Sunday, 23 August 2015

Australians loved using Ashley Madison

Recent figures from Reuters, folllowing the Ashley Madison data dump, show an extraordinary number of Australians used the website, presumably to have affairs. The numbers are simply astounding, and Aussies took to Ashley Madison with gusto- at twice the rate of big cities overseas:

Sao Paulo, Brazil is the overall winner with 374,542 users.

The population of Sao Paulo is about 11 million, or about half the Australian population in that one city. In other words, about 3% of the population had signed up.

New York: 268, 171

New York has a population of 8.4 million. About 3% again.

Sydney: 251, 813

Sydney has a population of 4.3 million. Almost 6%!

Melbourne: 213, 847

Melbourne has a population of 4.1 million. About 5%.

Brisbane: 118,857

Brisbane has a population of 2.1 million. Almost 6% again!

Perth: 88,754

Perth has a population of 1.8 million. Just under 5%.

Sunday, 16 August 2015

Divorce filing fees stay down- for now at least

"Those magnificent men in their flying machines,
they go up tiddly up up,
they go down tiddly down down.": Those Magnificent Men in Their Flying Machines

A great quote to describe the  way that family law filing fees have been going.

Before 25 June they were down. They were going to go upppity up, up on 1 July: substantially. Then the Senate stepped in on 25 June and disallowed the increase. They remained tiddly down, down.

That might once have been the end of the matter as the Legislative Instruments Act 2003 provides that when a regulation is disallowed by the Senate, that instrument cannot be reintroduced for 6 months.

The Government was not to be outdone. On Sunday 12 July 2015, when the Senate was in recess, the Government hiked the fees again uppity up, up- to take effect the following morning, Monday 13 July. However, just to make sure that the Government didn't get stuck by the Legislative Instruments Act, the fees were hiked up by an extra $5.

The fee hike was substantial:

  • A $355.00 increase in the full Application for Divorce fee in the Federal Circuit Court of Australia from $845.00 to $1,200.00. This increase matches the full Application for Divorce Fee in the Federal Circuit Court to the Family Court of Australia, which has increased from $1,195.00 to $1,200.00;
  • An $85.00 increase in the fees for an Application for Consent Orders from $155.00 to $240.00;
  • A $70.00 increase in the fees for issuing subpoenas from $55.00 to $125.00; and
  • A new filing fee will be payable for the filing of amended applications or subpoenas in the sum of $125.00.
I do not recall in 30 years of practice that chaos like this has happened from a fee hike. Those who lodged their fees by post were rejected because the amount was too little. Suddenly solicitors were demanding more money from disgruntled clients for the filing fee, because the Government had made the changes without any notice.

The ALP and the Senate were not to be outdone.

The first step was to challenge the tiddly, up, up in the Federal Court. ALP members Graham Perrett and Senator Claire Moore were in the Federal Court seeking to get the fee hike set aside, suing Attorney-General George Brandis in the process, and to go tiddly down, down. If they had been successful, then any reduction in fees by the Senate overturning the fee hike would have had to be refunded by the Commonwealth government.

They were not successful, the Federal Court deciding that fee hike was different from the previous uppity, up, up.

In the meantime the Senate came to the fore again and disallowed the fee hike. Unless the Government introduces yet another, different fee hike, the fees remain as is, the 25 June rate, for the next 6 months with the divorce filing fee at $845, not $1200, for example.

Watch this space to see what happens next!

Sunday, 2 August 2015

Defending a Hague Convention case

Of all the cases that are the hardest to defend, and therefore the one to make sure is handled the most carefully, is a Hague case. They are not to be trifled with.

Hague cases are technically demanding, and it is essential to get the detail right- first time. Because they are often dealt with very quickly, attempting to patch up a defence to a Hague case because of mistakes made earlier may be too little, too late. It is essential when defending a Hague matter not to jump to conclusions, and to examine the evidence very carefully.

So that I am not speaking in tongues, a Hague case is one brought under the Hague Child Abduction Convention of 1980. The concept of a Hague case is really simple- it is designed that by the most efficient means that the children will be returned to the country that they came from.

There are some tricks to Hague cases, and cases when they are defended sometimes turn on hotly contested facts, but here goes:

  • A child is taken from country A to country B.
  • Both countries have to have signed up to the Hague Child Abduction Convention. Sometimes this is called ratification, but could be accession or succession.
  • An added trick is that even if a country has signed up to the Hague Child Abduction Convention, they may not have signed up with the other country. In other words, both have signed up, but not with each other.  This is because one country may have placed a reservation with the other country.
  • The child was wrongfully removed from the first country or if properly removed from the first country was wrongfully retained in the second country. It is important to check that there was a wrongful removal, if that is alleged. It may be that because of the laws of country A that what at first glance is wrongful turns out not to be so.
  • The first country must be the child's habitual country of residence. If not the Convention does not apply.
  • The wrongful removal or wrongful retention was in breach of rights of custody of a person. "Custody" has technical requirements and includes the right to determine where the child can live. In Australia, the term "custody" is generally not used. The term "custody" within the meaning of the Convention would in Australia generally equate to parental responsibility. The question of this breach can depend on complex facts and law, and needs to be checked carefully.
  • The person whose rights of custody have been breached then approaches the government in their country which then sends paperwork to the Australian government, which then sends them to the local authorities, such as the NSW Central Authority, to apply to the Family Court to have the child returned.
  • That person must have, but for the actions complained of, been exercising rights of custody before the removal or retention.
  • The child must be under 16.
  • The application has been made within 1 year of the wrongful removal or retention. 
As you can see, even with this thumbnail sketch, Hague applications are very technical matters.

In defending a Hague matter, it is usually better to be able to defeat it on one of these technical points, rather than have to rely on one of the five defences. The reason is simple- even if the defence is made out, it is then a matter of discretion for the judge about whether the child should return. Quite often the judge will find that the defence is made out, but in light of the overall requirements of the convention order the child to go home.

The five defences are:

  •  the person was not exercising rights of custody
  • the person consented or acquiesced to the removal or retention
  • there is a grave risk to the child who would be placed in an intolerable situation of being returned (this can be a very tricky defence to establish)
  • a mature child objects to being returned- and has a strength of feeling on the point that goes beyond mere wishes
  • it would be a breach of human rights and fundamental freedoms to return the child

It is a mistake to assume that the basis of the Convention is that the best interests of the child are the paramount concern. This is not the basis of the Convention. The Convention is designed to ensure a quick return of the child back to their home country, where matters such as with whom the child can live will then be determined. Judges have often said that their role is NOT to determine best interests. that can be determined somewhere else.

I have enjoyed both prosecuting and defending Hague cases in Australia and overseas.

International Academy of Matrimonial Lawyers to become the International Academy of Family Lawyers

Context is everything, as they say. What might be a perfectly acceptable use of English in one part of the world could in another part be screamingly funny, because of local colloquial language.

The same applies to businesses.

I discovered that this week, when I received a letter from International Academy of Matrimonial Lawyers President, William Longrigg, that the Academy is changing its name from the outdated International Academy of Matrimonial Lawyers to the more modern International Academy of Family Lawyers. An overdue and welcome change. I am proud to be a Fellow of the Academy, the most prestigious group of family lawyers in the world, and I am pleased that its name is changing with the times.

But to get to this point, of possibly changing the name,  the Board of the Academy decided to engage a brand consultancy, which was- wait for it-  Red Rooster Group, not Red Rooster in Australia, the national fast food chicken chain

It was one of those letters I had to read twice, wondering whether I had read it correctly. I had indeed!

Monday, 6 July 2015

Some basic lessons of mediation: learnt over 29 years!

It is hard to believe, but it is now almost 30 years since I attended my first mediation in family law.

Back then we didn't call them mediations. We called them legal aid conferences. Legal Aid Queensland worked out that it was broke and decided to do something innovative- rather than fund both parties to go to court (remember when they did that), it thought that it could innovate by mediating a dispute, and hopefully get the matter resolved, with a better outcome for the parties, the children and taxpayers.

It pioneered an approach nationwide that then rolled out across the country, being finetuned year after year since then, aided by regulatory changes in 1996 and (a big lick of money as well) in 2006.

How we mediate has changed considerably since those pioneering days. No longer it is done in the lunchroom at Legal Aid's Woodridge office (at least I hope not!). Back then there were no offices for this new program, so the staff lunchroom was the one that was requisitioned. It was the only one big enough, but there were some obvious drawbacks:

  • everything had to stop at lunchtime, whether we liked it or not. Legal Aid employees in the office at the time quite rightly used to get quite snappy when they couldn't have their lunches! It was bad enough that they were prevented form having their coffees!
  • there was no ventilation. Sooner or later the oxygen level in the room would drop, the heat would increase and we would have to open the door to vetilate- rather defeating the confidentiality of discussions.
Since those pioneering days (back when Legal Aid Queensland had its headquarters in what is now Macarthur Chambers), mediation practice is much more streamlined. There are some common features between then and now:

  • It's not court! The mediators role is help fashion an agreement. It is not to find fault or determine who is telling the truth. He or she is not the judge.
  • Similarly, there are no witnesses. It's just and your ex (or more parties for more complex disputes). No one is getting into the witness box.
  • It is a bargaining exercise. The whole idea is to see if you can cut a deal, either about your kids or your money or both. It is a reality test.
  • If you can cut a deal, then that deal is usually the best. You don't want to be cut short, but then you don't want many months of agony, spending countless thousands on legal fees, taking time off from work, and always wondering whether you will be ok.
  • You are in much more control of the outcome than if you have a trial. While trials can have their cleansing and therapeutic sides- that type of trial is very rare. Much more likely is that someone who does not know you, your ex or your kids will be making hurtful comments about your and your childrens' lives. This can be largely avoided by mediation, or as we seem to be compelled to call it these day in children's matters- family dispute resolution.
  • It's good to be prepared! I have lost count of the number of clients who have come to see me for the first time, to get advice about the deal of the century that they have signed at mediation. Too often I shake my head and say- this is a bad deal, and it could have all been avoided if only you had properly prepared for mediation, including obtaining legal advice before you turned up.
  • When it comes to property matters it is important that there is as much agreement as there can be about the property pool and the history of contributions.
  • Mediation is generally ill advised in domestic violence and sexual abuse cases, or similar cases. Each of the parties must feel as though they have equal bargaining power- otherwise mediation is pointless.
  • If there is a domestic violence or similar order, it needs to be considered carefully before the mediation occurs, as the terms of the order might mean undertaking mediation in some form (or at all) is a criminal offence.
  • Mediation is not limited to occuring in person. Most occur in separate rooms, but can also occur via technology, such as Skype or phone. 
  • Going to mediation can be stressful! Guaranteed you will feel worn out afterwards!
  • Don't resile from the deal. It is better not to sign a deal, than to feel pressured, sign away and then the following day or week say- no, I am not going through with that. If you think things were ugly and bitter before the mediation, guaranteed that they will be a whole lot worse afterwards.
  • You can still live in hope. Many matters that don't settle at mediation settle afterwards. Last week one of our clients settled her matter some weeks after mediating. After they were poles apart at mediation, I thought that the chances of going to trial were very high. A great outcome!

Wednesday, 18 March 2015

Impacts of domestic violence: Bryce taskforce

The Bryce task force set out the impacts of domestic and family violence:

At the extreme end of domestic and family violence is homicide. The National Homicide Monitoring Program reported that, between 2010-11 and 2011-12, 39%, or 187 of the 479 homicides in Australia, were domestic homicides, with 58% of these being intimate partner homicides.35 Nearly two-thirds of domestic homicides were women (n = 121, 62%). Overall, 76% of all female homicide victims killed throughout 2010-11 and 2011–12 were killed by an offender with whom they shared an intimate partner relationship, while a greater number of male homicide victims were killed by a friend or an acquaintance (81%).36
In Queensland, the Domestic and Family Violence Death Review Unit reports that approximately 45% of all homicides between 1 January 2006 and 31 December 2012 occurred within an intimate partner or family relationship.37 Factoring in multiple homicides, a total of 167 offenders were responsible for these deaths. Of these, 82.03% (n=137) were male, 15.57% were female (n=26) and 2.4% (n=4) of the incidents involved both a female and male offender.
During this time period, 56.67% (n=102) of deaths occurred within an intimate partner relationship. This includes people who were married, in a de-facto relationship, people who had a child together, or who resided together as a couple. This category also covers people engaged to be married as well as couples that were separated or divorced.
Of the total number of domestic and family violence related deaths, women were more likely to be killed in an intimate partner relationship, whereas men had a higher propensity to be killed within a family relationship. Of the total number of deceased killed within an intimate partner relationship, 79.41% (n=81) were female and 20.59% (n=21) were male. Three deceased males were killed by their male intimate partner whereas all female deceased were killed by a current or former male partner.
The Domestic and Family Violence Death Review Unit defines family relationships as those between people who are related either biologically or through marriage including parents, children, siblings, cousins, aunts, uncles, or nephews. Between 1 January 2006 and 31 December 2013, 38.89% (n=70) of deaths occurred within a family relationship. Of the total number of people killed within this type of relationship, 42.86% (n=30) were female and 57.14% (n=40) were male.
page82image19720 page82image19880

Health impacts
Domestic and family violence has significant, and often long-term, impacts on health and wellbeing. Internationally, the World Health Organisation’s 2013 report on the prevalence and health effects of intimate partner violence and non-partner sexual violence found that violence against women is pervasive globally, describing it as “a global public health problem of epidemic proportions, requiring urgent action”.38
In Australia, the Victorian Health Promotion Foundation researched the health burden of intimate partner violence in Victoria. It found this type of violence contributes to 9% of the total disease burden of women aged 15 to 44 years. Of this total disease burden, 60% was due to mental health problems. Intimate partner violence was the leading contributor to illness, disability,
and premature death for this group, over and above other known risk factors of obesity, high cholesterol, high blood pressure, and illicit drug use.39
Family violence has a significant impact on the short and long-term health and welfare of Aboriginal and Torres Strait Islander individuals, families and communities. The Overcoming Indigenous Disadvantage Key Indicators 2014 Report revealed that in 2012-13, after adjusting for different population age structures, Aboriginal and Torres Strait Islander hospitalisations for non- fatal family violence-related assaults for females were 34.2 times the rate for non-Indigenous females and for Indigenous males were 28.3 times higher the rate for non-Indigenous males.40
It is estimated that more than one million Australian children are affected by domestic and family violence.41 Children are affected by both the direct and indirect experiences of violence in a range of ways: through hearing or otherwise witnessing the violence; being used as a physical weapon; being forced to watch or participate in assaults; being forced to spy on a parent; being informed that they are to blame for the violence because of their behaviour; being used as a hostage; defending a parent against the violence; and/or intervening to stop the violence.42
Children can suffer serious negative impacts on their emotional wellbeing, health, ability to learn and ability to develop positive relationships with others. Psychological and behavioural impacts have been documented:
  • »  Depression
  • »  Anxiety
  • »  Trauma symptoms
  • »  Increased aggression
  • »  Antisocial behaviour
  • »  Lower social competence
  • »  Temperament problems
  • »  Low self-esteem
» The presence of pervasive fear » Mood problems
» Loneliness
» School difficulties
» Peer conflict
» Impaired cognitive functioning
» Increased likelihood of substance abuse.43
Domestic and family violence is the major cause of homelessness in Australia.44 The Australian Institute of Health and Welfare Specialist Homelessness Services Annual Report 2013-2014 collected data found that an estimated 84,774 adults and children (33% of all clients) sought assistance as a result of family or domestic violence. This was an increase of 9% from 2012-13, including an increase of 14% in the number of children experiencing family or domestic violence. The highest proportion of clients requesting assistance for domestic and family violence were living as a single parent household (with a child or children) (46%) and at risk of homelessness when first presenting for support (60%).45
Indigenous people represented 23% of those accessing specialist homelessness services in 2013-14.46 Among Indigenous people who sought Specialist Homelessness Services, 22% reported domestic and family violence as their main reason for seeking assistance.47
Economic impacts
In 2012, KPMG estimated violence against women and their children cost $USD 14.7 billion or roughly 1.1% of Australia’s GDP, based on the prevalence of reported violence.48
The Queensland Government estimates that the annual cost of domestic and family violence to the Queensland economy is between $2.7 and $3.2 billion.49
In 2009, KPMG prepared a report for the Commonwealth Government that set out the costs, both financial and non-financial, that would be incurred by doing nothing to reduce or prevent violence against women and their children. The report set out seven cost categories including:
  1. Pain, suffering, and premature mortality costs associated with the victims/survivors experience of violence
  2. Health costs, including public and private health system costs associated with treating the effects of violence against women
  3. Production-related costs, including the cost of being absent from work, and employer administrative costs (for example, employee replacement)
  4. Consumption-related costs, including replacing damaged property, defaulting on bad debts, and the costs of moving
  5. Second generation costs which are the costs of children witnessing and living with violence, including child protection services and increased juvenile and adult crime
  6. Administrative and other costs, including police, incarceration, court system costs, counselling, and violence prevention programs
  7. Transfer costs, which are the inefficiencies associated with the payment of government benefits.50 

Tuesday, 17 March 2015

Defining domestic and family violence: Bryce report

The Bryce report provides an excellent discussion of what is domestic violence and family violence:

Domestic violence, also called intimate partner violence, occurs in a variety of forms including physical, emotional, and economic violence within any type of relationship against any person.
Domestic violence presents a unique definition challenge, as it encompasses a broad range of behaviours. Domestic violence can occur within any form of relationship, towards any person, at any time, regardless of personal, cultural, or economic standing.
In Queensland, the Domestic and Family Violence Protection Act 2012 (the Act) provides the legal instrument to respond to domestic and family violence. The Act covers:
  • »  People who are in a relevant relationship, which includes intimate personal relationships (married and de facto spouses, parents of a child, engaged and couple relationships, including same sex couples)
  • »  Family relationships (adult relatives by blood or marriage, including extended or kinship relationships where a person is regarded as a relative)
  • »  Informal care relationships (where the carer is unpaid).
    The Act defines the conduct of domestic violence as including physical, sexual, emotional, psychological, and economic abuse or any other threatening, coercive, or controlling behaviour which causes the victim to fear for their safety or wellbeing or that of someone else. Examples of this type of behaviour include:
  • »  Causing physical injury
  • »  Threatening physical injury or death whether towards the primary victim or others,
    including pets
  • »  Coercing or forcing the victim to engage in sexual activity or attempting to do so
  • »  Threatening to, or depriving a person of, their liberty
  • »  Damaging a person’s property or threatening to do so
  • »  The perpetrator threatening to self-harm or suicide for the purpose of tormenting, intimidating or frightening the person to whom the behaviour is directed
  • »  Conducting unauthorised surveillance of the victim (may include following or tracking the victim, monitoring telephone calls, text messages or email) or unlawfully stalking the victim
  • »  Controlling or withholding the family assets and income which denies the victim economic or financial autonomy or the ability to pay the reasonable living expenses for the family
  • »  Tormenting, intimidating or harassing the victim (may include repeatedly following or contacting the victim without consent, derogatory taunts, withholding medication, disclosing the victim’s sexual orientation without consent).
Australian jurisdictions  do not share an agreed definition of “domestic violence”, “intimate partner violence”, “family violence” or a similar relevant term. Regardless, all agree that this violence
can take forms other than physical abuse. Figure 4 provides one definition of the broad range of activities that constitute domestic and family violence. Similar to the Queensland legislation these are: physical, verbal, social, economic, psychological, cultural/spiritual, sexual and emotional.

Many practitioners, policy-makers and researchers support a contemporary understanding of domestic violence which acknowledges forms of abuse characterised by the following elements:
  • »  Parties are in, or have been in, an intimate partner relationship
  • »  There is an ongoing pattern of behaviour rather than a “one-off” or situational event
  • »  The purpose of the violence is for one person in the relationship to maintain power and control over the other person
  • »  It creates fear
  • »  A range of tactics are employed
  • »  Behaviour can be both criminal and non-criminal.
    Quiz me about where I was going and what I was doing. Send 20- 40 text messages to me while he was at work. He even put the “Find my iPhone” App on my phone so he could track my every move... He plays mind games and manipulates me to a point where I think I am going crazy.
    from a contributor to the Taskforce
    Intimate partner sexual violence presents a specific form of domestic abuse which occurs between two individuals in an intimate partner relationship. Intimate partner sexual violence is not limited to male and female intimate partner relationships and is evident across the spectrum of intimate relationships. It can be defined as unwanted sexual contact or activity by an intimate partner for the purpose of controlling an individual through fear, threats, or violence. Intimate partner sexual violence includes comparable behaviours to domestic violence and can be a component of physical domestic violence or a stand-alone offence.
    The consequences for victims of intimate partner sexual violence require a different understanding than victims of physical domestic violence and/or sexual assault. The trauma experienced by intimate partner sexual violence victims may present a more complex range of issues than traditional sexual assault due to a combination of both sexual and domestic violence elements.14 Issues unique to intimate partner sexual violence victims include:
  • »  Longer-lasting trauma: Research reveals that the trauma can be longer lasting. Significant reasons for this are a lack of recognition and an inability to share the pain15
  • »  Higher levels of physical injury: If we accept that generally most rapes are not physically violent, those that do involve injury are likely to be partner rapes16
  • »  The incidence of multiple rape: Although intimate partner sexual violence can be a one off, survivors of intimate partner sexual violence suffer the highest frequency of multiple rapes17
  • »  Difficulty defining the act/s as sexual assault: Society is socialized to see rape as involving non-consensual sex between two strangers. Additionally, there may be reluctance to define a partner as a “rapist.”18

Family violence is a broader term most often referring to violence between family members as well as violence between intimate partners. It involves the same behaviours as domestic violence. In the Australian context, family violence is the most widely accepted term used to acknowledge the experiences of Aboriginal and Torres Strait Islander people as it encapsulates the violence which occurs within a broad range of kinship relationships.
Defining domestic and family violence has significant implications for how the criminal justice system, including police and courts, the human services sector, and the broader community recognise, understand, and respond to this very serious and complex social issue. While any act of violence is unacceptable, giving the term too broad an application risks diminishing the insidiousness of the conduct.
Commonly held understandings of domestic and family violence often assume acts of physical violence within a relationship and in the home; however domestic and family violence is much more complex. In an abusive relationship, the victim may be subject to one or more forms of violence or corrective control which may be it physical, sexual or non-physical.
Non-physical forms of domestic and family violence include verbal abuse, social isolation, economic abuse, psychological abuse, and even use of spiritual or cultural beliefs to justify violent or abusive behaviour or to force victims into subordinate roles. The central element of the behaviour is that it involves an ongoing pattern aimed at controlling the subject of the violence through fear, and use by the perpetrator of a range of tactics to exercise power and control.