Tuesday, 30 June 2009
Monday, 29 June 2009
The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:
- the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;
- a person who has obtained a judgment is entitled to the benefit of that judgment;
- a person who has obtained a judgment is entitled to presume the judgment is correct;
the mere filing of an appeal is insufficient to grant a stay;
- the bona fides of the applicant;
- a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;
- a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;
- some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;
- the desirability of limiting the frequency of any change in a child’s living arrangements;
- the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time;
- the best interests of the child the subject of the proceedings are a significant consideration.
The mother unsuccessfully appealed from a decision of Federal Magistrate Wilson, whose orders about a 3 year old daughter provided that the parents share equal parental responsibility for all major long term issues affecting the welfare of the child and that the father spend time with B in a fortnightly cycle, two nights in one week and three nights in the other until she commenced school, when she would spend two nights with him in one week and four nights in the other. The last order provided:
That the mother be restrained from relocating the residence of the child [in Brisbane] to [the Sunshine Coast], or to a distance greater than 20 kms from the father’s current residential address, without the written consent of the father, or an order of the court first obtained.
The mother wanted to move to the Sunshine Coast for the better lifestyle, because of her relationship with a Mr G, and because her elderly mother lived there.
Lack of evidence
It was stated either by Wilson FM or the appeal court about the lack of evidence, which demonstrates that the matter should have been more thoroughly prepared for trial:
- There was no evidence that [Mr G] was able, or willing, to financially support the mother and her two children.
- Although the mother said that her employer was supportive of her wish to move, there was no evidence that the mother could obtain suitable employment at the Sunshine Coast. The mother has been with her employer for five years. Her employer apparently has regional offices at Caboolture and North Brisbane’s Bayside area. The mother says she has discussed the move with her employer and has been informed that it would support her in her move. She has been informed that staff with her level of experience are in demand in the company’s northern offices. Curiously, no evidence was called from the mother’s employer. That is a telling omission. Even if the mother could secure employment at one of the other offices of her current employer it seems that considerable travel would be involved.
- There was no evidence “from the maternal grandmother as to her availability or willingness to assist” the mother with the care of the child, especially as the grandmother would be living 45 minutes drive away from where the mother proposed to live.
- There was no evidence led by the mother that if she were not permitted to relocate with the child, her parenting skills and abilities would be adversely affected.
- There were no submissions seeking to demonstrate that, because of the primary attachment between mother and child, all other factors, including the relationship between father and child, were overwhelmed to the extent that relocation should be permitted.
- There was no development of the contention of the importance of the relationship between the child and her half-brother by way of argument about the comparative importance of that factor and other factors.
- Although it was suggested that the father could easily move to the Sunshine Coast and obtain employment there, the mother offered no evidence on that point. In fact the evidence of the father was that his work was primarily in Brisbane and that his partner's work was primarily on the Gold Coast.
Friendly Parent Concept
Wilson FM stated:
Further, in her affidavit evidence, the mother said:
“If I am not able to move, I would find it very difficult to accept and believe it may damage my relationship with [Mr Lander] further as I believe I will find it difficult not to hold [Mr Lander] responsible.”...
In my consideration, the desire of the mother to relocate demonstrates a certain unwillingness of the mother to facilitate and encourage a close and continuing relationship between the father and his daughter. The mother was dismissive of the father’s objections to her relocation. ...
The mother’s proposal would see the father spend alternate weekends with his daughter. Although more time could be fashioned in orders leading up to [B] commencing her formal education, the effect of the mother relocating would be to eventually to revert to alternate weekend and school holiday time. In my view, that is not in [B]’s best interests.
If the mother relocates, it will effect a change in [B]’s circumstances. The effect of her separation from her father, and paternal grandmother, will affect the meaningfulness of their relationship. Whilst I accept that a meaningful relationship does not necessarily equate to the amount of time involved, or the frequency of contact, in the case of a young child like [B], where the relationship with both parents is being nurtured, these are important factors.
If the mother relocates to [the Sunshine Coast], that will impose practical difficulty and expense on the continuation of the relationship between [B] and her father.
As the Full Court went on to say, the difficulty may not arise now, but may arise when the child would go to school and how a shared or significant arrangement could work with all the travel involved.
Sunday, 28 June 2009
Click here for the original article.
In Michael Gdowski v Diana Gdowski[PDF], Michael, aged 83, sought a protection order against his daughter Diana, aged 56.
At trial, the trial judge did not know who to believe as it was one person's word against the other.
What tipped it over the edge, however, was the conduct of Diana's trial counsel:
“The Court: . . . What I have here, is simply a rather close call. It’s
one person’s word against the other. The court has observed carefully the demeanor of
this process. Frankly, the court is affected by the manner in which [Michael] was
examined, and that [Diana] allowed that to happen.
“[Counsel for Diana], I assume that your rather aggressive and
confrontational cross-examination of [Michael] was consistent with your client’s desire to
treat her father in such a fashion.
“[Diana’s counsel]: That is an unfair characterization.
“The Court: I’m speaking, counsel. I’m the one that sat and watched you
beat up on this fellow. And speak to him in such a way.
“There is a problem here. It’s an elderly man that is having difficulty. His
wife is disabled, and in need of a conservatorship. He has concern about her. He has
come to this court to ask for relief.
“What he has got in response is an allegation that he is a bad person, and in
some fashion that he is out for some evil motive and that he does not have the best
interest of his wife.
“The examination of him I think was abusive to him. We’re in a court of
families that go through these difficult times. And they need to be treated with respect.
“And I compared that to how [Michael’s counsel] cross examined [Diana].
With respect, without raising his voice, without being confrontational.
“This is a family in trouble. It’s not a war we’re fighting . . . in this
courtroom. This is a family. The court observed that happening and your client didn’t
tap you on the shoulder and say to you this is my father you are speaking to. That was
the straw that made the difference in tipping the scale as to whether or not [Michael] has
been treated in an abusive way."
Diana appealed against the making of the protection order against her, on the basis that a client is not in control of their counsel at trial. The court noted that counsel, rather than clients, are responsible for the conduct of examination. “To require a client to correct his or her counsel’s behavior during the examination of a witness in order to avoid inferences as to the client’s prior actions outside the courtroom would go against all these accepted principles of the attorney‑client relationship.”
Diana was successful in the appeal, and the matter was remitted for further hearing.
Thank you to Family Law Prof Blog for highlighting this case.
The 4 steps are quite simple conceptually, and form the basis for property orders under the Family Law Act (and in Queensland for de facto couples under the Property Law Act).
Here I must digress. The Family Law Act applies to proeprty settlements for married couples. It also applies to de facto couples if:
- one or both of them are outside South Australia or Western Australia
- they separated on or after 1 March, 2009, or have both consented to the Family Law Act applying to them.
Now on with the show. Here are the four steps:
Step 1: Identify and Value the Property Pool
This is pretty simple. If you're going to slice up the cake, how big is it and who owns what? Usually if this element can be sorted out, then it is easier to settle. This is the one where there are usually logjams to settlement: people either dispute that they own something (or owe something), or more commonly there is a dispute about value.
Step 2: Assess the Financial and Non-financial Contributions
What have each of the parties brought to the relationship? Did one of them work and the other care for the children? Were there any windfall gains? Were there any initial contributions? Have there been any post-separation contributions? There are many factors that may need to be weighed up and balanced, if necessary by the court.
Step 3: Consider future factors
This is a requirement of section 75(2) of the Family Law Act. Essentially, the court looks to see if there needs to be provision for future factors. In a traditional marriage, for example, where the husband works and the wife stays at home and cares for the children, there might be an adjustment in favour of the wife in light of her lesser earning capacity and the ongoing care of the children.
Section 75(2) [and similarly section 90SF(3) for de facto couples] contains the following list of factors:
(a) the age and state of health of each of the parties;
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
(e) the responsibilities of either party to support any other person;
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party;
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant;
(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation;
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii);
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage;
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
Step 4: Come up with a fair result
The legislation requires the court to come up with a fair result, or in the words of the Family Law Act, a "just and equitable" result.
The English Court of Appeal held that she was stuck with the order.
The principles for setting aside a property order in Australia are different to those in England, but the result in Walkden would also be the result in Australia on those facts.
To set aside an order made under the Family Law Act, one must turn to section 79A of the Family Law Act.
Here I will digress briefly. Section 79A applies only to married couples. Property provisions of the Family Law Act apply to de facto couples but only:
- if one or both of them are within any State or Territory other than Western Australia or South Australia
- if they separated on or after 1 March 2009, or both consented to the Family law Act applying to them.
If they meet these technical requirements, then section 90SN applies to them. It has similar provisions to section 79A.
Except for consent arrangements, section 79A has a two step approach:
- Is there a ground available to set aside or vary the order?
- Should the court then exercise its discretion to set aside or vary the order?
The six grounds for setting aside property orders under the Family Law Act are:
- By consent: s.79A(1A)
- 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: s.79A(1)(a)
- 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: s.79A(1)(b)
- 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: s.79A(1)(c)
- 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: s.79A(1)(d)
- 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:s.79A(1)(e)
The Full Court of the Family Court has made plain, time and time again, since the decision in Molier and Van Wyk (1980) that the miscarriage of justice, for example a change in property values, is at or before the time of the making of the orders, not afterwards:
"This Court ... considers that s 79A is intended to apply only to
circumstances occurring before or at the time of the making of the order. The
term 'miscarriage of justice' does not seem apt to apply to matters which arise
after the order has been made."
Friday, 26 June 2009
Thursday, 25 June 2009
Mr Austin will take up his appointment to the Family Court in July 2009. Mr Austin holds a Bachelor of Laws and a Bachelor of Jurisprudence from the University of New South Wales and was admitted to the Supreme Court of NSW in 1984 and the High Court of Australia in 1988. Mr Austin was admitted as a barrister in 1997. Prior to this he was an Arbitrator for the Local Court of NSW (1995-2003) and a partner at Burgess Austin Solicitors (1989-1997).
Mr Austin has engaged in continuous work as a litigation lawyer for 24 years in both civil and criminal litigation. In civil proceedings he has acted for both plaintiff and defendant in litigation involving family law, industrial law, employment law, equity, building cases, commercial and common law causes.
In criminal law Mr Austin has acted for both prosecution and defence in jury trials, sentence hearings and appeals before the Supreme, District and Local Courts. Mr Austin’s appointment is the first for the Family Court made under the Government’s new transparent process for judicial appointments. The Government is pleased with the quality of expressions of interest and nominations for the position from that process.
Source: Ministerial Media Release
Tuesday, 23 June 2009
The two key provisions of the Bill are:
- a new s.255A of the Property Law Act, which would provide:
255A Relationship of this part with the Family Law Act in
relation to particular financial matters
‘(1) The State, by the Commonwealth Powers (De Facto
Relationships) Act 2003, referred the following matters (to the
extent that they are not otherwise included in the legislative
powers of the Parliament of the Commonwealth) to the
Parliament of the Commonwealth—
(a) financial matters relating to de facto partners arising out
of the breakdown (other than by reason of death) of de
facto relationships between persons of different sexes;
(b) financial matters relating to de facto partners arising out
of the breakdown (other than by reason of death) of de
facto relationships between persons of the same sex.
‘(2) Consequently, this part does not apply in relation to financial
matters relating to de facto partners arising out of the
breakdown of their de facto relationship if the Commonwealth
Act applies in relation to the matters.
In most cases de facto partners seeking resolution of financial matters
arising out of the breakdown of their relationship should now proceed
under the Commonwealth Act.
‘(3) However, this part continues to apply in relation to financial
matters relating to de facto partners if the Commonwealth Act
does not apply.
1 The Commonwealth Act, section 90SK provides that particular
requirements must be satisfied before a court may make a
declaration under section 90SL of that Act. If, in the particular
circumstances of a case, those requirements are not satisfied, this
part may apply.
2 This part applies to de facto relationships that break down after 21
December 1999 and before the commencement of the Family Law
Amendment (De Facto Financial Matters and Other Measures) Act
2008 (Cwlth) (the Commonwealth amending Act) on 1 March
2009. However, section 86A of the Commonwealth amending Act
provides that de facto partners whose relationship broke down
before the commencement of that amending Act may choose to
agree to the application of particular provisions of the
Commonwealth Act to the de facto relationship in particular
- amendment of the Duties Act so that duty does not apply to orders or binding financial agreements covering de facto partners under the Family Law Act. Of course, although the changes occurred on 1 March 2009 to the Family Law Act, the proposed changes to teh Duties Act have not yet taken place, because the Bill has not been passed.
The explanatory notes provide, relevantly:
Objectives of the Bill
The objectives of this Bill are to:
• amend the Property Law Act 1974 (PLA) to clarify the relationship
and operation of Part 19 of the PLA with the Family Law Act 1975
(FLA), following the Commonwealth Parliament’s acceptance of the
referral of power from the Queensland Parliament for financial
matters arising from the breakdown of de facto relationships; and
• amend the Duties Act 2001 (DA) to clarify the relationship and
operation of the DA with the FLA, following the Commonwealth
Parliament’s acceptance of the referral of power from the Queensland
Parliament for financial matters arising from the breakdown of de
Reasons for the objectives of the Bill and how they will be
Up until 1 March 2009, de facto couples who separated in Queensland had
to access two different jurisdictions to have disputes resolved. Disputes
about the division of property were dealt with in Queensland courts under
Part 19 of the PLA and disputes about children were dealt with in Federal
family law courts under the FLA. In addition, separating de facto couples
in Queensland, did not have the opportunity to seek spousal (as contrasted
to parental) maintenance, seek orders to divide superannuation or access
the counselling and mediation services supporting the Federal family law
In 2003, the Queensland Parliament passed the Commonwealth Powers (De
Facto Relationships) Act 2003 (the Referral Act). The Referral Act refers
to the Commonwealth the power about financial matters arising from the
break down of de facto relationships. The Referral Act commenced on 24
The Commonwealth Government has accepted the referrals of power from
all States (except Western Australia and South Australia who have not yet
referred powers to the Commonwealth) for financial matters arising from
the breakdown of a de facto relationship. The Family Law Amendment (De
Facto Financial Matters and Other Measures) Bill 2008 (the De Facto
Property Bill) amended the FLA to take up this referral of power. The De
Facto Property Bill was passed by both Houses of the Commonwealth
Parliament on 10 November 2008. The amendments in the De Facto
Property Bill commenced on 1 March 2009.
The key effect of the Commonwealth taking up the referral from
Queensland is that from 1 March 2009, the Queensland legislation relating
to financial matters arising from a de facto relationship breakdown (most of
Part 19 of the PLA) will be excluded from operation. De facto partners
whose relationship breaks down after 1 March 2009 must apply for a
property division under the FLA and can no longer apply under the PLA.
The significant advantages of the Commonwealth taking up the referral
from Queensland are:
(a) the provision of a predominantly nationally consistent financial
settlement regime, to minimise jurisdictional disputes and
uncertainties that sometimes impede settlement of these matters
under State and Territory law;
(b) the Federal family law courts have experience in relationship
matters and have procedures and dispute resolution mechanisms
more suited to handling family litigation;
(c) the relevant Federal family law courts will hear both financial
and child-related matters arising between separated de facto
couples together; and
(d) the relevant Federal family law courts may make orders relating
to superannuation splitting, orders relating to the maintenance of
a party, orders about the bankruptcy of a party and orders binding
third parties in related proceedings.
The new provisions in the FLA will cover the field in relation to financial
matters following a de facto relationship breakdown, so that most of the
provisions in the PLA will not apply to de facto relationships. However,
there are some provisions that will continue to apply and these include:
(a) the operation of Part 19 to de facto relationships that broke down
prior to 1 March 2009 (except where the couple have chosen to
opt into the FLA);
(b) cohabitation agreements defined under section 264 of the PLA
that do not refer to financial matters following a relationship
(c) declarations under section 280 or Division 5 of Part 19 of the
PLA that are not made for the purposes of the resolution of
financial matters following a relationship breakdown; and
(d) the operation of Part 19 to those de facto relationships that broke
down in a State that has not referred the power for financial
matters following a de facto relationship breakdown to the
Commonwealth and the geographical requirements in the FLA
do not allow an application to be made under the FLA. An
application may still be made under Part 19 of the PLA.
The Bill amends Part 19 of the PLA to clarify the relationship between the
FLA and the PLA and to also clarify the operation of Part 19 since the new
provisions of the FLA commenced. The Bill also includes a provision that
will resolve any jurisdictional disputes that may arise between the PLA and
The Bill also amends the Duties Act 2001 (the DA) to clarify the current
exemptions on certain dutiable transactions arising from the breakdown of
de facto relationships, which will now fall under the duty exemptions in the
This bill amends the Property Law Act 1974 (the PLA) and the Duties Act 2001 following the
acceptance by the Commonwealth government of the referral of power from Queensland for financial
matters arising from de facto relationship breakdowns. The Commonwealth amendments to the Family
Law Act 1975 (the FLA) that took up this referral of power commenced on 1 March 2009. This bill amends
the PLA to clarify the relationship between the PLA provisions and the FLA provisions and how the PLA
provisions operate from 1 March 2009.
The introduction of this clarifying bill brings to a successful conclusion the long standing campaign by de facto couples to be given
access to the FLA for the determination of their financial and property rights arising from a relationship breakdown.
The key effect of the Commonwealth taking up the referral from Queensland is that any Queensland legislation relating to financial
matters arising out of a de facto relationship breakdown will be excluded from operation.
This will include most of Part 19 of the PLA.
Any de facto couples whose relationship has broken down since 1 March 2009 must apply for a property division under the FLA and
can no longer apply under the PLA.
The FLA also allows de facto couples who separated prior to 1 March 2009 to opt into the FLA provisions where both parties consent.
Prior to 1 March 2009, de facto couples who separated in Queensland had to access two different jurisdictions to have disputes
Disputes about the division of property were dealt with in Queensland courts under Part 19 of the PLA and disputes about children
were dealt with in the Federal Family Law Courts under the FLA.
In 1993, the Queensland Law Reform Commission reported that the Federal Family Law Courts were the most suitable forum to hear
and determine financial disputes which arose on the breakdown of de facto relationships.
Since then, this issue has been debated in many other forums, including the Standing Committee of Attorneys-General, where the
failure of the previous Commonwealth government to agree on a suitable referral from the states in relation to de facto couples’
disputes halted the progress of this necessary reform.
On 10 November 2008, the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 (the De Facto
Amendment Bill) was passed by both Houses of the Commonwealth parliament.
The De Facto Amendment Bill amended the FLA allowing for the Commonwealth’s acceptance of referrals from states in relation to
financial matters arising from de facto relationship breakdowns.
The Labor Party has long been committed to assisting de facto couples.
In 1999, following the failure of the Commonwealth’s acceptance of a suitable referral from the states about de facto property, the
Queensland Labor government enacted amendments to the PLA that provided for de facto couple property rights, including rights
following a relationship breakdown.
In 2002, the Queensland Labor government passed the Discrimination Law Amendment Act 2002 that reformed Queensland
legislation to give people in de facto relationships the same rights as married people in many areas.
In 2003, the Queensland Labor government passed the Commonwealth Powers (De Facto Relationships) Act 2003 (the Referral Act)
that referred to the Commonwealth the power for financial matters arising from de facto relationship breakdowns.
The commencement of this referral act was delayed until such time as the Commonwealth government agreed to accept a suitable
referral of powers from the states.
This government arranged for the commencement of the referral act on 24 October 2008 following the current Commonwealth
government’s agreement to accept the referral in relation to same-sex as well as opposite-sex de facto relationships.
There are significant advantages to Queensland de facto couples by the Commonwealth taking up the referral from Queensland.
Advantages include the provision of a predominantly nationally consistent financial settlement regime that will minimise jurisdictional
Also, the Federal Family Law Courts have experience in relationship matters and have procedures and dispute resolution
mechanisms more suited to handling family litigation than the state courts.
Counselling and mediation are provided to separated couples as part of the Family Court jurisdiction.
Queensland de facto couples will benefit from savings in both costs and time as they will be able to have both their child-related and
property matters heard together.
De facto couples will also have access to courts that may make orders relating to superannuation splitting and orders relating to the
maintenance of a party.
Part 19 of the PLA will continue to apply to de facto relationships that broke down prior to the de facto amendment bill commencing
(except where the couple has chosen to opt into the FLA).
I commend the bill to the House.
Monday, 22 June 2009
Sunday, 21 June 2009
Family Law (Superannuation) Regulations 2001
I, PETER COLIN MARTIN, Australian Government Actuary:
(a) acting under subregulation 45D (3) of the Family Law (Superannuation) Regulations 2001, determine that the interest rate for the adjustment period, being the financial year beginning on 1 July 2009, is 0.082; and
(b) acting under subregulation 45D (4) of those Regulations, determine that the method set out in Schedule 1 is the method for calculating the interest rate for an adjustment period of less than 12 months that begins and ends in the financial year beginning on 1 July 2009; and
(c) acting under subregulation 45D (6) of those Regulations:
(i) determine, for subparagraph 45D (5) (b) (i) of those Regulations, that the method set out in Schedule 2 is the method for calculating the interest rate for an adjustment period of exactly 12 months beginning before the end of the financial year ending on 30 June 2009 and ending in the next financial year; and
(ii) determine, for subparagraph 45D (5) (b) (ii) of those Regulations, that the method set out in Schedule 3 is the method for calculating the interest rate for an adjustment period of less than 12 months beginning before the end of the financial year ending on 30 June 2009 and ending in the next financial year.
This Determination commences on 1 July 2009.
The Hague Convention is a very useful tool as it allows the quick return of a child to a signatory State who have been wrongfully detained or retained in another signatory State. Each signatory country has a Central Authority to ensure compliance with the convention.
As seen from the State Department's map in the report, many countries are not Hague convention members.
The State Department has recently released its 2009 report, and it's enlightening reading. This year, there are two categories: non-compliant countries and countries with patterns of concern.
Australia was not named and shamed. There were 26 children allegedly abducted or removed from the US to Australia, and 14 from Australia to the US.
- reference to CA is to Central Authority
- "LBP" means left behind parent
- "TP" means taking parent
This year, it's only one: Honduras. Honduras, it must be said, is consistent- it also was listed as non-compliant in 2007 and 2008.
This is what the State Department said this year:
As in FY 2007, the Department finds Honduras not compliant with the
Convention in FY 2008. The Honduran Central Authority has made
little progress toward meeting its obligations under the Convention.
After many months of inability to communicate with members of the
Honduran Central Authority, the USCA has successfully reestablished
communication with a staff member of the Honduran Central Authority,
but it is apparent that the Honduran Central Authority has inadequate
staff to perform the required functions set forth in the Hague Permanent
Bureau’s Guide to Good Practice. The USCA notes that it is difficult
to learn of the outcome of Convention proceedings or the efforts of law
enforcement due to this communication barrier.
Honduras has not passed legislation implementing the Convention in
Honduran law [despite acceding to the Convention in 1993!]. The Honduran legislature introduced a decree to approve
the “National Law to Resolve International Child Abduction Cases” before
the end of FY 2007, but the legislature has not yet passed that law. During
FY 2008, the Ministry of Foreign Affairs agreed to accept the transfer
of the Central Authority responsibilities from the Honduran Institute of
Children and Family. New legislation reflecting this change in the MFA’s
responsibilities and establishing specific legal procedures in implementing
the Convention is currently under consideration.
Patterns of noncompliance
Brazil, it must be said, is also consistent, being named in this category also in 2007 and 2008.
Here is part of what the US State Department said this year:
In FY 2008, Brazil demonstrated patterns of noncompliance with the
Convention in the areas of Central Authority performance and judicial
performance. Additionally, the USCA has concerns about Brazil’s law
enforcement performance. The Brazilian Central Authority (BCA)
has advised the USCA that because of a case backlog in the Brazilian
court system due to a shortage of public prosecutors, LBPs should hire a
private attorney to speed the processing of applications for the return of
children under the Convention. The Hague Permanent Bureau’s Guide
to Good Practice indicates that one of the roles of the requested Central
Authority is to either arrange for or assist the applicant to obtain legal
representation, and to monitor progress of proceedings brought pursuant
to the application. The USCA observes that once an LBP retains a
private attorney, the BCA reduces its involvement and does not appear
to engage in monitoring the progress of the application. With respect to
its communication and cooperation with the USCA, the BCA has been
extremely attentive and very responsive to the USCA’s inquiries. In a
recent case, much of the activity of which took place after the end of FY
2008, the BCA collaborated closely with the USCA and showed persistent
support for the child’s return to the United States. In addition, the BCA
has met with several Brazilian judges to discuss best practices to uphold the
The USCA observed during the reporting period that Brazil’s courts
exhibit widespread patterns of bias towards Brazilian mothers in
Convention cases. Brazilian courts continue to be amenable to considering
evidence relevant to custody determinations but not relevant to the criteria
to be applied in a Convention case, including looking at what solution is
in the “best interests” of the child.
Chile escaped the hit list in 2008, but was also in the patterns of noncompliance list in 2007.
Here is part of what the State Department said this year:
Chilean courts delay
Convention cases and often improperly treat them as custody decisions,
citing the UN Convention on the Rights of the Child. U.S. parents
often experience bias by the courts in favor of Chilean parents, especially
Chilean mothers. In addition, it is customary in Chilean courts to order
psychological or social evaluations in all cases involving minor children,
regardless of whether there is evidence of possible risk to the child in being
returned to his or her country of habitual residence. As the Convention
focuses on returning a child to his or her country of habitual residence, the
USCA takes the view that psychological evaluations are unnecessary, and
cause inappropriate delays in processing cases, if there is no evidence of risk
to the child should the court order the child’s return.
Another trend is for Chilean courts to deny Convention applications upon
finding that the child is well settled in the new environment. This result,
which could be avoided if Chilean courts handled Convention cases more
expeditiously, leaves the LBP with the much less desirable option of filing
an application under the Convention for mere access to the child, or for
visitation, and even these applications in some cases have not resulted
in contact between the LBP and the child. To take an example during
the reporting period, a Chilean court ordered a scheduled access visit
by the LBP, and the LBP purchased and confirmed his plane ticket and
accommodations for the trip. Hours before the LBP was scheduled to
board the plane for Chile, the Chilean Central Authority (CCA) notified
him that the Chilean judge had suspended the scheduled visitation.
Greece is also consistent, having been on this hitlist in 2007 and 2008.
Here is part of what the State Department said in 2009:
These patterns of judicial noncompliance arise from procedural
complexities and hindrances in Greek law. Respondent TPs often
influence the judicial timeline refusing to cooperate with summons and
orders. Lengthy appeals processes further prolong cases. These significant
delays in Convention proceedings continue to be the Department’s main
concern. The Hague Permanent Bureau’s Guide to Good Practice states that
parties’ obligation to process return applications expeditiously also extends
to appeal procedures.
In addition, the Greek judiciary frequently denies requests for return under
the Convention by finding that there would be a grave risk of physical
or psychological harm for the child if returned, or that return would
otherwise place the child in an “intolerable situation.”
Mexico is also a 3 out of 3 case, having also been placed on this hitlist in 2007 and 2008. Here is part of what the State Department said in 2009:
Many of the systemic problems identified in previous compliance reports persist. Locating
children and TPs in Mexico continues to be a serious obstacle for Convention applicants and often takes years. There are instances in which TPs flee into hiding when ordered to appear in court for a hearing on a Convention application. Of the USCA’s 47 unresolved cases concerning
Mexico, 34 involve TPs and children who have not been located (see the “Unresolved Return Applications” section of this report for more information). Mexico devotes inadequate resources to locating missing children, severely impeding successful implementation of the Convention.
In order to comply with the Convention, it is imperative for Mexico to devote more resources to locate missing children and bring TPs to justice.
Although there are states in Mexico where judges have a better
understanding of the Convention and have ordered returns under
the Convention, the USCA continues to note an overall pattern of
noncompliance in Mexico’s judicial system. In the few cases that led to
the return of the child to the United States, the LBP retained a private
attorney with a greater understanding of the Convention’s principles
than Mexican public prosecutors have tended to exhibit. Mexican courts
delay Convention cases and often improperly treat them as custody
Slovakia did not get named and shamed in 2007 or 2008. Here is part of what the State Department said in 2009:
Slovakia’s noncompliance with the Convention in FY 2008 is evident in
its judicial performance. The Department notes systemic, lengthy delays
in judicial proceedings in Slovakia. To meet the Convention’s aim for
the “prompt return” of children to their country of habitual residence,
see Convention, art. 1(a), more efficient processing of Hague petitions is
In FY 2008, one case in particular demonstrates this judicial pattern of
compliance. In this case, which began in FY 2006, a first hearing did
not take place until eight months after the wrongful removal of the child.
Although the Slovakian court ordered the child returned, the TP appealed
the decision twice. The appellate court in the first appeal, which it did
not hear until nine months after the original decision, upheld the return.
However, the court in the second appeal, heard yet another eight months
afterwards, overturned the return order based on Article 13(a) of the
Convention, which states that the child’s preferences may be considered
once he reaches sufficient “age and degree of maturity.” As a result, the
child remains in Slovakia.
Ultimately, the length of the judicial process, which spanned more than
two years in this case, may have led to the denial of the return. The
Convention envisions returns taking place within six weeks.
Switzerland had previously been named as a country with enforcement issues in 2007. Here is part of what the State Department said in 2009:
Switzerland demonstrated patterns of noncompliance with the Convention
during FY 2008 in judicial performance and law enforcement performance.
The USCA noted delays in the overall processing of Convention
applications. For example, even though a Swiss court issued an order for
return of a child to the United States under the Convention in November
2007, the order had not been enforced as of the end of FY 2008. Other
delays have also presented serious concerns, as proceedings in lower courts
often go on for weeks or months.
Swiss courts often treat Convention cases as custody decisions, invoking
the child’s “best interests” as a reason for denying return, and performing
merits-based custody assessments. Such assessments are outside the
purview of the Convention. See Convention, art. 16 (court deciding
Convention application shall not decide merits of custody rights).
Additionally, Swiss courts - up to and including Switzerland’s highest
court, the Federal Court - often show bias toward the TP, especially
when the TP is the mother.
Venezuela is now 3 out of 3, being non-compliant in 2007, and a country with patterns of noncompliance in 2008.
Here is part of what the State Department said in 2009:
As in FY 2007, Venezuela demonstrated patterns of noncompliance in the
areas of Central Authority performance and judicial performance in FY
2008. Channels of communication improved between the USCA and
the Venezuelan Central Authority (VCA) at the beginning of FY 2008,
but by the latter part of the reporting period, the USCA had difficulty
contacting the VCA. One of the key operating principles listed in the
Hague Permanent Bureau’s Guide to Good Practice for Central Authority
performance is the need for cooperation between Central Authorities,
including clear and effective communication.
Venezuelan judges often misinterpret return and access applications under
the Convention as a request for them to determine custody or visitation
rights, in contravention of the Convention. See Convention, art. 16
(court deciding Convention application shall not decide merits of custody
Saturday, 20 June 2009
Refugee women have often been subjected to extreme levels of sexual and gender-based violence in their home countries and during often extended periods spent in international refugee camps. Research shows that while refugee and immigrant women are not necessarily at an increased risk of domestic violence compared with the general population, they often face a range of unique and complex circumstances that can compound the impacts of domestic violence and limit their ability to seek help. Specific and unique challenges experienced by refugee women include those relating to trauma, legal status, structural barriers to services such as housing and social security, language barriers, racism, social disadvantage and culture, acculturation and resettlement. These unique challenges also have significant implications for policy and practice with refugee women escaping violence.
The collection can be found here.
Keane JA commented:
The present case affords an example of the kind of prolongation of litigation, and undesirable uncertainty as to the position of the children affected thereby, which the legislature can be taken to have intended to avoid by providing only one level of appeal under the [Child Protection] Act.
The wife was 4 or 5 months pregnant at the time of signing and had lived in Australia for about 5 months. She was due to return 2 days after the wedding to Thailand for a 6 weeks holiday with family. Her visa was due to expire two months after the wedding.
The wife argued that the Binding Financial Agreement entered into between the parties on 11 November 2004 should be set aside on four grounds:
- there was a failure to comply with the formal requirements of section 90G (the formal requirements for the agreement);
- that pursuant to section 90K(1)(a), the Agreement was obtained by fraud (including non-disclosure of material matter);
- that pursuant to section 90K(1)(b) the Agreement is void, voidable or unenforceable. In this particular instance, that it was obtained under duress; and
- pursuant to section 90K(1)(e), the husband engaged in conduct that was, in all the circumstances, unconscionable.
A recital of the Binding Financial Agreement stated :
“Before each party signed this agreement, he and she received separate independent legal advice from a legal practitioner as to the following:
the effect of this agreement on that party’s rights to apply for orders under Part VIII of the Act;
the advantages and disadvantages, at the time that the advice was provided, to the party of entering into this agreement
in accordance with the attached certificate from the parties respective legal practitioners.”
The wife argued that the addition of the words “to apply for orders under Part VIII of the Act” amounted to a technical defect similar to that in B & B (supra), and that accordingly, the Agreement should be set aside.
Bender FM held:
The decision of the Full Court in Black and Black (2008) does not, in my opinion, require that a Binding Financial Agreement reproduce the wording of section 90G(1)(b) verbatim.
Bender FM stated:
It was argued on behalf of the wife, that the decision of the Full Court in B & B (supra) has further ramifications. It was argued that even if there is a fully compliant certificate of independent legal advice, that does not of itself, demonstrate that the actual advice given was fully compliant with the intention of section 90G. It was argued that if the Full Court demands strict technical compliance with section 90G, then there is a requirement that there not only be an analysis of the form of the certificate of independent legal advice but also an analysis of the advice itself to ensure it complied with the requirements of the Act. I reject this argument completely.
It is the accepted law in Australia in relation to contract, that a party is entitled to rely on the certificate of the independent legal advisor (see Ribchenkov v Suncorp-Metway Ltd and Others (2000) 175 ALR 650 and Bridgewater v Leahy  HCA 66; (1998) 158 ALR 66).
Further, the effect of adopting such an approach as that which was submitted by the wife’s Counsel would require the parties to Financial Agreements to violate legal professional privilege.
Taken to the extreme, parties would be required to obtain further legal advice on the quality of their initial legal advice before a court could be satisfied that an Agreement that has been entered into is valid.
In the event there are issues as to the quality of the legal advice given, a disgruntled client has recourse against the solicitor who gave that advice. It would not, of itself, void the Agreement.
The husband had not disclosed some property in the agreement. This had been done, apparently, by his soliciotr without the husband realising why certain items had not been included.
Bender FM stated:
It was argued on behalf of the husband that in the absence of a deliberate deception consciously engaged in by the husband to gain advantage over the wife, there could be no fraud. I do not accept that this is the case.
I am satisfied that where there is a lack of disclosure of a material matter, whether by way of a deliberate intent to mislead or by inadvertent omission, can be a ground for the setting aside of a Financial Agreement.
As noted by the Full Court in B & B (supra), a strict interpretive approach and strict compliance requirements should be applied where legislation ousts the court’s jurisdiction to make adjustive orders under section 79.
It is common ground between the parties that the Financial Agreement entered into by the parties was drawn solely by the husband’s solicitors and was presented to the wife in completed form. At that time, the wife was not legally represented. There was no discussion or negotiation between the husband’s solicitors and the wife, or any solicitors acting on the wife’s behalf.
The solicitors attended upon by the wife for the purposes of obtaining advice in accordance with the requirements of the legislation were not previously known to the wife and in fact were a firm of solicitors recommended by the husband’s solicitors. This is not to infer that they were acting otherwise than independently on the wife’s behalf.
However, what this did mean is that the only knowledge the wife’s solicitors had of the financial circumstances of the husband were those as set out in the Agreement. They had no knowledge of the fact that the matrimonial home was encumbered, that there was cash assets and that there were motor vehicles and other chattels.
The amendments to the Family Law Act to incorporate Part VIIIB came into effect in December 2002. As is well known, this enabled the courts to make orders in relation to parties’ superannuation entitlements.
At the time of the making of the Agreement, family law practitioners were grappling with the thorny question of how to deal with defined benefit superannuation entitlements when they were in the payment phase. This was particularly so, when many of the trust deeds governing such funds did not allow for pensions to be split.
However, the regulations put in place formulae which enabled an actuarial calculation to be undertaken to place a capitalised lump sum value on such entitlements.
The Binding Financial Agreement entered into by the parties contains no information as to the periodic amount being received by the husband, nor its capitalised value as calculated in accordance with the regulations. ...
I am satisfied that in the circumstances of this case that because the Binding Financial Agreement did not fully disclose the husband’s financial circumstances, the solicitor who was advising the wife, was not in a position to properly advise the wife on the effect of the Agreement on her rights or the advantages and disadvantages of making that particular Agreement.
Accordingly, I consider that the Agreement should be set aside on the basis that it was obtained by fraud, arising from the non-disclosure of material information.
It was the wife’s evidence that when she and the husband first discussed marriage prior to her return to Thailand in 2003, he advised her that he would require her to enter into an Agreement whereby she would make no claim against property owned by him prior to marriage.
It was her evidence that she told him that she did not believe such an Agreement was necessary, that it was not the basis upon which to commence married life and that it showed that he did not trust her. It was her evidence that she told him that such an Agreement would not be necessary as she would never make any claim against any property that he currently owned.
It was the husband’s evidence that whilst this was the wife’s response, he was adamant that he would not marry her without such an Agreement and that he was not prepared to sponsor her fiancé visa unless she agreed to the signing of such an Agreement.
The husband’s evidence was that she, albeit reluctantly, agreed at this time that she would sign such an Agreement.
It was the wife’s evidence that there was no further discussion of a Pre-Nuptial Agreement until 9 November 2004, when the husband produced the Pre-Nuptial Agreement and told her that unless she signed it, the marriage was off.
It was her evidence that she was extremely upset and distressed by this, and that she told the husband that she would not sign it.
She indicated that some two days later, she agreed to sign the Financial Agreement and the husband took her to see a solicitor that he had arranged through his solicitor. Her evidence was that having initially seen the solicitor, she refused to sign the Agreement and told the husband accordingly. It was her evidence that he re-confirmed there could be no marriage and that an hour later she asked him to take her back to the solicitor where she did sign the Agreement.
It was common ground that she initially signed the document not using her normal signature. When the husband noticed that the wife had not signed the Agreement using her usual signature, he insisted that she re-sign it in her usual signature, which she did. The parties contacted the wife’s solicitor to confirm that the document was still binding.
Initially the wife justified the false signature by saying that she was upset. Under cross-examination, the wife conceded that she had known what she was doing, but that it was not done in any attempt to try and have the Agreement disallowed.
It was the wife’s consistent evidence that she did not want to sign the Agreement, but that she felt she had no choice. She was pregnant , she was unmarried, she was due to return to her family in two days time and was humiliated by the thought that she would return to them pregnant , unmarried and without the father of her child, to use her words, “like so many other Thai women”. She was also aware that her “fiancé’s” visa expired on 9 January 2005, after which time she would be unable to remain in Australia.
It was the husband’s evidence that, at all times, he had advised the wife that he would not marry in the absence of a Pre-Nuptial Agreement.
His evidence was that he raised the issue of the Pre-Nuptial Agreement with the wife upon her return to Australia in June 2004 and that she became very upset about such an Agreement and re-iterated that she did not think it was necessary.
The husband was cross-examined in relation to his interactions with his solicitor in relation to the preparation of the Agreement. He conceded that his solicitor’s file showed that they had sent him a letter on 17 June 2004 confirming they would prepare a Pre-Nuptial Agreement as requested, upon him completing a statement of financial circumstances. The husband completed the financial statement some time in September 2004 and on 12 October 2004, the husband received correspondence from his solicitors indicating they had prepared the draft Agreement, but awaited his instructions as to the division of post-marriage assets.
What cannot be disputed is that five days prior to the date set for the parties’ wedding, the husband produced to the wife, for the first time, the Binding Financial Agreement. The wife made it clear that she did not wish to enter into that Agreement. The husband told her that the wedding was off. Two days later, the wife attended upon a solicitor for the first time to seek advice in relation to the Agreement. She initially refused to sign the Agreement, but one hour later, returned to the solicitor where she signed the Agreement, albeit not with her usual signature. This was noticed by the husband, and at his insistence, the first signature was “whited out” and her usual signature attached to the document. This took place three days before the parties were due to marry, five days before the wife was due to fly to see her family in the Philippines and less than two months before her fiancé visa expired.
It was argued on behalf of the husband, that he was within his rights to require that the wife enter into a Pre-Nuptial Agreement before marriage, and that the wife had the option not to sign the Agreement.
The husband at no time offered a plausible explanation as to why a Binding Financial Agreement was not made available to the wife in the several months leading up to the planned marriage, particularly in circumstances where there was evidence that in July 2004, he had specifically asked his solicitors to prepare the documents with some urgency as he had discovered that his wife to be was pregnant .
At all times the husband knew the wife did not want to sign a Pre-Nuptial Agreement. Producing the Agreement for signature less than five days before marriage, when she was four to five months pregnant , about to return to Thailand in circumstances where her family expected her to return as a married woman, and where she was faced with the real risk of not being able to remain in Australia, as her visa was about to expire, threatening her with no marriage placed the wife in a position where she has little to no choice but to sign the Agreement. In requiring her to do so in these circumstances, I find that the pressure placed on the wife by the husband to sign the Agreement was “illegitimate” in accordance with the test propounded by McHugh JA in Crescendo Management v Westpac (supra). Accordingly, I find that the wife signed the Agreement under duress, as defined in law.
I would therefore have found that in the event that the Agreement was not to have been set aside pursuant to section 90K(1)(a), that the Agreement would have had to be set aside for duress pursuant to section 90K(1)(b)....
The husband knew that the wife did not want to have a child out of wedlock, knew that the wedding was set some five days hence on 14 November 2004, knew that the wife was booked to fly to Thailand some seven days hence on 16 November 2004, and knew that her visa expired on 9 January 2005. There was some dispute in the evidence as to whether the husband told the wife, “the wedding is off” or “I won’t marry you”. In my view, very little rests on this. From the wife’s perspective, it would have meant the same thing and that is that the wedding on 14 November 2004 would not take place.
The husband argued that the wife did have a choice not to sign the Agreement and marry on 14 November 2004. I do not accept that argument. In addition to being pregnant and without family support in a foreign country, she was totally dependent upon the husband for her accommodation, food, financial support and for her very presence in the country.
I am satisfied that the husband was very much aware of the wife’s circumstances and that the manner in which he presented the Agreement and demanded it’s immediate signing so close to the wedding date is such that he took unconscionable advantage of the wife’s special disadvantage.
Accordingly, I find that the Agreement would also be set aside for reasons of unconscionability, pursuant to section 90K(1)(e).
Federal Magistrate Coates had no difficulty in setting aside the agreement.
His Honour stated:
While in some cases there actually needs to be a special meaning applied to
words in an act, to imply that the words legal practitioner would apply to a
lawyer such as Daniel B Liangco would be a construction which is unreasonable or
precious and a return to interpretations of acts resulting in a ludicrous
outcome. Such an outcome is not apparent here. The rights of people are at issue
here and so it follows that the s.90.G
words legal practitioner are not superfluous, they mean and can only mean a
person qualified or defined within the terms of the Judiciary
Act 1903 as a legal practitioner, qualified to practise in the Australian
In my opinion the certificate is a notice to the other party
and is a vital component of the financial agreement. Only after it is held to conform to the section, can it be relied on for what it states on its face. It is open to challenge for not complying with s.90G.
The husband set out to surround himself with a protective
regime for his property if the marriage failed by obtaining advice in the
jurisdiction which he himself would invoke if there was an issue.
He presented the wife with the form of agreement and as he was entitled
to do allegedly said he would not marry her if she did not sign it. He now says
he is entitled to rely on the agreement and on her acts in relation to the
execution of that agreement.
It can hardly be the case that the husband can rely on fraud or
unconscionability or estoppel in this matter as he knew the circumstances in
which the wife went to obtain legal advice in Angeles City, Philippines. He knew
the circumstances because he accompanied her to the front door. He knew the
circumstances and he accepted the document she handed to him.
He received advice from a solicitor of the Supreme Court of Queensland.
He had notice from the wife’s part of the agreement that she received advice
from a lawyer of the Angeles City Court of Philippines. Before being handed that
certificate containing the notice, he had given the wife legal advice, that
these agreements were enforceable in Australia but at no time, knowing she was a
foreigner, did he advise her to seek legal advice while in Australia and before
marriage. The husband created the circumstances which saw the document signed in
the Philippines and in those circumstances he cannot rely on fraud or
unconscionability to defeat the wife’s application.
On the facts here, the legal practitioner referred to in s.90G is a
legal practitioner holding a relevant practicing certificate for the Australian
federal jurisdiction. Sub-section 90G(1)(b) and (c) then have functionality and
the husband, when observing the status of the legal practitioner signing the
certificate, was on notice that there was non-compliance with the section as a
If the application of the Judiciary Act to the Family Law Act is wrongly based, that does not escape the fact that legal advice is advice about the law and that must be with regard to the law of a particular jurisdiction. Under s.90G, legal advice is given contemplating an agreement made within the framework of the Family Law Act 1975. The advice referred to in section 90G is about rights determinable in the jurisdiction which created the section under the Family Law Act, which is the Australian federal jurisdiction and this was strengthened as the agreement stated the jurisdiction, being that of the Commonwealth and Queensland. Advice about rights are justiciable within the jurisdiction which adjudicates on those rights. No other purpose appears on the face of the legislation or by inference in the agreement, in my view, than for advice to be given by a legal practitioner who could practice in the jurisdiction. It appears then that the purpose of the section is to ensure that a certificate is provided by a legal practitioner qualified to practise in the Australian federal jurisdiction. Section 90G is to be read with the other sections pertaining to such agreements and those sections clearly contemplate that relevant disputes may be brought into court. It would be illogical that a person could call themselves a legal practitioner, but with no qualification to practice in the Australian federal jurisdiction and give the certificate required, because the rights are legal rights recognised and governed within the Australian federal jurisdiction.
I could not take judicial notice of a claim, as submitted, that many
Australians might go overseas and execute such agreement in the same manner.
Although I am aware that in the light of the decision of Black and Black, the
Federal Government has indicated that the Federal Justice System Amendment
(Efficiency Measures Bill (No 1) 2008 is amending provisions to allow for
substantial compliance in relation to such agreements, this matter falls outside
the issue of substantial compliance because there has not been any compliance with the section. Even if the wife knew what the discussion was about as the husband claims – which is hearsay or opinion evidence – it cannot be said that there had been substantial compliance so that she would or could make a decision on an informed basis as to her legal rights. That is a situation to which the
I think it is less a case of fraud and unconscionable conduct and more
a case of the husband’s lack of proper planning where he contributed to the
circumstances as to where the wife received “legal” advice, signed and then
produced a certificate, out of jurisdiction, supporting the financial agreement.
On the same basis the husband cannot rely on some form of estoppel operating to
prevent the agreement being set aside. The evidence is that he planned the steps
to be taken. He perhaps did not seek advice on the qualifications of the legal
practitioner who could sign the certificate. I could not imagine that had that
been asked, even out of an abundance of caution, a legal practitioner in
Australia would have advised that the certificate be signed by a legal
practitioner qualified for practice in Australia. Both parties under the Act are
entitled to come to an agreement which results in the “extreme asset protection”
for one party, as counsel for the wife put it, if that is an informed decision,
the purpose of compliance with s.90G.
The result of the husband’s haste then is an agreement which pursuant
to s.90K(1)(b) is void, voidable or unenforceable. In stating that, I think the
agreement was actually void, that is, it never effectively existed because the
wife’s certificate did not comply with the requirements of s.90G. (emphasis
The wife died after property proceedings were commenced. The only substantial property was the former matrimonial home. The home had been owned as joint tenants. The wife had sought to sever the joint tenancy and convert the interests to a tenancy in common, but had for some reason been unsuccessful. The wife had $85,000 in savings at her death. Her will provided that her savings were to be paid to her mother.
The parties had a child, who was now living with the husband in the former matrimonial home, which because the joint tenancy had not been severed, had automatically transferred the wife's interest on her death to the husband.
As to what might happen with the estate, Federal Magistrate Coker held:
As is indicated by recent writings, even though the benefit of an order
will be enjoyed by the beneficiaries of estate, who might include non family
members, it is clear that orders may be made in favour of a deceased spouse.
In other words, the maternal grandmother was able to receive the
benefit in relation to this matter, and it is irrelevant that it might have
meant that the entitlement would be removed from a benefit otherwise to be
received, in this instance, by the child.
The three options considered by Coker FM were:
- not allow the proceedings to continue by virtue of s.79(8)- it must be said that this was a close run thing, and if this approach had been adopted, showed clearly why it is essential to sever a joint tenancy;
- sell the home, which was the only home known by the child. There were "no ifs buts or maybes" about the need to sell; or
- transfer a portion of the home to the child on trust. The proposal put forward by the legal personal representative of the wife's estate was to transfer the interest to him as trustee for the child, a scenario described by his Honour as a "recipe for disaster".
His Honour ultimately determined that 40% of the home be transferred from the husband to the husband on trust for the child. Coker FM held:
Firstly, it would mean that the husband would continue to have the
responsibility in relation to the property, though he would hold it in two
different ways. Firstly, as his own property absolutely and secondly, as trustee
for the child, in a certain proportion.
It would provide security for the child in that, whether the husband decided
to sell the property, it would still mean that there was a fundamental
entitlement held on behalf of the child in relation to the property, and upon
attaining his majority, it would be a situation where he would be able to retain
that interest, so as to have the benefit of the bequest from his mother's estate
available to him.
Additionally, it would provide certainty in relation to continued
occupation of the home. It would provide stability and it would provide a
situation where, at least to some extent, one would think that whilst the legal
personal representative did not continue to be involved, there was the certainty
and security of knowing that the wife's intention in relation to a bequest being
made to her son, was continued and preserved.
The stats about teen pregnancies:
Around 11,900 infants were born to teenage mothers—a rate of 17 live births per 1,000
females aged 15–19 years. Births to teenage mothers accounted for 4.5% of all live births.
Of teenagers who gave birth, 82% were first-time mothers (or to put it another way, 18% or just under 1 in 5 teenage mothers had at least two children)
The Indigenous teenage birth rate was 5 times the non-Indigenous rate—80 births per 1,000, compared with 15 for non-Indigenous teenagers
The teenage birth rate increased with increasing remoteness, with teenage girls in remote and very remote areas being 5 times as likely to give birth as their peers in major cities (63 per 1,000 compared with 13).
There was no statistically significant difference in teenage birth rates between those in the richest and poorest areas.
How do Australia’s teenage birth rates compare internationally?
Australia’s teenage birth rate ranked 20th out of 30 OECD
countries in 2002:
- Korea 2.7 births per 1,000 teenage females
- Switzerland 5.5
- Japan 6.2
- OECD average 17
- Australia 18
- United States 43
- Turkey 49
- Mexico 51.
Smoking and drinking during pregnancy
Smoking during pregnancy is a significant risk factor for the mother and her unborn baby. Tobacco smoke interferes with normal fetal development by restricting oxygen flow through the placenta and exposing the developing fetus to numerous toxins. This increases the risk of spontaneous abortion and ectopic pregnancy, and can result in health problems for the newborn,
including low birthweight, intrauterine growth restriction, prematurity, placental complications, birth defects, lung function abnormalities and respiratory symptoms, and perinatal mortality (Jauniaux & Burton 2007; Julvez et al. 2007; Milner et al. 2007).
Low birthweight and short gestation are the most common short-term problems for infants whose mothers smoked in pregnancy, and are associated with increased perinatal morbidity and mortality, as well as adverse health outcomes throughout life...
Lower levels of exposure to cigarette smoke are associated with improved health outcomes for infants—reducing cigarette smoking to eight cigarettes a day significantly improves birthweight,
while quitting smoking within the first 20 weeks of pregnancy results in birthweight similar to that of infants of non-smoking mothers (Chan & Sullivan 2008; Hoff et al. 2007). Conversely, mothers who smoked more than 10 cigarettes a day have infants of significantly lower birthweight (Chan & Sullivan 2008).
The effects of smoking during pregnancy are not restricted to the perinatal period but persist into infancy and childhood. Smoking during pregnancy has been found to be associated with SIDS and childhood conditions such as asthma, obesity, lowered cognitive development and psychological problems (Button et al. 2007; Julvez et al. 2007).
A number of maternal characteristics are associated with smoking in pregnancy. Rates of smoking in pregnancy are higher among teenage mothers, lone mothers, Aboriginal and Torres Strait Islander mothers, and mothers with lower levels of educational attainment and of low socioeconomic status (Laws et al. 2006). Women continue to smoke during pregnancy for many
reasons such as addiction, and social and economic pressures, as well as the lack of understanding of the consequences of smoking during pregnancy (Hoff et al. 2007; OBGYN & Reproduction Week 2008).
In 2006, excluding data for Victoria:
One in six (17%) women who gave birth reported smoking during pregnancy, and the
rate has remained fairly stable since 2001.
Smoking in pregnancy was most common among teenage mothers (42%), and decreased with increasing maternal age to between 11% and 12% among mothers aged 30 years and over.
Infants whose mothers smoked during pregnancy were twice as likely to be of low birthweight (11% compared with 5% for those who did not smoke) and 60% more likely to be pre-term at less than 37 weeks than mothers who did not smoke.
In 2006, excluding data for Victoria:
More than half (52%) of Indigenous mothers reported smoking during pregnancy—more than 3 times the rate of non-Indigenous mothers (16%).
Mothers in remote areas were more than twice as likely to have smoked during pregnancy compared with mothers in Major cities (32% and 13%, respectively).
Mothers in the poorest areas were over twice as likely to have
smoked during pregnancy than those in the richest areas (27% and 6% respectively).
Maternal alcohol use during pregnancy is associated with adverse perinatal outcomes. Alcohol readily crosses the placenta and is a well-known teratogen (that is, it can cause birth defects). Research has shown that maternal drinking at high levels during pregnancy can cause:
- stillbirth and premature birth
- growth retardation
- fetal alcohol syndrome
- pseudo-Cushing’s syndrome
- alcohol withdrawal in the newborn
- alcohol-related birth defects, and
- neurological, cognitive and behavioural problems
(NHMRC 2001; Peadon et al. 2007; Tai et al. 1998 cited
in AIHW: Ford et al. 2003).
Exposure to alcohol in the uterus is the leading cause of birth defects and mental
retardation among children (Kumada et al. 2007). Fetal alcohol spectrum disorder is an umbrella term that describes a range of conditions that can occur in children exposed to alcohol before birth. Fetal alcohol spectrum disorder includes fetal alcohol syndrome,
alcohol-related birth defects and alcohol-related neurodevelopmental disorders. These conditions are entirely preventable (Peadon et al. 2007).
Fetal alcohol syndrome
Fetal alcohol syndrome (FAS) is the most severe alcoholrelated disorder among children (Kumada et al. 2007). FAS refers to a pattern of abnormal features associated with
the use of alcohol during pregnancy. The characteristic feature of FAS include prenatal and/or postnatal growth estriction, characteristic facial features and central
nervous system abnormalities (for example, neurological abnormalities, developmental delays, behavioural dysfunction and learning difficulties). Children with FAS experience lifelong problems, including learning difficulties and disrupted education, increased rates of mental illness, drug and alcohol problems, inappropriate sexual behaviour, unemployment and contact with the law (Streissguth et al. 2004 cited in Peadon et al. 2007).
Rates of FAS in Australia, and around the world, are likely to be underestimated, due to difficulties in identifying and managing the condition, and fears of stigmatisation
for the child and family (Elliott et al. 2006b). In Australia, there was a significant increase in the number of children reported with FAS to the Australian Paediatric Surveillance
Unit each year from 2001 to 2004 (Elliott et al. 2007). Higher rates of FAS occur in Indigenous communities compared with non-Indigenous communities (Elliott et al. 2006a). Many children affected by FAS are in foster care, while many others have an affected sibling, which suggests
missed opportunities for prevention (Elliott et al. 2006a).
Is there a safe level of alcohol consumption during pregnancy?
Damage to the fetus depends on the quantity, frequency and timing of alcohol consumption during pregnancy and is influenced by maternal factors. Drinking heavily or to intoxication poses the greatest risk to the developing fetus, but some recent studies suggest that even low levels of
alcohol consumption (such as one or two drinks per week) may adversely affect neurodevelopmental and behavioural outcomes (NHMRC 2009). These effects can be prevented
by abstaining from alcohol during pregnancy.
High levels of alcohol consumption in the first trimester can cause facial and brain malformations, while consumption during the third trimester is highly related to damage to the areas of the brain responsible for sensory perception, motor control, short-term memory, spatial
navigation and executive functioning (such as cognitive behaviour, personality expression and moderation of appropriate social behaviour) (Riley & McGee 2005). The relative risk of drinking during pregnancy or breastfeeding (compared with not drinking) has not been determined across a range of drinking levels. Hence, a safe (‘no-effect’) level has not been established on a
population basis. Furthermore, individual factors mean that actual risks vary considerably from one person to another....
How many women consume alcohol while pregnant?
The National Drug Strategy Household Survey asks women whether they consumed alcohol while pregnant, while breastfeeding, or while pregnant and breastfeeding in the previous 12 months. The survey also asks about changes in alcohol consumption due to pregnancy or breastfeeding: whether women abstained from alcohol, reduced alcohol consumption or made no change to alcohol consumption.
Of those who reported that they did consume alcohol during pregnancy, the majority (94%)
reduced their consumption, while a small proportion (6%) drank the same or more. The National Drug Strategy Household Survey also found that women were likely to reduce their use of
tobacco or marijuana when they were pregnant. Of those women who were pregnant in the 12 months before the survey, 10% used tobacco while pregnant and 3% used marijuana, down from rates of 18% and 9%, respectively, when the same women were not pregnant. The 2006 Victorian Child Health and Wellbeing Survey collected information from women about
their consumption of alcohol during pregnancy. The survey found that for children aged under 2 years:
Three in five (61%) had mothers who said they drank alcohol early in their pregnancy before they knew they were pregnant.
One in five (21%) had mothers who reported that they had drunk more than 4 standard drinks in one day before they knew they were pregnant, and 8% had mothers who said they drank to this level at least once a week before becoming aware of their pregnancy.
When women knew they were pregnant they were less likely to drink alcohol and very unlikely to drink more than 4 standard drinks in one day. One-third (34%) of children had mothers who drank alcohol at least once in early pregnancy after becoming aware
that they were pregnant, and 31% had mothers who drank alcohol late in their pregnancy.
Environmental tobacco smoke in the home
Environmental tobacco smoke is one of the most hazardous environmental exposures for children. Tobacco smoke contains numerous toxic and cancercausing chemicals that increase the risk of adverse health outcomes for children, including SIDS, acute respiratory infections, middle-ear infection (otitis media), onset and increased severity of asthma, respiratory symptoms and slowed lung growth (CDC 2007; WHO 2007).
Children with parents who smoke are also more likely to take up smoking later in life (Kestila et al. 2006). Infants and children are particularly vulnerable to the effects of environmental tobacco smoke because they have less developed respiratory, immune and nervous
systems, and have limited control over their exposure. These vulnerabilities combined with exposure to tobacco smoke in enclosed spaces, such as the home or car, mean that children can be exposed to high levels of environmental tobacco smoke in a short period of time. In homes where someone smokes inside, children have higher levels of cotinine, a biological marker for exposure to tobacco smoke, than children not exposed to tobacco smoke in the home (CDC 2007). Children travelling in a car with someone smoking are also at risk, even if the windows are down (Sendzik et al. 2008; Sly et al. 2007).
There is no safe level of exposure to environmental tobacco smoke and adults can do much to reduce or prevent a child’s exposure, particularly by not smoking in the home or car. The benefits of reducing children’s exposure to tobacco smoke in the home include improved
health and school performance, reduced absenteeism from school, reduced uptake of smoking, and less frequent smoking among children who smoke (NDS 2002).
In 2007, of households with dependent children aged 0–14 years:
About 8% of households had someone who smoked at least one cigarette, cigar or pipe of
tobacco inside the home per day.
Children were less exposed to tobacco smoke in the home than in 1995—children in almost one-third of households were exposed to tobacco smoke in the home in 1995, compared with 8% in 2007.
This decline has coincided with an increase in the proportion of households where someone smoked only outside the home (from 17% to 29%).
The proportion of households with children where no one smoked regularly at home
increased from 52% in 1995 to 63% in 2007, consistent with the general decline in smoking
prevalence among the Australian population.