Monthly Archives: July 2018

Domestic Violence victim wins $243,000 in damages against ex-husband

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justice-scalesA woman who was assaulted and held captive by her husband in a terrifying four-hour ordeal has been awarded more than $243,000 in damages, including for psychiatric counselling and medication.

Naomi, not her real name, was 40 years old and had been with her then-husband for 20 years when he grabbed her by the throat as she was preparing dinner on July 4, 2015, and attacked her with a knife.

During the course of the 4½ hour ordeal she was stripped naked and her mouth and wrists bound with electrical tape before her neck and breasts were slashed with the knife.

Naomi feared for her life when her husband told her: “I will not be walking out of this room. I am not sure if I am going to take you with me or not.”

But he subsequently relented and took his wife to the hospital where she was treated for her injuries and gave a police interview.

Naomi’s former husband is already serving a lengthy prison sentence for the crimes. He did not appear in court but was aware of her case in the NSW District Court.

The court found she was left with “a deep gash to her wrist, one significant cut to her right breast, two to her left breast and a less significant cut to the right side of her neck”, all of which caused significant scarring.

Naomi told a psychiatrist she was she was “no longer the same person” and had become isolated and withdrawn as a result of the attack. She also suffered from panic attacks and insomnia.

The court heard she had previously regarded her husband as a “protector”, although an incident in 2001 led to a period of separation. In 2015, her husband became “controlling” and she felt “suffocated” by him needing to know where she was at all times.

Naomi’s case is not the first time a woman has sued a violent ex-partner for damages, but it is one of a relatively small number of cases.

In 2002, the NSW Court of Appeal upheld a District Court judgment awarding a woman $572,815 after her then-husband attacked her just months into their marriage. The assaults left her with deep vein thrombosis.

In 2009, the NSW District Court awarded a second woman $324,549 after her former partner subjected her to ferocious assaults, which resulted in serious injuries including a collapsed lung and her upper teeth penetrating her lower lip.

Victims of domestic violence can also seek redress under the Victims Rights and Support Act, which offers compensation for violent offences outside the courts process. The baseline compensation is $1500.

In this case, District Court judge Philip Taylor awarded Naomi $243,254 in damages, including $150,000 for the assaults, $25,000 for false imprisonment and a further $50,000 in aggravated damages.

The figure also included almost $13,000 for out-of-pocket expenses including psychiatric counselling and medication for post-traumatic stress disorder.

Judge Philip Taylor said he took into account the fact Naomi was “scarred for life” and had continued disabilities in her left wrist. He said her physical disabilities and PTSD, “are, like her scars, going to persist to some extent for life”.

Court rules doctors can operate on baby’s brain, despite parents’ objection

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lady-cilento-childrens-hospital-brisbane

The boy was in Lady Cilento Children’s Hospital in Brisbane.
Photo: Christopher Frederick JoneH

A baby suffering from a severe form of epilepsy will undergo brain surgery in a bid to stop his seizures, after the Supreme Court ruled it was in the child’s best interests.

The boy, known as “baby K”, was born with a brain abnormality that causes him to have frequent and serious convulsions.

He has had alternative treatments including cannabis oil and a ketogenic diet, as well as conventional medical treatments such as anticonvulsive drugs, some of which have had serious side-effects and effectively sedated him.

The child’s social worker told the court he had also received traditional remedies from his parents’ home country, including treatment with holy water, prayers by a monk and traditional ceremonies in which smoke has been administered to him at the parents’ request.

But the court found all the treatments had been “ineffective”, resulting in numerous admissions into the paediatric intensive care unit.

Baby K’s seizures are felt only on the left side of his brain, but as time has gone on, the seizures have begun to affect the other “good” side of his brain, the court heard.

His doctors told the court they were of the “firm opinion” that the only way to preserve his brain and give him the best chance of a future life was to perform a functional hemispherectomy.

They described it as a “serious operation” that would involve disconnecting the two sides of his brain to preserve the intact “good” side, with the aim of preventing or reducing the child’s constant seizures.

K’s parents refused to consent to the operation so the matter ended up in court.

“That is not because they do not love their baby – they clearly do – but because they retain hope that traditional remedies might provide what might be described as a miracle cure. This is in accordance with their sincerely held religious and cultural beliefs,” the judgement stated.

“However, for further traditional remedies to be attempted, that would now require a flight to their home country with the baby which, no matter how efficiently it was done, would be very arduous. There is no evidence that he could receive the expert level of expert medical care that is available to him in Brisbane, in addition to the traditional remedies, if he were to return to his parents’ home country.”

In her ruling, Justice Roslyn Atkinson said she had “thought long and hard about it” because it was not the parents’ preference.

“He is their child, and it is they who will be bringing him up,” she said.

“It is they who will be with him before the operation and be with him while he recuperates and once he is discharged from hospital.

“But I am satisfied that the operation is in his best interests, and … that their love for their child and involvement in his physical, emotional and spiritual development will stay with him through the days and weeks, months and years to come.”

Justice Atkinson authorised the boy’s medical team to perform the procedure and to undertake any necessary care and intervention including a pre-operative MRI, blood transfusions and the placement of a shunt in the event he develops hydrocephalus after surgery.

NSW gun law reforms considered after John Edwards murder-suicide

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NSW Police Minister Troy Grant

NSW Police Minister Troy Grant

Asking partners and ex-partners for a character reference before a gun licence is issued is one of the gun reforms being considering in the wake of the shooting deaths of Sydney teenagers Jack Edwards and Jennifer Edwards last Thursday.

NSW Police Minister Troy Grant is today meeting with NSW Police Commissioner Mick Fuller to discuss the possible changes to the state’s gun laws.

Other options on the table are to allow police to perform gun checks when courts, including the Family Court, deem children to be at risk and allowing GPs to raise the alarm when a patient has mental health issues.

Legislation that improves communication between the Family Court, gun clubs, doctors and police could be a way to help prevent deadly shooting attacks, the NSW police minister says.

The 68-year-old financial advisor legally bought the powerful handguns used in the killing months earlier while he was involved in a drawn-out custody battle with the children’s 38-year-old mother.

Mr Grant said his government won’t be making “policy on the run” but was open to revising gun laws, as is being advocated by the NSW opposition.

Improving communication between legal, firearm and other authorities was one option on the table, he said, noting that the Family Court of Australia offered a “big opportunity” for information sharing.

“Information flow is always among the most critical opportunities that are out there,” he said.

“That’s something we’re absolutely exploring.”

NSW Premier Gladys Berejiklian said the government doesn’t want a repeat of such a tragedy and will make changes if necessary – but without “overreach”.

“We want to make sure what we have in place is as strong as it can be and that nobody falls through the cracks,” she told reporters.

“I feel personally responsible to make sure we keep the community safe at all times and if there is something we should be tweaking or doing, we will do that.”

It’s believed the talks will consider whether police should conduct checks on firearms when court custody disputes are linked to a “notice of risk” to children.

In order to get a gun licence in NSW, a person must not have been subject to an apprehended violence order within the past 10 years.

Meanwhile, a petition by the Women’s Domestic Violence Court Advocacy Service NSW has called on the government to ensure women are consulted if their current or former partner applies for a gun.

“Women must be consulted before dangerous weapons are issued, especially where there is a history of domestic and family violence,” the organisation’s president Renata Field said in a statement.

The Shooters Fishers and Farmers Party’s Robert Borsak said the Mr Grant was wrongly putting the blame on law-abiding gun owners.

“The NSW Police Firearms Registry has a lot of questions to answer, but this is being drowned-out by the police minister and the commissioner as they try and manipulate the message and scapegoat law-abiding shooters,” he said in a statement.

Narcissistic Personality Disorder in the Family Court

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Why can’t you both just get along for the sake of the children?

Narcissistic-Personality-DisorderThose words are like nails on a chalkboard to anyone who has been through a divorce with someone who suffers from Narcissistic Personality Disorder (NPD). While divorce can bring out the worst in a healthy person, a divorce involving someone with NPD is like inviting the devil himself onto the battlefield. The narcissist appears to be charming, charismatic and endearing to those whom he encounters yet outside of the courtroom, he is calculated, manipulative and many times, downright dangerous. The untrained observer may perceive the situation to be about two immature parents who are not capable of putting their children first.

Sadly, many of the untrained observers are the very people who are tasked with deciding the fate of the children caught in the middle of these highly contentious custody battles. A narcissist is like the modern day version of Dr. Jekyll and Mr. Hyde. I once tried to explain to the Judge in my own divorce case that I didn’t know the man sitting 5-feet to my left. The man sitting next to me in the courtroom was not the same man who I was attempting to co-parent with. This man claimed to love his children and want to spend time with them however; his actions did not match his words.

According to the DSM IV-TR, between 2 percent and 16 percent of the population in clinical settings are diagnosed with Narcissistic Personality Disorder. Some argue that we should be working diligently to educate the Family Court on these individuals however, such education seems to be the last thing the Family Court is interested in pursuing. After a contentious custody battle with a narcissist which spanned over four years, I have witnessed many of the cracks in the Family Court first-hand.

  • Words vs. Actions: When words and actions are not in alignment, further investigations should take place. Narcissists are master manipulators yet their actions are never in alignment with their words.
  • Perjury: Changes need to be made when it comes to individuals who are caught lying. Perjury is taken very seriously in every courtroom except the Family Court System.
  • Education on Personality Disorders: Education on NPD needs to begin in law school and continuing education on personality disorders should be mandatory for each person who has a hand in the Family Court such as Independent Children’s Lawyers, Judges, Counsellors, Family Report Writers and Solicitors.
  • The Best Interest of the Child: Cases are often pushed through the courtroom like cattle. Ample time needs to be devoted to hearing high-conflict cases. When it takes longer to adopt a puppy from the dog pound than it does to decide the fate of a child, something is very wrong.
  • Court Orders: Even with court orders in hand, it can be difficult to enforce court orders. When dealing with individuals with NPD, court orders need to be very concise and void of wiggle room. If there is any room for manipulation in court orders, a narcissist will find it.
  • Parental Rights vs. Best Interest of the Child: While the Family Court System is supposed to act in the best interest of the child, this is not happening. Parental rights seem to carry more weight than what is truly in the best interest of the child. The ability to procreate should not automatically guarantee rights that override a child’s well-being.

Related Family Law Judgments

Husband cleared to sue family lawyer over prenup

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prenup-agreementA court has given the green light for a family lawyer to be sued for misleading and deceptive conduct over claims he failed to properly advise a woman about the consequences of signing a prenuptial agreement.

The decision known as Bolden & Woodruff [2018] FCCA 1439 is likely to add to reluctance among family lawyers to advise clients on binding financial agreements, or “prenups”.

The couple, who had been in a de facto relationship for about 11 years, entered into a ­financial agreement in 2015.

The wife, known as “Ms Bolden”, is now seeking to set aside the agreement on the ground she was not properly advised ­by the Brisbane family lawyer ­before she signed it, as required by the Family Law Act.

The husband, known as “Mr Woodruff”, sought leave to join the wife’s solicitor as a respondent so he could sue the solicitor for damages under the Competition and Consumer Act for misleading and deceptive conduct.

In a decision published last week, Federal Circuit Court judge Margaret Cassidy agreed the solicitor should be joined as a respondent, because she said the same set of facts gave rise to the wife’s claim against the husband to set aside the agreement, and the husband’s claim against the wife’s solicitors for misleading and deceptive conduct. She said the Federal Circuit Court had jurisdiction to deal with both legal claims.

Paul Sansom SC said there were difficulties entering into binding financial agreements for couples who were starting out in married life because it was not possible to predict what the ­future held.

Related Family Law Judgments

Can your SMS Text Messages be used as Evidence in the Family Court?

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Social-MediaCan SMS Text Messages be used as Evidence in the Family Court? The short answer to this is YES, YES and YES again.

In fact, not only are SMS text messages admissible as evidence in the Family Court (and all other family law jurisdictions), but so are emails, Facebook posts, Twitter tweets, skype transcripts, and YES, even comments on our very own Family Law Express forum, and any other electronic messaging that have become ubiquitous in the time of accessible mass communication.

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For instance, in a recent hearing at the Federal Circuit Court,  Judge Warwick Neville ordered a marshal to investigate Facebook postings made by a father involved in an acrimonious child custody dispute. The unnamed father had reportedly made harsh criticisms of the court system on the social networking site. The man had also revealed confidential information about the case, claimed the magistrate and expert witnesses had been duped by the mother and even alleged that the mother abused their children.

In another case, a mother in the middle of a custody dispute hds been caught boasting on her Facebook page how she thought about ripping her husband off for another $20,000. “Felt like being a smart arse,” she wrote, signing off “Bwahahaha lol.”  Lawyers are now advising their clients locked in Family Court fights to take down their Facebook pages as the networking site has become both the latest weapon and target for warring spouses.

Did you know that Family Law Express are on Twitter? Yes indeed, and we have almost 500 followers. So why not join the two-way instant communication revolution. http://twitter.com/familylawxpress

But this ominous warning is one that is simply not being heard by many parents, with emails and SMS text messages now being the single most relied upon form of evidence submitted in family law proceedings in Australia, even carrying significantly more weight because they are often not disputed.

outlook pluginHowever, apart from the obvious, electronic messages can play a vital role in your family law circumstances, even if you are not planning on going to Court. Many disputes hinge on whether one parent or the other has received (or read) a particular email, which can be very hard to prove sometimes.

I recently attended a hearing in Court in assistance of one of the members of Family Law Express. In this case there was an interesting dispute over evidence, being an alleged email.

The father  insisted that he sent an email to the mother on the day that the child was to be returned to her, advising her that the child was ill and that she may be returned late. The child was ultimately returned back to the mother late.

As the parents had a poor relationship, email correspondence was the standard way that they would communicate, so the fact that the father had alleged that he sent an email advising the mother of this event was not out of the ordinary.

The mother however claimed that there was no email. She alleged that this was all part of a pattern by the father of late deliveries, and that the ‘email’ story was a concoction made up as an excuse for Court.

Now this issue, as it so happens, was not further investigated by the Court, but had it been, it could have ended up being a key deciding issue leading to the credibility of both of the parties.

Outlook ExpressHad proper measures been taken by the father, for instance, he could have, assuming he was telling the truth, proven that not only did he send the email, but that his ex-wife actually read the email. He could also have also shown what time she read the email, for how long she read it, from what location and internet account, and even from which computer.

As it should be clear in this instance, with a little preparation, the ex-wife could have been conclusively shown to have ‘lied’ or mis-represented the facts in Court on this matter, had she in fact been untruthful.

I raise this story because time and time again I have cautioned separating parents to think carefully about the emails they send during the ‘difficult’ early periods of separation.

I also urge separated parents who correspond primarily via email to safeguard their correspondence by either BCCing a trusted friend, by using a standard Return Receipt facility if available in your email client, or ideally by using a professional email forensics service such as ReadNotify, which not only provides Court admissible proof that an email has been sent, but also when it has been read by the other party. (and provides extra services like self-destructing messages after having been opened once, which makes it difficult to copy or print the email contents.

ReadNotify - track your emailsFor a free trial of ReadNotify , simply register via teh below website, or download the email client add-ons, as listed below/

The free trial lasts for two weeks or 25 emails (whichever comes first). 

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These add-ons work with your existing email client on your computer. When you send an email, you will see a new button that will give you the option to track it if you wish. After you sent the first tracked email, the system will register you for the Free Trial.

What Does ReadNotify Do?

  • ReadNotify provides email tracking and proof of sending as well as reading.
  • Readnotify records when, where and how long an email was read.
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