Saturday, 28 June 2008

Focus on property settlement: How does the Family Court split up property?

I am constantly amazed in talking to new clients who have come to me, dissatisfied with their existing lawyers, who tell me they were never told the 4 step process on property settlement. And here it is:

Step 1 Identify and Value the Property

It might sound obvious, but what is obvious is too often overlooked. If you are going to divide up property, the starting point has to be work out what you and your spouse have and how much it is worth.

It is essential that if you are going to your lawyer for the first appointment to create your own balance sheet. This will save your lawyer time, save you money and keep both of you focused.

This is dead easy:

List out all you and your spouse's property.
Beside each item, in a column, set out how much you think it's worth. Some clients don't put anything because they want to be accurate.It's better to put an estimate so at least there is a starting point. Valuations can be obtained later. If you want to be really sophisticated, you can set out who owns what, but this is not essential.

Total the property

List out all the debts in the same way.

Total them

Take away the total of the debts from the total of the property.

Then list out all the superannuation, in the same way.

Total the super.

Add the super to the difference between your property and debts and !voila! you have a balance sheet.

If there are disputes about values or issues about whether you know everything about what your spouse owns and how much it is, then you may have to get valuations and swap documents (this is called disclosure).

So far, so simple.

Step 2: Contributions

The Family Law Act then says the Family Court or the Federal Magistrates Court has to assess contributions. These are both financial and non-financial. It is not an accounting exercise, but weighing up competing factors. For example, how do you compare the care of children and housework with owning a house before the parties starting living together.

Although the court tells us every case is unique, thankfully from long experience many cases are fairly straightforward on this point.

Step 3: section 75(2) factors

Sorry to talk in jargon, but if you're getting legal advice about property settlement it's essential to know about this section of the Family Law Act. It says that in order to enable real justice to occur between the parties, the court can take into account certain future factors to adjust the outcome. Examples might be the care of children or a difference in what each of you earn.

You can look at section 75(2) here.

With traditional marriages where the husband has gone out to work and the wife has stayed at home to care for the kids and either quit work or works part time, there have been adjustments in favour of the wives.

Step 4: Fair result

The final step, which some judges have described as a checking mechanism, is to make sure that the result is fair, or to use the jargon " just and equitable".

And that's it. If you have to go through property settlement, try and remain focused on this 1,2,3,4 as it will make the process more comprehensible, leave you more in control, and should result in settling earlier and spending less money on lawyers.

Wednesday, 25 June 2008

De facto property laws are now on the way

Robert McClelland

Confirming the prediction of recent reports, Commonwealth Attorney-General Robert McClelland has now introduced changes to the Family Law Act to enable property disputes between de facto partners to be dealt with under the Family Law Act and heard in the Family Court or the Federal Magistrates Court.

Robert McClelland describes these changes as landmark, and that is truly the case.

Assuming that they are passed by the Senate, the changes will come into force on a date to be fixed, will apply to both heterosexual and homosexual relationships, but will only apply to de facto relationships (so that some other relationships such as those between carers which may be covered under ACT legislation, for example)that have broken down after the legislation has passed.

The significance of the changes is profound:
- by going to the Family Court of Australia, or the Federal Magistrates Court, people in dispute will be before specialist courts who deal with family law disputes day in, day out, as opposed to the State courts, which deal with this type of dispute relatively rarely
- it is likely that the results for de facto relationships will mirror those for married couples, as opposed to some State systems, such as Queensland and NSW where it appears that economic contributions weigh more heavily than non-economic contributions, meaning that like for like some people end up with less in the State courts than they would have in the Family or Federal Magistrates Courts
- there are to be mirror provisions for binding financial agreements for de facto couples, as there are now for married couples
- costs and confusion is likely to be less, with parties possibly in 2 courts instead of 3. If de facto partners now have a fight about children, property and domestic violence, they may have a fight in 3 courts- children in the Family or Federal Magistrates Courts, property in State courts, and domestic violence proceedings in the state Magistrates or Local Courts. Now children and property proceedings may be able to be run at the same time in the same court- causing a considerable saving of cost and time and reducing confusion.
- super splitting will be able to apply to de facto couples, which can only happen rarely with de facto couples currently
- spousal maintenance will be able to be paid. Currently in some jurisdictions, eg Queensland, there is no basis for spousal maintenance.

However there is a big IF. The Bill requires the co-operation of the States to agree to refer powers. South Australia and Western Australia pointedly refused to do so, it seems primarily because the Howard government refused to include same sex couples in the changes. There are tricky parts of the Bill depending on whether or not a person comes from a participating jurisdiction.

This is what Robert McClelland had to say:

The Rudd Government has today introduced landmark legislation to allow for de facto couples to access the federal family law courts on property and maintenance matters. This implements a 2002 agreement between the Commonwealth, States and Territories at the Standing Committee of Attorneys-General.

“These reforms are long overdue. They will provide greater protection for separating de facto couples and simplify the laws that apply,” Attorney‑General Robert McClelland said.

Mr McClelland said, “Currently, de facto couples can access the federal family law courts for child-related proceedings but must go to State and Territory courts for property and maintenance matters. This duplication wastes time and money and places an unnecessary administrative and financial burden on de facto couples. Moreover, existing State and Territory laws on property and maintenance matters for de facto couples are inconsistent across Australia, meaning couples in different States and Territories have different rights”.

The amendments will apply to de facto relationships that break down after the amendments commence in the States that have referred power to the Commonwealth and in the Territories.

Mr McClelland said, “This honours a commitment in the Government’s National Platform to ensure that family law applies in a consistent and uniform way to de facto relationships. Consistent with the Government’s policy, the legislation will not discriminate between opposite-sex and same-sex de facto couples. Nothing in the legislation will alter marriage laws.”

“Separating de facto couples and their children have waited for six years for the Commonwealth to act. The Rudd Government has delivered this significant reform.”


Kerry Shine

Queensland Attorney-General Kerry Shine welcomes the changes:

Attorney-General and Minister for Justice Kerry Shine has welcomed the Rudd Government's introduction of landmark legislation into federal Parliament which will allow de facto couples, including same sex couples, access to family law courts on property and maintenance matters.

"I know that Queensland de facto couples have been waiting a long time for the introduction of this legislation and I congratulate the Rudd Government on its move," Mr Shine said.

"At the moment in Queensland de facto couples who separate must access two different jurisdictions with disputes about property dealt with in the Queensland courts and disputes about children dealt with in the Federal family courts."

Mr Shine said in 2003 Queensland referred to the Commonwealth the power to divide property in relation to same-sex and heterosexual de facto couples, however the Howard Government would not accept the referral in relation to same-sex couples.

"The previous Governmen t's decision not to accept Queensland's referral effectively denied those who had been involved in same-sex de facto relationships the opportunity to seek spousal maintenance and to have matters relating to children and property heard at the same time by one court.

"They were also denied the opportunity to seek binding orders in relation to the division of superannuation or access to the substantial service infrastructure, including mediation, supporting the Commonwealth family law jurisdiction.

"The Rudd Government has corrected that decision by stating the legislation introduced today will not discriminate between opposite-sex and same-sex de facto couples."

Mr Shine said if the legislation is passed it will have a major impact on court proceedings in Queensland.

"If de facto couples can have their property disputes heard in the Family Court this will significantly reduce the number of civil hearings heard in Queensland's courts, which will take further pressure off our system," he said.

"It will also benefit families who will not have to engage legal representation for two different court hearings."

Victoria: New Domestic Violence Laws

Victoria Deputy Premier and Attorney-General Rob Hulls has introduced a standalone Family Violence Protection Bill in the lower house, following the recommendations of the Victorian Law Reform Commission.

One of the key initiatives in the bill is to recognise economic abuse as a form of domestic violence.

Another key innovation is to make it harder for respondents to cross-examined aggrieved's if the repsondent is self-represented. One of the greatest difficulties at the moment in this type of proceeding is exactly where that occurs, and where the cross-examination appears to be less than that of legal proceedings, and more of a family domestic, with all the inherent abuse and inequality in that scenario, which just happens to occur in a courtroon rather than a bedroom.

Here is the Ministerial Media release:


Women and children who are victims of family violence will be better protected under landmark Brumby Government legislation to be introduced into Parliament today.

Deputy Premier and Attorney-General Rob Hulls said the Family Violence Protection Bill would increase the protection available to victims and make perpetrators more accountable for their actions.

“This Bill challenges the pervasive attitude that family violence is a domestic matter. Family violence is a crime worthy of a significant response by the justice system,” he said.

“The new Bill also ensures the justice system does not compound the devastating effects of family violence by failing to provide a supportive response to women or by discouraging victims from reporting incidents.”

Women’s Affairs Minister Maxine Morand said police attended about 30,000 family violence incidents a year and about 29 per cent of these were repeated calls to the same parties.

“Family violence is found in all parts of our community, irrespective of economic status, education, age, or family situation,” she said.

“Sadly family violence is committed by those who are supposed to nurture and love, not dominate and abuse.

“Family violence remains the leading contributor to preventable death, disability and illness in women between the ages of 15 and 44. Addressing family violence is one of the most important challenges facing our community.”

Mr Hulls said the Family Violence Protection Bill would replace the 21-year-old Crimes (Family Violence) Act, after the Victorian Law Reform Commission (VLRC) recommended a stand-alone Act to provide a targeted and cohesive response to family violence.

He said the VLRC found the intervention order system often let women down – it could be inaccessible, frightening and ineffective. The centrepiece of the new legislation is an improved system of family violence intervention orders.

“In 2006-07, approximately 11,000 intervention orders were made against family members,” Mr Hulls said. “The proposed legislation means police can better respond to the threat of family violence after-hours through police-issued family violence safety notices.”

Other key elements of the Bill include:
· Making it easier for victims of family violence to remain in the family home with their children while the perpetrator may be required to leave;
· Restricting the ability of self-represented alleged perpetrators of family violence to personally cross-examine their victims in court;
· Defining family violence to include economic and emotional abuse, as well as other types of threatening and controlling behaviour, for the purpose of seeking intervention orders; and
· Broadening the definition of ‘family member’ to cover contemporary families and include carers of persons with a disability in ‘family-like’ relationships.

The legislation also adopts the Sentencing Advisory Council’s recommendation for a maximum penalty of two years’ jail for any breach of intervention orders and police-issued safety notices.

Mr Hulls said the legislation was the result of a strong partnership between many Government agencies and community stakeholders and he thanked them for their input. He said the legislation would provide an integrated response to family violence by police, courts, and justice and community agencies.

Ms Morand said the Brumby Government committed $24.7 million towards breaking the cycle of abuse and supporting victims in this year’s State Budget, building on an investment of $50 million since 2005.

She said community awareness would play an integral part in the next phase of eradicating violence against women and this aim would be supported through a $1.5 million family violence communication campaign.

“The Family Violence Protection Bill makes it crystal clear that family violence should not, and will not, be tolerated in our society and that women and children are entitled to be protected,” Ms Morand said.

Saturday, 21 June 2008

Research: children with divorced parents better off when their parents are not warring

A new study found that children who lived in unstable family situations after their parents divorced fared much worse as adults on a variety of measures compared to children who had stable post-divorce family situations, according to Newswise of Ohio State University.

“For many children with divorced parents, particularly young ones, the divorce does not mark the end of family structure changes – it marks the beginning,” said Yongmin Sun, co-author of the study and associate professor of sociology at Ohio State University.

“A stable family situation after divorce does not erase the negative effects of a divorce, but children in this situation fare much better than do those who experience chronic instability”.

The study appears in a recent issue of the Journal of Marriage and Family. Sun conducted the study with Yuanzhang Li of the Allied Technology Group.

Data for the study came from the US National Education LongitudinalStudy.

Friday, 20 June 2008

Federal Magistrates Court case- extending full and frank disclosure to child support reviews

Federal Magistrate Slack in Humphries and Berry (SSAT appeal) has held that the principle of disclosure applies to the whole of the review process of child support assessments, including the proceedings before the Social Security Appeals Tribunal.

The principle of disclosure includes where a party is required to make full and frank disclosure of their financial circumstances in a timely manner to the other party. It has been described as a case of "show and tell" not "hide and seek" described as a case of "show and tell" not "hide and seek".

Federal Magistrate Slack said:

I consider that these principles applicable to full and frank disclosure in proceedings in the Family Court have the same force in administrative review hearings under the Child Support Registration and Collection Act including appeal hearings by the SSAT.

Although the SSAT has the power to obtain information (s.103K) and the power to require the Child Support Registrar to exercise powers under the Assessment Act and the Child Support Registration and Collection Act for the purposes of gaining information relevant to a review (s.103L), there nevertheless remains a primary duty and obligation on the parties to the review to make a full and complete disclosure of their financial affairs relevant to the matter before the hearing and a duty to assist the Tribunal to come to its determination in the application. The obligation to disclose information and documents extends to the presentation of that material in a way that the true nature of their financial affairs can be readily understood.
The obligation extends not just to providing financial records but also includes presenting the information in a way that can be reasonably and readily understood and examined.

Thursday, 19 June 2008

Federal Magistrates Court case- make the right application

In the recent Federal Magistrates Court case of Fitrakis and Douretas, an order had been made for the children to spend the first half of the holidays with the father. When they didn't, the father made an application for a recovery order.

By the time the matter got to court, the first half of the holidays had come and gone, but still the father had not seen the children. The court found that the recovery order application was the wrong type of application, and dismissed it, but helpfully noting that the appropriate type of application was a contravention application.

Comment: It is often very difficult in dealing with an intransigent parent who puts up every roadblock to ensure that time with a parent does not occur. Sometimes there is no immediate relief, and it is necessary to be patient and bring the contravention application (which in any case will be after the holidays).

Most parents try to avoid breaching orders, because they know it's wrong and leads to consequences. However, sometimes they still do that, and to bring a recovery order is often, as this case demonstrates, the wrong application.

Wednesday, 18 June 2008

Victoria: Victims of family violence now have help at Broadmeadows community legal centre

Victims of family violence in Broadmeadows now have dedicated legal assistance as a result of a new family violence program at the community legal centre, Victorian Deputy Premier and Attorney-General Rob Hulls has said.

The Broadmeadows Community Legal Service (CLS) is one of a network of centres across the state to receive Brumby Government funding through Victoria Legal Aid for dedicated family violence lawyers.

“The Brumby Government is taking action for families and communities across Victoria,” Mr Hulls said.

“This funding has allowed the Broadmeadows CLS to establish a family violence program and the lawyers who are working in the program support those who are applying for family violence intervention orders by providing legal advice, court representation and other assistance.

“For many, going to court to apply for an intervention order is one of the bravest things they’ll ever do. Victims of family violence now have a dedicated service they can call for legal assistance. It’s crucial that victims get the help they need to navigate the court system.”

The statewide family violence Community Legal Centre initiative was funded in the 2007/08 State Budget. The Brumby Government made a further commitment of $24.7 million in the 2008/09 Budget aimed at breaking the cycle of abuse by stopping family violence before it happens and extending support for victims.

“Family violence is the leading contributor to death, disability and illness in Victorian women aged 15 to 45,” Mr Hulls said.

“This has a devastating impact on the Victorian community.

“The Brumby Government is committed to improving the way the justice system responds to family violence.”

Later this year the Government will introduce a new Family Violence Bill to better protect victims of family violence and hold perpetrators to account for their actions.

Key elements of the proposed new Bill include making it easier for victims of family violence to remain in the family home with their children while the perpetrator may be required to leave, and ensuring that self-represented perpetrators cannot personally cross-examine their victims in court.

“These changes will help ensure that victims of violence are not further distressed by being forced from their homes, often uprooting children from their friends and schools,” Mr Hulls said.

“In the past family violence has been seen as a domestic matter. It’s not – it’s a blight on our community, which has a devastating impact on victims and families.”

Source: Ministerial media release

Profile: Jim Hardeman

Jim Hardeman and Stephen Page

I had the privilege recently of catching up with Jim Hardeman. Jim, from Plymouth near Boston, Massachusetts, has long been recognised as a pioneer in dealing with the issues of domestic violence and the related workplace violence.

Jim was a prison guard, social worker, then the Director of Polaroid's Employee Assistance Program, where he took action to end workplace violence and the closely related one of support to ending domestic violence affecting employees. As part of his attempts to challenge the behaviour of other staff, Jim was threatened, but followed through.

It is clear in talking to Jim that he has cojones, and is prepared
to take action, not just talk tough to take action, not just talk tough about domestic violence.

From Polaroid, Jim then morphed into his current career, which was to provide support to corporations in dealing with workplace violence, and reducing the incidence of domestic violence amongst employees. Jim is the founder of Workplace Violence Intervention Strategies, Inc. and has helped set up CEO Challenge, which links the corporate world with domestic violence shelters, in a bid to reduce the amount of domestic violence, provide for employees, and increase corporate responsibility.

Australians are lucky that Jim is regularly visiting our shores, assisting with CEO Challenge.

Jim was telling me that in his spare time (!) he has been involved with a community organisation which has former Brisbane Lord Mayor Jim Soorley on its board,
Jim Soorley
which sponsors a number of indigenous students to go to the USA to meet other indigenous students, and vice versa.

Jim, enjoy your time in Australia!

Tuesday, 17 June 2008

Federal Magistrates Court case: did the wife receive her inheritance?

The Federal Magistrates Court in a recent case, Cairns and Cairns, had to consider the question of whether or not the wife had renounced her interest in her grandfather's estate.

Under the terms of the estate, the wife was to receive $20,000 and she and her sister were to receive 1/2 each of two investment properties after both of them had turned 40.

The wife claimed that the Rule in Saunders v. Vautier applied. This rule meant in effect that once the wife and her sister turned 18, they could together seek the payment over of the trust, or for that matter to renounce their entitlement under the trust.

The amount was significant. When the investment properties were sold in 1992, the sale proceeds were in excess of $600,000.

Federal Magistrate Housego found that the wife, who had not turned 40, had not renounced her interest in her grandfather's estate, and therefore her interest was that of a financial resource, which needed to be taken into account in the property settlement.

Monday, 16 June 2008

Victoria: New Family Violence Gateway on the Web

A new online gateway for government information on family violence was announced at the first meeting of the new Family Violence Roundtable.

Victorian Women’s Affairs Minister Maxine Morand said the new website www.familyviolence.vic.gov.au provided direct access for people wanting to know about the crime, the action being taken by the Brumby Government and where to seek help and advice.

“The family violence website will educate and inform the community that family violence has no place in the Victorian community and that increased protection and support is available to victims,’’ Ms Morand said.

“The best way to tackle family violence is by involving the community, support services, courts, police and government working together.’’

Ms Morand said that family violence has a devastating effect on the community being the leading contributor to death, disability and illness in women under 45.

She said the Brumby Government’s new simple family violence domain name together with updated content including links to departments, agencies and others involved would improve access to vital information to address this issue.

“The new family violence website will improve information availability and awareness of support initiatives such as those being undertaken by statewide and local service providers,’’ Ms Morand said.

“We have seen significant improvements since 2005 in the system response to eliminating family violence but it is a complex issue and more needs to be done.

“Reducing family violence is a priority of the Brumby Government and that’s why we have invested over $50 million to provide a more effective, integrated response to family violence, to increase support services and to prevent family violence from occurring since 2005.

“We have continued this investment committing a further $24.7 million in this year’s State Budget to further strengthen the prevention of family violence, the protection of those at risk and the provision of support for those experiencing family violence.’’

Ms Morand said the web content would be updated regularly and feedback was encouraged.

The Family Violence Roundtable was a fitting place for the announcement to be made as it brings together police, courts, family violence and Indigenous services to work on the important state-wide family violence reforms currently underway.

The Roundtable has a focus on bringing together those implementing the reforms. Its membership includes Victoria Police Family Violence Advisers, Magistrates Court Family Violence Resource Officers and Chairs of Indigenous Family Violence regional Action Groups.
>

The writing of psychiatric bible DSM V quickens...

Professor Gavin Andrews

Professor Perminder Sachev

The American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders(DSM) is seen as the bible for psychiatrists and related professionals as to mental health conditions, setting out for example the Borderline Personality Disorder, or Schizophrenia. It's the one text that psychiatrists almost always rely upon when they give evidence in the Family Court as expert witnesses.

The DSM is now in its fourth edition, commonly called, rather unimaginatively, as DSM-IV, and more recently DSM-IVTR.

The American Psychiatric Association, in conjunction with the World Psychiatric Association, the World Health Organisation, and the US National Institute of Mental Health has been gathering the forces to rewrite the DSM fifth edition, or DSM-V.

Amazingly, this process has been underway since 1999. Now there are 13 work groups underway, and it is expected that the DSM-V will be finally published in 2012.

The list of the members of the workgroups reviewing the DSM- V has now been announced. There are many Americans, as one would expect, but many international experts. The two Australians in the workgroups are Professor Gavin Andrews and Professor Perminder Sachev, both of Sydney.

Controversy has raged about whether such topics as Parental Alienation Syndrome or Marital Abuse Disorder will be included.There has also been objection to at least one member of the working groups.

Another topic suggested for inclusion is that of internet addiction.

All of these demonstrate the importance of getting the DSM-V right, because of the obvious consequences of getting it wrong. After all, it was not too long ago that homosexuality was considered as a psychiatric disorder, for which the standard treatment was the brain frying electro convulsive therapy.

Sunday, 15 June 2008

Child Support Agency works out cost of living for children

The Child Support Agency has calculated that the cost of living for raising children is different between each of the capital cities, according to the Courier-Mail.

Link to article

Minister urges community to tackle Elder Abuse

Elder abuse is wrong and cannot be tolerated - that's the clear message being sent to commemorate the third annual World Elder Abuse Awareness Day today, Sunday, June 15.

Lindy Nelson-Carr

Quuensland Seniors Minister Lindy Nelson-Carr said while many older people maintained active lifestyles and enjoyed the benefits of friends and family, some also experienced abuse.

"Australian researchers estimate up to 7% of older people have been affected by elder abuse and this is wrong," Ms Nelson-Carr said.

"Abuse can happen when a relationship of trust is broken and it can take the form of physical, sexual, emotional or financial hurt or neglect."

Ms Nelson-Carr said while there was no quick fix it was imperative members of the wider community took a stand and encouraged senior Queenslanders to speak out and take steps to thwart abuse.

"Complex family issues, dependency, financial problems and health issues all impact on the type of response needed to break the cycle of eld er abuse," said the Minister.

"It is silence which is the most dangerous. Abuse too often happens behind closed doors and senior Queenslanders may be too afraid or unwilling to talk about it.

"The community must get involved and get this problem out in the open if we are to protect the safety and livelihoods of our treasured seniors.

"When people realise they are not the only ones experiencing abuse, they can find it easier to overcome shame and embarrassment and take action to stop the crimes."

The Department of Communities and the Elder Abuse Prevention Unit hosted a World Elder Abuse Awareness Day seminar on Friday, June 13, with a range of experts and community organisations.

Presenters were given by the Ethnic Communities Council, Older People Speak Out, Adult Guardian, and Griffith University.

Discussed were a range of perspectives on elder abuse, including culturally and linguistically diverse people, people with diminis hed capacity, and media and research issues.

Ms Nelson-Carr said the Bligh Government was committed to pursuing and promoting its prevention and early intervention efforts to help stamp out this societal problem.

This includes funding of $1.7 million over the past five years to the Elder Abuse Prevention Unit to operate a free telephone service for people to express their concerns and access information and referral to services.

"Since the Elder Abuse Prevention Unit started operating 10 years ago, it has run training and information sessions for 10,000 older people and more than 12,000 community and health workers," Ms Nelson-Carr said.

"I recently announced a $1.9 million plan to extend a pilot Seniors Legal and Support Service across the State.

"This service offers free legal advice and support services to seniors who are experiencing, or are at risk of experiencing, financial exploitation and elder abuse.

"The Adult Guardia n is also available to protect the rights and interests of adults who are unable to make decisions for themselves due to intellectual or psychiatric disability, acquired brain injury, dementia or temporary illness such as delirium.

"I urge anyone experiencing abuse, or who suspects a case of elder abuse, to get in contact with the helplines to access assistance now."



For assistance and advice, call:
Elder Abuse Helpline 1300 651 192
Adult Guardian 3234 0870 or 1300 653 187 (outside Brisbane)
Seniors Legal and Support Services:
Brisbane 3257 1337
Cairns 4031 7179
Hervey Bay 4124 6863
Toowoomba 4616 9700
Townsville 4721 5511

Source: Ministerial Media Release
Comment:

Elder abuse can often be tackled legally in obtaining protection orders under the Domestic and Family Violence Protection Act and as the Minister suggested, by use of the Adult Guardian.

Signs of recession: wealthy are divorcing

News.com.au suggests that we are heading for a recession, citing a surge in lipstick sales, a slump in weddings, and a rise in wealthy people seeking property settlement while the going is good, before things turn pear shaped.

Federal Magistrates Court cases: costs

The Federal Magistrates Court has shown in three recent cases that it is prepared to make orders for costs. Parties often come to the Family Court or the Federal Magistrates Courts expecting that no costs orders will be made. These cases are good illustrations of when costs orders are made.

In Spring and Spring, the parties consented to final orders concerning their child, but within a few weeks the wife commenced proceedings all over again, only to finally withdraw them. She was ordered to pay $2,000 to the husband.

In Valadez and Valadez, the husband had been dishonest in his disclosure, the wife had been wholly successful in her application, and had beaten offers that she had made. The husband was ordered to pay the wife $10,445 in costs.

In Wolfe and Wolfe, the husband offered that he receive 40% of the property, which is the exact percentage he received after a trial. Not surprisingly, the wife was ordered to pay the husband's costs, of $6,965.

Saturday, 14 June 2008

Family Dispute resolution for all Parenting Orders

All people applying to the Family Court or the Federal Magistrates Court for a parenting order must first attend family dispute resolution under changes to family law, except where there is child abuse, family violence or in matters of urgency, Attorney-General Robert McClelland has said.

The changes will take effect from 1 July 2008 and are designed to help separating families resolve disputes without litigation. The changes were foreshadowed as part of the 2006 family law reforms.

The new requirements affect all applications to the court for a parenting order under Part VII of the Family Law Act 1975 relating to children's matters, irrespective of whether previous applications to the court have been made.

There is currently an exception for parties not to have to attend family dispute resolution if applications were made before 1 July 2006. That exception will now be removed.

"Currently, people are only required to attend family dispute resolution if they have lodged a new application for a parenting order after 1 July 2007," Mr McClelland said.

"The exceptions to family dispute resolution will remain in cases where there is child abuse or family violence, or in matters of urgency," Mr McClelland said.

Friday, 13 June 2008

"Oh no, you gave little Johnny the red cordial?!"

ADHD (Attention Deficit Hyperactivity Disorder) is an issue that sometimes comes up in litigation between parents, either both or one of whom is exhausted in having one (or a number)of ADHD kids.

One of the issues that can come up is when one of the parents (the one spending most of the time with the children) says that the children have ADHD, and the doctor has given the diagnosis, but the other parents says that the child is fine.

The dispute can get down to the level of what food the child is having.

There is nothing quite like a parent realising that they gave their child some lollies or cordial with food colouring, resulting in their child being hyperactive for up to a few hours after.

This belief has recently been backed up by Australian researcher Professor Andrew Kemp, published in the British Medical Journal. A test of 297 non ADHD kids discovered what most parents know- give the kids lollies and kids without ADHD can become hyperactive.

As a result of his research, Professor Kemp has called for parents who have ADHD kids to make sure their kids have a healthy diet without the preservative sodium benzoate and without the food colouring present in lollies, as these dietary changes might help in reduction of ADHD.

Thursday, 12 June 2008

Domestic violence case: is a distance clause reasonable?

Sometimes courts make domestic violence orders that require the respondent to stay away from the aggrieved, such as staying a certain distance away. In one case in which I was involved many years ago, the apprehended violence order required that the respondent not go to the country town in which my client then lived. The respondent did not live there, but had stalked my client, including calling virtually every business in town, trying to locate my client.

Courts are thus faced with a conundrum. If they impose a distance clause on a respondent to a protection order, does it interfere with the respondent's right to go about their life?

From my experience, some magistrates rarely if ever make a distance clause, because they can be so difficult to enforce. In making an order, the ocurts will also need to consider what is in the Act. In Queensland, for instance, the condition must be both "necessary" and "desirable". Whilst it might be desirable, is the term also necessary.

A good illustration of where a distance clause was considered "necessary" was provided in the recent decision of the Court of Appeal in Washington State, USA in The Marriage of Bahr.

Both husband and wife lived in Lake Tapps, small town USA. The wife related a history of violence and obtaining domestic violence orders for protection. Finally she had had enough and sought a final protection order. This order included a clause that the husband was not to be within 1 mile of her. After the husband's further protestations that he would not be able to visit a nearby lake to water ski or otherwise live "normally," the trial court finally ordered a 500-foot distance restriction.

So if he were at the shops, for example, and she turned up, then he might have to leave.


The husband appealed the order, saying that it interfered with his constitutional freedom of movement. In Australia, by comparison, Justice Kirby in AMS v AIF (1999)said that our society:

attaches high importance to freedom of movement and the right of adults to decide where they will live.


The husband in Bahr said that the 500-foot distance requirement imposed in the modified restraining order is not the least restrictive means of satisfying the state's interest in this case. In addition to his freedom of travel, he argued that the restraining order made his freedom of movement subject to the wife's "whim and caprice." He asserted that "[a]lthough he is free at any time to going to any public place other than her business, she can virtually chase him from such locations by her mere presence."

The Court of Appeal dismissed the husband's appeal. It held:
1.Here, the compelling state interest is the wife's safety and welfare.

2. Additionally, the record shows that the husband need only travel a mere 0.2 miles further from his professed regular routes of travel ...to stay beyond 500 feet from the wife's home and business. And the wife's affidavit shows there is an alternate route from Auburn that bypasses her home and business that is also only 0.2 miles longer. Such minimal distances do not reasonably impose an unconstitutional burden on his freedom of travel.

3. The husband is free to move about as he pleases, and the restraining order only burdens his freedom of movement by occasionally requiring him to leave a public establishment in the Lake Tapps area when the wife happens to be in the same location. As he points out, "he is free at any time to going to any public place other than her business." Appellant's Br. at 15. Although Lake Tapps may be a small community, and however "inevitable" it may be that he occasionally will be required to leave a local establishment when she arrives, an order that occasionally forces him to leave a location earlier than he would prefer does not burden his fundamental freedom of movement in a constitutional sense.

4.Further, even assuming that the husband's rights to movement and travel are actually implicated here, the State may curtail those rights to protect the wife from any "invasive, oppressive and harmful behavior" by him. The record shows that he has acted with violence toward her and her adult son, has harassed and threatened her, and has violated a prior restraining order involving her. He has also displayed his temper in front of her attorney. He has most recently displayed these aggressive tendencies to the trial court itself by interrupting and walking out of the hearing even after the trial court agreed to reduce the distance requirement from one mile to 500 feet. In light of the record before us, the distance requirement in this case is an appropriate least restrictive means to achieve the state's compelling interest in protecting the wife's safety and welfare.

5.In view of the husband's multiple instances of violent and threatening behavior toward the wife reflected in the record the trial court had sufficient evidence to
maintain a 500-foot distance requirement. The trial court did not abuse its discretion in modifying the restraining order to ensure that the husband stayed at least 500 feet from the wife at all times.

Wednesday, 11 June 2008

Splitting super: Step 1- were you married or de facto?

Having been a Brisbane family lawyer for many years, I've learnt that there are some basic rules that apply when you are going through a property settlement and want to split your (or your ex's) superannuation.

Step 1

Were you married or de facto?

Despite what you might have heard from friends, there is a huge difference if you were married or de facto (including same sex relationships).

The reason is simple: super splitting for married couples can occur relatively easily under the Family Law Act; but super splitting for de facto couples is under State or Territory laws and is much harder.

To explain, some fundamentals about the different types of super are required. I don't want to wax jargonesque, but bear with me.

The Commonwealth does not have power to legislate about superannuation. It does have power to legislate about tax. The Commonwealth wants a similar system for all superannuation funds, so to do this it gives tax breaks. To get a tax break, a fund must be a complying fund. Most funds are complying funds, but there might be some rare funds that are non-complying funds.

When the super splitting amendments were made to the Family Law Act some years ago, they came in because they were badly needed. At that time the Family Court did not have the power (except in limited circumstances) to split super, and devised up to 6 different tests that might apply as to what might happen.

Some of these "tests" were derided as "palm tree justice".

Commonly what was seen was that in a traditional marriage where the husband might go out and work and the wife stayed home and cared for the kids (or did some parttime work as well), the significant property they owned would be the house (subject to a mortgage) and his super. Sometimes the super was worth as much as, or more than everything else put together. It would be easy if he were approaching retirement- wait until he retired. But what if they were in their 30's? If she were to keep the house, then he would get the super- which meant that she would not get any future entitlements (but security for her and the kids) and he would get the super, but not be able to touch it for say 30 years, and be unable to start over and get his own place.

There were some exceptions to this inability to split- wait until the member retired, or if there were a self-managed super fund, make an order to split.

The other difficulty was that even if the parties agreed on a split, then aside from self-managed funds, there was no way that it was binding on the trustee of the fund.

I am mentioning all this history, because this is exactly where de facto and same sex couples are now. They cannot get a split except in these circumstances, because when the Howard government amended the Family Law Act, super splitting was not widened to cover de facto or same sex couples.

Rudd,under Attorney-General Robert McClelland, like Howard, has talked of amending the Family Law Act to cover same sex couples. Agreement with the States is required. If and when that happens, presumably super splitting can cover de facto couples.

Tuesday, 10 June 2008

Computer forensics 101

Sometimes clients tell me about how their ex might have an interest in porn, or have hidden extensive documents about their finances on their computer.

It's at moments like these, once I have talked to clients about the issues, that I often recommend that my client use the services of a forensic IT consultant.

Sometimes you will get not particularly much from the computer, but on other occasions you will strike gold, and the chance of striking gold can make it all worthwhile. From my clients' perspective, while there is always an element of risk in hiring a forensic IT consultant, the chances can be so high that the risk is worth it.

The other issue I discovered a couple of years ago was to let both the lawyers and the forensic IT consultants have the time to analyse what has been found. The IT people had effectively one work day to extract the information from the hard drive, and produce it in a report, due to a very strict deadline set by the court. I got the report at about 6pm,and discovered that there were about 1200 pages of Yahoo log to be analysed!

Needless to say it was not all analysed that night, even with my having little sleep that night. When I had the opportunity to analyse it (which was several hours over the weekend a couple of days later),and then swore an affidavit as to what it all meant, the other side were critical of me for not having sworn an affidavit earlier and for introducing evidence which I should have disclosed before!

I recently came across an article by Jon Berryhill,from Berryhill Computer Forensics who I was told about by a California lawyer as being an expert in the field. When I read Jon's article, it struck a chord- so here 'tis...[thank you Jon]

Jon Berryhill

Having a Computer Forensics Expert in your Corner

By Jon Berryhill


What if opposing counsel informs you they’re calling a computer forensics analyst as an expert? Even if you don’t need an expert to analyze computer data, it can pay to have one in your hip pocket.


Computer forensics and eDiscovery can involve computers belonging to your client and/or the opposing side. If there were computer evidence (or the potential for evidence) germane to a case, you would be best served to have an experienced computer forensics analyst look at the data. A computer forensics expert can work as a special master or can sign a non-disclosure agreement in order to protect confidential information. If opposing counsel hires an expert, you will want to have their analysis and conclusions reviewed by your own expert. Occasionally, opposing counsel will share the imaged (copied) hard drives from computers involved in the discovery.


If you are deposing opposing counsel’s computer forensics expert, it can be extremely valuable to have your own expert in attendance. Often, they can identify flaws in the other expert’s answers, or suggest a line of questioning. We recently provided this service to a client. During the depositions, the other side’s experts essentially refuted much of what was in their own analysis. Before the case ever went to trial, opposing counsel had withdrawn its computer forensics experts.


Have you ever considered acting as your own computer forensics expert? A few years ago, a defense attorney contacted our company and asked to rent (use) our forensics equipment to view and analyze a hard drive image of his client’s computer made by investigators. As experienced professional computer forensic experts, we were concerned about this request, and offered our analysis services, which this defense attorney declined. The attorney paid for the use of our equipment, and until recently, we had not heard what became of the case.


Unfortunately for his client, this attorney lost the case. His client spent the next few years in jail as a result. We were approached on this case after the client had secured a new attorney to handle an appeal. The original trial judge provided a declaration expressing his opinion that the defendant had been poorly represented. Our company was the only other party asked to provide a declaration, which we did, stating our professional opinion that the computer forensics evidence was incomplete and not conclusive. Perhaps if the attorney had not tried to act as his own expert, his client might have been spared prison time.




How do you go about finding an experienced computer forensic analyst? One way is to ask colleagues who have used a computer forensics expert. You can also search the web, including various expert witness listings. But make sure to properly investigate any expert you are considering. Most importantly, check their references.




References can be a great resource when investigating computer forensics experts. While there are reputable experts, some may exaggerate their credentials. Some may provide historical client lists, but none of these clients are willing to accept your call. When asking for a reference list, make sure it is a list of people willing to take a call from you. Call the references, and ask questions such as, “Were you happy with the work product? Would you hire them again? How did their work impact your case?”


Be wary of claims boasting of years of experience or an “alphabet soup” of letters after someone’s name. Some experts may exaggerate their years of experience by including experience with computers and/or computer data recovery, rather than actual forensic analysis. Various certification courses exist, but there are no standards. Real case experience, having things go right and wrong in the field, generates layers of tried and true expertise. To best understand the importance of hiring a seasoned expert, consider the parallel you can draw between new attorneys and seasoned veterans who have tried many cases. The depth of real case experience can’t be taught in any classroom, as every case is unique. Ask the expert “How many years have you actively worked on computer forensics cases? How many cases have you personally worked on? Have you ever testified in court? How has your work impacted cases?”


Occasionally there may be a need for multiple analysts from the expert company to assist in the recovery, imaging, and processing of data. Ask for details about the number of analysts actually working on your case. Ask, “What are their qualifications? What is their experience with actual computer forensics work? On how many cases have they worked? Will they be available during analysis to discuss whether further analysis will be needed? Is the person doing the analysis the one who will be available to testify?” Keep in mind that there are no formal requirements in place to be labeled as a computer forensics expert. That is why reference checks and asking the right questions are critical to protect your small firm and clients.




Computer forensics is the acquisition, analysis and presentation of computer evidence, and a good expert must be skilled in all three of these areas. For every finding presented by the expert, demand the facts to support the conclusion. It is valid for an expert to express opinions, but to stand up in court; opinions must be supported by facts. It won’t do your case any good if the expert only uses “geek speak.” Having an expert who can’t effectively present the facts or communicate conclusions based on fact (both verbally and in writing) may blow gaping holes in your case. Experts with exceptional communication skills can explain findings in terms understood by the watchful, critical (and not necessarily technically savvy) eyes of the judge, opposing counsel, opposing expert, and the jury.


Rates can vary, and some experts may charge a flat fee for common tasks. There are some common computer forensics tasks that don’t vary considerably in terms of time or work required.


Common Computer Forensics Tasks Approximate Time Required*
Forensic quality image of hard drive
40 – 200 minutes per 100 GB
(Depending on size and age of hard drive)

Duplicate set of hard drive image files (a copy of the raw material)
30-60 minutes per 100 GB
Keyword search of image
1-4 hours for 10 keywords on a 100 GB drive
(Varies based on size of drive, how full the drive is, and number of keywords; does not include time required to analyze hits.)

Extract active files, recover deleted files, create file listing, and provide copy on optical or magnetic media
1-2 hours

* These are approximate times. Many variables can affect these tasks, but if you’re dealing with a healthy drive, the time should not vary from these ranges too much.



About Jon Berryhill, President and COO of Berryhill Computer Forensics

Jon Berryhill has led over 600 computer forensic investigations spanning the past 14 years. He has served as a Special Agent in the U.S. Air Force Office of Special Investigations and worked extensively with the California Department of Justice Advanced Training Center. He has been certified in California State Court and Federal courts as an expert witness in computer crime.

Monday, 9 June 2008

Survivor extraordinaire: Ricky Hunter

Ricky Hunter

When I delivered a family law seminar recently, I was honoured to have Ricky Hunter in the audience. Ricky would not see herself as a survivor extraordinaire, but someone who has been through a lot, and survived. As someone who was never subject to domestic violence, and never been assaulted, let alone sexually assaulted as a child, I call her a survivor extraordinaire.

Ricky is someone who went through the evil of being sexually abused as a child, then subjected to horrific domestic violence, having a son who is disabled, and coming out the other end as though, to misquote Churchill, coming into the broad, sunlit uplands of freedom.

I was doubly honoured when Ricky offered (and I accepted) a copy of her book, Point Last Seen.

Point Last Seen

I am afraid to say that I am not a very good reviewer, but Deborah Spermon is much better. This is what she had to say:

Elizabeth Brett once reminded professionals that to understand and describe the experiences of traumatised people, we must stay close. To distance ourselves, to rely too heavily on theory without the personal, is to diminish this ability. Ricky, with her telling of the complex interplay of the past and present, of pain and achievement, of the compelling drive to endure, invites us to come in close.


Faced with exhaustion and a sense that little was real, but with a lingering faith in her self’s existence, Ricky searched for what was long lost. Discoveries of self-knowledge exacted their dues as the debts to soul-life were paid, and emotions and sensations long banished again took up residence, sometimes with ferocity. Despite the unknown, despite the burden of unpredictability, her project of “A time to heal” had the strength of integrity and, with the support of those closest, the search continued and each insight welcomed.


Beverly Raphael said that such stories can only be told when survivors have drawn back from the abyss and are safe, when losses can be accommodated, when a community can be concerned with justice and human rights, and when therapists and others can hear. Ricky Hunter gives us one such opportunity.

Sunday, 8 June 2008

Family Court and Federal Magistrates Court cases: changing children's arrangements

Usually, before an applicant can go back to court and say that there ought to be a changing to parenting arrangements when there have been orders before, the applicant has to convince the court that he or she has to overcome the Rule in Rice and Asplund (1979). There is nothing quite like seeing someone sail into court only to have their case hit the iceberg of Rice and Asplund.

Two recent cases have helpfully set out the rule and how it is applied in practice.

In SPS and PLS, Justice Warnick, sitting as the Full Court of the Family Court of Australia, has summarised the Rule in Rice and Asplund as:

In my view, reflection on the rule shows that:
(i) What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.
(ii) In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation the court in Rice and Asplund determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention.
(iii) At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.
(iv) Discussion in terms that the rule may be applied as a “preliminary matter” or the primary application be first heard “on the merits” may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with “on the merits”.
(v) The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
(vi) “Shorthand” statements of the rule may contribute to its misapplication.
(vii) Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.


In
Hibbins and Hibbins, Federal Magistrate Baumann had this to say about the practical application of the rule:
It is a common, I would say, usual practice for the issue of applying Rice and Asplund principles in this Court is dealt with as a preliminary issue “on the papers”. It seems to me that a docket system where the ultimate judicial arbiter deals with the proceedings at the first opportunity enhances a proper application of the rule. It cannot be a proper application of the rule for a person, as sometimes happens, to blandly assert that things may have changed and that if a family report is procured, that person is satisfied they will be correct. To some degree that is what happened in this case, but in my view this is akin to the “tail wagging the dog”.

Saturday, 7 June 2008

Parenting Orders Programs- a Success?

Respected researcher, Thea Brown, has researched the history of parenting orders programs.

Her conclusion: they seem to be worthwhile as an alternative to repeated court hearings.

I remember when these programs were introduced. There was real concern within the community sector as to whether to bid for the government funding for these programs. The reason was clear- while money was provided, the clients were those forced to be there by court order- because they had either been the applicant or respondent to a contravention application made in the Family Court or more commonly the Federal Magistrates Court.

Clients who are forced to be there and are there because they have either contravened a court order, or their former partner are not likely to be very happy campers.

It is good to see that these courses might actually work and keep some of these bitter fights out of court, for the benefit of all concerned, including the taxpayer, but most importantly the children in the centre of their parents' dispute.

Focus on property settlement: Case: Prenups and Binding Financial Agrements a lot harder to keep

Prenuptial agreements are able to be entered into as they are binding financial agreements under s90B of the Family Law Act. That Act also allows for binding financial agreements during marriage and after divorce. The same legal requirements apply to all three types of agreements.One of those requirements is that each of the parties solicitors certify the advice that they have given as an annexure to the agreement.

In a recent case, Black and Black, the Full Court of the Family Court of Australia had to decide whether a financial agreement was binding. The agreement was entered into shortly after they married. The marriage lasted all of 18 months.

The agreement proposed:

• the husband would sell his house;
• the monies from the sale of the house would go into a deposit account;
• the wife would put into the deposit monies that she was about to receive from a personal injuries claim;
• they would acquire another house;
• in the event their marriage broke down the new house would be deemed to be joint property; and
• it would be sold and divided equally between them.

The wife received her personal injuries monies, but they were a lot less than they had hoped, with the result that the husband, feeling badly done by, wanted to ensure that the agreement was not binding.

When the matter came on for trial, Justice Benjamin held that the agreement was binding. The husband appealed.

After the parties executed the agreement it was amended a few days later to exclude a sentence in clause 17 in relation to the maintenance of the parties and their children. The amendment itself was not an issue for the purposes of our determination, however the husband argued that it was problematic because his solicitor did not re-certify the agreement after the amendment was made.
After executing the original agreement the husband, on or around 6 September 2002, brought the amended agreement back to his solicitor and initialled the changes to clause 17.


A recital to the agreement stated:
"Each of the parties acknowledges that they have received independent legal advice as to the legal effect of this agreement prior to the execution of this agreement as evidenced by the lawyer’s certificate appended hereto."

A clause of the agreement more specifically provides in relation to the husband:
"[The husband] acknowledges that prior to entering into this agreement he received from a lawyer acting independently of [the wife] and in the absence of [the wife] advice explaining the legal implications of this agreement and including but not limited to his rights and obligations pursuant to the Act and that this agreement excludes those rights and/or obligations. [The husband] further acknowledges that he is not acting under coercion or undue influence in the execution of this agreement."

Another clause of the agreement provided a mirror clause to the above clause as to the independent legal advice received by the wife.

At the time they entered into the agreement, the Family Law Act provided, in effect, that the contents on the solicitors' certificates also had to be contained in the agreement itself. The husband argued that the agreement did not do so.

The trial judge held:



The intention of Part VIIIA [the part dealing with binding financial agreements] is to enable ordinary people to enter into financial agreements which will deal with property and spousal maintenance and avoid the necessity of court proceeding. The agreements can be made before marriage and after marriage, whilst the relationship subsists or they can be made following the breakdown of marriage. The explanatory memorandum observes that it is the legislative intent to encourage the use of financial agreements under this Part of the Act. To enable such agreements to be binding the legislation requires that each of the parties to the agreements must have independent legal advice. If courts require strict interpretation of the legislation then this would have the effect of making such agreements less available to the broader community. It would positively discourage the use of financial agreements and it would limit the pool of legal practitioners who are equipped and willing to draft and/or advise in relation to such agreements. Such strict and inevitably narrow construction would add to the cost of such agreements and may put the cost to prepare and advise on them outside the financial means of the general community. That is not the legislative intent. The legislation does intend that the legal advice ought to be available Australia wide through the broad church of legal practitioners, whether specialist or not, whether in major capital cities, or in the suburbs or in the regions. Courts should not make the legal practitioners and the parties cross all of the “t’s” and dot all of the “i’s” to enter into and give effect to financial agreements. The form should not defeat the substance. The Act does not create a regime of strict compliance and there is a requirement on courts to give purpose to legislation. Accordingly, I will not be adopting a strict interpretive approach in terms of both the construction of the legislation and construction of the terms of the agreement. I will adopt the objective approach.


On appeal, the Full Court took a strict approach and upheld the appeal. It held:

The Act permits parties to make an agreement which provides an amicable resolution to their financial matters in the event of separation. In providing a regime for parties to do so the Act removes the jurisdiction of the court to determine the division of those matters covered by the agreement as the court would otherwise be called upon to do so in the event of a disagreement. Care must be taken in interpreting any provision of the Act that has the effect of ousting the jurisdiction of the court. The amendments to the legislation that introduced a regime whereby parties could agree to the ouster of the court’s power to make property adjustment orders reversed a long held principle that such agreements were contrary to public policy.


The Full Court found that it was not necessary to deal with the failure of the solicitor to recertify the agreement when it was amended, because the agreement did not strictly meet the requirements of section 90G of the Family Law Act and therefore was not binding.

Comment

The effect of this decision has sent shockwaves through some in the legal profession who are concerned that agreements will be easily set aside, resulting in many claims in matters that were otherwise settled.

It is absolutely imperative with these agreements that a very high level of compliance is reached, or the agreement will be set aside.

Friday, 6 June 2008

Same sex super changes introduced to the House

Attorney-General Robert McClelland has now introduced the Same-Sex Relationships (Equal Treatment in Commonwealth Laws- Superannuation) Bill 2008 to the House. I have set out his second reading speech below...

SAME-SEX RELATIONSHIPS (EQUAL
TREATMENT IN COMMONWEALTH LAWS—
SUPERANNUATION) BILL 2008
First Reading
Bill and explanatory memorandum presented by Mr
McClelland.
Bill read a first time.
Second Reading
Mr McCLELLAND (Barton—Attorney-General)
(9.29 am)—I move:
That this bill be now read a second time.
Introduction
The Same-Sex Relationships (Equal Treatment in
Commonwealth Laws—Superannuation) Bill 2008
introduces the first part of historic reforms to amend
Commonwealth laws that discriminate on the basis of
sexuality.
It is with immense pride that I introduce this bill,
marking a new chapter in Labor’s commitment to promoting
and protecting human rights in Australia—a
commitment that is based on the belief of the fundamental
equality of all persons.
The bill will amend the acts which govern the
Commonwealth government (defined benefit) superannuation
schemes and related taxation legislation and
acts that regulate the superannuation industry.
Discrimination on the basis of sexuality has largely
been removed from state and territory laws. This bill
will take equality for same-sex couples and their children
to the next level by introducing long overdue
Commonwealth reforms, removing discrimination
from superannuation laws as the first step.
HREOC report
I want to acknowledge the important role of the
Human Rights and Equal Opportunity Commission’s
inquiry which focused on discrimination in financial
and work related entitlements and benefits.
HREOC found that same-sex couples do not enjoy
the same entitlements as couples who are either married
or in opposite sex de facto relationships. Indeed,
the report gave a number of actual instances that any
fair-minded person would accept were unfair and inappropriate
in modern Australia.
On coming to office, we commissioned a whole-ofgovernment
audit of Commonwealth legislation building
on HREOC’s excellent work.
The audit confirmed HREOC’s findings. The audit
further identified that discrimination in the legal treatment
of same-sex couples and their children occurs in a
range of non-financial areas, such as administrative
and evidence laws. We have dealt with the issue of evidence
laws earlier today.
The audit also identified a number of statutory regulations
and instruments which include possibly discriminatory
terms. The government will review, and
where necessary, amend these instruments to remove
any differential treatment of same-sex couples.
This bill marks the first stage of the government’s
commitment to address this inequitable treatment in a
wide range of laws.
Superannuation
This bill will amend acts governing Commonwealth
government (defined benefit) superannuation schemes.
It will also amend related taxation and superannuation
regulatory acts.
The superannuation schemes covered by this bill
are:
• the Commonwealth Superannuation Scheme
• the scheme under the Superannuation Act 1922
• the Defence Force Retirement and Death Benefits
Scheme
• the Defence Forces Retirement Benefits Scheme
• the Judges’ Pensions Scheme
• the Federal Magistrates Disability and Death
Benefits Scheme
• the Governor-General Pension Scheme, and
• the Parliamentary Contributory Superannuation
Scheme.
The reforms in this bill are time critical. This is because
it will allow reversionary death benefits to be
paid to de facto same-sex partners and their children
where they currently have no entitlement.
For example, until these acts are amended, were a
scheme member to die, his or her same-sex partner
would not be entitled to receive a reversionary death
benefit. Similarly, children of that relationship may
also be unfairly deprived of a benefit. I would ask opposition
members to note that fact in their consideration
of granting cooperation in the passage of this legislation.
For same-sex partners and children of the relationship
to be deprived of those reversionary benefits, I
am sure all fair-minded members would agree, is discriminatory,
unfair and intolerable, and it is time that
we did something about it.
It is the case that superannuation legislation generally
refers to a spouse, which currently excludes samesex
partners. While same-sex partners may be able to
access some superannuation concessions as ‘dependants’—
for example, concessional treatment of death
benefits—this bill will make sure there is equal treatment
of same-sex couples and their children in this
area.
To quote HREOC’s report of its inquiry on same-sex
discrimination:
‘One of the main purposes of superannuation
schemes is to encourage savings during life which will
support a person’s family after he or she dies …
[s]uperannuation is often a person’s largest asset apart
from the family home. Most people expect that their
superannuation entitlements will be inherited by a
partner, children or other dependants. But for people in
same sex couples and families, this is not always the
case.’
This bill will remedy these injustices by allowing
same-sex couples and their children to access the benefits
and entitlements they have been denied for so long.
‘Partner’
The amendments in these acts revise the existing
definitions of ‘spouse’ and ‘child’, creating new definitions
that equally recognise opposite-sex and same-sex
relationships and partners, and the children they produce.
The bill will expand the notion of de facto relationship
by adding the new concept of a ‘couple relationship’,
which includes same-sex partners.
The bill will enable a relationship registered under
prescribed state laws to be evidence of the existence of
a same-sex relationship when considering who may be
entitled to a death or pension benefit. Regulations for
this purpose will be made under the Judges’ Pensions
Act 1968, which I administer, and for ease of administration
are applied to the other Commonwealth
schemes amended by the bill.
The preparation of this bill, which relates only to
Commonwealth (defined benefit) superannuation
schemes, has highlighted certain issues regarding the
framing of amendments. For example, we will further
consider the way relationships registered under state
and territory laws will be recognised in other Commonwealth
laws when developing the broader reforms
to be introduced in the second part of the same-sex
legislation reform program. It will also be necessary to
consider the need for consistency in Commonwealth
legislation in relation to the use of terms such as ‘partner’ and ‘spouse’, but these issues can be given further
consideration after we proceed with the expeditious
passage of this very important first tranche of legislative
reform.
‘Child’
The bill also allows for the equal recognition of
children who are the product of same-sex and oppositesex
relationships.
A child for this purpose is the product of a couple
relationship, where one partner is linked biologically to
the child or where one partner is the birth mother of the
child. By applying this definition, opposite-sex and
same-sex families are treated equally.
Furthermore, the new definition will solve the problems
arising from some surrogacy arrangements where
even children of an opposite-sex relationship may currently
fall definitionally outside the requirements of the
defined benefits legislation.
This approach imports a new standard of fairness
and consistency into the law in this area and provides
functional recognition of same-sex families in the
community.
The reforms in this bill will recognise real family
situations. Recognition is necessary if we are, as a
community, to remove discrimination against same-sex
families and their children.
Superannuation Industry (Supervision) Act 1993
The bill will also amend the Superannuation Industry
(Supervision) Act 1993, which establishes the superannuation
regulatory framework for regulated superannuation
funds. This will mean that superannuation
funds, should they wish to do so, will be able to
make allowance for same-sex couples and their children
in the same way that Commonwealth (defined
benefit) superannuation schemes will be able to do so.
If this bill is passed, I encourage all superannuation
funds across Australia to make provision for same-sex
couples and their children so that this discrimination is
completely removed from the superannuation industry.
Conclusion
This bill marks the first step in removing discrimination
against same-sex couples and their children in acts
governing Commonwealth (defined benefit) superannuation
schemes and related acts that have not moved
with the times.
I commend and I am greatly impressed by the dedicated
work of a number of highly talented public servants,
and specifically public service lawyers, in the
preparation of these reforms. They have done so diligently,
under the pressure of time, and their work has
been outstanding.
The reforms in this bill will make a practical difference
to the lives of a group of fellow Australians who
for far too long have suffered discrimination in superannuation
at a Commonwealth level. It is fair, it is equitable
and it is the right thing to do.
I commend the bill to the House and I look forward
to the opposition’s support.

Evidence Act Amendments put before the House

Commonwealth Attorney-General Robert McClelland has now moved that the Evidence Amendment Bill be read a second time.

I have set out below his second reading speech, which summarises the proposed amendments:

EVIDENCE AMENDMENT BILL 2008
First Reading
Bill and explanatory memorandum presented by Mr
McClelland.
Bill read a first time.
Second Reading
Mr McCLELLAND (Barton—Attorney-General)
(9.12 am)—I move:
That this bill be now read a second time.
This bill marks an important step in evidence law reform.
Members would be aware that the Commonwealth,
New South Wales, Tasmania, the Australian Capital
Territory and Norfolk Island have been part of a uniform
evidence law regime for over 10 years.
In 2005, the Australian, New South Wales and Victorian
Law Reform commissions were asked to inquire
into the operation of that regime and to propose updates
and amendments. Their work took some 18
months, involved consultations in every state and territory
and more than 130 written submissions. This culminated
in their report, Uniform evidence law.
The commissions reported that the uniform evidence
laws are working well. They found no major structural
problems with the legislation or with its underlying
policy. Their recommendations were aimed at fine tuning
the acts and promoting uniform evidence laws that
are more coherent and accessible; less complex and
reform unsatisfactory and archaic aspects of the common
law. These reforms will increase efficiencies for
the courts, legal practitioners and business and in turn,
benefit the broader community who access the courts.
In developing this bill, the Commonwealth has
worked constructively with the states and territories
through the Standing Committee of Attorneys-General.
The standing committee established a working group
which considered the report’s recommendations and
developed a model bill that implemented many of the
commissions’ recommendations. The model was also
considered by an expert reference group. The standing
committee endorsed the final model bill at its meeting
in July 2007.
The Evidence Amendment Bill varies from the
Standing Committee of Attorneys-General model in
only two regards—it does not introduce a professional
confidential relationship privilege and does not extend
existing client legal privilege and public interest immunity
to pre-trial proceedings. These are matters that
have been canvassed in the media extensively. The
government notes they are significant issues and we
will be considering these matters separately.
It is appropriate that the government considers issues
relating to privilege as it develops its response to
the Australian Law Reform Commission report, Privilege
in perspective, which I tabled earlier this year.
I can also advise that the government’s election policy,
Government Information: Restoring Trust and Integrity,
included commitments relating to journalist
shield issues, and the government is working on implementation
of these commitments.
Many of the amendments proposed in this bill today
are largely technical and in some cases they address
developments in case law. For example, the amendments:
• provide further guidance on the hearsay rule;
• introduce a general test for the coincidence rule;
• help to ensure the reliability of admissions in
criminal proceedings; and
• provide that the court may make an advance ruling
or advance finding in relation to any evidentiary
issue.
This bill also contains some significant reforms. For
example, it extends compellability provisions in the
Evidence Act to ensure that same-sex couples cannot
be compelled to give evidence against their partner.
This supplements the work being done by the government
to remove same-sex discrimination from a wide
range of Commonwealth laws.
The compellability provisions will also be extended
to provide that de facto partners who may not cohabit
but are in a genuine de facto relationship will have the
same right to object to giving evidence against their de
facto partner in a criminal proceeding as currently exists
for a married spouse.
The bill also provides new exceptions to the hearsay
and opinion rules for evidence/opinion given by a
member of an Aboriginal or Torres Strait Islander
group about the existence or non-existence, or the content,
of the traditional laws and customs of the group.
The oral tradition of Aboriginal or Torres Strait Islander
traditional laws and customs does not fit well
within existing hearsay and opinion rules. Yet evidence
of these matters is relevant in a variety of areas such as
native title, family law, criminal law defences and sentencing.
These amendments will make that evidence
easier to provide and more appropriately reflects how
knowledge of traditional laws and customs is recorded.
This bill also addresses the misconception that the
evidence of children is inherently less reliable than that
of adults. Specifically the bill provides that warnings
by a judge as to the reliability of a child’s evidence
should only be given where there are circumstances
particular to the child witness that warrant a warning.
Research conducted in recent years demonstrates that
children’s cognitive and recall skills have been undervalued.
For example, the joint ALRC and HREOC report
Seen and heard: priority for children in the legal
process noted that very young children are able to remember
and retrieve from memory very large amounts
of information, especially when the events are personally
experienced and highly meaningful.
These reforms will apply generally but will have
particular significance where the child witness has
been the victim of an offence.
Also, the bill recognises that the standard question
and answer format for giving evidence may be unsuitable
for a number of witnesses, such as children, and
people with an intellectual disability. Its provisions
extend the use of narrative evidence by providing the
court with the power to direct a witness to give evidence
wholly or partly in narrative form. This gives the
court flexibility in receiving the best possible evidence.
Again these reforms will apply generally but will
have particular significance where a child or a person
with an intellectual disability has been the victim of an
offence. Of course, before making such a direction the
court will take into account a range of matters, including
fairness to all parties. The fact that these provisions
have been introduced, in the context of children and
people with an intellectual disability perhaps being
among the most vulnerable in our community, is a significant
advance.
Further, this bill revises the test for determining a
witness’s competence to give evidence. This will enhance
the participation of witnesses, including children
and persons with an intellectual disability, in proceedings
and ensure that relevant information is before the
court.
Finally, the bill introduces a duty on the court to disallow
improper questions put to a witness during crossexamination.
This includes questions which may be
misleading or unduly harassing, intimidating, offensive
or repetitive. This replaces the current approach which
permits a court to disallow such questions. The commission’s
report had found that this approach in practice
had not provided a sufficient degree of protection
for vulnerable witnesses.
I am pleased to note that the New South Wales government
has already implemented the model evidence
reforms and that Victoria and other jurisdictions have
signalled their intention to join the uniform evidence
scheme.
In addition to implementing the model evidence bill,
this bill amends the Amendments Incorporation Act
1905, which will be renamed the Acts Publication Act
1905. These amendments will provide for certain
printed and electronic versions of acts (including compilations
of acts) to be taken, unless the contrary is
proven, to be a complete and accurate record of those
acts. This will facilitate parties before the courts being
able to prove the current state of the law.
This is a practical reform to improve the accessibility
of freely available authoritative information about
Australia’s laws and will allow courts to rely on electronic
versions of Commonwealth acts.

US: Release of DV victim from hospital can lead to hospital being sued

In a recent US case of McSwane v Bloomington Hospital and Healthcare System,
Malia and Monty Vandeneede were married for about a year. They divorced, but continued to live together for another two years. In 2005 Monty took Malia to Bloomington Hospital for treatment of lacerations. The hospital treated Malia for injuries she said she sustained when she fell of a horse onto some debris. The triage nurse noted that Monty would not let her get close to Malia and he was answering questions for her. The nurse noted other things that tipped her off that Malia’s injuries were not sustained from horse riding- Malia was not wearing underwear and her clothes were clean.

According to hospital policy, suspicions of spousal abuse after screening must be conveyed to the attending physician. There was no evidence that the triage nurse conveyed any suspicion to the emergency room physician who next saw Malia: Dr. Eelma, a surgeon. The surgical nurse noticed Monty’s defensive stance and suspected that Monty was involved in Malia’s injuries, however, Malia stuck to her story. Dr. Eelma told the surgical nurse that Malia’s mother, Ava McSwane, had reported that the injuries did not occur as Malia had stated. McSwane told a nurse that Monty had beaten Malia with a fireplace poker.

A nurse in the post-anaethesia care unit was told that domestic violence might be involved and that security had been called. The nurse noted that Malia was calm,and wanted to go home. Although Monty was calm, the nurse felt Monty was "creeping me out" and Monty was “really good at throwing off non-verbal intimidation.” The nurse suspected that Monty was the cause of the injuries.

Security took Malia to her car. The offer was made for her to stay in the hospital. She refused. Monty was compliant and not threatening.Malia's mother, McSwane pleaded with Malia not to leave with Monty but Malia told her to “stay out of their business.” Malia was asked if she wanted to press charges against Monty or leave with him, and she said she wanted to go home.

Soon after Malia was discharged, Monty killed her, and then committed suicide. McSwane, Malia’s mother and personal representative, sued the hospital and Dr. Eelma, who treated Malia, asserting they had a duty to protect her from domestic violence. The trial court granted summary judgment for the hospital and Dr. Eelma on the grounds they had no duty toward Malia, and that Malia was contributorily negligent.

The appellate court affirmed the summary judgment for Dr. Eelma on a procedural technicality, but found that the hospital was not entitled to summary judgment, on the ground that it may have had a duty of care to Malia.

The court said: "We believe a hospital’s duty of reasonable care requires consideration of evidence its patient is a victim of domestic abuse, just as it requires consideration of “the physical and mental ailments of the patient which may affect his ability to look after his own safety.” Summary judgment for the Hospital in the case before us on the ground it owed Malia no duty was error."

"There was evidence before the trial court that Malia was, in the space of a few hours while she was at the Hospital, given a general anesthetic, a relaxant, and numerous doses of various opiates for pain, and was advised by the Hospital not to make any important decisions. As explained below, this gives rise to a genuine issue of material fact as to whether her “mental condition and/or physical incapacities” were properly taken into account in addressing her contributory negligence."

"A hospital['s] ...independent duty to safeguard its patient from dangers that might result from circumstances within the hospital’s control extends to the discharge of a patient into the custody of the person who allegedly inflicted the injuries that necessitated her hospitalization. The Hospital therefore should not have been granted summary judgment on the ground it owed Malia no duty. In light of the conflicting factual inferences as to Malia’s contributory negligence, summary judgment for the Hospital on that ground was also improper."

This case is the latest in a series, starting with Tarasoff, in which doctors have been held in US courts to owe a duty of care to patients who are the subject of domestic violence, and a breach of that duty of care may lead to a damages claim. By virtue of smaller numbers, these claims, as far as I am aware, have not yet been brought in Australia. It is only a question of time.