Free Legal Sessions to Empower Women

Illawarra-Womens-Health-CentreJess didn’t have a plan when she left her violent partner in the middle of the night.

She grabbed their two-month-old son and a few belongings and drove to her parent’s house, unsure of what would happen tomorrow or what her next move should be.

‘‘Perhaps if I’d had that information earlier, before things reached a crisis point, perhaps I would have made the decision to leave earlier,’’ said Jess, whose name has been changed.

‘‘I was terrified. I was afraid that he would escalate the situation when I left.’’

Jess was aided by the police and the Illawarra Women’s Health Centre, which is hosting a series of legal information sessions to educate women considering leaving a difficult relationship.

Topics include victims compensation (tomorrow), family law and children (April 24), family lawand property settlements (May 1) and domestic violence and Apprehended Domestic ViolenceOrders (May 8).

Centre CEO Carol Berry said the free sessions were about empowering women by teaching them their rights.

‘‘We think that domestic violence is still a major issue in the Illawarra,’’ she said.

‘‘Some of the stories we hear are terribly concerning.

‘‘I think it makes women feel more comfortable with their decision (to leave the relationship) if they understand where they stand (legally).’’

The sessions will be run by all-woman legal firm Rachel Stubbs and Associates, which has offices in Wollongong, Bowral and Camden.

Ms Stubbs said many women stayed with their violent partner because he threatened to retain their children.

Ms Stubbs welcomed proposed changes to the Family Law Act, expected to take effect mid-year, which would redefine family violence to include the withholding of financial support and psychological abuse.

‘‘This will have impact in local court AVO proceedings, where traditionally you had to have some physical evidence,’’ she said. ‘‘The family court takes AVOs seriously.’’

Illawarra Women’s Health Centre is located at 2-14 Belfast Ave, Warilla.

To register for information sessions, which start at 11am, phone 4255 6800.

Where there’s a Will, there’s a chance for wasteful litigation

contested-willsWhat better way to see the gamut of domestic despair, distrust, estrangement, recrimination, spite, and the bounty of the lawyer honey pot, than through families tearing at each other in courtrooms.

Wills, succession and family provisions provide the landscape for some of the spellbinding human dramas that unfold in the equity courts.

There’s nothing quite like an intra-family dispute over a relatively small amount of money to stir the passions, bring out the silks and the no win, no fee speculators.

It’s a nice change from the deadening drum beat of commercial woes.

But what may surprise a lot of people is the wide discretion judges have to rewrite people’s wills and overturn their express wishes.

The notion that loosely exists that a will is an impermeable document is quickly shaken when, in appropriate cases, frozen-out relatives manage to get their hand in the till.

There are at least eight instances from last year in the New South Wales Supreme Court where judges rewrote wills and, in some of them, made provision for people who had been specifically excluded by the deceased.

For instance, in a case called Charnock v Handley, the deceased excluded his two daughters as beneficiaries of his estate and left all his money to a friend.

Associate Justice Philip Hallen found that a statement written by the deceased one day before he died, in which he described in negative terms his relationship with his two estranged daughters, was simply inaccurate.

So Hallen made provisions out of the small estate of less than $10,000 to each of the daughters and ordered their costs be paid by the estate.

In Bourke v Keep, another case from last year, the deceased was survived by three children, but she distributed the estate between two of them in equal shares, saying in her will that the other daughter had a ”complete lack of concern or contact with me and other members of the family over a long period of time”.

Associate Justice Richard Macready found that the excluded plaintiff, who had to care for a disabled child, was entitled to $200,000, which resulted in a reduction of the shares of the two other children by $140,000 each and an increase in the allocation to lawyers from nil to $80,000. The costs of the losing defendants had to be borne by the estate.

It does not matter what an aged mother or father may feel about one or other of their children.

If some sort of merit can be demonstrated, decades of family history can be cast aside by a judge and funds apportioned according to need, rather than loving wishes and/or revenge.

In a similar case, Franks v Franks, the court rejected assertions of the deceased critical of one of her sons to whom she left a small legacy of $20,000. She claimed he had abused and harmed her and so left the vast bulk of her estate to her other son.

Nonetheless, the court awarded a life interest in a Port Macquarie property, valued at about $400,000 to her husband from whom she was separated, and thereafter equal shares to her two sons.

Evidence was brought that the deceased may have been ”psychotic”, or at least ”irrational”, at the time she made the claims about the plaintiff. Legal costs all up were just shy of $100,000.

Geoghegan v Szelid was a case where disproportionate lawyers’ costs had a starring role in a family provisions dispute. Sandra Szelid, who died in September 2010, left her small estate to her two children, but this was contested by her former husband. In contention was a home unit in Darlinghurst valued at about $300,000 and cash deposits of about $340.

After costs and expenses of sale, together with funeral expenses and other costs of the estate, we are talking of a remaining value of about $200,000. The former husband managed to show he was entitled to an amount of $30,000. However, the costs and disbursements of the lawyers ran to about $115,000.

Hallen hastened to add these costs were not unreasonable, only they were ”entirely out of proportion to the nature of the proceedings and the gross value of the estate”. The briefing of senior counsel in an estate that size ”was simply unnecessary and extravagant”.

A recent publication from the Australian Institute of Judicial Administration is entitled, ”Bleak House Revisited? Disproportionality in Family Provision Estate Litigation in NSW and Victoria”.

It seems to show that judges would like to find ways to extinguish the arrangement that exists in some situations where legal costs are ordered against the estate, even when the challenge to the will fails.

In 2009, Justice George Palmer of the New South Wales Supreme Court said in a case: ”That approach to family provision litigation, in effect, threw the whole burden of costs on to the beneficiaries of the estate. It promoted much wasteful litigation.”

This over-eagerness for litigation by would-be beneficiaries is also fuelled by ”no win, no fee” speculators, who encourage people to mistakenly believe they carry little personal risk if they mount a challenge.

Deciding challenges to wills is only part of the judicial task.

There are cases where there are a multiplicity of wills and painstaking work is needed to determine which one is valid.

There are complicated family branches, with brothers, sisters, half-brothers and half-sisters, making it more difficult to determine which nieces and nephews are supposed to be included.

The most fun is to be had when a mystery mistress pops out of the woodwork – to the surprise of the children of the deceased, who thought the fruits of their father’s life labours were theirs and theirs alone to feast upon.

Desperate father asks court to prevent abortion

pregnant-in-court-injuction-abortionA MAN has failed to win an injunction to stop his pregnant teenage ex-girlfriend from having an abortion.

The man, who cannot be named, had asked the Family Court of Australia to direct the 16-year-old girl to inform him when she went into labour and for him to be given full responsibility for the child once it was born.

The father also sought to have his ex-girlfriend stopped from leaving Queensland while pregnant, permission to attend the hospital when his child was born and notification of all medical tests on the baby.

Court orders were filed against the girl, who admitted she was 13 weeks pregnant after the pair separated in January. The teenager told Justice Peter Murphy she was pregnant but had no intention of terminating the pregnancy.

The girl already has a nine-month-old child from an earlier relationship.

A Men’s Domestic Violence Court Advocacy Service

A Men’s Domestic Violence Court Advocacy ServiceMario Licha ( Barrister at Law) is setting up a new AVO advice service for Australian men.

Mario Licha is a New South Wales Barrister who practises out of Ada Evans Chambers in Sydney, New South Wales. This Sydney Barrister practises in the areas of Criminal and Family Law.

Mario brings a different perspective to the bar having worked as a Registered Nurse for 16 years in which 5 years were spent working at Long Bay jail.  Mario uses his knowledge and experience in dealing with clients, opposing Counsel and the Bench.

On 17 April 2012 Mario Licha will be giving a talk about AVOs.

Michael Michalak, Student-at-Law assistant will also be giving a small talk about how he became interested and involved law. Michael has prior experience as a self represented litigant in the Family Court.

The location of this talk is: Talk to Men at Men construction zone (Men & Court) Inspire Church, Corner Hoxton Park Road & Illaroo Road Hoxton Park NSW 2171.

Another event is on 26 April 2012 – this will be the next meeting of A Men’s Domestic Violence Court Advocacy Service  at the Fairfield address. Time of meeting is 19:30 hrs till 21:00 hrs.

The address of this service is:  ’Inspire Community Fairfield Corner Delamere & Sackville Street Fairfield NSW 2165

Registration is essential for both events. It is free to gain entry but donations are always welcome.

Please send an email to the following email address if you are interested in attending:

Michael Richard Michalak  JP

Student-at-Law assistant to Mario Licha Barrister-at-LawAda Evans Chambers.

Court upholds islander practice to give up baby

family-courtTHE Family Court has formally recognised the decision of a Torres Strait Islander couple to give their newborn baby away to an infertile couple in accordance with a traditional child rearing practice.

Under the practice of ”Kupai Omasker”, Torres Strait Islander children can be given to other members of the community for a range of reasons, including the maintenance of family inheritance rights, and more equal distribution of the sexes among families.

In a special hearing last month on Thursday Island, the Family Court heard that a child – referred to as A – had been given to another couple unable to have children of their own.

Justice Gary Watts made a formal order under the Family Law Act that A was to live with the new couple and, in accordance with traditional practice, have no contact with her biological parents other than the occasional social function.

The court heard that A’s biological mother and her new mother were ”akin to sisters” and had talked on a number of occasions about how the latter was having difficulty getting pregnant because of her partner’s low sperm count.

On one occasion the first woman asked: ”If I am pregnant would you want the baby?”

When she became pregnant, A’s biological mother approached her friend and offered her the baby.

The woman accepted the offer on the condition that her friend refrain from drinking, smoking or catching planes during her pregnancy.

”During the pregnancy [the biological mother] kept telling her friend the baby was hers,” Justice Watts said in his judgment on the matter, published yesterday on the NSW Caselaw website.

”She stopped her partner from rubbing her stomach and talking to the baby, telling him that it belonged to [the other couple] …”

A’s non-biological mother attended the unborn baby’s scans and the birth itself, and neither biological parent held or kissed A when she was born. A then left with her new parents.

However, they had a shock three days later when A contracted meningitis, a condition which nearly claimed her life.

After an extended period in hospital, A recovered and was said to now be ”developing well”.

A’s biological mother told the court she believed her friends would be good parents and she said she felt ”really happy” about them getting formal recognition from the court.

Paul Bibby