NSW ALP Opposition Promises Specialist DV Court

NSW Deputy Opposition Leader Linda Burney says Labor would establish a specialised court for domestic violence

NSW Deputy Opposition Leader Linda Burney

There is no doubting the omni-presence of Domestic Violence as a media issue within Australia these days, where we rarely see a day where we don’t hear of haunting statistics of violence against women and children in the domestic setting.

I would defy anyone reading the alleged figures, some as high as 3 out of 4 women experiencing Domestic Violence at some point in their lives, not to be moved and angered by what seems to many to be an under-current that is rarely seen, but all too often reported to the crime authorities, and more importantly to women’s shelters.

To suggest, as some spokesperson’s do, that Australia does not take Domestic Violence against women as a serious issue however, I believe is a serious mis-statement.

Of course, given the nature of the beast, there is no magical formula that would simply stop family members or couples from engaging in acts of aggression or abuse, during sometimes stressful periods of life.

The question most often asked in regard to prevention is not whether we should, but more importantly how we could.

What we have seen however are amendments to Domestic Violence laws that have slowly but surely become significantly more punitive in their response, while also slowly eroding the very basis of our legal system in this country, that you are innocent unless proven guilty.

The various state and federal laws regarding Domestic Violence have gone through a steady creep over the years, slowly accounting for more and more of what was considered transient, even typical behaviour for many relationships, but nonetheless thought of as benign in its lasting effects.

For instance, once upon a time, simply raising your voice in a non-threatening manner during an argument was part and parcel of married life. Today, it can, and often does, land people in jail.

The Courts are now in a position where such acts of abuse, as continually expanded and re-defined, are now judged not on the basis of beyond reasonable doubt, and in many cases not even on the balance of probabilities, but purely on a basis that it is better to be safe than sorry, so people who are accused of abuse are often labelled with restrictions, not because they have been proven to act in an abusive manner, but just in case they did, to prevent that behaviour from causing any more harm.

It is a delicate balancing act, and one can understand that despite its obvious difficulties, that perhaps the erosion of individual rights may be the compromise we have to live with to save lives.

However, as evidenced by regular amendments to the various state based legislation on DV, and as further evidenced by the 2011 federal government domestic violence amendments to the family law act, what we once typically considered to be Domestic Violence, being that of physical, psychological or emotional assault, is now becoming even more difficult to define.

The big fear amongst many in the legal profession is the ongoing movement towards defining domestic violence more as a subjective response, as opposed to a real event that actually occurred.

That being said, how much further can we tighten all the various Domestic Violence laws before we get the balance so wrong, that irrational allegations start becoming the norm?

It’s on this point that the NSW Labor opposition has made what is perhaps a very sensible suggestion, given that the current Courts tasked with addressing Domestic Violence allegations are neither properly resourced for this role, nor do they have the specialists to determine real abuse from either mis-construed allegations, false memories, or even malicious intent.

The NSW deputy opposition leader Linda Burney (ALP), recently announced that if elected to government at the next state election, Labor would establish a specialist court for domestic violence and sexual assault cases.

The election commitment aims to reduce the trauma experienced by victims going to court by employing specialist judges and lawyers, designing courtrooms to ensure safety and privacy, and allowing victims to give evidence remotely.

“We have a massive under-reporting rate in sexual assault, and half the conviction rate of any other area of criminality,” Karen Willis, executive officer of Rape and Domestic Violence Services Australia, said.

Ms Willis undertook a Churchill Fellowship to study the operation of specialist domestic violence courts in Canada, South Africa, Britain and the United States.

She believes this approach could increase the reporting of assaults and conviction rates in Australia.

Labor’s women’s spokeswoman Sophie Cotsis said every woman and child had the right to be safe in their own home: “Many other jurisdictions around the world have different specialist domestic violence and sexual assault courts operating at the moment – we need to see this implemented in NSW.”

And here perhaps is the beginning of the problems with such a specialist Court.

Even at conception stage, it is already being defined along the same weaknesses as the current system has.

If all this specialist Court is intended to do is cycle through the allegations of Domestic Violence more quickly, then there are more effective and cheaper ways to achieve this goal.

If however we wish this Court to find a more effective balance between the legal principles of justice balanced against the safety requirements of potential victims, then perhaps we need to do a lot more than super-impose the existing Domestic Violence industry against a new specialist Court.

Its a good start Linda Burney, but I think a lot more thought needs to go into this idea to prevent it becoming a star chamber, and instead become a beacon of proper judicial process that can better protect all potential victims of domestic violence, without inheriting an even larger compromise against our country’s cornerstone legal principle, being the presumption of innocence.

Shared Parenting Laws Mis-Represented by ex-Judge Richard Chisholm

retired-family-law-judge-richard-chisholm

Chisholm proposing to ditch Shared Parenting Law

Retired Family Court judge Richard Chisholm, now an ­Australian National University adjunct professor, has written a blueprint for overhauling Australia’s Family Law Act, and wants the laws to be changed, apparently to remove the prospect of Shared Parenting as a potential outcome in Family Law Court proceedings.

This is nothing new for Chisholm, who has a penchant for writing reports and reviews that have consistent themes, notably that Shared Parenting laws must be removed from Australia’s Family Law act.

In this new blueprint, Chisholm has lamented that the current laws have lead to confusion in the minds of many parents, who he claims, falsely believe that children are entitled to have a meaningful relationship (including parenting time) with both parents in the event of divorce.

It stands to reason that Chisholm therefore believes that Australia’s Shared Parenting laws don’t in fact promote Shared Parenting, so parents should not expect Shared Parenting outcomes, or alternatively they do expect Shared Parenting but should not.

According to Chisholm, because of this alleged mis-conception, he presumably wants any references to Shared Parenting (and synonyms), as well as terms like “Equal Shared Parental Responsibility”, “Significant and Substantial Parenting Time” and “Equal Parenting Time”, to be removed from the act, along with about another fifth of Part VII of the Family Law Act.

He wants this whole section replaced with a presumption that “it is in a child’s best interests for both parents to continue to have parental responsibility“.

Sounds familiar?

Well if not let me give you a hint, from my reading what he is suggesting is that he wants the Family Law act to go back to a time prior to the 2006 Shared Parenting amendments, where parental responsibility was a meaningless term that in practice amounted to sole parental responsibility, the beholder being the parent who had physical custody.

Chisholm hopes and expectations however are not supported  by the historical facts underlying the basis of his reports.

One claim by Chisholm and others regarding the proposed family law reforms post 2006 has been a mis-representation of the history of these amendments.

We now have a case where the public is being led to believe that Australia’s Shared Parenting laws were never intended to increase Shared Parenting, bizarre as this may seem given the term that these amendments are almost universally known as is Australia’s “Shared Parenting” laws.

Despite Chisholm’s misleading claim, the reality is that the core driving force behind the 2006 Family Law amendments was the principle of Shared Parenting (being defined in its simplest form as equal, or substantial and significant shared living arrangements.) This was underscored and emphasised by the Prime Minister of the time, John Howard in numerous instances.

This was ultimately the primary goal of these 2006 family law amendments, and no amount of revisionism or re-casting can change the historical foundation and motivation behind these laws.

If anyone has any doubts about the intent of the laws, I recommend you go back to the foundation bi-partisan report in 2003, supported by both the Coalition and the ALP, called “Every Picture Tells a Story.”

Although the final legislation did not adopt all the recommendations, the intent of the changes were very clearly articulated in this report, despite the compromise of the 2 -hurdles to Shared Parenting (incorporating Equal Shared Parental Responsibility as the first hurdle), being a necessary compromise to seal bi-artisan support for the report.

The report however in intent and purpose is unequivocal and reads:

“Despite the intentions of the Family Law Reform Act of 1995, shared parenting and shared physical care have not become a reality for the vast majority of separated families.”

In response to this failure in the 1995 Family Law changes, the Committee recommended that the new Shared Parenting amendments (eventually enacted in 2006) should contain the presumption that children should “be given maximum opportunity of spending significant amounts of time with each parent.

The report’s intentions were clear, that there be a Presumption of Equal Shared Parental Responsibility (the first hurdle), that would be struck down if certain events occurred, such as family violence, huge distances between households, or other relevant issues preventing Shared Parenting.

If such events did not occur, then the Courts were compelled to order Shared Parenting, either Equal Parenting Time, or Substantial and Significant Parenting time, if in the child’s best interest, and if not ordered, the Judge had to explain why not.

To illustrate this mis-representation by Chisholm more recently, in 2011 these Shared Parenting laws were amended by the then Gillard government to make it more difficult for some parents to get Shared Parenting arrangements with their children if there were allegations of family violence (despite it already being part of the 2006 amendments).

In response to these proposed changes, George Christensen, in opposition at the time, stated on record that:

“What is inside this Trojan horse, the malicious code that will infect society, is an attempt to undermine equal access for both parents. This change would invite the court to ignore the requirement to consider the second pillar—the benefit to the child of having a meaningful relationship with both parents.”

A recent article reported in the Australian on Chisholm’s proposed family law act reform blueprint, further distorts the original intent of the 2006 Shared Parenting Family Law amendments, either deliberately, mistakenly or by complicity by the journalist involved, Nicola Berkovic.

The article suggests that Australian family law act could be simplified, by removing some convoluted section in the act.

The journalist, Nicola Berkovic, then used comments by other notable family law spokes-people supporting the above premise, to imply that this view also includes their agreement that Australia’s Shared Parenting laws should also be ditched.

In fact, as is the case with the pre-eminent expert in family law and the man sometimes referred to as the architect of the 2006 Shared Parenting laws, Professor Patrick Parkinson, this is not his position at all.

In a similar tactic, Anti-Shared Parenting advocates like Chisholm have also used the guise that Shared Parenting laws expose children of separated families to increased risks of child neglect, child abuse or child murder, and yet the subsequent reviews of the 2006 Shared Parenting laws plus numerous other studies and research found that nothing could be further from the truth.

More on this other mis-representation often peddled by the usual suspects, in another article.

Ex-Girlfriend to Ainsworth fortune heir wants more Child Support

peter-ainsworth-alice-mcclure-and-daughter-grace

Peter and Alice with baby Grace

Peter Ainsworth may be heir to a $2 billion pokies fortune but he is paying just $125 a week in child support for his infant daughter, Grace, his ex-girlfriend claims.

Mr Ainsworth is the grandson of Aristocrat Gaming founder Len Ainsworth, and son of a multi-millionaire property investor.

Peter Ainsworth however is unemployed, as stipulated in court documents in 2012, and essentially lives off the funds provided to him on an ad-hoc basis by his parents.

According to a story on A Current Affair however, a story that was at times confusing in terms of its agenda,  Alice McClure, the ex-girlfriend and mother of Peter Ainsworth’s infant daughter, lamented that all she wanted was for Peter to visit his daughter more often.

However the vast majority of the story A Current Affair focussed on the Ainsworth family fortune, and implied that Ms McClure should be entitled to significantly more in Child Support than the amount already paid, which is apparently even more than has been determined is owed to her by the Child Support Agency.

Little other financial details were disclosed, but it has since been determined that Mr Ainsworth recently made gratuitous payments to his daughter, including $700 to buy Grace a new cot and $150 for swimming lessons.

What was also neglected in the story was the significant salary that Ms McClure herself earned, and what if any financial support she receives from the government.

It is small details like this that would have made the story on A Current Affair more balanced, as typically these matters involve much more than weekly child support payments. They also involve prior lump-sum payments, purchases or payments for housing, purchase of furniture and other goods, payments for child-specific services including medical, and even gifts or benefits from Mr Ainsworth to Ms McClure that could have put a completely different spin on the story, which as is typical for A Current Affair, was a one-sided affair.

Alice McClure, an executive personal assistant with a very high salary, said in a rare moment of candour that she has been locked in a running battle over child support for their daughter Grace.

“I used to get angry about it but now I think there is nothing I can do,” Ms McClure was quoted as saying.

She denies she was playing the role of a gold digger, claiming they fell in love over their interest in ironman triathlons.

A Senate inquiry is currently looking at ways to improve the Child Support system.

Free Legal Support under the Cloak of Hospital Care

Lawyer Linda Gyorki & Penelope Vye

Linda Gyorki & Penelope Vye

Solicitors who specialise in helping female victims of Domestic Violence have been providing free, clandestine legal support to suspected victims of family violence, in hospital settings, while they have been receiving treatment for suspicious injuries.

Lawyers working within the Royal Women’s Hospital are giving abused women discreet legal advice in an initiative that could be extended to other health centres.

The move has put doctors and the legal fraternity in partnership in the latest effort to counter Victoria’s high incidence of family violence.

It is giving women who might otherwise be too fearful to come forward access to free advice under the cloak of routine medical appointments.

Lawyer Linda Gyorki, who manages the project, said it was often difficult for women suffering chronic abuse “to go out and seek legal assistance and work out what their entitlements are”.

“Women experiencing violence might be so controlled by their partners they do not have the liberty even to Google a local legal service let alone plan a visit,” she added.

Often, such women found themselves only able to leave the house alone for antenatal appointments.

The project hopes to take advantage of that “window of opportunity” to inform the women of their legal rights, according to Dr Fleur Llewelyn, who heads the clinical side of the operation on behalf of the hospital.

Alliance between Healthcare Providers & Legal Practitioners

“The power of having this kind of alliance is that women who are not usually able to see a lawyer are able to see them when they are ‘legitimately’ onsite for a medical appointment.”

The project, titled Acting on the Warning Signs, is a joint initiative of the Women’s and Inner Melbourne Community Legal. It is the first of its kind in a major metropolitan hospital and is funded by the Legal Services Board Major Grant Program.

Launched without fanfare two years ago, the preliminary findings of an expert panel that is overseeing the project suggest it is making a difference.

The service has so far provided advice to more than 100 women, with many having had follow-up consultations.

Underpinning the strategy is research that shows that putting women into contact with lawyers can help lead to a decline in violence. Also, according to research, abused women are more likely to disclose violence to health professionals than to lawyers.

Acting on the Warning Signs of Domestic Violence

A central aspect of the project was the opening of a free legal clinic within the social work wing of the Women’s. The clinic is open three times a week, allowing women to make contact of their own accord or via referrals from anyone working within the hospital.

Penelope Vye, the hospital’s manager of social work, said social workers had always worked in tandem with lawyers, but having one on-site had made the referral process more effective.

Women are able to see a lawyer without “fear for their lives”, Ms Vye said, and could make contact before returning home and losing their “sense of empowerment”.

“A woman might want to do something and she’s fired up, but when she goes home her self-esteem takes another blow and the opportunity is lost.”

Professor Kelsey Hegarty, who heads the evaluation team, said one of the key reasons for the project’s success was the convenient location of the legal clinic.

This was helpful not just for the women but also for doctors and nurses, added Professor Hegarty, who leads the abuse and violence research program at the University of Melbourne.

“It helped health professionals start to identify that there is a legal outreach clinic right there in the hospital and that it can help these women.”

Ms Gyorki said the legal service was generalist in nature, but she had found herself talking to women mostly about family law matters.

Women Wanted Guidance on Child Support, Intervention Orders & Relocations

She said some women wanted to ask about the options for receiving child support payments should they leave a relationship. Others were seeking assistance filling out an application for an intervention order, while some with abusive partners from other countries had wanted to know how they could prevent their partners from moving their children overseas.

Ms Gyorki said that although leaving an abusive partner could be extremely difficult, bringing abused women into contact with a lawyer “means they can be provided with information which really arms them with options to be able to take that step of leaving”.

After women receive legal help they are referred back to social workers who can assist them in developing a “safety plan”, a guide to staying safe while leaving a violent relationship. They are also able to follow-up with further questions and pro bono legal advice.

“Some women just want to spend an hour with a lawyer, talk about their options and then consider what they’ve heard,” said Ms Gyorki. “But other times they might want to go to court or they might want ongoing case work assistance and we try to provide that when we can.”

The other major component of the project is a training program for doctors and health professionals that teaches them how to spot the physical and emotional warning signs of abuse and how to respond.

Statistics suggest that a full-time general practitioner could expect to see every week a woman who has been experiencing violence.

But according to Dr Llewelyn, who helped develop the training for medicos, doctors may not think to consider violence as part of the picture when they assessed patients or, even if they did suspect violence to be occurring, may not feel equipped to ask questions.

“Health professionals sometimes think talking to women about violence is not part of their role, but we know that violence against women is more of a health problem than many of the things we take for granted like cardiac disease. The training really anchors the fact that violence is a health issue.”

In fact, intimate partner violence is the leading preventable cause of death, disability and illness for Victorian women aged 15-44. In 2012-13, in Victoria alone, 45 homicides occurred in family settings.

Dr Llewelyn explained that there were many emotional and physical indicators that did not mean a woman was definitely experiencing violence but were warning signs that demanded a response.

For example, a patient could be accessing termination services repeatedly because she did not have control over her own contraception, or may be presenting to the emergency department multiple times with urinary tract infections or chronic abdominal pain.

To date, 135 staff at the Women’s had been trained to recognise signs.

The training had been given a big tick by the evaluation team, with health professionals more comfortable asking about family violence, according to Professor Hegarty, and “more confident in their skills to respond and refer, and more knowledgeable about legal options”.

Inspired by the US model of medical-legal partnerships

The project was inspired by the US model of medical-legal partnerships that has evolved over two decades and which is based on what is commonly referred to as the social model of health. It recognises that some illness is caused or exacerbated not by medical factors but by legal, social or economic ones, and can only be solved when doctors, lawyers and social workers collaborate.

The movement was founded when a Boston-based paediatrician, Barry Zuckerman, was treating repeatedly an asthmatic child who was living in mouldy accommodation. It was only when Dr Zuckerman enlisted the help of a lawyer to improve the child’s housing situation that he was able to fix the problem. There are now hundreds of examples of medical-legal partnerships throughout the US.

Professor Hegarty believes the Women’s-IMCL project could be developed further and expanded.

“You’ve got to get a large critical mass of staff trained and that needs to be recurrent and mandatory, the same as it would be in occupational health and safety,” she said.

Ms Gyorki’s team recently created a second clinic at the Royal Melbourne Hospital’s mental health outpatient facility and is looking ahead to see how the model could be introduced in other Victorian hospitals. A similar general advice service had also been introduced recently at the Alfred Hospital, which is partnering with law firm Maurice Blackburn.

As well as being funded through the Legal Services Board Major Grant Program, IMCL’s work in this area has received four years of funding from the Commonwealth Attorney General’s office, but that funding was cut in half in this year’s federal budget.

The final evaluation report on the Women’s project will be released next month.

Other Approaches to Tackling Domestic Violence

Other notable anti-domestic violence spokespeople have advocated for other approaches to tackling DV in the community..
One of the nation’s top judges has called for a separate, less ­formal tribunal to deal with family law cases involving extreme domestic violence, arguing that the current adversarial system is not the right place for women who have been badly abused. Federal Circuit Court chief judge John Pascoe said that he ­believed a new approach was also needed for cases involving serious mental illness.

“I wonder whether some sort of tribunal where there can be a ­different sort of approach that reduc­es the trauma of having to perhaps be cross-examined on really, ­really often horrific events would work better,’’ he said.

Inherent Gender Discrimination in the Domestic Violence Industry

While other DV advocates decry the decidedly discriminatory approach to domestic violence policies, whereby men as explicitly excluded from all forms of protection, while at the same time all literature seems to falsely imply that only men and insitigators of violence, while only women are victims of violence.

However, contrary to the overwhelming perception in society, numerous studies and statistics published from a variety of disparate sources have indicated that women are more likely to be verbally and physically aggressive to their partners than men, and are increasingly participating in serious acts of violence against other men, women, the elderly and children.

These recent findings were presented to a symposium on “intimate partner violence” (IPV) at the British Psychological Society’s Division of Forensic Psychology annual conference in Glasgow.

Dr Elizabeth Bates from the University of Cumbria and colleagues from the University of Central Lancashire gave 1104 students (706 women and 398 men) questionnaires about their physical aggression and controlling behaviour, towards partners and to same-sex others (including friends).

Women were revealed to be more likely to be physically aggressive to their partners, and men were more likely to be physically aggressive to their same-sex partners.

Whatever the gender composition may end up being, domestic violence is becoming a higher profile issue within Australia, and most experts agree that no one single solution would solve this insidious problem.

It would take a combination of strategies, hopefully made available to all peoples despite race, religion, sexual preference or gender, before we start seeing a reversal of this trend towards intimate partner violence as the increasingly relied upon strategy to address common day to day relationships disagreements.

Accessing justice: What the research shows

Legal professionals are only consulted for around 16% of legal problems; people often turn instead to their trusted health and welfare professionals for help on legal issues

 Inequalities or differences that are “unnecessary, avoidable, unfair or unjust” are responsible for approx 17% of the total disease burden in Australia

People often seek assistance from services with which they are already in contact and rarely from more than one source for each legal issue

In four out of five cases, people sourced their main adviser through personal resources or networks; while one-in-four people turned to trusted health and welfare advisers for help dealing with legal problems

The Australian Bureau of Statistics’ 2006 personal safety survey shows that more than one-in-three Australian women had from the age of 15 experienced physical and/or sexual violence

 A 2010 VicHealth report found intimate partner violence to be the leading preventable contributor to death, disability and illness for Victorian women aged between 15 and 44, ahead of other risk factors such as high blood pressure, smoking and obesity

Recent US studies found that legal service provision was one of three key factors contributing to a decline in violence against women by their intimate partners

Family violence significantly impacts pregnant women: between 4%-9% of pregnant women are abused during their pregnancy and/or after the birth

 An ABS survey found that 20% of women who experienced violence by a previous partner during the relationship stated that the onset of violence occurred during pregnancy

Interviews with survivors of partner abuse have shown that health professionals are the major group to whom women want to disclose violence.

A study shows that “a full-time primacy care clinician is probably seeing at least one currently abused woman each week, although she may not be presenting with obvious signs or symptoms”

The annual cost of domestic violence in Australia in 2002-03 was estimated to be $8.1 billion.

Man Loses ex-Wife’s Lotto Winnings on Appeal Due To Separate Lives

lotto-win-family-courtIn what some would call an unlucky outcome a man has lost the right to part of his former wife’s $6 million lotto winnings from five years ago.

The court battle over the cash has been dragged out over the past two years, but this month it was determined the man was not entitled to any of his ex-wife’s money.

The man has lost his legal bid for a share of his ex-wife’s $6 million lotto win after an appeal court found the ticket was bought when the pair were leading separate lives.

The man whose wife won the lottery six months after they busted up must pay her legal costs after losing a legal challenge for a cut of the booty.

The man, who was married to his wife for 20 years before they split in 2009, had mounted a challenge in the Family Court for a cut of some of the cash, claiming the money his ex-wife used to buy the ticket came from joint funds.

The man, aged in his early 60s, and his ex-wife, in her mid-50s, were married for 20 years before separating in July 2008. The wife told the court she had used money from her sister, payments from the family business, a $6000 tax refund and refunded school fees to pay for the tickets, giving her sister $1m from her $6m win. The husband argued funds from the business, which had been run primarily by him, represented a contribution to the win.

In the second round of a court battle stretching over more than two years, a three-judge bench of the Family Court this month rejected the man’s claim to a share of the spoils.

The couple, who have been given the pseudonyms of Mr and Mrs Eufrosin to protect their identities, were married for 20 years before they separated in July 2008.

Court documents reveal Mr Eufrosin’s wife had been buying lotto tickets since the 1980s with money provided by her husband, but in 2008 began a separate gambling venture with her sister, who contributed $20 a week. Hoping for a bit of “tihi” — Greek luck — Mrs Eufrosin spent $59.45 on 10 tickets in various gambling ventures and hit the jackpot.

The woman started buying weekly lotto tickets before the marriage and bought the winning ticket six months after the separation, while she was on a holiday.

She gave her sister $1 million because they had discussed sharing any win and her sister had given her money each week.

A single judge of the Family Court rejected Mr Eufrosin’s claim of a share of her million portion of the winnings in May last year.

Justice Janine Stevenson said a “significant issue” in the case was whether the husband had made any contribution to the ticket, as the wife had money from multiple sources, including her sister and funds from a family company.

“The money used by the wife to purchase the winning ticket could have come from any one of these sources or multiple combinations thereof,” Justice Stevenson said.

“In my view, the husband cannot simply assert that the purchase money came from ‘joint funds’.”

Justice Stevenson agreed with a 2011 English decision involving a lottery win, in which the Family Division of the High Court found: “The price of the ticket, one pound or two pound, is so inconsequential as can be safely disregarded.

“Arguments that the one pound or two pound derives from the joint matrimonial economy are, it can be said, pure sophistry. The money could just as easily have been found on the pavement.”

Justice Stevenson concluded that Mr Eufrosin had made “no contribution” to the money his wife used to buy the winning ticket in early 2009.

Mr Eufrosin appealed against the decision to the full bench of the Family Court.

The case case has been struck down by an appellate bench that found the couple’s separation meant the source of the money was irrelevant.

The three-judge bench – Justices Stephen Thackray, Peter Murphy and Murray Aldridge – dismissed his appeal.

“We do not consider her Honour was in error in determining that the husband did not contribute to the wife’s lottery winnings. Those winnings were not connected to the marriage,” the judges said.

“At the time the wife purchased the ticket, regardless of the source of the funds, the ‘joint endeavour’ that had been the parties’ marriage had dissolved; there was no longer a ‘common use’ of property. Rather, the parties were applying funds for their respective individual purposes.”

They ordered the husband to pay the wife’s costs.

Inquiry into Child Support Compromised by Non-Attendance

Clive Palmer Playing Truest with Child Support Inquiry

Clive Palmer skipping Inquiry

THE Abbott government has called for a parliamentary inquiry into how the child support system works, including links between it and the Family Court.

The last Coalition government, the Howard government, held a historic parliamentary inquiry into the child custody system that led to widespread changes including “shared parenting”

On 27 March 2014, the Minister for Social Services, the Hon Kevin Andrews MP, asked the Parliament to inquire into and report on the Child Support Program.

The Parliamentary Committee has since received over 11,000 contributions from the public and other interested parties has published a series of Snapshots which give an overview of the responses received. You can view the snapshots at this link.

A wide range of contributions have been made from the likes of the Commonwealth Ombudsmen, the Lone Fathers Association (Australia), the Australian Men’s Health Forum, the National Council on Single Mothers and Their Children, Relationships Australia, many academics, researchers, other experts and members of the public.

“The Child Support Program assists families at moments of great stress, and it is designed to focus on the needs and costs of children. The Committee wants to look at the way it operates to ensure that it works for all families, and to see if it is flexible and supportive enough to deal with the range of different family situations,” Chair George Christensen said in a statement.

Senator for the Palmer United Party had since asked asked to be involved in the inquiry, however records have shown that Clive Palmer has not shown up to a single meeting of the inquiry that he demanded to be involved in.

But the businessman MP – who is shaping up as the Parliament’s worst truant – could have a say in proposals to overhaul child support laws without hearing any evidence presented to the inquiry.

His blatant disregard for his parliamentary duties is beginning to upset other hardworking MPs who think he is treating his job as a political representative with contempt.

The Palmer United Party leader demanded to be represented on the child support inquiry even though he wasn’t a member of the House of Representatives Standing Committee on Social Policy and Legal Affairs that is conducting it.

He was granted a position as a “participating member” of the inquiry so he could attend meetings, question witnesses and have a say in the final recommendations.

But he has skipped all of the 13 scheduled public meetings and teleconferences and every one of the private meetings.

The final scheduled meeting was last Thursday, 2nd October 2014, although there may be one extra meeting added.

The Government chair of the child support inquiry, George Christensen, said he was worried Mr Palmer could try to have a say in the final report without any facts in front of him.

“He hasn’t turned up to one meeting, hasn’t listened to a single person who has presented before the inquiry concerned about child support matter so I’m not sure actually what he is going to contribute,” Mr Christensen told The Courier-Mail.

“Clive, being there, has a right to put in a minority report or dissenting report to try to get his foot back into the final report.

“I’m not sure if you can adequately give recommendations to put in the report when you haven’t heard anything about the topic.”

Mr Palmer did not return calls to comment on his non-attendance at the inquiry.

My Child Support: New Service to Assist in Child Support Battles

my-child-support-child-support-specialistsDads who complain they are being ripped off by their ex-wives for child support are paying former public servants to prepare and lodge their ­appeals to pay less.

Single mothers have ­attacked the practice as “stealing from children’’ despite it being legal to hire help.

While official figures confirm that one in three fathers pay just $7 a week to support their kids, business is booming for companies offering “dispute resolution’’ with the Child Support Agency.

One new entrant, My Child Support, has described the government agency that determines child support as a “dictatorship’’ and battles the bureaucrats on behalf of clients.

It boasts employing former CSA staff who know how the system works. “Life is about taking action, so draw a line in the sand and have a battle with CSA’s dictatorship,’’ the Facebook website states.

While the Abbott government has confirmed it has ­refused to deal with some agents who are not acting in the best interests of the clients or are attempting to subvert the system, no complaints have been raised to date about My Child Support.

“We hear mums are being told by CSA agency staff, ‘you should be grateful you are ­receiving anything’”

Human Services Minister Marise Payne said: “Separation is a challenging time for families. My department works hard to advise parents about the payment and support ­options available at no cost.

“If someone is not satisfied with the department’s customer service or a child support decision, there are avenues for complaints and ­reviews.”

Dr Elspeth McInnes, a former convener of the National Council of Single Mothers, said the men were stealing from children. “It’s effectively stealing from children to not pay your child support and try to minimise it,’’ she said.

“We hear mums are being told by CSA agency staff, ‘you should be grateful you are ­receiving anything’.

“They often don’t pursue smaller debts, say $2000.

“If you are struggling to keep your kids in school shoes it’s enormous.” The Commonwealth ombudsman has found that divorced fathers refuse to lodge tax returns in some cases for up to 10 years to avoid paying child support.

But angry fathers are claiming on the My Child Support’s social media accounts the CSA agency is biased against men.

My Child Support founder Chris Wellman said: “I used to work for the CSA for seven years. A lot of people end up getting financially screwed.

“Most of the staff at the CSA are kids.”

Children should get a say on Child Custody: Children’s Commissioner

megan-mitchell-childrens-commissionerChildren should get more of a say during family law battles about who they live with after their parents split, says National Children’s Commissioner Megan Mitchell.

Ms Mitchell said children’s ­voices were often not properly heard during litigation, and many independent children’s lawyers — usually funded by Legal Aid — did not even meet the children they were appointed to represent.

She told a family law conference in Sydney that many lawyers sought the views of teachers, doctors and others to try to establish what was best for the child.

“While it is very important that family law professionals focus on what they believe is best for the child and take into account any risks associated with meeting with children, there is too often a presumption that meeting with children is not in their best interest,” Ms Mitchell said. “There is significant evidence that child participation is in fact crucial for child development and wellbeing.

“There is therapeutic value in giving children an opportunity to participate in decision-making processes because it empowers them to have a greater sense of control over their own lives.”

She said excluding them from such decision-making processes, including mediation, often had negative results, with children who were left out saying they felt “cranky and upset”, “sad and bad” and “left in the dark”.

Instead, Ms Mitchell said safe and appropriate spaces were needed so children of varied ages could express their views freely.

“Children who are shielded from the family law system are usually silenced, not saved,” she said. “We must find new ways of protecting children through participation, rather than through ­exclusion.”

Federal Circuit Court judge ­Michael Baumann told the conference that judges had the power to interview children directly but in his 14 years on the bench he had never done so.

“I think the reality is that we will probably see evolving in time a greater engagement of children with judges directly … but we are going to have to talk about how we then deal with the evidence that runs from that discussion,” he said.

Judge Baumann said in ­Germany, judges got down on their hands and knees and talked to children in a playground setting, and did not have to disclose to the parties what the children had said.

He said there was also work to be done to better explain judges’ decisions to children so that even if orders were not what they wanted, they could see their views had been taken into account.

“I think kids will find that more palatable than just being given the result,” he said.

Family Court Chief Justice Diana Bryant said the international jury was “very much out” on whether it was desirable for judges to interview children ­directly.

She said the court had set up a committee to determine whether the voices of children were being appropriately heard.

Ms Mitchell said many judges lacked the training to talk directly to children, with one Australian Family Court judge telling ­researchers: “To my mind (the prospect of meeting with a child) is just about as scary as handing me a scalpel and saying ‘just a bit of brain surgery before lunch please judge’ … I’m terrified of it.”

But she said lawyers who often consulted directly with children said the best interests of the child tended to be consistent with their views.

….

Prime Minister Julia Gillard announced the appointment of Megan Mitchell as Australia’s first National Children’s Commissioner in Canberra on February 25 2013, marking a significant step in the protection of children in Australia.

Having commenced her term on March 25 2013, Megan will focus solely on the rights and interests of children, and the laws, policies and programs that impact on them.

Megan has had extensive experience in issues facing children and young people, having worked with children from all types of backgrounds, including undertaking significant work with vulnerable children. She has practical expertise in child protection, foster and kinship care, juvenile justice, children’s services, child care, disabilities, and early intervention and prevention services.

Megan’s previous roles include NSW Commissioner for Children and Young People, Executive Director of the ACT Office for Children, Youth and Family Support, Executive Director for Out-of-Home Care in the NSW Department of Community Services and CEO of the Australian Council of Social Service.

Megan also holds qualifications in social policy, psychology and education, having completed a Bachelor of Arts from the University of Sydney (1979), a Diploma of Education from the Sydney Teachers College (1980), a Master of Arts (Psychology) from the University of Sydney (1982) and a Master of Arts (Social Policy) from the University of York (1989).

Inquiry to Consider Scrutinising Child Support Spending

Greenway-MP-Michelle-Rowland-on-Child-SupportA Labor MP is pushing for the Federal Government to examine whether separated parents should be forced to provide proof of how they spend their child support payments.

Labor’s Member for Greenway in Western Sydney, Michelle Rowland, has asked a parliamentary inquiry examining the child support system, to consider whether parents should be accountable for how they spend child support money.

“Many parents feel as though their child support is going toward items which provide no direct benefit to their children rather towards expenses which help maintain their former partner’s lifestyle,” Ms Rowland said.

The MP told News Corp Australia that one of her constituents had raised the controversial issue with her, complaining he was at a loss to understand where the child support he paid was going, because his child was dressed shabbily and needed serious dental work.

“Whilst I can understand that this may be challenging from an administrative perspective, many of these parents believe that there should be some accountability whereby parents receiving child support are required to provide evidence of the way in which the funds are being expended,” she said.

“This would help to allay these concerns that their children are being neglected or not properly provided for, despite the child support that they are providing,” Ms Rowland said.

Director of the Men’s Rights Agency, Sue Price, said non-custodial fathers often raise fears their child support is not being spent on their children.

“For a lot of them it isn’t, it funds the mothers’ lifestyle, and what adds insult to injury is they don’t get to see their children — that’s the worst offence.

But Ms Price said she did not think it was wise to introduce a system where the child support agency, or another body, scrutinised what custodial parents spent their child support on.

Instead she proposed all child support payments should be limited to “a reasonable amount” akin to the support provided through the Federal Government’s Family Tax Benefits.

Social policy expert Bruce Smyth, an Associate Professor at the Australian National University, also warned against the move.

He said attempts to police how child support payments were spent could end up becoming yet another lightning rod for tensions between former partners.

“This approach runs the risk of turning parents into petty accountants,” Professor Smyth said.

“You need to be careful in giving parents more ammunition against each other because conflict gets in the way of parents getting on with the job of being a good parent and raising and enjoying their children.”

Many father’s groups have however been arguing for placing child support in trusts, to be utilised on agreed expenses such as food, clothing, schooling, healthcare and other non-contentious expenses. This they argue would provide a lot of transparency on where the money is being spent, which many fathers argue is the real cause of much post-separation tension.

Professor Smyth, who was a member of the Federal Government’s last Ministerial Taskforce on child support, said the sad reality was that for many families in the child support system there was simply not enough money to go around.

Explainer: What is Sharia law?

what-is-sharia-law?What comes to mind when you hear the words ‘Sharia law’? Terrorism?

Extremism? Perhaps if you’re Palmer United Party’s Jacqui Lambie, who recently backed a campaign to ban burqas, linking Sharia law with terrorism and calling those who adhere to the Islamic code to “get out”.

“If you are not going to show your allegiance to our law, then get out,” Ms Lambie told ABC’s Insiders.

But the Tasmanian senator was tongue-tied when asked what she understood sharia to mean.

“Well I think, um, when it comes to, um, sharia law, um, you know to me it’s um … it obviously involves terrorism. It involves a power that is not a healthy power,” she said. “It is one law for all – that is the Australian law, full stop.”

So what exactly is Sharia law? Dr Jamila Hussain, a research associate at the University of Technology Sydney told SBS, Sharia encompasses all aspects of a Muslim’s life.

“The overriding principle of Sharia is justice. It’s very broad and includes ordinary ways of life, for example how you behave towards other people.

Religious duties like prayer and fasting and giving to charity – which is very important,” she said.

“It also includes how you behave towards other people. And it includes things like commercial law, inheritance law, family law.”

Sharia is the moral, legal and religious code followed by all Muslims, but made notorious by extremist groups like Islamic State wanting to implement hardline aspects of Islamic law.

In Arabic, Sharia means “the clear, well-trodden path to water” and is based on the teachings of the Koran, the life of Prophet Mohammed, and the expertise of Islamic scholars.

Islamic scholars form this code through ‘fiqh’ or Islamic jurisprudence, which is used when interpreting Sharia. While Sharia is enshrined in the Koran and unchanging, fiqh can vary according to the situation at hand, meaning Islamic law can adapt and remain applicable to modern life.

According to Massey University’s Christopher van der Krogt, Islamic law is elaborated by scholars, often as a critique of what the rulers are doing.

“Scholars (the ulama) claim to know best what God requires because they have studied the Qur’an and the sunna, as well as the works of their predecessors.

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Naturally, they often disagree with each other on matters of detail, and there are five distinct schools of jurisprudence in the Islamic world today. Four of them are Sunni and one is Shii (Shiite).”

Sharia criminal law is divided into three broad categories: hadd, qisas, and tazir offences.

Hadd, the most serious offences, have set punishments. According to the Oxford Islamic Studies, these Hadd offences include:

  • Theft (amputation of the hand)
  • Adultery or illicit sex (death by stoning or one hundred lashes)
  • Making unproven accusations of illicit sex (eighty lashes)
  • Drinking intoxicants (eighty lashes) Apostasy (death or banishment)
  • Highway robbery (death).

Qisas involve retribution crimes against a person who has inflicted physical harm (murder, manslaughter or physical injury). The family can waive corporal punishment in exchange for financial compensation.

Tazir are severe crimes that do not measure up to the strict requirements of Hadd offences. Punishment can range from the death penalty, fines, imprisonment and caning. The decision depends on the discretion of the judge at hand.

Dr Hussain explained that while punishments do happen, they are only carried out in conservative Muslim countries, and are not representative of what Sharia law is about.

“The criminal offences mentioned in the Koran which to our way of thinking today are very cruel and outlandish,” she said. “Those punishments are not enforced anywhere except in a handful of very conservative Muslim countries… Saudi Arabia is a very good example.

“The majority of Muslim countries do not enforce that kind of criminal law at all. And nobody is calling for it in Australia.”

Western media coverage of Sharia law has generally been associated with cruelty or oppression, including a report that Indonesia’s staunchly conservative Aceh province was proposing to punish gay sex with 100 lashes.

Earlier this year, the arrest of a Sudanese Christian woman sentenced to death for apostasy made international headlines, sparking mass outrage.

“It’s what people see on the TV, it’s what people hear on the news. It’s what people read in the papers,” said University of Sydney legal academic, Dr Ghena Krayem. “If your main source of knowledge or information about Islam or about Islamic legal principles is from the media, then of course you’re not going to know how it really operates.”

Coupled with recent Islamic State terror threats and Senator Lambie’s comments, it’s easy to see why Sharia law is often linked with terrorism.

“It has nothing to do with terrorism,” Dr Hussain said. “Some terrorists have hijacked Islam in order to explain their actions or to get more popularity among Muslim populations. But they’re not acting according to Sharia or according to Islam.”

Do Australian Muslims want Sharia law to be implemented into the Australian legal system? According to Dr Krayem, that answer is a resounding no.

“The current assumption that Muslims want a separate legal system that is called ‘Sharia’ – that’s simply not true,” she told SBS.

“What might surprise most Australians is that most Muslims live according to Sharia everyday of their lives. They live harmoniously. They’re not living in defiance of the Australian law. They’re not seeking to set up a parallel legal system.”

Dr Khrayem said the idea behind the desire to accommodate Islamic principles in the Australian legal system is so the system can be culturally appropriate for people with an Islamic faith.

“In 2012, there was a Family Law Council report about: how does the Australian family law system respond to the needs of a culturally and linguistically diverse communities. That’s what it’s about.

“How does the Australian legal system best serve the needs of its citizens? And I think that’s a fair enough question to ask.

“I don’t think anyone is standing there saying we want some special preferential treatment of setting up our own legal system or accommodating our own set of laws. No, the reality is that: we’re part and parcel with a multicultural society that is Australia. And it’s necessary for the legal system to think about how it responds to the people within it.

“It’s not imposing anything external; it’s not sacrificing Australian values. Not at all.”

Dr Khrayem added that under Islam, Muslims are obligated to “abide by the law of the land.”

“One of the first obligations that Muslims feel they have upon them as Australian citizens is to abide by the law of the land,” she said.

“And in the research that I’ve completed – in speaking to many of our Imams in Australia – when asking their views about the applications of Sharia in Australia, the first thing they often tell me is that as Muslims, we abide by the law of the land.”