Sunday, 29 November 2009

Senator Mark Furner Praises White Ribbon Day

Senator Mark Furner, who is also a White Ribbon Day ambassador, last Tuesday praised White Ribbon Day:


Tomorrow marks the anniversary of White Ribbon
Day
. In my first year as an elected senator for
Queensland I attended the White Ribbon Day function
in Parliament House, Canberra. As a proponent in
condemning violence against women I did not hesitate
in becoming an ambassador of White Ribbon Day.
As a husband of an amazing wife and as a father of
two beautiful girls, I could not consider anything more
important in making this choice.

White Ribbon Day was started in Canada in 1991
by a group of male students on the second anniversary
of the shooting of 14 female peers at the University
of Montreal. The White Ribbon Campaign is the
largest effort in the world of men working together
to end men’s violence against women. In the first
year, 100,000 ribbons were distributed to men across
Canada. Ten thousand white ribbons were distributed
in 2003 and today hundreds of thousands of white
ribbons are worn by men and women across Australia.
This includes men at work, in Australian police forces,
in national and local sporting associations, in the
media, in politics and in the defence forces, across
all our capital cities as well as in rural and regional
areas. The campaign continues to go from strength
to strength and now boasts more than 350 White
Ribbon ambassadors Australia-wide. There are also
an increasing number of events being held across the
country, and more organisations and individuals are
participating every year.






As a White Ribbon ambassador I started out this
year with an objective of recruiting more ambassadors,
and am happy to announce the successful recruitment
of two well-known Queensland men, Secretary of the
Australian Services Union, David Smith, and Mick
Gillam, Councillor for Moreton Bay Regional Council,
Division 8. Both David and Mick, who represent
many women in their respective positions, did not
hesitate in stepping up to the plate to take on the
responsibilities of a White Ribbon ambassador. David
and Mick join the Queensland list of White Ribbon
ambassadors along with our Prime Minister, Kevin
Rudd, Senator Joe Ludwig, other federal, state and
local council parliamentarians, union leaders, lawyers,
police, sporting leaders and many more professionals.



Peter Birtles

In addition, my office was involved in three events
last Friday. At around noon last Friday we conducted a presentation and discussions around a barbeque
at the Supercheap Auto distribution centre in Pine
Rivers. In attendance were: CEO of Supercheap
Auto, Peter Birtles; Graham Chad, General Manager
Group Logistics; Sonia La Penna, General Manager
Group Human Resources; over 80 employees; and
Mick Gillam. The gathering listened intently to a
presentation I provided on violence against women
and repeated the pledge, which is: ‘I swear never
to commit violence against women, never to excuse
violence against women, and never to remain silent
about violence against women. This is my oath.’






Lance Hockridge

Later on that afternoon we did a similar presentation
at Queensland Rail Institute at the Queensland Rail
centre, Central Station, Brisbane. The event was
well attended, with many members of the Australian
Services Union; ASU Secretary, David Smith; and
the Queensland rail CEO, Lance Hockridge. I was
pleasantly surprised to hear in Lance’s address of his
involvement in the Queensland CEO Challenge, which
this year raised $25,000 towards this particular cause.


Senator Mark Furner and Stephen Page at Men in the Mall




Lastly we met at the event ‘Men in the Mall’
held at Queen Street Mall, central Brisbane. The
event was reasonably well attended, with guest
speakers including former Brisbane Bronco legend,
Steve Renouf, the 2009 Young Queenslander of the
Year, Chiu-Hing Chan; Assistant Commissioner, State
Crime Operations Command, Ross Barnett; and me
as an ambassador. During the proceedings the crowd
also received a presentation on self-protection by Ian
‘Powerhouse’ Jacobs, who did a live SAFE demo.
Additionally, a group of young Muslim men attended
the event.

I consider that my inspiration for this cause
commenced from my prior career as a union official,
providing many opportunities in defending women
who had unfortunately fallen victim to unnecessary
approaches by males in cases of workplace harassment
and sexual discrimination. In some of these cases
I was amazed that companies had not introduced
sexual harassment policies to make employees aware
of inappropriate conduct. Clearly in some cases there
was a lack of knowledge both by employers and
employees of their rights and responsibilities in the
workplace. After representation was made by the union
along with representatives from employees and the
employer, suitable policy would be implemented to
make all stakeholders aware of the issues concerning
sexual harassment in the workplace.
The statistics are profoundly disturbing, which
reflects a sad indictment of our society. The statistics
are that one in three women experience violence in
their relationship. That is 1,000 women each day—
1,000 today, 1,000 tomorrow, another 1,000 on the
next day and so on. Aboriginal women are significantly
more likely to be victims of violence than non-
Aboriginal women. In Queensland alone the police
handle more than 30,000 confirmed domestic violence
incidents each year. Domestic violence is a major cause
of death and disability in women aged 15 to 44.
Frightfully, most family and intimate violence goes
unreported. Surveys estimate that nine in 10 do not
report incidents of domestic violence. Yet over 30,000
children and young people accompany their mothers
to a refuge. If we take no action, an estimated
750,000 Australian women will report being a victim
of violence in 2021-22. Naturally, this type of violence
comes at a cost to our society. A 2009 KPMG study
estimated that, annually, domestic and family violence
costs Australia $13.6 billion.

Employers are in a strong position to assist survivors
of domestic and family violence to continue to work
safely. Employment and the economic security that
it provides can be critical when a survivor leaves
an abusive relationship and, more often than not,
their home. Domestic violence does not just affect
the individual; it also affects family members, both
immediate and external. A close friend is fighting the
demons as his daughter has for many years struggled
with this insidious scourge. My friend titled his story
Domestic violence—a father's story and it reads as
follows:

The verbal abuse of my daughter by her husband started
on their honeymoon with him telling her she was too fat,
too lazy, ugly and dumb. This continued for two years;
completely demoralised her and made her think she was
worthless.
Then after the birth of two boys, he started dragging her
around the house by her hair and throwing her against the
wall. He then started kicking her out of the house with no
money and no clothes and no where to go. She slept in her
car because she was too ashamed to tell anybody.
He then started to isolate her from her friends and family
but the relationship with her family was too strong. He then
moved on to really belting her up even in front of his children.
Finally my daughter had had enough and she left and had him
charged with aggravated assault and had a domestic violence
order taken out against him for the boys and herself as well as
for me and my wife. He has also threatened to kill the boys.
We moved them into a unit in a secured town house complex
but she struggled with two boys and not enough money eventhough we helped her out. She moved back into the house
with her husband, but living separate lives. We are worried
that he will start hitting them again and this time it will be
worse. The domestic violence order is still in place and this
may help.
I felt so helpless during this marriage because I could not do
anything about it and only found out about it after five years
of their marriage. It has affected the two boys very badly. No
one should have to put up with this violence in a family life.
My daughter is five foot four tall and her husband is six foot
two.
It is signed off ‘Les’. Nicole Kidman, a goodwill
ambassador of the United Nations Development Fund
for Women recently told the American Congress that
violence against women and girls was perhaps the most
systematic and widespread human rights violation in
the world. If it is good enough for Nicole, it is good
enough for us males to take up the gauntlet. We must
not rest until violence against women is eliminated. We
all have mothers and some of us have wives, sisters,
daughters and nieces. We must ensure that they never
fall victim. I am fortunate to have all those and I love
them dearly. As males, we need to call on all males to
swear with me today to never be violent and never be
silent.

Wednesday, 25 November 2009

Today is White Ribbon Day

Today is 25 November, which is White Ribbon Day or the UN International Day for the Elimination of Violence Against Women.

White Ribbon Day is a movement by men, who swear that they will never commit violence to women, never excuse violence to women and never excuse violence to women. It started in Canada as a movement by men, and has since spread worldwide.

This morning I had the opportunity to talk to about 120 people in Toowoomba, including 20 police, about how as a family lawyer in Brisbane, I had acted for thousands of survivors of violence, including having acted in cases involving violence concerning people who lived in Toowoomba and nearby, such as Oakey and Dalby.

I had the privilege at lunchtime to go to the Queensland Parliament, where the Speaker John Mickel was honouring White Ribbon Day, along with many other politicians, business leaders, and police.

Sunday, 22 November 2009

Men in the Mall

On Friday I attended with other White Ribbon Ambassadors at Men in the Mall, an event in Brisbane's Queen St Mall publicising White Ribbon Day, and encouraging men to take the oath.

White Ribbon Day or the UN International Day for the Elimination of Violence Against Women is held this Wednesday, 25 November.

Other ambassadors who attended included:

Steve Renouf has a clear passion against violence by men to women. Senator Furner gave a passionate speech, including talking about a father's lament: a father whose daughter had been subjected to domestic violence. Ian Jacobs demonstrated his SAFE program, especially to ensure that the elderly are able to protect themselves.

My little speech was modest compared to the achievements of these men. I am but a mere Brisbane family lawyer. I have not represented my country or state in sport or politics and have not become a world champion.

I welcomed the police for attending, and for being such strong supporters of White Ribbon Day. Police are called day in day out to turn up at domestics. It can be very dangerous and sometimes deadly work. As a society we often take these efforts for granted. The reality is that no matter how much the police are criticised for not doing enough about domestic violence, the battle against domestic violence, in all its forms, cannot be won without the assistance of police and the courts.

I was also lucky to listen to Joe Lynch recite some of his poetry. In our hurley burley lives at times we forget the beauty of poetry- and especially when delivered as Joe did with an Irish lilt.

Monday, 16 November 2009

Separation costs Aussie men $110,000 in happiness, women only $8900: researcher http://ow.ly/CHz9

Friday, 13 November 2009

The two ways to settle children's disputes: Family Court case

There are essentially two ways to settle a family law dispute about children: one is a parenting plan - which is basically a written agreement about the children signed by each of the parents, and the other is obtaining consent orders from the Family or Federal Magistrates Courts (and sometimes the state magistrates or local courts).

Family lawyers like me always advocate that parties should sign up to consent orders, rather than a parenting plan, and the reason is obvious: if it's breached there can be consequences, whereas if a parenting plan there are none, except for the vague threat of then going off to court.

But sometimes there can be an advantage in settling with a parenting plan. This can happen when the parents are into the court fight and they want to settle, but the independent children's lawyer isn't prepared to settle yet, for example because the independent children's lawyer has some further inquiries to make. The parties then have two stark choices:
  1. keep battling it out in court until the independent children's lawyer decides that he or she is ready to sign up to consent orders; or
  2. enter into a parenting plan, which does not have the same protections as orders, but when combined with discontinuing the court proceedings, means that the court case is over and the parents and their kids can get on with their lives.

This choice was obvious in Corbin and Corbin, a recent decision by Justice Murphy of the Family Court. The parties had just signed a parenting plan. They were in court for a scheduled date. The independent children's lawyer was not prepared to sign up, as he wanted the mother and father to undertake a psychiatric assessment first. The parties just wanted out of court and sought leave to file notices of discontinuance. The independent children's lawyer sought an injunction to prevent the parents from opting out.

This is what Justice Murphy said, in rejecting the application for the injunction:


Interestingly, the [Family Law] Act does not provide for the court to have
any form of supervening or other role, with respect to parenting plans.
Those plans are, as the statute contemplates, arrangements arrived at by the
parents themselves, albeit often with advice, from legal practitioners and,
sometimes, social scientists. Such is the case here.
The independent children’s lawyer, who is a creature of statue and derives his authority only by reason of an appointment made by this court, within the context of proceedings in this court, has different obligations; primarily, of course, obligations
directed towards the best interests of the child.
Accordingly, it is entirely appropriate that an independent children’s lawyer, charged with those statutory and other responsibilities, ought make submissions to a court that a parenting plan arrived at between parties is not considered by him to necessarily be in the best interests of the particular child or children. Again, such is the case here.
Here, the independent children’s lawyer seeks to keep the proceedings, “on foot” so as to “monitor” the parental arrangements.
However, despite those submissions, quite properly made, the legislation is framed in such a way that where parties arrive at their own arrangements via the entering into of a parenting plan, and, thereafter, decide to bring an end to proceedings in this court, the Court is, in my view, functus officio.
Although having the rights and obligations of a party, the independent children’s lawyer does not join issue with either parent in the seeking of parenting orders.
It is entirely open to one or other, or both of the parties, to file a notice of discontinuance in the registry of this court. In those circumstances, the proceedings would be brought to an end without further order. The Act does not provide for “sanction” or other “approval” or supervision of that plan.
Here, leave is sought to file notices of discontinuance in circumstances where the matter comes before me as part of this court’s Magellan directions list. Leave is sought because the filing of the document can be allowed by me, in the course of those proceedings, as distinct from being accepted by the registry staff, as it were, across the counter.
Accordingly, it seems to me that I should grant leave to both parties to
file a notice of discontinuance in respect of these proceedings, at which time,
these proceedings come to an end.

Disclosure: I appeared for the father.

Washington sniper's actions were a child custody ploy?

In the last couple of days, Washington DC sniper, John Allen Muhammed, was executed. Back in 2002 he and his accomplice 17 year old Lee Boyd Malvo drove around the streets of Washington randomly shooting at strangers. One of them would lie in the boot of the car firing out of the special modified boot lid at people doing ordinary everyday activities, such as filling the car with petrol, or going to the car wash.


Their actions terrorised Washington. For three weeks, no one was prepared to go out, of if they did they bobbed and ducked in order to avoid being shot. Tarps were put up at service stations to protect customers.


It is not known who drove and who shot, but Malvo received a life sentence, presumably because he was 17 at the time and led by Muhammed.


Now it appears that the reason all these killings occurred was because Muhammed was an obsessional violent ex, who had chased his wife from one side of the USA to the other, would not let her go and had threatened to kill her.


The theory goes that he always intended to kill her, but by killing complete strangers at random as well would be able to disguise his actions.


The theory is plausible. Many years ago I acted for a woman whose husband had been violent. She escaped him and obtained a protection order, which included a no-contact clause. She regularly complained to police that he had breached it, but police did little. His actions included standing outside his rental house, which just happened to be on her route to and from the children's school, and being there at just the times that she would be driving past, and then waving to my client and the children.


Hitchcock's Strangers on a Train

My client remarried. There continued to be long standing litigation in the Family Court. He was unhappy that the children were not living with him, and thought that he had done nothing wrong. The police finally charged him with a breach of a protection order. He was enraged with this and was fearful that he might go to jail.


The husband then came up with a plot which has all the hallmarks of Hollywood, except that it was true. Through his criminal contacts, he asked a hitman to kill my client's second husband. The plot was specific:


  • My client was 9 months pregnant and due to give birth any day;

  • The murder was to occur at 3pm the day before the husband's trial for breaching the protection order;

  • At 3pm, the husband would be at the children's school picking them up. Like the film Strangers on a Train, he would have a complete alibi, having been witnessed by many parents and children at the school, and with no obvious connection to the killing;

  • The murder would take place in the same way as a home invasion, to frame my client's husband as a dealer;

  • My client, at 9 months, would go into labour from the stress of it all, and would go into hiding afterwards;

  • As my client would be in hiding, the charges against the husband would be dropped, and he would also have the care of the children;

  • My client's husband's body would have been dumped at sea.

Thankfully the police were aware of the plot and the husband never followed through, but instead spent time in jail for offences relating to the plot.


Here is an article from Lovefraud.com that takes the argument further about the Washington sniper.

Thursday, 12 November 2009

Eidos Lunch- Julia Gillard

Julia Gillard
Today I was lucky enough to go to that rare beastie- a business lunch that was interesting. The lunch, run by the Eidos Institute, had Julia Gillard as the guest speaker.


In front of 400 mainly business types, the Acting PM outlined her vision for schools. Showing the guts that she would have had as a litigation partner with Slater and Gordon, her vision came down to:



  • it's all about measurable outcomes and transparency

  • there'll be a website called myschool

  • schools will have to produce buckets of data so that all and sundry, particularly parents, but including the media can compare like with like on the site

  • while she's handing out the money, the schools, State education bureaucracies and the teachers' unions better get used to it (although of course she was much more diplomatic than that)

  • while it is terrible and unacceptable for a child to go to a school with poor outcomes, it is worse when the parents of the child do not have enough information available to them to know that it is a school with poor outcomes.
And the lunch got better than that. I was lucky to sit with a few fellow Twitterers one of whom, Jackie Ewart, has written a book about the Haneef saga, and then maaged to have a yarn with Graham Young, the founder of Online Opinion. All great stimulating stuff for the grey matter.


Sunday, 8 November 2009

Mistress obtains $100k under Family Law Act changes: News Ltd

News Ltd is reporting that in a first, a mistress of 20 years has settled for over $100,000 a claim under the Family Law Act against her former lover, a cheating husband.

To have done so, she would have had to have convinced the man's lawyers that they lived in a genuine domestic relationship.

The claim was able to be brought under the Family Law Act for de facto couples who separated from 1 March this year.

The outcome of the claim is likely to strike fear into unfaithful spouses. It was widely predicted before the amendments to the Family law Act came into effect, that they might cover claims against cheating spouses, because of the ability under the laws to have a de facto relationship with another even if one of the parties is in another de facto relationship, or is married.

The changes to the Family Law Act apply throughout Australia, except for Western Australia and South Australia.

Thursday, 5 November 2009

Australian Crime and Violence Prevention Award winners announced

The Australian Crime and Violence Prevention Award winners have been announced by federal minister Brendan O'Connor.

Amongst the winners was the Chaplain Watch program- an innovative program run by Lance Mergard - who has a very demanding lifestyle. During the day Lance is a Family Court court officer- but at night he runs Chaplain Watch which goes to the hot spots in Brisbane's CBD and the Valley.

Congratulations to all the winners!

Tuesday, 3 November 2009

Can obesity be grounds for losing the kids?

Should morbidly obese children be taken from their parents? That's the question an increasing number of countries are grappling with amid the Western world's obesity epidemic.

The latest case to make headlines concerns a Scottish couple who lost custody of two of their six children on the basis of what was, their lawyer claims, a failure to reduce the kids' weight following warnings from Scottish social services. The couple lost their Oct. 14 appeal in a case that is far from clear-cut — representatives of Dundee City say they would never remove children "just because of a weight issue." But obesity appears to be the primary reason South Carolina mom Jerri Gray lost custody of her 14-year-old, 555-lb. son in May. She was arrested after missing a court date to examine whether she should retain custody after doctors had expressed concern about her son's weight to social services. The boy is currently living with his aunt, and his mother is facing criminal child-neglect charges.

Several other cases in recent years — in California, New Mexico, Texas and New York, as well as Canada — have garnered attention because a child's obesity resulted in loss of custody. "It's happening more than the public is aware of, but because these cases are usually kept quiet [as a result of child-privacy laws], we have no record," says Dr. Matt Capehorn, who sits on the board of the U.K.'s National Obesity Forum. The issue of whether parents should lose custody of their obese children took center stage two years ago with a British television documentary about Connor McCreaddie, an 8-year-old who weighed more than 200 lbs. and was at risk of being taken from his mother by authorities. She eventually weaned him off processed foods and retained custody.

See the full article in Time. Thank you to Family Law Prof Blog.

Monday, 2 November 2009

Family Court case: show and tell not hide and seek

In the recent Family Court case of Jarrott and Jarrott, there was a clear demonstration of the need for a party to fully disclose their financial circumstances, or as one Federal Magistrate put it so clearly "show and tell" not "hide and seek".

The husband came to court asking to be relieved of an $11,000 a month burden with home expenses including the mortgage. His cure? Sell, sell, sell- with he to have conduct of the sale. The house was in his name alone. He owed about $1 million on the mortgage, but it was the house the wife lived in. The wife wanted to retain the home as part of any property settlement.

Despite the wife previously asking for a property settlement of $2 million, when the net value of the home was about $350,000, and her being of the view that the husband's business interests were valueless, she changed her mind and said that she really did not know what the husband's business interests were worth, and until he had fully disclosed, she should not be compelled to move out of the home.

The court agreed. Justice Cohen stated:


The wife submits that now, as her knowledge of the financial situation has
evolved, it is quite possible that the husband’s business is worth much more
than she then thought and as he has failed to call evidence, even from his
accountant who has a financial interest in the business, which might provide a
realistic basis for assessing the value of the business and as the husband has
the onus of satisfying the Court that it is reasonably necessary to sell the
home, he has not established his case for financial distress or for sale. She
says that the information which is now available and has come to her only
recently justifies a consideration that the value of the business is such that
it is a reasonable possibility that she might receive the former matrimonial
home unencumbered under s
79
of the Family Law
Act
....
There is a fault in the wife’s claim that she wanted to keep the
home and was only constrained to ask for a cash settlement because the husband
and/or his business could not raise the cash to provide her with a clear title.
To do so would cost about $1.103 million at present. This is the cumulative
value of the husband’s bank debts secured over the home. One can assume that
earlier this year the situation was little different. Yet the wife asked for $2
million in cash when she says she believed the business was worthless. If she
wished to keep the home yet get $2 million in all, she would need to have asked
for it to be transferred to her clear of encumbrances, which would make up $1.4
million, and the balance of $600,000.00 in cash. In any event, the husband would
have to raise the same amount, that is, the money to pay out the $1.103 million
overdraft, plus $600,000.00. It is not as though she could have believed the
home was worth much more than $1.4 million because the economic situation since
the property was purchased had already worsened.
The husband’s case is quite
simple. He says his income of $12,000.00 after tax per month is not enough to
meet his expenses, which are about $17,230.00 per month, not including tax, and
that he no longer can look to his business to make up the shortfall. He asserts
that, as the outgoings on the former matrimonial home are about $11,000.00 per
month including mortgage payments, the sale of the home will overcome his
financial difficulties in this respect. As he will not be able to continue the
home mortgage payments of about $9,400.00 per month if the home is not sold,
there will have to be a sale anyway and a mortgagee’s sale is to be
avoided....
He appears to have attempted to place an onus on the wife to show
he can afford to keep the former matrimonial home rather than make an attempt to
show by sufficient evidence of his own that, in his overall situation, he cannot
afford to do so. He relies only on his income and outgoings to prove his case in
circumstances where his income may well be arbitrarily set with his other
entities retaining an overall net profit and/or making an overall capital
accumulation.
He suggests the wife and the Court should know his financial
circumstances because, on 9 February 2009, his solicitor sent to the wife what
was referred to as a “background summary of the various interconnected
entities”. The solicitor also said that his firm also holds “financial records
as set out in the enclosed index”. These records relate to the background
summary and list seven entities of the nine referred to in the index and purport
to state the main assets and 2008 balance sheet asset values and 2008 pre-tax
trading profit. Nowhere for any of these entities is any goodwill value
acknowledged. There is no information about two of the entities.
Of course,
one would expect businesses which make a profit to have valuable goodwill or a
sale value. Overall, it is likely that the total value of the business interests
of the husband based upon an overall profitability of his share of about
$300,000.00 per annum before tax is significant. The stock, fixtures and
fittings in the businesses, not including land, are also of significant value.
The husband’s interest in these is about $499,406.00. None of these figures
include what seems, from the evidence that the wife has put before the Court, to
be the potential for capital gain or profit by sale of the franchises....
In the circumstances, especially the advertisements for the sale of
franchises, his failure to provide any realistic and complete evidence about the
current situation is a deficit which leaves the Court quite dissatisfied with
the extent of his disclosure about the need to sell the former matrimonial home.
This is particularly so because the figures provided do not include any profit
or asset value of two companies which appear on the face of the Background
Summary to be at the heart of the proposed franchises. One holds the
intellectual property to the manuals and agreements which ultimately would be
used for the franchise arrangements, the other holds the trade marks and
registered names which would, it seems to me, be used to the same end. Franchise
sales, proposed sales and expected forecasted sales would be bound to give these
assets a value. It is significant that in the Background Summary these are not
said to have no value, they are said to have “no assigned value”....

In all the circumstances, I am not satisfied that the husband has
established the hardship he claims or the need to sell the former matrimonial
home. I am not satisfied that the bank which holds the home as security will
force a sale. In that event, it is irrelevant that the wife may be asking for
less than she previously sought despite her claims to believe the husband’s
worth is greater than she previously believed.
The material supplied to the
wife is quite insufficient to allow her to really appreciate the husband’s
financial circumstances and she is entitled to keep her options about the
property she seeks open until she has a better idea of his position. To do that,
the former matrimonial home needs to be maintained. As no pressing need to sell
it has been established, the home should be kept and I should refuse the
husband’s application for sale of the home...

Sunday, 1 November 2009

Family Court case: parents made to keep nesting in the home

In the recent Family Court case of Byrd and Byrd, Judicial Registrar Loughnan had to consider an application by the wife for sole use or exclusive occupation of the home, when the home was shortly to be sold, and for several months the husband and wife had moved in and out of the home in rotation, so as to enable the child to remain there. In other words,the wife wanted to chuck the husband out of the home, when all they had done was to the contrary.

The wife was unsuccessful. The Judicial Registrar stated:

The court has power to make an order for exclusive occupation. The power is
found in section
114.
It gives the court power to make an order that is proper. Examples are
given of the sort of order that might be made under section
114
and specific mention is made of orders in relation to the use of the
home. Generally, an order will be made where it is not reasonable, sensible or
practicable for the parties to live together.
There is a sense in which this
is a silly application, because the house in question is being sold soon and the
children will be moved out of their bedrooms in any event. However, I do not
know that the house will sell. The property market is not as reliable as it once
was and it may be that the parties will not be able to sell it for a period. So
there is the potential for the issues that the parties have raised to drag on.
The problem in relation to the children is that the parties do not agree
about what the children want. In March, despite all of the problems that the
parties had experienced in the past, they thought it was in the best interests
of the children for there to be a nesting arrangement, with the adults coming
and going and the children staying in the former matrimonial home. The wishes of
the children are particularly important in a case where there is a 16 year old
child, a 14 year old child and an 11 year old child....
On one view, as I
say, this could be a trivial issue. On the other hand, it was so important to
the parties in March that they made this rather unusual arrangement.
There
is no way of me identifying what these children want in a timeframe that makes
sense of the timing of an auction listed in the middle of this month. Their
views could be obtained by having the children see a Family Consultant in the
child responsive model or I could appoint a lawyer for the children. Either
process takes a month or so.
Without being able to make a finding of fact on
a disputed issue I am obliged in a case like this, to take the common ground
position. The common ground position is that the parties felt that the children
should stay in the home and the adults should come and go. The parties have
probably interfered with each other’s private goods and personal possessions, in
the time since the orders were made. That is a real problem in a case like this
because there is a risk that privileged material will be accessed. There is also
the potential for the children to be embarrassed by bad behaviour by the
parents.
The evidence suggests that each of the parties has interfered with
the personal possessions of the other. We are only in this position because,
unusually, parties who have decided to live separately and apart forever are
sharing a house for the time being. They are doing that not because they need
to, but because they decided that they both want to have a meaningful
relationship with their children and it is more important that their children
have access to their own rooms for a period than it is for the parents to get on
with their lives.
In the circumstances it seems to me that there should be
no interference with the arrangements the parties put in place in March.
I
doubt that the children would get away with behaviour that the parents have
described in their affidavits. It cannot be very edifying. But these are not
people who anybody suggests are lacking in sophistication or suffer a defect of
reason or do not understand how to properly behave. These are people of some
standing, obviously intelligent people, obviously loving parents, and it seems
to me that they can be expected to comply with their obligations.
As has
been said on behalf of the husband, if it was so intolerable to the mother, then
the obvious remedy was to get the children straight out of the home, and that
has not been done. That is a good thing. The problems are not at a point where
it is more important the children be safely away from the incidents of bad
behaviour than it is that they have use of their own home, own bedrooms. That is
good and, hopefully, that reflects a judgment that this is really a matter of
preference rather than a matter of necessity.
As a general proposition,
children can take responsibility for bad behaviour by their parents. They think
they are responsible, especially younger children. The parties need to redouble
their efforts to make sure that is not the case. They will have been told that;
they must know it. Hopefully, we can limp through to the settlement of the sale.
If not, if either of the parties thinks that it is more important that the
children be away from the conflict than it is that they stay for a few weeks in
their bedrooms, then by all means that parent can make arrangements for them to
be somewhere else.
The advantage of the existing arrangement continuing is
to avoid an additional move. The inference one draws from the mother’s
application is that C might not move. In those circumstances, an order excluding
the husband may interfere with his relationship with C and that might not be
what she wants.
When the power of the state is to be exercised to do
so serious a thing as to exclude somebody from a property they are entitled to
be in, the Court needs to be reasonably comfortable that any change will be for
the better.
I cannot be comfortable about my obligations to the
children in these circumstances.
In relation to the application about the
personal items. I will make an order for the return of items about which there
is no dispute. I am told that there are some things that are acknowledged to be
in the possession of one of the parties, that are sought by the other and the
first mentioned party does not mind returning those items.

Murri men battling domestic violence

Once Were Warriors



On Wednesday night, in my role as a White Ribbon Ambassador, I had the honour of speaking to a group of extraordinary Murri men, includng an ex-Olympian, about domestic violence and White Ribbon Day.





White Ribbon Day is held on 25 November each year. It is the UN International Day for the Elimination of Violence Against Women. White Ribbon Day is an international movement of men saying that they are opposed to violence against women.





I am one of the 600 or so White Ribbon Ambassadors appointed by the White Ribbon Foundation.





I was honoured to talk to these Murri men. In my practice as a Brisbane family lawyer, I have acted for indigenous men and women over the years. Too often there has been violence in the relationship, often much worse than seen in non-indiginous relationships, often associated with other social deprivation, such as alcohol and drug use.








I was honoured on Wednesday night because these men were taking a stand against violence against women. The fact that they wanted to hear from someone talking about domestic violence was significant in itself.





After I had said what I had to say, I was amazed to listen to the men:

  • one man had previously tried to watch Once Were Warriors, the critically acclaimed fim about domestic violence in a Maori relationship. He found it too traumatising and disrespectful to women, and had only watched 10 minutes of it. Some years later he had watched the whole fim, after hearing much critical comment of how good it was. I said that I had only managed to watch 15 minutes of it myself- as I found it touched a raw nerve.
  • one man, an elder, had such a passionate commitment to ending domestic violence that he chairs the committee of a domestic violence service.
  • another man, Norm Stevens, considered that it was more important that he had previously been a poster boy for White Ribbon Day, than a former Olympian!

Three years ago Norm was asked by the Sergeant running the local PCYC whether Norm was prepared to be photographed for White Ribbon Day. Norm readily agreed, and photos were distributed in the local area.

For me, while was that was great, it emphasised to me how much more important Norm considered the fight against domestic violence, as against the fact that he had represented Australia in boxing in the 1980 Moscow Olympics, and that this would have taken some personal courage, given that they were the boycott Olympics.

Leave to adopt- how to get it in the Family Court

On a number of occasions over the years, I have obtained leave to adopt from the Family Court for clients. As lawyers, we rely on the precedents of other cases. The frustrating part of it, at some level, with applications for leave to adopt is that when my clients have brought these applications, I could not point them to any decided cases about leave to adopt- until now.

Leave to adopt is a requirement under the Family Law Act. It was enacted following a trend by mothers who had repartnered to have their new partner to adopt her child from a previous relationship, or both the mother and her new partner to adopt that child. The point of the adoption was often to cut out the father from any relationship with the child- once the adoption had gone through the child was no longer a child of the marriage- and bingo! - the father could no longer have any contact with the child.

As a result the leave to adopt provision was added some years ago. While it is still possible to adopt your own child from a prior relationship without the need for leave, the effect of the provision is that unless leave is obtained, the child remains the child of the prior relationship, which means that:
  • the other parent subject to any orders still has a right to make decisions about that child;
  • the child still has the right of a meaningful relationship with the other parent; and
  • the other parent still has a liability to pay child support.

The leave to adopt provisions are rarely used. In my almost 25 years of practice I have used them four times for clients, although discussed them on plenty of others. Neither of my partners, both of whom are long standing family lawyers, have ever used the provisions.

The leave to adopt provisions are necessarily limited by state and territory legislation about who can adopt. There is no point seeking leave to adopt if it's a dead end- what's the point getting leave if as a matter of law you will be unable to adopt? For example, in Queensland it has been next to impossible for anyone to adopt unless they were married for 2 years- which cut out de facto couples and same sex couples. In Queensland this is changing to heterosexual de facto couples, but not homosexual de facto couples.

The typical case in which clients would seek leave to adopt is:

  • the mother and father had split up when the child was a baby or toddler;
  • the father of the child was violent and abusive;
  • when the relationship ended with the mother, he took no interest in the child, and never spent time with his child, or telephoned, or wrote, or sent presents- it was as if he disappeared back into a black void;
  • he never or rarely paid child support. When it was paid it was a pittance, and often paid with threats along the lines of that he would take the child if she did not cut off child support- with the counter-balance- if you stop child support, then I will have nothing to do with the child again;
  • the mother's new relationship was very happy;
  • for all intents and purposes the child saw the mother's new husband as her dad, and had a very loving relationship with him;
  • the child knew that he had a real dad, but also had to deal with the disappointment that his real dad really didn't love him.

I remember my first leave to adopt case as it was quite poignant. The mother was a redhead with white skin and freckles. Her son was her genetic copy. Cute looking kid. Her second husband, who had been around since the son was a toddler, was Asian- with dark brown skin and black hair. And the son adored him and called him Dad, when it was evident to all, including the son, that "Dad" could never have been Dad. The son knew he had a real dadout there.

Once a client (and depending on the state or territory law, her partner as well) has obtained leave to adopt, then application needs to be made to the state authorities to adopt. Properly organised, this should proceed smoothly. Although there is a fee to be paid, it is cheaper than the application to the Family Court.

An odd requirement of the Family Law Act is that the leave to adopt provision must be made to the Family Court. There is no ability in the Federal Magistrates Court to make such an application.

In the recent Family Court case of Brooks and Sloan, Justice Austin had to consider whether to grant leave to adopt when:

  • mum and dad had split up when the child was 2;
  • mum had repartnered when the child was 2 1/2;
  • mum and the child had moved when she was 2 from Tasmania to NSW (and presumably dad had little to do with her from that point on);
  • when the child was 5, mum had remarried. No doubt the girl was a flower girl or at the least very excited about the wedding;
  • dad had been served with court documents but hadn't turned up;
  • there was no allegation of domestic violence;
  • dad consented to the adoption;
  • the girl had a little half-sister, who was aged almost 2. The daughter is now aged 7;
  • the daughter was not aware of her natural father, was not aware of her pending adoption, and only recently became aware that she was not the child of her step-father;
  • the daughter wanted to remain in that household.

His Honour granted leave, it being in the best interests of the child, commenting:

Completion of the proposed adoption process will therefore have no practical
effect on the day-to-day life of the child.