Sickening insults via text are latest battleground for warring parents

on February 16, 2013 by admin

A WAR by text message is the latest battleground for separated families, with fighting couples resorting to foul language and sickening insults as they bicker over care arrangements for their children.

Spreadsheets exposing the unsavoury behaviour have reached biblical proportions, with “hundreds” of pages of the vitriolic SMS texts being tendered in custody battles in court.

While some parents used the technology to successfully juggle shared parenting arrangements, divorce lawyers are facing putting their own clients’ SMS texts under “forensic” analysis.

The Courier-Mail has uncovered one case of an angry wife trying to use a text message spreadsheet to prove her claims that her ex-husband is a drug dealer.

Australian Divorce Blog Founder Stephen Page said SMS was being hijacked by an outpouring of “emotional rubbish” as couples wage war over their children.

“It is a war by text message,” Mr Page told The Courier Mail.

In one text uncovered by The Courier-Mail, a mother sprays a round of insults at her ex-partner as she waits outside his house for their seven-year-old child.

Judges are desperate to rein in the behaviour and have ordered parents to post-separation courses and issued court orders banning denigrating comments.

They have also made orders limiting texts between parents to “emergency matters” and changes to phone numbers.

But Family Relationships Services Australia executive director Steve Hackett said “war on text” was common where couples could not afford to separate.

“They are also at war on the phone or at the school yard,” Mr Hackett said.

Where civility is at a premium, Mr Hackett said some parents are using mobile phone apps to communicate.

“The aim is to avoid an unnecessary heightening of the dispute and if you can communicate in a way to reduce conflict and it cannot be misconstrued there is less room for a heat of the moment argument,” he said.

In another disturbing trend, relatives of young children are also being exposed for sexually abusing, stalking and grooming them through texting and emailing under false names.

In one case, a scheming uncle was charged after being forced to confess he stalked his niece via email and tried to coerce her into taking explicit photographs of herself.

In a series of emails in 2005, he warned the Brisbane teenager he would expose her for sneaking out if she did not take the pictures.

Woman loses Family Court bid for baby to dead partner

on February 13, 2013 by admin

A WOMAN cannot fulfil her late partner’s final wish and have their child by IVF because the Family Court lacks jurisdiction over his frozen sperm.

In a ruling published on the court’s website this week, Justice Garry Watts says he has no choice but to refuse the woman’s plea because her de facto partner died before giving her written consent to access his genetic material.

The judge says he cannot intervene – even with the blessing of the man’s sister and executor of his will – because it is not a matrimonial or property matter.

Reproductive specialists yesterday called on courts to honour a person’s verbal consent, saying not every couple gets the chance to put things in writing.

In his judgment, Justice Watts says the man, who cannot be identified, deposited sperm with an IVF clinic before he was diagnosed with non-Hodgkin lymphoma.

He and the woman fell in love during his successful chemotherapy.

They told friends and relatives they planned to marry in 2012 and “start a family immediately”.

The cancer treatment, however, took a toll on the man’s health and he committed suicide.

Subsequently the woman and her partner’s sister, who is executor of his estate, asked the clinic to release his sperm.

It refused because the man had not listed the woman as his partner on the sperm storage form.

However, the clinic agreed it would grant access if served with a court order.

In his judgment, Justice Watts says those factors are insufficient.

“I accept (the couple) formed a loving and committed relationship and discussed between themselves and family members the intention to marry and start a family,” he says.

“I further accept that (his) purpose in storing a frozen semen specimen was in the anticipation that it would be used to conceive a child – and that he subsequently formed the intention that the mother of that child would be (his partner).

“Unfortunately I conclude this court does not have any jurisdiction to make orders in accordance with the application that has been made.”

He says the court is limited to considering only matrimonial, defacto, property and child matters.

“I have no alternative but to dismiss the application,” he said.”

Reproductive specialist Dr Christine Kirby, deputy medical director of Repromed, said courts should broaden their scope.

“When it comes to dealing with reproductive rights after death, courts get bogged down,” she said.

“People die unexpectedly and consent does not always get to be written down.

“If there are multiple, credible witnesses to a deceased person’s intent, that should be honoured as would written consent.”

She urged donors to ensure their consent forms and information were updated regularly.

“Couples plan their house and their life insurance – they need to plan their fertility as well,” she said.

“They need to discuss what, in the event of death, they want to happen.

“Put it in your will, get it written down and then update it as often as needed.”

Dr Louise Hull, from Fertility SA, agreed.

“This is a tragic case, and not something you’d want to see happen to anyone else,” she said.

“The difficulty is that, when a person has died and their consent is not written down, you can’t ever be sure what their wishes were.

“Control over one’s stored material is a fundamental right… people must discuss their wishes with their partners and make sure forms are signed.”

For information about depression and suicide prevention, contact Lifeline on 13 11 14, SANE Helpline 1800 18 7263, Beyond Blue 1300 22 4636

Women’s Alliance Funding Renewed

on February 12, 2013 by admin

federal-government-funding The Federal Government has extended funding for six National Women’s Alliances following an independent review.

The six National Women’s Alliances will receive $4.8 million in Federal Government funding to continue to enable them to bring forward issues onto the national policy agenda.

The Minister for the Status of Women, Julie Collins, said the three-year funding extension until 2016 will ensure the Alliances can continue to advise the Government on priority women’s issues.

“This new funding is $1 million more than the sum we provided to set up the Alliances in 2010 and recognises their excellent work in ensuring women’s perspectives are at the forefront when government and other groups consider policies and programs,” Collins said.

“In their short existence, the Alliances have scored significant achievements on issues of concern to women from all backgrounds and age groups.

“They have highlighted the adversity faced by immigrant and refugee women integrating into Australian society, examined the impact of new technology and media on young women and helped rural women to take the lead in their communities on reducing violence against women and their children.

“They have also influenced policy making to promote improved gender equality, women’s workforce participation, child care and retirement incomes,” Collins said.

The Alliances now represent more than 180 women’s organisations and each Alliance focuses on a distinct issue or stakeholder group.

“The establishment of the National Women’s Alliances in 2010 was a new way for the Government to engage with the women of Australia,” Collins said.

The renewed funding follows an independent review of the Alliances commissioned by the Government. The review report is available here.

Melbourne mum faces breath-testing in $20m custody fight at Family Court

on February 11, 2013 by admin

A MELBOURNE mum has been ordered to install a breath-testing device in her home as part of a $20 million custody and property fight.

The woman’s former partner asked for an alcohol interlock device to be put in her car to ensure the safety and wellbeing of their sons.

But she opposed the order claiming it was “unduly harsh and oppressive”.

The Family Court heard the pair are locked in a dispute about how to divide their property and organise custody of their 10 and 14-year-old boys.

The mother currently has her eldest son overnight once a week and the youngest for three hours after school one day.

She agreed to court orders banning her from consuming alcohol 24 hours before having the children in her care and attending random blood-alcohol screening.

The court also allowed her to attend her sons’ sporting or school events as long as no alcohol was available.

But the mother denied the orders were necessary and made no admissions about her drinking.

The father pressed for an interlock device to be installed on the mother’s car and was backed by a doctor who said it would give the children “an increased sense of confidence and security”.

The mother said she had not had a drink in 14 months and had no “alcohol-related driving conviction”.

Justice Peter Young said the interests of the children could be satisfied by having a breath-test machine in the mother’s home or garage.

He said she would have to observe a zero alcohol reading before driving the children anywhere within suburban Melbourne.

The court heard the readings would be recorded, along with a photograph, and provided to the court’s children’s lawyer.

The court orders also provided for the children to travel to their mother’s house from school by tram and be driven by their father on other access days.

Gillard flags Fair Work changes

on February 10, 2013 by admin

julia-gillard-fair-work-act Parents will have the right to request part-time work when they return from having a baby under changes to workplace relations laws, Prime Minister Julia Gillard says.

Ms Gillard says the government wants to take some off the burden off modern families who are struggling to balance work with caring for children and sometimes elderly relatives.

Labor will seek to legislate as soon as possible to allow parents to request a return to flexible and part-time work as it works through the recommendations of its review of the Fair Work Act last year, she says.

“And their employer will have to respond to that (request),” she told reporters in New Zealand on Sunday.

About 80 per cent of requests were satisfactorily resolved, but Ms Gillard said formalising the right would make employees more comfortable asking and the legislation would apply to mothers and fathers.

She said the government would deal with the second tranche of announcements this week and flagged further changes later in the year.

“The focus this week will be on that part of the workplace relations agenda which is really about work and family life,” she said.

The prime minister said the government would also discuss some protections for roster changes and the onus on employers to consult their workers ahead of any changes.

Giant legal leap for gay dads

on February 8, 2013 by admin

Gay Dads-parental-rights-judgment Two gay dads have become the first in Australia to have started a family via overseas surrogacy and successfully gained full parental rights.

Australian gay fathers who’ve travelled overseas to start a family through commercial surrogacy are still not recognised as parents, state or federally, but a recent court ruling may have cleared a way for other WA gay couples, and possibly set a precedent in other states.

The Western Australian Family Court allowed a co-father to adopt his twin children, who were born via a commercial surrogacy agreement in India, on January 10.

Charles Blake and James Marston, whose names were changed, applied for Blake to become a step-parent to the twins.

The court heard both Blake and Marston, who was the biological father, had raised the children since birth.

The surrogate mother, Mrs Sengupta, had relinquished her full parental rights as part of the surrogacy process.

In order for Blake to have received any parental rights over the children, he could have sought a parentage order or adopted them since WA allows same-sex adoption.

In her ruling, Justice Jane Chrisford said while the court was satisfied Marston was a father in its ordinary meaning, state law did not recognise him or Blake as a step-parent.

“To suggest that Mr Marston is anything other than a parent or a father within its ordinary meaning is to turn a blind eye to the reality of ‘family’ in present day society,” she said.

While most biological dads are recognised by the Department of Immigration and Citizenship on entry into Australia, they are only recognised as sperm donors by the federal Family Law Act 1975.

Gay Dads Australia spokesman Rodney Chiang-Cruise said it was a significant ruling despite it only really affecting WA dads.

“Firstly because the biological dad was legally recognised by the court as being a parent and up until fairly recently the treatment was the biological dad was determined to be a donor under the federal legislation,” he said.

“Because of that, that meant his partner was eligible to adopt the child and also be considered the legal parent.

Harrington Lawyers family lawyer Stephen Page told the Star Observer many people who went overseas for surrogacy wanted to be recognised as parents.

“They’ve got kids, they want them to be recognised as their own,” he said.

“If they go to the Family Court and get a parenting order that won’t show them as the parents, that’ll just show they have parental responsibility over the child.

“What’s significant about the WA case is the judge says let’s look at the reality – I think that’s just illuminating.”

Lesbian co-mothers can be recognised as parents under federal law, and can have both names added to birth certificates.

Springwood father takes battle for lost son to Canberra

on February 6, 2013 by admin

Springwood father Daniel Wass

Springwood father Daniel Wass took his ongoing battle to find his missing three-year-old son on the road on Saturday, cycling to Canberra to increase political pressure to find a solution to his parental nightmare.

Mr Wass’s son, Sean Jukia Wass, has vanished in Japan after being taken from Australia by his former partner, Yuka, when he was just 14-months-old.

Despite numerous court orders, including a Find and Recovery Publication Order from the Family Court of Australia, Mr Wass does not know the location or welfare of his son.

His situation has seemingly been put in the diplomatic ‘too hard basket’ as Japan is not a member of the Hague treaty which deals with abducted children.

“In addition to Japan’s family law, Australia’s policy, procedure and assistance in international parental child abduction cases to non-Hague countries is very poor. It’s almost non existent to the extent there is a preserved reluctance to assist,” said Mr Wass.

He was due to meet with opposition foreign affairs spokeswoman Julie Bishop when he arrived in Canberra yesterday (February 5) although the outcome of the meeting was not known at the time of going to press.

He also planned to present a petition supporting his case to Federal Member for Macquarie Louise Markus, who wished him well before he left Springwood early on Saturday morning.

The petition calls on the Australian Government to “take a stance, strengthening domestic policies and developing a bilateral agreement with Japan that facilitates the return of children who have been abducted from Australia until such time as Japan becomes a signatory to the Hague Convention”.

It also requests the government take “immediate action to confirm the location, safety and welfare of Sean Jukia Wass”.

Mr Wass rode part of the journey with Ken Thompson, another dad whose child was abducted.

“I was lucky enough to have Ken join me at the 70km point through to Bowral (120km) and then the next day all the way to Goulburn,” he told the Gazette from the road.

Family Violence Amendments: developments by the Federal and NSW Governments

on February 6, 2013 by admin

Six months on

Amendments to the Family Law Act that changed the way the law addresses family violence in family law matters came into force from 7 June 2012. These changes were introduced by the Federal Government following more than two years worth of lobbying and input by the Australian Law Reform Commission, members of Parliament, various representatives of the legal profession and other groups of interest.

Importantly, the changes apply to all family law cases before the Family Court and the Federal Magistrates Court, regardless of whether the proceedings were started before or after 7 June 2012.

What are the amendments?

Prior to 7 June 2012, “Family Violence” was defined by the Family Law Act as “conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety“.

From 7 June 2012, Family Violence has a more succinct definition and the legislation goes further and actually sets out a list of examples of what can include domestic violence and examples of situations that may constitute a child being exposed to domestic violence (Family Law Act, s 4AB).

Whenever a Court hears a parenting matter, the benefit to a child of having a meaningful relationship with both parents and the child’s right to be protected from physical or psychological harm are the two primary factors in considering what is in a child’s best interests. The amendments now require the Courts to give greater weight to the need to protect a child from physical or psychological harm over the benefit to the child of having a meaningful relationship with both parents.

Why were the changes introduced?

The changes to the Act were brought about for a number of reasons. Primarily, it was due to the increasing statistics of domestic violence in Australia, the apparent reluctance of victims of domestic violence to report acts of violence and the need for clarity when applying the law to parenting cases involving allegations of domestic violence. This last reason is particularly significant because more than half of the parenting cases heard before the family law courts involve allegations of domestic violence.

What do the changes mean for your family law matter?

The main changes we will see as a result of the amendments to the Family Law Act will include:

Greater priority will be given to a child’s safety and welfare (the benefit to a child of having a meaningful relationship with both parents is not forgotten however; it remains one of the two primary considerations in determining a child’s best interests);
There will be greater onus on advisers such as lawyers and counsellors to appropriately advise parents in matters relating to children;
The family law courts will now have clearer access to evidence relevant to family violence which will help to improve the suitability and appropriateness of any parenting orders;
The new definition of family violence will give greater understanding to parents of what family violence means, and clearly sets out what behaviour is unacceptable;
Clients and their lawyers will be able to prepare clear and relevant evidence in their case as a result of the new definition of family violence (in the past it was more ambiguous);
Child protection authorities, such as the Department of Families, Housing, Communities and Indigenous Affairs (formerly the Department of Community Services) will be able to act with greater certainty.

Despite the aim of the amendments being to assist victims of domestic violence to properly disclose relevant acts of violence and better understand what actually constitutes family violence, it is sometimes the case (unfortunately) that allegations of domestic violence raised in a family law matter are false. If a person is found to have knowingly made false allegations of domestic violence, the family law courts will continue to have the power to make costs orders against the accuser and it remains a criminal offence to knowingly make a false statement in court proceedings.

In cases that do not involve family violence, the amendments to the Act will have little impact upon how the family law courts will determine those matters.

In the future

At a State (New South Wales) level, the Government is in the process of preparing a Domestic and Family Violence Framework. This Framework is being set-up following a number of recommendations made by a Parliamentary Committee that was formed to review the current domestic violence legislation and the services available for victims of domestic violence.

The recommendations made by the Committee included the funding of specific domestic violence liaison officers throughout New South Wales, changes to Apprehended Domestic Violence Orders, particularly at an interim level, and greater attention being given to early intervention practices.

We expect to hear more about these changes when the Framework is released for public comment later in 2013. Overall, however, we can be assured that both the State and Federal Governments are trying to streamline legislation and put adequate systems in place to address family violence and to prioritise the safety and wellbeing of children.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Specific Questions relating to this article should be addressed directly to the author.

Gotcha tapes disliked by court

on February 4, 2013 by admin

audio-surveillance IT COULD be called gotcha litigation, except that it usually backfires on the party laying the trap.

Family court lawyers have observed a trend among litigants to secretly record themselves in conversation with their partners in an attempt to gather evidence against their foe.

It rarely pays off.

Federal magistrate John Coker said of one such recent case that the recording held little probative value and reflected worse on the person who made it.

”It is a matter which arises all too frequently, particularly in family law proceedings, and seems to have gathered support not only from parties to proceedings but also from legal representatives,” Mr Coker said in his judgment earlier this month.

”It would seem, clearly, to be an evidence-gathering exercise and one that, in my view at least … gives rise to serious concerns as to the behaviours of the party who records such evidence.”

Rachel Stubbs, a family law solicitor based in Wollongong, said it was a common technique among parents, but one she did not encourage.

One client recently wanted to use videotape evidence of her child refusing to go to her father at handover to prove the girl was unhappy in his custody.

Ms Stubbs refused to use the footage in court, and the client took her business elsewhere.

”I think [judges] see it as adding to the conflict, and it does add to the conflict,” Ms Stubbs said.

”I’ve seen it happen where parents have coerced children into making allegations of abuse by the other parent where there’s little other evidence. It reflects extraordinarily badly on the parent.”

The Family Court has grappled with the admissibility of such evidence.

A judge ruled in Hazan v Elias last year that the father’s recording of his conversation with the family consultant was inadmissible under the Evidence Act.

But in a 2008 decision, Latham v Latham, the court allowed the father to tender recordings of the mother that ”painted her as a seriously bad child abuser”, because the benefits of the evidence outweighed the way it was obtained.

The case before Mr Coker was a custody dispute in which a friend of the mother taped conversations to hold up as evidence that the father publicly denigrated the mother.

In one recording the father described the mother as ”old”, which Mr Coker said was clearly spoken in jest.

”There is little weight that can be put on evidence gathered in that manner,” he said.

The party who knew the recording was being made was likely to be on their best behaviour. But the behaviour of the other person could not be taken as typical, given the emotional nature of marital disputes, and especially those involving children.

Graeme Page, SC, who represented the father, said recordings could be a useful evidence-gathering exercise, but they were worthless in court.

”They quite often give information to counsel as to what has taken place and the nature of the person and the way that [counsel] will cross-examine them,” Mr Page said.

Family provision – are parents obliged to provide for an estranged adult child?

on February 4, 2013 by admin

will-and-testament There is a tension between the right of a Will-maker to choose who will benefit from his or her estate and the frequent expectation by adult children that they will be the primary beneficiaries of their parent’s estate. The law recognises this tension and attempts to balance competing interests by allowing a Will-maker to leave their estate as they choose and also allowing disappointed children to make a legal claim for some or further provision from a deceased parent’s estate.

Estrangement

The question of appropriate provision is further complicated when the relationship between the adult child and the parent was marred by estrangement. Estrangement is a rift in relations and may be used by a parent as a reason to reduce a child’s benefit under a Will or to deny them any benefit at all. The Court must weigh this factor against the child’s need for provision from the estate by determining what moral duty (according to prevailing community standards) the parent had to provide for the child.

The Succession Act (2006) (NSW) allows a child to make a claim for some, or further, provision from a deceased parent’s estate. The Court may make an Order for a child’s proper maintenance, education or advancement if satisfied that there is justification for doing so.

The Succession Act contains a list of matters that the Court may take into account when considering whether or not to make provision from an estate for a claimant. These include the:

family relationship between the child and the parent, including the nature and duration of the relationship;
nature and extent of any obligations or responsibilities owed by the parent to the child; and
character and conduct of the child before and after the parent’s date of death.

The Court will look at the reasons behind the estrangement and may find fault with either or both the parent and the child, and if appropriate, adjust entitlements in the estate accordingly.

Two matters determined in the NSW Court of Appeal in 2012 provided further commentary on estrangement between an adult child and their parent.

Keep v Bourke

Joyce Keep left her entire estate to two of her children, to the detriment of her other child, Marion Bourke, from whom she was estranged for 38 years. Mrs Keep’s Will included the following statement:

“I HAVE made no provision in this my Will for my daughter MARION GAY BOURKES [sic] because of her complete lack of concern or contact with me and other members of my family over a long period of time”.

The breakdown in relations commenced in 1971 when Marion’s parents did not approve of her marrying and returned their wedding invitation with a note saying “we do not want anything to do with you”. Marion saw her mother five times in the ensuing 38 years, the final time being Marion’s only deliberate effort to see Mrs Keep, having been notified of her impending death. Mrs Keep had made no attempt to see Marion at all. Mrs Keep was held to be the instigator of the separation, though Marion did not attempt reconciliation.

The Supreme Court made a determination that Marion had a need and was entitled to provision of $200,000 from an estate worth $623,000, despite the competing claims of her siblings, who were also in need of provision. The Court of Appeal adjusted Marion’s provision to $175,000, there being “a reduction recognising Marion’s contribution to the estrangement”.

Andrew v Andrew

Like Keep v Bourke, this case involved a long estrangement between a daughter, Lynne Andrew and her mother, Rita Andrew.

There was no hostility between Lynne and her mother, rather, the relationship simply faded after Lynne graduated and left home in the early 1970s. Lynne later suspected that Mrs Andrew would disown her for having a child out of wedlock and also on account of her homosexuality. No evidence was tendered that Mrs Andrew disapproved of the illegitimate child or that she was aware of Lynne’s homosexuality.

Having received a legacy of $10,000 in the Will, the Supreme Court had determined that Lynne should receive no additional provision from Mrs Andrew’s estate. However, the Court of Appeal determined that Lynne should receive an additional $50,000 from an $800,000 estate despite initiating and maintaining the estrangement:

“As explained by the primary judge, the term “estrangement”, which was aptly applied, does not describe conduct, but the condition which results from the attitudes or conduct of one or both parties… At least when kept within reasonable bounds, the negative consequences of such a process should arguably be ignored or at least not given disproportionate significance when assessing the expectation that a parent will provide for a child whose condition in life is financially disadvantageous, when compared with other claimants on the testator’s conscience.”

Conclusion

These two cases are similar in that they involved estrangements of over 35 years between a daughter and her mother. Both daughters demonstrated that they had need for provision from their mothers’ estates but the outcomes were substantially different, in part according to who was considered to have initiated and maintained the estrangement.

Every family provision claim is different and will be judged upon the facts (importantly, including the needs of the claimant and the other beneficiaries). Whilst estrangement can certainly be a factor in reducing a child’s claim on their parent’s estate, the Court will not necessarily regard it as justification for virtually or totally excluding an adult child as a beneficiary.