Wednesday, 23 June 2010

Just watched Addicted to Surrogacy on ABC2. Amazing stuff. One woman had had 12 children! Another 7. Hopefully will be on iView soon.

Monday, 14 June 2010

International declaration on international child abduction

On 23‐25 March 2010, more than 50 judges and other experts from Argentina, Australia, Brazil, Canada, France, Egypt, Germany, India, Mexico, New Zealand, Pakistan, Spain, United Kingdom and the United States of America, including experts from the Hague Conference on Private International Law and the International Centre for Missing and Exploited Children, met in Washington, D.C. to discuss cross‐border family relocation. They agreed on what is called the Washington Declaration:

Availability of Legal Procedures Concerning International Relocation

1.States should ensure that legal procedures are available to apply to the competent authority for the right to relocate with the child. Parties should be strongly encouraged to use the legal procedures and not to act unilaterally.

Reasonable Notice of International Relocation

2.The person who intends to apply for international relocation with the child should, in the best interests of the child, provide reasonable notice of his or her intention before commencing proceedings or, where proceedings are unnecessary, before relocation occurs.

Factors Relevant to Decisions on International Relocation

3. In all applications concerning international relocation the best interests of the child should be the paramount (primary) consideration. Therefore, determinations should be made without any presumptions for or against relocation.

4.  In order to identify more clearly cases in which relocation should be granted or refused, and to promote a more uniform approach internationally, the exercise of judicial discretion should be guided in particular, but not exclusively, by the following factors listed in no order of priority. The weight to be given to any one factor will vary from case to case:

i)the right of the child separated from one parent to maintain personal relations and direct contact with both parents on a regular basis in a manner consistent with the child’s development, except if the contact is contrary to the child’s best interest;
ii) the views of the child having regard to the child’s age and maturity;
iii) the parties’ proposals for the practical arrangements for relocation, including accommodation, schooling and employment;
iv) where relevant to the determination of the outcome, the reasons for seeking or opposing the relocation;
v) any history of family violence or abuse, whether physical or psychological;
vi) the history of the family and particularly the continuity and quality of past and current care and contact arrangements;
vii) pre‐existing custody and access determinations;
viii) the impact of grant or refusal on the child, in the context of his or her extended family, education and social life, and on the parties;
ix) the nature of the inter‐parental relationship and the commitment of the applicant to support and facilitate the relationship between the child and the respondent after the relocation;
x) whether the parties’ proposals for contact after relocation are realistic, having particular regard to the cost to the family and the burden to the child;
xi) the enforceability of contact provisions ordered as a condition of relocation in the State of destination;
xii) issues of mobility for family members; and
xiii) any other circumstances deemed to be relevant by the judge.
5. While these factors may have application to domestic relocation they are primarily directed to international relocation and thus generally involve considerations of international family law.
6.The factors reflect research findings concerning children’s needs and development in the context of relocation.

The Hague Conventions of 1980 on International Child Abduction and 1996 on International Child Protection

7. It is recognised that the Hague Conventions of 1980 and 1996 provide a global framework for international co‐operation in respect of cross‐border family relocations. The 1980 Convention provides the principal remedy (the order for the return of the child) for unlawful relocations. The 1996 Convention allows for the establishment and (advance) recognition and enforcement of relocation orders and the conditions attached to them. It facilitates direct co‐operation between administrative and judicial authorities between the two States concerned, as well as the exchange of information relevant to the child’s protection. With due regard to the domestic laws of the States, this framework should be seen as an integral part of the global system for the protection of children’s rights. States that have not already done so are urged to join these Conventions.

Promoting Agreement

8.The voluntary settlement of relocation disputes between parents should be a major goal. Mediation and similar facilities to encourage agreement between the parents should be promoted and made available both outside and in the context of court proceedings. The views of the child should be considered, having regard to the child’s age and maturity, within the various processes.

Enforcement of Relocation Orders

9.Orders for relocation and the conditions attached to them should be able to be enforced in the State of destination. Accordingly States of destination should consider making orders that reflect those made in the State of origin. Where such authority does not exist, States should consider the desirability of introducing appropriate enabling provisions in their domestic law to allow for the making of orders that reflect those made in the State of origin.

Modification of Contact Provisions

10. Authorities in the State of destination should not terminate or reduce the left behind parent’s contact unless substantial changes affecting the best interests of the child have occurred.

Direct Judicial Communications

11.Direct judicial communications between judges in the affected jurisdictions are encouraged to help establish, recognise and enforce, replicate and modify, where necessary, relocation orders.


12.It is recognised that additional research in the area of relocation is necessary to analyse trends and outcomes in relocation cases.

Further Development and Promotion of Principles

13.The Hague Conference on Private International Law, in co‐operation with the International Centre for Missing and Exploited Children, is encouraged to pursue the further development of the principles set out in this Declaration and to consider the feasibility of embodying all or some of these principles in an international instrument. To this end, they are encouraged to promote international awareness of these principles, for example through judicial training and other capacity building programmes.

Family law identities honoured

Several family law identities have been honoured in the Queen's Birthday Honours list issued by the Governor-General. I have used "identities" deliberately as some of those honoured are not normally associated with family law.

Jude Munro

Jude is the retiring CEO of Brisbane City Council. Jude became an Officer of the General Division of the Order of Australia (AO) for distinguished service to local government, particularly the Brisbane City Council, and to the community through contributions to business, professional development and philanthropic organisations.

What was not mentioned in the citation was the continued strong support  by Jude for Australia's CEO Challenge. This charity, of which I am a board member, is the only organisation in the country that partners business and the domestic violence sector. Jude, as CEO, has strongly supported it, including in 2008 participating and winning the annual race to increase the profile of the organisation and raise money. She did so by having posters put on many Brisbane City Council buses advertising help for those in domestic violence relationships. Jude Munro won a Queensland Domestic and Family Violence Prevention Award on behalf the council from her efforts in the race.

Jim Soorley

The former long serving Mayor of Brisbane, Jim Soorley was made a Member of the General Division of the Order of Australia (AM) for service to local government and to the City of Brisbane, particularly as Lord Mayor and through the implementation of a range of cultural, urban design, transportation and waterway improvement projects.

It is not widely recognised that on being elected mayor, Jim Soorley decided to do something about domestic violence in Brisbane. He commissioned a wide ranging study of domestic violence, a topic not previously touched by any mayor. He then ensured that a co-ordinated community response was started at Wynnum in suburban Brisbane, one of the country's firsts.

Jim Soorley also was the founder of Australia's CEO Challenge. He ensured that pioneering social worker Jim Hardeman came from the US to speak about his model of a charity to link businesses and the domestic violence shelter. Inspired by Jim Hardeman's visit, Jim Soorley then founded Australia's CEO Challenge.

 Justice  Dessau

Justice Linda Dessau has been made a Member of the General Division of the Order of Australia (AM) for service to the judiciary, particularly through contributions in the area of family law policy and practice, and to the community.

A barrister from 1978 to 1982, Justice Dessau was first appointed a Victorian magistrate in 1986, and in 1995 was then appointed as a Family Court judge, based in Melbourne.

Justice Dessau has had a distinguished career, including:

  • Member and former Board Member, Association of Family and Conciliation Courts, since 1996.
  • Council Member, National Judicial College of Australia, since 2005;

  • Commissioner, Australian Football League, since 2008.

  • Member, Community Council Against Violence.

Dr Judy Cashmore

Dr Cashmore has been made a member of the General Division of the Order of Australia (AM) for distinguished service to the protection of children, as a research psychologist and advocate for the rights of children, through the development and implementation of social policy and law, and through leadership roles of organisations supporting child welfare.

Her service has included:
Various advisory roles with the NSW Department of Community Services, including:
- Member, Ministerial Advisory Council.
- Member, Research Advisory Committee, since 2002-2003.
- Current Member, Academic Advisory Group.
- Foundation Member, Child Protection Advisory Group, since 2008.
- Co-Chair, EnAct, 1998-2000.
- Deputy Chair, Community Welfare Legislation Review, 1994-1998.
Member, NSW Judicial Commission, since 2001.
Member, Advisory Committee on child sexual assault cases, NSW Department of Public Prosecutions, for many years.
Chair, New South Wales Child Protection Council, Deputy Convenor, NSW Child Death Review Team, for several terms.
Extensively involved in discussions to establish the NSW Commission for Children and Young People (CCYP) and the related legislation requiring employment screening for people working with children, 1998.
Consultant, NSW Bureau of Crime Statistics and Research.
Consultant, Australian Law Reform Commission.
Deputy Chair, Association of Child Welfare Agencies, 2001-2005; Member of 2005 non-government delegation to the UN Committee on Rights of Child, Geneva.
President, Australian National Committee, Defence for Children International.
Adjunct Professor and Foundation Chair, Advisory Board, Centre for Children and Young People, Southern Cross University.
Associate Professor, Faculty of Law, University of Sydney, since 2003; as development psychologist.
Honorary Research Associate, Social Policy Research Centre, University of New South Wales, for over 10 years.
Board Member, National Children's and Youth Law Centre, since 2004.
Dr Cashmore is one of 4 international scholars appointed to edit the Handbook on Research with Children led by Professor G Melton, an American psychologist. Research since 1985 focused on children’s involvement in, and experience of, legal proceedings in relation to family law, care and protection and as child witnesses.
Co-Author, The Voice of the Child in Family Law Disputes, Oxford University Press, UK, 2008; (with Professor P Parkinson AM).
In 1996 Dr Cashmore co-authored a longitudinal study entitled Wards Leaving Care and the follow-up publication Wards Leaving Care - Four to Five Years On, in 2007.
Author of a further 30 referred articles, 15 book chapters and 15 reports and conference papers.

Thursday, 10 June 2010

Notable quote #1

Proceedings between former spouses, in this court, are frequently conducted against a background of heightened emotion and some heat. This is because they invariably deal with private and sensitive matters, arising between parties who would have no occasion to embark upon litigation, other than for the breakdown of the marriage or relationship between them. For this reason, they cannot be regarded as being analogous to commercial proceedings or other general civil litigation. -

Federal Magistrate Brown in Meldrum v Dodge.

Wednesday, 9 June 2010

A lawyer who acts for himself (herself) has a fool for a client

The reality about family law is that, unfortunately, not everyone can afford to have a lawyer, or falls through the gaps- can't afford legal representation and is not eligible for legal aid. Some people who can afford to have representation choose not to. This old proverb, which I thought was spoken by Dr Samuel Johnson, is still apt.

Apparently, it has now made its way into caselaw, at least in the US.

Family law cases occur ordinarily when the emotions are running high. It's generally a good idea to have someone who knows what they're doing and can advocate calm, rather than to do it yourself when your emotions are running out the door.

One of the most effective roles of a family lawyer is to be that objective element and to, as one of my colleagues once put it (and not always observed, unfortunately): " represent a client's interests, not their anger".

Yesterday I blogged about Wilson v Wilson, in which the husband sought unsuccessfully to be divorced. This case is the classic one of someone who should have known better. The husband was a solicitor. As a lawyer, he is an officer of the court. Although less than complimentary of the wife, Federal Magistrate Lapthorn showed the clear difficulties for the husband, as a solicitor, and someone who should have known better, in acting for himself on the divorce:

After having observed the parties give their evidence I was left with the impression that neither of them had an accurate recollection of the events surrounding the deterioration and collapse of their relationship. Both parties were adamant in maintaining their view of when separation occurred although the husband gave a number of different dates. The husband presented his evidence in a forthright way but was at times argumentative and angry. I warned the husband on at least one occasion to not argue and to answer the questions appropriately. The need to warn a solicitor of this requirement was disappointing. Whilst I accept that family law disputes are emotional for parties even if they are officers of the court it remains unfortunate the husband was unable to remain respectful in the delivery of his evidence at times. The wife was also forthright in the way she gave her evidence at times but at other times appeared unable to recall precise dates and events. Whilst this may not be all that unusual I was left with the impression her memory was selective and her answers may have been given to reflect her perception of what would assist her case. Overall I was left with the impression that the parties had either become so entrenched in their view of events that they could not possibly see that the facts were any way other than as they recall them or that each of them was less than truthful. Either way I was not assisted to determine the truth on their evidence alone. (emphasis added)
RT @Family_Court: The myth of women̢۪s false accusations of domestic violence & rape & misuse of protection orders...
RT @surrogacylawyer: Lesbians' kids well adjusted, study finds

Tuesday, 8 June 2010

Test for separation under the one roof

The Federal Magistrates Court has recently set down the test for separation under the one roof. This approach is consistent with cases that talked about the change of the living nature of the relationship [the jargon is consortium vitae] having unambiguously changed, so that there could be a point when someone looking from outside could say: "Ah ha. They have split up."

This happened in Wilson v Wilson, where Federal Magistrate Lapthorn was confronted with that rare creature- the contested divorce.

The issue that his Honour had to tackle was the date of separation. If it were the husband's, then there was 12 months of separation. if the wife's there was less than 12 months. Ultimately his Honour found that the husband had not established the 12 months, and dismissed the application.

His Honour set out the test for separation under the one roof:

When parties have separated under the one roof it is often difficult to determine at what particular point they separated especially if they have been experiencing marital difficulties for a lengthy period of time. In many instances married couples will have had discussions about separating but take some time before they actually arrive at the point of separation. Indeed in the course of those discussions a party may even say the marriage is over but not act on that statement for some time. For there to be a separation there needs to be not only the communication of the fact from one party to the other but also some action to confirm that intention. In cases where a party moves out of the matrimonial home it may be said that that move is both communicated and acted upon depending on the circumstances. When the parties remain under the one roof however the court would need to be satisfied that there has been an intention to separate by at least one person followed by a communication of that intention with some form of action following the communication to confirm the intention. Federal Magistrate Maguire in Aitken & Deakin held the view that the communication needed to be unambiguous and unconditional. Her Honour considered the test of the element of communication to be an objective one. With respect I agree. (emphasis added)

Monday, 7 June 2010

High Court comments on constructive trusts

The High Court has recently commented about the usefulness of constructive trusts. In the White City litigation, which pitted a tennis club against tennis legend John Alexander, the old White City tennis centre was being redeveloped.

The tennis club had been unsuccessful at trial, then appealed to the NSW Court of Appeal. That court had imposed a constructive trust over the property in favour of the club. This had the effect of excluding John Alexander's company and a property company. John Alexander's company appealed to the High Court.

The High Court in an unanimous judgment of Chief Justice French and Justices Gummow, Hayne, Heydon and Kiefel upheld the appeal. The court criticised the NSW Court of Appeal for imposing a constructive trust, without recognising the rights of other parties.

Most significantly, the court held:

A constructive trust ought not to be imposed if there are other orders capable of doing full justice.
This is one sentence that is likely to be quoted regularly in the future.

Constructive trusts are important in family law. They have been an important feature of family law, especially in de facto cases, since 1987, following the seminal decision of the High Court in Baumgartner v. Baumgartner.

Types of trusts

There are four types of trusts that courts commonly recognise which are directly relevant to family law:
  • an express trust - examples are the "Fred Smith Family Trust" or a bank account stated as "Mary Smith as trustee for Esmerelda Smith";
  • an implied trust- where the court says that a trust was intended, due to the actions of the parties and is therefore implied;
  • a resulting trust - where the conduct and intentions of the parties is such that a trust is the result of the conduct and intentions; and
  • a constructive trust- where to ensure that there is not an unfair outcome, for example by way of unconscionable behaviour, the court imposes or constructs a trust. A constructive trust is different from the other types, as it is not dependent on intentions or conduct, but constructed by the court.
Baumgartner v. Baumgartner

The de facto wife sought a property settlement. There was no legislation in place to allow a property settlement between de facto spouses. The house was in the name of the de facto husband. During the course of the relationship, the de facto husband had made home payments, and the de facto wife had paid for groceries. The de facto husband therefore asserted that the de facto wife had made no payments towards the home and had no interest in the home.

The High Court held that it was unconscionable for the de facto wife not to have an interest in the home, and imposed a constructive trust.

Sunday, 6 June 2010

Court order prevents arranged marriage

A 17 year old quick witted girl recently obtained the help from the Australian Federal Police to prevent her being sent  to Lebanon by her mother, father and step-father for an arranged marriage.

The girl telephoned police while her mother was out and told police that she might have to hang up at any time. The girl was aware of the watchlist but wanted as little involvement from authorities as possible. The watchlist, run by the Australian Federal Police, prevents people leaving Australia. In family law matters, the Australian Federal Police require, at the least, proceedings in place concerning children, but preferably  orders placing a child on the watchlist, and restraining the removal of the child from Australia.

Police determined that the girl was genuine.

Police obtained an injunction from the Federal Magistrates Court placing the girl on the watchlist and preventing her removal from Australia. The court also ordered the surrender of any passport of the girl, and requesting the intervention of DOCS.

The irony is that if the girl had been 18, it is questionable whether any court would have taken action to prevent her from leaving Australia, as she would be deemed to be of age and therefore able to act of her own free will.

Wednesday, 2 June 2010

Children feel "betrayed" by shared parenting: uni study: