Sunday, 31 May 2009

High Court decides as to what is habitual place of residence under Hague Convention

High Court: Habitual place of residence

A 5 member of the High Court (French CJ, Gummow, Hayne, Heydon, Kiefel JJ) in LK v Director-General DOCS has unanimously upheld the mother's appeal from the the Full Court of the Family Court, which in turn upheld the decision of the trial judge, Kay J, for the mother to cause the children to return to Israel. The court ultimately dismissed the Central Authority's application for the children to return to Israel.

The facts

The husband and wife, married and living in Israel, separated in September 2005. The four children of the marriage continued to live with the mother in the matrimonial home. All four children had been born in Israel but were entitled to Australian citizenship by descent from their mother. In May 2006, the mother and the four children, then aged between 15 months and 8 years, travelled by air from Israel to Australia. They held return tickets to Israel for 27 August 2006.

Before the mother and the children left Israel, the father knew, and accepted, that they intended to travel to Australia. The father knew, and accepted, that the mother left Israel on the footing that she would return if she and her husband were reconciled, but would not if the husband persisted in his then stated intention to live separately from her. Both before she left Israel and immediately after arriving in Australia, the mother took steps for her and her children to establish a home in Australia. Just over two months after the mother and children had arrived in Australia, the husband told the mother that he wanted the children to return to Israel but that, as he had said previously, he wanted a divorce. Were the children then habitually resident in Israel?


The High Court held:

The Full Court should have held that the children were not
habitually resident in Israel when the father asked the mother to return them to
Israel. The appeal to the Full Court should have been allowed and the orders
made by the primary judge set aside. The appeal to this Court should therefore
be allowed and consequential orders made to the effect described.

The High Court then outlined some aspects of how the Hague Convention impacts in cases of this kind:

The Convention on the Civil Aspects of International Child Abduction ("the Abduction Convention") was signed at The Hague on 25 October 1980. The Abduction Convention entered into force for Australia on 1 January 1987 and for Israel on 1 December 1991. Section 111B(1) of the Family Law Act 1975 (Cth)[4] ("the Act") provides for regulations making "such provision as is necessary or convenient to enable the performance of the obligations of Australia, or to
obtain for Australia any advantage or benefit" under the Abduction Convention.

The Regulations (made in accordance with s 111B(1) of the Act[5]) provide (reg 1A(2)) that they
are to be construed having regard to the principles and objects mentioned in the preamble to and Art 1 of the Abduction Convention and recognising:
"that the appropriate forum for resolving disputes between parents relating to a
child's care, welfare and development is ordinarily the child's country of habitual residence".

Regulation 14 provides for the making of applications to a "court"[6] for any of several forms of order
including[7] an order for the return of a child
under the Abduction
Convention "[i]f a child is removed from a convention
country to, or
retained in, Australia". Application for an order of that kind
may be made
by "the responsible Central Authority".

Regulation 16(1) provides
that if an application is made
under reg 14(1) for an order for the
return of a child, the application is
made within one year of the child's
removal or retention, and the applicant
satisfies the court that "the
child's removal or retention was wrongful under
subregulation (1A) [of
reg 16], ... the court must, subject to
subregulation (3), make the
order" (emphasis added). In this appeal, the chief
focus of attention is
upon the third of those conditions: that the child's
removal or retention
was wrongful under reg 16(1A).

Regulation 16(1A)
subregulation (1), a child's removal to, or retention
in, Australia is
wrongful if:(a) the child was under 16; and(b) the child
habitually resided in a
convention country immediately before the child's
removal to, or retention in,
Australia; and(c) the person, institution or
other body seeking the child's
return had rights of custody in relation to
the child under the law of the
country in which the child habitually resided
immediately before the child's
removal to, or retention in, Australia;
and(d) the child's removal to, or
retention in, Australia is in breach of
those rights of custody; and(e) at the
time of the child's removal or
retention, the person, institution or other
body:(i) was actually exercising
the rights of custody (either jointly or
alone); or(ii) would have exercised
those rights if the child had not been
removed or retained."

It will
be observed that the requirements of each of the five
paragraphs of
reg 16(1A) must be satisfied if it is to be shown that a
removal to, or retention in, Australia is wrongful. The first two
requirements look to the age of the child (par (a)) and to whether the
child habitually resided in a convention country immediately before the
removal to, or retention in, Australia (par (b)). The remaining
requirements hinge about the notion of "rights of custody in relation to the
child". The rights that are to be considered are rights "under the law of
country in which the child habitually resided immediately before the
removal to, or retention in, Australia".

Although, as
indicated at the start of these reasons, it is the
application of the second
requirement of reg 16(1A) (habitual residence)
that is dispositive, it
is as well to say something more about the requirements
which refer to
"rights of custody". The provisions of reg 16(1A) about
"rights of
custody" are to be understood by reference to the terms of
reg 4:
"(1) For the purposes of these regulations, a person, an
institution or another body has rights of custody in relation to a child,
the child was habitually resident in Australia or in a convention
immediately before his or her removal or retention; and(b) rights of
custody in
relation to the child are attributed to the person, institution
or other body,
either jointly or alone, under a law in force in the
convention country in which
the child habitually resided immediately before
his or her removal or
retention.(2) For the purposes of
subregulation (1), rights of custody
include rights relating to the
care of the person of the child and, in
particular, the right to determine
the place of residence of the child.(3) For
the purposes of this regulation,
rights of custody may arise:(a) by operation of
law; or(b) by reason of a
judicial or administrative decision; or(c) by reason
of an agreement having
legal effect under a law in force in Australia or a

Argument of the present matter in the courts below proceeded
without the parties directing close attention to questions of breach of
of custody. There was some evidence before the primary judge about
statute law governing guardianship and custody of minor children.
The general
tenor of the statute – the Capacity and Guardianship Law 1962 –
is that parents
have joint custody of their minor children. Argument
proceeded, at least in this
Court, upon the assumption that, if Israeli law
were to be applied, the
retention of the children by one joint guardian (the
mother) against the
expressed wish of the other joint guardian (the father)
would be in breach of
the rights of custody of the

Approaching the matter in that way makes some assumptions about
the content of Israeli law which it is neither necessary nor appropriate to
examine further. They need not be examined because questions of breach of
of custody given by Israeli law would arise only if the children
resided in Israel immediately before their removal to, or
retention in,
Australia. It is important to add, nonetheless, that if the
parties were right
to give Israeli law the operation that was assumed, their
approach to the
present matter properly reflected what was said by the
plurality in DP v
Commonwealth Central Authority[8]:

"Nothing in the definitions of 'removal' and
'retention' or of
'rights of custody' requires that, before removal or
retention, there shall have
been any judicial decision about rights of
custody and nothing in those
definitions requires that at some later time
there be any application to a court
to determine who shall have future
rights of custody in relation to the child.
All that the definitions require
is that by the law of the place of habitual
residence immediately before
removal or retention, the child's removal to
Australia or the child's
retention in Australia is in breach of the rights of
custody of some person,
institution or body. Often enough, that will be so
where, by operation of
the law of the place of habitual residence, both parents
have joint rights
of custody of children of their union. Sometimes, before any
application to
the courts in Australia, the parent who has not removed or
retained the
child will have approached the courts of the place of habitual
residence for
interim or permanent orders about custody of the child but that
will not
always be so."

Habitual residence

In the
particular circumstances of this case it will not be
necessary to decide
what date should have been fixed as the date of retention.
That will not be
necessary because even if that date was as early as July 2006,
it should
have been found that at that time the children were not habitually
in Israel.

It is convenient to notice two points about the proceedings in
the courts below. First, the initiating process filed by the
Director-General in
the Family Court did not distinctly identify whether it
was alleged that this
was a case of wrongful removal of the children or
wrongful retention. And in so
far as it was alleged that there was a
wrongful retention, neither the
initiating process nor the supporting
material identified when the retention was
alleged to begin. Of course, it
was open to the Director-General to seek to make
alternative cases and there
may well be circumstances (of which this may have
been one) in which that is
at least desirable, even inevitable. It is ordinarily
to be expected,
however, that the case (or cases) which an applicant seeks to
make will be
distinctly identified.

The second point to make about the procedures
followed at first
instance concerns the resolution of disputed questions of
fact. Three members of
this Court pointed out in MW v Director-General,
Department of Community
Services[13] that the requirements of the
Regulations[14] that applications by a Central
Authority for an order
for the return of a child are dealt with expeditiously
does not yield any
general, let alone inflexible, rule prohibiting
cross-examination of
deponents of affidavits filed in support of or opposition
to the
application. As the plurality reasons said[15], "prompt decision making ... is one
thing, and a
peremptory decision upon a patently imperfect record would be

These reasons will demonstrate that the Full
Court erred in
treating the absence of a "settled purpose" of abandoning
habitual residence in
Israel as determining the issue in this case about the
habitual residence of the
children. To do that it will be necessary to begin
by saying something about the
term "habitual residence" as it is used in the
Abduction Convention and in other
instruments, then to examine some of the
difficulties and ambiguities which can
arise in a search for a settled
purpose or intention about a place of residence
or its abandonment, and
lastly deal with the proposition that New Zealand cases
considering the
Abduction Convention take a different path from that taken in
Australia or
in the United Kingdom....

The expression "habitual residence",
and its cognate forms,
have long been used in international conventions,
particularly conventions
associated with the work of the Hague Conference on
Private International
Law[25]. Although the concept of habitual
residence was used in
a Hague Convention (on civil procedure) as long ago as
1896[26], and has since been frequently used
in other Hague
Conventions[27], none of those instruments has
sought to define the
term. Rather, as one author[28] has put it, the expression has
"repeatedly been
presented as a notion of fact rather than law, as something to
which no
technical legal definition is attached so that judges from any legal
can address themselves directly to the facts". Thus the Explanatory
commenting on the Abduction Convention said[29] that "the notion of habitual
residence [is] a
well-established concept in the Hague Conference, which regards
it as a
question of pure fact, differing in that respect from domicile"

To approach the term only from a standpoint which describes it
as presenting a question of fact has evident limitations[30]. The identification of what is or
may be relevant to the
inquiry is not to be masked by stopping at the point of
describing the
inquiry as one of fact. If the term "habitual residence" is to be
meaning, some criteria must be engaged at some point in the inquiry and
are to be found in the ordinary meaning of the composite expression. The
search must be for where a person resides and whether residence at that
can be described as habitual.

Having regard, however, to the
stated determination to eschew
definition of the expression in its use in
the Abduction Convention, and other
instruments derived from the work of the
Hague Conference, it would be wrong to
attempt in these reasons to devise
some further definition of the term intended
to be capable of universal
application. Rather, it is sufficient for present
purposes to make two
points. First, application of the expression "habitual
residence" permits
consideration of a wide variety of circumstances that bear
upon where a
person is said to reside and whether that residence is to be
described as
habitual. Secondly, the past and present intentions of the person
consideration will often bear upon the significance that is to be attached
to particular circumstances like the duration of a person's connections with
particular place of residence.

Use of the term "habitual residence"
to identify the required
connection between a person and a particular
municipal system of law amounts to
a rejection of other possible connecting
factors such as domicile or
nationality. In particular, it may be accepted
that "habitual residence" has
been used in the Abduction Convention (as it
has been used in other instruments)
"[t]o avoid the distasteful problems of
the English concept [of domicile] and
the uncertainties of meaning and proof
of subjective intent"[31]. It was said[32] in the nineteenth century that the
notion that lies at
the root of the English concept of domicile is that of
permanent home[33]. But it was soon
recognised[34] that domicile, in English law, is
"an idea of law".
Thus, in considering acquisition of a domicile of choice,
questions of
intention loomed large, and the relevant intention had to have a
temporal quality (an intention to reside permanently or at least
indefinitely). Use of "habitual residence" in the Abduction Convention
than domicile as the relevant connecting factor entails discarding
notions like
the revival of domicile of origin and the dependent domicile of
a married woman
which marked the English law of domicile[35]. More importantly for present
purposes, use of "habitual
residence" in preference to domicile entails
discarding the approach of the
English law of domicile which gave questions of
intention a decisive
importance in determining whether a new domicile of choice
had been
It may well be said of the term "habitual residence", as
it was
of the expression "domicile"[36], that "if you do not understand
your permanent home ...
no illustration drawn from foreign writers or foreign
languages will very
much help you to it". Yet it may be accepted that
"[h]abitual residence,
consistent with the purpose of its use, identifies the
center of a person's
personal and family life as disclosed by the facts of the
activities"[37]. Accordingly, it is unlikely,
although it is not
necessary to exclude the possibility, that a person will be
found to be
habitually resident in more than one place at the one time. But even
place of habitual residence is necessarily singular, that does not entail
that a person must always be so connected with one place that it is to be
identified as that person's place of habitual residence. So, for example, a
person may abandon a place as the place of that person's habitual residence
without at once becoming habitually resident in some other place; a person
lead such a nomadic life as not to have a place of habitual

In deciding where a child was habitually resident at an
identified time it is, no doubt, important to consider the context in which
inquiry is required. Here, the chief contextual consideration is that,
accordance with the Abduction Convention, the purpose of the
Regulations[38] is to facilitate resolution of
disputes between parents
relating to a child's care, welfare and development in
one forum – the
child's country of habitual residence – rather than any other
forum. While
that may tend in favour of finding that a child does have a place
habitual residence, neither the Regulations nor the Abduction Convention
provides for a particular vindication or enforcement of rights in relation
the child. Vindication and enforcement of rights is to be a matter for
the forum
to which the Regulations and the Abduction Convention point: that
of the child's
habitual residence.

When speaking of the habitual
residence of a child it will
usually be very important to examine where the
person or persons who are caring
for the child live – where those persons
have their habitual residence. The
younger the child, the less sensible it
is to speak of the place of habitual
residence of the child as distinct from
the place of habitual residence of the
person or persons upon whom the child
is immediately dependent for care and
housing. But if, as the writings about
the Abduction Convention and like
instruments repeatedly urge, the question
of habitual residence of a child is
one of fact, it is important not to
elevate the observation that a child looks
to others for care and housing to
some principle of law like the (former) law of
dependent domicile of a
married woman.

Purpose and intention
Although intention is a
necessary element
in deciding domicile of choice, and "habitual residence"
is chosen as a
connecting factor in preference to domicile, examination of a
intentions will usually be relevant to a consideration of where
that person
habitually resides. Sometimes, intention will be very important
in answering
that question. The example of a person who leaves a
jurisdiction intending not
to return is one such case. But unlike domicile,
considerations relevant to
deciding where a person is habitually resident
are not necessarily confined to
physical presence and intention, and
intention is not to be given controlling
First, individuals do
not always act with a clearly formed and
singular view of what it is
intended (or hoped) that the future will hold. Their
intentions may be
ambiguous. The facts of this case provide one example of such
The mother left Israel on the understanding that if the marriage
reconciled she would return, but if it was not, she would not return. In
those circumstances, it is not possible to say that the mother then had a
settled intention which was sufficiently described either as being an
to reside permanently in Israel or an intention to reside
permanently in
Australia. Neither description would acknowledge the
significance attached to
the possibility of reconciliation.
Both before
and after she left Israel she
set about establishing important connections
with Australia consistent with her
and her children establishing the centre
of their lives here rather than in
Israel. In particular, before she left
Israel, she registered the children as
Australian citizens and procured
enrolment of the two older children at an
Australian private school. In
Australia she soon sought and obtained Centrelink
benefits, the two older
children started school and the next oldest was enrolled
at preschool, the
older children joined a soccer club and took music lessons.
Later, with the
assistance of her parents and the local Jewish community, she
rented and
furnished a home for her to live with the children.
All of these
(except the last) were taken before the father asked, in July 2006, for
children to be returned to Israel. All of the steps identified are
consistent with, indeed support, the view that by registering the children
Australian citizens and enrolling the older ones in school before she
Israel, the mother was then set upon a course from which she did not
deviate: to move to Australia unless the father decided (contrary
to the then
state of affairs between them) to live with her and the
Because the
possibility of reconciliation and return was not
excluded when the mother left
Israel, it may be said that her intentions,
when she left, were to that extent
ambiguous. Even accepting that to be so,
because the notion of habitual
residence does not require that it be
possible to say of a person at any and
every time that he or she has a place
of habitual residence, it is important to
recognise that a person may cease
to reside habitually in one place without
acquiring a new place of habitual
Secondly, because a person's
intentions may be ambiguous, in
asking whether a person has abandoned residence
in a place it is necessary
to recognise the possibility that the person may not
have formed a singular
and irrevocable intention not to return, yet properly be
described as no
longer habitually resident in that place. Absence of a final
positively rejecting the possibility of returning to Israel in the
foreseeable future is not necessarily inconsistent with ceasing to reside
Thirdly, when considering where a child is habitually
attention cannot be confined to the intentions of the parent who
in fact has the
day-to-day care of the child. It will usually be necessary
to consider what each
parent intends for the child. When parents are living
together, young children
will have the same habitual residence as their
parents. No less importantly, it
may be accepted that the general rule is
that neither parent can unilaterally
change that place of habitual
residence. The assent of the other parent (or a
court order) would be
necessary. But again, if it becomes necessary to examine
the intentions of
the parents, the possibility of ambiguity or uncertainty on
the part of one
or both of them must be acknowledged.
It follows from each of
the three
considerations just mentioned that to seek to identify a set list of
criteria that bear upon where a child is habitually resident, or to attempt
organise the list of possible matters that might bear upon the question
according to some predetermined hierarchy of importance, would deny the
observation that the question of habitual residence will fall for
decision in a
very wide range of circumstances. And examination of decided
cases in the area
does not require the identification of a closed set of
criteria, or the
attribution of predetermined weighting between

A division of authority?
International treaties should be
interpreted uniformly by contracting states[39]. Although the questions in this
matter turn immediately
upon the proper construction and application of the Regulations,
the Regulations provide[40] that, unless the contrary intention
appears, an
expression used in the Regulations and in the Abduction Convention
has the
same meaning in the Regulations as in the Abduction Convention. It
that, unless it is shown that the term is used in the statute law of
contracting states in a sense different from the way in which it is used
the Abduction Convention, care is to be exercised to avoid giving the term a
meaning in Australia that differs from the way it is construed in the courts
other contracting states. But it is no less important to recognise that,
the term is not defined in the Abduction Convention, and the absence
definition reflects the stated intention that it should be treated "as a
question of pure fact", conclusions reached in the courts of other
are not lightly to be treated as establishing principles of
law which govern the
term's meaning and application. Rather, they are to be
read and understood as
resolving the particular controversy tendered for

The present case
When the mother left Israel with the
she was not shown to have the concluded intention that, come what
may, she and
the children would settle in Australia. The father did not
agree to the children
leaving Israel on any basis other than that expressed
by the mother: that if the
marriage was reconciled she would return, if it
was not she would not. It
follows that, when the children left Israel, the
intentions of their parents
could not be completely and accurately stated as
being that the children would
thereafter live in Australia. In that limited
sense, it could not be said that
the parents intended to "abandon" Israel as
the place where their children
habitually resided. But that statement could
not be made because the parents'
intentions were more complicated than the
bald proposition of abandonment
acknowledges. The more accurate statement of
the parents' intentions, when the
mother and children left Israel, was that
mother and children were going to make
their home in Australia unless the
father chose to alter his then stated
determination to live separately from
the mother.
The absence of an agreed
and singular purpose or intention at
the time of departure from Israel (which
could be completely described by
reference only to residence in Australia or in
Israel) was not to be treated
as deciding the question of habitual residence.
First, the question in this
case was not to be asked in relation to the time of
the children's departure
from Israel; it was to be asked in relation to the time
of their allegedly
wrongful retention. And as earlier indicated, that time may
be assumed to be
when the father first asked in July 2006 for their return to
Israel. But
secondly, and more importantly, the intentions of the parents are
not the
only factors which bear upon whether in July 2006 the children were
habitually resident in Israel.
Where, as here, the parents' intentions at
time of departure from Israel were expressed conditionally (to live in
unless ...) and the mother took the steps she did, both before and
after arrival
in Australia, to establish a new and permanent home for the
children in
Australia, it should have been found that the children were not
resident in Israel in July 2006. The possibility that they might
again take up
habitual residence in Israel (if their parents were
reconciled) does not deny
that they had ceased to be habitually resident
there. Whether they were
habitually resident in Australia when the father
asked for their return need not
be decided. What is decisive is that the
children left Israel with both parents
agreed that unless there were a
reconciliation they would stay in Australia, and
their mother, both before
and after departure, set about effecting that shared
Man who fathered 21 kids by 12 women and has problems with child support may go to jail: Smoking Gun

Relocation: child not to go to Sydney, but stay in North West Queensland

In the recent Full Court of the Family Court case of Rosa and Rosa, the court dismissed an appeal by the mother from a Federal Magistrate's decision that left her living in North West Queensland, rather than her preferred option of Sydney or gave her the option of the child being in North West Queensland with the father, with the mother being able to move to Sydney. At the time of the trial, the mother was living in a caravan.

At the time of the trial, the mother was aged 34 years and the father 35 years. They had commenced a relationship in 1991 and were married in 2000. In 2002, their daughter was born.
In early 2007, the parties moved from Sydney to North West Queensland on account of the father’s employment. In mid-August 2007 the parties separated, and at some point after that, the mother went back to Sydney with the child.
The father then commenced parenting proceedings in the Federal Magistrates Court and interim orders were made which provided for the return of the child to North West Queensland.
At the time of the trial both the mother and father were living in North West Queensland, with the child living with each parent on a week about basis.

The father sought that the parents have equal shared parental responsibility and that the child continue living with each parent on a week about basis. The mother also sought that the parents have equal shared parental responsibility, at least for “long term issues relating to the child”.
The mother’s primary proposal was that she be allowed to live with the child in Sydney, with the child to spend time with the father for specified periods during the year in either Brisbane or North West Queensland.
The mother’s second proposal was that she would remain in North West Queensland and the child would live primarily with her, but that the child spend time with the father on alternate weekends, one night after school every fortnight and half of school holidays.
The mother’s third proposal was that both she and the father would live in Sydney, with the child living primarily with the mother. Under this proposal, the child would spend time with the father on alternate weekends, one night after school every fortnight and half of school holidays.

His Honour’s orders provided for the child to remain in North West Queensland living week about with each parent, but that in the event the mother was not living in North West Queensland – then the child was to remain living there with the father (and spend agreed or “facilitated” time with the mother).

The first ground of appeal asserts that his Honour erred in failing to consider an arrangement whereby the parties could both live in or close to Sydney. This failure was said by counsel for the mother to be the basis of the appeal.
In an apparently similar vein, the second ground of appeal asserts that his Honour failed to give any adequate reasons why the father’s preferred choice of residential location was superior to that of the mother’s choice of residential location.
Further grounds assert that his Honour erred by failing to give any adequate weight to:
the financial status of the mother living in North West Queensland (Ground 3);
the emotional and physical isolation of the mother living in North West Queensland – or indeed any consideration to that matter (Grounds 4 and 5);
the mother’s concern about the possibility of the existence of lead poisoning in the North West Queensland area (Ground 7), with it also being asserted that it was not open to his Honour to make a finding that the mother’s stated concern about the possibility of the existence of lead poisoning in the North West Queensland area was not a genuinely felt concern (Ground 8).
Further grounds then assert that his Honour erred in:
making orders which had the effect of placing an imposition on the mother’s freedom of movement (Ground 6);
placing excess weight on his findings that members of the mother’s family held a negative attitude towards the father (Ground 9), with it also being asserted that it was not open to his Honour to make a finding that such a negative attitude would result in an almost automatic deterioration upon the child’s relationship with the father (Ground 10);
that he failed to adequately address the practical expenses of the child spending time and communicating with the father if he remained in North West Queensland and she lived with the mother in Sydney (Ground 11);
failing to give any adequate reasons to support the conclusion that the mother wholly lacked any real appreciation of the enormous financial drain that would be put upon her as well as the father in relation to the practical expenses of the child spending time and communicating with the father if he remained in North West Queensland, and she lived with her mother in Sydney (Ground 12).
Finally, there was a group of grounds (Grounds 13 to 21), which were described by counsel for the appellant mother as all relating to his Honour’s determination that the child should live on an equal time basis with each parent. These grounds asserted that his Honour failed to:
have regard to and articulate the matters specifically referred to in s 65DAA(5) of the Family Law Act 1975 (Cth) (“the Act”) (Ground 13);
give adequate reasons as to why an “equal time ‘live with’ arrangement” was practical (Ground 14);
take into account, or give adequate reasons, relating to the extent of the parties’ capacity to communicate (Grounds 15 and 16);
take into account the father’s lack of respect for the mother’s capacity to parent (Ground 17);
take into account, or give adequate reasons, in relation to the parties’ different approaches to parenting and in particular issues of education (Grounds 18 and 19);
take into account, or give adequate reasons, relating to the historical care arrangements, and in particular that the mother had been the child’s primary caregiver prior to separation (Grounds 20 and 21).

The Full Court noted that the trial judge both recognised that the father was not prepared to move to the Sydney area even if the child was living there, but also appeared to recognise that the father may have had some justification for his “somewhat dogmatic” response to any suggestion that he move from North West Queensland:
He was very determined, for example, to continue his employment in [North West
Queensland] to the extent of indicating even that if the child were to be living
with the mother in Sydney, that he would not consider alternative opportunities
for work in the same field that he was working in as at this time. The father
may have seemed somewhat dogmatic but I also gained the impression that there
was an overriding wish to further his career, not necessarily simply for his own
aggrandisement but also to ensure that he was able to provide for his family and
to ensure that, in particular, [the child’s] needs were met and properly
provided for. I was generally impressed with the father in relation to these

The Full Court stated:

Against this background, there would have been no point in his Honour’s
giving any consideration to a proposal whereby both parties would live in the
Sydney area. Decisions concerning the parenting arrangements for children are
hard enough (particularly under the current legislation) without requiring the
court to consider scenarios which one or both parties have expressly rejected.
The reasonableness of such a rejection may of course be relevant to the ultimate
parenting decision to be made. But his Honour was clearly satisfied of the
reasonableness of the father’s position in this case. Accordingly, the mother’s
first ground of appeal has no substance.
The mother’s second ground of
appeal asserts that his Honour erred in not providing reasons, or adequate
reasons, as to why the father’s preferred choice of residential location was
superior to the mother’s choice. According to the written submissions of the
mother’s counsel, this second ground of appeal is similar to the first, in that
this was a case in which the choice was between either the child living in North
West Queensland, where she had only resided for just over a year, or living in
Sydney, where she had lived for almost her first five years. It was also a case,
it was submitted, in which the family consultant had recommended proximity to
both parents with the actual location not being relevant (at least from the
consultant’s point of view).
If this second ground is directed to the
situation in which the choice between Sydney and North West Queensland was to be
made on the basis that both parents could, or would, live in either place, then
it is misconceived. This is because, as already explained in connection with
Ground One, the father was not prepared to leave North West Queensland for
Sydney, even if the child was in Sydney. Any suggestion of a need for a
comparison between the two places on the basis that both parents could be in
either place is therefore misconceived.
If this ground is concerned with a
choice between the child living on the one hand with one or both parents in
North West Queensland, or on the other hand with the mother only in Sydney,
considerations other than a comparison between the two places were of much
greater significance – notable considerations being the need to maintain the
child’s relationship with her father and the mother’s capacity to foster that

In support of this ground, counsel for the mother referred us to the
affidavit evidence of the mother concerning the grave financial situation which
she faced in North West Queensland (including her caravan-type accommodation,
which the father acknowledged was unsuitable for the child), and to the evidence
concerning her better employment prospects in Sydney.
It is true, as was
submitted by counsel for the mother, that his Honour’s only reference to this
important evidence from the mother was made at the very end of his reasons for
judgment, where in paragraph 118 and in the context of the “catchall” provision
of s 60CC(3)(m), his Honour referred in general terms only to there being “...
in [North West Queensland] ... of course ... also financial concerns and
considerations that arise”.
His Honour then went on in paragraph 119 and 120
to suggest – perhaps somewhat optimistically, it might be said – that once the
proceedings were concluded, the mother could “address both ... emotional and
financial issues”, and also to suggest that the father might provide additional
support to her.
While the mother’s evidence regarding her financial
circumstances in North West Queensland is concerning, and would ideally have
warranted some greater elaboration in his Honour’s reasons, it has to be
remembered that the challenge in this ground is one of weight only. Thus, given
the very great concerns expressed by his Honour about separating the child from
her father in light of his findings as to the attitude of the mother and her
family to the relationship between the father and the child, it must be
acknowledged that it is unlikely any greater weight which might have been given
to the mother’s financial predicament in North West Queensland, could ever have
outweighed his Honour’s concerns that the child should stay in close proximity
to her father.
Again it is important to remember in this particular context,
that his Honour was prepared to make an order (Order 8) that in the event that
the mother was not living in North West Queensland, the child would live with
her father. We are thus not persuaded that our interference with his Honour’s
decision would be justified on the basis of the apparently limited weight which
he gave to the mother’s financial situation in North West Queensland.

The Australian's commentary

Caroline Overington in an article in The Australian comments:

Wives who follow their husbands to remote corners of Australia in search of work
may find themselves stuck in their new home town, unable to leave with the

Ms Overington cited researcher Elspeth McInnes who asserted that women's rights to movement had been lost under the Family Law Act following the 2006 amendments.
Australia's only transgendered clinic is temporarily shut down amidst claims that patients were wrongly diagnosed/operated

New judge to be appointed to Newcastle

The CEO of the Family Court, Richard Foster, has told the Senate estimates committee that a report has been made to the Attorney-General, Robert McClelland by the committee considering applications and nominations for the Family Court judge's postion in Newcastle.

The committee comprised the Chief Justice of the Family Court, Diana Bryant, Mr Foster, former High Court justice Ian Callinan, and former Family Court justice Richard Chisholm.

Danger of property mediation and agreements without legal advice: part 1

A recent Queensland case is a telling warning for those undertaking property mediations where they have not had legal advice, and to ensure that when signing agreements with your de facto partner to get legal advice first.

In the case, SPD v DRH, the de facto wife, DRH controlled SPD and did whatever she could to ensure that he was paid zip, or at best a nominal amount.

She did this by a number of ways:
  • overstated her initial contributions-which would also have the effect of lowering his contributions
  • claimed, falsely, that the relationship had ended earlier than it had, so as to justify her taking $50,000 after that earlier date from their monies without telling him
  • of course removed that $50,000, so that he could not have access to it
  • made out to him that to keep the relationship going, he needed to transfer his half interest in the home to her (which he did), but at trial claimed that this merely reflected their agreement about the division of the property settlement
  • got him to sign an agreement then to say that the house was hers. He did not have legal advice at the time.
  • got him to sign a deed shortly after they got together to say that she would get 90% of the property- the deed being based on a false premise- the amount of her initial contributions
  • but worst of all, took him to Relationships Australia for a mediation, and got him signed up at the mediation. Again, he did not have any legal advice. This agreement excluded virtually all of their property, including the house, and was based on a 72.5/27.5 division, to give him $5000 within 24 hours!

But that's not all, the de facto wife also:

  • kept control of the house, after they separated; and
  • when she thought it a bit rich that he was asking for property settlement, complained to Channel 7, complaining about how he had breached their agreement and was now taking her to court.

The result? The trial judge did not believe the de facto wife, held the agreements were not binding, and ordered that the de facto wife pay the de facto husband $260,000 within 60 days, failing which the home would have to be sold.

Saturday, 30 May 2009

Consultant to Family Court's report due this week about family consultants and registrars
Looks like full steam ahead for New Hampshire same sex marriage laws

Federal Magistrates in Brisbane to juggle their accommodation: CEO

The acting CEO of the Federal Magistrates Court has told the Senate estimates committee hearing that there have been difficulties accommodating the 11 Brisbane based Federal Magistrates.

Mr Foster advised the committee that a report has just been delivered to the Federal Court, the Federal Magistrates Court and the AAT about how to juggle space in the Brisbane courts building:

It refers to how best we can utilise the space in the Brisbane Commonwealth Law
Courts building. It is primarily around the fact that the federal magistrates in that building on level five have inadequate accommodation. It is an attempt to look at moving function around the building—I am talking about ‘judicial function’—to try to place the Federal Magistrates Court on one floor of the building.
What rules will apply in the post-merged Federal Magistrates Court?
Opposition may not support cutting up of Federal Magistrates Court: Sen. Brandis

Number of applications to Family Court has plateaued: CEO

The decline in the numbers of applications to the Family and Federal Magistrates Courts appears to have plateaued, according to the CEO of the Family Court and acting CEO of the Federal Magistrates Court, Richard Foster.

Mr Foster told the Senate estimates hearing this week:
  • As at the end of March this year, in the Federal Magistrates Court there have been 11,550 and in the Family Court there have been 2,850 applications filed for final orders, or at a rate of 80/20.
  • Projections for the financial year make it 3,800 applications for final orders.
  • Since the introduction of Family Relationships Centres, there was a drop in the number of applications filed.
  • In 1998-99 there were 21,931 applications filed in the Family Court. Since then, coming to 2008-09, projections are that there will be 17,800 for both courts, which is a
    reduction in family law filings for final orders in the order of 19 per cent over that period of time.
  • It looks as if it might have plateaued in the last couple of years, the numbers being slightly up on last year's were 17,306.
  • On average it takes 13.5 months from filing to the first date of trial.

What rules will apply in the post-merged Federal Magistrates Court?

An issue of great concern to the profession is whether the procedures of the Family Court will be imposed on the Federal Magistrates Court if a merger happens.

This is a matter that no one has provided an answer to the profession about. While it seems an obscure point, many in the profession are of the view that the procedures in the Federal Magistrates Court are often more service focused, and lead to quicker and cheaper results for clients than the procedures in the Family Court, which are often geared to more complex matters.

This was another matter to arise in the Senate estimates committee hearing, again between the Opposition Shadow Attorney-General, Senator George Brandis, and the CEO of the Family Court and acting CEO of the Federala Magistrates Court, Richard Foster.

Here are the edited exchanges:

Senator BRANDIS-
And one must respect the views of the people most immediately affected by these courts, in particular family law litigants who are very strongly of the view that the Federal Magistrates Court ought to be left alone because it does a good job. Mr Foster, I am sure you are aware that one of the several issues in controversy between these courts, were parliament to consent to this integration of proceeding, is the question of whether those federal magistrates who might join the Family Court would have a rule-making power and whether they would be able to promulgate their own rules of court. You are aware that that is an issue of some concern. It is one of the issues raised at the meeting of 12 May with Mr Govey. What is your view on that matter? I suppose that is not fair of me. Let me withdraw that question. You should not have a view. What is your view on that matter speaking on behalf of the Family Court? Then you can tell us your view of that matter speaking on behalf of the Federal Magistrates Court. If the two views are inconsistent then that is hardly your fault.
Mr Foster—Prior to that meeting to which you refer that Mr Govey attended with acting Chief Federal Magistrate Baumann and a number of other federal magistrates, the Chief Justice wrote to the Chief Federal Magistrate expressing in fairly clear terms that it was not and is not her intention, if the structure went through, to change the practices and procedures that exist within the Federal Magistrates Court. In other words, the prevailing culture, the method of doing business, would remain. I believe that her view is that it would make a lot of sense to have a common set of rules primarily based on the Federal Magistrates Court’s rules because of their user-friendly focus—if I can express it in those terms—but with special provision if there was a first division for the justices for the most complex matters that they are dealing with so that it was not one cap fits all. Certainly, the letter clearly expresses the view that there is no desire, willingness or intention on behalf of the Chief Justice of the Family Court to interfere in the operations of a second division if that were to come to be.
Senator BRANDIS—In the course of that answer, did I mishear you or did you say that the Chief Justice of the Family Court thought there should be a single set of rules?
Mr Foster—I think she believes that there should be a set of modified rules which would largely replicate what happens in the Federal Magistrates Court. Then there would need to be special provisions for the first tier for the justices of the court recognising that they are doing the most complex and difficult work and that the way they do that work is necessarily different from what would happen in the principal trial division.
Senator BRANDIS—Cutting to the chase, the Chief Justice wants a single set of rules for both tiers.
Mr Foster—With those exceptions. I am talking about a single set of rules for implementing an action for the processes that are of a more routine nature. The answer is that her view—if I am expressing it properly on her behalf—is that that would be a good thing.
Senator BRANDIS—Do you know, Mr Foster, that the Family Court rules are longer and more
complicated than either the High Court rules or the Federal Court rules? In fact, they are the longest, most complicated, least easily navigable set of rules of any federal court. Mr Foster—I think the Chief Justice, again speaking on her behalf I hope accurately, would recognise that
the Family Court rules are too complex and need to be changed. But to be fair, they are a set of rules that she inherited just before she was appointed as the Chief Justice.
Senator BRANDIS—Have there been no additional Family Court rules promulgated since Chief Justice Bryant has been the Chief Justice?
Mr Foster—I am sure there have been for various reasons, but not a complete review of the rules and that is really what I am suggesting that she is considering.
Senator BRANDIS—If there is to be a single set of rules, by whom would those rules be made? Would they be made by a committee of the senior judges of the court as is usually the custom?
Mr Foster—I really have no idea of how that would work. In the Family Court it is by the majority of judges who vote supporting the rules to see whether the rules are accepted. If you looked at the numbers, if there were 61 ‘federal magistrates’ and only—
Senator BRANDIS—But there would not be 61 federal magistrates absorbed into the Family Court.
Mr Foster—I am just using that as a figure. There would be a significant majority of judicial officers in the new Family Court who would be in the second tier. I do not know what the rule-making provisions would be. It is for others to work out. Certainly, it is not for me to work out.
Senator BRANDIS—I imagine although I have not looked at this that the rule-making powers are conferred by the Family Law Act or the act that constitutes the court. That is a conjecture as to one way in which it might possibly work if all of the judges had, as it were, an equal franchise, but has any thought been given to the way in which in this augmented structure—this two division, two tier court—the rule-making power would be exercised?
Mr Foster—Not to reach any conclusions would be my answer. It has obviously been raised just in informal discussion more than anything else that this is an issue.
Senator BRANDIS—What is your view speaking on behalf of the Family Court as to the way in which it should work?
Mr Foster—That is a matter for the judges.
Senator BRANDIS—The rules of court of course ultimately are promulgated by the judges, but given that the rules of court are one of the most important aspects, if not the most important aspect, that conduce to the efficiency or otherwise of a court they are of immense administrative importance too.
Mr Foster—They are, but how the rules are promulgated is a matter for the judges, not for me.
Senator BRANDIS—What I am asking you, speaking on behalf of the Family Court, is what the view of the court is as to how the rules of court should be promulgated in this new structure?
Mr Foster—I do not think the court has a view on that.
Senator BRANDIS—I also ask you, speaking in your capacity as the acting CEO of the Federal
Magistrates Court, the view of Federal Magistrates Court of how the rules should be promulgated.
Mr Foster—From my understanding, the Federal Magistrates Court would want to have its existing rules retained. In terms of rulemaking power, I have not had any discussions with any federal magistrate about how that might work.
Senator BRANDIS—I do not know if I handed you a copy of the minute of this meeting in Melbourne on 12 May—I do not think I did—but if you go to the foot of the third page, where the discussion of this issue is recorded, you will see that Acting Chief Federal Magistrate Baumann expresses a view about the importance of federal magistrates having clarification of whether they will have control over their practices and procedures. Presumably the federal magistrates who would constitute a lower tier of the Family Court would want to import into that court the existing practices, procedures and rules of the Federal Magistrates Court as it currently operates. Is that right?
Mr Foster—That is quite clear.
Senator BRANDIS—And that is your view, speaking on their behalf?
Mr Foster—I would support that view.
Senator BRANDIS—It goes on to say magistrates are keen to ensure that they can retain control over the manner in which they conduct their proceedings. Chief Justice Bryant has indicated she will be writing to the court to confirm this and has subsequently done so, but there is some concern about the need for some independent rulemaking power consistent with judicial independence. Do you know what that means?
Mr Foster—Not really, no.
I must admit I really do not understand what it means.
Senator BRANDIS—I must confess it is a little obscure to me, too. I thought you might be able to help me.
Mr Foster—I am sorry I cannot help you.
Senator BRANDIS—There is a note here that says Chief Justice Bryant, subsequently to this meeting on 12 May, has written such a letter. Could that be produced, please?
Mr Foster—Can I take that on notice and ask the Chief—
Senator BRANDIS—Is it available?
Mr Foster—I do not have it with me.
Senator BRANDIS—You are familiar with the letter?
Mr Foster—I am aware of it, yes.
Senator BRANDIS—What is the date of it?
Mr Foster—I think it was the date of this particular meeting—Tuesday, 12 May. It might have been the day before, but it was certainly only 11 or 12 May, and I do know that a copy of it was hand delivered to Acting Chief Magistrate Baumann prior to the meeting and that one of them was forwarded to the Chief Federal Magistrate.
Senator BRANDIS—Is it the view of Chief Justice Bryant that, were the courts to be integrated in the manner suggested by Mr Semple, those former federal magistrates who would constitute the lower tier of the court would have a say in the making of rules of court equal to the senior tier of Family Court judges? Or is that not her view?
Mr Foster—I do not know what her view is on that.
Senator BRANDIS—Would you take that on notice as well, please?
Mr Foster—I can.
Senator BRANDIS—I warned about this in a speech I made to the Senate the week before last. It concerns me that, if there is going to be a single set of rules, almost inevitably in the way of things the more senior people in the court—the pre-existing Family Court judges—are going to have the say. They are going to be in a position, ever so politely, perhaps, to impose their will on the more junior judges, and the single set of rules that may develop that governs both the upper tier and the lower tier is just going to impose upon the lower tier, who will have displaced the family law jurisdiction of the Federal Magistrates Court, the same old complex, expensive, lengthy Family Court culture. The culture wars, if I may put it that way, within the family law system are going to be resolved by the people with the power—the senior judges.
Mr Foster—I cannot express more clearly than I have previously that that is not the view of the Chief Justice. She has written to the federal magistrates to that effect. I guess it is a question for others to determine how that eventuates, but that is certainly not the view of the Chief Justice. I can say that with some conviction....

Mr Foster—Could I just add one other comment in relation to harmonisation of rules?
Senator BRANDIS—Yes, by all means.
Mr Foster—There has been an informal group set up by the two courts, comprised of Justice Murphy from the Brisbane registry, Federal Magistrate Baumann from the Brisbane registry and Mr Geoff Sinclair, who is the Chair of the Family Law Section of the Law Council.
Senator BRANDIS—I know Mr Sinclair. Mr Sinclair is a big proponent of the Semple report, of course. He is quoted extensively in the press on the matter.
Mr Foster—But this is in relation to harmonisation of rules. That is the first step, and I think it is a clear indication that steps are being taken to have consistent and common rules wherever possible. The area where I see a difference is only for that small area of the justices of the Family Court dealing with the more complex matters, because they deal with matters in a different way—for example, the less adversarial trial in their procedures. But, in terms of the speedier, faster, quicker resolution, I think there is a pretty reasonable recognition that the rules that exist in the Federal Magistrates Court are appropriate and effective.

Brandis: Opposition may not support cutting up of Federal Magistrates Court

Shadow Attorney-General George Brandis hinted in Senate estimates committee hearings that the Opposition may not support the cutting up of the Federal Magistrates Court into the Family Court and Federal Court.

Calling the move "controversial", and that the Federal Magistrates Court was in "chaos", Senator Brandis noted that the move would save taxpayers $1.6M a year, when the annual budget for the Family Court is $177M a year.

He told the hearing that there are a number of Federal Magistrates who would not join either court.

An officer of the Attorney-General's Department said that Acting Chief Federal Magistrate Baumann, and Federal Magistrates Burchardt, Connolly, Donald and Driver had attended a meeting with officers of the Attoney-General's Department, at which Acting Chief Federal Magistrate Baumann stated that he was very concerned about the lack of wisdom of the recommendations that the Federal Magistrates Court be absorbed into the Family Court.

A Federal Magistrate leaked a copy of the minutes of that meeting to him. Senator Brandis said:

(T)he minutes read:

If a Federal Magistrate decides not to accept any new commission but retains the
commission as a Federal Magistrate in the Federal Magistrates Court, it is
intended that the jurisdiction of the court will be exclusively family law
matters assigned to the court by the Family Court.

Then four options are set out, including what is to happen with federal magistrates who do not participate.

The CEO of the Family Court and acting CEO of the Federal Magistrates Court, Mr Richard Foster, said that a majority of Family Court judges were for the move, although some were ambivalent and a number were opposed.

There was this exchange between Senator Brandis and Mr Foster:

Senator BRANDIS-Now that we are talking about eliminating the Federal Magistrates Court as an element of the federal judiciary, you are aware, are you not, that there are many
federal magistrates who are deeply unhappy and strongly opposed to this measure?
Mr Foster—Yes, I am aware of that.
Senator BRANDIS—You are aware, are you not, that even among those federal magistrates who support or are prepared to go along with the Semple recommendations there are concerns that they have not been given sufficient information?
Mr Foster—I think there are concerns about the detail that would follow the decision. As I understand it, Mr Govey recently had a meeting with several of the FMs—federal magistrates—in Melbourne in an attempt to provide further information. But the detail of the proposal in relation to the structure of courts, I guess, is yet to emerge. Certainly there has been plenty of information provided in relation to the integration of the administration, and there will continue to be so. I do not get a sense, certainly not in the Family Court or in the
Federal Magistrates Court generally, that there is great concern about that happening.
Senator BRANDIS—About a lack of information?
Mr Foster—Not about a lack of information. About the integration of the administration.

Mr Foster, agreeing that there was great dissatisfaction by Federal Magistrates with the proposed merger, commented on a report that up to a quarter of Federasl Magistrates were opposed to the move and were threatening to resign:

Senator BRANDIS—The Federal Magistrates Court appears to be so bitterly divided over the issue that it
was reported in the Australian newspaper on Friday, 15 May, the Friday before last, by Mr Pelly and Ms
Berkovic, two reputable journalists who cover legal affairs for that newspaper, that 15 federal magistrates who
do general law work are saying that they are prepared to resign over plans to give effect to the Semple report.
You must have seen that report.
Mr Foster—I did read that report, but I do not know where it came from.
Senator BRANDIS—It came from the 15, presumably. The journalists would not have made it up, I am sure.
Mr Foster—I do not know where it came from.
Senator BRANDIS—How many federal magistrates are there at the moment—about 60?
Mr Foster—There are 61.
Senator BRANDIS—So there is a credible report that 15 of them, one-quarter of the entire court, are so energised and anxious about this proposal that they are actually threatening to resign. If that report is true, it paints a very ugly picture of the esprit de corps of that court, doesn’t it?
Mr Foster—It does, but I do not know where that came from. I read the report in the paper—
Senator BRANDIS—Are you in a position to dispute.
Mr Foster—I do not know; I have not asked about who would resign. I do not think that is a matter for me to deal with.
Senator BRANDIS—If you are the CEO, albeit the acting CEO, of a court one-quarter of whose members are talking to journalists about resigning from the court, that is a very serious matter, isn’t it?
Mr Foster—I think it is a very serious matter but I think that is a matter for the judicial head to deal with, not the CEO. My responsibility is to assist the Chief Federal Magistrate in the administration of the court. It is not to be responsible for who may or may not consider resigning from the court. I think that is clearly a judicial matter and not an administrative matter.
Senator BRANDIS—It is all very well for you to say that but, as Mr Wilkins kindly reminded me earlier on, the judicial head of the court cannot appear before this committee. The person whom the court puts up to appear before this committee and speak on its behalf to the parliament is you.
Mr Foster—I am not saying that that story was true and that it is not concerning.
Senator BRANDIS—No; you told me you are not in a position to dispute it.
Mr Foster—But I do not know whether it is or it is not.

Family Court: Semple reports due this week

The CEO of the Family Court and acting CEO of the Federal Magistrates Court, Richard Foster, told the Senate Estimates Committee that two reports by Des Semple, former Attorney-General's bureaucrat, and now consultant to government about family law, are to be delivered this week dealing with the roles of family consultants and registrars.

Mr Semple was commissioned to prepare the reports in the last couple of months, Mr Foster said.

Mr Semple then talked about the acting Chief Federal Magistrate, Michael Baumann:

Federal Magistrate Baumann has prepared a document setting out the number of
registrars that the Federal Magistrates Court would require for its work, and
that document is going to the Chief Federal Magistrate upon his return to work
today. I have not actually seen that report. I have some idea about what is in
it, but I am not at liberty to discuss what is in it until FM Baumann has
discussed it with the Chief Federal Magistrate. This was an attempt to transfer
or to allocate resources to the Federal Magistrates Court and asking that court
to identify what its resource requirements were for both registrars and family
consultants. It does not really impact on the work that Semple has been doing.
Mr Semple’s work is really about organisational structure. The actual numbers
are not really relevant to that process...

It is really about nominating a number of family consultants and registrars that
would be dedicated to providing services to the Federal Magistrates Court combined in one structure. At the moment, that does not happen. Federal Magistrate Baumann has been working over the last couple of months to try to identify quite clearly what resources the Federal Magistrates Court needs in terms of family consultants and registrars. It is very close to having that signed off. As soon as that happens, those resources will be allocated to the Federal Magistrates Court for their use and for however they want to use those resources. It is not up to the Family Court to determine how those resources will be used.

Complaints about the Family Court- Senate estimates hearing

Complaints against the Family Court

On Monday Richard Foster, CEO of the Family Court and acting CEO of the Federal Magistrates Court underwent the regular ritual of the Senate estimates committee hearing. This was interesting reading as to the number of complaints made, how they are dealt with, and what they are about:

Senator BARNETT—We are on the Family Court. Mr Foster, it is nice to see you here. Thank you for your presence. It is very much appreciated. Let us start on the complaints handling mechanism that you have underway within your court. Perhaps you could update us on the number of complaints, how you have dealt with the complaints since we last met and the procedures you undertake to process those complaints.

Mr Foster—Certainly. I will provide some history about the judicial complaints system, because there is some activity at a policy level about the Attorney-General’s view of a judicial commission. The Attorney-General wrote to the Chief Justice on 13 June and 20 October 2008 with regard to improved handling of complaints against the judiciary. The Chief Justice responded to these inquiries in writing on 19 June 2008, 23 June 2008, 26 June 2008 and 28 October 2008. The Chief Justice and senior officers of the court have discussed judicial complaints handling with the department over the term of this government, including on 7
July 2008, 20 August 2008, 17 November 2008 and 19 November 2008. There has been significant discussion between the courts and the department in relation to judicial complaints.
In relation to what exists as we speak, the Family Court acknowledges that complaints about judicial officers from the public may warrant particular serious examination and in certain circumstances the Chief Justice may need to advise both the Attorney-General and the Governor-General in council that the procedures related to the termination of a commission under section 72 of the Constitution should be activated. The Family Court has implemented a judicial complaints handling policy that is readily available to the public on the Family Court website or upon request to individuals. We take seriously complaints made about judges.
Policy does acknowledge the importance of the public providing feedback about judicial conduct so that the Chief Justice and the judge concerned may deal with the complaints appropriately. All that information is provided on the Family Court’s website. The Deputy Chief Justice, on behalf of the Chief Justice, has primary responsibly for the management of complaints against judges and is assisted in the consideration and investigation of the complaints by a judicial
complaints adviser, who is a legally qualified registrar of the court. The first step in the process is for an assessment to the made of the complaint to ensure that it is about the conduct of the judge rather than the result of a decision of that judge or a matter of proceedings which might be raised as a ground of appeal. Once the nature of the complaint has been identified, an appropriate initial response acknowledging the complaint is provided as soon as practicable. If the complaint pertains to conduct of a judge, a detailed consideration of the proceedings may be undertaken. This may involve an examination of the transcript or a review of the available
audio of the proceedings. A detailed and comprehensive reply is then prepared by the judicial complaints adviser and is reviewed and settled by the Deputy Chief Justice. In certain circumstances—
Senator BARNETT—How many judicial complaints advisers do you have?
Mr Foster—There is one—in the chambers of the Deputy Chief Justice here in Canberra.
Senator BARNETT—Do they have some sort of independence or are they simply part of the executive administration of the court?
Mr Foster—It is a registrar employed by me as the chief executive officer. But it is a legally qualified person who has had great experience in the court processes and systems and who knows how to review a file, read the transcripts et cetera. In certain circumstances, the judge concerned will be sent a copy of the complaint by the Deputy Chief Justice and invited to respond should the judge wish to do so.
Senator BARNETT—You say ‘in certain circumstances’. Is that in most circumstances? In what
circumstances would the complaint not be referred to the judge?
Mr Foster—If the matter was still proceeding before that particular judge then obviously that judge would not be consulted or advised about the complaint until the proceedings had been finally determined and dealt with.
Senator BARNETT—Is that automatic?
Mr Foster—Pretty much automatic, yes. If it is a behavioural thing from a party to an action and the matter is proceeding, those proceedings would wait until the judge had made the decision in relation to that matter.
Senator BARNETT—What if the judge was accused of being asleep through the hearing and consistently falling asleep every afternoon during the hearing?
Mr Foster—Fortunately that has not happened, so I am not really sure of that particular instance. I am really not in a position to respond.
Senator BARNETT—Would that not be an allegation that you would want brought to the attention of the judge as a matter of urgency?
Mr Foster—It might be. I am not being black and white in my response, but largely if there is a matter still before the judge for determination then it would be held back. There may be circumstances where it would be appropriate and/or necessary for the matter to be discussed with the judge notwithstanding that it was still before him or her in the court. But I would not like to speculate on those circumstances.
Senator BARNETT—But in any event, that is for the officer to liaise directly with the judge or not.

Mr Foster—That would be for the Deputy Chief Justice. The officer would advise the Deputy Chief Justice
and he would make a decision, probably in consultation with the Chief Justice, about whether that further
consultation process should take place. But to my knowledge that has not occurred.
Senator BARNETT—Why is it the Deputy Chief Justice and not the Chief Justice?
Mr Foster—I guess it is because the court has had such large numbers and it is a role clearly for the Deputy Chief Justice, who deals primarily with case management other than his court workload. Many of these complaints relate to case management, so it seems to fit within his responsibilities. The Chief Justice has delegated that responsibility to him.
Senator BARNETT—Going back, is it in most circumstances that it is referred to the judge? You said in ‘certain circumstances’.
Mr Foster—It would depend again on the nature of the complaint. If it was something of a particularly minor nature, it would not be. If it was a matter that it was considered the judge needed to be made aware of or might need to comment about, in those circumstances it would be referred to the particular judge.
Senator BARNETT—Using the last 12 months as an example, how many have been referred?
Mr Foster—I would have to take that on notice. Off the top of my head, I do not know.
Senator BARNETT—How many complaints have you had in the last 12 months?
Mr Foster—In the 2007-08 financial year, there were 75 complaints in relation to judges, out of a total of 206 non-judicial and 75 judicial complaints. To the end of December, there were 92 non-judicial complaints.
Senator BARNETT—From 1 July?
Mr Foster—To the end of December. Not about judges—they are non-judicial, about processes et cetera.
Senator BARNETT—What about judicial complaints—complaints about judges to the end of December?
Mr Foster—I do not have that figure. I will take that on notice. There were 75 for 2007-08.
Senator BARNETT—We are obviously interested in 2008-09, and through to 31 December if possible.
Mr Foster—Yes.
Senator BARNETT—But you do not have those figures for judicial complaints about judges? Do you have
to take that on notice?
Mr Foster—If I could take that on notice—
Senator BARNETT—All right. Let us drill down those 75 complaints for 2007-08 in terms of the
outcomes. Was that in your report last year?
Mr Foster—In the annual report?
Senator BARNETT—Yes.
Mr Foster—We have quite detailed—
Senator BARNETT—I think you have detailed that, but we do not have an update. You stated that the officer concerned in certain circumstances refers it to the Deputy Chief Justice, who refers it to the judge. Then what happens?
Mr Foster—Depending on whatever the complaint is about, the response may also provide an explanation about matters such as the manner in which judicial appointments are made. There is a whole range of things that people complain about. Obviously that is something you are interested in with that other committee. There are some other general things about judges—the oath of office, relevant training, professional experience, powers of courts to make decisions or an application made to the court, and the ability of individuals to request judges to disqualify themselves. There can be quite a range of different areas raised in these types of
complaints. It is not always about the behaviour of a judge. When I say it is in relation to judges, it could be in relation to their appointment, their oath of office or a whole range of activities in relation to what judges do and their work. Complaints relating to delays in proceedings or in the delivery judgements, as well as being made directly to the Family Court, may also be made to the relevant state or territory law society. In fact, in my experience that does happen. On 13 May, in response to the Senate inquiry into the Australian judiciary and the role of
judge, the Chief Justice and the Chief Federal Magistrate sent a joint submission to the committee which again addresses some of these matters.

Senator BARNETT—That is very much appreciated. If you can relay that appreciation to the Chief
Justice, that would be excellent. I look forward to perusing that and considering it very carefully.
Mr Foster—Thank you.
Senator BARNETT—Is there anything else in terms of the complaint handling mechanism that you wish to advise the committee?
Mr Foster—I do not think so at this stage, no.
Senator BARNETT—In terms of complaints made about judges, how many resulted in counselling and/or discipline?
Mr Foster—Can I also take that on notice? I do not know the exact number, other than to say it is very small. I am not really certain of the exact number.
Senator BARNETT—I am interested in the number and the nature of counselling and/or discipline that flows from that report.
Mr Foster—Certainly.
The child support blues: 21 kids to 11 mums, child support only goes so far:
All of New England now? Rhode Island considers same sex marriage

Wednesday, 27 May 2009

Queensland researchers looking into police response to domestic violence:

Family Court: beware of the private eye

Older practitioners remember how divorces used to be obtained pre the Family Law Act: privates eyes would be engaged to spy on a party with the hope that they would come up with incriminating footage, showing the party in a romantic liaison with someone other than their spouse.

As illustrated in the recent Family Court case of Gallardo and Gallardo, private eyes can have their uses, especially when a party says that they have an incapacity for work, but appear from the video footage to be quite capable of work, as seen through the eyes of Judicial Registrar Johnston:

The husband is 46 years of age and there are some real limitations in terms
of his health....(H)e was released on health grounds from the New South Wales
Public Service in February 2008. There was no medical evidence in proper form
before the Court to set out the current state of his health. But in the past he
has been diagnosed as having been suffering from post traumatic stress
disorder....(I)n 2000 the husband suffered an injury at work. He was assessed as
having suffered a 20 percent loss of his right arm at or above the level of the
elbow and compensated for this. By April 2003 his condition was said to have
stabilised. In any event he was able to continue working in his capacity as a
supervisor for some years after this time. In May 2005 the husband suffered a
most distressing incident which involved actual physical injuries to him. In
short, he was attacked by two men and one inflicted serious injuries on him
using a metal bar.

Clearly not only did the husband suffer from serious physical injuries but
there were also serious psychological consequences. In mid-2007 the husband was
accepted by the New South Wales Public Service as being permanently unfit for
the full range of the duties of his position and he was granted a partial and
permanent disability benefit. For the purposes of his application for this
benefit he was diagnosed as suffering from Post Traumatic Stress Disorder and
Chronic Pain Syndrome.

It was submitted on behalf of the wife that the Court should be
cautious about accepting this as evidence of the husband’s current condition.
This was on the basis that the husband has been in receipt of ongoing treatment
both from a psychiatrist and from his medical practitioner, yet no evidence was
put by such experts in relation to his current state of health.

In addition, the wife engaged a private detective to undertake
surveillance of the husband particularly in relation to his attendance at the
gymnasium owned and operated by his brother. The private detective, Mr C filmed
the husband on a number of occasions during July and August 2008 in attendance
at the gymnasium. From my viewing of this film, it showed the husband in
attendance at the gymnasium, it depicted him showing the private detective some
of the gymnasium equipment, it also depicted him at the reception desk and at
the computer.
This was the basis of a submission on behalf of the wife that
whatever the husband asserts his ongoing injuries to be they have not prevented
him from attending at the gymnasium and apparently working at the gymnasium.
This was denied by the husband who said that as part of his rehabilitation
following his injuries he regularly attends the gymnasium usually from 6:30 am
and undertakes a program of exercises. He said that he often uses the computer
at the gymnasium and will occasionally speak to clients of the gymnasium. He
said that this contribution by him to the gymnasium is one which has been
ongoing. He said that the gymnasium has always struggled and that various
members of his family have helped out at the gymnasium. He said that he was
doing nothing more than that and that in fact at all times when he was at the
gymnasium his brother’s partner, who is the manager, would have also been in
attendance at the gymnasium.

In respect of this matter I must say that I have some doubts about the
veracity of what the husband is saying. It would have been a simple matter for
him to tender evidence in the proceedings from his brother and his brother’s
partner to corroborate his version of his capacity in attending the gymnasium.
But in any event whether or not the husband may be in receipt of regular
payments for his contributions at the gymnasium, in my view what this evidence
is significant for is that it indicates that the husband has the capacity to be
able to undertake at least some limited work of this nature.

As also indicated above, the husband successfully applied to his
superannuation fund to pay out to him his benefits in the superannuation fund on
the basis of partial and permanent invalidity. Over the strong objection of
learned counsel for the wife I admitted into the evidence a confidential medical
report on the incapacity asserted by the husband for the purposes of this
application. This report was by a Dr V. Amongst other matters included in
the report, Dr V reported that in his opinion the husband was still able to
be employed in some form of paid occupation and gave as an example office work
perhaps involving the use of a computer.
The conclusion that I arrive at in
relation to all of this is that clearly the husband has been unable to work in
his previous full-time capacity. But he has not put any evidence before the
Court to suggest that he would not be able to work in some other capacity such
as the type of work involved in operating the gymnasium or some form of clerical
work which, in the opinion of Dr V, he would be able to do. The husband’s
income is $532 per week which he receives from the worker’s compensation
Stepdad jailed for 8 years for shaking de facto's 19 day old baby to death: Fairfax

Tuesday, 26 May 2009

Stepfather jailed for babyshaking

The Brisbane Times could not have put it better: "Jail for babyshaker". A Brisbane father of 4 has been jailed for 8 years for manslaughter for shaking to death his de facto's 19 day old baby.
NSW to abandon same sex adoptions, do a deal with Fred Nile: Fairfax

Research into police response to domestic violence

Brisbane university researchers are seeking to interview women who have been involved with criminal prosecutions of domestic violence ( breach or other offences ). Generally this will involve situations where their violent partner has been prosecuted, but there may be some situations where the woman pushed for prosecution but the police were unwilling.

If possible researchers would like to talk to people who have been engaged in a criminal prosecution of this type from 2004 onwards.The specific issues to be covered include:
1. How do police attending domestic violence call-outs provide battered women with an opportunity to make a criminal complaint about the violence experienced?
2. How do police and prosecution authorities include battered women in decision-making about appropriate charges to be laid?
3. How are battered women provided with support and information throughout the trial of the case?
4. What kinds of sentencing outcomes are appropriate?
5. What were the effects of criminal prosecution- does it contribute to safety / fear etc.

Does this fit you? If so, you will also need to live in south-east Queensland. If you believe you are suitable, email me at and I can put you in touch.

New Regional Family Services Announced

Ministerial Media Release:

Attorney-General, Robert McClelland, today announced funding for fifteen regional services to provide support for families experiencing relationship and separation issues. The additional services include fourteen new Post Separation Cooperative Parenting centres and a Regional Dispute Resolution Service.

“Services such as these are enormously valuable in assisting parents to make critical decisions about parenting after separation, while maintaining a focus on the best interests of their children,” Mr McClelland said. These new services will be located in regional centres to ensure that families can access the help they need to address parenting issues.

The Post Separation Cooperative Parenting centres will offer counselling, education and seminars to highlight to parents the impact that conflict can have on children, and in doing so teach parents about different ways to manage conflict and support their children.

The Regional Dispute Resolution Service, to be located in Broken Hill, will assist separating families to reach agreement to resolve disputes as an alternative to costly and protracted court proceedings. “I congratulate the organisations that have been selected to provide these important new services,” Mr McClelland said.

Location Service provider

Bega Anglicare Diocese of Sydney
Nowra Anglicare Diocese of Sydney
Wagga Centacare Managers Inc

Ballarat Ballarat Consortium for Family Relationship Services
(Consortium members: Child and Family Services Ballarat Inc,
Centacare, Catholic Diocese of Ballarat Inc and Relationships
Australia Victoria)
Bendigo Centacare Sandhurst
Mildura Mallee Family Care
Morwell Centacare Catholic Family Services

Ipswich Lifeline Community Care Queensland
Mackay Lifeline Community Care Queensland

South Australia
Port Augusta UnitingCare Wesley, Port Pirie
Berri Relationships Australia South Australia

Western Australia
Geraldton Geraldton Family Relationships Consortium
(Consortium Members: Centacare Family Relationships Services,
Geraldton Regional Community Education Centre; Chrysalis
Support Centre, Geraldton Resource Centre, Midwest Men’s Health
Inc and Women’s Health Resource Centre Inc)

Northern Territory
Alice Springs Relationships Australia NT / Centacare NT PSCP Consortium

Devonport Centacare Tasmania
Federal Magistrates Court reminder about court forms
Family Court: Obligations of parents in children's matters

Federal Magistrate Court Initiating Application (Family Law)

Reminder from the Federal Magistrates Court:

In March 2009 amendments were made to the combined Initiating Application form in light of the conferral of de facto jurisdiction. The amended form included a new Part H. In the Federal Magistrates Court litigants were advised to use the revised Initiating Application from 1 March 2009 however to avoid hardship the Federal Magistrates Court allowed a period of 3 months grace for the filing of the previously approved Initiating Application.This notice is by way of reminder to advise that as from 1 June 2009 there will no longer be a period of grace and litigants will be required to file the Initiating Application as approved for use from 1 March 2009. The form is available at the following link:
Twitter: clarinette02 aint no spammer- please restore ASAP #putitback

Family Court: Obligations of parents in children's matters

In the recent Family Court case of Larvin and Larvin, Justice Cronin made orders on an undefended basis in a children's matter, after making these comments:

Whilst there are very strong statements by this Court about financial
disclosure, not much is often said about parenting cases where litigants fail to
comply with directions and orders. In a number of ways, it is more important for
parties to comply with the rules and orders that would enable them and the Court
to have some meaningful opportunity to analyse what is best for the children. If
parties do not comply, a Court should not be reticent about striking
applications out and precluding participation. Children have a right to have
their futures settled as quickly as possible based upon comprehensive
information. A refusal or failure to provide that information leaves a court
with the difficulty of having to decide whether to pursue the information
itself. If a court is satisfied that there is sufficient information, it should
not be reticent about making orders even if it means limiting the participation
of an uncooperative parent.