Former Family Court judge says pushy lawyers drag out cases

LawyersIn a speech titled ”Everything I’ve Always Wanted To Say”, recently retired Family Court judge Linda Dessau says overly combative family lawyers can give parents misguided advice and put families through unnecessary, drawn-out legal battles.

In a wide-ranging speech on Friday Ms Dessau, who sat on the Family Court for 18 years, also spoke of the need for greater resources for the courts to prevent delay, and the importance of the legal profession becoming more representative of women and different cultures.

Ms Dessau said most family lawyers had a good grasp of the law and often stood ”fearlessly between the client and their tormentor. They know when to fight cases, they know when to settle.” But a small minority ran ”scatter-gun” cases because they did not understand what mattered.

”I felt most impotent as a judge when I couldn’t rescue the parties, as I saw it, from unnecessary or obscenely expensive litigation which could easily have been different, in my view, with a different lawyer involved,” Ms Dessau said at a Law Institute of Victoria lunch.

”Sometimes they just gave misguided advice, often at the start of the case, like, ‘Just nick off with the kids’ or, ‘Just close all the bank accounts’ and that set up unnecessarily bitter and protracted litigation.”

Ms Dessau told Fairfax Media that while such lawyers were in the minority, they had a big impact on their clients and the court’s resources. She said good judges always tried to intervene, and usually could ensure such cases moved as quickly as possible. ”But sometimes the judge just doesn’t have that power.”

Ms Dessau said the court could order costs against a party and a lawyer if some matters were unreasonably pursued and ”if they feel that the lawyer’s wrong. That’s the only tool really available to the judge in the worst cases.”

Courier-Mail fined for identifying family in custody battle

italian--sisters-coverage-finedA Queensland newspaper has been fined $120,000 for illegally identifying a family involved in a court custody battle.

This was in breach of Section 121 of the Family Law Act 1975.

Queensland Newspapers, which owns The Courier-Mail, was sentenced in the District Court in Brisbane on Monday for breaching restrictions on publishing court proceedings.

The newspaper published names and photos of a mother and her children involved in a Family Court dispute on its front page in 2012.

Australian media are prohibited from identifying anyone involved in Family Court proceedings.

District Court Justice Terence Martin said The Courier-Mail deliberately and blatantly disregarded the law for commercial gain.

“It seems to me that the newspaper seized upon what it regarded as a sensational story, which would be attractive to readers, and put the story ahead of its legal obligations,” he said.

The court heard Queensland Newspapers breached the law four times by identifying the family members in four newspapers across a week in May 2012.

Journalists were warned multiple times by a court staffer and a legal officer about the ramifications of identifying the family.

Justice Martin fined the company $30,000 per breach, saying the offending was in the worst category and the newspaper had shown no remorse.

The maximum penalty is $33,000 per breach but the judge took into account the newspaper’s lack of criminal history and its contribution to the community.

He said the fine was severe enough to deter ‘‘like-minded’’ publishers.

‘‘This was persistent, serious offending in deliberate defiance of the law and importantly in complete disregard of the interests of four children,’’ he said.

General manager of The Courier-Mail and The Sunday Mail Jason Scott was present in court but was not required to speak.

The company has one month the pay the fine.

Father jailed for bashing partner granted access to daughter

family-court-of-australiaA father who bashed his partner and held a samurai sword to their daughter’s throat was still allowed weekly access to the child because a Family Court judge believed the terrifying domestic violence case did not constitute a ”change in the family dynamic”.

The mother was reprimanded by the judge and convicted for 20 breaches of parenting orders for refusing to bring her seven-year-old girl to the weekly visits because she feared for their safety.

The five-year-long custody dispute has tested the judicial system’s understanding of the impact of domestic violence and has elicited a unprecedented mea culpa from a veteran psychologist, who admitted he made a gross misjudgment by not believing the mother’s allegations.

The couple, given the pseudonyms Ms Tindall and Mr Saldo, have been bitterly fighting over parenting orders since their relationship ended in 2008.

Both parents have supported various forms of weekly paternal visits but, in August 2010, Ms Tindall suddenly stopped dropping the child at meetings at a KFC restaurant because Mr Saldo was about to go on trial for bashing her, tying her to a chair and swinging a sword at the child in their Cambridge Park home in 2007.

A court ordered that the two-hour visits should occur at a supervised contact centre but Ms Tindall failed to comply. She is now appealing against her convictions in the Family Court of Australia.

Judge Stewart Austin said the domestic violence incident had occurred years earlier and therefore the pending criminal proceedings did not constitute ”a change in the family dynamic” that would justify her defiance of the parenting orders.

If Ms Tindall’s appeal is successful, it could change the judicial system’s understanding of seemingly ”unreasonable” behaviour carried out by domestic violence sufferers..

”The father’s decision to publicly admit his past violent behaviour changed nothing about the history of the parties’ relationship,” Justice Austin said. ”His pleas of guilty were only a vindication of the mother’s allegations of past domestic violence.”

Ms Tindall told the court Mr Saldo’s admissions to some of the criminal charges made her fearful and she thought he would carry out threats to kill her and her child.

Mr Saldo responded that her ”sudden about-face” was an act and she had a pattern of making up allegations, including a false claim that he sexually abused their daughter.

The criminal proceedings were ”a convenient excuse for carrying out her own will, which is to exclude him from his daughter’s life”, his summary of argument said.

Family Court psychologist Dr R initially agreed with Mr Saldo, describing Ms Tindall as calculated and brazen. However, when Mr Saldo entered a guilty plea in Gosford District Court and was convicted to five years in prison, Dr R admitted he had understated the degree of violence and had never been more wrong in his 20 years of preparing expert reports.

Justice Austin said the father’s last threat was a text message in 2008 and the prospect of violence was ”quite remote”. He said the mother’s sudden change in attitude to paternal access ”does not withstand logical scrutiny”.

However, an academic expert gave evidence that domestic violence victims often act in ways that may seem incongruous and irrational to a reasonable person because of the emotional abuse suffered.

If Ms Tindall’s appeal, which was heard on Tuesday, is successful, it could change the judicial system’s understanding of seemingly ”unreasonable” behaviour carried out by domestic violence sufferers, Ms Tindall’s lawyer Elisabeth Houston said.

Dementia patient’s marriage voided by mental incapacity

NullityA rare case of a marriage being subjected to the test of mental capacity has been decided in court.

It was an autumn wedding.

He was 78, about to move into a nursing home and suffering from dementia. She was his 49-year-old former cleaner.

Weeks earlier, she had accompanied her fiance to his solicitor to change his will to leave her everything.

But the course of true love never did run smooth, and the groom’s family challenged the marriage in the Family Court.

The soap-operatic details of this improbable union are recounted by Justice Garry Foster, who is one of the few judges in Australia to have been asked to declare a marriage void because of the mental incapacity of one of the parties.

The Olivers, as he dubbed the couple to protect their anonymity, were married in April 2011 in an intimate ceremony attended only by her family.

His family had been told by the blushing bride-to-be that the ceremony was in June and she neglected to tell them of the change of date.

”How are you getting married? I didn’t even realise you had a girlfriend,” his granddaughter had demanded in a telephone call before the wedding.

”Neither did I,” he replied.

After the wedding, his grandson asked his ”pop” why he married the woman who had been a cleaner and carer for him and his late wife, who died in August 2010.

“I don’t know, why didn’t anyone tell me?” he replied.

The court heard that at one stage the husband-to-be was drinking rum and Bonox for breakfast and ”talked of his late wife as though she was still alive”.

About four months after the wedding, he was admitted to a nursing home with ”significant cognitive impairment, dementia and a raft of other health issues”.

His family told the court that they did not see their new step-grandmother and step-mother-in-law when they went to visit him in the nursing home but she was making ”regular drawings” on his bank account.

His granddaughter applied to the Family Court in 2012 for an order that the marriage be declared void on the basis that he was ”mentally incapable of understanding the nature and effect of the marriage ceremony”. He died in September last year, before the case could be heard in December.

Justice Foster noted the man’s widow claimed ”it was her love for the deceased that prompted her to marry him”.

”When asked whether it was like the love of a wife for a husband, she said ‘in a way,”’ he said.

He added he had ”reservations” about the evidence given by the woman, who ”had a history of several marriages”.

It was significant that she did not call a number of witnesses who might have assisted her in proving that her ageing groom was mentally capable of tying the knot, including the wedding photographer, the solicitor who helped to change his will and his neighbours.

The man’s general practitioner had also resiled from an assessment he made, shortly before the wedding, that the groom was capable of making rational decisions.

Justice Foster noted there is a dearth of cases in Australia on the circumstances in which a marriage will be declared void owing to mental incapacity.

”There are only two reported decisions that I was referred to and I located no others,” he said.

Taking into account the likely ”financial motivations” of the woman, the financial disparity between the pair and his cognitive incapacity and dementia, Justice Foster concluded the man did not have the capacity to understand the nature and effect of his marriage to the woman.

Adding to the tiny number of decisions in Australia, he declared the Olivers’ marriage void.

Related Family Law Judgments

How to Divorce Proof a Gifted Asset to your Child

legal-fees-divorce-300x233Sharing the family assets by giving adult offspring an early inheritance may seem like a good idea. But what happens if they split from their partner, and those hard-won assets walk out the door?

Anna and Paul helped their son Andrew* with $160,000 to buy his first home. They had no idea that, 10 years on, they would face months with lawyers and about $50,000 in legal fees trying to stop his wife Stella leaving the marriage with half the money.

Sharing family assets by giving adult ­offspring early inheritances may seem a good idea. But, as Anna and Paul found, what happens if the partnership folds, opening the way for those hard-won assets to walk out the door and away from the family?

No one can reliably predict how relationships will play out but, when it comes to the transfer of family wealth, it is worth erring on the side of caution to ensure not everything is lost to the other side. Mitchells Solicitors & Business Advisors principal Bryan Mitchell says parental acts of ­generosity should rarely be couched as a gift.

“I’m not opposed to acts of generosity,” Mitchell explains. “You can’t take it with you when you die, but I strongly encourage the giver to make any gift a documented loan or to take some security over the asset.”

This was Anna and Paul’s problem. They had helped Andrew with the money before he met Stella and, while they all verbally agreed it was a loan, it was not documented. Recognising her son’s marriage was on the rocks, Anna registered a mortgage over the property but still there was no loan documentation. Had it been, says Mitchell, it could have been settled out of court. Andrew won, but legal fees amounted to about a third of the loan.

Complex issue

Social demographer Mark McCrindle says the current approach in Australia is for parents to help their kids with gifts or loans at the start of their independent life, for big-ticket items such as education expenses or property. Where the complexities really start, is when the children form their own ­relationships, which can then turn sour.

“People are marrying later and fewer ­people are marrying at all, which means divorce rates are dropping,” says McCrindle, principal of McCrindle Research. “But when they do marry or cohabit later in life, both parties tend to bring more earnings and more assets to the partnership.” When it comes to the Family Law Act, de facto couples are treated the same as married couples.

For property settlements, the Family Court will consider any period of cohabitation before marriage when assessing the length of the relationship. A straight gift of anything from cash, property or a slice of the family business to an adult child is called an “inter vivos” transfer, meaning it’s done while you are still alive (not after your death via a will or testamentary trust). These gifts may become matrimonial assets when those adult offspring form a relationship governed by the Family Law Act, says Townsends Business & Corporate Lawyers principal Peter Townsend.

“The Family Law Act and the powers of the Family Court are extremely wide. If the asset falls within the matrimonial pool, the Family Court will deal with it and it can ­effectively look through structures, including trusts, that it thinks are designed to ­prevent the other party getting their share of the family assets.”

Prenuptial agreement

Townsend says one way around losing gifted family assets to a former partner may be a prenuptial agreement, formally known as a binding financial agreement. For example, if a son is given a house for him and his wife to live in, the agreement may state if they divorce, the house stays the son’s property and is not part of the matrimonial pool.

The agreement can be drawn up before or during the marriage and the terms of the agreement laid out as to what the parties expect to happen if things go sour. Townsend says both parties must get legal advice and the agreement should be approved by the Family Court.

“Lawyers have a reputation for being expensive but legal advice is not expensive in relation to what you have to lose.”

Kelly & Co senior associate in family law and wealth management Rachel Sinclair says it’s crucial, and agrees with Mitchell in saying acts of generosity should be loans.

“In a property settlement, the court will look at the assets and liabilities held individually and jointly, and then who contributed what. If one person has liabilities arising from a loan from their parents, then that amount may be taken out of the picture when it comes to dividing the assets.”

Sinclair says thinking about potential scenarios before they play out, and proper documentation, are key to securing family assets.

Protecting family assets

“It is important to think about the steps you can take to protect the family business or any assets being handed down before any signs that a relationship may be rocky. By the time a couple is separated and you are before the court for a property settlement, not too much can be done.”

If a $10,000 gift to a daughter to buy a house is to be repaid, it must be set up as a loan document (preferably signed by all parties) that sets out the conditions on which it is to be repaid, Sinclair says.

“A loan can be repayable on demand, but there has to be documentation that there was a loan. If there is no documentation, no repayments and no security, then it will come down to whether the court accepts whether it is a liability. If it is not a liability, then the other party could get a greater share of the assets, including the money put in by the parent,” she says.

Prescott Securities financial adviser and estate planning specialist Samuel Garreffa says parents “giving with warm hands rather than cold hands” offers the satisfaction of seeing assets used in their lifetime, but can be contentious if the money is not used as intended.

Another consideration is if gifting assets affects the giver’s financial situation. Where a parent gets an Age Pension and gifts assets, Garreffa says, they must not breach Centrelink gifting rules, which let age pensioners gift up to $10,000 a year, or $30,000 in three years, without remaining assets being assessed for the pension.

Parents’ needs

Resi Mortgage Corporation’s Lisa Montgomery says family assistance – such as helping kids buy property – is often an emotional decision and ill-considered, particularly when it comes to the parents’ needs.

“A lot of parents don’t understand the impact that lending large sums of money can have on their ability to borrow money for themselves, or do what they want later in life,” Montgomery adds. “There are a range of ways that a parent can help a child leverage to property, but it has to be well documented and preferably drawn up as a legal document.

“They need to be able to call on that loan or protect that money under a range of circumstances. The terms of any loan have to be determined from the outset.

“They are hard conversations but nothing ever stays the same as the day the arrangement was made.”

No word yet on Geoff Shaw’s abortion bill: Vic premier

geoff shaw - private members bill - aborionControversial Victorian MP Geoff Shaw says he would like Victoria’s abortion laws changed and has flagged tabling a private member’s bill.

Geoff Shaw wants to introduce a bill that allows doctors who objected to performing abortions and to refuse to refer women to another practitioner.

Premier Denis Napthine said Shaw had not indicated to the Victorian government that he had any proposal to bring forward a private member’s bill on the issue.

“Let’s take one step at a time, one day at a time, rather than talking in hypotheticals,” Dr Napthine told reporters on Thursday.

He said the government would not introduce any legislation to change abortion laws.

“I will not support any legislation that reduces a woman’s right to choose,” he said.

Dr Napthine said MPs could make notice of a private member’s bill but it was up to the parliament to decide whether to allow the bill to be introduced.

Mr Shaw has told the ABC that Victoria’s abortion laws are some of the worst in the world.

At present, Victorian law requires medical practitioners with a conscientious objection to terminations to refer a woman seeking one to another practitioner.

Children Left Nothing Fighting for Darveniza Millions

Bojan Darveniza

Bojan Darveniza. Source: News Limited

A multi-millionaire property investor’s son, who was left nothing in his late father’s will, has been awarded $3 million dollars from his father’s $27 million estate.

Steven Darveniza, the eldest son of Bojan Darveniza, took his father’s widow to the Supreme Court to get a share of the estate, claiming he had worked for his father for many years.

Bojan Darveniza died in 2010, aged 78, leaving most of his estate to his second wife, Xiao Hong Darveniza, now known as Jane, who was 30 years younger than him.

Multi-millionaire Bojan Darveniza was a hardworking, astute investor with a talent for turning run-down properties into rental goldmines, amassing a fortune.

But to his older children, Bojan was a tyrant who ruled them with an iron rod, making them work hard in the family business after school and on weekends.

The big, strong man, who easily could carry a heavy roll of carpet up flights of stairs, had a violent side and terrorised his older children.

Bojan had eight children – Steven and Tania with first wife Lindsay; Natasha, Jonathon and Andrea with his ex-housekeeper de facto Jennifer Morgan; and Yasmina, Sofia and Boyana with second wife Xiao Hong.

Xiao, now known as Jane Darveniza, 51, who inherited most of Bojan’s estate, moved in with Bojan after agreeing to do “housekeeping duties” in exchange for free accommodation.

Less than a year later, in 1990, Jane, 28, married Bojan, 58, the Supreme Court has heard in an estate claim civil case brought by Steven against Bojan’s widow Jane. The picture Bojan portrayed to the outside world was “a mirror reverse” of how he treated his children, a lawyer representing Steven told the court.

Bojan’s personal estate was worth $40 million at the time of his death, but the net value was now between $26 and $28 million, the court heard.

Bojan married twice, had a de facto relationship, and fathered eight children, including three with Jane Darveniza.


Widow leaves grave without headstone.

The court heard Jane married Bojan less than a year after moving in with him, after agreeing to do “housekeeping duties” in exchange for free accommodation.

In his judgment Justice Glenn Martin said Bojan Darveniza’s household was one in which the bonds of family life were “tested to extremes”.

“Some of the children were left hurt and resentful by the actions of their father,” Justice Martin said.

Steven told the Supreme Court he was beaten as a child by his father, whom Justice Martin accepted was “an extremely harsh disciplinarian”.

The judge said Bojan’s “degrading treatment and beatings” of Steven included frequently striking him with objects including an electric cord, a piece of timber, a tree branch and a broom handle.

Bojan Darveniza cut off his eldest son’s hair with a cutthroat razor, cutting his son’s neck, when Steven was caught smoking in Year 8.

He also hit Steven with a belt when he was seven and stabbed his son in the side of his head with a pencil because he could not do his maths homework in Year 1 or 2.

However Steven, who became a commercial pilot, said he worked for Bojan as a boy and young man and had a good relationship with his father before his death.

Justice Martin said Steven deserved better provision from his father’s very large estate because he had worked long and hard for Bojan, contributing to the growth of his property interests.

Two reasons for his father not providing for him in his will were misconceived or based on a misunderstanding, the judge said.

He also accepted Steven could no longer work as a pilot, because of injuries from an accident, and while he had substantial assets, he also had substantial liabilities when his father died.

The court heard other claims made against the estate by some of Bojan’s children were settled, with son Jonathon, who was left a Bardon property, getting an extra $3.2 million.

Bojan’s daughter Tania, who was left nothing in his will, received $2.7 million and his daughter Natasha, who also was left nothing, received $2.85 million.

THE widow of a property multi-millionaire, Xiao Hong, now known as Jane Darveniza, who inherited most of his vast fortune, still has not put a gravestone on her husband’s grave, three years after his death.

Related Family Law Judgments

Family Court children ‘compromised’ as parents represent themselves

victoria-legal-aidVictoria Legal Aid says it will review cuts to its family services – which the Family Court’s Chief Justice has criticised as compromising children’s best interests – later this year.

Legal Aid made unprecedented cuts to its services last year to save money in the midst of growing demand and million-dollar losses. It announced last January that it would no longer fund parties in the Family Court if they were facing someone who was also unrepresented in court.

Nicole Rich, director of Victoria Legal Aid’s Family, Youth and Children’s Law division, told Fairfax Media that the current guidelines were not ‘‘ideal’’.

She said that the organisation was planning to review all of its family legal aid services at the start of the new financial year in July at the earliest, and would consult with the public and key stakeholders.

‘‘We’re going to be reviewing all of our family legal aid services this year and we are keen to…potentially make changes,’’ she said.

‘‘We do want to increase the accessibility to legal aid services but we also want to make sure that that’s done in a way that’s sustainable longer term, that we can fund it.’’

Ms Rich said there was great uncertainty for future funding of family legal services ahead of the May Budget and the National Partnership Agreement ending on 30 June.

A key criticism of the legal aid crisis has been the federal government’s decreasing contribution to state legal aid commissions since 1997.

It has since fallen from half of what the states chip in, to about a third. Victoria receives the smallest share of federal funding in the country per head.

‘‘We’re not in a position to make any further decisions at this point in time,’’ Ms Rich said.

Chief Justice Diana Bryant criticised Legal Aid’s cuts to its family law services on Monday, saying that they had led to more parents representing themselves in court.

Chief Justice Bryant said that the cuts had exacerbated long-held concerns in the Family Court about parents being able to be cross-examined directly by their former partners, even in cases where they are alleged perpetrators of family violence.

“The problem that really arises is you have a party who is not only going to be cross-examined by their former partner about violence of which they are a victim. But they [also] have to run their case and they have to cross-examine their partner and for many people that’s impossible,” she told ABC Radio.

She said that in the Family Court the best interests of the child are “paramount”: “So the judge is searching for the best interest answer and that’s greatly assisted by having an independent children’s lawyer, but…the system is compromised unquestionably.”

The Chief Justice said that in some cases, parents settled privately to avoid going through the process unrepresented.

Ms Rich agreed that Legal Aid’s changes to its trial guidelines had meant more people went unrepresented. But she said that the issue of self-represented litigants had been a ‘‘long-standing issue’’ since the Family Court was formed.

‘‘Even if we reverse the change from last January tomorrow, it wouldn’t fix the problem because there are still plenty of people who are not eligible for Legal Aid in the first place,’’ she said.

She said Legal Aid’s decision to return to funding people in the Family Court who received state services for a diagnosed mental illness or disability ‘‘(recognised) that those clients were particularly vulnerable. We recognise that they’re not going to be capable of standing up in court and representing themselves.’’