Robert comes to see you for advice. Advise him on the following issues, supporting your advice with relevant statutory provisions and any applicable case law.
a) Assuming it was a contracting out agreement that Robert had Maree sign, under the circumstances can it be set aside? Does the farm belong solely to Robert or does it form part of their relationship property?
b) Explain to Robert whether or not he is a guardian of the children and what guardianship means.
c) Robert does not want Lisa to be part of a test group for epidiolex and opposes any blood transfusions. What can he legally do to try and prevent this medical treatment and procedure?
d) Robert wants the children returned to New Zealand immediately, he says that Maree has kidnapped them. Advise Robert whether he meets the criteria to apply to have the children returned to New Zealand under the Hague Convention on Aspects of Child Abduction.
e) Robert wants a parenting order for day-to-day care of the children. Advise Robert as to what matters the court would consider in determining whether or not the children should be in his day-to-day care or Maree’s day-to-day care and apply this to Robert and Maree’s situation.
Include whether or not in your opinion Robert would be successful in an application for a parenting order granting him day-to-day care of the children?
QUESTION 2 – Compulsory (The question is worth 35 marks)
Tom and Jess have been in a de facto relationship for about 5 years now. They have one child, Lucas, age 2 years.
Jess has been referred to your services by victim support. Two days ago she rang the police after Tom physically assaulted her. You have a copy of the police family violence incident report (POLFVIR). It records that they were at home having dinner when an argument started. Tom was verbally abusive to Jess, calling her names such as “useless bitch” and “lazy dog” because he was not happy with the food she cooked. Things escalated when Jess tried to leave the table with Lucas to get away from the verbal abuse.
Tom followed Jess down the hallway to the bedroom. He was yelling at her “don’t you fucking walk away from me”. Jess tried to barricade herself in the bedroom but Tom pushed his way in. Jess had Lucas in her arms when Tom punched her in the face. She fell backwards onto the bed. Lucas was not physically hurt but he was screaming and crying. Jess was crying too, begging Tom not to hurt her. Her nose was bleeding everywhere.
Tom grabbed her by the hair and dragged her back down the hallway into the kitchen, all the while screaming abuse at her. He tried to force feed her food from his plate. He then strangled her until she passed out. When she came to, Lucas was sitting beside her crying. Tom was gone. She rang the police.
The police arrived but could not find Tom. They are still looking for him. When found he will be arrested and charged with Male Assaults Female. Photographs have been taken of Jess’ injuries. You were emailed a copy of these along with the POLFVIR. You can see the bruises on Jess’ face and the purple marks around her neck where she has been strangled.
Jess says this is not the first time Tom has physically assaulted her. The first was not long after Lucas was born. She was breastfeeding and he punched her in the head. She cannot remember the reason, just that his temper started to get really out of control once Lucas was born. To begin with it was name calling and making allegations that she was showing her breasts off “like a hooker” if she breastfed Lucas in public or in the presence of anyone else.
Jess tells you about the violence over the last two years. There are holes in the hallway from where he has lost his temper and put his fist through the wall. He has broken the coffee table in a fit of rage, thrown coffee mugs at her, slapped her in the face, thrown her up against the wall and strangled her.
Jess says that the verbal abuse has got to the point where it is daily in the last six months. She said the physical abuse is also escalating and is now once a fortnight, sometimes weekly. Usually he grabs her by the arms and throws her against the wall. Sometimes he punches or slaps her in the face. Other times he pins her against the wall and strangles her. She has never sought any medical attention and just always worn clothing with high necks or long sleeves to cover the bruises. She said it’s amazing what a bit of makeup can do to cover up a bruise on the face.
When Jess first met Tom he was a prospect for Devil’s Henchmen, a motorcycle gang. Not long after they started dating he got his patch and became a member. Jess knows the gang are involved in drugs, especially methamphetamine. She has seen Tom with bags and bags of it to sell. Jess said she has never used methamphetamine before but that Tom has been using it over the last couple of months. She said that he can stay awake for days at a time, sometimes three or four days. One night about three months ago when he thought she was in bed she snuck out to the lounge and saw him smoking it at the couch through a glass pipe.
Jess has heard that methamphetamine can change people. She says she has seen this change in Tom. It has made him more violent and unpredictable. She said that there is no reasoning with him. She is scared at what he is capable of doing to her and Lucas. Jess is short and petite. She says that Tom is 6ft 2 inches tall and much stronger than she is. He is easily able to physically overpower her and she is scared of what might happen if he returns to the house now that she has called the police on him.
They rent a house together and are both on the tenancy agreement. Jess has nowhere else to go. There is no space available in safe housing and she does not want to leave the area.
The house is all set up with everything she needs to be able to look after Lucas. They don’t have a lot, just the normal things like washing machine, fridge, beds, bedroom furniture, lounge suite, television, linen and kitchen wares. She said that she needs all these things to help her properly care and provide for Lucas.
Jess is seeking your legal advice. Support your advice with relevant statutory provisions and any applicable case law.
a) If Jess were to apply for a protection order should it be on notice or without notice and why? In addition, whether you believe it should be on notice or without notice, explain the actual application process to Jess. What is filed, who makes the decisions and how, what happens after a decision is made.
b) Are there other orders Jess could apply for at the same time under the Domestic Violence Act 1995? If so, what information would you have to provide to the court in Jess’ affidavit to support these applications for other orders?