Mistress obtains $100k under Family Law Act changes: News Ltd

News Ltd is reporting that in a first, a mistress of 20 years has settled for over $100,000 a claim under the Family Law Act against her former lover, a cheating husband.

To have done so, she would have had to have convinced the man's lawyers that they lived in a genuine domestic relationship.

The claim was able to be brought under the Family Law Act for de facto couples who separated from 1 March this year.

The outcome of the claim is likely to strike fear into unfaithful spouses. It was widely predicted before the amendments to the Family law Act came into effect, that they might cover claims against cheating spouses, because of the ability under the laws to have a de facto relationship with another even if one of the parties is in another de facto relationship, or is married.

The changes to the Family Law Act apply throughout Australia, except for Western Australia and South Australia.

Australian Crime and Violence Prevention Award winners announced

The Australian Crime and Violence Prevention Award winners have been announced by federal minister Brendan O'Connor.

Amongst the winners was the Chaplain Watch program- an innovative program run by Lance Mergard - who has a very demanding lifestyle. During the day Lance is a Family Court court officer- but at night he runs Chaplain Watch which goes to the hot spots in Brisbane's CBD and the Valley.

Congratulations to all the winners!

Can obesity be grounds for losing the kids?

Should morbidly obese children be taken from their parents? That's the question an increasing number of countries are grappling with amid the Western world's obesity epidemic.

The latest case to make headlines concerns a Scottish couple who lost custody of two of their six children on the basis of what was, their lawyer claims, a failure to reduce the kids' weight following warnings from Scottish social services. The couple lost their Oct. 14 appeal in a case that is far from clear-cut — representatives of Dundee City say they would never remove children "just because of a weight issue." But obesity appears to be the primary reason South Carolina mom Jerri Gray lost custody of her 14-year-old, 555-lb. son in May. She was arrested after missing a court date to examine whether she should retain custody after doctors had expressed concern about her son's weight to social services. The boy is currently living with his aunt, and his mother is facing criminal child-neglect charges.

Several other cases in recent years — in California, New Mexico, Texas and New York, as well as Canada — have garnered attention because a child's obesity resulted in loss of custody. "It's happening more than the public is aware of, but because these cases are usually kept quiet [as a result of child-privacy laws], we have no record," says Dr. Matt Capehorn, who sits on the board of the U.K.'s National Obesity Forum. The issue of whether parents should lose custody of their obese children took center stage two years ago with a British television documentary about Connor McCreaddie, an 8-year-old who weighed more than 200 lbs. and was at risk of being taken from his mother by authorities. She eventually weaned him off processed foods and retained custody.

See the full article in Time. Thank you to Family Law Prof Blog.

Family Court case: show and tell not hide and seek

In the recent Family Court case of Jarrott and Jarrott, there was a clear demonstration of the need for a party to fully disclose their financial circumstances, or as one Federal Magistrate put it so clearly "show and tell" not "hide and seek".

The husband came to court asking to be relieved of an $11,000 a month burden with home expenses including the mortgage. His cure? Sell, sell, sell- with he to have conduct of the sale. The house was in his name alone. He owed about $1 million on the mortgage, but it was the house the wife lived in. The wife wanted to retain the home as part of any property settlement.

Despite the wife previously asking for a property settlement of $2 million, when the net value of the home was about $350,000, and her being of the view that the husband's business interests were valueless, she changed her mind and said that she really did not know what the husband's business interests were worth, and until he had fully disclosed, she should not be compelled to move out of the home.

The court agreed. Justice Cohen stated:

The wife submits that now, as her knowledge of the financial situation has
evolved, it is quite possible that the husband’s business is worth much more
than she then thought and as he has failed to call evidence, even from his
accountant who has a financial interest in the business, which might provide a
realistic basis for assessing the value of the business and as the husband has
the onus of satisfying the Court that it is reasonably necessary to sell the
home, he has not established his case for financial distress or for sale. She
says that the information which is now available and has come to her only
recently justifies a consideration that the value of the business is such that
it is a reasonable possibility that she might receive the former matrimonial
home unencumbered under s
79 of the Family Law
Act....
There is a fault in the wife’s claim that she wanted to keep the
home and was only constrained to ask for a cash settlement because the husband
and/or his business could not raise the cash to provide her with a clear title.
To do so would cost about $1.103 million at present. This is the cumulative
value of the husband’s bank debts secured over the home. One can assume that
earlier this year the situation was little different. Yet the wife asked for $2
million in cash when she says she believed the business was worthless. If she
wished to keep the home yet get $2 million in all, she would need to have asked
for it to be transferred to her clear of encumbrances, which would make up $1.4
million, and the balance of $600,000.00 in cash. In any event, the husband would
have to raise the same amount, that is, the money to pay out the $1.103 million
overdraft, plus $600,000.00. It is not as though she could have believed the
home was worth much more than $1.4 million because the economic situation since
the property was purchased had already worsened.
The husband’s case is quite
simple. He says his income of $12,000.00 after tax per month is not enough to
meet his expenses, which are about $17,230.00 per month, not including tax, and
that he no longer can look to his business to make up the shortfall. He asserts
that, as the outgoings on the former matrimonial home are about $11,000.00 per
month including mortgage payments, the sale of the home will overcome his
financial difficulties in this respect. As he will not be able to continue the
home mortgage payments of about $9,400.00 per month if the home is not sold,
there will have to be a sale anyway and a mortgagee’s sale is to be
avoided....
He appears to have attempted to place an onus on the wife to show
he can afford to keep the former matrimonial home rather than make an attempt to
show by sufficient evidence of his own that, in his overall situation, he cannot
afford to do so. He relies only on his income and outgoings to prove his case in
circumstances where his income may well be arbitrarily set with his other
entities retaining an overall net profit and/or making an overall capital
accumulation.
He suggests the wife and the Court should know his financial
circumstances because, on 9 February 2009, his solicitor sent to the wife what
was referred to as a “background summary of the various interconnected
entities”. The solicitor also said that his firm also holds “financial records
as set out in the enclosed index”. These records relate to the background
summary and list seven entities of the nine referred to in the index and purport
to state the main assets and 2008 balance sheet asset values and 2008 pre-tax
trading profit. Nowhere for any of these entities is any goodwill value
acknowledged. There is no information about two of the entities.
Of course,
one would expect businesses which make a profit to have valuable goodwill or a
sale value. Overall, it is likely that the total value of the business interests
of the husband based upon an overall profitability of his share of about
$300,000.00 per annum before tax is significant. The stock, fixtures and
fittings in the businesses, not including land, are also of significant value.
The husband’s interest in these is about $499,406.00. None of these figures
include what seems, from the evidence that the wife has put before the Court, to
be the potential for capital gain or profit by sale of the franchises....
In the circumstances, especially the advertisements for the sale of
franchises, his failure to provide any realistic and complete evidence about the
current situation is a deficit which leaves the Court quite dissatisfied with
the extent of his disclosure about the need to sell the former matrimonial home.
This is particularly so because the figures provided do not include any profit
or asset value of two companies which appear on the face of the Background
Summary to be at the heart of the proposed franchises. One holds the
intellectual property to the manuals and agreements which ultimately would be
used for the franchise arrangements, the other holds the trade marks and
registered names which would, it seems to me, be used to the same end. Franchise
sales, proposed sales and expected forecasted sales would be bound to give these
assets a value. It is significant that in the Background Summary these are not
said to have no value, they are said to have “no assigned value”....

In all the circumstances, I am not satisfied that the husband has
established the hardship he claims or the need to sell the former matrimonial
home. I am not satisfied that the bank which holds the home as security will
force a sale. In that event, it is irrelevant that the wife may be asking for
less than she previously sought despite her claims to believe the husband’s
worth is greater than she previously believed.
The material supplied to the
wife is quite insufficient to allow her to really appreciate the husband’s
financial circumstances and she is entitled to keep her options about the
property she seeks open until she has a better idea of his position. To do that,
the former matrimonial home needs to be maintained. As no pressing need to sell
it has been established, the home should be kept and I should refuse the
husband’s application for sale of the home...

Family Court case: parents made to keep nesting in the home

In the recent Family Court case of Byrd and Byrd, Judicial Registrar Loughnan had to consider an application by the wife for sole use or exclusive occupation of the home, when the home was shortly to be sold, and for several months the husband and wife had moved in and out of the home in rotation, so as to enable the child to remain there. In other words,the wife wanted to chuck the husband out of the home, when all they had done was to the contrary.

The wife was unsuccessful. The Judicial Registrar stated:

The court has power to make an order for exclusive occupation. The power is
found in section
114. It gives the court power to make an order that is proper. Examples are
given of the sort of order that might be made under section
114 and specific mention is made of orders in relation to the use of the
home. Generally, an order will be made where it is not reasonable, sensible or
practicable for the parties to live together.
There is a sense in which this
is a silly application, because the house in question is being sold soon and the
children will be moved out of their bedrooms in any event. However, I do not
know that the house will sell. The property market is not as reliable as it once
was and it may be that the parties will not be able to sell it for a period. So
there is the potential for the issues that the parties have raised to drag on.
The problem in relation to the children is that the parties do not agree
about what the children want. In March, despite all of the problems that the
parties had experienced in the past, they thought it was in the best interests
of the children for there to be a nesting arrangement, with the adults coming
and going and the children staying in the former matrimonial home. The wishes of
the children are particularly important in a case where there is a 16 year old
child, a 14 year old child and an 11 year old child....
On one view, as I
say, this could be a trivial issue. On the other hand, it was so important to
the parties in March that they made this rather unusual arrangement.
There
is no way of me identifying what these children want in a timeframe that makes
sense of the timing of an auction listed in the middle of this month. Their
views could be obtained by having the children see a Family Consultant in the
child responsive model or I could appoint a lawyer for the children. Either
process takes a month or so.
Without being able to make a finding of fact on
a disputed issue I am obliged in a case like this, to take the common ground
position. The common ground position is that the parties felt that the children
should stay in the home and the adults should come and go. The parties have
probably interfered with each other’s private goods and personal possessions, in
the time since the orders were made. That is a real problem in a case like this
because there is a risk that privileged material will be accessed. There is also
the potential for the children to be embarrassed by bad behaviour by the
parents.
The evidence suggests that each of the parties has interfered with
the personal possessions of the other. We are only in this position because,
unusually, parties who have decided to live separately and apart forever are
sharing a house for the time being. They are doing that not because they need
to, but because they decided that they both want to have a meaningful
relationship with their children and it is more important that their children
have access to their own rooms for a period than it is for the parents to get on
with their lives.
In the circumstances it seems to me that there should be
no interference with the arrangements the parties put in place in March.
I
doubt that the children would get away with behaviour that the parents have
described in their affidavits. It cannot be very edifying. But these are not
people who anybody suggests are lacking in sophistication or suffer a defect of
reason or do not understand how to properly behave. These are people of some
standing, obviously intelligent people, obviously loving parents, and it seems
to me that they can be expected to comply with their obligations.
As has
been said on behalf of the husband, if it was so intolerable to the mother, then
the obvious remedy was to get the children straight out of the home, and that
has not been done. That is a good thing. The problems are not at a point where
it is more important the children be safely away from the incidents of bad
behaviour than it is that they have use of their own home, own bedrooms. That is
good and, hopefully, that reflects a judgment that this is really a matter of
preference rather than a matter of necessity.
As a general proposition,
children can take responsibility for bad behaviour by their parents. They think
they are responsible, especially younger children. The parties need to redouble
their efforts to make sure that is not the case. They will have been told that;
they must know it. Hopefully, we can limp through to the settlement of the sale.
If not, if either of the parties thinks that it is more important that the
children be away from the conflict than it is that they stay for a few weeks in
their bedrooms, then by all means that parent can make arrangements for them to
be somewhere else.
The advantage of the existing arrangement continuing is
to avoid an additional move. The inference one draws from the mother’s
application is that C might not move. In those circumstances, an order excluding
the husband may interfere with his relationship with C and that might not be
what she wants.
When the power of the state is to be exercised to do
so serious a thing as to exclude somebody from a property they are entitled to
be in, the Court needs to be reasonably comfortable that any change will be for
the better. I cannot be comfortable about my obligations to the
children in these circumstances.
In relation to the application about the
personal items. I will make an order for the return of items about which there
is no dispute. I am told that there are some things that are acknowledged to be
in the possession of one of the parties, that are sought by the other and the
first mentioned party does not mind returning those items.

Murri men battling domestic violence

Once Were Warriors



On Wednesday night, in my role as a White Ribbon Ambassador, I had the honour of speaking to a group of extraordinary Murri men, includng an ex-Olympian, about domestic violence and White Ribbon Day.





White Ribbon Day is held on 25 November each year. It is the UN International Day for the Elimination of Violence Against Women. White Ribbon Day is an international movement of men saying that they are opposed to violence against women.





I am one of the 600 or so White Ribbon Ambassadors appointed by the White Ribbon Foundation.





I was honoured to talk to these Murri men. In my practice as a Brisbane family lawyer, I have acted for indigenous men and women over the years. Too often there has been violence in the relationship, often much worse than seen in non-indiginous relationships, often associated with other social deprivation, such as alcohol and drug use.








I was honoured on Wednesday night because these men were taking a stand against violence against women. The fact that they wanted to hear from someone talking about domestic violence was significant in itself.





After I had said what I had to say, I was amazed to listen to the men:

• one man had previously tried to watch Once Were Warriors, the critically acclaimed fim about domestic violence in a Maori relationship. He found it too traumatising and disrespectful to women, and had only watched 10 minutes of it. Some years later he had watched the whole fim, after hearing much critical comment of how good it was. I said that I had only managed to watch 15 minutes of it myself- as I found it touched a raw nerve.
• one man, an elder, had such a passionate commitment to ending domestic violence that he chairs the committee of a domestic violence service.
• another man, Norm Stevens, considered that it was more important that he had previously been a poster boy for White Ribbon Day, than a former Olympian!

Three years ago Norm was asked by the Sergeant running the local PCYC whether Norm was prepared to be photographed for White Ribbon Day. Norm readily agreed, and photos were distributed in the local area.

For me, while was that was great, it emphasised to me how much more important Norm considered the fight against domestic violence, as against the fact that he had represented Australia in boxing in the 1980 Moscow Olympics, and that this would have taken some personal courage, given that they were the boycott Olympics.

Leave to adopt- how to get it in the Family Court

On a number of occasions over the years, I have obtained leave to adopt from the Family Court for clients. As lawyers, we rely on the precedents of other cases. The frustrating part of it, at some level, with applications for leave to adopt is that when my clients have brought these applications, I could not point them to any decided cases about leave to adopt- until now.

Leave to adopt is a requirement under the Family Law Act. It was enacted following a trend by mothers who had repartnered to have their new partner to adopt her child from a previous relationship, or both the mother and her new partner to adopt that child. The point of the adoption was often to cut out the father from any relationship with the child- once the adoption had gone through the child was no longer a child of the marriage- and bingo! - the father could no longer have any contact with the child.

As a result the leave to adopt provision was added some years ago. While it is still possible to adopt your own child from a prior relationship without the need for leave, the effect of the provision is that unless leave is obtained, the child remains the child of the prior relationship, which means that:

• the other parent subject to any orders still has a right to make decisions about that child;
• the child still has the right of a meaningful relationship with the other parent; and
• the other parent still has a liability to pay child support.

The leave to adopt provisions are rarely used. In my almost 25 years of practice I have used them four times for clients, although discussed them on plenty of others. Neither of my partners, both of whom are long standing family lawyers, have ever used the provisions.

The leave to adopt provisions are necessarily limited by state and territory legislation about who can adopt. There is no point seeking leave to adopt if it's a dead end- what's the point getting leave if as a matter of law you will be unable to adopt? For example, in Queensland it has been next to impossible for anyone to adopt unless they were married for 2 years- which cut out de facto couples and same sex couples. In Queensland this is changing to heterosexual de facto couples, but not homosexual de facto couples.

The typical case in which clients would seek leave to adopt is:

• the mother and father had split up when the child was a baby or toddler;
• the father of the child was violent and abusive;
• when the relationship ended with the mother, he took no interest in the child, and never spent time with his child, or telephoned, or wrote, or sent presents- it was as if he disappeared back into a black void;
• he never or rarely paid child support. When it was paid it was a pittance, and often paid with threats along the lines of that he would take the child if she did not cut off child support- with the counter-balance- if you stop child support, then I will have nothing to do with the child again;
• the mother's new relationship was very happy;
• for all intents and purposes the child saw the mother's new husband as her dad, and had a very loving relationship with him;
• the child knew that he had a real dad, but also had to deal with the disappointment that his real dad really didn't love him.

I remember my first leave to adopt case as it was quite poignant. The mother was a redhead with white skin and freckles. Her son was her genetic copy. Cute looking kid. Her second husband, who had been around since the son was a toddler, was Asian- with dark brown skin and black hair. And the son adored him and called him Dad, when it was evident to all, including the son, that "Dad" could never have been Dad. The son knew he had a real dadout there.

Once a client (and depending on the state or territory law, her partner as well) has obtained leave to adopt, then application needs to be made to the state authorities to adopt. Properly organised, this should proceed smoothly. Although there is a fee to be paid, it is cheaper than the application to the Family Court.

An odd requirement of the Family Law Act is that the leave to adopt provision must be made to the Family Court. There is no ability in the Federal Magistrates Court to make such an application.

In the recent Family Court case of Brooks and Sloan, Justice Austin had to consider whether to grant leave to adopt when:

• mum and dad had split up when the child was 2;
• mum had repartnered when the child was 2 1/2;
• mum and the child had moved when she was 2 from Tasmania to NSW (and presumably dad had little to do with her from that point on);
• when the child was 5, mum had remarried. No doubt the girl was a flower girl or at the least very excited about the wedding;
• dad had been served with court documents but hadn't turned up;
• there was no allegation of domestic violence;
• dad consented to the adoption;
• the girl had a little half-sister, who was aged almost 2. The daughter is now aged 7;
• the daughter was not aware of her natural father, was not aware of her pending adoption, and only recently became aware that she was not the child of her step-father;
• the daughter wanted to remain in that household.

His Honour granted leave, it being in the best interests of the child, commenting:

Completion of the proposed adoption process will therefore have no practical
effect on the day-to-day life of the child.

Most American children exposed to violence on a daily basis: researchers

American researchers have concluded in groundbreaking research that most American children are exposed to violence in their daily lives. More than 60% of the children surveyed were exposed to violence in the past year, either directly or indirectly (i.e., as a witness to a violent act; by learning of a violent act against a family member, neighbor, or close friend; or from a threat against their home or school).

The research, funded by the US Department of Justice, also found:

• Nearly one-half of the children and adolescents surveyed (46.3 percent) were assaulted at least once in the past year;
• More than 1 in 10 (10.2 percent) were injured in an assault;
• 1 in 4 (24.6 percent) were victims of robbery, vandalism, or theft;
• 1 in 10 (10.2 percent) suffered from child maltreatment (including physical and emotional abuse, neglect, or a family abduction);
• 1 in 16 (6.1 percent) were victimized sexually;
• More than 1 in 4 (25.3 percent) witnessed a violent act;
• Nearly 1 in 10 (9.8 percent) saw one family member assault another;
• More than one-third (38.7 percent) experienced 2 or more direct victimizations in the previous year;
• More than 1 in 10 (10.9 percent) experienced 5 or more direct victimizations in the previous year;
• More than 1 in 75 (1.4 percent) experienced 10 or more direct victimizations in the previous year;
• Nearly seven in eight children (86.6 percent) who reported being exposed to violence during their lifetimes also reported being exposed to violence within the past year, which indicated that these children were at ongoing risk of violent victimization;
• Nearly one in five girls ages 14 to 17 (18.7 percent) had been the victim of a sexual assault or attempted sexual assault; and
• More than one-third of all 14- to 17-year-olds had seen a parent assaulted.

The report states:

Too little is known about the numbers of children exposed to violence. Although
several studies have attempted to measure children’s exposure to violence, these
estimates have varied greatly and have often measured only a subset of that
exposure. Not only does this partial measurement fail to reveal the full extent
of violence against children, it also fails to account fully for the multiple
victimizations that many children experience; the co-occurrence of certain types
of violence (for example, intimate partner violence and child maltreatment or
neglect within a household); the extent to which exposure to one type of
violence may make a child more vulnerable to other types of violence and
victimization; and the cumulative effects of repeated exposure to violence as
both a direct victim and a witness. Basic epidemiological data are important to
determine the extent of the public health problem, the need for services, and a
baseline for evaluating progress.

The report comments on the effects of exposure of children to violence:

Children react to exposure to violence in different ways, and many children show
remarkable resilience. All too often, however, children who are exposed to
violence undergo lasting physical, mental, and emotional harm. They suffer from
difficulties with attachment, regressive behavior, anxiety and depression, and
aggression and conduct problems. They may be more prone to dating violence,
delinquency, further victimization, and involvement with the child welfare and
juvenile justice systems. Moreover, being exposed to violence may impair a
child’s capacity for partnering and parenting later in life, continuing the
cycle of violence into the next generation.

For the full report, click here [pdf].

I am now the subject of a White Ribbon Day poster campaign in Queensland http://ow.ly/uy4Q

White Ribbon Day poster for Queensland

I have now discovered that I am the subject of a White Ribbon Day poster to be distributed throughout Queensland by the White Ribbon Day campaign. White Ribbon Day is on 25 November each year and is the UN's International day for the Elimination of Violence to Women.

If you think property settlement is bad in Australia, try England: Australian Divorce Blog http://ow.ly/uxZq

Family Court starts using its domestic violence best practice principles : Australian Divorce Blog http://ow.ly/uxYY

Gya couple allowed to go to court about lesbian's child, who was not genetically theirs: Aust Gay and Lesbian Law Blog http://ow.ly/uxX1

You think property settlement is bad here, try England

For all those who think that property settlement rules in Australia are hard to understand, be thankful you don't live in England or Wales.

Here the rules are relatively simple:

1. identify the property and value it
2. assess financial and non-financial contributions of each of the parties
3. weigh up any future factors under section 75(2) of the Family Law Act
4. come up with a just and equitable (or fair) result

Sometimes, just sometimes there might also be an order for spousal maintenance. In the scheme of things these are pretty rare. Section 81 of the Family law Act makes plain that there should be a clean break principle after people split up. This in itself helps discourage spousal maintenance claims.

And while individual judges might come up with different results, above all of them sit the august members of the Full Court of the Family Court (and above them also sit the High Court) hearing appeals and giving guidance to all family law judges and magistrates about how they should decide their cases.

Contrast this with the position in England and Wales, where according to The Times:

• there is no real distinction between property settlement and spousal maintenance, meaning that any result is possible.
• the north of the country is seen as favourable to men, and the south to women.
• lawyers are forum shopping- so if you are a man you might try your luck in the north, but if a woman, try your luck in London.