Monday, 31 August 2009

Refusal to comply with disclosure orders resulted in default order: Federal Court

In the recent Federal Court case of Heng V and Li v. Wang, Justice Gray considered an appeal by Heng V and Mr Lee from a Federal Magistrates Court decision in which the defence was struck out and the matter was dealt with on an undefended basis.

The case concerned the effect of rules 13.03A and 13.03B of the Federal Magistrates Court Rules.


The appeals result from a judgment given as a result of default in compliance with orders made by the Federal Magistrates Court as to disclosure. Following repeated failure by the appellants to comply with orders requiring them to make disclosure of documents (including demanding $3000 before allowing inspection to occur), the Federal Magistrate ordered that the defence of Mr Lee and his company be struck out. On the following day, the matter proceeded on an undefended basis, and the federal magistrate gave judgment against Mr Lee and his company.

Mr Lee and his company contended that the Federal Magistrate should not have placed them in a position in which they are subject to a judgment for a substantial sum of money, without having had the opportunity to have the issues in the proceeding tried. The appeals raise questions of principle relating to the application of sanctions, such as refusing to allow a party to defend a proceeding, consequent upon default by that party in compliance with orders of the court.

Justice Gray stated:

I invited counsel for the appellants to indicate on what wrong principle
the federal magistrate had acted, what extraneous or irrelevant matters he had
allowed to guide or affect him, what mistakes of fact he had made, or what
material consideration he had failed to take into account. Counsel for the
appellants contended that the federal magistrate had failed to give sufficient
weight to the fact that Mr Lee was not fluent in English and did not have the
benefit of an interpreter, to the fact that the appellants were without legal
representation, and to the fact that Mr Lee’s father was seriously ill in China.
Counsel for the appellants also contended that the federal magistrate had acted
upon a wrong principle, by failing to apply the correct principle. The correct
principle advanced was that a party should not be made to suffer a judgment for
a large sum of money without being entitled to a trial and judgment on all of
the issues in a proceeding to which that person is a party.

Justice Gray responded by dismissing the appeal:


(This case) is a case of repeated refusals, not merely failures, to
comply with orders of the court requiring the appellants to make discovery of
documents and to allow Ms Wang’s solicitor to inspect their discovered
documents. Mr Lee had persisted with a demand for payment as a pre-condition for
providing inspection of documents, despite advice from his own solicitor that
this was not a course open to him. Even in the face of deadlines specified by
the federal magistrate for the performance of obligations under earlier orders,
Mr Lee proposed leisurely timetables for the performance of those obligations
and a further adjournment of the trial, which had already been adjourned once.
The circumstances in which the appellants had ceased to be represented by their
solicitor were never revealed, making it more difficult for them to rely on lack
of representation as a factor justifying the adjournment of the trial. It is
significant that, despite the lack of representation and Mr Lee’s difficulty
with English, the two affidavits of 7 and 9 April demonstrated to the federal
magistrate that Mr Lee had access to someone who was sufficiently fluent in
English, and had sufficient understanding of the court processes, to produce
affidavits in something close to the proper form. It would have been open to the
federal magistrate to reach the conclusion that Mr Lee was attempting to
postpone an inevitable judgment against the appellants on Ms Wang’s claim, and
that the need to visit his father in China was raised as part of such an
attempt. The fact that the federal magistrate was kinder to Mr Lee than he
needed to be, by not making such a finding, should not lead to a successful
appeal from the exercise of the federal magistrate’s discretion.

If the powers given by rules of court to give judgment against a
defaulting party were never to be exercised, because of a supposed principle
that judgment for a large sum of money should not be given without a trial, the
grants of express powers by rules would be hollow. Case-management would be
deprived of its only real sanction against a party who, while resisting a claim
for a substantial sum of money, defaults persistently in complying with orders
of a Court. The framers of rr 13.03A and 13.03B of the
Federal
Magistrates Court Rules
cannot have intended that those rules
should be subject to such a principle that would enable a party against whom a
substantial monetary claim is made to defend that claim by failing persistently
to take steps necessary to bring the claim on for trial.
... There is
no injustice in judgment for a large sum of money against Heng V and Mr Lee,
having regard to Mr Lee’s apparent determination not to comply with repeated
orders requiring him to produce for inspection all of the appellants’
discoverable documents.

Sunday, 30 August 2009

Concept of value: a dollar is always worth a dollar

The first step in any property settlement is to identify the property pool and to value it.

In this context, there is an interesting discussion of "value" by Justice Perram in the recent decision of the Full Court of the Federal Court in National Mutual v Commissioner of Taxation. The question in the case concerned capital gains tax issues, on a point on which Justice Perram dissented.

Justice Perram's comments about value are universal in their scope and reflect the issue often seen in the family law context- is there a different value of an asset in the hands of this particular person, as opposed to the market in question?

Justice Perram stated:

Value is, I think, an extrinsic quality dependent for its nature upon the
reason the question is being asked and the identity of the person asking it. As
Griffith CJ explained in Spencer v Commonwealth (1907)
5 CLR 431
at 418 where there is ready market for an asset there is much to
be said for the view that the value is likely to be equivalent to the price at
which an exchange occurs between a willing vendor and purchaser. But the
connexion between price and value becomes more elusive when the number of
vendors and purchasers in the market thins and becomes unstable when the
individual qualities of the parties becomes important. Thus, one asset may have
a different value to different purchasers. A house may be worth more to a next
door neighbour because it is blocking the neighbour’s view; listed shares may be
worth more than their market price to a person proposing to launch a takeover
thus giving rise to the premium for control. A related phenomenon is the ability
of minority shareholders, in some circumstances, to obtain more than the market
price for the shares.

Each of those examples shows that the value of an asset depends on the
identity of the person asking the question and the reason it is being asked.
That shows that the notion of value is, therefore, contingent upon the attitude
of observers external to the asset in question. That feature marks value as
different in kind to qualities such as weight or composition and much closer to
qualities such as beauty.

The single exception to this principle which might be admitted is the
case of money itself. Although it is not necessary for the purposes of this case
to express a concluded view, it is possible that value is an intrinsic property
of money and hence part of its state or nature: a dollar is always worth a
dollar.

Friday, 28 August 2009

Today I walked with Lance Hockridge

Today I had the privilege of joining the CEO of Queensland Rail, Lance Hockridge, about 100 Queensland Rail staff and other "externals" on the Queensland Rail/Australia's CEO Challenge "Wake up and Walk to help stop domestic violence", across 4km of Brisbane.

The walk started and finished at railway stations- where else? Starting at Newmarket station, we ambled through parks and along bikeways, seeing parts of my city that this Brisbane family lawyer had either forgotten about, or did not know existed. The walk ended at Roma Street station, where brekkie awaited us.

For me, QR's endorsement of a strong message against domestic violence was especially poignant, after having acted for a number of former partners of violent QR employees.

The walk was organised as part of Lance's bid as a racer with Australia's CEO Challenge Ltd (a charity helping end domestic violence, of which I am a director). Lance said that so far he had raised over $16,000 as part of his fundraising efforts. Amazing stuff.

Lance's fundraising efforts can be found here:
http://www.everydayhero.com.au/lance_hockridge


Before the walk- at the gathering point near Newmarket station


Several Australia's CEO Challenge supporters, including yours truly

Lance Hockridge stating how domestic violence is one of the top 5 health risks to women

Queensland Rail is opposed to violence against women

Yes Lance, you have a very LOUD horn!


On the way through Finsbury Park

Such enthusiastic walkers

Up to the landbridge


This is when I discovered the lack of grip on my shoes

Finally, breakfast at Roma Street!

Wednesday, 26 August 2009

Inglis "protected" girlfriend from harm: court - Brisbane Times http://ow.ly/lnpi
Rudd condemns domestic violence: Acts against women are cowardly acts by men and no place, no place, in modern Australia

Monday, 24 August 2009

Tonight I had the honour to attend Dads in Distress. It was humbling. Honest men going thru the trauma of separation. Thanks, Paul.
I was lucky to meet my old boss- cheers, Fraser; and a bunch of other lawyers- all very friendly.
On Friday I was at theTrilby Misso personal injuries network conf. Topics incl. practice management, costs and marketing. Thanks, Jovan!

Saturday, 22 August 2009

Federal Attorney-General McClelland comments on his family violence review: Australian Divorce Blog http://ow.ly/kUqN

McClelland comments on family violence review

Here is a speech by Federal Attorney-General Robert McClelland given at the Family Violence in Focus Conference in Newcastle yesterday:

First, may I acknowledge the traditional owners of the land we meet on – and pay my respects to their elders, both past and present.
· The Hon Sharon Grierson MP;
· Sandra Griffin;
· Federal Magistrate Kevin Lapthorn;

· Ladies and gentlemen. It’s a great pleasure to be here. Last year I was fortunate enough to speak at the inaugural Gateway Project conference. Since speaking at the first Gateway conference I’m pleased to see that it has developed and expanded. I’m also pleased to report that since that time, I have announced the appointment of Stewart Austin as a judge of the Newcastle registry of the Family Court of Australia. I understand that Stewart has an excellent reputation in the local area and will serve the community well.

Family Violence

I’m pleased to see that the focus of the conference this year is being placed on family violence. As Attorney-General – and as a parent – I am passionate about addressing family violence. It is a crime. And it must be treated as such. It is unacceptable that children and families in Australia continue to experience domestic violence at disturbingly high levels. Violence is not an isolated problem. It is present in each and every community and I know I have certainly met with strong advocates from the Newcastle region who are keen to raise awareness about and tackle the problem – your conference demonstrates this face.

Along with the criminal justice system, the family law system has a vital part to play in protecting children and families from harm. This means providing a family law system that provides the best possible outcomes for Australian families – rather than another trauma in already traumatic circumstances.

New Measures

That is why last month I announced a series of new measures to address family violence in the family law system. One of these measures is an extensive inquiry to identify the gaps in the law to help us reduce violence against women and children. It will be jointly undertaken by the Australian and the New South Wales Law Reform Commissions, in conjunction with other jurisdictions, and will report next year. I encourage you all to engage in this inquiry – you have considerable collective expertise.

I’ve also asked Professor Richard Chisholm to undertake a review of federal family court processes in the context of family violence. You may have seen this being reported as a review of the entire Family Law Act. This is not the case. Professor Chisholm’s terms of reference are about family violence. The shared parenting reforms of 2006 are being separately evaluated by the Australian Institute of Family Studies and they are due to report by the end of the year. I will consider their findings and make decisions about any possible change when the evidence is available, and not before.

As I mentioned, Professor Chisholm’s review is focussed firmly on family violence. He will consult relevant experts and examine whether the practices and procedures in the family courts encourage appropriate disclosures of family violence. He will also examine whether appropriate support is provided within the family court system for those who have experienced or are at risk of violence. This review will make recommendations about how the system can better support families and I look forward to receiving the report later this year.

Another measure I announced recently is the development of a training package to improve consistency in the handling of cases involving family violence, and ensure professionals are properly equipped to work with families at risk. This is an important way for professionals in the system to gain the trust of families – and the expertise to identify and deal with problems.

Collaboration is Key

One of the key aspects of addressing family violence is improving collaboration between the family law system and the state and territory child protection systems. At present, the level of collaboration between the family courts and the welfare authorities is variable. The registry of the family courts here in Newcastle reports a strong and productive relationship with the local child welfare authorities. And this results in the active exchange of information in relevant cases and a higher rate of intervention in proceedings than is experienced in other registries. I would like to further encourage this type of relationship in all registries.

Apart from intervening in proceedings, officers of the welfare authorities may have valuable information that can help the court determine the best interests of children.

At the recent meeting of the Standing Committee of Attorneys-General, I was very pleased that all Ministers agreed to explore options to improve the cooperation between the family courts and state and territory child welfare authorities. This is a vital step forward – because we do not want to be failing children who may be falling through the holes created by confusion about jurisdictional responsibilities.

Legal Assistance Pilot

I have also recently introduced a new measure aimed at strengthening an integrated approach to resolving family law disputes. This is a pilot program to provide legal representation in mediation sessions to those who have experienced or are at risk of violence.

This pilot is particularly important given my recent decision to remove the absolute prohibition on the participation of lawyers in dispute resolution processes run by Family Relationship Centres.

In my view, in the right circumstances, lawyers can assist parties to resolve their disputes out of court, including family matters. The emphasis will be on resolution. I’ve also decided to enhance the participation of legal services in Family Relationship Centres. I recently announced additional funding of $3.6 million for community legal centres and legal aid commissions to work with Centres to help families address their legal issues. I’d like to see lawyers working more closely with the Centres to help families, for example by providing legal information, legal advice, formalising agreements and participating in dispute resolution. The involvement of lawyers does not mean the process will become adversarial. In fact, I see this as an opportunity for services to work constructively together, and in a seamless way, to support families in resolving their own disputes. I am pleased that a number of community legal centres and legal aid commissions have put forward proposals for this pilot. We have received local interest and support for the provision of legal assistance services in Family Relationship Centres in Newcastle, Taree and the Central Coast. These proposals are currently being considered and applicants will be advised shortly of the outcomes of this process.

Duty Lawyer Pilots

In May this year, I was delighted to be able to allocate $200,000 to establish a pilot family law duty lawyer service with the Hunter Community Legal Centre. Funding was also provided to support similar services in Melbourne, the Dandenongs and Brisbane. The Hunter Centre has been very quick to establish its Family Law Program. It provides extended family law legal advice and assistance services to disadvantaged people in the Hunter region. These services are directed at parties who are ineligible for legal aid, who lack the means to pay for private legal advice, or who suffer from a social, economic or other disadvantage.

To ensure that the resources are used effectively, I am pleased that the Community Legal Centre and the Legal Aid Commission are working in partnership to provide quality services to those who need it most.

I understand Hunter Community Legal Centre is in the process of relocating to new premises at 50 Bolton Street. These premises provide additional office space to accommodate extra staff required for the delivery of the Family Law Program. They’re also easily accessible for clients of the service – being directly opposite the Newcastle Family Court.

I would like to acknowledge the role that Newcastle City Council has played in providing these new premises at very reasonable rates. This assistance is a good example of how a Council can help the community it serves.

Conclusion

We all have an important role in reducing family violence and providing protection for children and families. And I’m confident that with the continued attention and collaboration on this issue, we can ensure that families, especially children, are protected from harm. I’d like to thank you all for your efforts in this quest. Thank you.

Thursday, 20 August 2009

I'm proud to be walking on 28 August with Lance Hockridge: Australian Divorce Blog http://ow.ly/kHbF
New LGBTI legal service for Brisbane: Aust Gay and Lesbian Law Blog http://ow.ly/kHbi
@eatingbrisbane Try these from my Aust Gay and Lesbian Law Blog: http://ow.ly/kH9J and http://ow.ly/kH9W and http://ow.ly/kHax
@Gabfran Flattery will get you everywhere! It's good to be passionate about life. Family law is hard work, but I love helping people. :)

I'm walking on 28 August with Lance Hockridge


Lance Hockridge is the CEO of Queensland Rail, probably Australia's largest rail operator.


Next Friday, on 28 August, Lance will be walking, appropriately enough, from Newmarket to Roma Street stations in Brisbane to raise awareness for the fight against domestic violence, and to raise funds for Australia's CEO Challenge (of which I am a director), a charity that links businesses with women's and children's refuges.


As part of his efforts, Lance invited me (and no doubt lots of others too) to join him on his walk. I am proud that I will be walking with him. Participants are also encouraged to raise funds, as part of Lance's efforts.


When: Friday 28 August, 2009

Walk: Newmarket Station to Roma St Station 7am to 8am

Breakfast: Roma St Station 8am to 9am


For more information, here's Lance's webpage:


Proposed Qld changes should overcome pernicious result form a 2006 Family Court case: Aust Gay and Lesbian Law Blog http://ow.ly/kyvB
Enlightening comments about Qld MP's attitudes to same sex surrogacy: Aust Gay and Lesbian Law Blog http://ow.ly/kyuT
Stamp duty progress in Qld: Australian Divorce Blog http://ow.ly/kytf

Wednesday, 19 August 2009

Anna Bligh announces surrogacy reforms to include same sex couples. http://ow.ly/kytN
Anna Bligh releases issues paper about same sex parenting: Aust Gay and Lesbian Law Blog http://ow.ly/kyuf
It's unclear if Qld surrogacy changes will still criminalise Queenslanders going to commercial surrogacy clinics overseas- I await the bill

Tuesday, 18 August 2009

Stamp duty progress in Qld

Today the bill to amend the Duties Act was due to be debated in the Queensland Parliament again. The Bill is intended to extend the stamp duty exemption to include orders and agreements made under the Family Law Act for de facto couples.

White Ribbon Foundation: a passion to change

I am a White Ribbon Ambassador. Every year, on 25 November, is White Ribbon Day. The White Ribbon movement is a movement driven by men opposed to violence against women. It came about because of a massacre in Canada that resulted in several men getting together and taking a stand against violence.

It is an unfortunate fact that in my job I have heard horrific tales of violence. The great majority, in line with court stats, has been violence by men to women. This is not to discount violence by women to men, or in lesbian relationships violence by one woman to the other, or in gay relationships- by one to the other, or confusingly in one case a transsexual male to female in a hetero turned lesbian relationship in which the woman was violent to her transgendered partner.

Last year I was asked to be a White Ribbon Ambassador. This involves taking a pledge against violence to women. I consider that violence to women is morally repugnant and had no difficulty with being an ambassador.

In Australia, White Ribbon Day is run nationally by the White Ribbon Foundation. In Queensland, White Ribbon Day is organised by Australia's CEO Challenge Ltd, a charity of which I am a director.

Last Thursday and Friday the White Ribbon Foundation held a meeting in Sydney over 2 days for state organisers (including the Executive Director of Australia's CEO Challenge) and a select bunch of ambassadors. I was lucky and privileged to attend. There were men of all different types from all parts of Australia, except Tasmania.

One of them was a man tackling domestic violence in the Kimberleys. Another was a cop from north Queensland. I was one of two lawyers present, the other being there with his guide dog. Another was an ex league player who now ran a charity to help prevent violence to children. Another was a well known media identity, who is passionately opposed to men being violent to women.

The achievements that I have made to end violence and to enable children to be safer seemed very humble compared to what many of the other men present have achieved.

What was extraordinary about the meeting was that here was a group of men of all different types, with many different perspectives, from all over the country, all committed to ending violence against women. As men we bonded very quickly despite our great differences.

All too often, domestic violence is seen as a women's issue. Women are advocates of change. Men appear to be less involved in the discussion and advocacy. The meeting was a powerful endorsement of the ability of a group of men who have the ability to effect change.

Blogging again, at last

Apologies to all. I caught a bad dose of the flu, even ending up in hospital. The flu morphed into asthma, and then probably thankfully for everyone else around me- laryngitis- and the result was that I had a month of illness.

It was only in the last week that I again started to feel well.

Now back to blogging...

Saturday, 8 August 2009

Children not sick, just naughty: Australian http://ow.ly/jozC
The Norman we salute you. Phoenix like, Brisbane's worst vegetarian restaurant arises from the ashes: Brisbane Times http://ow.ly/joqN
Gays in Sydney are taking action to avoid homophobic violence: Sydney Morning Herald http://ow.ly/joqa

Wednesday, 5 August 2009

Pakistan moves to outlaw domestic violence: AFP/Fairfax http://ow.ly/j5XW

Sunday, 2 August 2009

60% of second marriages end in failure, compared to 30% of first timers: Brisbane Times http://ow.ly/iOaZ

25th anniversary of the Sex Discrimination Act

25th ANNIVERSARY OF THE SEX DISCRIMINATION ACT Attorney-General, Robert McClelland, and Minister for the Status of Women, Tanya Plibersek, today welcomed the 25th Anniversary of the Sex Discrimination Act 1984 coming into force. The introduction of the Sex Discrimination Act in 1984 by the Hawke Labor Government was a significant step forward to eliminate discrimination and sexual harassment and promote greater equality in all aspects of the Australian community.

“The Sex Discrimination Act was an important step in introducing structural reforms to help promote and encourage a culture of opportunity for women in our community,” Mr McClelland said.

“The 25th anniversary of the Sex Discrimination Act provides all Australians with the opportunity to celebrate the progress made in advancing gender equality and the role of women in our society.

“Australia is a long-standing supporter and advocate of women's rights, being one of the first countries to grant women's suffrage and the first country where women could stand for election for national parliament.

“The anniversary also serves as a reminder of the challenges that lie ahead in ensuring women’s equal place in society.” Ms Plibersek said.

The Rudd Government has taken a number of steps in the last eighteen months to promote women including:
Announcement to introduce a Paid Parental Leave Scheme.
Accession to the Optional Protocol to the United Nations Convention on the Elimination of Discrimination Against Women.
Development of the National Plan to Reduce Violence Against Women.

The Government has also established the National Human Rights Consultation to seek the Australian community’s views on the promotion and protection of human rights and responsibilities. The independent Committee undertook 66 community roundtables across Australia and received around 35,000 submissions. The Government looks forward to receiving the Committee’s report by 30 September 2009 about how to best protect and promote human rights into the future.

Source: Ministerial Media Release
ALP conference opposes gay marriage, votes for nationwide civil union laws: Australian http://ow.ly/iNLA
AMA president says not "natural" for gay people, single women to have IVF News.com.au http://ow.ly/iNLa

Saturday, 1 August 2009

Labor may be set to recognise civil unions nationwide; alter prescribed words of Marriage Act: ABC http://ow.ly/iJHP