Tuesday, 7 February 2017

SA to set up a relationships register

Following action by the Weatherill government, South Australia has reviewed its laws concerning LGBTI people, resulting in the passing of a bill to set up a relationships register in South Australia. The relationships register, to commence at a date to be proclaimed, will bring SA into line with Qld, NSW, ACT, Victoria and Tasmania, which also have relationship registers.

Having a registered relationship can have a major impact on legal issues for a couple. If they split up, for example, then this means it is beyond doubt that at some stage they were in a de facto relationship- potentially saving many tens of thousands of dollars arguing in the Family Law Courts about whether they were or were not in a de facto relationship. Passing this law is a good move.

Sunday, 8 January 2017

The top 10 ways to get over the Christmas disaster

Christmas is one of those times when, according to the films, romance is in the air and the world is all of sparkle with love. All too often, it is full of pain and misery as couples split up, burdened by heat, flies, debt and those God forsaken in-laws. If you have split up over Christmas, here are the top 10 to get over the Christmas disaster.

1. Don't do anything stupid.

No matter how lonely you might feel at this moment, you are loved- by family and friends. Men in particular are at risk. Committing self-harm or suicide will not just impact on you, but those who love you: your parents, children, siblings, cousins, workmates, friends and neighbours. None of them want you to be hurt or die far too early. If you are worried about what you might do, call a loved one or friend. If that doesn't work, or you don't have anyone to call, call Lifeline on 131114. This is a free 24/7 number. Or call Beyond Blue 1300 22 4636.

2. Stay safe

All of us have a right to be safe. Just because you have split up doesn't mean that you should now be unsafe. If you were the subject of domestic violence in your relationship, chances are that the risks to you are higher now. Call a domestic violence service such as in Queensland, DV Connect's womensline 1800 811 811 or mensline 1800 600 636. These are free 24/7 numbers with experienced counsellors. If necessary, obtain a protection order. These can be obtained quickly, and should not be considered in isolation, but as part of a package when assessing your risk, that you are safe. It might sound obvious- but get legal advice. If you can't afford it, there is free legal advice through community legal services or legal aid. The point is that legal advice is available.

3. Make sure your kids are safe

Your kids also have a right to be protected from abuse, family violence and neglect, and exposure to those. You have a responsibility to ensure that they are safe, but the law also recognises that usually the children have a right to have a meaningful relationship with both parents. It is often a balancing act between making sure that the kids are safe and that they have a relationship with the other parent. Until orders are made by a court under the Family Law Act, each parent has the right to make decisions about the children- and therefore to decide if the children stay with them and not the other parent. Often it's a good idea to get legal advice quickly if you have an ugly situation develop concerning your children.

4. Have somewhere to stay

No one need be homeless. If things are bad at home, ask your ex to move out. If that's not safe to do so, you too can move out. If you are unsafe then domestic violence hotline workers can help get you crisis accommodation so that you and your children are safe. However, there are limits to this availability. If you don't have money, then your former partner might be obliged to pay you spousal maintenance to get you through- this is even if you weren't married but were living in a de facto (even a same sex) relationship.

5. Get advice about money

While it's nowhere near as important as making sure that you're kids are OK, in the old words: "He who pays the piper plays the tune." It is important that you get legal advice about your entitlements to property settlement and spousal maintenance. When your ex told you that you were entitled to nothing, chances are that they were wrong. I have lost count of the number of clients who have told me that, or said that their ex had said that they had got legal advice - and therefore my clients were entitled to nothing. Again, your ex may not be telling the truth. Most people who split up want to resolve matters, and get what is fair, and not rip off their ex. A good divorce lawyer, such as an accredited family law specialist, will be able to give you that advice. You may be entitled to Centrelink benefits and can see a financial counsellor, such as through Lifeline.

6. Consider mediation

I love mediation. It's not an easy process, and it has its limitations- and it is not an end in itself. Many years ago hardly anyone used it. Now its use is so widespread, many clients raise with me on the first consultation that they should undertake mediation. WHOA! HOLD YOUR HORSES! Generally mediation does not work when there is a power imbalance, such as child abuse or domestic violence cases. Who the mediator is can make all the difference. Often there is little point going to mediation until the ground work has been done. For example in property settlement cases- after the property has been identified, and if necessary disclosure and valuations have been obtained. But the key point I want to make is this: while mediation is very useful, it's not easy and it is a form of one thing- negotiation. Negotiation can happen by all kinds of ways- directly between you and your ex, through lawyers, a roundtable meeting with lawyers and you and your ex present, or even negotiations that often happen between lawyers outside a courtroom. The point is that it is just one form of negotiation, and there may be others that work better for you. For example, if you and your ex are getting along well enough that you can talk to each other and sort out an amicable arrangement for the kids so that everyone is happy, why do you need to go to mediation?

7. Have a support network

There are few things more important than having a support network- your very own cheer squad who think you're the greatest. These people, whether friends or family, will listen to you at all hours of day and night. Sometimes, family will be more supportive and less critical than family. Whoever it is, I cannot emphasise enough the importance of having a support network- the people who are on your team. If you don't have one, get one. This is much easier than you may think. if you are into sport or hobbies, there will almost certainly be a group out there, and even more online, especially through Facebook. If you are faith based, join a Church or faith community.


8. Go and see a counsellor

No matter how well you think your support network is, going to see someone who is independent, trained in the social sciences and can ask you the hard questions that your support network might avoid doing, is essential, Your counsellor can get you to reflect and focus, especially on the needs of your children. Find someone you feel comfortable talking with. Your friends and family will especially appreciate it- because not only will you be more focussed, but you will have someone else to talk to- not just them!

9. Have a positive attitude

It might sound counter-intuitive. Your life has turned to custard, and what seemed sunny now seems gloomy. Having a positive attitude will get your through the hard part quicker than someone who does not have it. This is not having a fantasy about what might be- but being realistic, knowing the lay of the land, but every day waking up and appreciating beauty that surrounds you, whether that beauty is from smells, such as freshly baked bread, or sounds, such as the sounds of your child, or wonderful music, or sights- such as admiring roses or watching clouds scud bye. When you're in a hole, it is easy to forget these little things. Often these little things can make life joyous- and when you have separated from your ex can make your life a lot easily to cope with. Being able to laugh is wonderful. Readers Digest used to say that laughter is the best medicine. How true that is!

10 Exercise!

Most of us don't exercise regularly. Exercise helps after you have separated. Provided you have a pair of shoes, it's free! Getting that heart pumping and/or a weights regime means that you are feeling stronger, energised, with oxygen in your system and endorphins being released.  A side benefit about focussing on exercise is that you will eat less junk food and drink less alcohol- both great benefits in themselves. The best part of exercise for those who have split up is that your worries of the day are blanked out.

Sunday, 18 December 2016

Family Court recognises US pre-birth surrogacy order

Family Court of Australia court registers US pre-birth surrogacy order

In a groundbreaking decision, for the first time ever, the Family Court of Australia has registered a US surrogacy order. The effect of the Australian order means, that for all purposes the US order can be enforced in Australia and that the parents of the child as recognised by the US order are recognised as the parents of the child in Australia.

Until this decision, reported as Re Halvard and Another, there were only two ways that Australians going to the United States could be recognised in Australia as parents (other than for citizenship purposes), either:

  • to apply to the Family Court for a declaration as to parentage. The problems with this approach are that it is extremely expensive, is slow and may not be successful. I am told that a colleague charges $18,000, and that would be a fair figure. However, recent cases have indicated that different judges of the Family Court have different approaches, so that it was unclear whether the parents would be recognised as the parents; or
  • if living in Western Australia, to apply to the Family Court of Western Australia for a step-parent adoption order. That possibility arose from a 2013 case. However, the judge in that case told a legal conference in WA in 2015 that she was unlikely to continue to do so, out of concerns for surrogates. Further, following the Baby Gammy decision in the Family Court of Western Australia, it is doubtful whether that type of application would be successful now.
Not surprisingly, most parents who had returned to Australia with their babies born overseas chose, after they either obtained Australian citizenship for their children, (or if they were permanent residents or visa holders, ensured that their child was subject to the same visa conditions), to do nothing further. Why spend a lot of money going to court for little purpose?

There is another risk. Those who were from Queensland, NSW and the ACT in particular were at special risk that in going to the court that they might be referred to authorities to see if they had committed an offence, and then be prosecuted. A Sydney judge referred two Queensland couples to the Queensland Director Prosecutions for this purpose back in 2011. As it happened, neither couple was prosecuted.


This case

The parents lived in the United States. One of the parents was an Australian citizen and the other was a US citizen. The boy, X, lived with them in the US. The father had family members in Australia, and the intention was to travel to Australia from time to time.

The parents underwent surrogacy in Tennessee.They entered into a surrogacy agreement with a surrogate. X was conceived from the father's sperm and the mother's egg. A court in Tennessee ordered, when the the surrogate was 30-32 weeks pregnant that when the child was born, the parents would be declared to be the parents and that they would have custody of the child.

What is the effect of registration?

The Family Law Act provides that an overseas child order, made in a prescribed overseas jurisdiction, can be registered with the Family Court of Australia. Once it is registered, the overseas child order takes effect in Australia. Therefore if it is possible to register an overseas child order, and the form of that order recognises the intended parents as the parents of the child, then that order will transform the child's identity and legal relationship with the parents, not only in the overseas country [as happened when the overseas order was made], but also in Australia.

This means, for example, that the only people who have been granted parental responsibility for the child, in effect for the Australian Passports Act, are the parents, not the surrogate. Therefore the surrogate's consent for new Australian passports for the child will not be required.

If the parents were to die, then they would be recognised under Australian law as the parents of the child for inheritance purposes. They would also be recognised as the parents for child support purposes.

If the order were not registered, it is uncertain if this were the case.

Why did it go a judge?

The parents had first made an application to a registrar of  the court, who had declined to register the order. Because there was no ability to review the registrar's decision, and the law allowed the parents to bring an application before a judge, they did so.

What are reasonable costs?

Justice Forrest rejected the submissions of the parents' lawyer that the surrogacy arrangement was a commercial surrogacy arrangement under the Queensland and NSW Surrogacy Acts. His Honour found that the surrogacy agreement was altruistic  and was not a commercial surrogacy arrangement disguised as altruistic surrogacy. His Honour stated:

"The agreement in this case between the applicants and the gestational carrier in Tennessee was one in which the gestational carrier was reimbursed by the applicants for all of her pregnancy related out-of-pocket expenses. The terms of the agreement that provided for that certainly appeared quite generous but not so generous that I would consider it a commercial surrogacy agreement masked as one in which reimbursement is provided."

Implications of the decision

Any Australian intended parents who have undertaken surrogacy in the US should consider making application to register their US orders with the Family Court of Australia. However, they should get expert legal advice on doing so. Properly handled, the registration application should be relatively quick, cheap and effective.

Registration may also be relevant in Hague child abduction cases where the order has been made in the US, and the child is wrongfully removed to Australia or wrongfully retained in Australia.

Those contemplating or in the process of undertaking surrogacy in the US should get expert Australian legal advice before the orders are made there- because of making sure they are the right form for the Australian courts.

Those who have undertaken surrogacy overseas, especially in the US, and believe that they have committed a criminal offence in Australia in undertaking surrogacy in the US should get expert Australian legal advice. They may not have committed any criminal offence after all. This is particularly important in NSW for example, as there is not time limit for offences there.

The case makes it plain that pre-birth orders made in the US are covered. Pre-birth orders are made in about 40 US states.

Australian citizens who live abroad who contemplate returning to Australia at some stage with their children should, in my view, seriously consider undertaking registration.

Obtaining registration should be a lot cheaper than having to obtain a parenting order under the Family Law Act.

Limitations of the decision

The case will only apply to surrogacy orders made in the US and New Zealand. It will not apply to surrogacy orders made elsewhere, for example in Canada. This is because only those jurisdictions that are prescribed overseas jurisdictions can have their orders registered in Australia by this method. Regrettably very few jurisdictions are prescribed overseas jurisdictions. 48 of the 51 US jurisdictions are prescribed overseas jurisdictions. The ones that miss out are: South Dakota, Missouri and New Mexico.

Justice Forrest noted that in a previous decision in 2013, Justice Ryan declined to register a pre-birth surrogacy order made in South Africa because:

"The simple fact that South Africa is not included in the schedule that lists the countries that meet the definition of “prescribed overseas jurisdiction” is what prevented that order from being registered in this Court."

Those contemplating registration should NOT do so by registering their order through the Attorney-General's department. They should also be very careful about how they undertake the registration process. The judgment shows that the parents had been rejected by a registrar, and that the process before a judge is discretionary. If the judge believes that it is commercial surrogacy, then the application might be rejected.

Every case is different

What might be great for one couple, might end up exposing another to not getting registration or, worse, possibly being prosecuted. Expert advice is needed. Where intended parents lived at the time they underwent the surrogacy is also relevant, because each State and the ACT have different laws as to surrogacy:

  • Queensland: If the limitation period has run out for prosecution (1 year after the last payment), then it should be considered, with careful consideration to whether the expenses were reasonable.
  • NSW: If the parents underwent surrogacy before 1 March 2011 or signed their surrogacy agency retainer before that date, then registration is appealing. For those after that date, consideration should be given first as to whether the expenses were reasonable.
  • ACT: Consideration should be given first as to whether the expenses were reasonable.
  • Victoria: Registration is recommended for those who entered into the surrogacy arrangement after 1 January 2010. For those who entered into before that date, consideration should be given as to whether the expenses were reasonable.
  • Tasmania: Registration is recommended.
  • South Australia: Care should be taken to make sure if it is a pre- July 2015 or post-July 2015 surrogacy arrangement. If the latter, was the consent of the Attorney-General obtained? Consideration either way would need to be given as to whether the expenses were reasonable and whether there has been the payment of valuable consideration.
  • Western Australia: Care should be taken as to whether there is a surrogacy arrangement for reward has been entered into in breach of the Surrogacy Act and the Criminal Code. If not, then registration is recommended- but it may not be advisable to do so in Western Australia. 
  • Northern Territory: Registration is recommended.

Sunday, 9 October 2016

Court orders wife to refund over $200k in spousal maintenance

A  case last year in the Family Court of Australia, which had the effect of requiring the wife to repay the husband over $215,000 in spousal maintenance previously paid has demonstrated that it is possible for substantial interim spousal maintenance orders to be discharged- and to be backdated to when the order was first made.

How spousal maintenance orders are made

In order to establish that a court ought to make a spousal maintenance order, an applicant needs to show first that they cannot meet their own reasonable needs, and then that their spouse or former spouse has the capacity to do so.

The wife’s capacity

The case turned on whether the wife had the capacity to meet her own needs. At the time of the first hearing in December 2013, the wife made full disclosure of her financial circumstances, including what she knew of her interest in her late father’s estate. Despite her father dying four years before, there had not been a grant of probate.  She was not an executor, and held a minority interest in various companies, known as the V Group. The V Group was controlled by her brothers. It seems that she did not know what her entitlement was.

The wife was a health care professional who had the care of the parties’ children.
Her income was $300 per week from sessional work. Her late father’s estate provided for her to have two new luxury vehicles at any one time: a convertible and an SUV.

The husband’s capacity

The husband had the capacity to pay. The husband owned property on his account worth $75 million and debts of $54 million. The uncontested evidence was that he had income of $4 million a year. The wife was a health care professional who had the care of the parties’ children.

The spousal maintenance order

The interim spousal maintenance order was made at the rate of $130,000 a year the equivalent to a pre-tax income of $200,000, to continue until the property settlement application had been heard at trial. This payment was on top of the husband paying for the wife’s rates, mortgage and rates, taxes, utilities (gas, electricity) and school fees. In total, the husband was required to pay at the rate of $336,000 a year for these obligations.

The first hearing

The interim order was made in December 2013. Ten days later, the husband sought to appeal the decision.

The second hearing

As the appeal had not yet been heard, seven months later, in June 2014 the husband sought to have the initial spousal maintenance order discharged. He was unsuccessful. The husband also appealed that decision.

The husband argued at the second hearing that there was now information available to show that the wife had received, or would receive, shares from the estate of her late father in the approximate sum of $7.2 million and she was able to support herself.

The wife submitted “that she had fully disclosed her interest in the family companies based upon the information she had been given” and there was no clear or reliable evidence to support the husband’s assertion that the value of the shares from the estate of her late father were valued at $7.2 million. The trial judge noted that there was still “considerable dispute about what interest, if any, the wife [had] in her late father’s estate”.

The appeal hearing

The appellate court noted that the wife’s father died in 2009 and that probate had not yet been sought. The court did not accept the husband’s claim that the wife had failed to disclose these “assets” and, indeed, it was beyond doubt that the wife revealed these assets and interests in the first hearing before the trial judge. In the wife’s statement of financial circumstances filed in 2013, she deposed to having shares in various companies, which she named, and an interest in the estate of her late father, but she did not know the value of either. Further, in her affidavit filed the same day, the wife set out all that she knew about her shares and her interest in her late father’s estate.

New evidence

The wife’s father in his will expressed the wish that V Group provide the wife with $150,000 per annum, net of income tax (or $20,000 more a year than the husband was obliged by the spousal maintenance order to pay the wife). There was no evidence that the wife requested this payment from her brothers, or that any request that she had made for her father’s wish to be carried out had been rejected. Importantly, there was no suggestion that there would be an objection by at least one of her brothers to such a voluntary payment.

The wife had also obtained a personal overdraft of $1 million, apparently to meet her legal expenses and her living expenses.

Discharge of the spousal maintenance order
A spousal maintenance order may be discharged “if there is any just cause for so doing”. The court considered that there was now evidence before the court that demonstrated that the wife was able to support herself adequately. The inference from the evidence was that, if requested, the wife would receive that benefit. The wife had a good relationship with her brothers, it was a wish expressed in the will of their late father and the brothers provided the wife with late models of luxury motor vehicles, possibly through the V Group (although that was unclear on the evidence).
The $1 million overdraft was “a two edged sword though, in that any amount that she draws down from that overdraft immediately becomes a liability that she must repay.”

The court ordered the discharge of the spousal maintenance order. The court noted a statutory provision permitted a court to express an order discharging a spousal maintenance order “to be retrospective to such date as the court considers appropriate”. The court acknowledged that that will require the wife to reimburse the husband for the payments made by him, but she could pursue the payment of $150,000 per year, and she had the ability to draw down her overdraft of $1 million.

The decision is reported as Hall and Hall [2015] FamCAFC 154. http://www.austlii.edu.au/au/cases/cth/FamCAFC/2015/154.html

Sunday, 14 August 2016

Launch of Dangerous Liaisons

On Thursday night, I had the privilege of speaking at the launch of Marina Bakker's new book Dangerous Liaisons. The launch was at Mary Ryan's bookshop in Brisbane. The book is a great how to guide about how to avoid falling into relationships with sociopaths and psychopaths, who are often very difficult to pick. And once in a relationship with one, it can be very hard to get out.

Before I spoke, Marina was interviewed by fellow family lawyer, and founder of Our Children Australia Lorrie Brook (l).

When I spoke, I praised the book, including its key message: prevention is better than cure. I spoke about how I had fought domestic violence for over 30 years, and I gave a story of hope. Many years ago I acted for a client who had to be rescued from her farmhouse by police. If they had not acted, it is likely that she would have been killed by her husband.

Some months after she had escaped, in the midst of a bitter Family Court fight, I happened to call my client to see how she was doing. I had expected her to tell me that life was awful. After she split up, she fell on financial hard times- living in outer suburbs, with few qualifications, no car, little public transport, shunned by her church for leaving her husband and in an ugly, ugly court case.

Instead my client told me that life was grand. "I'm free!" She was not looking at death every day. My client had managed to get a job, was able to go to sleep at night, had joined a new church, had new friends. Her mystery kidney disease, attributed by doctors to stress, had gone away. And she had a new interest. My client, who was about 60, had taken up of all things waterskiing! I would never have guessed, and would have never have known, except I asked.

The point is that life goes on after a relationship ends. Life happens only once. Every day is precious. No longer held back by the fear of violence, my client was able to thrive and captured the beauty of life every day. Her story reflected one of the key messages of Dangerous Liaisons- we have to be careful who we form relationships with - as these emotional vampires can suck our life force out of us.

The three basic rules of advocacy- taught to me by a man on Monday

Last week I was thankful for a man who did not know when to shut up. This may sound ironic coming from a lawyer, especially a lawyer who blogs, presents and writes articles as I do, but one of the essential features of being a good advocate is knowing when to shut up.

After all when you are in court usually you are seeking to persuade one person- the judge. Advocates have to tread a fine line between forceful advocacy for their clients, and not going too far.

Those who act for themselves usually have not been advocates, and simply are not objective, and often focus on the wrong things. Sometimes they are even worse, bordering on the abusive of the judge. As the old adage goes- a person who acts for themselves has a fool for a client.

Be that as it may, often when people do not have any money, they act for themselves. If they are going to do so, then they should listen as to what not to do.

The three lessons that can be learnt from the man who did not know when to shut up are:

Number three lesson

Turn up at court. 

His first sin was not to turn up at court. This was not the first time it had happened. The previous occasion after he had not turned up, the man had been ordered by the judge to set out in an affidavit why he had not appeared. His excuse was akin to the dog ate his homework: he forgot, oh and his lawyer did not send the letter through confirming the date. And he was the applicant, asking the court to be able to spend time with his children.

Number two lesson

When the judge speaks- stop talking.

His second sin was to keep talking when the judge was talking. Several times her Honour had to politely intervene, and point out to him that she had telephoned him to get an explanation about why he was not at court, and tried to give him an explanation that I was seeking orders in default of his participation. And his reaction to that courtesy? To keep talking over the top of the judge- to then be told repeatedly by her Honour to the effect that it was her turn to speak.

Number one lesson

Don't abuse the judge

So after x occasions of the judge telling the man not to talk over the top of her, he raved, and raved and raved on, finishing with words I had never heard in a courtroom directed at a judge before: "You can go and @#*& yourself". (At which point almost everyone in the courtroom gasped.)

Her Honour's reaction was not to order a warrant issue for his arrest for contempt, but merely these statements: "Terminate the call. [Pause] Now, Mr Page, what orders are you seeking?"

Shortly after that, with assistance from the independent children's lawyer, my client obtained the orders she was seeking from the court in the absence of the father. And in the process saved a lot of money and heartache by avoiding a three day trial.

Thank you! His actions had ended the third of three cases involving that man and my client. Hooray, what a relief!

Monday, 18 July 2016

The real faces of domestic violence

I saw today a very powerful article by ABC showing the faces of Australian women killed in 2015 as a result of domestic violence. The faces of these women put faces on the statistics. These women were real, and now are gone, never to return. When we think about the impact of domestic violence on our society and on our children, never forget these women and women like them.

The article, and the haunting portraits are here.