Friday, 28 March 2014

Documents in family law cases can make all the difference

One of the differences between social workers and lawyers is that social workers like to listen to people, while lawyers like to use documents. Documents at times can damn someone’s case in court.

Many years ago I acted for a mother who had acted foolishly, and I figured was at risk of the Family Court judge removing the kids from her care and placing them with dad. That was until I discovered that the father used to obsess about his work and go there for hours, instead of caring for the children. Much as he said that he was caring for the kids, if I could prove that he was at work, then the father must have been lying, and the kids must have been cared for by my client, which would mean that the judge would be unlikely to take the kids off my client.

I quizzed my client carefully to find out if there were any documents that would show his movements. The eureka moment was subpoenaing the father’s security swipe card movements at work. Reams and reams of paper were produced. And what they showed was without doubt- the father was at work at all hours of the day and night- not at home caring for the children as he claimed. He was shown to be a liar, and even more importantly, it showed that my client had cared for the children. The result: only on the basis of the swipe card movements the kids got to stay with my client. Thorough preparation made all the difference.


Wednesday, 26 March 2014

Avoid the tax slug when you do a family law property settlement

“The ATO’s slugged me $9,000!” said my new client when she came to see me. “How rich! All I did was a property settlement with my ex.”
All of which was true, but what I soon discovered was that my client had not taken the most basic step of a property settlement- having orders made by the Family Court by consent. This is because she and her ex decided, at least in her case without the benefit of legal advice, to have an informal property settlement. And now she was wearing the consequences.
The deal was that she would transfer her share of the investment home to the ex, and he would transfer his share of the family home to her. Capital gains tax was not payable by him on the transfer of the family home, as there is an exemption for CGT on family homes. However, because there was a transfer by her to him of the investment property, capital gains tax was payable by my client, which was calculated at $9,000. It was too late the fix the mess, as the transfer had already occurred.
When the bill came in from the ATO, my client immediately phoned her ex, demanding that he pay the $9,000. His response- he couldn’t, because he had to pay stamp duty on the transfer. Again, because they hadn’t gone through the right procedures, tax was payable by him, when it could so easily have been avoided.
The moral of this tale? When splitting up, always get advice from someone who knows- an accredited family law specialist, and take simple actions approved by the government that avoid spending hard earned moneys on otherwise unnecessary taxes.

Tuesday, 25 March 2014

Attention to detail wins Family Court cases

I have lost count of the number of cases where my attention to detail made all the difference to whether my client was successful or not in a case. For example, a father swore that his criminal history was attached to his affidavit. When I looked at his criminal history, I noticed the very small print that said it had been printed by police on Christmas Day, some months after the father’s last conviction. Alerted, I wrote to the father’s solicitors- and voila!- it turns out that there was another criminal offence- when he had broken into someone’s house and terrorised them, resulting in a suspended jail sentence. Oops!

I remember well two superannuation cases- both involving accredited specialists on the other side. In one, the specialist was insistent that a valuation not be obtained. My client’s super should have been worth $1 million, but on the papers was worth only a quarter of that. The specialist cost his client about $400,000.

In the other, the superannuation statement said that it was worth $200,000. Well, that was on the top of the page. The specialist calculated that the value of my client’s super was $200,000. Whoops! In the fine print on that same page, that I saw and he should have seen if he had been careful with the document; if certain conditions were met (and had been met), my client’s super was worth double that: $400,000. I got ethical advice on that one. I could not mislead the other lawyer, but nor was I obliged to correct his (major) error. The other lawyer cost his client about $120,000.

It is absolutely essential when engaging a lawyer that you have one who has that attention to detail. Otherwise it could cost you a lot of money, or have disastrous repercussions for you in court.


Tuesday, 28 January 2014

Japan signs up to the Hague Convention

Well it might start on April Fool's Day, but Japan has at long last signed up to the Hague Convention. Hopefully at last Japan will no longer be the butt of criticism that once a child is taken to Japan from another convention country it will never return.

Last Friday Japan ratified its signature with The Hague, with the convention due to take effect in Japan on 1 April 2014. Japan joins 89 other countries, including Australia, most of Europe, USA and New Zealand, in being a party to the Convention.

The Convention is the prime means to make children return to the country from which they were wrongfully removed or to the country to which they have been wrongfully retained, provided that both countries are parties to the Convention. The formal name for the Convention is the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.

The effect of the Hague Convention is that a parent in one country can complain to his government as to the child abduction, which then remits the complaint to authorities in the second country. In the jargon the authorities in each country are called the Central Authority. The Central Authority in the second country typically applies to a court to have the child returned to the first country.

While Hague applications can be very technical applications to run or to defend, generally the children are sent home. Two key aspects of Hague applications are that the best interests of a child are not the paramount concern of the court (unlike other matters concerning children) - so there shouldn't be an endless pursuit of whether or not it is a good idea to send the child home; and it is presumed that authorities in the home country are able to protect the child.

The Convention was signed at The Hague in the Netherlands because that is where an international body of countries, the Hague Conference on Private International Law, is based.

The move by Japan is long overdue. Among Western countries, Japan has long been criticised for not signing the Hague Convention because of domestic beliefs that Japanese children ought to remain in Japan. This step while long overdue is welcome. Let's hope Japan is able to enforce the Hague Convention. Time will tell.

Monday, 13 January 2014

The appalling state of domestic violence in Pakistan

Or more correctly, the appalling state of the role of women in Pakistan.

First, the light at the end of the tunnel: one province, Punjab, has enacted domestic violence laws, and advocates are calling for the other provinces to do the same. Wonderful! The sooner the better.

However, little action seems to be forthcoming, and what is occurring is in circumstances that are terrible for the women in Pakistan. This is according to a report in the News International, a Pakistan online newspaper.

Let's start with comparatives. In Western countries such as Australia, it is commonly estimated that in a lifetime between 1/4 and 1/3 of women will be subjected to domestic violence from their partners- whether it be emotional abuse, physical abuse, sexual abuse or some other form of abuse.

The figures from Pakistan are off the dial. According to Kanwal Qayyum from Rutgers WPF, an NGO specialising in reproductive rights, 85% of women suffered violence from their partners, or to put it another way only about 1 in 7 women didn't, and almost half or 47% of women copped violence from their partners during pregnancy.

Unbelievably it gets worse.

The perpetrators of violence are not only male partners. They extend to fathers (58%), mothers (32%), stepfathers (7%), and other male/female family members (24%), according to one speaker.

According to another expert, perpetrators of domestic violence are the husbands in 71% of cases, and mothers-in-law in almost 10% of cases.

But that's not all! A solid majority of women have been subject to both physical and sexual violence in the last year: 56.3% of women were subject to physical violence in the last year, 57.6% over a lifetime; and 53.4% of women were subject to sexual violence in the last year, 54.5% over a lifetime, according to Dr Tazeen Ali from Aga Khan University.

By comparison, the 2012 Personal Safety Survey by the Australian Bureau of Statistics says that 1.2% of Australian women were subjected to sexual violence in the last year and 4.6% were subjected to physical violence in the last year, and 20% for sexual violence and about 35% for physical violence over a lifetime.

Monday, 9 December 2013

A Christmas survival guide- by a divorce lawyer

Christmas is the best of times and the worst of times. For most of us, Christmas is the best of times- the time that we can spend with friends and family with joy. For some of us, Christmas is an agonising period when relationships end, and there is no contact with children or close family: a recipe for loneliness. Christmases spent that way are tough.  For family lawyers, Christmas often brings in many new clients who have split up over Christmas, or who argue about Christmas.
Here’s how to survive the agonies of Christmas:

  1.  Don’t blow the credit card. There’s nothing worse in January when the bills come home to roost, and blame is flung about like manure in stables. Avoid, avoid! 
  2.  Cool down. Getting hot and bothered at Christmas is a sure fire to start the fight to end all fights. Jump in the pool, get into air con, stand in front of a fan- do whatever you have to do to get cool. Don't remain overheated. 
  3. Tolerate the in-laws. You would be amazed how many times dealing with an annoying relative at Christmas can be the straw that broke the camel’s back. Your father-in-law might be the ugliest man alive, but it might be best not to remind him of that in florid language. Aunty Eva might be an ugly witch- but to remind her of that, with grog and a few choice words thrown in, is a good recipe for spending many thousands of dollars on divorce lawyers. 
  4.  Don’t drink too much. Dehydration, hangovers and lack of inhibition from drinking are a wonderful recipe to end a relationship. 
  5.  Remember the kids. Arguments about kids at Christmas are usually pointless. The arguments are often bigger than the original point made- and almost always bounce back to hurt the kids.Make their interests the priority- not your ego. 
  6. Take care with driving. Although it might be possible to drive straight from Brisbane to Mackay in one go, driving huge distances without rest and relaxation is not only stressful, but it could be deadly. 
  7.  Plan ahead. If you know you are going to be alone at Christmas- take action to be with friends, or if you have money- travel. Why not? 
  8.  Don’t do anything silly. It is easy to be depressed when alone and everyone else seems to be enjoying their time. Remember that you are loved and cherished. If in doubt, call Lifeline 13 11 14. 
  9. There’s always next year. Planning your Christmas to the nth degree might be a good thing, but don’t stress if things don’t all go to plan. They usually don’t. The nuclear option at Christmas time is usually the worst. 
  10.  Spare a thought for others. While you have been self-destructing, remember those who work through Christmas providing essential services. They have to get on with it, and help others.

Thursday, 24 October 2013

How Google catches up with those who spam blogs

I am amazed at times about the number of people who try to take over my blogs, so that they get backlinks to their site- by trying to post "comments" to my posts.

Sometimes these are people promoting get rich schemes or surrogacy, or swingers parties of all things, sometimes to use Julia Gillard's words "nutjobs", and sometimes I am ashamed to say they are fellow lawyers. What a divorce blog in Australia has to do with injury lawyers in Canada for example who want to tout their wares is a mystery to me.

Most importantly, I don't allow others to spam my site.

I want to make it plain that I am not opposed to fellow lawyers (or anyone else for that matter) commenting on my blogs- provided they have something relevant to say, and they are not just trying to spam my blog with meaningless drivel that has no relevance to the post concerned, but just happens to say how wonderful they are and provides a convenient back link.

That behaviour simply won't be tolerated.

This issue came into stark relief this week when I was contacted by a fellow (Australian) lawyer who has in effect been black banned by Google because there are too many suspicious links leading to that lawyer's website. "Get rid of the links" he's been told, or the black ban remained. With the black ban in place his website has disappeared off Google into the pit of doom, never to be seen again until the problem is fixed. Yes, there are other search engines, such as Bing- but offend all conquering Google and watch out!

 That lawyer has asked me to remove his comments on my blog. I will do so. The irony? I didn't take his comments on my blog to be spam. I thought they were legitimate comment.