Monday, 30 July 2007

US Court rules on relevance of domestic violence

Wilkins v. Ferguson, Nos. 05-FM-1555 and 05-FM-1556
(D.C. Court of Appeals, decided July 19, 2007)
Holding: DC Court of Appeals reversed the order of the trial court allowing the
appellant’s former husband to have unsupervised visits with their biological
daughter, despite the court’s prior findings that he had committed an intra-family
offense against his former wife and child, and even though no health
professionals recommended unsupervised visits.
Summary: Mr. Ferguson and Ms. Wilkins divorced and the court ordered joint
legal custody, primary placement with the mother, and reasonable rights of
visitation for the father. After the divorce was filed, but before it was final, there
were allegations made by the child that Mr. Ferguson had touched her
inappropriately. There was an investigation while a 12 month protective order
was in place, and then the court found that Mr. Ferguson had touched the child
inappropriately. His supervised visitation was suspended for the duration of the
protective order, and continued after the findings. The court then heard from four
experts, none of whom recommended that it would be in the best interests of the
child to have unsupervised visits with her father. The trial court held that there
was insufficient evidence to conclude that Mr. Ferguson had engaged in
inappropriate touching of his daughter, and ordered for Mr. Ferguson to have
unsupervised visitation with his daughter without any overnight stays.
The Court of Appeals reversed the decision because the record did not support
the factual findings reached by the trial court. The opinion emphasizes several
points in coming to its conclusion. First, the court states outright that “a history of
domestic violence abuse will always be relevant to every custody and visitation
proceeding in which the abuser is involved.” The court makes it clear that the
legislature’s intent in D.C. Code § 16-914(a)(3)(F) is to command that the burden
be on the abuser to demonstrate the child’s safety in visitation, and even when
read in conjunction with the intent behind D.C. Code § 16-914(f)(1) and (2), the
burden is not meant to be shifted to the custodial parent to demonstrate
otherwise. Second, the court affirmed a DC Council finding that “a parent’s
commission of an intra-family offense could impact the custody decision and
result in a limitation on parental visitation rights…and [that] intra-family offenses
result in both emotional and physical harm to children.” Third, the court stressed
that a trial court may not ignore the uncontradicted opinions of expert witnesses
without basis. Additionally, the Court of Appeals expresses concern with the trial
court’s focus on whether the child’s allegations were true and reasons why the
child might fabricate them. Citing several child sexual abuse cases as well as
testimony from an expert on the psychological literature pertaining to child sexual
abuse, the court held that the trial court’s order for unsupervised visitation lacked
“a firm factual foundation.”


Comment: This case is interesting to contrast with the situation in Australia. As long ago as 1988, the High Court held in M and M, and B and B that the court was not bound to find whether an offence had been committed of child sexual abuse, nor even that it had occurred on the balance of probabilities, but that there was an unacceptable risk of the child sexual abuse having occurred. If Wilkins v Ferguson were decided in Australia, then on the unacceptable risk test, if no more, the time between father and child would have been supervised.

The case also illustrates an old fallacy: If there is a danger to a child in being molested, what difference does it make if time with the father occurs just during the daylight hours or overnight as well? It is clear that the trial judge viewed that daytime only was inherently safer. How does this concur with objective evidence? It is an all too common fact that some perpetrators molest their victims during daylight hours.
Source: American Bar Association

Allegations of family violence and child abuse in child-related disputes in family law proceedings

Allegations of family violence and child abuse in child-related disputes in family law proceedings
Moloney, L, Smyth, B, Weston, R, Richardson, N, Qu, L, & Gray, M 2007, Australian Institute of Family Studies, Melbourne
The recent release of the Australian Institute of Family Studies report on Allegations of family violence and child abuse in child-related disputes in family law proceedings has generated significant discussion in the domestic and family violence sector. This Features section of the Newsletter presents three reflections on the report: one comprising a summary from some of the report’s authors, one from Professor Dale Bagshaw from the University of South Australia and one from the Clearinghouse. We hope these comments will stimulate further discussion about this important report and its findings.
A brief summary of the AIFS “Research Report No 15”
Lawrie Moloney (AIFS/La Trobe University), Bruce Smyth (ANU/formerly AIFS) and Ruth Weston (AIFS)
The Family Law Amendment (Shared Parental Responsibility) Act 2006 raises many important issues regarding the assessment and handling of family violence. It focuses on the twin objectives of the right of each child to grow up with love and support from both parents but also to be kept safe from harm. Understandably, at times there is a clear tension in achieving both these objectives.
Most reported research into the impact of differential parenting arrangements after separation and divorce and the links between allegations of violence and both negotiated and judicially determined outcomes has been based on small and/or non-probability samples that describe few if any reliability or validation checks. Most often, descriptions of the way the data have been gathered and the manner in which they have been analysed have been, at best, opaque.
In 2006, the federal Attorney-General’s Department commissioned AIFS to obtain reliable information on the rate of allegations of violence and child abuse in cases in which formal child-related applications were being made to the Family Court of Australia or the Federal Magistrates Court. In particular, it was important to obtain this information with respect to a sample of cases that preceded the 2006 family law reforms, to enable the impact of the reforms to be assessed.
Through examining a random sample of 300 Family Court and Federal Magistrates Court files in Victoria and South Australia in 2003, the study sought to answer:
• How often were allegations of family violence and child abuse raised, and what were the main types of allegations?
• How commonly were allegations denied, and what forms did those denials take? (e.g., full/partial? vague/detailed?)
• How, and how often, were the allegations or refutations corroborated?
• What findings (if any) were made with respect to the allegations? and
• What outcomes resulted from the allegations and how (if at all) were they linked to the findings?
Key findings from the study were as follows:
• allegations of violence and/or child abuse were made in the majority of cases
• the majority of the allegations were of a serious nature
• most allegations:
– had little evidentiary material in support
– were coupled with high rates of non-response
• both the allegations and responses (when responses were provided) generally had low levels of detail and
• it was unusual for contact between a child and a parent to be denied. Thus:
– overnight parenting arrangements were common regardless of allegations
– however, if evidence was supplied, there was a smaller likelihood of overnight parenting arrangements with the alleged perpetrator being ordered – suggesting that courts are responding to allegations when evidence is provided.
These findings suggest that decision-making within the sample registries was occurring at this time in the context of considerable factual uncertainty regarding violence. During the period examined (2003), the courts, court staff and legal representatives in the registries surveyed may at times have been overwhelmed not only by the sheer number of allegations but also the difficulty in discriminating between which allegations posed a serious threat to a parent or to a child. Unless allegations were quite specific in nature or accompanied by good corroborative evidence (or both), the outcomes for children and parents were indistinguishable from outcomes in cases in which no allegations had been made.
The Report points to a need for those at key triage points in the formal family law system, especially
• staff from Family Relationship Centres and linked community-based services
• legal representatives and
• court-based Family Consultants to continue to develop better assessment skills that can elicit greater detail concerning allegations and, where possible, more corroborative evidence.
The Report suggests further research in a number of important areas. For example, Australian research into:
• those aspects of the experience of abuse that might improve understanding of the dynamics of non-disclosure or partial disclosure within the family law system and
• the sorts of advice lawyers give to their clients on raising and responding to allegations (or not raising or not responding to them).
A number of limitations and caveats are clearly spelled out in the Full Report. The Report is a good example of the way in which findings of a study are only the beginning of new lines of inquiry and the start of potentially new ways to look at long-standing thorny problems. Our hope is that the findings act as a catalyst for stimulating informed discussion and debate on these important issues.


A response to the AIFS report
Dale Bagshaw
Hawke Research Institute,
University of South Australia


Providing a name or a legitimate way of categorising and speaking about one’s experiences is the first step in making the prevalence of harmful forms of violence visible in the family law context (Du Bois 1983; Kelly 1990). The definitions of family or domestic violence provided by the Commonwealth’s Office for Women, the Australian Family Law Act 1975 and most feminist theorists include the key features of ‘fear’ and ‘power’, or ‘intimidation’ or ‘control’.
Over the past three decades, research into family or domestic violence between adults has identified a predominance of male violence against women, which is also reflected in a range of statistics (Australian Bureau of Statistics 2006; Mouzos & Houliaras 2006). However, in the case of disputes over children in the family law context, there is still a conceptual tendency for professionals, including judges, to redirect responsibility for male violence to the mothers involved, and in addition, their allegations of family violence are often not believed (Shea Hart 2006).
Not surprisingly, Moloney et al. (2007) have noted in their study that where allegations of spousal violence were made (48-79% of all cases) the tenor of the allegations was ‘severe’ and the allegations were most likely to be made by mothers. 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 of spousal violence. In addition, in 68% of those cases there were allegations that the children ‘saw or heard’ the violence and orders for children’s overnight stays with their fathers ‘predominated among cases involving contact orders, whether or not allegations were made and regardless of the apparent severity or probative weight of the evidence’. ‘Allegations of child abuse were almost always accompanied by allegations of adult family violence’. It is therefore essential that family law professionals have a clear and common understanding of what constitutes family or domestic violence, and have research-based knowledge of the effects of violence on the children involved when making decisions about children’s ‘best interests’ (Bagshaw & Quinn 2007).
The rates of domestic violence in separated families are significant when compared to intact families (Jaffe, Lemon, & Poisson 2003; Smyth 2004). Many couples separate or divorce because of domestic violence and the risk of children being exposed to domestic violence, including homicide, increases dramatically at the time of separation (Bagshaw & Chung 2001; Laing 2000). Given the difficulties and barriers to reporting violence in the family law context, especially with the 2006 family law reforms that require victims of violence to provide evidence for their allegations if they are to avoid sanctions, I am concerned about the suggestion made by Moloney et al. (2007) that there may be a need to differentiate between different types of ‘family violence’ in the Family Court of Australia.
Conflict or violence between couples who have a roughly equal balance of power, and who are not fearful of each other, have not been traditionally included under definitions of family or domestic violence; the motives, dynamics and effects of the violent or conflict behaviour are very different. Whilst a distinction can be made between high level couple conflict and what is commonly understood as family or domestic violence, there are dangers in re-labelling some forms of violence in intimate relationships as ‘situational violence’, with the implication that the violence is relatively mild and that there is roughly equal balance of power. Some of these dangers have been outlined previously (Bagshaw & Chung 2000) and include the following:
• it is already difficult for women to have their allegations of violence believed or taken seriously in the family law context
• there is a risk that serious ‘family violence’ will be renamed as something else, such as ‘family conflict’
• violent behaviour may be relabelled as something else, such as ‘stress’, ‘depression’ or ‘a mental health problem’
• research indicates that women and men both tend to play down or minimise men’s violence in their accounts, while men tend to exaggerate women’s violent acts
• women rarely initiate or escalate violence and are more likely to act in self-defence
• men’s violence is more severe and usually involves an attempt to control, coerce, humiliate or dominate, by generating fear and intimidation, whereas women’s violence is more often an expression of frustration in response to their dependence or stress and
• women are more likely to be killed by current or former male partners, in particular during the process of separation, than anyone else.
Shea Hart’s (2006) recent research in one Family Court registry, involving a discourse analysis of twenty judge-ments made in cases where children had witnessed domestic violence, found that the violence was referred to in limited ways that relied on recording objective facts and incidences, implying a failure to understand the dynamics of domestic violence. Violent behaviour was often relabelled as ‘conflict’, minimising its seriousness. Also, domestic or family violence and child abuse were commonly referred to as separate issues and there appeared to be a poor understanding of the findings of contemporary research, which show high rates of co-occurrence of domestic violence and child abuse (Edleson 2002).
To challenge the power of entrenched beliefs about ‘alienating’ mothers and ‘loving’ ‘responsible’ fathers that tend to mask the issue of family violence and its potentially serious adverse effect on children’s wellbeing, it is essential to expand the knowledge base that informs judges and other ‘experts’ in the court setting and introduce continuing education in the area of domestic violence and its effects on children as a requirement for these professionals. However, if this is to occur we must be sure that definitions of domestic or family violence do not perpetuate the problem of its minimisation.
References
Australian Bureau of Statistics 2006, Personal Safety Survey, ABS, Canberra
Bagshaw, D & Chung, D 2000, ‘Gender Politics in Research: Male and Female Violence in Intimate Relationships’, Women Against Violence, vol. 8, pp. 4-23
Bagshaw, D & Chung, D 2001, ‘The Needs of Children who Witness Domestic Violence: A South Australian Study’, Children Australia, vol.26, no. 3, pp. 9-17
Bagshaw, D & Quinn, K 2007, ‘Reshaping Responses to Children when Parents are Separating. Hearing Children’s Voices in the Transition’, Australian Social Work, vol. 60,(September edition - in press)
Du Bois, B 1983, ‘Passionate scholarship: Notes on values, knowing and method in feminist social science’, in G Bowles & R Duelli Klein (Eds), Theories of women’s studies, Routledge & Kegan Paul, London
Edleson, J. 2002, ‘Studying the Co-Occurrence of Child Maltreatment and Domestic Violence in Families’ in S Graham-Bermann & J Edleson (Eds), Domestic Violence in the Lives of Children. The Future of Research, Intervention, and Social Policy, American Psychological Association, Washington DC
Jaffe, P, Lemon, N, & Poisson, S 2003, Child Custody & Domestic Violence. A Call for Safety and Accountability, Sage Publications, Thousand Oaks, California
Kelly, L 1990, ‘How Women Define Their Experiences of Violence’, in K Yllo & M Bograd (Eds), Feminist Perspectives on Wife Abuse, SAGE Publications, Newbury Park
Laing, L 2000, Children, young people and domestic violence, Australian Domestic and Family Violence Clearinghouse, Issues Paper 2, Sydney
Moloney, L, Smyth, B, Weston, R, Richardson, N, Qu, L, & Gray, M 2007, Allegations of family violence and child abuse in family law children’s proceedings: a pre-reform exploratory study Australian Institute of Family Studies, Melbourne
Mouzos, J & Houliaras, T 2006, Homicide in Australia : 2004-05 National Homicide Monitoring Program (NHMP) annual report, AIC Research and Public Policy Series, no 72
Shea Hart, A 2006, Children Exposed to Domestic Violence: Whose ‘Best Interests’ in the Family Court? Unpublished Doctoral thesis, School of Social Work and Social Policy, University of South Australia, Adelaide
Smyth, B 2004, Parent-Child Contact and Post-Separation Parenting Arrangements, Research Report no 9, Australian Institute of Family Studies



AD&FV Clearinghouse response to the AIFS report
Rochelle Braaf & Clare Sneddon


The AIFS report (Moloney et al. 2007) informs stakeholders about family law cases which feature allegations of abuse, particularly regarding the courts’ treatment of those cases and areas for improvement.
Significantly, the study found a high rate of cases alleging family violence or child abuse (more than half of those before the courts), with most cases alleging severe abuse. We support the report’s suggestion that dispute resolution service providers, family law practitioners and Family Court based consultants appropriately assess each case, as a threshold consideration, to determine whether violence is an issue. Judicial officers, judges and magistrates also require education about family violence and child abuse, to better assess allegations and make determinations that ensure the ongoing safety and wellbeing of victims. The study findings support initiatives like Project Magellan that deal specifically and expeditiously with cases involving child abuse. This should be extended to include spousal abuse.
Where violence was alleged, the report found that children often witnessed it. This supports other research (e.g. ABS 2006, Indermaur, Attkinson & Blagg 1998) that a significant percentage of children witness spousal violence. This phenomenon is recognised by researchers and in legislation as direct child abuse (e.g. Tomison 2000). The courts should recognise witnessing violence as decisive in determining contact and parenting arrangements.
The study found that many cases did not provide any supporting evidence or, at least, any strongly probative evidence to support allegations (between 71 and 92% of the total number of family violence or child abuse allegations provided no corroborative evidence, p. 116). If victims were unable to provide evidence of abuse, the courts largely ignored allegations when determining contact.
The report’s authors acknowledged that it can be extremely difficult for victims to provide evidence of violence, as it tends to occur in private, unwitnessed except by the victim(s) and abuser, and there may be no physical injuries. Providing evidence has become more important in the courts since recent reforms require a claimant to prove their ‘reasonable fear or apprehension about their wellbeing or safety’ and have introduced penalties for making false allegations of violence (Braaf & Sneddon 2007). This may discourage victims from disclosing violence in the courts. The findings imply that parties alleging violence must substantiate their claims, if they are to influence parenting arrangements. We would argue that courts also need to recognise the difficulties in obtaining evidence and seek other ways to investigate the history and context of abuse.
A significant concern is that allegations of spousal violence or parental child abuse did not tend to affect court orders, unless accompanied by evidence of strong probative weight. Although allegations of spousal violence did increase the chance of the courts granting day-time only orders or no-contact orders, it was unusual for contact to be denied completely. More disturbingly, orders for overnight stays predominated, whether or not allegations were made, and regardless of the severity of claims or the probative weight of supporting evidence. Other Australian research studies (e.g. Kaye, Stubbs & Tolmie 2003; Kaspiew 2005) demonstrate the exploitation of child contact and handover arrangements by violent fathers to continue the abuse of child and adult victims. Given that recent reforms stress equal parental responsibility, the courts need to review how violence allegations inform decisions, in ways that maximise children’s safety and well being.
The report’s support for Johnson (1995) and Johnson and Ferraro’s (2000) categorisation of different types of intimate partner violence is puzzling. This typology was not investigated by the study’s review of cases and was not supported by the report’s analyses. In fact, the study highlighted the significance of family violence and/or child abuse as an issue for family law cases before the courts, both in terms of the number of cases and in terms of the severity of abuse (most cases involved allegations of severe abuse).
The proposal that courts utilise a model that distinguishes between spousal violence as abusive, resistive or situational, is dangerous. The premise of Johnson and Ferraro’s model is contentious (see section 1.4.2.2). All violence and abuse in families is unacceptable and destructive to adult and child victims. Women are not necessarily equal in disputes, even when violence is mutual. The model introduces ambiguity and may serve to minimise the seriousness of abuse. The courts have traditionally failed to recognise the ongoing nature and dynamics of family violence and child abuse, tending instead to view violence as incident based. A better approach would be to scrutinise the history of violence in each relationship, examine the power, domination and control dynamics, assess the context and take into account the victim’s fears and perceptions (Nielsen 2004).
The study corroborates population studies, crime statistics and domestic violence research indicating that family violence and child abuse are gendered crimes (e.g. ABS 2006; Mouzos & Makkai 2004). It found that allegations of family violence and child abuse were most often made by applicant mothers. Men’s allegations were more likely to be raised where there were also allegations made by women. Women were also more likely than men to allege that children had witnessed spousal violence (p. 78). In more than half of judicially determined cases, allegations made by mothers included supporting evidence. Fathers were less likely to produce supporting evidence. Given these findings, it is disappointing that the authors did not seriously discuss the implications of gender for allegations of violence and the court process. The report has missed an opportunity to call for greater understanding by the courts of the gendered dynamics of family violence and child abuse.
Aside from some gaps in the report’s discussion of findings and our concerns with its advocacy of Johnson’s typology of intimate partner violence, the AIFS study provides considerable information to inform improvements in the courts’ treatment of cases with a history of violence. The Clearinghouse supports the report’s call for a national study of family court cases involving disputes over post-separation parenting.
References
Australian Bureau of Statistics 2006, Personal Safety Survey, Australia, cat no 4906.0 ABS, Canberra, (reissue)
Braaf, R & Sneddon, C 2007, Family Law Act reform: the potential for screening and risk assessment for family violence, Australian Domestic & Family Violence Clearinghouse Issues Paper 12
Indermaur, D, Atkinson, L & Blagg, H 1998, Working with adolescents to prevent domestic violence, National Crime Prevention, Canberra
Johnson M P 1995, ‘Patriarchal terrorism and common couple violence: two forms of violence against women’, Journal of Marriage and the Family, vol 57, no 2, pp 283 – 294
Johnson M P & Ferraro, K 2000, ‘Research on domestic violence in the 1990s: making distinctions’, Journal of Marriage and the Family, vol 62, pp 948-963
Kaspiew, R 2005, ‘Violence in contested children’s cases: an empirical exploration’, Australian Journal of Family Law, vol 19, pp 112-143
Kay, M, Stubbs, J & Tolmie, J 2003, Negotiating child residence and contact arrangements against a background of domestic violence, Families, Law and Social Policy Research Unit, Griffith University, Research Report 1
Maloney, L, Smyth, B, Weston, R, Richardson, N, Qu, L, & Gray, M 2007, Allegations of family violence and child abuse in family law proceedings; a pre-reform exploratory study, Australian Institute of Family Studies, Melbourne
Mouzos, J & Makkai, T 2004, Women’s experience of male violence: findings from the Australian component of the International Violence Against Women Survey (IVAWS) Research and Public Policy Series no 56, Australian Institute of Criminology, Canberra
Neilson, L C 2004, ‘Assessing mutual partner-abuse claims in child custody and access cases’ Family Court Review, vol 42, no 3, pp 411-438.
Tomison, A 2000, ‘Exploring family violence, Links between child maltreatment and domestic violence’, Issues in Child Abuse Prevention, Australian Institute of Family Studies, no 13, Winter


Source: Australian Domestic and Family Violence Clearinhouse Newsletter

Changes to secrecy in NZ Family Court

One of the consistent criticisms that is made of the Family Court and Federal Magistrates Courts is that by virtue of section 121 of the Family Law Act there is almost complete secrecy.

These limits were pressed earlier this year, when the Family Court lifted the secrecy veil to locate children who had been abducted by their father. The children were located, and then various media outlets interviewed the father, in apparent breach of the orders.

Subsequently, the children were removed again, and again the veil of secrecy was lifted, until they were located later that day and a man was charged with their removal.


By contrast, the situation in NZ has changed:


In 2005, limited access to the Family Court for news media
was made possible when the Care of Children Act 2004
came into force. A group of researchers with legal and media
expertise has tracked ways that Judges and the media have
subsequently responded to the new openness of the Family
Court. Their findings are presented in a recently released
report - The Family Court, Families and the Public Gaze.
The researchers found the media have been slow to make
use of the new freedom around reporting care of children
cases. Content analyses of media reports from July 2005
to June 2006 and interviews with Judges showed that there
was no increase in coverage of the Family Court after the
law changes. Less than 20 reporters attended Family Court
hearings in New Zealand during that period.
Editorial executives interviewed said that Family Court cases
were not often reported due to time and staff constraints,
lack of newsworthy or high-profile cases, restrictions on
reporting, and discomfort about reporting the matters being
dealt with by the court. Judges interviewed all supported
the new openness and were generally positive about media
attendance in their courts. There was however no clear
consensus from Judges on whether other cases in the Family
Court (for example, those under the Domestic Violence Act)
should be accessible to the media.
Also included in the report are an examination of the new
legal provisions within the context of relevant case law, and an
outline of the general regulatory regimes that are applicable to
the media.

Source: New Zealand Family Violence Clearinghouse Newsletter

Partners in Prevention – Victorian network to prevention violence against women

Partners in Prevention – Victorian network to prevention violence against women
Partners in Prevention is a new a Victorian statewide network for community sector professionals who are working with young people to prevent violence against women. VicHealth is funding the network, which will be based at the Domestic Violence and Incest Resource Centre.

Source: Domestic Violence and Incest Resource Centre, Australian Domestic and Family Violence Clearinghouse Newsletter

Australia’s first ‘one-stop-shop’ response to sexual assault victims

Australia’s first ‘one-stop-shop’ response to sexual assault victims
Victoria has established two specialised sexual assault centres in Frankston and Mildura. They represent a significant advancement in service delivery to sexual assault victims by providing centralised access to forensic medical practitioners, social workers, victims’ advocates, police investigators and interpreters in one location.
Other Victorian reforms to improve responses to sexual assault include the establishment of a team of forensic nurses, a Sexual Offences and Child Abuse Investigation Team within the Victoria Police, a dedicated team of prosecutors to manage sexual assault cases, specialist lists in the Magistrates and County Courts and additional counselling services.


Comment: This is an excellent move, in which the sum will be greater than the parts. Australia has not yet mirrored developments in the USA where there are some one stop shop responses to domestic violence, encompassing these types of professionals all working together.

Part of Source: Australian Domestic and Family Violence Clearinghouse Newsletter

Increased funding to reduce violence against women


Increased funding to reduce violence against women


The Howard Government has committed $1.97 million in 2007-08 towards projects aimed at reducing the incidence of domestic and family violence and sexual assault in the Australian community, through the Domestic and Family Violence and Sexual Assault Funding Initiative.

The Minister Assisting the Prime Minister for Women's Issues, the Hon Julie Bishop MP, announced funding to 17 organisations which will undertake a range of community based projects to address this serious issue.

“Funding is provided for projects that increase available information, provide new resources, and or demonstrate new approaches in relation to domestic and family violence and sexual assault,” Minister Bishop said.

“Funding of between $25,000 and $250,000 has been provided to projects which will develop new and effective responses to domestic and family violence and sexual assault.

“Many of the projects are directed towards addressing violence and/or sexual assault experienced by women and children from Indigenous communities, non-English speaking backgrounds, rural and remote areas and women with disability and their children,” Minister Bishop said.

The Howard Government is taking a lead role in the elimination of violence and sexual assault against women, with $75.7 million committed over four years from 2005 for the Women’s Safety Agenda.

A full list of the funded projects is attached.

**The projects will be undertaken from July 2007-08 and will be completed within 12 months.

Organisation Project Name
Women's Health Care Association Peer Support for Women in CALD Communities
Centre Against Sexual Assault Loddon Campaspe Region Inc. Bidja's Place
JewishCare Opening Closed Doors - Addressing Domestic and Family Violence in the Jewish Community
Women's Council for Domestic and Family Violence Services (WA) Inc. HURT
The Salvation Army Australian Southern Territory Social Work Strengthening Violence Intervention in South Australia
Migrant Information Centre (Eastern Melbourne) Culturally Appropriate Service Responses for the Prevention and Treatment of Family Violence in Southern Sudanese Families
The Salvation Army (Tasmania) Property Trust Safe from the Start
Redcliffe Neighbourhood Centre Association Inc. Strengths Inside Yourself: A Healthy Relationships Program
Inner South Community Health Service Inc. It All Starts At Home
North Australian Aboriginal Family Violence Legal Service Community Wellbeing, Family Safety and Caring for Children
Upper Hume Community Health Service Inc. I'm So Accident Prone (ISAP)
Centacare Diocese of Wilcannia- Forbes Finding Self
Albury Wodonga Women's Refuge Inc. Reach Out
Family Planning Victoria Inc. Sexual Assault service for people with an Intellectual Disability (SAID)
Macarthur Diversity Services Inc. Domestic Violence Project for CALD Women
Bethany Community Support Inc. Healing Families
Doncare: Doncaster Community Care and Counselling Centre Inc. Doncare Angels for Women's Network (DAWN Project)

Source: Minister's Press Release, Australian Domestic and Family Violence Clearinghouse Newsletter

Family Relationship Centre Locations

With the ever increasing number of Family relationship Centres, it's useful that the Government has released a list of their locations.

Just to recap, families and couples can access up to 3 hours free counselling from the centres. For those contemplating going to court about the children, it is necessary except in limited cases (such as demonstrating a reasonable ground to believe that there has been family violence) to obtain a certificate from a family dispute resolution practitioner. Staff at Family Relationships Centres are accredited as family dispute resolution practitioners.

Sunday, 29 July 2007

Olin Fellow Heather Mahar Examines Prenuptial Agreements


Olin Fellow Heather Mahar Examines Prenuptial Agreements


Why are there so few prenuptial agreements? A paper recently released by Heather Mahar, an Olin Fellow in Law and Economics at Harvard Law School, attempts to explain why only 5 percent of married couples have prenuptial agreements even though roughly 50 percent of marriages end in divorce. Mahar, a 2002 Harvard Law graduate, discusses her findings and her future research.

How did you decide to choose to do research on prenuptial agreements?

Although about half of all marriages end in divorce, amazingly few - around 5 percent - involve prenups. When I asked myself whether I would want to sign a prenup, I realized that I wouldn't because that would suggest to my fiancé that I was thinking about divorce even before we got married. I decided to conduct a survey to figure out why other people weren't using prenups.

Why aren't more couples entering into prenuptial agreements?

There are two main reasons that people do not ask their partner to sign a prenuptial agreement.

First, as I just said, most people think that talking about a prenup sends a bad signal to their marriage partner. Actually, according to gossip columns, Ben Affleck broke off his engagement to Jennifer Lopez when she asked him to sign a prenup!

Second, most people seem to think that divorce can't happen to them, even though they realize that over 50 percent of marriages end in divorce. Just like most people think they are better than the average driver, they believe that their marriage will be happier and more stable than the average marriage.

You write that the courts have ruled that prenups are not necessarily contrary to the public policy of promoting the stability of marriage, do you agree?

Yes. Among other things, prenups can make marriages harder to get out of, not easier. A prenup could say that divorce is not allowed unless somebody has committed a fault, like adultery. In contrast, most states allow no fault divorce.

So prenups that deal with more than just division of assets and include provisions that specify on what grounds a divorce can be granted have been upheld by the courts?

To my knowledge, this type of prenup has never been tested in court. However, in the past all states required spouses to show "fault" before allowing a divorce. Also, several states still allow couples to opt into a "covenant marriage" which requires one spouse to show "fault" before filing for divorce. So it doesn't seem like too much of a leap to think that courts would allow couples to limit the grounds for divorce in a prenup.

Were the children of divorce in your survey more likely to enter into prenups in their marriages?

Surprisingly, no they aren't. As I said, the two main reasons people don't sign prenups are avoiding sending bad signals and false optimism that their marriage will last.

I also found that three other factors have some importance: 1) the more wealth people have, the more likely they are to ask for a prenup; 2) people who are married are less likely to ask for a prenup and 3) females are less likely to ask for a prenup.

Your next paper will suggest making prenuptial agreements mandatory?

Yes. I begin by exploring why prenups are important. Then, based on the survey discussed above, I suggest that mandatory prenups could help more couples realize these benefits. First, the bad signal a spouse might send by starting the discussion will be eliminated because every couple will be required to have the conversation, even if they are not thinking about divorce. Second, this regime could reduce the effects of false optimism since people will be required to sign prenups even if they think they will never need one. If prenuptial agreements were required today, maybe Ben and J-Lo would still be together!


WARNING: Australian law requires only an irretrievable breakdown of the marriage for divorce, which requires the parties to be separated for 12 months.

SOURCE: HARVARD LAW SCHOOL

Saturday, 21 July 2007

Increase in violence to doctors and nurses: MJA

There are some who argue that there has been a rise in domestic violence, in part due to a decline in standards within society generally, and others who argue that any rise is statistical: that there is an underlying rate and that all that has changed has been the reporting rate.

By comparison, doctors and nurses are certianly complaining about the rise of violence towards them, with a recent Medical Journal of Australia article stating that there has been an upsurge of violence by patients towards doctors and nurses, culminating with the murder of Dr Maroof-Hassan last year.

The article suggests a number of changes, including:

-Doctors need training to recognise and manage patients at risk of becoming perpetrators or victims of violent behaviour, both to protect themselves and to reduce violence in the wider community.

-A national taskforce on violence in medical practice should be established to monitor, evaluate, prevent, and reduce medical workplace violence.

-A national summit of all medical groups should be held to examine the increasing violence in Australian society as a public health issue.

Tuesday, 17 July 2007

Exclusive Brethren mother not jailed

The Full Court of the Family Court has removed the threat of jail from an Exclusive Brethren mother who repeatedly flouted orders to give the father access to three of her children,
The Age has reported.

Launch for White Ribbon Day 2007


From Andrew O'Keefe, Chairman

Welcome to the White Ribbon Campaign for 2007. Already, this year's campaign is shaping up to be massive, but I'll fill you in on all the progress in the months ahead. For now, I want to draw your attention to the following exciting ways in which you can support the work of White Ribbon Day even before November 25.

Kokoda NRL Trek
White Tie Dinner 2007
Be a part of our campaign development
1. Kokoda NRL Trek

Adventurers! Have you ever thought about trekking Kokoda? Because we're offering you the chance to make one of the world's great journeys AND support White Ribbon Day as you do it. The White Ribbon Kokoda Treks will train you, equip you, take you to Papua New Guinea and guide you along one of the most historic and demanding trails in the world. And you get to trek with some of the big names of the National Rugby League!

Organised through our partners at Australia's CEO Challenge and Executive Excellence, there will be 2 treks from October 2 to 11:

Trek one:

. Andrew O'Keefe, Channel 7 personality and White Ribbon Day chairman

. Paul Aiton, Penrith Panthers and Papua New Guinea player

. Nathan Hindmarsh, Parramatta Eels player (subject to international selection)

Trek two:

. Mark Riddell, Parramatta Eels player

. Daniel Wagon, Parramatta Eels player


Proceeds from all the treks will raise essential funds for White Ribbon Day Australia. So not only will you retrace the footsteps of some of Australia's most tenacious diggers, but you'll also be doing your bit to end violence against women, while getting fit and experiencing one of the most rugged and beautiful landscapes in the world.

And for companies, treks are an ideal opportunity for companies to trek Kokoda with key clients, allowing them to enhance and reward relationships. The White Ribbon Kokoda Trek is also a perfect way to reward high-achieving employees, or to send employee teams as a development and motivational exercise.

If you love history, travel or just pushing the boundaries of endurance, don't miss out on this amazing experience.

And of course, if you're a White Ribbon Ambassador who would like to trek and to help publicise and promote the trek, you'll be offered a massive discount on the cost of your trek.

For more information about the trek please follow the link at www.ceochallengeaustralia.orgor call the CEO Challenge Office on (07) 3119 6347. For photos and information about Kokoda trekking visit the Executive Excellence website www.executiveexcellence.com.au


2. White Tie Dinner - Chaser confirmed!

On August 2, the second annual White Tie Dinner will be held at the Sheraton on the Park, Sydney.

Last year, we saw Kevin Rudd and Richard Glover take on Joe Hockey and Peter Fitzsimons on the topic "That men are what their mothers made them". This year, the team from ABC's hit satire The Chaser will go head to head with our political heavyweights in a one-bout-only battle of the brains. You've seen what they can do to pollies on the box, now see it live!

The White Tie Dinner is our major fundraiser for the year, and a superb night of entertainment. To book your table, please call Corinne at DKC International Events on 02 8218-2911 or email Corinne@dkcinternational.com.au

Corporate packages are available and will be tailored to your company's requirements.


3. Get in on the development of this year's ad

Every year, Saatchi & Saatchi develop compelling, controversial and award-winning media campaigns for White Ribbon Day. Remember the baseball bad TV ads? Or the "I'd do anything for my daughter" radio commercials? They were White Ribbon media (and can be viewed at our website). And this year promises to see another thought-provoking campaign.

If you are a White Ribbon Ambassador and would like to be part of a focus group to test this year's messages, please contact us: joh.sullivan@whiteribbonday.org.au

So, Trek the Track, book your White Tie tickets and have a say on the campaign! Thanks everyone, and until next time, go well.

Andrew O'Keefe
Chairman, White Ribbon Campaign National Leadership Group

News from Australia's CEO Challenge

Well what a busy couple of month’s it has been! In between the start of the RACE and Domestic and Family Violence Prevention Month during May, we were pleased to receive an unexpected visit from Jim Hardeman.
Jim is the founder of Workplace Violence Interventions and Strategies, Massachusetts, USA. Jim spoke at a Breakfast hosted by the Brisbane City Council, on the issues surrounding family violence and workplace violence prevention and safety. If you would like to listen to Jim’s brilliant speech please go to our website: www.ceochallengeaustralia.org
As promised in our April news, all members and supporters were sent a new membership form for 2007/2008. A big thanks for returning these forms and for those who also made a tax deductible donation. Your support is important and greatly appreciated! Our other fabulous news is the recent confirmation from the Queensland Government who will contribute $95,000 to assist in the coordination of White Ribbon Day for 2007 and 2008.

Until next time! Dianne Jeans Chair, Australia’s CEO Challenge

A Message from the Chair

Jim Hardeman is the founder of Workplace Violence Interventions and Strategies, a Massachusetts based consulting firm, which specialises in awareness, education and advanced training in workplace violence prevention. By training large and small businesses and human service agencies to develop model practices, Workplace Violence Interventions and Strategies encourages trained participants to return to their places of employment and train key personnel on workplace violence prevention. Prior to founding Workplace Violence Interventions and Strategies, Jim worked for 15 years as manager of Polaroid Corporation’s Employee Assistance Program.

Jim Hardeman was the principal designer of Polaroid’s workplace violence procedures, protocols and guidelines. His knowledge and skills in the field of family violence and workplace violence prevention have made Polaroid Corporation internationally known for its workplace safety practices. He also has a wealth of experience in the field of sexual harassment, substance abuse, training and stress reduction. Jim Hardeman served as deputy superintendent of a medium security prison facility and superintendent of a pre-release correctional facility for youthful offenders.

He was also appointed to the position of deputy director of Planning for Social Services at the Executive Office of Human Services, State House, Boston, Massachusetts. As deputy director, Jim monitored the state human service agency’s service delivery and agency operations. He has also been employed for more than 12 years at the psychological counselling centre at Brandeis University. Jim has experience in community mental health and has taught social work courses at both the under-graduate and graduate level. He is currently on the staff of Boston College Graduate School of Social Work and has taught at the school for the past 10 years. Jim is a frequent lecturer and speaker on family violence and sexual assault. He is also a survivor of child abuse and founder of a battered women’s shelter and a batterer’s treatment program. Mr Hardeman is a member of the Massachusetts Governor’s Commission on Domestic Violence and on the Massachusetts based Crime and Justice Foundation. He has received numerous awards and achievements throughout his career, including the Greatest Contribution to Social Work from the National Association of Social Work, Massachusetts Chapter, invitation to the Oprah Winfrey Show, The Justice File, NBC evening news, personal meeting with President Clinton and 60 Minutes.


Source- Australia's CEO Challenge- links are in the links column on the right of the blog

US: Custody fight over vegan diet

US ABC News has reported the unusual case in which the father of 10 year old quintuplets has criticised the mother for imposing a vegan diet on the children, a diet he alleges is "so strict, in fact, that she rarely allows the children to visit their paternal grandparents because they have leather furniture in their home" and might let the children eat animal-based foods.

ABC News article

FMC Practice Direction

The Federal Magistrates Court has issued practice direction No 2 of 2007:

Applicants wishing to apply for an order under Part VII of the Family Law Act 1975, will be required to provide a certificate from a registered family dispute resolution practitioner, unless there is an exception to this requirement under section 60I(5) or (9).

Practice Direction No 2 of 2007 'Family Dispute Resolution - applications for orders under Part VII Family Law Act 1975' outlines the procedural requirements for applications who seek to file an application for an order under Part VII of the Family Law Act 1975 in the Federal Magistrates Court of Australia.

This Practice Direction takes effect from 1 July 2007.

Practice Direction No 2 of 2007, 22 June 2007, issued by the Chief Federal Magistrate.

Please note: If the requirements set out in the Practice Direction are not met, the Court may not be able to deal with the application, may take the failure to meet the requirements into account in deciding costs and/or you may be ordered to attend family dispute resolution.

Sunday, 15 July 2007

How NOT to use Powerpoint

Funny, yet so, so true......

International Child Visitation: Ten Key Tips for Parents

I have set out below this excellent article, written for Americans, but in most ways applicable to Australia. One condition that may work is that of imposing monetary bonds. A party who is required to return the child by a certain date, for example, 1st August, and if she or he does not do so forfeits say $300,000, which can then be used by the other parent to litigate around the world, is much more likely to want to return the child (and therefore more likely to return the child).

Of course the starting point is to prevent the child from leaving Australia. Remember:

- time is of the essence.
- have control over the child's passport, preferably having possession of it
- if necessary fill out a travel document stop request form at any post office, to prevent any Australian passport being issued. Remember that your child might be entitled to 2 or 3 citizenships. You may need to make efforts with each country concerned to find out if a passport has issued and when, or whether they will not issue one and in what circumstances.
- take all necessary steps to have your child placed on the watchlist. This is often an effective way of preventing your child getting past the airport. The Australian Federal Police however require either specific court action to be taken or specific orders before they will list a child on the watchlist.


International Child Visitation: Ten Key Tips for Parents
July 2007
By Jeremy D. Morley
Originally published in The Matrimonial Strategist



--------------------------------------------------------------------------------

How can one parent stop the other parent from taking a child to visit a dangerous country? How can a parent make sure that a child will be returned if the other parent takes the child to visit his or her native country? Many international parents are becoming increasingly concerned about the answers to these questions.

Here are Ten Key Tips for Parents that have been developed as a result of handling these issues on a regular basis in collaboration with local family lawyers across the country.

1. Collect hard evidence of the dangers that the proposed visitation presents.

Any parent who opposes overseas visitation, especially to a parent’s country of origin or current domicile, has a heavy burden of proof. Do not underestimate what you need to do to prove your case. You must go to court with very strong evidence already lined up. You have to be fully prepared to show that there is a very real risk — not simply a suspicion or a fear — that your child will not be returned.

2. Collect evidence to show the court that there is a real likelihood that the other parent will not return the child.

So-called “red flags” include the other parent having:

Previously abducted or threatened to abduct the child.
Taken steps to move toward living in the other country.
Citizenship in the other country and strong emotional or cultural ties to it.
Friends or family living in the other country.
No strong ties to the child’s home state.
Financial ties to the other country.
No financial reason to return the child.
A criminal record.
Jealousy or hatred toward the other parent.
A history of instability.
3. Demonstrate respect for the rights of the other parent.

While the language of state laws varies — some referring only to the best interests of the child with others including a presumption of joint parenting — American courts invariably encourage and impose shared parenting in one form or another. A parent who inappropriately hinders or obstructs the other parent’s involvement in the child’s life will not be viewed favorably.

4. Do not rely on a country’s poor reputation for corruption or danger.

Do not take it for granted that a court will know that a particular country has an ineffective legal system or that the country is a dangerous place for Westerners. You must present evidence to the court — whether through witnesses or through documents — that will allow the court to make a reasoned conclusion based on real and convincing evidence that the requested visitation should be denied.

5. Be calm, not hysterical.

You may be panic-stricken at the thought of your precious one being taken to another country, but you should not come across as over-the-top. You should be prepared to explain calmly to the court the reasons for your grave concern.

6. You will usually need expert testimony.

Parents who know personally just how dangerous a certain country is often believe that they should simply tell the court their stories about the bad things that have happened to people there. This type of evidence is usually worthless and probably inadmissible. You will typically need to retain well-qualified independent experts who can testify as to their personal knowledge of the issues. Some examples:

A mother who had moved here from South America was desperate to prevent the father from having any visitation in that country, fearing that the child would be kidnapped. The testimony of law enforcement experts from that South American country was secured to prove the grave dangers that the child would face there.
A father from an Asian country wanted to take the child from the U.S. to visit his other child in his native country. An affidavit of an expert in international child abduction with specific knowledge of the danger of abduction in that country and the inability of the legal system to provide any protection to the child was submitted.
A mother wished to take a child to visit her family in Eastern Europe. An expert’s affidavit, establishing the failure of that country to comply with its obligations under the Hague Convention on International Child Abduction, was submitted.
7. Do not take comfort in the mere fact that the child is being taken to a country that is a party to the Hague Convention.

The Convention is a strong international treaty, but countries vary dramatically in their enforcement of it. Countries such as the UK, Australia and New Zealand typically return children promptly and efficiently, but some act much more slowly (Germany and France, for example) and others act at a glacial pace or not at all (e.g., Mexico, Colombia and Austria).

8. Review with your lawyer whether any conditions can be imposed that will ensure that your child will be returned.

The possibility of using conditions is very much a double-edged sword. Many conditions sound good, but they are worth little or nothing in practice. In fact, they can be dangerous because judges may think that by imposing conditions, they have provided real safeguards when, in fact, they have merely facilitated international child kidnapping. Some typical restrictions:

Requiring that a mirror order be secured from the overseas country. This means that the U.S. court requires the other parent to secure an order from a court in the country to which the child is to be taken that mirrors the American court order. This is often valuable, but it depends on the country in question. A Western European country will typically enforce such an order; many Asian countries may not do so.
Allowing the custodial parent to join the child for the overseas visitation. This is often helpful. However, the ability of the custodial parent to take the child back to the U.S. will depend on the country.
Requiring that the parent who takes a child overseas post a substantial bond. This can be extremely useful if the bond is large enough to act as a real deterrent.
9. Do not rely on the other parent’s promises.

They are basically worthless if he or she keeps the child overseas. (However, if one parent puts a promise to return in writing, it may be of some value in future litigation).

10. Do not leave it to the last minute to seek legal protection.

While the courts can usually make emergency orders, it is far better to prepare and submit a case well in advance of the scheduled departure date. In addition, a judge will be less likely to prevent a trip overseas that has been scheduled for a long time.

Source: Georgia Family Law Blog; International Family Law

Welcome to Bruce Provan



I am pleased to advise that my colleague Bruce Provan has been admitted to the partnership of Harrington Family Lawyers, joining Julie Harrington and me.

Bruce was admitted as a solicitor in 1991, and has practised predominantly in family law for many years, becoming a Queensland Law Society accredited family law specialist in 1999. He was appointed as an associate of Harrington Family Lawyers in 2005.

Bruce is someone who makes every effort to help resolve matters by negotiation, and is keen about collaborative law.

Congratulations Bruce!

Suspect your Spouse is Cheating? Get a Parrot


Suspect your Spouse is Cheating? Get a Parrot.

From the bizarre but true files...

If I didn’t read about it in three different cases, I would have never believed it. Apparently over history, the pet parrot has been a key witness in proving unfaithfulness and abuse in marriage:

November 19, 1937: According to the LA Times, Mr. James J. Reynolds wanted to put his parrot on the stand to testify concerning its knowledge of the domestic affairs of him and his wife by showing that the bird had learned to call Reynolds certain abusive names and that the bird’s teacher could have been none other than Mrs. Reynolds. Superior Judge Brand, however, refused to allow a parrot to testify declaring the procedure was a little too irregular in that the parrot probably could not be placed under oath and furthermore probably could not recall who had taught it anything it might have learned.”

November 28, 2005: Frank Ficker of Freiburg (try saying that five times straight) thought he had it all: successful wife, nice home, and a mistress on the side. But the family parrot, a pro at imitating Frank, spilled the beans on his cheating ways. That’s how Mrs. Ficker found out about her husband’s affair with a woman named Uta. “Hugo always liked to mimic Frank and he could do his voice perfectly,” said his wife. But one day Mrs. Ficker heard the bird repeating something she’d never heard before. “I heard him doing Frank’s voice, but saying ‘Uta, Uta,’” she said. According to DW-World, the unfamiliar word got the wife searching their house where she eventually came across two plane tickets to Paris, one for Frank, another for Uta (who was, evidently, the other woman.) “I kicked him straight out,” she said. “It’s just me and my parrot now.” Divorce proceedings are pending.

February 27, 2006: Argentina - Angry wife Rosella DeGambos got her blabbermouth parrot Bozo to testify in court, who then spilled all the family secrets within a two-hour appearance. “I knew he’d seen everything that my husband Carlos did when my back was turned,” Mrs. DeGambos said in an interview about her bizarre divorce court ploy. “And I knew he had the vocabulary to describe what he’d witnessed. According to Nature’s Corner, the parrot described three “pretty dollies” that Carlos had “tickled” while his wife was away. He also identified the women in photographs, calling them by their correct names. “I used to think that Carlos was a faithful husband but Bozo let me know about a year ago that something was up when I wasn’t home,” Mrs. DeGambos said. “He was using new words, words of love. And he began giggling in a high-pitched feminine voice. He kept saying, “No Carlos, not here,” and things like that. I knew if the lawyers could get him to testify, there was plenty of information they could get from him.” Shown one picture of the 23-year-old beautician Carlos allegedly wooed in his home, the bird shrieked, “Honeybun, I love you.” When Mrs. DeGambos’ attorney asked the bird, “Who loves Carlos?” the winged witness said, “Ruby loves Carlos, Ruby loves her baby.” Coincidently, Ruby is DeGambos’ young and voluptuous secretary. Judge Agusto, let Bozo’s testimony stand and granted the Mrs. her divorce. The first such ruling in the world.

Either way, it’ll be pretty easy to determine who gets to keep the parrot…

Source: Darn Divorce

Friday, 13 July 2007

Mother jailed for 4 months for contravention

In the recent case ofB & D,

Federal Magistrate Jarrett jailed the mother for 4 months for breaching orders of the Family Court to allow the father to spend time with the children on the first occasion following a trial, and making a final order for the children to live with the father.

It should be noted that the length of time in jail, under the Family Law Act, is not subject to the usual reduction of time with State laws, meaning that 4 months is 4 months.

The mother had previously been subject to a bond for an earlier breach. His Honour was satisfied beyond reasonable doubt that she would not comply with the orders of the Family Court and that it was not appropriate to suspend the term of imprisonment.

She was living 5 hours away from the contact centre. She claimed that she could not afford to take the children, although she had transport and the father did not.

The mother cannot say she was not warned. This is what Jordan J told her at the trial:



I acknowledge that imposes some financial hardship upon the mother. It is a hardship that should have been in the mother's contemplations when she chose to move five hours away and that she may be required, and, indeed, that she was so required at the time she unilaterally moved to facilitate the children's relationship with their father. Accordingly, without denying the reality of the hardship, it is something the mother now needs to deal with in terms of meeting her obligations to care for the children and to facilitate the children's relationship with their father, which is one of her primary responsibilities. It is on that basis that I propose to make those orders.
and
If you defy the orders of the Court, then you will have the bear the consequences. Otherwise, there is no purpose in having Courts. Otherwise, there is nothing to stop the father from taking these two children from you and going into hiding. The only thing that stands between you and that prospect is the authority of the Court. If people cannot reach agreement, they come to Court. People must abide by the orders of this Court or there is anarchy. You do not want that, the father does not want that, the children do not need it, and I will not tolerate it. Adjourn the Court, thank you.

New case- property and domestic violence

In the recent case of R & L,
Federal Magistrate Altobelli dealt with a claim by the wife for a further 5% of the property, based on domestic violence. She was relying on a case of Kennon (1997) in which if the domestic violence made her contributions more arduous, she could receive more.

His Honour found:
The regular and extensive consumption of alcohol was a feature of the relationship between the wife and the husband. Both drank heavily. The husband drank more than the wife. They frequently became intoxicated. The intoxication led to arguments, which often escalated into violence. This alcohol-induced family violence involved both the wife and the husband as both perpetrator and victim, on different occasions.
Notwithstanding the above, there was no evidence of a plausible nature that indicated that the wife’s contributions were made more arduous. The onus was on the wife, who made these allegations, to prove that the alleged violent conduct by the husband towards her "had a significant adverse impact upon" her contributions to the marriage. In other words, she has failed to demonstrate that as a result of the husband’s conduct, her contributions became "significantly more arduous than they ought to have been". But even if I am wrong on this point, and I have failed to put adequate weight on what I consider to be the inadequate evidence linking the violence to contribution, the fact is that I find that the wife was as often a perpetrator of the violence as she was a victim of it. I stress that on the evidence before me all of the violence was fuelled by the excessive consumption of alcohol by both parties. Their lifestyle did not, however, affect their ability to contribute in the broad sense, within the relationship. It certainly did not make the contribution they made more arduous.

Study: ADHD mothers have children with more problems

The Association of Family and Conciliation Courts has publicised an American study which states that mothers who have attention deficit hyperactivity disorder (ADHD) have children with more problems.

In studying 60 mothers (with a comparison group of mothers without ADHD), the researchers concluded:

Mothers with ADHD monitored their children less than mothers without ADHD, and they were less aware of their children’s activities.

ADHD mothers were less consistent regarding discipline and provided fewer effective possible solutions for their children.

Mothers who were inattentive, as opposed to hyperactive, were even less effective than the ADHD mothers who were hyperactive.

The authors concluded that, “mothers with ADHD were less consistent in their parenting compared with mothers without ADHD. These results suggest that it is difficult to implement consequences for children’s noncompliance in a consistent way when a parent struggles with his or her own impulsive and distractible behavior”
Link to article

Wednesday, 11 July 2007

And now the hard work begins.......

Probably the biggest news item for the last couple of weeks has been the decision by the Commonwealth government, spearheaded by John Howard and Mal Brough, to take over aboriginal townships in the NT, in a bid to tackle the extreme social deprivation there, including child sexual abuse, rape, petrol sniffing, child neglect and domestic violence.

For those outside Australia, this has meant sending in the army, public servants and doctors in a bid to tackle the huge problems in these townships.

The problem is not new. I remember all too well being a law student over 20 years ago and hearing Queensland's then foremost defence lawyer, Des Sturgess QC, talk about the case of Alwyn Peters. Mr Peters was charged with a violent crime that he had committed against, as I recall it, his partner in a town on Cape York Peninsula in far northern Queensland.

The significance of the case was that it was the first time that defence lawyers attempted to use the extreme social deprivation in the townships as a mitigating factor in sentencing. Sturgess had social research undertaken as part of the defence and it painted a shocking scene of deprivation, alcohol abuse, domestic violence, hopelessness and despair.

For too long our governments have tinkered at the edges while people have lived in such shocking circumstances, with aboriginal lives on average about 20 years shorter than the rest of Australians.

There is no more powerful statement than acting for an aboriginal woman who has been subjected to domestic violence by her husband (and at his instigation) their teenage boys, describing the alcohol consumption, the use of claims of racism to overcome his own abusive parenting, and the severe domestic violence to which she was subject. One never forgets hearing this woman saying that she would NEVER again be with an aboriginal man because she considered that they were all abusive, because her own experience and that of everyone she knew was pretty much the same...

News reports are now talking about the army and public servants turning up at various aboriginal towns, the most recent Hermannsburg. I am glad that Opposition Leader Kevin Rudd offered bipartisan support. I hope that this matter is not caught up in the usual quick fix political cycle and that our politicians can, as sensitively as possible stay the course, provide the support and provide safety and hope for these women and children.

Tuesday, 3 July 2007

Domestic Violence Part1

A useful outline of the theory of domestic violence

Patrick Stewart talks about domestic violence

I didn't know that he was a victim of DV. Patrick Stewart emphasises how DV can be trivialised and hushed up.

Domestic Violence Commercial (Australian)

Evil happens when good men are silent....

Domestic Violence Victim

Poor picture quality, but shows it how it is for too many women

Domestic violence- US clip

Deadbeat Dads wanted photos put on Pizza Boxes

Avoiding divorce traps

The Wall Street Journal has listed some traps to avoid:

AVOIDING DIVORCE TRAPS


• Steps you can take to safeguard your finances during and after a divorce:
• Consider other ways to divorce. Litigious divorces can cost tens of thousands of dollars in legal fees and last for years. Opt for alternative ways to reach an agreement, such as mediation or collaborative divorce.
• Keep taxes in mind. A stock portfolio split down the middle might not really be equal, if there are embedded losses or gains in the portfolio.
• Don't be house poor. Many divorcing spouses want to keep their homes for emotional reasons and to provide stability for the kids. But maintaining a house also means mortgage, tax and upkeep expenses.
• Splitting up retirement plans? That involves tricky tax rules, so be sure you have the proper paperwork and talk to legal and tax advisers.
• Update wills, trusts and beneficiary designations on retirement plans and insurance, so your ex doesn't end up inheriting an unintended windfall.

Source:

German Judge uses Koran to justify wife being beaten by husband

A German Judge Cites Koran in Divorce Case
By Veit Medick and Anna Reimann

He beat her and threatened her with murder. But because husband and wife were both from Morocco, a German divorce court judge saw no cause for alarm. It's a religion thing, she argued.


The Koran seems to have become the basis for a court decision in Frankfurt.
The case seems simply too strange to be true. A 26-year-old mother of two wanted to free herself from what had become a miserable and abusive marriage. The police had even been called to their apartment to separate the two -- both of Moroccan origin -- after her husband got violent in May 2006. The husband was forced to move out, but the terror continued: Even after they separated, the spurned husband threatened to kill his wife.

A quick divorce seemed to be the only solution -- the 26-year-old was unwilling to wait the year between separation and divorce mandated by German law. She hoped that as soon as they were no longer married, her husband would leave her alone. Her lawyer, Barbara Becker-Rojczyk agreed and she filed for immediate divorce with a Frankfurt court last October. They both felt that the domestic violence and death threats easily fulfilled the "hardship" criteria necessary for such an accelerated split.

In January, though, a letter arrived from the judge adjudicating the case. The judge rejected the application for a speedy divorce by referring to a passage in the Koran that some have controversially interpreted to mean that a husband can beat his wife. It's a supposed right which is the subject of intense debate among Muslim scholars and clerics alike."The exercise of the right to castigate does not fulfill the hardship criteria as defined by Paragraph 1565 (of German federal law)," the daily Frankfurter Rundschau quoted the judge's letter as saying. It must be taken into account, the judge argued, that both man and wife have Moroccan backgrounds.

"The husband can beat his wife"

"The right to castigate means for me: the husband can beat his wife," Becker-Rojczyk said, interpreting the judge's verdict.

In an interview with SPIEGEL ONLINE, Becker-Rojczyk said the judge indicated to her that it makes no sense to insist on an accelerated divorce. The judge's advice? Wait for the year-long waiting period to elapse.


The fax from the Frankfurt court granting the conflict of interest claim.
The lawyer and her client were shocked. Immediately, they filed a claim alleging that the judge should have recused herself due to a conflict of interest. They felt that, because of the point of view presented by the judge, she was unable to reach an objective verdict. In the reply sent to Becker-Rojczyk, the judge expressly referred to a Koran verse -- or sura -- which indicates that a man's honor is injured when his wife behaves in an unchaste manner. "Apparently the judge deems it unchaste when my client adapts a Western lifestyle," Becker-Rojczyk said.

On Tuesday evening, Becker-Rojczyk expressed amazement that the judge was still on the bench, given that the controversial verdict was handed down weeks ago. Becker-Rojczyk had elected to go public with the case to attract attention to the judge's conduct. It seems to have worked. On Wednesday, after the Tuesday evening publication of the story on SPIEGEL ONLINE, the attorney received a fax from the Frankfurt court granting the conflict of interest claim and excusing the judge from the case.

Still, it is unlikely that the case will be heard again before the mandated year of separation expires in May. But the judge who heard the case may have to face further consequences for her decision. On Wednesday, numerous politicians in Berlin voiced their horror at the verdict -- and demanded disciplinary action against the judge.

Further investigation


"In my opinion, this is a case of extreme violation of the rule of law that can't be solved with a mere conflict of interest ruling," Social Democrat parliamentarian Dieter Wiefelspütz told SPIEGEL ONLINE. "There have to be further consequences. This is a case for judicial supervision -- this case needs to be further investigated."

The deputy floor leader for the Christian Democrats, Wolfgang Bosbach, agreed. "This is a sad example of how the conception of the law from another legal and cultural environment is taken as the basis for our own notion of law," he said on Wednesday.

This isn't the first time that German courts have used cultural background to inform their verdicts. Christa Stolle of the women's rights organization Terre des Femmes said that in cases of marital violence, there have been a number of cases where the perpetrator's culture of origin has been considered as a mitigating circumstance -- although such verdicts have become seldom in recent years.

But there remains quite a bit of work to do. "In my work educating sexist and short-sighted Muslim men," asked Michaela Sulaika Kaiser of the Network for Muslim Women, "do I now have to convince German courts that women are also people on the same level with men and that they, like any other human, have the right to be protected from physical and psychological violence?"

With reporting by Franziska Badenschier and Severin Weiland

Sources:International Family Law News & Analysis, Spiegel Online

Habitual Residence: Objective facts beat claimed agreement that residence is temporary

Maynard v. Maynard, USDC E. Mich. 3/21/07 is one of those cases where a family gave every indication of living in another country, but one spouse later claimed they were only doing so provisionally, with an agreement that they could move back to the U.S. from Australia in a year if it didn't work out. That's what the mother claimed when she took the kids back to Michigan, their former home state, after the family lived in Australia for 10 months. Federal Judge Patrick J. Duggan said that whether you look solely at the facts from the child's perspective, as in a long line of cases going back to Friedrich and Evans-Feder, or consider the parents' shared intent as in the more recent Mozes case, Australia was these children's habitual residence. As that was the only issue in the case, the children were sent back to Australia. Even if there had been an agreement to come back to the U.S. if the wife didn't like Australia, such an agreement would not have kept Australia from being the habitual residence, the judge wrote. Such a nebulous agreement "for an indefinite period" is fundamentally different from an agreement that a stay in a country is only for a certain defined time and purpose, he said. (Such as the family's earlier presence in Michigan, which was pursuant to a five-year employment contract with an Australian company.)

Source: International Family Law News and Analysis,judgment.

Indian Court restrains US divorce from going ahead

In a move with implications for many Indian couples who married in India but one or both live overseas, an Indian court has restrained a wife from going ahead with her divorce application in the US.


In a rare reiteration of its authority in a prayer for anti-suit injunction
matter concerning a foreign court, the Supreme Court has issued a notice to the
US-based wife of a Panchkula resident, who has filed a special leave petition
(SLP) against the decision of the Punjab and Haryana High Court in dismissing
his plea for restraining his wife from divorce proceeding initiated in New
Jersey court.



The notice was issued by Justice Tarun Chatterji and Justice Dalvir Bhandari on the SLP filed by Rakesh Kumar after the preliminary hearing and the arguments advanced by his counsel in stressing that since his marriage with Ashima Kumar had been solemnised under the provisions of Hindu Marriage Act, 1955, its dissolution could be effected under the same act only.

Rakesh through the SLP has sought setting aside the order of January 27, 2007 of additional civil judge, Panchkula vide which ex parte ad interim injunction had been sought to restrain Ashima Kumar from pursuing/continuing with the complaint for divorce now pending before the superior court at New Jersy or in any other foreign court. The high court had held that no case for injunction was made out and that the petitioner has responded with a detailed reply to the summons from New Jersy court, has in fact amounted to his submission to that court. The petitioner's marriage with Ashima was solemnised at Dehra Dun on January 27, 2000.

A daughter, Devishi, was born out of the wedlock on September 30, 2002 and both Ashima and Devishi are Indian citizens holding Indian passports, hence governed by Indian law. The respondent left her husband's home taking along with the child. She also took away all her clothes, jewellry , valuables and a car. A DDR too was lodged with Panchkula SP in this regard on September 14, 2005. She later left for New Jersy, USA, on a tourist visa along with her daughter and is still residing there.

On December 28, 2006, Rakesh had received summons from the superior court at New Jersy where the Ashmia had filed a complaint seeking divorce, appropriate alimony, custody of the child, distribution of all property both real and personal, acquired by the parties during the course of marriage and allocating as well the material liabilities.

The petitioner's counsel extensively quoted from apex court decision including Y.N.Rao and others versus Venkata Laxmi and others 1991 holding that foreign courts where the husband is not domicile has no jurisdiction to dissolve the marriage and the decree of divorce if granted by such courts would be a nullity and will not have the effect of dissolving the marriage.

The counsel for Rakesh has highlighted that incidence of such cases where divorce proceedings are initiated in foreign courts against Indian citizens are on the rise. He also expressed his apprehension that unless anti-suit injunctions were issued by the courts in India, it would be extremely difficult and expensive for the affected individuals to fight legal battles in foreign courts, an option increasingly being exercised causing mental agony and hardship to the parties to the disputes.

Sources: International Family Law News and Analysis, Times of India

Study finds many older women also victims of partner violence

Study finds many older women also victims of partner violence
COLUMBUS, Ohio -- About one in four women older than 65 has been the victim of physical, sexual or psychological violence at the hands of a spouse or other intimate partner, according to a study done in two northwestern US states.

About 3.5 percent of the women surveyed had suffered violence in the past five years, and 2.2 percent in the past year.

"Intimate partner violence is not a problem only for younger women," said Amy Bonomi, lead author of the study and associate professor of human development and family science at Ohio State University.

The study appears in the February 2007 issue of The Gerontologist. It involved telephone interviews with 370 women aged 65 years and older who belonged to a health care system in western Washington state and northern Idaho.

Bonomi said this is one of only a handful of studies to focus solely on the depth and breadth of violence perpetrated by intimate partners against older women.

The results showed that 26.5 percent of the women surveyed reported violence by an intimate partner over their lifetimes. Of those who reported abuse, most were the victims of multiple types.

"It was very rare that women experienced only one type of violence," Bonomi said. "Over half experienced two or more types of violence. That's troubling."

About 18 percent reported sexual or physical abuse and 22 percent were the victims of psychological abuse, including being threatened, called derogatory names or having their behavior controlled by their partner.

The psychological abuse experienced by women in this study was not minor, Bonomi said. About 70 percent of women who experienced verbal threats by an intimate partner said these threats were severe. Additionally, women who reported controlling behavior had experienced this abuse for an average of 10 years.

In spite of the breadth and depth of violence in this group of women, only 3 percent said they had been asked by a health care provider about physical or sexual violence by an intimate partner since age 18.

"Not enough doctors and other health care professionals are screening women for intimate partner abuse," Bonomi said.

"The health care setting is a crucial focus for victims, because it provides a safe, confidential place for ongoing interactions between abused women and their health care providers."

While the prevalence of violence found in this study is startling enough, Bonomi said it is probably an underestimate of how much it actually occurred.

One reason is that women were asked to recall abuse over a lifetime. There may have been a tendency for women to downplay violence experienced early in life.

In addition, women who participated in the study were consistently insured and highly educated. Violence rates tend to be higher in women without consistent insurance and women with less formal education.

Intimate partner violence takes not only a personal toll, but a financial one as well, according to Bonomi. In an earlier study by Bonomi and her colleagues, findings showed the health care costs for abused women were 19 percent higher than for non-abused women.

"We found that health care costs for abused women were still higher even five years after the abuse stopped," Bonomi said. "This underscores the need to pay attention to the issue of intimate partner violence in health care settings."

###
Bonomi conducted the most recent study with Melissa Anderson, Robert Reid, David Carrell, Paul Fishman and Robert Thompson, all with the Center for Health Studies at the Group Health Cooperative in Seattle; and with Frederick Rivara of the Harborview Injury Prevention and Research Center, and the University of Washington in Seattle.

The Group Health Cooperative was the health care system whose members were surveyed for the study.

The study was supported by the federal Agency for Health Research and Quality.

Source: Amy Bonomi, Jeff Grabmeier, Ohio State University

Monday, 2 July 2007

The cost of divorce

Here is a useful US article about the cost of divorce. Despite the different systems, most of the commentary remains accurate in Australia:

The cost of a divorce
Death is the final stage of life, something we all must face. But many people go through another kind of death well before the coffin. It's divorce.

Divorce is death of a marital relationship that is supposed to last a lifetime. For whatever reason -- broken promises, infidelity or poor communication -- some marriages do not work out.

"We did not enter into divorce lightly. We sought counseling. We tried to overcome our differences," says Sue Reddy, a Fort Lauderdale, Fla., resident whose divorce was finalized December 1998. "I gave 100 percent to my marriage. But we just could not get along."

Divorce is big business in the United States. According to maritalstatus.com, a Web site geared toward divorce and remarriage, divorce is a $28 billion-a-year industry with an average cost of about $20,000.

If you're contemplating divorce, there are short-term and long-term costs you should consider before legally saying sayonara to your spouse. Short-term costs mainly pertain to paying a lawyer, if you decide to hire one. Long-term costs will include financial lifestyle issues.

Do-it-yourself divorce kits

There's no law that says you have to hire an attorney. You can purchase a divorce kit if you feel that you and your spouse can rationally come to an agreement on who will get what. It's perfect for the couple who has nothing to dispute and no children.

The kits generally include legal forms that cover a variety of details such as personal property and real estate, alimony and name changes. You file the finished documents with the court and make an appearance before a judge to explain your reasoning. The divorce becomes final when the judge signs the documents.

The kits range from $25 to $70 and are valid in many states and Washington.

"Each state is different, and each one has different legal forms. In getting a divorce kit, I would use caution and get one that is particular to your state," says Ginita Wall of San Diego, a Certified Public Accountant who specializes in divorce.

Getting an attorney

When a divorce is contentious, most couples hire an attorney to ensure that assets, child support, alimony and other aspects are handled fairly and equitably.

If your divorce is uncontested, meaning you and your spouse have worked out the terms, then it's usually a matter of the lawyer making sure all issues have been addressed. The legal fees are generally lower than a mediated or contested divorce.

Here's a general rule of thumb: The more complicated and emotional the divorce, the more expensive it will be, according to several attorneys nationwide. Reddy knows all too well how a cantankerous divorce can drive up costs.

Most of the disagreements in her case, she says, pertained to the custody of her 5-year-old son. The divorce ended up costing her $25,000 in legal and court fees. That money, she says, could have been used for more important things.

"That was my child's (college) education fund," says Reddy. "But I still have 13 more years to save."

Most lawyers charge an hourly rate, so expect to pay between $100 and $450 an hour, says Jan Warner of Columbia, S.C., a divorce attorney for 30 years. Some lawyers may charge as little as $75 an hour, according to maritalstatus.com, with an up-front retainer of $500 to $10,000.

A retainer is the initial fee you pay the lawyer for his or her services. The attorney's hourly rate is then deducted from the retainer. Once the money is gone, you pay additional money to keep the attorney on your case.

California divorce attorney Marilyn S. Slifman says many couples simply cannot afford to hire a lawyer and are forced to look for other ways to settle matters.

Some couples hire an attorney only for certain services, such as reviewing a settlement agreement or handling alimony particulars. The choice is yours.

Other fees

There are other lawyer-related fees to keep in mind. Slifman says couples should factor in the cost of the initial court filing fee, process serving and subpoenas. If the case goes to trial, then allow for daily court fees for witness preparation, temporary orders and discovery.

Some lawyers charge for faxing, photocopying, travel expenses and phone calls.

When you talk to your attorney over the phone, even for a minute, it can cost you.

Let's say a lawyer charges $120 an hour. He may have a minimum billing unit of $30, which is the fee for a 15-minute call. Even if you call to ask if he received a copy of the apartment lease, that 30-second call will still cost you $30.

Lifestyle costs

The true cost of a divorce encompasses much more than just paying off the lawyer's fees and court bills. Often, the bigger issue is dealing with a drastic reduction of income since your spouse is no longer helping you financially. For some, that can be a challenge.

Wall says it's difficult for many to adjust to the economic realities of life after marriage. Without the help of your ex-spouse, it's virtually impossible to maintain your previous standard of living when your income is cut in half, maybe more -- yet you don't lose half your expenses.

Prepare for this blow from the beginning.

"Separate the finances from the emotions. Think about the divorce as a business deal and what is best for you. Formulate goals and work toward them," says Wall.


Sources: bankrate.com and Georgia Family Law Blog.

NSW Government Response to Inquiry into Shared Parental Responsibility Legislation

The New South Wales Government's response to the NSW Legislative Council Standing Committee on Law and Justice Inquiry into the impact of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) was recently tabled in the NSW Parliament. The Government's response includes a number of recommendations including:



That the NSW Government work with the Commonwealth Government to ensure that staff at Family Relationship Centres and accredited family dispute resolution practitioners are suitably trained and use appropriate screening tools in order to correctly identify cases involving family violence.

That the NSW Government work with the Commonwealth Government to establish protocols to enable appropriate NSW Government and non-government agencies to assist Family Relationship Centre staff and accredited family dispute resolution practitioners in dealing with cases involving family violence.

That the NSW Government contact the Commonwealth Government to discuss the option of adopting the NSW Legal Aid Commission's alternative dispute resolution model at Family Relationship Centres so that NSW residents have the alternative of lawyer assisted mediation.

That the NSW Government discuss the appropriateness of the number and location of Family Relationship Centres with the Commonwealth Government, and request that further decisions about the locations of Family Relationship Centres be made in conjunction with relevant NSW Government agencies to ensure that the decisions are based on accurately identified population and demographic needs.


For a full copy of the report and the response, click here.