Family Law Express News http://www.familylawexpress.com.au/family-law-news preparing yourself for family court... Mon, 21 Apr 2014 06:04:15 +0000 en-US hourly 1 http://wordpress.org/?v=3.8.3 Property Settlement in Big Money Australian Divorces http://www.familylawexpress.com.au/family-law-news/divorce-2/financialdispute/inheritance-financialdispute/property-settlement-in-big-money-australian-divorces/2182/ http://www.familylawexpress.com.au/family-law-news/divorce-2/financialdispute/inheritance-financialdispute/property-settlement-in-big-money-australian-divorces/2182/#comments Thu, 17 Apr 2014 05:48:57 +0000 http://www.familylawexpress.com.au/family-law-news/?p=2182 big money divorce calculatorMost divorce cases of the mega-rich never reach court. The details are usually mediated by a retired judge.

Head of Mills Oakley family law team, special counsel Michael Paul said going to court could sometimes be like rolling a dice in divorce cases of the mega-rich: there’s an element of chance in how the court will allocate the assets.

Mediation is often the cheaper and usually safer option when it comes to deciding huge divorce settlements, Paul said. The mediator, in a position of authority, can evaluate the case and advise on what a court would be likely to do anyway.

“What we’re all on about is if you possibly can do a mediation, there’s a bunch of retired judges out there who for about $5,000 to $8,000 a day will do a mediation, plus they will need a fee for reading time before hand,” Paul said.

“Sometimes it is helpful to have senior counsel at a mediation and this adds to the expense.

“You can do neither [go to mediation or court] until there has been what’s called appropriate disclosure of all financial records.

“It becomes a pretty expensive process to get real estate valuations and forensic accountants to give an evaluation of companies and businesses, it’s very, very costly.”

But mediation can fail, and some big money cases do end up in the Family Court.

Paul said there were big unknowns in taking a big money divorce case to court.

“If you ask half a dozen lawyers, given a certain set of facts, what you see the results as being, you would probably get about three opinions across a bit of a range,” Paul said.

“The real concern is if you ask half a dozen judges you’ll get about the same range, and there are judges who have a predisposition one way, judges who are pretty straight down the middle, and judges who have predisposition the other way. They’re all known and I assume they know themselves.

“That’s why it’s a bit of a roll of the dice. The judge now gets allocated to you quite early so you know what could possibly happen so you plan and negotiate accordingly.

“But on the whole even when you go to court surprises do occur not withstanding discovery.”

What’s interesting is in many of the multi-million dollar divorce cases which have made it to court, the wife has received less than half of the assets.

This table gives an indication of how assets have been split in divorce cases where tens of millions of dollars are at stake. It first appeared in a case over which Justice Peter Murphy presided over in 2012. Justice Peter Murphy awarded the entrepreneurial husband 60 per cent of the assets and the wife has since appealed, so “it’s not the last word,” Michael Paul said.

Family Court Smith & Fields

When these big cases with asset values between $8.8 million and above $40 million have been decided by a court, the wife has in some of the authoritative cases received less a lot less than half of the assets.

For example in the Lynch case, with an asset pool valued at over $40 million, the wife received 27.5 per cent or about $10 million.

In that same case the couple were together for 20 years; the judge deemed the husband’s assistance with the children was “significant” and the wife did not work in the business.

In the Ferraro case the court deemed the husband’s assistance with the children as negligible and the wife did not contribute to the business and she was awarded 37 per cent of the assets.

But in the Phillips case the court found the wife made “significant” contributions to the business in its early stages, the husband’s contribution with the children was found to be “limited” and the wife was awarded 40 per cent.

“If a wife has done significant work in the business then that should be looked at as a significant contribution on her part that cuts down on his,” Michael Paul said.

“It doesn’t seem to have mattered whether you’ve worked or not, we say as a general rule the income earning of the partner who goes out to work is the equivalent of what the partner who stays home looks after the house and children.”

What does matter, in terms of the multi-million dollar cases outlined in the table, and in Justice Peter Murphy’s arguments is the entrepreneurial skills of the husband.

“Usually luck is something that doesn’t attract that appellation [of entrepreneurial skills], something that’s the result of intelligence and an unusual set of skills leading to a result in terms of the asset created that is beyond the norm,” Michael Paul said.

In these cases the court found “special skills” of one party, in these cases the husband, have driven the wealth creation.

Going back to basics the legislation outlines a four step approach, including creating a balance sheet of all the assets and liabilities, evaluating both direct and indirect contributions of both parties, and making adjustments in favour of the weaker financial party.

Adjustments include if a person is caring for children, has a smaller income earning capacity or if one party has more property.

But Justice Peter Murphy looked at what are called “special contributions”, and in the case of the rich “entrepreneurial type contributions have been rewarded”, Michael Paul said.

“The argument about special contributions is a bit of a non-argument, it’s all about contributions in each particular case,” Michael Paul said.

“You have to go back to the legislation, there’s nothing about ‘special’ in the legislation, and they’re both direct and indirect, domestic and other.

“No one necessarily has a greater role.

“It’s the result of one person doing what they do in their sphere enabling the other to do what they do in their sphere.

“You’ve got to allow special contributions because to not do so you would be really ignoring something.”

Paul explained that what does happen in a lot of cases is that a judge will find that the contributions have been equal.

“That is the case absent either somebody starting with a lot more in assets then the other or somebody inheriting along the way,” he said.

“If you start with a lot of assets and it’s a short marriage you probably keep them.

“If it’s a long marriage after ten years or so there’s frequently little regard had for what you started with.

“Although there are exceptions to that for example if the asset is still in the same shape, is it a house, a business, the court should give a bit more to the one that brought it in.

“That’s one of the hardest things to work out.”

The other source of wealth some divorces squabble over is inheritance.

“People are always concerned about inheritances being gobbled up by the other party but it doesn’t happen that way because the court almost quarantines the inheritance if it was recently received on the side of the person who received it, it’s got to be more than five or six years ago I think before an inheritance starts to get divvied up,” Michael Paul said.

But it’s all considered on a case-by-case basis.

“Nobody is suggesting those cases [in the table] were wrongly decided, they’re all quoted as authorities for various propositions and I think an entrepreneur will still in an appropriate case, it’s almost back to the definition ‘what is special?’” Michael Paul said.

 
Related Family Law Brief

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Father Wins Right To Vaccinate His Children http://www.familylawexpress.com.au/family-law-news/legal-proceedings/parental-responsibility-orders/father-wins-right-to-vaccinate-his-children/2177/ http://www.familylawexpress.com.au/family-law-news/legal-proceedings/parental-responsibility-orders/father-wins-right-to-vaccinate-his-children/2177/#comments Thu, 17 Apr 2014 01:44:51 +0000 http://www.familylawexpress.com.au/family-law-news/?p=2177 boy-getting-vaccinationA Sydney father has won the right to vaccinate his children after a drawn-out legal battle with their mother, who is strongly opposed to immunisation.

The children, a son born in 2002, and a daughter born in 2004, now live with the father and have both had whooping cough.

The Family Court rejected the mother’s claims that the children, who will turn 14 and 12 this year, were at an increased risk of experiencing ”vaccine damage” due in part to various allergies she believes they suffer from.

Sitting at Parramatta, Justice Garry Foster said the 42-year-old woman, given the pseudonym Ms Duke-Randall, had submitted hundreds of documents about the risks of vaccination, such as the link to autism.

Justice Garry Foster said much of it ”is comments, submissions, irrelevancies” and Ms Duke-Randall had become ”narrowly focused on it, perhaps to the point where the best interests of her children have been subsumed”.

The father, Mr Randall, 52, said during their marriage he agreed with Ms Duke-Randall’s anti-vaccination view ”for the sake of peace in the household” but since their divorce in August 2011, he had come to realise his son and daughter were missing out on extra-curricular activities because they were not immunised.

Some of his relatives were unwilling to have their children socialise with his children and he was worried they would be excluded from school during an outbreak of an infectious disease.

But he said he ”was simply unable to negotiate with [the mother] on the issue”.

While the parents fought over other issues including custody and property, the court restrained both parents from vaccinating the boy and his younger sister until a three-day hearing into the immunisation issue could be held in January this year.

But last month Justice Garry Foster discharged the order, finding the mother had been deliberately delaying proceedings and ignoring directions, which led to the ”strong inference that she has done so to suit her own end that the issue as to vaccination be delayed for as long as possible”.

The mother claimed any delay in presenting her case was caused by the court not permitting her to use medical evidence regarding her children’s susceptibility to being adversely affected by vaccines.

Justice Garry Foster accepted evidence from a senior consultant in immunology, given the pseudonym Professor K, that both children are healthy and do not have any allergies or any other contraindications to vaccination.

Both children had been kept on a low-salicylate and low-amine diet but once the father gained primary custody, they had begun to eat a normal diet, Professor K said.

She recommended the children be bought up to date with the routine childhood immunisations.

The case is the latest in several court judgments that have found on the side of the parent wanting vaccination.

A report by the National Health Performance Authority last week found childhood ­immunisation rates have ­improved over the past year.

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Domestic violence study suspended by UNSW for breach of ethics http://www.familylawexpress.com.au/family-law-news/research/family-violence-research/domestic-violence-study-suspended-by-unsw-for-breach-of-ethics/2165/ http://www.familylawexpress.com.au/family-law-news/research/family-violence-research/domestic-violence-study-suspended-by-unsw-for-breach-of-ethics/2165/#comments Mon, 14 Apr 2014 14:00:28 +0000 http://www.familylawexpress.com.au/family-law-news/?p=2165 have breached the University’s code of ethics.An online ‘domestic violence study’ has been ordered offline by the University of NSW Human Research Ethics Committee.

Flyers published by the survey organisers have been ordered destroyed.

The study, being conducted by the Gendered Violence Research Network, White Ribbon Australia and Youth Action NSW, was found by the Ethics Committee to have breached the University’s code of ethics.

The decision comes after a national coalition of men’s health advocates made a formal complaint to the University claiming the survey was gender-biased, poorly formulated and misleading. They argued it could not achieve its stated aims and any consequent findings would be unreliable and likely to mislead the public.

Chair of the Ethics Committee, Professor Heather Worth, found that a quote on the original flyers claiming that “childhood exposure to intimate violence increased the likelihood of intergeneration violence particularly amongst boys” was incorrect. The ethics committee has ordered that the flyers be destroyed and replaced by a new flyer that has correct information, including any quotes.

Professor Heather Worth also found that the participants’ information sheet referred to by the survey was not accessible as claimed. The Ethics Committee has instructed that the survey be suspended until the link is in place.

Men’s Health Australia spokesman Greg Andresen said, “We congratulate the University for investigating our complaint so speedily and acting upon these ethical breaches. It is essential that domestic violence research, especially that involving young people, is conducted properly.”

“The incorrect statement in question was lifted directly from current White Ribbon ‘Fact Sheets’ that haven’t been corrected. The University’s investigation determined that some of the methodological issues raised in our complaint would be dealt with in peer review of the findings when the authors submit publications for review.

We trust that White Ribbon Australia plans to subject this study to the rigours of the peer review process prior to publishing any reports on its website. It is regretfully common that much gendered violence ‘research’ makes it into the public domain without going anywhere near peer review challenge,” said Mr Andresen.

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Family Assets & Divorce – Keep it in the Family http://www.familylawexpress.com.au/family-law-news/divorce-2/financialdispute/family-assets-divorce-keep-it-in-the-family/2161/ http://www.familylawexpress.com.au/family-law-news/divorce-2/financialdispute/family-assets-divorce-keep-it-in-the-family/2161/#comments Mon, 14 Apr 2014 13:33:27 +0000 http://www.familylawexpress.com.au/family-law-news/?p=2161
dividing-gifts-after-divorceNO parent dreams their daughter or son’s relationship will end, but going in with a plan to protect assets is wise

Family disputes over inheritances are nothing new. But parents planning their estates are becoming more wary about making sure inheritances stay with the sibling rather than potentially be hijacked by a partner.

With one-in-three marriages in Australia ending in divorce, and defactos having the same rights as married couples, it’s important for parents to consider how estate plans are impacted if their child’s relationship ends.

Both marriages and de facto relationships are subject to federal laws which govern the division of property and, without proper planning, it’s possible for beneficiaries to lose half of their inheritance in a future split.

While we all hope it won’t come to that, when it concerns a legacy it’s best to play it safe, so here are three strategies to help keep your estate in the family.

ESTATE PLANNING

Every family is different and putting together a legally sound, tax-effective estate plan can be a big task.

For families looking to protect their estate, RK Financial Planning’s Robert Reid says a practical option can be to set up a testamentary trust through their will instead of leaving assets directly to their chosen beneficiaries.

Establishing a testamentary trust can protect assets from claims against beneficiaries, and can also be highly tax-effective compared with a direct transfer of ownership.

As an example, say Scott has been married to Emily for five years and has recently received a $200,000 inheritance from his dad. Soon after the money arrives, Emily files for divorce.

But if they’re held under a trust, Scott’s inheritance may be protected and considered separate from the matrimonial pool.

If the assets are bequeathed directly in Scott’s name, they could easily be considered part of the matrimonial pool and be divided between the two parties. But if they’re held under a trust, Scott’s inheritance may be protected and considered separate from the matrimonial pool.

That said, there are no hard and fast rules here, and it’s important to realise the Family Court has wide-ranging powers to decide which assets are included in any divorce property settlement.

GIFTS AND LOANS

Another common situation is when parents provide financial assistance to their kids, for example helping them out with a house deposit.

This can be a dangerous game if their relationship is on the rocks and the money is simply gifted or lent under an informal loan agreement. If the relationship ends it could end up in their partner’s hands as part of the settlement.

Say Louise is lent $80,000 by her parents to buy a house with her partner John, but no formal agreement is put in place.

If the relationship ends, John may be entitled to his share of the equity in the house, including the loan amount, while Louise will still be liable for the informal loan from her parents, whose good deed has actually backfired and lost the family money.

However, if Louise and her parents had organised a formal loan agreement complete with interest charges and set repayment dates, the loan would be much more likely to count as a personal liability for Louise and excluded from the division of property.

Just don’t try and dress up a gift as a “loan” with some basic documentation. As Reid says, the more it looks and smells like a gift, the more likely it’ll be treated as such.

BINDING FINANCIAL AGREEMENT (PRENUP)

For people who have already received an inheritance and want to protect it from their partner should they separate, binding financial agreements (or prenups in Hollywood terms) are an option.

These are signed by both parties before or during a relationship and govern how assets are distributed in the event of it ending. Although, again, the Family Law Courts can declare the agreement invalid if it’s challenged.

While kicking off a relationship with one eye on the exit is never a good start, binding financial agreements can have their place.

Whatever approach you take to protect assets, it’s best to get expert advice from a financial planner, as well as an estate planning lawyer, to ensure you’re covered.

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Family Law Courts launch new Youtube channels http://www.familylawexpress.com.au/family-law-news/technology-2/twitter/family-law-courts-launch-new-youtube-channels/2157/ http://www.familylawexpress.com.au/family-law-news/technology-2/twitter/family-law-courts-launch-new-youtube-channels/2157/#comments Sun, 13 Apr 2014 23:08:44 +0000 http://www.familylawexpress.com.au/family-law-news/?p=2157 Family-Court-YouTubeThe Family Court of Australia and Federal Circuit Court of Australia have launched their official YouTube channels to provide informational videos aimed at helping self-represented litigants with court procedures relating to family law.

Chief Executive Officer of the Family Court and Federal Circuit Court, Richard Foster said the courts received about 45,000 divorce applications a year and of those applications almost 70 per cent had no legal representation.

Mr Foster said one aspect of the divorce process, serving documents, had been identified as an area which caused most confusion to some clients and was the subject of the first video.

He said How to apply for a divorce: serving divorce papers was produced by the courts to help self-represented litigants understand and carry out the process of service in divorce applications.

Mr Foster said this video was the first in a series of videos planned to provide court users with simple information in a digital format which differs from the usual printed fact sheet.

“The courts aim to help clients through the legal system in what is often a difficult time in their lives,” he said.

“The move from traditional to online media reflects the ways in which clients are searching for information and also reflects the changing ways in which people are consuming information.”

Mr Foster said this was a further step in the use of technology and social media as a means to make the court process more accessible and to better communicate with court users.

The Family Court has been using Twitter (@FamilyCourtAU) since October 2012 and both courts actively encourage the use of the Commonwealth Courts Portal as a way to file and manage documents.

To view How to apply for a divorce: serving divorce papers visit the:

  1. Family Court of Australia’s YouTube channel,
  2. Federal Circuit Court of Australia’s YouTube channel.

For the Family Courts Twitter page, go to the following link.

For the Commonwealth Court Portal, go to this link.

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Roving family law courts will go to Aborigines http://www.familylawexpress.com.au/family-law-news/familylawcourts/court-access/roving-family-law-courts-will-go-to-aborigines/2153/ http://www.familylawexpress.com.au/family-law-news/familylawcourts/court-access/roving-family-law-courts-will-go-to-aborigines/2153/#comments Wed, 02 Apr 2014 22:05:30 +0000 http://www.familylawexpress.com.au/family-law-news/?p=2153

family-court-of-australiaFAMILY law matters in indigenous communities will be heard outside courtrooms and a team established to help Aborigines under a plan being considered by the Federal Circuit Court.

Chief Judge John Pascoe told The Australian he wants to devote part of the court to looking after Aboriginal families and their ­welfare under a reconciliation ­action plan launched yesterday by the Attorney-General, George Brandis.

It is the first court in the country to have developed such a plan.

“We wanted something that was concrete, something that you could measure,” Chief Judge Pascoe said.

The Federal Circuit Court, which has jurisdiction over family, consumer and human rights law, was known as the Federal Magistrates Court until last April.

The plan is to introduce hearings in informal settings for indigenous people by June next year where there are no dedicated court buildings, and the creation of a specific family law wing for Aborigines.

The plan also includes indigenous mentoring and employment targets. “I would really like to see part of the court absolutely devoted to looking after Aboriginal people, their children and their welfare,” he said. “There are a lot of barriers to overcome but we should adapt the processes where a court can sit in an Aboriginal medical service or somewhere people feel comfortable.”

He said he had become convinced change was needed in the court when he met a group of elders, many of them grandmothers, in Dubbo and heard stories about the Stolen Generations and wariness when it comes to accessing justice.

“One grandmother I spoke to told me she would spend many days walking up and down outside her grandchildren’s school to make sure nobody took the children,” Chief Judge Pascoe said. “That was just so upsetting and I wanted to know what it was a court could actually do to make a real difference and not just make a token gesture.”

He said children were being removed from their homes at a rate almost as high as during the Stolen Generations.

Senator Brandis, launching the plan in Sydney’s Redfern yesterday, said it was “one building block in the national goal to which we all aspire”, reconciliation. He did not answer questions about the government’s exposure draft of revisions to the Racial Discrimination Act.

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Neither Male nor Female: High Court Recognises Gender-Neutral Category http://www.familylawexpress.com.au/family-law-news/familylawcourts/precedent/neither-male-nor-female-high-court-recognises-gender-neutral-category/2143/ http://www.familylawexpress.com.au/family-law-news/familylawcourts/precedent/neither-male-nor-female-high-court-recognises-gender-neutral-category/2143/#comments Wed, 02 Apr 2014 09:46:01 +0000 http://www.familylawexpress.com.au/family-law-news/?p=2143
Norrie-non-specific-gender

Norrie won High Court Appeal

The androgynous person at the centre of a high court decision recognising those who do not identify as either male or female has described being “overjoyed” at the ruling and expressed the hope that it will encourage Australians to be more accepting.

In a historic decision with far-reaching implications for institutions and individuals across the country, the court on Wednesday formally upheld the right of transgender person Norrie to be registered as neither a man nor a woman with the NSW Registry of Births, Deaths and Marriages.

The decision is recognition by the highest court in the land that ”sex” is not binary – it is not only ”male” or ”female” -and that this should be recognised by the law and in basic legal documents.

”I jumped up and down a lot … I was getting ready for my shower and I saw it come up and I said, “hooray!” … I squealed,” Norrie said of the decision at a press conference hosted by the law firm DLA Piper, which took on the case pro bono.

“It’s a very exciting victory. I’m overjoyed that it’s happened and happened so decisively. It’s been a long time from start to finish but it’s a great outcome, and it’s Australia-wide not just NSW.

“Maybe people will now understand there’s more options than the binary, and even if a person is specifically male or female, their friends might not be – and hopefully people might be a little bit more accepting of that.”

The case began in 2010 when Norrie, who identifies as neuter and uses only a first name, became the first person in NSW to be neither man nor woman in the eyes of the government with a formal “sex not specified” registration.

But four months later the registry wrote to Norrie, who is from Redfern in Sydney, saying the change had been “issued in error” and was invalid.

“It was completely unproblematic for a month – the world didn’t collapse, the sky didn’t fall in, human life continued,” Norrie told Fairfax late last year.

“Then it was on the front page and they suddenly said: ‘Oh, no, we couldn’t possibly do that!”‘

Norrie appealed the decision to the Administrative Appeals Tribunal, but the case was dismissed.

Norrie then went to the NSW Court of Appeal, where the three-judge appeal panel unanimously declared that “as a matter of construction … the word sex does not bear a binary meaning of ‘male’ or ‘female’.”

But the Registry of Births Deaths and Marriages did not accept the decision, appealing the matter to the High Court at great expense to NSW taxpayers.

The High Court ordered that Norrie’s applications be sent back to the Registrar for determination in accordance with its reasons and otherwise dismissed the Registrar’s appeal.

When the case was heard in the High Court last month, counsel for the Registrar had argued that the acceptance of more than two categories of sex would cause unacceptable confusion. But the judges rejected this argument.

“For the most part, the sex of the individuals concerned is irrelevant to legal relations,” their judgment says.

The judges said the Commonwealth Marriage Act was “the chief, perhaps the only, case where the sex of the parties to the relationship is legally significant”.

The judges found there was ”evident force” in Norrie’s argument that to classify her as male or female while her sex remained ambiguous would be to record misinformation in the register.

But the court found Norrie’s counsel went too far in arguing that Norrie should be assigned to a separate category of sex such as “intersex” or “transgender”.

The court accepted the Registrar’s submission that male and female were the only “registrable classes” of sex.

“But to accept that submission does not mean that the Act requires that this classification can apply, or is to be applied to everyone,” the judgment says. “And there is nothing in the Act which suggests that the Registrar is entitled, much less duty-bound, to register the classification of a person’s sex inaccurately as male or female having regard to the information which the Act requires to be provided by the applicant.”

The court found that the provision of that Act, which recognises “ambiguities” in sex and a 1996 amendment which referred to persons of “indeterminate sex”, was a sufficient indication that the Act recognised that “the sex of a person is not … in every case unequivocally male or female.”

“The Act does not require that people who, having undergone a sex affirmation procedure, remain of indeterminate sex – that is, neither male nor female – must be registered, inaccurately, as one or the other. The Act itself recognises that a person may be other than male or female and therefore may be taken to permit the registration sought, as ‘non-specific’,” the judges found.

In the opening of their reasons for decision, the five-judge panel declared that “not all human beings can be classified by sex as either male or female”.

“The Births, Deaths and Marriages Registration Act 1995(NSW) (“the Act”) expressly recognises that a person’s sex may be ambiguous. It also recognises that a person’s sex may be sufficiently important to the individual concerned to warrant that person undergoing a sex affirmation procedure to assist that person ‘to be considered to be a member of the opposite sex’.

“When a person has undergone a sex affirmation procedure, s 32DC of the Act empowers the Registrar to register a change of sex of the person upon an application by that person.”

Dr Tracie O’Keefe from Sex and Gender Education Australia said the High Court’s decision meant that “the law now recognises the physical reality”.

“One in 100 people are either sex or gender diverse – that is one of life’s realities,” Dr O’Keefe said.

“The law has now recognised that reality, the highest court in the land, through a decision that cannot be appealed.”

Dr O’Keefe said she now expected others across the country who did not identify as male or female to seek to be recognised as such on their “cardinal documents” such as birth certificates and other documents held by their local registrars.

“There are people out there who have been wanting to do this but have been unable to,” she said. “They now have that option.”

Samuel Rutherford, the executive director of A Gender Agenda, a community organisation which advocates for transgender, gender-diverse and intersex people, said he was “delighted” with the decision.

A Gender Agenda intervened in the case as amicus curiae, or a friend of the court.

Mr Rutherford said he was especially pleased that the court had recognised “non-specific” as the most appropriate term for a person who is neither male nor female.

He said while the decision would only be binding on NSW, it would be “highly influential” on other jurisdictions.

The ACT last month became the first Australian jurisdiction to make provision for people to be recognised as neither male nor female. It also removed the requirement for surgery for people who wish to change their sex registration.

Mr Rutherford added that Wednesday’s decision would be a powerful affirmation of the identity of many people for whom the decision was not personally relevant.

”It’s actually a really big thing to have a statement from the High Court saying that you exist and that the law should recognise you,” he said.

Anna Brown, the Director of Advocacy & Strategic Litigation for the Human Rights Law Centre, which assisted A Gender Agenda with the case, said the judgment was a victory for the growing numbers of gender diverse people across Australia.

“Sex and gender diverse people face problems every day accessing services and facilities that most Australians can use without thinking twice. It’s essential that our legal systems accurately reflect and accommodate the reality of sex and gender diversity that exists in our society, and the High Court has taken an enormous leap today in achieving that goal,” said Ms Brown.

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Standing up for themselves: self-represented litigants http://www.familylawexpress.com.au/family-law-news/legal-proceedings/self-repersented-litigant/standing-up-for-themselves-self-represented-litigants/2147/ http://www.familylawexpress.com.au/family-law-news/legal-proceedings/self-repersented-litigant/standing-up-for-themselves-self-represented-litigants/2147/#comments Tue, 01 Apr 2014 23:52:58 +0000 http://www.familylawexpress.com.au/family-law-news/?p=2147
self-represented-litigant-alone-in-family-courtWith legal aid budgets under extreme pressure and the cost of hiring a lawyer out of reach for many, self-represented litigants are increasingly common, particularly in the civil and family court systems. Christine Demiris takes a look at the litigants who go it alone.

Last week, John* represented himself at a three-day hearing at the Federal Circuit Court in Brisbane after being quoted $20,000 by a lawyer. Despite reaching an out-of-court settlement he was happy with, John found the experience confusing and stressful. ‘Just being able to stand in front of a courtroom and have your say … became quite difficult to get through,’ he says.

John received some assistance in preparing his case from the Queensland Public Interest Law Clearing House (QPILCH). They helped him draft documents and explained the legal steps in the process. John says the assistance also helped him in forming questions for witnesses.

Despite the obvious value of such pre-trial assistance, QPILCH coordinator and Federal Court solicitor Elizabeth Pendlebury believes that the ability of a litigant to successfully argue his or her own case ‘really depends on the litigant, it depends on how sophisticated they are themselves, how readily they wrap their heads around the information that we are able to provide’.

About 30 per cent of trials in the Family Court involve an unrepresented party, according to the 2013 annual report published by the court. 

There are success stories, such as one self-represented client who, following an 18-month process, ran a five-day trial, obtained the orders he had been seeking and was then able to successfully respond to a consequent appeal.

‘In a lot of ways self-represented litigants have expectations of the court system that don’t reflect the reality of the situation,’ says Ms Pendlebury. ‘So there’s a perception that if they can “have their day in court” everything will be all right … they don’t expect to have to follow a lot of pre-trial proceedings and steps to set out their case.’

The lack of understanding about court and pre-trial processes presents a unique challenge to the courts. Judge Phillip Misso manages the damages list in the County Court of Victoria. He describes some self-represented litigants setting up their cases in an ‘almost indescribable’ manner when compared to what a lawyer would do. The result, according to Justice Misso, is a situation in which sometimes ‘I think you do have a pretty good case, you just haven’t had the means by which you can pull it all together’. For this reason, Justice Misso says, self-represented litigants ‘in the majority of cases … don’t come off too well’.

There are measures in place to assist self-represented litigants in the County Court of Victoria, such as a self-represented litigant coordinator and informative videos and booklets. Some judges also assist self-represented litigants by making orders that are a sort of ‘roadmap’, setting out the steps that the person is required to take and signposting to help manage people’s expectations about the process. There is, however, a limit to what the court can do because of the need preserve the integrity of the adversarial system. ‘We have to be very careful that we don’t go too far to actually be the advocate for the self-represented litigant,’ says Justice Misso.

Managing expectations is particularly important, and particularly difficult, when faced with a querulous litigant. Although they make up only a small percentage of the broader group of self-represented litigants, querulous parties can have a significant impact on the court process. Tania Sourdin is a professor of law and dispute resolution at Monash University. She says querulous litigants in some cases ‘present information which is incorrect or inaccurate, or behave in a way which makes it very difficult to run a case in an appropriate manner, and really to accord some dignity in terms of the processes’. The bad behaviour Ms Sourdin describes includes examples of stalking, deliberately causing delay and presenting information which is incorrect or inaccurate.

‘The way in which the person talks to the person on the other side is so appalling that one really wonders how justice can be done under those circumstances,’ says Sourdin.

Communication between parties is a particular concern in the family law jurisdiction, where self-representation is common. Kate* acted for herself when her ex-partner sought to vary the care arrangements for their children. ‘The biggest problem was the fact that the other party did have a lawyer, and so I think he felt like he could push me around a little bit more than he may have if I had representation,’ she says.

Like John, Kate consulted with a lawyer prior to her hearing, which she says helped her level of confidence. Nonetheless, Kate says that she would recommend hiring a lawyer for those who can afford it. ‘I would have felt much more confident … that would have maybe not made the situation so stressful,’ she says.

The ability of an unrepresented litigant to effectively navigate the process and obtain a satisfactory outcome from the court when compared to a represented litigant depends on the case, according to Mark Le Poer Trench, a judge in Sydney’s Family Court. He believes that in less adversarial cases, such as parenting cases, the ‘judges take on a far more active role’ whereas in a more strictly adversarial case such as property disputes, it is up to the unrepresented litigant. ‘They have to put before the court evidence to support the orders that they are seeking,’ he says.

Self-represented litigants also create a difficult situation in which alleged perpetrators of abuse or violence cross-examine their alleged victims. In those circumstances, ‘a judge just has to control it’ so as to ensure the alleged perpetrator is not further abusing somebody throughy their questioning, says Le Poer Trench.

Eleanor* was directly cross-examined by her abusive ex-partner during Family Court proceedings. She describes the ‘horrendous’ experience as having ‘stripped’ her. ‘At the end of the day I walked out of there not sure whether I could actually face the court the next day, and I literally wanted to throw myself in front of the first bus,’ she says.

Despite a warning from the magistrate that he only ask appropriate questions, Eleanor felt her ex-partner was given ‘all of his power back’. ‘Even though his questions may not have seemed to have been that bad to other people, he knew which questions to ask, he knew how to press the buttons of trauma for me,’ she says.

The prospect of going to trial and being directly cross-examined by a violent ex-partner is a source of major discouragement against pursuing court action, according to Pasanna Mutha-Merennege, the Womens Legal Service of Victoria’s policy and campaigns manager. Ms Mutha-Merennege feels that, as well as additional legal-aid funding, there is a need for legislative protection to prevent self-represented litigants from being able to directly cross-examine vulnerable parties.

About 30 per cent of trials in the Family Court involve an unrepresented party, according to the 2013 annual report published by the court. Given the considerable expense of hiring a lawyer and the strain on legal aid funding, that is unlikely to change. Instead, self-represented litigants are likely to become more common. Given this reality, guidance from the court and the sort of legislative protections advocated by Ms Mutha-Merennege will be increasingly important to ensure that people are able to navigate the justice system on their own.

*Names have been changed

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Former Family Court judge says pushy lawyers drag out cases http://www.familylawexpress.com.au/family-law-news/familylawcourts/judges/former-family-court-judge-says-pushy-lawyers-drag-out-cases/2124/ http://www.familylawexpress.com.au/family-law-news/familylawcourts/judges/former-family-court-judge-says-pushy-lawyers-drag-out-cases/2124/#comments Wed, 26 Mar 2014 07:52:50 +0000 http://www.familylawexpress.com.au/family-law-news/?p=2124 LawyersIn a speech titled ”Everything I’ve Always Wanted To Say”, recently retired Family Court judge Linda Dessau says overly combative family lawyers can give parents misguided advice and put families through unnecessary, drawn-out legal battles.

In a wide-ranging speech on Friday Ms Dessau, who sat on the Family Court for 18 years, also spoke of the need for greater resources for the courts to prevent delay, and the importance of the legal profession becoming more representative of women and different cultures.

Ms Dessau said most family lawyers had a good grasp of the law and often stood ”fearlessly between the client and their tormentor. They know when to fight cases, they know when to settle.” But a small minority ran ”scatter-gun” cases because they did not understand what mattered.

”I felt most impotent as a judge when I couldn’t rescue the parties, as I saw it, from unnecessary or obscenely expensive litigation which could easily have been different, in my view, with a different lawyer involved,” Ms Dessau said at a Law Institute of Victoria lunch.

”Sometimes they just gave misguided advice, often at the start of the case, like, ‘Just nick off with the kids’ or, ‘Just close all the bank accounts’ and that set up unnecessarily bitter and protracted litigation.”

Ms Dessau told Fairfax Media that while such lawyers were in the minority, they had a big impact on their clients and the court’s resources. She said good judges always tried to intervene, and usually could ensure such cases moved as quickly as possible. ”But sometimes the judge just doesn’t have that power.”

Ms Dessau said the court could order costs against a party and a lawyer if some matters were unreasonably pursued and ”if they feel that the lawyer’s wrong. That’s the only tool really available to the judge in the worst cases.”

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Courier-Mail fined for identifying family in custody battle http://www.familylawexpress.com.au/family-law-news/legal-proceedings/legislation/section-121-of-the-family-law-act/courier-mail-fined-for-identifying-family-in-custody-battle/2134/ http://www.familylawexpress.com.au/family-law-news/legal-proceedings/legislation/section-121-of-the-family-law-act/courier-mail-fined-for-identifying-family-in-custody-battle/2134/#comments Mon, 24 Mar 2014 21:43:49 +0000 http://www.familylawexpress.com.au/family-law-news/?p=2134 italian--sisters-coverage-finedA Queensland newspaper has been fined $120,000 for illegally identifying a family involved in a court custody battle.

This was in breach of Section 121 of the Family Law Act 1975.

Queensland Newspapers, which owns The Courier-Mail, was sentenced in the District Court in Brisbane on Monday for breaching restrictions on publishing court proceedings.

The newspaper published names and photos of a mother and her children involved in a Family Court dispute on its front page in 2012.

Australian media are prohibited from identifying anyone involved in Family Court proceedings.

District Court Justice Terence Martin said The Courier-Mail deliberately and blatantly disregarded the law for commercial gain.

“It seems to me that the newspaper seized upon what it regarded as a sensational story, which would be attractive to readers, and put the story ahead of its legal obligations,” he said.

The court heard Queensland Newspapers breached the law four times by identifying the family members in four newspapers across a week in May 2012.

Journalists were warned multiple times by a court staffer and a legal officer about the ramifications of identifying the family.

Justice Martin fined the company $30,000 per breach, saying the offending was in the worst category and the newspaper had shown no remorse.

The maximum penalty is $33,000 per breach but the judge took into account the newspaper’s lack of criminal history and its contribution to the community.

He said the fine was severe enough to deter ‘‘like-minded’’ publishers.

‘‘This was persistent, serious offending in deliberate defiance of the law and importantly in complete disregard of the interests of four children,’’ he said.

General manager of The Courier-Mail and The Sunday Mail Jason Scott was present in court but was not required to speak.

The company has one month the pay the fine.

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