Monthly Archives: December 2012

High Court to hear test case on welfare

on by

high-court-australiaTHE High Court will hear a test case led by Victoria Legal Aid that if successful could help Australians at risk of welfare fraud charges because they have made mistakes in dealing with Centrelink.

The court today decided it would hear the case of Melbourne woman Kelli Keating, who has been charged with welfare fraud for receiving an overpayment of $6942 from Centrelink due to what Centrelink says was a failure to declare her income.

Ms Keating’s case will clarify whether the backdated legislation, introduced by the commonwealth government in July 2011, is constitutional.

Victoria Legal Aid is arguing that the law, backdated to March 2000, unfairly criminalises people who have made genuine mistakes in dealing with the complex and confusing Centrelink system.

VLA director of civil justice, access and equity Kristen Hilton said the law meant many people could be prosecuted for being overpaid, even if they did not take any active steps to get a higher pension or benefit payment, for mistakes as long as 12 years ago.

Parents making unsubstantiated claims of sexual abuse to gain custody in Family Court cases

on by

australian-family-courtPARENTS are resorting to “incredulous” sex abuse claims against their ex-partners as custody wars turn increasingly ugly in Queensland.

In a case reported by the Family Court this week, a father won custody of his three children after being accused of inserting 17 items, including “an electrical cord in his anus in the security area at Bunnings”.

The case is one of several uncovered by The Courier-Mail, with parents making unsubstantiated claims, including threats to take their own life.

Centre for Human Potential principal psychologist Paul Martin said sexual abuse claims marked by single-minded vengeance had become a common occurrence in parenting cases with horrible consequences for the children.

“The issue is mud sticks,” Mr Martin said.

“The children can really suffer significant damage for the rest of their lives. The claims can be absolutely incredulous, have horrific consequences and are quite a common occurrence.”

According to the judgment in the latest case, the man’s seven-year-old son made the claims after a toy inducement from his mother.

He told an experienced detective his father inserted into his anus items including nails, a needle, some driftwood, a jellyfish, a small piece of pizza, a marble which grew as big as the room when it was removed, an electric cord at Bunnings, a bow tie and a bouncy ball.

The detective told child safety officials the mother was a “drama queen who is out to get her ex-husband” and authorities found the allegations unsubstantiated after the boy revealed, “if I do a lot I have to get a Lego”.

Instead, the Department of Child Safety found the mother – who split from her ex-husband in April 2011 – emotionally abusive of the boys, 7 and 2, and girl, 5.

Justice Peter Murphy dismissed her bid for a child sexual abuse expert to give evidence after the girl told a child safety officer her mother’s “job is to make people believe that her dad did rude things to her and her brother”.

He also accepted the father’s denials of ever at any time inserting anything or abusing his children.

“(The seven-year-old’s) accounts are marked by allegations which I consider palpably preposterous, the best examples of which are the public insertion of an electrical cord into his father’s anus at a large retail outlet and the marble ‘growing to the size of the room’,” Justice Murphy said.

“The experienced police officer’s plain scepticism about the accounts is shared by me.”

Justice Murphy said he considered many of the assertions made by the boy to be inherently unbelievable.

Despite finding the children had a close and loving relationship with both parents, the judge found they were coached and their statements were taken literally by the mother.

The father will have sole responsibility for all major long-term issues, with the mother having the children five nights a fortnight.

The mother is considering an appeal.

Related Family Law Judgments

‘I want to meet my kids’

on by

Yearning … Peter Liston wants contact with the children he helped create. Photo: Penny StephensPeter Liston has led a full life, he is a father of three, grandfather of two, and has travelled the world extensively as a professional gambler, making millions along the way.

However, there is one thing Mr Liston would like to do before he dies: meet the children he helped create as a sperm donor in 1979.

As a young school teacher, happily married with one child at the time, he made 10 donations on the condition he would remain anonymous. He was paid $100 to cover his costs.

But since then, he has often wondered about what became of his contribution. In 2002, he decided to enter his details on a voluntary register for people conceived through sperm donation in case there were children who wanted to look him up. He also asked the Royal Women’s Hospital in Melbourne if any children had been born from his donations. He was delighted by the response.

”They wrote back and told me I had two boys in one family aged 21 and 18, and a girl in a second family aged 20,” he said. ”I have three adult children of my own and they were as excited as I was at the prospect of possibly meeting their half-siblings. Sadly, none of them has made contact through the registry to this stage, but we remain hopeful.”

Mr Liston would love to meet these people and know if they share similarities with him and his children. One thing that might stand out, he said, was a propensity for mathematics. The trained accountant is a member of Australian Mensa and all of his children have done accounting degrees, too. ”I think it would be like discovering a nephew or a niece. Genes are incredibly strong, so you’d expect to see not just similar personality traits but similar lifestyle choices as well,” he said.

The views of sperm donors such as Mr Liston are suddenly in demand. In October, the Victorian government said it wanted to hear from people who donated sperm and eggs before 1998 because it was considering a change in the law that would allow donor-conceived people the ability to access identifying information about their donors.

At the moment, the law varies depending on when donations were made. In NSW, children conceived using donor sperm after January 1, 2010, will have full access to information about their donors once they turn 18. However, for those conceived before 2010, finding information is incredibly difficult, according to the consumer advocate for the Donor Conception Support Group of Australia, Caroline Lorbach. The Sydney mother has three children conceived using donated sperm.

Donors and children conceived using donor sperm are not under any obligation to put their names on NSW Health’s Central Register.

”At the moment, anyone conceived before January 1, 2010, can voluntarily put their name on the register but they are relying on their donor to voluntarily put their information on the register also,” Mrs Lorbach said. ‘

She said the register was not promoted and was difficult to navigate.

”In Victoria, their register was promoted and past donors were encouraged to come forward,” she said. ”We have nothing like that here. All the Health Department did was send some mini posters and pamphlets to GPs. GPs are inundated with information all the time. These posters were only displayed for a month then taken down.”

The NSW Committee on Law and Safety is running an inquiry into managing information related to donor conception,and asks whether all donor-conceived adults should be able to identify their donors.

Mr Liston believes the rights of donor-conceived people should be paramount because genetic information is becoming more useful in medicine everyday.

”Openness and honesty may be awkward at first, but ultimately, I believe it would benefit all parties,” he said.

Related Family Law Judgments

New laws to protect baby surrogates

on by

Proposed Commercial Surrogacy Scheme in AustraliaAUSTRALIA should legalise commercial surrogacy to stop the exploitation of poor women and protect the children caught up in the booming overseas surrogacy trade, according to the chief federal magistrate.

Under Chief Magistrate John Pascoe’s proposed a commercial surrogacy scheme, overseas surrogacy would remain banned, reducing the number of Australians using overseas clinics that, he says, often underpay and coerce poor women.

”We would know women here wouldn’t be forced or threatened to carry a child and that they will be paid more than a few hundred dollars and receive proper medical care,” said Mr Pascoe, who believes Australia’s ”completely unsatisfactory” surrogacy laws could be overhauled within two years.

Altruistic surrogacy, where the woman carrying the child is not paid, is legal in all states, but commercial surrogacy is banned. Overseas commercial surrogacy has also been criminalised in NSW, Queensland and the ACT, but that has not stopped hundreds of prospective parents travelling to countries such as India where for less than $100,000 they can have a baby by a surrogate.

The number of Australian babies born to overseas surrogate mothers leapt from 97 in 2009 to 296 last year, according to research by advocacy group Surrogacy Australia. More than 250 children have been born to overseas surrogates this year.

Mr Pascoe said his proposal, which would require intending parents and the surrogate to enter into an equal contract that would protect rights of both parties, promotes the best interest of surrogate children.

”The status of the newly born child is therefore beyond doubt, and the law can provide provisions and benefits for the child as an Australian citizen,” he said. ”Right now, children of overseas surrogates face a very uncertain legal situation regarding parentage and nationality.”

Many Australian couples have been stranded overseas and forced to live in third countries, unable to gain citizenship for their surrogate child because of the ”ambiguities about the definition of parent and child in the Citizenship Act”, Mr Pascoe said.

Attorney-General Nicola Roxon has charged the Family Law Council with reviewing the Family Law Act and reporting back by December next year.

Chairwoman of the council, Associate Professor Helen Rhoades, said the review was timely as parentage laws were not keeping pace with the rapid advancement of assisted reproduction technology. The council will call for public submissions this month.

Sam Everingham, president of Surrogacy Australia, praised the proposal as an improvement of a system that had largely failed, but said it was naive of Mr Pascoe to think people would comply with the ban on overseas arrangements.

”Some states have already banned it and Australians are still going overseas. It’s hard to police and unworkable,” he said. ”I’m also worried about over-regulation, because it’s caused huge problems for parents who want to adopt children from overseas.”

But Melbourne-based bioethicist Leslie Cannold opposes commercial surrogacy, insisting the same exploitative elements suffered by women in developing countries could exist in Australia under Mr Pascoe’s proposed system.

”We should not create a situation in which we coerce people economically. I think it’s an unfortunate outgrowth of the capitalist society,” she said.

Kelly, 40, from New South Wales, gave birth to a surrogate child for an acquaintance in 2004, a time, she says, when laws were underdeveloped and confusing.

Related Family Law Judgments

  • No items found in feed URL: http://www.familylawexpress.com.au/family-law-judgments/category/surrogacy/feed/. You requested 15 items.

    • The price of divorce can be high for both parties

    on by

    marital-assetsDIVORCE has no winners, but who are the biggest losers? Research has found that women are often worse off financially, at least in the short term. But some men will disagree.

    With one in three marriages ending in divorce, most of us are affected by it either directly or through friends. The results are rarely pretty and both partners can end up in a less than ideal situation.

    A straw poll of those who’ve been through it found the attitude and personality of your ex could play a big role in whether you were left poverty stricken or coping well emotionally and financially.

    Some also give up the right to some financial benefits to keep the peace.

    When Jane’s* marriage broke up, she could have claimed more from her ex-husband to care for her two boys, but avoided a bitter battle for the sake of her children.

    As a result, Jane, who had another child and is now single, communicates well with the boys’ father.

    They even organised a Queensland holiday where the kids spent part of it with her and part with their dad. Jane is also studying and hopes to support her family in the long-term.

    “We can have very civil conversations,” she says of her ex. “We’re one of the few ex-couples who may be able to have an ongoing relationship.”

    Jane’s story reflects new research led by the Australian Institute of Family Studies that found equivalised household income after divorce declined for women but not for men. (Equivalising household income adjusts it to take account of the different needs of households of different size and composition.)

    The research found some women recovered their income after six years through re-partnering, increased work participation and a larger proportion of income coming from government benefits.

    But women with dependent children found it difficult to recover their pre-divorce income and divorced men and women had a lower household income before separation than those who remained married.

    Though, like Jane, most divorced women were able to recover their income position over six or seven years, men recovered less well emotionally over that period.

    “If the wife, post-divorce, stays home with children, she not only loses income and opportunities during that period while the husband’s opportunities magnify, but superannuation as well,” Jane says.

    “The other factor that impacts on the outcome is the educational background of both parents. If this is similar in that they are both significant earners, then the outcome tends to be similar for both parents as in these instances they tend to do shared care.

    “However, the greater the difference in educational outcomes, the larger the variance will be both in the short term and long term. Overall divorce is costly in terms of finances, health and general wellbeing.”

    When Bruce’s* wife left him and their three children it was relatively amicable and he helped set her up in another place. He also paid some of her costs and bought her a $20,000 car.

    Despite Bruce having custody, paying the mortgage, school fees and bills, she has now started legal proceedings for half of everything when she left.

    “This means half of my super, half of the small amount of equity we had in the house and – I gather – half of all the chattels, even though some of these have died in the interim and been replaced,” he says.

    “So although I’m now making very good money

    I can’t save and am now holding a lot of short-term debt and I’m still paying for everything for three teenagers.”

    Since they separated Bruce has not had any child support and because the children are taken by his ex one at a time, he rarely has time alone with his new partner. While he’s not bitter and his separation was mostly amicable, he says men can find themselves worse off financially.

    “I don’t mind giving her what she is entitled to,

    I just don’t want to have to be forced to either sell the (unrenovated) family home or have to comply with her ‘demands’ … without taking into consideration what she has already taken or has been given.”

    Helen* can relate to Bruce. Her ex-husband waited until her father died before leaving her and after a protracted court battle got half of her inheritance. In the nine years since she has had to fight him in court and seek 15 court orders relating to their son.

    For all the pain and financial distress, she has learnt not to “sweat the small stuff” and advises others to pick their battles in the child’s best interests.

    For example, it may be worth ignoring hurtful comments and letting the ex take the child to swimming lessons and focus on contact time and other fundamental issues such as religion.

    “You’ve just got to put your energy reserves into the important stuff,” Helen says. “It doesn’t matter who takes him as long as he goes. Pick the battles that you know are important.”

    AIFS senior research fellow Dr Lixia Qu says it is not surprising women are generally worse off initially because most children stay with them and they often work part-time or are unemployed.

    “Some men also experience financial difficulty after separation,” she says. “Our analysis shows that men who remain single after separation are financially worse off than men who remain married and men who are re-partnered after separation.”

    Personality is not covered by the research, but Qu says other studies find separated parents who go to court for parenting agreements tend to have poor inter-parental relationship and other issues, which can have a negative impact on their children.

    “It is important for parents to handle separation as amicably as possible and maintain a positive or co-operative relationship with the other parent,” she says. “Exposure to parental relationships characterised by conflicts, fear (or) violence can affect children’s adjustment after separation.”

    Qu adds that being tough in divorce negotiations is not necessarily the financial answer for women with dependent children. “The issue should be considered in broader social context, for example, closing the wage gap between men and women, and greater support for mothers (and fathers) in the workplace,” she says.

    * Names have been changed.

    Family trusts – legal lessons to be learnt from family feuds

    on by

    Family TrustsThere are a few lessons to be learnt from high-profile family disputes, including that of Gina Rinehart, according to lawyer Bernie O’Sullivan.

    In 2012 there have been several high-profile disputes involving family trusts, including the dispute between Gina Rinehart and her children over the Margaret Hope Hancock Trust and a dispute relating to a family trust controlled by the Lew family.

    Every financial planner and accountant should take the opportunity over the Christmas break to reflect on the important lessons and opportunities that arise from these disputes.

    Many of your clients have family trusts with considerable assets. It is vital they understand the legal and investment consequences of their incapacity and death and the risks of relationship breakdowns. If you don’t talk to your client regarding this, someone else will – probably a competitor of yours.

    You should also reflect on your obligations under the Future of Financial Advice (FOFA) legislation to guide your clients regarding all estate planning issues.

    What is a trust?

    So, what is a family trust and what are some of the pitfalls?

    ‘Family trust’ is the generic term given to a discretionary trust created during a person’s lifetime. The features of a typical family trust include:

    • The beneficiaries of the trust are a broad group including the primary beneficiary, their spouse, children and other lineal descendants;
    • The primary beneficiary is a controller of the trust by virtue of their role as trustee and appointer – the latter meaning they can replace the trustee at any time;
    • No beneficiary has a fixed entitlement to income or capital, so the controller has ultimate power; and
    • The trust ends on the ‘vesting date’ which is usually 80 years from when the trust was established (but, as with the Hancock Trust, a shorter period can apply).

    Lessons from the law

    Key lessons from recent cases involving family trusts are:

    • Trustees should not seek to control the way in which beneficiaries behave. A classic example is the Western Australian case where two uncles controlled a trust where the main beneficiaries were their nieces. The uncles made it clear to the nieces that they expected them to live their lives a certain way – otherwise they would not receive future distributions. The Court removed the uncles from their controlling positions.
    • Beware the Family Court. Although beneficiaries only have a ‘discretionary interest’, in some cases the Family Court will treat the interest as ‘property’, resulting in trust assets being allocated to a former spouse. Strategies dealing with this significant risk must be implemented wherever possible.
    • Primary beneficiaries do not own the trust assets. It is not uncommon for a primary beneficiary to mistakenly regard the assets in the family trust as their own. Two problems arise from this: First, the trustee will breach the significant duties and obligations owed to the trust and beneficiaries, leaving the trustee open to be sued. Second, many Primary Beneficiaries try to dispose of the family trust assets via their Will when in fact they cannot (because the family trust assets do not form part of their estate!).
    • Amending the deed can amount to a resettlement. Some deed amendments change the nature of the family trust so much that the Commissioner of Taxation will regard the trust to have been wound up and a new trust established. In such an event the trust is said to have been ‘resettled’ and a capital gains tax (CGT) event to have occurred, giving rise to a potentially significant CGT liability.
    • Compliance: Some trusts have, shall we say, compliance issues. A judge will not hesitate in referring such issues to the relevant regulator (eg, the Commissioner of Taxation). Other compliance issues may relate to the legality of past resolutions or distributions. It is not uncommon for an aggrieved beneficiary to use compliance issues as leverage in their request for a greater share of the trust fund.
    • Be careful with promises. Many family trusts operate family businesses that employ family members. Take care with promises such as “One day, all this will be yours!” as they can give equitable and legal rights to the promisee. A recent Victorian case went all the way to the Supreme Court of Appeal because of a dispute between a father and a daughter over alleged representations regarding control of the trust upon the father’s death. The father successfully defended the claim, but the cost to all parties (in dollar and emotional/family terms) must have been enormous.
    • Understand loan accounts. Many family trusts make ‘distributions’ to beneficiaries that are not physically paid but recorded by journal entry as a distribution and then as a loan back to the family trust from the beneficiary. It is imperative that these distributions/loans be understood because at some stage the beneficiary just might knock on the trustee’s door and ask that the loans be repaid! Sometimes the beneficiary’s spouse will be delighted to discover that these loans exist and form part of the property pool of the marriage that can be divided by the Family Court. The loans must also be understood from an estate planning perspective.

    Experience also tells us that many disputes are driven by personal issues. It is imperative that you work in conjunction with a lawyer who has the skills to deal with these nuances as well as the tax, trust and corporations law aspects.

    Family trusts were first regularly established in the 1970s and 1980s. The time for transfer of control of many of these trusts is now rapidly approaching. As an adviser you must seize this opportunity in 2013 to demonstrate to clients that you really are their trusted adviser.

    Bernie O’Sullivan is the founder of Bernie O’Sullivan Lawyers.

    Two new judges to ease Family Court workload

    on by

    family-court-of-waTWO new judges have been appointed to WA’s Family Court in a bid to ease the backlog of cases.

    Attorney-General Michael Mischin said the immediate appointments of John Walters, QC, and Susan Duncanson were part of a concerted effort by the government to ease waiting times at the court.

    In May this year, former Attorney-General Christian Porter said the average waiting time for de facto parenting and financial matters to pass through the court was 95 weeks.

    Mr Mischin said the Liberal-National Government allocated $1.2 million to the Family Court of WA in this year’s budget to appoint a temporary magistrate and support staff to reduce the time separating de facto couples were waiting for court hearings.

    “The temporary magistrate started work in September and had already finalised 47 de facto matters in October, including 12 cases which went to trial,” he said.

    “I welcome the appointment of the new judges and believe their extensive experience in family law will be a significant asset to the WA justice system.”

    Mr Walters, who was appointed Queen’s Counsel in 1997, has worked in family law since 1975.

    He served as a Federal Magistrate in Melbourne for 11 years.

    Ms Duncanson, originally from Scotland, has been a magistrate at the Family Court of WA since 2003.

    Existing Family Court Judge Stephen Crooks retired last week after being on sick leave for 12 months.

    New school terms could impact child custody plans

    on by

    change-of-school-terms-impact-on-shared-parenting-agreementsThe Christmas holidays are here, but for Tasmanian parents with shared child custody, the new year’s school holidays could raise some legal issues.

    Tasmania’s state school year will switch from three to four terms in 2013, to bring it into line with other states.

    Parents with shared child custody are being urged to check whether Tasmania’s upcoming changes to school terms will affect their arrangements.

    Women’s Legal Centre of Tasmania managing solicitor Susan Fahey has told 936 Breakfast’s Ryk Goddard that the change won’t affect most people with custody agreements, but it’s an early warning for those it will.

    “For some people they might need to change their orders or parenting plans,” she says.

    “Others it won’t be a problem it just depends on the wording.”

    Ms Fahey says you may need to discuss with your ex-partner if a change to your agreement is needed.

    However if talking is out of the question for personal or legal reasons, she suggests seeking advice.

    “Usually the most cost effective way is either attempt it by email, but if you can’t do that then talk to them through say a mediation service or a dispute resolution service initially,” she says.

    Ms Fahey says custody arrangements shouldn’t be affected by this Christmas break.

    “It just gives you some time to have a think about well how’s this going to affect me,” she says.

    Kids with disability abused more: study

    on by

    disabled-children-abuseDISABLED children are more than three times as likely as able-bodied children to be abused or neglected, a new report says.

    The Children with Disability Australia policy paper released in Sydney on Tuesday says many abuse cases border on criminality and many go unreported because the victims were less likely to complain.

    Report author Sally Robinson, from Southern Cross University, said the abuse ranged from extreme physical assaults to children being locked in rooms without windows.

    There were also cases of children being pinned down by teachers trained in behaviour management by martial arts practitioners rather than behaviour management specialists, she said.

    Such abuse was often swept aside and sometimes poorly recognised by people in positions to take action against it.

    Reasons for under-reporting included lack of support to make a complaint, children not having the language skills to name the harm they underwent and intimidation and fear.

    Dr Robinson said the vast majority of people who worked with disabled children were skilled, committed and well-intentioned.

    “However, the fact remains that we know that kids with disabilities experience abuse and neglect at over three times the rate that children without disability do,” she said.

    The federal government’s National Disability Insurance Scheme may provide an important safety net, giving people the resources they needed to overcome barriers stopping them from participating in society, Dr Robinson said.

    The report recommended the government establish an independent statutory authority charged with protecting disabled children and investigating exploitation, violence and abuse.

    Receiving the report on Tuesday, federal parliamentary secretary for disabilities Jan McLucas said it would help governments and the community sector prevent such abuse.

    She said the report underscored the importance of the federal government’s work in removing barriers for people with disabilities.

    Related Family Law Judgments

  • No items found in feed URL: http://www.familylawexpress.com.au/family-law-judgments/category/child-abuse/feed/. You requested 15 items.

    • More complications from home made wills

    on by

    will-and-testament-unsignedAt a hearing on 31 August 2012, the question for the New South Wales Supreme Court was whether a handwritten document was the will of the deceased.

    It was believed that the deceased died in 2002 without a will. Letters of Administration were granted to the now NSW Trustee & Guardian to administer the estate. Two years after Letters of Administration were granted a handwritten document was located which appeared to express the testamentary wishes of the deceased despite not being a will in the usual sense. The document gave the deceased’s personal and real property to his sister but went on to indicate that he had a son out of wedlock and if he was found his sister could give him whatever she wished.

    The document was signed and dated by the deceased but was not witnessed. Whilst the document was not a valid will under New South Wales law, it was brought before a court in Athens and was found to have met the formal requirements of a will under Greek law.

    The deceased’s family did not know of any son of the deceased. Investigations were conducted in an attempt to locate the son but were unsuccessful. If the handwritten document was accepted as being a will then the estate would pass to the deceased’s sister. However if the handwritten document did not constitute a will then the laws of intestacy would apply and the deceased’s estate would pass to his son, if he had one.

    The application before the Court sought a declaration that the handwritten document constituted the will of the deceased. In determining whether the document was a will, the Court took into consideration the intentions of the deceased. The Court held that the document did constitute the will of the deceased as it was written by the deceased and was intended to be his will.

    Comment – Once again, this case reflects the importance of a having a properly drafted will that clearly identifies the beneficiaries. More importantly it demonstrates the importance of ensuring that family members or advisors are aware of the location of the will. Had the handwritten document been located immediately following the deceased’s death, considerable time and costs would have been avoided in making the applications to the court.