Sunday, 31 August 2008

Australian Divorce rate down - again

According to the Australian Bureau of Statistics, the Australian divorce rate is down again, and has been going down consistently since 2001.

Here are the stats from the ABS site:

Selected divorce indicators - Australia: Selected years - 1988-2007

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1988 1998 2003 2004 2005 2006 2007

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Divorces granted no. 41 007 51 370 53 145 52 747 52 399 51 375 47 963
Crude divorce rate(a) 2.5 2.7 2.7 2.6 2.6 2.5 2.3
Divorces involving children(b)
Proportion of all divorces % 57.5 53.4 50.1 49.8 49.8 50.1 49.3
Average number of children per divorce(c) no. 1.88 1.88 1.87 1.87 1.87 1.88 1.88
Median age at divorce
Males years 37.6 40.5 42.6 43.0 43.5 43.9 44.2
Females years 34.8 37.8 39.9 40.3 40.8 41.1 41.3
Median length of marriage
To separation years 7.3 7.8 8.7 8.7 8.8 8.9 8.9
To divorce years 10.1 11.2 12.2 12.3 12.6 12.5 12.5
Type of applicant(d)
Male no. 15 280 16 004 17 229 16 365 16 020 15 171 13 216
Female no. 21 015 25 380 22 870 21 614 21 398 20 574 18 571
Joint no. 4 712 9 986 13 046 14 768 14 955 15 582 16 172

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(a) Per 1,000 estimated resident population at 30 June. See Glossary and Explanatory Notes 26 and 31 for more information.
(b) Unmarried children of the marriage who were aged under 18 years at the time of application for divorce. See Glossary for more information.
(c) Excludes divorces not involving children.
(d) Excludes divorces where type of applicant is not stated.



DIVORCES GRANTED

The number of divorces granted in Australia have been decreasing each year since reaching a peak in 2001.

This trend continued in 2007 with 47,963 divorces granted in comparison to 51,375 in 2006, showing a decrease of 3,412 or 6.6% over this period. The number of divorces granted in 2007 was 9.8% lower than five years ago, but only 6.6% lower than 10 years ago due to a peak in the number of divorces granted in 2001.



Australian divorce rate 1988 - 2007


Crude divorce rate is calculated as the number of divorces granted during a calendar year per 1,000 estimated resident population at 30 June. This provides a measure of divorce in relation to the total population. Refer to the Glossary and Explanatory Notes 26 and 31 for further definition.

As the number of divorces granted decreases and the population increases in Australia, the crude divorce rate has declined steadily since 2001. In 2007, the crude divorce rate was 2.3 people granted divorce per 1,000 estimated resident population, declining from 2.5 in 2006.

Crude Australian divorce rate 1988to 2007



DIVORCES INVOLVING CHILDREN

Over the last twenty years, the proportion of divorces involving children under 18 years has been decreasing, although this decline has slowed in recent years. The proportion of divorces involving children was 49.3% in 2007. The number of children affected by divorce has also decreased from 48,396 in 2006 to 44,371 in 2007, and is similar to the number of children recorded over twenty years ago.

Proportion of divorces involving children: Australia - 1988-2007(a)

Australian divorces involving children 1988 to 2007


AGE AT DIVORCE

Of all females granted divorce in 2007, 62.3% were aged under 45 years. In comparison, only 52.5% of males granted a divorce were in this age group.


Age when divorcing in 2007


Median age for males granted divorce in 2007 was 44.2 years, compared with 41.3 years for females.

Median age at divorce has been increasing steadily for both males and females over the past 20 years. This trend continued in 2007, with median age increasing by 0.3 years for males and 0.2 years for females.

The rise in the median age at divorce may be attributed to the increasing age at marriage, the increase in the interval between marriage and divorce, and reflective of the overall ageing of the Australian population.

Average age when divorcing 1988 to 2007




AGE-SPECIFIC DIVORCE RATES

Age-specific divorce rates can provide a more detailed picture of age at which people are granted divorce. These rates give an indication of the proportion of all males or females in a particular age group who were granted divorce. Further information on calculation of age-specific divorce rates is provided in the Glossary and Explanatory Notes 27-29 and 31-32.

For females, age-specific divorce rates in 2007 were highest for the 35 to 39 year age group, while among males, it was highest for the 40 to 44 year age group. This difference may reflect the tendency for females to marry at a younger age than males.

AGE-SPECIFIC DIVORCE RATES(a), Australia - Selected years - 1988-2007

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1988 1998 2003 2004 2005 2006 2007

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Male
Age group (years)
24 and under(b) 1.2 0.6 0.4 0.4 0.3 0.3 0.3
25-29 9.4 7.0 5.3 4.9 4.5 4.2 3.9
30-34 12.8 12.7 10.8 10.1 9.7 9.1 8.4
35-39 12.3 13.3 12.5 12.5 11.7 11.2 10.2
40-44 11.0 12.5 12.5 12.2 12.3 11.6 10.4
45-49 9.2 11.0 11.6 11.5 11.5 11.2 10.2
50-54 6.7 8.7 9.4 9.5 9.4 9.5 8.6
55-59 4.3 6.0 7.1 6.8 7.0 7.0 6.8
60-64 2.6 3.9 4.2 4.5 4.6 4.7 4.6
65 and over 1.1 1.4 1.5 1.6 1.7 1.6 1.6
Female
Age group (years)
24 and under(b) 2.8 1.6 1.1 1.0 0.9 0.9 0.8
25-29 12.7 11.0 8.5 8.0 7.3 7.0 6.4
30-34 12.9 14.2 13.0 12.4 11.8 11.1 9.9
35-39 11.6 13.2 13.0 12.9 12.8 11.9 11.0
40-44 10.0 11.7 12.2 12.1 12.0 11.8 10.8
45-49 7.8 9.5 10.4 10.4 10.3 10.3 9.4
50-54 4.6 6.8 7.3 7.5 7.7 7.5 7.2
55-59 2.7 3.9 4.7 4.7 4.9 5.0 4.7
60-64 1.6 2.2 2.8 2.9 2.9 2.9 2.8
65 and over 0.4 0.5 0.6 0.6 0.6 0.6 0.6

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(a) Per 1,000 estimated resident population of the same age at 30 June. See Explanatory Notes 27-29 and 31-32 for more information.
(b) From 2006 onwards, males and females under 16 years are excluded from the population because they are unlikely to be married under Australian legislation. Prior to 2006, males under 16 years and females under 18 years were excluded from the population. See Explanatory Notes 27-29 and 31-32 for more information.



LENGTH OF MARRIAGE FOR DIVORCING COUPLES

In 2007, median length of marriage to separation was 8.9 years. In comparison, the median length of marriage to separation in 2003 was 8.7 years, and in 1998 it was 7.8 years.

Median length of marriage to divorce was 12.5 years for divorces granted in 2007. In 2003, it was 12.2 years, and in 1998 it was 11.2 years.

Median length of marriage to separation and divorce has been steadily increasing over the last 20 years, although length of marriage to divorce has been increasing at a slightly faster rate than length of marriage to separation.

The difference between median length of marriage to separation and divorce was 3.6 years in 2007, compared with 3.5 years in 2003 and 3.4 years in 1998.


Average length between separating and divorcing in Australia 1998 to 2007


APPLICANT FOR DIVORCE

Over the last 20 years, the proportion of joint applications has been increasing, while the proportion of applications by only the male or female have decreased.

This trend has continued in 2007, with decreases of 2.0 percentage points and 1.3 percentage points respectively on the proportion of applications lodged by the male or female only. Conversely, the proportion of joint applications has increased by 3.4 percentage points in 2007.

Who asks for a divorce in Australia 1988- 2007




STATES AND TERRITORIES OF REGISTRATION

Divorce statistics in this publication are presented by the state or territory where the court granting divorce was located, rather than the state of usual residence of the applicants. The ABS advises caution in the interpretation of data at a state or territory level as applicants for divorce may apply through their nearest court rather than a court in their state or territory of usual residence. Refer to Explanatory Notes 20 to 25 for more information.

In 2007, there were fewer divorces granted in all states and territories across Australia compared with 2006.More divorces were granted by courts in New South Wales (13,726) than any other state. Victorian courts granted 11,833 divorces and Queensland courts granted 11,058 divorces.

Number of divorces - by jurisdiction(a): Selected years - 1988-2007

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NSW Vic. Qld SA WA Tas. NT ACT

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1988 11 880 10 250 7 690 4 031 3 964 1 220 275 1 697
1998 14 987 12 307 11 349 4 159 5 268 1 322 457 1 521
2003 16 285 12 865 10 681 4 151 5 685 1 336 490 1 652
2004 15 007 12 544 13 279 4 147 4 337 1 404 434 1 595
2005 15 172 12 512 12 383 3 669 5 265 1 346 470 1 582
2006 14 482 12 110 12 175 3 913 5 544 1 233 426 1 491
2007 13 726 11 833 11 058 3 534 4 932 1 127 417 1 333

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(a) Refers to state or territory location of the court granting divorce. See Explanatory Notes 20-25 for more information.


The following table provides a summary of selected indicators of divorce granted in 2007 by the state and territory where the court granting divorce was located.


Selected divorce indicators, States and territories(a) - 2007

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NSW Vic. Qld SA WA Tas. NT ACT(b) Aust.(c)

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Divorces granted no. 13 726 11 833 11 058 3 534 4 932 1 127 417 1 333 47 963
Crude divorce rate(d) 2.0 2.3 2.6 2.2 2.3 2.3 1.9 np 2.3
Divorces involving children(e)
Proportion of all divorces % 46.5 49.6 51.7 51.5 48.9 50.4 45.6 51.8 49.3
Average number of children per divorce(f) no. 1.8 1.9 1.9 1.9 1.9 2.0 2.0 2.0 1.9
Median age at divorce
Males years 43.5 43.8 44.6 45.1 45.2 45.0 44.4 43.8 44.2
Females years 40.5 41.1 41.6 42.4 42.2 42.1 41.2 40.9 41.3
Median length of marriage
To separation years 7.7 8.8 9.2 10.4 9.9 10.1 8.3 9.6 8.9
To divorce years 11.2 12.4 12.9 14.0 14.0 13.8 12.8 12.9 12.5
Type of applicant(g)
Male no. 3 858 3 460 2 993 940 1 207 320 111 326 13 216
Female no. 5 209 4 791 4 324 1 560 1 644 485 132 424 18 571
Joint no. 4 658 3 580 3 741 1 034 2 080 322 174 583 16 172

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np not available for publication but included in totals where applicable, unless otherwise indicated
(a) Divorces are presented by the state/territory location of the court granting divorce rather than usual residence, and as such caution should be taken in comparing divorce numbers with the populations of each state/territory. See Explanatory Notes 20-25 for more information.
(b) Rates for the Australian Capital Territory are not published due to the high proportion of applicants from south-eastern New South Wales and Victoria who apply for divorce through Australian Capital Territory courts. See Explanatory Note 22 for more information.
(c) The total may be greater than the sum of its components as it includes divorces granted where the state/territory of registration was not available.
(d) Per 1,000 estimated resident population at 30 June. See Glossary and Explanatory Notes 26 and 31 for more information.
(e) Unmarried children of the marriage who were aged under 18 years at the time of application for divorce. See Glossary for more information.
(f) Excludes divorces not involving children.
(g) Excludes divorces where type of applicant is not stated.

Risk of unintentional injury death is high for young children living with unrelated adults

Risk of unintentional injury death is high for young children living with unrelated adults
COLUMBIA, Mo. – Injuries are the leading cause of death among children after the first year of life, according to the Centers for Disease Control and Prevention. In a new study, a University of Missouri professor found that children living in households with unrelated adults are six times more likely to die of maltreatment-related unintentional injuries, compared to children living with two biological parents. The risk of maltreatment death is double for children living with foster or step-parents, or other related adults. However, the risk is not higher for children living in households with a single biological parent and no other adults.

Patricia Schnitzer, assistant professor in the MU Sinclair School of Nursing, examined eight years of data from the Missouri Child Fatality Review Program, which was established to accurately identify the circumstances and causes of all child deaths. Schnitzer identified 380 children under the age of five who died of an unintentional injury that occurred when a parent or other adult caregiver was either not present, was present but not capable of protecting the child, placed the child in an unsafe sleep environment, or failed to use legally mandated safety devices.

"In most cases, we found that the parent or other adult responsible for supervising the child simply was not present when the injury occurred," Schnitzer said. "Young children need nearly constant supervision, and of course, that's not always possible, but it should be the parent's highest priority. Many infants died because parents placed them in an unsafe sleep environment. Parents may not be aware of what's safe and what isn't, especially with so much new information being released about safe sleeping environments for infants. In other cases, parents failed to use mandated safety devices such as car seats, or the adult was present when the injury occurred but could not protect the child because they were under the influence of drugs or alcohol."

Children who died of maltreatment-related unintentional injuries were more likely to be male, born to young, unmarried, Medicaid-eligible mothers who had less than a high school education and received late or no prenatal care during pregnancy.

"What we know is that these injuries can be prevented," Schnitzer said. "The importance of intervention is huge; recognizing at-risk families can help care providers take proper action. Nurses and other health care providers often encounter families with young children, but there isn't enough time to address all aspects of child care with every single family. Care providers can use these findings to identify high-risk families and provide them with specific information or referrals."

The study, "Household Composition and Fatal Unintentional Injuries Related to Child Maltreatment," was co-authored by Bernard G. Ewigman, professor and chairman of the Department of Family Medicine in the Pritzker School of Medicine at the University of Chicago. It was published in the Journal of Nursing Scholarship.

Saturday, 30 August 2008

Antidepressants may impair driving ability, new research finds

Antidepressants may impair driving ability, new research finds
Depressed drivers on meds performed worst in driving simulation
BOSTON – People taking prescription antidepressants appear to drive worse than people who aren't taking such drugs, and depressed people on antidepressants have even more trouble concentrating and reacting behind the wheel.

These were the conclusions of a study released Sunday at the Annual Convention of the American Psychological Association.

University of North Dakota psychologists Holly Dannewitz. PhD, and Tom Petros, PhD, recruited 60 people to participate in a driving simulation in which participants had to make a series of common driving decisions, such as reacting to brake lights, stop signs or traffic signals while being distracted by speed limit signs, pylons, animals, other cars, helicopters or bicyclists. The simulation tested steering, concentration and scanning. Thirty-one of the participants were taking at least one type of antidepressant while 29 control group members were taking no medications with the exception of oral contraceptives in some cases.

The group taking antidepressants was further divided into those who scored higher and lower on a test of depression. The group taking antidepressants who reported a high number of symptoms of depression performed significantly worse than the control group on several of the driving performance tasks. But participants who were taking antidepressants and scored in the normal range on a test to measure depression performed no differently than the non-medicated individuals.

"Individuals taking antidepressants should be aware of the possible cognitive effects as [they] may affect performance in social, academic and work settings, as well as driving abilities," the researchers wrote. "However, it appears that mood is correlated with cognitive performance, more so than medication use."

Americans' use of antidepressant drugs such as Prozac, Paxil or Zoloft, nearly tripled in a decade, according to the 2004 Health United States report, issued by the National Center for Health Statistics. Among women, one in 10 takes an antidepressant drug, according to the government.


###
Presentation: "The Effects of Antidepressants on Cognitive and Driving Performance," Holly J. Dannewitz, PhD, and Thomas Petros, PhD, University of North Dakota; Poster Session 4110, 10:00 – 11:50 AM, Sunday, Aug. 17, Boston Convention and Exhibition Center, Exhibit Halls A and B1.

Friday, 29 August 2008

Surviving financially after separating

I came across an excellent article by financial advisor Donal Griffin in The Australian about traps to look out for on property settlement. It covers the basics of tax and stamp duty issues, as well as potential capital gains implications, and the options of taking a super split instead of cash.

Going through a property settlement requires in my view a consideration of what options may be available in splitting up the property and super. Sometimes the most obvious answer is the best. Sometimes it is not. Sometimes the wrong option may cost a client thousands or tens of thousands of dollars.

The article underlines two things:

1.the need to get timely advice from an independent, qualified financial planner. Family lawyers should not give advice on investment options. That's what financial planners and tax advisors do. As a general rule, family lawyers do not have the expertise. They should have the expertise to advise on the family law implications of a deal.

2. the self-evident benefits of negotiating and cutting a deal, whether through mediation or otherwise- and avoiding like the plague having a judge decide. A judge, being a third party who does not know either of the people involved, and generally not being aware of the investment options for either of the parties, will impose a decision, whether the parties like it or not. Negotiations allow substantial more control to a party to come up with a mix of options that is better than have one imposed by a judge.

Non- compliant Hague countries: US State Department

The US State Department in its 2008 report as to compliance with the Hague Convention on the Civil Aspects of International Child Abduction, commonly known as the Hague Convention, has listed the following countries on its shame list:

Countries not compliant

Honduras

Amazing what a year can do. In last year's report, the State Department identified Honduras, plus Austria, Ecuador, Mauritius and Venezuela.

Countries demonstrating patterns of non-compliance

Brazil

Bulgaria

Chile

Ecuador

Germany

Greece

Mexico

Poland

Venezuela

Last year, Brazil, Colombia, Greece, Mexico, Panama, and Turkey were deemed "not fully compliant; countries of concern were Hungary,Poland,Romania,Spain and The Bahamas; and there were enforcement problems in Germany,France,Israel,Poland, Sweden and Switzerland.

The State Department details current issues with Austria, Germany, latin American countries, the Czech Republic, Colombia, Israel, the Netherlands, Saint Kitts and Nevis (where given the tiny size of the country, the country it is alleged that the child cannot be located!)and Slovakia.

Honduras

Honduras does not have a functioning
Central Authority, which severely limits its ability to meet Convention
obligations. Although the Honduran Institute of Children and Family
(IHFNA) is charged with handling Convention applications as the
named Honduran Central Authority, the USCA is not aware of any
staff that performs the required functions. In spite of numerous attempts
by the USCA to contact Central Authority staff members through
diplomatic channels, to date we have received no response from the
Central Authority.
Two long-standing unresolved abductions from the United States show
a misunderstanding of the Convention by Honduran courts. These
cases, which are discussed in the “Unresolved Cases” section of this
report, are examples of the institutional weakness of the Convention
process in Honduras that must be resolved for Honduras to become
compliant. Courts continue to prove unreliable in adjudication of
first instance Convention claims, and reviewing courts have rejected
meritorious claims without adhering to valid Convention principles.
Finally, Honduras has failed to pass legislation implementing the
Convention in Honduran law. While the Honduran legislature
introduced a decree to approve the National Law to Resolve
International Child Abduction Cases, as of the end of the reporting
period, that law has not been passed.

Brazil

Brazil continued to demonstrate patterns of noncompliance with the
Convention in its judicial performance. The USCA notes several
instances during FY 2007 in which Brazilian courts treated Convention
cases as custody decisions, rather than applying the principles of
wrongful removal or retention laid out in the Convention. In two cases,
Brazilian judges refused returns to the United States, citing the “best
interests of the child.” These decisions contradict the Convention, as
the Preamble of the Convention declares that the interest of children
is attained through their return to their country of habitual residence.
In addition, the USCA notes that judges in some cases continued to
demonstrate a bias towards mothers and towards Brazilian citizens.
Further, the judicial process is excessively lengthy, with cases going on
well beyond the six weeks mandated by the Convention. The appeals
process adds many months—and sometimes more—to Convention
cases. For cases to proceed more quickly, the USCA finds that parents
filing the application for return of their child need to hire a private
attorney with experience handling Convention cases.
The Brazilian Central Authority is attempting to limit the number of
judges who have authority to hear Convention cases. Additionally, a
number of judges participated in a judicial seminar in December 2006,
which was sponsored by the Hague Permanent Bureau and attended by
a representative of the USCA. Despite these efforts, three abductions
from the United States, initially reported in 2004 still remain
unresolved (as detailed in the Unresolved Cases section of this report).

Bulgaria

Bulgaria demonstrated patterns of noncompliance in its judicial
performance during FY 2007. Convention cases from the United States
are delayed excessively in Bulgarian courts. Additionally, the courts
have a tendency to treat Convention cases as custody determinations,
failing to apply the Convention principles of wrongful removal or
retention in deciding whether or not to return a child. Document
requests by the courts indicate that the judges are amenable to
considering evidence that is not relevant to the criteria enumerated
by the Convention (but would be relevant in a custody decision). The
Bulgarian judiciary would benefit from additional training about the
Convention, but the USCA is not aware of efforts by the Bulgarian
Central Authority to try to improve the judiciary’s understanding
of the Convention.


Chile

Convention cases continue to be
improperly treated as custody decisions by the court. In addition, U.S.
parents continue to experience a bias in courts in favor of the Chilean
parent, especially Chilean mothers. This pattern of noncompliance in
judicial performance is particularly noteworthy because the Chilean
Supreme Court is involved. Appeals to the Supreme Court caused
significant delays in cases. In some cases, these delays were significant
enough that the Supreme Court found a child to be well settled in his/
her new environment, a finding that excuses a court from ordering a
return under the Convention.
The Chilean Central Authority (CCA) is working to address the
compliance failures of the Chilean judiciary. In one ongoing case, the
CCA filed a disciplinary action against a Family Court judge who had
ignored the established procedural rules and requested evidence beyond
the scope of the Convention. The CCA is working to implement the
use of liaison judges to act as resources for other judges in Convention
cases.

Ecuador

The Department finds that Ecuador demonstrated patterns of
noncompliance with the Convention during FY 2007 in both its judicial
performance and its central authority performance. Case hearings
are excessively delayed, in violation of the Convention’s principle of
promptly returning children to their habitual country of residence. In
addition, courts improperly treat cases as custody decisions, rather than a
determination of the appropriate jurisdiction to decide custody.
During the reporting period, three cases from the United States were
resolved by Ecuador’s courts—all resulting in the denial of the child’s
return to the United States. In two of these cases, the rulings were
based upon the testimony of the child. In the third case, the petition was
submitted in December 2005, but a hearing was not held until October
2006, an excessive delay of ten months. Due to this delay, the judge
found that the child was resettled in his new environment and denied
the return.
Efforts to communicate about these cases with the Ecuadorian
Central Authority (ECA) have not been effective. The ECA has been
consistently unresponsive to the USCA’s requests for case updates and
copies of court rulings. The USCA is not aware of any efforts by the
ECA to train judges about the Convention.

Germany

Germany continued to demonstrate patterns of noncompliance with
the Convention in FY 20007. The Department continues to observe
unwillingness on the part of some judges, law enforcement personnel,
and others within the child welfare system in Germany to vigorously
enforce German orders granting parental access or return of childen in
both Convention and non-Convention cases. American parents often
obtain favorable court judgments regarding access and visitation, but
the German courts’ decisions can remain unenforced for years. Since
physical force cannot be used to enforce court orders and legal sanctions
are rare, taking parents can and do avoid allowing court-ordered access.
As a result, a number of U.S. parents still face problems obtaining access
to and maintaining a meaningful parent-child relationship with their
children who remain in Germany.
Enforcement of court-ordered access and returns remains a continued
topic of discussion at US-Germany bilateral meetings. The USCA
notes that the German Ministry of Justice continues to pursue a judicial
outreach program aimed at addressing these issues.

Greece

Greece’s record of compliance with the Convention in FY 2007
was mixed, involving both successful returns as well as cases in
which Greece appears to have been non-compliant with Convention
principles. Our most serious and systematic concern involves lengthy
delays in Convention proceedings on virtually all cases. In addition,
in our assessment, the judiciary too frequently denies returns based
on routine acceptance of an Article 13(b) . While these patterns of
noncompliance indicate that the Greek judiciary requires further
education about the Convention, we note steps taken by the Ministry
of Justice to train sitting judges and students training to be judges
on Convention procedures at the School of Judges in Thessaloniki,
including two workshops which were held during FY 2007.

Mexico

Many of the systemic problems mentioned in previous compliance reports
persist. Locating children or taking parents in Mexico continues to be
a serious impediment for Convention applicants, and often takes years.
Of the USCA’s 31 unresolved cases from Mexico, 23 remain unresolved
because the taking parents and the children have not been located (see
the “Unresolved Cases” section of this report for more information).
This inability to locate abducted children taken to Mexico remains the
single largest frustration that left-behind parents in the United States
face. Inadequate resources are devoted to locating missing children,
severely undermining successful implementation of the Convention in
Mexico. Cases can remain unresolved for years, as the taking parent
and the child/ren are not located. Even in cases in which parents
and children are located, taking parents often hide successfully when
ordered to appear before a judge for a Convention hearing. Mexico
must recognize the critical need to devote more resources to locating
missing children and bringing abducting parents to justice in order to
become compliant with the Convention.
The Department also continues to note patterns of noncompliance in
Mexico’s judicial system. Abuses of the Amparo appeal system during this
reporting period often led to excessive delays in Convention cases and
further increased the legal costs incurred by the left-behind parent. In
the few successful cases that led to the return of the child to the United
States, the left-behind parent turned to a private attorney who better
understood the principles of the Convention.

Poland

Specifically, compliance failures in Poland stem from the Polish courts
inability to enforce court ordered returns under the Convention. In
more than one case, Polish authorities were unable to locate the children
and their taking parents after courts ordered the return of a child.
Law enforcement in Poland is limited by the fact that neither parental
abduction nor the failure to comply with a Convention return order
is a criminal offense in Poland. Consequently, Polish authorities
have fewer investigative resources available to locate children and their
taking parents. For several years, the Polish Central Authority has
told the USCA that they intend to propose legislation to criminalize
parental abduction, but the USCA is not yet aware that such legislation
has been introduced.

Venezuela

The USCA finds communication with the Venezuelan Central Authority
(VCA) to be an ongoing challenge. For example, the VCA did not
report a return order issued and executed in May to the USCA until
October, despite the USCA’s repeated requests for information on the
progress of the case. The USCA also notes patterns of noncompliance
in Venezuela’s judicial performance. Custody provisions are regularly
incorporated into Convention decisions. In addition, despite return
orders issued by lower courts, the taking parents can and do take
advantage of the prolonged appeals process to significantly delay the
child’s return. These delays are particularly pronounced in cases in
which the left-behind parent can not afford to retain a private attorney.
Without the use of a private attorney, cases can languish in the courts
indefinitely. For example, an application submitted in March 2007 is
still pending without a hearing date.

Mediation

The USCA believes that mediation could be a
good tool to reduce litigation in Convention
cases, lowering the level of conflict between
the parties and speeding up the resolution
of the cases. Several intercountry mediation
projects have shown that parents can reach
agreement for custody and visitation, with
proper professional intervention, can reach
agreement for custody and visitation. The
Department has seen encouraging results from
mediated settlements in France, Germany, and
the United Kingdom.

Thursday, 28 August 2008

Coalition seeks to alter proposed de facto laws: Brandis

Federal Shadow Attorney-General George Brandis has flagged that the coalition will seek to amend proposed changes to cover de facto and same sex couples so as to state clearly that those relationships cannot be equated with that of marriage, according to The Australian.

Adults easily fooled by children's false denials

Adults are easily fooled when a child denies that an actual event took place, but do somewhat better at detecting when a child makes up information about something that never happened, according to new research from the University of California, Davis. The research, which has important implications for forensic child sexual abuse evaluations, will be presented Sunday, Aug. 17, at the annual meeting of the American Psychology Association in Boston.

"The large number of children coming into contact with the legal system – mostly as a result of abuse cases – has motivated intense scientific effort to understand children's true and false reports," said UC Davis psychology professor and study author Gail S. Goodman. "The seriousness of abuse charges and the frequency with which children's testimony provides central prosecutorial evidence makes children's eyewitness memory abilities important considerations. Arguably even more important, however, are adults' abilities to evaluate children's reports."

In an effort to determine if adults can discern children's true from false reports, Goodman and her co-investigators asked more than 100 adults to view videotapes of 3- and 5-year-olds being interviewed about "true" and "false" events. For true events, the children either accurately confirmed that the event had occurred or inaccurately denied that it had happened. For "false" events – ones that the children had not experienced – they either truthfully denied having experienced them or falsely reported that they had occurred.

Afterward, the adults were asked to evaluate each child's veracity.

The adults were relatively good at detecting accounts of events that never happened. But the adults were apt to mistakenly believe children's denials of actual events.

"The findings suggest that adults are better at detecting false reports than they are at detecting false denials," Goodman said. "While accurately detecting false reports protects innocent people from false allegations, the failure to detect false denials could mean that adults fail to protect children who falsely deny actual victimization."

Wednesday, 27 August 2008

Semple review: will the FMC be split?

The Australian reported two days ago that the Semple review into the operation of the Family and Federal Magistrates Courts is considering three options: splitting the Federal Magistrates Court into arms of the Federal and Family Courts respectively, changing the standing of the Federal Magistrates Court, or the creation of a Federal Courts Authority.

Federal Attorney-General Robert McClelland has commissioned former Attorney-General's Department guru to undertake a review of the operation of the Family Court, the Family Court of Western Australia and the Federal Magistrates Court.

I am only a little fish in a big pond. From this Brisbane family lawyer's point of view, the current administrative arrangement between the Family Court and the Federal Magistrates Court is crazy. Federal Magistrates have far too much work to do. There seems to be duplication between those courts in some of the administrative positions.

But to create a Federal Courts Authority? Madness. This is an authority that would be beholden to no court and to no one but the Attorney-General. Each court should have the resources that it needs. The media has taken great pleasure in repeating the gossip about lack of teabags in Adelaide. Do we want to repeat those fights with more bureaucracy?

Biological fathers not necessarily the best, social dads parent well too

A large number of U.S. children live or will live with a "social father," a man who is married to or cohabiting with the child's mother, but is not the biological father. A new study in the Journal of Marriage and Family examined differences in the parenting practices of four groups of fathers according to whether they were biologically related to a child and whether they were married to the child's mother. Researchers found that married social fathers exhibited equivalent or higher quality parenting behaviors than married and cohabiting biological fathers.

Furthermore, whereas married and cohabiting biological fathers displayed relatively similar quality parenting, the parenting practices of married social fathers were of higher quality than those of cohabiting social fathers. Married social fathers were more engaged with children, took on more shared responsibility in parenting, and were more trusted by mothers to take care of children.

Led by Lawrence M. Berger, PhD, MSW, of the University of Wisconsin-Madison, participants were drawn from the Fragile Families and Child Wellbeing Study, a longitudinal study of children born in 20 large U.S. cities in the late 1990s and early 2000s. Sample children were mostly born to unmarried parents and had been followed from birth to approximately age five.

Analyses and regression results from interviews with mothers revealed that they perceived married social fathers to be engaged in relatively high quality parenting practices with the five-year-old children. Most notably, social fathers exhibited significantly higher levels of cooperation in parenting than biological fathers.

"On the whole, our findings suggest that marriage is a better predictor of parenting quality with regard to social fathers than biological fathers," the authors conclude. "Our study is relevant to understanding the quality of parental care that children receive from resident fathers across a range of family configurations that are now commonly experienced by children."

This study is published in the August 2008 issue of the Journal of Marriage and Family.

Tuesday, 26 August 2008

What does "without prejudice" mean?

One of the most common tags seen on letters from lawyers is "without prejudice". Sometimes it is used on letters where clearly the contents of the letter are not without prejudice and would be seen as an open letter that can be used as evidence in the usual way.

The High Court in Field v Commissioner for Railways (NSW) (1957) held:

The law relating to communications without prejudice is of course familiar. As a matter of policy the law has long excluded from evidence admissions by words or conduct made by parties in the course of negotiations to settle litigation. The purpose is to enable parties engaged in an attempt to compromise litigation to communicate with one another freely and without the embarrassment which the liability of their communications to be put in evidence subsequently might impose upon them. The law relieves them of this embarrassment so that their negotiations to avoid litigation or to settle it may go on unhampered. This form of privilege, however, is directed against the admission in evidence of express or implied admissions. It covers admissions by words or conduct. For example, neither party can use the readiness of the other to negotiate as an implied admission. It is not concerned with objective facts which may be ascertained during the course of negotiations. These may be proved by direct evidence. But it is concerned with the use of the negotiations or what is said in the course of them as evidence by way of admission. For some centuries almost it has been recognised that parties may properly give definition to the occasions when they are communicating in this manner by the use of the words "without prejudice" and to some extent the area of protection may be enlarged by the tacit acceptance by one side of the use by the other side of these words


The purpose of making without prejudice negotiations of course is to try and negotiate without having the words thrown back at you, especially in the heat of cross-examination.

It therefore enables people to negotiate frankly, while at the same time they can run the matter strongly in case it doesn't settle. You don't need to have started a court case to make a without prejudice offer.

There's no point sticking without prejudice on every letter - because the privilege only applies to settlement negotiations, not other types of communications. The court can always say that a letter that has the tag "without prejudice" is not really a without prejudice" communication.

Of course, the privilege is not limited to letters, but also includes some phone calls and all communications between parties that involve settlement negotiations.

Without prejudice in family law

Family law has some unique features.

The first is that in family law there are many more self-represented litigants. It is important that if communications with self-represented litigants are without prejudice, they are clearly stated to be so.

The second is that family law stretches across the nation but different rules can apply. In proceedings relating to child support, under the Family Law Act or in NSW or Victoria, the provisions of the Evidence Act apply. The NSW, Victorian and Commonwealth Evidence Acts are almost identical. In the other States, their own, different, Evidence Acts apply. For example, de facto property proceedings in Queensland are dealt with under that State's Evidence Act.

The difference is significant, because the NSW, Victorian and Commonwealth Acts seek to define the without prejudice privilege. The other States do not - and rely on the common law rules.

The third is that in children's litigation, different rules can apply. The Family and Federal Magistrates Courts can now ignore the rules of evidence in children's proceedings. The logic, of course, is because things should not be hidden when the best interests of children are at stake.

In Hutchings and Clarke (1993) the father was found to have said during a phone call to the mother that he would not pursue custody of their son if he did not have to pay child support. The trial judge held that the phone call was without prejudice, but that the rights of the child overrode that of the privilege as it clearly showed that the father was prepared to trade the rights of his son for money. The trial judge's reasons were upheld on appeal.

How the NSW, Victorian and Commonwealth Evidence acts change the common law


Section 131 of the Commonwealth Act provides (and similar provisions in NSW and Victoria):

(1) Evidence is not to be adduced of:

(a) a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or

(b) a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.

(2) Subsection (1) does not apply if:

(a) the persons in dispute consent to the evidence being adduced in the proceeding concerned or, if any of those persons has tendered the communication or document in evidence in another Australian or overseas proceeding, all the other persons so consent; or

(b) the substance of the evidence has been disclosed with the express or implied consent of all the persons in dispute; or

(c) the substance of the evidence has been partly disclosed with the express or implied consent of the persons in dispute, and full disclosure of the evidence is reasonably necessary to enable a proper understanding of the other evidence that has already been adduced; or

(d) the communication or document included a statement to the effect that it was not to be treated as confidential; or

(e) the evidence tends to contradict or to qualify evidence that has already been admitted about the course of an attempt to settle the dispute; or

(f) the proceeding in which it is sought to adduce the evidence is a proceeding to enforce an agreement between the persons in dispute to settle the dispute, or a proceeding in which the making of such an agreement is in issue; or

(g) evidence that has been adduced in the proceeding, or an inference from evidence that has been adduced in the proceeding, is likely to mislead the court unless evidence of the communication or document is adduced to contradict or to qualify that evidence; or

(h) the communication or document is relevant to determining liability for costs; or

(i) making the communication, or preparing the document, affects a right of a person; or

(j) the communication was made, or the document was prepared, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty; or

(k) one of the persons in dispute, or an employee or agent of such a person, knew or ought reasonably to have known that the communication was made, or the document was prepared, in furtherance of a deliberate abuse of a power.

(3) For the purposes of paragraph (2)(j), if commission of the fraud, offence or act is a fact in issue and there are reasonable grounds for finding that:

(a) the fraud, offence or act was committed; and

(b) a communication was made or a document was prepared in furtherance of the commission of the fraud, offence or act;

the court may find that the communication was so made or the document so prepared.

(4) For the purposes of paragraph (2)(k), if:

(a) the abuse of power is a fact in issue; and

(b) there are reasonable grounds for finding that a communication was made or a document was prepared in furtherance of the abuse of power;

the court may find that the communication was so made or the document was so prepared.

(5) In this section:

(a) a reference to a dispute is a reference to a dispute of a kind in respect of which relief may be given in an Australian or overseas proceeding; and

(b) a reference to an attempt to negotiate the settlement of a dispute does not include a reference to an attempt to negotiate the settlement of a criminal proceeding or an anticipated criminal proceeding; and

(c) a reference to a communication made by a person in dispute includes a reference to a communication made by an employee or agent of such a person; and

(d) a reference to the consent of a person in dispute includes a reference to the consent of an employee or agent of such a person, being an employee or agent who is authorised so to consent; and

(e) a reference to commission of an act includes a reference to a failure to act.

(6) In this section:

"power" means a power conferred by or under an Australian law.


As can be seen, the rules are now highly technical.

One of the key provisions is s.131(2)(h)- so that offers made in without prejudice negotiations can be relevant on costs. In property settlement proceedings, for example, if you make a without prejudice offer that was more generous than the other side was awarded, you might get an order for costs from the day that you served the offer.

The Full Court of the Family Court has held that that offer can be oral, so although the offer might be made without prejudice, it might be necessary to be very careful as to any offer that is made.

Monday, 25 August 2008

Superannuation Complains Tribunal case: not changing the superannuation beneficiaries

In a recent Superannauation Complaints Tribunal decision, the complainant was the mother of the deceased member. She complained about the Trustee's decision to pay the death benefit to a trust for the benefit of the deceased member's 3 minor children.

The member had nominated his former wife to receive his death benefit when he joined the fund in 2001 and did not update the nomination after their divorce in October 2005. In his will made in June 2005, he appointed his brother as executor and left his estate to be distributed one quarter to his mother and the balance to his children.

The Trustee had found that the complainant was not financially dependent on her son, arguing that the monies paid to her by him were paid as board or reimbursement of expenses incurred to provide food and accommodation rather than in the provision of any financial support to her. The complainant claimed that she was partially financially dependent on her son and in an interdependency relationship with him.

She stated that he lived with her for three and a half years and paid her $50 to $80 per week. She referred to a case where the court held that a mother was financially dependent on a son who paid $30 a week to her. As to interdependency, she submitted that she and her son had lived together, provided each other with some financial support and provided each other with domestic support and personal care.

The submission made on behalf of the 3 children stated that the deceased member had paid about $1000 per month as child support before his work injury in December 2005 and thereafter about $20 per month. Some doubts were expressed about the deceased member's ability to pay board of $60 to $80 per week after December 2005.

The Tribunal considered the wishes of the Deceased Member, noting that the Tribunal concluded that the wishes of the deceased member were not clear, as his will did not expressly provide for the superannuation benefit to be shared between his mother and his children, unless the benefit was paid to the estate.

The Tribunal decided that the complainant could be considered as a financial dependant of her son "on the basis of irregular and varying payments made by the Deceased Member to the Complainant over a period of three years prior to his death." The Tribunal also stated that the deceased member had a close relationship with his mother and with his children and noted that, while he was working, a significant proportion of his income was used to support his children. The Tribunal stated that the Trustee clearly took into account the greater level of financial support that the member's children would have required over the period of their infancy. The Tribunal affirmed the Trustee's decision as being fair and reasonable in the circumstances.

Sunday, 24 August 2008

A man who needs a prenup: Phil Collins divorces again

Phil Collins

Third time unlucky in love, rocker Phil Collins has just spent GBP25M on wife number three, Orianne Cevey, spending GBP42M all up for his three ex-wives, out of a rapidly depleting fortune of GBP42M.

Prenups are not for everybody, but for someone like Phil, with his track record, one would hope before he hooks up again that he will have a watertight prenup.

NZ: Judge calls for greater security, access to criminal records


The Chief Judge of the New Zealand Family Court, Peter Boshier has just delivered a landmark speech on domestic violence at a domestic violence conference in New Zealand.

Here are some highlights:

New Zealand Domestic Violence Statistics

In the calendar year 2006, New Zealand Police recorded 38,369 family violence related incidents, and 32,675 family violence related offences, making up a total of 71,044 family violence related occurrences. In the same year 16 of the 49 murders were recorded as domestic violence related.The continuing prevalence of domestic violence evident in New Zealand has seen the situation described as an epidemic in this country; and horrifying statistics now predict one in four women and just under one in five men will be the victim of domestic violence at some point in their lifetime.

Between 2000 and 2007, applicants for protection orders who are by gender, 91% female, 8% male and 1% more than one party, have decreased steadily from 6,015 in 2000 to 4,511 in 2007. In 2000, the Court made 3,699 final protection orders compared with only 2,583 in 2007.

(I)t is a worry that applicants have decreased in numbers and that there is at least a perception that women victims of violence do not have confidence that protection orders are worth applying for. On the question of numbers, protection orders have no time limit and do not expire. A protection order remains in place until a successful application is made to discharge the order. This means that once the protection order is in place, the applicant will have no need to seek a new order. Therefore the pool of people in need of protection orders constantly decreases until new people in need of such orders enter the pool. This explains, at least in part, the decreasing trend in applications and may reflect a stabilisation of the number of new applications (and new people entering the "pool").

For the most part, applications are made without notice and equally, are granted without notice. For instance, in 2000, 89% of applications for protection orders were brought without notice. 19% of these were directed to proceed on notice. However, in 2002, of the 86% of applications brought without notice, 24% were directed to proceed on notice, the highest number in this category, ever...However, since that time, the percentage of applications brought without notice and directed to proceed on notice, has continued to fall, year by year. In 2006, 87% of applications were brought without notice and 16% were directed to proceed on notice. In the latest year for which figures are available, 2007, 88% of applications were brought without notice and only 14% were directed to proceed on notice.


Representation for survivors of violence

I think it is essential that victims of violence have ready access to properly trained and appropriately remunerated specialist Family Court lawyers so that applications and accompanying documentation are presented in their best form. I have not the least doubt that applicants who bring their applications personally and endeavour to handwrite their evidence in often difficult circumstances, may miss vital points and make it that much more difficult for a Judge to properly grant the application. Although most applications brought without notice, succeed, of the percentage that are directed to proceed on notice, it will often be because of poorly presented documentation and more importantly, a failure to present threshold evidence justifying a "without notice" order.

As well as seeing all applicants properly legally represented, I would also like all applicants to be seen personally by a Family Court coordinator or specially trained Family Court staff member. A meeting should include a discussion on:

Self-representation or legal representation.
The application process including the extent of the order.
Advise that the respondent will see the application and affidavits and be given a chance to be heard in court. Supply an application package with pamphlets on law, support programmes, timeframes, list of lawyers, legal aid services and community law centres.
Establish a safety plan to complement the order, including where to go for support, what is to happen that night, particular attention on time of service.
Referrals to be made with permission of the victim, to agencies such as WINZ, Housing New Zealand, Women's Refuge, Child Youth and Family Services, Police, Community Law Centre and a Victim Advisor in the Criminal Court (if there are criminal proceedings).
Advise on the possibility of counselling through the Family Court (s9, Family Proceedings Act).
Establish whether the applicant wishes to be informed when the respondent has completed the programme.
If the applicant is self-represented, and as a result of this meeting, the applicant wishes to be legally represented, then I think the State has a duty to provide free legal representation if it can be seen that the applicant cannot afford to pay for a lawyer and most cannot.

Prior criminal histories

I believe that the Family Court will often be assisted by receiving a complete criminal history of a respondent to a protection order, especially when the Court is exercising a discretion as to whether to continue the protection order, or not. At present, information that the Family Court can receive is limited to the charge or conviction relevant to the protection order. Past convictions for domestic violence and against other victims may be highly relevant and yet not accessible. Equally, convictions for drug use, particularly methamphetamine, can be highly relevant and influential.


Lack of court security

One week's weapons seized at Manakau District Court

(O)nly 11 of the 63 District Courts in New Zealand currently have walk-through scanners. Furthermore, with only three Courts possessing single entrances (Manukau, Napier and Palmerston North) and only one Court, Palmerston North, possessing a single entrance and a walk-through scanner, the security in our Courts seems woefully inadequate. Palmerston North is the only court where there is a complete search.

This is particularly significant when statistics routinely compiled by the Ministry of Justice on security incidents are evaluated. In the year June 2007 to May 2008, 414,082 searches were conducted nationally and 4,231 items were either seized or taken into temporary custody. To give an indication of the nature of the problem here, I set out for you, in photographic form, items seized in one week in March 2008, in the Manukau Court (in Auckland).

Lawyers for children in domestic violence proceedings

The proposed legislative amendments to aid in the protection of domestic violence victims are intended to be more extensive than just revising the Domestic Violence Act. Proposals are also made to extend the definition of violence under the Care of Children Act 2004 to include psychological abuse as violence and the Court will be given discretion to appoint a lawyer-for-the-child in protection order proceedings where children are likely to be affected by any order. Children and young people aware of domestic violence have the right to be listened to and need help to understand what is happening.

Saturday, 23 August 2008

Federal Magistrates Court: property settlement after death

Section 79(8) of the Family Law Act allows for property settlement proceedings to be continued after the death of a party.

In the recent Federal Magistrates Court case of Cornell v Stokes, the wife died before the proceedings had been completed. The husband, albeit ultimately unsuccessfully, argued that because the wife had died that he should not have to pay anything further to her estate.

Federal Magistrate Wilson considered the caselaw under s.79(8) and found that the following principles applied:

From the above authorities, I conclude that the appropriate way in which to deal with a case where one of the parties has died since the commencement of proceedings is as follows:

The party representing the deceased party to the marriage must demonstrate that, at the time of the death of the party so represented, the court would have made an order in favour of that party. In so doing, the party is not limited to the state of evidence at the date of death;

In reaching an opinion about that first prerequisite imposed by s.79(8)(b)(i) of the Act, the Court is not required to determine precisely what orders would have been made in that deceased party’s favour, just that an order would have been made in that party’s favour;

To reach that opinion, the Court must embark upon the exercise in s.79(4) of the Act;
Having determined that it would have made an order in the deceased party’s favour had he or she survived, the Court must then consider whether it is still appropriate to make an order;

In that regard, the Court’s discretion should not be exercised lightly, and should only be exercised in limited circumstances, so as to satisfy moral obligations that remain unsatisfied;

The deceased party to the marriage has a prima facie moral entitlement to his or her contributions based entitlements to matrimonial property;

The size of the pool and the needs of the surviving spouse, including s.75(2) factors must be taken into account in formulating any orders.

Friday, 22 August 2008

Federal Magistrates Court: adverse inference due to no DNA test

In the 1994 High Court case of G v. H, the court was able to find that the male respondent to the court proceedings was the father because he failed to undertake DNA testing. It was common ground that the respondent was a man who had a personal and sexual relationship with the mother of the child, that she had been a prostitute, that she had ensured that she had only safe sex with clients, and that on at least some occasions she had had unprotected sex with the respondent.

The respondent failed to undertake a DNA test. Justices Deane, Dawson and Gaudron held:

(P)aternity can be determined easily and, for practical
purposes, conclusively. And now that that is so, it is difficult to
see why, if a person who could be the father declines to participate
in procedures which will provide proof one way or the other, the
child's rights to maintenance and support should nonetheless depend on
the biological fact of paternity being established on the basis that,
so far as the putative father is concerned, the biological fact
involves an allegation in much the same category as an allegation of
moral or criminal wrongdoing.


The majority then went to hold that an adverse inference ought to be made against the respondent as to his failure to undertake DNA testing- ie he was the father.

In the recent Federal Magistrates Court case of Clutterbuck v Tryon there was, surprisingly, no reference to G v H at all. This was all the more surprising given the facts, and the result.

It was common ground that the mother, Mrs Tryon, had given birth to two children, and that at the time of conception for each, she had been in a sexual relationship with a man who said he was the father, Mr Clutterbuck. Mrs Tryon had not separated from her husband, and Mr Tryon was registered as the father of both children. Mr Clutterbuck has been present at the birth of one of the children, paid $4000 to Mrs Tryon during one of the pregnancies, and Mrs Tryon told Mr Clutterbuck on both occasions that she was pregnant with his child.

Mr Clutterbuck sought under section 69VA of the Family Law Act that he be declared to be the father of both children. The court made an order for DNA testing. Neither Mr or Mrs Tryon or the children had attended for DNA testing.

Federal Magistrate Henderson noted the issues:

The applicant believes he is the father of the children because:
He was conducting an ongoing and long term sexual relationship with the mother at the relevant conception time for both children;
The mother told him he was the father of the children. The mother has filed no evidence to controvert, deny or assist me to other than accept what the applicant says. Her husband’s evidence cannot assist me in this regard;
The mother ,the husband and the maternal family knew he was the father of the children;
He maintained an ongoing relationship with the family;
He has conducted himself as if he was the father of the girls.
Thus I am left with the following:
The failure of the respondents to undergo DNA testing a test which will almost in every case, with certainty, tell who is or who is not a parent of a child;
The words spoken by the mother to the applicant when she knew she was pregnant with the children; and
The conduct of the applicant and respondents prior to and since the birth of the children.


Her Honour held:

On the evidence I have difficulty in accepting that the husband was unaware his wife was conducting a sexual relationship with the applicant at a time both girls were conceived.
His wife and the girls went on at least two holidays with the applicant, without him, and slept in the same bedroom. The applicant was present at the birth of the girls, he gave the wife $4,000 at [S]’s birth, attended [S]’s day-care, and was present on her first day of school. He visited the home every morning and almost each afternoon when the husband was at work. The mother and the children visited him daily at his place of work on building sites, went shopping with him when he owned the restaurant, the wife worked for him on the weekends for a number of years when he owned the restaurant. The mother and girls visited his apartment on many occasions and had meals with him. The applicant was frequently at his home and he and the mother were in constant contact with each other.
The applicant believes these children are his because of his ongoing sexual relationship with the mother at the relevant time and importantly because that is what the mother told him. The husband cannot help me assess this evidence. Only the mother can assist me and I do not have the benefit of her evidence.
I do not have the benefit of a scientific test as to paternity because the respondents have not and will not comply with the order I made for DNA testing. DNA testing would have resolved the issue of paternity once and for all.
There has been no testing of the applicant’s evidence in crucial respects such as a sexual relationship at the relevant time and words spoken between the mother and the applicant when she knew she was pregnant. As such I accept what the applicant says on those issues.
That finding combined with the lack of scientific evidence due to the respondents’ choice and the conduct of the mother towards the applicant leaves me in no doubt that the applicant is telling the truth as to his ongoing sexual relationship with the mother at the relevant time and that the mother told him he was the father of the girls. I also accept his evidence that the mother knows he is the father of the girls.
The applicant is clearly attached to and has had a strong and ongoing relationship with the girls. The photographic compilation he produced to the Court showing the girls from their birth, pre-school, first day of school, holidays and the like until he ceased to see them in May 2006 is extensive and demonstrates a relationship over a long period of time.
The photographic compilation depicts him, the mother and children as a family enjoying significant events: holidays; first days of school; births; birthdays; Christmas; cooking food; eating meals together; cleaning up and enjoying time together.
The applicant’s assertion that he is the biological father of the girls is supported by his conduct from their birth to the present....

The combination of this evidence supports a finding of a clear and strong inference that the respondents have failed to carry out the DNA testing because the results of that testing would show that the applicant, and not the husband, is the biological father of the girls. This inference is all the more available to me when one has regard to the fact that DNA parentage testing provides a simple, cheap, non-invasive and almost 100% accurate result.
I am also entitled under the rule in Jones v Dunkel to draw an adverse inference from the failure of a party to present evidence to a court which would assist the court in making a finding on a contested issue.
The issue in contest is the paternity of the girls. The carrying out of a DNA test is clearly the most reliable and cogent evidence I could have available to me to make a finding of paternity. The respondents have conducted themselves in such a way that this evidence is not available to me. In those circumstances I am entitled to draw an adverse inference from this conduct being that the provision of the evidence of DNA testing would not have assisted the respondents’ case that the husband is the girls’ biological father.
On all the evidence I an entitled to draw an adverse inference from the respondents’ conduct which inference leads me to a finding that the applicant is the biological father of the girls.
The mother has left it to the applicant to prove his case and I find that he has proven his case. He has discharged his onus to a much higher level than on the balance of probability. I have not only been able to draw an adverse inference from the respondents’ failure to undergo DNA testing but also on the rule in Jones v Dunkel as all the evidence being conduct and behaviour support this finding.

Thursday, 21 August 2008

Child removal threshold too low: expert

An expert speaking at the Australian Child Welfare Association conference has said that the child removal threshold by child protective services is too low, according to The Australian, and that another expert says that too many resources are devoted to forensic reports.

Federal Magistrates Court: disqualifying both lawyers from acting

In the unusual recent Federal Magistrates Court case of Lakey and Lakey, Federal Magistrate Brewer disqualified BOTH sets of lawyers from acting for their clients.

His Honour took a keen eye to the practical, as opposed to stricly theoretical, possible misuse of confidential information by lawyers, including extending that discussion ot barristers who are on opposite sides to each other, but in the same chambers. His Honour also commented on the realities of the ACT market for employment of family lawyers (given movement of various lawyers between the two, dominant family law firms in Canberra).

Wednesday, 20 August 2008

What does "without prejudice" mean?

Federal Magistrates Court: example of how NOT to obtain sole use

In the recent Federal Magistrates Court case of Keogh and Meys, the wife sought an order for sole use and occupation of the former matrimonial home. The parties had lived separately under the one roof for the previous 14 months, the wife saying since December 2007 that it was intolerable for her to live in the home with the husband, given that she said that he had engaged in acts of domestic violence.

Dealing with the matter on an interim basis, the court had the ability to see each of the parties give evidence, and preferred the evidence of the husband.

The wife asserted, amongst other things, that the husband had been charged with assaulting her "on seven occasions", which was untrue- he being charged with assaulting police once and once with assaulting another family member.

The wife sought to rely upon photos of broken crockery and sheared shrubs, but the husband had explanations of both.

The wife also obtained reports from two treating doctors, one of which had little weight,and the other of which depended on the wife's credibility.

The wife had late in the day complained to police:

There is evidence to show that the wife has delayed making a compliant to police of alleged misconduct, on the husband’s part, for many months. This undercuts the seriousness of her complaints against the husband. Rather, it seems to me, she raised the issue of this misconduct with police, at a much later stage, in the hope of securing some tactical advantage over the husband in these proceedings.


His Honour Brown FM held:


The parties have been living, separated under the one roof, at the Property U premises, since May of 2007. A period of now approximately 14 months. I accept that, although this is not a perfect situation, the parties are not living cheek by jowl, as the property concerned is large. I reject the suggestion that the husband has waged a vendetta of psychological abuse against the wife, in the period following separation.

It was in December 2007, in response to the husband’s application for a settlement of property, that the wife raised the issue of sole occupation. This suggests to me that conditions at the property are not as intolerable as she would have me believe. As such, I am satisfied that the parties can largely lead separate lives at the property in Property U....

In all these circumstances, in my view, it is a significant matter for the court to evict a person from a piece of property, which he would otherwise be entitled to occupy.
Although the husband has a regular source of income, he cannot be regarded as a wealthy person and I am satisfied that he has no obvious sources of alternative accommodation for himself. For him to be compelled to leave the property would be a source of considerable hardship for him.

Having heard the evidence of each of the parties, regarding the situation which prevails at the Property U property, I am satisfied that the husband is not guilty of any level of misconduct, which should justify his expulsion from the property. Indeed, it is my view that the wife’s allegations against him are vague and uncertain in nature.

I accept that it is inconvenient, for both parties, for them to live in the same premises. However, it seems to me that it is practicable, given the size of the house concerned and the length of the time which both have occupied it, for them to continue to remain in the home together. Having considered all the factors in this case, I have come to the conclusion that it would not be proper for me to make the sole occupancy order, which the wife seeks.


Comment: If bringing a sole application, come to court with cogent, compelling, detailed and preferably corroborated evidence as to why the situation is intolerable, make complaint to police as soon as possible and apply to the court as soon as possible.

In summary, as falsely attributed to US Civil War General Nathan Bedford Forrest:

Git thar the fastest with the mostest.

Tuesday, 19 August 2008

Federal Magistrates Court case: example of how the court deals with allegations of domestic violence

In the recent Federal Magistrates Court case ofBergin and Grove, the court dealt on an interim basis with allegations by the mother that the father had been emotionally and verbally abusive. The father denied the allegations, saying that any anger by him was dealt with "appropriately and respectfully". The mother also sought that

Shared care

Federal Magistrate Brown held:


The concept of children spending either equal periods of time or substantial and significant periods of time with their parents is predicated on the satisfaction of two criteria. Firstly the court must be satisfied that such arrangements are likely to be in the best interests of the children concerned and secondly the arrangements are likely to be reasonably practicable to put into operation.


Allegations of family violence

His Honour held:

Allegations of family violence must be closely examined by the court, bearing in mind the serious consequences exposure to family violence may have for the child concerned. Children learn their behaviour from their parents. Parents who use violence to resolve disputes or who inflict force on the other of a child’s parents are not appropriate psychological role models for children [see In the Marriage of Patsalou (1994) 18 Fam LR 426].

Allegations of family violence are easy to make and difficult to refute. This is because family violence, more often than not, arises within the private confines of a family home and may evoke emotions such as embarrassment, shame and indeed fear, which render the reporting of it to appropriate authorities difficult and accordingly its independent verification problematic. It is now generally recognised that family violence is prevalent in all social settings and walks of life.

However, family violence is not homogeneous in its qualities. It can range in character from impulsive behaviour that arises as a result of a stressful situation, such as relationship breakdown and is instantly regretted or it can be more systematic and deliberate, arising from a clear power imbalance between the parties concerned [see JG & BG 18 Fam LR 255 at 261]. Obviously the latter behaviour is the more damaging, so far as children are concerned.

Again these are factors which the court must bear in mind in examining issues of family violence in the context of determining the best outcome for the child concerned. Not all incidents of family violence will be necessarily damaging to a child.

The fundamental task for the court is to assess prospective dangers for the child concerned, arising from the possibility of further exposure to family violence, rather than to punish a parent for past failings, particularly if that failing arose against a background of difficult circumstances or indeed as a result of provocation or incitement.

Finally, the definition of family violence in the Family Law Act has an objective level. The fear or apprehension occasioned by the behaviour complained of must be reasonable [section 4]. It is not unknown for parties in acrimonious proceedings, such as these, to exaggerate unfortunate incidents, which have previously occurred, either unintentionally or for tactical reasons.

The mother’s complaints against the father are of verbal and emotional abuse. The father denies the gravamen of the mother’s allegations against him. It seems to be his position that, if he has behaved inappropriately in the past, it has been as a result of the parties’ unhappy situation with one another.
The parties have been separated for over a year now. There is no independent verification of the mother’s complaints against the father. In this regard, I do not find the email from Ms G to be helpful.
The document is not on oath and the person concerned is likely to be strongly aligned with the mother.

In this context, I must make some assessment, on all the evidence currently available to me and determine, from that evidence, the level of risk the father’s alleged behaviour poses to the children concerned and make orders commensurate with that risk.

In carrying out this balancing exercise, I must also bear in mind that there may be risks to both [B] and [C], in terms of them having an ongoing and meaningful relationship with their father, if I allow them to spend only brief periods of time with him. The years of early childhood are important for children to develop parental bonds, which are likely to be highly significant to them in their later years.


Once issues of family violence have been raised, which is a common occurrence in cases of this kind, I must be careful not to overlook a child’s entitlement to have a meaningful relationship with both of his or her parents.

In all the circumstances of this case, particularly given that both children have been spending time with their father, in the period since their parents’ separation, I consider that significant emphasis should be given to the benefits of [C] and [B] having an ongoing and meaningful relationship with their father.

From the father’s point of view, his relationship with both the children will be imbued with additional meaning, if he is able to spend time with them in a variety of settings. In particular, he wishes to be able to spend time with both [B] and [C], in his home environment, during the evening on both a school and weekend night.
No doubt, he hopes this will encourage the children to feel that he is an active part of their lives and is not confined to a wholly subsidiary role as a “contact” parent. I think there is some force to the father’s submission in this regard, particularly given the limited time the children have spent with him up to this stage. I am concerned that the mother’s proposals will not be adequate enough to enable [B] and [C] to have a sufficiently meaningful relationship, with their father, as envisaged by the applicable legislation.



Presumption of equal parental responsibility: s.61DA(3)

As to the discretion not to apply the presumption of equal shared parental responsibility, his Honour held:

In my view, the discretion is to be engaged when potentially very serious matters of family violence or child abuse are raised, in the material before the court, which can be neither definitively established nor definitively negated, within the context of an interim hearing. In the circumstances of this case, I do not think that the discretion should be engaged because of the pre-eminence required to be given, by the court, to issues of child protection.

Having considered all the relevant section 60CC factors and having analysed the evidence, as best I can, I have come to the view that it is likely to be in the children’s best interest for the presumption of equal shared parental responsibility to be applied.

I reach this conclusion because of the likely significance, to both [B] and [C], of their paternal relationships and the likely benefits both will gain from having a meaningful relationship with their father.



COMMENT:


This case again highlights the conflicts facing practitioners when they come before the court. They have conflciting duties to their clients and to the court. The court expects material to be short and to the point- so that interim applications are bale to be decided within 2 hours total. By contrast, if practitioners are instructed by their clients about domestic violence, then in view of the skepticism expressed by Brown FM that domestic violence allegations are "easy to make and difficult to refute" and his expressed view that there can be "provocation and incitement", and that there was no independent verification, then practitioners will probably need to pull out all stops to particularise the domestic violence, have corroborating evidence and show to the court the overwhelming flavour of the evidence so that it has some impact.

Monday, 18 August 2008

Federal Magistrates Court: alienating father leads to shared care

In the recent Federal Magistrates Court case of Delaney and Delaney, it took Federal Magistrate Walters over a year to deliver judgment in relation to a 12 year old boy (now 13) called M. At the conclusion of the trial his Honour decided to put in place a week about arrangement, despite clear evidence of the violent nature of the husband, including on one occasion attempting to choke the wife with electrical chord, and the finding that the husband had engaged in alienation of M from the mother.

His Honour also found, as to the credit of the husband:



He was... one of the least impressive witnesses that I have ever heard (whether as counsel or during my years on the bench). Unfortunately, much of his evidence was inconsistent and non-responsive. His demeanour in the witness box radiated insincerity, and fluctuated between what I can only describe as a state of passive aggression (on the one hand) and a quite disconcerting form of obsequiousness (on the other). I find myself unable to give weight to almost anything that he told me. He gave the impression that he has nothing but contempt for the wife, and he clearly has no respect for her, as a person or as the mother of his child. I am satisfied that he is a controlling and manipulative person, who was unwilling to be open and direct with the court. He tried to give the impression that his sole motivation was his earnest desire to protect [M] from the supposedly dire consequences of contact with the wife's appalling lifestyle, but I simply do not accept that husband’s actions have ever reflected a genuine desire on his part to protect [M] in any way whatsoever. Nor do I accept that there has ever existed a real need to protect [M] from the wife, or from her lifestyle. I find that the husband’s primary motivation in his dealings with the wife in relation to the subject of [M]'s care has been his drive to punish her, and to remove from her that which she most values and desires (namely, the love, respect and company of her son).


His Honour also relied upon English cases as to domestic violence that are not often cited in Australia:

In relation to this subject of family violence generally, I refer to the decision of the England and Wales Court of Appeal in Re L, V, M & H (Children) (2000) EWCA Civ 194; 2002 FamLR (UK) 334. In that case, Waller LJ emphasised “the key points” in the judgments of the other two members of the Court as follows:
The effect of children being exposed to domestic violence of one parent as against the other may up until now have been underestimated by Judges, and advisors alike;
It follows that alleged domestic violence is a matter which ought to be investigated, and on which findings of fact should be made because if it is established, its effect on children exposed to it, and the risk to the residential carer are highly relevant factors in considering orders for contact and their form;
In assessing the relevance of past domestic violence, it is likely to be highly material whether the perpetrator has shown an ability to recognise the wrong he (or less commonly she) has done, and the steps taken to correct the deficiency in the perpetrator’s character;
There should, however, be no presumption against contact simply because domestic violence is alleged or proved; domestic violence is not to be elevated to some special category; it is one highly material factor amongst many, which (factor) may offset the assumption in favour of contact when the difficult balancing exercise is carried out by the Judge applying the welfare principle and the welfare check list.
Insofar as Waller LJ’s reference to the “welfare principle and the welfare checklist” is concerned, it is clear that the Australian counterparts of those considerations comprise the principle that the best interests of the children are to be the paramount consideration in a case involving parenting issues, and the factors set out in section 60CC of the Family Law Act.
As I have already recorded, in Re L, Butler-Sloss P said that:
It may not necessarily be widely appreciated that violence to a partner involves a significant failure in parenting – failure to protect the child’s carer and failure to protect the child emotionally.
Her Honour and the remaining member of the Court of Appeal (Thorpe LJ) if also cited with approval the following passage from the Judgment of Wall J in Re M (Contact: Violent Parent) (1999) 2 FLR (UK) 321:
Often in these cases where domestic violence has been found, too little weight in my judgment is given to the need for the husband to change. It is often said that, notwithstanding the violence, the wife must nonetheless bring up the children with full knowledge in a positive image of their natural husband and arrange for the children to be available for contact. To often it seems to me the courts neglect the other side of that equation, which is that a husband, like this husband, must demonstrate that he is a fit person to exercise contact; that he is not going to destabilise the family, that he is not going to upset the children and harm them emotionally.
As Butler-Sloss P summarised:
Assertions (to the effect that a parent who has behaved inappropriately has now changed), without evidence to back it up, may well not be sufficient.
I completely agree with the comments made by Butler-Sloss P and Wall J in the passages cited in the previous three paragraphs.


His Honour found that, with one exception, the arrangement for shared care had for the previous year appeared to be working, and therefore ought to continue.

McClelland's speech to Queensland Law Society, Family Law Practitioners Association Residential

Comment by Stephen Page:

On Friday and Saturday I attended the annual Queensland Law Society - Family Law Practitioners Association of Queensland Family Law Residential, which this year was held at Royal Pines Resort on the Gold Coast. I am told that 465 attendees were there, which apparently is a record. I will be posting for a little while about matters that came from the conference.

The first post, given the resources of government, is the speech that Commonwealth Attorney-General Robert McClelland gave as the opening speech, which is set out below. I should disclose that my partner, Julie Harrington, chairs the Queensland Law Society Family Law Section and the organising committee for the Residential.


The Attorney's Speech


Opening Address
Queensland Law Society
& Family Law Practitioners Association
Family Law Residential

Royal Pines Resort, Gold Coast, Qld
Friday 15 August 2008, 9.15am


[Acknowledgements]
· First, may I acknowledge the traditional owners of the land we meet on – and pay my respects to their elders, both past and present.

[Other Acknowledgements]
· Chair – Julie Harrington, Managing Partner, Harrington Family Lawyers & Chair of QLS Family Law Section, Accredited Specialist – Family Law
· The Honourable Chief Justice Diana Bryant, Family Court of Australia (also speaking)
· The Honourable Chief Federal Magistrate
John Pascoe AO (also speaking)
· Distinguished guests
· Ladies and gentlemen



[Introduction]
1. It’s a pleasure to join you today to speak on National Family Law Directions.
2. There are certainly challenges involved in improving our family law system.
I welcome these challenges, as I endeavour to do all I can to strengthen cooperation between the courts, legal services, practitioners and family relationship services - and ensure that we have a family law system that can deliver the right services to those in need.

[Directions in Family Law]
An Integrated System]
3. As many of you would be aware, the effectiveness of the significant changes to family law in 2006 and the provision of new and expanded services are currently being evaluated.
4. The Australian Institute of Family Studies is conducting an extensive evaluation which will assess the legal aspects of the family law reforms, the role of new services in achieving the objectives of the reforms, and the impact of the reforms on Australian families.
5. The results of this extensive evaluation and related research will inform future Government policy directions.
6. Decisions about the family law system are too important to be based simply on isolated cases and anecdotes.
7. However, that does not mean we need to wait for the results of this evaluation to recommit ourselves to ensuring that the family law system operates in a way that best serves families in their time of need.
8. In the four years from 2007, it is projected that roughly $1.7 billion worth of taxpayers money will be spent on the family law system, be it through the Family courts, family relationship centres, legal aid or community legal services.
9. The public rightly expects that this money will be used as efficiently and as effectively as possible.
10. As Attorney-General, I have a clear vision of how I’d like the family law system to operate.
11. As much as possible, I want to see an emphasis on an integrated family law system:
· where family disputes are resolved outside courts wherever possible
· where there are effective ways of getting entrenched cases out of courts, and
· where situations of family violence and child abuse are managed safely and effectively.
12. I want to emphasise the ongoing need for bridge-building between mediators, legal practitioners and the judicial sector to help achieve these objectives.
13. And I want to ensure that there is a strong range of services in the family law system, especially to help meet the needs of people facing very difficult matters.



[Consultation]
14. This is not rhetoric but something I am very serious about achieving.
I am committed to listening to all stakeholders to broaden the dialogue on how to best support Australian families.
15. Since becoming Attorney-General, I have taken the opportunity to consult with a broad range of participants in the family law system.
16. On 28 July 2008, I invited a small, high-level group of individuals from key organisations across the sector to attend a roundtable to identify issues, strategies and concrete measures to integrate and strengthen the family law system.
I am pleased that the Chief Justice of the Family Court of Australia, the Chief Federal Magistrate and the Chair of the Family Law Section of the Law Council of Australia were able to participate at the roundtable.
As well as senior representatives from the legal aid, including Indigenous legal services, and community legal sector and those involved with the delivery of family relationship services.
17. A larger summit is being planned with other participants in the family law system later this year which will build on the good work initiated by the roundtable.
18. This consultation will play an important role in informing Government policy, but this morning I’d also like to outline the steps we’ve already taken to provide a more integrated and stronger family law system.

[Family Courts]
19. Soon after coming to office the Rudd Government demonstrated its commitment to improving the efficiency, effectiveness and integration of a central element of the family law system – the courts.
20. Faced with considerable feedback that the current arrangements were not satisfactory, my Department, in consultation with Mr Des Semple, began working closely with the courts to review the delivery of family law services by the federal courts.
21. I saw this as an area where key services were not operating in the best possible way, and an area where fresh thinking was required.
22. I want the Family Court and the Federal Magistrates Court to be completely externally focussed on assisting people to resolve their differences as quickly and as cost-effectively as possible.
23. The review has considered all proposals to improve service delivery across the family law jurisdiction.
The report is due to be completed shortly.
The Government will then consider the recommendations made in the report and whether changes should be made to the structure of the federal family courts to better promote access to justice for family law litigants.

[Family Relationship Centres and Services]
24. Another area in which the Government has already demonstrated a commitment to a strong, integrated system is in the area of family relationship support.
25. If we are serious about Family Relationship Centres and other funded services providing an effective alternative to the courts, we need to ensure that these are first-rate.
· That’s why in June of this year, together with my colleague Families Minister Jenny Macklin, I announced that services to help families build strong and positive relationships would receive more than $277 million in funding from the Rudd Government over the next three years, through the extension of grants to family services providers across the country.
· We have also provided funding for the Supporting Children After Separation Program. This will help children whose parents decide they can no longer live together. The program supports these children through a range of counselling and group activities, including allowing them to have a say in the separation process.
· The Government has allocated funds for the opening of an additional 25 Family Relationship Centres across Australia.
· We have also provided an additional $400,000 for Legal Aid Commissions to enhance the delivery of family dispute resolution services to grandparents and other extended family members.

[Legal Aid and CLCs]
26. The Rudd Government is also taking steps to help some of Australia’s most vulnerable people through providing additional money to community legal centres and legal aid commissions.
27. This sector’s importance in the family law system should not be underestimated. Approximately 35% of matters handled by community legal centres involve family law matters, and 85% of Commonwealth legal aid funding is spent assisting people with family law issues.
28. Legal Aid Commissions also deal with some of the most complex family law disputes experienced by some of the most disadvantaged people in the community.
29. In the interests of a stronger service, I was pleased to announce earlier this year additional one-off legal aid funding worth $7 million. This cash boost will help to address current pressures on family law service provision in a number of legal aid commissions.
30. I also announced additional one-off funding of $10 million for the Commonwealth Community Legal Services Program, which represents the largest ever injection of funding into that Program.
31. Home Affairs Minister Bob Debus separately announced additional one-off funding injections worth $11 million for Aboriginal legal aid services, which will assist these organisations in providing a range of services, including for Indigenous families dealing with family breakdown.
32. And in the interests of a more effective service, my Department has engaged consultants KPMG to assess the family dispute resolution services provided by legal aid commissions in a national evaluation.
The evaluation is being conducted to ensure that the services continue to address the needs of legal aid clients and operate effectively within the new family law system.
I understand that KPMG is expected to finalise its report later this year.


[Best Interests of Children and Family Violence]
33. Of course, in progressing any reforms to family law the Government maintains a commitment to two key fundamentals: the protection of children and parents from violence and abuse, and ensuring the best interests of the child is always the paramount consideration.
34. We know that children involved in family disputes are affected by both the substance of the legal decisions made, and how the parents involved implement these decisions.
35. We need to ensure, wherever possible, that family law rulings build cooperation between parents, and lessen confrontation.
36. This is clearly in the best interests of the child.
37. We also need to ensure that the system protects children and their families from violence and abuse.
Family violence is a crime and cannot be tolerated in our society.
38. A positive direction being taken to address this issue is the use of the case management tool – Project Magellan.
39. Project Magellan is a good example of integration in the family law system.
40. It’s used for matters where there are allegations of serious physical or sexual abuse of a child before the court.
41. Project Magellan involves close stakeholder relations that includes the Family Court, Legal Aid, State and Territory child services and Independent Children’s Lawyers.
42. The feedback is that this initiative helps resolve family law disputes more quickly, with fewer court events, fewer judicial officers, and more settlements prior to trial.
It also results in a higher degree of goodwill and cooperation by everyone involved.
43. Magellan was recently the subject of an independent review, and has been shown to be a successful way to manage these very difficult cases.
44. It’s initiatives like this one that the Government is keen to see more of.

[Other initiatives]
45. As well as an integrated family law system, I am committed to reforms to the justice system more broadly to ensure better access to justice and the more timely resolution of disputes.
46. I welcome any initiatives to remove delays and enable the just, inexpensive and efficient resolution of disputes – and I am keen to look at ways to take this to the family law system.
47. For example, I am considering amending legislation to provide enhanced case management powers.
48. I am also committed to the greater use of alternative dispute resolution processes.
I have issued a reference to the National Alternative Dispute Resolution Advisory Council asking them to report on strategies to encourage the use of ADR.
49. I am also committed to ensuring harmonisation between the Commonwealth and the States and Territories wherever possible.
50. An example in the family law area is the landmark legislation the Government recently introduced which provides a consistent approach to de facto property disputes in a majority of States and Territories.
51. De facto couples currently have different rights in different States and Territories, and this duplication causes unnecessary difficulties, wasting time and money.
52. The Rudd Government has moved quickly to take action in this important area, ending the administrative burden faced by de facto couples and ensuring better access to justice.



[Conclusion]
53. I hope that you now have a better understanding of the Government’s vision for the family law system.
54. I realise it will take time and cooperation to bring about all the changes we need to have a much stronger family law system.
But I’m confident that we are heading in the right national direction.
55. As I’ve said previously, I’m confident that such an approach will lead to better outcomes for Australian families, and in particular their children.
56. I wish you all the best for this year’s residential.