4 things you need to know about Child Custody disputes

 

1. You have to attempt to mediate with the other parent

Before you, or the other parent, can commence 4-things-you-need-to-know-now-about-Child-Custody-disputes Court proceedings about Child Custody, there is a legislative requirement that you attempt to participate in Family Dispute Resolution. This is a special type of mediation focused on helping separated parents reach agreement about future arrangements for the children.

If there has been family violence, you may not be able to participate in Family Dispute Resolution, or it may not be practicable. Also, if for some reason you need to urgently seek the Court’s assistance, or there is a child who is at risk of harm, there are exemptions to the requirement for Family Dispute Resolution.

In all other cases, you will need to obtain a certificate, known as a Section 60I Certificate, from a registered Family Dispute Resolution Practitioner confirming that you have participated in that process, prior to the Court accepting your Application.

Across Australia there are a number of private Family Dispute Resolution Practitioners who can assist.

2. You don’t have to be a parent to start Court proceedings in a Child Custody Dispute

The relevant legislation outlines exactly who may bring parenting proceedings in the Family Court of Australia or the Federal Circuit Court of Australia about Child Custody. Such people include:

  • either or both of the child’s parents;
  • the child;
  • a grandparent of the child; and
  • any other person concerned with the care, welfare or development of the child.

If you are a non-parent considering starting Court proceedings about a Child Custody dispute, it is recommended that you obtain expert advice from a family law lawyer about the specific matters the court will look at to determine whether you have standing to bring an Application.

3. Court is not your only option

If there is any possibility at all that you, and the other parent, can come to an agreement about future arrangements for your children, you should try to avoid Court proceedings at all costs.

Of course, in some situations, Court proceedings are unavoidable. However, it is important to understand that Child Custody disputes before a Court often becoming very costly, lengthy and messy. Parents rarely come out the other side with an improved co-parenting relationship. The other thing to remember is that you and the other parent are basically handing over the outcome of the dispute to a Judge. You both lose control of how things may go, and often people are not happy with the direction that the Court may take.

If you think that Court proceedings can be avoided, you and the other parent should keep control of the outcome, by doing your best to come to an agreement. You can attempt to reach agreement through informal negotiations, with or without the involvement of lawyers, and through mediation, either private mediation, or Family Dispute Resolution.

4. It’s all about the best interests of the children

In determining what arrangements to put in place in Child Custody disputes, the Court’s primary concern is that the children are being protected from physical or psychological harm, and that proposed arrangements are in the child’s best interests.

There are many factors that the Court will look at when determining what is in a child’s best interests, but it will always come back to a consideration of what is in the best interests of the child, not the parents.

A child’s best interests may not necessarily correlate with a child’s wishes. The Court may consider a child’s wishes, but it is in no way bound to uphold those wishes. The Court is also not bound to agree with either parent, and can only make Orders if it is satisfied that the child is not at risk of physical or psychological harm, and that the Order are in the child’s best interests.

Family Court report writer charged with sexually abusing three children

Family Court report writerAn accused paedophile has been used as an expert by the Family Court in custody disputes that involve allegations of child sexual abuse.

The psychologist, who has since been charged with sexually abusing three children, was appointed by the Family Court to make custody recommendations in cases where one parent had accused the other of sexual abuse.

One of Australia’s foremost family law experts said it could open the way for custody rulings involving the expert to be overturned.

One mother, who was sent to the psychologist in 2013 after alleging her three-year-old daughter was abused by her father, told the ABC the psychologist had made her feel extremely uncomfortable.

Greta* said he implied she may not be satisfying her husband sexually and even if he had abused their daughter it did not mean he couldn’t have a relationship with the child.

“He was kind of overly physical with me. He kept touching my arm and my leg. It made me feel creeped out. He said weird things. He kept telling me that he knew about real paedophiles and that they would show up on [psychometric] tests,” she said.

“My first impression was ‘this isn’t going to go well’.”

The psychologist’s family report was never provided to the court.

However, in another case the psychologist’s report recommended the child “continue to live with [the father]” after the mother raised allegations of sexual abuse, saying he “found no significant evidence” the abuse had occurred.

At the time of the family report interviews the psychologist had not been charged with any offences. It is alleged the offending occurred many decades ago.

University of Queensland professor Patrick Parkinson, said a child sex abuse conviction could “absolutely” give a parent grounds to seek to quash custody rulings linked to the psychologist.

“The fact that a [an expert] has been convicted would in my view amount to, in itself, sufficient changed circumstances for the court to look at the case again — in the light of the current circumstances of the child.”

Even the charges, coupled with other changes in circumstances could form grounds to challenge a custody ruling, he said.

The psychologist remains on bail and the matter has been adjourned to October.

The psychologist cannot be identified for legal reasons.

When asked what measures it had taken to ensure any expert charged with criminal offences was not used by the court, a spokeswoman said the court could not comment.

Sydney family sent to Melbourne for family report

The family law system has come under heavy scrutiny after recommendations from the Australian Law Reform Commission (ALRC) in March that included sweeping changes and a call to abolish the federal system altogether.

The ALRC recommended the Family Court introduce mandatory accreditation for family report writers, otherwise known as single expert witnesses, after concerns over the quality of their reports and qualifications.

In June, the ABC revealed a Sydney psychiatrist was the subject of numerous complaints to the Health Care Complaints Commission (HCCC), that would not be investigated after the HCCC stated it did “not have the power”.

The Family Court stated on April 1 that the psychiatrist was not among its in-house report writers and it did not keep track of private report writers used in cases.

However, the ABC has seen documents that show the psychiatrist was still being considered by parents as a report writer in May.

Lilly* was one of the parents who lodged an official complaint against the psychiatrist last year and said her ex-husband had requested a family report from the psychiatrist despite the many complaints made against him.

In response, the court ordered the Sydney-based family, including three children, travel to Melbourne to attend another report writer at the parents’ expense.

Lilly said she felt bullied into signing the consent orders that required her to attend a report writer in Victoria.

“I requested more time be made available to seek out a different report writer. I indicated I could not afford the airfare or the accommodation.”

The ALRC said a national training program for report writers is being worked on in consultation with the Association of Family and Conciliation Courts (AFCC) and the federal Attorney-General’s Department.

However, an influential AFCC member involved in representations to the Government was, just months ago, cautioned by the medical watchdog for breaching a parent’s privacy including by running therapy in a wine bar.

A spokesman for the Attorney-General said the department was not involved in the development of the training but was being kept informed by the AFCC.

He referred questions back to the AFCC and the Family Court.

The AFCC did not respond to specific questions about the training, which is not mandatory for court-appointed experts.

But AFCC board member and former Family Court chief justice Diana Bryant emailed the ABC a brochure of an AFCC advertisement promoting “Family Report Writer Training”.

On the AFCC website, the three introductory training modules are listed at $400 each.

The site promoted the 2020 “masterclasses” being held in Singapore, Hong Kong and Japan.

A Family Court spokeswoman said it was unable to comment on the training program.

*Names have been withheld for legal reasons.

Equal parental responsibility is failing children, inquiry hears

family-courtAustralia’s family law system is failing to protect children by misleading separated parents into believing their children have to spend time with their ex-partner, even if they are dangerous, one of the nation’s largest children’s charities has warned.

Save the Children Australia chief executive Paul Ronalds said in his organisation’s submission to the parliamentary inquiry into family law that “Australia’s family law system is still not dealing with child protection issues adequately or appropriately”.

Separated parents are entitled to a presumption of “equal shared parental responsibility” under Australian law, which means courts start from a presumption that each parent gets an equal say in major decisions about their children, not equal time with them.

But the Australian Law Reform Commission, which delivered a major report on the family law system last year, found the provision was being misinterpreted to mean both parents should see the child for the same amount of time.

“The widespread nature of that misunderstanding has a number of effects, including leading unrepresented parties to believe they have no choice but to agree to equal time and to enter into informal agreements based on a misapprehension of the law,” the ALRC said in its final report.

Mr Ronalds said: “The presumption is harming children by leading to them being placed in contact with parents where such contact is unsafe.”

The presumption does not arise in cases of abuse or violence, but Mr Ronalds said the family law system was also bad at evaluating those claims.

“Our concern is that the system is still failing to listen to the very people it is entrusted to represent and protect – children,” Mr Ronalds said.

The family law inquiry, one of several recent examinations of the contentious area of law that governs topics including what happens to children when a couple gets divorced, was established by the government in September after pressure from One Nation leader Pauline Hanson.

Professor Patrick Parkinson, a family law expert and dean of the University of Queensland law school, said for the inquiry to be effective, it had to build on dozens of other family law reviews that had been left to gather dust.

“A vast number of reports have been written about the family law system over the last 20 years,” Professor Parkinson said in a submission to the inquiry. “Some reports get no governmental response at all. Others are cherry-picked.

“There is no reason to believe that the report of this committee will suffer any different fate from the previous ones unless it offers a thorough review of the many wise recommendations that have been previously made, and thereafter not implemented.”

The ALRC’s report from last year cites 22 state and federal government-sponsored reports on different aspects of family law in the past decade.

The inquiry is due to report in October 2020.

‘Do not resuscitate’ tattoo creates medical dilemma: What would Australian doctors do?

do-not-resuscitate-tattooThe man arrived at the hospital unconscious, without identification, with a high blood alcohol level.

He was 70, had a history of lung disease, heart problems and diabetes, and three words tattooed in big, black letters across his chest: “Do not resuscitate”.

Doctors at the Jackson Memorial Hospital in Miami, Florida weren’t sure how to proceed.

The message on his chest was clear, and has his (presumed) signature underneath, but they had no way of knowing if the tattoo was sincere, or done impulsively.

Efforts to contact the man’s next of kin were unsuccessful. Doctors administered some treatment to increase his level of consciousness, but he never become responsive enough to speak and discuss his end-of-life wishes.

“We initially decided not to honour the tattoo, invoking the principle of not choosing an irreversible path when faced with uncertainty,” they wrote in a letter published in the New England Journal of Medicine on Thursday.

“This decision left us conflicted, owing to the patient’s extraordinary effort to make his presumed advance directive known; therefore, an ethics consultation was requested.”

After reviewing the case, the ethics consultants advised the doctors to honour the man’s “do not resuscitate” tattoo.

“They suggested that it was most reasonable to infer that the tattoo expressed an authentic preference … and that the law is sometimes not nimble enough to support patient-centred care and respect for patients’ best interests,” they wrote.

The man’s health deteriorated, and he later died, without being resuscitated.

Before he died, medical staff discovered he had in fact filled out a form in advance expressing his end-of-life wishes, which were consistent with his tattoo.

What would happen in Australia?

Different state and territories have different laws when it comes to advance care planning and legal directives.

There are, however, common principles, including respecting the right of an adult who has the mental capacity to plan in advance for their health care.

“The community ethic is that the autonomous decision of the patient should be heeded by a medical team,” said Ian Olver, oncologist and bioethicist at the University of South Australia.

“But you’ve got to be able to actually ascertain what that decision is.”

To do this, under common law, doctors must be satisfied of three things: that a person was competent when they made the directive; that it was an informed choice; and that it applies to the situation they’re currently in.

“The doctor has to try and determine what the patient’s wishes are … so in this case, looking for relatives, looking for their GP, looking for documentation to try and reinforce the directive was a very sensible thing to do,” Professor Olver said.

While doctors as Jackson Memorial Hospital sought advice from a medical ethics team, Professor Olver said that was unlikely to happen in Australia.

“A lot of the hospitals have treatment ethics committees where they set ethical policy. But it is uncommon for there to be an ethicist on call for a situation like this.”

Professor Olver said it was more likely doctors would have to make a decision, especially in emergency situations.

“You’ve got to make a call, and if there’s sufficient uncertainty, I think the call might be to do what you need to do medically, and you sort it out later.

“But in other cases where, perhaps the chance of ‘[successful] resuscitation is very small and the patient’s wishes seem to be clear, the ethos of the community is to heed the patient’s wishes,” he said.

Making end-of-life wishes clear

While uncommon, Professor Olver said the US case was worth examining to see what improvements could be made to advance care planning processes.

“It highlights where we perhaps need to do better, to make sure patient’s wishes are known and communicated,” he said.

Making an advanced care plan is a good place to start, and it’s important to be specific, and to disseminate it widely, he said.

“It’s worth your GP knowing if there is a copy, and certainly relatives ought to have a copy.”

10 Ways an Ex Can Hide Money From You

Financial abuse is a common issue for many ex-couples after separation and through the family court.

In the midst of separation or divorce, some male and female ex-partners go to extreme lengths to hide money in order to reduce their future liabilities to the other parent/ex-partner or children of the relationship.

Below are 10 common ways an Ex can hide money from the other party

  1. Depositing money in trusts or in children’s accounts that the other parent has no control over
  2. Manipulating joint Self-Managed Retirement Funds
  3. Drawing money on a redraw mortgage
  4. Declaring bankruptcy to avoid payment
  5. Minimising income by deferring salary or bonuses until after settlement
  6. Minimising bank account balance by ‘lending’ money to friends, overpaying creditors (credit cards, tax, etc.) or buying expensive items that can be sold later
  7. Stockpiling cash
  8. Hiding personal assets via a complex web of companies
  9. Using trust structures
  10. Hiding funds in offshore foreign bank accounts

Special Note about non-disclosure in Family Court

The Family Law Act requires full and frank disclosure of the financial affairs of both partners who have to swear an oath and set out a complete statement of income, expenses, assets, financial resources and liabilities.  The duty of disclosure is ongoing, so if there are changes in parties situations or facts come to light that were hidden even years after orders were made, then it can be a basis for asking the Court to change orders. The court in recent years has been very harsh on people who have not fully and frankly disclosed their proper financial position.

Special Note on Hidden Asset Search

A hidden asset search involves the use of a forensic accountant or private investigator who can undertake certain searches to help uncover the true status of your spouse’s assets. There are three main assets searches that can be performed: a Brokerage Account Search; a Bank Account Search, and a Public Assistance Search. The Brokerage Account Search is used to locate any stocks, bonds or securities that may be owned; a Bank Account Search can locate all bank accounts the person may have in their name and which bank they are with, and a Public Assistance Search can identify any payments or benefits the person may be receiving from government departments such as Centrelink or Family Assist.

Finding where the money has gone

If you have grounds to suspect your ex-partner has hidden a lot of money and other assets, you could use a forensic accountant to assist you to find it. This service can be expensive, but the accountant should be able to advise whether it is worth pursuing. You can also enquire about a ‘no win, no fee’ arrangement. Forensic accountants work alongside your lawyer. Find a forensic accountant through your lawyer, or search the Certified Practicing Accountant Australia website.

Australian man faces jail in Japan while searching for his abducted children

Freelance-journalist-Scott-McIntyre-with-his-two-children-in-Japan

Freelance journalist Scott McIntyre with his two children in Japan.

An Australian man faces the prospect of three years in jail in Japan after a desperate bid to track down his two young children, who were taken by their mother in May without his consent.

Scott McIntyre, an Australian freelance journalist based in Tokyo, has been charged with illegal entry, which under Japanese law carries a maximum penalty of three years in jail, or 100,000 yen ($1327).

“I’m desperately worried for Scott’s future,” said Mr McIntyre’s mother Lynne. “He’s been through so much already. If he gets three years it will completely destroy him.”

Mr McIntyre, 45, has been living in Tokyo with his wife since 2015. After the breakdown of their marriage, the children went to stay with their grandparents for a night and never returned.

Friends say he has not heard from his wife or children since and does not know their whereabouts. Mr McIntryre’s wife did not respond to requests for comment.

In late November, Mr McIntyre allegedly gained access to the apartment block where his parents-in-law live. It’s thought he then knocked on their door, requesting information about his children.

The police were called and he was arrested. Since then, Mr McIntyre has been held in Takaido detention centre, in west Tokyo, where he is allowed one shower every five days. His cell is lit for 24 hours a day and he cannot wash his clothes.

“He gets one 20 minute visit a day,” said friend Catherine Henderson, who visits him regularly.

“We take stuff for him like clothes and books, but they are often refused. There is no privacy, even for the toilet.”

Mr McIntyre was sacked as a sports reporter by SBS in 2015 after he published tweets about Anzac Day which were deemed “inappropriate” and “disrespectful” by then SBS boss Michael Ebeid and then communications minister Malcolm Turnbull.

He commenced unfair dismissal proceedings against SBS and the parties settled in 2016.

Japan is one of the few developed nations in the world that does not recognise joint custody upon separation. Even if a court order does provide for shared custody, visitation rights are routinely ignored.

Scott McIntyre says he has not seen his children since his wife took them to stay with their grandparents in Japan.

Scott McIntyre says he has not seen his children since his wife took them to stay with their grandparents in Japan.

There are no official figures, but it’s thought up to 20 children every year are snatched from Australia and taken to Japan without the consent of one parent.

“Worldwide, the figure is closer to 1150,” said child recovery expert Colin Chapman.

“Japanese law makes it very hard to get those children back, which is why Japan has become known as a black hole for child abduction.”

Japan is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, which provides a legal process through which a parent can seek to have their child returned to their home country.
But Japan has been widely criticised for non-compliance. In any case, the convention only applies to international abductions. It is of no help to Mr McIntyre, whose children were abducted within Japan.

Embassy officials have visited Mr McIntyre in detention. It’s expected he will face court in January. Prime Minister Scott Morrison will also be in Japan in January, to discuss a defence cooperation agreement.

“While he’s there we’d like the Prime Minister to raise this issue of child abduction with the Japanese government,” Mr McIntyre’s father Laurie said.

“Scott’s not the only person this has happened to. Other Australian kids have gone missing in Japan. Someone has to do something about this.”

Psychologist’s misconduct raises questions about family court expert witnesses

Perth-based psychologist Darryl Menaglio accepted a professional misconduct finding over a report he prepared for a custody case at the Western Australia Family Court.

Perth-based psychologist Darryl Menaglio accepted a professional misconduct finding over a report he prepared for a custody case at the Western Australia Family Court. Picture: Colin Murty

It was a Family Court psychologist’s report that came with a heavy cost. Not only in monetary terms — although at $25,000 the psychologist’s fees were high. But also in its human toll, which continues more than seven years after it was handed to the Family Court of Western Australia.

In October, Perth-based psychologist Dr Darryl Menaglio accepted a finding of professional misconduct over his preparation of the report. He has been banned from acting as an expert witness in Family Court proceedings for at least a year and ordered to pay a $20,000 fine.

Family Court of WA Chief Judge Gail Sutherland ruled on Monday night there is a public interest in “shining a light” on Menag­lio’s misconduct and facilitating discussion about the professional oversight of expert witnesses. She granted The Australian permission to name Menaglio subject to conditions.

For Menaglio, the misconduct finding was no doubt an unwelcome stain on his 38-year professional record.

But for a father and son — whose relationship fractured after his report was published — the impact has been far more profound.

Expert witness

Menaglio was appointed by the Family Court in March 2012 to prepare a report on what care arrange­ments were in the best interests of a then nine-year-old boy. He was the “single expert witness”, meaning his would be the only expert evidence in the case.

At the time of his appointment, the boy, “D”, had been dividing his time on a week-about arrangement between both parents, while they fought over D’s potential relocation to Germany. The boy had lived with his mother at one point over there; the father had brought the boy back to Australia without her permission in contentious circumstances.

Despite the tumultuous lead-up to their litigation, the judge, Jane Crisford, said the boy appeared to have had, until that point, “a generally close and loving relationship” with each of his parents. However, Menaglio’s report, handed to the court in May that year, was dynamite.

The report found that the father’s personality style was “psychopathic”. It also came with a warning — it was to be read by the parents in the presence of a Family Court counsellor, and released only when D was in the care of his mother.

“When people with the psychopathic style are exposed, they become depressed and angry and can do considerable harm to themselves or others. In the extreme this harm can extend to homicide and suicide,” Menaglio wrote.

He recommended D’s contact with his father be supervised until the court was “completely satisfied” he would be safe in his father’s care.

The mother’s reaction to the report was swift; she stopped all contact between D and his father and pulled her son out of school.

Concerns ‘validated’

Sometime in 2009 or 2010, the mother, known as “Elaine Cape”, had read about “psychopathy” on the internet. She decided it fitted the father’s profile down to “the smallest detail”, according to Crisford’s judgment.

Ms Cape later told the court she agreed with Menaglio’s diagnosis “wholeheartedly” and was relieved the psychologist had “recognised and validated” her concerns.

However, when Crisford finally delivered her judgment 11 months later, she was not satisfied there was “any basis” on which the label “psychopath” could be used to describe the father. She said it was “glaringly obvious” that Menaglio’s report had “been coloured by the animosity between himself and the father”.

By then, the relationship between D and his father had “completely fractured”.

The father, “Derek Cape”, had been opposed from the start to Menaglio’s appointment as the single expert witness, preferring a Melbourne-based professor for the role.

The court went with the mother’s choice because of Menaglio’s availability, despite his “very high” costs.

In the words of another judge, Carolyn Martin, who handled the case at an interim stage, it was an “understatement” to say the men did “not hit it off”. They had dis­agreed about appointment times and the timetable for preparing the report.

Martin said while she did not necessarily share Menaglio’s concerns for the boy’s physical safety, Mr Cape’s time with his son should be supervised on a temporary basis because D had become trepidatious of his father. She ordered Ms Cape to send her son back to school.

By the time of Crisford’s final judgment in April 2013, there was no longer any “meaningful relationship” between D and his father. “Unfortunately, nothing could undo the effect the single expert report had already had on the court process, the mother and in turn, on D,” she said. Her decision raised concerns about the emotional risks posed to the child by both of his parents. His father could be overly critical and not always meet the boy’s emotional needs; his mother’s misery and need for support had pushed her son to take on a more adult role in their relationship.

The judge gave permission for the mother to return with her son to Germany. The boy was closer to his mother and she would be better able to support herself over there. She was satisfied that even before the expert report, his relationship with the father was not as close as Mr Cape believed it to be.

Once Ms Cape left Australia with their son, she cut off all contact, according to the father.

Losing a child

D will turn 18 next year and his father will have missed out on the remainder of his childhood.

Mr Cape told The Australian last year it was difficult to describe what it was like to lose a child in such circumstances, and harder to live with the idea his son had lost half his family. “I find myself sharing thoughts with my absent, distant son every day,” he said last year. “I have a place where I share memories in private with him, in a diary, in the hope that I might one day be able to share them with him.”

After the litigation ended, three other psychologists who had been involved in the case took the highly unusual step of signing a joint statement that said they rejected the allegation the father was “in any way psychopathic”.

They said they “strongly disagreed” with Menaglio’s report and had seen evidence the boy’s relationship with his father before this point had been “good, healthy and strong”.

In her judgment on Monday night, Sutherland raised doubts about the authenticity of this document. However, The Australian has spoken to two of the three psychologists involved, who confirmed its authenticity. It is understood the document was prepared for the purpose of legal proceedings in Germany.

Menaglio agreed in the State Administrative Tribunal last month that he had failed to act with the care and skill expected of a competent psychologist, by attributing traits of psychopathy to the father in circumstances where he had insufficient data or clinical evidence to justify it.

This would have involved engaging a specifically trained psychologist to administer a diagnostic tool used to measure psychopathy. He accepted that he had conveyed that the child required protection from the father, in circumstances where he had insufficient data or clinical evidence to justify that conclusion.

‘Distinguished’ career

Menaglio continued to act as a single expert witness in the Family Court for five years after his involvement in the Cape case.

According to an agreed statement of facts provided to the State Administrative Tribunal, he provided numerous reports for the courts over an 11-year period from 2007 to 2017, until he voluntarily ceased this role because of the instigation of disciplinary proceedings by the Australian Health Practitioner Regulation Agency. According to the statement, the conduct was an isolated case in the psychologist’s “long and distinguished” career.

His website continued to advertise his services as a family law expert until recently.

Sutherland chastised The Australian on Monday night for not reporting on events that occurred after the mother returned to Germany, and other aspects of the report that she said were not factually accurate or fair. She said The Australian’s draft article was overly sympathetic to the father. This article has been changed to reflect her comments.

According to court documents filed by Ms Cape as part of The Australian’s legal case, the father was convicted of child abduction and sentenced to 10 months in prison. This occurred after the Family Court of WA had already found Mr Cape’s return of the child to Australia was not wrongful and that the child’s habitual residence was in this country.

The father told Sutherland he was not fully aware of the German proceedings and had not been able to participate in them. The Australian has yet not been able to verify what occurred during the German proceedings. Ms Cape has not responded to The Australian’s request for comment.

Ms Cape also alleged in her court documents that Mr Cape had never paid child support, however Mr Cape says he has paid child support to the Australian Child Support Agency.

Mr Cape believes it took too long for the medical regulator to take disciplinary action against Menaglio to be disciplined, and that the ruling, when it finally came last month, made him “terribly sad”.

“There is an exceptional lack of scrutiny enjoyed by court experts who are responsible for some of the most important decisions in the world — what happens to our children,” he said.

Identity protected

Psychologists play a key role in the family courts, helping judges to make difficult decisions about what care arrangements are in the best interests of children and to assess abuse allegations.

However, many litigants complain about the performance of some experts.

The Australian Law Reform Commission earlier this year recommended an accreditation system for family report writers because of concerns raised about the quality and integrity of reports, particularly those produced by private professionals, not employed by the court. Menaglio’s identity was protected until now by section 121 of the Family Law Act, which prevents the naming of any witnesses to family law proceedings, even independent experts.

University of Queensland law dean Patrick Parkinson recently told The Australian that although section 121 had a valid purpose of protecting families, in his view there was “no reason” to prevent the identification of professional witnesses. It made it “almost impossible” for journalists, academics and researchers to scrutinise their performance, he said.

The Australian Health Practitioner Regulation Agency was able to point The Australian to only one other case in which a psychologist had been disciplined for their conduct in family law proceedings.

The psychologist’s registration was suspended for 18 months after she accepted she had failed to properly consider the possibility that allegations that a three-year-old had been sexually assaulted by her father had come from the child’s mother or grandmother. The psychologist had sent a report to police that sought to influence their investigation, and “transgressed professional boundaries”.

The Australian cannot name her because of section 121.

Earlier this year, the ABC also revealed that a prominent psychologist had been charged with historic child sexual abuse. The psychologist is understood to have acted as an expert in at least one or two family law cases.

Liberal senator Sarah Henderson, who led an inquiry into family violence, recently called for section 121 to be reformed to improve transparency. Attorney-General Christian Porter told The Australian the government was considering the ALRC recommendation for an accreditation scheme and “how section 121 should balance privacy issues with open justice”.

For Mr Cape, reforming the system for others would offer some consolation for the damage inflicted on his own family.

Additional reporting: Victoria Laurie

The Family Court of WA’s judgments in the “Cape” case and its decision allowing Dr Menaglio to be named are available at www.familycourt.wa.gov.au.

 

Millie Phillips, once Australia’s richest woman, creates chaos over her Will

Millie-Phillips

Millie Phillips, the head of International Mining Corporation, made her fortune through nickel.Source:News Corp Australia

The dirty laundry of a wealthy Sydney family has been aired in court during a battle over the colourful 90-year-old matriarch’s multimillion-dollar fortune.

Millie Phillips was once considered to be Australia’s richest woman, according to The Sydney Morning Herald , and today she has an estate worth up to $110 million.

Mrs Phillips, who migrated to Australia from Poland as a child, is a self-made woman, originally setting up a boarding house in Ashfield in Sydney’s inner west in the early 1960s after borrowing a modest sum of money.

At the time, the Holocaust survivor was a single mother of three young children following the implosion of her marriage.

Then, in 1968, she invested in a tin mine, and ended up amassing staggering wealth during the nickel boom and becoming the head of International Mining Corporation.

Now she’s worth tens of millions, and has lucrative assets including a sprawling property in Kurrajong Heights near the Blue Mountains, paintings, business interests and other valuables.

But the question of who to leave her millions to is a complicated one.

Mrs Phillips has two surviving adult children who are aged in their early 60s, Sharonne and Robert.

Her third child, Lynette, died in 1978 after setting herself on fire in an act of “self-immolation” outside the United Nations headquarters in Geneva, Switzerland.

The young woman was a member of the controversial Ananda Marga religious sect – the same group that was initially linked by police to the 1978 bombing of the Sydney Hilton Hotel.

At some point over the years, Mrs Phillips and her son had a serious falling out, and today they have little to “no relationship”, the court heard.

Her relationship with her surviving daughter also became strained after Sharonne and Robert discovered in September 2017 that their mother had secretly transferred their sister’s remains from Sydney to a cemetery in Israel.

As a result, the court heard the relationship between mother and daughter had “not been easy”.

Then, in April 2018, Mrs Phillips had a stroke that left her needing “a high degree of care for daily living” which she receives at a nursing home in Rose Bay, where news.com.au understands she remains in a stable condition.

But Mrs Phillips repeatedly refused to sign a will before her stroke, leaving the division of her massive fortune up in the air, a Sydney court has heard.

In legal documents seen by news.com.au, stunning details of the extent of the family feud are revealed.

Before her stroke, Mrs Phillips had already decided she did not want her son to inherit anything, due – at least partly – to a dispute over a property in Bronte in Sydney’s east.

But she did want to leave some money for his five children, as well as her daughter Sharonne and her 25-year-old son, Anthony Small, and other friends, relatives and organisations.

However, she was concerned about ruining her grandson’s drive and ambition with a large inheritance, telling a lawyer: “You hear about rich grandchildren who don’t do anything with what they’ve been given and waste it and others do good with it.”

Mrs Phillips was repeatedly warned by her legal representatives that if she did not sign a will, her estate would be divided between her two adult children after her death despite her wishes.

She repeatedly clashed with her lawyers, which Mr Small conceded could have been the result of her “quarrelsome personality”.

But he disputed the finding made by a judge that his grandmother was “given to bouts of paranoia” or had a “paranoiac fear that she was being manipulated by others attracted by her wealth”.

THE BATTLE

The court heard that in May 2017, Robert Phillips visited his mother at her request, only to be told “you didn’t stop the Bronte sale and you are not my son”.

However, she also asked to see her son’s five children, although a meeting with some of them “did not go well”.

Then, in February 2018, Mrs Phillips arranged a dinner with Mr Phillips’ five children at Tetsuya’s Restaurant.

But during the dinner, Mrs Phillips gave “an unpleasant speech”, telling those grandchildren, “I don’t know any of you people” and words to the effect of “you’ve all missed out considerably, and Anthony will do a lot better”.

Despite this, some of them continued to meet up with their grandmother, and the court heard that spending time with them was a great source of “pride and joy”.

THE OUTCOME

Earlier this month, the NSW Court of Appeal ruled in favour of an application made by Mr Small to create a will on his grandmother’s behalf based on earlier versions of her will.

Mr Small’s application under the Succession Act was not opposed by any other member of the family, and now Robert Phillips will inherit nothing, although each of his five children will receive $1 million each.

Mrs Phillips’ former housekeeper and friend will receive $250,000 and her sister $500,000.

Sharonne Phillips will inherit $5 million while Mr Small will receive a $25 million property near Bathurst in NSW including a Bunnings store which generates around $1 million annually.

The mother and son will also share the Kurrajong Heights property and a number of paintings, while the rest of Mrs Phillips’ estate will be divided between Israel’s Tel Aviv University, Sydney’s Jewish Museum and the Millie Phillips Jewish Fund.

Mr Small told news.com.au he believed a good outcome had been achieved.

“I think the will is a good reflection of my grandmother’s wishes, (as) a Holocaust survivor who narrowly escaped the Nazis in the 1930s and held a lifelong passion about fighting anti-Semitism,” he said.

“It was this shared passion and my immense respect for my grandmother which motivated me to bring the application initially. I am glad that I have been able to honour her in this way and that her legacy will be upheld.”

He said he and his mother had “always been a big supporter” of Mrs Phillips’ philanthropy, and that he pair remained “incredibly close”.

“The dispute largely arose because my grandmother suffered a stroke before she had time to get her affairs perfected to her standards, and was unhappy with some of the actions of her solicitors in forming the initial draft,” Mr Small said.

“I and others have gone to great efforts to ensure she receives the respect she deserves after working so hard and having such an impact as a self-made woman who has given so much service to the community through her businesses and extensive philanthropy despite immense adversity.”

THE EXPERT

According to wills and estates special counsel Joanne Carusi from Barry Nilsson Lawyers, the main issue in this case was Mrs Phillips’ failure to get her affairs in order before her stroke rendered her incapacitated.

“If you don’t have a will, you die intestate, which means the state determines how your estate will be divided through a formula set in every state,” she told news.com.au.

“It is vitally important to have not only a will but also an enduring power of attorney. If you lose capacity and are in a coma (for example) you need a trusted person to make those decisions for you medically and financially, which is revoked upon death.

“Delays are dangerous in estate planning – that was the problem here.”

MILLIE PHILLIPS’ SCANDALS

Mrs Phillips’ messy family life isn’t the only scandal she has been involved with over the years.

In 1974 she was charged with insider trading, although the case was later dropped.

In 2008, an inquest into the death of Donald Fairbairn, a patient at Mrs Phillips’ Yagoona Nursing Home, was held after a nurse allegedly injected him with 10 times his prescribed dose of insulin, The Sydney Morning Herald reported at the time.

The court heard Mrs Phillips “verbally attacked” Mr Fairbairn’s daughter, telling her, “This is your fault we’re having this inquest. He was old and going to die … You’re not going to get any money – he was worth nothing. He was old and sick anyway.”

Mrs Phillips was banned from attending the rest of the inquest.

And in December 2017, Mrs Phillips’ nursing homes lost their government accreditation, with the Blue Mountains Gazette reporting the Ritz Nursing Home at Leura failed 30 of 44 performance markers.

‘Safety must come first in family law’: Legal groups reject merger plan

Family-law-reformA coalition of more than 60 legal organisations has urged the federal government to abandon a plan to scrap the Family Court as a stand-alone entity, warning that a proposed courts merger risks the safety of child and adult victims of family violence.

Attorney-General Christian Porter is at loggerheads with the country’s peak body for the legal profession, the Law Council of Australia, over his controversial plan to merge the specialist Family Court of Australia with the lower-level Federal Circuit Court.

The FCC hears some family law disputes alongside a raft of other cases, including migration matters.

In an open letter to Mr Porter, released on Monday, more than 60 organisations including the Law Council and peak bodies Women’s Legal Services Australia, Community Legal Centres Australia and National Aboriginal and Torres Strait Islander Legal Services urged the government to return to the drawing board on family law reform.

“The safety of children and adult victims-survivors of family violence requires increased specialisation,” the letter says. “The proposed merger serves only to undermine that important need.”

The signatories say “safety must come first in family law” and they “welcome further consultations on alternative models of structural, holistic reform to benefit children, families and victims-survivors of family violence”.

“We prefer a model that retains a stand-alone specialist superior family court and increases family law and family violence specialisation,” the letter says.

Nerita Waight, co-chair of National Aboriginal and Torres Strait Islander Legal Services, said the reforms would “disproportionately impact the most vulnerable including Aboriginal and Torres Strait Islander children and families who need the most support”.

In a report released in April, the Australian Law Reform Commission said the majority of family law cases in federal courts now involved violence, child abuse or other complex factors.

It said up to 70 per cent of parents in family law proceedings reported their children had been exposed to family violence, and almost one in five said they had safety concerns either for themselves or their children, or both.

In a speech in August, Mr Porter rejected claims the merger would lead to a loss of specialisation or  spell “the end of the Family Court”, and said the court would continue to exist as a division of the new Federal Circuit and Family Court.

Under his initial plan, existing Family Court judges would have been housed in division one of the new court but no further judges would have been appointed to that division. In a bid to secure crossbench support for his plan, he agreed to a permanent “floor” of 25 judges in division one.

Angela Lynch, spokesperson for Women’s Legal Services Australia, said the lack of a stand-alone specialist court would make it “much easier” for future governments not to replace specialist judges.

“Government-commissioned inquiry after inquiry has recommended increasing specialisation in both family law and family violence, including the recent Australian Law Reform Commission  review of the family law system,” she said.

Mr Porter says the merger will improve efficiency in cases and help clear a backlog of about 20,000 matters, a claim disputed by the Law Council.

He attempted to pass a bill to give effect to the merger before the May 18 election but was unable to win sufficient support from the Senate crossbench to bring on a vote.  Mr Porter announced in August he would revive the plan and the legislation is expected to be reintroduced to Parliament before the end of the year.

In a speech last week,  Law Council of Australia president Arthur Moses, SC, accused the federal government of adopting a “stubborn and wrong-headed approach to family law” that will hurt children and families.

Mr Porter retaliated by saying “Arthur Moses’ approach falls into Einstein’s definition of madness – doing the same thing over and over again and expecting a different result”.

On Sunday Mr Moses said “the time has come for Attorney-General Porter to stop making derogatory remarks against those who oppose this misconceived and wrong-headed proposal”.

“Rather he should listen and engage in a mature manner with those raising concerns as they know this area of the law better than any member of the government. It is too important to get wrong,” he said.

Death duties (Inheritance taxes) in Australia are Inevitable, says expert

Death duties (Inheritance tax) in AustraliaAustralian taxpayers are “bound to” be hit with an inheritance tax, a financial adviser has said, pointing to similar policies in the UK and US.

Chief of financial advice firm Stanford Brown, Jonathan Hoyle, said an inheritance tax was an inevitability in Australia as the country’s current position was unusual and unsustainable.

“The UK has very punitive rates of inheritance tax, I’m sure they’ll come here. In Europe we’re seeing [a] wealth tax… it’s bound to happen,” he said, naming inter-generational envy a problem.

“The Coalition’s decision to limit the amount of tax-free superannuation is the start of making super less attractive for everybody but particularly the very wealthy and we expect to see many more measures that will limit the amount of money in tax-free super.”

The next step will be an inheritance tax.

He said that as an adviser, he works with high net-worth clients who begin considering their retirement in great detail in their 50s.

“Retirement planning is a three-decade process – for couples in their 50s, this [plan] is going to last a long, long time.

“One of the things that’s probably going to happen [during their retirement] is an inheritance tax. That’s about 40 per cent in the UK, so you’ve probably got to get used to the idea that there will be an inheritance tax here.”

Australia abolished death duties in 1979 due to their relatively low exemption thresholds, poor consideration for the effects of inflation and the challenges they could place on widows and family businesses like farms.

While the United Kingdom’s 40 per cent inheritance tax rate is high, those in Japan face 55 per cent levies. However, in Italy the tax rate is relatively lower at just 4 per cent.

A fatally unpopular ‘policy’

While Hoyle believes an inheritance tax in Australia is inevitable, it’s politically unpalatable.

This year’s election saw the Labor Party hit with misinformation over incorrect claims it had plans to introduce the tax, despite it having no such policy.

Treasurer Josh Frydenberg claimed the Labor Party had plans to introduce the policy.

“Given Labor is already proposing to tax Australians from the cradle to the grave, it is certainly not out of the question that Labor would consider taxing people beyond the grave,” Frydenberg said in January.

A scare campaign on Facebook also went viral, with Labor ultimately writing to the social media platform asking it to take action on the viral content.

Current Inheritance Tax in Australia

According to the Australian Taxation Office website, “There are no inheritance or estate taxes in Australia.” However, the site also states that “There may be some tax obligations for beneficiaries, depending on the nature of any distribution they may receive.”

According to H&R Block, if you reside in Australia and you receive inheritance money from abroad, beneficiaries do not need to pay additional taxes unless specified by the executor. However, if you end up investing any of the income that you receive from the estate, your earnings may end up being taxable.

Even though Australia currently does not have an inheritance tax, there are some specific financial transactions that may still be taxed. Following an individual’s death, his or her estate could keep making an income from things like interest on savings accounts, capital gains from asset sales, or dividends from stocks. In these cases, a trust tax return will be due on any of the income that is taxable, and the tax has to be handled by the beneficiaries or the executor named in the will. A trust tax return must be filed every year until the estate is fully administered, meaning all assets have been distributed to the beneficiaries. If the estate is resolved during the year of death, there are some exemptions from the trust tax return if the income thresholds are low enough.

It is also important to note that inheritance law will vary between territories and states throughout Australia. You should get in touch with your local Public Trustees office to determine the rules that apply to your territory or state.

Individuals who live in Australia and are unclear of their taxation responsibilities can check the Australian Taxation Office’s website. You should also contact a qualified accountant to have all of your questions answered and to ensure you pay any necessary taxes when they are due.

What Can I do to Minimise Taxation on my Inheritance?

There are actions you can take to minimise the impact of having to pay tax on your inheritance.

The first action to take is to seek expert legal advice on the potential taxation that you may be required to pay on your inheritance.

For example, in the case of inheriting the family home, a sale of the property within 2 years can ensure that you are not liable for any Capital Gains Tax. Other actions can be taken to minimise your taxation exposure and an expert Wills and Estates Lawyer will be able to walk you through the options available to you.

You can also take actions to minimise any taxation that your beneficiaries may be liable to pay. This can include checking your superannuation policies on what beneficiaries are included in the definition of “dependent” and therefore not liable to pay any tax if they inherit your superannuation funds. It may also include exploring options on setting up a Trust for your beneficiaries which can also minimise the amount of taxation payable.

Related Family Law Judgments