Australian Divorce Blog

2011-12-12T23:21:00.001+10:00

Man shows no remorse after conviction for murdering his wife: http://ow.ly/7Woga

2011-12-07T20:53:00.001+10:00

Clinton: "gay rights are human rights" BBC: http://ow.ly/7Rkvo

2011-11-30T15:14:00.001+10:00

High Court overturns wife's right to silence against her husband: http://ow.ly/7Jnpy

2011-11-28T21:54:00.001+10:00

Tonight I went to the 25th celebration of Immigrant Women's Support Service: helping women and their kids escape domestic violence.

2011-11-28T13:36:00.001+10:00

I have just signed the ipetition in favour of the Civil Partnerships Bill: http://ow.ly/7GBL4

2011-11-28T09:21:00.001+10:00

I don't like to give oxygen to people like this, but a man was tied to the Story Bridge, protesting re the Family Ct: http://ow.ly/7GtYF

2011-11-27T10:37:00.001+10:00

Grim pickings for gays 2: Russia: The Guardian http://ow.ly/7FYQz The scariest part is to see the rise of neoNazis in Russia.

2011-11-27T10:35:00.001+10:00

Grim pickings for gays 1: Brazil: NY Times http://ow.ly/7FYPk

2011-11-23T11:11:00.001+10:00

I'm going tonight to Andrew Fraser's community forum on his Civil Partnerships Bill 7.30pm New Farm State School.

2011-11-23T11:10:00.001+10:00

Husband of missing Cairns woman charged with her murder: Cairns Post http://ow.ly/7CnqP

2011-11-14T17:17:00.001+10:00

Ex US Marine convicted of the stabbing murder of his former boss: ABC http://ow.ly/7sngu

2011-11-12T09:04:00.001+10:00

Judge orders swapping of Facebook and dating website passwords: ABA Journal http://ow.ly/7r1Jh As ever, FB is a goldmine for family lawyers.

2011-11-10T22:14:00.001+10:00

I'm going to Kevin Rudd's cocktail party on White Ribbon Day to help aid Australia's CEO Challenge. Will you join me? http://ow.ly/7oXRo

2011-11-10T22:04:00.001+10:00

Progress of the Civil Partnerships Bill Qld in committee: Brisbane Times http://ow.ly/7oXpA

2011-11-10T17:22:00.001+10:00

The president of the Qld Law Society spoke strongly in favour of the Civil Partnerships Bill. Hopefully another step to equality.

2011-11-07T13:11:00.001+10:00

57 year old IVF mum calls for 50 year old limit for mums to be: Brisbane Times http://ow.ly/7kNB3

2011-11-06T12:08:00.003+10:00

Gillard to allow conscience vote on gay marriage: Daily Telegraph http://ow.ly/7kfLt

2011-11-06T12:08:00.001+10:00

Qld police to be able to issue on the spot domestic violence orders: http://ow.ly/7kfKh

2011-10-29T17:17:00.001+10:00

Man jailed for horrific torture, rape of his wife http://ow.ly/7cHVU

2011-10-29T00:54:00.001+10:00

I am so glad that justice finall caught up with Kevin Smith http://ow.ly/7c0Qv

2011-10-26T05:38:00.001+10:00

Same sex adoption a step too far: Bligh: Brisbane Times http://ow.ly/78Hkm

2011-10-26T05:23:00.001+10:00

Tasmanian man jailed over HIV sex - ABC News Mozilla Firefox http://ow.ly/78GiP

2011-10-25T23:57:00.001+10:00

LNP slams same-sex "stunt": Brisbane Times http://ow.ly/78dRf

2011-10-25T23:56:00.001+10:00

This afternoon I was part of a delegation to Qld Attorney-General Paul Lucas about gay panic defence. Expect an announcement tomorrow.

2011-10-25T11:57:00.001+10:00

I was just interviewed by Ten and QUT news about police, firies, ambos, cabbies, Qld Rail and tow trucks putting White Ribbons on.

2011-10-25T11:55:00.001+10:00

I was interviewed last night by 4KQ about White Ribbon Day.

2011-10-25T07:38:00.001+10:00

This morning I was interviewed by 612ABC about proposed civil unions in Qld. I said it was a step in the right direction.

Apologies in advance from Vegas and Phoenix

2011-10-24T23:16:00.002+10:00

I want to apologise to the readers of my blog, as my blogging this year has been at a trickle. This is because I have been overwhelmed and amazed at the extraordinary demand for my presentations this year about surrogacy. For more- click here.

In two days I head to the US to speak, yet again, about surrogacy, this time to the world's first international surrogacy conference in Vegas.

After that, I am off to Phoenix, where I am privileged that I have been invited by "one of the five most inspiring women in America", Professor Sarah Buel, to lecture her students at the Sandra Day O'Connor College of Law at Arizona State University about domestic violence. Professor Buel is an inspiration to me. I like her clear headed vision about domestic violence. She is a strong advocate for the law taking clear, precise and effective steps to help end domestic violence, which in the US, like Australia, is all too frequent.

It seems funny that of all the law schools in America, the one I'll be speaking at was named after Sanda Day O'Connor, former US Supreme Court judge, whom I heard speak when I attended a lecture she gave at my alma mater QUT some years back.

A survivor of violence, Professor Buel is able to inspire amazing and extraordinary efforts by her students as to new ways of thinking about how to tackle domestic violence. Professor Buel is a renowned expert on domestic violence law.

2011-10-22T06:41:00.001+10:00

Qld Deputy Premier wants civil union laws now: http://ow.ly/75aLb

2011-10-21T18:15:00.001+10:00

My co-authored article on a State by State guide to surrogacy has just been published! A lot of work went into it.

2011-10-21T06:58:00.001+10:00

Moves to ban or severely limit international surrogacy: http://ow.ly/73Y3G

2011-10-18T08:30:00.001+10:00

Comment on child support "failures" : Brisbane Times http://ow.ly/70dNu

2011-09-27T10:05:00.001+10:00

What is happening with the world? I turn up in Nepal and then there is the worst earthquake in 80years, then a major fatal plane crash.

2011-09-27T10:01:00.001+10:00

I am alive and well! I did not die in the Kathmandu plane crash.

2011-09-27T09:59:00.001+10:00

I am alive and well! I did not die in the Kathmandu plane crash.

2011-09-19T12:28:00.001+10:00

Although I am in Kathmandu, all my group are safe and well. Decent sized earthquake.

2011-09-17T05:54:00.001+10:00

Today I fly out for Nepal and Thailand to help Australia's CEO Challenge help end domestic violence http://ow.ly/6wIOY

2011-09-16T17:44:00.001+10:00

It's not too late! I fly out to Nepal tomorrow, but the vital work of Australia's CEO Challenge in helping women and children survive the horrors of domestic violence goes on. Please donate! Every dollar counts. http://ow.ly/6w35t

2011-09-16T17:42:00.001+10:00

On Wednesday I spoke at the Westmead Fertility Symposium about NSW #surrogacy law.

2011-09-10T10:43:00.001+10:00

30 minutes from now I'm addresssing the family law residential about #surrogacy.

2011-09-10T10:39:00.001+10:00

1 week to go before I trek in Nepal to help women and chilldren survivors of #domesticviolence

2011-09-07T23:02:00.001+10:00

Bring back feudalism and oppression of women, thanks to China's Supreme Court: NY Times http://ow.ly/6nDDr Disgusting.

2011-09-07T16:30:00.001+10:00

Qld Government moves new domestic violence laws to State Parliament. A rewrite of the current laws.

2011-09-07T07:15:00.001+10:00

Marriage is"about rights of children" http://ow.ly/6mqmb

2011-09-06T21:53:00.001+10:00

Study finds child sex abuse education is key - ABC News http://ow.ly/6mpOe

2011-09-03T07:01:00.001+10:00

Mick Doleman named ambassador of the year: http://ow.ly/6kfPW

Mick Doleman awarded ambassador of the year

2011-09-03T06:52:00.000+10:00

Andrew O'Keefe addressing other White Ribbon Ambassadors

Ambassador of the Year Mick Doleman spoke passionately about the toll of domestic violence.

Me with other finalists.

Mick Doleman, deputy secretary of the Maritime Union of Australia, has been awarded White Ribbon ambassador of the year by the White Ribbon Foundation. A White Ribbon ambassador is a man who spreads the message opposing violence by men against women. The award was handed to Mick by the head of the Foundation, Andrew O'Keefe. As well as being the host of Deal or No deal, Andrew is opposed to violence against women and volunteers many hours of his time with the Foundation.

I was also honoured to be one of the finalists.

Last year's Ambassador of the Year, Nick Mazzarella had this to say about each of the finalists:

The Selection Committee had a difficult time in choosing from amongst these inspiring finalists, as each of them stood out in a number of ways.

 Finalist Peter Daglish - the Capital Works Officer at Maribyrnong City Council - never shy’s away from sharing his message of non-violence and respect for women. Whether at home, at work, or umpiring a local football game, Peter is a role model in his community. Peter even has a t-shirt that reads “Real men in Maribyrnong say NO to violence against women.”

 Brian Sullivan, Master of the Counselling Program for the School of Social Work and Human Services at the University of Queensland may not wear a t-shirt, but he holds respect, justice and dignity as his core values. This alignment of principles with White Ribbon allows him to wear his Ambassador pin proudly when giving speeches to students, executives, or community members.

 Assistant Commissioner Mark Murdoch is the Corporate Spokesperson and Sponsor for Domestic and Family Violence across New South Wales with the NSW Police Force. Mark’s leadership has pushed the Police Force to be proactive, and he has gone beyond his job description in ensuring that Senior Police and the NSW Police Force more generally understand the importance of the role the police play in prevention now, and into the future.
 Also playing a pivotal role in raising awareness is Phil Cooper, the Community Development Officer for the Victorian Aboriginal Community Services Association. Phil has done fantastic work recruiting and training new Ambassadors in the Aboriginal community. Most recently, he recruited his “Fitzroy Allstars Football Team” to be Ambassadors, and he has provided the players with training to become spokespeople on the subject of ending violence against women.

 Also engaging local sport teams is Kevin Maher, the Industrial Relations Advisor for Abigroup Contractors. Also the President of the Macquarie Scorpions rugby team, Kevin enlisted his team to help shift cultural norms and change attitudes about violence against women. The team is working to end violence through their new initiative “Let’s Tackle Domestic Violence.”

 In addition to reaching youth through sport, White Ribbon Ambassadors are also reaching youth through the school system. None have been more instrumental in doing this than Sydney Regional Director of Education, finalist Dr Phil Lambert. Phil’s work has been critical in developing and successful implementing the White Ribbon Principal’s ‘Breaking the Silence’ Program. The program brings the message of anti-violence to students and teachers and provides them with a forum in which these sensitive issues can be discussed. Phil’s leadership has been instrumental in the incredible success it has had to date, and has established a strong foundation from which it can grow.

 At the heart of all of these types of endeavours, are Ambassadors who are engaged in their roles and are enthusiastic – showing initiative in their involvement - like Reece Harley. The National Policy Director at Left Right Think Tank, Reece uses his personal and professional networks to spread the White Ribbon Message. At one point or another, every member of the White Ribbon staff has contacted Reece for his invaluable assistance. Whether looking for his opinions, helping to organise an event in Perth, raising funds, or getting acquainted with new Ambassadors from WA, Reece is always keen to help and he never shies away from the issues.

 John Whop, the Co-ordinator for the Waibe Thursday Island Men's Shed is also an Ambassador committed to doing what he can and is always looking for ways to be more engaged. Living on the remote Island, John will share his passion for non-violence with tourists and visitors who pass through as well as the
locals. He also travels to Darwin, Batchelor, Cairnes and Brisbane along with 14 nearby rural communities to promote the Campaign and ask people to support the prevention of violence against women.

 Giving talks on behalf of White Ribbon is old hat for Ambassador Joseph Masika, Chairperson of the African Communities Council for South Australia. His consistent support to the campaign and to other campaigners has been evident with his delivery of educational workshops (in his free time no less) on ending silence on domestic violence in African communities. His advocacy is a large part of why women in the emerging communities he works with are gaining more equality and higher-level positions.

 Finalist Stephen Page, Partner at the Harrington Law Practice, is also a powerful advocate for the Campaign. Whether he is amending state laws, lobbying the national government, writing legislative reviews on behalf of White Ribbon, or providing the Queensland White Ribbon Working Group with advice and direction, Stephen is constantly striving to improve conditions and advocate for positive change.

 Mick Doleman, Deputy National Secretary for the Maritime Union of Australia also believes that advocacy is a key to Campaign’s success. As a result of his efforts, all male MUA officials, officers and many members have taken the Oath or become Ambassadors themselves.

2011-08-31T21:08:00.001+10:00

One sleep to go! White Ribbon Ambassador of the year awards tomorrow night!

2011-08-30T14:14:00.001+10:00

Family Court #adoption case raises fears over trafficking -SMH http://ow.ly/6g9Yo

2011-08-30T11:28:00.001+10:00

Sad, sad, sad. Well regarded US surrogacy lawyer pleads guilty to baby selling! http://ow.ly/6g5VO

2011-08-29T09:27:00.001+10:00

RT @surrogacylawyer: Surrogate gives birth to twins for Ohio couple who had other woman's baby in embryo mix-up http://ow.ly/6f1FS

2011-08-29T08:33:00.001+10:00

Comment on the possible failure of Tasmanians to legislate for surrogacy: http://ow.ly/6f0kX

2011-08-29T08:07:00.001+10:00

Tasmanian surrogacy reform may be "years" away: Mercury http://ow.ly/6eZO8

2011-08-28T06:25:00.001+10:00

Queensland deadbeat dads' tax returns targeted to recover outstanding child support payments Courier Mail http://ow.ly/6ewND

2011-08-27T06:00:00.001+10:00

Federal magistrate sent for 'judicial education' | The Australian http://ow.ly/6dUu0

2011-08-21T20:29:00.001+10:00

#Lesbian co-mother is a parent: Federal Magistrates Court http://ow.ly/68CdP

2011-08-21T19:48:00.001+10:00

Perth mother jailed for #childabduction. She's lucky she didn't get longer. http://ow.ly/68BRN

2011-08-21T19:46:00.001+10:00

#FamilyCourt disqualifies Magistrate on perception of bias http://ow.ly/68BQv

2011-08-21T19:44:00.001+10:00

#FamilyCourt rules on counselling privilege http://ow.ly/68BPD #FamilyCourt got it right.

2011-08-21T19:38:00.001+10:00

One of those #FamilyCourt cases where the judge ignored #domesticviolence evidence, followed his opinions http://ow.ly/68BMe

Shared care: not reasonably practicable

2011-08-21T15:45:00.002+10:00

In a recent case, Wainder and Wainder a trial judge ordered that the parties share the care of the their son on an equal basis after he turned 5. The only snag was that by then he would be going to school, with the mother living on Sydney's north shore, and the father living in the western suburbs. Not surprisingly, the mother appealed, and was successful:

Itmay be implicit in his Honour’s order that the child spend equal time withher parents in 2012, that he was satisfied thatthat arrangement was reasonablypracticable within the construct of s 65DAA(5). However the trialJudge’s comments ... appear to us to be an acknowledgement that theproposed order to come into forcein 2012 may not be reasonably practicable ifthe parties were living in their present locations.
Theorder impugned is open ended and would, without further litigation, extendthroughout the child’s school life. Where thecourt proposes to makeorders stretching into the future, the consideration of whether a proposed orderis reasonably practicableshould focus on the date of enlivenment of the order.The trial Judge is required to make a prediction at the date of trial on theevidence then before him or her as to whether at the date on which the ordertakes effect, it will be practicable or “feasible”.
Althoughhis Honour paid careful attention to the matters in s 60CC and therebydetermined that the proposed order for equal time was in the child’s bestinterests, he did not proceed to determinewhether, on the evidence available tohim, the order for equal time would be reasonably practicable once the childstarted school,and in this respect, fell into error.

SMH v expert. SMH Nil; Expert 1

2011-08-21T15:36:00.001+10:00

It was surprising to be reminded that court processes are based on evidence and not personal opinions. This reminder came in a recent case, Herridge and Henderson. The trial judge's views seemed to outweigh the evidence both as to ADHD and family violence. The trial judge's victim blaming was rejected, at least for a lack of reasons. The mother's appeal was successful.

ADHD

In that case an expert, Dr B gave evidence that the son the subject of the court proceedings had some degree of ADHD. His evidence was unchallenged- at least in court.

When judgment was delivered, the judge was skeptical about this evidence, because of an editorial from the Sydney Morning Herald:

Iam not in a position to say whether there is any substance in this claim [ as to ADHD]. I doknow that the diagnosis of ADHD and the use of Ritalinand the like to treat socalled sufferers is still controversial with some authoritative opinion to theeffect that it is over diagnosed,or does not exist and is sometimes“used as a crutch” by medical professionals loath to tellparents that their child is “ill-disciplined”, and thatRitalin is over prescribed and used “as a crutch by parents and/orteachers in response to children whose real need is better parenting orteaching” (Sydney Morning Herald, Editorial p12 (25.01.2011))

The Full Court of the Family Court was critical of the use of the editorial, both because none of the parties had been accorded procedural fairness as to its intended use, and because it was not evidence from an expert:

Itis not in doubt that, until the delivery of judgment, none of the parties to theproceedings before him had any indication thatthe trial Judge was going to relyupon the material to which he referred in his reasons for judgment.
Tothe extent that the newspaper editorial was regarded by the trial Judge asevidence, no party had the opportunity to test it. Noparty had any opportunityto make submissions about the material, whatever its potential status may havebeen. Quite apart from thetrial Judge’s failure to afford the partiesnatural justice, the statements from the Sydney Morning Herald reiterated by thetrial Judge do not appear to be those of a person who was qualified to make orexpress such opinions and would not have been admissible.
Sensibly,Counsel opposing the mother’s appeal acknowledged that, as a matter ofnatural justice, the trial Judge had erredby referring to the material from theSydney Morning Herald. Necessarily, it was submitted on behalf of the partiesopposing themother’s appeal that, although referring to it, the trialJudge could not be said to have relied in any discernable way onthe statementsin the Sydney Morning Herald editorial....
(W)e are persuaded that the trial Judge did rely upon what heapparently read in the SydneyMorning Herald editorial in concluding as he didwith respect to the child B’s likely future use of Ritalin. To read thethreeparagraphs is instructive, and supportive of our conclusion.
Thetrial Judge referred to the children’s behavioural problems, and observedthat Dr R “seems to accept that [the childB] has a degree of ADHD”.His Honour recorded, accurately, that the father and his “side of thefamily” questionedthe diagnosis of ADHD for the child B and suggestedthat “reliance on Ritalin is a substitute for ill-discipline in themother’shousehold”. As was conceded before us, Dr R did accept thatthe child B exhibited ADHD “to some degree”. No partyat trialchallenged Dr R’s expert opinion evidence in that regard.
Ina passage which was understandably relied upon significantly by Counselresisting the mother’s appeal, the trial Judge saidthe he was “notin a position to say whether there is any substance in this claim”, i.e.the claim of the father andhis family. How his Honour came to “know thatthe diagnosis of ADHD and the use of Ritalin and the like to treat so calledsufferers (emphasis added) is still controversial with some authoritativeopinion to the effect that it is over diagnosed” was not revealedby himin his reasons, or anywhere during the trial to which we have been referred. Norwas the basis upon which his Honour observedthat the “authoritativeopinion” to which he alluded also suggested that ADHD “does notexist”.
Incircumstances where there was unchallenged admissible expert opinion evidencethat the child B exhibited a “degree of ADHD”,it was not open tothe trial Judge, without reference to admissible evidence which was before him,to speculate as to whether ornot ADHD existed or was exhibited by the child B.His Honour’s personal opinions, whatever their basis, were no substitutefor evidence.
Ultimately,it is apparent from the balance of the paragraph that the trial Judge acceptedwhat an unidentified, and presumably unqualifiededitor of a newspaperapparently said about ADHD. It is readily apparent that, notwithstanding that DrR had not expressed the cynicismso colourfully articulated by the newspapereditor, the trial Judge preferred the opinion of the latter.
Ourconclusion that the trial Judge’s opinions in relation to ADHD and Ritalinwere influenced by the Sydney Morning Heraldeditorial is reinforced by thefirst sentence of the paragraph immediately following the reference to theeditorial. His Honour theresaid that if the child B resides with the mother“and she retains a say in his medical treatment he may revert todependence on Ritalin” (emphasis added). Notwithstanding that therewas no evidence that the child B had ever been dependent upon Ritalin,inappropriately prescribed it, or that the mother had ever inappropriately hadthe child take Ritalin, the trial Judge clearly, andin the face of Dr R’sevidence, which was uncritical of the mother in relation to Ritalin, regardedthe child B taking Ritalinin the future as undesirable, and reflectingadversely upon the mother.
Itis difficult to see how, by reference to the trial Judge’s own reasons,such a view could not have been reliant upon, orinfluenced by the newspapereditorial from which he quoted. If it was not, in the circumstances it couldonly, and impermissibly,have been based upon his Honour’s own views aboutthose matters.

Family Violence

The Full Court stated, quoting the trial judge:

Itis my assessment, after reading all the relevant police material in evidence,the affidavit evidence and seeing and hearing boththe mother and father givingoral evidence, that the mother is not, and has never been, fearful of the fatherbut that she has abusedthe system in place to protect people who are in genuinefear, and have a proper reason to be fearful, for the purpose of gettingher ownway and gaining a tactical advantage in these proceedings. To do so she musthave manipulated [the child B] and [the childH] so they would be fearful oftheir father, not for any benefit to them. Such manipulated fear in the boys isthe only explanationfor the preschool teacher’s complaint, although itwas no doubt made because of information the mother supplied and becauseof herurging. It is not, in my opinion, a coincidence that Senior Constable [P]reached much the same conclusion as I have aboutthe motives, bona fides, andattributes of the mother. I regard her as attempting to use the Court in thesame way as she attemptedwith more success to use the police and Local Court.
Laterin his reasons, the trial Judge referred to an episode on 4 January 2010, andsaid:
One4 January 2010, the father attended ... Police Station in response to a policerequest. He was charged with two counts of breachingthe AVO, which was in placeat the relevant time. The charges were based on the text messages of 5 and 11December. He was initiallyrefused bail, and spent from 4 January to 27 Januaryat ... jail. It is a testament of the ridiculousness of the situation that,on27 January, the father admitted what it was alleged he said and was convicted.It does not reflect well on the legal system andthose who refused bail, thatthe Magistrate sentenced the father to 14 days imprisonment after he hadalready spent more than thaton remand. He was immediately released. The father,his mother, the police, and the Magistrate who refused bail and could not haveseriously considered the circumstances, further empowered the mother. That thisis the case is shown by what next occurred.
On15 February 2010, the father went to [the child B]’s school. He had, inMay 2009, after I had allowed him to collect thechildren from school and returnthem to it, met the Headmistress, [Ms M], to inform her of the situation. He hadrequested copiesof [the child B]’s school reports, including that for theend of 2009. He collected this on 15 February 2010. Either [theHeadmistress],who in many ways has demonstrated that she is quite prejudicedagainst the father in favour of the mother, contacted the police or,as is morelikely, contacted the mother, who had already told her not to deliver reports tothe paternal grandparents. The motheror [the Headmistress] contacted the policeand claimed that the father had breached the AVO, which he had because of itsludicrousterms. One of these was that the father was not to approach thechildren’s school. The police charged the father on 22 February,buthe was granted bail. He had, between 18 February when the police first contactedhim about the matter and 22 February made anapplication to discharge or modifythe AVO.
Whenthe matters were due to be heard on 5 May 2010, the mother refused to attend butwanted the orders to continue unchanged. Thecharge of breach was withdrawn anddismissed and the term of the AVO was reduced from five years to one furtheryear concluding on5 May 2011. The children were also removed from the“protection” of the AVO and the condition about approaching theirschool was deleted, as it should have been in view of my still effective orders.The terms affecting the children and school shouldnot have been there in thefirst place.
Lateragain, the trial Judge recorded:
...On any view, the facts up to that time [November 2007] establish that the fathercould not limit his alcohol consumption to acceptablelevels and was very proneto lack of self-control and angry outbursts. These resulted, in Ms [T’s][the Family Consultant’s]understanding, in damage to property, an assaulton police, pub brawling and similar, as well as disparaging language directed atthe mother; sometimes in the presence or hearing of the children, but not inassaults on the mother or children.
HisHonour also later recorded:
Thefather was no more candid with Dr. [R] than the mother. He said he was“now” drinking only one or two alcoholic drinkseach week, and hadno current alcohol problems. Ludicrously, he said he had been a heavy drinker,drinking up to five beers per day.Surely, to get as drunk as he often was, hewas drinking much more than that, and would be likely to believe that to drinkfive beersa day would be very modest consumption. He attributed the breakdownof his relationship with the mother in part to her objectionto his alcoholconsumption. This is probably true. The paternal grandmother understated thefather’s alcohol problem to Dr.[R] and excused it by blaming themother.
Attrial, Counsel for the ICL submitted the following in relation to theissue of violence:
It is submitted that the Court would be persuadedthat there is substance to the mother’s complaints about breachAVO’s,given the number of convictions and the sheer number of messages,coupled with the father’s admission to the police that herecognised thathe had breached the orders on a number of occasions. The Court would also acceptthat her concerns that the childrenor either of them had been sexuallyinterfered with were genuinely held, and based on the unchallenged evidence of[Dr B] it is clearthat [the child B] made some disclosures even though JIRTheld that the charges could not be substantiated, and that she was perhapsencouraged in those beliefs by the responses she received from [Ms G], [Mr F]and [Dr N]. ...

Thetrial Judge’s ultimate conclusion with respect to family violence was:
Themother’s allegations of family violence have already been chronicled andrejected. There is still a family violence orderwhich, as recently as May 2010,the father contested and had reduced in duration. In my assessment, it waslargely made without justificationand should not be permitted to inhibit whatwould otherwise be appropriate parenting orders.
Earlier,his Honour said:
Thereare no significant practical difficulties and expenses which ought to arisewhether the boys live with the mother, the father,or the paternal grandmother,which will significantly affect the maintenance by the boys of their right tohave personal relationswith, and direct contact with, both parents and all therelevant family members on a regular basis. The main source of such practicaldifficulties to date has been the attitudes of the mother, those who supporther, those who have empowered her such as the Policeand Local Courts ingranting AVO’s to “protect” her and the childrenunnecessarily, and the father’s weaknessof character which makes himvulnerable to her manipulative and deceptive actions.
Asis readily apparent, notwithstanding that courts charged with hearing anddetermining AVO proceedings had determined such proceedingsin themother’s favour, in criticising the mother in the way in which he did, thetrial Judge effectively criticised the personwho had been found by courtsdealing with such matters to have been the victim, and considered the father,who had been found tobe the perpetrator of family violence, the victim.
Earlierstill, the trial Judge found the mother’s behaviour had been “soserious and potentially damaging to the children”as to raise the prospectof the children only having supervised contact with her. His Honour had alsofound that “[n]ow thatthe parents live apart, there is virtually noprospect of incidents of violence occurring between them”. His Honourproceededto find that “any risk that [the father] would harm the childreneither physically or psychologically as a result of abuse,family violence orneglect is such that the risk is so low as to be within acceptablelimits”. Those findings have not beenchallenged in this appeal....
Theconclusions of the trial Judge with respect to the topic to some extent appearto reflect his personal views in relation to theoperation of family violencelaws in this country, and of those who rely upon them, or support and assistthose who do. Similar viewsfound expression elsewhere in thetrial Judge’s reasons, such as the following paragraph:
126. [Thechild B] had continued to see [Mr F], is a senior counsellor with the NSW Childand Adolescent Mental Health Service, and [MsG], a biased clinical psychologistat [E Organisation]. [Ms G] made a report that the children could not spend timewith the fatherfollowing an alleged relapse in his behavioural problems. [Ms G]is so biased that, in a report she made on 23 September 2008, shesaid“[the child B] has disclosed sexual assault to a doctor.Unfortunately [my emphasis] [the child B] has not disclosedto JIRT.” [The child B] was referred to [Dr N], no doubt becausethe mother had approached [Mr F] or [Ms G].(emphasis added)
and

Furthersupport for our conclusion is gained from the following extract of the passagewhich we have earlier set out in full:
...It is typical of the mother’s case that she claims many acts of violenceagainst her by the father, but provides next tono detail or specific evidenceof it. I regard the mother as being an exaggerator and habitual liar, and asbeing exceptionally willingand able to manipulate situations to her perceivedadvantage, especially by using politically correct do-gooders and people whohavea duty to deal with social problems and the like, but not the time,inclination or ability to distinguish truth from fiction. I donot completelydiscount the allegations of violence. I think they have been greatly exaggeratedin number, extent and effect by themother and regard the limit of thefather’s violence toward the mother as likely to be drunken verbal abuse,threats and occasionaldamage to property.

Family Court stands up for bank and removes "Today Tonight" order

2011-08-21T15:01:00.001+10:00

The Full Court of the Family Court, in a case called A Bank and Coleiro recently rejected the approach of Federal Magistrate Harman on contempt, and how to deal with his bank. The bank appealed, successfully, against various orders made by Federal Magistrate Harman.

First appearance 7 April, 2011

The husband appeared without a lawyer, but with an interpreter. The husband had sold his home, for about $200,000, and in answering a question from the Federal Magistrate as to whether the money was still in the account of his solicitors, said "yes" through his interpreter.

There was a short break. On the matter coming back before the court, a duly lawyer appeared for the husband. It became apparent that the $200,000 had been deposited to an account of the husband's held with the bank. No bank statements were provided. The duty lawyer told the Federal Magistrate that the husband had trouble hearing, and dementia, and that she was concerned about whether or not the husband had capacity to instruct her.

The transcript speaks volumes as to what happened next:

Can I ask you,Ms Interpreter, to explain. I want [the husband] to tell me where the$200,050 is; and if he eitherrefuses to tell me or he genuinely no longer hasthe money, he starts a gaol sentence today. THE INTERPRETER: Okay. [The husband] says that he fell sick. He put themoney in the back of the car and that when he looked forthat, they were nolonger there.
HIS HONOUR: Can you ask him is there any money left in any account with [thebank]?
THE INTERPRETER: Okay. All I have left is about $3000.
HIS HONOUR: Then can you ask him is there somebody who can bring histoiletries because he is going into a police cell in about fiveminutes time?
THE INTERPRETER: Okay. Sir, [the husband] insists he doesn’t have anymoney, okay? No, I don’t have anybody.
HIS HONOUR: Then can you please tell him he will be going to gaol until themoney is produced.
THE INTERPRETER: I don’t have any money. Somebody stole the money.
HIS HONOUR: Then can you please tell [the husband] he will be in gaol for avery long time.
THE INTERPRETER: I don’t have any money.
HIS HONOUR: I am getting the police here now. They are going to take you intocustody and put you in a cell.
THE INTERPRETER: Okay. I can’t do anything about it.
HIS HONOUR: Very well. While we are waiting for them, you need to go to thewitness box, please...

HIS HONOUR: Now after you received th[e wife's property settlement] application, the sale of that houseat [D] finished, it was sold. Do you agree with that?
THE INTERPRETER: I had to sell it because I didn’t have any more moneyto pay.
HIS HONOUR: But it was sold or the sale completed after 26 February. Doyou agree with that?
THE INTERPRETER: I sold the house before I received the papers.
HIS HONOUR: On 1 March, you deposited a sum of $200,050 with [the bank]. Doyou remember that?
THE INTERPRETER: Yes.
THE WITNESS: Yes.
HIS HONOUR: At around that time, you had opened three accounts with the [thebank]?
THE INTERPRETER: Yes.
HIS HONOUR: And after those –that money was deposited to your accounton 1 March, you would appear to have withdrawn nearlyall of it.
THE INTERPRETER: Yes.
HIS HONOUR: A number of those withdrawals occurred by telephone banking.
THE INTERPRETER: No, it’s not through the telephone, no; I went to thebank.
HIS HONOUR: So if your bank statements say that you had made withdrawals bytelephone banking, that’s not correct?
THE INTERPRETER: No, it’s not by telephone.
HIS HONOUR: Now a number of the transactions say “funds transferred toterm deposit.” Do you have a term deposit withthe [bank]?
THE INTERPRETER: No, I haven’t got an account, a term account.
HIS HONOUR: Then before we proceed any further, can I make very clear to youwhat is occurring. If I could ask you to translate that,please.
THE INTERPRETER: Yes, I did have an account there but I closed.
HIS HONOUR: You were under oath to tell me the truth.
THE INTERPRETER: I’m saying the truth.
HIS HONOUR: And [Counsel] who appears for your wife is going to make somefurther inquiries during the course of the day to get documentsfrom [thebank].
THE INTERPRETER: She can do so.
HIS HONOUR: And if those – if documents are produced by [the bank] thatshow that any of the answers you give me are not correct,you will be chargedwith perjury.
THE INTERPRETER: I’m saying the truth.
HIS HONOUR: For now, you are charged with the offence of contempt of court inthat you have with full knowledge of the applicationof [the wife] sought todispose of or conceal the funds the subject of those proceedings.
THE INTERPRETER: I hid them behind the seat of the car.
HIS HONOUR: If you could just interpret that, please, though,Ms Interpreter.
THE INTERPRETER: I took them out to get a farm.
HIS HONOUR: Very well. Do you understand, [the husband], that you arecharged with a criminal offence?
THE INTERPRETER: I’m saying the truth.
HIS HONOUR: Do you understand that you are charged with a criminaloffence?
THE INTERPRETER: I don’t understand.
HIS HONOUR: You – after you were served with [the wife’s]application, you allege you have disposed of all of the moneythat theapplication sought to divide between you and [the wife].
THE INTERPRETER: No, it’s not true, I did not do it for that.
HIS HONOUR: And until the matter is dealt with to finality, which may takesome months, you will be held in custody in gaol.
THE INTERPRETER: I can’t do anything; I have said the truth, whateverhappens.
HIS HONOUR: Do you understand that you will very shortly be going to gaol, asin today?
THE INTERPRETER: I can’t do anything; I have said the truth

His Honour then required the husband's friend, Mr B, to go from the back of the court into the witness box.

Then the bank was telephoned, and a bank officer, who was not sworn in, spoke to the court. The officer told the court that there had not been telephone banking, as appeared on the statements, but cash withdrawals, and it appeared that the wrong code had been inputted when describing the transactions on the statements.

His Honour then considered jailing the husband immediately, but put it off when a letter from the husband's GP stating that he had dementia was produced. The matter was then adjourned to another day. His Honour said:

I’m going to release [the husband] on condition thathe appear on the next occasion and that he present 120,000 bucks or hegoes togaol next time. I don’t believe for one second his story, or hisfriend’s story about 200 grand in the backof the car; not for onesecond. I would slot him for perjury now, if somebody could produce a $20 notethat shows he was lying. But I’m just unimpressed that he is served withan application, and two working days later, banks the cheque and proceedstowithdraw it by telephone banking – whether he did it or somebody else– but he must have given them the details fortelephone banking after 1March because that’s when he set up the account, as it would appear, a newcustomer of [the bank].
And the moment he is able to do that, within the space of eight working daysthe money has gone; in just enough time for it to allbe gone before the firstreturn date. So that’s the course I will take. It’s just an issueof how long. But he goesto gaol next time unless he brings 120 grand in cash,because until he can prove otherwise I’m not buying his story....

HIS HONOUR: Now, Ms Interpreter, can I ask you just tointerpret some very brief things. [The husband], we’re letting you gohome. But you need to be back here in two weeks’ time on 21 April. Thereare a number of other things you need to do in themeantime that [Ms L]will explain to you. But the two important things you need to be conscious ofis that you need to go to [W]Police Station every day to report so that I knowthat you haven’t left. And you need to bring $120,000 with you tocourt on 21 April or you will be going straight to gaol, not passing go,not collecting$200. Because I am not believing your story at all about themoney being taken from your car, and if you don’t have money here bringyour toiletries you won’t be leaving next time. I am deadly serious youwill be in gaol thistime in a fortnight if that money isn’t here. Thank you. [Ms L], and to the rest of your team, thank you for theassistance.(emphasis added)

Second appearance 21 April, 2011

His Honoursaid (Transcript 21April 2011, page 2, lines 38- 46):
HIS HONOUR:No, no. If you say that has happened, I accept that from you. I did make veryclear to [the husband] today, though, thathe brings 120 grand or he brings histoiletries because he starts his sentence today if the money is not here.
[MR H]: HE says he doesn’t have the money.
HIS HONOUR: Then I have already taken that evidence and made very clear tohim I don’t believe it. I have already convicted him. If hedoesn’t come up with the money, he starts his sentence today.
HISHONOUR: Well, if that’s so, he will have to deal with Conlan J about that,because I dealt with it last time. It’sa done deal. Does [the husband]get a pension?..
HIS HONOUR: And [the husband]will find himself entirely deprived of the balance of that account and I will begarnisheeing his pension,and he will be starting his sentence ...
HIS HONOUR: But as I said, [MrH], I need to stand the matter in the list. [The husband] is not to leave theregistry because I hearwhat you say in relation to the findings that could orshould be made, but I have already made them. He has already beenconvicted. He has already been sentenced. I suspended it on thelast occasion. The suspension ends today. I made very clear the 120 ishere, because I don’t believe he doesn’t have it.

I suppose, being blunt, Idon’t particularly want to see the Sunday Telegraphwith a banner headlineabout the nasty Federal Magistrate who caused an elderly deaf man to getbeaten in jail, when it’s not achieving a purpose. If it achievedapurpose, well, he can cop the beating. But it’s not going to achievea purpose. So I think, certainly, that would be the course. But it’s anissue, then,of – I think, you wouldn’t have had the opportunity,yet – I haven’t look at the file, but you – no,you have,sorry. You filed a response, [Mr H]. (Emphasis added)

As Chief Justice Bryant noted:

HisHonour was ultimately persuaded by Counsel for the husband that he shoulddispense with the order requiring him to attend at thepolice station every day.Counsel for the wife indicated to his Honour that her client was sufficientlyprotected by the injunctiveorders and a restraint on the husband from leavingthe country and did not require the husband to report to the police station. His Honour’s response was (Transcript, 21 April 2011, page 12,line 39):
HIS HONOUR: Certainly. Very well, and we can burythat as well.

HisHonour then made an order dispensing with reporting to the police at all.
Whathis Honour did with the contempt application itself is not clear as it is notmentioned.

The bank

Federal Magistrate Harman joined the bank as a party. No application had been made to join the bank. No one from the bank was given the opportunity to repond to the application before it was heard.

What his Honour said speaks for itself:

One thing I wouldpropose doing, and I’m fully conscious they’ve had no notice of it,but I don’t particularlycare about that, is join [the bank] because Ithink that’s the best way I’m doing(sic) to get them here, and Ithinkif I am incorrect in disbelieving [the husband], will give you the bestshot to protect [the husband’s] interests- - -
... I know we haven’t given any notice to [the bank], although, we did,in fact, have some person from [the bank] whose nameI can’t remember givesome evidence by telephone on the last occasion, which is how it came to bethat, in fact, we becameaware that each of the transaction descriptions on the[bank’s] banking records was wrong. So I suppose to that extent,that’sprobably the notice they’re getting. But I want to join themas a party because – if they’re disgruntled by that,well, they canappeal. They can’t get a costs order against the court. They certainlywon’t be getting one againstthe parties.
If I am incorrect in my suspicion as to the veracity of [the husband’s]evidence about what happened with his money, then, thatwill give you the bestshot to protect [the husband’s] position and seek orders against [thebank] as to anything that hashappened that may have been fraudulent but notinvolving [the husband]. And [Counsel for the wife], that will, if I’mrightabout that and there has potentially been some collusion or otherwise,that will give your client the best shot of doing somethingabout it....
:
So it’s an issue of whetherwe’re going to a conciliation conference, whether we’re simplycoming back to see what[the bank] has to say for themselves, and I will makesure, in joining them, that I express very clearly why because something thatisnot quite right has been going on at [the bank]. Seeing as they have control ofmy money and my wife, I’m not particularlyexcited about that....

I don’t want to, for the reasons I’ve already described,[solicitor for the husband], put you to the difficulty and expenseof draggingyou in to Sydney, although, it probably suits [the bank]. But probably, themore inconvenience we create for the (sic),the better.

His Honour adjourned the proceedings to June, but noted these things first:

The [Bank] is joined as a party because:
thematerial produced by the [bank] on subpoena purporting to be the proper businessrecords of the bank would appear to be eitherinaccurate or fraudulent;
evidencegiven when the matter was last before the Court would give rise to a suggestionof collusion between one or more bank offers(sic) and/or [the husband] or otherpersons;
theopening of the accounts and their operation relevant to these proceedings wouldappear highly unusual and would appear to involvesubstantial cash withdrawalswithin a short period of time and would not have been reported to theappropriate agency and would havethe affect to [the husband’s] knowledgeof frustrating the Wife’s application and subverting the Courtsjurisdiction.
Theevidence available in the mater (sic) to date would also suggest a lack of dutyof care by the bank towards [the husband] in thathe is elderly, suffers ahearing difficulty, is suggested to be affect (sic) by dementia and thetransactions which had occurredwould appear to have been assisted or undertakenby persons other than [the husband]; and
Ifone or all of the above are ultimately found proven by the evidence in this casethe Court will consider making orders for compensationor restitution againstthe [bank].

Third appearance 11 June, 2011

When the matter next came before his Honour in June, the bank was represented. This exchange took place between his Honour and counsel for the bank:

HIS HONOUR: And if theydon’t, there’s nothing produced and there’s a subpoenaoutstanding and I’m entitledto arrest the managing director of [the bank]right now because they have had three months to comply with the subpoena andhave chosennot to, other than to produce documents which mislead the court. And I’m not suggesting that’s deliberate but they doandthey’ve got this man arrested and put in custody.
[MS B]: Your Honour, may I take umbrage and say [the bank] did not get[the husband] arrested. As I understand, that was your Honour’sbench warrant.
His Honour then did this:

I note that a subpoena addressed to the [bank] was previously served and madereturnable 7 April 2011, and with respect to that subpoena(a) documents wereproduced by the [bank]; (b) after the matter had been dealt with and interimdeterminations made with respectto the substantive proceedings, and followingcross-examination of the husband and another witness in his case, furtherdocumentswere produced by the [bank], and an officer of that bank contacted togive evidence by phone which suggested that each of the documentsthat had beenproduced by the bank to the court in purported compliance with the subpoena didnot accurately reflect the transactionswhich had, in fact, occurred.
Next:
The material to be filed by the [bank] shall include and annexe copies of allrelevant documents, including statements, vouchers,deposit and withdrawalslips, internal memoranda or such other documents as would go to: (a) anexplanation of the discrepanciesbetween the various documents now produced, andparticularly noting that the documents initially produced suggested that most,ifnot all, of the transactions which had occurred had been conducted bytelephone banking, whereas it would now appear no such transactionhad everoccurred, and further, that such transactions as had occurred largely involvedtransfers of funds to a term deposit accountwhich it is also now suggested doesnot, and has never, existed; (b) the apparent different signatures on eachwithdrawal slip andapplication for opening an account that has been produced tothe court; (c) an explanation as to the bank’s compliance orotherwisewith financial reporting obligations regarding cash transactions in excess of$10,000.
(Transcript, 14 June 2011, pages 13-14)
...
(9) I grant leave to each of the husband and the wife pursuant tosection 121 of the Family Law Act to make such disclosure of theseproceedings and the nature of same and allegations contained therein as theyconsider appropriate,and note that any such disclosure or invitation to anymedia organisation to investigate issues relevant to these proceedings willseekto obtain information by way of interview or otherwise is (a) considered to bein the public interest, and (b) shall not constitutea breach ofsection 121.

When his Honour made the publicity order, he did so without being asked to do so by anyone, and had not sought submissions from the bank. Counsel for the bank made the point plainly:

While these are matrimonial proceedings, thebankis nevertheless entitled to some protections and to many protections which existto all entities of proceedings, be they corporationsor private citizens.

Justices Finn and Strickland had this to say about the joinder:

Itwas neither appropriate nor necessary for the Federal Magistrate to join thebank at that point. However, it is apparent from whatthe Federal Magistratesaid on 21 April 2011 that he had a collateral purpose in making the joinderorder. He was using it as a wayof getting the bank to appear before him and toallow the wife to pursue a claim for “compensation or restitution”againstthe bank. Yet, it was unnecessary to join the bank to achieve thesepurposes (if indeed they needed to be achieved). The bank couldhave beenrequired to attend in the context of the alleged non-compliance with thesubpoena that had been issued, and if the wifesought to make a claim againstthe bank the rules permitted the wife to name the bank as a party to any suchproceedings, or to seekleave to do so.
HisHonour did give “reasons” for the joinder, and they were set out asnotations to the order of 21 April 2011 as identifiedin paragraph 117 above.However, in our view, none of the matters referred to justify a joinder order asopposed to an order in relationto the subpoena that had already issued. Indeed, as we will elaborate on later in these reasons, his reasons compriseunjustifiedassumptions on the part of the Federal Magistrate. They clearlyfollow on from inappropriate comments made by the Federal Magistrateduring thehearing on 21 April 2011 and which are revealed in the transcript from thathearing set out in paragraphs 113 and 114above.
Thereis also no question that the bank was not on notice of the proposedjoinder and it did not have the opportunity to either respond to the issuesraised by the Federal Magistrate or at the very least make submissions inrelation to the proposed joinder before the order was made.
Inmost circumstances that would raise an issue as to whether there was a denial ofnatural justice and/or procedural fairness, asclaimed by the bank....
Theonly difficulty with this process that we can see is that it is quite apparentfrom the transcript of the hearing before his Honouron 21 April 2011 that hisHonour was not making an order for joinder with a view to giving the bank theopportunity to attend onthe adjourned hearing date to object to the joinder.His Honour was clearly intending that the bank attend to address the issuesthathis Honour considered arose from the evidence of the husband and his friendMr B, the documents produced pursuant to the subpoena,and the“evidence” given by Mr S. As referred to earlier his Honour wasusing the joinder for a collateral purpose, andthat is demonstrated by Order 7of his orders made that day. In our view, such an order was completelyunnecessary and inappropriate.
Thereis also the question of the notations made to his Honour’s orders on21 April 2011 and which we have set out above. InGround 8 it is suggestedthat these are “findings” made by his Honour, and his Honour erredin making them in circumstanceswhere the bank was not represented in Court thatday.
Weare not necessarily convinced that these notations can be described as“findings”. They are expressed to be his Honour’sreasons forjoining the bank, but we would accept that in these reasons his Honour makes anumber of assumptions from the evidencehe had heard and the documents he hadseen which may not be entirely justified. In any event we treat them as raisingissues thatneeded to be addressed by the bank on the adjourned hearing. Weconfirm though that we do not consider that they are reasons whichwould justifythe joinder of the bank. Rather they comprise issues which should have beendealt with entirely in the context of thesubpoena that had beenissued.
Their Honours concluded that another Federal Magistrate should hear the matter, noting this portion of transcript:

What Iunderstand is this, as a chronology: [The husband] came into the Richmondbranch as a new customer on 1 March and he deposited$200,000 and $50 which wasa telephone banking fee of some kind – but $200,000. He opened thataccount – first, shouldI say, he opened two accounts, he opened somethingcalled a savings account and a basic account. The savings account was theaccountinto which the $200,000 was deposited. The basic account, as Iunderstand, is a very simple and low fee, if not no fee, account. I understandin the vernacular, it’s the sort of account used by pensioners and peopleon very low incomes because it attractsno fees. The money was deposited; theaccount was opened in his name; he was the sole signatory and the bank recordsindicatethat.
Then on a number of eight transactions, that money was withdrawn and, as[Counsel for the wife] has pointed out, it was, as the recordsindicate, over aperiod of about two weeks in various amounts from $10,000 being the lowestamount to $40,000 being the highest ofthe amounts – that was a one-off– there was one $40,000 withdrawal. Of itself, the bank, I anticipatewould say if– giving evidence, would say there was nothing unusual aboutthat; he is a customer of the bank, he is a sole signatory, hecomes in and hewithdraws his money and goes away, it’s cash and that’s the end ofit.
HIS HONOUR: Well, can I stop and say there’s a few things about it. Firstly, the bank records suggest that they weren’tcash withdrawals, theywere transfers to other accounts. So clearly the bank record is wrong.
[MS B]: I will come to that.
HIS HONOUR: I want to know whether it’s deliberately wrong, in thesense that there’s some degree of collusion, becauseevidence had alsobeen given by [the husband’s] friend and flatmate that he had introducedhim to this person who he knew well,who had helped him the past, and I want toknow ether the records are mischievously wrong or there is just some horribleaccident,either of which is ultimately going to be referred to the BankingOmbudsman to look at.
[MS B]: Your Honour, from – I was just about to come to that.
HIS HONOUR: Second, and more serious – or two further concerns –one which probably isn’t this court’s businessbut there is noevidence at all to suggest, and it wouldn’t have been the case based onwhat they are shown as in the recordof [the bank], proper accounting inrelation to the reporting of those transactions – all being withdrawalsand cash of over$10,000 – which is a serious breach of the law by [thebank] and I’m not the Family Court, I’m the FederalMagistrate’sCourt, so I have power to deal with those issues and proposeto.
Thirdly, and the most important, is having cited the various transactionslips that have been produced, which wouldn’t havebeen required if theywere telephone banking transactions and transfers to accounts which it appears,from what we were told fromthe evidence of the banking officer, don’tactually exist, the signatures – not one of them actually looks like theonethat preceded it. There are a variety of signatures – I’m nohandwriting expert, but they sure don’t all looklike the sameperson’s signature.
So I have a real concern that there is either some collusion or a very graveinterference with [the husband’s] rights, whichhad impacted on [thewife’s] and [Counsel for the wife] will certainly be given leave today, ifshe wants to, to amend herapplication to seek orders against [the bank] tocompensate here, because [the husband] gave evidence he was fully aware of theseproceedings, he had been served with the documents and, having been served withthem and in total frustration, deliberately or otherwiseand with or withoutcollusion by employees of [the bank], has entirely frustrated her claim.
[MS B]: All right. Well, your Honour, if I can take it through in thisway. There are eight withdrawals. Four of them - - -
HIS HONOUR: But why hasn’t someone put this in affidavit form becausethat’s how we work.
[MS B]: Well, your Honour, because [the bank’s] position, primaryposition is that it has no business being here because noparty, at this stage,has sought an order against it and it’s primary application is that it be- - -
(Transcript, 14 June 2011, pages 4-5)
TheFederal Magistrate can then be seen as inviting Counsel for the wife to make anapplication for an order against the bank by saying:
Then give meone moment. [Counsel for the wife], do you want to seek an order against [thebank]?
(Transcript, 14 June 2011, page 5)
Counselfor the wife responded:
I do, your Honour. I want to reserve aright at least to amend the application that should [the bank] – shouldyour Honour makea finding that there has been collusion or whatever, myclient would reserve her right to amend the application accordingly to seeksomemoney against – some damages against [the bank] effectively.
(Transcript, 14 June 2011, pages 5-6)

Thefollowing exchange then occurred between the Federal Magistrate and Counsel forthe bank:

[MS B]: Well, your Honour, if that’s the case,then so be it but we should put the cart before the horse; that is to say, theapplication against [the bank] should be made. The evidence in support of thatapplication should be put before [the bank] an thecourt of course and then [thebank] can respond in the light of the application made against it and theevidence as opposed - - -
HIS HONOUR: Why aren’t I entitled to deal with this on the basis [thebank] is in receipt of a subpoena which, on the face ofit, it has not compliedwith, because the documents that are provided are entirely at odds with the oralevidence of an officer from[the bank] who says those documents do not reflectwhatsoever what occurred. So there has been no compliance with thesubpoena.
[MS B]: Your Honour, I don’t understand, I’m not in aposition to respond to your Honour. I didn’t hear what theofficerof [the bank] said. So far as my instructions go, the bank has answered thesubpoena.
HIS HONOUR: They provided documents purporting to be in answer but I’mthen told by the very officer who produced them who thenemailed through anumber of other documents which showed that those which had been provided to thecourt are entirely false. Whethermaliciously so or otherwise, I reallydon’t care. They were simply not a proper reflection and could not be abusiness recordbecause it’s conceded by he who produced them that theyare not a proper reflection of the transactions that occurred, thereforetherehas been no compliance with the subpoena. And I want an explanation in writingand on oath by somebody about it because nexttime we come back, I can assureyou, those seats are all going to be full of media. [The bank] has donesomething here, whethernegligent or malicious, but something has happenedthat’s removed $200,000 from this man’s hands and removed, as aconsequence,$200,000 from [the wife’s] hands.
[MS B]: Well, your Honour, may I say that your Honour may haveprejudged the issue in those circumstances if that is your Honour’sattitude.
HIS HONOUR: Not at all. Your bank officer made clear that the documents thatwere produced purporting to be business records of [thebank] do not reflect atall the reality of what occurred. I am very concerned about that because I havejurisdiction much greaterthan a Family Court judge. I can deal with financialtransaction reporting. I can make a finding right now that [the bank] hasbreached the law in terms of financial transacting by allowing 10 to 40 thousandcash withdrawals without having reported them. There are consequences for that.I have a power under the Corporations Act to deal with it.
[MS B]: Your Honour, I trust you are not going to make that ordertoday.
HIS HONOUR: Not today. I’m going to give [the bank] the chance tofile proper sworn evidence about it.
(Transcript, 14 June 2011, pages 6-7)
Thenafter he had questioned the solicitor for the husband as to whether the husbandwould be seeking relief against the bank, whichwas a question that thesolicitor was not in a position to answer, his Honour suggested that the bankhad not fully complied withthe subpoena in the followingexchange:
HIS HONOUR: And if they don’t, there’s nothingproduced and there’s a subpoena outstanding and I’m entitledtoarrest the managing director of [the bank] right now because they have had threemonths to comply with the subpoena and have chosennot to, other than to producedocuments which mislead the court. And I’m not suggesting that’sdeliberate but they doand they’ve got this man arrested and put incustody.
[MS B]: Your Honour, may I take umbrage and say [the bank] did not get[the husband] arrested. As I understand, that was your Honour’sbench warrant.
HIS HONOUR: They did because I made a finding based on accepting the accuracyand validity of the documents produced as business recordsby [the bank] andaccurate faithful representations of the transactions which had occurred to findthat [the husband’s] evidencewas fanciful and not to be accepted andaccordingly he had lied under oath and he was charged with contempt andarrested. If [thebank] had thought to produce the documents which, at myinstigation, not [the bank’s], four hours later were produced, andtheconcession made that the documents we have sent are completely inaccurate, hewouldn’t have been arrested. I detainedhim, I deprived him, in terms oftalking about rights of private citizens, of his right of liberty. He wasretained in custody forfour hours until that happened caused by the document[the bank] produced which was clearly false. I don’t say false to suggestmeaningfully so but it was false and I would have thought it’s a matter ofreal concern to [the bank] to have produced somethingthat tells me how the hellthat happened.
[MS B]: Your Honour, if I can only say again, and I would say this toprotect my client’s interests, two things, firstly myclient needs to havesome considered – some time to consider the evidence brought against it. It has not had the opportunityto read the transcript and all of our so to speakducks are not in a row. That needs to be done. It’s of no use to thecourtotherwise and for evidence to be put on which is in a sworn form uponwhich your Honour can rely, draw inferences and the like andI wouldsecondly simply reiterate, as I must in order to discharge my duty to my client,in saying [the bank] did not cause [thehusband] to be arrested. Your Honour, there is a chain of reasoning certainly inyour Honour’s decision to issue an arrestwarrant to [the husband]but I would simply say, to protect my client’s interests, [the bank] didnot cause that to occur.
HIS HONOUR: I didn’t issue an arrest warrant, I convicted him andimprisoned him.
(Transcript, 14 June 2011, pages 8-9)
Lateron the same day the following further exchanges occurred between the FederalMagistrate and Counsel for the bank:
[MS B]: Well,your Honour, because your Honour has no evidence of that before you asyet. The bank needs to put on evidence - - -
HIS HONOUR: But I do - - -
[MS B]: - - - as to what has – may I- - -
HIS HONOUR: - - - because the banking officer to whom I spokeemailed to my associate, and they were admitted as exhibits the proceedings,thewithdrawal vouchers which then made very clear that they had never been atelephone banking transfer to a term deposit that neverexisted.
[MS B]: Well, your Honour - - -
HIS HONOUR: They were cash withdrawals over the counter.
[MS B]: Your Honour is going one step further, if I may say, by this: it is no longer a case of [the bank] not answering or answering,as the case maybe, a subpoena. Your Honour is now making or moving towards making ordersand findings against [the bank]. But circumstancesin which those earlierdiscussions with your Honour – and of course, I am flying in thedark, your Honour, because I wasn’there and that is the very point. [The bank] was not represented in those proceedings. It was answering asubpoena. It was assistingthe court so far as I understand. Your Honouris, may I say, and I don’t with to be in any way disrespectful, but atriskof prejudging [the bank]. Let [the bank] put on - - -
HIS HONOUR: No, I am not going to make any order about- - -
[MS B]: If I may - - -
HIS HONOUR: - - - the apparent inconsistencies. I am going torefer them to the Attorney-General - - -
[MS B]: Well - - -
HIS HONOUR: - - - to be appropriately investigated- - -
[MS B]: Certainly, your Honour has all those - - -
HIS HONOUR: - - - and if he considers it appropriate,prosecute it.
[MS B]: Your Honour has many powers and I wouldn’t suggest for onemoment to detract from them. But [the bank] needs to understandthe case thatis being brought against it, needs to be given the opportunity to put onevidence to explain the situation. It mayvery well be, your Honour- - -
HIS HONOUR: You have had since 21 April.
[MS B]: - - - that once evidence has been placed before thecourt and [the bank] has been properly cross-examined and so forth onthatevidence, that it may be that the concerns your Honour has are not nearlyeither as – that may not be founded at all orthey may not nearly be asserious as your Honour suggests, in which case, the making of this into aToday Tonight story by allowingthe parties to go to the media only prejudices,and may I say, potentially degrades the integrity of the proceedings because atthisstage, all of this is untested; and at this stage, it is out of context; and prior to now, [the bank] has not been representedin the proceedings.
HIS HONOUR: But what I do have a context of are two sets of documentsprovided on the same day which cannot both possibly stand together.
[MS B]: Well, that may be - - -
HIS HONOUR: There is an issue about the integrity not of these proceedings,but of the banking process.
[MS B]: But your Honour, that is a matter of evidence.
HIS HONOUR: I am entitled to receive a business record from [the bank] that Ican rely upon, and on the first instance did in sentencingto a period ofimprisonment an elderly gentleman who it subsequently transpires may or may nothave dementia.
[MS B]: Well, your Honour, that may be – look, all of that may beso or not so.
HIS HONOUR: To then be provided with a document on the same day that says,“Sorry, that is not right.”
[MS B]: Well, your Honour, it may be that there was human error. Thesethings do exist in a big corporation - - -
HIS HONOUR: They do.
[MS B]: - - - as much as they do in any household or it mayhave been something else.
HIS HONOUR: The problem is I can understand if it was a transaction.
[MS B]: But we need to find out. These are matters of evidence. I’msorry, your Honour?
HIS HONOUR: If it was a transaction, I would understand. But it is everytransaction.
[MS B]: Well, your Honour, I take issue with that and I would say, onthe evidence, it is not every transaction.
HIS HONOUR: All right.
[MS B]: But I am not going to give evidence from the bar table because I canfeel - - -
HIS HONOUR: It is the majority of them. Telephone banking transfers to aterm deposit in [the husband’s] name. He has neverused telephonebanking, he doesn’t have the facility on his account and he doesn’thave a term deposit.
[MS B]: Well, your Honour, I take issue with two of the – well, infact, I take issue with two of those things and I agree withthe third. Butthose are matters of evidence.
HIS HONOUR: Good. Well, the bank should have put it on before today. Didn’t need me to make an order about it.
[MS B]: Well, your Honour, before today, there has been no applicationagainst the bank. The bank has nothing to answer as yet.
HIS HONOUR: But there is a subpoena which the bank has not complied with. Wehave visited that issue. The bank cannot produce documentswhich they thenconcede are not an accurate business record and say they had complied.
[MS B]: Your Honour, until an application is made against the bank, thebank has nothing to put evidence on about - - -
HIS HONOUR: They have an obligation to comply with a subpoena or explaintheir inability to do so. They haven’t. As I said,I am happy to arrestthe director - - -
[MS B]: Very well, your Honour. I hope you won’t be doing that.
HIS HONOUR: - - - because they haven’t complied.
[MS B]: But perhaps if we can just revert to a timetable for filingevidence.
HIS HONOUR: We have got that.
[MS B]: And the matters can be ventilated.
HIS HONOUR: We have got that.
[MS B]: Thank you.
HIS HONOUR: But we are getting to the bottom in these proceedings of what hasgone wrong in this case and I am not trying to prejudgeor suggest it isnecessarily collusive. I don’t know. But I am dismayed that a bank– and the bank that I bank with– can produce records that are thatinaccurate, and then expect that this court is not going to pay attention ...(emphasis added)

The contempt charge

Chief Justice Bryant was just as critical, but on this point. Her Honour stated:

In light of these well established statements of principle and the Rules of theFederal Magistrates Court a fair hearing of the chargeof contempt in the faceof the Court requires the following steps to be taken:
First set outthe charge which can be done orally or in writing. However it is essential thatthe alleged contemnor understands thecharge that is being laid.
Consider whetherit is necessary to take the exceptional step of proceeding to hear the charge orwhether the charge should then beadjourned so it can be heard before anotherjudicial officer.
To afford thealleged contemnor the opportunity to consider the charge and to adjourn for thatpurpose if necessary.
To givethe alleged contemnor the opportunity to state whether he or she pleads guiltyor not guilty to the charge.
To determinewhether the charge requires the alleged contemnor to be held in custody and tohear submissions on the issue.
In the event thealleged contemnor pleads not guilty to give him/her the opportunity to presentevidence and make submissions relevantto the defence and determination of thecharge.
Having heard thedefence to determine the charge beyond reasonable doubt and if establishedconvict the alleged contemnor.
To make an orderfor punishment if convicted, or discharge if not.
If sentencing,to have regard to relevant sentencing principles.
To give reasonsfor the decision to convict and sentence.
Itis apparent from the transcript that his Honour failed to comply in almost allrespects with the Federal Magistrates Court Rules and with the well establishedauthorities in relation to the manner in which contempt in the face of the Courtis to be conducted. However to explain what occurred it is necessary toconsider in some detail how the matter unfolded before hisHonour.

Her Honour then noted as to the appearance in June, commencing with a passage of transcript with the bank's counsel:

[the bank] did notcause [the husband]to be arrested. Your Honour, there is a chain of reasoning certainly inyour Honour’s decision to issuean arrest warrant to [the husband]but I would simply say, to protect my client’s interests, [the bank] didnot cause thatto occur.HIS HONOUR: I didn’t issue an arrest warrant, I convicted him andimprisoned him. (My emphasis)
Thatstatement by his Honour is startling because as I have previously observed, itis obvious no proper procedure to arrive at aconviction and imprisonment hadtaken place. However it accords with the order that his Honour made, which hadthe character ofpunishment for contempt rather than a remand until the contemptcould be heard. If that is so, it needs no further comment to demonstratetheclear and unambiguous failure to comply with the Federal Magistrates CourtRules, established authority and basic tenets of procedural fairness. Theadmission from his Honour that he had convicted and imprisonedthe husbandreveals that he failed:
to allow thehusband to plead to the charge;
to afford thehusband an opportunity to get advice or be heard;
to allow thehusband to call evidence in relation to the charge;
to make findingson the evidence to determine whether the charge was proven beyond reasonabledoubt;
to make a formalconviction;
to properlysentence;
to give reasons.
Judgeshave significant powers which must be exercised judicially. In particular, thedeprivation of the liberty of an individualis something not to be treatedlightly by ignoring Rules and procedural fairness or by being used as a weaponwith which to threatena party as a means of seeking to achieve an end.
Iam conscious that no appeal by the husband was brought against his assertedconviction (and that his capacity to conduct proceedingsstill remainsuncertain) and that there is no contradicter to support the manner in which theFederal Magistrate conducted the proceedings. Accepting those caveats howeverthe transcript itself makes clear the flaws in the process adopted by theFederal Magistrate.
Thewider interests of public confidence in the administration of justice andexpectation that judicial officers will not act arbitrarily,has caused me totake the unusual step of commenting on the process adopted by his Honour inrelation to the contempt charge againstthe husband, absent an appeal againsthis orders.

Family Court rules on counselling privilege

2011-08-21T13:44:00.000+10:00

The Full Court of the Family Court has ruled on the scope of counselling privilege as set out in sections 10D and 10E of the Family Law Act. In broad terms, these provisions state that what is said in the type of counselling that is covered (broadly counselling in approved marriage guidance organisations) remains confidential and cannot be used in court proceedings.

In the recent case of Uniting Care and Harkess, the Uniting Church counselling arm argued that a subpoena should be set aside. The Church was successful.

Section 10D

Most of the case concerned sections 10D and 10E. Section 10D provided that what was said in counselling was confidential and could not be used in court, unless the parties taking part in counselling consent to the release of the information, in which case the counsellor "may" release the information. Section 10D(3) of the Family Law Act provides:

(3) A family counsellor may disclose a communication if consent to thedisclosure is given by:
(a) if the person who made the communication is 18 or over--that person; or
(b) if the person who made the communication is a child under 18:
(i) each person who has parental responsibility (within the meaning of PartVII) for the child; or
(ii) a court.(emphasis added)

The difficulty for the Uniting Church was that both parties consented to the release of the information. The Uniting Church argued that "may" meant "may" not "must": in other words even if both parties agreed to the release of information, then there was still a discretion on the part of the counsellor to release information. The Church was successful.

The Full Court found that "may" meant "may", stating:

Section10D of the Act creates and defines the privilege attaching to communicationsmade to a family counsellor in the conduct offamily counselling, andarticulates the circumstances in which that privilege may, or must be waived.Given the absence of legislativeconstraint upon the persons or entities towhom, or to which disclosed communications may be published, failure to observethe legislativeimperatives of s 10D could have quite unintendedconsequences, and potentially adverse implications for the welfare of childrenreferredto in, or connected with such communications.

The Federal Magistrate, in making the order for the production of documents, sought to rely on section 10D(3)(b). The Full Court disapproved:

Tothe extent that the learned Federal Magistrate purported to rely upons 10D(3)(b), with respect to him, the facts of this casereveal that itcould not be enlivened. The reference to “a court” in s 10D(3)refers only to communications made by “achild under 18”, and not tothe parties to the marriage in this case. Section 10D(3)(a) does not refer to,or invoke the interventionof “a court”. That cannot have beeninadvertent. If the legislative intention had been that a Court could overridethewishes of the adults falling within s 10D(3)(a), or the familycounsellor, it would have so provided in the legislation.(emphasis added)

Section 69ZX

This section of the Family Law Act allows the court to seek the production of documents. It was argued that this section overrode section 10D and therefore required the production of the documents. The Full Court rejected that approach:

TheCourt is not persuaded that s 69ZX purports to empower the Court to require theproduction of documents in the circumstances ofthis case. If it does, then itcould not in the Court’s view override the clear expressed terms of s 10Dof the Act.
TheCourt is not persuaded that the provisions of s 69ZX are inconsistent andirreconcilable with the provisions of s 10D. As theirterms make clear, thesections are directed to quite different issues. Section 69ZX suggests howpowers created by other provisionsof Part VII might be exercised, rather thanconferring powers. However, to the extent that the provisions are, or may be,inconsistentand/or irreconcilable, the presumption that the general provisionsof s 69ZX should “give way” to the specific provisionsof s 10Dshould be applied.

Section 10E

This section is familiar to those like me who were familiar with the old section 19N- it in effect reenacts that section. The Full Court referred to the explanatory memorandum, which clearly refers to the effect of section 10E in also applying to State courts:

Currently,the admissibility into evidence of communications and admissions made in familyand child counselling and family and childmediation, or in a professionalconsultation pursuant to a referral by a family and child counsellor or familyand child mediator,is addressed by section 19N of the Act.
Section10E largely recreates section 19N, to the extent that that section relates tofamily counsellors. Subsection 10E(1) providesthat a communication made infamily counselling is not admissible in any court or proceedings, in anyjurisdiction.
Subsection10E(1) also provides that a communication made when a professional consultationis being carried out on referral from afamily counsellor is also inadmissiblein any court or proceedings, in any jurisdiction. In order to ensure thatprofessionals towhom family counsellors make referrals are aware of theinadmissible status of communications made to them, subsection 10E(4) requiresthe family counsellor to inform them of this fact when making a referral.(emphasis added)

The Full Court accepted that the scope of section 10E applied to "all courts":

Theterms of ss 10E(1) and (2) are instructive. It is clear that, unless, and eventhen only in the circumstances there referred to,admissions or disclosures weremade in the terms referred to in s 10E(2)(a) or (b), there is anabsolute prohibition, in all courts,on the admissibility of evidence of“anything said, or any admission made, by or in the company of”, inthis case, afamily counsellor conducting family counselling.(emphasis added)

Family Court disqualifies Magistrate due to perception of bias

2011-08-21T13:03:00.000+10:00

The Full Court of the Family Court, in a case called Nadkarni and Nadkarni, has recently ordered that a matter not be before Federal Magistrate Harman, due to perceptions of bias, and set out guidelines for judges as to disqualification.

The wife successfully appealed the refusal by the Federal Magistrate to disqualify himself. His Honour stated, in refusing the application:

Ido make clear that there was most certainly a personal andintimate relationshipbetween [the wife’s] lawyer and myself, as well as the businessrelationship. That terminated in 2006. That is a matter, it would seem, ofgreat interest to the legal profession of Parramatta ...

It seems surprising that Federal Magistrate Harman did not excuse himself in light of the history:

There hadbeen a great deal of acrimony between Federal Magistrate Harman and thewife’s solicitor following the wife’ssolicitor leaving the legalpractice in which they had both worked;
FederalMagistrate Harman had complained about the wife’s solicitor to the Legal Services Commission and the NSW Law Society
In 2009, about a year prior to his appointment,Federal Magistrate Harman forwarded an "extraordinary" email denigrating the wife's solicitor to 17legal practitioners and alleging an extra-marital affair between them;
In 2010 Federal Magistrate Harman made certain remarks in another matterabout the wife’s solicitor upon the litigantadvising the court that sheintended to instruct the wife’s solicitor;
In a separate matter in 2010 FederalMagistrate Harman had indicated that he would refer anypractitioner who renewed an application for disqualification for disciplinaryinvestigation;
In November 2010 his Honour “rushed” to deliver an ex-tempore judgmentin circumstances where the matter was notlisted for hearing and did not permitthe parties to participate in the hearing.

The Full Court stated:

This is one of the extreme cases where, as a result of the circumstances of theassociationbetween the Federal Magistrate and the wife’ssolicitor, the Federal Magistrate might not bring an impartial andunprejudiced mind to the resolution of the question he is requiredto decide.

Wewould add that once it is accepted that a subsisting marriage, or other ongoingintimate relationship or association between ajudicial officer and a lawyer isa disqualifying factor, it must also be accepted that once a marriage or similarrelationship orassociation has broken down, that disqualifying factor mustremain, at least for a reasonable period. This must be so because oftheacrimony that so often follows such a breakdown, as a lay observer would wellunderstand.

Whatis a reasonable period for disqualification following the cessation of anintimate relationship will be determined on a caseby case basis and havingregard to the perceptions of the hypothetical lay observer. In this case theuncomplimentary email sentby the Federal Magistrate only 15 months earlierclearly fell within the time-frame in which a relationship, albeit one ofhostility,not closeness, existed.

Mother jailed for child abduction

2011-08-21T12:26:00.001+10:00

A Perth mother, who was caught in Adelaide having bleached her hair and that of her son, was jailed for 6 months for his abduction.

The mother had form for abduction. In 2008, after 6 years of litigation, the mother and father agreed to orders that split the child's care 9 days/5days in favour of the father. Within a month of agreeding to those orders, the mother abducted the son from school. A recovery order was made, and some months later the mother and son were found by police in Melbourne. Orders were made to prevent the mother from approaching the school, removing the chil from his school, or from taking the child from the father's care.The mother was not charged with any offence from this first abduction.

For 11 months after the child was returned to the father's care, the mother had no contact with her son; until one day in November 2009 when she came to her son's school at morning tea, took him and then hid with him in Adelaide. Police found the son hiding in the shower cubicle. Both he and the mother's hair had been bleached, presumably to make it easier to hide.

This time around, the WA Commissioner of Police charged the mother with contempt, for approaching the school, removing the son from school, and for removing the child out of the father's care.

After several adjournments, the trial got underway. The trial judge, Justice Crisford, found that the mother, who claimed that she was taking her son to protect him from abuse, did not have a reasonable excuse, and that therefore the mother was guilty of the offences. Justice Crisford sentenced the mother to 4 months gaol for the approaching and removal from school, and 6 months gaol for removal from the father's care.

The mother unsuccessfully appealed the sentence, from what the Full Court of the Family Court stated was a "careful and detailed judgment". The Full Court cited this passage from the trial judge's judgment as to why gaol was appropriate:

...It is my view that the mothermust be deterred from any temptation to reoffend. This is addressed to themother personally, butit is also addressed to the community at large and peoplewho may consider acting in this same manner. The orders of this Courtareorders which affect children. They are orders that are made with the bestinterests of children in mind. The consent orderswere changed after the motherremoved the child on the first occasion.

There is no doubt that the orders made by the Court and which have beenbreached here were made by the Court on the basis that itwas best for the childdue to the circumstances of the earlier abduction that the child live with themother [sic] and that the mothernot be presented with any other opportunity toremove the child. Those orders, as I have said, were made by this Court in thebestinterests of the child and that is something the community expects fromthis Court and it is something that this Court must uphold.(emphasis added)

2011-08-18T15:10:00.001+10:00

My firm, Harrington Family Lawyers, has won the 2011 City News Business Achiever Award for Professional Services!

2011-08-18T12:00:00.001+10:00

I received confirmation I've been nominated as White Ribbon ambassador of the year. Winner announced 1 September.

2011-08-08T08:40:00.001+10:00

High Court: Lawyers' interesting argument is Minister as guardian of children should put their interests first.

2011-08-03T23:54:00.001+10:00

Woman wins right to store dead man's sperm and bear his child - http://ow.ly/5U5PO

2011-08-01T17:40:00.001+10:00

I spent the day with Qld Dept of Communities giving feedback about the draft #domestic violence bill. And again tomorrow.

2011-07-28T05:49:00.001+10:00

I have been nominated by Qld Law Society as the rep for feedback to Qld Government about new #domestic violence laws. An amazing week.

2011-07-28T05:42:00.001+10:00

I've been nominated as White Ribbon Ambassador of the Year, standing up for those subjected to #domestic violence. Quite chuffed.

2011-07-28T05:28:00.001+10:00

NSW, Qld and ACT intended parents at risk of prosecution for overseas commercial #surrogacy, due to Family Court case: http://ow.ly/5OS0a

2011-07-25T22:23:00.001+10:00

We're off & running. Only 97 $100 donors to go to raise ten grand to help me stop domestic violence:http://ow.ly/5MrAa Please help!

2011-07-25T13:35:00.001+10:00

Tough child abduction laws could backfire, by driving people to hide their kids : The Australian - http://ht.ly/5MdFR

2011-07-25T09:46:00.001+10:00

Catholic Church says sorry over forced adoptions - ABC News http://ht.ly/5M8H0

Why I'm going to Nepal

2011-07-24T21:55:00.001+10:00

In September, I am travelling to Nepal with Australia's CEO Challenge. I will be trekking and also working with local women, who are single, illiterate and dreadfully poor. I will be paying my own way there.

I thought that by going to Nepal I could help survivors of domestic violence- both in Nepal, and by fundraising and raising awareness, back here in Australia.I have now been helping survivors of domestic violence since 1985, which I must say seems to be a very long time ago. In Queensland, my home State, back then there was no domestic violence legislation. It seems hard to credit it, as the Domestic and Family Violence Protection Act has been a part of the landscape for so long, but back then it didn't exist. It required an inquiry, initiated by the then National Party government (remember that this was pre-Fitzgerald), about domestic violence to give a clear recommendation for legislation, before that legislation was enacted.Over that time, I have acted for thousands of survivors of domestic violence.

The effects of domestic violence are devastating, and can last forever, permanently scarring someone's mind with awful thoughts.Even worse, the actions of domestic violence can at the most extremem lead to family homicides- the types we have seen too often of the murder/suicides, or even the battered woman in an act of desperation killing her tormenter.I have come to learn over those many years that regrettably, domestic violence isn't caused by alcohol or drugs (though there can be astrong correlation), it isn't confined to one race or type of people (though it is more common with the less wealthy), and neither sex has a monopoly of good or evil.

As a family lawyer, I have acted in cases where the man has been violent, where the woman has been violent to her husband, where a gay man or a lesbian has been violent to their partner, and even one case involving a lesbian/transgender relationship.Despite all those types of domestic violence, the most common type is that of men towards their women.Luckily our society has greatly improved its response towards doemstic violence for the benefit of survivors of violence, but there is much more to be done.

That is why I am Deputy Chair of Australia's CEO Challenge and why I am going on the trek. I have been involved as a partner or director with Australia's CEO Challenge for the last 10 years. I did so because this tiny charity, that knows how to stretch a buck like virtually no one else, helps survivors of violence. It does this in three ways:

1. It partners businesses with refuges.
Australia's CEO Challenge is the only charity in the country that does so. it is unique. Suddenly businesses are helping with refuges, by offering mentoring, and fundraising or provision of supplies. There are few things more satisfying to me than going to a refuge and hearing from women who stayed there about how Brisbane City Council (which was a partner of that refuge)supplied and installed play equipment, enabling the kids staying there, to do what kids do best- to play, and relax. When I heard that story, I thought: "In my own little way, I helped that happen. i made a difference to the lives of those women and children."

2. Australia's CEO Challenge provides workplace training about workplace bullying, and the correlation between those people and those people often being perpetrators of domestic violence.

3. With a small amount of money from the Queensland Government ($20,000 a year over 3 years), Australia's CEO Challenge co-ordinates White Ribbon Day events in Queensland. 25th November each year is White Ribbon Day, or as it is otherwise called the UN International Day for the Elimination of Violence Against Women. Naturally, I prefer to call it White Ribbon Day, as it is less of a mouthful. Events highlight the fight against domestic violence and the community, especially men, saying that they will not commit domestic violence, will not condone domestic violence, and will not be silent about domestic violence.I am going to Nepal to help there, and also to help raise money for Australia's CEO Challenge here. Please donate. If you can help by donating, your help is greatly appreciated. You can donate here: Little Stevie Helps End Domestic Violence .If you can help in any other way, such as partnering a refuge, or helping to end domestic violence, email me: lilstevieconquersDV@gmail.com or call me: 07 3221 9544.

2011-07-24T21:15:00.001+10:00

Please help me end domestic violence by helping sponsor me: http://ht.ly/5LUUw

2011-07-16T07:45:00.001+10:00

Abducted children taken to Japan ABC News http://ht.ly/5FEb5 Parents must be vigilant if their child has dual citizenship.

2011-07-14T09:30:00.001+10:00

Other speakers have been confirmed when I speak at American Bar International Surrogacy conference in Vegas in Oct http://ht.ly/5E1BJ

2011-07-11T16:49:00.001+10:00

I just gave evidence to the Tasmanian Upper House committee reviewing that State's proposed surrogacy laws.

2011-07-10T05:47:00.001+10:00

Manslaughter for man who dismembered ex-wife - ABC News http://ht.ly/5AzbZ

2011-06-25T16:31:00.001+10:00

New York approves gay marriage - ABC News http://ht.ly/5q6nS

2011-06-09T09:29:00.000+10:00

Harrington Family Lawyers is a 2011 Business Achievers Finalist .We must be doing something right. Amazing stuff.

2011-05-26T21:52:00.001+10:00

Family law is failing kids - The Drum Opinion ABC http://ht.ly/53qP6

2011-05-23T09:50:00.001+10:00

"Parental alienation syndrome": It's not a real disease, but some people want it to be. Slate Magazine http://ht.ly/50lDz

2011-05-17T14:52:00.001+10:00

I am on Queer Radio 4ZZZ tomorrow night at 10.40pm talking about surrogacy

2011-05-14T08:13:00.001+10:00

IVF doctor calls for uniform surrogacy laws: Courier-Mail http://ht.ly/4U6nk

2011-05-12T09:00:00.000+10:00

Surrogacy in Queensland a legal minefield, say I| Courier Mail http://ht.ly/4SA0B

2011-05-10T10:56:00.001+10:00

Why counselling is needed: mother of Qld's first surrogate baby regrets giving him up: Courier-Mail http://ht.ly/4QOh5

Gillard government acts on domestic violence

2011-04-17T22:39:00.000+10:00

New laws proposed by the Gillard government directly tackle domestic violence in the family law arena. They are contained in one of the shortest bills before Federal Parliament, but will most likely tilt the playing field in the Family Court towards the protection of children from violence and abuse, and away from the emphasis of the child’s right to have a relationship with the other parent.

In broad terms, a win for the women’s lobby and a loss for the men’s rights lobby.

The Family Court (and more recently the Federal Magistrates Court) has since its existence had to struggle with how to balance the protection of children and parties from domestic violence and abuse, and on the other ensure children where possible have a relationship with the other parent.

Similarly governments and parliamentary committees of all hues have tried to tackle both issues.

When the 2006 amendments to the Family Law Act were brought in by the Howard government, there was a perception that they overly favoured the men’s rights lobby, and did not properly tackle the issue of domestic violence enough.

Following a series of reviews of the Family Law Act, partly because of a review process set in train arising from the 2006 amendments, and partly because of the murder of Darcey Freeman by her father, the Commonwealth Attorney-General Robert McClelland has put the Family Law Legislation (Family Violence and other Measures) Bill 2011 before the House.

The Bill aims to do the following:

Widen the definition of “abuse”. This previously covered assaults and using a child as a sexual object but inexplicably did not include causing serious psychological harm to a child, including when the child is subject or exposed to family violence, and neglect.
Removes the test of reasonable belief that was required by a survivor of family violence to show that it was family violence. There was a perception that this limited women from coming forward and naming family violence.
Sets out examples of family violence:

(a) an assault; or

(b) a sexual assault or other sexually abusive behaviour; or

(d) repeated derogatory taunts; or

(e) intentionally damaging or destroying property; or

(f) intentionally causing death or injury to an animal; or

(g) unreasonably denying the family member the financial

autonomy that he or she would otherwise have had; or

(h) unreasonably withholding financial support needed to meet

the reasonable living expenses of the family member, or his

or her child, at a time when the family member is entirely or

predominantly dependent on the person for financial support

(i) preventing the family member from making or keeping

connections with his or her family, friends or culture; or

(j) unlawfully depriving the family member, or any member of

the family member's family, of his or her liberty

For the first time, in setting out those examples, identifies types of domestic violence, including social isolation, and trying to starve the other party into submission.
However, these examples are limited by what is required for family violence in the new definition. It will mean: “violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful”.
The key feature of this definition is that the behaviour must be coercing or controlling or make the other person fearful. For the first time ever the Family Law Act will recognise, as Justice Chisholm in JG and BG recognised as long ago as 1994, that domestic violence involves power and control elements. Just because one of the examples, such as withholding financial payments, might be made out does not necessarily make the behaviour “family violence” unless this element is met.
Since the seminal decision of Justice Chisholm in JG and BG in 1994, and by the Full Court of the Family Court in Patsalou and Patsalou in 1995, the Family Court has recognised that children can be affected by domestic violence by being indirectly exposed to it. Before then an argument would be run by a violent party that there was little if any impact upon the child as the child had not seen or heard the incident. There has never been a statutory definition of “exposed” which this bill attempts for the first time:

For the purposes of this Act, a child is exposed to family violence

if the child sees or hears family violence or otherwise experiences

the effects of family violence.

Examples of situations that may constitute a child being exposed to

family violence include (but are not limited to) the child:

(a) overhearing threats of death or personal injury by a member

of the child's family towards another member of the child's

family; or

(b) seeing or hearing an assault of a member of the child's family

by another member of the child's family; or

family who has been assaulted by another member of the

child's family; or

(d) cleaning up a site after a member of the child's family has

intentionally damaged property of another member of the

child's family; or

(e) being present when police or ambulance officers attend an

incident involving the assault of a member of the child's

family by another member of the child's family.”

For the first time ever, to legislate to adopt the International Convention on the Rights of the Child. This is long overdue. Australia has been a signatory for many years, but did not enact law to bring the Convention into force.It is likely that the enactment into law of the Convention will result in a change to at least some litigation and procedures in the Family Court. Recognition of “rights” has that effect. Key features of the Convention include:

“the best interests of the child shall be a primary consideration”;
Countries “undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents”;
Countries “shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.”
In any court proceedings to remove the child, “all interested parties shall be given an opportunity to participate in the proceedings and make their views known.”
The child shall have a right “to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests”;
“A child whose parents reside in different (countries) shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and direct contacts with both parents.”;
The child shall “be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body”;
Countries “shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children.”;
Countries “shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.”;
Countries “recognize that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community.”;
In countries in which “ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.”;
Countries “shall take all appropriate measures, including legislative, administrative, social and educational measures, to protect children from the illicit use of narcotic drugs and psychotropic substances”;
Countries “shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment”;

For the first time ever, when there is an inconsistency between the right of the child to maintain contact with the other parent, and the right of the child to be protected from family violence and abuse, the latter has priority;
Repeal of the friendly parent provisions of the Family Law Act. These provisions were seen to be essentially critical of women, who were criticised for not being a friendly parent when they asserted that all they were seeking to do was to protect their child;
Replacement of the provision that specifically ignored temporary domestic violence orders, with recognition of all domestic violence orders;
Making family lawyers and counsellors focus more on the effects of family violence, in their advice to their clients;
Repealing section 117AB of the Family Law Act. This section was inserted at the behest of father’s rights groups, over the opposition of the Family Law Section of the Law Council of Australia. The Family Law Section stated that there were adequate costs remedies already, and if a person had committed perjury, that person should be prosecuted. The section provides that when the court is satisfied that a party to the proceedings knowingly made a false allegation or statement in the proceedings, the court must order costs against that party. The section has been blamed for men seeking to intimidate women from raising allegations of domestic violence or abuse, for fear of a costs order being made against the women.

2011-04-16T06:10:00.001+10:00

NY woman seeks to remove her father from her birth certificate, to claim half her "father's" estate NY Times http://ht.ly/4BkHb

2011-04-01T15:39:00.001+10:00

Major case suggesting how domestic violence ought to be taken into account in children's cases: http://ht.ly/4qT7q "Violence is violence."

2011-03-25T07:53:00.001+10:00

Tougher laws for murderous ex-lovers http://ht.ly/4lSNO

2011-03-20T07:10:00.001+10:00

Insight on commercial surrogacy: Star Online: http://ht.ly/4hWO0

2011-03-12T05:42:00.001+10:00

Darcey's dad Arthur Phillip Freeman cried over custody fight "he loved his children"http://ht.ly/4cIOb

2011-03-10T13:23:00.001+10:00

HIV victims tell court of 'betrayal' - ABC News http://ht.ly/4bngK

2011-03-09T06:50:00.003+10:00

Break-up leaves girl trying to play parent in same sex parents' bitter feud: http://ht.ly/4a0Sn

2011-03-09T06:50:00.001+10:00

Break-up leaves girl trying to play parent in same sex parents' bitter feud: http://ht.ly/4a0Sn