Friday, 26 October 2007

New family law scholarship

A new family law scholarship has been announced by The Family Law Practitioners Association of Qld Ltd.

The Dianne Smith Post-Graduate Family Law Research Scholarship (named in honour of the retired Judicial Registrar and former President of FLPA) has a value of $15,000 to $35,000. An information sheet in relation to the scholarship can be found on the FLPA website. The closing date for applications for the scholarship is 31 October 2007.

Link to website

Show and tell, not hide and seek -disclosure part 1

Somerset Maugham said as long ago as 1926 in "The Constant Wife": "There is only one freedom that is really important and that is economic freedom, for he who pays the piper calls the tune."

Whilst not the only freedom that is really important, it is imperative to have economic freedom.

One of the key features about negotiating a deal about your property, to ensure that a party has economic freedom, whether or not the parties go to court, is to ensure that there has been full disclosure of their financial circumstances.

The Family Law Rules set out a shopping list of things to be disclosed before going to court, but more important is the phrase: "full and frank disclosure in a timely manner".

This means, subject to privilege, that there has to be openness about disclosure for documents (including computer files) that might even be harmful to that party's cause but are relevant to the dispute.

To paraphrase Federal Magistrate Lucev recently - counsel put it succintly as it's a case of "show and tell" not "hide and seek".

I sometimes decribe it to clients as "I hate surprises." Almost invariably they are going to be bad ones, at a trial, when my client will be in least control of what can happen to their future. It is rare to have good surprises at court.

Of course often clients complain that their ex has not made full disclosure. The obvious question that gets asked is: "before we [go to court/ write a nasty letter/ issues subpoenas etc] have YOU made full disclosure?" Usually the immediate answer is no, but on further checking often it is yes.

I will have further posts about what to do if the other side does not make full disclosure.

Well, we know where the parties stand.......

Earlier this week, I was asked by Qnews, as its legal columnist, to find out what the political parties' positions were on same sex law reform, particularly in light of the report of the Human Rights and Equal Opportunities Commission which found that there was discrimination in a myriad of Commonwealth laws against same sex couples.



Liberals
Reports indicated that this issue was discussed at Cabinet, where no decision was made as the Cabinet was split, with some Ministers including Turnbull and Ruddock being in favour, and others including Minchin, Abbott and Andrews, being against.

It is not known what the position was of Peter Costello.

Ultimately it was left to John Howard to decide.

That position was made plain when at a joint party room meeting the PM opposed any changes.

As part of the preapration for my story, I emailed Liberal HQ, and also phoned for the State media director, pointing out that I had a deadline the same day and that the paper would come out about a week before the election. I have had no response.

Nationals

The policy is not published. I similarly left a message for the State Director to call me, my saying the same thing in that message as I did for the Liberals' state media director.

No response.

Labor

The ALP has published its policy online- essentially it is opposed to gay marriage, but in favour of removing all discrimination- so endorsing the HREOC report.

The ALP also favours a state based system of relation registries for same sex couples as occurs in Tasmania and as proposed for Victoria.

Kevin Rudd in the meantime has come out and said that he is opposed to same sex marriage, and whilst he is largely opposed to adoptions by same sex people (though he found that there were some exceptions) that was a matter for the states.

Greens and Democrats

Both the Greens and the Democrats seek that same sex couples have the same rights as everyone else, and have the right to marry. They would enact the changes supporting the HREOC report.

Tuesday, 16 October 2007

Vale Bill Impey


The Family Law Section of the Law Council of Australia has announced the unfortunate death of Bill Impey.

Bill was one of Melbourne’s most experienced and respected senior Family Law practitioners. He was a founding partner of Kennedy Wisewoulds and had over 30 years of professional experience in the family jurisdiction, and had been an Accredited Specialist in Family Law since 1989.

Bill was a member and former Chair of the Specialist Accreditation Advisory Committee, Law Institute of Victoria (Family Law), and a member of both the Law Institute of Victoria Family Law Section and the Family Law Section of the Law Council of Australia.

A funeral service will be held at St Peter and Paul's Church South Melbourne at 2.00pm on Friday 19 October 2007.

Books about stepfamilies

For those in them, stepfamilies can be very challenging, and at their best, rewarding. At their worst- well we all know the story of Cinderella.....

The Australian Institute of Family Studies has published a summary of books about stepfamilies, which will hopefully be a help for those who are interested or in a stepfamily.

For the summary, click here.

Federal Magistrates Court: Appointment of New Federal Magistrates

Attorney-General Philip Ruddock announced the appointments of Magistrate Margaret Cassidy and Judge Jillian Orchiston as Federal Magistrates.
“I would like to take this opportunity to congratulate Magistrate Cassidy and Judge Orchiston on their appointments to the Federal Magistrates Court,” Mr Ruddock said.
“Magistrate Cassidy and Judge Orchiston bring to their new positions a wealth of experience and expertise and I wish them every success.”
Magistrate Cassidy practised as a barrister in Queensland from 1994 until her appointment as a magistrate of the Queensland Magistrates Court in 2005.
In private practice, Magistrate Cassidy gained extensive experience in family law and related jurisdictions, together with experience in anti-discrimination law, trade practices, industrial relations, corporations law, taxation law and alternative dispute resolution.
Magistrate Cassidy will take up her appointment on 5 November 2007 and will be based in Brisbane.
Judge Orchiston practised as a barrister in New South Wales from 1987 until her appointment as a magistrate of the Local Court of New South Wales in 1994.
In 2003, she was appointed an Acting Judge of the District Court of New South Wales and a Judge of the Drug Court of New South Wales. Her work with the Drug Court has enabled her to gain specialised knowledge of the practice of therapeutic jurisprudence.
Judge Orchiston will take up her appointment on 12 November 2007 and will be based in Sydney.

Family Court: Appointment of new judge

Attorney-General Philip Ruddock announced the appointment of Mr Stuart Fowler AM as a judge of the Family Court of Australia.
“It is with great pleasure that I announce Mr Fowler’s appointment to the Family Court,” Mr Ruddock said.
“Mr Fowler brings to his new position extensive experience and expertise in the family law jurisdiction.”
“I know he will continue to make a valuable contribution to the law in Australia.”
Mr Fowler was admitted as a solicitor in New South Wales in 1966 and has primarily practised in the area of family law since that time.
Mr Fowler is Co-Chairman of the World Congress on Family Law and Children’s Rights, a position he will continue to hold. Before taking up his appointment, he was Vice Chairman of the New South Wales Family Law Practitioners Association.
In 2005 Mr Fowler was made a Member of the Order of Australia for his services to the law in Australia and internationally, particularly through the establishment of the World Congress on Family Law and Children’s Rights.
Mr Fowler will take up his appointment on 16 November 2007 and will be based in Sydney.

Family Law Council: new appointments


Attorney‑General Philip Ruddock announced four appointments to the Family Law Council.
“Firstly, I am pleased to announce the appointment of Professor John Wade (pictured) as the new chairperson of the Family Law Council,” Mr Ruddock said.
“Professor Wade teaches law at Bond University and has excellent qualifications for this position. He has both extensive practical experience as a mediator and an international reputation as a leading author in family law and dispute resolution.”
Professor Wade was previously a member of the Family Law Council from 1988 to 1990. His term as chairperson is for three years from the date of appointment.
Professor Wade follows Professor Patrick Parkinson as chairperson of the Family Law Council.
"Under Professor Parkinson’s stewardship, the Family Law Council has made significant contributions to policy and legislative reform in family law,” Mr Ruddock said.
“I am grateful to Professor Parkinson for his considered advice over the years and his important role in developing the Family Law Council’s report, Family Law and Child Protection.”
Mr Ruddock also announced the re-appointment of Justice Garry Watts, Ms Nicola Davies and Mr Clive Price to the Council for a further term of three years.
“These appointments will allow these members to continue their excellent work as convenors and active participants in the Council’s committees,” Mr Ruddock said.
The Family Law Council is a statutory body which advises the Attorney‑General on a range of family law matters.
The Council is currently working on a number of references from the Attorney-General including Violence and the Family Law Act, Mental Health Issues in Family Law, Improving Post Parenting Order Processes, and Arbitrating Family Law Property and Financial Matters.
In August the Government also accepted all of the recommendations made in the Family Law Council’s Report to the Attorney-General on Relocation. The report provides guidance for courts when one parent applies to relocate after separation.

Family Court: Appointment of new judge

Attorney-General Philip Ruddock announced the appointment of Mr Peter Murphy SC as a judge of the Family Court of Australia.
"It is with great pleasure that I announce Mr Murphy's appointment," Mr Ruddock said.
"Mr Murphy brings to his new position considerable experience and expertise in the family law jurisdiction."
"I am sure he will make a positive contribution to the law in his new capacity as a judge of the Family Court of Australia."
Mr Murphy was first admitted as a solicitor in Queensland in 1978. He practised as a barrister in private practice from 1990 until 2004, when he was appointed as a Senior Counsel. Mr Murphy is an accredited arbitrator and mediator.
Mr Murphy has been a contributing author to Family Law in Australia and at the time of his appointment was a member of the Family Law Section, Law Council of Australia, and of the Australian Institute of Family Law Arbitrators and Mediators.
He has written extensively on family law and, over the last decade, has presented many papers in Queensland and elsewhere throughout Australia.
Mr Murphy will be based in Brisbane.

Monday, 15 October 2007

Federal Magistrates Court: Appointment of New Federal Magistrate


Attorney-General Philip Ruddock announced the appointment of Ms Susan Purdon-Sully as a Federal Magistrate, based in Brisbane.

"Ms Purdon-Sully brings to her new position considerable experience in, and knowledge of, family law and dispute resolution," Mr Ruddock said.
At the time of her appointment, Ms Purdon-Sully was a partner in the Brisbane legal firm of Hopgood Ganim Lawyers, and a Fellow of the International Academy of Matrimonial Lawyers.

Until recently she had also been a member of the Family Law Council of Australia.
Ms Purdon-Sully has been an Associate Instructor of the Dispute Resolution Centre at Bond University and a member of the Alternative Dispute Resolution Committee of the Queensland Law Society.

She is a Past President of the Queensland Women Lawyers Association and, in 2005, co-edited A Woman's Place - 100 years of Queensland Women Lawyers.

Ms Purdon-Sully will take up her appointment on 15 October 2007.
"It is with great pleasure that I announce Ms Purdon-Sully's appointment," Mr Ruddock said.

"I look forward to the further valuable contribution to the law I am sure she will make in her new capacity as a Federal Magistrate."

Family Court, Federal Magistrates Court: New Court fees

The Federal Government has announced changes to the court fees that apply in the Federal Magistrates Court and Family Court of Australia in family law matters effective 15th October.

"These changes have occurred in an effort to align the fees between the two courts. Other court fees will be reviewed in line with the normal fee review process."

As an example, filing an application (or response) for final orders currently attratcs a fee of $121 and $191 for the Federal Magistrates and Family Courts respectively, but these will be changed to $145.

For the full guide,
click here.

Guide to Child Protection legislation

Each State and Territory has different child protection legislation. The Australian Institute of Family Studies has published a useful guide, which I've summarised below. The full AIFS guide has links to the legislation websites.




Australian Capital Territory


(Department of Disability, Housing and Community Services)

Principal Acts:
Children and Young People Act 1999 (ACT)
Other relevant Acts:
Adoption Act 1993 (ACT)
Human Rights Act 2004 (ACT)
Human Rights Commission Act 2005 (ACT)
Public Advocate Act 2005 (ACT)
Family Law Act 1975 (Cth)

New South Wales


(Department of Community Services)

Principal Acts:
Children and Young Persons (Care and Protection) Act 1998 (NSW)

Other relevant Acts:
Children and Young Persons (Care and Protection) Amendment (Parental Responsibility Contracts) Act 2006 (NSW)
Child Protection (Offenders Registration) Act 2000 (NSW)
Crimes Act 1900 (NSW)
Commission for Children and Young People Act 1998 (NSW)
The Ombudsman Act 1974 (NSW)
Family Law Act 1975 (Cth)


Northern Territory


(Family and Children's Services, Department of Health and Community Services)

Principal Acts:
Community Welfare Act 1983 (NT)
Care and Protection of Children Draft Act (NT)(currently before Cabinet)

Other relevant Acts:
Information Act 2006 (NT)
Disability Services Act 2004 (NT)
Criminal Code Act 2006 (NT)
Family Law Act 1975 (Cth)

Queensland


Department of Child Safety

Principal Acts:
Child Protection Act 1999 (Qld)

Other relevant Acts:
Commission for Children and Young People and Child Guardian Act 2000 (Qld)
Education (General Provisions) Act 2006 (Qld)
Public Health Act 2005 (Qld)
Adoption of Children Act 1964 (Qld)
Family Law Act 1975 (Cth)


South Australia


Families SA: Department for Families and Communities

Principal Acts:
Children's Protection Act 1993 (SA)

Other relevant Acts/Legislation:
Young Offenders Act 1994 (SA)
Adoption Act 1988 (SA)
Children's Protection Regulations 2006 (SA)
Family Law Act 1975 (Cth)
Family and Community Services Act 1972 (SA)

Tasmania


(Department of Health and Human Services)

Principal Acts:
Children, Young Persons and their Families Act 1997 (Tas)

Other relevant Acts:
The Family Violence Act 2004 (Tas)
Family Law Act 1975 (Cth)

Victoria


(Children Protection and Juvenile Justice Branch; Department of Human Services)

Principal Acts:
Children, Youth and Families Act 2005 (Vic)

Other relevant Acts:
Working with Children Act (Vic)
Child Wellbeing and Safety Act 2005 (Vic)
The Charter of Human Rights and Responsibilities Act2006 (Vic)
Family Law Act 1975 (Cth)

Western Australia


(Department for Community Development, now the Department for Child Protection)

Principal Acts:
Children and Community Services Act 2004 (WA)

Other relevant Acts:
Working with Children (Criminal Record Checking) Act 2004 (WA)
Family Court Act 1997 (WA)
Adoption Act 1994 (WA)
Family Law Act 1975 (Cth)

Thursday, 11 October 2007

US Divorce rate falling

As recently seen in Australia, the divorce rate is falling, busting all the commentary of ever present increases.

It seems a similar trend is happening in the US, as this article in the New York Times makes clear:

The story of ever-increasing divorce is a powerful narrative. It is also wrong. In fact, the divorce rate has been falling continuously over the past quarter-century, and is now at its lowest level since 1970. While marriage rates are also declining, those marriages that do occur are increasingly more stable. For instance, marriages that began in the 1990s were more likely to celebrate a 10th anniversary than those that started in the 1980s, which, in turn, were also more likely to last than marriages that began back in the 1970s.

Child support seminar series

The Family Law Section of the Law Council of Australia is hosting a national seminar series on child support, given the huge changes that have been made.

For the full listing,clck here.

The perfect client

Posted on the Oregon Divorce Blog, and just as true in Australia.

What a lawyer thinks of as a “perfect client” in the domestic relations sense is a client who helps the process of the dissolution, custody, or support matter along. We know how hard this process is to be going through, but it can be a much more difficult process the longer it drags on — and a much more expensive one for you. (Although we like getting paid as much as anyone else, we believe we should be problem-solvers, not problem-creators.)

Good attorneys will always treat their clients — all of their clients — with the same professionalism and respect they treat any other client. However, by helping us help you, you can make the process smoother, lower your costs, and get a better result! Here are some things you can do to help your attorney in your domestic relations case, to make things run more smoothly.

Tell us everything — the good, the bad, the ugly. We want to know the nastiest things the other side might throw at us, true or not. If you have hidden sources of income, a stake in Anna Nicole Smith’s love nest in the Bahamas, or a rare coin collection, we need to know and plan accordingly.
Provide us with your tax, banking, investment, insurance, titles to cars and whatnot, and any other requested information quickly in the process (if you can bring this stuff to your first meeting, we might very well cry with joy). If you’re not in a place where you can get the information, sign a release that allows the attorney to request the information on your behalf.
Keep in contact with us. We’ll provide you with frequent updates, but there are times when we need to get in contact with you quickly, too.
Similarly, let us know the best way to contact you. If you’re one of those people who hates checking her voicemail but lives on her computer (wait, that would be me when I’m at home), let us know your email address and if that’s a better way to stay in touch.
Understand that a contested divorce may take a while, even if it ultimately settles. We want closure for you as soon as we can get it, too, but not at the expense of a good settlement for you.
If your case involves child custody, parenting time, or support, sign up and follow through with the mandatory education classes as soon as you can.
Remember that your attorney is there to give you expert advice and recommendations, but isn’t going to be able to make the final decision about whether or not you should take a settlement. He can and will tell you if it’s a good idea or a bad idea, and what the benefits and pitfalls of an offer might entail, but the ultimate decision is going to be yours.
Also, if you don’t like the way negotiations may be headed, if you change your mind about the way the case is going, or if you’re just generally unhappy about something, please say so. We’d much rather know about it (and fix it) than to find out much, much later that you’d been unhappy for a very long time.
Advice aside, we know that this may be the, or one of the most difficult times of your life. We treat all of our clients as we would hope to be treated under the same circumstances: with diligence to their case, courtesy, the utmost respect, and the highest level of customer service possible.

Won't get fooled again: negotiating with liars

Posted by Diane Levin on Online Guide to Mediation.


When it comes to negotiating, be trustworthy, not trusting--advice that many negotiation trainers give their students. Since lying may be endemic to the human condition, this is undoubtedly good advice.

But what can a negotiator do to counter deception at the bargaining table?

In "The fine art of negotiating (with liars)", an article in today's Boston Globe proffers some advice from the experts, including:


Ask negotiating partners upfront to disclose their credentials, credit record, or personal history as a way of establishing trust.

Set ground rules, requesting that bargaining be "good faith" rather than "arm's length." In the former, the parties agree to reveal everything they know to help reach a better deal for both sides. In the latter, they disclose only what's required and can mislead through omission.

Frame questions more narrowly or broadly, or make statements that will invite telling responses, if you feel your negotiating partner is providing vague, general, or yes-and-no answers.
I agree that asking questions is important. In Bargaining for Advantage, scholar and negotiation expert G. Richard Shell points to the results of a study that demonstrates something fascinating about the behavior of skilled negotiators: they ask twice the number of questions that average negotiators do. In fact, Shell reports that "skilled negotiators spend 38.5 percent of their time acquiring and clarifying information--as compared with just under 18 percent for these activities by average negotiators." Shell's advice is simple: "probe first, disclose later".

Another expert interviewed for the Globe article had other recommendations: Begin on the presumption that the person on the other side of the table is honest unless the evidence suggests otherwise. Then, "take precautions -- that includes jotting down notes during talks, putting the other person's claims in writing, and incorporating contingency clauses into agreements."

My own advice? Do like the Boy Scouts: Be prepared. Identify your goals for the negotiation, not just your bottom line, research your walk-away alternatives in advance to create leverage, and collect data that will support the dollar figures or outcomes you're seeking. And don't forget to follow Shell's advice--ask questions and listen.

By the way, don't be tempted to resort to bluffing yourself in an effort to come out ahead. It could end up costing you. According to Shell, "Bluffing distorts the information flow in negotiation in ways that can be costly. In one study, for example, 20 percent of the subjects, including some experienced professionals, ended up agreeing to options that neither side wanted due to bluffs that backfired."

Looks like in negotiating honesty may be the best policy after all--or at least the most profitable one.

Wednesday, 10 October 2007

Mandatory reporting guide

Laws vary from state to state requiring mandatory reporting of child abuse. The Australian Institute of Family Studies has published a helpful factsheet setting out the requirements from state to state.

Here is the shortened version:

Mandatory reporting requirements
Jurisdiction

ACT

Who is mandated to notify
Doctors, dentists, nurses, teachers, police, school counsellors, child-care providers, public servants providing services relating to the health or well being of children, young people or families, the community advocate, or the official visitor

What is to be notified
A reasonable suspicion that a child or young person has suffered or is suffering sexual abuse or non-accidental physical injury

NSW

Who is mandated to notify
Persons who deliver health care,welfare, education, children's services, residential services or law enforcement to children

What is to be notified
Current concerns that a child aged under 16 is at risk of harm


NT

Who is mandated to notify

Police; all other people with reasonable grounds

What is to be notified

Reasonable grounds to believe that a child has suffered or is suffering maltreatment


QLD

Who is mandated to notify

Doctors; nurses.
Officers employed to implement the Act 1999; all staff of residential care services.
Educational staff (teaching and non-teaching staff in government and non-government schools).

What is to be notified

Aware of or reasonably suspects a child has, is, or is likely to suffer harm.
Reasonable suspicion of abuse or neglect to a child in residential care.
Aware of or reasonably suspects sexual abuse of a child under 18 by an employee of the school.

SA

Who is mandated to notify

Doctors, pharmacists, nurses, dentists, psychologists, police, community corrections officers, social workers, teachers, family day care providers, employees/volunteers in a government department, agency or instrumentality, or a local government or non-government agency that provides health, welfare, education, child care or residential services wholly or partly for children. Current reforms include religious personnel (with the exception of disclosures made in the confessional).

What is to be notified

Reasonable grounds that a child has been or is being abused or neglected


TAS

Who is mandated to notify

Professionals working with children and employees or volunteers working in government or government-funded organisations
Any adult Suspicion of knowledge of abuse or neglect

What is to be notified

Reasonable grounds to believe or suspect that a child is suffering, has suffered or is likely to suffer abuse or neglect. Current reforms include exposure to domestic violence


VIC

Who is mandated to notify

Police, doctors, nurses and teachers

What is to be notified

Reasonable grounds that physical or sexual abuse is occurring


WA

Who is mandated to notify
Upcoming reform Court personnel, counsellors and mediators
Licensed providers of child care or outside school hours care services.
Legislation will be introduced requiring the key professions of doctors, nurses, teachers and police officers to report Allegations or suspicions of child abuse in Family Court cases.

What is to be notified

Allegations or suspicions of child abuse in a child care service.
When they have evidence that child sexual abuse has occurred or is occurring

Named in the top family law blogs!

Now for a bit of shameless self-promotion.

We have been named in the top international family law blogs by prenuptial agreements.org .

We join a distinguished group of mainly US and two British blogs (and we are the only one from Australia).

Thank you prenuptial agreements.org - a complete and pleasant surprise.

Friday, 5 October 2007

Victoria makes economic abuse a crime

Victoria is now legislating to make economic and psychological abuse a crime. According to one commentator, Judith Peirce in the Age, Victoria is now serious about tackling domestic violence.

For her comment, click here.

Tuesday, 25 September 2007

How to cut a deal: Qld

Currently there is one system of law covered property settlement for married couples who want a property settlement- under the Family Law Act, which is Commonwealth law and applies throughout Australia.

For de facto couples, different rules apply in each of Australia's eight States and Territories. Tonight I'll focus on Queensland.

Why formalise a deal?

There are some obvious reasons:
-certainty- the knowledge that the financial issues between you and your ex are at an end and you can move on with your life. There is nothing quite like acting for a client who has come to see you because they had an informal property settlement, thinking that it was all over, and their ex has applied to court asking for more.

- being able to borrow- Often banks will require a client when refinancing to formalise the deal- for obvious reasons- the bank also wants to ensure that its investment is secure and not put at risk.

- tax and stamp duty considerations- There can be exemptions or rollover releif for capital gains tax or stamp duty with formalising a deal which are not available with informal deals.


What's needed in Qld?

In Queensland, there are two methods, both of which are under Part 19 of the Property Law Act 1974. The first way is to have an order made. This can be consent, without the need to actually go to court. made by the Supreme, District or Magistrates Courts. The District and Magistrates Courts can exercise jurisdiction by consent, but usually their upper monetary jurisdiction is $250,000 and $40,000 respectively.

Given the price of houses, most property settlement orders will be made in the Supreme Court. The Supreme Court in Brisbane has a 24 hour turnaround for most consent orders.

The more common method is to enter into a separation agreement. Here are the technical requirements:
-A separation agreement is an agreement--

-made by de facto partners--
in contemplation of ending their de facto relationship; or
after their de facto relationship has ended; and
dealing with all or some of the de facto partners' financial matters.

It does not matter whether there are other parties to a separation agreement or a separation agreement deals with other matters.

At first blush, it seems that

any type of agreement can be a separation agreement. Whilst this is no doubt true, the important trick is to ensure that the separation agreement is a recognised agreement. This is because the Property Law Act prevents the court from making property settlement orders inconsistent with a recognised agreement.

What's required for a recognised agreement

The Property Law Act sets it out:

A recognised agreement of de facto partners is a cohabitation or separation agreement of the de facto partners that--

(a) is a written agreement; and
(b) is signed by the de facto partners and witnessed by a justice of the peace (qualified) or solicitor; and
(c) contains a statement of all significant property, financial resources and liabilities of each de facto partner when the de facto partner signs the agreement.
(2) Whether all significant property, financial resources and liabilities of a de facto partner are stated depends on whether the value of a property, financial resource or liability of the de facto partner that is not stated is significant given the total value of the de facto partner's stated property, financial resources and liabilities.

If you meet these technical requirements, then you comply.

Of course, anyone contemplating entering into a separation agreement (or consent order for that matter) should obtain independent legal advice from a solicitor of their choice, preferably a law society accredited family law specialist.

The last part of the requirement for a separation agreement states what should be obvious- each party should come to the negotiating table with clean hands, with nothing to hide. As I read in one recent court case, it is a case of
show and tell,
not
hide and seek.


Failure to make full and frank disclosure may lead to a finding that there has not been a valid separation agreement, meaning that the whole issue of property settlement is re-opened.

Tuesday, 18 September 2007

Law Council calls for Civil Unions

The Law Council of Australia, Australia's peak lawyers' body, has published its list of issues to be raised with the political parties ahead of the Federal election.

The most relevant family law issues are:
- a call to increase funding to legal aid;
- a call for there to be gay marriage or civil unions; and
- a call for the establishment of a Comonwealth Judicial Commission in a smilar way to that of NSW, so that proper complaint can be made about the behaviour of Commonwealth judges.

Now for the detail....

Legal Aid Initiatives
It is well documented that legal aid funding is
insufficient to meet the needs of disadvantaged
persons in the community, particularly Indigenous
Australians and people living in rural and remote
areas.
There has been a decrease in overall legal
aid funding in real terms since 1996 and the
estimated additional one-off amount required
to restore funding even to 1996 levels is
approximately $100M. This increased legal aid
budget should then be used as the basis for future
legal aid funding.
Since 1996 a number of studies have identified
significant consequences of the decrease in
funding including a large increase in selfrepresented
litigants causing considerable delays
in and associated costs to the court system.
In addition to the decreases in overall real
funding since 1996, the introduction of new
Commonwealth legal aid policies and guidelines
in 1997 meant that legal aid funding for civil
matters was virtually abolished. Civil matters are
disputes (not involving family law, child welfare
or de facto property matters) between persons
and other individuals or government. The 1997
policies and guidelines effectively restricted legal
aid to criminal and family law matters. The Law
Council estimates that an additional one-off
allocation of $40M is needed for a civil legal aid
scheme. The resulting increased legal aid budget
should then be used as the basis for future legal
aid funding.

With expansion of Commonwealth legislation
and significant sustained budget surpluses it is
critical to re-establish a civil legal aid system to
meet the demand for legal services, particularly
in areas such as employment law, consumer
protection, immigration and social security.
In light of the recognised difficulties facing
Indigenous Australians, particularly in rural
and remote areas the Law Council believes
that tax and other incentives are necessary to
encourage young lawyers to practise in rural and
remote areas. The Law Council also believes
that increased funding is needed for dedicated
Indigenous Legal Services.

The Law Council asks
Will you support immediately providing a
minimum one-off payment of $40M to reestablish
a civil legal aid scheme and continuing
funding for such a scheme?
Will you support immediately increasing funding
for legal aid overall by a minimum one-off
payment of $100M (in addition to the $40M civil
legal aid scheme) and continuing funding at this
increased level?
Will you support increasing funding for dedicated
Indigenous Legal Services?
Will you support providing tax and other
incentives to young lawyers to practise in rural
and remote areas?

Civil Unions
The Law Council is concerned that current
Australian law defining marriage as the union of a
man and a woman is inconsistent with Australia’s
international obligations under the International
Covenant on Civil and Political Rights and with
the recognition of same sex marriages or civil
unions in many overseas jurisdictions.
The Law Council believes that marriage is a civil
right which should be made available to all people
regardless of sex. The Law Council also believes
that discrimination against same sex couples
cannot be adequately addressed without changing
the law in relation to marriage.

The Law Council asks
Will you support legislative recognition of same
sex marriages or civil unions?

Australian Judicial
Commission
There is currently no federal mechanism to deal
with complaints of negligence, physical or mental
fitness, incompetence or misbehaviour against
Federal judges or magistrates.
The Law Council proposes the establishment of
an Australian Judicial Commission to manage
complaints made against federal judges and
magistrates and provide them with education and
training in collaboration with such bodies as the
National Judicial College of Australia.

The Law Council asks
Will you support legislation for the establishment
of an Australian Judicial Commission and provide
resources for such a body to manage complaints
against and help provide training for Federal
judges and magistrates?

FURTHER SUPPORT FOR PEOPLE AFFECTED BY CHILD ABDUCTION

The Australian Government will provide further support to persons affected by international parental child abduction by granting $145,000 to the International Social Service (ISS) Australia, Attorney‑General Philip Ruddock announced .
The grant was awarded under the Grants to Australian Organisations Program, which supports organisations to develop projects or activities that boost the public’s access to the federal civil justice system.
ISS Australia will use the grant to expand its established support service for persons affected by international child abduction. ISS Australia is the local arm of an international non-government organisation which provides services to families spread across two or more countries.
Mr Ruddock said the grant to ISS Australia demonstrates the Australian Government’s commitment to assisting parents whose children had been wrongfully removed to, or retained in, overseas jurisdictions.
“The abduction of children across international borders is an extremely traumatic experience for all those affected by it,” Mr Ruddock said.
“The Australian Government recognises the need for parents to be able to access services that provide much needed emotional support at this harrowing time.”

Source: Ministerial Media Release

Transgender unsuccessful in getting birth certificate changed

In AB v Registrar of Births, Deaths and Marriages, the applicant who was born male, but had had gender reassignment surgery to female, sought to have the birth certificate details changed from "male" to female".

She had already successfully applied to have her changed name recognised on the birth certificate.

The Registrar refused to allow the change of gender on the certificate, because the Victorian Act required the applicant to be married. The applicant was married but separated.

The applicant applied to the Federal Court on the basis that the Victorian legislation was discriminatory on the basis of her marital status within the meaning of the Commonwealth Sex Discrimination Act. She was unsuccessful.

Justice Heery held that the provision of the Sex Discrimination Act was legislation:

and not some other form of governmental activity (such as, for example, public education or governmental employment practices) is part of Australia’s discharge of its obligation to legislate as required by the Convention. It is therefore to be construed as prohibiting discrimination against women – treating them less favourably than men – because they are married. The action of the Registrar in the present case had nothing to do with the applicant’s being a woman. Had the applicant been a man, the result of the application would have been the same.


Comment

Given that it takes only one year to pass to be eligible to be divorced, all the applicant had to do to avoid the effects of the legislation was to wait for the year to expire, divorce and then apply- and it should have gone through smoothly.

In Queensland, former Attorney-General Rod Welford ruled that in a case in which I acted, the act of marriage applied to those marrying in Australia only. As my client married outside Australia, she could still obtain the change of gender on the certificate.

CLEARER GUIDANCE FOR COURTS ON RELOCATION CASES

The Commonwealth Government has committed to insert provisions within the Family Law Act to provide courts with greater clarity on how to deal with relocation issues arising out of custody arrangements.
This commitment is made in the Government’s response to the Family Law Council's Report to the Attorney-General on Relocation. The response was tabled in Parliament.

Attorney-General Philip Ruddock said currently there is no specific guidance in the Act for relocation orders or arrangements. The new legislative provisions will make it easier for litigants to understand the child-focused principles that apply to relocation cases.
Specifically the provisions will ensure that courts consider: alternatives to the proposed relocation; whether it is reasonable and practicable for a person opposing a relocation to move closer to the child if the relocation were permitted; and whether the person who is opposing the relocation could assume primary caring responsibility should the person relocating choose to do so without taking the child.
Courts will then be obliged to reframe parenting orders in the light of the child’s best interests, considering factors such as whether relocation would interfere with the child’s ability to form a relationship with both parents.
Mr Ruddock said the Australian Government is paying close attention to court outcomes to see whether, with or without these amendments, courts are putting children’s interests at the centre of their decision making on relocation cases.
“The Shared Parental Responsibility Act 2006 was meant to ensure better outcomes for children and both parents,” Mr Ruddock said.
“Today’s commitment is a step to clarify that aim. However as I have always said if there is concern the legislation does not achieve the aims it intended we may need to consider further legislation.”
"It is critical the family law system provides a clear, consistent approach to resolving family law relocation disputes, and acknowledges that the best interests of children are the central issue."
The Family Law Council report is in response to the House of Representatives Standing Committee on Legal and Constitutional Affairs report on the Exposure Draft of the Family Law Amendment (Shared Parental Responsibility) Bill in 2005. The Family Law Council is a statutory body which advises the Attorney-General on a range of family law issues.

Source: Ministerial Media Release

Ten commandments in dealing with an independent children's lawyer

I recently came across an interesting article by M Debra Gold, a Georgia (US) family law attorney and guardian ad litem (similar to an independent children's lawyer) as to the ten commandments for parents in dealing with guardians ad litem. With Debra's kind permission, I have altered it slightly to refer to Australian jargon and practice:

1. Thou shalt honor thy children.

It is probably the most unfortunate consequence of parenting disputes that at some
point many children find themselves caught up in the middle of their parents’
battles. Be conscious of what you say to or about the other parent while in the presence of, or anywhere near, the children. Know that children can be very adept at
picking up on innuendos and body language. Don’t put your children in the position
of feeling that they must protect or defend the other parent. By the same
token, don’t put your children in the position that they feel they need to take care of you or your feelings. Your children have the right to love and be loved by both of
you. Do not interfere with that right.

2. Thou shalt be truthful with thy independent children's lawyer.

Tell the independent children's lawyer everything relevant to your parenting case, good or bad. It’s better that the bad things about you come from you rather than the opposing party because the latter will not hesitate to talk about those bad things and you never know what kind of spin they will put on them. Listen to the independent children’s lawyer's questions and answer them as clearly and concisely as possible. Give specific examples of your complaints rather than broad generalisations. Do not play word games with the independent children's lawyer as he or she is not stupid. It is always amazing how some people think that their lies and
deception cannot be found. What’s even more amazing and actually a little scary is
when they actually believe their lies. If there is a fact, it can be discovered.
Trying to cover up the truth accomplishes nothing other than to do
irreparable damage to your credibility. And don’t even begin to think that exaggerating or stretching the truth does not fall under this commandment.


3. Thou shalt NEVER instruct thy children as to what they should or
should not say to the family report writer.


Children’s acting skills are not quite as honed as their parents’ and they are generally much more transparent when they say or do things that do not come naturally to them.

4. Thou shalt be thyself and not pretend to be someone else.


Your own acting skills are probably not as honed as you think they are. The independent children's lawyer will be involved in your case for a long time. He or she and any family report writer will get to know the real you. It will be almost impossible to keep up a façade for such a long time. Further, both will be talking to other people who can give him or her a truer picture of who you are. Don’t think the independent children's lawyer or family report writer is so easily fooled.


5. Thou shalt honor thy judge, thy independent children's lawyer, thy family report writer, thy lawyer, thy opposing lawyer and all other people associated
with thy case.


If you show disrespect or other untoward behavior toward the people who to some
degree hold your fate in their hands, then it is indicative of how you comport yourself in everyday life.

6. Thou shalt respond timely and provide complete information and documents to thy independent children's lawyer.


As one judge said, it is a case of "show and tell" not "hide and seek". Don’t pick and choose what you want to give the independent children's lawyer. Give him or her anything that is relevant to the dispute. If you send some e-mails but not others,
the independent children's lawyer is going to wonder what occurred during
the gap. If you provide documents with missing pages, the independent children's lawyer will notice. Delaying or refusing to sign authorities so that the GAL can obtain information from your medical or mental health providers will only keep the independent children's lawyer guessing as to what it is you are hiding (and increase the chances of subpoenas issuing). Showing up late, or not at all, to random drug
or alcohol testing leads to the obvious inference. Don’t do anything that would tend to cast a shadow of doubt on your credibility. Without your credibility, you have
nothing.

7. Thou shalt remember that thy children’s best interests are always paramount.


It sounds a little trite, but even the best parents place their own interests before those of their children. Unfortunately many parents involved in parenting disputes
are so filled with anger, hurt, bitterness and frustration that they lose sight of the forest for the trees and, whether intentionally or not, they place their
needs and interests over their children‘s. Be conscious of this pitfall when embroiled in custody disputes and don’t allow it to happen to you.



8. Thou shalt comply with all court orders.

Need anything further be said here? Spending time in jail on contempt is not conducive to building a strong relationship with your children or to building
a strong custody case for your children to live with you.


9. Thou shalt not seek legal advice from thy
independent children's lawyer.


The independent children's lawyer is not in a position to give legal advice. It
would be a conflict of interest for the independent children's lawyer to provide
any legal advice to either of the parties (and no doubt would play havoc with their professional indemnity insurance). Furthermore, the independent children's lawyer is not your therapist or counsellor. If you have questions or need any advice, call your lawyer or your counsellor.


10. Thou shalt never forget that thy independent children's lawyer is
watching.


Your actions are not slipping under the independent children’s lawyer's radar.
If there is something to be found out, the independent children’s lawyer will
find it.

The independent children’s lawyer cannot get to the truth of the matter in a
vacuum. His or her recommendations will be based upon what he or she learns through the investigation. Cooperation and truthfulness are key. Behaviours speak
volumes. By following these 10 commandments one has a much greater chance of obtaining favorable recommendations from the independent children’s lawyer.

Divorce rate lowers: ABS

The Australian Bureau of Statistics, in reviewing the 2006 divorce statistics notes that the rate has decreased across Australia, except South Australia and Western Australia, where it has risen.

The rate has continued to slowly decrease since 2001.

Wives continue to apply for divorce more than men, but the rate of joint applications continues to increase.

Click here for the full statistics from the ABS website.

Thursday, 6 September 2007

Spence commends police initiative to combat domestic violence

SPENCE COMMENDS POLICE INITIATIVE TO COMBAT DOMESTIC VIOLENCE

Police in the indigenous community of Normanton are achieving great success in combating domestic violence, Police Minister Judy Spence said today.

Ms Spence said a community based campaign developed by local officers, titled 'Domestic Violence - it's not our game!' has significantly reduced the incidence of domestic violence in the North-West Queensland town.

"It is a sad fact, that domestic violence is especially prominent in some indigenous communities in the state's north," Ms Spence said.

"In Normanton, where 60% of the population is indigenous, there were over 300 reported incidents of domestic violence in 2006 and one in three adults in the town were also involved in protection orders, either as the respondent, the aggrieved or the named person.

"Police in the town are to be congratulated for taking it upon themselves to find a new way to address this tragic trend.

"The 'Domestic Violence - it's not our game!' campaign has allowed the local community to take ownership of the issue, and send a message that domestic violence is unacceptable."

Ms Spence said, under the guidance of the local Officer in Charge Sergeant Dave Rutherford, police are now working with the local rugby league team, the Normanton Stingers, to promote the non-violence message.

"The campaign commenced in March this year, with members of the Normanton Stingers and their supporters wearing jerseys and wristbands carrying the campaign logo, and with banners displayed at all football games," Ms Spence said.

"Furthermore, team members have agreed to make a personal commitment to desist from domestic violence - and have decided that if an individual commits domestic violence they will be subject to playing bans and ultimately excluded from the team.

"Team players are also appearing in television advertisements on the Imparja network promoting the non-violence message, and the message is finally getting through.

"Between March and July this year there has been a 64% reduction in breaches of existing protection orders, compared with the same period last year.

"This is an excellent result and I commend police and the local community for their dedication to making a different."

Ms Spence said it is expected other sporting teams in North-West Queensland will also adopt this program, and there is the potential for this project to become an influential anti-violence campaign within Indigenous communities across Australia.

Source: Ministerial Media Release

Queenslanders recognised for protecting children

Queenslanders recognised for protecting children

Seven Queenslanders received awards for their contributions to child safety in a Child Protection Week ceremony today.

Child Safety Minister Desley Boyle congratulated the award winners at the 19th annual Child Protection Week Awards at Parliament House in Brisbane.

"There are about 7300 children in care in Queensland and the number is growing," Ms Boyle said.

"I speak on behalf of all Queenslanders when I say a heartfelt thankyou to these dedicated men and women and the organisations that they represent. They have worked tirelessly all year round to make sure that our most vulnerable children and young people have the protection and safety that they deserve."

The winners came from a variety of backgrounds, but all share a common commitment to ensuring the safety and wellbeing of Queensland children.

The awards were organised by the Child Protection Committee, comprising representatives from community agencies, to recognise the outstanding achievements of nominees and winners in the field of child protection.

"The award winners deserve public recognition for their efforts, and I am encouraged that we had so many outstanding nominations this year," Ms Boyle said.

"The people who work in child protection are community heroes. They make a real difference to Queensland children. In fact, they save children's lives."

The award recipients were:

Professional- Mandy Jones, Regional Manager, Anglicare Central Queensland, Rockhampton. A foster care worker since 1997 and a foster carer for over 20 years, Mandy Jones is a member of the Board of Directors for PeakCare Queensland who brings extensive experience to her roles.

Volunteer - John Burton, Coordinator, Edmund Rice Camps, Indooroopilly. For the past 15 years, this organisation has run one-week camps during the school holidays for children with significant emotional, social, behavioural or physical limitations. A number of workers volunteer a week of their annual leave to help run the camps, with Year 12 and university students also volunteering as "buddies".

Public Sector - Detective Sergeant Murray Ferguson, Doomadgee CIB / Child Protection and Investigation Unit. He has been working in Doomadgee and covering Mornington Island and Burketown for the past year and has worked closely with Child Safety staff and traditional Elders to raise awareness of child protection issues.

Regional Program - Ray Krueger, Principal, Glendyne Education and Training Centre at Nikenbah, near Maryborough. This centre, established in 1998, provides integrated treatment and rehabilitation for students who do not cope in mainstream schools. The program includes mentoring and teaching basic life skills in small groups.

Youth Participation - Peta McCorry, CREATE's 'Be Heard' Project, Highgate Hill. This project seeks the views of young people in the child protection system about the quality of care they are receiving.

Education Initiative - Joint winners - Queensland Police Service "Surf Safely" education campaign and Family Planning Queensland Everyone's got a bottom children's storybook.

The "Surf Safely" program teaches tips to keep children safe from predators on the Internet. It has been presented to more than 7900 students and more than 35,000 hint cards have been distributed.

Everyone's got a bottom reflects current research and aims to help parents and carers talk to children aged 3-8 about their bodies in a way that encourages self-protection.

Child Protection Week runs until Saturday September 8.

Source: Ministerial Media Release

Australian-first course strengthens response to domestic violence

Australian-first course strengthens response to domestic violence


Queenslanders experiencing domestic and family violence will benefit from a new training course - the first of its kind in Australia - designed to develop a more highly skilled and responsive support system.

The course, written for workers in government and non-government agencies who are likely to be the first point of contact for people experiencing domestic and family violence, was officially launched in Brisbane today.

Communities Minister Warren Pitt said the accredited Course in Responding to Domestic and Family Violence was the first full course of its kind to be offered in Australia.

"Queensland is once again leading the way when it comes to addressing domestic and family violence," Mr Pitt said.

"The course is designed to equip frontline workers with the best possible knowledge and information to help Queenslanders affected by domestic and family violence."

Mr Pitt said the Mackay-based Queensland Centre for Domestic and Family Violence Research produced the course thanks to significant ongoing funding and support from the Department of Communities.

Stirling Hinchliffe, Parliamentary Secretary to Communities Minister Warren Pitt, represented the Minister at today's launch at Parliament House.

"While there are some accredited units of competency on domestic and family violence in other courses, this particular course is the only accredited full course on domestic and family violence in Australia," Mr Hinchliffe said.

"So not only will it benefit the social services sector with increased staff retention, lower stress levels and better-trained staff, to will also help break the cycle of domestic and family violence."

For more information about the course, contact the Queensland Centre for Domestic and Family Violence Research on 4940 7834.

Source: Ministerial Media Release

Police arrive- 3 hours late

Queensland Police Commissioner Bob Atkinson has launched an internal investigation about how Gold Coast police failed to respond to an emergency call, but did respond to a second call from the home 3 hours later - after a woman died, allegedly murdered by her son.

Saturday, 25 August 2007

Qld: Staff awards recognise excellence in child protection

Staff awards recognise excellence in child protection

Child protection workers were acknowledged today at the Department of Child Safety's third annual Recognition of Excellence Awards at Parliament House.

Child Safety Minister Desley Boyle presented awards to more than 80 staff from right around Queensland for projects that covered the whole spectrum of child protection work.

"The work our staff do is not easy. They work with children who have been abused and neglected and with parents who don't - or won't - keep their children safe. They save children's lives," Ms Boyle said.

"These awards give staff some formal recognition for the very important job they do."

Ms Boyle said Child Safety staff and staff from government and community partners were asked to nominate people they thought had done exceptional work and deserved to be recognised.

There were a record 54 nominations across eight categories. There are around 80 award recipients because almost all of the winners are teams of people who have worked on new or special projects," Ms Boyle said.

"For example, we have about 50 record keeping officers - one in every Child Safety Service Centre across the State - who together are doing a tremendous job.

"They free up Child Safety Officers to work with children and make sure files on children are complete and easy to find.

"Good records can also give adults who grew up in care an idea of what they were like as a child."

Ms Boyle said most of the award winners were Child Safety staff, but some of the winning teams included people from other government agencies or community partners.

"These partnerships are really important because it is usually not one single thing that brings a child to the attention of the Child Safety department," she said.

Each category winner or team was presented with a framed certificate and a $2000 voucher for training and development.

There are an estimated 7300 children in care in Queensland and the Department of Child Safety expects to record 73,500 concerns about a child's safety or wellbeing this financial year. Of those, 33,600 are expected to be cases of suspected child abuse and neglect.

The award winners were:

• Excellence in Client / Customer Service - Record Sustainability Project by Child Safety Service Centre Record Officers.

Records Officers were appointed to all child safety service centres in January 2006 and create and manage about 5000 electronic files a month.

• Excellence in Child Protection Practice - Sunshine Coast Evolve Interagency Services led by Senior Practitioner Colin Smith

The Evolve team brings together Child Safety, Queensland Health, Disability Services and Education Queensland to work out how to best help children-in-care with significant behavioural and psychological issues or significant disability behaviour support needs. The Sunshine Coast team is working exceptionally well to support local children.

• Building Queensland's Regions - Far North Queensland Children at Risk Network

This network brings together government departments (Child Safety, Education Queensland, Queensland Police, Department of Communities, Disability Services Queensland, Queensland Health, Department of Housing and the Office of Aboriginal and Torres Strait Islander Partnerships) to provide support to children at risk of entering the child protection system and their families.

• Engaging and Serving Communities - True Costs of Caring project

This project reviewed the costs of caring for a foster child and resulted in the increase of the fortnightly allowance for foster carers earlier this year.

• Focussing on Our People - Manager of Asset Management Lloyd Campbell

The project is rolling out a $30million program to build 17 new offices and 30 office relocations, expansions or refurbishments across Queensland.

• Innovation and Creativity - Integrated Client Management System

The ICMS IT system is the only known computer system designed from the point of view of the child protection worker. It involved transferring more than 1.7million documents to the new system and training staff in how to use it.

• Leadership Excellence - North Queensland Zonal Leadership Team for its Five Big Ticket Items project

This team set up special committees to develop and implement strategies to face five key child protection challenges in North Queensland - rural and remote service delivery; Indigenous children; partnerships with community organisations; recruitment and communication systems.

• Partnerships and Reconciliation - Ipswich and Western Zone Community and Support Team

Staff worked with Indigenous organisations (Mereki in Toowoomba, Children of the Dreaming in Ipswich and WICA in St George) to build their capacity to provide cultural advice on Indigenous children in care.

Source: Ministerial Media Release

News from America: renowned psychologist commits suicide, possibly re-opening recommendations

The Seattle Times reports that renowned US psychologist Stuart Greenberg has committed suicide, leading to the possible re-opening of his many custody evaluations.

He did so after it was alleged that an acquaintance had stumbled on a videotape of a wman being secretly filmed in Greenberg's office toilet, leading to Greenberg's arrest.

Greenberg was no ordinary psychologist. As well as undertaking many custody evaluations over the years and assisting the Seattle Archdiocese in dealing with sexual abuse cases,

"Greenberg had developed a national reputation, as well. His curriculum vitae, listing all his professional accomplishments, runs 19 pages.


"Among other things, he served as president of the American Board of Forensic Psychology in 2002-2003 and taught dozens of continuing-education courses across the country for fellow psychologists.

"He also trained a crop of would-be psychologists as a clinical assistant professor at the University of Washington, and before that at the University of Southern California and the University of Iowa."

Difference between anger management and perpetrators of violence

It is sometimes mistakenly assumed that those who commit domestic violence towards their partners do so because they are angry. The reality is that most of the time those who commit acts of domestic violence do so to control their partners- and it usually when their partners do not accept that they ought to be controlled that the violence is perpetrated.

There is often a common mistake that whilst violence might be perpetrated in anger, that anger is the cause. The mistake is overlooking or forgetting that the key to domestic violence is the issue of control.

This mistake is then continued when it is suggested that a perpetrator of domestic violence has an "anger" problem, without recognising that it is not an anger problem per se, but more a problem with controlling and dominating others and, sad to say, often by men who view women as less than equal. To then require these men to undertake an anger management course without dealing with the fundamental of their perpetrating violence means that the underlying issue of control is not dealt with but worse- it then enables them to say that it was only an anger problem, not that of violence and control, therefore not holding them to account, and enabling them to say "I'm cured".

For an academic paper on this issue,


click here.

Saturday, 18 August 2007

Report on Brisbane transfers from Family Court to Federal Magistrates Court

Federal Magistrate Michael Baumann has recently written to the legal profession about a Family Court callover which was used to identify many outstanding matters in Brisbane, many of which were transferred to the Federal Magistrtates Court:

Dear Geoff (Family Law Section); Julie (QLS) and Nicky (FLPA),



With the approval of the CFM I provide each of you with a brief report on the effect of the Joint callover from this Court's perspective. You may circulate this to members of your organisations as, and if, you wish to do so.



"During the week of 19 February 2007, a joint callover was conducted in Brisbane of matters identified by the FCofA, as part of their pending trial list. Over 300 matters were identified as appropriate for the callover and at the completion of the callover, 170 matters had been transferred to the FMCofA for further determination.



Upon review by this Court, not all matters transferred were ready for or needed a final hearing immediately, however of the 170 matters transferred, 106 matters (62%) were finalised by 30 June 2007 - or within 4 months of transfer. It is anticipated that the remaining 64 matters transferred via the callover will be finalised by 31 December 2007 - with 50% completed by 31 August 2007 or within 6 months of transfer.



The 170 matters transferred via the joint callover were additional to a further 735 matters transferred to the FMCofA by the FCofA in the Brisbane registry for the 12 months ended 30 June 2007"



regards,
Michael Baumann FM”

Launch of ParentSupport Service in Fremantle: Minister

The protection of children in the Fremantle area has been boosted with the launch of the South Metropolitan ParentSupport Service.

WA Child Protection Minister Sue Ellery launched the service which promotes effective parenting as a key factor in preventing crime and harm to children.

ParentSupport is the service delivery arm of the State Government’s Responsible Parenting Initiative, which was introduced three years ago to address growing community concerns about anti-social and criminal behaviour displayed by young children. Some of these behaviours include truancy, bullying, vandalism, violence, fire setting, theft and drug use.

Ms Ellery said there were many factors influencing a child’s development and their parents’ capacity to parent effectively.

“There is now clear evidence to show that poor and inconsistent parenting contributes to the development of child behaviour problems,” she said.

“Effective parenting includes nurturing, protecting, teaching and supporting children as they grow and learn how to behave and relate to others in the wider community.

“Children don’t come with a ‘how-to’ manual. ParentSupport is an evidenced based service designed to assist families gain these vital parenting skills.”

ParentSupport provides parents who are experiencing difficulty with the skills to manage their children’s behaviour and provides a safe and encouraging environment. Skilled caseworkers work collaboratively with parents and other specialist agencies to help parents.

The service has also developed an intervention model to meet the needs of ‘hard to reach’ parents with health or mental issues or those reluctant to engage with a support service.

ParentSupport Services have already helped more than 350 families in the east and south-east metropolitan region in the past two and a half years with 91 per cent reporting they are now parenting more effectively.

The State Government has committed $20.4million over four years to implement ParentSupport services State-wide.

Services in the south metropolitan police district started in July 2007 and will be phased into the north metropolitan region, including Stirling, Bayswater, Wanneroo and Joondalup, early next year. A remote service delivery model will begin in the Kimberley early next year.

Source: Ministerial Media Release

Women and children in Fremantle will benefit from a new agreement to combat family and domestic violence: Minister

WA Communities Minister Sue Ellery yesterday launched the Family and Domestic Violence Alliance, Fremantle (FADVA Fremantle) Inter-Agency Protocol, which supports a new way of working to help both victims and perpetrators of violence in the home.

“The alliance aims to better support victims and increase the accountability of perpetrators by bringing together the expertise, experience and resources from different agencies working in this complex area,” Ms Ellery said.

“The focus on interagency co-operation will ensure that safety and response standards are maintained and provided consistently across the area.

“The FADVA Fremantle model will strengthen the links between Government and non-government agencies so that they can work together to provide support, advocacy and legal assistance to people affected by domestic violence.”

FADVA Fremantle is one of the first models to be developed as part of the State Government’s commitment of more than $940,000 a year for co-ordinated responses to domestic violence.

Fremantle Mayor Peter Tagliaferri said the City of Fremantle was committed to providing and improving services to combat family and domestic violence.

“We have been the service provider for the Warrawee Women’s Refuge for more than 35 years and for the Fremantle Community Legal and Advocacy Centre since 1993,” Mr Tagliaferri said.

“In addition, we have given ongoing support to the creation of this Family and Domestic Violence Alliance since the inception of the Regional Domestic Violence Committees in 1997.

“We now look forward to providing ongoing support to cement a strong partnership between the agencies that form the alliance, with the ultimate aim of improving the safety of women and children who are at risk.”

Source: Ministerial Media Release

Using passports to make sure child support arrears are paid

It used to be the case that if you wanted to stop someone leaving the country who owed lots of money for their children, you had to go to court and obtain an injunction. This rare procedure was expensive.

More recently, powers have been given to the Child Support Agency to prevent defaulters from leaving Australia by cancelling their ability to leave until payment of the arrears has been made. Little has been heard of the impact in Australia, but recently the US State Department has been cancelling passports in that country when the arrears are only $2500.

This has had dramatic results- see article.

HELP! 37,000 BABIES AT RISK EACH YEAR

This report from the Brotherhood of St Laurence has found that an
estimated 37,000 babies each year are being born into the 21 most
disadvantaged communities in Australia. The report finds that the
higher the poverty rate per electorate, the higher the birth rate.
This means that more Australian children are being born in areas of
social disadvantage. The explanation for this phenomenon is not an
increase in birth rates in disadvantaged electorates, but rather a
reduction in birth rates in more affluent electorates.

Disclosure: "Show and tell" not "hide and seek"

In a recent case, Kennedy and McDermott, Federal Magistrate Lucev dealt with an interim application for the father to make formal discovery on a child support application.

In dealing with the obligation to make disclosure, his Honour said:

"Put succinctly, as it often is by Counsel, the obligation is to "show and tell" not "hide and seek."

New case- when going to court, remember to tell the truth

In the recent case of Ashman and Ashman, Federal Magistrate Baumann sets out a well thought out judgment in a property settlement when not all was as it seemed.

The judgment starts: "When the Applicant wife Gladys Ashman and the Respondent husband Frank Ashman commenced cohabitation in June 1992, the husband gave all the appearance of a financially comfortable businessman. The wife, a widow and prior resident of the United States of America, came to Australia to pursue her relationship with the husband, having met him in 1991 initially whilst travelling."

What the husband had done was to say in these proceedings that he had come into the marriage with a significant initial contribution of $264,000, but had forgotten about what he had told the Family Court during the previous property settlement with his former wife.

His Honour stated:

The value of the husband’s business interests at the time, as claimed now, are in stark contrast to what he swore the position to be in earlier Court proceedings conducted in the Family Court of Australia in 1993. Exhibit 3 comprises copies of an Application and Statement of Financial Circumstances containing information sworn to as accurate by the husband on 19 July 1993 and 5 August 1993 respectively. The contents were properly put to the husband in cross examination and his reaction showed significant surprise and uncertainty. Put shortly, what he deposed as the extent of assets at the time of his first property settlement is quite different from what he deposes to... now.


It would appear that what he actually owned in 1993 was a car worth $55,000 and a new business created out of the "embers" of the old, and presumably worth very little.

It pays to be honest!

Change of name: US case when mother had affair

One of the difficult issues that the Family Court and the Federal Magistrates Courts are asked to deal with are tussles about the names of children when the surnames of mums and dads are different.

There have been a series of cases which set out factors that are taken into account, such as the child's ongoing relationship to the father and what impact the change of name away from the father's surname will have on the child's self-identity.

A US court has recently dealt with the unusual situation of a mother, who remained married, but had a child by the man with whom she had an affair.

Family Law Prof Blog summarises the case:

The Supreme Court of South Dakota in a 3-2 ruling has held that a girl conceived when her mother had an affair must keep the last name of her mother's husband, overruling the trial court order that had changed the child's name to that of her biological father. The child's mother reconciled with her husband before the child was born and her husband's name was on the child's birth certificate. The majority found that the daughter, now 3, should have the same last name as everyone else in the home in which she lives.

The Supreme Court majority said it is in the child's best interest to keep the same last name as that of her mother, stepfather and half-sister. "It makes no sense to change her name after two years to her natural father's name," Justice Richard Sabers wrote for the court majority. "From the standpoint of her best interest, her name should remain the same as her family unit because she socializes with them, will go to school with them and live with them the majority of the time. Why should she be unnecessarily required to explain why her surname is different from her family unit in all these circumstances?" The majority opinion said the circuit judge placed too much importance on the possibility that the girl's mother and stepfather might get divorced. Tiede also disregarded testimony that indicated the relationship was improving among the mother, biological father and stepfather, the justices said.

The two dissenting justices would have given deference to the trial judge. The trial judge had concluded that not allowing the name change might lead to estrangement with the biological father, who had visitation rights with the child for the past two years. "With the high divorce rate and increased numbers of blended families, it is not unusual for a child to have a different surname than the child's mother or half-siblings," Justice Judith Meierhenry wrote. Justice Steve Zinter also dissented, saying he believes the court majority mistakenly focused on only one factor whereas most name change cases focus on a variety of factors.

Getting evidence

Often when people come tome and tell me about their domestic dramas, they then despair when they say: "No one will believe me. I don't have anyone who really knows what happened."

I then go through whether there are any witnesses or any documents or electronic records that might help.

It is amazing as to the kinds of records that might exist. Often it may be impossible to get these through by asking or through Freedom of Information, but they may be available by use of a subpoena. Of course a subpoena (which is like a form of order from the court) can only be issued when proceedings have started, and there may be restrictions on when or how often a subpoena can issue.

The types of records that can exist include:
-doctor's records
-records of child welfare authorities, such as the Department of Child Safety
-police records- such as criminal histories, details about crime reports and domestic violence histories
-bank accounts, and sometimes original cheques and withdrawal records from banks
-gambling records from casinos. There are few things more shocking as a practitioner to receive a copy of a subpoena from the other lawyer about your client's gambling history, when your client didn't bother to tell you about any gambling.
-HR files- these may be relevant as to workhours or if complaints have been made because the person was abusive at work.

Then there are the less thought of records:
- sometimes one party, but not the other, can ask for records, eg under Freedom of Information from Centrelink. Sometimes an opponent can be forced to make that application, such as when they say the parties lived together- at the same time that person was getting Centrelink payments as a single parent.
-electronic records that records where a person was at certain times. In one case I had many years ago, my client was a goner except that I had issued a subpoena after she told me that her ex worked weird and wonderful hours (at the same time that he said that he was caring for the children) and had an electronic key for work. The records produced put the lie to his suggestion that he was caring for the children at those times. They saved her bacon.

Because they can be such a powerful weapon, there are restrictions on the use of subpoenas, such as ensuring that whatever is asked for is relevant, that the subpoena is not oppressive and that it is not used for an improper purpose, eg to harass a witness.

Having said that, the use of this information can often mean the difference between success and failure.

Judge arrested for domestic violence: SA

The Australian has reported that South Australian District Court judge Sydney Tilmouth has been suspended from hearing criminal cases, as he was arrested and charged on Saturday night with aggravated assault “arising out of a report of a domestic disturbance”.



The Australian also says that the assault charge is “aggravated” if the alleged violence involved a child, a police officer or a weapon.



The case would be sent to a fellow District Court judge if the alleged assault involved serious injury to the victim, otherwise would be heard in a Magistrates Court.



From all reports, Judge Tilmouth has had to date a distinguished legal career, including being credited with setting up the Aboriginal Legal Rights Movement in Adelaide, the capital of South Australia, in the 1970’s.

Children's obesity rates in Australia: eMJA

The e Medical Journal of Australia has published the following letter:

Childhood overweight and obesity by Socio-Economic Indexes for Areas

Mu Li, Karen Byth and Creswell J Eastman
MJA 2007; 187 (3): 195

To the Editor: Childhood overweight and obesity have become a major public health concern in Australia. Between July 2003 and December 2004, we conducted the Australian National Iodine Nutrition Study (NINS) among schoolchildren.1 While visiting primary schools across Australia, we observed that many children were overweight or obese. The NINS data allowed us to estimate the prevalence of overweight and obesity among 8–10-year-old Australian schoolchildren, and to determine whether the prevalence was associated with socioeconomic background.
The study population comprised a one-stage random-cluster sample from all Year 4 school classes in 92 government and non-government schools.1

Children were aged 8–10 years (mean, 9.3 years). Height and weight were measured by standard techniques and were used to calculate body mass index. Overweight and obesity were identified using international standard definitions.2 Socioeconomic status was defined by the Index of Relative Socio-Economic Advantage/Disadvantage of the Census of Population and Housing’s Socio-Economic Indexes for Areas (postal areas).3 This index is a continuum of advantage to disadvantage. A higher score indicates that an area has a relatively higher proportion of people with higher incomes or a skilled workforce.

The prevalence of overweight and obesity in 8–10-year-old schoolchildren was 18.5% and 6.5%, respectively. There was no significant sex difference in prevalence and no significant evidence of an association between socioeconomic status and overweight or obesity (Box).

The prevalence of overweight and obesity combined and of obesity alone was similar to previously reported prevalence,4,5 although the age range of the participants was more limited than in other studies. We minimised measurement error bias by using the same equipment throughout, in the same setting. Furthermore, most measurements were taken by the same person. We could not demonstrate an association between socioeconomic status and the prevalence of overweight and obesity combined, or of obesity alone. This suggests that childhood overweight and obesity is common to all Australian communities, irrespective of socioeconomic background.

Preventing overweight and obesity in children may reduce the risk of adult overweight and obesity and related diseases. Regular monitoring and surveillance of the situation is needed. Australia is one of the first countries in the world to develop a national strategy for overweight and obesity.6 However, the strategy needs to be communicated to the wider community and turned into action to combat this public health problem.

Proportion (number) of boys and girls categorised as overweight or obese by index of advantage/disadvantage*

SEIFA percentile

Not overweight or obese

--------------------------------------------------------------------------------
Overweight

--------------------------------------------------------------------------------
Obese

--------------------------------------------------------------------------------

n
Overall
Boys
Girls
Overall
Boys
Girls
Overall
Boys
Girls


--------------------------------------------------------------------------------

Lowest 10
130
79% (102)
77% (56)
82% (46)
12% (16)
12% (9)
13% (7)
9% (11)
11% (8)
5% (3)

10–25
286
72% (207)
72% (103)
73% (103)
22% (64)
22% (31)
23% (33)
5% (15)
6% (9)
4% (6)

25–50
210
74% (156)
72% (72)
76% (84)
17% (35)
18% (18)
16% (17)
9% (19)
10% (10)
8% (9)

50–75
505
75% (379)
72% (183)
79% (195)
19% (98)
21% (53)
18% (45)
6% (28)
8% (20)
3% (8)

75–90
427
75% (319)
78% (179)
71% (140)
18% (78)
17% (39)
20% (39)
7% (30)
6% (13)
9% (17)

Highest 10
225
77% (174)
79% (84)
76% (89)
17% (39)
16% (17)
19% (22)
5% (12)
6% (6)
5% (6)

Total
1782
75.0% (1337)
74.4% (677)
75.6% (657)
18.5% (330)
18.4% (167)
18.8% (163)
6.5% (115)
7.3% (66)
5.6% (49)


--------------------------------------------------------------------------------

* Overall χ2 = 11.42, P = 0.33; Boys χ2 = 8.73, P = 0.56; Girls χ2 = 12.36, P = 0.26. SEIFA = Socio-Economic Indexes for Areas (a higher score corresponds to higher socioeconomic status).


Acknowledgements: We thank all who contributed to the Australian National Iodine Nutrition Study.
Mu Li, Senior Lecturer1
Karen Byth, Biostatistician2
Creswell J Eastman, Professor1
1 School of Public Health, University of Sydney, Sydney, NSW.
2 Westmead Millennium Institute, Sydney, NSW.
muliAThealth.usyd.edu.au
Li M, Eastman CJ, Waite KV, et al. Are Australians iodine deficient? Results of the Australian National Iodine Nutrition Study. Med J Aust 2006; 184: 165-169.
Cole TJ, Bellizzi MC, Flegal KM, Dietz WH. Establishing a standard definition for child overweight and obesity worldwide: international survey. BMJ 2000; 320: 1240-1243.
Australian Bureau of Statistics. Information paper. Census of Population and Housing. Socio-economic indexes for areas, Australia, 2001. Canberra: ABS, 2003. http://www.ausstats.abs.gov.au/ausstats/free.nsf/0/AFF5E8542B58B94ECA256DD5007A3DF8/$File/20390_2001.pdf (accessed Aug 2007)
Booth ML, Wake M, Armstrong T, et al. The epidemiology of overweight and obesity among Australian children and adolescents, 1995-1997. Aust N Z J Public Health 2001; 25: 162-169.
Magarey AM, Daniels LA, Boulton TJC. Prevalence of overweight and obesity in Australian children and adolescents: reassessment of 1985 and 1995 data against new standard international definitions. Med J Aust 2001; 174: 561-564.
Baur LA. Obesity: definitely a growing concern [editorial]. Med J Aust 2001; 174: 553-554.

MP wants lie detectors in Family Court

The Sydney Morning Herald has reported that an MP has called for compulsory lie detector tests for parents facing the Family Law Court.

South Australian independent MP Ann Bressington says current family law is a divisive "cash cow" that harms those it aims to protect - children.

For the full article,
click here.

Thursday, 9 August 2007

In a recent Federal Court case, Mr Yacoub sought to rely on the existence of an apprehended violence order in favour of his wife (against her former husband) as "compelling reasons" so that he could be granted a visa to stay in Australia.

The Federal Court rejected his application:
At its highest, the AVO represented a conclusion by the Fairfield Local Court that, on the balance of probabilities, the Sponsor [wife] had reasonable grounds to fear, and in fact feared, commission by her former husband of a personal violence offence against her. It also signified that the Local Court concluded that an AVO should remain in force for two years to ensure the protection of the Sponsor from that threat of violence. The Visa Applicant’s contention is that there is inconsistency between those conclusions by the Local Court and the Tribunal’s conclusion that, as at the date of the Visa Applicant’s application, the Sponsor was no longer experiencing the problems associated with her former husband.

However, there is no inconsistency between those conclusions. The Sponsor has experienced no violence from her former husband since the making of the AVO. Thus, it was open to the Tribunal to proceed on the basis that the AVO appeared to have been effective, at least up to the time of the hearing before the Tribunal, in achieving the object of the Crimes Act in reducing or preventing violence between the Sponsor and her former husband. The Tribunal’s conclusion that the Sponsor was no longer experiencing problems associated with her former husband is an acceptance, in effect, that the AVO was effective to achieve its object. Having concluded that there was no longer a problem associated with the former husband, the Tribunal concluded that the prospect of violence was not a compelling reason for waiving the Schedule 3 criteria in relation to the Visa Applicant.

The suggestion that the conclusion reached by the Tribunal was in some way inconsistent with the making of the AVO by the Local Court appears to involve some misapprehension. The object of the AVO was to prevent violence. The Tribunal appears to have accepted that it had that effect. The Tribunal recognised that it had that effect by concluding that violence from the Sponsor’s former husband was no longer a problem for the Sponsor.

Clearly, the Tribunal had regard to the fact that the AVO had been made and that the two year period of its currency had not expired at the time when the Visa Applicant lodged his application for a Class UK Visa. Whether or not the existence of the AVO was a consideration that it was necessary for the Tribunal to take into account, it did in fact take into account the existence of the AVO and the fact that it was still current.



For the judgment click here.

Restrictions in relying on DV to stay in Australia: Court

The Federal Court has recently highlighted the requirement under the Migration Regulations that for someone to seek to stay here on the basis of domestic violence, there must be statutory declarations from the relevant experts "stating" that in their opinion that the person has suffered domestic violence. Anything less than "stating" is not enough.

It is not sufficient for the competent person to state that the victim’s presentation is consistent with the claim of domestic violence.... Nor is it sufficient to state that the alleged victim may have, or appears to have, suffered domestic violence..... Similarly it is not sufficient for the competent person merely to recite the possession of an opinion that the alleged victim has suffered domestic violence..... Ultimately the regulation requires that the competent person must state that in his or her opinion, "relevant domestic violence ... has been suffered". It must be apparent from the declaration that the competent person attributes the same meaning to "domestic violence" as reg 1.23(2)(b) although, in our view, it is not necessary for the declarant to refer to that definition.


See Minister for Immigration & Citizenship v Ejueyitsi.
A new article by Jenny Mouzos and Lance Smith, "Partner violence among a smaple of police detainees questions the long held view, at least in this sample, that domestic violence is necessarily gendered:

"In finding that gender was not a factor in involvement in partner violence for police detainees, it suggests that the development of intervention or prevention policies for police detainees needs to view intimate partner violence as not necessarily involving female victims and male perpetrators, but rather couples who engage in violent acts towards each other.

The finding that having dependent children at home increased the risk of detainee involvement in partner violence is significant because it not only has implications for those engaged in the partner violence, but also the children who may be witnessing the violence. While witnessing violence as a child was not a significant risk marker in the current study, the fact that much prior research has found a link (for partner violence in general) cannot be discounted (see Indermaur 2001).

In conclusion, the data showed that a large percentage of the detainees coming into contact with police were involved in intimate partner violence. Associated risk markers were drug and alcohol dependency, prior offending, and intergenerational experiences of violence. This suggests that there are differing levels of intervention required to address the issues of violence and drug use for persons who come into contact with the criminal justice system."

See the article here.

Vic: More police DV powers

MORE POLICE POWERS TO PROTECT FAMILY VIOLENCE VICTIMS 19/7/07

Police will be able to issue interim, on-the-spot safety notices under a trial program to provide quicker and more decisive protection for the victims of family violence, the Premier, Steve Bracks, announced today.
Mr Bracks said the new system would give victims more security at night and on weekends when most incidents occur. Breaching a safety notice will be a criminal offence punishable by up to two years’ jail or up to a $26,428.80 fine, or both.

“It is crucial that police have adequate tools to respond to family violence quickly and decisively at times when courts are not open,” Mr Bracks said.

“The safety notices will make it easier for police to remove alleged offenders from the family home and prevent them from contacting victims until a court can hear the matter.

“This is a faster, more effective way of sending the clear message to alleged offenders that action will be swift and decisive when police arrive at the front door.”

The Department of Justice will consult with stakeholders on the detail of the trial, which is expected to get underway by mid-2008.

The Attorney-General, Rob Hulls, said that while the police and courts could already act to protect victims after-hours, safety notices would further improve the system by focusing on the victims’ needs and streamlining processes between the Victorian Police and the Courts.

“Following on a review and recommendations from the Victorian Law Reform commission, the Magistrates’ Court, Victoria Police and the Department of Justice have worked closely together to construct a system that best addresses victims’ safety needs after hours,” Mr Hulls said.

“Safety notices will make it easier for police to act quickly, decisively and efficiently to protect victims of family violence, while at the same time retaining the important role of the courts in overseeing a fair system to all parties involved.”

Under the trial, the notices will only be available outside court sitting hours, and set down conditions that alleged offenders must comply with until a matter is heard in court.

Police officers attending incidents can apply for the notices, which can be authorised by a police sergeant or higher-ranked officer. The matter must then come before a court within 72 hours of the notice being issued.

The Court will still maintain its after hours registry with a magistrate on duty if required. Courts will still be able to issue interim intervention orders and warrants to arrest after-hours if the circumstances require it.

The Minister for Police, Bob Cameron, said the safety notices equipped police with unprecedented powers to protect Victorians from family violence.

“The safety notices will make it easier for police to intervene and keep a violent person away from their victim when courts are not open to grant such an order,” Mr Cameron said.

“This has never been done before in Victoria and police command will rigorously train sergeants, higher-ranked officers and police who attend incidents on how to correctly issue safety notices.

“Police will document the precise reasons behind any decision to issue the notice, and explain the instructions to the alleged offender, using an interpreter if necessary.”

The safety notices trial system will be evaluated after 12 months in consultation with stakeholders and the community.

The initiative is part of the Bracks Government’s commitment to tackling family violence, including court-based specialist family violence services and specialist family violence courts.

“No socio-economic, geographical, cultural or religious groups are immune from the scourge of family violence,” Mr Bracks said.

“It affects one in five women and is a leading contributor to death, disability and illness in Victorian women aged 15 to 44.

“The message has to be loud and clear that family violence will not be tolerated in this state.”


Source: Ministerial Media Release