Tuesday, 31 March 2009

Family Court orders kids live with dad after mum says dad was "cruel, unkind"

Family Court Justice Benjamin has ordered two children live with their mother, after evidence from a psychologist that:

These children are slowly indoctrinated into believing that their father is
cruel and unkind and likely to hurt them, when this is not the case

according to the Australian.

Monday, 30 March 2009

Super industry's PR disaster

When most of us have lost money with our super, bear a thought for those who have to split their super as part of a property settlement in these troubled times, when they will be getting half of two-thirds of not very much, and read reports like this about the super industry at play.

Sunday, 29 March 2009

Family Court case: adjustment of s.75(2) factors

In a recent Full Court of the Family Court case of Phipson and Phipson, the court had to consider what was the appropriate adjustment for future factors under s.75(2) of the Family Law Act.

The parties had lived together for 27 years. Their children had grown up. The husband had repartnered. The wife was aged 57 and earned $34,000 a year, and the husband was aged 54 and earned $72,000 a year. The property pool was about $945,000. The parties agreed that there had been equal contributions.

Because of the disparity in their income, the wife received an adjustment of 12% under s.75(2). The husband appealed, saying that the adjustment was too high, and should have been about 5%. He was successful.

The Full Court held (with emphasis added by me):

It is always important to keep in mind that an adjustment of X% for s 75(2) factors leads to a disparity in the value of property received by the parties representing 2 x X%. It is that disparity, measured in “money terms”, that requires consideration in determining whether the result is just and equitable: see Campbell v Kuskey (1998) FLC 92-795 at 84,928. In the present matter, the 12% adjustment led to a disparity in favour of the wife equivalent in value to 24% of the assets, or in “money terms” an amount of $226,947 out of a total asset pool of $945,614....

His Honour did not, however, expressly record the cumulative effect of his
orders, electing instead to record the amounts each party would receive from
superannuation and non- superannuation assets respectively. Whilst it would, in
our view, have been desirable for his Honour to have recorded in dollar terms
the total impact of the proposed s 75(2) adjustment, we do not consider his
failure to do so constitutes appellable error.

We do consider, however, that in making what has been called the “leap”
from “qualitative evaluation” to “quantitative reflection” of that evaluation,
his Honour arrived at an adjustment for s 75(2) factors that was outside the
reasonable range of discretion.

The outcome needs to be considered in the context of the parties having
had a long marriage and now having no dependent children. Each of them is
gainfully employed. Although the husband has a superior earning capacity to the
wife and is four years younger than her, his income earning capacity is by no
means exceptional....

The differential in the capital received by the parties in the present
matter was not far short of a quarter of a million dollars. The factor his
Honour said he particularly took into account in arriving at that outcome was
the disparity in income earning capacities and the associated impact on future
superannuation entitlements. His Honour did not quantify the impact on the
superannuation entitlements, although he did say that the value of the husband’s
superannuation “should increase at a significantly greater rate than the
superannuation entitlements of the wife”.

Reference to the husband’s statement of financial circumstances reveals
that he has salaried employment and his superannuation entitlements are held in
“accumulation” funds. We were not referred to any evidence that would suggest
the value of those entitlements would increase at any greater rate than the
wife’s entitlements. The inference we therefore draw is that his Honour assumed
the husband’s entitlements would increase at a greater rate than the wife’s
because his employer would be required to make greater superannuation
contributions commensurate with his greater income. In our view, that was a
proper assumption to make. However, when notice is taken of the current
superannuation guarantee levy (9% of gross income), the difference in
contributions into the parties’ respective funds would amount to only a few
thousand dollars per annum.

This relatively modest difference in annual contributions into the
parties’ superannuation funds would then need to be considered alongside the
disparity in net incomes of the parties (i.e. approximately $27,000 per annum)
in order to determine whether or not his Honour erred in arriving at a result
whereby the wife received $226,946 more than the husband out of a pool worth
only $945,614.

Although counsel for the wife submitted that the opening sentence of
paragraph 35 indicated that his Honour had also taken other factors into account
(which he suggested were the differences in the parties’ ages, training, skills
and health) we do not discern from his Honour’s judgment that he considered
those matters to be of any real significance, save that he did draw attention to
the fact the husband was four years younger than the wife when he was
considering the parties’ entitlement to superannuation.

In our view, the differences in the parties’ net incomes and the
associated impact on their future superannuation entitlements, even when
considered with the differences in their ages, could not justify a s 75(2)
adjustment of 12%. The adjustment was outside the reasonable range of discretion
and the appeal will therefore be allowed.

We should also observe that we consider it was incumbent upon the trial
Judge to have regard to the fact that whatever additional portion of the
non-superannuation assets the wife received on account of s 75(2) factors would
be immediately available to her to invest. This would lessen to some extent the
difference in the parties’ incomes. The fact that the wife might prefer instead
to retain her unencumbered property is not the point – she has the option to
liquidate assets in order to generate income. There is no indication that his
Honour gave consideration to this issue.

Attorney-General signals change

The Commonwealth Attorney-General Robert McClelland has clearly signalled that the Commonwealth will be changing the family law system, probably by more emphasis on settling propertys ettlement disputes before they get to court. Mr McLelland (with emphasis added by me):

The Courts and Family Law

In troubling economic times it is imperative that our justice system is accessible and effective in dealing with an increased number of financial and commercial disputes – including an increase in personal insolvency and consumer credit and debt. We must also prepare ourselves for an inevitable increase in family stress and disruption, and potentially more instances of family breakdown.
In that context, it is essential that the considerable public resources devoted to family dispute resolution are utilised in a way that maximises the benefits to the people affected by family breakdown. As a result, I initiated a review of the delivery of family law services by the federal courts.
The Report of the Review was released in November last year, along with a Consultation Paper seeking further public comment on the Report’s recommendations. The consultation period ended a month ago.
What the Review and consultation both reveal is consensus among stakeholders that aspects of the federal family law court system are due for reform. The Government is currently considering this matter. However, let me make clear that I believe no change is not an option.

Access to Justice in Family Law

About 40 per cent of Australians are affected, directly or indirectly, by family law. We can never be complacent about the people whose lives are affected or about the system that is there to assist families through the crises of breakdown and dislocation. We must ensure that all our efforts and public resources are deployed at an early stage to assist parties to resolve their own differences as quickly as possible or – if this is not possible – narrow the issues in dispute. Last month, I convened a Family Law System conference that brought together almost 200 heads of organisations and key individuals in the family law system. The conference discussed how we might build an integrated family law system by strengthening relationships across the courts, the legal profession and family relationship services.

Legal Assistance

Legal assistance programs help deliver the Government’s social inclusion and access to justice agendas and the Commonwealth and State governments invest heavily in them. Last financial year around $111 million was provided for legal assistance programs in Queensland alone − $56 million in State grants and Public Purpose Trust funding, and $55 million in Commonwealth funding.

These are significant resources, but it would be unrealistic to think that governments could ever provide enough funding to meet all demand. So it is critical that every dollar for legal assistance services counts. In particular I want to strengthen the capacity for early intervention – it is one of the keys to resolving legal problems before they escalate and add to the burden of entrenched disadvantage. I commend the determined efforts of legal aid commissions, community legal centres and Indigenous legal service providers to coordinate and collaborate on early intervention initiatives such as community legal education, advice, advocacy and mediation.
Legal aid commissions have led the way with their family dispute resolution services. In particular, Queensland Legal Aid Commission has been at the forefront of family mediation services for some years. I was pleased to open their new purpose-built centre here in Brisbane last year. The centre has been carefully designed to maximise safety and privacy. It accommodates several conference rooms, break-out rooms, and video-conference facilities.
Such services play a valuable part in assisting people to resolve disputes before they get to Court.

Family Court: amount of costs ordered

In the recent Full Court of the Family Court case of Steele and Stanley, the court considered an appeal by the wife who considered that the trial judge had not given her enough costs against the husband.

The trial judge had this pearl of wisdom in response to the wife's solicitor's statement that: "the end result of this case was 'very clear'":

Hindsight is a wonderful thing whereas in complex financial arrangements looking
ahead can be more difficult.

The Full Court's attention was drawn to s.117(2A) of the Family Law Act. This subsection sets out a "shopping list" of matters to be taken into account as to whether or not to make costs orders. The Full Court held:

We accept that the insertion of s 117(2A) in the Act has placed a greater obligation on judicial officers in giving reasons in costs matters than was originally the case.

s.117(2A)(f): whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer

This paragraph is a factor to be taken into account as to whether a costs order ought be made.

The wife submitted that s 117(2A)(f) should be approached in the same way as it had been in Robinson & Higginbotham (1991) FLC 92-209 where Nygh J said (Simpson and Smithers JJ concurring):
Similarly, when one looks at paragraph (f) it is quite clear that the purpose of
that provision is to ensure that offers to settle, if made seriously, are
considered seriously, to ensure the costs of litigation is avoided, the workload
of this Court is lightened, and one other consideration is certainly that a
party with greater wealth is not placed in a position whereby he or she can wear
out the other by simple attrition. In the circumstances of this case, although
paragraph (f) does not have a priority per se, the considerations represented by paragraph (f) are of overriding importance.
It is, therefore, my view that her Honour erred in not awarding the wife reasonable costs incurred after the date on which the offer was made ...

In response, counsel for the husband referred to Pennisi v Pennisi (1997) FLC 92-774 where the Full Court (per Nicholson CJ, Barblett DCJ and Faulks J) said:

The plain words of the paragraph [s 117(2A)(f)] do not limit a Court’s attention
to offers which are greater than the amount awarded. Nor does the paragraph
state what consequences flow from whether the offer is greater or lesser than
the amount awarded, or how much that is the case. Words of limitation should not
be imported into the provision and nor should it be read as though offers in
proceedings under the Act carry the same consequences as payments into court in
common law matters.
We do, however, consider that the closer the offer is to
the award when the offer is under the amount awarded by the Court, the more
weight that should be given to this factor in considering the question of costs.
This principle must not, however, be rigidly applied. Offers must be seen in the
context of the case and the extent of the offeree’s knowledge of the parties’ financial
circumstances while the offer is live. In the family law jurisdiction, it is not
uncommon to find relationships where one party, often the wife, has
significantly less grasp of the parties’ financial arrangements, or the
financial circumstances are so complex that it would be premature to accept an
offer. There are also cases where the contents of the offer are in themselves
the subject matter of disputed value and legitimate subject matter for
determination. These and other features of the context of offers must be taken
into account when considering whether it was reasonable or not to accept an
offer, no matter how close to the ultimate result the offer may be.

The court held:

There is no inconsistency between Robinson & Higginbotham and Pennisi v Pennisi. From both cases it is apparent that the significance of offers of settlement may differ and the context in which the offer of settlement is made is a proper matter to be considered.

The wife's appeal was dismissed with an order that she pay the husband's costs of the appeal.

Saturday, 28 March 2009

Family Court: delay from trial to judgment is not ground of appeal in itself

In the case of Nardello and Fillmore, a ground of appeal was that in a children's matter there was a delay from trial to judgment of 10 months. There was no transcript of the trial.

The mother relied upon the delay, in itself, as being a basis of appeal. While the Full Court did not accept this, it did accept in ordering a retrial that delay played a part in consideration of the impact on the children of being moved from one household to the other.

The court cited authorities dealing with delay, this passage from a NSW Court of Appeal judgment being particularly pertinent:

Where there has been significant delay, there can be no assumptions that
statements of a general assertive character made by the judge are based on a
sufficient consideration of the evidence, or that evidence relevant to a
particular finding not considered in the judgment has not been overlooked by the
judge in making that finding where that evidence, if accepted, could have
supported a different finding....

And, finally, the long delay may give rise to a reasonable apprehension by the losing party that the judge delayed giving judgment because he or she had been unable to grapple adequately with the issues and, in the end, had become attracted to the decision which was the easiest to make. The possibility that such an apprehension may be held by the losing party requires the judge to deal with that party’s arguments in such a way as to demonstrate that those arguments have been understood and that their rejection has been based on a clear and rational process of reasoning.

Family Court case: comparatives of violence

In the recent Full Court of the Family Court case of Nardello and Fillmore, the key issue was whether the Federal Magistrate had properly analysed the risk of family violence to the children from the father as opposed to the mother.

The case concerned the care of the parties two youngest children, who had been in the mother's care after the parties separated. The Federal Magistrate ordered that they live with the father. The mother appealed.

The evidence of the mother's violence included evidence from the Department of Child Safety and her admissions:

  • the mother struck [S] twice on the leg with the metal pipe of a vacuum cleaner causing bruising and swelling of the leg;
  • At the time the complaint was made of this incident, [S] told Departmental officers that she often “gets smacks” with the stick from her father. [S] said she was smacked about ten times a week (but didn’t specify by which parent);
  • The Department made an assessment of substantiated physical abuse by the mother against [S];
  • [S] was struck by the mother approximately five times with a metal stick on the bottom;
  • The mother used metal pipes, a wooden spoon and a belt with a metal buckle to strike the children.

The family report writer recommended that the children live in the mother's household on the basis that there were some protections for the children, including a ban on physical discipline, the father seeing the children regularly (so giving the mother respite), and parenting training.

The Full Court held that the Federal Magistrate's analysis of the risk of violence in the father's household was inadequate:

i) the Federal Magistrate says that he has consciously not made an order that neither party physically discipline the children because, given the issues that have been ventilated at trial, such an order is unnecessary and “both parties now know full well that such conduct is inappropriate” is quite inconsistent with the balance of the learned Magistrate’s assessment of risk in the mother’s household.
(ii) Secondly, that part of his judgment where he indicated that he rejected the family report writer's recommendation as to where the children should live, because the writer had said that should only occur with appropriate safeguards, as to which the Federal Magistrate said the writer had given no explanation of safeguards, is erroneous. The Magistrate set out the writer's evidence in his report in which the recommendation was made. However, in the very next paragraph, which was not quoted by the learned Magistrate, the writer had said:
Apart from the normal undertakings not to physically discipline the children, both parents may benefit from a parenting program in addition to – if resources allow – individual counseling on parenting. Moreover, in his examination in chief, then counsel for the ICL asked the report writer about the “safeguards” referred to in his report and then asked:
“Is there anything else that can be put in place that you think would help?”
The writer responded
“I would think that if the children are – if the younger children are in the care of their mother the most important aspect would be that the father is having continuing visits and time with the children, not only for the benefit of his relationship with them but also to relieve stress amongst the whole family and upon the mother.
(iii) While (save for the inconsistency referred to in the first point above) it may be that the Federal Magistrate adequately addressed the question of risk of violence in the care of the mother and while from time to time he mentioned evidence of abusive behaviour by the father, of the older children, the learned Magistrate did not attempt to make any real assessment of risk of violence in the father’s household, despite the writer's opinion of that risk and ample evidence pointing to that as an issue.
For example, the father had no extended history of carrying the burdens of child rearing, but had still acted abusively towards V. In relation to that event involving V, leading to the husband abandoning the children late at night, the family report writer had said:
...He [the father] appears to accept that this was inappropriate, but I doubt that this will prevent the same thing from occurring again.
In addition, the evidence from the Department of Child Safety included a number of allegations against the father.

"We do not say that, properly weighed, a finding that risk of violence was less in the father’s household than in that of the mother might not have been open. Our conclusion is however, that the learned Magistrate’s assessment of comparative risk, in a case in which that was a critical factor, was inadequate." (emphasis added)

Wednesday, 25 March 2009

Only a question of time: Canadian court orders man to reveal Facebook profile

It is probably only a question of time here, as a Canadian court has held that a man has to reveal his Facebook profile as part of his obligation to disclose relevant documents.

In Leduc v Roman, a case involving a motor vehicle accident, Mr Leduc had a Facebook profile. Access was restricted to friends only.

When the matter first came before the court, the defendant was unsuccessful in obtaining an order for access to the Facebook profile, so the defendant appealed. Successfully. Ultimately the defendant was allowed to cross-examine Mr Leduc before obtaining an order to trawl through Mr Leduc's Facebook profile.

Possession or control

Because Mr Leduc had the ability to control his settings, and it was after all his profile, intended to show to others and not for the purposes of talking to himself, the profile was under Mr Leduc's possession or control. Therefore, if relevant, the electronic documents would be obliged to be disclosed by Mr Leduc.

Nature of Facebook

Justice Brown held:

Where a party makes extensive postings of personal information on his publicly-accessible Facebook profile, few production issues arise. Any relevant public postings by a party are producible. An opposite party who discovers and downloads postings from another’s public profile also operates subject to the disclosure and production obligations imposed by the Rules.

[30] Where, in addition to a publicly-accessible profile, a party maintains a private Facebook profile viewable only by the party’s “friends”, I agree with Rady J. that it is reasonable to infer from the presence of content on the party’s public profile that similar content likely exists on the private profile. A court then can order the production of relevant postings on the private profile.

[31] Where, as in the present case, a party maintains only a private Facebook profile and his public page posts nothing other than information about the user’s identity, I also agree with Rady J. that a court can infer from the social networking purpose of Facebook, and the applications it offers to users such as the posting of photographs, that users intend to take advantage of Facebook’s applications to make personal information available to others. From the general evidence about Facebook filed on this motion it is clear that Facebook is not used as a means by which account holders carry on monologues with themselves; it is a device by which users share with others information about who they are, what they like, what they do, and where they go, in varying degrees of detail. Facebook profiles are not designed to function as diaries; they enable users to construct personal networks or communities of “friends” with whom they can share information about themselves, and on which “friends” can post information about the user.

[32] A party who maintains a private, or limited access, Facebook profile stands in no different position than one who sets up a publicly-available profile. Both are obliged to identify and produce any postings that relate to any matter in issue in an action. Master Dash characterized the defendant’s request for content from Mr. Leduc’s private profile as “a fishing expedition”, and he was not prepared to grant production merely by proving the existence of the plaintiff’s Facebook page. With respect, I do not regard the defendant’s request as a fishing expedition. Mr. Leduc exercised control over a social networking and information site to which he allowed designated “friends” access. It is reasonable to infer that his social networking site likely contains some content relevant to the issue of how Mr. Leduc has been able to lead his life since the accident.


It is probably only a question of time before a similar argument comes before the Australian courts. The types of cases where it is most likely to be argued are:
  • personal injury cases, like Leduc v Roman- where an issue is the ongoing capacity of an injured plaintiff to work
  • family law cases, where issues such as attitude to parenting (and the other parent), earning capacity, ability to parent, all come into play.

This type of case is not limited to Facebook or Myspace. One could well imagine parties wanting to look at their ex's adult connections type site. The case is a signal reminder that posting information on the web has all kinds of risks. Those going through a family law split are often the most vulnerable to a vengeful ex determined to dig up dirt for some perceived advantage in the court case.

Poster beware!

Men's work/ women's work: who does more?

The Australian Bureau of Statistics has released interesting research showing that women do most of the household work, men do most of the paid work, and overall they balance up.

Here are some extracts(with highlights):

Between 1992 and 2006, the proportion of women who were employed increased from 48% to 55%. This led to an increase in the average time women spent on paid work, by an hour and 45 minutes, to an average of 16 hours and 25 minutes a week. This is much lower than a 'standard' working week due to the number of women who are either not employed or employed part-time.

While women were assuming a greater role in the workplace, they did not compensate by reducing work around the home. Women spent around the same amount of time on household work (which includes caring for children as well as domestic activities and shopping) in 2006 (an average of 33 hours and 45 minutes a week) as they had in 1992.Over the same period, men took on more household work. Between 1992 and 2006, the average time men spent on household work rose by an hour and 25 minutes to 18 hours and 20 minutes a week. The time men spent in paid work remained steady at an average of around 31 hours and 50 minutes a week. In 2006 women still did around two-thirds of household work, while men did two-thirds of paid work. In terms of total workload, both men and women spent an average of 50 hours and 10 minutes a week in a combination of paid work and household work.

Although different gender roles are apparent in the division of household work (with women doing most of the indoor tasks and men dominating the outdoor activities) there is evidence that these roles have become less rigid in recent years. In 2006 men were spending more time on traditionally 'female' domestic activities such as cooking and laundry than in 1992, and less time on outdoor activities such as lawn mowing, and home maintenance.As women, on average, increased the time spent in paid work between 1992 and 2006, the average time spent on domestic activities by women declined, particularly laundry and ironing, and other housework such as cleaning. However, this was partly offset by an increase in time spent on household management activities such as paying bills. Women also spent more time on other household work such as child care, so that the time spent on household work overall did not change significantly.

While men are doing slightly more household work than in the past, in 2006 women still did around 1.8 times as much as men (compared with twice as much in 1992). Although women are spending less time cleaning and doing laundry, they still spent almost six times as long on laundry as men in 2006, and more than three times as long on other housework such as cleaning. Women also spent almost two and a half times as long on food preparation and clean up, despite men doing more of the cooking than in the past.

While men are taking on a greater role with respect to child care than in the past, women on average spent more than two and a half times as long caring for children as men did in 2006. There were also differences in the type of child care activities parents did, with fathers spending a greater proportion of their child care time on play activities (41% compared with 25% for mothers), and mothers spending more of their time on physical and emotional care activities (43%, compared with 27% for fathers).

Statistics: couple relationships

The Australian Bureau of Statistics has released analysis of couples relationships. Here is part of the ABS had to say:


The proportion of adults living with a partner has declined during the last two decades, from 65% in 1986, to 61% in 2006. Factors such as the trend towards partnering at a later age, and the increased financial and social independence of women, may be associated with this decline, as well as legal changes in recent decades which have improved access to divorce.

Consistent with the declining proportion of people in couple relationships has been the fall in the proportion who were in a registered marriage, from 62% in 1986 to 52% in 2006. On the other hand, there has been an increase in the proportion of adults in de facto relationships, which more than doubled from 4% to 9% over the period.

The number of people living in a same-sex couple relationship has also increased over the past decade. In 1996, 0.2% of all adults said they were living with a same-sex partner. By 2006, this had increased to 0.4% (to around 50,000 people). However, these figures may be an undercount of the true number of people living in same-sex relationships. Some people may be reluctant to identify as being in a same-sex relationship, while others may not have identified because they didn't know that same-sex relationships would be counted in the census.

Length of relationships

Of the people currently in a live-in relationship, the median length of the relationship was 18 years. However, the duration varied widely according to age and the number of relationships people had previously had. For example, for people aged 65-74 years who had only ever been in their current relationship, the median time together was 46 years, while for people aged 35-44 years who had had three or more relationships, the median duration of the current relationship was six years.

In 2006-07, around one-third (34%) of people aged 18 years and over said they'd had a live-in relationship that had subsequently ended. For just over half of these people their most recent past relationship was a registered marriage. Past registered marriages tended to have a much longer median duration than past de facto relationships (14 years compared with 2 years). In considering the apparently brief duration of de facto relationships, it should be kept in mind that this median is only for those relationships that have ended - a greater number have gone on to become a registered marriage or remain as long-term partnerships. In addition, where de facto relationships are being used by couples as a step before marriage, those that end before marriage may reduce the number of marriages that would otherwise end in divorce within a short period.

Tuesday, 24 March 2009

Brisbane family lawyer becomes A-G in 3 days

New Attorney Cameron Dick
With the election of the Bligh government on Saturday, Queensland Premier Anna Bligh put her stamp on the new ministry by appointing Cameron Dick as the new Attorney-General. Cameron has probably created a new record, having been elected all of three days!

A family law barrister by training, and someone who until recently was a tenant above my office, Cameron's loss will be missed, and no doubt as Attorney it will be to the greater good of society.

Although I applaud Cameron's swift elevation, it is with some sadness that he takes over from previous Attorney-General Kerry Shine, someone who has been seen as effective and competent.

Cameron is not the first Brisbane family lawyer to become Attorney. Probably the best known is Matt Foley, one time social worker, poet and family law barrister, who on retirement from politics has returned to the bar.

Family lawyers de facto training

Given that the de facto changes to the Family Law Act have just taken effect, the Family Law Section of the Law Council of Australia has announced a non-quite-national series of training seminars to train the lawyers about the changes.

I saw not-quite-national, because South Australia and Western Australia have not opted into the scheme, lawyers in those states will not be getting the training. Fair enough.

The link to info about the seminars is here.

Better to settle to end up with equal time, than go to court: Family Court review

A Family Court review, according to the Australian, shows children were to live with their dads in 17 per cent of litigated cases, but only in 8 per cent of those settled by consent.
The first review of the 2006 changes to the Family Law Act shows that in 14 per cent of litigated cases, the children lived with their dads in 30 to 45 per cent of cases. This figure fell to 11 per cent for early agreements.
The review shows that, if fathers are given less than 30 per cent time, abuse and violence are the main reasons. About one in 12 court cases end with an order that a child should spend time with their grandparents.
15 per cent of the litigated cases and 19 per cent of the consent orders ended in orders for 50-50 care.

Bullying link to teen stalking

A survey of 300 intervention order cases by the Children's Court of Victoria has suggested a clear link with stalking type behaviour, with intervention orders being granted against those as young as 11, according to the Age report.

Monday, 23 March 2009

If this isn't grounds for giving up the green stuff, nothing is...

It seems for those men who haven't realised that marijuana can affect your gonads, let alone other bodily bits, comes the news that some heavy users have experienced vomiting for up to 2-3 hours daily, until they give up marijuana, according to news.com.au

Australia listed 8th in the world as business friendly

Yes, I know this is not family law, but this was something that took my eye. Forbes magazine has just issued its list of countries for business. As the article stated:

Everyone's in a downturn. A look at who's best equipped to bounce back.

Denmark is no. 1, and the US is no 2. Canada is no.3, Singapore is no. 4 and NZ 5.

Both Australia and NZ are big movers, NZ up 7 places to no. 5 and Australia up 5 places to 8.

We're doing something right.

CSA making child support easier for multicultural families on Harmony Day 2009

Harmony Day, celebrated on 21 March this year, is a timely reminder that parents' understanding of child support differs between cultures. General Manager Matt Miller said the Child Support Agency (CSA) has taken a culturally sensitive approach to educating the diverse Australian community about their child support responsibilities.

"Different cultures have different cultural norms when parents separate," Mr Miller said. "In some cultures when families break up they usually make their own private arrangements and don't understand why an agency like CSA would get involved".

Mr Miller said some translations, and in particular the use of the term "support" when translated, can also lead people from diverse backgrounds to believe that CSA is promoting or "supporting" family breakdown.

"We often test our parent support publications with parents from different cultures before translation to try to ensure terms such as "support", "calculate", "collect" and "transfer" make sense for different cultures," Mr Miller said.

"We're here to support separated parents to transfer payments for the benefit of their children, so we want non-English speaking parents to get the same access to this support as all Australian parents."CSA's translated versions of its popular Me and My series can also help separated parents deal with some of the more difficult aspects of breaking up, such as money management, your health, getting on with your ex, parenting from a distance and forming a new partnership.

The free booklets are available in Arabic, Chinese, Spanish, Turkish and Vietnamese. The booklets are titled:
· Me and My Money
· What About Me
· Me, My Kids and My Ex
· Me and My Kids
· Me and My Changing Family

To order translated publications, call 1800 040 972 or visit www.csa.gov.au/translatedPeople from culturally diverse backgrounds can also access child support information via CSA's translation and information service.Customers with questions about their child support can contact the CSA via the telephone interpreter service by calling 131 450 between 8.30am and 4.45pm. Customers need to have their customer ID ready and ask the operator to put them through to the CSA on 131272.

Source: Child Support Agency Media Release

Thursday, 19 March 2009

Married women lonelier than married men, but separated men lonelier than separated women: study

A study has found paradoxically that married women are lonelier than married men, but once they separate, the men are lonelier than the women. However, with the men, it pays to earn more money. Not surprisingly, men who earn more are less lonely than men who earn less.

For details of the study, reported in the Australian, click here.

US$43 million not enough to live on - wife

The wife in a Connecticut case is arguing that her post-nuptial settlement of US$43 million is not enough to live on. The wife, a Swedish countess, spends US$53,000 a week, or over US$2.7 million a year on ordinary living expenses. Put another way, the $43 million will only last 15 years at current spending.

For more, click here.

Wednesday, 18 March 2009

The stamp duty mess in Queensland

The Queensland Office of State Revenue is responsible for administering state taxes, including stamp duty.

Stamp duty is paid on a whole variety of transactions, but most importantly for this article when houses and real estate interests are transferred. When husbands and wives split up, provided they transferred their property pursuant to orders made under the Family Law Act then they were exempt from paying duty on the transfer. This was because of section 90 of the Family Law Act and corresponding provisions of the Duties Act.

It was then seen that transfers pursuant to a binding financial agreement were also exempt, as were transfers pursuant to court order or recognised agreement for de facto couples.

That's the easy bit.

Some months ago, I posted about how the OSR changed its rulings. This was because the previous situation was unclear. Previously, it appeared that duty might be charged if a transfer was to or from someone who was not the husband or wife. Typically this might be the company of one of them.

That's what the effect of rulings by the OSR meant, even though s.90 of the Family Law Act said otherwise (that the transfers were exempt). In practice it was not so clear. In a couple of cases I advised clients to put aside in excess of $10,000 for anticipated duty, but in those cases the OSR did not charge duty.

Then the OSR, as I posted before, changed its ruling. Hooray, now the rules were clear.

Until 23 February...

The OSR decided to revamp its website. All good fun, but it decided in the process to rewrite the rules on family law transfers. Here's how it changed:
  • the previous rulings applied until 23 February, 2009. Here is the old ruling that applies to de facto couples, and here is the one that applies to married couples.
  • the view about the OSR for the period from 24 February to 3 March 2009 is not known. There is no ruling that applies to that period.
  • From 4 March a new approach applies. It is not on the public rulings page of the website.
  • Unhelpfully, the new approach is almost impossible to find. Last week, I went to the OSR website, looking for the ruling. I tried to find out what had happened to the old rulings, and whether a new ruling applied. I think that I am reasonably adept with the web, but I was completely lost. Admitting my inadequacies was easy- I then gave the job to a fellow staff member, who striking the same problem, phoned the OSR for help, which was then able to point to the elusive pages.
  • Now, instead of lodging many (but not all) documents for family law transfers with the OSR for stamping, solicitors' firms will have to register and self-assess.
The new portions of the webpage, which are not described as rulings, or practice directions, but are flow charts are here :
The pitfalls

As far as I can see, the following transfers need to be sent to the OSR for assessment. There is every possibility that the the OSR may send them back saying that they ought to be self-assessed:
  • transfers pursuant to court order under s.422 of the Property Law Act. For the life of me I cannot understand why the OSR is saying that transfers pursuant to orders under the Family Law Act are self-assessed, but those under the Property Law Act are not.
  • transfers pursuant to interstate orders or agreements for de facto couples covering property in Queensland- the OSR is seeking that these be sent to it for assessment. Duty or exemption from duty may already apply.
  • even if the parties enter into a recognised agreement under the Property Law Act, the OSR has its own criteria- self-assessment does not apply if they have lived together for less than 2 years. Presumably, the OSR takes the view that if parties live together for less than 2 years, then duty may apply. This is despite the Property Law Act stating that they can live together for 2 years, or have a child together, or have had substantial contributions (which can include non-financial contributions). It begs the question - whether it is preferable for de facto partners who have lived together for less than 2 years to obtain an order from the Supreme Court instead of a recognised agreement- but then self-assessment does not apply!
  • if the parties are in a de facto relationship and split up from 1 March, or opt in to the Family Law Act, unbelievably the OSR has not included these couples in the self-assessment model if they enter into a de facto binding financial agreement under that Act- which means they need to be assessed by the OSR, despite section 90WA of the Family Law Act (which says that they are exempt). Section 90WA was not a state secret- Queensland had to pass enabling legislation last year so that the de facto reforms to the Family Law Act, including s.90WA could take effect. Given that the same rules as to eligibility of de facto relationships apply under the Family Law Act as if they were under the Property Law Act ie 2 years OR substantial contributions OR they have a child, the OSR will no doubt scrutinise these agreements carefully to see if the parties have lived together for 2 years. However, if a de facto couple obtains orders under the Family Law Act, they are exempt- and self-assessment applies!

The good news

Yes, there is some. Self-assessment transactions can occur almost instantly, not having to wait 48 hours as was required through the OSR. The 48 hour turnaround compares with NSW which is 24 hours.

US: New "no lie" MRI

American lawyers are seeking to admit into evidence the MRI test results of their client, the father in a child protection case who is accused of engaging in sexual abuse case. The purpose of the MRI was to show, from the oxygen levels in the brain, that when the client was questioned about the incident and was in the MRI, the client was not lying, and that therefore the abuse had not occurred.

It is not yet know whether the results will be admitted.

I don't know how the client was asked questions when in the MRI, but unless it was the world's quietest MRI, I would have hated to be the person typing the transcript of the interview. This is what one healthcare company said about MRI:

You will be positioned on a special moveable table with your head, neck or
back inside the MRI scanner, which is shaped like a cylinder. You may be
given earplugs or stereo headphones to wear due to the loud banging noise the
MRI machine makes during the exam

Progress on Australian/NZ legal reforms

Hooray, at last, these changes will come...

For anyone who has had a family law court case, often one of the most powerful weapons in use is the subpoena. Sometimes it is amazing what documents reveal. To tell one old war story, there was the case where the father said in his affidavit that he was the prime carer of the children. My client, the mother, said that she was the prime carer. The husband's security key log which I obtained on subpoena showed, very clearly, that on that point at least he was not telling the truth. If he was always at work, unlike Samantha from Bewitched, he could not be in two places at once.

The reality is that many Kiwis have moved to Australia, and a few of us have moved there too, especially when marriages have broken down. It has been frustrating that subpoenas have not been able to issue in one country and been enforceable in the other (especially when for example Auckland is less flying time from the eastern seaboard than is Perth). This problem now looks like it will change, according to this media release:

Robert McClelland, Australian Attorney-General, and Simon Power, New Zealand Minister for Justice, today met in Canberra to progress a range of measures aimed at harmonising trans-Tasman legal arrangements. Ministers discussed progress on the implementation of the Trans-Tasman Court Proceedings and Regulatory Enforcement Treaty, signed in July 2008. The Treaty includes a number of innovative measures, such as expanding the range of court judgments that can be enforced across the Tasman, and simplifying the related processes.

“I’m pleased that Australian legislation to implement the agreement will be introduced into Parliament this year. The priority we have attached to this legislation demonstrates the Rudd Government’s commitment to making it easier and more cost effective for Australian and New Zealand businesses and individuals to resolve disputes,” said Mr McClelland.

“Like Australia, the New Zealand Government also plans to introduce legislation this year to ensure the implementation of this important agreement is achieved quickly,” said Mr Power.
The Attorney-General also updated the Minister on the Law and Justice (Cross Border and other Amendments) Bill 2009, which the Government intends to introduce into the Australian Parliament this week.

The Bill will expand the Trans-Tasman subpoena scheme to family proceedings, meaning that family proceedings will be included in the range of proceedings covered by the cooperative scheme between Australia and New Zealand for the service of subpoenas.

Ministers also discussed work to enhance trans-Tasman cross-border insolvency arrangements, which is being led by the Australian Minister for Superannuation and Corporate Governance, Nick Sherry. Both countries have now passed legislation implementing the United Nations Commission on International Trade Law’s Model Law on Cross‑Border Insolvency, and will shortly be commencing an examination into the streamlining of trans-Tasman arrangements under the Model Law.

“The examination of trans-Tasman insolvency regimes will complement other personal insolvency reforms the Rudd Government is progressing in 2009 which aim to ensure Australia's bankruptcy regime remains modern and well-equipped to address the challenges of the modern financial situation,” said Mr McClelland. Ministers will meet again next month at the Standing Committee of Attorneys-General meeting in Canberra, of which New Zealand is a full member.

Tuesday, 17 March 2009

The Larapinta-Uluru Trek for Family Peace 3-8 September 2009

As a director of the non-profit Australia's CEO Challenge, I am thrilled that CEO Challenge is organising the Larapinta-Uluru Trek for Family Peace. Limited to 15 places only, the trek is in one of the most remote and beautiful parts of Australia and will help make a world where women and children are safe and free.

The picture above is of the Olga Gorge. Although everyone mentions that they have been to Uluru, the Olgas or Kata Tjuta is (in my opinion anyway) much more spectacular. I had expected that the Olgas were made of the same kind of rock, a red sandstone, as Uluru. Not so. I was struck when I walked through this gorge about how the walls were a type of conglomerate- a beautiful form of natural concrete, which surround and envelope you. To be there is to know that you are in one of the unique places on Earth.

  • Save the life of a young mum and her child when she attends one of CEO Challenge's employee seminars and understands the concepts of control and power,and recognises the warning signs of violence ($1 a day).
  • Create a toy and book library for children who have left their beloved toys and books behind when their mother sought refuge from a violent relationship in a shelter aided by CEO Challenge ($100).
  • Stop a man raising his hand to his wife or children after attending one of CEO Challenge's
    seminars or workshops ($500).
  • Provide a shaded area for kids to play at a refuge providing shelter for
    mothers and their children.

1. Register to secure your place ($700 non-refundable fee)
2. Create your fundraising plan — Australia’s CEO Challenge & Inspired
Adventures will help you every step of the way
3. Start fundraising to reach your goal of $4,000 (flights not included).
Trip costs = $2,840 + $1,260 minimum to Australia’s CEO Challenge
4. Get fit for your challenge
5. Australia’s CEO Challenge receives the funds you raised (minus the trip
costs) and the money makes a real difference to family lives
6. You have the adventure of a lifetime

Fundraising Target: $4,000 (flights not included)

Registration Fee: $700 (non-refundable, not part of fundraising)

Duration: 6 days

Trek Duration: 4 days

Physical Rating: Moderate to Challenging

Accommodation: Hotels & Comfortable Outback Camping

For more, click here.

New Product: Family Law Communications Book

Family Law Communications Book
One of the most annoying, but necessary things to do when you have children is having to communicate with the ex. This is especially important when children are being swapped over. Who doesn't want to know about little Johnnie's swimming carnival or little Emily's parent/teacher evening?

Unfortunately,all too often parents argue on weekends about arrangements for their kids. All too often, the parents' lawyers also get dragged into the frame, with multiple letters/phone calls/faxes/emails flying back and forth at great expense. Inflammatory things are said, making the pain of whatever happened on the last weekend even worse, and with potential long lasting harm.

The Family and Federal Magistrates Courts have long recognised that this is not an ideal way to go, and have endorsed in appropriate cases the use of contact books. Used properly, these have a number of advantages:

  • all communications are in writing

  • they go back and forth with the child, so have little chance of being mislaid

Unfortunately, some parents abuse the privilege and write abusive comments, or when they don't like what the other side has written, keep the book and then claim that it is "lost". To prevent this happening, sometimes the other parents photocopy every page before handing over the book. What a pain! I have had clients say to me that they want to copy everything, but who has access to a copier?

I recently received a blurb about a new product called the Family Law Communications Book. What joy such a simple thing can bring. It's funny how something so cheap can save so much aggravation and cost. As they say, necessity is the mother of invention, and in my opinion at least this product is needed, and welcome.

Here is what the blurb said:

This book is printed in triplicate with carbonless paper. When you make an entry, you tear out the top sheet and keep it for your record. The other party can use the remaining sheets to write a response or follow up and they tear out the second copy for their record. The third copy remains in the book as a permanent record. If the book is lost or stolen, each of you still have your record of what was written. The books are designed to be numbered by volume and each set of pages is also consecutively numbered from 1 through to 30, enough to do the average family for more than a year. The books are printed with a durable cover in A5 size so that fit easily into the children’s school or overnight bags.

What an excellent idea!

Family Law Courts cut red tape for bushfire, flood victims

The Family Court of Australia and the Federal Magistrates Court of Australia will waive the normal fees for supplying copies of court documents to people who have lost records during the recent natural disasters in Victoria and Queensland.

“Court orders, documents and divorce certificates are vital records and lives already in turmoil can be further disrupted when the lost documents are required.

“The Family Law Courts will replace lost Court documents without charge for those affected by fire or flood.

“As people will often have lost proof of identity as well, the Courts will follow Centrelink’s lead in this regard and apply the same tests.

“No one will be refused assistance in circumstances where it is entirely reasonable that he or she will lack normal means of identification”, the CEO, Richard Foster, said.

All correspondence from the Courts to self represented litigants will include a broadsheet with information about measures in place to overcome difficulties associated with lost documents. They will be advised that changed circumstances of one party may affect the applications and responses of the opposing party. The Family Law Courts website www.familylawcourts.gov.au has information in the “What’s New?” section on replacing lost documents and the National Enquiry Centre, 1300 352 000, will answer any queries.

Source: Family Law Courts Media Release

Intimate Partner Violence Responses Have Limited Impact: Study

Coordinated community responses to intimate partner violence do not reduce recidivism to the degree previously accepted by advocates, say new studies published in the journal Criminology & Public Policy. The research did suggest potential avenues for success among certain sub-groups. Studies found that coordinated responses to intimate partner violence in the form of increasing offender accountability through the courts failed to alter offender attitudes and behavior. Research was conducted in American states of Massachusetts, Wisconsin, and Michigan.

The research, which is not available publicly online, was done byChristy A. Visher of the University of Delaware, Adele Harrell of the Urban Institute, and Lisa Newmark of George Mason University, along with Jennifer Yahner at the Urban Institute. Richard Peterson of the New York City Criminal Justice Agency argued in the journal that the time has come for the scientific community to accept that attempts to reduce intimate partner violence are of very little use. He and colleagues suggested that more effort should be directed toward the prevention of initial intimate partner violence offences, rather than the reduction of recidivism.

Monday, 16 March 2009

Family Court orders teens to live with dad against their will

News Ltd is reporting that Justice Murphy of the Family Court has ordered that two teenage girls, against their will, continue for the interim to live with their mother and not move to live with their businessman father and his second wife on the Gold Coast.

Sunday, 15 March 2009

Facebook, Myspace used to acquit suspect

As one Brisbane Federal Magistrate has said time and time again: "The courts decide on evidence, not supposition".

As many people who have ended up in the Family Law Courts have discovered: "What you say online can and will be used in a court against you."

That both are true was amply illustrated with the acquittal in New York of Gary Waters on a driving charge, when the arresting officer's online comments became a key issue.

According to the New York Times, the police case was that Waters had been weaving in traffic before being pulled over, and then:

Waters had been carrying a fully loaded 9mm Beretta pistol, an extra 15-bullet magazine, 27 loose rounds, and a pair of handcuffs. But the defendant’s lawyer told the jury that these items had been planted on his client as an excuse for breaking his ribs during the arrest.

The defence's key theory was that the defendant was set up by the arresting officer, Vaughan Etienne, that the gun and ammo was set up by Etienne as an excuse for breaking his ribs during the arrest. This theory didn't have legs until Waters' lawyer Googled Etienne, and discovered that Etienne:

Faced with that evidence, the outcome was not in doubt: Waters was acquitted. Not surprisingly, NY police are now being trained in being careful in what to say online.

Saturday, 14 March 2009

MP urges business to support CEO Challenge

Shayne Neumann MP
As a director of non-profit Australia's CEO Challenge Ltd, I was chuffed to see the following words in Hansard by Shayne Neumann MP. Shayne, Labor, is the Member for Blair, which is based in Ipswich, Queensland. Shayne has stated eloquently what CEO Challenge is all about.

Australia’s CEO Challenge
Mr NEUMANN (Blair) (9.35 pm)—I wish to speak tonight about the Ipswich Business Breakfast Forum I attended on 6 February 2009, which was in relation to Australia’s CEO Challenge, a workplace partnering against domestic violence. When a CEO takes up the challenge against domestic violence, their organisation can make a real difference to the lives of women and children.

Partnering with and supporting women’s refuges and domestic violence prevention programs is crucial, and one in particular was taken up and assisted in my electorate— that is, the Ipswich Women’s Centre Against Domestic Violence, a great organisation performing wonderful work for women and children in my electorate.

Australia’s CEO Challenge Executive Director is Wendy Reid, a very committed community worker whose vision is a world without domestic violence. Preventing domestic violence in family life and workplace situations is crucial not just economically but in terms of social justice and equity in our community. Facilitating partnerships between business and refuges is extremely important, and business can make an important contribution to assisting the relief of women and children who suffer this dreadful violence.

In 2008 the World Health Organisation said there are 1.6 million deaths per year from violence in our world. Fifty-four per cent of all deaths are self-inflicted—that is, suicide—35 per cent are from intimate and family violence and 11 per cent are from collective violence—that is, war. The Australian public would be very surprised to know that 35 per cent of deaths in our world each
year are from intimate and family violence, whereas only 11 per cent are from warfare.

Every two weeks in Australia two women leave their homes suffering from domestic violence. In 2006, according to figures, 116 adult deaths took place in Australia from domestic violence. Acts of domestic violence can be:

  • controlling what a woman spends her money on,

  • controlling what she wears,

  • harassment and intimidation,

  • threats to person and property,

  • all manner of physical assaults and sexual assaults and,

  • simply, controlling behaviour.

In my life before this parliament I acted in family law for more than 20 years and both
prosecuted and defended thousands of cases involving domestic violence, so I know that
intimate family relationships—relationships of blood, marriage and culture—are perilous
for women and children. One in three women experiences domestic violence in
their relationships. The Queensland Police Service estimates that about 30,000 instances
of domestic violence are dealt with by Queensland police annually. However, many
go unreported, so there are many more than that. Signs at work include bruises, frequent
accidents, vague explanations, plans being cancelled at the last minute, having to check
things with their husband or partner, changes in behaviour, unexplained sick days, frequent
calls and emails from their husband or partner and long hours spent at work simply to avoid going home.

The impact of domestic violence on our workplaces is enormous. Four million women and six million men are in the workplace in Australia. It is estimated by a report to the Brisbane Lord Mayor’s Women’s Advisory Committee entitled Impacts and costs of domestic violence on the Australian business/corporate sector[rtf file] that domestic violence costs $1.5 billion annually in direct and indirect costs and opportunities lost. Access Economics, in its 2004 report The cost of
domestic violence to the Australian economy
, estimates that domestic violence cost our
economy $8.1 billion in 2003.

I urge all CEOs and all businesses in my community and nationally to get behind Australia’s
CEO Challenge to harness the power of the workplace to tackle domestic violence. It is important that the patterns of power and control, including physical, sexual, emotional, verbal and financial abuse, are gotten rid of in our workplaces and in our family life. The repercussions for women and children in my community and in the community nationally are horrendous. We should do everything we can in our workplaces to ensure that women are protected so that their children
can have lives of fulfilment free from domestic violence. I commend Australia’s CEO Challenge for the work they do.

FMC case: the recent migrant

In the recent Federal Magistrates Court case of Maguire and Richter, Federal Magistrate Brown considered a property settlement when the parties' circumstances were poor, their relationship was brief, and the wife sought an adjustment in part because she migrated to Australia from Germany, leaving her worse off.

Brown FM did not allow any adjustment for the migration issue. His Honour held:

It is the wife’s position that she has suffered a more significant diminution in her standard of living than the husband in the period since separation. I accept that this is so. The husband has had the benefit of living in the former matrimonial home, but he owned this property prior to the parties’ marriage.
It is also the case that the wife has been at a significant disadvantage following separation, because she has been compelled to live in an environment where she feels herself to be “amid the alien corn”. However, the wife freely chose to come to Australia and pursue a new life here. It is also open to her to return to Germany, where she has secure employment awaiting her.
At present, the wife can see many attractions of remaining living in [L]. She has made friends in [L]. She apparently enjoys the lifestyle and climate of Australia....

The wife complains about the social consequences of the failed marriage from her point of view. She has been transplanted from her native soil and given up opportunities there. However, this was a decision she freely made and, although it is not likely to be more financially advantageous to her to remain in Australia, she has chosen not to return to Germany. By necessary implication, she can see some advantages to her of living in this country.
I am satisfied both parties entered the marriage with a genuine intention to make it succeed. As a result, both made compromises to this end. Now both suffer consequences as a result of the marriage’s failure. I do not think that these various factors, when balanced against each other, justify any further distribution of property in either parties favour.

Thursday, 12 March 2009

Raising children won't send parents broke: study

A new study has suggested that raising children won't send parents broke, according to the ABC, although the author suggests that it should not be used for child support purposes.

FMC case: independent children's lawyer discharged

In the recent Federal Magistrates Court case of Brock and Brock, Federal Magistrate O'Sullivan heard an application by the husband to discharge the independent children's lawyer.

The application, made in a timely manner, was on the basis that the husband, who lived in a small country town, rang local small firm to obtain advice as to whether or not he should hold over the children. That firm was the firm from which the later appointed independent children's lawyer came. She said that there was no file note or record of the call, and the name of the man to whom the husband spoke was unknown, let alone that the firm had never been engaged by the husband.

O'Sullivan FM conducted a thorough review of authorities dealing with the issue of when lawyers, including independent children's lawyers, should be discharged, concluding:

I acknowledge and accept that the Court should be slow to discharge the ICL...
Whilst this matter was not without difficulty, the most significant matter,
in my view, is that the husband has deposed and asserts that the offices of the
ICL, which is a small firm in a country town, provided him with advice, upon
which he acted in circumstances where he could reasonably have assumed legal
proceedings may be commenced and he was entitled to expect that that advice was
confidential. Whilst he could not point to a letter of engagement or file, in my
view, what is at stake is that the integrity of the legal process and the legal
profession so that all parties involved in litigation may have confidence in the
integrity of the legal system and the process.
In my view the justice of
this matter does require that the ICL be restrained from acting.

Wednesday, 11 March 2009

FMC case: Comment on Kennon

In the recent Federal Magistrates Court case of Bingham and Bingham, Federal Magistrate Altobelli considered the effect of Kennon's case. Kennon took domestic violence into account in some cases when property settlement was decided.

His Honour stated:

The passage from the Full Court's decision in Kennon clearly indicates that
is a relatively narrow band of cases to which a Kennon-type
apply. The Full Court's decision focuses on conduct
during the
marriage, but not
afterwards, which suggests the concept
not intended to
apply to
post-separation contribution. There
a clear
emphasis by the Full
Court on the
need to
that the
had a discernable impact on
made by one
party. The
focus seems to be on
that there has
been a
significant adverse
impact on a party's
contributions, or
that their
contributions are
significantly more
than they
ought to have
been. As I
read the Full Court's
decision, little or
room is left for
inference. The claim can
only be established by
probative evidence
satisfies the Court on
the balance of

As a comparison, in the recent Federal Magistrates Court case of Jarrett and Jarrett, McGuire FM had this to say, showing that a Kennon claim can be hard work to get up:

The wife raised a further contribution issue in that she claims to have suffered
domestic violence at the hands of the husband. He denies any physical violence.
The evidence of the wife is that the husband was for a period a heavy
drinker. She says he would become violent and that he yelled at and hit her and
the children. On an occasion she was pushed out the front door and into the
street with the oldest child. There was police involvement. The wife moved to a
women’s refuge for a couple of weeks. She obtained an intervention order against
the husband.
It is clear that following the decision of the Full Court of
the Family Court of Australia in Kennon v Kennon[7] domestic violence can be a relevant contribution
However, it is also clear that it is incumbent upon a party
relying on such an issue to show more than violence per se. The onus is to
demonstrate the violent conduct:
...to have had a significant adverse impact
upon that party’s contributions to the marriage, or, put the other way, to have
made his or her contributions significantly more arduous than they ought to have
The courts have emphasised the exceptional nature of the
principle. The onus is to prove a connection between violence and contribution.
In my view, in this case the wife has not discharged that onus. Her evidence
is only as to the fact of the alleged violence rather than any impact on her

Tuesday, 10 March 2009

FMC case: slip rule

In a short judgment, Federal Magistrate Burnett in Wakehurst and Molvig summarised the slip rule, when the order as issued does not reflect the court's reasons:

The Court has an inherent power to amend an order in such a manner as to give
rise to the Court’s intentions even where the order has been entered. This power
arises even if the Court thought the order did reflect its intention; Gikas v
Papanayiotou (1977) 2 NSWLR 944; Hatton v Harris [1892]
AC 547.

Monday, 9 March 2009

Family Court: Notification about Applications for Consent Orders

The Family Court has issued a notification about applications for consent orders following the de facto changes:

Application for Consent Orders

A revised Application for Consent Orders form addressing the new de facto regime has been finalised. The main change to the form is that a new Part G has been inserted addressing de facto financial causes. Other consequential amendments have been made elsewhere in the document including renumbering the document from that part forward. The form will be available on the Family Court website at http://www.familycourt.gov.au/ and printed consent order kits will be available in all registries shortly.

Parties who are in the process of finalising their arrangements for draft consent orders may have done so utilising the previous Application for Consent Orders form and in order to allow parties who have almost concluded their negotiations to utilise the previous form, parties may lodge the Application for Consent Orders form in the version which was in force on 28 February 2009 until 31 May 2009.

If parties are seeking orders in a de facto financial cause and use the version which was in force on 28 February 2009, further information will be required to satisfy the Court as to jurisdiction. For your convenience, a template affidavit addressing the matters in the new Part G and other relevant sections (eg the amended questions at Items 17 and 22) will be available on the website.
Angela Filippello
Principal Registrar
Family Court of Australia
27 February 2009

Sunday, 8 March 2009

Today is International Women's Day: Amnesty Campaigns

Today is International Women's Day.

Amnesty International has issued this (edited) release:

Violence against women is the most widespread human rights abuse in the world. But the plight of women and girls is not just a distant problem in other nations - it’s right here on our doorstep.

In Australia one woman every week is killed by their partner.[National Homicide Monitoring Programme Annual Report 2003-2004, Australian Institute of Criminology ]

In the same period 2,415 women will experience sexual abuse. [Personal Safety Survey Australia 2005, Australian Bureau of Statistics]

Alarmingly almost two in every three women in this country experience physical or sexual violence during their lifetime. [Mouzos, J and Makkai, T (2004) Women’s Experiences of Male Violence, Australian Institute of Criminology]

These aren't throwaway statistics - they uncover a national problem that needs a national solution.Please act now to ensure that the Government adequately funds a national plan to address violence against women.

Last year we presented to the Government our petition with over 30,000 signatures calling for the development of a national strategy to address violence against women. But while the Government agreed to produce a national plan, the draft plan is now behind schedule and is in danger of missing out on the funding it so desperately deserves.Domestic violence alone costs Australia $8.1 billion a year through increasing demands on medical services, social services, the criminal justice system, housing, policing and emergency response. What’s more, our federal spending on violence against women is woefully behind European standards. Investing now will not only save money, but give women and girls in our communities the safety and support they are entitled to.Make sure Australia leads the world in good practice by committing more money to stop violence against women in the May budget.

On Sunday - International Women’s Day - people around the world will be celebrating the contribution of women. But while we take time to celebrate, please take action now on behalf of Australian women and children. If you have done so already, forward this email to at least two friends asking them to do the same. On Tuesday we will be taking your messages to Parliament House in Canberra to make sure your voice is heard.Thank you, together we are making an impact.
Claire Mallinson
National Director
Amnesty International Australia

Saturday, 7 March 2009

Attorney Comments at Family Court Annual Judges' Meeting

Here is the media release by Commonwealth Attorney-General Robert McClelland released Friday from the Family Court's annual judges meeting in Melbourne:

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

· Chief Justice Diana Bryant [introducing you]
· Members of the judiciary
· Distinguished and international guests

Good morning.

It is a great pleasure to be here today, and thank you, Chief Justice for inviting me to speak at your conference. I am also very pleased to be here today to launch the Court’s new family violence best practice principles.

These principles provide a practical checklist of matters for judicial officers to consider when hearing and determining disputes involving allegations of violence. I hope they will assist the Court in ensure that the welfare of children and victims of abuse are at the forefront of all decisions made.

More than 2,000 years ago, Roman statesman, Cicero, produced in a few simple words an inspirational observation: “the good of the people is the chief law.”

It’s an enlightened statement that should continue as a guide in the 21st century – for those working in the law, and for those using it.

We must always stay focussed on the wellbeing of the people we serve and those affected by the law we administer. That is why the family violence best principles are so important.

I want to recognise the invaluable work of all of you here and your collective commitment to assisting families in crisis.

As Attorney-General, one of my principal responsibilities is to ensure that Australia’s family justice system functions and is structured to produce the best possible outcomes for users of the system.

In that context, it is essential that the considerable public resources devoted to family dispute resolution are utilised in a way that maximises the benefits to the people affected by family breakdown.

By that I mean the system of family dispute resolution should be as fair, simple, affordable and accessible as possible, with its focus on the families that use it.
Courts cannot afford to be distracted from that focus.

Review of Delivery by Federal Courts of Family Law Services

Everyone would agree that where possible people should be empowered to reach their own decisions about their future. It is common sense that where parties can resolve their own differences the outcome is more likely to be an enduring one.

It’s my guiding principle in thinking about how family law services can be delivered and how they can achieve the best outcomes for those involved. We must ensure that all our efforts and public resources are deployed at an early stage to assist parties to resolve their own differences or – if this is not possible – narrow the issues in dispute.

I would make an additional four points here:

· processes for resolving disputes must make sense to litigants;
· they must be accessible and timely;
· they must be integrated with other family law services; and finally
· they must be capable of dealing with the full range of family law disputes which, because they delve into the labyrinth of human behaviours, can vary greatly in their complexity.

As Attorney-General these are my five imperatives, and so I initiated a review of the delivery of family law services by the federal courts.

The Report of the Review was released in November last year, along with a Consultation Paper seeking further public comment on the Report’s recommendations.

The consultation period ended a month ago.

What the Review and consultation reveal is consensus among stakeholders that aspects of the federal family law court system are due for reform.

No change is not an option.

In particular, the Report noted that tensions between the Family Court and the Federal Magistrates Court had ‘distracted them from their core responsibilities’. While I am aware that there is now a very good level of cooperation, the inbuilt structural issues remain.

The Review and consultation show broad support for the recommendations of the Report to create a single family court with two divisions. They also show support for developing more efficient and streamlined processes, and for delineating more clearly the responsibilities of the proposed two divisions.

I thank all of you who have contributed to the reform process – it’s important to draw upon a wide range of opinions and views.

I especially want to thank the Chief Justice for her perspective and support. I value her input and leadership enormously.

And to all those associated with the Court I thank you for your patience.

A review and consultation of this nature cannot proceed without causing uncertainty, and sometimes anxiety, for judicial officers and staff alike.

But I am confident that the Review and consultation process will enable the Government and Parliament to put in place a better platform for all family law judicial officers to perform their core work.

Once Government has made a decision, I want to assure you I will be moving as quickly as I can to ensure implementation of that decision.

Access to Justice

Reforming family law services delivery by the federal courts is consistent with my desire to improve access to justice across the entire civil justice system.

But improving access to justice is not merely limited to reform of court structures.

Nor can it just be measured in efficiencies or matters of dollars and cents.

The Government is committed to building a functional, overarching framework to increase access to justice. It is imperative that public resources are not only deployed efficiently but also fairly and proportionate to need and the issues in dispute.

In January of this year I established an Access to Justice Taskforce in my Department to examine what works, what doesn’t, and why.

Most importantly, we want to ensure that the mechanisms and processes which ultimately prevail are the most optimal.

In adopting this approach, I am also determined to identify priorities for reform that will increase individuals’ capacity to understand the laws that affect them and to increase early dispute resolution.

Simplification of Court Rules

In the context of striving to guarantee the family law system is one of excellence, I also encourage the courts to explore ways of further simplifying court rules and processes to ensure just and fair outcomes for families.

I know that Chief Justice Bryant is committed to progress on this issue and I want to lend my support to that work.

The trauma of family breakdown and court proceedings should not be compounded by inflexible and overly formal procedures and rules.


Although I am interested in advancing new ideas in family dispute resolution that otherwise don’t involve the courts, I am absolutely aware that courts will always be required to resolve those cases that have proved incapable of resolution by the parties themselves or any other dispute resolution mechanism.

The importance of a strong federal system of family law adjudication is unquestionable, and as a pillar of our democracy, it is vital to the long term well-being of the Australian community.

The Government is committed to ensuring that access to justice is maximised across Australia, and to ensure that the resources directed to family law adjudication are delivered as effectively as possible.

I have no doubt that this is one of the focuses of your conference – as it is the Government’s.

I said at the start that I want Australia’s justice system to produce the best possible outcomes for users.

My hope is that the Review and consultation will lay the foundation for the Government to put in place a system which does just that – where both administrative and judicial resources are effectively deployed.

There is a need for all of us to continually refocus our efforts, not for change sake, but to ensure we are finding new and better ways to improve the experience and outcome for families engaged in the family law system.

I hope also that all those who work in the system do so, confident that their efforts are greatly valued by the Government and the community.

Thank you.

Family Violence Best Practice Principles Adopted by Family Court

The Family Court has announced that it is adopting family violence best practice principles. I have set out below the media releases from the court and from the Attorney-General below. Unfortunately, I cannot tell you what the principles are, because they weren't with the media releases nor could I find them on the Family Court website. I will post them when I find them.

The Family Court of Australia today launched the final piece of its suite of initiatives introduced to combat family violence.
The Attorney-General Robert McClelland formally introduced the Family Violence Best Practice Principles and commended them to the Family Court judiciary.
“The Australian Government recognises the critical importance of reducing violence directed towards women and children and is pleased to see the ongoing commitment of the Court to tackling this issue.
“I commend these Best Practice Principles to all members of the Family Court judiciary and am confident they will be of significant assistance to you in your decision making,” the Attorney-General said.

The Best Practice Principles are the last part of the Family Violence Strategy to be implemented and are the result of extensive work by a committee within the Court.

Chief Justice Diana Bryant said that the principles had been developed to provide decision makers with practical guidance when dealing with matters where family violence, or the risk of it, had been alleged.

“Family violence, or the threat of it, has devastating effects not only on the victims of the abuse but also on those who witness it.
“Sadly, in the Family Court many of those who experience or witness family violence and abuse or fear its presence, are the most vulnerable citizens – children,” she said.
The Best Practice Principles will be relevant to any dispute in which violence is alleged, even when forms usually filed to notify the court of concerns held about violence have been omitted.
While judges will still enjoy complete discretion, they will now also have the benefit of a checklist of matters that they may consider when deciding the next step in a case or making final orders.
“I cannot overstate how seriously Family Court judges take the issue of violence, actual or threatened.
“The legislation takes a similarly strong line – where there are reasonable grounds to believe that
• family violence or abuse has occurred or is threatened, compulsory participation in dispute resolution before filing is waived
• a parent has engaged in violence, the presumption of equal shared parental responsibility in the Act does not apply.
"I take this opportunity to thank the Attorney-General for introducing the Best Practice Principles to the judiciary this morning", Chief Justice Bryant said.


Attorney-General, Robert McClelland, today welcomed the Family Court of Australia’s new ‘Family Violence Best Practice Principles’.

The principles provide judicial officers with important guidance in dealing with family law matters which involve allegations of family violence or child abuse.

Mr McClelland, said “these principles will assist the Court in ensuring that the welfare of children and victims of abuse are at the forefront of all decisions made.”

The principles provide guidance on issues such as:
Details to be included in a Family Court judgement or reasons;
Matters to be considered when making interim and final parenting orders;
Timeframes for Family Court processes; and
Locally available support and services for victims of violence.
“The Rudd Government recognises the critical importance of reducing violence directed towards women and children and is pleased to see the ongoing commitment of the Court to tackling this issue,” Mr McClelland said.

The family law system has a critically important part to play in the prevention of family violence, particularly in respect to the welfare of children.