Sunday, 23 August 2015

Australians loved using Ashley Madison

Recent figures from Reuters, folllowing the Ashley Madison data dump, show an extraordinary number of Australians used the website, presumably to have affairs. The numbers are simply astounding, and Aussies took to Ashley Madison with gusto- at twice the rate of big cities overseas:

Sao Paulo, Brazil is the overall winner with 374,542 users.

The population of Sao Paulo is about 11 million, or about half the Australian population in that one city. In other words, about 3% of the population had signed up.

New York: 268, 171

New York has a population of 8.4 million. About 3% again.

Sydney: 251, 813

Sydney has a population of 4.3 million. Almost 6%!

Melbourne: 213, 847

Melbourne has a population of 4.1 million. About 5%.

Brisbane: 118,857

Brisbane has a population of 2.1 million. Almost 6% again!

Perth: 88,754

Perth has a population of 1.8 million. Just under 5%.

Sunday, 16 August 2015

Divorce filing fees stay down- for now at least

"Those magnificent men in their flying machines,
they go up tiddly up up,
they go down tiddly down down.": Those Magnificent Men in Their Flying Machines


A great quote to describe the  way that family law filing fees have been going.

Before 25 June they were down. They were going to go upppity up, up on 1 July: substantially. Then the Senate stepped in on 25 June and disallowed the increase. They remained tiddly down, down.

That might once have been the end of the matter as the Legislative Instruments Act 2003 provides that when a regulation is disallowed by the Senate, that instrument cannot be reintroduced for 6 months.

The Government was not to be outdone. On Sunday 12 July 2015, when the Senate was in recess, the Government hiked the fees again uppity up, up- to take effect the following morning, Monday 13 July. However, just to make sure that the Government didn't get stuck by the Legislative Instruments Act, the fees were hiked up by an extra $5.

The fee hike was substantial:

  • A $355.00 increase in the full Application for Divorce fee in the Federal Circuit Court of Australia from $845.00 to $1,200.00. This increase matches the full Application for Divorce Fee in the Federal Circuit Court to the Family Court of Australia, which has increased from $1,195.00 to $1,200.00;
  • An $85.00 increase in the fees for an Application for Consent Orders from $155.00 to $240.00;
  • A $70.00 increase in the fees for issuing subpoenas from $55.00 to $125.00; and
  • A new filing fee will be payable for the filing of amended applications or subpoenas in the sum of $125.00.
I do not recall in 30 years of practice that chaos like this has happened from a fee hike. Those who lodged their fees by post were rejected because the amount was too little. Suddenly solicitors were demanding more money from disgruntled clients for the filing fee, because the Government had made the changes without any notice.

The ALP and the Senate were not to be outdone.

The first step was to challenge the tiddly, up, up in the Federal Court. ALP members Graham Perrett and Senator Claire Moore were in the Federal Court seeking to get the fee hike set aside, suing Attorney-General George Brandis in the process, and to go tiddly down, down. If they had been successful, then any reduction in fees by the Senate overturning the fee hike would have had to be refunded by the Commonwealth government.

They were not successful, the Federal Court deciding that fee hike was different from the previous uppity, up, up.

In the meantime the Senate came to the fore again and disallowed the fee hike. Unless the Government introduces yet another, different fee hike, the fees remain as is, the 25 June rate, for the next 6 months with the divorce filing fee at $845, not $1200, for example.

Watch this space to see what happens next!

Sunday, 2 August 2015

Defending a Hague Convention case

Of all the cases that are the hardest to defend, and therefore the one to make sure is handled the most carefully, is a Hague case. They are not to be trifled with.

Hague cases are technically demanding, and it is essential to get the detail right- first time. Because they are often dealt with very quickly, attempting to patch up a defence to a Hague case because of mistakes made earlier may be too little, too late. It is essential when defending a Hague matter not to jump to conclusions, and to examine the evidence very carefully.

So that I am not speaking in tongues, a Hague case is one brought under the Hague Child Abduction Convention of 1980. The concept of a Hague case is really simple- it is designed that by the most efficient means that the children will be returned to the country that they came from.

There are some tricks to Hague cases, and cases when they are defended sometimes turn on hotly contested facts, but here goes:

  • A child is taken from country A to country B.
  • Both countries have to have signed up to the Hague Child Abduction Convention. Sometimes this is called ratification, but could be accession or succession.
  • An added trick is that even if a country has signed up to the Hague Child Abduction Convention, they may not have signed up with the other country. In other words, both have signed up, but not with each other.  This is because one country may have placed a reservation with the other country.
  • The child was wrongfully removed from the first country or if properly removed from the first country was wrongfully retained in the second country. It is important to check that there was a wrongful removal, if that is alleged. It may be that because of the laws of country A that what at first glance is wrongful turns out not to be so.
  • The first country must be the child's habitual country of residence. If not the Convention does not apply.
  • The wrongful removal or wrongful retention was in breach of rights of custody of a person. "Custody" has technical requirements and includes the right to determine where the child can live. In Australia, the term "custody" is generally not used. The term "custody" within the meaning of the Convention would in Australia generally equate to parental responsibility. The question of this breach can depend on complex facts and law, and needs to be checked carefully.
  • The person whose rights of custody have been breached then approaches the government in their country which then sends paperwork to the Australian government, which then sends them to the local authorities, such as the NSW Central Authority, to apply to the Family Court to have the child returned.
  • That person must have, but for the actions complained of, been exercising rights of custody before the removal or retention.
  • The child must be under 16.
  • The application has been made within 1 year of the wrongful removal or retention. 
As you can see, even with this thumbnail sketch, Hague applications are very technical matters.

In defending a Hague matter, it is usually better to be able to defeat it on one of these technical points, rather than have to rely on one of the five defences. The reason is simple- even if the defence is made out, it is then a matter of discretion for the judge about whether the child should return. Quite often the judge will find that the defence is made out, but in light of the overall requirements of the convention order the child to go home.

The five defences are:

  •  the person was not exercising rights of custody
  • the person consented or acquiesced to the removal or retention
  • there is a grave risk to the child who would be placed in an intolerable situation of being returned (this can be a very tricky defence to establish)
  • a mature child objects to being returned- and has a strength of feeling on the point that goes beyond mere wishes
  • it would be a breach of human rights and fundamental freedoms to return the child

It is a mistake to assume that the basis of the Convention is that the best interests of the child are the paramount concern. This is not the basis of the Convention. The Convention is designed to ensure a quick return of the child back to their home country, where matters such as with whom the child can live will then be determined. Judges have often said that their role is NOT to determine best interests. that can be determined somewhere else.

I have enjoyed both prosecuting and defending Hague cases in Australia and overseas.






International Academy of Matrimonial Lawyers to become the International Academy of Family Lawyers

Context is everything, as they say. What might be a perfectly acceptable use of English in one part of the world could in another part be screamingly funny, because of local colloquial language.

The same applies to businesses.

I discovered that this week, when I received a letter from International Academy of Matrimonial Lawyers President, William Longrigg, that the Academy is changing its name from the outdated International Academy of Matrimonial Lawyers to the more modern International Academy of Family Lawyers. An overdue and welcome change. I am proud to be a Fellow of the Academy, the most prestigious group of family lawyers in the world, and I am pleased that its name is changing with the times.

But to get to this point, of possibly changing the name,  the Board of the Academy decided to engage a brand consultancy, which was- wait for it-  Red Rooster Group, not Red Rooster in Australia, the national fast food chicken chain

It was one of those letters I had to read twice, wondering whether I had read it correctly. I had indeed!