise in 1833, shows people feasting and playing divination games on Halloween in Ireland.
Samhain/Calan Gaeaf marked the end of the harvest season and beginning of winter or the ‘darker half’ of the year.[42][43] Like Beltane/Calan Mai, it was seen as a liminal time, when the boundary between this world and the Otherworld thinned. This meant the Aos Sí (pronounced ees shee), the ‘spirits’ or ‘fairies‘, could more easily come into our world and were particularly active.[44][45] Most scholars see the Aos Sí as “degraded versions of ancient gods […] whose power remained active in the people’s minds even after they had been officially replaced by later religious beliefs”. The Aos Sí were both respected and feared, with individuals often invoking the protection ofGod when approaching their dwellings.[46][47] At Samhain, it was believed that the Aos Sí needed to be propitiated to ensure that the people and their livestock survived the winter. Offerings of food and drink, or portions of the crops, were left outside for the Aos Sí.[48][49][50] The souls of the dead were also said to revisit their homes seeking hospitality.[51] Places were set at the dinner table and by the fire to welcome them.[52] The belief that the souls of the dead return home on one night of the year and must be appeased seems to have ancient origins and is found in many cultures throughout the world.[53] In 19th century Ireland, “candles would be lit and prayers formally offered for the souls of the dead. After this the eating, drinking, and games would begin”.[54] Throughout Ireland and Britain, the household festivities included rituals and games intended to foretell one’s future, especially regarding death and marriage.[55] Apples and nuts were often used in these divination rituals. They included apple bobbing, scrying or mirror-gazing, pouring molten lead or egg whites into water, and dream interpretation.[56] Special bonfires were lit and there were rituals involving them. Their flames, smoke and ashes were deemed to have protective and cleansing powers, and were also used for divination.[41][42] In some places, torches lit from the bonfire were carried sunwise around homes and fields to protect them.[41] It is suggested that the fires were a kind of imitative or sympathetic magic – they mimicked the Sun, helping the “powers of growth” and holding back the decay and darkness of winter.[52][57][58] In Scotland, these bonfires and divination games were banned by the church elders in some parishes.[59] Later, these bonfires served to keep “away the devil“.[60]
A traditional Irish Halloween turnip (rutabaga) lantern on display in the Museum of Country Life, Ireland
From at least the 16th century,[61] the festival included mumming and guising in Ireland, Scotland, the Isle of Man and Wales.[62] This involved people going house-to-house in costume (or in disguise), usually reciting verses or songs in exchange for food.[62] It may have originally been a tradition whereby people impersonated the Aos Sí, or the souls of the dead, and received offerings on their behalf, similar to the custom of souling (see below). Impersonating these beings, or wearing a disguise, was also believed to protect oneself from them.[63] It is suggested that the mummers and guisers “personify the old spirits of the winter, who demanded reward in exchange for good fortune”.[64] In parts of southern Ireland, the guisers included a hobby horse. A man dressed as a Láir Bhán (white mare) led youths house-to-house reciting verses—some of which had pagan overtones—in exchange for food. If the household donated food it could expect good fortune from the ‘Muck Olla’; not doing so would bring misfortune.[65] In Scotland, youths went house-to-house with masked, painted or blackened faces, often threatening to do mischief if they were not welcomed.[62] F. Marian McNeill suggests the ancient festival included people in costume representing the spirits, and that faces were marked (or blackened) with ashes taken from the sacred bonfire.[61] In parts of Wales, men went about dressed as fearsome beings called gwrachod.[62] In the late 19th and early 20th century, young people in Glamorgan and Orkney cross-dressed.[62] Elsewhere in Europe, mumming and hobby horses were part of other yearly festivals. However, in the Celtic-speaking regions they were “particularly appropriate to a night upon which supernatural beings were said to be abroad and could be imitated or warded off by human wanderers”.[62] From at least the 18th century, “imitating malignant spirits” led to playing pranks in Ireland and the Scottish Highlands.[62] Wearing costumes and playing pranks at Halloween spread to England in the 20th century.[62] The “traditional illumination for guisers or pranksters abroad on the night in some places was provided by turnips or mangel wurzels, hollowed out to act as lanterns and often carved with grotesque faces”.[62] By those who made them, the lanterns were variously said to represent the spirits,[62] or were used to ward offevil spirits.[66][67] They were common in parts of Ireland and the Scottish Highlands in the 19th century,[62] as well as in Somerset (see Punkie Night). In the 20th century they spread to other parts of England and became generally known as jack-o’-lanterns.[62]
Christian influence[edit]
Today’s Halloween customs are also thought to have been influenced by Christian dogma and practices derived from it. Halloween is the evening before the Christian holy days of All Hallows’ Day (also known as All Saints’ or Hallowmas) on 1 November and All Souls’ Day on 2 November, thus giving the holiday on 31 October the full name of All Hallows’ Eve (meaning the evening before All Hallows’ Day).[68] Since the time of the early Church,[69] major feasts in Christianity (such as Christmas, Easter and Pentecost) had vigils which began the night before, as did the feast of All Hallows’.[70] These three days are collectively calledAllhallowtide and are a time for honoring the saints and praying for the recently departed souls who have yet to reach Heaven. Commemorations of all saints and martyrs were held by several churches on various dates, mostly in springtime.[71] In 609 or 610, Pope Boniface IV dedicated the Pantheon in Rome to St. Mary and All Martyrs on 13 May. This was the same date as Lemuria, an ancient Roman festival of the dead, as well as the same date as the common commemoration of Saints took place in Edessa at the time of Ephrem.[72]
The feast of All Hallows’, on its current date in the Western Church, may be traced to Pope Gregory III‘s (731–741) founding of an oratory in St Peter’s for the relics “of the holy apostles and of all saints, martyrs and confessors”.[73][74] In 835, All Hallows’ Day was officially switched to 1 November, the same date as Samhain, at the behest of Pope Gregory IV.[75] Some suggest this was due to Celtic influence, while others suggest it was a Germanic idea,[75] although it is claimed that both Germanic and Celtic-speaking peoples commemorated the dead at the beginning of winter.[76] They may have seen it as the most fitting time to do so, as it is a time of ‘dying’ in nature.[75][76] It is also suggested that the change was made on the “practical grounds that Rome in summer could not accommodate the great number of pilgrims who flocked to it”, and perhaps because of public health considerations regarding Roman Fever – a disease that claimed a number of lives during the sultry summers of the region.[77]
By the end of the 12th century they had become holy days of obligation across Europe and involved such traditions as ringing church bells for the souls in purgatory. In addition, “it was customary for criers dressed in black to parade the streets, ringing a bell of mournful sound and calling on all good Christians to remember the poor souls.”[79] “Souling”, the custom of baking and sharing soul cakes for all christened souls,[80] has been suggested as the origin of trick-or-treating.[81] The custom dates back at least as far as the 15th century[82] and was found in parts of England, Flanders, Germany and Austria.[53] Groups of poor people, often children, would go door-to-door during Allhallowtide, collecting soul cakes, in exchange for praying for the dead, especially the souls of the givers’ friends and relatives.[82][83][84] Soul cakes would also be offered for the souls themselves to eat,[53] or the ‘soulers’ would act as their representatives.[85] As with the Lenten tradition of hot cross buns, Allhallowtide soul cakes were often marked with a cross, indicating that they were baked as alms.[86] Shakespeare mentions souling in his comedy The Two Gentlemen of Verona (1593).[87]On the custom of wearing costumes, Christian minister Prince Sorie Conteh wrote: “It was traditionally believed that the souls of the departed wandered the earth until All Saints’ Day, and All Hallows’ Eve provided one last chance for the dead to gain vengeance on their enemies before moving to the next world. In order to avoid being recognized by any soul that might be seeking such vengeance, people would don masks or costumes to disguise their identities”.[88] It is claimed that, in the Middle Ages, churches that were too poor to display the relics of martyred saints at Allhallowtide let parishioners dress up as saints instead.[89] Some Christians observe this custom at Halloween today.[90] Lesley Bannatyne believes this could have been a Christianization of an earlier pagan custom.[91] It has been suggested that the carved jack-o’-lantern, a popular symbol of Halloween, originally represented the souls of the dead.[92] On Halloween, in medieval Europe, “fires [were] lit to guide these souls on their way and deflect them from haunting honest Christian folk.”[93] Households in Austria, England and Ireland often had “candles burning in every room to guide the souls back to visit their earthly homes”. These were known as “soul lights”.[94][95][96] Many Christians in mainland Europe, especially in France, believed “that once a year, on Hallowe’en, the dead of the churchyards rose for one wild, hideous carnival” known as the danse macabre, which has often been depicted in church decoration.[97]Christopher Allmand and Rosamond McKitterick write in The New Cambridge Medieval History that “Christians were moved by the sight of the Infant Jesus playing on his mother’s knee; their hearts were touched by the Pietà; and patron saints reassured them by their presence. But, all the while, the danse macabre urged them not to forget the end of all earthly things.”[98] An article published by Christianity Today claimed that the danse macabre was enacted at village pageants and at court masques, with people “dressing up as corpses from various strata of society”, and suggested this was the origin of modern-day Halloween costume parties.[99][100]
In parts of Britain, these customs came under attack during the Reformation as some Protestants berated purgatory as a “popish” doctrine incompatible with their notion of predestination. Thus, for some Nonconformist Protestants, the theology of All Hallows’ Eve was redefined; without the doctrine of purgatory, “the returning souls cannot be journeying from Purgatory on their way to Heaven, as Catholics frequently believe and assert. Instead, the so-called ghosts are thought to be in actuality evil spirits. As such they are threatening.”[95] Other Protestants maintained belief in an intermediate state, known as Hades (Bosom of Abraham),[101] and continued to observe the original customs, especially souling, candlelit processions and the ringing of church bells in memory of the dead.[68][102] With regard to the evil spirits, on Halloween, “barns and homes were blessed to protect people and livestock from the effect of witches, who were believed to accompany the malignant spirits as they traveled the earth.”[93] In the 19th century, in some rural parts of England, families gathered on hills on the night of All Hallows’ Eve. One held a bunch of burning straw on a pitchfork while the rest knelt around him in a circle, praying for the souls of relatives and friends until the flames went out. This was known as teen’lay, derived either from the Old English tendan (to kindle) or a word related to Old Irish tenlach (hearth).[103] The rising popularity of Guy Fawkes Night (5 November) from 1605 onward, saw many Halloween traditions appropriated by that holiday instead, and Halloween’s popularity waned in Britain, with the noteworthy exception of Scotland.[104] There and in Ireland, they had been celebrating Samhain and Halloween since at least the early Middle Ages, and the Scottish kirk took a more pragmatic approach to Halloween, seeing it as important to the life cycle and rites of passage of communities and thus ensuring its survival in the country.[104]
In France, some Christian families, on the night of All Hallows’ Eve, prayed beside the graves of their loved ones, setting down dishes full of milk for them.[94] On Halloween, in Italy, some families left a large meal out for ghosts of their passed relatives, before they departed for church services.[105] In Spain, on this night, special pastries are baked, known as “bones of the holy” (Spanish: Huesos de Santo) and put them on the graves of the churchyard, a practice that continues to this day.[106]
Spread to North America[edit]
The annual Greenwich Village Halloween Parade in New York City is the world’s largest Halloween parade.[107]
Lesley Bannatyne and Cindy Ott both write that Anglican colonists in the Southern United States and Catholic colonists in Maryland “recognized All Hallow’s Eve in their church calendars”,[108][109] although the Puritans of New England maintained strong opposition to the holiday, along with other traditional celebrations of the established Church, including Christmas.[110] Almanacs of the late 18th and early 19th century give no indication that Halloween was widely celebrated in North America.[111] It was not until mass Irish and Scottish immigration in the 19th century that Halloween became a major holiday in North America.[111] Confined to the immigrant communities during the mid-19th century, it was gradually assimilated into mainstream society and by the first decade of the 20th century it was being celebrated coast to coast by people of all social, racial and religious backgrounds.[112] “In Cajun areas, a nocturnal Mass was said in cemeteries on Halloween night. Candles that had been blessed were placed on graves, and families sometimes spent the entire night at the graveside”.[113]
Revoking a DPO
Revoking a DPO
Once a Departure Prohibition Order (DPO) is made under the Child Support (Registration and Collection) Act (CSRC), the Registrar must revoke it in certain circumstances and may revoke or vary it in other circumstances (section 72I). The Registrar can revoke or vary a DPO in response to representations made by the child support debtor or because of the Registrar becoming aware of new information.
When the Registrar must revoke a DPO
The Registrar must revoke a DPO when both of the following 2 tests are satisfied.
The first test has 2 alternative parts. Either
- the child support liability has been wholly discharged or that satisfactory arrangements have been made to discharge the debt
OR
- the Registrar is satisfied that the child support liability is completely irrecoverable.
(If either of these conditions is present, the first test is satisfied.)
AND
The second test applies to future child support liability and also has 2 alternative parts. Either
- the Registrar is satisfied that any child support liability to which the person may become subject to in respect of matters that have already occurred will be wholly discharged or that satisfactory arrangements will be made to discharge those liabilities
OR
- the Registrar is satisfied that any such child support liability will be completely irrecoverable.
(If either of these conditions is present, the second test is satisfied.)
Wholly discharged
A debt is wholly discharged when no part of it remains owing. A child support debt can be wholly discharged either by payment of the debt or by an administrative or judicial process that decreases the amount of the debt. Where either or both of these processes result in no part of the debt remaining payable, the debt is wholly discharged. A debt treated as uneconomic to pursue is not wholly discharged.
Satisfactory arrangements
Those arrangements that lead the Registrar to be satisfied that the debt will be wholly discharged are satisfactory arrangements. A common sense approach is required to determine whether arrangements are satisfactory in each case. A payment arrangement that effectively requires the presence of the debtor in Australia to function is not a satisfactory arrangement. Where the debtor has sold property and needs to leave Australia before settlement occurs, a section 72A notice in relation to the known proceeds would be a satisfactory arrangement.
Completely irrecoverable
A debt will be regarded as completely irrecoverable when there is no prospect that the debtor will be able to make any payment towards it.
When the Registrar may revoke a DPO
Even where the tests outlined above are not satisfied, the Registrar has discretion to revoke a DPO where the Registrar considers it desirable to do so. The Registrar will exercise this discretion in a way that supports the objects of the Acts.
No Win No Fee Family Law
No Win No Fee Family Law
“No win no fee” agreements in family law are prohibited by law.
Does this limit a family law client from accessing justice with legal representation?
Not at Freedom Law, because we offer a range of affordable fee options for our clients.
Full case representation
“Full case representation” is for clients who want us to take care of everything to do with their case. At the client’s request, we can provide fixed fee representation quotes for some or all of their case. We also offer “pay at end” arrangements for eligible clients.
Partial case representation
“Partial case representation” is for clients who want to do some of the work themselves and for us to do the rest. For example, we prepare court documentation and the client attends the court date, or the client prepares the court documents and we attend the court date. At the client’s request, we can provide fixed fee representation quotes for some or all of the work they want us to do. We also offer “pay at end” arrangements for eligible clients.
Fixed fee product
“Fixed fee product” is for clients who don’t need court representation because they have reached an agreement with the other party and need us to make their agreement legally binding. We also offer “pay at end” arrangements for eligible clients.
Sessional advice
“Sessional advice” is for clients who want access to advice from us when they feel they need it. This can be by phone or in person simply by contacting us for a consultation at their convenience without any ongoing or formal representation just like booking in to see your GP or psychologist.
Free initial consultation
“Free initial consultation” is for clients who have haven’t had advice from us before and would like to meet us for an assessment of their legal needs.
Legal Aid
“Legal Aid” is for clients who have been granted Legal Aid funding by their state Legal Aid Office.
Access to Justice
At Freedom Law, we are proud to be able to offer the above to all family law clients. Contact us today for access to justice for your family law needs.
