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Federal Court Judge Warwick Neville orders investigation into father’s Facebook posts

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facebook, defamation, s121, family law actDIVORCING parents who use the “insidious features” of social media as a weapon will put at risk their custody arrangements and settlements and could even face prison, legal experts warn.

In a federal court divorce case, Judge Warwick Neville has ordered that a marshal of the court investigate and monitor a father’s Facebook posts for possible infringements of the Family Law Act.

The Act prohibits the publication of details of court proceedings – an offence punishable by imprisonment for up to one year.

There are almost 50,000 divorces in Australia each year and about half of them involve a custody battle for children.

Judge Neville said social media was an “unfortunate and increasing feature of modern litigation”, particularly in family law.

“It is a veritable Aladdin’s cave which parties (and lawyers) readily and regularly explore for (invariably incriminating) evidence to be used in litigation,” he wrote. “As a weapon, it has particularly insidious features.”

Judge Neville said commentary on social media was often “very cowardly” because those who posted “derogatory, cruel and nasty comments (regularly peppered with disgusting language and equally vile photographs)” appear to feel immunity.

“They inhabit the cyber-sphere and operate as `Facebook rangers’ who `hit and run’ with their petty and malicious commentary, and seem to gloat (or be encouraged) by the online audience that waits to join the ghoulish, jeering crowd in the nether-world of cyber-space.”

In 2011, 48.3 per cent of the 48,935 divorces granted involved a custody dispute over children.

Social media expert Dr Melissa de Zwart said people were still learning how to use Facebook carefully.

“I think we might be careful about direct posts but not other things like commenting on posts of our friends that potentially aren’t as private,” she said.

“I think as we read more about people doing things and getting into trouble, I think we are becoming more careful and more judicious.”

Dr de Zwart said a study had found people usually thought of about six people when posting instead of all their Facebook friends.

“That’s why you will disclose things and forget that you’re actually friends with your ex’s cousin,” she said.

Judge Neville’s judgment, delivered recently in the Federal Circuit Court, said that in this particular case, the father’s family had posted comments that denigrated the court and the litigious process, as well as detailing and commenting critically on information regarding the proceedings.

The posts “bluntly” claimed the magistrate, the court and experts had been duped by the mother and that she regularly abused her children.

Tindall Gask Bentley partner and family-law specialist Jane Miller said social media was a common part of divorces.

“We see clients that either make poor decisions on what they publish on Facebook or those who routinely stalk their partner’s Facebook page,” she said.

Ms Miller said most users of the Family Court system did not appreciate the section of the Family Law Act that prohibits them from publishing details of the court proceedings.

She said the classic example of what could potentially breach the Family Law Act was people showing affidavits from the court proceedings to their friends and family.

Norman Waterhouse associate Emma Dodson said she warned clients about posting on Facebook when starting divorce proceedings.

“We had cases before we started this policy where clients have written things on their Facebook which weren’t favourable to their case,” she said.

Relationships Australia senior counsellor Margie von Doussa said she would advise divorcing couples to “unfriend” their former partners.

“For the short term, we need to absolutely not be connected on social media in any way,” she said.

Ms von Doussa said people did not want to read about their ex’s good day or the intimate details of their post-break-up life.

“People can’t suddenly go from being in a relationship to being great mates,” she said.

Upper house votes down voluntary euthanasia bill

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legislative-council-chamberLegislation to allow voluntary euthanasia in New South Wales has been defeated in the state upper house.

The Rights of the Terminally Ill bill, which was introduced by Greens MLC Cate Faehrmann, would have let terminally ill people who still retain their decision making capacity request assistance to die.

The bill was defeated 23 votes to 13.

After an emotional debate, there was an outburst from the public gallery as it became apparent MPs were about to vote down the bill.

All sides were given a conscience vote on the issue, but no Coalition MP voted in favour of the bill, although some abstained.

Speaking just before the vote, Ms Faehrmann told Parliament it would be a massive missed opportunity if the bill was defeated.

“If this bill fails today, terminally ill people will continue to take their own lives violently if they can,” she said.

“Some doctors will continue to administer huge doses of morphine to patients in an attempt to end their suffering. Patients will starve and dehydrate themselves to death.

“People around this state will continue to scream out to their loved ones, to nurses, to doctors, to please end their suffering.”

Ms Faehrmann says the campaign for voluntary euthanasia will continue and the bill will be introduced to the lower house by her Greens colleague Jamie Parker and two Independent MPs.

Ex-wives Snare Lion Share of Farming Family Fortune

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farming-soilTHE ex-wives of two brothers at the helm of a Queensland farming and mining company have snared the lion’s share of the family fortune after a legal showdown with one of their own children for the money.

The women have netted almost $2 million in the bitterly-fought property claim against their husbands and a son, who tried to secure a slice of the asset pool in the Family Court of Australia this month.

The feud has shone the spotlight on Australia’s rural marriage crisis with both long-standing marriages ending in November 2009 after the couples were together for 38 and 21 years respectively.

Concerns over the high rate of relationship breakdown in rural areas has prompted the Federal Government to reinstate a program it shelved for travelling counsellors to visit rural couples.

Queensland Rural Woman of the Year, Alison Fairleigh, said “romantic notions” of rural marriage were sadly evaporating under the stress of drought and spiralling farm debt.

“We are on the cusp of another very bad drought in western Queensland and you can only imagine the pressure it is placing on relationships,” Ms Fairleigh said.

Family Dispute Resolution Practitioner Marie Downing said a large number of mediation cases involved marriage breakdowns amongst resource-industry employees.

“A lot of it is related to the adjustment to isolation and working long shifts,” Mrs Downing said.

Ms Fairleigh said many break ups in farming areas were linked to a “drinking culture” and economic hardship brought on by years of financial difficulties.

She said a rising number of men were self-medicating with alcohol for depression, while their wives were forced to work full-time off the farm for financial survival.

‘When you separate in a rural marriage, often it is a case of people taking sides, so you can end up separated from your community,” Ms Fairleigh said.

“If there are succession arrangements, wives are left with very little. If not, she gets half of everything and he feels like he has let his family down.”

The son in the latest case lost his claim for a majority stake in the company he managed after the court found a promise to be “looked after” by his father and uncle too ambiguous.

Pensioners overlooked in budget

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pensionersREDLAND City business and welfare groups said Treasurer Wayne Swan’s sixth budget failed the needy and those whose only income was a pension.

The budget included a $300 million package for those on Newstart, Parenting Payment, Widow, Sickness or Partner Allowance, which will come into effect in March.

The federal government was under pressure to increase the Newstart allowance base rate by $50.

Instead, the budget allowed dole recipients to work more hours and earn an extra $100 a fortnight before benefits are affected.

Single mothers will get an additional payment if they take up study and the education supplement will be extended to all single parents on Newstart.

Access to the pensioner concession card will also be increased.

Redland District Committee on the Ageing president Tony Christinson said pensioners had been overlooked.

“Pensioners don’t directly benefit from the budget’s big ticket items of the National Disability Insurance scheme, the National Broadband Network or the Gonski funding,” he said.

“Encouraging single parents to undertake more work is a catch 22 as they can’t afford to pay someone to mind their children while they work.

“No increases to the pension will leave some in the Redlands in a desperate situation even though inflation is fairly low.”

Star Transport operations manager Peter Mann said he did not believe any of the measures announced in Tuesday’s budget would affect the provision of his Redland-based service.

However, he said he would have liked more information about ongoing funding.

“We have too much demand for our service and have been told that there is no additional federal or state funding,” Mr Mann said.”Our typical client is a pensioner who rents and not increasing the pension will affect them but not our fares.”

Australian Council of Social Services CEO Cassandra Goldie said the changes were modest and people struggling to get a job would be disappointed.

Ms Goldie said previous budgets saved $700million shifting about 70,000 single parents whose youngest child had turned eight off Parenting Payments and on to the Newstart Allowance.

National Council of Single Mothers and their Children’s Therese Edwards said the budget “was only undoing some of the harm introduced on January 1” this year.

She said before the budget, sole parents could earn $31 a week before their payments were affected but in the previous 2011-2012 financial year they could earn at least $87 a week.

The Opposition backed the moves but called for more details.

The budget also slashed the public service, announcing $580 million from the sector but not disclosing the exact number of positions to go.

Baby bonus ‘scrapped’ in budget

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babyThe baby bonus has been scrapped in the federal budget.

The Howard-era payment that provides $5000 for newborns will be replaced with a much lower payment.

This will see eligible families receive $2000 for a first child and $1000 for a second child.

Instead of the baby bonus, those eligible under Family Tax Benefit Part A will see their payments increase for the first three months after their child is born.

The Gillard government had already reined in spending on the baby bonus. Last October, it flagged that payments to second and subsequent children would be cut to $3000 from July 1.

Earlier on Tuesday, Fairfax Media reported that almost $100 billion in expenditure on education and disability insurance would be locked in for a decade as the Gillard government tries to insulate its reforms from future economic pressures and force the hand of Opposition Leader Tony Abbott.

The unprecedented move is designed to guarantee the survival of both signature reforms, quell doubts over their long-term funding and prevent cash-strapped governments from diverting resources to other areas.

The political manoeuvre is set to enrage the Coalition, which has already complained of ”booby traps” being laid in the budget.

The budget contains savings to limit this year’s deficit and plans to ensure dedicated funding streams for the Gonski education reforms and the national disability insurance scheme, DisabilityCare Australia.

Grandma, 85, given parenting rights in case that highlights growing trend in ‘grey-sitters’

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grandparentsAN 85-year-old woman has been granted parenting rights over her granddaughter as courts take a tougher stand over denied access.

With a rising number of so-called “grey-sitters” left raising grandchildren, the Full Court of the Family Court of Australia has reaffirmed the notion of “parents and non-parents” having the same legal rights to children.

The appeal case involving access to a nine-year-old girl after her mother died of breast cancer in November 2010 follows another “heart-wrenching” decision to grant custody of a two-year-old boy to his paternal grandmother after his mother was deported last month.

And this week, a great-aunt was granted parenting rights over a little girl she had cared for since she was a baby.

Queensland Council of Grandparents president Maree Lubach said the rulings highlighted the push for courts to enforce “grandparent provisions” introduced to the Family Law Act.

The 2006 reforms uphold a child’s “fundamental right” to “spend time and communicate” with grandparents and other relatives on a regular basis.

Despite the changes, Ms Lubach said litigants were continuing to lose their homes and had sacrificed life savings to fund legal bills in excess of $20,000 in the quest to see their grandchildren.

“In a lot of cases, they have assets which exclude them from legal aid, so they have lost their homes ” Ms Lubach said.

She said the pressure of taking another family member to court took a huge emotional toll.

“It is very difficult for grandparents denied access because the attitude is ‘you must have done something wrong’,” Ms Lubach said.

“It is hard for them to open up that the threads of their family have been severed. Emotionally, it leaves an enormous scar and that trauma is shared by those raising their grandchildren.

“Grandparents often step in voluntarily or are asked to raise the children for a while. They form bonds and then the children react to being expected to start bonding with parents they were alienated from.

“Unfortunately, a lot of grandparents simply don’t realise they can get access.”

Leading family lawyer Dan Bottrell urged grandparents to pursue access even in difficult circumstances.

“Just being the biological parent doesn’t give you the preferential treatment,” Mr Bottrell said.

“The court’s role is to consider the best interest of the child.”

A Family Court of Australia spokesman said existing relationships between the parents and grandparents were often “critical factors” for judges.

“It is not necessarily good for the child . . . if the grandparent denigrates or criticises a parent (and) unfortunately this is something that does happen,” the spokesman said.

“Children of separated parents are usually already splitting their time between parents. Ultimately, it is what is in the best interests of the child.”

Prove vaccinations or no enrolment

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267792-immunisationPARENTS will face tough new hurdles if they want to enroll unvaccinated children at school, under a crackdown being planned by Health Minister Tanya Plibersek.

Responding to The Sunday Telegraph and The Daily Telegraph’s campaign to improve childhood immunisation rates, Ms Plibersek said it was time for a “rigorous” national policy to identify children who had slipped through the immunisation net when they started school.

She has asked the states to introduce standardised procedures that will make it mandatory for parents to produce the official Australian Childhood Immunisation Register record to prove their children have been fully immunised when they enrol them at school.

And parents may have to document why a child is unvaccinated if the record shows the student has not completed the government’s free childhood immunisation program.

The latest immunisation data from the National Health Performance Authority shows five year olds have the lowest immunisation rates of any children.

“I am proposing we introduce a rigorous nationally consistent policy for schools to assess and document immunisation for all new enrolments as a way of identifying children who have slipped through the immunisation net or have not yet met the immunisation milestones,” the minister said.

“Ensuring accurate records are available at schools will assist in promoting immunisation of children and improving the control of spread of vaccine preventable diseases by excluding children from school during an outbreak if they are not immunised,” Ms Plibersek said.

She said Western Australia, NSW, Victoria, Tasmania and the ACT have school entry legislation for immunisation but, other than in Western Australia, “the laws are not usually enforced”.

The minister is also asking her department to investigate the national roll out of a “booster pack” which would include an illustrated book and pamphlet on immunisation that would be sent to parents of four year olds.

A similar pack used in South Australia to remind parents about the two vaccinations that are given to four year olds has seen immunisation rates among five year olds in that state increase from 88.8% to 91.1% since the middle of last year.

Immunisation experts and the Australian Medical Association have been calling for governments to increase the hassle factor for parents who have failed to properly immunise their children.

Australian Medical Association president Dr Steve Hambleton said he fully supported the school enrolment crackdown.

“It means parents will now have to make an active decision to refuse vaccination,” he said.

“I congratulate the minister on her leadership and challenge the state ministers to match it,” he said.

The World Health Organisation says immunisation rates higher than 93 per cent are required to stop the spread of killer diseases like whooping cough and measles.

But in some areas around the country, less than 85 per cent of five year olds are fully immunised.

The minister wrote to all state health ministers yesterday to tell them she would be including an item on increasing vaccination rates among school children at the health ministers meeting due mid year.

Centrelink fraudster’s get out of jail card

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courthouse_300A Berkeley man will avoid spending the next six months in jail as long as he keeps paying back the $22,000 he illegally pocketed from Centrelink.

Laci Zivko, 45, appeared in Wollongong District Court yesterday to appeal a sentence handed down in the local court earlier this year when he was convicted of collecting Newstart allowance for more than a year while also employed full-time.

Yesterday Zivko told the court he was “disgusted” in himself and regretted not advising Centrelink he had secured a job.

“In hindsight I wish I hadn’t done it,” he said.

“I do take full responsibility for it, I’ve got no-one else to blame but myself.”

Defence solicitor James Howell, acting for Zivko, told the court his client would almost certainly lose his job if he were sent to jail for six months.

However, if Zivko could instead carry out community service, the 45-year-old could keep his job and make regular, weekly payments towards the $22,752.32 commonwealth debt, Mr Howell said.

The court heard Zivko had in the past battled a crippling, long-term drug addiction, but since finding employment he had turned a corner and entered a treatment program.

The Berkeley man said he just wanted to get back on track and pay off the debt.

Judge Paul Conlon suspended the six-month sentence and ordered that Zivko continue to pay back Centrelink.

Dementia-related violence a growing concern for the aged

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clara-tangThe justice system is unprepared to deal with aggressive behaviour by sufferers, writes Paul Bibby.

Clara Tang sat, pale and drawn, in the forensic hospital at Long Bay jail. She had no idea where she was.

A few days before, the 90-year-old had beaten her husband, Ching Tang, 98, to death in their Surry Hills apartment with a desk lamp, flowerpot and a walking stick.

After a night in Mulawa women’s prison, Ms Tang was taken to Long Bay and examined by Justice Health’s old-age psychiatrist, Sharon Reutens. It quickly became clear that she was suffering from advanced vascular dementia.

”I asked her if she knew where she was and gave her options, like, ‘are you in a shopping centre?”’ Dr Reutens said. ”She said she didn’t know.”

Having been moved from Long Bay to the geriatric ward at St Vincent’s Hospital, Clara Tang passed away at Lulworth House at Elizabeth Bay on August 8, 2011. It was 17 months after killing her husband and one day before a court hearing to determine whether she was fit to stand trial for murder.

This week’s finding by the NSW coroner that Ms Tang killed her husband during a psychotic episode brought on by advanced vascular dementia clears her of responsibility for the crime.

But it also highlights the little-discussed, growing problem of dementia-related violence and the unpreparedness of the Australian justice system to deal with it.

While some attention has focused on the issue of violence against people with dementia, there has been less interest in violent and aggressive behaviour by sufferers themselves.

One of the few large-scale studies, conducted by researchers in northern Utah, found that, over the course of a month, 30 per cent of dementia sufferers in a sample group exhibited violent or agitated behaviour.

Another study, published in the International Journal of Geriatric Psychiatry in 1999, found that 96 per cent of patients with dementia demonstrated aggressive behaviour at some point over the course of their illness.

”Homicides by dementia sufferers are very rare, but less serious violence such as assaults are more common,” Dr Reutens said. ”Often the victims are elderly themselves. You or I could have kicked the flowerpot out of Clara’s hands, but Mr Tang was obviously unable to do that.”

Carers of dementia sufferers are also often on the receiving end of violent action.

Like so much about dementia, the scientific cause of violent behaviour by those with the condition is not fully understood.

Research suggests the condition affects the frontal lobes of the brain, which play a central role in controlling our behaviour. When these are incapacitated a person may act on urges, violent, sexual or otherwise, without inhibition.

While Ms Tang never made it to court, her case and others reveal a number of limitations in the judicial system’s ability to deal with the growing number of offenders affected by dementia as Australia’s population ages.

”The main issue is, ‘where do you house them?”’ Dr Reutens said. ”There are no long-stay nursing homes in the Australian prison system. In the US they have had to open up nursing homes for prisoners and I think we may need to consider going down the same path.”

The other, more difficult issue, is how to sentence those affected by dementia.

In October last year 55-year-old dementia sufferer Michael William Goodridge was sentenced to 18 years for the brutal 2009 murder of his carer, Carmel George. While Goodridge murdered Ms George before his dementia had taken hold and was aware of what he was doing, at the time of sentencing he had no memory of the crime and little sense of his punishment.

Doctors predicted that the condition would claim Goodridge’s life within six years.

Like Ms Tang in the days after she killed her husband, Goodridge now finds himself in the forensic hospital at Long Bay jail.

Single dad families growing at twice the rate of lone-mum families

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single-father-familiesONE of the fastest growing social groups in Australia is single parents. According to the 2011 census, there are more than 902,000 single parents with children under 15.

There are, of course, even more single parents when the definition is expanded to include at least one child over the age of 16, but this is not the focus of my inquiry.

I am interested in measuring young single parents with wholly dependent children.

This category of Australian families is up 10 per cent, or 79,000, over the 2006 census estimate. Traditional families with two parents, where all children are under 15, were up 7 per cent to 2.5 million across the same period.

By this measure, close to one-quarter of families with young children are now headed by a single parent.

And, of course, the overwhelming majority of single-parent young families are headed by women: 743,000 or 82 per cent of lone-parent families in 2011.

Single-parent families headed by men numbered 159,000 in 2011, up 19,000, or 14 per cent, over the previous five years.

This compares with a 7 per cent growth rate for single families headed by women.

One the fastest growing social groups in Australia is single-parent families headed by a man, where the children are all under the age of 15.

This may reflect a shift in legal thinking about custody.

It may reflect generation X and generation Y men’s determination to remain connected to their children’s lives.

It may reflect the fact an increasing proportion of women may be the household breadwinner and continue that primary role after separation.

Whatever the reason, the fact male single parents are growing at twice the rate of female single parents suggests a powerful gender-based social shift is under way. The orthodoxy of the single mum is being challenged by the rise (from a low base) of the single dad. But where do these single dads live, and are local services as prevalent for their needs as they may be for single mums?

Across the nation, 18 per cent of lone-person young families are headed by men.

But in the Melbourne suburb of Montrose in the Dandenong Ranges, and in the Brisbane suburb of Banyo, north of Brisbane airport, this proportion reaches 26 per cent.

In other cities, the single-dad factor tops out at 25 per cent of single-parent families in Perth’s Lesmurdie and at 24 per cent in Sydney’s beachside suburb of Cronulla.

Single dads seem to prefer low-cost, edge-of-town locations where there is space for physical activity. Single mums, on the other hand, cluster in very different parts of the city.

At a national level, 82 per cent of single-parent young families are headed by women.

But in the Melbourne suburb of Mernda, and in the Adelaide suburb of Ferryden Park, this proportion reaches 92 per cent of single-parent families.

Indeed, it is not uncommon for about nine out of 10 single-parent families to be headed by a mum in places such as Miller in Sydney’s Liverpool, Reedy Creek on Queensland’s Gold Coast, Nedlands in Perth, Prospect Vale near Launceston and Palmerston on the edge of Darwin.

Single mums also cluster in low-cost locations often associated with public housing or new housing estates.

It is odd and perhaps more than a little unfortunate that the single-mum and single-dad hot spots are so removed from each other; surely there’s a social synergy to be had from getting these groups closer together.

I have Google-mapped the single-dad and single-mum hot spots in each capital city and have established that the intervening distances are prohibitive. For example, Sydney’s single mums in Miller are 40 minutes’ drive from single dads in Cronulla.

In Melbourne, single dads in Montrose are 55 minutes’ drive from single mums at Mernda.

The Nedlands to Lesmurdie trip across Perth can be done in a speedy 37 minutes, but the Banyo to Reedy Creek trip in Queensland takes at least 63 minutes. But by far the closest single-parent hot spots are to be found in Adelaide: the dads are in Grange; the mums are in Ferryden Park.

The travel time is 20 minutes; the midpoint is Woodville.

Clearly the Woodville pub on a Friday night is the place to be.

Bernard Salt is a KPMG partner and is an adjunct professor at Curtin University Business School.