Wednesday, 19 July 2017

Vale Justice Michelle May of the Family Court of Australia

Tonight I attend a function recognising the service of Justice Michelle May, who is retiring after many years of service from the Family Court of Australia.

I had the privilege many years ago of briefing her when she was junior counsel; and then after she was appointed as Queen’s Counsel; and then appearing before her when she sat in the Family Court; and then appearing before her when she sat as an appeal judge in the Family Court.

Her colleagues on the bench quickly discovered what those of us in private practice had already discovered, a lawyer of the top order who:

·         had grace, courtesy and humility as standout qualities;

·         had a great sense of judgment,  justice and fairness;

·         had a great sense of care about those with whom she dealt, particularly downtrodden parents and their children;

·         was concerned about the insidious impact of domestic violence; and

·         was extremely hardworking and competent.

I will miss Justice May terribly.  I consider that she is one of the best judges and lawyers I have ever come across.  The Family Court will be poorer because she has left.  I hope that in her return to civilian life that she has time to assist with family law, whether it be by way of mediations or arbitration or assisting in various charitable ways.   Her judgment, sense of decency and humanity, skill and grace are the equal of any.

She will be sorely missed.

Monday, 17 July 2017

Government to restrict cross-examination of family violence victims by their alleged perpetrators

Attorney-General Senator George Brandis has released the following statement:

protecting family violence victims from being
cross-examined by alleged perpetrators

Today, I release draft legislative amendments to the Family Law Act 1975 to ensure victims of family violence are protected from being personally cross-examined by their alleged perpetrators.

The proposed legislative changes are part of the Government’s ongoing commitment to implementing protections against family violence for Australian families, and form part of the Government’s package of measures to further support the family law system.   

The draft amendments see a legislative ban on self-represented parties conducting direct
cross-examination where one party is convicted or charged of an offence involving violence against another party. The court will also have discretion to disallow direct cross-examination in other matters where there are allegations of family violence.

To maintain procedural fairness, the court will be able to appoint a person to act as an intermediary to ask questions in cross examination on behalf of a party.

The draft amendments respond to concerns that family violence victims may experience further trauma from being directly cross-examined by their alleged perpetrators. This issue has been the subject of consultation with stakeholders and was identified as a key area of reform by the federal, state and territory governments at the 2016 COAG National Summit on reducing violence against women and their children.

The draft legislation, consultation paper and information on how to make a submission are available at: Submissions can be lodged until 25 August 2017.
17 July 2017

The Hague comes up with a draft guide to grave risk under the Hague Convention

When family lawyers and judges talk about The Hague Convention, often the one of many that they will be the 1980 Hague Convention, which deals with civil aspects of international child abduction. This Convention has so permeated the thinking of many family lawyers and judges that they often refer to it merely as the Hague Convention, and Hague Convention countries in submissions and orders.

Lawyers and judges should not be so lazy, as there are many Hague Conventions- and the signatories for each one are different.

Be that as it may, one of the defences to a Hague Convention application is to say that the child is at grave risk of harm if the child were to return to the country from which it originally travelled. This defence is available under Article 13(1)(b) of the Convention.

The Hague Permanent Bureau (the body that manages Hague Conventions) has now released a draft guide as to how to assess Article 13(1)(b) cases. The Guide is over 120 pages long, but for the first time talks about the possibility of mediation as well as domestic violence.

The Convention has been criticised by women's groups because of its alleged failure to properly take into account allegations of domestic violence when assessing grave risk. When the US was pushing Japan (ultimately successfully) to sign the Convention recently, women's groups were resisting, because of the perception that domestic violence was not taken seriously enough.

I recall some years ago I acted for the mother of two children who was resisting their return from Ireland to Australia because, she said, there had been severe domestic violence. The father denied that there had been any domestic violence. Rather than assess the domestic violence, the Irish court ordered the return of the children to Australia, saying that Australian courts could properly assess whether or not there had been domestic violence.

The Australian court ultimately found that the time between the children and their father ought to be supervised.

The draft Guide says this about assessing domestic violence:

"When assertions of domestic violence are raised in the context of an Article 13(1)(b) case, the appropriate and expeditious examination of such assertions falls to the judicial or other competent authority hearing the return proceeding, including whether any substantiated assertions meet the threshold of posing a grave risk to the child."

One wonders if this approach had been taken in the Irish case whether the court would have ordered the return of the children to Australia.

The Guide even refers to the availability of risk of harm assessment tools. 

The draft Guide is here. The Bureau has circulated the draft for comment by members nations, including Australia. If you have issues about the draft, and you're a lawyer, then let the Family Law Section of the Law Council of Australia know. If you're not a family lawyer, I suggest that you let Federal Attorney-General Senator George Brandis know your views.