Monthly Archives: January 2014

Angry wife catches peeping husband

on by

Angry wife catches peeping husbandA Tasmanian man infatuated with his wife has admitted spying on her through a peephole he made in a bathroom mirror.

In the Hobart Magistrates Court yesterday, the 57-year-old man pleaded guilty to one count of observation or recording in breach of privacy.

The court heard the offence occurred after his relationship with the 34-year-old with whom he had two children went into a decline.

Police prosecutor Steven Harper said that in August last year the woman was undressing for a shower when she spotted him looking at her from on top of a water tank.

When they discussed the matter, he agreed to respect her privacy in future and wrote her a letter expressing his love and admiration for her.

In October, she noticed a scratch in the bathroom mirror and examined the adjacent room, where she found a peephole hidden behind a painting.

She called police, who seized the man’s computers and some related items.

When interviewed, he admitted watching his wife while she was in the bathroom for his own gratification and had recorded video footage of her but had discarded it.

Defence lawyer Roger Baker said the case was an unusual one and sprang out of the man’s obsession with his wife and his frustration at a decline in intimacy between them after she began a university course.

Mr Baker said his client had a history of exhibitionism and had been seeing a psychologist before and since the time of the offences. The couple’s marriage had failed spectacularly after the offence, he said.

Chief Magistrate Michael Hill said the case was unusual and legislation preventing such offences apparently was not intended to be applied in domestic situations.

He released the man without conviction on the condition he not commit a similar offence for two years and on condition he continue with his counselling.

Under the Police Offences Act, it is illegal to observe or visually record another person in circumstances where a reasonable person would expect to be afforded privacy.

The offence carries a maximum penalty of 12 months jail or a fine of $6500.

Wills and estates – How a dead man can end up with two spouses

on by

Infidelity & succession lawsThe president of France has one. President John F Kennedy had Marilyn Monroe. King Henry VIII had loads. Prince Charles had one. Even the bearded Father of Australian Federation Henry Parkes had one.

We are talking mistresses. While these aforementioned gentlemen had their own way of handling things once their relationship with mistress or wife concluded be it beheadings, divorce or jumping ship, for most folk such things can get very complicated.

Let’s take the example of who gets a man’s estate if he dies while having both a wife and a mistress. If the man dies without leaving a will and his relationship with the mistress was longer than two years, then the question of who is entitled to a share of the estate falls under Sections 123 and 125 of the NSW Succession Act 2006.

Legally, the man is deemed to have had two spouses. The law requires both spouses to reach a written agreement on the distribution of the whole of the deceased’s estate. The law does not include a provision for any children of either wife or mistress. Even if the wife didn’t know about the mistress, provided the relationship lasted more than two years the law sees them both as spouses who will inherit everything between them.

Negotiations in these situations can be very interesting to say the least. If the parties can’t reach agreement on their own, then the case will end in court where a judge will impose a decision. The judge may take into consideration who is more deserving of the lion’s share. That might be influenced by whether there are dependent children involved. If the man had a child with the mistress, and if the children he had with his wife are adult or not so dependent, then the judge may award the mistress the bulk of the estate to care for the child.

If there is a will and it leaves everything to the wife, the mistress still has a right to bring a claim. She would most likely receive something from the estate, especially if there is a child or she had been dependent on the deceased man. Under the law the judge has wide powers to consider the circumstances of both wife and mistress such as the husband’s moral obligations and whether there is enough in the estate to go around.

Even if the wife didn’t know about the mistress, provided the relationship lasted more than two years the law sees them both as spouses who will inherit everything between them.

For anyone in this complicated and unfortunate position it would be wise to get good legal advice.

Related Family Law Judgments

Family Court refuses to send quake-affected boys back to New Zealand

on by

parental-child-abductionThe Family Court of Australia has rejected an attempt by New Zealand authorities to secure the return of two boys who were unlawfully taken to Sydney by their mother after the 2011 Christchurch earthquakes, finding that the children would be further traumatised if they were ordered home.

The mother of the boys, aged 10 and 12, took them from the devastated city without telling their estranged father and built a new life in Sydney, according to a Family Court judgment published recently.

The woman said she fled the city because her house had been rendered uninhabitable by the powerful quakes, that it was then looted by hooligans and that she had lost her job when her employer went out of business.

These experiences had significantly traumatised her two children, with the younger of the two suffering post traumatic stress disorder characterised by insomnia.

The court heard that, despite the fact the boys had effectively been abducted, with their mother failing to report the move to their father or New Zealand authorities, the youngsters subsequently settled into their new home.

Both were experiencing a ”higher standard of living than before”, had settled into new schools, found new friends, and built relationships with counsellors.

“They speak freely, they laugh and joke and are full of joy,” the mother told the court.

A family counsellor said the boys ”overwhelmingly and understandably associate New Zealand with [the] earthquakes which they experienced” with one indicating that he never wanted to return.

Further complicating the case was the chequered history of the boys’ father.

His visits with the boys had been limited to three hours a month just before they left the country, the result of a number of protection orders taken out by the mother.

In mid-2005, the father was convicted in a New Zealand court on a charge of “wilful ill-treatment, possession of a weapon, and intentional damage” and was sentenced to 18 months imprisonment.

Between January 2007 and January 2010 he had little contact with the children after a serious car accident. The mother told the court the father threatened several times to kill her son from another marriage by running him over in a car or by hitting him with an axe.

The father denied this.

Of greatest significance, Justice Mark Le Poer Trench found, was the fact that the father and the New Zealand authorities who were helping him did not file the application for the boys’ return under international law until 12 months after they had arrived in Australia.

During this time the boys had ”settled in Australia”, the judge found, and for this reason they should remain.

”Although they clearly still experience problems with behaviour and learning they are as settled as they can be,” he said.

Counselling vouchers – can they reduce Australia’s sky high divorce rate?

on by

marriage_counsellingSocial Services Minister Kevin Andrews’ plan to equip couples with $200 vouchers for counselling could drive the national divorce rate down, Relationships Australia says.

The government’s $20 million, 12-month trial will start on July 1. It is the brainchild of Mr Andrews, who has said he wants to ”help couples achieve a greater degree of happiness and stability and thereby a better environment for their children”.

Mr Andrews is the author of Maybe I do: Modern marriage and the pursuit of happiness, a 2012 book that defends traditional marriage from the ”constant siege” he argues the institution is subject to. In his book, Mr Andrews says that governments should do more to help prevent the breakdown of families, which he says poses a grave threat to Western traditions. But despite Mr Andrews’ argument that marriage should only be between a man and a woman – he claimed legalising same-sex marriage could lead to an acceptance of group marriage – gay couples can apply for the vouchers.

Under the trial scheme, the government will offer 100,000 couples a $200 subsidy for ”marriage and relationship education and counselling, including components of parenting education, conflict resolution and financial management education”.

Mr Andrews has designed the vouchers for couples ”who are married, intending to marry or who are in a committed relationship, including same-sex couples”.

”The evidence shows that strong relationships between parents make a substantial difference to a child,” Mr Andrews’ spokeswoman said.

Relationships Australia national director of operations Lyn Fletcher welcomed the trial, which she said would normalise counselling and could even drive the divorce rate down. ”I applaud the strategy,” Ms Fletcher said. ”We know that couples who do engage in these processes early on before entrenched problems generally have better outcomes as a result, so it’s a good thing.

”We certainly expect that if we invest at this end then the impact of family breakdown and divorce rates should be seen in the longer term.”

She said it was not possible to provide ”success rates” for relationship counselling.

Japan finally signs Hague convention governing international child custody disputes

on by

japan-hague-convention-how-it-worksAfter years of refusing to sign, Japan on Jan. 24 officially joined the Hague convention that governs cross-border child custody disputes that result from broken marriages.

Japan came under heavy pressure from the United States and European countries to become party to The Hague Convention on the Civil Aspects of International Child Abduction. The treaty spells out the guidelines that govern cases in which children of separated or divorced couples are taken to the home country of one parent without the consent of the other.

Nearly 20,000 international marriages a year involving Japanese nationals result in divorce. In certain cases, the Japanese parent returned to Japan with their children without the consent of the other parent.

The convention goes into effect from April 1 in Japan, at which time the Japan’s Foreign Ministry will be obliged to locate children that result from such marriages if requested to do so by a parent overseas. The ministry will then be required to take steps to resolve the dispute through arbitration or other means.

According to the convention, if a marriage fails and the parents start living in separate countries, the decision on who receives parental rights to raise children under 16 falls under the jurisdiction of the country where the family resided with the child before the breakup.

If a parent who takes a child to Japan from overseas does not agree to return the child to the country of former residence, one of two family courts located in either Tokyo or Osaka will decide the matter.

The court has the authority to judge whether to return a child to another country if it believes the child might be subjected to danger or abuse, both mental and physical, if handed over.

Cases involving children taken to Japan before April 1 will be exempt from the convention. A parent overseas can still call on the Japanese government to assist in setting up a meeting with the child in such cases.

The children of Japanese couples will also be subject to the treaty if one parent flees with a child or children overseas.

The Supreme Court has already drawn up detailed guidelines on how to resolve such disputes.

The top court is now working on a manual for family court officers outlining how they should take custody of children in the event a court decides to return them overseas.

The Supreme Court estimates the cases that will go before the two courts will number in the dozens each year, with most disputes expected to be settled out of court.

A senior official with the Supreme Court said only a few of the cases are likely to require the need for officers of the court to physically separate the children from a parent living in Japan.

Judiciary officials said the first case may go before one of the courts as early as July.

Same-sex parents ‘more caring’, research shows

on by

same-sex-parenting-researchCHILDREN in same-sex families experience higher quality parenting and do as well emotionally, socially and educationally as those from heterosexual couple families, research shows.

An Australian Institute of Family Studies report states that “research to date considerably challenges the point of view that same-sex parented families are harmful to children”.

The report notes that a remaining area of inequality for same-sex couples was their access to adoption.

South Australia and Queensland are the only places where single people cannot adopt, which further excludes people in a committed same-sex relationship.

In Australia, about 11 per cent of gay men and 33 per cent of lesbians have children.

The children may have been conceived in previous heterosexual relationships or raised from birth by a co-parenting gay or lesbian couple or single parent.

The report says some benefits for children raised by lesbian couples, in particular, were that they experienced higher quality parenting and displayed more open-mindedness towards sexual, gender and family diversity.

“Lesbian co-parenting couples display a range of parenting strengths, for example, less authoritarian parenting styles, and report higher quality relationships with their children than matched samples of heterosexual parents,” the report says.

“They also tend to spend more time with their children.”

On the negative side, the report shows that children raised in same-sex parented families worry about being teased, harassed or bullied, particularly by peers at school.

“Despite this, children with lesbian mothers are only modestly more likely than their peers with heterosexual parents to be teased or bullied about their family composition or parents’ sexuality,” the report says.

It concludes that more could be done to develop policies and practices supportive of same-sex parented families in the Australian health, education, child protection and foster care systems.

Divorce ruling leaves wealthy husbands with less

on by

special contribution doctrine knocked down- benefits womenWEALTHY husbands who split from their wives after a long marriage are less likely to walk away with the lion’s share of the assets following a landmark full Family Court decision.

The decision, known as Kane & Kane, signals the end of the “special contribution” doctrine that has allowed some successful businessmen to walk away with 60-72.5 per cent of matrimonial assets, particularly in so-called “big money” cases.

The Kane case involved a couple who split after a 28-year marriage in 2009. They had an asset pool of $4.2 million and four children.

The trial judge had initially awarded the husband, a retired businessman from the Newcastle area north of Sydney, two-thirds of the couple’s $3.4m superannuation fund, and the wife one-third. However, the full Family Court overturned that decision, ruling the trial judge had given unacceptable weight to the husband’s “special skill” investing their money in a self-managed super fund.

He paid $539,500 for the shares, against her wishes.

By the time of their divorce they were worth $1.85 million, taking the total value of their superannuation fund to $3.4 million.

Because of the husband’s “skill in selecting and pursuing the investment”, the judge awarded him two thirds of the fund, or $1 million more than the wife.

But the full Family Court of Australia has overturned that decision, finding the trial judge may have given “unacceptable weight” to the husband’s “special skills”, in a case which could have major ramifications for divorces in the big end of town.

The controversial “special contribution” doctrine has previously allowed one spouse to lay claim to a significant portion of a couple’s assets if they showed exceptional skill or talent in building the fortune.

family-law-propertyBut the December 18 judgement, published online this week, in the case known as Kane & Kane has significantly challenged that principle.

The couple, with four children separated in 2009 after almost 30 years of marriage. Their assets totalled $4.2 million, but it was the superannuation fund that caused a legal battle. All other assets – totalling less than $800,000 – were divided equally.

Family Court deputy chief justice John Faulks said the original judge’s disproportionate division of the property “could not be justified”.

“It is difficult to correlate effort or skill (even if special) with result,” he wrote. “Frequently, the financial result of a contribution (whether by physical or intellectual labour or imagination foresight and perspicacity) will be influenced by external factors beyond the control of the party contributing.”

Furthermore, he noted that Mr Kane did not have any professional qualifications or special knowledge of the business in which he invested. And that he “took a calculated risk with the parties’ money, which fortunately proved correct”.

Family law expert Glenn Thompson said the decision was “very significant” and meant judges were no longer bound by precedent.

“It’s saying there’s nothing in the Family Law Act that one contribution is special as opposed to another and should be treated higher than any other contribution,” he said. “You’ve got to weigh up all the different types of contributions, be it the homemaker and parent, be it the breadwinner, be it inheritance, be it physical labour.”

One of the key criticisms of the doctrine has been that it discriminates against women and undervalues the role of the mother.

“[The Kane & Kane decision] is saying that the role of the homemaker and parent is a significant role that shouldn’t be undervalued,” Mr Thompson, who is a member of the Family Issues Committee of the Law Society of NSW, said.

“It should lead to a more equal result in a lot of the bigger money cases because if the assets were all built up whilst the parties were together then they’re going to be an equal contribution.”

The Kane & Kane settlement has been called back for rehearing before a new judge.

One of the key criticisms of the doctrine has been that it discriminates against women and undervalues the role of the mother.

In another recent case, known as Smith & Fields, a wealthy Gold Coast property developer split from his wife of 29 years. The husband was awarded 60 per cent of the couple’s $30m-$39m asset pool because of his “ingenuity and stewardship” running the family business, in which both the husband and wife had worked.

This was despite Family Court judge Peter Murphy recognising the parties had a “practical union of both lives and property” both had made exemplary contributions in their respective spheres of marriage.

In reaching his decision, Justice Murphy referred to six “big money” cases involving assets of almost $9m to more than $40m. The wives in those cases had been awarded just 27.5 to 40 per cent of the assets.

The case has since been appealed and a decision reserved, although family lawyers expect it to be overturned.

Family lawyer Paul Doolan said the Kane decision appeared to “sound the death knell” for the special contribution argument.

“There’s been a real philosophical and jurisprudential fight in the courts for the best part of 15 years between one camp who says the court should recognise in appropriate cases contributions of a special or exceptional nature,” Mr Doolan said. “There are others who say no, that kind of labelling tends towards gender bias and invariably favours males who are predominantly those who produce income.”

Mr Doolan said it did not mean that in a particular case a court could not rule that one partner deserved more of the assets because of their financial contribution. However, each case had to be examined on its own facts.

He said while many people presumed property was split equally between couples following a divorce, the reality was there was no rule of thumb.

Lawyer Gayle Meredith, who acted for the wife in Kane, said her client was pleased with the decision, but distressed the case would now be retried.

She welcomed the Family Court resolving uncertainty over the “special contribution” doctrine, which she said had tended to discriminate against mothers.

Anti-vaccination mother tells Family Court Immunisation akin to Sterilising

on by

child immunisation, family court disputeA MUM who has gone to court to fight her ex-husband’s bid to have their children vaccinated says the procedure is akin to sterilisation or gender reassignment.

The mother, who cannot be identified, is fighting her former husband in the Family Court because she “vehemently opposes” his desire to vaccinate their two children.

She wants the court to declare immunisation a “special medical procedure”, giving it the same legal status as sexual sterilisation and gender reassignment surgery.

To support her claims, the mother will call expert evidence from US doctors – and have her children undergo a battery of medical tests.

Since 2011, the Family Court has become increasingly involved in the vaccination debate.

In January of that year, it ordered a mother have her daughter, 5, immunised in line with the wishes of her former husband .

The girl’s father, who has remarried and has another child, wanted the girl vaccinated against preventable diseases for her own wellbeing, and for the health of his other children.

In November last year, an eight-year-old Victorian girl continued to receive vaccinations against the objections of her mother .

The court heard the girl’s father had been “secretly vaccinating” her during custody visits because he did not want to play “Russian roulette with her health”.

The latest battle, between the parents of children dubbed “J” and “P” in court documents, is scheduled to commence on January 29 and last seven days.

Court documents do not give the ages, nor the genders, of J and P.

In a pre-trial application in April, the children’s mother asked the court treat the father’s proposal they be vaccinated as a “special medical procedure”.

Under the Family Court Act, special medical procedures include sterilising intellectually-disabled girls, gender reassignment surgery, and lifesaving techniques opposed on religious grounds.

The mother also asked to call US-based doctors to support her claims, saying one specialist had quoted an appearance fee of $5000.

She said those overseas witnesses should be permitted to give evidence by telephone – the father objected, saying all testimony should be made in person.

In July the court ruled against the mother, saying she would have to call witnesses at her own expense and have the children undergo medical testing during her custody periods.

Under the Family Court Act, special medical procedures include sterilising intellectually-disabled girls, gender reassignment surgery, and lifesaving techniques opposed on religious grounds.

It permitted her doctors to test the children’s blood, faecal and urine on the children, but not their food.

The mother subsequently lodged an appeal, saying the court lacked sufficient evidence to decide whether immunisation was a special medical procedure.

She claimed the decision demonstrated “bias and error”, and showed the court had “failed in its duty of care”.

The mother asked the trial be adjourned to provide her “sufficient time” to “research the relevant law” and further challenge the ruling.

In a judgment published on the court’s website, Justice Ann Margaret Ainslie-Wallace dismissed the appeal and ordered the trial go ahead as scheduled.

“Whether or not (immunisation) is found to be a special medical procedure is a matter to be determined and argued before the trial judge,” she says.

Gay man fights to be recognised as father of child to lesbian couple

on by

sperm-donor-dadA TWO-year-old girl is caught up in a custody battle between her sperm-donor gay father and her lesbian mothers in what is becoming the modern reality in family court proceedings.

The sperm donor dad has been granted access to his daughter despite the objections of her lesbian parents to his youthful partying ways.

The man had been seeking shared custody of his two-year-old biological daughter that would have seen her living with him five nights a fortnight.

But her lesbian mums – who gave their daughter the man’s surname and named him on the child’s birth certificate after he provided genetic material for artificial insemination – argued he was not mature enough to care for the girl.

During a two-day Federal Circuit Court hearing, they produced text messages, Facebook postings and tweets to prove the man, a long-time friend, regularly abused drugs and alcohol.

“A scotch a day helps me work rest and play,” read one.

“Coke is always good after a big night of drinking. I agree. Both the powder and the liquid,” another said.

The women said while they wanted the girl to have a relationship with the man, they argued it should be limited to relatively brief daytime encounters.

Judge Judith Small said differences in the parties’ understanding of the terms of agreement they thought they had made in relation to the girl’s care began to arise during the pregnancy.

Three months after she was born, they had sought legal advice about the father’s role.

The women said they regularly welcomed the man into their home to spend time with the girl but didn’t believe she was ready to be left alone with him overnight.

They argued he was unable to change a nappy and ignored her special dietary requirements that had left her unwell.

The lesbian couple are the girl’s legal parents because they were in a defacto relationship when she was born and therefore the “father” is not considered a parent under the law, Judge Judith Small said in the Federal Circuit Court of Australia.

But he still has the right to play a significant role in her life and the mothers must put his name on all the girl’s medical and school forms and make sure he can go to all school events and functions usually attended by a child’s family, the judge ruled.

She said the women had been shocked and surprised when the father began custody proceedings after the girl was three-months old because they thought everything had been agreed.

“Both (the women) appeared genuinely distressed by the proceedings and expressed irritation that they found themselves in court having to defend their family structure,” Judge Small said.

The father was in a gay relationship when the two men began to talk to the women about having a child, the court heard.

“Does anyone want to be a surrogate for me or have a baby with me?” the father sent to the woman who ultimately became the mother.

The relationship between the two men broke down but the surrogacy went ahead through artificial insemination and the mother became pregnant at the first attempt. The father was present at the birth.

While the girl lives with the women, the father has cut back on his work and moved in with his own mother so he can be closer to his daughter and has seen her every week since her birth. He also pays child support, which he does not need do.

But he said the lesbian couple had been “overly critical” of his parenting skills and found fault with him at every opportunity including that he didn’t clean the girl up properly when he changed her nappy.

The women said that while they are happy for him to play a role in the girl’s life, they felt he was more concerned with establishing himself “in his role as her father than with being sensitive to her actual needs.”

“I have no doubt that he adores (her) but she is not a commodity to be traded between him and the (women),” Judge Small said.

“He certainly impressed as being determined to have as much involvement as he can in (her) life and it was clear that he sees himself as her father, and indeed like any father who does not live full time with his child.”

Judge Small drew up a timetable for the parents to share their daughter, who will spend nights with her father, at least until she begins school.

In previous cases, the Family Court has ruled that a sperm donor, while not named on the birth certificate, could be legally considered a parent and decided another case where a lesbian couple had split up but both wanted to be called “mother”.