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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.

Here is my paper prepared for the presentation.


AUSTRALIAN HUMAN RESOURCES INSTITUTE

DIVERSITY AND INCLUSION NETWORK


How workplaces respond to domestic violence

by Stephen Page[1]


What is domestic violence?

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 —

(a)        is physically or sexually abusive; or
(b)        is emotionally or psychologically abusive; or
(c)        is economically abusive; or
(d)        is threatening; or
(e)        is coercive; or
(f)        in any other way controls or dominates the second person and causes the second person to fear for the second person’s safety or wellbeing or that of someone else.

  (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;
(h)        unauthorised surveillance of a person;
(i)         unlawfully stalking a 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.

Example:
• 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:
“A child is
"exposed" to domestic violence if the child sees or hears domestic violence or otherwise experiences the effects of domestic violence.
Example:

• overhearing threats of physical abuse
• overhearing repeated derogatory taunts, including racial taunts
• experiencing financial stress arising from economic abuse
• seeing or hearing an assault
• comforting or providing assistance to a person who has been physically abused
• observing bruising or other injuries of a person who has been physically abused
• cleaning up a site after property has been damaged
• being present at a domestic violence incident that is attended by police officers”

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.[2]

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.[3]

The service which assists with domestic violence in Queensland, DV Connect, says:[4]

  • 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[5].  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
Location
2013-14
2014-15
2015-16
2016-17
2017-18
2018-19 YTD (to 31 October 2018)
No. variance 2016-17 to 2017-18
% variance 2016-17 to 2017-18
Southport
2,391
2,691
3,515
3,346
2,945
966
-401
-11.98%
Beenleigh
2,034
2,170
2,594
2,509
2,384
811
-125
-4.98%
Ipswich
1,452
1,655
1,783
1,975
1,731
503
-244
-12.35%
Townsville
1,397
1,473
1,845
1,780
1,833
581
53
2.98%
Brisbane
1,351
1,436
1,956
1,935
1,862
643
-73
-3.77%
Cairns
1,195
1,205
1,261
1,319
1,243
384
-76
-5.76%
Caboolture
919
946
1,168
1,141
1,037
350
-104
-9.11%
Rockhampton
887
785
1,018
999
953
328
-46
-4.60%
Maroochydore
847
946
1,104
1,060
1,041
325
-19
-1.79%
Toowoomba
753
763
845
904
868
257
-36
-3.98%
Holland Park
697
711
895
835
777
228
-58
-6.95%
Pine Rivers
675
811
874
855
864
318
9
1.05%
Redcliffe
619
668
773
800
758
238
-42
-5.25%
Cleveland
607
665
751
796
735
224
-61
-7.66%
Richlands
571
577
696
751
698
278
-53
-7.06%
Mackay
623
639
791
783
753
236
-30
-3.83%
Bundaberg
385
504
724
659
639
163
-20
-3.03%
Mt. Isa
495
537
764
892
654
207
-238
-26.68%
Sandgate
408
407
534
473
435
122
-38
-8.03%
Gladstone
472
505
559
558
627
188
69
12.37%

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.

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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 spage@harringtonfamilylawyers.com 61(7) 3221 9544
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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 spage@harringtonfamilylawyers.com 61(7) 3221 9544
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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 stephen@pageprovan.com.au.

Stephen Page, Harrington Family Lawyers, Brisbane spage@harringtonfamilylawyers.com 61(7) 3221 9544
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It's easy to be overwhelmed when contemplating the path to separation and beyond. Will I ever find love again? Will the children and I be safe? Will I have financial security? Will i go bankrupt? All of your fears may be legitimate. The reality is most of your fears won't happen.

When couples separate, they get out the other side- and keep living. Rather than catastrophise the enormity of everything going wrong, it is better- and more realistic- just to focus on today. Conquer today, and then tomorrow you can conquer tomorrow, and so on.

Just climbing a seemingly endless series of steps seems overwhelming. Don't look at the overwhelming number. Just look at one step. Just take  that one step at a time. Believe in yourself. You will get there. It might be a bit quicker or slower than others. Who cares? It is your journey. You will get to the end of the steps and shout: "HOORAY! I did it!" And then keep going with the rest of your life.
Stephen Page, Harrington Family Lawyers, Brisbane spage@harringtonfamilylawyers.com 61(7) 3221 9544
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Sometimes as a divorce lawyer, as I have been for over 30 years, it is easy to forget the power that I and other lawyers have to change people’s lives – hopefully for the better.  Today I received a card from an old client.  On the front of the card was a diamond with differing coloured light going in every direction and the words “shine bright”.  

Inside the card contained a photograph of a young girl, my client’s granddaughter, joyfully running.  My client wrote these words in the card, which moved me to tears of joy, for my actionsthat had helped her and her granddaughter:

            “Dear Stephen,
            I apologise for the long wait in getting this photo of [my granddaughter] to you but I wanted to make sure it was a photo that signified her freedom from harm and her love of life.  I think this one says it all.  Thanks to you and your amazing team, she will learn to love and respect life.
            Thank you, once again, for saving her life.
            Fond regards”
Stephen Page, Harrington Family Lawyers, Brisbane spage@harringtonfamilylawyers.com 61(7) 3221 9544
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Recently I caught up with an old client.  Many years ago we had acted on his divorce.  He and his wife had sorted out what they were going to do about their property settlement and, more importantly, how they were going to look after their kids.   

My old client is an insightful professional whom I always considered to be wise and a direct speaker.  

He told me:
“The number one lesson I learnt was this.  When you are looking at splitting up – give your marriage your best go ever.  You want to make sure that you have done everything possible to have your marriage work because if it ends then at least you don’t feel guilty about it ending and you can say: “At least I tried”.”

He said that since his marriage breakup, he had saved a couple of marriages by encouraging his friends to give it another go.  

 The second thing my old client learnt was that things change.  “Kids grow up”.  Arrangements have to be flexible to make sure that the kids are provided for.

The third thing he learnt was that: “We have to be consistent with our kids”.  Sometimes his kids would be playing up and he would ask them whether they did so at mum’s place.  He said: “Sometimes, in a moment of honesty, they would look down and say that they weren’t allowed to do that at mum’s place”.  He would reply: “The same rules apply here as at mum’s place.  If you’re not allowed to play up at mum’s place like this, then you’re not allowed to play up like that here”.  

The fourth thing that he learnt was to value the other parent.  He said that he had criticised the mother of his children to his children, which he realised after a short period was a mistake.  One day when his kids ran from their mum’s home into the car, all excited to see him, he said: “Go out.  Give your mum a hug.  Tell her you love her.  She would be hurt that you left without saying goodbye.”

The last thing that he learnt was that going through divorce is costly.  “I’ve never worked any harder than I have on any other occasion”, he said.  He said that it was important to get good legal advice and that: “You have to be realistic”.  He was making the point about being realistic not in about cutting a deal with your former spouse but also making sure that reality reigned when you got on with your life after it was all over.

Stephen Page, Harrington Family Lawyers, Brisbane spage@harringtonfamilylawyers.com 61(7) 3221 9544
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Today I received one of those rare events, a call from an Australian colleague who was overseas thanking me for my work which helped determine a court case.

It turns out that the parents had separated, and the mother was concerned that the father might abduct the children overseas. The automatic reaction was that the children were protected because they were on the Airport Watchlist. The Watchlist, which is operated by the Australian Federal Police and the Department of Foreign Affairs and Trade, is a check at the airport (or sea ports) so that if someone is named on the Watchlist, they won't be allowed to leave Australia. It is assumed that the Watchlist is perfect.

My colleague looked high and low but unable to show any case that threw doubt on the Watchlist.

Until she came across a blogpost I had written on this blog. This was because many years ago a Mr Saad had been prevented from taking the child overseas and requiring him to surrender his passport. His solution? To go to the Jordanian Embassy and persuade them to issue a new passport with the child endorsed on his passport. The result? He was able to take the child to Jordan.

Not surprisingly, things did not go well for Mr Saad later when he returned to Australia.

I have long been of the view that when there is a real risk of international child abduction, prevention is better than cure. This means taking a series of steps to minimise the chances of the child being abducted. Use of the Watchlist is one of those steps. Another is taking great care with the drafting of court orders, for example.  Reliance on just one step- such as the Watchlist- can be particularly risky.

My blog referred to the Saad case- and citing the Saad matter  was instructive in changing the outcome of the case- because the issue of risk of taking the child to an Islamic country in the Middle East was properly considered, with orders in place to prevent the child leaving.

My colleague said that there was a general assumption that if the child were being removed to a Hague Convention country, it was thought therefore that there was minimal risk. Australia is a party to a number of conventions signed at The Hague in the Netherlands, commonly called Hague Conventions. The 1980 Hague Convention concerns international child abduction. Regrettably, just because a country has signed up to the 1980 Hague Convention does not mean that there is a guarantee that the child will come back. Some countries are very good at compliance, others not so. 

The phone call was humbling. I had never expected to have had that impact. I said: "You have made my day." My colleague's response: "You have changed the mother's life, for the better."
Stephen Page, Harrington Family Lawyers, Brisbane spage@harringtonfamilylawyers.com 61(7) 3221 9544
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In February I presented for Television Education Network about defining the best interests of the child in family law parenting matters. Here is my paper: 

Defining best interests of the child in
family law parenting matters
Stephen Page[1]

INTRODUCTION
Of course we often bandy about the term best interests of a child on a daily basis, but it is good to remember where it comes from.  Section 60CA of the Family Law Act merely says:
            “In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
The term best interests is a variant of several terms used over the years, but ultimately the current form comes from the International Convention on the Rights of the Child
Given that it is a particular difficult convention to find on the web, I have put the Austlii reference in the footnote[2].
The language of best interests is taken from Article 3 of the Convention:
“1.       In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
 2.        States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
 3.        States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall confirm with the standards established by competent authorities, particularly in the areas of safety, health, and the number of suitability of their staff, as well as competent supervision.”
Section 60B, which I am sure that you are well familiar with, sets out the objects of Part VII of the Act.  Much of the language of section 60B comes directly from the Convention.
The provisions with which we are all too familiar:
Section 60B(2)(a) and (b):
            “The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)         Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)         Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives).”
Article 7.1 provides:
            “The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.”
Article 8.1 provides:
            “States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.”
Article 9.1 provides:
            “States Parties shall ensure that the child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.”
Article 9.3 provides:
            “States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both contacts on a regular basis, except if it is contrary to the child’s best interests.”
Article 10.2 provides, relevantly:
            “A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and direct contacts with both parents.  Towards that end and in accordance with the obligation of States Parties under Article 9, paragraph 1, States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country…”
Often we forget about the Convention but one of the additional objects of Part VII, by virtue of section 60B is to give effect to the Convention. 
The Convention is not part of our domestic law, as the High Court made plain in Teoh’s case (1995)[3].  Mason CJ and Deane J stated at [25] – [29] as to the status of the Convention in Australian law:
“25.     It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute.  This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of Parliament, and not the executive.  So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law.  In this case, it is common ground that the provisions of the Convention have not been incorporated in this way…
26.       But the fact that the Convention has not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law.  Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia’s obligations under a treaty or international convention to which Australia is a party, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument.  That is because Parliament, prima facie, intends to give effect to Australia’s obligations under international law. 
27.       It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law.  The form in which this principle has been expressed might be thought to lend support to the view that the proposition enunciated in the preceding paragraph should be stated so as to require the courts to favour a construction, as far as the language of the legislation permits, that is in conformity and not in conflict with Australia’s international obligations.  That indeed is how we would regard the proposition as stated in the preceding paragraph.  In this context, there are strong reasons for rejecting a narrow conception of ambiguity.  If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail.  So expressed, the principle is no more than a canon of construction and does not import the terms of the treaty or convention into our municipal law as a source of individual rights and obligations. 
28.       Apart from influencing the construction of a statute or subordinate legislation, an international convention may play a part in the development by the courts of the common law.  The provisions of an international convention to which Australia is a party, especially one which declares universal fundamental rights, may be used by the courts as a legitimate guide in developing the common law.  But the court should act in this fashion with due circumspection when the Parliament itself has not seen fit to incorporate the provisions of a convention into our domestic law.  Judicial development of the common law must not be seen as a backdoor means of importing an unincorporated convention into Australian law.  A cautious approach to the development of the common law by reference to international conventions would be consistent with the approach which the courts have hitherto adopted to the development of the common law by reference to statutory policy and statutory materials.  Much will depend upon the nature of the relevant provision, the extent to which it has been accepted by the international community, the purpose to which it is intended to serve and its relationship to the existing principles of our domestic law. 
29.       In the present case, however, we are not concerned with the resolution of an ambiguity in a statute.  Nor are we concerned with the development of some existing principle of the common law.  The critical questions to be resolved are whether the provisions of the convention are relevant to the exercise of the statutory discretion and, if so, whether Australia’s ratification of the Convention can give rise to a legitimate expectation that the decision-maker will exercise that discretion in conformity with the terms of the Convention.  The foregoing discussion of the status of the Convention in Australian law reveals no intrinsic reason for excluding its provisions from consideration by the decision-maker simply because it has not been incorporated into our municipal law.” (Emphasis added)
Their Honours then go on to say at [31]:
            “The concluding words of Art.3.1 are “the best interests of the child shall be a primary consideration” (our emphasis).  The article is careful to avoid putting the best interests of the child as the primary consideration, it does no more than give those interests first importance along with such other considerations as may, in the circumstances of a given case, require equal, but not paramount, weight.”
An example of where legitimate expectation was the recent decision of Forrest J in Sigley and Sigley [2018] FamCA 3.  This concerned the registration of a US surrogacy order under section 70G of the Act.  The machinery provision to enable registration is under reg.23 of the Family Law Regulations.  In considering whether to exercise his discretion to allow the order to be registered, Forrest J stated at [33]:
            “The two children are both Australian citizens now as well, with legitimate expectations that the legal nature of their parent-child relationship with both of their loving parents is appropriately recognised in this country of theirs.”
A provision of the Convention which I believe has attracted too little attention in Australia is Article 8.1:
            “States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.”
We often talk about the identity of a child and how they fit in to their family constellation, and the identity of the child may be more relevant in adoption, child protection and surrogacy proceedings than those under the Family Law Act.  Nevertheless, it is worth remembering Article 8.  A useful discussion of Article 8 is contained in the English case of Re X (a child) (surrogacy: time limit) [2014] EWHC 3135 (Fam), which was a surrogacy case.  The Court was being asked to make a parentage order under English surrogacy law, under the equivalent of section 22 of the Surrogacy Act 2010 (Qld).  Mumby P said at [54]:
            “Section 54 goes to the most fundamental aspects of status and, transcending even status, to the very identity of the child as a human being: who he is and who his parents are.  It is central to his being, whether as an individual or as a member of his family.  As Ms Isaacs correctly puts it, this case is fundamentally about X’s identity and his relationship with the commissioning parent.  Fundamental as these matters must be to commissioning parents they are, if anything, even more fundamental to the child.  A parental order has, to adopt Theis J’s powerful expression, a transformative effect, not just in its effect on the child’s legal relationships with the surrogate and commissioning parents but also, to adopt the guardian’s words in the present case, in relation to the practical and psychological realities of X’s identity.  A parental order, like an adoption order, has in effect extending far beyond the merely legal.  It has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious consequences.  It creates what Thorpe LJ in Re J (Adoption: non-patrial) [1998] INLR 424, 429, referred to as “the psychological relationship of a parent and child with all its far-reaching manifestations and consequences.”  Moreover, these consequences are lifelong and, for all practical purposes, irreversible…”
The point I make about identity is that often the child’s identity is relied upon by decision-makers (typically Department of Child Safety officials) to say that the child’s identity is with its parents and family of origin.  The difficulty with this argument, I would suggest, is that the child’s lived experience and their sense of why they are and their identity may in fact be with someone else, for example, the foster carers who have cared for the child since he was a baby and who he considers for all intents and purposes to be his parents.
The matter that may not necessarily often arise under the Family Law Act, at least in a direct sense – except maybe when considering whether to grant leave to adopt under section 60G or making parenting orders in favour of a non-parent by consent under section 65G.
A rights based approach
Of course who you appear before will weigh up the factors in their own particular manner, but it is important to remember that there is a rights based approach under Part 7.  I remember when the changes to the Act occurred in 1996.  I then disagreed with what Warnick J said at the time.  He said that because there was a specific reference to rights, such as a right of a child to spend time on a regular basis and communicate on a regular basis with both parents and other significant to them that this would change the thinking of the Courts.  I thought that not much would change.   Of course he was right and I was wrong.  How frequently do we hear Judges say that a child has the right to have a meaningful relationship with both parents? 
Are best interests the only consideration?
Of course not.  Section 60CA makes plain that the best interests of a child are the paramount consideration, but as the Full Court has told us repeatedly, every case is different and needs to be decided on its own facts.  Best interests while the paramount consideration is not the only consideration.  Of course section 60CC makes things more complicated for everyone because it talks about both primary considerations and additional considerations.
Balancing of the primary considerations
The current version under the continued gender wars as to primary consideration represents a win for the women’s lobby: section 60CC(2):
“(a)     The benefits of the child of having a meaningful relationship with both of the child’s parents; and
(b)        The need to protect the child from physical or psychological harm from being subject to, exposed to, abuse, neglect or family violence.”
The criticism of the women’s lobby had was that not putting a preference on the latter meant that the impact of violence upon women and children was being minimised.  Now of course the latter prevail because in the weighing up exercise it is given greater weight: section 60CC(2A). 
Allegations of abuse, neglect and family violence
Each party must file a Notice of Risk at the beginning of the matter.  I note incidentally that the Family Court has now indicated that there are new forms which take effect next week. The temptation with these notices is to fill them out quickly and lodge them.  This would be a grave error.  They need to be given particularly careful treatment.  Aside from being sent to the State Welfare Authority and all concerned, judges read them very carefully.  Time and time again I am seeing judges who when considering making consent orders for children reach into the file, drag out the Notice of Risk of each of the parties and then quiz the parties about how the proposed orders reconcile with the Notice of Risk.  If it doesn’t, the judges then require the parties to file an Affidavit explaining why. 
Of course, the Family Court requires an explanation in the making of consent orders about how allegations of abuse, neglect or family violence are dealt with.  I note rule 13.04A of the Federal Circuit Court Rules and Rule 10.15A of the Family Law Rules.
Case example: The parties were New Zealand citizens living in Australia.  There were no orders in place regarding the children, although there was a parenting plan for equal shared care.
The mother decided to return home to New Zealand.  The children stayed in the father’s care as he did not consent to the children living in New Zealand.
The mother communicated both directly and through solicitors that she understood her obligations under the Hague Convention.  The children then travelled to New Zealand and spent time with their mother during the Easter and June/July school holidays.  At the conclusion of the June/July school holidays, the mother swore her material to commence proceedings in the Federal Circuit Court.  In her Notice of Risk, she said there was no risk for the children to be in the father’s care.  She did not then file proceedings, as there had not been compliance with sections 60I. 
The children went to New Zealand for the September/October school holidays. At the conclusion of those school holidays, the mother held them over.  The mother sought that the father undertake mediation.  He refused.  A section 60I certificate issues and the mother then instituted proceedings in the Federal Circuit Court.
The father responded to those proceedings in the Federal Circuit Court and at the same time put in place steps for the New Zealand Central Authority to commence Hague proceedings in New Zealand to ensure the return of the children.
As luck would have it, the Australian proceedings were first returnable one day before the first return date of the New Zealand proceedings.  The mother was not present in the Australian Court on the first day.  The Judge insisted that the mother return with the children the following week (without making an order to that effect).  The mother through her solicitor agreed to that course.
The following day the mother’s Australian solicitor sought for the mother to return to Australia.  The mother’s New Zealand counsel resisted that approach.  The mother’s case under the Hague Convention in New Zealand was to rely on a grave risk if the children were to return to Australia.
A copy of the Australian Court documents was provided to counsel for the New Zealand Central Authority.  This included the Notice of Risk that said there was no risk to the children in the father’s care.  Faced with that damning document, the mother consented to the return of the children to Australia and then returned with them the following week to face the stinging words from the Judge that she was “gaming the system”.
Many months later the mother consented to final orders that the children reside with the father in Australia (and have time with her in New Zealand) which orders were ultimately registered in New Zealand. 

Allegations of domestic violence in interim hearings
This is always tricky.  On the one hand is the desire to fully particularise all the allegations of violence and the other is the desire to ensure that the affidavit is not prolix.  The problem is highlighted by the Chief Judge’s practice direction such that the affidavit of a party on an interim application in the Federal Circuit Court is to be limited to 10 pages and no more than 5 exhibits.  Not surprisingly the Family Law Practitioners Association of Queensland has reported that the Registry in Brisbane has noted that since the change, practitioners have been lodging affidavits with smaller font and fewer gaps – with the inevitable outcome that sooner or later they will be rejected. 
Younger practitioners will for the first time have to engage in pleading and precision in drafting.
Gong and Wei [2017] FamCAFC 55 – The mother appealed against interim parenting orders which provide for equal shared parental responsibility. The mother submitted that the Trial Judge had erred by not properly considering her allegations of family violence. The mother asserted that the family violence included:
·         2010 – She heard the father threaten to hit N and then say to the mother “If you stand in the way, I’ll hit you too”.  N was then 1 year old.
·         In 2012 the father threw a pot of boiling water at the mother and the children resulting in O suffering a burn on her shoulder which left a scar.  O was 1 year old.
·         In about 2013 the father physically disciplined N by smacking him on the bottom multiple times with force after which the child urinated in his own clothing.  N was 4 years old.
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In June I presented for the Queensland Law Society to junior practitioners about family law 101- parenting cases. Here is my paper:


QUEENSLAND LAW SOCIETY

INTRODUCTION TO FAMILY LAW 101

PARENTING MATTERS

Brisbane – 6 June 2018

by Stephen Page[1]


1.      Getting instructions

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:

·         Date;
·         Event or Allegation;
·         Source.

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 a couple of weeks ago 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:

Date
Event/Allegation
Source
12/6/14
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
26/6/14
Mother registers the birth but father unknown
44 Aff F 4/8/17, subpoena docs from BDM
14/7/14
Child’s passport obtained by mother, but without father’s consent
45, “A” Aff F 4/8/17
21/7/14
Mother signs stat dec that father is unknown
Stat dec 21/7/14 BDM subpoenaed docs
1/2/15
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. 

3.      KISS

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 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 being 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 latter 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.

Last week 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 a 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 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 against my client!

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 avoidable.

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.

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)
·         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 you’re your client should not attend ADR. Err on the side of caution and safety at all times.

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 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 that’s two months.  I know it sounds basic, but too often people forget to do so.

Too often clients or practitioners don’t think of making enquiries, and when they make enquiries it’s on the web.  The telephone at times can be a remarkable device for getting information!

Is it to your client’s advantage to go through a Family Relationships Centre?  If your client wants to get into court quickly, it is often preferable to have a private mediator.  These can be expensive.  Who is going to pay?  How is agreement going to be reached on who is engaged?  If necessary come up with a list of three and present it to the other side.  Put a proposal about payment, for example, half each or your client pays for the cost.  Your client may be reluctant to pay the cost, but it might be a lot cheaper to them to settle it at mediation rather than to spend tens of thousands of dollars in litigation. 

In your opening letter to the other side, put an offer.  That offer should say in there somewhere that part of the reason that your client is putting forward the offer is because your client wants to avoid the delay, stress, including impact on the children of going to trial at a cost estimated by our client to be up to $100,000.  Work out what the figure is likely to be.  Don’t say that it is your estimate and that you have advised your client.  You don’t want to be waiving privilege, but you do want your client to say through you as to what the cost is to the other side.  Of course only 5% of matters go to trial, but it is important to focus on costs from the beginning.

Rest assured that those who talk to each other after the litigation is over compare notes about how much their lawyer has charged them.  Clients will always be able to tell you how much they have spent with you even if you’re not entirely sure how much they have paid.  By putting a dollar figure in that first letter, it is extraordinary how often that helps resolve a matter. Invariably the party on the other side sees that figure,  even if they don’t absorb anything else.

8.      Focus on safety

It is imperative that if you are practising in family law that you know about domestic violence. Regrettably, domestic violence is pervasive in family law. My first family law cases- back in 1985- had domestic violence at their core. Regrettably I am still getting cases in 2018 that have domestic violence as a feature.  According to the Bryce Taskforce report, Not Now, Not Ever, domestic violence rates have gone up, not down.

It is good to ensure that your client undertake a risk assessment about family violence- and then does a safety plan. You may need to consider your safety too. Just because you act for a party does not make you immune. It may make you a target. Familydoors.com contains good, albeit cumbersome, screening tools. 

It is essential to focus on safety for your client, your client’s children, and you. A safe client is better than a dead one.

9.      Off to Court

You act for the applicant and it is the type of matter that ordinarily would be dealt with in the Family Court or the Federal Circuit Court.  If you had an international child abduction matter of course, unless you are the respondent you won’t be going there but likely taking the matter elsewhere through International Social Services in Sydney.

It’s your client’s choice as to which court the matter is filed.  Of course if you choose the Family Court and the matter should be in the Federal Circuit Court (or vice versa) the matter will likely be transferred later.

Ordinarily you would pick the Family Court for more complex matters such as:

·         You expect the matter will take greater than 4 days at trial;

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