Jodylee and Rachell recently joined Ashleigh Tesluk of Legalwise Seminars to discuss drugs, family violence and parental responsibility within the practice of family law.
Jodylee Bartal, Special Counsel - Family & Relationship Law, Lander & Rogers
Jodylee Bartal is an experienced family and relationship lawyer and accredited family law specialist having been admitted to practice in 2000. Her practice covers everything from separation and divorce to parenting disputes, including IVF, as well as binding financial agreements and all aspects of financial issues and property settlements. She is ranked as a Rising Star in the 2016 and 2017 editions of Doyle's Guide for Family Law and was a finalist for Special Counsel of the Year in the Lawyers Weekly Women in Law Awards, 2015. Jodylee has also been recognised in the 2017/18 edition of Best Lawyers (Australia) for her expertise in the area of Family Law.
Rachell Davey, Special Counsel - Family & Relationship Law, Lander & Rogers
Rachell Davey has over 17 years' experience as a family lawyer having been admitted to practice in 2000. Rachell has been involved in all aspects of family law practice, however has considerable experience in complex property matters. Rachell also has a particular interest in international aspects of family law; including overseas abduction and enforcement of overseas maintenance and child support Orders. She has authored several articles and is a contributing Editor to Thomson Reuters "Laws of Australia" Encyclopaedia.
You can find the full Q&A below.
What are some of the key trends and developments in ‘Drugs, Family Violence and Parental Responsibility’ that are impacting family law practice right now?
Drug abuse and family violence are now routinely cited as reasons to support applications for sole parental responsibility. In time, and possibly consistently with the findings of the Parliamentary Inquiry and Review, we may start to see greater emphasis on drug abuse and family violence in property cases as well. It is a source of great disappointment for clients to learn that the family violence they have endured during a relationship will, in all likelihood, have no impact at all upon their overall property settlement.
As drug testing evolves, and becomes more sophisticated, it is vital for practitioners to appreciate the different types of testing available and what is most appropriate for any one case.
Why has this become such a big issue in family law practice? is it getting worse? Why?
Australia is one of the per capita, largest drug using nations in the world. We've seen ice use in Australia, particularly in rural and regional towns, reach epidemic proportions. In addition, the number of people abusing prescription medicine such as painkillers has increased exponentially. We know that drug and alcohol abuse is often coupled with domestic violence and can lead to very dangerous and damaging environments for children. I don’t think there would be a family law practitioner that has not had a case involving allegations of drug or alcohol abuse and it is an issue that we all need to be aware of. Clearly, for some people, addiction takes such a stronghold that they are simply not capable of caring for their children. But Family Court Judges are routinely faced with allegations and counter-allegations of so-called "recreational" use of illicit substances. How that recreational and infrequent use is balanced against the right of a child to be cared for by their parents is a difficult decision.
What’s a common mistake you see people make in relation to drafting proposals?
It can be incredibly frustrating to be given instructions that the other party is a regular drug user and not be able to gather evidence to prove this. Very detailed instructions need to be taken as to the type of drug used, and pattern of drug use of the other party so that the practitioner can decide which test has the most potential to capture that drug use.
For those acting for an alleged drug user (particularly where that use has been proved) care needs to be taken to ensure that any proposals made on the part of your client are realistic so as to show that your client has some insight into their behaviour and the impact of same upon the safety of their children. There is little point in trying to minimise drug use. Honesty and openness is the only approach you can take in responding to allegations of drug abuse and practitioners need to give realistic advice to clients as to future care arrangements for their children.
Your presentation will touch on the Parliamentary Inquiry, can you briefly explain some of the issues that he Inquiry uncovered?
The Parliamentary Inquiry received a considerable number of submissions from interested parties and heard evidence from a diverse array of organisations. Clear themes that have emerged include the lack of protection for domestic violence victims, the confusing and disparate array of support systems available and the systematic problem of the lack of affordability of private legal fees. It is evident from the submissions that whilst millions of dollars have been spent in improving services for victims of domestic violence, the incidence of violence does not seem to be reducing. It will be fascinating to see the recommendations of the Inquiry, together with the widespread review of the Family Law Act that is to commence shortly. A clear focus of the Review will be on family violence and the protection of children.
What are some of the difficulties that you’re seeing in relation to grandparent interventions?
Clearly, where you have a case where both parents lack capacity to care for a child or children, applications by grand-parents will usually be relatively clear cut. However, due to their nature, cases involving grand-parents or other third parties seeking parenting orders will always be highly emotional and difficult cases and may also involve overlap with state welfare authorities. The really difficult matters are those where parents are alleging that they have overcome addiction issues and their children should be returned to them. Its a very difficult decision as between leaving children with stable grand-parent carers, or returning them to their biological parents.
Are there any drug related issues in family law that keep coming up that family law practitioners should keep on their radar?
Recent cases have shown us that Judges will have zero tolerance when it comes to parents that cannot overcome addiction for the sake of their children. We are now routinely seeing orders for drug testing that continue well post the date of final orders. Consistently, the biggest mistake a party can make is to try to hide their previous drug use or to minimise it. This strategy rarely, if ever, works.
Another consistent issue is where known drug users are able to consistently produce negative results. This often occurs when creatinine levels are ridiculously low. Apart from arguing deliberate dilution of the sample in affidavits, it can be the case the independent children's lawyers rarely react to results coming back like that in order to make recommendations as to other and further testing. Similarly, when a party takes an inordinate amount of time to produce a sample or doesn’t fully comply with the conditions of the testing it can be difficult to enforce testing orders. The focus is invariably on the negative result rather than the reliability of testing.
You can hear more from both Jodylee and Rachell who are speaking at the
Family Law Forum: Children, Parents and Domestic Violence, being held on Tuesday 14 November at the Primus Hotel Sydney.