Can you sue for divorce caused by a cheating partner in Australia? Short answer, ‘No’, sort of

on March 22, 2019 by admin

Changes were made to the Family alienation-of-affection-law Law Act in 1975 that did away with moralising about infidelity. Married partners now have to be legally separated for 12 months before they can seek a divorce.

Adultery no longer serves as legitimate grounds for divorce in Australia, and cheating spouses and their partners cannot be pursued legally for “emotional distress” or any other kind of loss incurred by the breakdown of a marriage.

There is some wiggle room when it comes to a property settlement in a divorce, where judges do make allowances for partners if one is found to have engaged in the “wastage of matrimonial assets” through gambling, the use of escort services or other extreme circumstances. The judge would have to find the spouse’s spending to be “wanton” and “excessive.”

According to lawyers engaging in these cases locally, it is generally not difficult to prove your case and come out victorious against your spouse’s lover.

All you really have to prove is that actions were undertaken to alienate affection that was there previously. The claimant doesn’t have to prove that the cheating partner even had intercourse as part of their affair.

However if they can prove intercourse, that can be another charge, which is called criminal conversation.

Many call this kind of legislation antiquated and archaic and say it should be abolished, but many appreciate the continuance of the centuries old laws. A local North Carolina lawyer did just that in 2010 releasing a statement praising a jury’s decision to award US $9 million to a woman who had used the laws to pursue her husband’s new lover.

“In an age when “the sanctity of marriage” is a political phrase, alienation of affection laws continue to protect the value of marriage. These cases tell those who would seek to damage another’s marriage that this is simply unacceptable.”

Some of the other arguments in favour of alienation of affection have to do with the financial loss incurred by divorce, where claimants can recoup after the fallout.

Some limitations have recently been placed on the laws, including a statute of limitations and that the proceedings must be filed before the divorce is finalised.

In the US, it is a different story

According to the “broken heart” law, if your husband or wife cheats on you and it ends in divorce you are able to sue for damages. And the payouts can be in the millions.

But the person you sue is not your ex-husband or wife. It’s the individual they had the affair with.

It’s called “alienation of affection”, a common tort law, which finds the “other man or woman” at fault for a failed marriage, and makes them pay damages for the love lost.

The law explains it like this: if that third person hadn’t come between these two, the marriage would still be together. So the jilted partner is able to sue for damages to their love lost, often due to an extramarital affair.

The law is most commonly associated with North Carolina in the USA. Similar versions of it are recognised across a number of US states including Hawaii, Mississippi, New Mexico, South Dakota and Utah. About 200 suits of alienation of affection are filed in North Carolina each year, with the vast majority settled out of court.

In 2011 a judge ruled that a husband’s mistress pay damages to a jilted wife to the tune of over $42.1 million.

Donald Puryear had reconnected with old flame Betty Devin at his father’s funeral in 2007 when she slipped him her phone number. Two years later in 2009 just before divorce proceedings were finalised with his wife Carol Puryear, she filed a civil lawsuit against Devin, citing “alienation of affection” caused by the actions of her husband’s mistress.

Superior Court Judge Carl Fox ruled in 2011 that Ms Devin, the new wife of Mr Puryear, pay more than $14 million (US $10 million) in compensatory damages and $28.1 million (US $20 million) in punitive damages to Ms Puryear, the former wife of the trucking company owner.

“For my client, it was not about the money,” Stephanie Jenkins, Ms Puryear’s lawyer, told the News & Observer at the time.

“It was about sending a message that people should be held accountable for their actions.” Apparently a defendant’s ability to pay does not come into account when awarding such a sum.

A similarly massive payment was ordered to Keith King, who founded a BMX Entertainment company. A judge ruled that his ex-wife’s lover Francisco Huizar III pay Mr King $12.35 million (US $8.8 million) for alienation of affection and “criminal conversation” with his then wife.

Five years after King married his wife Danielle King he discovered “flirtatious texts” with her lover. He said after that his marriage was “destroyed”.

“There’s not a doubt in my mind, and I’ve always said, “If it wasn’t for him. If it wasn’t for him.””

Huizar’s lawyer Cheri Patrick strongly criticised the ruling, calling the law “archaic” and saying the ruling “demeans the obligations of spouses in a marriage and should be stricken.”

Who is a parent? Sperm donor heads to the High Court to clarify parental rights

on March 7, 2019 by admin

A sperm donor and the mother of his biological child are headed to the High Court to determine his parental rights, in a case that has sparked calls for pre-conception agreements in Australia. sperm donor dad

The Newcastle man, known in court documents as Robert Masson, is seeking to be recognised as a legal parent in a bid to stop the mother and 12-year-old daughter moving to New Zealand.

Mr Masson and the mother, known as Susan Parsons, have been close friends for at least 25 years and conceived in 2006 using “informal artificial insemination”.

The business manager aged in his late 40s is listed on the girl’s birth certificate. He has been an active part of her life and she calls him “Daddy”.

The case is headed to the High Court in April.

Professor Fiona Kelly, from the La Trobe University Law School, said she believed the presumption should always be that a sperm donor is not a legal parent. But she said pre-conception agreements should be allowed in complex cases.

“What some other countries have done … they allow for a pre-conception agreement between a mother and a donor or two mothers and a donor or whatever combination of people that overcome that presumption [that the sperm donor is not a parent],” she told The New Daily.

“In the small number of cases that deviate from the norm, you enter into a pre-conception agreement and I think that’s the cleanest way to deal with it.”

Mr Masson’s lawyer, Tahlia Bleier from Steiner Legal, said there were serious legal and social questions to be determined.

“It is the fundamental right of every child to have the law constructed in a way that makes clear who their parents are,” she said in a statement to The New Daily.

“If the law is ambiguous, then the High Court must remove that ambiguity – and this case will do just that.

“The High Court’s determination of this matter will have ramifications across the country for children and sperm donors fulfilling a parental role in a child’s life.”

The Family Court of Australia in 2017 found the man was the girl’s legal parent, after finding Ms Parsons and her partner, Margaret, were not in a de facto relationship at the time she was conceived.

But the full Family Court found state law in New South Wales has an “irrebuttable presumption” that sperm donors are not parents – unless they were married or de facto with the mother – and said the federal law did not stipulate otherwise.

Professor Fiona Kelly said the federal act does not clarify cases involving a single parent using artificial conception, meaning the High Court ruling would have implications for single people using known donors.

Attorney-General Christian Porter has intervened, filing a submission to the High Court to argue that the federal law definition of parent applies and supersedes state law.

“I intervened to explain to the High Court that in the Act the word ‘parent’ has its ordinary, contemporary meaning and that this ordinary meaning should be determined by interpreting the Commonwealth laws in all the circumstances,” Mr Porter said in a statement to The New Daily.

“The Commonwealth has not argued for any particular, specific, iron-clad rules about who is and is not a ‘parent’ based on genetics and relationship status.

“Instead, the Commonwealth’s position is simply that the term ‘parent’ should have its ordinary meaning and that will depend on a number of factors which may be relevant, including the intentions of those involved in raising the child, and other social factors and particular features of the actual relationship in question.”

A spokesperson for Victorian Attorney-General Jill Hennessy confirmed the state would also be making a submission, but has not done so yet.

All attorneys-general in the country were invited to make a submission.

The Family Court in 2017 found both parties had shielded the daughter – as well as a younger daughter to the Parsons using another sperm donor – from hostility about the legal stoush.

Mr Masson has been with his partner Greg for six years, while Susan and Margaret were in a developing relationship from 2006.

The Family Court did not consider that relationship to be de facto until later, excluding Margaret from automatically becoming the 12-year-old girl’s legal parent.

DNA test proves man who paid $58k in child support isn’t the dad

on March 3, 2019 by admin

Kerry said he paid almost $60k in child support, but then found out his daughter wasn’t his.Source:Channel 9

A MAN who forked out almost $60k in child support payments wants his money back, after a DNA test revealed he isn’t the father.

Appearing on Channel 9’s A Current Affair, Kerry was a local footballer when he had a one-night stand with Julie.

Now a fisherman, he said the encounter 20 years ago lead to Julie revealing she was pregnant, and that the child was his.

Living in the coastal town of Cervantes in Western Australia, Kerry says he wants his money back from either Julie or the government for paying out $58k over 18 years for a child that wasn’t his.

“The bills started to pile up and I had to take action because if I didn’t, they would,” Kerry told A Current Affair.

“The first time they froze my account was during a fishing season. I had my passport frozen and told that it wouldn’t be reinstated until I had paid the bill in full.

“I had $26,000 taken out.”

But despite the growing debt, Kerry says he continued to make the payments as he believed the child was his, even though he was slightly skeptical because there were a ‘few suitors’ for Julie at the time.

Kerry finally got in contact with the DNA agency to confirm once and for all if Julie’s daughter was his. He claims they called him an idiot and told him to get a test as soon as possible.

“The consultant from Child Support, when he asked me, I can’t see a result for a DNA test here, I said, ‘Because I didn’t have one’,” Kerry said.

“And he pretty much on the phone called me a stupid idiot and to go and get one done as soon as I could.”

According to Kerry, not only did the test reveal he wasn’t the father, but Julie had also claimed that they were living together when she fell pregnant.

In a statement sent to A Current Affair, Julie said that for 18 years she and her daughter believed Kerry was the father.

“Over the last 18 years Kerry has had the chance to get a DNA test but as myself and Child Support could never get in contact with him, it never happened, and now he is coming out with accusations that are unfounded and untrue,” she said.

It is understood Julie will be required to pay back the child support, but as she no longer works, she will be paying just $49.80 a fortnight. But Kerry says he’d rather the Child Support Agency pay back the money for allowing this to happen.

“I’ve been hassled non-stop by Child Support, but the reason they thought I was the dad wasn’t right,” he said. “They accepted me as the father without any proof.

“That’s what makes me angry, really.”

Dad wins $500k after wife lied about paternity of their 3 children

on March 2, 2019 by admin

Richard Mason has won a $447,000 payout from ex wife after she ‘tricked’ him into believing his three sons were his for 21 years. Picture: Huw Evans Picture LibrarySource:australscope

A dad has been awarded $447,000 from his ex-wife after discovering he’d been “tricked” into raising three children he couldn’t possibly have fathered, as he was infertile.

Richard Mason, 55, realised his ex-wife Kate Mason had lied about the paternity of their three kids for 21 years when doctors diagnosed him with cystic fibrosis in 2016, revealing he couldn’t father children naturally.

As a result the horrified dad successfully launched a paternity fraud case to win back some of the $7 million he had paid her during their divorce, but as a result he’s heart breakingly lost contact with two of his kids, The Sun reports.

“You don’t know what’s real and what isn’t — it’s as if I’m living in The Matrix,” he told The Mail on Sunday.

“Someone says to you, ‘All you know and everything you thought solid and true is not real, and never did exist. You are not a father, you are not able to have kids, your name will not continue.’

“I still see what the boys are doing on Facebook and it’s heart-wrenching. It’s all been taken away from me.”

After making the startling discovery, the man sent frantic texts to his ex-wife, begging for “advice” as to how they tell the boys after being told it was 98 per cent certain he couldn’t have fathered a single child, let alone three.

His wife initially said, “Of course the boys are yours, no matter what the science might suggest,” but later confessed to the betrayal when confronted by her eldest son, revealing she’d had an on-off affair during their 20-year marriage.

Richard, who is a millionaire co-founder of internet comparison site MoneySupermarket.com, later had DNA tests and was heartbroken to find the 19-year-old twins were not his sons.

Their brother, 23, did not provide a sample for a test.

Mr Mason’s family has been torn apart as his relationship with the boys has been destroyed by the revelation.

He believes there must have been some doubt in his ex’s mind when she fell pregnant seven years into their marriage, and thinks she “tricked” him into bringing up the boys.

Kate confessed to cheating between six to 12 times with her colleague, but was adamant he couldn’t be the dad as the pair always used condoms.

His ex-wife only confessed 10 years after they divorced and he had already been ordered to pay a huge divorce settlement to raise the children.

According to the Cystic Fibrosis Foundation, 97-98 per cent of men with cystic fibrosis are born infertile and cannot father children without assisted reproductive technology.

The average CF patient only lives to around 37 and is diagnosed at birth, so the circumstances around Richard’s diagnosis are unclear.

The paternity fraud case came to an end recently when Kate agreed to pay an out-of-court settlement, but Richard feels his life has been “destroyed”.

However, the legal case allowed her to keep the biological father’s name out of proceedings.

It is not known if he is aware he is the boys’ dad.

Ms Mason and her sons declined to comment.

Mother loses legal fight to change child’s surname after divorce

on February 16, 2019 by admin

Sharna Jones – wanted to change child’s surname after divorce

A legal stoush has erupted between a mother and a father over whether their baby daughter should have a double-barrelled surname on her birth certificate.

The dispute arose when Caroline Springs woman Sharna Jones gave birth to a second child after her marriage with the girl’s father, Ryan Beves, had ended.

Ms Jones, who went by ‘Beves’ before the break-up, wanted to register her daughter’s surname as ‘Jones’.

“When we go to doctors’ appointments, I sign in as Jones and they sign in as Beves,” the primary care giver of the children said.

“There’s that stigma, the baby is nine months old and already she has a different name to her mum. I want the kids to know that whoever they’re with that they belong.”

However, Mr Beves objected to the idea, insisting the child use his surname, which had also been given to their first child.

“I don’t want to have two children with two different names,” Mr Beves said.

What is child’s surname after divorce?

Both parents lodged competing documents with the Victorian Registry of Births, Deaths and Marriages, each indicating they wanted the child to have their own last name.

Victorian legislation allows for a child’s name to be chosen by the registry when parents are unable to agree.

Under its “Assign a Name Policy”, the registry bases its decision on maintaining consistency with other siblings or assigning both parents’ surnames in alphabetical order joined by a hyphen.

In July last year, the registrar of Births, Deaths and Marriages sent a letter to both parents informing them the girl would have the father’s surname ‘Beves’ as it was the same as her sister.

Less than a week later, Ms Jones filed an application to challenge the decision at the Victorian Civil and Administrative Tribunal.

Ms Jones told a hearing last week that as a compromise she wanted both surnames used with a hyphen. She said she intended to apply to change her four-year-old’s name, although no application had been made as she was advised to wait for the VCAT decision.

“To have your four-year-old say ‘you’re not my mummy because you have a different name’ is absolutely heartbreaking,” she told The Age.

Mr Beves told the tribunal that he did not consent to changing the name of either child and that he wanted consistency in their surnames.

“My older daughter has had my surname for four years. Why would I confuse her to change it? It was a waste of time,” he told The Age.

VCAT upheld the Births, Deaths and Marriages decision.

Senior tribunal member Gerard Butcher said the registry had followed its policy in assigning the name and that the siblings sharing surnames was more compelling than acknowledging both parents.

“I am satisfied that the maintenance of consistency between sibling surnames has primacy,” he wrote in his decision.

“Given that the older child’s surname is Beves I am satisfied that it is appropriate that the registrar’s decision to assign the surname Beves … is the correct and preferable decision.”

Ms Jones said she thought the tribunal chose the father’s name because it was the traditional way of doing things. She said she was told her kids could change their names at 18 if they wanted.

“Eighteen is a long way away,” she said.

“I’m absolutely gutted. It’s not for me, it’s for my kids.

“I think it’s the default, it’s the easy option. To me it’s insane, hyphenating them is the fair outcome.”

I’m a divorce lawyer and this is my pre-nup

on September 18, 2018 by admin

Fidan-Shevket As a divorce lawyer practicing in Sydney for the last 15 years, I have learnt something important: the only person you can count on is yourself.

You can’t trust your partner to “do the right thing” or to be “fair” if there is a breakup. People change when a relationship comes to an end. I have seen it.

My clients over the years have battled it out with their former spouse or de facto for ownership of their “nice things”.

These nice things come in all shapes and sizes, some valuable, some sentimental.

I get it. I’m protective about my nice things too. I value them and I am determined to protect them at any cost.

Luckily, I am in the fortunate position of being able to learn from other people’s mistakes.

Is the solution to not marry? No. Since March 2009, de facto and married couples are treated the same. Your de facto has two years from separation to make a claim on your assets if they can establish one of the following:

You lived together as a couple on a “genuine domestic basis” for two years; or
You have a child together; or
They make substantial contributions on your property and there would be serious injustice if they were not permitted to make a claim.

The only way to protect your assets in a relationship breakdown is with a Binding Financial Agreement (“BFA”) under the Family Law Act. This is colloquially known as a “pre-nuptual agreement” or “pre-nup”.

My partner and I wanted to live together and start a family, but divorce lawyers don’t just move in with their partners willy nilly. I have had long term relationships but I never felt comfortable living together. My key motivation was to never put myself in a situation where I was vulnerable to a claim on my assets.

An important consideration was my house. I don’t rent my home: I own it.

In property law, even if you are given recognition for your superior initial contributions in a property settlement, it is never “dollar for dollar”. The longer the relationship, the more contributions your partner can say they made to “catch up” to you, and your contribution will be watered down. To top it off, the person who has a lesser income and less earning capacity will receive a percentage “swing” in their favour which screws the high income earner over to what may be an unjust result.

There was considerable risk with my partner moving into my penthouse apartment in Neutral Bay. If that was his home, he could make a claim on it.

We wanted to live together but I wasn’t taking any chances. A sacrifice had to be made. I suggested we buy something together and make that part of our BFA. It was a win-win. He was able to get into the Sydney property market and I was able to protect the penthouse and my other assets.

We house-hunted for over a year and finally found a lovely North Shore home earlier this year. I updated the BFA with all of the details. We own the property 70/30 as tenants in common. We have two mortgages dividing the loan 70 per cent to me and 30 per cent to him. I pay my loan, he pays his loan. All expenses for our house like rates, insurance, repairs and council rates we divide 70 / 30. We have a joint credit card that we are allowed to use for “joint” expenses, these are specifically listed in the BFA. We pay that credit card 70/30.

The BFA also provides my partner with a pay-out in addition to his entitlement in our house. The longer we are together the larger the pay-out. There is also a spouse maintenance clause for his benefit.

Annexed to the BFA is a schedule of my “nice things”. Those items are mine and he cannot make a claim on them. It includes my properties, Superman collection, my Star Wars memorabilia, and my designer shoes and bags.

I am nearly 40, so I have a lot of nice things. My towels, my linen, and even my pantry with its colour coded Tupperware is in the BFA. If you are going to have a BFA, best go all out right?

Finally, in around June 2018, my BFA was complete. I consider it the best BFA ever drafted. My boyfriend now has the document for him to seek independent legal advice.

Whilst there is no guarantee that my BFA will never be challenged, I sleep at night in the deep slumber of a woman who knows she did all she could, to keep and protect her nice things.

Tardy family lawyers could be forced to pay costs

on August 22, 2018 by admin

Attorney-General Christian Porter

Family lawyers could be hit with personal costs orders if they fail to help resolve disputes as “quickly, inexpensively and efficiently” as possible and if their fees become disproportionate to the issues in dispute, under laws to be introduced to parliament today.

The legislation will also merge the Family Court and lower-level Federal Circuit Court to create a “Federal Circuit and Family Court”, to streamline the family law system. The new duties to be imposed on lawyers and their clients come after a Family Court judge last year attacked the “obscenely high legal costs” charged by family lawyers and an apparent “win at all costs, concede little or nothing, chase every rabbit down every hole” approach to litigation.

Lawyers hit with personal costs orders will be unable to recoup the fees from their clients.

Warring couples will also be obliged to resolve disputes as quickly as possible, and if they drag out matters with the intention of running up the costs of the other side, or refuse to accept a reasonable settlement offer, they could face indemnity costs orders, mirroring laws that apply in the Federal Court.

Attorney-General Christian Porter said the current system, with two separate courts handling family law, was “letting Australian families down”.

“The government is absolutely determined to reduce delays and costs,” he toldThe Australian. “Legal practitioners play a key role in advising their clients and ensuring that disputes are resolved as quickly and cheaply as possible.”

While most lawyers acted in their clients’ best interests, he said anecdotal evidence suggested an “unnecessarily litigious approach” in some cases increased costs and delays for clients at “an incredibly stressful and difficult time”.

The changes come amid crippling delays in both courts and Mr Porter has said the reforms will allow an extra 8000 cases to be resolved every year.

The Family Court’s existing judges will form Division 1 of the new court, while the Federal Circuit Court’s judges (who currently handle almost 90 per cent of family law cases) will form Division 2. Appeals will be stripped from the new court and handed to the Federal Court. Judges on the new court will be required to have appropriate experience — Division 1 judges will need specialist family law expertise (as is the case for Family Court judges), while lower-level and appeal judges will be required to have “appropriate knowledge, skills and experience” to deal with the kinds of matters that may come before them.

This is aimed at addressing a major concern of lawyers and domestic violence experts that judges appointed to the new court to handle child custody disputes would not have the necessary expertise. The Australian understands only about four Family Court judges will be sent to the Federal Court to handle family law appeals — less than half the 11 judges currently on its appeal division, freeing up the remainder to sit on trials. However, lawyers are questioning whether this will be enough.

Under the new laws, family law appeals from Division 2 will now ordinarily be dealt with by a single judge, instead of three judges, as is the practice currently.

The changes come after a PwC report found a wide gap in efficiency levels between the existing courts. It said Federal Circuit Court judges finalised about 338 cases a year, while Family Court judges finalised 114, and Family Court appeal judges wrote an average of 26 judgments each. It found litigants in the Family Court spent about $110,000 per case compared with $30,000 in the Federal Circuit Court.

According to the report, the median time to trial in the Family Court has blown out to 17 months, up from 11.5 months five years ago, while the median time to trial in the Federal Circuit Court had increased to 15.2 months, up from 10.8 months. Some litigants are waiting up to three years to resolve their disputes.

However, some Family Court judges have been angered by the statistics, which they say reflect unfairly on their productivity

Mr Porter said in May he intended to phase out Division 1, as existing Family Court judges retired, but last week he told The Australian he could not prevent future governments from appointing judges to the superior division.

What the Family Court shakeup really means for families

on August 18, 2018 by admin

The disputes are acrimonious, often drawn out and, in many cases, financially crippling. And that’s just for starters. Christian-Porter-family-court

The family law system in Australia is groaning under the weight of a vast backlog of more than 20,000 cases and families are waiting up to five years for bitter child custody and property disputes to be resolved.

In Sydney or Melbourne, lawyers say a feuding former couple would consider themselves lucky to get a hearing date for a parenting dispute in 18 months’ time. Meanwhile, children are left in limbo.

“Eighteen to 24 months is about right in Sydney now. Eighteen months is often considered ‘winning at life,'” says one experienced family lawyer, who is familiar with waiting times in both cities.

The delays are just one of a range of pressing problems facing the Family Court of Australia and the Federal Circuit Court, both of which hear family law cases across the country.

Federal Attorney-General Christian Porter believes the answer to the delays is clear. In a surprise proposal, announced in May while a wider review of the family law system is still under way, Porter said the 42-year-old Family Court of Australia would be scrapped as a standalone court and merged with the lower-level Federal Circuit Court, which also handles migration cases.

The proposal is based on a report by consultants PwC Australia, commissioned by Porter’s department and handed to the Turnbull government in April, which says the Federal Circuit Court is more efficient at clearing family law cases than the Family Court.

But experts say the figures, stripped of context, are misleading and the Family Court deals with the most complex 10 per cent of cases. The Federal Circuit Court, itself labouring under a growing workload, handles the rest.

Former Family Court judge Peter Rose, QC, who served on the bench for 13 years, says the plan is “simplistic” and the figures being cited are “a classic example” of the saying popularised by Mark Twain: “There are three kinds of lies: lies, damn lies and statistics.”

He says the Federal Circuit Court deals with a high volume of largely straightforward cases, while the “strict diet” of the Family Court is complex cases. Porter and PwC, meanwhile, say the two courts are often handling similar cases.

Rose agrees there should be “one stand-alone, specialist Family Court” in Australia, but it is the family law work of the Federal Circuit Court that should be merged with the specialist Family Court. More resources are also required, and strong leadership of the court is critical.

NSW Bar Association President Arthur Moses, SC, has been a vocal critic of the merger and says “a justice system is not to be judged on spreadsheets”.

“It is to be judged on the quality of justice delivered to people at the most vulnerable time in their lives,” he says.

Moses says the Federal Circuit Court already has a “crushing workload”, with each judge having approximately 500 matters in their case list.

“It makes no sense for the Attorney-General to propose to collapse into that court all of the most complex family court matters, which are the most important matters that our court system deals with — the care of children and relationship issues,” he says.

Family lawyers say clients are looking for more than just a speedy resolution and court resourcing needs to be increased to tackle the backlog of cases.

“Not all litigants would say that a good experience is created by speed alone,” says Gadens partner Jodylee Bartal. “Family law matters can be complex and require a specialist response. Litigants want fair processes and outcomes.”

The Turnbull government is expected to introduce legislation to give effect to the merger within the week.

Brett McGrath, a family law expert at Marsdens Law Group, says “the devil will be in the detail” with the plan. The “objectives of the merger, to provide a single entry point, to streamline and reduce complexity, and minimise delay and costs are fully supported by the profession”, he says, but “at this stage, there is a lack of detail around how the objectives will be met”.

One of the concerns expressed by lawyers is the potential loss of specialisation. Under the new structure, appeals would no longer be heard by specialist appeal judges in the Family Court, who would return to doing trial work in the new Federal Circuit and Family Court.

Peter Magee, managing partner of family law at Armstrong Legal, says appeals from the new court will “go to a general appeals division of the Federal Court, where you get a bunch of judges who have never done a family law case”.

“That is a big unknown as to how that will be dealt with. They may be smart people; they may get it right. But it’s a concern that they won’t be aware of the nuancing, or psychological research, or the day-to-day practices, or issues that are faced on a regular basis,” Magee says.

He says delays in the Federal Circuit Court are already pronounced and if a case was filed in that court today, “realistically you cannot tell clients it will not be decided until 2020”.

“You won’t get a hearing in 2019,” he says.

Speaking to Fairfax Media, Attorney-General Christian Porter says “there really isn’t a serious argument that there won’t be adequate experience on the Federal Court” to hear family law appeals.

Porter says he is “absolutely assured” that the judges on the Federal Court will be “more than capable, in terms of ability and experience, to hear family law appeals that will come up from the newly created [court]”, and they will be “complemented by new personnel”.

“We will be creating what will be known on the Federal Court as the family law appeal division,” Porter says. “I’m working on the personnel of that with the chief justice of the Federal Court.”

Porter says the bulk of family law appeals relate to property disputes, and the court is well equipped to handle the complex legal issues in those cases.

Porter has said the merger would result in an extra 8000 cases being resolved each year, a claim that has raised experts’ eyebrows. The figure comes from the PwC report, released publicly by the Attorney-General on Friday.

The report estimates an extra 4080 matters could be resolved each year if the jurisdiction for family law matters was combined in a “single court entity” with one point of entry, rather than being shared between the Family Court and Federal Circuit Court.

PwC says other changes – such as increasing the number of appeals heard by a single judge instead of a bench three judges – would help make up the rest of the 8000 cases.

Porter says the PwC figures show the Family Court of Australia, established in 1976 and staffed with specialist judges, is not as efficient as the Federal Circuit Court. The latter deals with a higher volume of family law matters alongside migration cases and was set up in 2000 to provide a “quicker, cheaper option for litigants” in family law matters.

The PwC report says it costs taxpayers about $17,000 per finalised matter in the Family Court compared with $5500 in the Federal Circuit Court, while the parties pay about $110,000 and $30,000 respectively. It also says Federal Circuit Court judges finalise more orders per year than Family Court judges: 338 compared with 114.

Critics say the output of the two courts can’t be compared in this way. The Family Court hears a range of more complex cases, including those involving international child abduction, serious child sexual abuse and family violence, along with cases where the hearing is expected to take more than four days.

But Porter says the matters the Family Court deals with are “not radically more complex, they’re modestly more complex”, and this complexity does not account for the differences in the courts’ output, a view supported by the PwC report.

In a document titled “Fact Not Fiction”, released by a number of Family Court judges on Thursday, unnamed members of the court took aim at Porter’s suggestion the Family Court finalised 2750 matters in 2016-17 while the Federal Circuit Court disposed of 17,000 matters a year.

The comparisons were “entirely misleading”, the judges said, because the Federal Circuit Court figures include many cases in which the court made a consent order, meaning the parties reached an agreement without a court hearing. The Family Court dealt with 13,919 cases by consent in 2016-17.

Family lawyer and mediator Zoe Durand, the principal of Mediation Answers, says she can understand in principle the merits of creating a single court but she also has concerns about the potential loss of expertise and specialisation.

Over time the jurisdiction of the Federal Circuit Court has increased significantly, Durand says, “so the kind of matters the two courts deal with don’t look as different as before”.

“However, the Family Court does remain the court for more complicated family law matters,” Durand says. “When you look at what the Attorney-General has said he’s very focused on numbers, but is that the only way we assess the quality and value of what the court is providing to society?”

Supreme Court rules for Colleen McCullough’s husband in Will dispute

on August 8, 2018 by admin

Colleen McCullough

Acclaimed Australian author Colleen McCullough left her entire estate to her husband Ric Robinson, the NSW Supreme Court has ruled at the end of a costly and bitter dispute over her multimillion-dollar estate.

In a judgment delivered on Friday, Justice Nigel Rein found a July 2014 will in which McCullough named the University of Oklahoma Foundation as her sole beneficiary was “not her last will and testament”.

He said the will, made at the Hilton hotel in Sydney, was revoked by two documents signed or initialled by the author on October 24, 2014, which left her estate to Mr Robinson. Justice Rein arrived at this conclusion while finding Mr Robinson was not a “wholly reliable witness”.

The legal battle was characterised by wildly conflicting evidence and emotions ran high over the course of the eight-day hearing, which concluded in early June. Justice Rein described the dispute as a “most unusual case” and said if “the track of the truth in this matter is to be found, it is narrow and poorly lit”.

His ruling is a blow to McCullough’s close friend and executor Selwa Anthony, who launched proceedings in the Supreme Court to uphold the validity of the so-called Oklahoma will.

Ms Anthony told the court McCullough cut Mr Robinson out of her will in July 2014, shortly before her death on Norfolk Island on January 29, 2015, after finding out her husband had “taken a mistress” and “spent all the money”.

Ms Anthony accused Mr Robinson of taking advantage of his wife’s ill health to change her will. Mr Robinson vehemently denied the claims and the court found Ms Anthony had not established Mr Robinson coerced his wife into signing the documents.

At stake was a multimillion-dollar estate ranging from McCullough’s art collection to royalties from her 1977 hit The Thorn Birds and other books, plus an estimated $2.1 million in real estate and cash. But the couple had also racked up a series of debts.

Justice Rein found there were aspects of Mr Robinson’s evidence that seemed implausible, including the “rather unlikely” claim that McCullough encouraged him to take a mistress.

Both sides of the dispute agreed the marriage between McCullough and the financially-dependent Mr Robinson, 13 years her junior, was at crisis point by mid-2014.

The court heard McCullough called the Norfolk Island police to the couple’s property, Out Yenna, on June 24, 2014, and told her husband it was because she was “afraid” of him. He moved out briefly but the pair had reconciled by July 17.

Justice Rein said that by October 2014 the marriage “was not so acrimonious as to necessarily preclude as a possibility that Colleen would decide to reinstate Ric … as the sole beneficiary of her estate”.

He said the need for the litigation was “caused by” Piria Coleman, the solicitor who drafted the Oklahoma will and “failed to prepare a fresh will in the usual fashion” in accordance with McCullough’s instructions.

Ms Coleman gave extraordinary evidence that she drafted documents in 2014 and in January 2015 to “placate” Mr Robinson and “protect” McCullough by making him believe he would inherit his wife’s fortune when he had in fact been disinherited.

Justice Rein rejected that evidence. He said Ms Coleman “may have come to feel that Colleen was unwise or Ric not deserving enough for Colleen’s change of heart or both” but she had not acted in accordance with Ms McCullough’s wishes, which was a “most serious breach of her obligations to Colleen as her solicitor”.

Justice Rein ordered each side to bear their own costs.

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

on July 17, 2018 by admin

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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