Wednesday, 30 September 2009
That was the experience that the applicants had in the recent Federal Court case of NAOX v Minister for Immigration and Citizenship. In a "very rare" decision, Justice Spender found that the Refugee Review Tribunal was not acting in good faith, that it engaged in a a pre-ordained manner to find that they were cousins and came up with a result "in the teeth of the evidence", that was "highly argumentative", "self-justifying", legally "perverse" and "contrived". This was contrary to the clear evidence that:
- there was a previous Refugee Review Tribunal finding that they were a gay couple;
- DNA evidence that the couple were unlikely to be related to each other! The DNA evidence was obtained by the applicants despite the clear earlier findings that they were a gay couple, but in light of the views expressed by the Tribunal.
And how did the Tribunal come to such an inglorious conclusion? It said that it relied on the lack of credibility of the applicants. And what did it rely upon to come to this conclusion? Primarily the following passage of appalling questioning:
[THE TRIBUNAL]: Do you have sex in the morning?
THE INTERPRETER: This is a personal question.
[THE TRIBUNAL]: You don’t want to answer?
THE INTERPRETER: No. ...
[THE TRIBUNAL]: Do you have sex with him though?
THE INTERPRETER: Yes....
[THE TRIBUNAL]: Now you may not want to answer this question but when you do have sex do you use a lubricant?
[NAOX]: I don’t want to.
[THE TRIBUNAL]: Don’t want to answer ...
Justice Spender said :
It is one thing for the Tribunal to say that the first appellant refused to
answer a question, and that this was the basis for finding that the first
appellant was not a truthful or credible witness. It is quite another thing when
the Tribunal prefaces the question “Now you may not want to answer this
question, but when you do have sex, do you use a lubricant” to which the first
appellant replied, “I don’t want to.” And the Tribunal noted “Don’t want to
answer”, and to use the first appellant’s refusal to answer that question as the
basis for a finding that the first appellant was not a truthful or credible
It didn't matter to the Refugee Review Tribunal that the Department of Immigration had accepted, 10 years ago, that the couple were gay. The issue from the Department's point of view back then was whether there was a real chance of persecution of the applicants.
This is what Justices McHugh and Kirby had to say about the matter when it had been before the High Court:
The Tribunal found that the appellants were homosexual males who had lived
together at various places in Bangladesh from 1994 to 1996. ... The Tribunal
accepted that “homosexual men in Bangladesh constitute a particular social
under the Convention”. The Tribunal found:
“[H]omosexuality is not
or condoned by society in Bangladesh and it is not possible to live
openly as a
homosexual in Bangladesh. To attempt to do so would mean to face
ranging from being disowned by one’s family and shunned by friends
neighbours to more serious forms of harm, for example the possibility of
bashed by the police. However, Bangladeshi men can have homosexual
relationships, provided they are discreet. Bangladeshis generally
prefer to deny
the existence of homosexuality in their society and, if
possible, will ignore
rather than confront it. It is also clear that the
mere fact that two young men
held hands or hugged in the street would not
cause them to be seen as
homosexuals, and that being caught engaging in
sexual activity on one occasion
would be most unlikely to cause a young
single man to be labelled a homosexual."
The High Court had sent the matter back to the Refugee Review Tribunal for a second hearing. Despite the earlier clear finding that the couple were homosexual, the second Refugee Review Tribunal rejected that. The couple appealed and then had this third hearing, which ultimately resulted in the appeal before Justice Spender.
The matter has now been sent back to the Refugee Review Tribunal for a fourth hearing. It will be heard by a different tribunal to those which heard the previous 3 matters.
Sunday, 27 September 2009
We need to be concerned about the possibility of a brain-damaged generationAnd if they do, will they be able to have long term happy relationships?
of children. To this add a desensitising to violence (by the age of 18 a boy
will have watched about 20,000 murders), a premature sexualising (12- to
22-year-old males are the biggest users of sex-chat lines), and exhaustion due
to social networking (peak use of teenage networking is just after
The most frightening situation occurs when there is an accumulation of
brain-deadening behaviours. It is difficult to believe an under-exercised,
jelly-bellied video gamer, with an affection for junk food and late nights, is
going to survive childhood without being mentally damaged.
Thursday, 24 September 2009
Wednesday, 23 September 2009
This is an easy one to debunk. If you have pretty well any type of family law case, you will not have a jury. You will have a judge alone. The only exception would be the rare type of case where you might sue your former spouse for defaming you, or there are serious criminal proceedings. But those types of cases, although they might involve former spouses are not family law cases.
Tuesday, 22 September 2009
Under collaborative law, each party will generally:
1) Sign an agreement that they will not litigate;
2) Agree to disclose all information;
3) Participate in a series of meetings between the parties and their
collaborative lawyers in order to settle their case often, over a potluck meal;
4) Agree that all communications during settlement negotiations shall not
be used in a subsequent court proceeding; and
5) Hire one expert in each field and split the costs (e.g., a
collaboratively trained CPA, a collaboratively trained mental health
professional) instead of hiring dueling experts.
Collaborative law differs from mediation in that there is no pending
court case and while a mediator is a neutral third party, in collaborative law
the parties' attorneys facilitate the negotiations. If the parties are unable to
reach an agreement, the collaborative law attorneys no longer represent them and
they hire other attorneys to litigate their matter under the normal adversarial
process. Proponents claim that 94% of cases are settled through the
collaborative law model and that collaborative law is quicker, cheaper and less
confrontational. Practitioners of collaborative law admit it is not suitable for
cases involving domestic violence, drug or alcohol addiction, and mental
OK so far. Now we know what collaborative law is. Whether you agree with him or not, Mr Williams makes plain that he is not in favour of collaborative law. One cannot accuse Mr Williams of mincing words:
Collaborative law has certainly not taken hold here in the Fifth and
Thirteenth Judicial Districts. Perhaps this is because couples who are facing a divorce are not likely to hire lawyers who are more akin to mental health therapists and advocate that everyone get naked, jump in a pile, eat potluck and sign agreements mutually beneficial to everyone. If the couple is fair minded, we don't need collaborative law to reach settlement (see statistics above showing the settlement process under adversarial law already works). If they are not fair minded, it is my opinion they are more likely to reach settlement if they have a court date and a lawyer who is prepared to try their case...(emphasis added)
Perhaps I am old fashioned but I see collaborative law as an oxymoron.
Lawyers are trained to do battle for their clients. Certainly, we learn the art
of negotiation and seek settlements that are to the benefit of our client (and
the children who are the subject of a custody dispute) but collaboration and law
simply don't fit together. You might feel really good about it but I don't see
how you can be sure you did the right thing.
"Shared care is natural," Professor Hrdy said. "In hunting and gathering and traditional societies, infants are cared for mostly by older siblings, aunts, grandmothers, fathers and male cousins."
For the article, click here.
Monday, 21 September 2009
The Family Court in the recent case of Ackersley and Rialto has answered this by once again emphasising the positive requirement of parents to comply with parenting orders. The significance of the case is that it no longer appears to be an implied duty under the orders, but an express duty.
The leading case prior to this was in Stevenson v Hughes(1993), a case in which the child did not go to see his father or speak on the phone. Justice Moore found that the mother had contravened the orders, and her Honour's comments were noted with approval on appeal:
There is also implicit in every order for access an obligation imposed upon
the custodian to take reasonable steps to do what they can to ensure that the
stipulated contact occurs...
I have already made reference to the implied obligation of the custodian to
take reasonable steps to ensure that the access stipulated in an order takes
place. Words and actions have meaning in context and affect. It is not a
sufficient discharge of custodian's obligations, express or implied, to point to words and actions and to say, in effect: 'You see I tried. But the child does not want to go,' and thereafter to figuratively fold their arms as if that were an end of the matter. Theirs is an active role with an obligation to positively encourage access. It is not a discharge of their duty to set up access to fail. That is to say, it is not sufficient to make a token effort at compliance by the utterance of a few phrases which, in the main, are designed to impart to the child not positive encouragement to go on access, but to convey the burden on both the child and the custodian of compliance with the obligation...
... the respondent has adopted on the occasions when those expressions have
been used a passively obstructive stance inconsistent with her obligations under
the order. (emphasis added)
Still an implied duty or now an express duty?
Justice Cronin in Ackersley and Rialto held that because of the 2006 changes to the Family Law Act, there was now an express duty to comply with parenting orders. His Honour came to this conclusion because of the requirement in the Family Law Act to attach a form setting out the obligations under orders. The form states:
Your legal obligations
You must do everything a parenting order says.
In doing so, you cannot be merely passive but must take positive action and this
positive obligation includes taking all reasonable steps to ensure that the
order is put into effect. You must also positively encourage your children to
comply with the orders. For example where the order states your children are to
spend time with another party, you must not only ensure that the children are
available but must also positively encourage them to go and do so. There are
agencies in the community that can help you and your family adjust to and comply
with the order (see details on page 1).
The order remains in force until a new parenting order or parenting plan changes it in some way.
Even if the needs or circumstances of you, the child or the other party change, the court order applies until it is formally changed by a court or, in some situations,
you enter into a parenting plan with the other party.
Sometimes people talk to each other about changing arrangements set out in a parenting order. These talks do not change the order.
If you and the other party agree to change the arrangements, you may enter into a parenting plan or apply for consent orders that vary the existing orders. For more information about consent orders, go to www.familylawcourts.gov.au, call 1300 352 000 or visit a family law registry near you.
If you want to change a parenting order and the other party does not agree, family dispute resolution can help you and the other party work through your disagreement. Resolving issues this way is less formal than going to court and should cost less in money, time and emotion. If an agreement cannot be reached, you may consider applying to a court for orders.
His Honour stated:
It is debateable therefore whether there is any basis to contemplate implied
provisions in orders ...
Thus, going back to the starting point, to have contravened an order therefore, a person bound by it must either have intentionally failed to comply with the obligations created by the order or to have made no reasonable attempt to comply with those obligations.
His Honour was of the view that the wife had contravened the orders:
I have already found that the wife could have done more. The question is
whether that is a breach of the obligations annexed to the order. In my view
there were a number of options available to the wife other than simply forcibly
putting the children out into the hands of the husband. Accordingly and for
those reasons, because of the obligations contained in the order, I find that
the wife has made no reasonable attempt to comply with the order ...
What had the wife done?
His Honour stated:
In respect of the nature of the relationship between the wife and the
children, she confirmed that she spoke to them as honestly as possible and that
she tried to put a positive slant on the orders by saying that they may turn out
better than the children thought. However, she conceded that she made it clear
that she had told the children that she was not happy about the orders and that
they knew that. Whether that was the way she expressed it or not, matters
little. The children clearly understood the orders of the Court were not their
mother’s proposed outcome in terms of what she saw as being in the best
interests of the children. It must be remembered that these children are
emotionally dependent upon the wife, she being their primary carer. That gives
rise to a dilemma. It was suggested to the wife that she could have marched the
children to the door but her response was that she could not do that if they did
not want to go. It was suggested to her that having regard to their
vulnerability, she could direct them and they would obey. She disagreed because
there was a thinking process with the children.
A critical piece of evidence is the fact that when she spoke to the children whilst the husband was on the doorstep on 24 July, she told them that their father would like to speak to them. She did not say to them that he was there to pick them
up. Her view was the children would not have accepted that. If that is
so, it is worrying.
The husband was critical of the wife for not opening the door of the home. The wife’s response was that she did not trust him. Her view was that she believed he would have come in and that he and possibly the children may have been hurt and “emotionally scarred”. No-one will know whether that is the case because the attempt was not made. The children must have known that their mother was not going to force them out nor open the door to allow their father in. The lack of forceful response empowered the children. I do not advocate that the wife should have physically dragged either or both of the children outside of the house and locked them on the porch with their father. There is a step well before that in which the children should have been told that they were going with their
father rather than it was simply expected of them. The wife made clear
that she had told the children that what they were doing was unfair and that
their father had entitlements but those messages had a hollow ring
because they were not backed up with any action.
It may not have been possible for the wife to take such forceful action because she may have appeared hypocritical to the children having regard to what she told them after the March 2009 orders and how they perceived her stance as not accepting the
orders being in their best interests. But therein lies the dilemma for the wife.
It was the Court who chose the orders and made the finding that it was in the
best interests of the children that certain things occur. It was her
responsibility not to involve the children in the adult concepts. It was also her responsibility not to be critical of the Court orders directly or by inference. It was her function to ensure that the children carried out what the Court had found to be in their best interests. If it transpired that that was inconsistent with what she had told the children prior to the March orders, she has to take responsibility for that position. She had the responsibility of
ensuring after March 2009 that if the children claimed that they would not
accept the orders, as a responsible parent, she would discipline them in the
same way as any other parent would discipline a child by removing privileges if
the child was defiant. (emphasis added)
Saturday, 19 September 2009
25 YEARS OF ACTING FOR SURVIVORS OF DOMESTIC VIOLENCE
By Stephen Page
Harrington Family Lawyers
Phone: (07) 3221 9544
I want to acknowledge the traditional owners, the Turrbul people.
Unlike some people in this room, I was never the subject of domestic violence. My parents, until my father’s death some years ago, had a very happy marriage.
When I was thrust upon the world at the beginning of 1985 as a very green legal graduate, I must admit that I had never intended to practise in family law let alone act in domestic violence cases. If we turn our minds back to 1985, the term “domestic violence” was not known, except in limited circles of women’s refuges which had in any case been operating in Australia for only about 10 years. It was possible to obtain injunctions for violence between husbands and wives under the Family Law Act but there was no Domestic Violence and Family Protection Act. That Act was not enacted until 1989 and did not come into effect from recollection until late 1990. In those days if you were in a de facto relationship and subject to violence, you missed out. You might have sought relief under the Peace and Good Behaviour Act, a little known piece of legislation which in many respects is largely toothless and was recognised as toothless 21 years ago.
Before my admission as a solicitor in 1987, I spent two years assisting lawyers (I was then an articled clerk, now known as a trainee) in Family Court cases. Those cases often involved domestic violence.
There was a lack of resources and knowledge of domestic violence in the Family Court in those days. It was known that to commit domestic violence in front of the children was wrong, but seriously argued that children were not harmed when physical violence between their parents did not occur in the children’s presence.
In the days before Pearl Watson, the wife of the then Family Court Judge Ray Watson was murdered with a bomb at her front door and in the days before there was a murder at the Parramatta Registry of the Family Court, there was no security at the Family Court. Everyone crowded in next to everyone else, including perpetrators and survivors within a metre of each other. Those days are long gone.
From 1985 until now, I have acted for many women whose heroism was in continuing, day after day, to live in relationships where the violence was brutal, overpowering, and occurred on unpredictable occasions, thereby strengthening the hand of the perpetrator and weakening that of the survivor.
In 1988 the then Ahern (National Party) government commissioned a task force to report about domestic violence and its report “Beyond These Walls” was a defining event, an excellent report that led to an enactment of what is now called the Domestic and Family Violence Protection Act 1989.
That Act had not come into power when in 1990 I returned to work in Beenleigh. On my first day of work in a new firm a new client came into my office, describing extreme violence in her relationship. She said how her husband had trashed the house including smashing pot plants and mirrors, overturning the fridge so that the meat was rotten and stank the house out. She said that he had rifled through her clothes and made sure he had cut up the middle all of her underwear. I saw that the cutting of the underwear was to show how that she was a mere sexual being, merely a woman, someone who was inferior to him. That day I obtained an injunction for my client under the Family Law Act.
The following day another woman came in with a similar tale of woe and I obtained an injunction for her.
On day 3 yet another woman came in describing the violence from her husband and I obtained yet another injunction for her.
It was at this point that I became more enlivened to the issue of domestic violence and have tried to do what I can to end it.
In late 1990 the Domestic and Family Violence Protection Act (as it is now called) came into effect and suddenly there was an upsurge of applications for women (and a very few men) seeking protection from their spouses. The philosophy of that Act is the same as an American court described its domestic violence legislation:
The purpose of the domestic abuse statute is to protect and "aid victims of
domestic abuse by providing an immediate and effective" remedy. The statute
provides for a wide variety and scope of available remedies designed to separate the
parties and avoid future abuse. Thus, the primary goals of the statute are
preventive, protective and remedial, not punitive. The legislature did not design the statute as punishment for past conduct; it was instead intended to prevent further
harm to the victim.
I have acted for thousands of clients who are survivors of domestic violence.
Make no mistake. The vast majority of those clients have been women subjected to violence by their husbands, former husbands or partners. I am sad to say that men do not have a monopoly as perpetrators of violence and abuse. I have acted for men subjected to violence by their wives or former partners, mothers subjected to violence by their sons, gay men who have been subjected to violence by their former partners, lesbians who have been subject to violence by their former partners, and in one case a pre‑operation male to female transsexual who had a heterosexual relationship with a woman which then became a lesbian-like relationship in which the woman had been violent to my client (who was a man at work and a woman at home).
During the course of my practice, I have had the privilege to talk to my clients about matters that make them tick.
I will give you 2 examples.
· In 1994 I acted for a client who was the ex of an Australia Post employee. He beat her mercilessly. What is amazing is that he did not break any bones. She was in every sense a battered wife. He also called her horrible, despicable, nasty names which I recall but I won’t repeat here because to do so may give him some dignity which he doesn’t deserve. He kept their 3 year old daughter, insisting on a week about arrangement. We had to take a custody fight to the Family Court. My client was successful. The husband denied the violence but we had overwhelming evidence of it.
After the trial, my client seemed relieved and full of joy. She had re-partnered and seemed happy. I then asked her: “Which was worse, the physical assaults or the words that he used?” She replied: “The words – because the pain doesn’t go away.”
· Client No 2 – Three years ago out of the blue an old client whom I had acted for 7 years before tracked me down, phoned me to thank me for what I had done all those years before. She was an Aboriginal woman who was beaten mercilessly by her husband. On separation he had persuaded their 2 teenage boys to assist in the assault of their mother and the 3 of them had thrown her across the bonnet of their car. Somehow she managed to escape, covered in blood, to the local GP clinic. Nurses at the clinic called the police who then took her to a refuge. The police were obliged by law to apply for a protection order, but they didn’t. She sought that police charge the husband with assault, but they didn’t.
My client, with my help, then obtained a protection order against the husband. My client, with my help, then made a complaint against the police. The husband was then charged. He was convicted of assault but not imprisoned.
The husband made sure that when my client sought to see the boys that they refused to see her. A report by a social worker in Family Court proceedings said it was clear that the boys were under the influence of their father but unequivocal that they did not want to see my client. My client then gave up.
So 7 years after the event my client phones me and thanks me. I said I didn’t know what she was thanking me for because we got a protection order and that was good so far as it went, and we got him charged, but he didn’t go to jail, but on a key point she had not been able to see her boys and I knew how devastating that was for her. My client told me that she had now married a gentle man who did not have a problem with alcohol. She said her boys were now living with her and above all she said she rang to thank me because at that time and place, when she was at the lowest of the low, I was the only person who believed in her – she did not even believe in herself, and my belief in her had been life changing.
I have had danger thrust upon me at times because of the nature of my work. Threats have been made by perpetrators of violence who are opposed to a protection order being made against them, but more likely did not want to pay my client the money that my client was after or wanted a different arrangement for the children than my client proposed.
The dangers included acting for the former partner of the president of an outlaw motorcycle gang who had the clear and demonstrated ability to kill me if he so desired, but the greater danger I have found over the years is dealing with the loner – he who has kept his wife or partner in isolation by various threats and has made the threat against me. One of those occasions 11 and 12 years ago:
· Resulted in the longest domestic violence trial in Queensland’s history – 7 days. It still holds the record as far as I am aware.
· I was stalked by the husband (I acted for the wife).
· He was dangerous. He illegally searched my car registration records, finding out where I lived when he lived a mile down the road from me and had secreted guns. He had previously chased my client and her children around the house with a loaded shotgun, as well as other extreme violence.
· My client was more concerned for my safety than her own, as repeated threats to kill me had been made by the husband.
· This required me to change house and I had to tell my then wife on her birthday of the nature of the threat.
· This man confronted me, my then wife and our children in a car park making threats.
· I gave evidence for 4 hours and was added to the protection order. The Magistrate believed me absolutely, which has remained the sweetest victory of all.
Drugs and alcohol
I once believed mistakenly that alcohol and drugs were the cause of violence. Often there is a strong connection between these disinhibitors and domestic violence. There can be strong correlations between domestic violence and, for example, heavy marijuana or alcohol use, or the use of speed or ice.
Survivors of violence and their children need to be safe and feel safe. It is not healthy to be constantly afraid. A holistic approach ought to be taken to achieve safety. It is important to engage first in a thorough risk assessment, and then undertake a thorough safety plan.
To focus alone on getting a protection order, and not a holistic approach, is to miss the point of maximising safety and minimising fear, and may place the client and the client’s children in danger.
Comparison between Indigenous and non-indigenous domestic violence
From the little I have seen of domestic violence occurring in indigenous as opposed to non‑indigenous relationships, that occurring in indigenous relationships is often much worse, with a higher level of violence, as compared to relationships of non‑indigenous people.
Too often we don’t ask the right questions, or any questions. I have seen many clients who have been the subject of both sexual and physical violence where other professionals who have dealt with my clients before me have not asked about sexual violence or abuse. In one case my client had seen a very experienced domestic violence counsellor for some months before seeing me. When I asked my client on our first meeting why she had not told her counsellor about the sexual violence, my client replied: “Because I wasn’t asked.”
Agents of change
We all have within us the ability to change things – to make our society a safer, better and fairer place. We all say we don’t have the ability to change things but the reality is that we can. It is the power of this positive message of change which is why I am involved with Australia’s CEO Challenge. It demonstrates how things can change. In August I had the privilege as a White Ribbon ambassador to meet other White Ribbon ambassadors in Sydney. All were men. As a man opposed to the use of violence within relationships, it was refreshing and empowering meeting other men who held similar views.
I want to give 2 examples of where by simple actions I managed to change things for the better.
1. Amendments to the Domestic and Family Violence Protection Act
When the Act was originally enacted in 1989 it was never envisaged that parents would drag their young children along as witnesses. Who would ever contemplate such an obscene act? Nevertheless, that’s what happened. I found, for example, one case in which I was involved that the other side were criticising my client for not dragging her 13 year old daughter along to give evidence in the domestic violence proceedings.
Then in the case in which I was stalked, the husband had a process server serve a summons on his 14 year old son to give evidence. The Magistrate was hamstrung because there was no prohibition on doing that. The son had to give evidence (twice). I complained to the bureaucracy to change the Act to protect children, but nothing happened.
Then in one case the Magistrate refused to allow an 8 year old boy to be added to a protection order if he was not available to give evidence. This so enraged me that I contacted everyone whom I thought could have any influence upon government authority so that the Act would be amended to reflect similar provisions to the Family Law Act so that children would not be dragged into the parents’ domestic violence court fight without permission from the Court first. Then Minister Anna Bligh agreed to those changes. I was very pleased when those amendments came into effect in 2003.
2. Migration Regulation changes
About 2 years ago the Howard Government changed the tests under the Migration Regulations as to what constituted domestic violence so that if there were not a protection order after a trial, then the person seeking to remain in Australia under the Migration Regulations who alleged that they had been subject to domestic violence, would have to talk to a Centrelink social worker. The social worker would assess if there had been domestic violence. What struck me about this process was that it was potentially arbitrary and dependent on the professional opinion of a social worker employed by a government department, and not based on any objective evidence such as the obtaining of a protection order. What particularly concerned me about the change was that it meant those who had been subject to violence and had brought an application for a protection order might have to run those applications through to trial rather than the common way of resolving them, either by default orders or by consents without admission. I felt that the change interfered in the Queensland judicial system and imposed a burden upon survivors of violence and the justice system which should not have to be borne. I wrote to the Howard Government and said that. I was pleased to get a response from the government that there was no intention of interfering with the Queensland judicial system and default orders or orders made by consent without admission were fine. Government officials were directed accordingly.
A change for the better
When we talk about domestic violence often we talk about the horror or at times what has been described as domestic terrorism. We often discuss the shortcomings of government, of police and the community, of courts and of lawyers. We talk not in positive tones about what has happened. I can bore you for longer and tell you what I think are some of the shortcomings in society’s response to domestic violence but with one exception I won’t. What I have observed over the last quarter century are these things:
· We now name violence much more.
· Perpetrators of domestic violence are often held more accountable.
· In contested cases it is often much easier to obtain protection orders than before.
· Family members, carers and people in same sex relationships can now be protected.
· The Family and Federal Magistrates Courts are now more willing to deal with the issue of violence than before.
· Police, the three levels of government and the community are much less willing to tolerate the level of violence that has been there and are willing to have an open and frank discussion to stop it.
“Beyond These Walls” stated in 1988:
On face value one could argue that current Queensland criminal law can or does
deal with domestic violence. The Queensland criminal law as set out in the
Criminal Code and other specific statutes constitutes as offences, a range of
behaviours including the kinds of physical assaults experienced by victims of
domestic violence … the punching, kicking, biting, whipping and stabbing, as
well as the burns, attempted strangulations and deprivation of liberty reported
by victims are all covered by the current criminal law. What is clear,
however, is that the majority of spouses who abuse their partners in these ways
are not being charged with criminal offences – their behaviour has not been
subject to the processes of the criminal law.
Unfortunately, 21 years later these words remain true. More needs to be done.
 Coburn v. Coburn (1996) 342 Md.244; 674 A.2d. 951 (Maryland Court of Appeals)
Friday, 18 September 2009
California Family Law Blog
Ciciliano Law Blog- Nevada
Collaborative Divorce Newsblog
Family Law Prof Blog
Family Lore (UK)
Florida Divorce Law Blog
Georgia Family Law Blog
International Family Law
Massachusetts Divorce and Family Law Blog
Ohio Family Law Blog
Australia Says No
Australia's CEO Challenge
Australian Centre for the Study of Sexual Assault
Australian Domestic and Family Violence Clearinghouse
Department of Communities Qld
Domestic Violence Resource Centre Victoria
DV Connect Qld
Family Violence Victoria
Hot Peach Pages- international directory
Immigrant Women's Support Service
Mincava: Minnesota Center Against Violence and Abuse
Department of Justice Qld
Victorian Centres Against Sexual Assault
Violence Against Women Online Resources (US)
Women's Domestic Violence Crisis Service Victoria
Women's DV Court Advocacy Service Sydney
Have an idea for another Link? Contact me: email@example.com
WA Family Court
Family Dispute Resolution Providers
Family Relationship Centres
Ricky explores at a deep personal level what it means to be a survivor of intimate partner abuse and torture as she exposes the labels of disempowerment and illegitimate shame.
Attendees will workshop Ricky's Project Plan to Empowerment and receive their own personal templates including river mapping for clients that have special needs. The workshops shed more light on the following complex questions:
- What is Intimate Partner Abuse and its long term health outcomes?
- Why don’t women just leave?
- Why me?
- What is the relationship between illegitimate shame and abuse?
- What is the relationship between animal abuse and domestic abuse?
Who should attend?
- Social workers
- Family support workers
- University students
- Domestic violence and sexual assault workers
- 9am-4pm Friday 30th October 2009
- Oxley Golf Club, Brisbane
- Host - Dawn Spinks BH(hons)Education and Psychology; MPH; MACA(clinical);MFPQ) , author of "If Nothing Changes, Nothing Changes".
- 9am-4pm Friday 30th October 2009
- Salvation Army – Stafford Brisbane
- Early bird: $100.00 by 2nd October 2009
- Late fee: $125.00 after 2nd Oct 2009.
Coffee/tea and light lunch provided.
Professional development points may be available.
It is seeking member and public comments on the draft revision of Guidelines for Psychological Evaluations in Child Protection Matters as developed by the Committee on Professional Practice and Standards. The original guidelines were drafted in 1998 and are currently undergoing revision.
The cutoff for comments is 1 November. For more about the proposed changes, click here. The current guidelines are here and the proposed guidelines are here.
Tuesday, 15 September 2009
Monday, 14 September 2009
Wednesday, 9 September 2009
This time around, the mother sought to knock out the father's application, based on the Rice and Asplund test, which was visited most recently in Miller v Harrington. Essentially the mother was saying that because the father had not demonstrated a change in circumstances regarding the children since the matter was last at court, then the father had not met the threshold in Rice and Asplund, and he should fail.
The mother was unsuccessful.
The decision in Vanderhum and Doriemus was by Federal Magistrate Altobelli, who as usual provides a very useful summary of the law, this time about Rice and Asplund:
The rule in Rice & Asplund (1979) FLC 90-725 has
been described as a rule or principle to the effect that “where there has
already been a final order in respect of parenting issues, before the court
embarks on a rehearing of those issues, the applicant must establish a
significant change of circumstance’: SPS & PLS  FamCAFC 16. In SPS & PLS the Full Court
constituted by Warnick J made a number of other observations
about the rule. The term ‘threshold’ was interpreted to mean “the first question
to be determined” (paragraph 46). In the present matter it was agreed between
the parties that the Rice & Asplund issue was to be treated as a threshold
issue and thus could potentially dispose of the application at a very early
stage. Warnick J
further reflected on the rule at paragraph 48 where he states:
48. In my
view, reflection on the rule shows that:
(i) What the application of the
rule can achieve if dealt with as a preliminary matter is different from what it
can achieve if dealt with at the end of a full hearing.
(ii) In its original
formulation, the rule is directed to application as a preliminary matter. Yet,
contemporaneously with that formulation the court in Rice and Asplund determined that
the rule could equally be applied at the end of a full custody hearing. The
consequences of that determination have received little attention.
whatever stage of a hearing the rule is applied, its application should remain
merely a manifestation of the “best interests principle”.
(iv) Discussion in
terms that the rule may be applied as a “preliminary matter” or the primary
application be first heard “on the merits” may be unhelpful, particularly
because of the implication that, if the rule is applied as a preliminary matter,
the parenting application is not then dealt with “on the merits”.
application of the rule is closely connected with the nature of, and degree of,
change sought to the earlier order.
(vi) “Shorthand” statements of the rule
may contribute to its misapplication.
(vii) Any application of the rule must
now measure the evidence against the principles set out in Part VII
of the Act, in particular the objects of the Part, the presumption of equal
shared parental responsibility and the steps required by the Act consequent upon
an order made or to be made in that regard.
It is important to note that the
application of the rule is merely a manifestation of the best interests
principle as it is formulated in Part
VII of the Family Law
Act. In the present case, therefore, regard must be had to Part
VII of the Act as it is currently enacted, and not as it was at the time of
the original decision.
The rationale of the rule in Rice & Asplund is to discourage
litigation in parenting matters, particularly when change is inevitable in
families both before and after separation. Families are by their inherent nature
dynamic, and so litigation about parenting issues must be discouraged unless the
change is a significant or substantial one. In SPS & PLS Warnick J thought that other reasons for the
rule included the public interest in the finality of all litigation (paragraph
56) and avoiding cases where one judge substitutes his or her own opinion of
what is in the best interests for that of another judge, though both opinions
are based on the same or similar facts (paragraph 58). In the Marriage of McEnearney (1980) FLC 90-866 Nygh J suggested at
p.75400 that another reason for the rule was to protect children from “the
enormous psychological harm” of the litigation.
The application of the rule
is closely connected with the nature and degree of the change sought. In the
present case the father seeks, for all practical purposes, a reversal of the
existing orders rather than some slight modification of the same. If the
father’s application is allowed to continue, this means the scope of the enquiry
will be broad and thus the changes he asserts need to be more far-reaching: SPS & PLS at paragraphs 82-83. Warnick J expressed
this at paragraph 84 in these terms:
84... The essential question however is
as to the sufficiency of new events to provoke a new enquiry. The answer to this
question involves putting events in the context of the broader circumstances
pertaining to arrangements for a child and measuring the significance of the
events against the significance of the steps that might follow in light of
In Miller & Harrington  FamCAFC 150 at
paragraphs 69-73 the Full Court distinguished between the terminology used in
financial cases, and in parenting cases, and suggested that a Rice & Asplund application ought
not to be described as a “striking out” or summary dismissal application because
the best interests principle in Part
VII of the Act still applies. Nonetheless in my opinion these remain
convenient informal descriptions provided there is no misunderstanding about the
substantive process to be followed.
The procedure to be adopted in these
cases was discussed by FM Wilson in Cortes & Cabrera  FMCAfam 293 at
18. What the cases do not make clear is the process that
the court should follow if it decides the threshold question in advance on a
preliminary basis. That is, should the application be dealt with as on a
demurrer or strike out application, and the court only look at the material of
the applicant and decide, on that material alone, whether, assuming it is
accepted, there is sufficient evidence to warrant the earlier orders being
revisited. Or should the court treat the application similarly to a summary
judgment application, and look at the material of both sides, and decide whether
there is a serious issue raised which justifies the earlier orders being
revisited. Or should the court effectively conduct a trial on the preliminary
issue, with evidence and cross examination on the alleged change in
19. There is some guidance as to the approach to be adopted.
In R & B H, supra, the use of language that the court should be left in no
doubt that it is necessary to revisit the parenting orders supports a critical
analysis of the applicant’s material. Although the passage from King & Finneran seems to suggest
that court looks at all material then available to the court, which encompasses
the material from both sides, it seems to me that the court should logically
follow a three step process, sequentially dealing with the three questions
articulated in paragraph 18 above. Each case will vary of course as to the stage
at which the decision can be made that there is/is not sufficient evidence to
warrant a re-opening of the parenting issues. As the learned authors of
Australian Family Law & Practice, Brown & Fowler, observe at [16-360],
the Full Court of the Family Court has made it clear that the question of
whether there were circumstances which required a reconsideration of a parenting
issue might, but need not, be determined as a preliminary issue. However, the
court may consider that in light of the alleged changed circumstances, it was
more appropriate to consider all the facts of the case before deciding whether
the changes circumstances existed. An applicant’s material might disclose no
change in circumstance such that the application can be summarily dismissed
without a respondent being required to put on evidence. An applicant’s material
might raise the suggestion that there is a changed circumstance which requires
investigation but after reading the respondent’s material the court might be
satisfied that there is nothing in the point raised. The court may, as a matter
of discretion determine the threshold issue without testing the evidence.
Alternatively there maybe contested issues of fact as to whether there are
changed circumstances in which case a court may need to hear from witnesses and
The Full Court in Miller & Harrington at
paragraph 91 described the above discussion by FM Wilson as “a useful one”.
Indeed it is, particularly in the present case where, as will be seen below, the
mother does very little indeed to adduce evidence to rebut the father’s evidence
going to changed circumstances.
The Full Court in Gotch & Gotch  FamCAFC 3 has
emphasised the importance of taking the case of the applicant for variation at
its highest, or as established at face value.
Tuesday, 8 September 2009
Depending on what interpretation was made of those orders altered the amount of time that the father had with the children, and therefore (presumably substantially) altered the amount of child support that he would have to pay.
The matter made its way from a child support assessment, through the objection process, past the Social Security Appeals Tribunal, from where it then wended its way into the hands of Federal Magistrate Slack in Watanabe and Watanabe.
His Honour ultimately sent the matter back to the Social Secuirty Tribunal as there was an error of law, because neither party had provided the Tribunal with the earlier Federal Magistrate's reasons for judgment, nor a short transcript of when the matter had been argued again.
His Honour's reasons are particularly significant because he sets out the law as to how orders are to be interpreted, which has long been a topic of controversy:
In a useful article, Construing Undertakings and Court Orders (2008)
82 ALJ 82, the author John Tarrant, refers to a number of decisions. Mr
Tarrant identifies two lines of authority on the approach to the interpretation
of Court orders.
In Repatriation Commission v Nation (1995)
57 FCR 25, the Full Court of the Federal Court (Beaumont J, with whom Black
CJ and Jenkinson J agreed), said (at 34):
Under the ordinary rules of construction, evidence of surrounding circumstances is admissible to assist in the interpretation of an instrument if the language is ambiguous or susceptible to more than one meaning but not admissible to contradict the language of the instrument when it has a plain meaning.
In his article Mr Tarrant identifies a second line of authority that supports the proposition that the reasons for judgment must be referred to so as to ensure that Court orders are interpreted in the correct context.
He refers to the decisions of Yates Property Corp Pty Ltd v Boland (1998)
89 FCR 78 and Australian Energy Ltd v Lennard Oil NL [No.2] 
2 Qd R 230. In particular, reference is made in the decision of Yates
Property to the remarks of Drummond J (at 78) that it is impermissible, in my
view, as well as being quite unrealistic, to attempt to read, that is, to
understand, an order in isolation from the context of the reasons for it being
I do not consider it necessary to resolve the apparent difference in
the lines of authority on the use of extrinsic material in the interpretation of
orders. In this matter I consider that the orders are not clear and unambiguous
and the SSAT would have been (had they known of the existence of the material)
entitled to not only rely upon extrinsic evidence but, as a matter of law,
should have relied upon extrinsic material if that material clarified the
intention or intended effect of the orders.
As to what additional material can be referred to in interpreting Court orders:
In Owston Nominees No 2 Pty Ltd v Branir Pty Ltd  FCA
629; (2003) 129 FCR 558 at 569, Allsop J, in considering the exercise of power to deal with entered orders said:
the reasons, the pleadings and, if necessary, the evidence and how the case was conducted may be relevant extrinsic evidence.
In Athens v Randwick City Council  NSWCA
317; (2005) 64 NSWLR 58, Santow JA said that if an order was ambiguous and the ambiguity could not be resolved by reference to the judgment then resort may be had to the proceedings and in particular the pleadings, which provide an interpretive
It would frequently be the case in family disputes that the matter
is resolved with the consent of the parties without hearing and hence there
would unlikely be such material. Whilst the subjective intention of the parties
would not be relevant to the construction of the orders, I consider evidence of
the common intention of the parties at the time the orders were made would be
admissible and in that regard evidence about the manner in which the parties
have interpreted the orders may be relevant extrinsic evidence as to the common
intention of the parties.
The child lived with the mother and had been ordered to have time with the father. The issue was whether the mother had a reasonable excuse in contravening the orders.
Altobelli FM held that the mother did not have a reasonable excuse, stating:
The authorities make it quite clear that there was a clear obligation cast on
the mother to take reasonable steps to deliver the child in accordance with the
order: Stavros & Stavros (1984) FLC 91-562. The orders created positive obligations on her, requiring a genuine commitment to compliance, which is inconsistent with allowing the child to make his own decision about whether or not to have contact with his father: O'Brien & O'Brien  FamCA 52; (1993) FLC 92-396. The respondent mother cannot claim that she sincerely believes that the order was contrary to the welfare of [X] as a reasonable excuse for contravening the order: Gaunt & Gaunt (1978) FLC 90-468.
Federal Magistrate Altobelli did not believe him and ordered that monies not only be paid by Mr Kanavos, but that it be garnished from his company at the rate of 30% after tax, and that customers of his company pay 50% of their payments to the Child Support Agency.
His Honour had "no idea" what the finances of Mr Kanavos were, but:
The totality of the evidence leads me to ...conclude that all of the companies
that feature in this case were merely convenient entities for [Mr Kanavos] to
use to structure his affairs and cash flow with a view to protecting himself,
and his new family, from the claims of creditors of the business and personal
creditors such as the Child Support Registrar. I reach this conclusion
notwithstanding the emphatic submissions ...to the effect that whilst there may
be some anomalies in the accounts, viewed objectively there was no fabrication
in relation to income and expenses. I simply cannot accept this submission. The
voluminous financial material produced by [Mr Kanavos, his wife and their
company] late in this litigation when it suited their purpose, but not earlier
when it was required by the [Child Support Agency], creates an almost
irresistible inference of non-disclosure as well as fabrication of evidence to
justify blatant anomalies. I cannot accept anything other than [Mr Kanavos']
desire, demonstrated capacity and willingness to do almost anything to sacrifice
the interests of third parties such as the applicant as part of his zealous
pursuit of his own interests. Quite frankly the Court has no idea whatsoever
what is the true extent of the financial circumstances of the first respondent.
He has chosen not to disclose the same. Accordingly I am entitled to take a
robust approach in dealing with his evidence, and the matters before the court.
I am certainly comfortable in making the findings I have referred to above but I
cannot help but feel there remain undisclosed assets and resources controlled by
the [Mr Kanavos]that he has not placed before the Court.
His Honour also usefully summarised the law about secret trusts:
The law about secret trusts is set out in a number of cases.
High Court’s decision of Voges & Monaghan  HCA
94 CLR 231 the judgment of Fullagar and Kitto JJ cited the following passage
from French v French (1902)
1 IR 172 as to the nature of secret trusts:
A passage in the judgment of
Lord Davey in French v French (1902)
1 IR 172 contains probably as clear an exposition of the principle as is to
be found in the books. "It is now well established," his Lordship said, "and has
been settled since the time of Lord Hardwicke, that if a testator communicates
in his lifetime to a proposed devisee or legatee that he has left him his
property, and expresses a wish that the property should be disposed of in a
particular manner, and the legatee or devisee by acquiescence, or even by
silence, accepts that communication, and the testator dies without any
repudiation, a trust is fastened upon his conscience, as it is said, and he
cannot afterwards either appropriate the property to his own use or dispose of
it otherwise than in accordance with the wishes which were thus communicated to
him, and which he has accepted. My Lords, it is said that this jurisdiction is
based upon fraud, and so it is, because if you once get to this, that it is a
trust which is imposed upon the conscience of the legatee, then if the legatee
betrays the confidence in reliance upon which the bequest was made to him, then
it is what I should think everybody would consider a fraud, though I take the
liberty to say that the moral turpitude of any particular case must vary
infinitely according to the circumstances of the particular case. My Lords, the
basis of it is of course that the testator has died, leaving the property by his
will in a particular manner on the faith and in reliance upon an express or
implied promise by the legatee to fulfil his wishes, and your Lordships will at
once see that it makes no difference whatever whether the will be made before
the communication to the legatee or afterwards, because, as was said, I think,
by Turner VC. in one of the cases which were cited, the presumption is that the
testator would have revoked his will and made another disposition if he had not
relied upon the promise, express or implied, made by the legatee to fulfil his
wishes" (1902) 1 IR, at p 230.
In the same High Court judgment Dixon CJ
(dissenting) said the following about the standard of proof:
Sumner said in Blackwell v Blackwell (1929)
“The necessary elements, on which the question turns, are
intention, communication, and acquiescence. The testator intends his absolute
gift to be employed as he and not as the donee desires; he tells the proposed
donee of this intention and, either by express promise or be the tacit promise,
which is signified by acquiescence, the proposed donee encourages him to
bequeath the money in the faith that his intentions will be carried out” (1929)
AC, at p334.
But all these elements must be established to the reasonable
satisfaction of the court. The evidence may be circumstantial or it may consist
in admissions by the legatee upon whom it is sought to fix the trust, and the
admissions may be express or by conduct or the proof may consist in both
admissions and circumstantial evidence. When the issue is contested it will
seldom include direct evidence of what passed between the testator and the
legatee. But, in particular, the evidence must prove satisfactorily that the
trust was ascertained and what it was.
The elements of a secret trust are
usefully summarised by Brightman J in Ottaway v Norman (1972)
1 CH 698 at 711:
The essential elements which must be proved to exist
are: (i) the intention of the testator to subject the primary donee to an
obligation in favour of the secondary donee; (ii) communication of the intention
to the primary donee; and (iii) the acceptance of that obligation by the primary
donee either expressly or by acquiescence.
Tuesday, 1 September 2009
Over 118,000 marriages were registered and more than 47,000 divorces were granted in Australia during 2008, according to figures released today by the Australian Bureau of Statistics (ABS). This is an increase of 2.1% in registered marriages and a 1.6% drop in divorces compared to 2007. Registered marriages are now at a 20 year high but the crude marriage rate (marriages per 1000 people) has fallen from 7 in 1989 to 5.5 in 2008. For divorces, the 2008 figure is the lowest number of divorces granted in a single year since 1992 and the 2008 crude divorce rate (divorces per 1000 population) of 2.2 is the lowest in the last 20 years.The past 20 years has also seen a trend in couples delaying the age that they marry. In 2008, the median age for first-time marriage was 29.6 years for men and 27.7 years for women, compared to 26.3 years and 24.2 years respectively in 1989.There was a 44% increase in marriages in August due to a large increase in the number of marriages performed on 8 August (08/08/08). Other findings for marriages include:
The proportion of couples choosing a Civil Celebrant to officiate their marriage grew to 65.0%.
The proportion of couples who chose to live together prior to marriage grew to 77.7%.
November was the most popular month to marry, with over 15,000 marriages. This was followed by March and October.The median age at divorce has been increasing steadily for both males and females over the past 20 years. In 2008, this trend continued for females with median age increasing by 0.1 years to 41.4, while for males the median age decreased by 0.1 years to 44.1.Other findings for divorces include:
The trend towards joint applicant divorces has continued, representing 35.2% of all divorce applications.
Almost half (48.8%) of divorces granted in 2008 were to couples with children aged under 18 years. This has decreased slightly since 2007.
Over 43,000 children were involved in divorces in 2008, with the average number of children per divorce at 1.88.
The median length of marriage to divorce in 2008 was 12.3 years.
Given that a year's separation is required before applying for divorce, and that the average time taken for a divorce to be granted is another 4 months, does this mean that the average length of marriage to final separation is 11 years?
Further information is available in Marriages and Divorces, Australia, 2008