Tuesday, 25 September 2007

How to cut a deal: Qld

Currently there is one system of law covered property settlement for married couples who want a property settlement- under the Family Law Act, which is Commonwealth law and applies throughout Australia.

For de facto couples, different rules apply in each of Australia's eight States and Territories. Tonight I'll focus on Queensland.

Why formalise a deal?

There are some obvious reasons:
-certainty- the knowledge that the financial issues between you and your ex are at an end and you can move on with your life. There is nothing quite like acting for a client who has come to see you because they had an informal property settlement, thinking that it was all over, and their ex has applied to court asking for more.

- being able to borrow- Often banks will require a client when refinancing to formalise the deal- for obvious reasons- the bank also wants to ensure that its investment is secure and not put at risk.

- tax and stamp duty considerations- There can be exemptions or rollover releif for capital gains tax or stamp duty with formalising a deal which are not available with informal deals.


What's needed in Qld?

In Queensland, there are two methods, both of which are under Part 19 of the Property Law Act 1974. The first way is to have an order made. This can be consent, without the need to actually go to court. made by the Supreme, District or Magistrates Courts. The District and Magistrates Courts can exercise jurisdiction by consent, but usually their upper monetary jurisdiction is $250,000 and $40,000 respectively.

Given the price of houses, most property settlement orders will be made in the Supreme Court. The Supreme Court in Brisbane has a 24 hour turnaround for most consent orders.

The more common method is to enter into a separation agreement. Here are the technical requirements:
-A separation agreement is an agreement--

-made by de facto partners--
in contemplation of ending their de facto relationship; or
after their de facto relationship has ended; and
dealing with all or some of the de facto partners' financial matters.

It does not matter whether there are other parties to a separation agreement or a separation agreement deals with other matters.

At first blush, it seems that

any type of agreement can be a separation agreement. Whilst this is no doubt true, the important trick is to ensure that the separation agreement is a recognised agreement. This is because the Property Law Act prevents the court from making property settlement orders inconsistent with a recognised agreement.

What's required for a recognised agreement

The Property Law Act sets it out:

A recognised agreement of de facto partners is a cohabitation or separation agreement of the de facto partners that--

(a) is a written agreement; and
(b) is signed by the de facto partners and witnessed by a justice of the peace (qualified) or solicitor; and
(c) contains a statement of all significant property, financial resources and liabilities of each de facto partner when the de facto partner signs the agreement.
(2) Whether all significant property, financial resources and liabilities of a de facto partner are stated depends on whether the value of a property, financial resource or liability of the de facto partner that is not stated is significant given the total value of the de facto partner's stated property, financial resources and liabilities.

If you meet these technical requirements, then you comply.

Of course, anyone contemplating entering into a separation agreement (or consent order for that matter) should obtain independent legal advice from a solicitor of their choice, preferably a law society accredited family law specialist.

The last part of the requirement for a separation agreement states what should be obvious- each party should come to the negotiating table with clean hands, with nothing to hide. As I read in one recent court case, it is a case of
show and tell,
not
hide and seek.


Failure to make full and frank disclosure may lead to a finding that there has not been a valid separation agreement, meaning that the whole issue of property settlement is re-opened.

Tuesday, 18 September 2007

Law Council calls for Civil Unions

The Law Council of Australia, Australia's peak lawyers' body, has published its list of issues to be raised with the political parties ahead of the Federal election.

The most relevant family law issues are:
- a call to increase funding to legal aid;
- a call for there to be gay marriage or civil unions; and
- a call for the establishment of a Comonwealth Judicial Commission in a smilar way to that of NSW, so that proper complaint can be made about the behaviour of Commonwealth judges.

Now for the detail....

Legal Aid Initiatives
It is well documented that legal aid funding is
insufficient to meet the needs of disadvantaged
persons in the community, particularly Indigenous
Australians and people living in rural and remote
areas.
There has been a decrease in overall legal
aid funding in real terms since 1996 and the
estimated additional one-off amount required
to restore funding even to 1996 levels is
approximately $100M. This increased legal aid
budget should then be used as the basis for future
legal aid funding.
Since 1996 a number of studies have identified
significant consequences of the decrease in
funding including a large increase in selfrepresented
litigants causing considerable delays
in and associated costs to the court system.
In addition to the decreases in overall real
funding since 1996, the introduction of new
Commonwealth legal aid policies and guidelines
in 1997 meant that legal aid funding for civil
matters was virtually abolished. Civil matters are
disputes (not involving family law, child welfare
or de facto property matters) between persons
and other individuals or government. The 1997
policies and guidelines effectively restricted legal
aid to criminal and family law matters. The Law
Council estimates that an additional one-off
allocation of $40M is needed for a civil legal aid
scheme. The resulting increased legal aid budget
should then be used as the basis for future legal
aid funding.

With expansion of Commonwealth legislation
and significant sustained budget surpluses it is
critical to re-establish a civil legal aid system to
meet the demand for legal services, particularly
in areas such as employment law, consumer
protection, immigration and social security.
In light of the recognised difficulties facing
Indigenous Australians, particularly in rural
and remote areas the Law Council believes
that tax and other incentives are necessary to
encourage young lawyers to practise in rural and
remote areas. The Law Council also believes
that increased funding is needed for dedicated
Indigenous Legal Services.

The Law Council asks
Will you support immediately providing a
minimum one-off payment of $40M to reestablish
a civil legal aid scheme and continuing
funding for such a scheme?
Will you support immediately increasing funding
for legal aid overall by a minimum one-off
payment of $100M (in addition to the $40M civil
legal aid scheme) and continuing funding at this
increased level?
Will you support increasing funding for dedicated
Indigenous Legal Services?
Will you support providing tax and other
incentives to young lawyers to practise in rural
and remote areas?

Civil Unions
The Law Council is concerned that current
Australian law defining marriage as the union of a
man and a woman is inconsistent with Australia’s
international obligations under the International
Covenant on Civil and Political Rights and with
the recognition of same sex marriages or civil
unions in many overseas jurisdictions.
The Law Council believes that marriage is a civil
right which should be made available to all people
regardless of sex. The Law Council also believes
that discrimination against same sex couples
cannot be adequately addressed without changing
the law in relation to marriage.

The Law Council asks
Will you support legislative recognition of same
sex marriages or civil unions?

Australian Judicial
Commission
There is currently no federal mechanism to deal
with complaints of negligence, physical or mental
fitness, incompetence or misbehaviour against
Federal judges or magistrates.
The Law Council proposes the establishment of
an Australian Judicial Commission to manage
complaints made against federal judges and
magistrates and provide them with education and
training in collaboration with such bodies as the
National Judicial College of Australia.

The Law Council asks
Will you support legislation for the establishment
of an Australian Judicial Commission and provide
resources for such a body to manage complaints
against and help provide training for Federal
judges and magistrates?

FURTHER SUPPORT FOR PEOPLE AFFECTED BY CHILD ABDUCTION

The Australian Government will provide further support to persons affected by international parental child abduction by granting $145,000 to the International Social Service (ISS) Australia, Attorney‑General Philip Ruddock announced .
The grant was awarded under the Grants to Australian Organisations Program, which supports organisations to develop projects or activities that boost the public’s access to the federal civil justice system.
ISS Australia will use the grant to expand its established support service for persons affected by international child abduction. ISS Australia is the local arm of an international non-government organisation which provides services to families spread across two or more countries.
Mr Ruddock said the grant to ISS Australia demonstrates the Australian Government’s commitment to assisting parents whose children had been wrongfully removed to, or retained in, overseas jurisdictions.
“The abduction of children across international borders is an extremely traumatic experience for all those affected by it,” Mr Ruddock said.
“The Australian Government recognises the need for parents to be able to access services that provide much needed emotional support at this harrowing time.”

Source: Ministerial Media Release

Transgender unsuccessful in getting birth certificate changed

In AB v Registrar of Births, Deaths and Marriages, the applicant who was born male, but had had gender reassignment surgery to female, sought to have the birth certificate details changed from "male" to female".

She had already successfully applied to have her changed name recognised on the birth certificate.

The Registrar refused to allow the change of gender on the certificate, because the Victorian Act required the applicant to be married. The applicant was married but separated.

The applicant applied to the Federal Court on the basis that the Victorian legislation was discriminatory on the basis of her marital status within the meaning of the Commonwealth Sex Discrimination Act. She was unsuccessful.

Justice Heery held that the provision of the Sex Discrimination Act was legislation:

and not some other form of governmental activity (such as, for example, public education or governmental employment practices) is part of Australia’s discharge of its obligation to legislate as required by the Convention. It is therefore to be construed as prohibiting discrimination against women – treating them less favourably than men – because they are married. The action of the Registrar in the present case had nothing to do with the applicant’s being a woman. Had the applicant been a man, the result of the application would have been the same.


Comment

Given that it takes only one year to pass to be eligible to be divorced, all the applicant had to do to avoid the effects of the legislation was to wait for the year to expire, divorce and then apply- and it should have gone through smoothly.

In Queensland, former Attorney-General Rod Welford ruled that in a case in which I acted, the act of marriage applied to those marrying in Australia only. As my client married outside Australia, she could still obtain the change of gender on the certificate.

CLEARER GUIDANCE FOR COURTS ON RELOCATION CASES

The Commonwealth Government has committed to insert provisions within the Family Law Act to provide courts with greater clarity on how to deal with relocation issues arising out of custody arrangements.
This commitment is made in the Government’s response to the Family Law Council's Report to the Attorney-General on Relocation. The response was tabled in Parliament.

Attorney-General Philip Ruddock said currently there is no specific guidance in the Act for relocation orders or arrangements. The new legislative provisions will make it easier for litigants to understand the child-focused principles that apply to relocation cases.
Specifically the provisions will ensure that courts consider: alternatives to the proposed relocation; whether it is reasonable and practicable for a person opposing a relocation to move closer to the child if the relocation were permitted; and whether the person who is opposing the relocation could assume primary caring responsibility should the person relocating choose to do so without taking the child.
Courts will then be obliged to reframe parenting orders in the light of the child’s best interests, considering factors such as whether relocation would interfere with the child’s ability to form a relationship with both parents.
Mr Ruddock said the Australian Government is paying close attention to court outcomes to see whether, with or without these amendments, courts are putting children’s interests at the centre of their decision making on relocation cases.
“The Shared Parental Responsibility Act 2006 was meant to ensure better outcomes for children and both parents,” Mr Ruddock said.
“Today’s commitment is a step to clarify that aim. However as I have always said if there is concern the legislation does not achieve the aims it intended we may need to consider further legislation.”
"It is critical the family law system provides a clear, consistent approach to resolving family law relocation disputes, and acknowledges that the best interests of children are the central issue."
The Family Law Council report is in response to the House of Representatives Standing Committee on Legal and Constitutional Affairs report on the Exposure Draft of the Family Law Amendment (Shared Parental Responsibility) Bill in 2005. The Family Law Council is a statutory body which advises the Attorney-General on a range of family law issues.

Source: Ministerial Media Release

Ten commandments in dealing with an independent children's lawyer

I recently came across an interesting article by M Debra Gold, a Georgia (US) family law attorney and guardian ad litem (similar to an independent children's lawyer) as to the ten commandments for parents in dealing with guardians ad litem. With Debra's kind permission, I have altered it slightly to refer to Australian jargon and practice:

1. Thou shalt honor thy children.

It is probably the most unfortunate consequence of parenting disputes that at some
point many children find themselves caught up in the middle of their parents’
battles. Be conscious of what you say to or about the other parent while in the presence of, or anywhere near, the children. Know that children can be very adept at
picking up on innuendos and body language. Don’t put your children in the position
of feeling that they must protect or defend the other parent. By the same
token, don’t put your children in the position that they feel they need to take care of you or your feelings. Your children have the right to love and be loved by both of
you. Do not interfere with that right.

2. Thou shalt be truthful with thy independent children's lawyer.

Tell the independent children's lawyer everything relevant to your parenting case, good or bad. It’s better that the bad things about you come from you rather than the opposing party because the latter will not hesitate to talk about those bad things and you never know what kind of spin they will put on them. Listen to the independent children’s lawyer's questions and answer them as clearly and concisely as possible. Give specific examples of your complaints rather than broad generalisations. Do not play word games with the independent children's lawyer as he or she is not stupid. It is always amazing how some people think that their lies and
deception cannot be found. What’s even more amazing and actually a little scary is
when they actually believe their lies. If there is a fact, it can be discovered.
Trying to cover up the truth accomplishes nothing other than to do
irreparable damage to your credibility. And don’t even begin to think that exaggerating or stretching the truth does not fall under this commandment.


3. Thou shalt NEVER instruct thy children as to what they should or
should not say to the family report writer.


Children’s acting skills are not quite as honed as their parents’ and they are generally much more transparent when they say or do things that do not come naturally to them.

4. Thou shalt be thyself and not pretend to be someone else.


Your own acting skills are probably not as honed as you think they are. The independent children's lawyer will be involved in your case for a long time. He or she and any family report writer will get to know the real you. It will be almost impossible to keep up a fa├žade for such a long time. Further, both will be talking to other people who can give him or her a truer picture of who you are. Don’t think the independent children's lawyer or family report writer is so easily fooled.


5. Thou shalt honor thy judge, thy independent children's lawyer, thy family report writer, thy lawyer, thy opposing lawyer and all other people associated
with thy case.


If you show disrespect or other untoward behavior toward the people who to some
degree hold your fate in their hands, then it is indicative of how you comport yourself in everyday life.

6. Thou shalt respond timely and provide complete information and documents to thy independent children's lawyer.


As one judge said, it is a case of "show and tell" not "hide and seek". Don’t pick and choose what you want to give the independent children's lawyer. Give him or her anything that is relevant to the dispute. If you send some e-mails but not others,
the independent children's lawyer is going to wonder what occurred during
the gap. If you provide documents with missing pages, the independent children's lawyer will notice. Delaying or refusing to sign authorities so that the GAL can obtain information from your medical or mental health providers will only keep the independent children's lawyer guessing as to what it is you are hiding (and increase the chances of subpoenas issuing). Showing up late, or not at all, to random drug
or alcohol testing leads to the obvious inference. Don’t do anything that would tend to cast a shadow of doubt on your credibility. Without your credibility, you have
nothing.

7. Thou shalt remember that thy children’s best interests are always paramount.


It sounds a little trite, but even the best parents place their own interests before those of their children. Unfortunately many parents involved in parenting disputes
are so filled with anger, hurt, bitterness and frustration that they lose sight of the forest for the trees and, whether intentionally or not, they place their
needs and interests over their children‘s. Be conscious of this pitfall when embroiled in custody disputes and don’t allow it to happen to you.



8. Thou shalt comply with all court orders.

Need anything further be said here? Spending time in jail on contempt is not conducive to building a strong relationship with your children or to building
a strong custody case for your children to live with you.


9. Thou shalt not seek legal advice from thy
independent children's lawyer.


The independent children's lawyer is not in a position to give legal advice. It
would be a conflict of interest for the independent children's lawyer to provide
any legal advice to either of the parties (and no doubt would play havoc with their professional indemnity insurance). Furthermore, the independent children's lawyer is not your therapist or counsellor. If you have questions or need any advice, call your lawyer or your counsellor.


10. Thou shalt never forget that thy independent children's lawyer is
watching.


Your actions are not slipping under the independent children’s lawyer's radar.
If there is something to be found out, the independent children’s lawyer will
find it.

The independent children’s lawyer cannot get to the truth of the matter in a
vacuum. His or her recommendations will be based upon what he or she learns through the investigation. Cooperation and truthfulness are key. Behaviours speak
volumes. By following these 10 commandments one has a much greater chance of obtaining favorable recommendations from the independent children’s lawyer.

Divorce rate lowers: ABS

The Australian Bureau of Statistics, in reviewing the 2006 divorce statistics notes that the rate has decreased across Australia, except South Australia and Western Australia, where it has risen.

The rate has continued to slowly decrease since 2001.

Wives continue to apply for divorce more than men, but the rate of joint applications continues to increase.

Click here for the full statistics from the ABS website.

Thursday, 6 September 2007

Spence commends police initiative to combat domestic violence

SPENCE COMMENDS POLICE INITIATIVE TO COMBAT DOMESTIC VIOLENCE

Police in the indigenous community of Normanton are achieving great success in combating domestic violence, Police Minister Judy Spence said today.

Ms Spence said a community based campaign developed by local officers, titled 'Domestic Violence - it's not our game!' has significantly reduced the incidence of domestic violence in the North-West Queensland town.

"It is a sad fact, that domestic violence is especially prominent in some indigenous communities in the state's north," Ms Spence said.

"In Normanton, where 60% of the population is indigenous, there were over 300 reported incidents of domestic violence in 2006 and one in three adults in the town were also involved in protection orders, either as the respondent, the aggrieved or the named person.

"Police in the town are to be congratulated for taking it upon themselves to find a new way to address this tragic trend.

"The 'Domestic Violence - it's not our game!' campaign has allowed the local community to take ownership of the issue, and send a message that domestic violence is unacceptable."

Ms Spence said, under the guidance of the local Officer in Charge Sergeant Dave Rutherford, police are now working with the local rugby league team, the Normanton Stingers, to promote the non-violence message.

"The campaign commenced in March this year, with members of the Normanton Stingers and their supporters wearing jerseys and wristbands carrying the campaign logo, and with banners displayed at all football games," Ms Spence said.

"Furthermore, team members have agreed to make a personal commitment to desist from domestic violence - and have decided that if an individual commits domestic violence they will be subject to playing bans and ultimately excluded from the team.

"Team players are also appearing in television advertisements on the Imparja network promoting the non-violence message, and the message is finally getting through.

"Between March and July this year there has been a 64% reduction in breaches of existing protection orders, compared with the same period last year.

"This is an excellent result and I commend police and the local community for their dedication to making a different."

Ms Spence said it is expected other sporting teams in North-West Queensland will also adopt this program, and there is the potential for this project to become an influential anti-violence campaign within Indigenous communities across Australia.

Source: Ministerial Media Release

Queenslanders recognised for protecting children

Queenslanders recognised for protecting children

Seven Queenslanders received awards for their contributions to child safety in a Child Protection Week ceremony today.

Child Safety Minister Desley Boyle congratulated the award winners at the 19th annual Child Protection Week Awards at Parliament House in Brisbane.

"There are about 7300 children in care in Queensland and the number is growing," Ms Boyle said.

"I speak on behalf of all Queenslanders when I say a heartfelt thankyou to these dedicated men and women and the organisations that they represent. They have worked tirelessly all year round to make sure that our most vulnerable children and young people have the protection and safety that they deserve."

The winners came from a variety of backgrounds, but all share a common commitment to ensuring the safety and wellbeing of Queensland children.

The awards were organised by the Child Protection Committee, comprising representatives from community agencies, to recognise the outstanding achievements of nominees and winners in the field of child protection.

"The award winners deserve public recognition for their efforts, and I am encouraged that we had so many outstanding nominations this year," Ms Boyle said.

"The people who work in child protection are community heroes. They make a real difference to Queensland children. In fact, they save children's lives."

The award recipients were:

Professional- Mandy Jones, Regional Manager, Anglicare Central Queensland, Rockhampton. A foster care worker since 1997 and a foster carer for over 20 years, Mandy Jones is a member of the Board of Directors for PeakCare Queensland who brings extensive experience to her roles.

Volunteer - John Burton, Coordinator, Edmund Rice Camps, Indooroopilly. For the past 15 years, this organisation has run one-week camps during the school holidays for children with significant emotional, social, behavioural or physical limitations. A number of workers volunteer a week of their annual leave to help run the camps, with Year 12 and university students also volunteering as "buddies".

Public Sector - Detective Sergeant Murray Ferguson, Doomadgee CIB / Child Protection and Investigation Unit. He has been working in Doomadgee and covering Mornington Island and Burketown for the past year and has worked closely with Child Safety staff and traditional Elders to raise awareness of child protection issues.

Regional Program - Ray Krueger, Principal, Glendyne Education and Training Centre at Nikenbah, near Maryborough. This centre, established in 1998, provides integrated treatment and rehabilitation for students who do not cope in mainstream schools. The program includes mentoring and teaching basic life skills in small groups.

Youth Participation - Peta McCorry, CREATE's 'Be Heard' Project, Highgate Hill. This project seeks the views of young people in the child protection system about the quality of care they are receiving.

Education Initiative - Joint winners - Queensland Police Service "Surf Safely" education campaign and Family Planning Queensland Everyone's got a bottom children's storybook.

The "Surf Safely" program teaches tips to keep children safe from predators on the Internet. It has been presented to more than 7900 students and more than 35,000 hint cards have been distributed.

Everyone's got a bottom reflects current research and aims to help parents and carers talk to children aged 3-8 about their bodies in a way that encourages self-protection.

Child Protection Week runs until Saturday September 8.

Source: Ministerial Media Release

Australian-first course strengthens response to domestic violence

Australian-first course strengthens response to domestic violence


Queenslanders experiencing domestic and family violence will benefit from a new training course - the first of its kind in Australia - designed to develop a more highly skilled and responsive support system.

The course, written for workers in government and non-government agencies who are likely to be the first point of contact for people experiencing domestic and family violence, was officially launched in Brisbane today.

Communities Minister Warren Pitt said the accredited Course in Responding to Domestic and Family Violence was the first full course of its kind to be offered in Australia.

"Queensland is once again leading the way when it comes to addressing domestic and family violence," Mr Pitt said.

"The course is designed to equip frontline workers with the best possible knowledge and information to help Queenslanders affected by domestic and family violence."

Mr Pitt said the Mackay-based Queensland Centre for Domestic and Family Violence Research produced the course thanks to significant ongoing funding and support from the Department of Communities.

Stirling Hinchliffe, Parliamentary Secretary to Communities Minister Warren Pitt, represented the Minister at today's launch at Parliament House.

"While there are some accredited units of competency on domestic and family violence in other courses, this particular course is the only accredited full course on domestic and family violence in Australia," Mr Hinchliffe said.

"So not only will it benefit the social services sector with increased staff retention, lower stress levels and better-trained staff, to will also help break the cycle of domestic and family violence."

For more information about the course, contact the Queensland Centre for Domestic and Family Violence Research on 4940 7834.

Source: Ministerial Media Release

Police arrive- 3 hours late

Queensland Police Commissioner Bob Atkinson has launched an internal investigation about how Gold Coast police failed to respond to an emergency call, but did respond to a second call from the home 3 hours later - after a woman died, allegedly murdered by her son.