Family Law Express News http://www.familylawexpress.com.au/family-law-news preparing yourself for family court... Sat, 18 Apr 2015 23:16:54 +0000 en-US hourly 1 http://wordpress.org/?v=4.1.3 Fake Relationship Rorts Targeted by Centrelink http://www.familylawexpress.com.au/family-law-news/familyassistance/single-parents-pension/fake-relationship-rorts-targeted-by-centrelink/2901/ http://www.familylawexpress.com.au/family-law-news/familyassistance/single-parents-pension/fake-relationship-rorts-targeted-by-centrelink/2901/#comments Sat, 18 Apr 2015 23:15:11 +0000 http://www.familylawexpress.com.au/family-law-news/?p=2901

Minister for Human Services Marise PayneHundreds of couples are claiming false marital and relationship status to rort millions of dollars from Centrelink.

In one case a couple claiming to be separated but who were living under the same roof were found to be lying when they announced on Facebook they were expecting a baby.

“Welfare recipients who deliberately fail to declare a new or existing relationship to the Department of Human Services are breaking the law,” Minister for Human Services Marise Payne said.

Last year, 634 people were ordered to pay back $7 million after they were caught falsely declaring their relationship status to get additional payments from Centrelink.

“The consequences of welfare fraud are serious. Sentences can include jail time and people will be forced to repay the benefits they were not entitled to,” Ms Payne said.

Investigators last year conducted 120 investigations into people suspected of being an undeclared member of a couple and 16 were referred to the Commonwealth Director of Public Prosecutions. Half have gone to court.

Rorters are also going online and coaching others on what forms to fill out and what to say in order to claim the extra benefits that go with being separated but living under the same roof.

Tania Sharp was living in the same house with Darren O’Brien, the father of her two youngest children, but was claiming a single parenting payment because she said they were not a de facto couple.

But in January last year she put a message on Facebook saying: “To all of our family and friends … We are expecting a little girl in August. Fingers crossed all goes well xxx — with Darren O’Brien.”

After friends posted their congratulations she wrote: “We had two miscarriages last year so this is the best news. Thanks. we are over the moon!!”

Four months later Centrelink cancelled Ms Sharp’s single parenting payment on the basis they were a couple.

Ms Sharp made several appeals against the decision, arguing the pregnancy was the result of a one-night stand with her ex-partner.

Administrative Appeals Tribunal member Regina Perton said the Facebook messages about the pregnancy “all seem to point to a desired baby that both her parents-to-be were excited about”.

Unlike with their first child, Mr O’Brien also attended the birth of the baby girl.

Ms Perton said Ms Sharp’s claims to be financially independent from Mr O’Brien were also not as clear cut as argued.

“Ms Sharp would not have been living in that property had Mr O’Brien not paid the deposit,” she said. “The tribunal finds Ms Sharp was a member of a couple (when Centrelink cancelled the payment).’’

Related Family Law Judgments

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Four Italian girls’ Mother cries Wolf one more time http://www.familylawexpress.com.au/family-law-news/children/childabduction/internationalchildabduction/four-italian-girls-mother-cries-wolf-one-more-time/2896/ http://www.familylawexpress.com.au/family-law-news/children/childabduction/internationalchildabduction/four-italian-girls-mother-cries-wolf-one-more-time/2896/#comments Tue, 14 Apr 2015 01:59:38 +0000 http://www.familylawexpress.com.au/family-law-news/?p=2896
Four-Italian-girls-and-their-mother

Four Italian sisters with their mother, Laura Kate, in Italy

Oh what a tangled web we weave, when first we practise to deceive!

Perhaps the only one who can accept blame for no longer being believed by anyone is the Australian mother, Laura Kate, at the centre of this sordid affair.

The extent of her deception is by now well known to most, especially after it was revealed in sordid detail in a 60 Minutes special last year.

Well, to re-inforce this point, 60 Minutes did a follow up interview with the two eldest daughters, aired last Sunday.

To which it was clear that there was no sign of any abuse of the daughters, abuse which Laura Kate claimed permeated their whole family, do the degree where the father was alleged to have also sexually abused the girls.

All these allegations were nothing more than convenient lies.

In fact the girls claimed that they were happy, and they felt loved.

In any case Laura Kate, who initiated the resulting international media frenzy by making sordid allegations against the father via the media, and by encouraging the girls to repeat these allegations on video, all of a sudden believes that exposing her daughters to the shear light of the media is not good for them.

Hmm, some would argue of course that perhaps it has more to do with the girls current happy-ness, which only underlines the extent of the mother’s deception.

Laura Kate wrote to 60 MInutes and Channel 9, pleading with them not to air the interview with the girls on national television.

The letter reads:

“Tara,

My lawyers have advised me to contact you with regard to the entertainment piece you propose to air on 60 Minutes as they are unable to represent me in Australia…

I am currently in Italy spending the last few days of some very precious time with my daughters and it was brought to my attention only yesterday that you had interviewed my daughters without my knowledge or consent.

As a mother to a young child, I’m sure you can appreciate my concern over the disrespect to me as their parent and would certainly not allow anyone to approach your child to appear in a tv segment to be shown internationally without your knowledge or consent.

Not only that, the girls were bribed with money and when they said no, offered even more money, which is simply an unconscionable act. How dare anyone!

Perhaps you [believed] I had authorised or consented to the girls being interviewed prior to having my lawyers intervene.

As their parent with active custodial rights I did not consent to the girls being interviewed and I would never consent to them being interviewed, particularly when they’ve only recently spoken to a judge in a pending case about their future.

In addition, both parties have been court ordered to not speak with or make statements to the media as part of previous rulings.

As the commercials started to air yesterday and the hate campaigners came back out in force (many on the 60 Minutes Facebook page – how do you think the girls will feel to read those nasty, hurtful comments?), my daughters told me the truth about what had happened.

The girls were advised … not to tell me that they’d spoken to the media or participated in staged interviews ….

I have spent much of the last 24 hours consoling all four girls ……. They’re distraught and in an extreme state of stress ……….

Contrary to what [you may have been told] he did proceed with criminal charges against me and tried to have my parental rights removed entirely.

What [they] may not have also advised is that we’re still in the middle of custody and divorce proceedings that are still being decided.

Claire and Emily Vincenti, two of the four Italian sisters at the centre of a custody battle talk to 60 Minutes.

Claire and Emily Vincenti, two of the four Italian sisters at the centre of a custody battle talk to 60 Minutes.

Allowing your segment to go ahead is a violation of the court ruling regarding no media involvement and simply adds additional stress to the girls’ lives which is not necessary and extremely hurtful to them as children.

Tara Brown, you and 60 Minutes have already put our family and my children through hell with your previous one-sided, inaccurate story which aired solely for ratings and for the entertainment of people who do not give a damn about my children and their physical or emotional welfare.

I ask that you do not do this again. Perhaps your intent is to fully destroy and discredit me and my family, but I doubt you’ve taken one second to consider how that affects the girls now that they realise they were manipulated and used simply because they’re a good ‘story’.

On behalf of my four daughters, and as a mother who is deeply concerned for how they will cope when I am not there to support them and they are left to their own devices to cope with the fallout from the segment airing, I ask that you show some humanity and compassion, put your ego aside, and leave me, them and our family alone.

It is traumatic enough that the court system has been so slow to rule in each case. Don’t make it worse for the girls because you want to attempt to destroy my reputation once again, because it’s your ‘job’.

Being a good human is a far more important job; one I would hope you’re teaching your son.

Please consider this my formal request to not air the segment you’ve produced involving my daughters.”

Related Family Law Judgments

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A Child’s Right to be Heard http://www.familylawexpress.com.au/family-law-news/children/child-safety/a-childs-right-to-be-heard/2888/ http://www.familylawexpress.com.au/family-law-news/children/child-safety/a-childs-right-to-be-heard/2888/#comments Sat, 04 Apr 2015 01:55:37 +0000 http://www.familylawexpress.com.au/family-law-news/?p=2888 children speak upThe welfare of a child is a “paramount consideration” when making any decision that may affect them. This fundamental principle is formalised by the Family Law Act 1957 (‘FLA’), echoing the requirements of the Convention of the Rights of the Child to give children a voice in court, either directly or through a representative.

When directly participating in litigation, children are vulnerable to becoming a weapon of their parents’ disputes, used to achieve one party’s desired outcome.

Even when children act on their own interests, their insight may be limited by their age or maturity.

As a result, Australian courts prohibit children from being present at their parents’ court proceedings unless called upon by a court order.

Instead, their long-term needs are determined and expressed through a medium or representative – commonly a family consultant’s report, expert witness or independent children’s lawyer.

This considers the ‘best interests’ of the child while minimising distress.

Following a court order or individual application, children’s views are captured by ‘family reports’ in 60% of cases.

They are often required where the children are mature enough to express their own wishes or are victims of abuse.

Written by family consultants who must “ascertain” and “include the views of the child”, family reports are the second most referenced documents in judgements.

Therefore, both the child’s current wishes and future needs are articulated, strongly influencing the outcome.

If a family report is insufficient and specialist knowledge is required, experts may be employed to represent the child’s stance.

Either by application or court order, the expert will be selected through mutual agreement of the parties or the court. Restrictions on expert examinations are in place to ensure children are not traumatised by excessive interviewing.

Additionally, assessors may aid the judge’s understanding of expert evidence but are rarely appointed. Other mediums that may complement expert or family reports include “affidavit, video conference, closed circuit television or other electronic communication” as suggested by Family Law Rules 2004.

Although the reports are prepared for trial, they can encourage settlement in the 95% of family disputes that do not go to court.

If early settlement occurs, one can only hope that the warring parents have agreed on an arrangement that respects their child’s needs.

Parenting plans are written agreements about each parents’ responsibilities. This may include the child’s residence, time with each parent, maintenance and contact with others.

The FLAencourages but does not require parents to regard “the best interests of the child as the paramount consideration”. Fortunately a dysfunctional parenting plan can be altered by subsequent agreement.

Further, it has minimal legal value apart from overriding earlier court orders and becoming evidence for later court cases. Only a judge’s parenting orders are legally enforceable.

Overall, family courts have shifted towards a less adversarial approach. The whole procedure is simplified and negotiation-based with discussion guided by judges rather than parties.

At his own motion, the judge can question witnesses and call for evidence. If the judge excessively intervenes with the conduct of counsel and subsequent outcome, the decision can later be overturned.

Contrary to the win-lose mentality generated by an adversarial system, this co-operative model focuses on the child’s welfare.

Amid a complex adult conflict, it is easy for a child’s small voice to be warped or lost. The Family Court of Australia provides a representative network and procedural safeguards that both protect and involve the innocent third party.

Related Family Law Judgments

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Imprisoned for false accusation of rape http://www.familylawexpress.com.au/family-law-news/familyviolence/falseallegations/imprisoned-for-false-accusation-of-rape/2883/ http://www.familylawexpress.com.au/family-law-news/familyviolence/falseallegations/imprisoned-for-false-accusation-of-rape/2883/#comments Tue, 31 Mar 2015 06:30:41 +0000 http://www.familylawexpress.com.au/family-law-news/?p=2883 erasing-the-scales-of-justiceAfter 10 months in custody for a sexual assault that never occurred, Stephen Black, 46, sued the police for wrongful arrest, false imprisonment and malicious prosecution last November, 2014.

Miscarriage of justice is now a real danger, in a “terrible climate” clouding the truth in sexual assault cases.

Wrongfully charged for raping a teenager from the time she was aged 10 to 14, Black wasted away within the walls that housed rapists and murderers.

Despite being refused bail three times, his freedom eventuated when a separate report made by the same girl was falsified.

In this separate case, the then 17 year old claimed to have been walking the streets of Baulkam Hills when she was abducted by five men in a car and gang-raped.

It took extensive investigations by 10 officers to disprove this grim tale.

Rape is among the most difficult crimes to prove or indeed, disprove with its ‘he said/she said’ dilemma.

Pooled from faded childhood memories, evidence is especially unreliable where the alleged victim is underage and litigation is delayed.

However, errors in recall could indicate a false report and must be examined.

There were clear inaccuracies in the girl’s written statement, which contradicted her mother’s account and Black’s physical features – inaccuracies the police negligently overlooked.

The girl described Black’s penis as circumcised when it was uncircumcised, and insisted that she could tell the difference.

Familiarised with the statement and having inspected the suspect’s genitalia during a strip search, the police would have been well aware of this inconsistency.

Were it not for their failure to raise this topic during a three hour interview with Black, he would likely have been released immediately.

Instead, he was unable to defend himself, later protesting, “I can disprove every point she made but I was never given the chance.

I was just sent to jail.”

Moreover, the police admitted they knew Black was probably innocent.

He awaits apology from the police for unlawful arrest conducted in a “high-handed, calculating, humiliating and oppressive manner”.

Black’s Lawyer, Greg Walsh is concerned that the mass hysteria surrounding child sexual assault prevents fair trial for the accused.

Sex crimes have gradually moved to the public forum following a string of highly circulated cases including the conviction of ‘Hey Dad!’ lead, Robert Hughes, and a Royal Commission inquiry into child sexual assault.

With State support, rape victims have become more likely to report their experiences.

The number of reports to NSW police skyrocketed to a four year high in 2013.

These climbing figures are easily misinterpreted as an actual surge in sex crimes, fanning community concern and sympathy for victims.

While rape victims were once unduly shamed, their accusations are now automatically believed.

Today, the victims of the system are the falsely accused who are “guilty until proven innocent”. The result is equally unjust.

While on remand, Black lost his job as a commercial landscaper and has struggled with re-employment, even after charges were dropped in September.

The horrific ordeal has tainted Black’s once “easygoing” character with bitterness.

Litigation and its financial pressures has distressed the whole family, possibly contributing to his father’s death.

These are the real repercussions of unfair process.

Ultimately, despite Black’s suffering, the false accuser remains anonymous due to her psychological condition.

Neither Walsh nor the police intend on pressing charges against her.

This over-arching decision has been supported by Bravehearts director, Hetty Johnson, who fears that charging the accused would intensify the”silence, secrecy and shame” of actual victims.

Rape victims rarely step forward, with only an estimated 2 to 10 percent of rapes being reported. The risk of community slander and legal punishment if they fail to prosecute their attacker would only discourage them further.

The flaw of this logic is that showing compassion for false accusers generates more false reports, squandering valuable resources and proliferating myths about women that ‘cry rape’ for revenge, attention or other personal motives.

As Walsh explains, the “pendulum has swung too far.

It has to come back somewhere in the middle”. Rape is a horrendous crime, and so too is the imprisonment of the innocent.

To protect the public against both, the accused’s right of self defence must be balanced with gender-sensitivity. Only then can the truth be uncovered.

Related Family Law Judgments

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‘Sexting’ can now lead to Jail in Victoria http://www.familylawexpress.com.au/family-law-news/evidence/sms-texts/sexting-can-now-lead-to-jail-in-victoria/2881/ http://www.familylawexpress.com.au/family-law-news/evidence/sms-texts/sexting-can-now-lead-to-jail-in-victoria/2881/#comments Tue, 31 Mar 2015 06:11:12 +0000 http://www.familylawexpress.com.au/family-law-news/?p=2881
Sexting

Using a carriage service to harass

The Victorian parliament has passed ‘sexting’ laws in November, 2014, prohibiting the sharing of another’s intimate images without their consent.

Where the depicted individual is younger than 18, consent is irrelevant.

The two new offences of “threat to distribute intimate image” and “distribution of intimate image” were introduced by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014.

Threatened or actual sharing of intimate images can land the sender in prison for up to 1 and 2 years respectively.

These laws apply only to malicious, exploitative messaging where the distribution is “against community standards”.

The new laws refer to the community standards test, where the Courts are directed to consider “the context in which the image was captured and distributed, the personal circumstances of the person depicted, and the degree to which their privacy is affected by the distribution”, as explained by Robert Clark, Attorney-General of Victoria.

As Civil Liberty Australia (‘CLA’) has commended, the community standards test recognises the “rapidly evolving” attitudes towards technology and its uses.

It does so without holding future Victorians to current norms, adjusting to new social contexts.

The contemporary Act recognises the commonality of sending intimate messages to a loved one.

McAfee’s 2014 ‘Love Relationships and Technology’ revealed that nearly half of Australia’s adult population had received a sext message, and younger Australians had picked up on the trend too.

Previously, when student couples under the age of 18 were caught receiving intimate messages they would be charged for possession of child pornography.

Added to the sex offenders list, their career prospects and reputation would suffer for decades after.

The amending Act also plugs this loop-hole, adding an exception for the private exchange of intimate photos for under-age persons with an age gap of 2 years or less.

Praise has been swift for the innovative laws, with CLA proposing it as a “model” for a suite of legislation in other jurisdictions.

The rest of Australia awaits to see how these new laws will work in practice, before looking to adopt similar laws across Australia, for an issue that is a technologically inspired sign of the times.

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Child Support Program: Cost Cutting Practices a Disaster for All http://www.familylawexpress.com.au/family-law-news/children/childsupport/child-support-program-cost-cutting-practices-a-disaster-for-all/2877/ http://www.familylawexpress.com.au/family-law-news/children/childsupport/child-support-program-cost-cutting-practices-a-disaster-for-all/2877/#comments Sat, 21 Mar 2015 02:32:45 +0000 http://www.familylawexpress.com.au/family-law-news/?p=2877 child-support-agencyIn January of last year, staff at a Hunter drug and alcohol rehabilitation facility, the Glen Centre, were disappointed to hear that a child support outreach service from the Department of Human Services would be discontinued in 2014.

For the past four years, child support personnel had made regular visits to the Glen Centre’s clients, encouraging their cooperation with the Department in upholding their child support obligations.

The CEO of the Glen Centre, Joe Coyte, said that cancelling the outreach service was a dis-service to their clients, and their clients’ children and ex-partners.

The regular contact had established effective communication with the Department, which often paved the way for a more cooperative attitude towards paying child support.

The positive outcomes of the cancelled outreach program is in stark contrast to the overwhelmingly poor feedback regarding their contact with the Department’s Child Support Program (formerly the Child Support Agency).

In March 2014, the then Minister for Social Services, Kevin Andrews, requested a Parliamentary Inquiry into the effectiveness of the Child Support Program.

The Inquiry’s online questionnaire, which received over 11,000 responses, asked participants – both payers and beneficiaries – to rate various methods of communication from 1 (‘no use’) to 5 (‘very useful’).

The communication tools included the Program’s website, letters from Centrelink, and guides and booklets produced by the Program.

The overwhelming majority of participants found the Department’s communications tools to be inadequate. The best performer was the operator phone service, rated 4 or 5 by 19% of respondents compared to 58% who rated it 1 or 2.

The worst received was the automated phone system, which received a rating of 4-5 from only 6% of respondents, and 1-2 from 77%.

Interestingly, the highest rated communication tool – the operator phone service – was also the only tool in the questionnaire that involved any form of real-time contact with an actual person.

Comments on the Program’s flexibility and responsiveness to changes in life circumstances also indicated dissatisfaction from the majority of questionnaire participants.

Complaints included the lack of clear and consistent information, and long wait times – problems that were often compounded by the fact that individual participants rarely spoke to the same staff member twice.

One father paying child support complained that the Department had not approached him directly regarding his changed financial circumstances, but had instead sent ‘an embarrassing letter’ to his employer asking to increase the payable amount: ‘Happy to pay more, talk to us fathers, don’t demand from our employers with horrible letters’.

While the questionnaire is not intended for use as a statistical tool (as the Department has acknowledged), it does suggest that for many who are engaged with the Child Support Program, direct communication in real time with a staff member is the most effective and least stressful way for them to explain their circumstances and their needs.

In light of these results, we must seriously question whether departmental efforts at cutting costs and streamlining operations by increasing reliance on online or automated forms of communication are actually less efficient in delivering services to the community.

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The Abuse of Domestic Violence Orders in Australia http://www.familylawexpress.com.au/family-law-news/familyviolence/falseallegations/the-abuse-of-domestic-violence-orders-in-australia/2874/ http://www.familylawexpress.com.au/family-law-news/familyviolence/falseallegations/the-abuse-of-domestic-violence-orders-in-australia/2874/#comments Sat, 21 Mar 2015 01:08:23 +0000 http://www.familylawexpress.com.au/family-law-news/?p=2874
Prof-Patrick-Parkinson

Professor Patrick Parkinson

The Prime Minister, Tony Abbott, promised to create a national domestic violence order (DVO) scheme, arguing that an urgent priority for the Council of Australian Governments (COAG) this year is to address this problem.

But, remarkably, the Prime Minister shied away from talk of a national royal commission into domestic violence, saying it was a states’ issue.

Although it is crucial for our legal system to protect all victims of domestic violence, at the same time, in the context of family relations, we must recognise that restraining orders are occasionally sought for purely collateral reasons, such as when people apply for DVOs when they are not truly the victims of domestic violence. The apparent problem lies in how these orders are issued and the grounds on which they are made. Moreover, there is a visible lack of scrutiny regarding the nature and substance of these complaints.

While it is not possible to know if every violence order is legitimately applied, it is rather undeniable that many applications for such orders are misused or otherwise unmeritorious. Timing is a possible sign that a person might have sought such an order for reasons other than any reasonable concern for physical safety.

A common example is that, after individuals initiate custody proceedings at the Family Court for divorce and child custody, unethical lawyers instruct those individuals to apply for restraining orders so that they might obtain an upper hand during the court proceedings.

According to David Collier, a recently-retired judge from the Parramatta Family Court, these orders have now become a “major weapon” in the war between parents who wish to secure sole custody of their children.

Undeniably, the overwhelming majority of magistrates in Australia share this perception. For instance, a survey of 38 magistrates in Queensland revealed that 74 per cent of them agreed with the assumption that restraining orders are often used for tactical purposes. Similarly, a survey of 68 magistrates from New South Wales indicated that 90 per cent of them agreed with the statement that restraining orders are often sought as tactical devices to aid applicants with family law disputes, including depriving the former partners of any contact with their children.

The Australian public knows that false accusations of domestic violence are made, but virtually never punished when the claim is disproved. In a national survey with over 12,500 respondents, more than half agreed with the statement that “women going through custody battles often make up or exaggerate claims of domestic violence in order to improve their case, and only 28 per cent disagreed”. While one might expect that men would be more inclined to agree, 42 per cent of women did so as well.

In a national survey with over 12,500 respondents, more than half agreed with the statement that “women going through custody battles often make up or exaggerate claims of domestic violence in order to improve their case

Above all, Patrick Parkinson, a family law professor, reminds us:

“It really doesn’t matter whether this belief that family violence orders are used tactically is true or not. The fact is that the perception is out there and it is held by state magistrates and family lawyers, as well as the wider community.”

Lack of due process

At a minimum level, due process requires sufficient evidence to convict. Additionally, due process requires that proceedings be designed to allow the accused of a criminal offence or a civil wrong to be heard in a regular court, and be fully informed of the nature of the accusation. Furthermore, due process necessitates the presumption of innocence and the right to be judged impartially, including that the accused receives an adequate opportunity to prepare and to respond.

In Powell v Alabama (1932), Justice George Sutherland of the U.S. Supreme Court noted:

“Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence.

“Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defence, even though he had a perfect one.

“He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the dangers of conviction because he does not know how to establish his innocence.

“If that be true of men of intelligence, how much more true is it for the ignorant and illiterate, or those of feeble intellect.”

Unfortunately, restraining orders lack the proper application of due process because the evidentiary standards are dramatically relaxed. In the vast majority of such orders, they have no evidentiary foundation.

These orders are often granted on a “without admissions” basis that have virtually no evidentiary value in themselves. Indeed, an analysis of court files in New South Wales reveals that the courts often deal with cases in less than three minutes and are resolved by consent without admissions.

The information provided in such complaints is typically brief and tends to focus on one single incident. Since there is often a good amount of non-relevant information, these allegations receive only the briefest examination.

Further, references to “fear” are included in a routine or habitual manner, “frequently as a bald statement to conclude a complaint without any reasoning or thematic connection to the victim’s experience”.

Of course, having only a few days to defend oneself from an accusation of domestic violence is not nearly enough time, which is compounded by the stress caused by being thrown out of one’s home by armed police officers at the behest of the domestic partner.

More often than not, the respondents may lose access to their children and even their joint bank accounts. This is because the applicant might have spent several months, or even years, with a lawyer, planning to file an order, while the accused is given only a couple of days to prepare a defence.

Following a final hearing, the accused person who is subsequently found guilty through such a process will have his or her life and reputation forever tarnished.

Most accusations are not crimes

An excessively broad interpretation of domestic violence aggravates the situation. The legal definition of family and domestic violence currently encompasses a wide range of behaviours, a large proportion of which are not found in the criminal law.

As a result, data from the Western Australia Police indicates that domestic violence incident reports (DVIRs) classified as crime accounted for only 40 per cent of all domestic violence restraining orders in 2012. For instance, official illustrations on domestic violence now include such abstract considerations as “extreme jealousy”, “constant criticising” and “ignoring the victim’s rights”.

Moreover, Professor Parkinson conducted a study about post-separation conflict where the participants who had sought and obtained violence orders against their domestic partners referred to “abusive behaviour” as something that their lawyers (and domestic violence groups) suggested, but did not directly perceive the abuse themselves.

In other words, such “abusive behaviour” was something that the applicants actually did not perceive during the course of their relationship. For example, one participant commented:

“The lady at the court showed me this flow chart of domestic violence and it actually made me realise that that’s what I’ve dealt with since I’ve been with him, but it’s been verbal and emotional rather than physical.”

Criminalising presence at home

Being deprived of one’s home is always a traumatic experience, and each year thousands of Australians are issued with domestic violence orders that evict them from their own homes.

Since such orders are often granted on an ex parte basis, armed police officers evict surprised owners from their property without an evidentiary hearing and without any admissions. Accordingly, such orders nullify the legal rights of homeowners to occupy their homes, thus creating a crime out of the ordinarily innocent act of returning home.

As such, a property right is nullified and the family is transformed into a public space by which the state “deliberately and coercively reorders and controls private rights and relationships in property and marriage — not as an incident of prosecution, but as its goal”.

In this legal context, Jeannie Suk of Harvard Law School concludes that “the police presence is required in that space and the state gains a foothold for its supervisory presence and control in the home”.

Conclusion

Domestic violence is indeed a grave issue, and initiating a conversation of this kind should by no means imply going soft on the problem.

However, the sympathy which is due to those who live in fear of domestic violence should be extended to those who are the victims of false accusations of domestic violence. Unfortunately, one seldom hears about the plight of law-abiding citizens who have become the innocent victims of such accusations.

As has been shown above, not everyone who applies for a restraining order is necessarily a genuine victim of domestic violence, just as not everyone who is subject to such an order is necessarily the perpetrator of domestic violence. This is because the person who is protected by the order may very well be the perpetrator of violence, whereas the person bound by the order may be the real victim.

It is to be hoped that our Prime Minister will take these issues into account before he pushes even further for the creation of this national domestic violence order scheme.


Augusto Zimmermann, LLB, LLM, PhD (Monash), Chair in Legal Theory and Constitutional Law, Murdoch University School of Law; Law Reform Commissioner, Law Reform Commission of Western Australia; President, Western Australian Legal Theory Association (WALTA); Fellow at the International Academic for the Study of the Jurisprudence of the Family (IASJF).

The author is grateful to Mr Bruce Linkermann for his insightful opinions and suggestions during the elaboration of this paper.


References

Harriet Alexander, “False abuse claims are the new court weapon, retiring judge says”, Sydney Morning Herald, July 6, 2013.
URL: www.smh.com.au/national/false-abuse-claims-are-the-new-court-weapon-retiring-judge-says-20130705-2phao.html

Belinda Carpenter, Susan Currie and Rachael Field, “Domestic violence: views of Queensland magistrates”, Nuance: the international journal of family policy and related issues, No. 3, 2001, pp.17, 21.

See also: Patrick Parkinson, Judith Cashmore and Atlanta Webster, “The views of family lawyers on apprehended violence orders after parental separation”, Australian Journal of Family Law, Vol. 24, 2010, pp. 313, 317.

Jennifer Hickey and Stephen Cumines, Apprehended Violence Orders: A Survey of Magistrates (Sydney: Judicial Commission of New South Wales, 1999), Monograph Series: No. 20, p.37.

Patrick Parkinson, “How widespread are false allegations of abuse?”, News Weekly, June 25, 2011.
URL: www.newsweekly.com.au/article.php?id=4778

Patrick Parkinson, “Family Law Legislation Amendment (Family Violence) Bill 2011”: submission to Senate Committee on Legal and Constitutional Affairs, 6.

Christine Sypnowich, “Utopia and the rule of law”, in David Dyzenhaus(ed),Recrafting the Rule of Law: The Limits of Legal Order (Oxford: Hart Publishing, 1999), p.180.

Some American judges argue that due process protects only the guarantees of the U.S. “Bill of Rights”. Others, however, contend that the courts can also protect “fundamental rights” not included in that bill of rights. Rodney L. Mott, Due Process of Law [1926] (New York: Da Capo Press, 1973), p.592.

The first reference to “due process” appears in 1344, when the English Parliament compelled King Edward III to consent to a statutory law curbing his monarchical power. The section is worth reproducing: “No man of what estate or condition that he be, shall be put out of law or tenement, nor taken nor imprisoned, nor disinherited nor put to death without being brought in answer by due process of law.”

The same expression, “due process”, would be later on enshrined in the Fifth Amendment to the U.S. Constitution, an amendment which says that no-one “shall be deprived of life, liberty, or property without a due process of law”. Finally, a similar provision is found in the Fourteenth Amendment to the U.S. Constitution, which forbids any state-member of the American Federation to “deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws”.

Powell v Alabama 287 U.S. 45 (1932).

Parkinson, Cashmore and Webster, op. cit., pp. 313, 317.

David N. Heleniak, “The New Star Chamber: the New Jersey Family Court and the Prevention of Domestic Violence Act”, Rutgers Law Review, Vol. 57, No. 3, Spring 2005, pp. 1009, 1014-16.

Law Reform Commission of Western Australia, Enhancing Laws Concerning Family and Domestic Violence, Discussion Paper, Project No 104 (December 2013) (“LRCWA, Discussion Paper”), p. 103

Stephen Baskerville, “Divorced from reality”, Touchstone Magazine (Chicago, Illinois), Vol. 22, Issue 1, January/February 2009.
URL: www.touchstonemag.com/archives/article.php?id=22-01-019-f

Patrick Parkinson, Judith Cashmore and Judi Single, “Post-separation conflict and the use of family restraining orders”, Sydney Law Review, Vol. 33, No. 1, March 2011, pp.1, 14.

Jeannie Suk, “Criminal law comes home”, Yale Law Journal, Vol. 116, 2006, pp. 1, 31.

Parkinson, Cashmore and Single, op. cit., pp. 1, 38.

David N. Heleniak, op.cit., pp. 1009, 1020.

See also: Cathy Young, “Hitting below the belt”, Salon.com, October 25, 1999.
URL: www.salon.com/1999/10/25/restraining_orders/

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Japan ratifies international convention on child abduction http://www.familylawexpress.com.au/family-law-news/children/childabduction/internationalchildabduction/japan-ratifies-international-convention-on-child-abduction/2794/ http://www.familylawexpress.com.au/family-law-news/children/childabduction/internationalchildabduction/japan-ratifies-international-convention-on-child-abduction/2794/#comments Sun, 15 Mar 2015 23:53:18 +0000 http://www.familylawexpress.com.au/family-law-news/?p=2794 japan-hague-conventionOn April 1 2014, Japan ratified the 1980 Hague Convention which should help reduce incidents of international child snatching and help resolve many cross-border custody disputes.

Under old Japanese law, courts very rarely gave custody of children to international parents.

This caused problems in cases of child snatching by separated or divorced couples if one parent took the child to Japan.

Once under the jurisdiction of Japanese law, it was virtually impossible for the other party to regain custody of their child through the legal system of Japan.

And as the Japan Foreign Ministry conceded, the dramatic increase in “people who move across the borders” and “international marriage and international divorce” has meant this has becoming a grown concern for desperate parents.

The Convention

The convention was first developed by the Hague Conference on Private International Law in 1980.

Amongst its provisions, the most important is its definition for wrongful child removal which states that depriving another party of the ability to exercise their custody rights amounts to wrongful retention of a child.

It further holds that any child taken in this manner must be returned to the country where they usually reside.

The Solution

For many years now, the United States and large parts of Europe have been demanding that Japan ratified the convention.

Japan finally agreed to do so early last year. As of 2014, there were 92 parties to this convention.

Japan was one of the last major countries to ratify the convention, and until early last year was the only G8 country to not have adopted it.

As a result of ratification, the convention will now become part of Japanese law.

The Japanese government has also taken positive steps to implement and enforce these rules.

In addition to training judges on the convention, the Japanese Foreign Ministry established an authority to locate children who have been taken away and encourage those involved to resolve the custody dispute through mediation where possible.

In addition to resolving many of the current disputes resolving custody of children now in Japan (estimates state that around 120 cases have been filed in Japanese courts), this convention should reduce instances of children being taken abroad unlawfully.

The United States in particular has been very vocal in labelling Japan a “safe haven” for child abductions because of its unwillingness to ratify the law.

Hopefully, the closing of this loophole will prevent many situations from escalating this far in the future.

Related Family Law Judgments

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TEN years jail for Marrying 12 y/o girl in Islamic Ceremony http://www.familylawexpress.com.au/family-law-news/children/childabuse/allegations-of-child-abuse/ten-years-jail-for-marrying-12-yo-girl-in-islamic-ceremony/2787/ http://www.familylawexpress.com.au/family-law-news/children/childabuse/allegations-of-child-abuse/ten-years-jail-for-marrying-12-yo-girl-in-islamic-ceremony/2787/#comments Sun, 08 Mar 2015 00:15:14 +0000 http://www.familylawexpress.com.au/family-law-news/?p=2787
The 27-year-old Lebanese student and the 12-year-old Australian girl spent their wedding night as a motel in the Hunter region of NSW where they had sex several times

The 27-year-old Lebanese student

More than a year after he ’married’ a 12-year-old girl and giving her $500 as a wedding gift before he proceeded to consummate the marriage, the groom has been sentenced to a minimum of seven and a half years’ jail and a maximum of ten years jail.

The 27-year-old man, who cannot be named for legal reasons, pleaded guilty to the charge of the persistent sexual abuse of a child after he told police he married the girl in the Hunter Valley in 2014.

The pair “married” in an Islamic ceremony in the girl’s living room in the Hunter region last January.

After he was charged, the girl began complaining of sharp abdominal pains.

The girl, who also cannot be named for legal reasons, was then examined at Westmead Children’s Hospital where doctors found she had an ectopic pregnancy – where the fertilized egg implants outside the uterus – and miscarried.

The court has previously heard the man spotted the girl at a NSW mosque and instantly became interested in marrying her.

She initially refused, saying he was too old.

But the man got her telephone number from the child’s father and continued to pursue her, sending more than 50 text messages during November.

She didn’t respond to any.

Undeterred, he texted her again in December.

This time she did respond and the pair began sending each other more than 200 messages a day.

MAN TOLD IT WAS ILLEGAL

The Court heard that the man “deliberately” pursued the girl despite two imams telling him that marrying her was illegal in Australia.

The imams had told him “it is illegal here, you will get in trouble” and “it is not allowed”.

A NSW Mosque had also twice rejected the man’s request to marry the girl in the Mosque, citing the girl’s age and the fact that it would be illegal in Australia.

The man however persisted with his marriage plans, until he found an imam who agreed to perform the ceremony.

THE WEDDING

The couple were married in the living room of the girl’s father’s house, by a Pakistani imam who had agreed the perform the ceremony.

The couple spent their wedding night at a motel in the Hunter region where they had sex several times. The pair then proceeded to have sex, including oral sex, several times a day for about a month.

MAN CAUGHT TRYING TO OBTAIN WELFARE BENEFITS

The Court heard that in February of last year, the man approached Centrelink and tried to claim welfare benefits by registering himself as the girl’s legal guardian. The relationship was as a result discovered by a Centrelink worker.

THE GIRL’S FATHER

The girl’s father will face trial this year.

The father, who is in his 60s, allegedly arranged the illegal marriage.

The father allegedly organised his daughter’s marriage to the Lebanese immigrant because he wanted to stop her from ‘committing a life of sin’.

He was charged with procuring a child under 14 for unlawful sexual activities, and being an accessory before the fact to sexual intercourse with a person under 14.

Police allege the young girl’s father enabled his daughter’s sexual assault by organising the unlawful marriage – including allowing them to swap phone numbers and meet three times in the family home before the ceremony.

THE PAKISTANI IMAM

The imam, who performed the ceremony, pleaded guilty in April last year to solemnizing the marriage and was fined $500 before being deported to Pakistan.

IN SENTENCING

In addressing the defence’s point that the girl was mature, sophisticated and intelligent for her age, Judge Sweeney said “she may be intelligent for a 12-year-old girl but she was still a 12-year-old girl”.

Judge Deborah Sweeney said young girls like her needed protection from the “sexual exploitation of adults”.

The man was originally charged with 25 counts of sexual intercourse with an underage child. But in October last year he pleaded guilty to one count of persistent sexual abuse of a child.

In sentencing him in Sydney’s District Court on Friday, Judge Deborah Sweeney rejected the man’s claims that he didn’t know what he was doing was illegal and said neither his cultural or religious beliefs excused his actions.

She also dismissed the argument the girl had “consented”.

The man’s “deliberate and determined pursuit of the girl” made it a serious offence, she said.

‘The girl has since expressed a strong desire to start a family with the [then] 26-year-old,’.

The man has had his student visa cancelled and is now living in an immigration detention centre.

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Why mums are ditching large law firms http://www.familylawexpress.com.au/family-law-news/freelegalsupport/legalaid/why-mums-are-ditching-large-law-firms/2784/ http://www.familylawexpress.com.au/family-law-news/freelegalsupport/legalaid/why-mums-are-ditching-large-law-firms/2784/#comments Sat, 07 Mar 2015 08:11:08 +0000 http://www.familylawexpress.com.au/family-law-news/?p=2784 legal start-upsA prevalent issue emerging in the evolving legal landscape is the need to improve access to justice.

In 2013, approximately 500,000 Australians were projected to miss out on necessary legal services while unprecedented rises to federal court fees in 2010 and 2013 have further inhibited individuals’ access to justice as revealed in a 2013 Senate inquiry.

More and more disenfranchised individuals are deprived from equitable legal representation due to factors such as educational levels or financial capacities irrespective of their claim’s merit.

Consequently, the cornerstone tenet in a democratic society of the rule of law is becoming more and more eroded.

An inquiry conducted by the Productivity Commission over 2013-14 noted that the Federal Coalition Government is required to add an extra $200 million annually to legal aid services to close legal aid gaps, making approximately 400,000 more people eligible for legal aid grants.

So what has the incumbent Federal Coalition Government instead done to enhance access to justice and restore equality before the law?

Well, they unexpectedly slashed legal aid funding by $42 million over four years. And to add fuel to the fire, Victoria Legal Aid performed its most extensive cuts to legal aid grants ever as a result of depleted government funding.

If the Abbott-led Government is unable to pull out the cash needed for legal aid, a couple of lawyers in Victoria and New South Wales have decided to take it upon themselves to tackle this pervasive challenge.

Melbourne lawyer Laura Vickers established Nest Legal, while Sydney corporate lawyer Leonie Chapman founded LAWYAL Solicitors in July 2013, both leaving behind big law firms sharing the goal to provide affordable legal services.

Nest Legal is able to minimise overheads and consequently offer highly reduced fixed fees. Nest Legal’scounsel is criminal barrister Jeremy McWilliams, who also happens to be Vickers’ husband. The formidable duo complements each other perfectly.

While Vickers provides legal advice on disputes, infringements and criminal matters, along with conveyancing and wills, McWilliams teaches clients argument structure, courtroom etiquette and presentation.

LAWYAL Solicitors is able to also minimize overheads and fees by implementing a web platform. Chapman provides services ranging from banking and intellectual property to contract law and finance.

But wait, why would these highly successful lawyers ditch large private law firms in pursuit of commencing their own practices?

This is becoming an emerging trend in the legal landscape with eminent former Henry Davis York senior associate Sarah Nicita and former Minter Ellison partner Mitzi Gilliganalso recently establishing their own practices.

The pair relishes the low overheads, leaving behind far away the dreaded culture of egocentricity and timesheets.

What exactly is fuelling this trend? Chapman and Vickers, amongst others, are killing two birds with one stone – while endeavouring to attract clients who find the cost of traditional legal services too exorbitant, they run their business outside archetypal business hours in the evening.

By doing so, they can continue to raise their kids whilst securing clients who are also occupied during the daytime.

Research from the Law Council of Australia elucidates that care-taking families, especially for women, is one of the major impediments to career progression in the legal field.

So is there a more truly innovative business model that bridges the legal aid gap whilst ensuring women can practice law and fulfil family responsibilities simultaneously?

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