Sunday, 29 November 2015

Qld to make strangulation a criminal offence

Following on recommendations of the Quentin Bryce domestic violence taskforce, the Palaczszuk government will this week introduce a bill to the Queensland Parliament to make choking a separate criminal offence.

Hooray!

I recall speaking at a domestic violence conference about 15 years ago when speakers came from the US about prosecuting strangulation cases. The two impressions I gained at the time were:

  • strangulation was often downplayed by all concerned- eg, sex play, or a fit of jealousy, and was often not mentioned, or forgotten about
  • but its lethality was in a different league to being punched- because pressure on the throat could cause a rapid loss of supply to the brain for up to TWO WEEKS after the incident.
I have been told by many clients over many years that their former partner attempted to strangle them- sometimes in the context of sex, and sometimes in anger.

Whenever I have raised the issue of strangulation with clients since the issue was highlighted all those years ago, and the risk that they had of being killed, they have often been shocked about what they have endured, raised strangulation with police, but nothing has been done.

Making this as a separate criminal offence will hopefully shine the spotlight on  this  crime, and hopefully bring it to an end. It will also be necessary for police to be properly trained, and be prepared to take action to prosecute.

Divorce rate goes down

In the midst of all the daily drama in the news, with society seeming to be getting worse, it is surprising to learn that the divorce rate is going down. Yes, down, not up. This does not appear to be a statistical anomaly, but reality. People seem to be staying together (slightly) longer before separating, and taking longer to get divorced.

Figures released from the Australian Bureau of Statistics show that we are:

  • living together more before marrying
  • getting married later
  • getting divorced older
In the last 10 years, the divorce rate has decreased by a third. It used to be 2.7 divorces per thousand in 1994, but by 2014, in a consistent downwards tend it was 2.0 divorces per thousand. The figures in absolute terms has gone from 48, 312 in 1994, peaking at 52,727 in 2004, and last year down to 46,498.

The length of marriage before separation over that time grew from 7.6 to 8.4 years, although in recent years the length was slightly longer, up to 8.8 years in 2010. Similarly the number of years between marriage and divorce has increased over that time from 10.9 years to 12, although in 2004 it was 12.3 years.

However, we are either staying single or living together instead, because the marriage rate is down. Marriages in 1994 were 6.2 per thousand. In a consistent downward trend, by 2014 that had dropped to 5.2 per thousand, although the absolute number had gone up from 111,174 to 121, 197 celebrated in those years.

The number of children affected by divorce has also dropped, from 47,537 in 1994, to 40,152 in 2014. This is a consistent trend. It could mean that we are getting older (which we are, and therefore children are not under the age of 18 at divorce), or that we are not having as many children as we once were, or that we are living together more and not getting married.

What is a safe level of alcohol? NHMRC: no more than 2 standard drinks per day.

The other day in the lead up to White Ribbon Day when I was in Sydney, I was accosted by a complete stranger who told me that the reason why we had domestic violence in Australia was because of the big breweries. His theory, he told me, was that we had to bring those brewers to account in order to bring domestic violence to an end.

Regrettably I had little time with this gentleman, as I was due to meet a colleague, but he is wrong. Alcohol is not the cause of domestic violence- but it is a depressant, and a disinhibitor- so that someone who is drunk might behave in a manner that someone sober did not. The reality about domestic violence is that it classically involves power and control- so that one of the parties, typically the man controls the other by the use of whatever power and tools come to hand, whether they be psychological, physical, sexual, social, monetary or otherwise.



However, the statements by the stranger  made me think - what is a safe level of alcohol?
The levels now are a lot lower than we used to think were safe. In 2001, the National Health and Medical Research Council said that men should have no more than 4 (and women 2) standard drinks per day, 5 days per week.


Minimising risk in the longer term
    Males
up to 4 standard drinks
5–6 standard drinks
7 or more standard drinks
    Females
up to 2 standard drinks
3–4 standard drinks
5 or more standard drinks
Minimising risk in the short term
    Males
up to 6 standard drinks
7–10 standard drinks
11 or more standard drinks
    Females
up to 4 standard drinks
5–6 standard drinks
7 or more standard drinks


Then in 2009, the NHMRC said the rate was a lot lower. It issues new guidelines, setting the rate at 2 drinks per adult per day.

Guideline 1: reducing the risk of alcohol-related harm over a lifetime

This guideline advises that the lifetime risk of harm from drinking alcohol increases with the amount consumed. For healthy men and women, 'drinking no more than two standard drinks on any day reduces the lifetime risk of harm from alcohol-related disease or injury'.
Guideline 2: reducing the risk of injury on a single occasion of drinking

This guideline advises that on a single occasion of drinking the risk of alcohol-related injury increases with the amount consumed. For healthy men and women, 'drinking no more than four standard drinks on a single occasion reduces the risk of alcohol-related injury arising from that occasion'. A single occasion of drinking refers to a person consuming a sequence of drinks without their blood alcohol concentration reaching zero in between.

Guidelines 3 and 4

Guideline 3 relates to consumption of alcohol by children and young people under 18 years of age, while Guideline 4 relates to consumption of alcohol by women who are pregnant, planning a pregnancy or breastfeeding. These guidelines are not considered in this article.

TABLE 2: 2009 NHMRC GUIDELINES(a)

Does not exceed guideline
Exceeds guideline

Guideline 1 - Lifetime risk
up to and including 2 standard drinks
more than 2 standard drinks
Guideline 2 - Single occasion risk
up to and including 4 standard drinks
more than 4 standard drinks

(a) For both males and females.


Thursday, 26 November 2015

White Ribbon Day

Yesterday, 25 November I commemorated the International Day for the Elimination of Violence Against Women, or White Ribbon Day. I attended with 600 other Queenslanders at an event co-hosted by Premier Anastasia Palaczszuk and Dame Quentin Bryce. I and other White Ribbon Ambassadors attended. 

Several ambassadors of change, Darren Lockyer, Aurizon CEO Lance Hockridge, psychologist and COAG representative Ed Mosby and Magistrate Strohfeld all spoke of the critical beef for men to stand up and challenge entrenched attitudes to violence. 

Two events stood out for me. The Premier announced up to 10 days domestic violence leave a year, on top of other leave entitlements. Wonderful, though sad it's needed. 

The other was the increase in domestic violence applications at Southport since the specialist domestic violence court trial commenced. I thought may be 2,3 or say even 10%. No, the increase has been a whopping 59%! What other pent up demand for safety is there elsewhere in the country that the courts and society have not yet accommodated?


Quentin Bryce and Anastasia Palaczszuk in front of the Gallipoli choir. 

Grace Grace MP

Magistrate Colin Strohfeld
Aurizon CEO Lance Hockridge

Monday, 21 September 2015

Trustees for sale- new case

When things get really ugly, and no one can agree about anything when it comes to property settlement matters, sometimes the court is called upon to appoint trustees for sale of property. Who in turn is appointed can at times in itself be a vexed question.

This very issue was seen in a fight between three brothers, the Chows,  who were arguing over their late mother's estate. The way that the problems were addressed in the NSW Supreme Court in Chow v Chow (No 1) [2015] NSWSC 1347 contain pearls of wisdom. The judgment is not a long one, so I have included the whole judgment:

  1. The present proceedings involve a dispute in relatively small compass that has arisen amongst three brothers, who are the sons of the late Grace Chow who died on 1 December 2002. Probate of her will was granted to the three brothers on 27 September 2004 together with the third defendant who has filed a submitting appearance. The estate of Grace Chow is now fully administered. There remains in the estate a property at Darling Point. There are also in the estate three other parcels of real estate which are now co-owned by the three brothers, which I will refer to as Wentworth Avenue, a property containing two units, a Yeo Street property containing eight units and a Mosman property containing two units. Thus, there are four parcels of real estate which are involved in this current dispute. There is also a parcel of jewellery owned by the late Grace Chow. That parcel of jewellery has a value of approximately half a million dollars. Of that half a million dollars, one item is estimated as having a value of or at least a maximum value of about $350,000 and another $120,000, and there is somewhere between $30,000 and $100,000 worth of what I can irreverently call bits and pieces.
  2. The brothers are, to a great degree, agreed that all four parcels of real estate and the jewellery should be sold and a distribution should be made. However, there are four matters on which there is dispute and which I have to resolve. These are: (a) whilst it is agreed that orders should be made under Section 66G of the Conveyancing Act 1919 in respect of the four parcels of real estate, there is no agreement as to who should be the trustees, and the plaintiff and the first defendant on the one hand and the second defendant on the other hand have put forward counter proposals.
  3. Item (A) for decision is as to who should be the trustees to be appointed under Section 66G; item (B) is how should the jewellery be sold; item (C) is how should the costs of the present application be borne; and item (D) is what is the appropriate form of the orders. I will not deal with (C) until I have given my decision on (A) and (B), which will happen shortly. Then I will hear submissions on (C) and decide the point, then stand the matter over for short minutes to be brought in in due course because the orders may be very complicated. I will deal with (D) at a later date.

Item (A)

  1. I then pass to (A). The two sets of possible trustees are as follows, as put up by the first defendant and accepted by the plaintiff, are Mr Martin and Mr Anderson. Mr Martin is described in the evidence as an experienced property professional having worked for more than 40 years in the property industry, for 23 years he was in senior positions with a leading firm of estate agents. He has a non-executive board position with two companies in the industry and had been involved in senior roles.
  2. Mr Anderson has also been in the industry for a long time. He is a CPA of 40 years standing. He has been a member of various boards, and he has been in senior executive roles with estate agents and persons involved in the property industry for very many years.
  3. The opposing people put up by the second defendant are two company liquidators, Mr Olde and Mr Landrey. They are partners and they are experienced official liquidators. The second defendant put up alternatively two other official liquidators, but that is very much a reserve panel.
  4. I have no doubt that whichever team I appoint would carry out a competent and professional job. I suggested at one stage that perhaps one person from each team might be appropriate, although I could see that would lead to extra costs for consultation; but as that suggestion was not taken up by anybody, I will put it to one side.
  5. In Arrow Custodians Pty Limited V Pine Forests of Australia Pty Limited [2006] NSWSC 341, at [21] I said:
When deciding upon trustees for sale, where there is no consent, four factors usually need to be considered by the Court. These are in no particular order of importance; (1) the principle that the Court tends to prefer the preference of a person with the greater interest in the land ... (2) the trustees should be independent and as free from conflict of interests as possible ... (3) the trustees, particularly where they have more active duties than merely to sell a piece of real estate, should have the appropriate skill, expertise and experience; and (4) the Court should endeavour to get the best value for the parties' money and see that as between two equally alternative proposals the cheaper is preferred.   
  1. At the commencement of the hearing I put to all counsel that I assumed that those principles were the relevant ones to consider in this dispute and no one denied this, thus accordingly I apply them.
  2. So far as the first factor is concerned, we have a situation where the plaintiff and the first defendant hold two-thirds of the beneficial interest in the property and the second defendant one-third. Accordingly, on the larger interest factor, the plaintiff and the first defendant get a plus for Messrs Martin and Anderson. Factor 2 is that the trustee should be independent. That seems equally the case with both proposals. Factor 3 the appropriate skill, expertise and experience; that again appears to be relatively equal. I slightly prefer the plaintiff. The task is something like comparing apples and oranges because the second defendant's team as official liquidators would be used to selling all sorts of property the plaintiff and first defendant team are more skilled in the selling and dealing with real property. The reason why I slightly prefer the plaintiff is that one of the second defendant's nominees, Mr Langrey, is currently seconded to do some work in Denver Colorado. Although Mr Olde says that in any event when two people are appointed one has the lead and the other has the support role, and this would still be possible even though Mr Langrey is in Denver. It seems to me that is not the most desirable state of affairs.
  3. There are a whole series of cases and in the textbooks and Dalrymple v Melville (1932) 32 SR (NSW) 596 is one where a trustee has got into problems because there are two trustees and one leaves it to the other who does not deal with the matter appropriately. With two professional persons like Mr Olde and Mr Langrey, both of whom cannot be passed by the appropriate authorities as official liquidators, that is only a small problem. Nonetheless, when one is looking at very small margins over the two contenders, I slightly favour the plaintiff.
  4. Factor 4 focuses on costs. There are different methods proposed by the rival contenders as to the method of charging. The plaintiff and the first defendant's team say they will charge 0.85 per cent on the sale of properties within the brotherhood and 1 per cent outside that. On the other hand, the liquidators intend to charge their normal charge out rates which involve $625 an hour for the managing directors and corresponding lesser sums for persons lower down the pecking order. However, they would cap their fees at not more than what Messrs Martin and Anderson would charge.
  5. Mr Walton SC, who appears for the second defendant with Mr Sneddon, says this would mean marginally there could be a slight saving in costs with the Olde/Langrey team as opposed to the Martin/Anderson team. I think that is just possible, but the chances of it happening are relatively slim. Accordingly, when I add up the four factors, it seems to me that the plaintiff and first defendant's team is, if I can use the expression, ahead on points. Accordingly, I favour appointing them.

Item (B)

  1. The next question is what is to happen to the jewellery. The suggestion of Mr Blackburn-Hart SC, who appears with Ms Tucker for the plaintiff, is that it be left to the trustees to decide the method of sale. Normally, I would have a lot of sympathy with that proposal because it is far better for these things to be worked out at the coal face rather than judges to work it out in advance in theory. However, these brothers have a tendency to resort to litigation and to postpone the question seems to me not to perform my duty under s 56 of the Statute.
  2. It seems to me however, that I can to some extent get the best of both worlds, that is both leave it to the trustee and also give the trustee some advice in advance. The advice is that, unless the trustees consider that there are factors at the time when they make their decision to sell which outweigh what I am about to say, it would be appropriate to put in play what the first defendant suggests is the appropriate method of sale, that is in accordance with page 278 of the court book, that the two special items of jewellery which are referred to in evidence as parcel A and parcel B be again valued by an independent valuer. That valuation not be disclosed but the beneficiaries may then bid on parcel A and parcel B and the trustees would be justified in selling to the highest bidder, assuming there is a bidder, otherwise to sell at auction.
  3. Then the remainder of the jewellery should be put into three parcels C, D and E, the contents to be approximately equal in value, the contents of each parcel to be specified and again the brothers may bid for each parcel. The highest bid for any particular parcel is to be accepted.
  4. However, it should be noted that Section 66G only applies to the real estate so that the appropriate order when the short minutes are drawn up should recognise it is under Section 36A of the Conveyancing Act and the appropriate adjustments be made. I believe what I have just said deals with the matters of principle.
  5. As I said, I will leave Item (C) to be dealt with for now. When the orders are drawn up, care must be taken to make sure that under Sections 66H and 66I of the Conveyancing Act sufficient details are given as to consultation and as to the procedure to be adopted where one of the brothers is the successful bidder for any particular piece of property so far as that brother's interest, being set off against the purchase price.

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!