Thursday, 30 April 2009
Wednesday, 29 April 2009
1. Invest $12.5 million for a new national domestic violence and sexual
assault telephone and online crisis service. The new service will be run
by professional staff and make active referrals to follow up services. The
new service will operate 24 hours a day, 7 days a week.
2. Invest $26 million for primary prevention activities including $9 million to
improve the quality and uptake of respectful relationships programs for
school age young people and $17 million for social marketing focused on
changing attitudes and behaviours that contribute to violence.
3. Invest $3 million to support research on perpetrator treatment and the
greater harmonisation of Federal and State and Territory laws.
4. Work with the States and Territories through the Standing Committee of
a. Establish a national scheme for the registration of domestic and family
violence orders. This scheme will allow orders to be enforced across
State and Territory borders.
b. Improve the uptake of relevant coronial recommendations.
c. Identify the most effective methods to investigate and prosecute
sexual assault cases.
5. Develop a multi-disciplinary training package for lawyers, judicial officers,
counsellors and other professionals working in the family law system, to
improve consistency in the handling of family violence cases.
6. Ask the Australian Law Reform Commission to work with State and
Territory law reform commissions to examine the inter-relationship of
Federal and State and Territory laws that relate to the safety of women
and their children.
7. Establish the Violence Against Women Advisory Group to advise on the
National Plan to Reduce Violence against Women.
The Time for Action plan of the Council was released today. Its recommendations were:
That the Australian Government commit to a vision for Australia where 'women and their children live free from violence, within respectful relationships, and in safe communities'.
That the Australian Government support the realisation of this vision for Australia’s women and children through a long-term, strategic and sustained commitment.
This commitment would be effected through a series of three-year implementation plans to 2021 to be developed in partnership with government, business and the community, built on research and evaluation, and that will incorporate the outcomes of measures already implemented.
Clear outcomes, strategies and actions
That the Australian Government agree that realising this vision requires that:
Communities are safe and free from violence
Relationships are respectful
Services meet the needs of women and their children
Responses are just
Perpetrators stop their violence
Systems work together effectively.
That the Australian Government accept that the strategies developed by Council under the six outcomes are based on research, best practice, and community feedback; and that these strategies must underpin any effective response. The Government should also acknowledge that these strategies alone may be insufficient, and that new strategies may be required over time.
That the Australian Government note that the Council has identified a set of actions for the next 12 years aimed at achieving the Plan of Action’s outcomes and executing its strategies, and agree to:
urgently implement the priority actions that the Council considers represent the minimum investment to effect change;
start work on the other early actions identified in the first three-year implementation plan;
review all actions in developing the second and subsequent three-year implementation plans.
A national response through the Council of Australian Governments
That the Australian Government recognise the critical role of State and Territory governments in reducing violence against women and their children; that it refer the Plan of Action to the Council of Australian Governments (COAG); and request that COAG develop an integrated, comprehensive response endorsed by all levels of government by early 2010.
That the Australian Government acknowledge the social and economic costs of inaction; and that it encourages Commonwealth, State and Territory ministers and agencies to take action consistent with the Plan of Action’s outcomes in advance of the integrated, comprehensive response being developed by COAG.
That, following referral to COAG, the Australian Government pursue the development of a whole-of-government approach that:
builds on the vision, outcomes, strategies and actions identified by the Council;
aligns all Commonwealth, State and Territory governments’ plans, policies, procedures, and practices with those agreed to by COAG;
includes a robust system of regular reporting, independent monitoring, and comprehensive independent evaluations that will develop a strong evidence base to measure the impacts and outcomes of actions.
That the Australian Government work with State and Territory governments through COAG to ensure the National Framework for Protecting Australia’s Children meets the needs of children who witness and experience domestic and family violence.
Continued community engagement on action
That the Australian Government recognise the critical need to provide a multi-layered, phased, and cohesive approach to public awareness and discussion about violence prevention and behavioural change over the Plan of Action’s lifetime; and agree that the Commonwealth Minister for the Status of Women will lead the development of a social marketing strategy in partnership with State and Territory governments and the community.
That the Australian Government accept the vital role of the community in helping reduce violence against women and their children, and agree to:
work in partnership with other levels of government, business, and the community sector;
provide opportunities for individuals, business, community, and other institutions;
build bi-partisan support at the Federal, State, Territory, and Local government levels to support the broad directions advocated in the Plan of Action;
extend the role of the National Council to Reduce Violence against Women and their Children, or similar body, to one of helping to implement the Plan of Action.
I have set out below the key outcomes in the report:
Outcome 1: Communities are safe and free from violence
Focus on prevention
Violence against women must stop – their safety, and that of their children, is not negotiable.
The Plan of Action starts where we can have the greatest impact: with what communities can do to reduce and ultimately stop violence against women and their children. Communities, from across Australia must be willing to tackle the problem as no amount of legislation, policy or policing in isolation will eradicate this violence.
For our communities, the first step must be to acknowledge the nature of the problem. Women and men in our society have unequal access to social and economic power. The evidence demonstrates that while there is no single cause of sexual assault or domestic and family violence, many risk factors associated with these types of violence can be influenced by obvious and covert expressions of inequality in the community.
For example, community and societal ideas of what it means to be a man and to be a woman can contribute to the problem of violence by supporting the traditional gendered power-imbalance. Attitudes and beliefs about gender are learned, and society often teaches deeply held sexist views. Evidence shows that communities increase the risk of violence against women when they allow norms that support men’s controlling attitudes and behaviour over women, or attitudes that support the notion of male privilege. These norms include:
'macho' constructions of masculinity;
ideas that 'a woman’s place is in the home';
notions that men should 'wear the pants' as heads of the household and wage-earners;
standards that segregate male drinking and encourage excessive or binge drinking;
standards that create peer pressure to conform to these ideas of masculinity and male behaviour.
Notions of masculinities and violence
The glamourising and normalising of violence and aggressive male stereotypes in the media and on the internet also perpetuate negative attitudes and behaviour towards women. Many studies have identified a relationship between tolerance for physical or sexual violence and an exposure to sexist imagery in television, film, advertising and electronic games. These studies conclude that excessive consumption of imagery which idealises an aggressive, insensitive notion of masculinity, is likely to enhance violence-supportive attitudes. This is even more evident in the case of pornography (most of which overtly portrays women in an unequal role to men). This is concerning given evidence that a substantial proportion of Australian boys are regular consumers of X-rated video and Internet pornography.
Specific attitudes about gender-based violence also play a strong role. Violence is enabled when local communities:
view sexual assault and domestic and family violence as 'invited' by the victim/survivor;
fail to intervene when they see violence because it is considered a private matter or part of a 'culture';
accept violence as a legitimate means of settling conflict.
In the case of sexual assault, community members may accept such assault as a rite of passage, or something that 'just happens' (normalising behaviour). Communities also may tacitly support violence by failing to provide alternatives or failing to explicitly oppose it.
'There are two very important messages to consider when thinking about the violence and abuse women and children experience in our society. The first is the profound and long lasting impact across all domains of development, throughout the life course and across generations. These experiences can deprive women of their potential, fragment families and shatter the dreams of our children.
The second message is that it is entirely preventable. In this modern era we have the means and political will to change the future. We can develop respectful relationships, restore hope for a just society and bring to fruition a Nation based on equality and equity for all its citizens.'
Aboriginal Medical and Dental Health academic Western Australia
Communities can help stop the violence
The evidence suggests that if communities work in partnership with governments and the non-government and private sectors, they can reduce violence against women and their children through their collective actions to:
understand, discuss and explicitly condemn violence against women and their children;
promote women as equal and active participants in intimate relationships and public life;
ensure women have equal access to secure employment, salaries and financial independence;
reject definitions of 'being a man' or notions of masculinity that are associated with violence;
promote notions of masculinity that are non-violent;
intervene where violence against women and their children is witnessed or suspected;
provide information about, and links to, available support services;
render assistance to victims when formal services are limited;
hold perpetrators accountable and challenge their use of violence;
provide services to perpetrators to help them change their behaviour;
address factors that contribute to violence in the wider community by encouraging the responsible service and consumption of alcohol; addressing the abuse of drugs; discussing the nature, causes, and impacts of violence against women; and enforcing demanding media and internet standards to prevent glamourised violence and negative sexualisation and denigration of women;
promote education respectful relationships.
If the longer term goal is eradication of violence, then society needs to dramatically increase its understanding of why violence occurs in the first place. International evidence suggests that primary prevention strategies that work across many levels (such as the attitudes and behaviours of individuals, the way people operate in relationships and families, the way they engage as communities, and how social structures and institutions are regulated) are the most effective.
The evidence also suggests that social marketing campaigns that promote gender norms against violence, combined with approaches that mobilise communities to stand against violence, and programs based in education and sports settings, are more likely to produce cultural change that reduces tolerance for violence against women and aids prevention in the first instance.
'Some of the issues start in early childhood with boys being allowed to be 'rough' [boys being boys] and told to be tough [not show emotion]. This is an issue for the way some women parent boys as much as their male role model.'
Child psychiatrist Western Australia
Community programs that address violence-exacerbating behaviour must also be supported. These include: efforts to address violent male-on-male behaviour in situations such as sporting environments, or gangs that legitimise the use of violence as a means for addressing grievances.
Some communities may face problems that exacerbate or enable violence against women and their children. For example, many remote and/or Indigenous communities experience housing conditions (like overcrowding or the presence of violent individuals in the dwelling) that tend to increase the incidence of violence. Several factors can increase the vulnerability of immigrant and refugee women to violence. These include cultural or religious practices that subordinate women and cultural expectations that loyalty to family and community take precedence over personal safety. The circumstances of individual communities must always be assessed and addressed.
Outcome 2: Relationships are Respectful
Violence in relationships remains high in our communities, and most would agree that unless the unequal power relations between women and men are more meaningfully addressed, the incidence will not change. Around one in three Australian women experience physical violence, and almost one in five experiences sexual violence over their lifetime. The majority of violence against women in Australia is committed by men they know.
“Violence against women is illegal, unacceptable and a blight on our community. It’s wrong and it’s got to stop. On the whole it’s us as blokes that do this stuff to our women and our kids but we are committed to change this and we want to be part of the answer and part of the solution. Things will never change unless men work side-by-side with women.”
Graham (Bonny) Gibson, Spirit of Men Murray Bridge, South Australia, 2008
Young men warrant particular attention, given that one in seven young men (aged 12-20) think it is acceptable for a boy to make a girl have sex with him if she has flirted with him or led him on. More than a quarter believe that most physical violence occurs in dating because a partner provoked it. Another study has found that while many males under age 45 consider the use of physical strength to abuse female partners unfair and cowardly, and verbal and emotional abuse damaging, sexual abuse within a marriage proved a grey area for some.
While violence against women knows no cultural or age boundaries, the levels, risk and impacts of violence can affect women differently. For example, despite the increased vulnerability of women with disabilities to all forms of intimate violence, many violence prevention programs have failed to address this issue or their needs. A recent US study found that women with disabilities were 37.3 per cent more likely than women without disability (20.6 per cent) to report experiencing some form of intimate partner violence. 19.7 per cent of women with disabilities reported a history of unwanted sex compared to 8.2 per cent of women without a disability.
Due to numerous State and Territory based inquiry reports and national media coverage, the high level of violence experienced by Aboriginal and Torres Strait Islander women and their children is now better, and more widely, understood.
Despite all of this, there is limited uptake of specific violence prevention education programs nationally. Particular challenges are faced in delivering education in remote and rural areas where overall, service providers are scarce.
Outcome 3: Services Meet the needs of women and their children
The current capacity of services to meet the needs of women and their children is compromised across Australia because of insufficient funding. Insufficient funding prevents the widespread implementation and accessibility of services. The difficulties in recruiting and retaining appropriately skilled workers in this area compounds the effects of insufficient funding.
Immediate crisis services and on-going services for victims of sexual assault and domestic and family violence received a great deal of attention in the written submissions to the Council. The Council heard repeated stories about funding shortfalls for services, the lack of services, the inability of services to meet the holistic needs of the victim and her family, over-stretched and stressed services with long waiting lists, and a lack of skill and agency protocols that ensured compassionate, appropriate and timely responses to the requirements of women with more complex needs.
As disclosures and reporting of violence against women increases, the gap between demand and needs being met will only grow. Many in the sector, and the community, hold concerns that under-resourcing is already leading to limited service delivery, so that a consistently professional, high quality, and coherent response to sexual assault and domestic and family violence is, at best, uneven across the nation. Budgetary allocations must match the real size of the problem. Apart from these gaps we need to ensure that a social inclusion approach is taken seriously. Not only is more money needed to address gaps, but we need to find new ways of governing which include rethinking how policy and programs can be delivered across portfolios and between levels of government to wrap services around women and their children.
The ways in which women and their children experience violence, the options open to them in dealing with violence, and the extent to which they have access to services that meet their needs, are shaped by the intersection of gender with factors such as disability, English language proficiency, ethnicity, physical location, sexuality, Aboriginal and Torres Strait Islander status, and migration experience. These factors increase the vulnerability of women and their children to the risk and effects of violence.
Outcome 4: Responses are Just
'… States should pursue by all appropriate means and without delay a policy of eliminating violence against women and, to this end, should: … exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or by private persons.'
Article 4 of the Declaration on the Elimination of Violence against Women, adopted by the United Nations General Assembly in 1994, unambiguously states the premise on which our legal response to violence against women should be based.
Violence against women and children is a fundamental violation of their basic human rights. States are therefore obliged to prevent violations of human rights in the private sphere; to regulate and control private actors; and to investigate violations, punish perpetrators and provide effective remedies to victims. States may be held responsible for private acts, such as domestic and family violence, if they fail to act with due diligence to prevent, investigate, or punish acts of violence, and for providing compensation.
In 2009, Australia became a party to the Optional Protocol to the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW). The Optional Protocol enables women in Australia to make a complaint, after other legal options have been exhausted, to the United Nations’ Committee on the Elimination of Discrimination against Women about alleged violations of Australia's obligations under CEDAW.
'Acceding to the Optional Protocol will send a strong message that Australia is serious about promoting gender equality and that we are prepared to be judged by international human rights standards.'
The Hon. Tanya Plibersek MP, Minister for the Status of Women Joint Media Release with the Hon. Robert McClelland MP, Attorney-General 24 October 2008
Outcome 5: Perpetrators stop their violence
Violence against women and their children will not stop until perpetrators cease being violent.
The Council is resolute that perpetrators of violence against women must be held accountable for their use of violence and challenged to change their behaviour. Accountability means ensuring that consequences follow if violence against women is perpetrated, and that this occurs at the individual, community and system levels.
We know little about the ways that the many different sectors and professions involved with perpetrators can complement and enhance each other’s work, and what sort of social policy will facilitate this endeavour. The Plan of Action offers strategies and actions to progress this work. Although the best means to undertake specific interventions requires future research, the Council believes approaches to perpetrators must:
ensure that women and their children are protected and safe;
hold perpetrators to account and ensure they take responsibility for their violent behaviour;
stop perpetrators’ violent behaviour and change their violence-supportive attitudes;
sustain positive change in perpetrators’ behaviour and allow them to redefine themselves as non-violent; and
subject to considerations for the safety of the victim/survivor, allow perpetrators to re-enter the community and engage in positive ways.
There are many ways the justice system can respond to perpetrators of violence. The likelihood of recidivism can be reduced through deterrents such as sentencing, through community restraints such as parole, through incapacity such as prolonged incarceration, or through effective rehabilitation. There is limited evidence that the prospect of imprisonment alone deters violence against women and their children that convicted perpetrators change their violent behaviour without, or even through, court-mandated programs, or that the adversarial nature of Australia’s legal system does not inadvertently encourage perpetrators to deny and avoid responsibility for their violence.
Further research is needed to look specifically at the effectiveness of incarceration, deterrence and community restraint in reducing recidivism in cases of violence perpetrated against women and their children.
'Locking up the perpetrator at least gives the family a break from the violence and a chance for them all to get a good night's sleep for a change. But something needs to be done to change his behaviour or it just becomes a repeating pattern - and that's really a pretty hopeless outlook.'
Police officer in regional Australia, 2008
Australian and international research shows that rehabilitative programs can be effective in reducing recidivism. In Australia, the majority of responses to perpetrators of sexual assault and domestic and family violence attempt to place them into some form of rehabilitation program. The Council’s Plan of Action explores strategies to improve the effectiveness of rehabilitation programs to change men’s violent behaviour.
Outcome 6: Systems work together effectively
A central objective of the Plan of Action is to establish and foster a coherent response to the problem of violence against women and their children.
Responding to violence against women requires high-level input from practitioners across a range of disciplines to ensure a holistic and adequate response, including from the police; state, territory and federal courts, and other elements of the justice system; health, community and government services working with women and their children; and those working with the perpetrators of violence. While services and programs are in place across all Australian jurisdictions to respond to violence against women and their children, commonly the responses are fragmented, with varying degrees of coordination across service sectors and between different levels of government. This is frequently the result of services having being designed to respond to single problems and the establishment of organisations which were targeted at particular client groups. This results in gaps in service provision, on the one hand, and duplication of services on the other.
This absence of systems that can mesh effectively has a real and profound impact on women who experience violence.
For more about the report, click here.
Way back in 1992, Sister Carolyn started a domestic violence court support program at Beenleigh Courthouse. She has pointed out to me, and no doubt will again, that the program started in 1993. I count it starting from 1992, because that is when she came to the courthouse and started assisting women who had been subject to domestic violence. Sister Carolyn received the best individual category.
Sister Carolyn had many hurdles to jump, but quickly obtained acceptance and appreciation from the local magistrates, prosecutors and lawyers for the extraordinary difference she made for women and children at one of the busiest domestic violence courts in the State.
It is at this point that I apologise for not writing down notes, in the expectation that the usually efficient media releases from the Queensland Government would have winged their way to my computer. Alas, it is not so, and I am unable to reveal everyone who won an award.
The ceremony was chaired by graceful Channel 7 newsreader Kay McGrath, who showed a keen passion about child abuse and domestic violence issues.
During the ceremony, I felt particularly proud as a partner and as a director of Australia's CEO Challenge of the efforts of it and its partners:
- another director of Australia's CEO Challenge, Donna Justo, received an award on behalf of the Gold Coast DV service because of efforts they were making to link with young men, including a CD by young men from the coast opposing violence to women
- a partner of Australia's CEO Challenge, the Brisbane City Council CEO Jude Munro, received an award for her role in having anti-domestic violence posters put on Brisbane buses, as part of efforts with CEO Challenge to raise the profile of domestic violence issues
- another partner of CEO Challenge, GHD, a large engineering and professional services firm, received an award in the Business category at it has partnered with CEO Challenge to help several refuges, and is looking to partner more.
Other winners included:
- a police effort in the outback town of St George which involved follow up with people affected by domestic violence, but after the incident, which resulted in a 40% drop in the rate of domestic violence there
- a community effort on Cape York to ensure men and boys have positive role models, including sports stars, rather than being trapped in the cycle of abuse and despair
- a community effort from Emerald in central Queensland to have locals paint art on clothing anti-violence messages, which resulted in 4000 locals visiting the exhibition at the local library (huge numbers for a town of that size).
Kay McGrath summed it up well when she talked of the inspiration of these unsung heroes working hard and changing people's lives for the better.
Weddings are (hopefully) a once-in-a-lifetime experience and you want to do everything you can to make the day a memorable one. When the economy was racing along, spending on weddings got out of control.
The good news is that it is possible to have a wonderful day without breaking the bank.
Here are some suggestions to help you keep costs down:
1. Go Back to Basics
When you get down to it, all you really need for your wedding is your beloved and yourself, a couple of rings, someone to officiate at the ceremony, and two witnesses. Anything else is really just window dressing. Do you really need to have a full formal wedding with a large wedding party? Make a list of the things that you “must” have and be flexible about the parts of the day that would be “nice to have.”
2. Think Out of Season Dates
The prime wedding season runs from Easter to September. If you are prepared to be flexible about the date, you can make your wedding budget go further if you decide to get married in the fall or winter. (The slowest time for weddings is January, by the way, and holding the ceremony then is one way to get your New Year off to a great start.)
3. Keep the Guest List Small
If you haven’t seen or heard from someone in five years or more, then don’t think that you are obligated to invite them to your wedding. The same rule applies to your boss, your co-workers, and the bowling team. You get the idea here. Invite only your nearest and dearest to share your wedding day with you; it will help to keep costs down.
4. Rethink the Formal Reception Idea
While your dream wedding may include a reception at a hotel for a few hundred guests and a multi-course sit-down dinner, that may not be in your budget. No problem; you just need to be a bit creative. When you are looking at possible wedding reception locations, ask to see a range of options for the meal. A buffet may be less expensive than a sit-down dinner, or you may choose to have an evening wedding with a cocktail reception afterward.
You may want to re-think the idea of an open bar all evening, too. One option is to have an open bar before dinner and serve a wine of your choosing with the meal. You could choose to serve beer and wine only if the alcohol will be on your tab to keep costs reasonable.
A wedding reception doesn’t necessarily have to take place in the evening. You can also choose to have the ceremony earlier in the day with a brunch or luncheon following. Menu prices will be lower with this option.
5. Avoid the Words “Wedding Cake”
Here’s a way to save on the cost of the cake for your wedding. If you plan to serve the cake at the reception, buy a sheet cake instead of a formal “wedding cake.” Those two words tend to drive up the price. If you want a cake “for show” and will be serving a different dessert at the reception, then order a small one or ask about the cost of having one or more layers being “fake.”
There are many ways that you can save money but still have a lovely wedding. With a little creativity, you can have a wonderful celebration and keep some green in your pocket.
Monday, 27 April 2009
The booklet is thorough and well researched, and is an excellent how-to guide for those who have been subject to family or domestic violence and is fearful that they have to leave Australia because their relationship has ended (and their partner has made threats to have them deported).
Sunday, 26 April 2009
Saturday, 25 April 2009
By contrast, substantiated findings have doubled from 24,732 in 1999-2000 (there was a problem with the Northern Territory statistics in 1998-1999) to 55,120 in 2007-2008.
A child may be the subject of more than one notification - in 2007-08, the 317,526 notifications recorded during the financial year concerned 195,387 children.
For more, click here.
Thursday, 23 April 2009
Inevitably, the DSM has often figured large in family law cases, where it is often unfortunately necessary for one or both parties to be assessed psychiatrically. Any psychiatrist undertaking that assessment relies on the Bible of that profession, the DSM.
The significance of the DSM cannot be overstated- through its prism psychiatrists are able to diagnose conditions, for example schizophrenia, or borderline personality disorder, so its statement of conditions as well as their symptoms can be critically important.
With this importance in mind, efforts to update the DSM to a fifth edition, or to use the jargon, DSM V, are of utmost importance, not only to psychiatrists but those affected by their assessments, including family law litigants. In a process that is taking years, and involves high powered committees, those who believe that they might gain from the new edition have been lobbying for inclusion or changes.
For example, some groups in favour of Parental Alienation Syndrome have lobbied to have it included in the DSM V and have it recognised as a syndrome. Others are equally keen to ensure that PAS remains where it is now, not recognised by the scientific community as a syndrome.
Currently, according to Psychiatric News, work is powering under way with a conference in New York, where vital questions have been asked such as:
First, what is a mental disorder? Is it symptoms? disease? functional disability? Should variants in behavior be considered disorders, and if so, how much variation?
Wednesday, 22 April 2009
Tuesday, 21 April 2009
The last time I saw something this powerful was a video from the Federal Government about children describing the same sort of stuff- but that lost a lot of power for me when I learnt that the kids were actors, and they were acting out scripts.
This one's real.
The Insight webpage is here. To watch online, click here (will load to a page from where you can choose which clips you want to watch).
The comments page was also compelling, especially one commentator whose parents split up when she was 4, and her mother's ongoing bitterness has affected her ever since.
Saturday, 18 April 2009
It's not surprising, is it? Financial independence is one of the necessities of life. Without it, we are stressed. Those who are stressed may lash out. They may engage in acts of crime, domestic violence and child abuse. My recollection from old stats was that those most likely to commit acts of murder were typically unemployed men, who were depressed about the fact that they were unemployed and therefore had little self-worth and no control over their lives.
Thursday, 16 April 2009
Wednesday, 15 April 2009
When the Agency refused to produce the documents, because it would be oppressive, Mr Ford took the Agency to the Administrative Appeals Tribunal, lost, and then appealed to the Federal Court. The CSA eventually found one document, but because it considered the whole process oppressive, sought not to release the document, resulting in the application to the AAT and later appeal to the Federal Court.
At the time of going to the AAT, Mr Ford:
was serving a term of imprisonment imposed after a trial in December 2005 in
which he had been found guilty in the County Court of Victoria of rape, threat
to kill, stalking, aggravated burglary, false imprisonment, intentionally
causing injury and threatening to inflict serious injury. He was sentenced to
eight years’ imprisonment and required to serve a minimum of five years before
becoming eligible for parole. Those facts are relevant only to the extent that
they bear upon the respondent’s reliance on them in contending for a particular
application of the statutory provisions in issue.
The Child Support Agency also successfully sought an order preventing Mr Ford making further FOI applications without leave of the Tribunal, on the basis that the application, under section 42B of the Freedom of Information Act was frivolous or vexatious, and was bound to fail.
This application was the 22nd time Mr Ford had made a FOI application to the CSA and the 18th time he had ended up in the AAT complaining that the CSA had not given him the document.
He was also unsuccessful there.
This is what he was after:
My request for access to documents is for all emails and any other
correspondence to, from, or between H (AKA Jenkins/ Epstein) and Shaun Epstein,
from or to any other person or entity, according to that which I may have access
under the Freedom of Information Act. This includes anything deleted or
recoverable and for the period 30 August 2005 to 30 November 2005
In correspondence, an officer of the respondent advised that
the request had been interpreted as “being for documents wherein you or your
circumstances are mentioned in any way, either explicitly or by reference”, to
which the applicant responded:
‘I concur with your interpretation of my
request, and add that it extends to documents that might be read in the context
of me or my circumstances, i.e. that which has relevance. The context includes
and is not limited to the criminal proceedings, relationships, the workplace,
civil debt proceedings, FOI matters and so on. Documents include emails, texted
documents or attachments to emails...The qualification of to from or between
also includes to or from any other person or institution, and does not restrict
the scope to Epstein and H.’
The AAT upheld the objection to release the one document, an apparently disparaging email of Mr Ford by Mr Epstein, on the basis that Mr Epstein feared for his safety from Mr Ford if Mr Ford were to get a copy.
The court refused that portion of the appeal.
The next issue was whether the FOI application was frivolous or vexatious. The court held that the conclusion by the AAT that it was, was supportable:
In the final analysis, the applicant repeatedly made applications under the FOI
Act in substantially similar terms and, when they were refused, applied to the
Tribunal for review of those refusals on much the same grounds. Significant
numbers of those applications were withdrawn before they were resolved. The
inference was therefore reasonably open that the applications had been made to
annoy or harass one or more of H, Epstein and the respondent’s FOI officer. Even
if, contrary to that inference, the tendency to annoy or harass had been
co-incidental, none of the relevant applications was capable of conferring a
practical benefit on the applicant. It was therefore open to the Tribunal, to
refuse, as it did, the application.
Helpfully, he states:
No single modality will be effective for everyone. There is a street saying:
"Different strokes for different folks." Those involved in providing treatment
ignore this at times and advocate their own method of treatment to the exclusion
of others. Unfortunately, this guides many individuals into therapies that are
inappropriate for them.
He goes on to say by using a variety of means, especially one targetted for that user, will increase the chances of effectiveness.
The pharmalogical approaches to treating use of mood altering drugs are:
• Production of adverse effects if illicit drug use continues
• Reduction of craving
• Treatment of coexisting psychological states
The non-pharmalogical approaches are:
• Brief interviews
• Psychotherapy (individual or group)
• Comprehensive outpatient therapy
• Employee assistance programs
• Sociocultural support (e.g., residency houses, self-help groups, spirituality)
Why do people take drugs? Professor Stimmel states:
At the risk of oversimplification, all drug use is related to the pleasure/pain
principle. Mood-altering drugs are taken either to promote pleasure or to
relieve pain. On an individual basis, factors promoting the initiation of drug
use may vary greatly between individuals. However, they must be addressed in
order to maximize the chances of success once drug use is discontinued.
Factors thought to play a role in the inappropriate use of mood altering drugs are:
• Genetic Predisposition
• Inadequate Parenting
• Peer Pressure/The Need to Fit In
• Inappropriate Role Models
• The Need to Feel Good
Which are the most addictive?
Professor Stimmel states:
While stimulants—which range from caffeine to nicotine to hardcore drugs
such as amphetamines and cocaine—cause very little physical dependency, the
psychological dependency and craving associated with cocaine and amphetamines
are considerable. Although it is not commonly realized that dependency on
caffeine can exist, it has been documented in literature. However, it is a
dependency that is not difficult to overcome and has rarely presented a problem
in a clinical setting. Tobacco is another issue; it is quite difficult for
individuals who have become dependent on cigarettes to stop smoking, with a
recidivism rate greater than those of illicit mood-altering substances,
including heroin and cocaine. Dependence upon cocaine is perhaps the greatest
stimulant dependency to overcome.
Writing in the latest Family Court Review, American researchers Robert Kelly [email] and Sarah Ramsey [email] have suggested that there is lack of systemic research about family reports, or as they are called in the US, child custody evaluations, and call for greater research.
Child custody evaluations need to be studied systemically as a human service
system. There is little research on the history, caseload dynamics, economics,
delivery systems, or impact of custody evaluations. This article identifies five
systems-level questions about custody evaluations and examines one, outcomes
assessment, in detail by developing seven outcome hypotheses. The article
concludes that such research could improve the practice and use of child custody
Given the extensive use of family reports, their comments are concerning:
Because of the absence of rigorous scientific studies assessing the accuracy and
impact of custody evaluations, it is not possible to determine whether custody
evaluations have no overall effect, significant overall negative effects,
significant overall positive effects, or some combination of positive and
negative effects. This is distressing in light of the fact that courts consider
the evaluations, often recognize evaluators as experts, and it is recommended
that forensic child custody evaluations be scientifically informed.
The researchers pose 7 unanswered hypotheses about the possible benefits of family reports (which they were unable to test, because of a lack of research):
1. Settlement. Upon completion of a custody evaluation and/or high-quality custody evaluation, parents will be more likely to reach a non-court-imposed settlement than if no custody evaluation is done and/or the custody evaluation is poorly done.
2. Quicker Trials. Disputed custody cases and/or high-conflict disputed custody cases that go to trial will be adjudicated more rapidly when a custody evaluation and/or high-quality custody evaluation is done relative to the cases in which no custody evaluation is done or the custody evaluation is of poor quality.
3. In cases that go to trial, judges will express higher levels of satisfaction with their decision-making process and their actual decisions both when they have a custody evaluation versus no custody evaluation and when the custody evaluation they have is high quality versus low quality. 4. When a custody evaluation, independent of quality, or a high-quality custody evaluation is part of the resolution process, whether there is a pretrial settlement or an adjudication, parents will be: (a) more likely to abide by the agreed-to or court-imposed parenting plan and (b) less likely to engage in subsequent parental conflict and litigation.
5. On average parents will be more satisfied with the parenting arrangements that emerge in disputed custody cases when a custody evaluation, or a well-done custody evaluation, has been done than when there is no custody evaluation or the custody evaluation is poorly done.
6. Children in custody arrangements subsequent to a custody dispute for which a custody evaluation or a well-done custody evaluation was produced are likely to score better on child well-being measures than children from custody-disputed cases in which no custody evaluation was produced or the custody evaluation produced was of poor quality.
7. As custody evaluation institutionalization increases, court efficiency and effectiveness in disputed custody cases will be significantly affected.
Coming across this research has made me focus on some of the domestic violence cases I have had over the years where sleep deprivation was a major issue. Typically, this involved a heterosexual relationship where the man was the perpetrator, and who engaged in more and more extreme domestic violence.
When even this didn't work, he would turn to remove that one sanctity we all have- the ability to put our head on the pillow and crash. He would use sleep deprivation- you know the type- turning the house into its own little gulag- waking everyone at 1, 2 or 3am with screaming, yelling and aggression. Sometimes it would be directed at one of the children, necessitating the involvement of the mother. On other occasions it would be directed at the mother, which meant the kids got dragged into it come what may.
Here is the summary of the research:
This paper argues that sleep disruption is both a strategy and an effect of violence and abuse which profoundly affects the lives of women and children. This paper traces the interconnections between the patterns of sleeping (not sleeping) for women and children living with and recovering from the effects of violence and abuse. It highlights the threat to the emotional and physical well-being of children and women and provides a non-pathologizing route into an exploration of one of the symptoms of trauma. It is based on a pilot study which interviewed 17 women, 14 of whom were mothers to 28 children. Mothers reported that many of their children experienced nightmares, bed-wetting, night panics and disrupted sleep patterns. Recovery of the ability to sleep was often slow and uneven with interactive effects between women and children slowing progress.
For more, click here.
Tuesday, 14 April 2009
This is yet another reminder that there are basically two types of schemes, defined benefit and accumulation, and the risks and benefits with each is different.
Defined benefit schemes
A defined benefit scheme is where the money in the scheme ( or in the Commonwealth Government's case, the lack of money in the scheme) belongs to the trustee.
[On this note, I mention the Future Fund. The only reason for its existence is to meet future superannuation liabilities for Commonwealth public servants, and therefore try to be less of a burden on taxpayers in the future.]
The member of the scheme is paid a benefit on retirement based on a formula (hence the term "defined benefit") which is usually based on such things as number of years of service, position, earnings etc. Some formulae are quite simple, but others, such as Comsuper are remarkably complex.
The significance of defined benefit schemes for companies is that the trustee wears the risk. Occasionally, if the scheme makes a lot of money, then the trust deed might provide that the surplus is paid back to the company, as happened with Westpac some years ago, and not to members. However, if things go awry, then the trustee (meaning the employer) has to stump up the cash.
Defined benefit schemes can be complex, difficult to value, in the family law context at times not able to be split, but often worth more to a member than an accumulation fund, because the risk is always with the trustee.
Typically, defined benefit schemes were the first type of scheme. Therefore they are often quite well endowed, due to historical earnings.
Because of the risk issue, employers including governments have tried to cap new memberships in the defined benefit schemes, eg the Queensland Government scheme Qsuper, and tried to encourage members to leave for accumulation schemes, even with sizeable incentives to members- eg Telstra some years ago.
These now reportedly represent 90% of memberships. Essentially they are like bank accounts. Provided the returns are there, then with the accumulation of deposits, with compound interest, they grow.
The risk is wholly that of the members.
The prosecution of intimate partner violence is thought to be infrequent, as is the rate at which those prosecutions result in a criminal conviction. The lack of prosecutorial and court response to intimate partner violence is considered one of the inadequacies of the justice system, an indicator of society's inattentiveness to violence against women, and another reason to question the criminal justice system's ability to successfully address violence between intimate partners.
The review of 135 English language studies lead researchers Joel Garner from the Joint Centers for Justice Studies and Christopher Maxwell from Michigan State University to challenge the widely accepted notion that prosecution and conviction for this offence are infrequent. There is great variability in the reported rates of prosecution and conviction for intimate partner violence. These studies report that, on average, about one third of the reported offenses and more than three fifths of arrests result in the filing of charges; more than half of all prosecutions result in a criminal conviction.
For the abstract, click here.
Monday, 13 April 2009
In terms of parental practices, verbal (and not corporal) punishment in the last 6 months significantly predicted aggression toward fathers. A childhood life-course of violence is likely to culminate in aggression toward fathers during adolescence. Beyond this risk, it seems that harsh verbal punishment by parents builds up the odds of child-directed aggression against fathers.
For an abstract, click here.
Sunday, 12 April 2009
What is telling about this case is that when dealing with overseas authorities, sometimes it is necessary to take things into your own hands. One now retired Brisbane private eye made it a career decision to go overseas and abduct back children who had previously been snatched from Australia. This sometimes involved hair-raising adventures, just demonstrating that at times there can be real danger in such an approach.
The new report Violence against Women in Melanesia and East Timor sponsored by among others the Federal Government, assesses programs that successfully tackle violence in their communities, and lays out best practices to tackle violence in a sustainable and scalable way.
It also highlights three key approaches to reducing violence against women:
(1) increase women's access to justice,
(2) increase women's access to support services and
(3) prevent violence through awareness of gender inequality.
Source: International Center for Research on Women
Saturday, 11 April 2009
Despite all that lawyers have been taught about plain language, all this has been lost on the framers of this legislation. I won't bore you with buckets of drafting, but just give you a snippet.
Recently I have had to look at sections 111 and 112 of the Child Support(Assessment) Act. I set them out in total:
CHILD SUPPORT (ASSESSMENT) ACT 1989 - SECT 111 Application for amendment of administrative assessment that is more than 18 months old
Parent or carer applications
(1) A liable parent, or a carer entitled to child support, (the applicant ) may apply to a court having jurisdiction under this Act for leave for:
(a) the Registrar to make a determination under section 98S; or
(b) the court to make an order under section 118;
in respect of a day in a child support period, being a day that is more than 18 months, and less than 7 years, earlier than the day on which the application under this section is made.
(2) Subject to section 145 (Registrar may intervene in proceedings), the parties to the proceeding under subsection (1) are:
(a) the applicant; and
(i) the liable parent; or
(ii) the carer entitled to child support.
(3) The Registrar (the applicant ) may apply to a court having jurisdiction under this Act for leave for the Registrar to make a determination under section 98S in respect of a day in a child support period, being a day that is more than 18 months, and less than 7 years, earlier than the day on which the application under this section is made.
(4) The parties to the proceeding under subsection (3) are:
(a) the applicant; and
(b) the liable parent; and
(c) the carer entitled to child support.
CHILD SUPPORT (ASSESSMENT) ACT 1989 - SECT 112 Court may grant leave to amend administrative assessment that is more than 18 months old
(1) If an application is made to a court under section 111, the court may grant leave for:
(a) the Registrar to make a determination under section 98S; or
(b) the court to make an order under section 118.
(2) The court may grant leave for an order to be made under section 118 if the court is satisfied that it would be in the interest of the parties to the proceeding for the court to consider, at the same time as it hears the application under section 111, whether an order should be made under section 118. If the court does so, the applicant is taken to have made an application to the court under section 116 for such an order.
(3) Otherwise, the court may grant leave for the Registrar to make a determination under section 98S.
(3A) To avoid doubt, the court may grant leave for the Registrar to make a determination under section 98S, or for the court to make an order under section 118, irrespective of what the applicant applied for under section 111.
Matters to be considered
(4) In considering whether to grant leave under subsection (1), the court must have regard to:
(a) any responsibility, and reason, for the delay in:
(i) making an application under section 98B or 116; or
(ii) making a determination under section 98S;
as the case requires; and
(b) the hardship to the applicant (other than the Registrar) if leave is not granted; and
(c) the hardship to the other party or parties (other than the Registrar) if leave is granted.
(5) The court may have regard to any other relevant matter.
Orders granting leave to specify period
(6) An order granting leave under this section must specify the period in respect of which the Registrar may make a determination or the court may make an order.
(7) The period specified under subsection (6):
(a) must not include a day in a child support period if the day is more than 7 years earlier than the day on which the application under section 111 was made; and
(b) is not limited by the terms of that application.
No requirement to make determination or order
(8) The granting of leave under subsection (1) does not imply that:
(a) the Registrar is required to make a determination under section 98S; or
(b) the court is required to make an order under section 118.
CSA General Manager, Matt Miller, "More parents are working together for the benefit of their children.,"
"Independent research conducted by the Open Mind Research Group in August 2008 showed that only 17 per cent of receiving parents and 14 per cent of paying parents surveyed said they were extremely unlikely to be able to liaise with their ex-partner in a businesslike way.
"This is significantly fewer compared to the previous wave of research conducted in early 2008 (37 per cent receiving parents and 31 per cent paying parents)." So while more separated parents are working together, they can still experience a range of emotions like grief, loss and depression when they separate and their children may be suffering too.
There are about 445,000 teenagers whose parents are registered with the CSA, with an additional 11,000 teenagers affected by family separation in Australia every year.
Kids Helpline General Manager, Wendy Protheroe, said the most common issue children call to talk about is family relationships, particularly conflict and separation."Last year we undertook almost 9,000 counselling sessions about family relationships and almost three-quarters of those related to frequent or major family conflict and family breakdown, separation or divorce," Ms Protheroe said.
"Many parents don't realise that even minor conflict can be harmful for their children, so it's important for families to be aware of the range of support services available."
Mr Miller said family separation is a common experience in Australia, and it was important for parents to put the wellbeing of their children first."I encourage separated parents to learn about the many resources available to not only help them, but also to help their kids," Mr Miller said.
Mr Miller said the booklet 'Family Separation - a guide for teens' offers great advice for teens about how to cope with their changing situation and contains a list of contacts they can approach for support. The information is also available at http://www.youth.csa.gov.au/
The booklet and website were developed in consultation with more than 20 stakeholders and community organisations including Kids Helpline, beyondblue and Relationships Australia."The guide helps teenagers to identify their rights and it contains a list of contacts that teens can approach for help," Mr Miller said.
"We encourage those who feel they need support to ask for it them to reach out to friends and professionals if they need to." One parent who was involved in the research of the booklet said it was something that would help parents address questions they didn't know their children had.
"Everyone says kids cope, that they just adapt, and they do, but there's a lot left unspoken."The CSA is also in the process of developing products specifically for children aged under 12 who are experiencing family separation, addressing common issues like grief, anxiety and dealing with conflict.Kids Helpline, Australia's only national children's counselling service, provides 24 hour counselling services to young people aged 5 to 25 years - free call 1800 55 1800 or online at http://www.kidshelp.com.au/
"When parents separate, young people often say they feel isolated so it's important that they know they're not alone, and that there are people they can talk to," Mr Miller said.Order CSA publications on 1800 040 972 or at http://www.csa.gov.au/
Edited media release from Child Support Agency
Friday, 10 April 2009
Unfortunately, life is not so simple, and the reality is that some women are violent to their men, and unfortunately in some gay and lesbian relationships domestic violence exists too.
I mention this because of some research from Hong Kong I stumbled across. Researchers went to 7 hospitals and interviewed over 3000 pregnant women. About 9% reported having been abused by their partners in the preceding year.
In-law conflict was the characteristic most significantly associated with preceding-year abuse against pregnant women, after controlling for covariates. Findings underscore the need to obtain information on in-law conflict as a risk factor for interpersonal violence. In-law conflict should be included in the assessment of risk for interpersonal violence. For the prevention of interpersonal violence, family-based intervention is needed to work with victims as well as in-laws.
This research backs up some stories that I have been told by female Asian/Australian clients- that they were assaulted:
- by their husbands for allegedly showing "disrespect" to his parents, typically his mother;
- or assaulted by their mother-in law for showing her "disrespect" which caused a loss of face.
For an abstract of the research, click here.
Wednesday, 8 April 2009
No doubt good stuff- but where were these principles? Nowhere to be seen.
I then wrote to the court's media officer. Here is the substantive response, which I have just received:
I apologise for raising expectations via the media release on the
FVBPP - the purpose was to tell parties and practitioners that, in addition to
the programs and processes they might utilise when violence is alleged,there was
activity 'behind the scenes' as well to address violence.
The release clearly begged the question because I have had numerous
requests for copies of the FVBPP or questions why they can't be found on
the website.However, the FVBPP are for the guidance of the judges and as present
they are not available to a wider audience.
The courts pride themselves on transparency. When judges make decisions in which their reasons are not completely transparent, they are rightly criticised on appeal.
For the sake of transparency, the court ought to release the principles for public scrutiny. If US courts can do so, there ought to be no reason that the Family Court cannot do so. When the Family Court published its family violence policy, it did so in the public eye, after much public consultation.
The claim is alleged to have arisen in part when her shares were sold at the time of the collapse in ABC's shareprice. Dr Groves asserts that the sales were without her permission.
It is very rare for cases of this kind to appear in the public eye. There are four notable features about this claim:
- unlike most property claims against a former spouse, it's not in the Family Court or the Federal Magistrates Court. This dispute is therefore not dealt with in secret because of s.121 of the Family Law Act, but very much in the public eye. It is rare for a claim to be brought between ex-spouses other than under the Family Law Act because of the real possibility that there may be an adjustment in any case afterwards under s.79 of the Family Law Act.
- because it's in the Supreme Court presumably the basis of the claim is under common law or some statute, and not under s.79 of the Family Law Act. This case illustrates s.119 of the Family Law Act- husbands and wives can sue each other in contract or tort and are not limited to claims under the Family Law Act.
- the size of the claim. It's for big bikkies.
- the number of parties. In reality because it is a commercial dispute involving a number of banks, the most appropriate jurisdiction would be a court that handles commercial disputes as its daily bread and butter- such as the Supreme Court, which is where the dispute is being handled, rather than a court that specialises in family (not primarily commercial) disputes, such as the Family Court.
Sunday, 5 April 2009
This is the question asked by Jodie and Marcus Hucker, amongst others, who discovered after the event that according to the NSW Government that their marriage was a sham - because they could not produce a marriage certificate.
And why couldn't they? Because a marriage certificate never issued. The minister who wed them was blind- although he says apparently that he sent the paperwork to the Registrar of Births, Deaths and Marriages and it was either presumably lost in the mail or lost by the Registry.
The church's record of marriages had also gone missing.
Their problem came to a head when a passport had to be renewed, and they found themselves sending the wedding video to the Passports Office to try and show that they were married.
It seems that their marriage is now recognised, without the certificate, and they are now seeking compensation for all the grief that has happened because their marriage was not recognised.
Marriage certificates are relied upon as proof that someone has married. The thought goes therefore that - no marriage certificate, no marriage.
Despite reliance on a marriage certificate, a certificate is not required for someone to marry. If the bride and groom have gone through the ceremony with all the formalities required, and the preacher is then struck by lightning before the certificate is signed- it's still a valid marriage. Having a certificate, as seen in the case of Jodie and Marcus Hucker, however makes it easy to prove that someone is married.
The answer is contained in sections 73, 50 and 80 of the Marriage Act (excuse the wording):
A marriage solemnized under this Part, being a marriage which, if it had been solemnized in Australia in accordance with Division 2 of Part IV would have been a valid marriage, is valid throughout Australia and the external Territories.
In other words- do the formal bits and even without a certificate the marriage is at that stage valid.
section 50(2) (with emphasis):
(2) Immediately after the solemnization of the marriage, the authorized celebrant, each of the parties to the marriage and 2 witnesses of the marriage who are, or appear to the authorized celebrant to be, over the age of 18 years shall sign each of the certificates so prepared.
Section 80(2) (with emphasis):
(2) Immediately after the solemnization of the marriage:
(a) the chaplain; and
(b) each of the parties to the marriage; and
(c) 2 witnesses of the marriage who are, or appear to the chaplain to be, over the age of 18 years;
shall sign each of the certificates so prepared.
Sections 50(5)and (6) and 80(5) and (6) allow for what might happen if the celebrant or preacher dies before signing the certificate:
(5) Where the authorized celebrant dies without having prepared and signed the certificates of the marriage, or where by reason of other special circumstances the Minister thinks it necessary to do so, the Minister [ ie federal politician] may, if satisfied that the marriage was duly solemnized, prepare and sign the certificates with such modifications as are appropriate.
(6) A certificate prepared and signed by the Minister under subsection (5) has the same force and effect as if it had been prepared and signed, in accordance with this section, by the authorized celebrant.
(5) Where the chaplain dies without having prepared and signed the certificates of the marriage, or where by reason of other special circumstances the Minister [ ie federal politician] thinks it necessary to do so, the Minister may, if satisfied that the marriage was duly solemnized, prepare and sign the certificates with such modifications as are appropriate.
(6) A certificate prepared and signed by the Minister under subsection (5) has the same force and effect as if it had been prepared and signed, in accordance with this section, by the chaplain.
Friday, 3 April 2009
In Myerson v Myerson, the husband was and is a fund manager in London. At the time of orders being made in March 2008 as to property settlement, the wife would retain GBP11 million (43%) and the husband would retain GBP14.5 million (57%). The husband had to pay the wife GBP11 million, GBP1.5 million coming from the transfer of a home, and the balance in cash, presumably funded from his shares.
At the time of the making of the orders, the husband's shares were worth just over GBP15 million, at GBP2.99 per share.
The value of the shares then crashed. The husband, feeling squeezed, applied to the court to set aside the orders. His counsel noted that the shares were now worth less than 10% of their former value, last trading at 27.5 pence per share; and that as a result the division between the parties was no longer 57/43 in the husband's favour but 14% to the husband and 86% to the wife.
The Court of Appeal rejected the husband's argument, in part saying:
The order was not imposed but was the product of the will of the parties. The
husband, with all knowledge both public and private, agreed to an asset division
which left him captain of the ship certain to keep for himself whatever profits
or gains his enterprise and experience would achieve in the years
...When [his counsel] was asked what would be the
husband's target if the appeal were allowed, he replied that the husband would
probably seek the repayment of all or part of the first instalment of the lump
sum in exchange for transferring to the wife an unspecified number of his
shares.... That response casts a clear light on the merits of this appeal. When
a businessman takes a speculative position in compromising his wife's claims,
why should the court subsequently relieve him of the consequences of his
speculation by re-writing the bargain at his behest?
The Financial Times reported that:
Family lawyers said the case would head off a deluge of similar applications
from recently divorced bankers and traders who had been hit hard by the economic
Upshot? The husband still has to pay the wife GBP9.5 million. One can only wonder if this were a Pyrrhic victory on her part. If he hasn't got the money, he hasn't got it. Although presented by the court as his problem alone, because it is a judgment debt that has to be paid, in reality it is both their problem, and some commercial commonsense might be needed.
Setting aside orders in Australia
In Australia, the basis of setting aside property orders is under section 79A of the Family Law Act, which provides, relevantly:
(1) Where, on application by a person affected by an order made
by a court
under section 79
in property settlement
proceedings, the court
is satisfied that:
(a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or
(b) in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or
(c) a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or
(d) in the circumstances that have arisen since the making of the order,
being circumstances of an exceptional nature relating to the care, welfare and
development of a child of the marriage, the child or, where the applicant
has caring responsibility for the child (as defined in subsection (1AA)), the applicant,
will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order; or
(e) a proceeds of crime order has been made covering property of the parties to the marriage or either of them, or a proceeds of crime order has been made
against a party to the marriage;
(1A) A court may, on application by a person affected by an order made
by a court under section 79 in property settlement proceedings, and with the consent of all the parties to the proceedings in which the order was made, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
Miscarriage of justice
The Family Court has made plain for the last 30 years that the miscarriage of justice must have occurred at or before the date of making the order. A husband in the same circumstances as Mr Myerson would not be able to rely on this ground.
The other factor that must be considered is that even if the ground is made out, whether the earlier order is set aside is always at the discretion of the court. I recall a case I had some years ago where there was a clear basis for setting aside the court orders. The husband applied to set them aside. The problem for the husband was that if he succeeded in the application, on his own application my client, the wife, would have to be paid more. My client did not want to be paid more, just what she was entitled to under the existing orders. The court did not set aside the orders.
Impracticable to carry out the orders
Eleven years ago, the Family Court said that the test in circumstances where the husband's financial position had deteriorated after the property settlement orders had been made was:
- It is not enough that circumstances have arisen since the order was made which make it unjust for the order or part of the order to be carried out; the onus is upon the applicant to establish to the reasonable satisfaction of the Court, that in the circumstances that have arisen... it is impracticable for the order or part of the order to be carried out.
- The word `impracticable' means, gleaning a definition from the Shorter Oxford Dictionary, `not practicable'; `that cannot be carried out or done'; `practicably impossible'; `unmanageable'; `intractable'.'
Therefore it is possible for someone like Mr Myerson in Australia to succeed, where in England he failed to set aside the orders, if he can show that it is impracticable to carry out the payment to the wife.Act of default
Someone like Mr Myerson could not come to the Family or Federal Magistrates Courts and say: "I've defaulted, please change the orders." He would have a heavy onus of proof to show why the order might need to be varied or set aside.
It is possible that a man in the position of Mr Myerson might be successful on this basis in Australia.