Welcome to Sisters In Law, news.com.au’s weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters Alison and Jillian Barrett from Maurice Blackburn advise about sharing custody of children.
Question:
My ex-husband seems to have lost it. He calls himself a ‘sovereign citizen’ and claims that he doesn’t need to stick to Australian road laws and that regulations don’t apply to him as he doesn’t “consent to the jurisdiction”.
He’s started driving without a seatbelt and seems to want to be stopped by police so he can “exercise his rights”.
We have joint custody of our kids and I’m very concerned about his behaviour. Can he talk himself out of minor traffic violations this way or is likely to end up in jail? – Anon, Victoria
Answer:
Sovereign citizen is a term used to describe people who in essence believe that laws and regulations don’t apply to them and hence they are not confined by them.
Equally so, they believe law enforcement agencies and the courts have no right to enforce the laws on them.
Sovereign citizens often won’t hold driver’s licences, or pay for things like car registration, insurance, taxes and rates.
They’ll not co-operate with police and if pulled over for traffic infringements, will advise police that they do not consent and will refuse to provide their personal details.
The short answer to your question is that just like anyone else in Australia, your ex-husband is obliged to comply with the laws, and if he doesn’t he will need to face the consequences of not doing so.
There have been no court decisions that have accepted sovereign citizen arguments as valid, or allowed an individual to escape penalty on this basis.
Various courts have gone as far as to criticise the sovereign citizen movement.
In a 2021 Queensland decision, Judge Cash QC dismissed arguments made by a sovereign citizen who was facing drug charges that the criminal laws did not apply to him.
In doing so Judge Cash QC said that the argument that was set out was “nonsense” or “gobbledygook”.
Judge Cash QC acknowledged that the sovereign citizen belonged to a group “who for some years have attempted, universally without success, to avoid the operation of laws”.
That said, the application of the laws by the police and any subsequent arrest still need to be done so in a lawful way. Anything less is likely to render the infringements or charges as invalid.
You should be aware that each state in Australia has laws that govern human rights. Victoria’s Charter of Human Rights and Responsibilities sets out the basic rights, freedoms and responsibilities of all people in Victoria.
Arguments about a breach of human rights under this charter are very different to those arguments run by sovereign citizens.
You have mentioned that you have joint custody of your children with your ex-husband.
It is unclear if you have concerns that your ex-husband’s conduct is also impacting on your children and placing them in danger (for example, not using seatbelts to secure them in a vehicle).
We don’t know if you have any parenting plans or parenting orders in place, or whether the court has been involved at any stage, so we will give you general advice about your rights.
The overarching principle when it comes to custody of children is what is in the best interests of the children.
The court considers the benefit of the children having a meaningful relationship with both parents, and any need to protect the children from harm.
If you have concerns about neglect or the children’s safety, this will be an overarching factor that the court will consider when deciding custody.
We would suggest you firstly discuss any concerns you have with your ex-husband and if you cannot resolve the issues amicably, to then seek legal advice.
This legal information is general in nature and should not be regarded as specific legal advice or relied upon. Persons requiring particular legal advice should consult a solicitor.
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