Wednesday, 30 July 2008

New ICL training

The Family Law Section of the Law Council of Australia has announced that the next independent children's lawyers' training will be in Perth 5-6 September 2008 and that there is a strict limit on the number of delegates and registration closes 22 August 2008.

The program is aimed at practitioners who wish to become an Independent Children's Lawyer or recently appointed ICLs. It has been designed in conjunction with the Family Court of Australia, the Federal Magistrates Court, the Family Court of Western Australia, the Family Law Section of the Law Council of Australia and National Legal Aid.

The brochure is available on the Family Law Section website.

Tuesday, 29 July 2008

Rudd starts national framework for child protection

The Rudd Government has released a discussion paper to hopefully have by the end of 2008 a national framework for child protection.

Here is what the executive summary says:

There is potential for all governments to do better in preventing the circumstances in which child abuse and neglect are often found; and in ensuring the wellbeing of all Australian children.

The final framework will clarify the Australian Government’s role and will be a practical working document outlining concrete actions to be undertaken by governments and other players.

In light of the unacceptable and increasing numbers of substantiated cases of child abuse and neglect, the Australian Government has committed to developing a national framework for protecting children, and has released this discussion paper to canvass ideas on what should be included.

Child abuse and neglect cannot be easily disentangled from issues such as poverty, homelessness, drug and alcohol addiction, domestic violence, mental health issues and social isolation. Understanding the ways these factors inter-relate and developing strong connected solutions require the effort and attention of all levels of government, non-government organisations providing key services and support for families, and the broader community. This will form a key part of the Australian Government’s new social inclusion agenda.

The paper acknowledges the policing and statutory role of State and Territory Governments in responding to allegations of child abuse and neglect. However it highlights the potential for all governments to do better in preventing the circumstances in which child abuse and neglect are often found; and in ensuring the wellbeing of all Australian children.

The actions proposed for inclusion in the framework are those where there is room to improve connection and coordination across various parts of the system and across jurisdictional boundaries; where a national approach would ensure better use of resources; or where the Australian Government could make use of its policies and programs to ensure children are better protected.

The final framework will clarify the Australian Government’s role and will be a practical working document outlining concrete actions to be undertaken by governments and other players. Some are already being implemented; others would require change in approach or new commitment.

Key measures for consideration in the framework are:

Stronger prevention focus
Better use of early intervention family support services
Enhancing Centrelink’s role to identify and refer vulnerable families
Targeted action on parenting and alcohol misuse
Promotion of good parenting
Support for families to protect children online
Better collaboration between services
Income management – including Northern Territory and Cape York models
National Plan to Reduce Violence against Women and Children
A national mechanism to plan future work and investments
A solution driven national research program
Additional child focus in adult specialist services
Improving responses for children in care and young people leaving care
National standards and monitoring of the out-of-home care system
Support for foster carers and informal carers
Improved assistance for young people leaving care
Improving responses to Indigenous children
Targeted investigative measures
A common approach to protecting Indigenous children
A better service model to protect Indigenous children in towns and cities
A better service model to protect Indigenous children in remote communities
More responsiveness to Indigenous children’s issues within existing services
Supporting compliance with the Aboriginal placement principle
Northern Territory Emergency Response review
Attracting and retaining the right workforce
A national workforce strategy
Specific Indigenous workforce strategy
Improving child protection systems
Identifying national indicators of child wellbeing
National standards and performance reporting
Improving data collection and knowledge sharing
Better sharing of police intelligence across jurisdictions
The issues and proposals outlined in this paper are intended as a starting point for discussions over the next three months with key stakeholders, experts and those with direct experience of child protection systems. Other ideas and viewpoints are welcome. It is intended that the national framework for protecting Australia’s children will be finalised before the end of 2008.

Monday, 28 July 2008

Attornies-General to become White Ribbon Day Ambassadors

The Standing Committee of Attorneys-General, meeting in NZ, has announced that on the eve of the 25th Anniversary of the Convention on the Elimination of all forms of Discrimination Against Women, all Ministers agreed to become ambassadors of the White Ribbon Foundation, signalling their commitment to reducing violence against women.

About November 25 White Ribbon Day

White Ribbon Day is the largest effort by men across the world, working in partnership with women, to end men’s violence against women.

On November 25, hundreds of thousands of people around the world will be wearing white ribbons to encourage all men to speak out against violence towards women.

[Disclosure: I am a director of Australia's CEO Challenge, which receives funding from the Queensland Government for White Ribbon Day activities in Queensland.]

The History of White Ribbon Day

On November 25, 1960, the three Mirabal sisters from the Dominican Republic were killed for their political activism. The sisters became known as the “Unforgettable Butterflies” and became a symbol of the crisis of violence against women.

White Ribbon Day was first introduced in Canada in 1991 after the shooting of 14 female students at the University of Montreal. In the first year, 100,000 ribbons were distributed to men across Canada. White Ribbon Day has now spread to countries on every continent and has the support of UNIFEM and Amnesty International.

In 1999, the United Nations declared November 25 as the ‘International Day for the Elimination of Violence Against Women’.

Sunday, 27 July 2008

Family Court Rules altered about costs


The New Costs Regime after 1 July 2008

Registrar Belinda Micallef

DATED: 29 February 2008

(and updated 7 July 2008)

Background to paper/topic

From 1 July 2008, the Family Court of Australia will no longer regulate lawyer/client costs in certain cases.

Generally, those cases include those that are commenced in the court after 1 July 2008. For these cases, regulation of lawyer/client costs will fall to the state or territory regulatory body.

Note – Due to time constraints, this paper is not intended to provide a summary of the state law that is going to apply following the changes. The paper addresses only how the changes to the Family Law Rules will impact on family law practitioners and the involvement of the Family Court in issues of costs following 1 July 2008.

Why the change?

Practitioners may recall receiving a letter from the Principal Registrar of the Family Court on or about 16 February 2007 informing them that the Judges of the Court had made an “in-principle decision that the Court should withdraw from its role in regulating practitioner and client costs”.

The Principal Registrar invited comment and feedback regarding the Judge’s decision. That comment and feedback was received from, inter alia, the Law Society of NSW and the Family Law Section of the Law Council of Australia who were both supportive of the proposed changes.

The changes mean consistency. In most other areas of law, lawyer/client costs are regulated by a single regulatory body. The changes will also bring the Family Court in line with the Federal Magistrates Court.

Costs in the Federal Magistrates Court

Since its inception in 2000, the Federal Magistrates Court has been operating using state laws to govern lawyer/client arrangements in Family Law matters. It then raises the question – have family lawyers taken this into account when entering into costs agreements with their clients when commencing proceedings in the Federal Magistrates Court? Further, how does this impact on costs between a lawyer and client when proceedings are commenced in the Family Court, but are then transferred to the Federal Magistrates Court? Food for thought……!

The changes bring the Family Court and Federal Magistrates Court approach to lawyer/client costs into line.

Note – Rule 21.09(3) of the Federal Magistrates Court Rules 2001 provides; “Unless otherwise provided, these Rules do not regulate the fees to be charged by lawyers as between lawyer and client in relation to proceedings in the Court.”

What does the change mean?

The new regime introduces the new concept of “fresh application” (see the definition below). The changes mean that for any fresh application commenced after 1 July 2008, the Family Law Rules will no longer cover lawyer/client costs. Accordingly, entering into costs agreements and any issues about payment of lawyer/client costs will be regulated by the state/territory regulatory body.

Family Law practitioners should be aware that the existing provisions of the Rules relating to the regulation of costs will continue in full force and effect for all pending and ongoing matters already filed in the Family Court as at 1 July 2008 (except this is now covered by Schedule 6 to the Rules rather than Chapter 19 – see below for further details), unless a client in a pending or ongoing matter on or after 1 July 2008 retains a new solicitor; or where the solicitor and client freely agree that the provisions of the Rules dealing with the regulation of costs should no longer apply to their financial relationship. If either of these things occur, the regulation of the legal costs relationship will be by the relevant State or Territory legislation.


For lawyer/client costs only, State/territory laws will apply to;

1) all fresh applications (in accordance with the definition);

2) where a new solicitor comes into a matter on or after 1 July 2008; or

3) where a lawyer and client agree in writing that the old costs rules no longer apply to their financial relationship.

What about party/party costs?

There are no changes to the rules dealing with party/party costs. In other words, the Family Court has no plans to withdraw from the area of party and party costing. However, party/party costs for fresh applications are covered by Chapter 19, whereas party/party costs in all other matters are now covered under Schedule 6 to the rules (refer below).

New terminology – “fresh application”

The Dictionary to the Rules will contain the definition of “fresh application” which we will be as follows;

Fresh application means any of the following applications, including compliance with pre-action procedures associated with them, made after 30 June 2008:

an Application for Final Orders;
an application that includes an application for final orders;
an Application in a Case filed in connection with a fresh application;
an Application for Divorce;
an application for consent orders;
a contempt, contravention or enforcement application, unless an allegation of the contempt, contravention or breach relates to an interim or interlocutory order made in a pending or ongoing Application for Final Orders filed before 1 July 2008;
an application relating to contempt in the face of the court arising from an event occurring after 30 June 2008;
an appeal, and a re-hearing following an appeal;
an application for review of final orders made by a Registrar or Judicial Registrar.

The reference to “including compliance with pre-action procedures associated with them” means that where costs are incurred in complying with pre-action procedures before the application is actually commenced (when that application is to be commenced after 1 July 2008), the totality of the costs are dealt with together (ie. under the State/Territory laws).

How do the Rules look different?

The previous Chapter 19 of the Family Law Rules will colloquially be known as the “old costs rules” and will be found, in their entirety, in a new Schedule 6 to the rules.

When contemplating the rearranging of the rules, consideration was given to the fact that where work is done for a case that is pending as at 1 July 2008, lawyers and clients would need to make reference to the old costs rules for the purpose of their rights and obligations in relation to lawyer/client costs. It was recommended that that be achieved by the entirety of Chapter 19 being replicated in a schedule to the rules which expressly applies to those cases that are not regulated under the new regime. It was considered that the structuring of the Rules in this way was the best method to avoid confusion about what rules apply to what cases.

This means that primarily, the only need for reference to Chapter 19 after 1 July 2008, is in relation to party/party costs for fresh applications (and things like security for costs, etc).

A new provision

There will also be a new rule in Schedule 6 (under Part 6.4 – Lawyer and client costs) which confirms that the Schedule does not apply for work done for a case, paid or payable by a client to a lawyer;

for a fresh application commenced after 30 June 2008;
by a lawyer who is first retained by a client on or after 30 June 2008, even if the case in which the lawyer is retained to act is pending on 30 June 2008; or
if the lawyer and client agree in writing, and free from undue influence, that the Rules no longer apply to the regulation of the costs to be charged.

Schedule 6

The start of Schedule 6 will look like this;

Summary of Schedule 6

Schedule 6 regulates;

party/party costs in relation to applications that are not covered by Chapter 19; and
the charges of lawyers in family law cases that commenced before 1 July 2008 as provided in subclause 6.01(1), except;
for a fresh application commenced after 30 June 2008;
under a new agreement between the lawyer and client entered into after 30 June 2008;
under a retainer entered into by a new lawyer after 30 June 2008; and
for any part of a case in which a Family Court is exercising its bankruptcy jurisdiction.
Chapter 26 contains provisions which regulate the charges of lawyers for a part of a case involving bankruptcy matters.

Clause 6.01 Application of Schedule 6

This Schedule only applies to costs for work done for a case, or in complying with pre-action procedures associated with a case, that commenced before 1 July 2008.
Subject to subclause (4), this Schedule applies to costs for work done for a case, or in complying with pre-action procedures, pair or payable by:
a client to a lawyer;
if paragraph (a) does not apply — one person to another person.
(3) For work to which this Schedule applies, a party may only recover costs from another party in accordance with these Rules or an order.

Note A self-represented party is not entitled to recover costs for work done for a case (except work done by a lawyer) but, if so ordered, may be entitled to recover some payments.

(4) This Schedule does not apply to costs in any part of a case in which a Family Court is exercising its jurisdiction under section 35 or 35B of the Bankruptcy Act.

Chapter 19

Chapter 19 will now have the heading “Party/party costs” although Rule 19.01 confirms that the Chapter;

applies to costs for work done for a case, or in complying with pre-action procedures, in relation to a fresh application, paid or payable by one party to another; and
creates a duty for lawyers to give information about costs to their clients.

This means that Chapter 19 still requires lawyers to give costs notices to parties at certain times throughout a case.

Chapter 19 will still cover;

Security for costs;
Costs orders;
Calculation of costs;
Claiming and disputing costs (including the assessment process);
Specific costs matters; and
Review of assessment;
albeit there are some changes amongst the existing rules.

There is also a duplicate of these matters in the new Schedule 6 to the rules because don’t forget, Schedule 6 is basically a “copy and paste” of the previous Chapter 19.

When did the new Rules commence?

1 July 2008

This means that practitioners should already have started to think about what costs agreements they enter into with their clients – including;

existing clients that have pending or ongoing matters as at 1 July 2008 where they consent to the lawyer/client cost relationship being governed by the state regulatory body;
new clients who have pending or ongoing matters as at 1 July 2008; and
new or even existing clients who may commence proceedings after 1 July 2008.

New definition of costs agreement

In the Dictionary to the Rules, there will be a new definition of costs agreement as follows;

Costs agreement means a written agreement between a party and the party’s lawyer, about the costs to be charged by the lawyer for work done for a case for the party, in accordance with:

for an agreement entered into before 1 July 2008 – clause 6.15 of Schedule 6; or
for an agreement entered into after 30 June 2008 – the law of a State or Territory.

The practical implications for family lawyers

Family lawyers will now need to ensure they are entering into the correct costs agreement with a client based on;
whether the case is pending or ongoing as at 1 July 2008;
whether they are a new lawyer for a case that is pending or ongoing as at 1 July 2008;
if it is a fresh application; or
if the lawyer and client agree to enter into a new costs agreement under the new regime.
Family lawyers will still be required to give costs notices;
After an offer to settle is made during a property case; and
Immediately before each court event.
Party/party costs will still be governed/regulated by the Family Court and Family Law Rules except some cases are covered under Chapter 19 and some cases are covered under Schedule 6.

Further changes to the costs rules

As both the court and practitioners become accustomed to the new costs rules, and the set-up of those costs rules, further ‘cosmetic’ changes may be required. These will be monitored by the courts Rules Committee.

Costs notices

Practitioners should be aware that there are now 2 costs notice brochures, namely;
A Chapter 19 costs notice – which covers only party/party costs for fresh applications; and
A Schedule 6 costs notice – which covers;
party/party costs for all matters that do not fall within the definition of fresh applications; and
lawyer/client costs for matters where the following does not apply;
(i) a ‘fresh application’ matter;

(ii) where a new solicitor comes into a matter on or after 1 July 2008;

(iii) where a lawyer and client agree in writing that the old costs rules no longer apply to their financial relationship; or

(iv) where the court is exercising its bankruptcy jurisdiction.

Saturday, 26 July 2008

Problems with Property Settlement: 1. Division 7A Income Tax Assessment Act

When I was a junior solicitor many years ago, I was staggered to see that private companies lent money to their directors and shareholders, which was never repaid, and for which no tax was paid by the directors and shareholders. I wondered how this could happen. Well of course it was a loophole, and was often used.

Then in 1997 this all came to an end with the enactment of Division 7A of the Income Tax Assessment Act, which deemed these payments to be dividends, on which tax was payable in the hands of those receiving them.

Naturally, there was an exception, and that was no surprise- if companies lent to their shareholders/directors on commercial terms, then subject to the guidelines of the Australian Tax Office, those payments were loan amounts and were not subject to the deemed dividend provisions of division 7A.

Why this is relvant to family law

Experienced family lawyers like me know that the way of solving clients' problems is usually not to act alone, but as part of a team that can help the client.

When looking at balance sheets of the family companies, it is important to identify if there are any loans outstanding to family members. if there are, it is necessary to identify if the loans are commercial within the ATO guidelines- otherwise there may be a large amount of tax payable.

It is usually at about this point (if it hasn't happened sooner) that I call in the experienced chartered accountant, who is able to tell me what problems there might be with this company, including what Division 7A pitfalls there might be, and how to fix them. The latter might occur, for example, by the company formally declaring a dividend, and then crystallising the tax paybale by the parties.

This obviously requires some co-operation on the part of both parties, as it's not something that would be ordered by a court. Why should a court be involved in tax planning for the parties? That's their responsibility, not the court's.

It is essential to be able to identify if a potential Division 7A problem may exist. Too late, and your client might have to pay substantial tax- and then come after the lawyer who persuaded him or her to enter into the deal, but didn't warn of potential tax problems.

Friday, 25 July 2008

Federal Magistrate Court case - money tied up in a loan account

In the recent Federal Magistrate Court case of Baxter and Warren, Federal Magistrate Howard awarded the wife 20% of the property when the parties had been together for just over 3 years, but when it was clear that she had significant ongoing health problems.

Out of a pool of about $290,000, about $280,000 was held by the husband in a loan account in a discretionary trust- which he did not control but was controlled by his father.

His Honour found that the trust was the father's entity but that it was a "certainty" that the husband could receive the whole of the $280,000 if he sought it.

His Honour considered that the wife spending $45,000 post-separation was legitimate in light of her health needs, and that she was worse off financially than before the marriage, but in light of the division of property declined her application for spousal maintenance.

His Honour divided contributions 90/10 in favour of the husband and added another 10% adjustment to the wife under s.75(2) factors.

Thursday, 24 July 2008

Offbeat: poor Talula

Judge Rob Murfitt

Judge Rob Murfitt of the New Zealand Family Court has ordered that a 9 year old girl, who was so embarrassed about the name that her parents gave as "Talula does the hula from Hawaii" that she preferred to be called "K", become a ward of the state. That way her name could be changed to something more suitable.

Names registry staff blocked included: Fish and Chips, Yeah Detroit, Stallion, Twisty Poi, Keenan Got Lucy and Sex Fruit.

Names Registry staff allowed were:Number 16 Bus Shelter, Midnight Chardonnay, and Violence- all of which might seem to be related to the circumstances of conception.

Another mother who used text language to name her child O.crnia was allowed to change the name to Oceania.

Federal Magistrate Court case - what to do when an Independent Children's Lawyer is not chosen

The recent Federal Magistrate Court case of Lancet and Lancet is a good illustration of what can go wrong in the process of appointment of an independent children's lawyer, and the limited means of how to fix it.

The father had been arrested by police for chasing the mother whilst armed with an axe. Despite the best efforts of neighbours to restrain him, he managed to break free a number of times. All of this occurred in her home, and apparently in the presence of the children, allegedly causing them major trauma.

Clearly the type of case where the appointment of an independent children's lawyer was warranted. Living in a regional area, out of necessity the mother's application was brought before a State Magistrate, who ordered that an independent children's lawyer be appointed and be chosen by Legal Aid Victoria.

Unfortunately, when the matter came before Federal Magistrate Riethmuller, an independent children's lawyer had still not been appointed.

His Honour stated:

It must be noted that it is no part of the court’s role to determine to whom or to what extent Victoria Legal Aid funds litigation. That is entirely a matter for the Victoria Legal Aid, which is responsible to the relevant Minister and parliament for the use of the funds disbursed for that purpose: it is an administrative function, not a judicial function: see Re JJT; Ex parte Victoria Legal Aid [1998] HCA 44; (1998) 195 CLR 184.
It was submitted to me that Victoria Legal Aid undertakes what is in effect an indiscriminate allocation of 40 Independent Children’s Lawyer appointments at the beginning of each month in response to the first 40 orders received, and thereafter simply declines every other request. I do not have evidence of how Victoria Legal Aid chooses to disburse the funding it receives from the Commonwealth for family law matters. It appears to me to be remarkable if it were disbursed on an indiscriminate basis, as alleged. However, that is not a matter for the court. It is clearly a matter within the purview of the Commonwealth Attorney-General as it is the Commonwealth that provides family law funding.
It was further requested by the parties that the court ‘re-make’ the Independent Children’s Lawyer appointment order at the commencement of the following month, so that it would be received by Victoria Legal Aid within the first 40 requests for the next month. This appears to me to be entirely inappropriate. The making of another order in the same terms appears to me to be contrary to law. Once an order has been made by the court, it is not appropriate for the court to then make the same order over and over in some hope that it will make any difference. Indeed, as a matter of law once the court has dealt with an issue, that is the end of it, subject to appeals. Whilst there is the ability to alter procedural orders, there nonetheless ought to be some change in circumstances that makes the previous order inappropriate.
I have been asked by the parties to consider requiring the staff of the court, or at least my chambers staff, to post another copy of the order to Victoria Legal Aid at the start of each month until such time as the order may be actioned by them. It appears to me that this submission must also be rejected as:
If the process is designed to manipulate the system Victoria Legal Aid has adopted to determine the funding of cases (even if it is an indiscriminate grants system), it is inappropriate for the court to participate in such a scheme;
It is a very real waste of public resources to have an officer of the court simply photocopy an order and post it to Victoria Legal Aid (potentially month after month), when Victoria Legal Aid have already received a copy of the request.
If the court engaged in the practice suggested, then it would effectively be reviewing orders for the appointment of Independent Children’s Lawyers to determine whether to resubmit them to Victoria Legal Aid. The parties would be entitled to be heard if the court were not considering re-submitting the order and notice of the decision which may then be subject to judicial review if it is an administrative decision.
For the court to engage in such a process would undermine the authority of the court as it would be a tacit acceptance by the court that at least in one area that the court did not expect its orders to be respected after the expiration of one month or unless submitted a number of times.
If an Independent Children’s Lawyer is not funded by Victoria Legal Aid the appropriate review mechanism is provided for in s.34 of the Legal Aid Act 1978 (Vic). This review mechanism allows for a person affected by the decision to seek a review through Victoria Legal Aid’s review process. Adopting the system requested appears to thwart the parties’ rights of review through Victoria Legal Aid.
It remains, it seems to me, a political and administrative question as to the method by which the funding is administered (and also how much funding is provided) for what is effectively children of those families without financial resources that become embroiled in family law proceedings.
In these circumstances, at most, I would order that the parties pursue the appointment of an Independent Children's Lawyer in accordance with the orders, either by funding directly from their clients, if their clients happen to come into funds (which seems particularly unlikely) or by themselves making application to Victoria Legal Aid on behalf of their children for funding or review of funding decisions by whatever process the Victoria Legal Aid office has established in this regard, and pursuing such processes until such time as the process is reasonably exhausted, there is an appointment of an Independent Children’s Lawyer, or further orders are made in the proceedings.

His Honour also declined to order a stay of proceedings until after the appointment was made.

A contrasting case

In another recent Federal Magistrates Court decision in Coppel and Herz, Phipps FM, in a case involving a 5 month old baby, a mother who had had severe post-natal depression, and it would appear allegations of domestic violence, noted that Victorian Legal Aid had not funded a previously ordered independent children's lawyer, because of the 40 a month quota, so made another order for appointment.

How to overcome a problem when Legal Aid has not funded an independent children's lawyer

The possible answers are:
- for the parties to fund. His Honour in Lancet and Lancet indicated that he had in another recent case made such an order. These parties however did not have the money to do so.
- for the lawyers to chase up Legal Aid as soon as the initial order was made. In Queensland there was a(at least an informal) policy to decline to fund an independent children's lawyer when an order had been made for an appointment by a State Magistrate. In those circumstances, it is necessary for the lawyers to write to Legal Aid (or better to speak to the relevant officer) to attempt to get funding.
- to keep following up Legal Aid.
- if necessary, to get MP's involved. While an MP cannot interfere in an individual case, it is a legitimate question as to why there is a problem within the organisation to fund what it has been told to fund by the taxpayer. When a Ministerial is asked, it seems the first duty of a public servant is to answer that Ministerial. Sometimes this achieves results.

Wednesday, 23 July 2008

Special Issue of Family Court Review Featuring Domestic Violence and Family Courts Available Online

The July 2008 issue of Family Court Review featuring outcomes from the Association of Family and Conciliation Courts and the US National Council of Juvenile and Family Court Judges Domestic Violence and Family Courts Project is available for free online for a limited period of time at

The highly anticipated special issue features articles co-authored by interdisciplinary experts from the domestic violence advocacy and family courts community. The issue addresses topics including terminology, differentiated approaches to parenting plans, screening and cultural issues. Guest edited by Professors Nancy Ver Steegh and Kelly Browe Olson, the issue also includes the Report on Wingspread Conference on Domestic Violence and Family Courts. The Report addresses critical tensions raised by the growing awareness that not all uses of violence in intimate relations are the same.

As an example one of the articles is co-authored by renowned researchers Peter Jaffe and (Australian) Janet Johnston, on a differentiated approach in custody disputes in dealing with issues of domestic violence.

The abstract of that article states:

Premised on the understanding that domestic violence is a broad concept that encompasses a wide range of behaviors from isolated events to a pattern of emotional, physical, and sexual abuse that controls the victim, this article addresses the need for a differentiated approach to developing parenting plans after separation when domestic violence is alleged. A method of assessing risk by screening for the potency, pattern, and primary perpetrator of the violence is proposed as a foundation for generating hypotheses about the type of and potential for future violence as well as parental functioning. This kind of differential screening for risk in cases where domestic violence is alleged provides preliminary guidance in identifying parenting arrangements that are appropriate for the specific child and family and, if confirmed by a more in-depth assessment, may be the basis for a long-term plan. A series of parenting plans are proposed, with criteria and guidelines for usage depending upon this differential screening, ranging from highly restricted access arrangements (no contact with perpetrators of family violence and supervised access or monitored exchange) to relatively unrestricted ones (parallel parenting) and even co-parenting. Implications for practice are considered within the context of available resources.

The Family Court Review is the academic and research journal of the Association of Family and Conciliation Courts, published by Wiley-Blackwell in cooperation with Hofstra Law School’s Center for Children, Families and the Law.

Federal Court: Federal Magistrates Court CAN order lump sum costs

Whenever costs are ordered in the Federal Magistrates Court, the most common way in which they are ordered is by way of a lump sum- for example: "The respondent pay to the applicant the sum of $1000 costs."

The Federal Court in Ginos Engineers Pty Ltd v Autodesk Australia Pty Ltd had to decide whether or not the Federal Magistrates Court had the power to make lump sum costs orders.

The good news is that the Federal Court said that the Federal Magistrates Court did have the power to make lump sum costs orders.

In Ginos Engineers v Autodesk, an intellectual property case, Justice Finn said that it was appropriate in that case to have awarded costs on a lump sum instead of a taxed basis and that:

Rules of Court such as r 21.02(2)(a) of the FMC Rules and O 62 r 4(2)(c) of the Federal Court Rules, which empower a court to order a gross amount in costs instead of an amount determined after taxation, are well accepted as being directed to the avoidance of expense, delay and the protraction of litigation, whether the case be a complex or a simple one...

It is not uncommon, particularly, but not only, in intellectual property cases, for the court to take as its starting point the evidence of the charges for professional costs incurred and disbursements made by the lawyers of the party awarded costs – and this irrespective of whether the costs are to be estimated on an indemnity basis: cf Beach Petroleum NL at 120; or on a party and party basis: cf Universal Music Australia Pty Ltd v Miyamoto [2003] FCA 812 at [29] ff. That figure is then characteristically adjusted to take account of the acceptability of the charges made, the conduct of the proceeding, the measure of success on issues etc, to produce a sum which as a matter of judgment is neither overcompensatory nor prejudicial to the successful party. Consistent with the broad brush approach, that adjustment ordinarily is effected through the application of a discount to the figure accepted by the court on the available evidence as appropriately reflecting actual professional costs charged and disbursements made. The case law evidences wide variations in the percentages of discount sought and/or applied to reflect the exigencies of the matter in question: cf Sony Entertainment (Australia), 60%; Beach Petroleum NL, 39%, Nine Films & Television, 23%. What is clear is that a lump sum award may be in an amount that is greater or smaller than would have been the taxed costs payable...

Federal Magistrates Court case- relocating grandparents

In the recent Federal Magistrates Court case of Richards and Howard, the court had to consider what principles applied when children were in the care of their grandparents, the latter making an application to the court for urgent orders allowing them to move from the Canberra area to central Queensland.

There were circumstances of urgency in the move, as one of the sons of the grandparents was about to undergo brain surgery.

Federal Magistrate Neville held that the same principles that apply to relocation cases involving parents also applied in this case to grandparents, and allowed the move.

Tuesday, 22 July 2008

Child Support changes: Part 1

Professor Patrick Parkinson

On 1 July this year, there were two major changes with child support, following an inquiry [PDF file] headed by Professor Patrick Parkinson.

Change 1 was to the formula.

Change 2 was to the form of child support agreements.

The Child Support Agency has been going through checking child support agreements from about May, and notifying parents if they do not comply with the new laws. In posts in the next few weeks I will write about what these major changes mean.

For many parents, the changes will mean that less child support is paid. The formula at first blush seems hard to calculate, but working it through, step by step, is doable.

Federal Magistrates Court case: injuncting the boat

In the recent Federal Magistrates Court case of Deakin and Parry, Federal Magistrate Burnett had to consider what to do with a ship, the Z, which the husband had previously falsely claimed to authorities had been sunk for which he had been fined $4000.

His Honour said:

It seems, when one has regard to those matters, that there is a real basis for concern on the part of the wife that the husband may seek to do something with the vessel.
Going then to first principles, in order to obtain an injunction, of course, it is necessary to establish that there is a serious issue to be tried. There is undoubtedly a serious issue to be tried in this case. The vessel, arguably, is matrimonial property and the issue in relation to it is the manner in which its value should be apportioned between the parties having regard to the provisions of the Family Law Act. As to where the balance of convenience lies, it strikes me that having regard to the history which is apparent from the events reported in Exhibit 1 that there is, indeed, a real concern that the father may seek to do something with the vessel between now and trial which may result in either the vessel's loss, damage or disappearance and that in those circumstances it is appropriate that the vessel be protected for the benefit of the parties for the purpose of litigation and, to that end, I am content to make an order ...

as follows:

"That the parties shall forthwith appoint a single expert for the purpose of valuing the vessel “Z” being a 13 metre full cabin steel hull vessel Australian registration [1] and Queensland registration [2] and in the event that either party fails to engage such expert, then the other party shall be at liberty to call an expert valuer as an adversarial expert.
(11) That until such time as the vessel has been inspected by the single expert or valuer the husband shall be restrained and an injunction issue so restraining him from moving the vessel from its present location and thereafter the husband shall not move the vessel without providing to the solicitors for the wife the date of such proposed move and the p place to which it is intended to move the vessel."

[Disclosure: Counsel in this report is described as being Mr Page. It is not me, but presumably well known Brisbane barrister, Mr Graeme Page, SC.]

Monday, 21 July 2008

Property settlement: changes to stamp duty arrangements in Queensland

Section 90 of the Family Law Act purports to say that no stamp duty is payable arising from orders made under the Family Law Act. Back in 1981, the High Court in Gazzo v Comptroller of Stamps (Vic) held that s.90 was not valid so far as it applied to transfers of land in Victoria, in attempting to prevent Victorian stamp duty being charged.

In Queensland, the Office of State Revenue has allowed exemptions for transfers between spouses, but in theory at least has charged duty for transfers to or from third parties. This can be significant, especially if for example there is a transfer from the family company to one of the parties. I am aware from other practitioners that the practice of whether or not duty is chargeable has been inconsistent between offices.

I have recently been made aware by Sarah Minnery, a family lawyer in Brisbane, that a client of hers was so concerned about the possible stamp duty that the client joined the Commissioner of State revenue as a second respondent in family law proceedings.

Sarah said:

This client gave instructions join the Commissioner of State Revenue as a Second Respondent to proceedings in the Federal Magistrates Court for property settlement and to seek an order binding on the Commissioner that the transfer sought by my client be assessed at $0 duty.

As a result of those proceedings (which are ongoing), I have recently received notification this the Office of State Revenue has revoked Practice Direction 45.1. In-house Counsel at Queensland Treasury who represent the Commissioner in the matter, have been indicating for some months that they agree with our submissions that Section 90 of the Family Law Act overrides relevant sections of the Queensland Duties Act in so far as there is any inconsistency between the two by virtue of Section 109 of the Constitution. It now seems that the Office of State Revenue shares that view and transfers should now be properly protected by Section 90 of the Family Law Act in practice as well as in theory.

The Commissioner’s legal representatives have advised that all transfers lodged for the assessment of transfer duty claiming an exemption under Section 90 of the Family Law Act have been put on hold within the assessing area of OSR pending the determination of this issue.

On 26 June, this announcement was released by the Queensland Office of State Revenue :

New Practice Direction released

Practice Direction DA 45.1 sets out whether the Commissioner accepts that certain instruments executed in accordance with consent orders are entitled to an exemption under s.90(1)(a) of the Family Law Act 1975.

The Commissioner is currently reviewing his policy in relation to the assessment of transfers of dutiable property from a party or parties outside the marriage where the transfers are executed for the purposes of, or in accordance with, a consent order made under Part VIII of the Family Law Act.

Practice Direction DA 45.2 withdraws Practice Direction DA 45.1 as of 23 June 2008 pending the outcome of the policy review.

Thank you for advising, Sarah. Let's see how it develops.

Federal Magistrate Court case - cutting the deal is by BFA or order only

A recent Federal Magistrates Court case, Resch and Resch, is a good illustration of how, aside from death, there are only two ways to finally conclude a deal about property settlement under the Family Law Act: a binding financial agreement or consent orders.

The husband and wife attended mediation and reached agreement as to the terms of a binding financial agreement and consent orders. The wife had a change of mind and did not sign the documents. The husband sought to enforce the oral agreement.

Not surprisingly, the husband was unsuccessful, and costs were ordered against him.

[Disclosure- on reading the judgment, I realised that I am the former solicitor for the wife.]

Sunday, 20 July 2008

Federal Magistrates Court case- when not to bring a contravention application, travel overseas

In the recent Federal Magistrates Court case of Ryde and Raymond, there were two issues before the court- the father's contravention application because the mother had not allowed the 7 year old daughter A to go with the father during his time, and the mother's application to take A to Greece for a family wedding in which the mother was a bridesmaid and the child a flower girl.

When not to bring a contravention application

When things go off the rails, so that, typically, dad is not seeing his kids, often the instinctive reaction is to bring a contravention application, to set matters straight, possibly punish mum and ensure that time between dad and the kids starts again.

When matters get ugly, sometimes contravention applications are NOT the way to go and other options ought to be thought of first:
- counselling/therapy for all concerned. In the hands of a good therapist this can be very stressful and challenging, but a lot less so than going to court, and hopefully deals with the underlying issues, so that everyone can move into "the sunlit uplands of freedom" to quote Churchill
- variation on a theme- go for a family report. This is assuming both parties are able to pay for one- but a good family report writer can see what is wrong and what is right and recommend outcomes.
-bring an application to vary the existing orders. This may also mean the appointment of a family report writer and/or the appointment of an independent children's lawyer.

The father in this case did none of those, but brought his contravention application. Some of the counts were dismissed and on others the mother was found to have a reasonable excuse. What is clear is that the parties were at war with each other and that the father on one intended changeover grabbed the mother's sunglasses off her head, and on other occasions sent the mother a series of what can only be described as abusive SMS's.

On various occasions the mother brought A to changeover, when it did not happen, but an argument between the parents in front of A did. Federal Magistrate Riley was critical of the mother for exposing A to that conflict.

Of course the difficulty for the mother was that if she did not turn up, then that in itself might be the basis of a contravention application.

The other standout was what the mother had not done- she had not obtained a domestic violence order or equivalent. From the contents of the text messages she would have had ample grounds. This may in turn have allowed her to obtain a 21 day freeze of the then order at the time of obtaining a temporary protection order, under s.68R of the Family Law Act, giving her time for a break for A, and allowing her time to get before the Federal Magistrates Court.

Trip to Greece

The father, in a petty way, refused to agree to the trip because he wanted to impose on the mother the same conditions she had imposed when he had planned to go to Fiji some years before. Riley FM allowed the trip, but on the usual conditions of money being put up as security and A's passport being held securely on return.

Saturday, 19 July 2008

Federal Magistrates Court case: principles of Mareva orders

The Federal Magistrates Court in Sheehan and Sheehan had to consider the question of whether a bank account, of the husband and his new wife, which the former wife had found out about in the course of the proceedings, could be frozen.

Federal Magistrate Neville did not draw any adverse inferences against the husband, even though there seemed to be over $200,000 in that account and he had not disclosed its existence despite being under an obligation to disclose the existence of the account, but ordered that half of the money in the account be frozen.

Part of the difficulty was that the account was held by the husband with his current wife, she had deposited susbstantial sums into it, and she wanted nothing to do with the property settlement dispute between the parties.

In ordering the freezing of half the monies in the account, Federal Magistrate Neville reviewed the laws dealing with asset preservation orders, commonly called Mareva orders.

His Honour especially cited two High Court judgments by Justice Kirby about the nature of asset preservation orders:

The particular reasons given in disposing of one claim for an asset preservation order should not be converted into universal principles with invariable application. The case law in this topic is a field of single instances cultivated in a garden of interlocutory orders, nurtured in a wilderness of broad discretions. Unlike many English gardens, this one has a measure of orders stamped upon it, brought by analogy from the equitable rules developed for general injunctive relief. But excessive order and rigid rules would endanger the relief in question and be alien to its essential character....

In framing asset preservation orders, certain features must be observed. They take effect in personam. They are thus distinguished from remedies such as tracing which affect proprietary rights. They are interlocutory orders subservient to the main proceedings, but potentially vital to their utility. The grant of such relief is discretionary. They must often be provided (or withheld) in urgent circumstances where a propensity to shift assets, apparently to defeat a judgment, has already been manifested. The plaintiff must establish a real risk of assets being disposed of. No such relief should be contemplated without the provision of an undertaking as to damages. This is protective both of the defendant and of non-parties made subject to such orders. It acts as a sanction against ill considered applications or unjustified orders. It is the duty of the lawyers of the parties to remind the judge of this prerequisite. Various qualifications to the operation of such preservation orders are now well settled. [Internal citations omitted.] ...

His Honour, in a note, refers specifically to various exceptions to asset preservation orders as including legal fees, living expenses, and the payment of debts.

He then concludes part of this discussion by saying ...:
... these considerations require that a very large measure of latitude be allowed to judges as to when they consider it "appropriate" to provide such relief, with the aim of protecting the position of an actual or potential judgment creditor and the process of the Court itself. Few judges, asked for such orders, have the luxury of the extended reflection availed of by appellate courts. In expressing the applicable principles, we should not overlook the practical exigencies in which orders of this kind are typically made.

This last statement is a reminder that while it might seem a good idea going to court to freeze everything, is that absolutely necessary? What really needs to be frozen (if anything) to minimise risk and to preserve property?

Thursday, 17 July 2008

Opinion piece about impact of delays in the Family Law Courts

Sydney family lawyer Les Stubbs gave his opinion earlier this year in the Sydney Morning Herald about delays in the Family Court, and the impact on parties and their children.

Most tellingly, Mr Stubbs made this pointed observation:

But at the very least, we should try to make [the court process] easy and quick.

But we don't. Instead it can be very, very difficult. This happens because - as the legal process drags on - many believe it is easier to simply give up on the legal system and agree to whatever their combative former partner demands. This is the wrong reason to resolve disputes in the best interests of the children, and future financial security.

This has led to instances of people losing their homes to banks which are not prepared to wait until the Family Court has the time to hear the case; parties having to declare themselves bankrupt as they cannot continue to meet their debts until a hearing finally comes on; businesses going bust because a party is frustrated in running it for too long while they wait for a court hearing, and children being taken by one parent, and the other parent not being able to get into court to seek a recovery order until months later. This is simply unacceptable.

Wednesday, 16 July 2008

Justice Carmody Retires: Going out with a bang!

Justice Tim Carmody, 52, of the Family Court in Brisbane has now retired, returning to the private bar. Having all his faculties, as he told the Queensland Law Society in its Proctor magazine, and having done all that he felt that he could usefully in such a specialised jurisdiction, he felt it was time to move on.

Fair enough.

But rather than go quietly, Tim Carmody has decided to go out with a bang, or may be that should be two bangs.

Bang 1: Megan's Law

Dennis Ferguson

Recently, notorious pedophile Dennis Ferguson was released when District Court Judge Hugh Botting issued a permanent stay on proceedings against him, on the basis that his notoriety is such that Mr Ferguson could not be granted a fair trial.

A "free" man, Dennis has been looking for places to stay. As happened last time he was let out, no one wants Dennis in their backyard. He has been hounded out of Miles, on the Darling Downs, and has been pursued by all and sundry at Carbrook, just outside of Brisbane, resulting in round the clock police protection.

One of the issues that was raised in this tumult was whether members of the community had a right to know where convicted sex offenders lived. Megan's Law, a US initiative, would make disclosure by the Government mandatory. The Government and police position is that to adopt Megan's Law in Queensland would be to drive paedophiles like Dennis Ferguson underground.

Tim Carmody, who pursued pedophiles as head of the then Queensland Crime Commission before his elevation to the bench, told the Courier-Mail that in his view, in 2008 Megan's Law was appropriate for some pedophiles:

"In relation to children, you don't want a cure (for sexual abuse) because it comes too late. You want to prevent. And the only way you can prevent is to monitor (sex predators in the community)."

"While someone presents as an unacceptable risk to the safety of children, their rights are going to have to be curtailed to the extent needed to protect children."

He went on to say that the more concerning offenders were those who had refused to undertake treatment in jail, but the "tricky part" was the level of access to information.

Bang 2: Tim Carmody's thoughts on family law

In the Proctor piece, Tim Carmody had many pearls of wisdom, including these:

-"family judges deserve high praise for their dedicated and often unseen judicial efforts and achievements for the benefit of litigants and children at risk"
-"family law practitioners and other service providers who, almost without exception, do an extraordinary job under extreme pressure in meeting the competing and often conflicting demands of their clients and the court."
-in commenting on the 2006 amendments to the Family Law Act, "the most dangerous and dubious proposition is that almost all separated or divorced couples are basically good and decent people at heart who love their children more than they hate each other and are both ready, willing and able to put aside their own differences for the sake of fulfilling their social and parental responsibilities in meeting all the relevant developmental needs of their children.. Quite simply these articles of faith are not substantiated either by experience or science and are far too general to warrant the force of a statutory presumption, albeit a rebuttable one- in a "best interests" jurisdiction."
-"Merely making courts more friendly, accessible and affordable places and converting lawyers into peacemakers instead of rivals, litigants from contestants to joint carers and sharers, and court proceedings into a resolution-focussed rather than a forensic decision-making process, does not mean that aggrieved parties are likely to be any less antagonistic towards each other or any more conciliatory in their beliefs and actions over the longer term."
-"Former spouses or partners... need to change before there can be any finality to interminable bickering about domestic issues. No suite of family laws and practices, no matter how well-meaning , will eliminate intractable parental hostility or conflict, nor will they enlighten the ignorant or pacify the vengeful..."
-"You cannot legislate for goodwill"
- "(F)amily litigation should be avoided at all reasonable costs. The best time to do that is before filing court documents..."

Joining the Board

I have now joined the Board of Australia's CEO Challenge Ltd.

About CEO Challenge

Australia's CEO Challenge is an innovative program of partnerships between the business sector and the community to respond to domestic violence.

Business organisations partner with domestic violence shelters. Training is also provided to the partner business about domestic and workplace violence.

Based on a successful US model started by Jim Hardeman adapted to Australian circumstances, the program encourages organisations to:

- establish partnerships with community organisations addressing domestic violence
- support harm prevention activities through tax deductible donations or in-kind resources
- promote awareness about domestic violence within their own organisation and within the community.

Leading the way...

Denis Gately, a partner of Minter Ellison, encourages Brisbane CEOs to take up the challenge against domestic violence.

"Our relationship with the CEO Challenge program has benefits for our business and its reputation. It allows us to make a direct and meaningful contribution to systemic change in the community, and it also gives our staff a chance to benefit in ways they otherwise might not have been able to."

Tuesday, 15 July 2008

Two jailed for Contempt of Federal Magistrates Court

The Federal Magistrates Court descended into farce last week
, resulting in the jailing of a member of the public gallery who had sworn a contemptuous affidavit, and a self-represented litigant, who was in custody from Wednesday lunchtime.

Surprisingly, the case was not about family law, which comprises the bulk of the work of that court, but to do with a costs order arising from an unsuccessful attempt at a political career.

On Friday the litigant, Lesley Alexandra Noah was released from prison on the basis of three undertakings that she gave to the court: to be of good behaviour in court, to appear in court on the further hearing of the matter and (without any admission) not to harass a former Australian Electoral Commission official. The matter is next before the court in September.

Parents take out protection order against son

The Brisbane Times is reporting that parents of a 35 year old man were assaulted by him after they took out a protection order against him to evict him from his home.

Thankfully, he spent over 3 months in jail, and Magistrate Athol Kennedy gave another 2 year protection order against him and told him that if he breached it again back inside he would go.

Abuse of parents is all too common. In Queensland at least, the legal remedies are pretty straightforward when the "child" is over 18- get a protection order.

It is much more difficult for parents when the children are under 18 because in Queensland, at least, there are no legal remedies under the Domestic and Family Violence Protection Act, but there is one little used remedy, which I have used a couple of times: a warrant under the Peace and Good Behaviour Act. The benefit of a warrant is that the perpetrator is taken into custody- and overnight in the watchhouse is never fun for those unfamiliar with it, and hopefully a salutary lesson not to repeat the bad behaviour.

Now I don't know what happened to these parents after they obtained their order, but it is a clear illustration that something went wrong. When there is domestic violence, remember:
- safety first, safety always
-undertake a risk assessment first
-have a safety plan
- NEVER NEVER NEVER rely on a protection order alone- ALWAYS make sure it is part of a holistic approach.

A couple of years ago I had to obtain an urgent protection order on behalf of a mother against her violent, lazy, paranoid, drug induced son. Her worries were:
- how I do get him out of the house without fear of his coming back, and without his assaulting me in the process?
-If I throw him out of the house, I hope he will be safe and won't do something rash to himself- i am still his mother and love him and worry about hi, despite his faults.

I couldn't deal with the second worry- only the first. This is what we did:
1. Got an urgent ex parte order.
2. Lined up the local police in advance to let them know that there was a chance of the order being made that afternoon and needed IMMEDIATE police help.
3.Got the order faxed immediately after court to the police, while my client drove to the police station.
4. I phoned the police station to tell them about the order, how urgent it was and risks to my client and to ensure no mucking about.
5. Within the hour of the order being made, boys and girls in blue turned up at the home, order in hand and chucked him out.
6. My client then changed the locks and put extra security in place.
7. Son did not misbehave and did not challenge the order, which then became a final order.

Monday, 14 July 2008

Federal Magistrates Court- Practice Direction

The Federal Magistrates Court has issued a new practice direction, which makes sense because of the changes to the requirement for a certificate from a registered family dispute resolution practitioner:

Practice Direction: No.2 of 2008
Practice Note No 1 of 2008 1 March 2008 is revoked and the following Practice Note is substituted
Applicants wishing to apply for an order under Part VII of the Family Law Act 1975 are required to provide a certificate from a registered family dispute resolution practitioner, unless they fall within the exception to this requirement under s 60I(9). From 1 July 2008, the exception under section 60I(5) ceases to apply.
This requirement will apply to all applicants for an order under Part VII, including those seeking changes to an existing order.
This Practice Direction sets out the procedural requirements for applicants 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.

Family Court, Federal Magistrates Court fees go up

As happens on 1 July each year, the Federal Government has increased the fees payable to the Government in both the Family Court of Australia and the Federal Magistrates Court of Australia:

Family Court of Australia Fees from 1 July 2008

$682 Application for divorce

$682 Application for Nullity

$682 Application for declaration as to validity

$155 Application for final orders

$155 Response to an application for final orders

$534 Hearing fee (defended matters)

$534 Notice of appeal from a court of summary jurisdiction

$840 Notice of appeal to the Full Court including an appeal from the Federal Magistrates Court

Federal Magistrates Court Fees from 1 July

$432 Application for divorce

$155 Application (for children or property)

$155 Response, seeking different orders sought by applicant
(for children or property)

$390 Hearing fee/Setting down fee (defended matter)

Nil Child Support Application/Response

It should be noted that exemptions apply due to financial hardship, for example that the person is in receipt of a pension.

Just to be clear- these fees are NOT payable to lawyers- they are a tax payable to the Government, representing a very small portion of the cost to the taxpayer for operating these courts.

Saturday, 12 July 2008

ADHD draft guidelines released

ADHD is an issue often seen in the Family Law Courts, and very often one hears a parent, usually the mother, saying that the child has ADHD and the other parent, usually the father, saying that the child does not, but is just an active child. There is often then an argument about diet, with the parent with whom the child lives, usually the mother, insisting that the child needs to follow a special diet and the other parent saying that there is no need.

There is often controversy between the parties about whether or not the child has been diagnosed with ADHD, and if so, whether the child has been properly diagnosed.

Into the midst of this conflict, the Royal Australasian College of Physicians has released draft guidelines [PDF file] for attention deficit hyperactivity disorder, with public comment until 28 July.

In the words of the College:

Attention deficit hyperactivity disorder (ADHD) is a common condition which begins in childhood and often persists through adolescence and into adult life. The core symptoms are poor impulse control and lack of sustained attention. Many individuals with ADHD have one or more associated problems, such as learning difficulties, anxiety, autism spectrum disorders or tics. People with ADHD often find it hard to enjoy life to the fullest and achieve their potential. The flow-on effects of ADHD can have a significant impact on families, schools, workplaces and the community more broadly. We hope to prepare a guideline which will improve the assessment, treatment and care of people with ADHD in Australia.

The College estimates that about 7% of Australian children have ADHD, which is similar to overseas figures. About 67% of children with ADHD will have it in some form as adults.

There are series of checklists to be undertaken before ADHD is diagnosed, and the draft guidelines call for diagnosis by a clinician based on clinical practice and expert opinion.

There are proposed very strict guidelines about when ADHD should be prescribed for preschoolers when assessment should be undertaken especially thoroughly and:

it is essential to distinguish ADHD symptoms from normal developmental variation in impulsivity and attention.

For school age children,adolescents and adults, medication including ritalin is seen as first line treatment, and:

elimination and restriction diets may be of limited or no benefit in treating ADHD... If a special diet is instituted, it should be under the careful supervision of a health professional.

Assessment of school aged children and adolescents:
should cover the presence and functional significance of
comorbidities, including learning disabilities, anxiety/depression, and disruptive behaviour disorders. This could include use of broad-based screening questionnaires.

Section 60I certificates now required in "all" cases

Until 30 June parties going to the Family Court or the Federal Magistrates Court about children needed to obtain a section 60I certificate from a registered family dispute practitioner, although there were exceptions, such as there having been proceedings which had started before 30 June 2006, or there were circumstances of urgency or issues such as domestic violence or child abuse.

From 1 July, the exception for pre June 2006 has now been removed, and it has been suggested that ALL these cases now need a certificate. I do not know what that actually means in practice. One would think that there wouldn't be many matters still floating around from pre 30 June 2006, and if they are still going, one would wonder what use these certificates are- if people hate each other that much one would have to wonder what help mediation would be.

Super Splitting part 3- Accumulation Fund or Defined Benefit?

It is vitally important to know what type of fund a member spouse might have. In a case of it's not all beer and skittles, it is NOT the case of just getting an agreement, getting an order and splitting the super.It is important to know what you are splitting, as this might be vitally important to know how valuable the member's interest might be, and after getting financial advice, what is the best approach in dealing with that interest.

To recap on parts 1 and 2: Part 1 of super splitting was seeing if you were married or de facto (including same sex partners)- although this is likely to change for those de facto and same sex partners who split up if and when the proposed amendments to the Family Law Act come into force; Part 2 of super splitting was whether the superannuation fund was an Australian superannuation fund or an overseas superannuation fund.

Whilst there are a number of superannuation funds that are capable of being split, including retirement savings accounts and partly vested funds, the two most common types of funds are accumulation funds and defined benefit funds.

Accumulation Funds

Accumulation funds are the one that most of us have and are very easy concepts to understand: they are like bank accounts. They work like this: money is paid into the account, fees come out, hopefully the fund makes some money, and all things being equal - the fund grows in value. In general accumulation funds are really easy to split because, being similar to a bank account the money or value is sitting in the account and can in most cases be easily divided.

Defined Benefit Funds

These are the older type funds, commonly found with government, Qantas, and some private employers.

The numbers of members for these are much fewer, but because many of the members have been in these funds for a long time, and because they are often generous in benefits, the value of total superannuation in Australia was not too long estimated at about half the total value of super.

A defined benefit fund works like this. Somewhere, usually in the trust deed of the fund, but sometimes in legislation, and confusingly sometimes a mixture of both, the fund says that upon the happening of a certain event then the member shall be paid a defined benefit. This is often calculated by some formula based on the member's final leaving salary, but there can be bells and whistles attached, such as how long a member has been in the fund, CPI adjustments and the like. One can never be too careful in dealing with a defined benefit fund, and one should always endeavour to obtain a copy of the trust deed to work out what the defined benefits are.

There are some other features of defined benefit funds that jump out:
- a valuation should in most cases be formally obtained, although some funds such as Qsuper provide good valuations;
-these funds often have fund specific methods of valuation that have been approved, as opposed to the usual family law method of valuation. Value it on the wrong method of valuation and you might be out by thousands of dollars!;
- members who think that they are in one fund might discover that they are in fact in two. For example, a member of the Queensland public service might find themselves as a member of the accumulation fund alone, or the defined benefit fund alone, or a member of both funds;
- some defined benefit funds do not have any money or much money in them- therefore any split now cannot occur because there are no benefits to be split- they will only crystallise when the member retires- meaning that the non-member spouse may have a separate fund in that defined benefit fund until the member retires. NONE of the State and Federal schemes were fully funded, except Queensland. By virtue of the Commonwealth schemes being the largest, the Howard Government decided to ensure that these funds could be split and non-member spouses could rollover their benefits into other funds;
- it is so important to read the fine print. I cannot emphasis this enough. I had a number of clients who worked for the ATO and it is fair to say that the Comsuper fund is probably the most complex around.It not only has bells and whistles, but lights, camera and action as well. No wonder the Commonwealth quarantined it so future public servants could not join it! Depending on the method of valuation, a member's interest might vary greatly- for example between $200,000 and $1M!
-self-managed super funds are almost invariably accumulation funds. However, one I came across some years ago was a defined benefit fund. Again it is important to get a copy of the trust deed.
- there may be real benefits remaining in a defined benefit fund and splitting the accumulation fund. As usual, get good financial advice from an independent financial planner.

Next: Super Splitting Part 4- valuing the member's interest

Friday, 11 July 2008

Lawyer killed: Dangers of family law

According to the American Bar Association Journal, US lawyer Xia Zhao was recently killed. Jason Cai, the former husband of Ms Zhao's late client has been charged with Ms Zhao's murder, and was previously acquitted of his former wife's murder. Ms Xhao was pursuing Ms Cai for the wrongful death of her client.

For all those who consider that all family law cases can be successfully resolved by dispute resolution or mediation, the ugly reality is that there are some people, mainly men, who are prepared to use violence and threats of violence, to get their own way, and are not prepared to let anyone stand in their way.

These problems are NOT limited to the US. On a number of occasions I have been threatened with death or physical injury, or stalked - just for doing my job. I have been told by other family lawyers in Brisbane and elsewhere how they have also been threatened.

The unfortunate truth is that lawyers who practise in family law will from time to time come across violent, difficult and unstable people who may well follow through on their threats. Ms Zhao's death is a timely reminder to all family lawyers that risk assessment and safety planning is not the province of the client alone, and should be embraced by lawyers.

Thursday, 10 July 2008

NZ TV presenter admits Domestic Violence issues

At a time when there have been numerous shocking domestic violence issues in the news in Australia:
- father from New South Wales beats his wife, but is seen as a "good dad" and when she escapes he murders the children and kills himself
- grandfather in New South Wales is charged over the deaths of his wife and their grandchildren, and the assault of his daughter, a police officer
- husband in Queensland is charged with the murder of his Hervey Bay wife, whose burnt body, police allege, was found in northern New South Wales

comes news from New Zealand, where it appears that one of the country's top TV presenters is accused of assaulting (which he is reported as admitting) and breaking the back of his former partner Kirstin Dunne-Powell in four places, leaving her in a wheelchair. There is nothing on the public record about the extent of the assualt, as it was covered by a confidentiality agreement. Police are apparently now investigating. If true, this shows, yet again that domestic violence occurs in all societies and in levels of society- it is not a case that domestic violence just occurs in poor neighbourhoods and not in rich ones.

Super splitting part 2- Australian or overseas fund?

Super splitting- Australian or overseas fund?

Whether we like it or not, Australian courts can't split super in overseas superannuation funds. If a spouse has an overseas super fund, the two most obvious explanations are either that the member has previously worked overseas, eg the UK, or there is an element of tax planning.

If the former, and the amount is substantial, then it may be wise to obtain expert advice, as it may be possible to rollover super from the overseas fund into an equivalent Australian superannuation fund and then split it here.

Although it may be possible to rollover from overseas (and most of the time it is not), one of the matters to be considered is whether by rolling over into an Australian super fund crystallises a big tax debt. If so, is it wise to rollover? Again, expert advice may be required.

Yes, this sounds like an expensive exercise- but if it is possible to get overseas superannuation into an Australian superannuation fund and then to split it here, then it may be worth it.

Tax planning funds

Sometimes a spouse might have come up with the idea of "creating" an overseas super fund, for tax planning purposes. This might be in a tax haven, such as the Cayman Islands, Panama or the like, or even as close to home as New Zealand.

If a spouse has taken such a move, the first step is to- get advice! The matters to be considered are:
- does the fund really exist? This might sound like a stupid question, but it's one to be considered. Many years ago I acted for a property developer who each month paid principal and interest on a loan to an overseas company. The books of account showed that,as did all the paperwork. However, he fessed up that it was all a fiction- there was no overseas company, and all the paperwork was created for a tax dodge.
-if the fund exists, are there impenetrable barriers of paper that makes it hard to agree with Tom Cruise: "Show me the money!" Again, the answer is- get advice.
- while the overseas super fund was created to minimise tax, its creation might have been to create a tax problem, potentially a big tax problem! The tax problem might be much larger than the super fund is worth. Again, get expert advice, preferably from a forensic accountant.

What if the overseas super fund can't be touched?

For a variety of reasons, it may be that the fund can't be touched. Its existence is not ignored. As part of step 1 of the property process, its value still needs to be determined, and it is taken into account as a financial resource of that party.

What that means, ultimately, is that while the overseas super fund isn't part of the property pool, the court can say that the member spouse has an interest in that fund.There would then be an adjustment in favour of the other spouse under step 3 of the property process, ie under section 75(2) of the Family Law Act.

Wednesday, 9 July 2008

Performance Bonuses Given to Family Relationship Centres

Of the original 15 Family Relationship Centres, about half have been rated as exceptional or highly. None of the centres in Brisbane, Sydney or Melbourne rated as high or exceptional.

Here are how the Family Relationship Centres rated State by State: I have given an A for exceptional
B for high
C for other

Queensland Family Relationship Centres

B Townsville
C Strathpine

New South Wales Family Relationship Centres

A Sutherland
B Lismore
C Wollongong

ACT Family Relationship Centres

C Canberra

Victoria Family Relationship Centres

A Mildura

C Sunshine

Tasmania Family Relationship Centres

A Hobart

South Australia Family Relationship Centres

A Salisbury

Western Australia Family Relationship Centres

A Joondalup

Northern Territory Family Relationship Centres

A Darwin

Tuesday, 8 July 2008

New Family Relationship Centres Open

Federal Attorney-General Robert McClelland has announced that another 24 family relationship centres opened on 1 July, bring the total to 64. The new centres are at:

New South Wales

Bankstown Ground Floor, 8 Jacobs Street,
BANKSTOWN 02 9707 8555
Bathurst 91 Seymour Street, BATHURST 02 6333 8888
Coffs Harbour 24 Park Avenue, COFFS HARBOUR 02 6659 4100
Dubbo 138 Darling Street, DUBBO 02 6815 9600
Erina 213 The Entrance Road, ERINA 02 4363 8000
Northern Beaches First Floor, 651 Pittwater Road,
DEE WHY 02 9981 9799
Parramatta Level 3, 16 Parkes Street, PARRAMATTA 02 9895 8144
Sydney City 118 Sussex Street, SYDNEY 02 8235 1500
Tamworth 2/127a Bridge Street,
TAMWORTH WEST 02 6762 1783 or 02 6763 7200
Taree46 Victoria Street, TAREE 02 6551 1200


Broadmeadows Level 1, 1100 Pascoe Vale Road,
BROADMEADOWS 03 9351 3700
Chadstone 41 Stamford Road, OAKLEIGH 03 9564 6999
Melbourne City 379 Collins Street, MELBOURNE 03 8625 3666
Shepparton 74 Wyndham Street SHEPPARTON 03 5820 0444
Warrnambool 19 Jamieson Street, WARRNAMBOOL 1300 661 790


Bundaberg 5 Bingera St, BUNDABERG 07 4130 7500
Chermside 90 Kittyhawk Drive, CHERMSIDE 07 3624 0100
Logan 25 Ewing Road, LOGAN CENTRAL 07 34421500
Mackay 35 Milton Street, MACKAY 07 4951 4555
Toowoomba 632 Ruthven Street, TOOWOOMBA 07 46995444

South Australia

Adelaide 55 Hutt Street, ADELAIDE 08 8419 2000
Mt Gambier 22 Bay Road, Cnr Bay Road and Helen Street, MOUNT GAMBIER 08 8721 3500 or
1800 880 913

Western Australia
Bunbury 20 Molloy Street, BUNBURY 08 9792 1155
Perth City Sheffield House, Level 1,
713 Hay Street Mall, PERTH 08 9278 4000

Monday, 7 July 2008

De facto changes to go to Senate committee

De facto changes to go to Senate committee

The Senate has referred the bill to allow for de facto property settlement to the Legal and Constitutional Affairs Committee for inquiry and report by 27 August, with public submissions to be received by 25 July 2008.

The Bill, as Attorney-General Robert McClelland correctly states, contains landmark changes. It will make major changes to the Family Law Act to enable de facto couples, whether of the opposite or same sex, to use the same test as married couples for property settlement, super splitting and spousal maintenance.

The Bill, if passed, will mean huge (and positive) changes for same sex couples splitting up. It will allow for uniform laws, instead of the current 8 jurisdictions. One submission to the committee is from Western Australian Attorney-General Jim McGinty, who notes that WA has always had separately legislated family law, with its own Family Court of Western Australia, but essentially the same system as the rest of Australia.

The current system, in effect, discriminates against de facto couples, including same sex couples. The current system particularly discriminates against same sex couples because they cannot decide if they are to be under a system for married couples or one for de facto couples. Putting that more accurately- they are denied that choice because same sex marriages are not recognised in Australia.

Currently there is a less certain outcome for de facto couples than for married couples under the Family Law Act, and in some States, such as New South Wales, the partner with lesser financial contributions would receive less than that partner would likely have done under the Family Law Act.

Why there is a less certain outcome is simple:
- cases under the Family Law Act concerning married couples are brought in 3 courts: the Family Court of Australia, the Family Court of Western Australia, and the Federal Magistrates Court of Australia
- appellate decisions of the Family Court of Australia are binding not only on that court but also on the other two courts
- therefore there is generally a consistent approach in the three courts, no matter where the dispute might be
-because it is a national system, and because there are more married couples splitting up than de facto couples, there is therefore more case law, which is able to guide other courts, to ensure a more consistent approach
-family lawyers regularly practise in the Family Court and Federal Magistrates Courts, and are therefore able to give advice to their clients as to the most likely outcomes with some certainty
-most Family Law Courts judges were family lawyers before their appointment and were therefore specialised, or have following their appointment had that specialty thrust upon them, and therefore are quite familiar with the caselaw on point- and try to ensure a reasonably consistent approach, bearing in mind that each case turns on its own facts

The State jurisdictions are limited in many ways:
- first and foremost there are 8 separate jurisdictions with 8 separate rules, not only as to complex rules of procedure, but more so as to substantive matters, for example as to jurisdiction, or as to whether or not spousal maintenance could apply. If a couple were to live at Coolangatta, and one then moves across the street to Tweed Heads, but the relationship has not ended- some obvious questions lawyers would ask are: does the jurisdiction only apply in Queensland, or New South Wales or both; is it better for my client to be in a Queensland or New South Wales court; my client cannot obtain/pay spousal maintenance in Queensland but might obtain/pay it in New South Wales. There is nothing like seeing someone charge into court seeking property settlement and leaving with their tail between their legs, and costs order to boot because they forgot to check whether to start in this jurisdiction will be the right one.
- because there are 8 jurisdictions, and because de facto relationships are relatively a lot fewer than family law decisions, the case law is much more limited
- because of the different rules in different States, caselaw in one State is not binding and may not be effective in another State
-again because there are different laws, (with the possible exception of Western Australia) decisions of the Family Court of Australia or the Federal Magistrates Courts in like matters may not be followed. Indeed, in New South Wales and Queensland the tendency in some matters is to move away from the Family Court model
- State courts, with the exception of the Family Court of Western Australia, are not specialist courts. In Queensland, for example, most Part 19 Property Law Act matters are dealt with by Supreme Court judges, who were prior their appointment barristers in commercial disputes, and who after their appointment mainly deal with commercial disputes
-for these reasons, family lawyers have had difficulty in predicting outcomes in the State courts in de facto property disputes.

And finally, a less certain outcome means that the chances are that it will be a more expensive outcome. If one party wants to take the risk, knowing that there is a chance of success, why not? For the other party in particular, the legal costs just keep climbing.

Family lawyers have hoped and prayed for a long time that there would be consistent, national laws. This isn't for their sake, but for the sake of their clients- people who don't care whether something is a Federal or State responsibility, but don't want to spend money arguing a possible jurisdictional point, and just want the problem with the laws fixed- a simple request really. This Bill seems to offer that hope.