Wednesday, 30 May 2007

jointparents.com

For all those parents who have to co-parent, it can be a nightmare of conflict, organising schedules, drama about when to go to parent-teacher interviews, which doctor to see and when, when the school fees are due, and all the other banes of a parent's life, but added to because of the co-parenting.

Jointparents.com, seems to be a completely new idea, designed by co-parents and is a site designed to enable scheduling, storage of photos, virtual visits and the like.

Let me know what it's like.

Link to jointparents.com.

Credibility, credibility, credibility

Often when there is a vicious family law fight, who gets believed can be critical to success. This is especially important when there is often a lack of witnesses, other than the sometimes predictable cheer squad witnesses for each of the parties.

This issue of credibility was raised in the latest Asista newsletter in the States, to deal with applications to remain in that country based on extreme cruelty. What is said is apt for family law disputes in Australia (although the procedure is different):

"Avoiding credibility problems

In the self-petitioner's own declaration, it is extremely important that the self-petitioner provides as much detail about the effects of the extreme cruelty on her as possible. She must come across as credible as possible, which means her representative must check the full application to ensure that facts (dates, places of residence, etc.) are consistent throughout, including documentation andprior applications on her behalf.If there inconsistencies, explain them in your cover letter, do not wait for the VAWA unit to notice them and ask you to explain them. Failing to explain inconsistencies from the beginning will raise questions about your client's credibility generally and heighten the level of scrutiny with which the adjudicator examines all your statements and documentation."

Brisbane domestic violence prevention champions honoured

Sunnybank Hills, Coorparoo and New Farm-based initiatives have been recognised at a prestigious awards ceremony in Brisbane today for their efforts to reduce and prevent domestic and family violence.

Communities Minister Warren Pitt presented Sunnybank Hills' Kyabra Community Association with the Community Organisation Award, and Coorparoo Secondary College with the Government Award, at the 2007 Queensland Domestic and Family Violence Prevention Awards.

New Farm's Seniors Advice and Information Legal Service (SAILS) was presented with a highly commended certificate in the Community Organisation award category.

"The Domestic and Family Violence Prevention Awards have been presented to individuals, community groups, schools and organisations that have developed successful initiatives that help prevent domestic and family violence," Mr Pitt said.

"This is one way of honouring these dedicated people and the difference they are making in the lives of those affected by this form of abuse.

"It is important that those who speak out about domestic and family violence, who support victims and who promote the right to be safe in one's own home, are applauded and recognised.

The Kyabra Community Association has been honoured for Illumination, a publicly available women's narrative project.

"Kyabra's narrative drew on the knowledge, images, stories, art and responses of women who have been affected by domestic and family violence to create an information kit," Mr Pitt said.

"These very brave women reclaimed their lives and wanted to educate other women about the control tactics that can be used by a perpetrator."

The Illumination kit consists of a booklet and 24 cards that explain control tactics and corresponding responses.

Coorparoo Secondary College was presented with the Government Award for an awareness-raising project that educated young people and their parents about the prevalence of domestic and family violence, the repercussions of violence and alternative behaviours to violence.

"Students were engaged via a series of interesting activities, including t-shirt design and information sessions with guest speakers. Tip sheets were also provided to parents," Mr Pitt said.

SAILS, based in New Farm, was presented with a highly commended certificate in the Community Organisation awards category at today's ceremony.

"Elder abuse is a growing concern in Queensland," Mr Pitt said.

"Established by the Caxton Legal Centre in 2003, SAILS provides free legal advice, advocacy and social work support to people aged 60 or more who are experiencing, or at risk of experiencing, violence by family members or informal carers."

The Domestic and Family Violence Prevention Awards ceremony is one of the key events held during Domestic and Family Violence Prevention Month in May.

Today's awards ceremony recognised six winners and five highly commended certificate recipients in six award categories: Individual, Partnership, Community Organisation, School-based Prevention Project, Government and Indigenous.

Mr Pitt said the award winners and other nominees were leading by example.

"They are excellent role models for the community," he said.

"Congratulations to all of the winners, and indeed to everyone who was nominated for an award. Their actions challenge all of us to take a stand against domestic and family violence."

Saturday, 26 May 2007

Landmark Lawsuit Protects California's Adoptive Children and Parents from Discrimination

In Australia there is broad consensus between the two major parties about heterosexual parties being able to adopt. Contrast with the recent case from California...

Landmark Lawsuit Protects California's Adoptive Children and Parents from Discrimination

(San Francisco, California, May 21, 2007) – Michael and Rich Butler, a San Jose couple, successfully resolved their landmark discrimination suit on Monday against the operators of the for-profit websites Adoption.com and ParentProfiles.com.

"This case was about ensuring that these businesses stop discriminating against same-sex couples in California by excluding them from offering loving, stable homes to children," said Michael Butler, one of the plaintiffs in the case. "We have succeeded, and we believe this case sends the message that Californians will not tolerate businesses that discriminate."

In 2004, the Butlers filed a lawsuit after defendants refused to post their profile online solely because they are a same-sex couple. The defendants' websites, Adoption.com and ParentProfiles.com, charge fees for posting profiles of potential adoptive parents. Using the websites, birth parents can search those profiles to choose potential adoptive parents for their children. On March 30, 2007, San Francisco federal district court judge Phyllis J. Hamilton issued a decision holding that California law applies to the Defendants and permitting the Butlers to take their case to trial.

According to the settlement, Adoption.com and ParentProfiles.com have agreed to either comply with California antidiscrimination law or cease providing their services to Californians. The agreement, provides that: "no Defendant shall Post Biographical Data of California residents seeking to adopt directed to prospective birth parents unless the Service is made equally available to all California residents qualified to adopt in California."

"We were forced to sue the defendants because they refused to follow California law, which prohibits discrimination based on sexual orientation and marital status," said Neel Chatterjee, a partner at Orrick, Herrington & Sutcliffe LLP, who jointly represents the Butlers along with the National Center for Lesbian Rights. "This case sends a clear message. Regardless of where you are headquartered, if you want to do business in California, you must comply with California law. The defendants have conceded that they must either comply with California law or stop benefiting financially from California consumers. With this settlement, we have stopped a serious discriminatory practice."

According to Lynne Jacobs, the Executive Director of Adopt International, "I have been the director of a licensed adoption agency for 24 years. In my experience, many birth mothers choose same-sex couples to adopt their children. I have worked with same-sex adoptive families for years, and have seen first hand that sexual orientation has nothing to do with being good adoptive parents. Discrimination in the adoption industry hurts everyone."

In addition to its profiling service for parents seeking to adopt, Adoption.com lists profiles of foster children who need adoptive homes. As part of the settlement, the Defendants agreed that the Adoption.com photo listing of children in foster care waiting to be adopted does not discriminate and is available on an equal basis to anyone seeking to adopt.

Link to the (US) National Center for Lesbian Rights

Case: Family Court: The bad in Goode

Brisbane lawyer and academic Zoe Rathus has criticised the impact of the recent decision in Goode and Goode.

The Bad in Goode: A case note about the implications of Goode where allegations of family violence have been made


Introduction

On 15 December, 2006, the Full Court of the Family Court handed down judgment in an appeal against an interim parenting decision made on 10 August, 2006 – just over one month after the new reforms of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (C’th) commenced operation. The Full Court’s judgment deals mainly with how interim hearing decision-making should occur in light of the reforms, but it also touches on the interpretation of many critical aspects of the new legislative regime relevant to how family violence will be dealt with in practice under the new regime.

Shifting the Gaze

In this case note I argue that the 2006 reforms tend to shift the gaze of the court, and other parts of the family law system, away from the history of the intact family towards post separation events and a new ideal future. This tends to minimise or conceal past family violence and render it of little relevance to the critical prediction of risk of harm to children required to ensure their protection from physical or psychological harm under ss60B(1)(b) and ss60CC(2)(b). The procedural provision related to family violence, s60K, seems awkward in its application and is perhaps under-utilised, the ‘friendly parent’ provision, ss60CC(3)(c), turns a microscope on the post-separation attitude and conduct of the initial ‘informal’ residence parent, usually the mother, while the costs provisions relating to ‘false allegations’ can render the past violence dangerous for a party to raise.

This note seeks to demonstrate how some of these concerns may play out in cases, using the decision in Goode as an example.

Facts

The parties separated in ‘late May 2006’ and the mother instituted proceedings on 26 May – therefore very shortly after separation. There are two children aged 8 and 2. It seems that the father instigated the separation, leaving the mother and children in the marital home. During the relationship both parents were quite involved in the children’s care and the paternal grand-parents also played a role. It seems uncontested, however, that the mother provided the most significant care for the children and it was her case that she was the primary carer. The mother also alleged a history of domestic violence.

At the time of the interim hearing there was an arrangement in place whereby the children spent every alternate weekend with their father, plus some mid-week time for the 8 year old. Deciding ultimately to apply traditional interim hearing decision-making, Justice Collier ordered that the prevailing arrangements continue until final trial.

Allegations of family violence

During the consultation process for the reforms the Federal Government was challenged by many commentators about the problems that a favoured ‘shared parenting’ regime may bring to raising allegations of violence. However, the Attorney-General who has shepherded through these reforms, the Hon Philip Ruddock, MP, disputes that claim explaining that the ‘Government has listened very carefully to the concerns raised and has amended the new laws to ensure they do not expose people to more violence.’

It is my contention that Goode demonstrates precisely how the new package silences violence while appearing to take note of it. The mother made quite serious allegations of family violence:

• ‘that she was subjected to physical abuse by the appellant father after the first few months of marriage’;

• [that] ‘when she was pregnant he pushed her onto the floor’;

• [that] ‘on another occasion  the  father pushed her and then slapped her with an open hand’;

• ‘that in January 2006 she and the appellant father had an argument in which she was physically abused and thrown around the bedroom. This incident  was sufficiently serious that she could not attend work the next day’.

• [that there were] ‘numerous other examples of violence during the marriage’.

Because of these allegations Justice Collier felt unable to apply the presumption of equal shared parental responsibility (ESPR). He was also not able to find that the presumption had definitely been rebutted, ‘because he could not be satisfied on reasonable grounds that [family violence] had occurred’.

Is s60K useful?

According to the heading , section 60K requires a court to ‘take prompt action in relation to allegations of child abuse or family violence’. It seems, however, that the unwieldy and extra processes required to trigger s60K perhaps renders this section unhelpful. To activate this provision a Form 4 Notice of Child Abuse or Family Violence must be filed. If the Form 4 alleges that ‘there has been family violence by one of the parties to the proceedings’ the court has to consider ‘what interim or procedural orders (if any) should be made’ to gather evidence, protect parties and children and deal with issues raised expeditiously.

It seems most unfortunate and dangerous for victims of family violence that the operation of this section depends on the filing of a special form. The mother clearly alleged family violence in her affidavit but no protective procedural steps were instigated. The interim hearing gave priority to sorting out post-separation parenting arrangements for the children even though the parents had only recently separated, rather than finding out the nature and frequency of any family violence which had occurred and how that may be relevant to ascertaining what arrangements are likely to be in the best interests of the children taking into account ss60B(1)(b) ss60CC(2)(b) and ss60CC(3)(j) and (k) and even (f) and (i).

The Full Court does not mention s60K. Is there a misapprehension that s60K is only about child abuse? Had the mother’s lawyers filed a Form 4? Perhaps this is not the usual practice in cases where family violence, rather than direct child abuse, is alleged. Perhaps there would just be too many Form 4 cases if it were. But there is little point in developing systems to properly deal with family violence if they are not triggered by allegations of violence.

How do women raise past violence?

It is arguable that the new amendments establish a strange separation of the prediction of risk of harm to children from the determination of the nature and relevance of any alleged history of abuse. The predictive decision-making occurs in accordance with the apparently protective provisions, ss60B(1)(b) in the ‘objects’ clause and 60CC(2)(b) in the ‘primary considerations’ provision. These provisions invite speculation about the future, probably with strong reliance on the expert evidence of a social scientist. Conversely, a determination of allegations of abuse would enable a court to consider the relevance of these findings when exercising its predictive judgment.

Logically a decision about future risk should rely significantly on findings about past abuse, but the new structure seems to suggest that risk can be predicted before or without a determination about past abuse. It is part of the shifting of the gaze to the post separation past and the future which underlies these changes and obstructs critical decision-making about violence.

The Full Court quoted from the submission of the mother’s solicitor at the interim hearing:

How [the] exemption to [the ESPR] presumption applies  in an interim hearing is a little more difficult to discern, because if one takes the analogy, for example, of an apprehended violence order in the State system, a Court can only issue such an order if the fear that a person has about violence to themselves is reasonable. And usually the grounds for that reasonableness, or that assessment of reasonableness, are based upon the Court’s assessment as to the truth  of allegations of violence that have occurred in the past .

The mother’s solicitor is correct here – so when can a party expect the court to examine the past to anticipate the future? For example, in this matter, will there ever be a final trial? There has already been an interim hearing and an appeal to the Full Court of the Family Court – and the case has been remitted for a second interim hearing. It seems possible that this matter will settle long before a final trial as the parties may not have the financial and emotional resources to keep litigating.

If the matter settles, this may be good for the children and the parents but only if the terms of settlement reflect and acknowledge any violence which has occurred. If it has never been proved, the mother has no basis to negotiate terms in the light of what appears to be, at least, her perceived reality.

Even the matter proceeds to a trial, it is difficult for parties to make family violence relevant to decision-making. Kaspiew’s empirical study into violence in contested children’s cases led her to conclude that:

 the violence must be of an extreme nature, and have a very firm evidential basis, before it can be argued to be a ‘disqualifying’ factor in residence or contact applications.’

Risk of costs order – s117AB

If a court ever assesses that the mother’s allegations are not ‘the truth’ – s117AB is triggered and costs should be mandatorily ordered against the mother for making ‘false allegations’. This is likely to dissuade the mother from pressing the point.

It must also be remembered that family violence now has to be proved objectively as a result of changes to the definition of family violence in s4 FLA. The mother must have ‘reasonably’ feared for her personal well-being or safety.

The ‘unfriendly parent’ – s60CC(3)(c)

Another section which militates against the mother’s ability to raise the violence successfully is ss60CC(3)(c) which requires the court to take into account ‘the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent’. It is interesting that in one discussion of the facts of the case the Full Court starts with the observation that:

For two weeks after separation until 9 June, 2006 the appellant father deposed that the respondent mother did not allow the children to spend any time with him.

While nothing seems to turn on this point in the judgement, it shows how significant s60CC(3)(c) could become. A mother who is difficult about contact will have that point made against her very quickly. Her conduct since separation and her attitude towards the father’s contact with the children will be very influential in decision-making and it is obviously parents who are worried about abuse who are most likely to collide with this subsection.

Anecdotally the risk of a mothers being labelled ‘unfriendly parents’ is already permeating advice by solicitors to their female clients in Australia. Women are advised not to raise the violence and, therefore, engage in settlement negotiations where there is silence about the violence .

Why did the mother concede ‘there was no issue of risk to the children’?

It is apparent from the judgment that the mother conceded that ‘there was no issue of risk to the children’ . Why did she do that? What did she mean by ‘no risk’? Was it too hard to explain the kinds of emotional and psychological abuse exerted? Did she not define these as amounting to harm? Is it because there was no direct violence? What must women be concerned about for their children before they can legitimately suggest ‘risk’?

It is also possible that this concession might actually expose the mother to a costs application under s117AB. If she now concedes there is no risk to the children, this opens the way for the father to argue that her allegations about violence must be untrue or not totally true.


When must equal, or substantial and significant time, be considered?

Still relevant even when presumption of ESPR rebutted or not applied

Under a straight forward reading of the amendments, the new provision relating to the consideration of equal time type shared parenting arrangements by a court is triggered where an order for ESPR has been made or is to be made. However, the Full Court suggests that the court is required to consider such arrangements whether or not it has applied the presumption. According to the Full Court:

 whilst the application of the presumption of equal shared parental responsibility may be the trigger for the operation of s 65DAA, it is not the only basis upon which the Court may make an order for equal or substantial and significant time to be spent by the parents with the child .

It suggests that ‘[e]ven if the presumption is rebutted or is not to apply in the interests of the child’ equal time type arrangements would have to be considered ‘if one or both of the parties is seeking such an order’. In fact, according to the Full Court, even if such an application has not been made, the court should always consider arrangements that promote the best interests of a child and an equal time type order could result ‘if it was in the Court’s view ultimately in the child’s best interests for such an order to be made’.

With respect, this interpretation seems somewhat problematic although it may well be accurate at law. On the face of the legislation, s65DAA itself is only triggered where the presumption has been applied. The relevant subsections requiring the court to consider the equal time type provisions both start with:

If a parenting order provides (or is to provide) that a child’s parents are to have ESPR for the child,  the court must consider [equal time or substantial and significant time respectively]

This means that, when the Full Court refers to the requirement to consider an equal time type order, where the presumption has not been applied or been rebutted, this is a consideration at large. It is not a consideration which has to comply with the framework of s65DAA. It is ironic that, where the presumption of ESPR has been applied, the court is obliged to comply with ss65DAA(5) and carefully have regard to the legislatively prescribed matters of ‘reasonable practicability’. Where the presumption has not been applied or been rebutted, perhaps because of family violence there are no specific constraints on the court’s decision-making process for making an equal time type order.

What is the purpose of the exceptions to the ESPR presumption?

If this interpretation is correct, it opens a question about the purpose of ss61DA(2) – (4), the exception provisions in the ESPR presumption. The Full Court has determined that the presumption of ESPR is subject to those listed exceptions. Then it finds that, notwithstanding this, the most important consequence of the application of the presumption – the requirement to consider equal time type arrangements – is not excluded by a refusal to apply the presumption – but rather is just arrived at in a different way.

To take this further – it is generally evidence of abuse or other serious family dysfunction that would lead to a decision not to apply the presumption. Surely this is the very same evidence that would now have to be led to prove to the court why an equal time type order should not be made. In a way, ss61DA(1) is the core provision which, in certain circumstances, triggers s65DAA as a machinery provision. Is it reasonable to require a party to rebut the application of the machinery provision (or the law at large in similar, but less circumscribed terms) when the core provision has already been rejected?

Negotiation and litigation around parenting arrangements will often occur at a time when the parties have no experience or history of sharing care. The father may or may not have played an active parenting role during the relationship, his role may have increased or decreased since separation, there may be no knowledge of how the children would cope with the physical and emotional demands of living in two premises. But whether or not the court has applied ESPR, it is required to examine the possibility of implementing a new, untested arrangement of equal time type shared care.

If equal time type arrangements have to be seriously considered in all cases, including those in which the presumption of s61DA has been rebutted, the exceptions to s61DA seem to be rendered irrelevant to the issue of parenting time.


The Influence of the Objects Clause – s60B

And as with the 1995 reforms, the objects section (s60B) has significant influence in interpreting Part VII of the Act. The Full Court describes it thus:

In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child .

A number of questions arise from this statement.

1. Is s60B(1)(a) really subject to s60B(1)(b)?

The words ‘subject to’ are not actually used in the section, and it does not seem to be correct to say that ss60B(1)(a) is subject to ss60B(1)(b). Subsection 60B(1)(a) is about the benefit of both parents having a meaningful involvement in the lives of their children and ss60B(1)(b) sits as the next point – that children should be protected from physical or psychological harm by being subjected or exposed to abuse. The two subsections are joined by the conjunction ‘and’ as are the following ss60B(1)(c) and (1)(d). All four are separate and distinct objects of Part VII. At times ss60B(1)(a) and (1)(b) may be contradictory or difficult to reconcile – but there is no suggestion that (a) is subject to (b). Perhaps the Court’s use of the phrase ‘subject to’ indicates an implicit pragmatism about how these sections should have been drafted to allow for logical decision-making.

2. Why has the word ‘significant’ crept in?

The passage suggests that equal time type arrangements should be ordered unless there are ‘protective or other significant best interests concerns for the child’. There is no explanation for the addition of the word ‘significant’ and its use would appear to set the bar particularly high before a court can do anything other than follow through the complex set of steps required by the structure of the Act, ‘tending to a result’ of an equal time type order. This is so apparently, even at an interim hearing where the information on which to base the process is limited and the evidence is untested.

Proving that shared care is not in the best interests of a child

It will be very difficult for a parent at an interim hearing to prove that a shared care arrangement is not in the best interests of a child. There is no attempt to disguise the intention of these amendments. As already noted the Full Court said:

 it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable.

Although the ‘subject to’ conjunctive phrase is very important in this statement, there is a powerful interplay between the core sections of the Act positively encouraging ESPR orders and the machinery provisions of the equal time type arrangements. The Full Court noted that:

[The mother] did not indicate in her affidavit why a shared arrangement or, if not a shared arrangement, the children spending substantial and significant time with the appellant father, should not occur.

How could she? She would require expert evidence or a family report. Raising the violence in her affidavit was not taken by the Court to be automatically or obviously relevant to the issue of shared care. It did not treat her account of the violence to which she had been subjected as relevant to the question of the time the children should spend with each parent. If even some of the allegations made by the mother were ultimately held to be true, her reluctance for the children to start spending half their time with the father right from the beginning of the separation would be understandable but the new Act renders it difficult for a party to assert such a link without risking categorisation as an unfriendly parent. This is not to suggest that the children should not spend time with their father but what has happened to all the social science research of the last 30 years about the effects on children of witnessing domestic violence and on the connections between domestic violence and child abuse?

In a decision of the Court of Appeal in the United Kingdom, the President of the Court, Dame Butler-Sloss, made a powerful statement about the link between spousal abuse and parenting:

Violence to a partner involves a significant failure in parenting – failure to protect the child’s carer and failure to protect the child emotionally .

It is critical that all players in the family law system understand and acknowledge this link. A mother’s reluctance for her children to live with a violent former partner for half, or nearly half, the time is understandable and natural – not malicious and obstructive. This does not mean that there should be no contact, but failure to accommodate the mother’s concerns and to label her attitudes as obstructive to the philosophy of shared care risks casting the system back to the thinking of 1976 when it was suggested that a man could be a bad husband but a good parent.

It is known that some abusive men use the law to ‘threaten’ the mothers of their children – or at least to score points. The appeal will have been a huge personal and emotional win for the father in this case and a devastating blow to the mother. She will have lost confidence in her credibility – making it difficult for her to ever consider litigating on the basis of her allegations.

Conclusion

The impression is that, at a practical level, the powerful message of shared parenting may often overwhelm the nominated exceptions where there has been abuse. Although the Full Court was careful to identify that the message of shared care was always ‘subject to’ exceptions, its suggestion that equal time type orders should be considered in all cases – whether or not the fundamental presumption has been applied or refused, leaves the whole complex protective structure of the amendments of little practical effect.

Further, when the Court deals with the actual allegations of violence in this case, it does not describe a legal decision-making path from that abuse to the parenting time outcome. The allegations of abuse had no practical impact on the process and any relevance they should have to the outcome was not explored.

Both the court at first instance and the Full Court were able to side step the abuse perhaps without even quite realising it. Players in the family law system should be wary of this and always ensure that allegations of abuse are dealt with early. A parenting decision made where allegations of violence remain in unresolved limbo may place children at risk. The speculative idealism encouraged by these reforms could triumph dangerously over outcomes for children moulded after a sober reflection of the relevance of any history of abuse. It is appropriate to consider the possibilities of the future but this cannot be done safely in a way that masks critical aspects of the past.

Links between DV and child abuse

The other day I was pondering the research about the links between domestic violence and child abuse, when my attention was drawn to a discussion paper Adam Tomison prepared back in 2000 for the Australian Institute of Family Studies, which summarises research showing a strong link between the two.

For a copy of the report,
click here.

Thursday, 17 May 2007

S 90K defined

In the recent case of S and S [2007] FMCAfam 272, Altobelli FM in the Federal Magistrates Court has said that there are keys differences between sections 79A and 90K of the Family Law Act.

His Honour was dealing with a preliminary point about an application to set aside a binding financial agreement.

Section 79A is the section used to set aside property settlement orders, when for example there has been a fraud or other miscarriage of justice. Section 90K is the similar section dealing with setting aside binding financial agreements.

His Honour said:

(Counsel for) the wife… submitted that in the same way as a s.79A application is often dealt with at the same time as a s 79 application (even though the latter is dependent on the success of the former) the same should apply in relation to s.90K….

(T)here are some essential differences between s.79A and s.90K that lead me to conclude that the section 90K application should be dealt with as a discrete issue. The focus of s.90K is on a private agreement entered into between the parties, the purpose of which was to exclude the operation of Part VIII of the Family Law Act. Its essential foundation and basis is in contract and private rights. Section 79A, however, has its essential basis in an order of the court, and whether miscarriage of justice has been caused by various circumstances, or there has been, in the broad sense, an abuse of process such that the exercise of the court’s discretion in making the order has been in some way tainted, vitiated, or affected. In this sense, public rights are effected.

Even though the grounds for setting aside an order under s.79A(1) and setting aside a Binding Financial Agreement under s.90K(1) have some similarity, the essential nature of these sections is entirely different.

This essential difference is demonstrated by fact that there is no equivalent of s.90K as regards section s.79A. The other significant difference is that the concluding words of s.79A(1) ….expressly provides that if the court does vary or set aside the order under s.79A "if it considers appropriate" the court may "make another order under s.79 in substitution for the order so set aside." It is quite possible that the concluding words to s.79A(1) explain the practice that did develop in the Family Court for the s.79A application to be dealt with at the same time as a s.79 application, assuming the former was successful.

However, there is no parallel in this regard with s.90K. If the application is successful, the parties are left with an invalid, unenforceable or ineffective agreement and there is no express statutory power as exists in s.79A to enable a court to exercise s.79 jurisdiction. In this regard s.90K(3) is silent as to the source of the power to make the orders referred to there, and the link between the power to make ancillary orders, and the substantive proceedings to set aside the agreement is not clearly articulated as it is in s.79A(1).


For the full judgment, click here.

Wednesday, 16 May 2007

Non-compliant Hague countries: US

The US State Department has issued a report setting out non-compliant Hague countries.

The Hague Convention on the Civil Aspects of International Child Abduction, commonly known as the Hague Convention, is the prime tool in signatory countries to get children back to the country where they came from, if the children have been wrongfully removed or retained.

It is fair to say that the world is divided into two halves- those people living in Hague countries, and those living in non-Hague countries.

The Convention relies upon each country to set up a Central Authority, which helps prosecute each case, and upon the courts to act presumptively: if there has been wrongful removal or retention, then ordinarily the child must go back.

Obviously if your child has been abducted by the other parent, you would rather take your chances fighting for the return of your child in a Hague country than in a non-Hague country.

The list by the State Department is rather worrying.

In its 2006 report it says that the following countries are "non-compliant":

Austria



As in the past, the United States continues to view Austria as “noncompliant” in its implementation of the Convention. Our primary concern in the past has been with the capabilities and willingness of the Austrian authorities and legal system to enforce judicial orders for return or for access. These concerns are best exemplified in a long-outstanding access case that resulted from earlier compliance problems (as outlined in previous Compliance Reports). In this case, the left-behind parent has taken the matter to the European Court of Human Rights (ECHR) twice and won on both occasions. In one such ruling in April 2003, the ECHR determined that Austria had violated the rights of both the left-behind parent and the child to a family life under the European Convention for the Protection of Human Rights and Fundamental Freedoms.


Ecuador

Ecuador’s performance in implementing the Convention was previously cited as “noncompliant” due to the lack of a functioning Central Authority and lack of progress in resolving cases. This designation is likewise appropriate for the current report. The Government of Ecuador (GOE) abolished its Central Authority in April 2003. Although U.S. Embassy Quito and the USCA were advised of the establishment of temporary central authorities during the reporting period, all the functions normally fulfilled by a Central Authority were not performed; for example, assisting left-behind parents, educating judges on their Convention responsibilities, liaising with law enforcement agencies, and keeping the USCA apprised on developments in Convention cases.


Honduras

During most of the rating period covered in this report, Honduras had no functioning Central Authority and no designee with whom to communicate on Convention issues. Consequently, functions normally fulfilled by a Central Authority were not performed, such as assisting left-behind parents, educating judges on their Convention responsibilities, liaising with law enforcement agencies, and keeping the USCA apprised of developments in Convention cases. In June 2005, a Central Authority was officially designated and an attorney was appointed to lead the office. Under her leadership the Honduran Central Authority (HCA) has become very responsive to inquiries from the USCA, and since the re-establishment of the HCA, there has been some recent progress in informing judges of their responsibilities under the Convention. Although concerns still exist with respect to a remaining shortage of staff and resources, it is important to note that since the end of reporting period the HCA has acted on all open cases, and the USCA is encouraged by this progress.


Mauritius

In the 2005 Convention compliance report, Mauritius was designated as "noncompliant.” There is no basis for changing our assessment of Mauritius’ performance under the Convention for the current rating period. Since 1993, when Mauritius became a party to the Convention, only two cases have been forwarded to the Mauritian Central Authority (MCA), one in 1998 and the other in 1999. In June 2004, six years after the initial filing of a Convention application, the Mauritian Supreme Court decided in the first case to deny the application for return on the grounds that no domestic implementing legislation was in effect at the time the application was filed (1998). This decision placed Mauritius in violation of its obligation to the United States under international law, because Article 35 of the Convention obliges a signatory country to apply the Convention to all abductions occurring as of the country’s signing of the Convention.


Venezuela

Venezuela was not mentioned in the 2005 Convention compliance report because there were no active cases during the time frame covered by the report. For the period covered by the 2006 report, however, serious compliance problems became evident. The Venezuelan Central Authority (VCA) typically failed to be responsive to inquiries by the USCA, U.S. Embassy Caracas, or left-behind parents. The USCA is not aware of any judicial training program for judges or prosecutors. Applications are not handled by the VCA in an expeditious manner nor are any measures being taken to improve processing of applications. Long delays in case proceedings are indicative of larger systemic problems in the Venezuelan court system. For neither of the two outstanding cases during the period of review was a court hearing scheduled. One case, now more than a year old, has never been heard in court, and in another case, a voluntary return was accomplished after ten months (no court hearing was held). With regard to enforcement of return orders, under Venezuelan law, parents can be subject to imprisonment and fines for not complying with court orders. With no cases heard during the rating period, however, there were no return orders issued or enforced. U.S. Embassy Caracas met with officials from the Ministry of Foreign Relations twice during the reporting period to discuss problems with case proceedings, once in May 2005 and again in September 2005, but no substantive information was received as a result of these efforts. As a result the USCA has determined that, during the most recent rating period, Venezuela was “noncompliant” with regard to its duties under the Convention.


Countries not fully compliant

Brazil

Brazil was not cited in the 2005 Convention compliance report because the Convention was not in effect for Brazil during the entire assessment period. However, the current rating period, October 2004 through September 2005, has revealed serious problems with Brazil’s compliance, both in the Brazilian Central Authority (BCA) and in the Brazilian courts. Long delays occur at most steps of the processing and adjudication of Convention applications and the BCA is consistently not responsive to inquiries by the USCA. Additionally, during the rating period there was no judicial education available for Brazilian judges deciding Convention cases. Finally, Interpol Brasilia does not confirm the location of abducted children in Brazil in an expeditious manner.


Chile

The responsiveness and competence of the Chilean Central Authority continue to be commendable, and Convention applications are processed expeditiously. It is with the Chilean judicial performance that the USCA continues to observe the same serious problems that have been cited in earlier compliance reports. Chilean courts consistently handle Convention return cases more as custody determinations than as decisions regarding wrongful removal and habitual residence of the child, in clear contradiction of the letter and spirit of the Convention. The courts often order psychological or social evaluations of abducted children and in some instances of the left-behind parent, and in most cases in the absence of any evidence of risk or harm to the child. Chilean courts have allowed taking parents to submit unsubstantiated affidavits regarding the character of the left-behind parent and have ordered that left-behind parents respond to interrogatories (pliego de posiciones) relating to their fitness as a parent. Such evaluations, unless part of a carefully circumscribed inquiry in response to a taking parent’s assertion of exceptions to return under Article 13(b) of the Convention, are inappropriate in context of a Convention proceeding. As they go directly to merits of custody, they properly should be left to the courts in the country of habitual residence.


Colombia

As indicated in last year’s report, the Colombian Central Authority, located in the Colombian Family Welfare Institute (ICBF), continues to show a greater degree of cooperation on Convention cases. In 2005, the ICBF facilitated a consular officer’s welfare/whereabouts visit with two abducted children and successfully mediated a voluntary return in a Convention case. The Colombian Congress likewise completed work on new Convention implementing legislation, clarifying which courts have jurisdiction over Convention cases. The law, which was signed by President Uribe in January 2006, assigns administrative responsibility for Convention cases to the ICBF and judicial responsibility for Convention cases to Colombia’s family courts, or to civil courts in those locations outside the geographic range of family courts. The USCA hopes that the law will end the chronic delays that occurred in the past, when courts would avoid assuming jurisdiction and Convention cases languished for years in the judicial system.


Greece

As in the 2005 compliance report, Greece remains a country “not fully compliant” with its Convention obligations. While the Greek Central Authority processes Convention applications in a satisfactory manner, court hearings are seriously delayed. Of particular concern is the inordinately long period of time that elapses between a hearing and notification of the court’s decision. Such delays violate Article 11 of the Convention requiring expeditious proceedings, and exacerbate the impact of child abductions.
In addition, rather than restricting their consideration to the question of habitual residence of abducted children, Greek courts typically treat Convention cases as custody matters, and base their decisions on the best interests of the child or other criteria outside the boundaries of the Convention. Moreover, the courts exhibit a nationalistic bias in favor of Greek parents and take into account other inappropriate considerations of the home environment, such as the alleged benefits of the child living surrounded by his or her extended Greek family. We also find that Article 13(b) is used excessively to refuse returns. Greek courts frequently accept taking parents’ claims that the left-behind parent was abusive or generally unfit to be a parent without clear evidence in support of these assertions. Courts do not fully investigate these claims or consider alternative methods – such as the availability of social services – to protect the child and the taking parent so that a return can be ordered and custody can be properly determined in the child’s country of habitual residence. As a result, we see a very low rate of Convention return decisions.


Mexico

Primarily, our greatest concern remains the inability to locate missing children and taking parents in Mexico.


Panama

court decisions in Panama continued to be slow and inefficient. In contradiction to the goals of the Convention, courts also continued to treat Convention cases as custody matters, ordering psychological evaluations of the left-behind parent and interviews of the child. Judicial delays are likewise problematic, with cases pending in the court of first instance for six months with no decision.


Turkey

In the last compliance report, Turkey was cited as “noncompliant.” We find that some of the same problems remained during the most recent period. For example, the USCA finds that the Turkish Central Authority is only responsive when U.S. Embassy Ankara intervenes. Turkey continues to lack implementing legislation for the Convention, although such legislation is currently on the Turkish Parliament agenda. Locating children continues to be problematic and Turkish law requires the prosecutor to locate the children before a court case can be opened in that geographic district. Taking parents may file for divorce in one court and custody in a different court, inhibiting the Convention process. Return orders are often not enforced which requires continued close monitoring.


Countries of concern

Hungary
Poland
Romania
Spain
The Bahamas



Enforcement problems

Germany
France
Israel
Poland
Sweden
Switzerland

For a copy of the full report click here.

Tuesday, 15 May 2007

Case: Family Court of Australia: Domestic Violence

The Family Court in Poblano and Millard [2007] FamCA 207, dismissed a father's application to spend time with his 7 year old daughter, with whom he did not have any relationship.

The court rejected his application in the context of what can only be described as his vile, denigrating violence and stalking of the mother and her partner.

The court accepted that family violence and risk assessment are matters to be dealt with under the 2006 changes to the Family Law Act, and that family violence is now arguably more important than before.

Here is what Justice Ryan said about this issue:
Family violence and risk assessment
99. Family violence is a significant issue in these proceedings. With the passage of the Family Law Amendment (Shared Parental Responsibility) Act 2006 it arguably has even greater prominence than beforehand. The definition of family violence is widened and is now defined as being “conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.” (See s 4). In a note to the definition it is explained that “a person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.” Thus the notion of fear has both an objective and subjective element.
100. In the Explanatory Memorandum of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (8 December 2005) Parliament explains the significance and effect of its intention concerning the s 60B(1)(b) object and in doing so highlights its prominence. It states:
35. The second new object is inserted in new paragraph 60B(1)(b). It recognises that there is a need for children to be protected from physical and psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The provision recognises that children need to be protected not only from direct harm but also harm caused by being exposed to abuse or family violence that is directed towards, or affects, another person. This would cover, for example, the possible psychological harm to a child caused by the child witnessing abuse against another child, or family violence against a member of the child’s family. This new object implements recommendation 2 and conclusion 2.29 of the FCAC Report and recommendations 17 and 18 of the LACA Report. The term ‘subjected to’ has been retained as well as ‘exposed to’ in the drafting to make clear that it covers protection both from direct harm and from witnessing violence towards another person.
101. At page 13 the Explanatory Memorandum says:
48. The amendment to section 60CC creates two tiers of considerations that the court must take account of in determining what is in the best interests of a child. The primary considerations are contained in the new subsection 60CC(2). They include the benefit to the child of having a meaningful relationship with both parents and the protection of the child from physical and psychological harm. The safety of the child is not intended to be subordinate to the child’s meaningful relationship with both parents. The intention of separating these factors into two tiers is to elevate the importance of the primary factors and to better direct the court’s attention to the revised objects of Part VII of the Act which are set out in the new section 60B (inserted by item 8).
49. For example in a case where there is family violence or sexual abuse then keeping the child safe will have particular relevance. In other cases not involving any issues of safety that will be less relevant and the issue of the benefit of a meaningful relationship with both parents will be the primary factor although other factors in the secondary list, such as the child’s views, or failure to previously fulfil parental responsibilities without any reason may also be considered as relevant.”
102. In addition to the objects (s 60B(1)(b) and inclusion of family violence as a primary consideration (s 60CC(2)(b), s 60CG requires the Court to “ensure, when it makes an order, that the order is consistent with any family violence order that may be in place; and does not expose a person to an unacceptable risk of family violence.” The Court must do so to the extent possible consistent with the child’s best interests remaining the paramount consideration. As discussed earlier s 61DA(2) provides that the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence.
103. By s 60J people are not required to attend family dispute resolution where there has been child abuse or family violence by one of the parties to the proceedings but shall be provided with information about the services and options that are available to them. This will ensure that people are made aware of services and options (including alternatives to court action) that are available in circumstances of abuse or violence. Section 60J(2) provides an exception to the requirement in s 60J(1) where there is a risk of child abuse or family violence if the matter is delayed getting to court. While the intention of s 60J(1) is to ensure that victims of violence have information on the services available to them, the exception is to ensure that those matters involving high risk of immediate violence or abuse are heard by the court as soon as possible
104. Section 60K places an obligation on the Court to take prompt action in relation to allegations of child abuse or family violence.
105. Section 60I(9)(b) provides that attendance at family dispute resolution is not required where the Court is satisfied that there are reasonable grounds to believe that there has been or would be a risk of abuse of the child if there were to be a delay in applying for the order, or if there has been or would be a risk of family violence by one of the parties to the proceedings.
106. In their totality these changes are consistent with principles which emerged, but which were not universally accepted, from a series of pre Shared Parental Responsibility Act 2006 cases. Particularly Jaeger (1994) FLC 92-492, JG and BG (1994) FLC 92-515 and Patsalou and Patsalou (1995) FLC 92-580. In Patsalou, as the trial judge, Moore J discussed the significance of family violence and in doing so said the following:
“Any suggestion that such behaviour is only relevant to the welfare of children if it ‘took place in the presence of the children’ or they were ‘made aware of it’ cannot be supported. In my opinion, the denigration of one parent by the other and the perpetration of violence by that parent against the other is of importance when assessing where the interests of children lie and what future arrangements might best advance their welfare.
Denigration and/or assault put the target of this behaviour under considerable unnecessary strain which may, in turn, impinge upon the quality of parenting able to be offered to the children for whom that parent bears or shares responsibility. For a parent to conduct himself/herself in such a manner towards the other parent reflects poorly on the assailant's capacity to recognise that by this behaviour they may erode the confidence, dignity and self esteem of the children's other parent and thereby place the quality of parenting able to be offered under unnecessary strain.
It also reflects poorly upon the assailant's capacity to provide children with a positive role model for their own behaviour and methods of resolving disputes and dealing with tensions and stress.
Moreover, the effect upon children of inter-spousal violence is now the subject of a considerable body of research. This shows that, though the effects may vary depending on a number of variables, including age and stage of development of the child and frequency and extent of the violence, they may be profound and long-lasting.”
107. Even if the issue was not addressed in submissions, the Court was previously required to consider the effect on a child of a violent parental role model. Blanch v Blanch and Crawford (1999) FLC 837.
108. The legal principles to be applied in the case involving allegations of sexual abuse are laid down by the High Court in M v M (1988) 166 CLR 69. These principles are applicable to all allegations of risk of harm, including family violence. See A v A (1998) FLC 92-800. It is not the role of the court to determine the truth of allegations in the way that a criminal court must do. The High Court discouraged such findings saying that there are “strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so”. (at 77).
109. Before it can make a positive finding that a parent has abused a child, the Court needs to be satisfied according to the civil standard of proof (see s 140 of the Evidence Act 1994 (Cth).
110. If the Court determines that it cannot or should not make a positive finding that there has been violence, the Court must determine whether in all the circumstances there is an unacceptable risk of it. The manner in which the Court conducts an assessment of the risk of future harm is set out in A v A (supra). The approach there described is applicable to all allegations of future harm. The Full Court said:
“The task which His Honour was required to perform was to determine whether the evidence was such as to establish that there would be an unacceptable risk to the children if they were to have contact or supervised contact with the husband ... In reaching a conclusion on that issue, it is necessary for the court to form some opinion about the connection between the assault and the husband. It would not be necessary in this exercise to reach a positive conclusion that he was the assailant. On the other hand, if the court reached a comfortable conclusion that the husband was not the assailant, that would be likely to have a profound effect upon the approach to the question of contact. In cases of this sort, often it is not possible for the court to form a positive view at one end or the other end of this scale of dissuasion and it is not necessary for it to do so.”
111. The findings made in the assessment of risk addresses part of the Court’s responsibilities. Whilst the resolution of the risk issue may be the central issue in proceedings, the Court’s role is broader in that it must determine the best interest of the child having regard to the relevant statutory factors. In M v M (at p 76) the High Court said:
“The resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide, cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interest cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse and the balance of probabilities.”
112. If the Court reaches the conclusion that there is no unacceptable risk, the Court must consider the separate issue of the parent’s belief in the occurrence of the events. In A v A (supra) the process is described thus.
“The first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk. If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether it will have a significant impact on the party’s capacity as the resident parent and so impinge on the interests of the children. The Court then needs to take steps proportionate to that circumstance.”

Sunday, 13 May 2007

Child Protection Conference

The Australian College for Child and Family Protection Practitioners is about to hold its national conference:

Borders & Bridges 2007 National Conference

Sunday 20 to Tuesday 22 May 2007

Victoria Hotel, Little Collins Street, Melbourne


Click
here for the program brochure.

Same-sex couples recognised in SA

New laws come into effect in South Australia on 1 June 2007. These laws will give legal rights and duties to same-sex couples in areas like property ownership, wills, next-of-kin, and disclosure of interest.

The law applies to same-sex couples who live together as a couple on a genuine domestic basis for 3 years or more.

The South Australian Attorney-General's Factsheet:

Fact Sheet - Domestic Partners

A new law recognising the rights of domestic partners in South Australia has recently passed the Parliament and will take effect on 1 June, 2007.
The law gives new legal rights and duties both to same-sex de facto partners and also to other partners who may not be in a sexual relationship but live together on a genuine domestic basis as a couple.
Legal rights and duties arise if the partners have been living together in this way for three years or more.


• Who is affected by the new law?

The new law covers any two adults who live together as a couple on a genuine domestic basis, whether they are related or not, if the living arrangement endures for at least three years.
It thus covers people who live in an opposite-sex de facto relationship, those who live in a same-sex de facto relationship and those who live together as close companions or life partners.
That is, it covers all unmarried couples who meet the requirements.
The two people must have a close personal relationship: the new law does not catch people who are simply flatmates. It does not catch boarding arrangements. It does not catch commercial arrangements, such as a live-in housekeeper or paid carer.
A typical example of a relationship to which the law applies could be two single women who set up home together and share their lives in a similar way to a couple, in a relationship of mutual affection and support, even though they are not in a sexual or romantic relationship.


• How can I tell if my living arrangement is recognised by the new law?

In case of dispute, it is up to the courts to decide whether a living arrangement is or is not a domestic partnership. The court will have to assess whether you are genuinely a couple, using a list of factors.
Things to be considered are:

• how long you have been living together in the relationship: legal recognition occurs after three years of sharing your home as life partners.
• whether you both share the whole of the home in common or whether each of you has separate areas: having separate living quarters under one roof may suggest that you are not really a couple.
• does either of you financially support the other, wholly or partly? do you keep your money separate or do you pool it?
• do you own property separately or do you share it or own things jointly - for example, is the house in joint names? do you have other property to which you have both contributed or which is in both names?
• are you each committed to a shared life?
• are you raising children or providing care for children together, or have you done so in the past?
• do you each do your own housework or do you share it or carry out household tasks for each other?
• the reputation and public aspects of your relationship - for example, do your friends think of you as a couple? do you socialise together or separately?

Another factor is whether you have made a domestic partnership agreement under the Domestic Partners Property Act (see below). That will tend to suggest that you are domestic partners.
None of these factors on its own is decisive and it does not matter if they are not all present. The more of them apply, however, the easier it will be for the court to conclude that you are genuinely living together as a couple.
In many cases it will be obvious that the two people are a couple and no court order will be needed, but there are a few situations where a court order is legally required.


• Enduring Power of Attorney, Enduring Power of Guardian & Wills

The new law does not prevent partners from making other arrangements giving each other legal powers and it could still be useful to do so.
For example, an enduring power of attorney can be used to give your partner authority to handle your money and property in case you become incapacitated. That does not happen automatically just because you are domestic partners.
Likewise, an enduring power of guardianship can enable your partner to make lifestyle decisions for you in that situation: your domestic partner is not your legal guardian unless formally appointed by you or by the authorities.
You can also use a medical power of attorney to appoint your partner to make medical treatment decisions for you when you cannot. The absence of such a power will not stop your partner from being able to make these decisions, but having the power can avoid any doubt or delay.
Likewise, it is sensible for every adult to have a current will that says how you want your property shared out on your death.


• When does the three years start?

The new law applies to existing couples as well as to people who start living together in the future. That means that the time you have already lived together before the law changed counts towards the three years. So, if you have already lived together as a couple for three years or more when the new law begins, then you are covered immediately. If you have been living together as a couple for two years when the new law starts, you will be covered by the new law after a further year, if you are still living together as a couple then.


• What does the new law do?

The new law gives legal rights and duties to domestic partners. These legal rights and duties can affect your property. For example:
• if one of you dies without having made a will, and you had continued to live together up till the date of your death, the other one will be able to inherit some or all of the estate and can apply to be appointed administrator.
• if one of you makes a will that cuts out the other, then upon that person's death, if you are still living together as domestic partners, the other person may be able to take court action for a share of the estate.
• if the relationship breaks down at any time after three years of living together, and you separate, either of you can ask for court orders allocating a share of the other person's property to you, based on your financial and non-financial contributions during the relationship. How much you might be entitled to is up to the court.
• if one of you is killed in a road accident caused by a negligent driver, or in a work accident, or by homicide, the other one may be entitled to claim compensation.

The new laws will treat you as a couple for some legal purposes, for example:
• if you transfer your shared home from one partner's name to the other or into both names, you will not pay stamp duty.
• if either one of you is appointed to a statutory board or council, then for the purposes of declaring conflicts of interests, you must declare not only your own interests but those of your partner.
• if either of you is elected to your local council or to Parliament, the financial interests of the other one will need to be disclosed on the register of interests.

The new laws will also treat you as your partner's next of kin in some situations, for example:
• if one of you needs medical treatment but cannot give consent because of incapacity, the other person will be able to give consent.
• if one of you becomes mentally incapacitated, the other one will be able to apply to be appointed that person's legal guardian or appointed to administer the person's property, or both, if you have not already provided for this as above.
• if one partner dies, the other one will be able to make decisions about organ donation, post-mortem examination and cremation of the body.
• What if a dispute arises about whether we are really domestic partners?

If there is a dispute, the court will decide whether the law applies to your situation. Either one of you, or someone else whose legal rights are affected, can ask the court to decide.
• Can we clarify matters using a legal agreement?
Yes. You can make a written agreement (called a 'domestic partnership agreement') about your living arrangements, including your property. For example, the agreement could say what is to happen to the property you each own if the relationship ends and you separate. The agreement is like a contract so it can be enforced in court. However, if the court thinks the agreement is unjust, it can override it. If both of you want to prevent the court from overriding your agreement, you can arrange to have it certified by a lawyer.
An agreement can be made at any time, including when you are about to start living together, and it is legal from the time it is made, but you will still have to live together for three years before you are legally recognised as domestic partners: the agreement on its own does not achieve that.


• What if I don't want these new laws to apply to my living arrangements?

You should seek legal advice as soon as possible. You can modify some of the results of the new law using legal steps such as a will, power of guardianship and domestic partnership agreement. However, you need legal advice about what you can achieve and what legal steps you need to take. Do not delay in seeking this advice.


• Legal advice is available from:
Legal Services Commission ph 1300 366 424
The Law Society's Advisory Service ph 8229 0222
Your local community legal centre See White Pages
A private legal practitioner See White Pages or use the Law
Society's referral service

New Tasmanian Children's Commissioner

Congratulations to Mr Paul Mason, who has been appointed Tasmania's new Commissioner for Children. Mr Mason commenced on 23 April 2007 for a term of three years.

Mr Mason has a background in family law as a solicitor and barrister with 27 years of experience across three states, including being a children's representative in over 200 mediation cases and acting as an independent children's lawyer in the Family Court. Mr Mason brings a strong commitment to achieiving optimal outcomes for children, through negotiation and mediation skills to his position as Tasmania's next Commissioner for Children.

National Families Week

Each year, tens of thousands of people and hundreds of organisations celebrate National Families Week - Australia's annual celebration of families.

National Families Week coincides with the United Nations International Day of Families on 15 May. This day is observed by the United Nations to mark the importance that the international community places on families as the most fundamental units of society, as well as to draw attention to the plight of families in many parts of the world.

Here's the list of community activities throughout Australia from Alice Springs to Wudinna.

Australian Institute of Family Studies violence report released

A couple of days ago I posted about the synopsis of the Australian Institute of Family Studies report into allegations of domestic violence in children's cases in the Family Court and the Federal Magistrates Court in 2003. the research suggests that even when allegations of domestic violence are made, they make little difference to when dads see their kids.

The report has now been released.

But wait there's more!

Adele Horin in the Sydney Morning Herald has highlighted the findings in the report between situational violence, which may be initiated by women and arise in a specific situation only, and the much more serious controlling violence, sometimes called intimate terrorism.

In a separate opinion piece, Adele Horin comments that before the changes to the Family Law Act last year, good dads were probably getting too little time with their children, but bad dads were getting too much, placing the children possibly at risk.

Saturday, 12 May 2007

Children who are sexual predators

A research paper by the National Child Protection Clearinghouse summarises recent research about children who sexually abuse and shows:
- they are overwhelmingly male
- they can be as young as 10
- those who have been sexually abused may go on to sexually abuse, but most victims remain female and do not sexually abuse
- there is a minority of those boys who have been sexually abused who may later sexually abuse
-most children who sexually abuse do not go on to do it as adults
-sibling abuse is more common than parental sexual abuse

Wednesday, 9 May 2007

Domestic violence allegations make little difference to court result: AIFS

From the Australian Institute of Family Studies:

Research report no.15 2007
Allegations of family violence and child abuse
in family law children's proceedings:
a pre-reform exploratory study
by Lawrie Moloney, Bruce Smyth, Ruth Weston, Nicholas Richardson, Lixia Qu and Matthew Gray


Australian Institute of Family Studies, 2007.
ISBN 978 0 642 39550 4. ISSN 1447-1469 (Print); 1477-1477 (Online).

(The complete report will be available here shortly and will also be announced on aifs-alert.

Synopsis
This research was commissioned by the Federal Attorney-General's Department to provide baseline information to assist in informing the Australian Government's Family Law Violence Strategy.

The study examines (a) the prevalence and nature of allegations of family violence and child abuse in family law children's proceedings filed in 2003 in selected registries; (b) the extent to which alleging parties provided evidence in support of their allegations, and to which allegations were denied, admitted or left unanswered by the other party; and (c) the extent to which court outcomes of post-separation parenting disputes appeared to be related to the presence or absence of allegations.

The study was based on a content analysis of two random samples of court files from the Melbourne, Dandenong and Adelaide registries of the Family Court of Australia (FCoA) and the Federal Magistrates Court (FMC): 240 files from the general population of cases in which parenting matters were in dispute (the general litigants sample), and 60 files from judicially determined matters in which parenting was in dispute (the judicial determination sample).

In summary, a total of 300 court files were analysed: 150 from the Family Court of Australia and 150 from the Federal Magistrates Court. It should not be assumed that this sample is representative of the divorcing population. In other words, the findings should not be generalised to this population.

Key findings
Allegations of family violence and child abuse
More than half the cases in the FCoA and FMC in both samples contained allegations of adult family violence and/or child abuse.
Where allegations of spousal violence were made, an average of 4 to 5 allegations per case were made in the general litigants sample, with an average of 5-7 allegations per case raised in matters requiring a judicial determination. Where allegations of parental child abuse were made in the general litigants sample, an average of 2 allegations per case were raised.
Across courts and samples, the tenor of allegations was most commonly classified by the research team as 'severe' (that is, suggesting significantly injurious or abusive circumstances).
Cases in the FCoA that progressed to a defended hearing were the most likely of all cases to contain allegations. They also tended to involve both parties making allegations (that is, they comprised mutual allegations). More than half (57%) of the cases judicially determined in the FCoA contained allegations of actual physical spousal abuse, and many allegations looked to be at the 'severe' end of the spectrum. Thus, allegations of violence appeared to be 'core business' in family law disputes that went on to litigate in the FCoA and such allegations of violence were largely of a serious nature.
The FMC cases that were examined also dealt with a substantial proportion of cases involving allegations at the severe end of the spectrum. Over 60% of cases in both FMC samples contained some form of allegation of adult family violence or child abuse. In fact, allegations of actual physical spousal abuse were more likely to be raised among the FMC cases (both samples) than in cases from the FCoA general litigants sample.
The most common forms of alleged spousal violence were physical abuse (actual or threatened), emotional/verbal abuse, and property damage.
In the general litigants and judicial determinants taken separately, allegations of spousal violence were most likely to be made by applicant mothers, followed by respondent mothers, then applicant fathers, with respondent fathers being the least likely to make such allegations. Where fathers made allegations, mothers were also likely to do so or to have done so.
Allegations of spousal violence were more common than allegations of child abuse, within each court, sample, gender and applicant/respondent status group. (Allegations of spousal violence were raised in 48-79% of all cases in each court and sample, whereas allegations of child abuse were raised in 19-50% of all cases.)
Allegations of child abuse were almost always accompanied by allegations of adult family violence.
Allegations of child abuse largely centred on physical abuse, especially in cases requiring a judicial determination by the FCoA.
Allegations that children saw or heard spousal violence were more common in cases requiring a judicial determination. Indeed, around two-thirds (68%) of the FCoA cases in this sample contained such allegations, while the equivalent figure for the FMC was 48%. Allegations that children saw or heard spousal violence occurred in roughly a quarter of the cases in the general litigants sample (25% FCoA and 29% FMC).
Evidentiary material and responses to allegations
Three layers of ambiguity are suggested by the data: (a) there is little evidentiary material to support allegations (especially in the general litigants sample); (b) there are fairly high rates of non-response to allegations of spousal violence - except for cases in the FCoA requiring a judicial determination; and (c) there are generally low levels of detail in the allegations and low levels of detail when responses are made.
A scarcity of supporting evidentiary material suggests that legal advice and legal decisionmaking may often be taking place in the context of widespread factual uncertainty.
Specifically, most alleging parties, especially fathers, did not provide any material in support of their allegations (although more than half the alleging mothers in the judicially determined cases provided some evidence). However, when fathers in the judicial determination sample did provide information about allegations of spousal violence, it appeared more likely to carry strong probative weight compared with the material provided by mothers in that sample.
Cases in the FCoA that required judicial determination were more likely than other cases to contain evidence of spousal violence that appeared to have some strong probative weight.
Mothers' allegations of child abuse by fathers were less likely to be accompanied by evidence than was the case for mothers' allegations of spousal violence. (Few fathers raised allegations of child abuse.)
Across the courts and samples examined, allegations were most commonly denied or left unanswered.
Denials were more likely to occur where the evidence appeared to be of a less probative weight than where the evidence was stronger or non-existent.
Allegations of child abuse against fathers were more likely to yield a response - usually a denial - than allegations of spousal violence.
When all the pieces of evidence were taken together, most individual allegations of spousal violence across the courts and samples received no corroborative evidence. This was less marked for allegations of spousal violence raised in the judicial determination sample than in the general litigants sample.
Nevertheless, at least half the case files contained information about some of the allegations. As might be expected, case files in the FCoA judicial determination sample seemed the most likely of all sub-samples to contain such information and to provide strong support for the allegations raised. Cases that seemed to contain the most severe allegations of spousal violence were especially likely to be accompanied by evidentiary material. Many of these cases required a judicial determination.
Mothers were more likely than fathers to provide or elicit relatively strong evidence for their allegations of spousal violence. More than half of the fathers in all groups provided or elicited no supporting evidence for their allegations.
Mothers in the general litigants sample were more likely to elicit evidence for their allegations of spousal violence than of child abuse. (There were too few fathers who raised allegations of child abuse to make a similar comparison.)
Parenting proposals and court outcomes
Allegations of spousal violence or parental child abuse accompanied by evidence of strong probative weight appeared to influence court orders. Without such evidence, allegations did not seem to be formally linked to outcomes.
Children typically lived with their mothers both prior to and following the granting of parenting orders. Put simply, the status quo usually remained. Where change occurred, it was most likely to involve a move to live with the mother, followed by living with both parents on a shared care basis.
While it was unusual for contact to be denied, allegations of spousal violence appeared to increase the chance of orders for daytime-only contact or no contact. The apparent severity of allegations and the probative weight of supporting evidence did appear to increase the likelihood that contact was restricted to daytime only. Nonetheless, orders for overnight stays predominated among cases involving contact orders, whether or not allegations were made and regardless of the apparent severity or probative weight of that evidence.
Cautionary note
No single study should ever be used to guide policy or practice - especially where the issues are tremendously complex, as is the case in the study of allegations of adult family violence and child abuse in family law proceedings. To this end, several important limitations should be noted in relation to the above findings.

First, the sizes of the samples were modest - particularly the judicial determination subsamples - which increases the possibility of error in our estimates. Moreover, since data from registries in only two states were sampled, it cannot be automatically assumed that the findings can be generalised as applying to other registries in Australia.
Second, no information was sought from state- or territory-based child protection agencies or the police. This means that the scope of the study is far from comprehensive.
Third, the findings are based entirely on the information documented in the court file. The study focused on the prevalence of allegations in selected registries, and not the prevalence of violence per se. The study cannot tell us what motivates an individual to make or not make an allegation, to admit or not admit to an act of violence or abuse, or to make or not make a denial.
Fourth, some allegations may therefore be an underestimate of the real situation, some may be an overestimate and some may be untrue. In essence, in focusing on allegations recorded in court documents, the design of the study was such that it was not possible to assess their veracity, especially the extent to which any allegations had been fully or partially fabricated (that is, were fully or partially 'false').
Fifth, it is important to note that when litigants are legally represented (as most were), allegations, denials and/or non-disclosures are inevitably filtered through the lens of the legal advice they receive and/or their legal representation. Legal advice and/or representation is based on a complex mix of experience and the understanding and interpretation of case law and legal practice. There is thus a sense in which the research could be seen as an examination by proxy of legal responses to clients' concerns about violence and abuse. But the study is necessarily silent on how legal representatives address the many (and sometimes competing) issues their clients raise.

Sunday, 6 May 2007

8 Reasons to Have an Estate Plan

From Jenny McKinney & Patrick McKinney,
If you have assets, no matter what your age, marital status, or financial wealth, you should plan your estate in the event of your death or incapacitation. If you should die without a sound estate plan, someone will be exposed to additional grief and expense. If you become incapacitated, your bills might not get paid. You could also be put on life support which is OK unless you have strong feelings about your life being prolonged artificially if you have no chance for recovery. A little preparation and maintenance could make this difficult time less taxing for those you love and who love you.

There are many reasons to have a sound estate plan but here are eight I feel are most important. If you should die or become incapacitated, a sound estate plan could:


1. save your family thousands of dollars
2.
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distribute your assets to those of your choosing, not of the government's choosing
3. designate who will raise your minor children
4. make sure someone is authorized to pay your bills
5. avoid conflicts among your family members
6. make sure your assets aren’t divided among your children’s ex-spouses
7. keep your children from frivolously spending the inheritance
8. prevent death taxes.

Retirement planning includes estate planning. You don’t want to work hard all your life only to have your heirs lose a considerable amount of your estate to the government. You also don’t want to work hard all your life only to have your assets go to those you don’t want to include. Or, worse yet, you don’t want your estate tied up in court for several years.

Planning your estate takes some serious thought and consideration and should be updated with each life event. Life events are such things as:

getting a job

getting married

having a child

getting divorced

death of a spouse

remarriage

children’s divorce


Each of these events can have an impact on how your estate will be handled in the event of your death. It’s up to you whether or not you want your hard earned property and money to go to those of your choice.

Source: about.com

May is prevent DV month in Queensland

Men who use violence or abuse in domestic and family situations are being encouraged to stop their unacceptable behaviour and seek help.

That is the message for the Queensland Government's 2007 Domestic and Family Violence Prevention Month, which was officially launched by Communities Minister Warren Pitt.

Mr Pitt said Domestic and Family Violence Prevention Month was not just an issue for women, it was an issue for men and an issue for everyone in the community.

"The month of May is the perfect time for all Queenslanders to band together and take a stand against domestic and family violence," he said.

"The message of the 2007 Domestic and Family Violence Prevention Campaign is: Domestic and family violence. See the signs. Be the solution.

"While we know that men can also be victims, it is estimated that 98 per cent of perpetrators are men, so I urge all men who use abuse or violence to stop their unacceptable behaviour and seek help."

Domestic and Family Violence Prevention Month also targets people who do not believe that domestic and family violence is an issue.

"Sadly, attitudes like that effectively condone violent behaviour from others," he said.

"Silence is dangerous, so I urge everyone to look out for the signs of domestic and family violence, speak out against it, and be part of the solution."

Across the state, Credit Union Australia (CUA) is supporting the month-long campaign by selling $2 key ring tape measures in its Queensland branches, with proceeds donated to the government-funded helpline for those affected by domestic and family violence.

Committee underway as to Child Support changes

A Parliamentary inquiry is now underway into proposed changes to child support legislation. The changes are largely to reflect the changes recommended by Patrick Parkinson in his report reviewing the child support scheme.

Inquiry into Families, Community Services and Indigenous Affairs Legislation Amendment (Child Support Reform Consolidation and Other Measures) Bill 2007

Finding a better way- the Family Court changes direction with children

The Family Court has long been criticised for delays and undue formality, with mums and dads often critical that they have not been listened to in matters concerning their children.

The Court has met this criticism head-on, by taking a less formal approach in children's proceedings. Rather than the usual adversarial approach with opposite numbers of snapping lawyers, the less adversarial approach is designed to have the parties talk to the judge direct without the filter of their lawyers, so the judge knows exactly what the matter is about, and the parties feel that they have been heard.

The Family Court considers that the approach has been a roaring success, with its report recently released.