Friday, 26 October 2007

New family law scholarship

A new family law scholarship has been announced by The Family Law Practitioners Association of Qld Ltd.

The Dianne Smith Post-Graduate Family Law Research Scholarship (named in honour of the retired Judicial Registrar and former President of FLPA) has a value of $15,000 to $35,000. An information sheet in relation to the scholarship can be found on the FLPA website. The closing date for applications for the scholarship is 31 October 2007.

Link to website

Show and tell, not hide and seek -disclosure part 1

Somerset Maugham said as long ago as 1926 in "The Constant Wife": "There is only one freedom that is really important and that is economic freedom, for he who pays the piper calls the tune."

Whilst not the only freedom that is really important, it is imperative to have economic freedom.

One of the key features about negotiating a deal about your property, to ensure that a party has economic freedom, whether or not the parties go to court, is to ensure that there has been full disclosure of their financial circumstances.

The Family Law Rules set out a shopping list of things to be disclosed before going to court, but more important is the phrase: "full and frank disclosure in a timely manner".

This means, subject to privilege, that there has to be openness about disclosure for documents (including computer files) that might even be harmful to that party's cause but are relevant to the dispute.

To paraphrase Federal Magistrate Lucev recently - counsel put it succintly as it's a case of "show and tell" not "hide and seek".

I sometimes decribe it to clients as "I hate surprises." Almost invariably they are going to be bad ones, at a trial, when my client will be in least control of what can happen to their future. It is rare to have good surprises at court.

Of course often clients complain that their ex has not made full disclosure. The obvious question that gets asked is: "before we [go to court/ write a nasty letter/ issues subpoenas etc] have YOU made full disclosure?" Usually the immediate answer is no, but on further checking often it is yes.

I will have further posts about what to do if the other side does not make full disclosure.

Well, we know where the parties stand.......

Earlier this week, I was asked by Qnews, as its legal columnist, to find out what the political parties' positions were on same sex law reform, particularly in light of the report of the Human Rights and Equal Opportunities Commission which found that there was discrimination in a myriad of Commonwealth laws against same sex couples.



Liberals
Reports indicated that this issue was discussed at Cabinet, where no decision was made as the Cabinet was split, with some Ministers including Turnbull and Ruddock being in favour, and others including Minchin, Abbott and Andrews, being against.

It is not known what the position was of Peter Costello.

Ultimately it was left to John Howard to decide.

That position was made plain when at a joint party room meeting the PM opposed any changes.

As part of the preapration for my story, I emailed Liberal HQ, and also phoned for the State media director, pointing out that I had a deadline the same day and that the paper would come out about a week before the election. I have had no response.

Nationals

The policy is not published. I similarly left a message for the State Director to call me, my saying the same thing in that message as I did for the Liberals' state media director.

No response.

Labor

The ALP has published its policy online- essentially it is opposed to gay marriage, but in favour of removing all discrimination- so endorsing the HREOC report.

The ALP also favours a state based system of relation registries for same sex couples as occurs in Tasmania and as proposed for Victoria.

Kevin Rudd in the meantime has come out and said that he is opposed to same sex marriage, and whilst he is largely opposed to adoptions by same sex people (though he found that there were some exceptions) that was a matter for the states.

Greens and Democrats

Both the Greens and the Democrats seek that same sex couples have the same rights as everyone else, and have the right to marry. They would enact the changes supporting the HREOC report.

Tuesday, 16 October 2007

Vale Bill Impey


The Family Law Section of the Law Council of Australia has announced the unfortunate death of Bill Impey.

Bill was one of Melbourne’s most experienced and respected senior Family Law practitioners. He was a founding partner of Kennedy Wisewoulds and had over 30 years of professional experience in the family jurisdiction, and had been an Accredited Specialist in Family Law since 1989.

Bill was a member and former Chair of the Specialist Accreditation Advisory Committee, Law Institute of Victoria (Family Law), and a member of both the Law Institute of Victoria Family Law Section and the Family Law Section of the Law Council of Australia.

A funeral service will be held at St Peter and Paul's Church South Melbourne at 2.00pm on Friday 19 October 2007.

Books about stepfamilies

For those in them, stepfamilies can be very challenging, and at their best, rewarding. At their worst- well we all know the story of Cinderella.....

The Australian Institute of Family Studies has published a summary of books about stepfamilies, which will hopefully be a help for those who are interested or in a stepfamily.

For the summary, click here.

Federal Magistrates Court: Appointment of New Federal Magistrates

Attorney-General Philip Ruddock announced the appointments of Magistrate Margaret Cassidy and Judge Jillian Orchiston as Federal Magistrates.
“I would like to take this opportunity to congratulate Magistrate Cassidy and Judge Orchiston on their appointments to the Federal Magistrates Court,” Mr Ruddock said.
“Magistrate Cassidy and Judge Orchiston bring to their new positions a wealth of experience and expertise and I wish them every success.”
Magistrate Cassidy practised as a barrister in Queensland from 1994 until her appointment as a magistrate of the Queensland Magistrates Court in 2005.
In private practice, Magistrate Cassidy gained extensive experience in family law and related jurisdictions, together with experience in anti-discrimination law, trade practices, industrial relations, corporations law, taxation law and alternative dispute resolution.
Magistrate Cassidy will take up her appointment on 5 November 2007 and will be based in Brisbane.
Judge Orchiston practised as a barrister in New South Wales from 1987 until her appointment as a magistrate of the Local Court of New South Wales in 1994.
In 2003, she was appointed an Acting Judge of the District Court of New South Wales and a Judge of the Drug Court of New South Wales. Her work with the Drug Court has enabled her to gain specialised knowledge of the practice of therapeutic jurisprudence.
Judge Orchiston will take up her appointment on 12 November 2007 and will be based in Sydney.

Family Court: Appointment of new judge

Attorney-General Philip Ruddock announced the appointment of Mr Stuart Fowler AM as a judge of the Family Court of Australia.
“It is with great pleasure that I announce Mr Fowler’s appointment to the Family Court,” Mr Ruddock said.
“Mr Fowler brings to his new position extensive experience and expertise in the family law jurisdiction.”
“I know he will continue to make a valuable contribution to the law in Australia.”
Mr Fowler was admitted as a solicitor in New South Wales in 1966 and has primarily practised in the area of family law since that time.
Mr Fowler is Co-Chairman of the World Congress on Family Law and Children’s Rights, a position he will continue to hold. Before taking up his appointment, he was Vice Chairman of the New South Wales Family Law Practitioners Association.
In 2005 Mr Fowler was made a Member of the Order of Australia for his services to the law in Australia and internationally, particularly through the establishment of the World Congress on Family Law and Children’s Rights.
Mr Fowler will take up his appointment on 16 November 2007 and will be based in Sydney.

Family Law Council: new appointments


Attorney‑General Philip Ruddock announced four appointments to the Family Law Council.
“Firstly, I am pleased to announce the appointment of Professor John Wade (pictured) as the new chairperson of the Family Law Council,” Mr Ruddock said.
“Professor Wade teaches law at Bond University and has excellent qualifications for this position. He has both extensive practical experience as a mediator and an international reputation as a leading author in family law and dispute resolution.”
Professor Wade was previously a member of the Family Law Council from 1988 to 1990. His term as chairperson is for three years from the date of appointment.
Professor Wade follows Professor Patrick Parkinson as chairperson of the Family Law Council.
"Under Professor Parkinson’s stewardship, the Family Law Council has made significant contributions to policy and legislative reform in family law,” Mr Ruddock said.
“I am grateful to Professor Parkinson for his considered advice over the years and his important role in developing the Family Law Council’s report, Family Law and Child Protection.”
Mr Ruddock also announced the re-appointment of Justice Garry Watts, Ms Nicola Davies and Mr Clive Price to the Council for a further term of three years.
“These appointments will allow these members to continue their excellent work as convenors and active participants in the Council’s committees,” Mr Ruddock said.
The Family Law Council is a statutory body which advises the Attorney‑General on a range of family law matters.
The Council is currently working on a number of references from the Attorney-General including Violence and the Family Law Act, Mental Health Issues in Family Law, Improving Post Parenting Order Processes, and Arbitrating Family Law Property and Financial Matters.
In August the Government also accepted all of the recommendations made in the Family Law Council’s Report to the Attorney-General on Relocation. The report provides guidance for courts when one parent applies to relocate after separation.

Family Court: Appointment of new judge

Attorney-General Philip Ruddock announced the appointment of Mr Peter Murphy SC as a judge of the Family Court of Australia.
"It is with great pleasure that I announce Mr Murphy's appointment," Mr Ruddock said.
"Mr Murphy brings to his new position considerable experience and expertise in the family law jurisdiction."
"I am sure he will make a positive contribution to the law in his new capacity as a judge of the Family Court of Australia."
Mr Murphy was first admitted as a solicitor in Queensland in 1978. He practised as a barrister in private practice from 1990 until 2004, when he was appointed as a Senior Counsel. Mr Murphy is an accredited arbitrator and mediator.
Mr Murphy has been a contributing author to Family Law in Australia and at the time of his appointment was a member of the Family Law Section, Law Council of Australia, and of the Australian Institute of Family Law Arbitrators and Mediators.
He has written extensively on family law and, over the last decade, has presented many papers in Queensland and elsewhere throughout Australia.
Mr Murphy will be based in Brisbane.

Monday, 15 October 2007

Federal Magistrates Court: Appointment of New Federal Magistrate


Attorney-General Philip Ruddock announced the appointment of Ms Susan Purdon-Sully as a Federal Magistrate, based in Brisbane.

"Ms Purdon-Sully brings to her new position considerable experience in, and knowledge of, family law and dispute resolution," Mr Ruddock said.
At the time of her appointment, Ms Purdon-Sully was a partner in the Brisbane legal firm of Hopgood Ganim Lawyers, and a Fellow of the International Academy of Matrimonial Lawyers.

Until recently she had also been a member of the Family Law Council of Australia.
Ms Purdon-Sully has been an Associate Instructor of the Dispute Resolution Centre at Bond University and a member of the Alternative Dispute Resolution Committee of the Queensland Law Society.

She is a Past President of the Queensland Women Lawyers Association and, in 2005, co-edited A Woman's Place - 100 years of Queensland Women Lawyers.

Ms Purdon-Sully will take up her appointment on 15 October 2007.
"It is with great pleasure that I announce Ms Purdon-Sully's appointment," Mr Ruddock said.

"I look forward to the further valuable contribution to the law I am sure she will make in her new capacity as a Federal Magistrate."

Family Court, Federal Magistrates Court: New Court fees

The Federal Government has announced changes to the court fees that apply in the Federal Magistrates Court and Family Court of Australia in family law matters effective 15th October.

"These changes have occurred in an effort to align the fees between the two courts. Other court fees will be reviewed in line with the normal fee review process."

As an example, filing an application (or response) for final orders currently attratcs a fee of $121 and $191 for the Federal Magistrates and Family Courts respectively, but these will be changed to $145.

For the full guide,
click here.

Guide to Child Protection legislation

Each State and Territory has different child protection legislation. The Australian Institute of Family Studies has published a useful guide, which I've summarised below. The full AIFS guide has links to the legislation websites.




Australian Capital Territory


(Department of Disability, Housing and Community Services)

Principal Acts:
Children and Young People Act 1999 (ACT)
Other relevant Acts:
Adoption Act 1993 (ACT)
Human Rights Act 2004 (ACT)
Human Rights Commission Act 2005 (ACT)
Public Advocate Act 2005 (ACT)
Family Law Act 1975 (Cth)

New South Wales


(Department of Community Services)

Principal Acts:
Children and Young Persons (Care and Protection) Act 1998 (NSW)

Other relevant Acts:
Children and Young Persons (Care and Protection) Amendment (Parental Responsibility Contracts) Act 2006 (NSW)
Child Protection (Offenders Registration) Act 2000 (NSW)
Crimes Act 1900 (NSW)
Commission for Children and Young People Act 1998 (NSW)
The Ombudsman Act 1974 (NSW)
Family Law Act 1975 (Cth)


Northern Territory


(Family and Children's Services, Department of Health and Community Services)

Principal Acts:
Community Welfare Act 1983 (NT)
Care and Protection of Children Draft Act (NT)(currently before Cabinet)

Other relevant Acts:
Information Act 2006 (NT)
Disability Services Act 2004 (NT)
Criminal Code Act 2006 (NT)
Family Law Act 1975 (Cth)

Queensland


Department of Child Safety

Principal Acts:
Child Protection Act 1999 (Qld)

Other relevant Acts:
Commission for Children and Young People and Child Guardian Act 2000 (Qld)
Education (General Provisions) Act 2006 (Qld)
Public Health Act 2005 (Qld)
Adoption of Children Act 1964 (Qld)
Family Law Act 1975 (Cth)


South Australia


Families SA: Department for Families and Communities

Principal Acts:
Children's Protection Act 1993 (SA)

Other relevant Acts/Legislation:
Young Offenders Act 1994 (SA)
Adoption Act 1988 (SA)
Children's Protection Regulations 2006 (SA)
Family Law Act 1975 (Cth)
Family and Community Services Act 1972 (SA)

Tasmania


(Department of Health and Human Services)

Principal Acts:
Children, Young Persons and their Families Act 1997 (Tas)

Other relevant Acts:
The Family Violence Act 2004 (Tas)
Family Law Act 1975 (Cth)

Victoria


(Children Protection and Juvenile Justice Branch; Department of Human Services)

Principal Acts:
Children, Youth and Families Act 2005 (Vic)

Other relevant Acts:
Working with Children Act (Vic)
Child Wellbeing and Safety Act 2005 (Vic)
The Charter of Human Rights and Responsibilities Act2006 (Vic)
Family Law Act 1975 (Cth)

Western Australia


(Department for Community Development, now the Department for Child Protection)

Principal Acts:
Children and Community Services Act 2004 (WA)

Other relevant Acts:
Working with Children (Criminal Record Checking) Act 2004 (WA)
Family Court Act 1997 (WA)
Adoption Act 1994 (WA)
Family Law Act 1975 (Cth)

Thursday, 11 October 2007

US Divorce rate falling

As recently seen in Australia, the divorce rate is falling, busting all the commentary of ever present increases.

It seems a similar trend is happening in the US, as this article in the New York Times makes clear:

The story of ever-increasing divorce is a powerful narrative. It is also wrong. In fact, the divorce rate has been falling continuously over the past quarter-century, and is now at its lowest level since 1970. While marriage rates are also declining, those marriages that do occur are increasingly more stable. For instance, marriages that began in the 1990s were more likely to celebrate a 10th anniversary than those that started in the 1980s, which, in turn, were also more likely to last than marriages that began back in the 1970s.

Child support seminar series

The Family Law Section of the Law Council of Australia is hosting a national seminar series on child support, given the huge changes that have been made.

For the full listing,clck here.

The perfect client

Posted on the Oregon Divorce Blog, and just as true in Australia.

What a lawyer thinks of as a “perfect client” in the domestic relations sense is a client who helps the process of the dissolution, custody, or support matter along. We know how hard this process is to be going through, but it can be a much more difficult process the longer it drags on — and a much more expensive one for you. (Although we like getting paid as much as anyone else, we believe we should be problem-solvers, not problem-creators.)

Good attorneys will always treat their clients — all of their clients — with the same professionalism and respect they treat any other client. However, by helping us help you, you can make the process smoother, lower your costs, and get a better result! Here are some things you can do to help your attorney in your domestic relations case, to make things run more smoothly.

Tell us everything — the good, the bad, the ugly. We want to know the nastiest things the other side might throw at us, true or not. If you have hidden sources of income, a stake in Anna Nicole Smith’s love nest in the Bahamas, or a rare coin collection, we need to know and plan accordingly.
Provide us with your tax, banking, investment, insurance, titles to cars and whatnot, and any other requested information quickly in the process (if you can bring this stuff to your first meeting, we might very well cry with joy). If you’re not in a place where you can get the information, sign a release that allows the attorney to request the information on your behalf.
Keep in contact with us. We’ll provide you with frequent updates, but there are times when we need to get in contact with you quickly, too.
Similarly, let us know the best way to contact you. If you’re one of those people who hates checking her voicemail but lives on her computer (wait, that would be me when I’m at home), let us know your email address and if that’s a better way to stay in touch.
Understand that a contested divorce may take a while, even if it ultimately settles. We want closure for you as soon as we can get it, too, but not at the expense of a good settlement for you.
If your case involves child custody, parenting time, or support, sign up and follow through with the mandatory education classes as soon as you can.
Remember that your attorney is there to give you expert advice and recommendations, but isn’t going to be able to make the final decision about whether or not you should take a settlement. He can and will tell you if it’s a good idea or a bad idea, and what the benefits and pitfalls of an offer might entail, but the ultimate decision is going to be yours.
Also, if you don’t like the way negotiations may be headed, if you change your mind about the way the case is going, or if you’re just generally unhappy about something, please say so. We’d much rather know about it (and fix it) than to find out much, much later that you’d been unhappy for a very long time.
Advice aside, we know that this may be the, or one of the most difficult times of your life. We treat all of our clients as we would hope to be treated under the same circumstances: with diligence to their case, courtesy, the utmost respect, and the highest level of customer service possible.

Won't get fooled again: negotiating with liars

Posted by Diane Levin on Online Guide to Mediation.


When it comes to negotiating, be trustworthy, not trusting--advice that many negotiation trainers give their students. Since lying may be endemic to the human condition, this is undoubtedly good advice.

But what can a negotiator do to counter deception at the bargaining table?

In "The fine art of negotiating (with liars)", an article in today's Boston Globe proffers some advice from the experts, including:


Ask negotiating partners upfront to disclose their credentials, credit record, or personal history as a way of establishing trust.

Set ground rules, requesting that bargaining be "good faith" rather than "arm's length." In the former, the parties agree to reveal everything they know to help reach a better deal for both sides. In the latter, they disclose only what's required and can mislead through omission.

Frame questions more narrowly or broadly, or make statements that will invite telling responses, if you feel your negotiating partner is providing vague, general, or yes-and-no answers.
I agree that asking questions is important. In Bargaining for Advantage, scholar and negotiation expert G. Richard Shell points to the results of a study that demonstrates something fascinating about the behavior of skilled negotiators: they ask twice the number of questions that average negotiators do. In fact, Shell reports that "skilled negotiators spend 38.5 percent of their time acquiring and clarifying information--as compared with just under 18 percent for these activities by average negotiators." Shell's advice is simple: "probe first, disclose later".

Another expert interviewed for the Globe article had other recommendations: Begin on the presumption that the person on the other side of the table is honest unless the evidence suggests otherwise. Then, "take precautions -- that includes jotting down notes during talks, putting the other person's claims in writing, and incorporating contingency clauses into agreements."

My own advice? Do like the Boy Scouts: Be prepared. Identify your goals for the negotiation, not just your bottom line, research your walk-away alternatives in advance to create leverage, and collect data that will support the dollar figures or outcomes you're seeking. And don't forget to follow Shell's advice--ask questions and listen.

By the way, don't be tempted to resort to bluffing yourself in an effort to come out ahead. It could end up costing you. According to Shell, "Bluffing distorts the information flow in negotiation in ways that can be costly. In one study, for example, 20 percent of the subjects, including some experienced professionals, ended up agreeing to options that neither side wanted due to bluffs that backfired."

Looks like in negotiating honesty may be the best policy after all--or at least the most profitable one.

Wednesday, 10 October 2007

Mandatory reporting guide

Laws vary from state to state requiring mandatory reporting of child abuse. The Australian Institute of Family Studies has published a helpful factsheet setting out the requirements from state to state.

Here is the shortened version:

Mandatory reporting requirements
Jurisdiction

ACT

Who is mandated to notify
Doctors, dentists, nurses, teachers, police, school counsellors, child-care providers, public servants providing services relating to the health or well being of children, young people or families, the community advocate, or the official visitor

What is to be notified
A reasonable suspicion that a child or young person has suffered or is suffering sexual abuse or non-accidental physical injury

NSW

Who is mandated to notify
Persons who deliver health care,welfare, education, children's services, residential services or law enforcement to children

What is to be notified
Current concerns that a child aged under 16 is at risk of harm


NT

Who is mandated to notify

Police; all other people with reasonable grounds

What is to be notified

Reasonable grounds to believe that a child has suffered or is suffering maltreatment


QLD

Who is mandated to notify

Doctors; nurses.
Officers employed to implement the Act 1999; all staff of residential care services.
Educational staff (teaching and non-teaching staff in government and non-government schools).

What is to be notified

Aware of or reasonably suspects a child has, is, or is likely to suffer harm.
Reasonable suspicion of abuse or neglect to a child in residential care.
Aware of or reasonably suspects sexual abuse of a child under 18 by an employee of the school.

SA

Who is mandated to notify

Doctors, pharmacists, nurses, dentists, psychologists, police, community corrections officers, social workers, teachers, family day care providers, employees/volunteers in a government department, agency or instrumentality, or a local government or non-government agency that provides health, welfare, education, child care or residential services wholly or partly for children. Current reforms include religious personnel (with the exception of disclosures made in the confessional).

What is to be notified

Reasonable grounds that a child has been or is being abused or neglected


TAS

Who is mandated to notify

Professionals working with children and employees or volunteers working in government or government-funded organisations
Any adult Suspicion of knowledge of abuse or neglect

What is to be notified

Reasonable grounds to believe or suspect that a child is suffering, has suffered or is likely to suffer abuse or neglect. Current reforms include exposure to domestic violence


VIC

Who is mandated to notify

Police, doctors, nurses and teachers

What is to be notified

Reasonable grounds that physical or sexual abuse is occurring


WA

Who is mandated to notify
Upcoming reform Court personnel, counsellors and mediators
Licensed providers of child care or outside school hours care services.
Legislation will be introduced requiring the key professions of doctors, nurses, teachers and police officers to report Allegations or suspicions of child abuse in Family Court cases.

What is to be notified

Allegations or suspicions of child abuse in a child care service.
When they have evidence that child sexual abuse has occurred or is occurring

Named in the top family law blogs!

Now for a bit of shameless self-promotion.

We have been named in the top international family law blogs by prenuptial agreements.org .

We join a distinguished group of mainly US and two British blogs (and we are the only one from Australia).

Thank you prenuptial agreements.org - a complete and pleasant surprise.

Friday, 5 October 2007

Victoria makes economic abuse a crime

Victoria is now legislating to make economic and psychological abuse a crime. According to one commentator, Judith Peirce in the Age, Victoria is now serious about tackling domestic violence.

For her comment, click here.