Australian divorce and family law by a Brisbane family lawyer. I have been an accredited family law specialist for over 20 years. All about property settlement, spousal maintenance, children, child support and domestic violence.
The US Supreme Court has decided overnight (Australian time) to review a case in which habitual residence under the 1980 Hague Convention is the key issue. While Australian courts have decided issues about what constitutes habitual residence, whatever the US Supreme Court decides will be listened to around the globe.
The case, Taglieri v Monasky involved a court order for the return of a child who was 2 months when taken from Italy by her mother to the US to be returned to Italy. The mother, Michelle Monasky, alleged that she was assaulted during and after the pregnancy by her husband, Domenico Taglieri.
Monasky asked the Supreme Court to take up two questions in her case, arguing that the courts of appeals are divided on both. First, she asked the justices to weigh in on the correct standard of review for the district court’s ruling on the baby’s habitual residence: Should the court of appeals have decided the issue as if it were hearing the case for the first time, regardless of what the district court concluded – a standard known as “de novo”? Should it instead have used a deferential version of de novo review? Or should it have been even more deferential and overturned the district court’s decision only if the decision was clearly wrong?
Monasky also asked the justices to weigh in on whether, when an infant is too young to acclimate to her surroundings, the child’s “habitual residence” must be established by an agreement between her parents.
The earlier appeal decision
In the words of Circuit Judge Sutton in the court of appeal:
Domenico Taglieri and Michelle Monasky were married. When the union fell apart, Monasky took A.M.T., their two-month-old daughter, from Italy to the United States. Taglieri filed a petition under the Hague Convention to return A.M.T. to Italy. The district court granted the petition after finding that Italy was A.M.T.'s country of habitual residence. Monasky appealed.
Who wins turns on who decides. The Hague Convention places the child's habitual residence front and center in trying to achieve its goal of discouraging spouses from abducting the children of a once-united marriage. The Convention and our cases establish that the inquiry is one of fact. Judge Oliver held a four-day hearing about the point, after which he wrote a 30-page opinion that carefully and thoughtfully explained why Italy was A.M.T.'s habitual residence. No part of that decision goes awry legally, and no part of his habitual-residence finding sinks to clear error. We affirm....
Ninety-nine countries, including the United States and Italy, have signed the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, ...The treaty addresses a pressing and never-ceasing policy problem—the abductions of children by one half of an unhappy couple. The Convention's mission is basic: to return children "to the State of their habitual residence," to require any custody disputes to be resolved in that country, and to discourage parents from taking matters into their own hands by abducting a child. ...
A parent may petition a (US) federal or state court to return abducted children to their country of habitual residence. The federal or state court determines whether to return the child. Courts in the country of habitual residence then determine the "merits of any underlying child custody claims." The parent seeking return of a child must prove by a preponderance of evidence that the child was "wrongfully removed... within the meaning of the Convention." The Hague Convention defines wrongful removal as taking a child in violation of custodial rights "under the law of the State in which the child was habitually resident immediately before the removal." The key inquiry in many Hague Convention cases, and the dispositive inquiry here, goes to the country of the child's habitual residence. Habitual residence marks the place where a person customarily lives. ...(US case law) offers two ways to identify a child's habitual residence. The primary approach looks to the place in which the child has become "acclimatized." The second approach, a back-up inquiry for children too young or too disabled to become acclimatized, looks to "shared parental intent."...
As to the first approach, the question is "whether the child has been physically present in the country for an amount of time sufficient for acclimatization and whether the place has a degree of settled purpose from the child's perspective." ... District courts ask these sorts of questions in determining a child's acclimatization: whether the child participated in "academic activities," "social engagements," "sports programs and excursions," and whether the child formed "meaningful connections with the [country's] people and places." But the acclimatization inquiry...may prove difficult, sometimes impossible, for young children. An infant "never forms" "or is incapable of" forming the kinds of "ties" to which the acclimatization standard looks. Id. at 689. Unwilling to leave infants with no habitual residence and thus no protection from the Hague Convention, Ahmed adopted an alternative inquiry for infants incapable of acclimating. In that setting, Ahmed tells courts to determine the "shared parental intent of the parties" and to identify the location where the parents "intended the child[ ] to live." ...(US case law) says that "the determination of when the acclimatization standard is impracticable must largely be made by the lower courts, which are best positioned to discern the unique facts and circumstances of each case." Both of these inquiries come back to the same, all-important point—the habitual residence of the child—on which the protections of the Hague Convention pivot. The Hague Convention's explanatory report treats a child's habitual residence as "a question of pure fact."
Measured by these insights and these requirements, the district court's ruling should be affirmed. No one thinks that A.M.T. was in a position to acclimate to any one country during her two months in this world. That means this case looks to the parents' shared intent.
In answering that question, we must let district courts do what district courts do best—make factual findings— and steel ourselves to respect what they find. While we review transcripts for a living, they listen to witnesses for a living. While we largely read briefs for a living, they largely assess the credibility of parties and witnesses for a living. Consistent with the comparative advantages of each role, clear-error review is highly deferential review. In the words of the Supreme Court, we leave fact finding to the district court unless we are "left with the definite and firm conviction that a mistake has been committed." ...
Nothing in Judge Oliver's habitual-residence finding leaves a "definite and firm conviction that a mistake" was made or, more pungently, strikes one as wrong with "the force of a five-week-old, unrefrigerated" aquatic animal. He presided over a four-day bench trial and heard live testimony from several witnesses, including most essentially the two parents: Monasky and Taglieri. After listening to the witnesses and weighing their credibility, Judge Oliver issued a 30-page opinion finding that Italy is A.M.T's country of habitual residence. ...
Judge Oliver's opinion is thorough, carefully reasoned, and unmarked by any undue shading of the testimony provided by the competing witnesses. Some evidence, as he pointed out, supported the finding that Monasky and Taglieri intended to raise A.M.T. in Italy. For example: Monasky and Taglieri agreed to move to Italy to pursue career opportunities and live "as a family" before A.M.T.'s birth. . The couple secured full-time jobs in Italy, and Monasky pursued recognition of her academic credentials by Italian officials. Together, Monasky and Taglieri purchased several items necessary for raising A.M.T. in Italy, including a rocking chair, stroller, car seat, and bassinet. . Monasky applied for an Italian driver's license. And Monasky set up routine checkups for A.M.T. in Italy, registered their family to host an au pair there, and invited an American family member to visit them there in six months.
Stephen Page, Harrington Family Lawyers, Brisbane email@example.com 61(7) 3221 9544
According to a report in Brisbane's Sunday Mail on Sunday, almost 10,000 Aussie kids are the subject of the Australian Federal Police family law watchlist. The watchlist prevents the children from leaving Australia, subject of course to any further court order. It is designed to prevent the international abduction of children from Australia.
As a family lawyer who has had clients trying to prevent the abduction of children from Australia, my view is that the watchlist - while a vital tool to prevent international child abduction- is not the be all and end all to prevent the abduction of children from Australia. An holistic, comprehensive approach is required. Taking a series of steps to prevent abduction should greatly reduce the chances of it occurring.
The report goes on to say that sadly there were 80 applications lodged in the last financial year for 143 children abducted from Australia, seeking their return to Australia under the 1980 Hague Child Abduction Convention. Of those, 66 came home.
Of course, children can be abducted to non-Hague countries, and as a result may not be returned home. The best example is the children of Jacqueline Gillespie, smuggled out of Australia by boat by their father, a Malaysian prince. They did not return to Australia during their childhoods. The father got away with his actions.
Stephen Page, Harrington Family Lawyers, Brisbane firstname.lastname@example.org 61(7) 3221 9544
Aside from the usual processes of trying to get clear instructions from a client, and the need to proof a client (a skill which is unfortunately so often lacking), as lawyers our job is to think analytically and hopefully to think several steps ahead. Negotiating or litigation concerning children is to think as though you are playing a game of chess and therefore always think several moves ahead, with the exception of course that as lawyers in parenting matters, whether acting for a party or as the Independent Children’s Lawyer, the outcome of negotiations in litigation is much more significant than that from a board game. We have a duty to the child, as well as our clients.
Any mistakes we make, it is likely that the child will wear those. These may have a lifelong impact. Nothing is more sobering when having practised family law for a long time as I have done to reflect back and wonder what impact the litigation I engaged in has had on children, knowing that these children have now grown up and likely had education, jobs, relationships and children of their own.
My teacher in grade 2C, Mrs Bray, made a note on my report card along the lines of “Stephen is always looking out the window daydreaming”. I cannot emphasise enough that to reflect about a matter, particularly involving children is essential. Too often solicitors act as spear chuckers for their clients without reflecting about what ought to be in the material, what they are writing in correspondence, what positions they are taking in negotiations and what outcomes they are urging upon a court or a mediator.
We are not our clients’ runners. Whilst we are the advocates for our clients, and owe a duty to our clients, we also owe a duty to the Court, to the law and to the children who are impacted by our actions.
A reminder about rule 17.1 of the Australian Solicitors Conduct Rules:
“A solicitor representing a client in a matter that is before the court must not act as the mere mouthpiece of the client or of the instructing solicitor (if any) and must exercise the forensic judgments called for during the case independently, after the appropriate consideration of the client’s and the instructing solicitor’s instructions where applicable.”
Or to use the words of Mr Robert Grant: “It is better to represent the interests of your client rather than their anger.”
At the first attendance on every client in a parenting matter, I ask to see a photo or photos of the children. These days it is pretty easy – everyone has a photo on their mobile phone. The reason that we do family law is because we want to help people. These people and especially their children are not numbers. Too often I have seen affidavit material that refers to “the child” instead of their son “Fred”.
I encourage you, if you have the time available, to do volunteer work at a community legal centre advising about family law and to do duty lawyer work in family law or domestic violence. Aside from the feel good factor and know that you are helping others, doing volunteer work at a community legal centre in family law means you have to sharpen your skills. Typically you will be given a sheet setting out the client’s problem. You have to be able to identify that problem precisely (even when the person filling out the intake sheet has misidentified it) and give practical succinct advice to deal with the problem – all in 20 minutes.
If you are a duty lawyer you will soon experience both the gratitude of judges or magistrates for your assistance and in turn experience all the challenges of advocacy:
· Getting instructions quickly;
· Analysing those instructions;
· Giving succinct practical advice;
· Putting propositions to the Court;
· Finding out what it’s like when you are underprepared in dealing with the judge;
· Learning quickly how to properly advocate before a judge so you can get to the nub of the issue in the short time that you have before them.
2. Have a case plan
I can’t emphasise enough the need to have a strategy based on a case plan. Reflect and think through as to the state of the evidence. What ultimately is your client seeking? Does the evidence support those propositions? Test your client as part of the proofing process. Does your client come up to proof? Give your client realistic advice.
Above all, think and reflect about where you want this case to end up. You are not painting by numbers.
It is essential in preparing the case plan in my view from the very beginning of any parenting matter to produce a timeline, or as we lawyers call it, a chronology. You need to revise this document on the way through and it should capture everything. It should have three columns:
· Event or Allegation;
In the last column you set out where the source of the information is – such as from correspondence or from a particular paragraph of a particular affidavit, for example. It might be from subpoenaed material. It might be from bank documents, for example. When you put a chronology together carefully, it is extraordinary at times the mosaic that appears before your eyes.
In a trial last year in which I and an associate prepared a lengthy chronology summarising 7 lever arch folders of court documents, Senior Counsel told me that it was a blessing to receive, making his job particularly with cross-examination considerable easier - and could I teach other solicitors to do the same, as it is so rarely done.
As an example of what could be in a chronology:
Child Fred Aloysius Lucius Smith born (4)
2 Aff M 3/7/17, 3 Aff F 4/8/17, 2 Aff F 9/4/18
Father present at birth
29 Aff M 3/7/17, 41 Aff F 4/8/17
Mother registers the birth but father unknown
44 Aff F 4/8/17, subpoena docs from BDM
Child’s passport obtained by mother, but without father’s consent
45, “A” Aff F 4/8/17
Mother signs stat dec that father is unknown
Stat dec 21/7/14 BDM subpoenaed docs
Father registered on the birth register
Email from BDM 3/9/17
Similarly a well prepared chronology will also reveal, hopefully, to you the gaps in the evidence for your client’s case.
This year I had a trial as independent children’s lawyer. Something bothered me about the matter, but I didn’t know what. I just had a feeling that something was awry. It was only when I did the chronology, and then reread the subpoena material that something did not add up about when the child was conceived. I then spoke to one of the parties’ witnesses before he gave oral evidence. His sworn affidavit on the point was before the court. No one else sought for him to give evidence. I was concerned about this point, as I mentioned.
After speaking to him, I again trawled through the subpoena material during the trial, one night from 8pm to 1am when EUREKA I found the clue.
That evidence uncovered by me, through the use of the chronology, reading the subpoena material carefully and talking to the witness, directed the form of cross-examination of one of that witness and one of the parties the next day. It proved by underlying hypothesis. It meant that while before that evidence was uncovered I was of the view that the child should live with one of the parties (and have no time with the other), after putting all the evidence together, I was of the view that the child should live with the other side (and have no time with that first party).
That evidence was crucial.
If we are fortunate enough to have a client who has unlimited funds and wants to spend that on litigation, we could possibly make that litigation as complex as possible. Aside from any issue of overcharging and making the lives of all concerned miserable (especially that of the children), you should at all times consider what you do proportionately. The KISS principle (keep it simple, stupid) has much going for it.
Remember Judge Harman’s triangle of dispute resolution:
· Most cases (about 70%) are resolved without any third party intervention (for example, no action taken, self-help, direct discussions)
· Then in a series of smaller groups (each of which requires more and more resources), we see:
o Resolved with third party intervention (e.g. lawyer negotiation, mediation)
o Proceedings commenced (but resolved without hearing)
o And the smallest group, in the past 1-3% of cases, currently I understand about 5%- proceedings heard and determined by a court.
4. Learn to negotiate
It is fundamental to the practice of being a solicitor or barrister to be able to negotiate. Whether you settle a matter without going anywhere near a court, or attend mediation or even have a trial- at all stages sooner or later you will be negotiating on behalf of a client.
Don’t make ambit claims. Put forward reasonable positions. Particularly in parenting disputes, generate other options. What other ways can work for this family and child? Engage in brainstorming if necessary. I suggest in writing letters or emails when you are putting forward offers to set out succinctly why your client is putting an offer as well as what the offer is. That way even if the other side doesn’t agree with the specifics of the offer, you have left the door open, increasing the chances of negotiating a deal.
Many years ago when I did a mediation course, the attendees including me were told that we were great at beating up the parties, but not good at option generation. A negotiation involves option generation. The more options on the table, the more likely that the matter will settle.
Last year I was surprised at the last minute while negotiating at court by the other side putting an offer on one issue. No explanation was given as to what was sought. We didn’t have time to ask why. Once we were in court, an explanation was given as to the drafting What looked on paper to be highly objectionable was in fact- when recast- quite a reasonable proposal.
While emails are extremely useful, as a means of negotiating, they are not particularly good. A letter, after all, is a monologue. To have dialogue is very difficult with an email. Much better to pick up the phone. Before you do, find out about your opponent, so you have some idea of who you are speaking with. Look at the QLS website, and Google their firm website or their Linkedin profile at the least. Ask colleagues about them.
If you know nothing about negotiation, get taught! Do a course.
And remember this rule about negotiation (and of being a practising lawyer): reputation is everything. Your reputation, once you are known, comes before you- for good or bad. A bad reputation can take a long time to shake off.
Example: how not to negotiate
My client saw me about a parenting matter for the first time, brandishing a letter from her ex’s solicitors. The letter then listed 5 pages of conditions of an offer. On and on it went, including on about page 3 a requirement for the children to attend a particular child psychiatrist for the purposes of psychotherapy. The children had never been for psychotherapy. On the last page came the clincher. It was along the lines of – accept our client’s offer or our client will institute proceedings and obtain an indemnity costs order!
There was next to no chance that a parent, faced with 5 pages of conditions, including a condition that the children attend a particular child psychiatrist, would agree to the offer. Not surprisingly, my client rejected the offer.
The matter ran all the way to trial. My client was wholly successful, and obtained a substantial costs order against her former partner.
5. Be courteous
It is much easier to catch flies with honey, they say, than with vinegar.
It is very easy when clients tell you about horrific things that have occurred to be extremely angry when dealing with the other side. To do so is a mistake. Whilst it is necessary to be assertive for your client, you have professional responsibilities. If in doubt don’t send that email straightaway or make that angry phone call but think about it overnight. Alternatively, talk to colleagues to make sure that anything you draft along those lines is checked. Don’t engage in a slanging match with the other side in correspondence. It is easy to do but really should be avoided at all costs. Too often, lawyers let their egos get in the way of a good outcome for their clients.
If possible, think about other ways that you may be able to tackle the issue without inflaming the dispute. Or other ways to get the evidence without turning into a wild goose chase.
6. Think laterally
Whilst the focus today is about the Family Law Act, remember that there is other legislation that might be on point and that you may need to read and know well. If you are in the Federal Circuit Court, read the Federal Circuit Court Rules. If you are in the Family Court, read the Family Law Rules. These may sound basic and obvious, but you would be surprised how often practitioners don’t do them.
A couple of years ago I was sitting in the back of Judge Jarrett’s court on a Tuesday morning. I had a family law matter, but most of the matters were general federal law. A migration matter was called. The lawyer for the Department told his Honour that she had not read the file! She said that she had just come back from holidays and it was not her matter. Not surprisingly, his Honour told her not to appear before him again unless she was prepared. “Next matter!” She was still standing at the Bar table. Not surprisingly, she said she was in this matter too- and knew nothing about it. His Honour then asked questions of the applicant’s solicitor, who answered rote like: “I don’t know your Honour. I only got instructions on Thursday.”After several rounds of this, his Honour finally exclaimed: “Will somebody appear before me this morning who knows what they’re doing?!”
I was next. My consent parenting orders, with three parties, were made in a couple of minutes without fuss.
Other legislation that might pop up in your case could be the:
· Adoption Act 2009 (Qld)
· Child Protection Act 1999 (Qld)
· Child Support (Assessment) Act 1989 (Cth)
· Domestic and Family Violence Protection Act 2012 (Qld)
· Family Law Regulations 1984 (Cth)
· Family Law (Child Abduction Convention) Regulations 1986 (Cth)
· Family Law (Child Protection Convention) Regulations 2003 (Cth)
· Status of Children Act 1978 (Qld)
· Surrogacy Act 2010 (Qld)
· Trans-Tasman (Proceedings)Act 2010 (Cth).
Be aware that this legislation exists. You may need to use it.
7. ADR and section 60I
You may have a client who is keen to get into court straightaway. Alternatively, you may have a client who wishes to settle but is fearful that the other side is angling to get into court. When considering whether ADR should occur, is it appropriate? Do you have a matter that falls within one of the exceptions to section 60I:
· Allegations of abuse or family violence;
· The party is unlikely to attend because for example they are overseas;
· The matter might be deemed by the mediator to be too complex under regulation 25 of the Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth).
· Is the matter truly urgent?
A purist would say that if there has been family violence there should not be ADR. Unfortunately, family violence is pervasive. When acting for a victim of family violence, often the process of ADR – if properly handled – is much more respectful to a client who is the victim of family violence than an interim hearing, followed by a family report and then a final hearing. With some clients who are the victims of family violence, ADR will never be an option. You have to make an assessment in each case. If in doubt, call a colleague or a counsellor who is familiar with the dynamics of domestic violence and ADR, and ask. The point of asking will usually give you the clue. If you are in doubt about your client’s ability to attend ADR due to domestic violence issues and therefore you have to phone a friend- will normally tell you of itself that in all probability your client should not attend ADR. Err on the side of caution and safety at all times.
There are few less enjoyable parts of the job in being in a mediation when your client says: “I will sign this because you are forcing me to do so”, or worse: “I signed that deal yesterday because you forced me to do so. I was under duress.”
Knowing your client, and the stresses and strains they are under will be the surest guide as to what they can handle. If you have a concern before a mediation that they will be under duress at the mediation, identify that issue and hopefully work out a way to minimise the chances of that complaint happening, including identifying the possible issue with the mediator before or at the commencement of the mediation.
However, clients rarely like the prospect that they are going to court, if they had the ability to settle a matter first.
The items under regulation 25(2) of the Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth) are a good checklist:
· A history of family violence, if any, among the parties;
· The likely safety of the parties;
· The equality of bargaining power among the parties;
· The risk that a child may suffer abuse;
· The emotional, psychological and physical health of the parties;
· Any other matter that the family dispute resolution practitioner considers relevant to the proposed family dispute resolution.
You may have a client who is poor and therefore has to wait for a Family Relationships Centre or a conference through Legal Aid Queensland. Your job as far as you can (depending on your funding) is to try and push that matter as quickly as you can (unless of course it may be to your client’s advantage to be as slow as possible!). Unless you are in a regional or remote area, you may find that the length of the queue at each Family Relationships Centre or branch of Relationships Australia is different. Get your client to ring around. If the delay in one centre is two months and somewhere else is four months, go to the place..
It helps people contemplating or going through separation to contemplate the future- at least from a financial perspective. It does not:
focus on all pervasive domestic violence (unless I have missed it)
focus on kids.
Unless I am mistaken, this is the first of the big 4 banks to produce such a guide- which will make the journeys for many people that much easier- by getting them to focus on what needs to be done now, and what needs to be planned for financial independence.
Good on Westpac!
Stephen Page, Harrington Family Lawyers, Brisbane email@example.com 61(7) 3221 9544
Yesterday the Attorney-General, Christian Porter tabled the report of the Australian Law Reform Commission into the Family Law System. The Commission set out 60 recommendations, the first of which was to abolish the Family Court of Australia and the Federal Circuit Court of Australia, and replace them with State and Territory courts, along the lines of the Family Court of Western Australia.
The Government has previously indicated that it is not interested in doing so.
The rationale for doing so is so that domestic violence, child protection and family law can all be held under the same banner, and not in different places.
One evident difficulty in doing so is that judges appointed to the federal courts are protected under the Constitution. They can only be removed by a joint vote of both Houses of Parliament. Otherwise, subject to ill-health or death, they can stay there until they are 70. Does that mean appointing them to a State court also, and in the process bumping up their pays and status? How else will someone be persuaded to move if they cannot be forced to do so?
The other difficulty is that any change like this also requires the co-operation of the States. Every State (other than Western Australia) has been keen to wash its hands of these aspects of family law and give them to the Commonwealth. Not one State has ever opted (other than Western Australia) to take up the standing option in the Family Law Act to have a State Family Court.
And if the States did so, it is likely that the Commonwealth would pay for it. So a Federal Attorney-General loses the power to appoint a large number of judges- and gives that power to his State counterparts- has all the complaints about the system because it is argued that he is not generous enough, and loses whatever leverage he might have in controlling that system.
No longer would State politicians be able to wash their hands of family law and say- talk to my Federal counterpart- but they would have to take an active interest in family law.
But now we are in for an election- so let's see what that brings!
Here are the full 60 recommendations with my comments in [ ]:
Recommendation 1The Australian Government should consider options to establish state and territory family courts in all states and territories, to exercise jurisdiction concurrently under the Family Law Act 1975 (Cth), as well as state and territory child protection and family violence jurisdiction, whilst also considering the most efficient manner to eventually abolish first instance federal family courts.
Recommendation 2 The Australian Government should work with state and territory governments to develop and implement a national information sharing framework to guide the sharing of information about the safety, welfare, and wellbeing of families and children between the family law, family violence, and child protection systems. The framework should include: the legal framework for sharing information; relevant federal, state, and territory court documents; child protection records; ypolice records; experts’ reports; and other relevant information. [HOORAY- very sensible]
Recommendation 3 The Australian Government, together with state and territory governments, should consider expanding the information sharing platform as part of the National Domestic Violence Order Scheme to include family court orders and orders made under state and territory child protection legislation. [Sounds sensible]
Parenting Recommendation 4 Section 60B of the Family Law Act 1975 (Cth) should be repealed. [This is the objects clause of the parenting provisions of the Act. ]
Recommendation 5 Section 60CC of the Family Law Act 1975 (Cth)should be amended so that the factors to be considered when determining parenting arrangements that promote a child’s best interests are: what arrangements best promote the safety of the child and the child’s carers, including safety from family violence, abuse, or other harm; any relevant views expressed by the child; the developmental, psychological, and emotional needs of the child the benefit to the child of being able to maintain relationships with each parent and other people who are significant to the child, where it is safe to do so; the capacity of each proposed carer of the child to provide for the developmental, psychological, and emotional needs of the child, having regard to the carer’s ability and willingness to seek support to assist with caring; and anything else that is relevant to the particular circumstances of the child
[This is a much cut down list, seems to emphasise protection from violence, but not emphasise the right of the child to have a relationship with both parents. Women's groups are likely to applaud it, but not men's rights groups.]
Recommendation 6 The Family Law Act 1975 (Cth) should be amended to provide that in determining what arrangements promote the best interests of an Aboriginal or Torres Strait Islander child, a court must consider the child’s opportunities to connect with, and maintain the child’s connection to, the child’s family, community, culture, and country. [Very sensible.]
Recommendation 7 Section 61DA of the Family Law Act 1975 (Cth) should be amended to replace the presumption of ‘equal shared parental responsibility’ with a presumption of ‘joint decision making about major long-term issues’.
[Time will tell whether any change to language will make a difference.]
Recommendation 8 Section 65DAA of the Family Law Act 1975 (Cth), which requires the courts to consider, in certain circumstances, the possibility of the child spending equal time, or substantial and significant time with each parent, should be repealed.[Good. The family law legislative pathway at the moment is far too confusing, even for judges.]
Recommendation 9 Section 4(1AB) of the Family Law Act 1975 (Cth) should be amended to provide a definition of member of the family that is inclusive of any Aboriginal or Torres Strait Islander concept of family that is relevant in the particular circumstances of the case. [Excellent.] Recommendation 10 Combined rules for the Family Court of Australia and the Federal Circuit Court of Australia should provide for proceedings to be conducted under Pt VII Div 12A of the Family Law Act 1975 (Cth) by judges of both courts. Both courts should be adequately resourced to carry out the statutory mandate in s 69ZN(1) of the Family Law Act 1975 (Cth). [Excellent. Let's see if they get adequate resourcing.]
A Simplified Approach to Property Division
Recommendation 11 The Family Law Act 1975 (Cth) should be amended to: specify the steps that a court will take when considering whether to make an order to alter the interests of the parties to the relationship in any property; [HOORAY] and simplify the list of matters that a court may take into account when considering whether to make an order to alter the interests of the parties to the relationship in any property. [HOORAY]
Recommendation 12 The Family Law Act 1975 (Cth) should be amended to include a presumption of equality of contributions during the relationship. [HOORAY]
Recommendation 13 The Family Law Act 1975 (Cth) should be amended to provide that the relevant date to ascertain the value of the parties’ rights, interests, and liabilities in any property is the date of separation, unless the interests of justice require otherwise. [That will be interesting about how that turns out. Currently the date is the date of trial- with argument about add backs since the date of separation. ]
Recommendation 14 The family courts and the Australian Financial Complaints Authority should develop a protocol for dealing with jurisdictional overlap with respect to debts of parties to family law proceedings. The protocol should provide that: disputes about the enforceability of a debt against one or both parties under the National Consumer Credit Protection Act2009 (Cth) are dealt with by the Australian Financial Complaints Authority; and disputes about the reallocation of a debt between parties to a family law proceeding are dealt with by the family courts. [Sensible]
Recommendation 15 The Privacy Act 1988 (Cth) and the National Consumer Credit Protection Act 2009 (Cth) should be amended to provide that when a court has ordered that one party (Party A) be responsible for a joint debt and indemnify the other party (Party B) against any default, credit providers are prohibited from making an adverse credit report against Party B to any credit reporting business as a consequence of the subsequent actions of Party A. [Sensible]
Recommendation 16 The Family Law Act 1975 (Cth) should be amended to provide a presumption that the value of superannuation assets accumulated during a relationship are to be split evenly between the parties. [If it seen as an equal contribution during the relationship, then the split should reflect the overall split, not a different figure.]
Recommendation 17 The Family Law Act1975 (Cth) should be amended to simplify the process for splitting superannuation including: developing template superannuation splitting orders for commonly made superannuation splits; and when the applicant is suffering economic hardship, requiring superannuation trustees to limit the fees they charge members and their former spouse for services provided in connection with property settlement under Pt VIII to the actual cost of providing those services. [Good stuff.]
Recommendation 18 The Family Law Act 1975 (Cth) should be amended so that: the spousal maintenance provisions and provisions relating to the division of property are dealt with separately under the legislation; and access to interim spousal maintenance is enhanced by the use of Registrars to consider urgent applications. [But how will future factors, if at all, be taken into account on property settlement?]
Recommendation 19 The Family Law Act 1975 (Cth) should be amended to include a statutory tort of family violence that would provide remedies consistent with existing common law remedies. [Excellent. Victims of violence from their partners have been paid too little, or had to spend too much to get too little in return.]
Recommendation 20 The Family Law Act 1975 (Cth) should be amended to extend s 69ZX to property settlement proceedings. [So greater flexibility with the admissibility rules.]
Encouraging Amicable Resolution
Recommendation 21 The Family Law Act 1975 (Cth) should be amended to: require that parties take genuine steps to attempt to resolve their property and financial matters prior to filing an application for court orders; and
specify that a court must not hear an application unless the parties have lodged a genuine steps statement. A failure to make a genuine effort to resolve a matter should have costs consequences. [Provided there are safeguards- sensible stuff.]
Recommendation 22 Regulation 25 of the Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth), which refers to ‘equality of bargaining power between the parties’, should be amended to refer to the ‘equality of bargaining power between the parties, including an imbalance in knowledge of relevant financial arrangements’. [Sensible]
Recommendation 23 The Family Law Act 1975 (Cth) should be amended to require Family Dispute Resolution Providers to provide a certificate to the parties in all matters where some or all of the issues in dispute have not been resolved. [Sensible]
Recommendation 24 Sections 10H and 10J of the Family Law Act 1975 (Cth), which provide for confidentiality and inadmissibility of discussions and material in Family Dispute Resolution in relation to parenting matters, should be extended to Family Dispute Resolution for property and financial matters. The legislation should provide an exception for a sworn statement in relation to income, assets, superannuation balances, and liabilities that each party signs at the start of Family Dispute Resolution, which should be admissible. [Sensible]
Recommendation 25 The Family Law Act 1975 (Cth) should be amended to clearly set out the disclosure obligations of parties, and the consequences for breach of those obligations. [HOORAY]
Recommendation 26 The Family Law Act 1975 (Cth) and the Child Support (Assessment) Act 1989 (Cth) should be amended to increase the scope of matters which may be arbitrated, whether or not upon referral from a court. Those matters should include all financial issues, including child maintenance and child support, subject to limitations. Appropriate occasions for arbitration would not include disputes: relating to enforcement; under ss 79A or 90SN of the Family Law Act 1975 (Cth) (subject to limitations); and in which a litigation guardian has been appointed. [Sensible]
Recommendation 27 The Family Law Act 1975 (Cth) should be amended to remove the opportunity for a party to object to registration of an arbitral award, while maintaining appropriate safeguards for the integrity of registered awards. [Sensible]
Recommendation 28 The Family Law Act 1975 (Cth) should be amended to allow some children’s matters to be arbitrated. Appropriate occasions for arbitration in children’s matters would not include disputes: relating to international relocation; relating to medical procedures of a nature requiring court approval; relating to contravention matters; in which an Independent Children’s Lawyer has been appointed; and involving family violence which satisfy ss 102NA(1)(b) and (c) of the Family Law Act 1975 (Cth). [Most domestic violence cases will not meet this threshold.] Recommendation 29 The Family Law Act 1975 (Cth) should be amended to provide that upon application by an arbitrator, or by a party to an arbitration, a court has power to make directions at any time regarding the further conduct of the arbitration, including power to make a direction terminating the arbitration (whether or not the arbitration was referred from a court). [Sensible]
Case Management: Efficiency and Accountability
Recommendation 30 The Family Law Act 1975 (Cth) should include an overarching purpose of family law practice and procedure to facilitate the just resolution of disputes according to law, as quickly, inexpensively, and efficiently as possible, and with the least acrimony so as to minimise harm to children and their families. [BRILLIANT!]
Recommendation 31 The Family Law Act 1975 (Cth) should impose a statutory duty on parties, their lawyers, and third-parties to cooperate amongst themselves, and with the courts, to assist in achieving the overarching purpose. Breach of the duty will have costs consequences for the person who fails to act in accordance with the overarching purpose. [Fair enough.]
Recommendation 32 The Family Law Act 1975 (Cth) should be amended to provide the courts with a power to make an order requiring a litigant to seek leave of the court prior to making further applications and serving them on the other party where the court is satisfied that such an order is appropriate for the protection of the respondent and/or any children involved in the proceedings, having regard to the overarching purpose of family law practice and procedure. [In other words, an ex parte Rice and Asplund application first. That should cut down some court cases. It will be interesting how that plays out.]
Recommendation 33 Section 45A of the Family Law Act 1975 (Cth) should be amended to provide that the courts’ powers of summary dismissal may be exercised where the court is satisfied that it is appropriate to do so, having regard to the overarching purpose of family law practice and procedure. [Sensible. It has been too hard at times to obtain summary dismissal of applications that are less than worthy, and are not prosecuted in a timely manner.]
Recommendation 34 The family courts should consider promulgating a joint Practice Note for Case Management which describes the courts’ approaches to the family law practice and procedure provisions. [Excellent. Already in train.]
Recommendation 35 The Family Law Act 1975 (Cth) should be amended to provide for the appointment and protection of referees in the same terms as provided for in ss 54A and 54B of the Federal Court of Australia Act 1976 (Cth). [Good]
Recommendation 36 Section 117 of the Family Law Act 1975 (Cth) should be amended to: remove the general rule that each party to proceedings under the Act bears his or her own costs; and articulate the scope of the courts’ power to award costs. [As long as this is not used to crush the other side, who might be very concerned about their children, and may have been subjected to domestic violence, or without funds.]
Recommendation 37 The Family Law Act 1975 (Cth) should be amended to provide courts with an express statutory power to exclude evidence of ‘protected confidences’. In determining whether to exclude evidence of protected confidences the court must: be satisfied that it is likely that harm would or might be caused, directly or indirectly, to a protected confider, and the nature and extent of the harm outweighs the desirability of the evidence being given; and ensure that in parenting proceedings, the best interests of the child is the paramount consideration when deciding whether to exclude evidence of protected confidences. [Expect that there will be a lot more objections to subpoenas.]
Compliance with Children’s Orders
Recommendation 38 The Family Law Act 1975 (Cth) should be amended to require parties to meet with a Family Consultant to assist their understanding of the final parenting orders made by a court following a contested hearing. [Excellent, provided there is resourcing and not a requirement in most cases that they sit in the same room at the same time.]
Recommendation 39 The Family Law Act 1975 (Cth) should be amended to provide that: in all parenting proceedings for final orders, the courts must consider whether to make an order requiring the parties to see a Family Consultant for the purposes of receiving post-order case management; and the appointed Family Consultant has the power to seek that the courts place the matter in a contravention list or to recommend that the court make additional orders directing a party to attend a post-separation parenting program. [Sensible]
Recommendation 40 The Family Law Regulations 1984 (Cth) should be amended to require leave to appeal interim parenting orders. Leave should only be granted where: the decision is attended by sufficient doubt to warrant it being reconsidered; and substantial injustice would result if leave were refused, supposing the decision to be wrong. [Fair enough.]
Recommendation 41 The Family Law Act 1975 (Cth) should be amended to explicitly state that when a new parenting order is sought, and there is already a final parenting order in force, the court must consider whether:there has been a change of circumstances that, in the opinion of the court, is significant; and it is in the best interests of the child for the order to be reconsidered. [Looking at Rice and Asplund straight up.]
Recommendation 42 Part VII Div 13A of the Family Law Act 1975 (Cth) should be redrafted to achieve simplification, and to provide for: a power to order that a child spend additional time with a person; a power to order parties to attend relevant programs at any stage of proceedings; and a presumption that a costs order will be made against a person found to have contravened an order. [Good.]
Support Services in the Courts
Recommendation 43 The Family Law Act 1975 (Cth) should be amended to: replace ‘family consultants’ with ‘court consultants’; and redraft s 11A to include a comprehensive list of functions that court consultants would provide to children, families, and the courts.
Recommendation 44 Section 68LA(5) of the Family Law Act 1975 (Cth) should be amended to include a specific duty for Independent Children’s Lawyers to comply with the Guidelines for Independent Children’s Lawyers, as promulgated from time to time and as endorsed by the family courts. [Good]
Recommendation 45 The Australian Government should ensure the availability of Indigenous Liaison Officers in court registries where they are required. [Resources please.]
Recommendation 46 The Family Law Act 1975 (Cth) should be amended to include a supported decision making framework for people with disability consistent with recommendations from the ALRC Report 124, Equality, Capacity and Disability in Commonwealth Laws. [Good]
Recommendation 47 The Family Law Act 1975 (Cth) should include provisions for the appointment of a litigation representative where a person with disability is unable to conduct the litigation. These provisions should be consistent with the recommendations of the ALRC Report 124, Equality, Capacity and Disability in Commonwealth Laws. [As opposed to a more vague test under the Courts' rules.]
Recommendation 48 The Australian Government should work with state and territory governments to facilitate the appointment of statutory authorities as litigation representatives in family law proceedings. [Fair enough.]
Building Accountability and Transparency
Recommendation 49 Section 115 of the Family Law Act 1975 (Cth) should be amended to expand the Family Law Council’s responsibilities to include: monitoring and regular reporting on the performance of the family law system; conducting inquiries into issues relevant to the performance of any aspect of the family law system, either of its own motion or at the request of government; and making recommendations to improve the family law system, including research and law reform proposals. [If the Family Law Council is resourced and allowed to sit.]
Recommendation 50 The Family Law Council should establish a Children and Young People’s Advisory Board, which would provide advice and information about children’s experiences of the family law system to inform policy and practice. [Excellent.]
Recommendation 51 Relevant statutes should be amended to require that future appointments of all federal judicial officers exercising family law jurisdiction include consideration of the person’s knowledge, experience, skills, and aptitude relevant to hearing family law cases, including cases involving family violence. [BRILLIANT!]
Recommendation 52 The Law Council of Australia should work with state and territory regulatory bodies for legal practitioners to develop consistent requirements for legal practitioners undertaking family law work to complete annually at least one unit of continuing professional development relating to family violence. [Great for accredited specialists, but..
In the midst of the Australian Law Reform Commission review (still underway) and the proposal by Attorney-General Christian Porter to merge the Family Court of Australia and the Federal Circuit Court of Australia seemingly dead in the water (because Parliament is not sitting until the election, and the Bill was not passed), the Chief Justice of the Family Court and Chief Judge of the Federal Circuit Court, Will Alstergreen has announced that the rules will be harmonised:
"The legal profession and the community have called for changes to the family law system. In response, the Courts are taking a major step to improve family law in Australia. This includes establishing, for the first time, a common set of rules, forms and case management in the Family Court of Australia and Federal Circuit Court of Australia.
"Thousands of families are involved in family law proceedings in Australia every year. The current system has been criticised as being confusing, inefficient and causing unacceptable delays. This is partly because it involves two different sets of rules, forms and processes. In an effort to rectify this problem, a working group of Judges of both Courts was established in February and government funding has been secured to properly resource this project. This endeavour has been a key priority of Chief Justice Alstergren since his appointment as Chief Judge of the Federal Circuit Court of Australia in October 2017.
"The Chief Justice is pleased to announce that former Federal Court Judge, the Hon Dr Chris Jessup QC, has this week accepted an invitation to Chair the Joint Rules Harmonisation Working Group. Dr Jessup QC will oversee the harmonisation project, and assist in developing a consistent approach to case management which places a priority on identifying risk to children.
“Dr Jessup QC, assisted by two barristers, will work closely with the Judges in the Working Group to draft a common set of rules and forms, and will be actively involved in consulting with all Judges, the profession and other stakeholders that have an interest in the jurisdiction. The appointment of an independent Chair to this position will ensure objectivity, transparency and confidence in the process. “Despite the best efforts and integrity of individual Judges of both Courts, and the assistance of the profession, there has been a long history of unacceptable delays in having family law cases heard and determined. That needs to change as does our family law system, and I call upon the profession and other stakeholders to support this vital project as the Courts endeavour to improve access to justice for Australian families. The community should expect no less,” Chief Justice Alstergren said."
Stephen Page, Harrington Family Lawyers, Brisbane firstname.lastname@example.org 61(7) 3221 9544
In November I had the pleasure on my first outing as a partner of Page Provan, family and fertility lawyers, of presenting to the Australian Human Resources Institute Diversity and Inclusion Network, just before the UN International Day for the Elimination of Violence Against Women.
There are many definitions of domestic violence, but the current definition in the Domestic and Family Violence Protection Act 2012 (Qld) is a useful one as it seems to capture the range of behaviour that constitutes domestic violence. Section 8 of that Act defines domestic violence as follows:
“(1)"Domestic violence" means behaviour by a person (the "first person") towards another person (the "second person") with whom the first person is in a relevant relationship that —
(2) Without limiting subsection (1), domestic violence includes the following behaviour —
(a) causing personal injury to a person or threatening to do so;
(b) coercing a person to engage in sexual activity or attempting to do so;
(c) damaging a person’s property or threatening to do so;
(d) depriving a person of the person’s liberty or threatening to do so;
(e) threatening a person with the death or injury of the person, a child of the person, or someone else;
(f) threatening to commit suicide or self-harm so as to torment, intimidate or frighten the person to whom the behaviour is directed;
(g) causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the person to whom the behaviour is directed, so as to control, dominate or coercethe person;
(3) A person who counsels or procures someone else to engage in behaviour that, if engaged in by the person, would be domestic violence is taken to have committed domestic violence.
(4) To remove any doubt, it is declared that, for behaviour mentioned in subsection (2) that may constitute a criminal offence, a courtmay make an order under this Act on the basis that the behaviour is domestic violence even if the behaviour is not proved beyond a reasonable doubt.
(5) In this section —
"coerce", a person, means compel or force a person to do, or refrain from doing, something.
"unauthorised surveillance", of a person, means the unreasonable monitoring or tracking of the person’s movements, activities or interpersonal associations without the person’s consent, including, for example, by using technology.
• reading a person’s SMS messages
• monitoring a person’s email account or internet browser history
• monitoring a person’s account with a social networking internet site
• using a GPS device to track a person’s movements
• checking the recorded history in a person’s GPS device
"unlawful stalking" see the Criminal Code , section 359B.”
That Act also talks about exposing a child to domestic violence. This is contained in section 10:
Family violence is a wider term than domestic violence. Family violence typically is the same kind of behaviour occurring within members of a family, as oppose to merely that occurring between two partners in a nuclear relationship.
Statistics have indicated that domestic violence occurs at higher rates within lower socioeconomic families, but to assume that domestic violence does not occur within well-off families is a mistake. Looking at police maps many years ago, it was interesting to see that in Brisbane there were high rates of police responses in areas such as Logan City, but in suburbs such as Kenmore and Brookfield there were no police responses to domestic violence. The assumption therefore would have been that no domestic violence occurred in those well-to-do areas.
That assumption was a mistake. I have certainly acted for many clients from those areas who complained of domestic violence committed by their husbands. If there were any room for doubt, the words that should resonate are those of a woman living in Brookfield killed by her husband – Alison Baden-Clay. Her husband, it will be remembered, had an affair, killed Alison, then drove her body to a local bridge, where her body was dumped and then returned home. The children were at home at the time their mother was murdered.
The good new – domestic violence rates are going down
In recent years, domestic violence has been a topic frequently talked about. The media in particular has been much more responsible in reporting domestic violence. In highlighting the domestic violence stories, not only is there pressure upon politicians and government agencies to act, but victims of domestic violence in seeing the stories realise that they may not be alone after all, and therefore seek help. The ABC in particular has been very keen in the last few years in highlighting domestic violence, with a counter on any story as to the number of attendances by police across Australia on a particular day. The counter changes during the course of the day, as the day progresses.
According to the ABC, this number is calculated in part by statistics for each State and Territory. The most recent for Queensland in its story is the 2014-2015 year when Queensland Police attended 71,777 domestic violence occurrences.
As I said, the good and surprising news is that the rate of domestic violence in Queensland at least is going down.
I was alarmed when Dame Quentin Bryce was undertaking her Not now, Not never review into domestic violence responses in Queensland and it was seen that the rate of domestic violence was going inexorably up. I wondered whether it was merely greater reporting or whether we had a more fundamental problem which was a greater rate of domestic violence – even though the first version of the Domestic and Family Violence Protection Actwas passed as long ago as 1989. The view of Quentin Bryce was that the rate of domestic violence was going up.
By contrast with that figure of 71,777 domestic violence occurrences that Queensland Police attended to in 2014-2015, by the 2016-2017 year that number had decreased to 62,264.
The service which assists with domestic violence in Queensland, DV Connect, says:
handles 55,000 calls a year in Queensland;
helps 150 women and children to move per month to safety;
helps 12-20 pets per month to safety;
most calls are from South East Queensland, especially Brisbane;
9% of the moves to safety are in far North Queensland, where the first trip is typically by plane;
83% of the women callers are Anglo-Australian;
10% of the women callers are Aboriginal/Torres Strait Islander (which I note is double their group as to the proportion of population) but 26% of those require a move to safety.
According to the Australian Bureau of Statistics:
· The Aboriginal and Torres Strait Islander population as of 2016 in Queensland was 4.6% of the broader population. The Australian Bureau of Statistics estimate that the Queensland population is currently five million. 4.6% of 5,000,000 is 230,000.
· 7% of callers are non-English speaking background and represent 11% of all crisis intervention; up to 40% of whom need crisis intervention and an interpreter.
The number of domestic violence applications is another indicator that statistics are going down. In the 2016-2017 year there were 32,072 applications. In the 2017-2018 year there were 30,381 applications for protection orders, or a drop of 5.27%. In the 2018-2019 year to date (to 31 October 2018) there were 9,807 applications for protection orders.
Applications to vary protection orders have remained stable. There were 10,129 variation applications in the 2016-2017 year, compared to 10,243 in the 2017-2018 year, or an increase of 1.13%.
With rare exception, the drop in numbers is occurring across the State.
Table 2. DVO applications (Magistrates Courts with the most lodgments) initiating applications only
2018-19 YTD (to 31 October 2018)
No. variance 2016-17 to 2017-18
% variance 2016-17 to 2017-18
What it is telling is that almost 71% of all applications are brought by police, just under 29% are brought privately and 0.48% or 47 applications are made by the Court. There is the power given to Courts on sentencing on their own motion to make protection orders.
It is most telling in my view that so many applications are made by police. The practice around Queensland used to vary dramatically. In some parts of Queensland (such as rural areas) applications were overwhelming made by police, but in busy registries such as the Gold Coast and Beenleigh Magistrates Courts, police often left it to the aggrieved to make their own applications. This attitude by police seems to be from a systemic approach over many years, but particularly following the not now, not ever report.
The Domestic and Family Violence Protection Act 1989 (Qld) was originally enacted following the report of the Queensland Domestic Violence Task Force, Beyond these Walls (1988), commissioned by the then national party government. The report was prescient in its comments about police:
“Members of the Task Force believe that a circular phenomenon is currently operating in respect of the interface between police and incidents of domestic violence. Victims do not report spousal assaults to police because of a belief that police are unable and/or unwilling to provide effective protection. Police are reluctant to actively intervene amongst other factors because of a perception that the victims do not welcome police involvement. Police officers believe that they have neither the mandate nor the powers to effectively intervene in cases of domestic violence. Victims of domestic violence generally perceive that the police have neither the necessary powers, nor the will to pursue these cases.
As stated at the beginning of this chapter, Task Force members believe that law enforcement officials have a critical role to play in the management of domestic violence and that appropriate intervention by police officers can avert further violence in the short term by arrest, or the removal of one or other party, or through the initiating of protectional proceedings…Task Force members also believe that while the police response is clearly a “provisional solution to a long range problem” it can have beneficial flow-on effects through deterrence of the offender, and through breaking the cycle of violence dynamic between the couple. However, significant changes are needed to current police practices to effect these outcomes.
Thirty years ago this year the UN Convention on the Rights of the Child was entered into. Every country or the world, including the failed States of Somalia and Yemen, have signed the Convention – except one, the United States.
Ironically, the Convention was signed at New York of all places- on 20 November 1989. Ten years ago, leading human rights NGO, Human Rights Watch, called on the US to ratify the Convention. Jo Becker, children’s rights advocacy director for Human Rights Watch said:
“The United States’ failure to ratify the Convention on the Rights of the Child is an embarrassment. It damages the US’ reputation as a human rights leader and undermines its ability to improve the lives of children around the globe.”
· The best interests of children must be the primary concern in making decisions that may affect them.
· Governments have a responsibility to take all available measures to make sure children’s rights are respected, protected and fulfilled.
· Governments should respect the rights and responsibilities of families to direct and guide their children so that, as they grow, they learn to use their rights properly.
· Children have the right to a legally registered name, officially recognised by the Government.
· Children have the right to a nationality. Children also have the right to know, and as far as possible, to be cared for by their parents.
· Children have the right to an identity. Government should respect children’s rights to a name, a nationality and family ties.
· Children have the right to live with their parents, unless it is bad for them. Children whose parents do not live together have the right to stay in contact with both parents, unless this might hurt the child.
· Governments should take steps to stop children being taken out of their country illegally. The Convention’s Optional Protocol on the sale of children, child prostitution and child pornography (which Australia has signed) has a provision that concerns abduction for financial gain.
· When adults are making decisions that affect children, children have the right to say what they think should happen and have their opinions taken into account. This does not mean that children can now tell their parents what to do.
· Children have the right to think and believe what they want and to practice their religion, as long as they are not stopping other people from enjoying their rights.
· Children have the right to meet together and to join groups and organisations, as long as it does not stop other people from enjoying their rights.
· Children have a right to privacy.
· Children have the right to be protected from being hurt and mistreated, physically or mentally. Governments should ensure that children are properly cared for and protect them from violence, abuse and neglect by their parents, or anyone else who looks after them.
In Australia, the Convention is not part of domestic law. Nevertheless, many Australian laws, such as the Family Law Act, have been drafted to make sure that they comply with the Convention. The Family Law Act says in section 60B(4) an additional object of Part VII of that Act, which deals with parenting, is to give effect to the Convention. Most recently a review of Victoria's adoption laws has called for changes to the law there so that there is compliance with the Convention.
The High Court in Teoh’s case(1995) said that decision makers, including therefore judges, should, absent laws or regulation to the contrary, take into account the Convention because parents and children had legitimate expectations that Australia would comply with its international obligations.
Stephen Page, Harrington Family Lawyers, Brisbane email@example.com 61(7) 3221 9544
For those of us who attended the national family law conference in Brisbane, there was an element of controversy between the Government and Opposition. Attorney-General Christian Porter spoke at length about his desire to reform the Family Court by:
consolidating the Family Court and Federal Circuit Courts into two division of the one structure
making any appeals be heard by a single judge of the Federal Court.
The appeal proposal is radical as:
current appeals are dealt with by specialist appeal judges from the Family Court. No longer.
current appeals from the Family Court are heard by three judges from the Family Court. Again, no longer. Typically appeals around the country at that level are heard by three judges- no matter which court is dealing with the matter- so that matters can be dealt with thoroughly and fairly. It is perceived that the risk of having one judge hearing appeals has a level of risk. Many appeals from the Federal Circuit Court are dealt with by one Family Court judge now, but more complex matters are heard by three judges.
Federal Court judges have no expertise at all in family law. They do not deal with child support, parenting, property settlement or the nuances of domestic violence or sexual abuse. Instead, they deal with commercial matters such as bankruptcy, liquidation of companies, trade practices and defamation.And yet the Attorney's view is that they should eb the judges to handle all these appeals.
No clue has been given that more resources will be supplied to the Federal Court to handle these appeals.
The Government is keen on having the laws pass, even though the Australian Law Reform Commission's report into the family law system is not due until April 2019.
It is unlikely that the laws will pass this Parliament due to the lack of sitting days to the next election, and the Opposition being opposed to this proposal.
The position of the Opposition was put clearly at the national family law conference, and since then by Opposition MP Graham Perrett. This is what he recently said in Parliament:
"I rise to speak on behalf of the shadow Attorney-General and member for Isaacs, who is in an important intelligence committee meeting which unfortunately prevents him from being in the chamber. I will speak on two bills, the Federal Circuit and Family Court of Australia Bill 2018 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018.
I'll say at the outset that Labor has always been strong on family law reforms. It was Labor, the Whitlam government, with Attorney-General Lionel Murphy, who created no-fault divorce in Australia. It was Labor and Gough Whitlam who created the family courts and has stood up for them ever since. Our family court system is considered a world-leading model, imperfect though it may be, which is something I will expand on later.
Reform should always be well considered, and that has not been the case here—not at all. These bills have been subjected to no consultation with stakeholders, no consultation with the very people who use the Family Court system, the people who live and breathe it, day in and day out—the families and those who advocate for them, the lawyers who are daily in these courts, the judges presiding over the courts, the peak bodies of the professionals who use the courts and the organisations that advocate for victims of family violence. None of them were consulted about these radical reforms before they were introduced. Instead, these reforms have simply been forced upon them, whether they like it or not. But we will not ignore what the people who know the most about the family law system have to say. That is arrogant and is no way to roll out any reform, let alone reforms that are the most significant changes proposed to the family courts since they were created 43 years ago in 1975. Labor will not be supporting these bills in the House. We will not be supporting these bills for a number of reasons—firstly, due to the woeful process by which these reforms have come about. As I just mentioned, these bills are not the result of consultation—anything but. It's been more like tin-ear-itis. These bills are the result of a management consultant's report done in eight weeks by number-crunchers who have barely set foot in an operating family court. There is a pretty basic law in law making: if you don't consult, you make bad law. When there are families and children's lives at stake, this is not something that Labor can accept.
That brings me to the second reason why Labor will not vote for these bills in the House today. There is a Senate inquiry on foot into this proposed legislation. It is a Senate inquiry which it seems this government has been very afraid of. Initially, the government tried to have this Senate inquiry completed in November, giving just weeks for the stakeholders who had not previously been consulted to write submissions on a 300-page bill. Rightly, the Senate decided it would not allow that to happen. Through a series of votes, the committee has been instructed by the democratically elected Senate not to report on this bill until April 2019. That would allow for a proper amount of time for hearings and for the completion of the landmark Australian Law Reform Commission review into the entire family law system. Yet, even despite the clear will of the Senate for proper time to be given for the consideration of these bills, bizarrely, the government are putting them to the House today. This is clearly premature. Why would they do this? It is unclear why they have done this and why Attorney-General Porter chose this course of action. Perhaps the Morrison government have run out of other things to talk about?
The third reason Labor will not be supporting these bills is that the case for this particular change has not been made. That is partly due to, I suspect, the very poor consultation process. The Morrison government has little evidence, for example, for its heroic claims that 8,000 extra cases could be cleared each year if these reforms pass the parliament. It is also due to the blindness of this government to the other key factor in the problems in the Family Court—that is, funding. There has been a huge increase in demand on the courts, and funding has just not kept up.
A key suggestion of the former and very well-respected Chief Justice of the Family Court Diana Bryant for an increase in the number of registrars in the court has been completely ignored by Attorney-General Porter. Moreover, the systemic degradation of community legal services under this government has meant we have witnessed an increase in unrepresented litigants, particularly in family law. Sadly, unrepresented litigants clog up the legal system. Why aren't we talking about these issues? It's because the government doesn't want to.
Unlike this Morrison government, Labor believe in consulting. After these bills were introduced, I hosted a roundtable forum in Brisbane with Senator Murray Watt. We invited family law professionals, peak professional bodies and family violence prevention advocates all to come together so that we could ascertain their initial response to the family law bills. Understandably, almost all of those in attendance had not had time to fully digest the bills and the explanatory memorandum, which together run to more than 1,000 pages. However, their first impressions were not good. Every person who attended my roundtable, all of them with years and years— in some cases decades—of experience with the work of the Family Court, had multiple concerns about many aspects of these bills. These bills, introduced by Attorney-General Porter before he completes his first year in the job, effectively herald the abolition of Gough Whitlam's Family Court of Australia.
The Family Court of Australia was set up in 1975 as a specialist court with specialist judges to resolve the most complex of family disputes. It is a superior court of record. These bills purport to merge the Family Court of Australia with the Federal Circuit Court of Australia. Merge is a nice, soft word, but it contains a hard reality. The Federal Circuit Court is a lower federal court which has jurisdiction for not only family law but general family law jurisdictions as well, such as fair work and immigration law. The explanatory memorandum to the bill says the bill will bring these two courts together 'into an overarching, unified administrative structure to be known as the Federal Circuit and Family Court of Australia'. However, in effect, they would remain as two distinct courts with different names.
The Family Court of Australia would be known as the Federal Circuit and Family Court of Australia (Division 1). The Federal Circuit Court of Australia would be known as the Federal Circuit and Family Court of Australia (Division 2). However, Attorney-General Porter's vision is to have one court to hear family law cases. Attorney General Porter favours all family matters being heard by the lower-level Federal Circuit Court, or division 2, in his brave new world. He will kill off the superior Family Court of Australia by attrition. This is not fearmongering; we know this because Attorney-General Porter has said as much himself. He told the Australian newspaper in May this year:
“The intention is that we won't reappoint into Division 1 … Over time there will no longer be a Division 1.”
Attorney-General Porter is, effectively, abolishing the Family Court of Australia, not amalgamating it. He's abolishing it; he's wiping it out. The Attorney-General is annihilating Gough Whitlam's legacy. The Law Council in a media release said:
“Our current understanding is the Australian Government will not make any new appointments of judges to the specialised Division 1 of the new court, meaning the quality of the family law justice system would reduce under this change. Australians may no longer have access to a court that specialises in family law.”
That's a quote from the Law Council of Australia—very well respected. The current provisions of the Family Law Act provide that judges should not be appointed to the Family Court of Australia unless 'by reason of training, experience and personality, the person is a suitable person to deal with matters of family law.' That provision is repeated in the bill for judges appointed to division 1, except Attorney-General Porter is not intending to appoint any. But the corresponding provisions for judges appointed to division 2 do not require such specialisation of training, experience and personality for matters of family law. Rather than a specialist superior court of record to hear the most complex family law matters, we would be left with one generalist court to hear every family court matter, without the breadth of experience and training or the personality that is necessary to deal with the most complex of family law matters, including those that involve family violence. At stake are the most vulnerable families and, most importantly, the children who rely on such folk to provide them with a place they can call home. Surely they deserve to have a specialist making the decisions that will impact on them, often for the rest of their lives.
The Family Court of Australia currently has an appellate division with senior judges assigned to sit in that division and hear appeals from both the Federal Circuit Court and the Family Court. Appeals are heard by three judges unless the Chief Justice determines otherwise. Attorney-General Porter's bills will fundamentally change the way family law appeals are dealt with. There will no longer be an appeals division of what is now the Family Court of Australia; that will be completely abolished immediately. Appeals from a decision of either a division 1 judge or a division 2 judge of the FCFCA will be heard by a single Federal Court judge. I repeat: those appeals will be heard by a single Federal Court judge.
Now, the Federal Court does not hear any family law matters; it has no family law jurisdiction. While I'm sure that the judges who sit on the Federal Court are extremely capable judges, they do not have any experience hearing family law matters and they will be hearing appeals as a single judge, not with the checks and balances that come with three judges sitting together. Unlike contract law, commercial law, conveyancing or most other areas of law, judicial discretion is almost always present in family law judgements. On appeal, the collective judicial wisdom and skill of three judges provide a check and balance to that discretion. If this bill passes, we will have a situation where one judge's discretion may be replaced by another judge's discretion on appeal, and that appellate judge may have no experience hearing family law matters at all. You can see the problem.
I particularly worry about developing areas of the law and how these changes will affect the progression of family law jurisprudence. The really difficult issues that come before the appellate division of the Family Court require not only a skilled legal mind but a breadth of experience of those issues and how they have been dealt with in the lower courts over many years. I'll give you an example of just one of the very difficult issues that this court has dealt with in the last year. It had long been a requirement that stage 2 treatment of gender dysphoria required an application to the Family Court for a determination of the child's competence, known as Gillick competence, before any treatment could be undertaken by medical professionals. This was required even if the child consented, both parents had no objection and all of the treating medical practitioners agreed that the child was competent to understand the treatment. I should point out that, in this case, Australia was the only country in the world that required court approval— that is, a legal process—for stage 2 treatment, which is effectively a medical procedure. Nevertheless, Family Court judges had no choice but to follow previous decisions of the full court that the court's authorisation was required. The only way to change that situation, bar a legislative change, was for the full court to decide that the previous full court decision was no longer good law.
That did happen in Re Kelvin, decided last year by a full bench of the full court of the Family Court. Five experienced Family Court appeal judges heard that case. That decision in Re Kelvin will not have any impact on the vast majority of Australians; I understand that. But, for some young Australians and their families, this change to the law will be life-changing. In some cases, it will even be life-saving. Decisions like those in Re Kelvin are not easy, and they are not straightforward. But they are very important for some Australian citizens.
Of course, parliament can always make changes to the law. But change such as occurred through Re Kelvin is not always readily taken up by political lawmakers. The previous Attorney-General, former Senator Brandis, was lobbied for a very long time to make that very change to the law. I must say: I thought he was very receptive to the change, but there was the problem of the political climate in which he was operating, especially around the same-sex marriage legislation.
As a co-chair of the bipartisan Parliamentary Friendship Group for LGBTIQ Australians, I, along with the member for Leichhardt, Senator Rice and the member for Indi, had called on the Attorney-General to make this, on one level, quite simple and quite appropriate change to the law. But it was actually the five appellate judges of the Family Court who bravely changed this law, not this parliament. That's just one example of the importance of having an independent, specialist judiciary with a strong appellate division who are able to use their combined skill and experience to tackle the difficult issues that society will continue to throw at them.
With due respect to the Federal Court judiciary, I am deeply concerned that appeals will no longer be heard by the very experienced specialists of the appellate division of the Family Court and will mostly be heard by only one judge. Attorney-General Porter has said publicly:
“Having more appeals heard by a single judge of the Federal Court will free up considerable judicial resources to help reduce delays in family law appeal matters and in first instance matters.”
If the proposed changes are merely cost-saving measures, this is short-sighted at best. This year I was honoured to address the 18th National Family Law Conference, held in Brisbane in October. These bills were of course a hot topic of conversation at that conference. Attorney-General Porter also made an address to the National Family Law Conference. Remembering that this Attorney-General had not consulted stakeholders prior to the introduction of these bills, you would think he would have been at pains to explain to the attendees why it was necessary to make the changes he has proposed—in effect, to argue his case for change in front of a conference full of lawyers. Instead, Attorney-General Porter used his address to criticise the professionals who spend their lives supporting, advocating for or making decisions about the most vulnerable families in Australia.
One telling insight into his address was what Attorney-General Porter said in discussing when a matter is considered complex:
“When I initially asked the question 'how do we measure complexity?', frankly I was expecting a detailed multifactor analysis weighted to produce measures of complexity based on a long list of salient criteria (of which estimated trial length would be just one).”
Essentially, what Attorney-General Porter expected was a spreadsheet that would neatly dissect the lives of those using the court system. Would any of us want our family lives to be reduced to a spreadsheet? Would it even be possible for a spreadsheet to reflect the innumerable possible combinations of complexities that some vulnerable families experience? How can the effect of any one issue on a particular family be reflected in a spreadsheet? Numbers mean something, but they rarely mean everything. In this case, Attorney-General, they mean nothing at all to families at breaking point. These families need a well-resourced, experienced, specialist court to hear their issues, ensure they are safe and protected in the process, and, where necessary, make a decision. I am not convinced these bills will meet the needs of Australian families.
Attorney-General Porter arrogantly concluded his speech at the National Family Law Conference by saying:
“…I am not going to resile from that process of reform.”
The problem is that Attorney-General Porter has not undertaken any process of reform other than introducing a bill that proposes radical changes to the family law system. We should wait for the proper process to occur. The Senate inquiry should be allowed to complete its hearing and report. The ALRC review should be completed and the report considered before radical reform like that which is proposed is undertaken. These are the many reasons why Labor does not support these bills."
I took part in the family law roundtable in Brisbane- because I was asked and available. If the Government had asked me to participate in a similar roundtable to provide feedback, I would have done so too.
Stephen Page, Harrington Family Lawyers, Brisbane firstname.lastname@example.org 61(7) 3221 9544
I am delighted to announce the launch of Page Provan, family and fertility lawyers. I am in partnership with Bruce Provan. Our focus remains on achieving quality outcomes for our clients.
For over 13 years I was a partner at Harrington Family Lawyers, first with Julie Harrington and then also with Bruce Provan. In late November, Julie Harrington announced that she was retiring from the practice, effective immediately.
Bruce and I decided in light of Julie’s retirement from the practice that it was appropriate that to reflect the new ownership that it be called Page Provan. I am excited to continue to provide services to my clients and hopefully will do so for many years to come. Our office address of level 12, 239 George Street, Brisbane, has not changed, nor our phone number: +61 7 3221 9544. My email has changed to email@example.com.
Stephen Page, Harrington Family Lawyers, Brisbane firstname.lastname@example.org 61(7) 3221 9544