Saturday, 28 April 2007

Violence Prevention Toolbox

This was recently posted on theblog of Dr Helen Smith, a psychologist in Knoxville, Tennessee.

One of the ways to prevent violence is to have a repertoire of techniques to use depending on the context of the violence one is about to encounter--no one technique is always the answer, so I am always looking for good books to add to my violence prevention toolbox. I found one in IronShrink's book, Surviving Aggressive People: Practical Violence Prevention Skills for the Workplace and the Street. How does IronShrink (or Shawn Smith, his real name) tell us to do this? By using psychological techniques and understanding of those who wish to commit violence against us to stop aggression before it starts.

Smith divides aggressors into two categories: The Desperate Aggressor and the Expert Aggressor. The Desperate Aggressor is one of the most common and is someone you might encounter in a work situation who feels that they have run out of options. "Violent crime in America is often spontaneous: someone loses their temper and the results are tragic. When an otherwise rational person reaches a high level of emotion, when they perceive no solution to their problem, then violence--normally not something they would even consider--may seem to them like their only option." These aggressors don't like to feel helpless and seek to regain their feelings of control. They are poor at problem solving and often another person who is skilled can help them to restore their composure. The book gives suggestions in concrete form on what to say and how to do this. Finally, Desperate Aggressors display verbal and physical indicators of stress. They might feel cornered, panicked and ashamed.

I enountered a situation like this very early in my career when I worked for the state of New York as a psychologist. A patient who had been living in the Willowbrook State School where he had been living a hard life was assigned to me. The first time I met him, he was holding some staff keys that I needed. Stupidly, I reached out my hand to him and said, "Give me the keys, please." The next think I knew, the patient punched me full force in the face and sent me flying into the wall behind me. I realized immediately that I should never have extended my hand outward and it threatened him. From then on, if I needed something from this patient, I would ask him to drop it on a nearby table and learned never to extend my hand to certain patients--it was seen as too much of a threat.

The Expert Aggressors are a different lot than the Desperate Aggressors in that rather than seeing violence as the last option, they view it as the preferred option. They are interested in social or material gain, in taking something that does not belong to them. They tend to attack those who are suitable victims and choose those who offer the greatest chance of success. They use "testing rituals" to determine the willingness of a victim. Some people will tolerate being attacked more than others. Those who are too trusting, kind or loving make the best victims. There are some very good techniques in the book to keep the Expert Aggressor from going too far. I have first hand experience in working with thousands of clamaints for disability evaluations who were Expert Aggressors. Some of the claimants would initially come in and try to use threats to get a positive evaluation or try to take over my personal space. When they saw that I put a stop to that immediately, and was not intimidated in the least, they stopped the nonsense and were fairly cooperative.

My only real criticism of the book is that Smith has a section on "weapons and gimmicks" and warns readers that weapons can be used against them, may not work, or may be used by younger members of the family. I have noticed that almost all psychologists have to plant a seed of doubt about weapons--their liberal training almost demands it. Weapons have saved the lives of multitudes of people. With the right training, they can work wonders; rarely are they turned on their owners. Does it happen? Yes, but not often. In my opinion, the willingness to use whatever works in an aggressive encounter, including weapons, and violence oneself may be the difference in whether one survives or gets out unscathed. Don't believe it when you are told not to use weapons to defend yourself, it is often psychological propaganda intended to erode our second amendment rights.

That said, I do recommend this book for those of you who work in Human Resources departments like the Evil HR Lady or are in a management position where you hire and fire. The techniques look sound and could even save your life or that of one of your employees. I must say that in my career, I have dealt with thousands of potentially aggressive people and used similar techniques to keep myself safe--if you understand what and who you are dealing with, you can often reduce the chances that aggression will take you by surprise.

Family Dispute Resolution training announced

The Federal Attorney-General's Department has announced that training will occur in May around Australia for family dispute resolution practitioners and family lawyers.

The point of the training is to ensure that family dispute practitioners are fully accredited by 1 July. On that date parties will not be able to commence legal proceedings about their children, except in certain emergencies, without first having attended a Family Relationship Centre or other family dispute resolution practitioner and having a certificate from that centre or practitioner, including where domestic violence is an issue, an exemption from attending due to family violence.

Thursday, 26 April 2007

Family Dispute Resolution: New Requirements

The Government has announced new regulations that will govern the introduction of compulsory dispute resolution in custody cases and the accreditation of family dispute resolution practitioners.
From 1 July, courts will not be able to hear an application for a parenting order in a new case unless the person seeking the order first obtains a certificate from a registered family dispute resolution practitioner. There are some exceptions, such as in cases of family violence or child abuse.
All family dispute resolution practitioners must be included on a new family dispute resolution register in order to issue valid certificates. Accreditation rules are also being introduced to ensure that families receive quality family dispute resolution services.
"The changes reflect the Australian Government's desire to change the culture of parenting disputes from confrontation to co-operation. We would like to see parents negotiate, not litigate," said Mr Ruddock.
"Family dispute resolution practitioners and others working in the family law system have an integral role to play in helping families sit down and talk about the arrangements for their children rather than fighting it out in long and costly court battles."
To help people working in the family law system implement the new requirements, information sessions will be held in all major capital cities and some regional locations across Australia during May 2007.
Further details about the changes and the dates and locations of information sessions are available at

Selection Process for Family Relationships Centres

Details of the next selection process for organisations seeking funding for family relationship services have been announced today by Attorney-General Philip Ruddock and the Minister for Families, Community Services and Indigenous Affairs, Mal Brough.
The process for the next 25 Family Relationship Centres, 14 Children’s Contact Services and 22 Early Intervention Services under the Family Relationship Services Program will commence on 4 August 2007. The open competitive selection process will be jointly conducted by the Attorney-General’s Department and Department of Families, Community Services and Indigenous Affairs.
The outcome of the selection process will be announced by early 2008. The new Family Relationship Centres and services will open in July 2008. This will build on the achievements of the first 40 Centres, 15 of which opened in July 2006, with the next 25 due to open in July 2007.
The Government is delighted with how well the Family Relationship Centres have been received by the community. The Family Relationship Centres are being used as a first point of contact by people wanting information, advice and assistance with strengthening family relationships, preventing separation or resolving relationship difficulties after separation.
In addition, Children’s Contact Services help children and parents in high conflict families maintain relationships after separation and divorce.
The Early Intervention Services deliver relationship counselling, education and skills training, and men and family relationship services, to improve communication and family relationships.
Early Intervention Services aim to strengthen family relationships by providing all family members with the relationship skills to effectively manage change and develop problem-solving skills to prevent family breakdown and help sustain relationships over time.
Media contacts:
Mr Ruddock’s Office: Michael Pelly 0419 278 715
Mr Brough’s Office: Kevin Donnellan 0408 491 956
The 2007-08 selection process will consider applications for funding for services in the following locations:
Family Relationship Centres
New South Wales: Sydney city, Bankstown, Brookvale, Parramatta, Bathurst, Coffs Harbour, Dubbo, Gosford, Tamworth, Taree.
Victoria: Broadmeadows, Chadstone, Melbourne city, Shepparton, Warrnambool.
Queensland: Bundaberg, Chermside, Logan, Mackay, Toowoomba.
Western Australia: Bunbury, Perth city, Pilbara/Kimberley.
South Australia: Adelaide, Mount Gambier.
Early Intervention Services (a mix of Men and Family Relationship Counselling, Family Relationship Education and Skills Training, and Family Relationship Counselling in each of the locations listed below)
New South Wales: Bankstown, Bathurst, Brookvale, Coffs Harbour, Dubbo, Gosford, Parramatta, Sydney City, Tamworth, Taree.
Victoria: Broadmeadows, Chadstone, Melbourne City*, Shepparton, Warrnambool.
Queensland: Bundaberg, North Brisbane, Mackay, Toowoomba*.
Western Australia: Bunbury, Perth City.
South Australia: Adelaide.

* funding available for Family Relationship Education and Skills Training and Family Relationship Counselling only.
Children’s Contact Services
New South Wales: Inner Sydney, Tamworth, Wyong, Port Macquarie.
Victoria: Inner Melbourne, Cranbourne, Shepparton, Warrnambool.
Queensland: Caboolture, Hervey Bay.
Western Australia: Armadale, Albany, Kalgoorlie.
South Australia: Burnside.

Child Support Agency collects $131 million in outstanding debts

The Minister for Human Services, Senator Chris Ellison, has announced efforts to collect outstanding child support payments has returned more than $131 million to children.

Senator Ellison said the Child Support Agency’s intensive debt collection team had reached its four year target earlier than expected.

“Since the Team was set up on 1 July 2003 the program has well and truly paid off with more than 45,000 parents receiving much needed child support payments as a result of this important work.”

“The Government gave CSA an extra $31 million which enabled it to employ an extra 110 staff to work with customers with outstanding payments.

“This has resulted in the collection of an additional $131 million in overdue payments in the last four years,” Senator Ellison said.

The Intensive Debt Collection program has now been expanded by an extra 35 staff and it is expected that CSA will collect an additional $222 million in outstanding payments by 30 June 2010. CSA expects to contact an additional 22,500 customers with outstanding payments each year.

“The efforts and results so far prove that this is a wise investment on behalf of the children who ultimately benefit from the outstanding child support debts being cleared,” Senator Ellison said.

“Avoiding child support obligations is not fair to the other parent, the children involved and the taxpayers who contribute through increased family tax benefit payments.”

Senator Ellison said the Child Support Agency always encourages voluntary payments before taking administrative or legal enforcement action.

“In fact, the majority of separated parents are making private arrangements for the payment of child support in the best interests of their children,” Senator Ellison said.

Senator Ellison said customers in financial difficulties have a range of support services available to them and CSA can assist to direct them to the appropriate services

CSA encourages customers to take a proactive approach to their child support obligations. Should a parent’s circumstances change or if they have outstanding child support payments and have not entered into a payment arrangement, they should contact CSA on 131 272.

Monday, 23 April 2007

Removing children from their mothers- part 1

I recently travelled to the US to attend a national domestic violence conference.

The key speaker at that conference was Shawrline Nicholson, who was the lead plaintiff in Nicholson v Williams and Nicholson v Scoppetta in New York. Her legal victory was challenging the approaches taken in practice, although not necessarily in theory, by the New York Administration for Children's Services.

The ACS is similar to in Australia the Department of Child Safety (Qld) or Human Services (Victoria). Its role was and is to protect children from parents (and others) who either engage in child abuse or neglect.

The ACS had all the recent theory which included that domestic violence is primarily committed by men towards women, that if children are removed from women when the children have been witnesses to domestic violence, then that may well result in a re-victimisation of the women and the children in certain circumstances without there having been any increase in protection for those children, and in some cases a decrease in protection. ACS was also credited with having the world's largest, best funded and resourced child protective services.

Despite that theory, the evidence in the case was ACS workers routinely removed children from their mothers when allegations had been made that the mothers had been subject to domestic violence, and that the children were witnesses to that and that the mothers had failed to protect the children.

The key issue in the minds of the ACS workers was the "failure to protect" by the mothers.

In 2002, the US District Court in New York granted a preliminary injunction, concluding that the City "may not penalize a mother, not otherwise unfit, who is battered by her partner, by separating her from her children; nor may children be separated from the mother, in effect visiting upon them the sins of the mother's batterer."

The District Court cited the outrageous testimony of a child protective manager that it was common practice in domestic violence cases for ACS to wait a few days before going to court after removing a child because "after a few days of the children being in foster care,the mother will usually agree to ACS's conditions for their return without the matter even going to court."

The court found that ACS unnecessarily, routinely charged mothers with neglect and removed the children where their mothers- -who had engaged in no violence themselves- -had been the victims of domestic violence;that ACS did so without ensuring that the mother had access to the service she needed, without a court order, and without returning these children promptly after being ordered to do so by the court; that ACS case workers and casemanagers lacked adequate training about domestic violence, and their practice was to separate mother and child when less harmful alternatives were available; that the agency's written guidelines offered contradictory guidance or no guidance at all on these issues; and that none of the reform plans submitted by ACS could reasonably have been expected to resolve the problems within the next year.

In summarising a series of cases about the standard of care, the US Courts of Appeals for the Second Circuit held:
1.assuming that actual or imminent danger to the child has been shown, "neglect" also requires proof of the parent's failure to exercise a minimum degree of care.
2.Minimum degree of care is a baseline of proper care for children that all parents, regardless of lifestyle or social or economic position, must meet, and the failure must be actual not threatened.
3.Courts must evaluate parental behaviour objectively: would a reasonable and prudent parent have so acted, or failed to act under the circumstances then and there existing. The standard takes into account the special vulnerabilities of the child, even where general physical health is not implicated.
4. When the inquiry is whether a mother and domestic violence victim failed to exercise a minimum degree of care, the focus must be on whether she has met the standard of the reasonable and prudent person in similar circumstances.
5. For a battered mother, and the court, - what constitutes a parent's exercise of a "minimum degree of care" may include such considerations as: risks attendant to leaving, if the batterer has threatened to kill her if she does; risks attendant to staying and suffering similar abuse; risks attendant to seeking assistance through government channels, potentially increasing the danger to herself and her children; risks attendant to criminal prosecution against the abuser; and risks attendant to relocation.
6.Whether a particular mother in these circumstances has actually failed to exercise a minimum degree of care is necessarily dependant on facts such as the severity and frequency of violence, and the resources and options available to her.
7. When the sole allegations is that the mother has been abused and that the child has witnessed the abuse, a finding of neglect has not been made.
8. That does not mean that a child can never be "neglected" in a household plagued by domestic violence. Conceivably neglect might be found where a record establishes that, for example, the mother acknowledged that the children knew of repeated domestic violence by her paramour and had reason to be afraid of him, yet nonetheless allowed him several times to return to her home, and lacked any awareness of the impact of the violence on the children; or where children were exposed to regular and continuous extremely violent conduct between their parents, several times requiring official intervention, and where caseworkers testified to the fear and distress the children were experiencing as a result of their long exposure to the domestic violence.

Following these findings, the ACS settled, on the basis of the orders in the District Court, including having a committee, part nominated by the plaintiffs overseeing the ACS process of dealing with this issue.

District Court judgment News of the settlementCourt of Appeal judgment

New appointments to the Family Law Council

Attorney-General Philip Ruddock has appointed Deputy Chief Justice John Faulks, Federal Magistrate Norah Hartnett and Federal Magistrate Robyn Sexton to the Family Law Council.
Mr Kym Duggan has been reappointed to the Council.
The function of the Family Law Council is to advise the Attorney-General on legislation relating to family law and any other matters relating to family law.
Deputy Chief Justice Faulks has been a judge of the Family Court since 1994 and has been in his current position since 2004. He has previously been chairperson of the Family Law Council as well as President of the Law Council of Australia and President of the Australian Capital Territory Law Society.
Federal Magistrate Norah Hartnett was appointed as Federal Magistrate in June 2000 and is the co-ordinating Federal Magistrate for Victoria. She also holds an appointment to the National Alternative Dispute Resolution Council.
Federal Magistrate Robyn Sexton was appointed to her present position in June 2004. She has been a respected practitioner in family law, with a strong interest in children’s issues. She has served on the panel of solicitors for Bidura Children’s Court in Sydney and been a member of the NSW Medical Tribunal and Social Security Appeal Tribunal. She has also been the commissioner of the NSW Legal Aid Commission.
Mr Kym Duggan has had a long association with the Family Law Council as the Assistant Secretary of the Family Law Branch of the Attorney-General's Department.
The terms of all of the new appointees will expire in February 2010. Mr Ruddock said he hoped all would continue to make an important contribution to the development of family law.

Ruddock prepared to veto ACT bill

Commonwealth Attorney-General Philip Ruddock has informed the ACT that the Commonwealth would recommend that the Governor-General disallow the Civil Partnerships Bill 2006 (ACT) in its current form.
In his letter to the ACT Attorney-General, Mr Simon Corbell, Mr Ruddock noted that while changes had been made, there remained significant similarities between the Civil Partnerships Bill and the disallowed Civil Unions Act 2006 (ACT).
"The revised bill has not removed the concerns that the Commonwealth had about the Civil Unions Act," Mr Ruddock said.
"It remains the Government's opinion that the Civil Partnerships Bill would still in its amended form be likely to undermine the institution of marriage.’’

New Contact Centres announced

Commonwealth Attorney-General Phillip Ruddock has announced the funding of 9 new children's contact centres and 8 new parenting order programs.

This funding is welcomed. Properly run contact centres can help reduce or remove conflict between parents, and increase safety. They allow children to see their parents, on a supervised basis, when there are either allegations or findings of child abuse of various kinds or domestic violence, or provide a changeover venue, so that parents can swap the kids between them without having to come into contact with each other.

Parenting order programs allow the courts to send parents who contravene parenting orders (and their ex'es) to be sent to be educated about their obligations under the orders and the benefits to the children in having the orders work.

When acting for clients who have to go to a contact centre to see their kids, the complaint often made by these parents are the restrictive conditions and the lack of time that they can their children.

However, these parents have it easy. The demand for these services has been huge. Some years ago, for example, there was only 1 in the whole of Sydney, and none between Sydney and Brisbane. The one in Sydney, near Parramatta, was only able to accommodate parents and their children for supervised contact for 26 weeks. After more supervision.

In Brisbane, there was only 1 on the outer southside, for which some parents would drive hours....just to see their kids. The alternatives at times meant that parents just did not get to see their kids, or courts (and parents) had to look at unpalatable alternatives to help maintain that relationship, versus maintaining safety.

Now the centre that provided that 1 service provides 3 services in Brisbane and another on the Gold Coast, and still the demand is greater than the supply...

The new children's contact centres will be at:




South Australia
Port Augusta


Link to further details

Parental Alienation Syndrome on the move

Radio National show Life Matters, has conducted a background briefing on Parental Alienation Syndrome:

"Parental Alienation Syndrome, also called PAS, is the theory that in a relationship breakdown where there are children, if one of the parents accuses the other of sexually abusing a child, then it's possible that the parent making the allegation has become obsessional, and developed a psychological condition which is dangerous to the child.
PAS, began in America, had a real impact in the courts there for many years, but now has been completely discredited.
Background Briefing has found that many child welfare professionals here believe PAS is filtering through some Family Court deliberations in Australia."

Life Matters article

Difficulties in kids moving home

In the Radio National program, Life Matters, there is a useful discussion with Reesa Soren, Senior Lecturer at the School of Education, James Cook University, about how kids often do not cope with moving home, and about what steps can be taken to minimise the disruption.
Social scientists have long argued that children crave routine. In what are called relocation cases, there has been a tension between a parent's right to live wherever they want, balanced against the rights of the child, such as maintaining a relationship with the other parent. The parent who wants to move who has the care of the child, usually the mother, often has legitimate reasons for the move, eg repartnering, moving to be near family, career move. The parent who does not have the care of the child, usually the father, may object to the move, usually on the basis that the amount of time spent between that parent and the child is reduced.

The difficulty for the parents, and the courts, is balancing these competing considerations.

Life Matters article

Policing DV- barriers and good practice

Police responses to domestic violence have been examined by a number of ombudsmans' offices across Australia, (WA Ombudsman 2003, Qld Crime and Misconduct Commission 2005, NSW Ombudsman 2006), with many findings consistent across the reports. The NSW report found that areas where domestic violence was rife were also those least equipped to deal with it. Police felt that policing domestic violence was a complex and frustrating task due to its violent nature and the cumbersome court processes associated with applying for an ADVO. Applications were often denied, in part due to complaints being withdrawn. The following barriers to effective policing were found:
inconsistent procedures within the courts and police standard operating procedures (SOPs)
lack of training for field officers and the command hierarchy including police prosecutors
continued low status of Domestic Violence Liaison Officers (DVLO)
inadequate services for Indigenous women.
The report advocated a consistent framework with minimum standards that can be adapted to the needs of each area command, and updated SOPs for domestic violence. Other recommendations included:
outfitting police with equipment appropriate for collecting evidence in these cases
encouraging partnerships with appropriate stakeholders and promoting information exchange
developing risk assessment models, including collaborative models with partner agencies
effective monitoring of training
increasing the number and status of DVLOs and the number of female Aboriginal Community Liaison Officers
streamlining the ADVO application process, which should happen as a result of the NSW Crimes Amendment (Apprehended Violence) Act 2006.
The NT Police Violent Crime Reduction Strategy (VCRS), a winner of a 2006 Australian Crime and Violence Prevention Award, incorporates many of the key areas mentioned in the NSW report and illustrates the success of implementing such changes. VCRS has been successful in increasing the number of trained staff dealing with domestic violence from five to 24, establishing partnerships with appropriate services, and marketing the strategies to the NT community. Police responses to domestic violence are assessed quarterly. In one year, there has been a substantial increase in reporting domestic violence and numbers of ADVOs issued, but also a noticeable increase in breaches of these ADVOs (AIC 2006).

Link to AIC article

Indigenous Family Violence

Family violence is a problem in all sectors of Australian society, with particular attention recently being given to its occurrence in remote Indigenous communities. The Australian Institute of Health and Welfare report, Family violence among Aboriginal and Torres Strait Islander peoples, draws on data from the 2002 National Aboriginal and Torres Strait Islander Social Survey, in which approximately 9,400 Indigenous Australians aged 15 years and older participated. Among other questions, the survey asked whether Indigenous people saw violence as a problem in their communities, and what kind of violence this was. Survey participants living in remote areas were around three times more likely to regard assault, sexual assault and family violence as community problems than those living in non-remote areas. In remote areas, 41 percent of Indigenous people viewed assault and family violence as a community problem and 17 percent viewed sexual assault as a problem (12%, 14% and 5% respectively in non-remote communities).

AIC article

Children at DV incidents

To help combat domestic and family violence the Australian Capital Territory arm of the Australian Federal Police, ACT Policing, began the Family Violence Intervention Program in May 1998. The program maintains a database on family violence incidents with the aim of assisting ACT Policing to improve its responses to such incidents. The incidents recorded in the database include each occurrence of family violence in the ACT in which police were either involved or notified, and include events leading up to police arrival at an incident and during police presence. For the year 2003-04, a total of 1,625 children were recorded as being present at 44 percent of family violence incidents (n=1,231). The figure below, drawn from an AIC analysis of the data, shows the age breakdown of children recorded as being present at family violence incidents from 2001-02 to 2003-04. For each year of the program, age was known for about 80 percent of all children present, with approximately half the children aged between 11 and 17 years for 2003-04.

AIC article

Personal Safety Survey

The Personal Safety Survey (PSS) was a national survey of people aged 18 or older conducted by the Australian Bureau of Statistics in 2005, following the Women's Safety Survey (WSS) carried out in 1996. The content of the two surveys was kept largely consistent, although the WSS included approximately 6,300 female respondents while the PSS sampled approximately 11,800 females and 4,500 males. The PSS estimated that since the age of 15, 20 percent of women had been physically assaulted by a male and five percent by a female, while 28 percent of males had experienced assault by another male and nine percent by a female. Around 67 percent of the physical assaults by males on females were committed by a partner, including a current or previous partner or boyfriend/date. Both surveys found that women were less likely to report recent assaults by a male to police if they were by a current partner or boyfriend/date than by a stranger, previous partner or other known man. However, the percentage of physical assaults reported to police increased between 1996 and 2005 irrespective of the relationship with the perpetrator, from 19 to 36 percent.

AIC article

Weapons of homicide

The Australian Institute of Criminology has published research showing that while thankfully the rates of homicide are down, the instruments of choice remain knives or sharp instruments- what are called weapons of opportunity- which are no doubt seen in domestic homicides.

AIC article

Attitudes to "forced sex"

The Australian Institute of Criminology has recently published on its website research as to attitudes towards forced sex in Victoria. It is refreshing that of the 2800 Victorians surveyed, there was overwhelming consensus that forced sex is domestic violence.Link:

Training for Family Court staff about DV

Family Court staff have received training about family violence, in two programs - one for client services staff and the other for mediators and registrars, delivered by Relationships Australia South Australia

Link to article

New legislation

The Department of Prime Minister and Cabinet has released the bills proposed for introduction to the Parliament in the next sittings.

These include:
Evidence Amendment Bill
- implement the government’s response to the recommendations of the Australian Law Reform Commission
- amend the Acts Interpretation Act 1901 to provide for certain printed and electronic versions of Acts to be taken to be a complete and accurate record of those Acts
- amend the Evidence and Procedures (New Zealand) Act 1994 to extend the arrangements for the enforcement of subpoenas to include family law proceedings

Family Law Amendment Bill
- amend the Family Law Act 1975 to implement a range of measures

Family Law Amendment (De Facto Financial Matters) Bill
- amend the Family Law Act 1975 to implement references of legislative power to the Parliament of the Commonwealth by some states on financial matters arising out of the breakdown of de facto relationships

Family Law (Same Sex Adoption) Bill
- amend the Family Law Act 1975 to indicate that adoptions by same sex couples of children from overseas under either bilateral or multilateral arrangements will not be recognised in Australia

The bills have not yet seen the light of day. The Family Law (Same Sex Adoption) Bill has attracted some controversy- see earlier post.

The Family Law Amendment (De Facto Financial Matters) Bill is likely to have the most far reaching changes. Currently the family law system in Australia has with the exception of Western Australia two parts: Commonwealth and State. Some matters fall within State law and some within Commonwealth law. Those matters within State law are dealt with in State courts, and those within Commonwealth matters are usually (but not always) dealt with in the Family Court of Australia or the Federal Magistrates Court of Australia.

WA is different as although there is both State and Commonwealth law, child support is governed by State law (which largely mirrors Commonwealth law), and family law cases have been dealt with in the Family Court of WA, although the Federal Magistrates Court has now started there too.

Confused? You're not alone.

If you're married, ordinarily you go to several courts when your marriage breaks down:

for parenting and property disputes to the Family Court or the Federal Magistrates Court
for divorce, to the Federal Magistrates Court
for domestic violence cases, to the (State) Magistrates or Local Courts.
If de facto couples have a property dispute, it is dealt with in the State courts, such as the Supreme Court of Queensland.

There are several problems:

different courts mean an increase in costs
different courts have different approaches, thereby leading to uncertainty, and increased costs
there are issues about jurisdiction of property disputes
different States and Territories have different rules as to what relationships are included, how property settlement is calculated, and whether spousal maintenance is payable.
In NSW for example, there is a much stricter view on contributions than in the Family Court (ie in general terms less paid to the woman), but there is the ability to pay spousal maintenance. Queensland's system by contrast largely mirrors the property provisions of the Family Law Act, but makes no allowance for spousal maintenance.

So to change the rules on property settlement for de facto couples to one system from 8 makes a lot of sense, until the devil in the detail is revealed. It is not known, at this stage, whether the same scheme applying to property settlement for married couples under the Family Law Act will apply to de facto couples.

The proposed changes will apply in all States other than SA and WA, each of which has refused to refer power to the Commonwealth.

The proposed changes (whatever they are) will only apply to heterosexual couples. Gay and lesbian couples, and those who are in interdependent relationships (recognised for example in the ACT) will still be under the State and Territory systems.

The proposed changes therefore mean that instead of largely one system for married couples and 8 for de facto couples, there will now be:

1 for married couples
3 for heterosexual de facto couples where their property or their relationship was everywhere but SA and WA, and those in SA and WA- clearly jurisdiction might still be an issue for some
8 for gay and lesbian couples
I will keep updates posted.

Ban on overseas gay adoptions

The Government advised Senators that it intended to put before the Senate the Family Law (Same Sex Adoption) Bill, the purpose of which was "to amend the Family Law Act 1975 to indicate that adoptions by same sex couples of children from overseas under either bilateral or multilateral arrangements will not be recognised in Australia.”

Both Senator Andrew Bartlett, leader of the Australian Democrats and Rodney Croome, well known gay activist, have expressed their concerns about the proposed Bill, the text of which has not yet become available.

Senator Bartlett's blog
Rodney Croome's blog

Family Law (Divorce Fees Validation) Bill 2007

Family Law (Divorce Fees Validation) Bill 2007

The purpose of this Bill is to validate the charging of fees by the Federal Magistrates Court in WA.

Link to the parliamentary counsel

Small percentage for short marriage

Small percentage for short marriage

One of the most vexing problems in deciding property settlement cases is to decide what happens in short marriages, especially when one party comes in with most if not all of the property.

A recent illustration was in CCD and AGMD. The parties had been married for 5 years, and at commencement the vast bulk of the contributions were those of the husband. At trial, Carmody J. ordered that the wife receive $328,524, because in part, given that she was aged in her 50's there should be some compensation, reliance and need , there was an expectation that she would not work again. The asset pool at commencement was about $2.5M and at trial was about $3.5M. The wife's property had increased in value during the marriage by $100,000.

The Full Court of the Family Court did not agree. It held that these concepts were not relevant under the Family Law Act, and that having regard to the overwhelming financial contributions of the husband, the lifestyle that he had afforded the wife when they were together, and the growth in her own property, then the amount payable to the wife should only be $99,073.

Link to judgment