Big Win for One Nation as new Inquiry into Family Law Announced

pauline-hanson-family-law-act-reviewThe Turnbull government is expected to shortly commence the biggest review of the Family Law Act since it was introduced in 1976, amid pressure from Pauline Hanson to address the rights of fathers under the Act.

Questioned by Senator Hanson at a Senate committee hearing on Friday, Attorney-General George Brandis indicated the terms of reference for a review by the Australian Law Reform Commission would be released shortly, saying that the government wanted to hold the widest possible review of the workings of the Act.

While Senator Hanson has particularly focused on issues of child support, there are a range of issues facing the Family Court and its governing legislation, and government sources say the Court needs to be reformed before it, or the government, can deal with some of the issues raised by the One Nation senator.

The Court is plagued by long waiting times and staff shortages.

The government originally announced the review in the May budget, saying it would “pave the way for long-term fundamental reform to better meet the needs of modern Australian families” and would report by the end of 2018 “with interim reports to be delivered on key issues”.

The government has also already released for consultation proposed amendments to the Family Law Act to ensure that victims of family violence are not put in a position where they are personally cross-examined by alleged perpetrators, or required themselves to cross-examine their alleged perpetrator.

At an additional senate estimates hearing on Friday, Senator Hanson quizzed Senator Brandis about waiting times in family law courts, telling him she was concerned about the lengthy timeline of some cases and the stress that was placing on families.

“Of course it does,” Senator Brandis agreed, conceding her point the courts were overloaded and telling her of his desire to have more judges.

Having some judges on sick leave for up to six months also put a strain on an already stretched system.

“Senator Hanson, you are dead right in identifying this as part of the problem,” Senator Brandis said, noting her interest in the area.

“I thank you for your input into our thinking about these issues.”

Pauline Hanson’s One Nation party went to last year’s federal election with a policy of abolishing the Family Court and replacing it with a tribunal of “mainstream Australians”, though a link to the policy is no longer on its website.

The policy, however, reflects longstanding grievances among some men about child support arrangements and other issues in the court system.

She would force couples into pre-nuptial agreements outlining how they would deal with their children and assets if a relationship broke down.

“Family law is high on my agenda,” she said earlier this year. “I just think it needs a complete overhaul. It needs court-approved premarital agreements on finance and parental issues.

“So before someone goes into a relationship or a marriage, you must have a premarital agreement. It would be confidential (and lodged with courts).

“We’ve got to free up our court system. It’s overloaded. A lot of judgments aren’t being handed down for years.”

Jilted Bride Can Keep Engagement Ring, Court Rules

engagement ringJilted bride Winnie Su will keep her $15,500 diamond engagement ring in a decision likely to rock the established order.

In a controversial decision published on Caselaw NSW as Toh v Su [2017] NSWLC 10, the magistrate has brushed aside what he believes were archaic marriage laws that had not changed for more than 90 years to ensure she will keep her sparkler. This case had striking similarities to a case in the ACT last year published as Omari v Yassine (Civil Dispute) [2016] ACAT 112.

The court heard the couple met through a mutual friend in 2015. By October that year they had opened joint bank accounts and visited a jewellery store to buy a $15,500 engagement ring and two wedding bands totalling $1300.

He proposed in December and the pair “re-enacted the scene for a photographer”, Magistrate Rodney Brender said.

Days later, the couple left Australia on a trip to China and Edwin Shien Bing Toh gave his fiancée Winnie Chu Ling Su both wedding bands “so that she could show them to her parents”.
But the course of true love ended abruptly on March 5, 2016, when Mr Toh called off the engagement after three months.

“Many gifts are given in happy times and with optimism. Sometimes that optimism is borne out, sometimes it isn’t. Why would the law treat a gift of a ring between same sex couples as different? Or between couples who give a ring in anticipation of a de facto relationship starting and prospering?” the magistrate said.

At a meeting attended by his former fiancée and a friend, Mr Toh said “everything that belongs to each party will be returned to each party”, and Ms Su agreed.

She demanded back all the gifts she had given him, including the shoes on his feet, which he immediately removed and handed over, Downing Centre Local Court heard.

But Ms Su refused to hand back the engagement ring or the two wedding rings, one costing $800 for her and one costing $500 for him, which her former fiance had bought.

So Mr Toh took his would-be bride to court to get them back.

But magistrate Rodney Brender ruled the engagement ring was an unconditional gift.

Mr Brender examined English and Australian cases and concluded that because it is no longer possible to sue for breach of a promise to marry, “the gift of an engagement ring should be seen as unconditional”.

He slammed as outdated a 1926 court precedent that stated if the bride broke off the engagement, she had to return the ring but if it was the fault of the groom, she could keep it.

That rule was imposed as recently as in a 2007 case when a women threw her $15,250 diamond ring in the garbage after an engagement lasted just 10 days, the magistrate said.

“A gift of an engagement ring should now be seen like other gifts as given absolutely,” he said.

“Many gifts are given in happy times and with optimism. Sometimes that optimism is borne out, sometimes it isn’t.”

He also said Mr Toh could have kept the shoes as they were a gift.

“I think those words (take off the shoes) were said in a heightened emotional state by a woman very upset at having her engagement broken off,” Mr Brender said.

“He gave them back to her because she asked him to.

“He wanted her out of his life and was in conflict avoidance at the time.

“He did not want to see her again.”

The court heard the couple decided to get married a few months after they met in 2015.

They were engaged in the December and he showered her with a range of lavish gifts, including a diamond necklace, a Louis Vuitton handbag, a Longines watch and a Samsonite suitcase, worth about $5000.

But on March 5, 2016, Mr Toh called the marriage off.

Mr Brender found that while Ms Su could keep the engagement ring, she had to return the other two rings because they remained Mr Toh’s property­.

Eldest brother’s claim for slice of late father’s Will rejected by Court

John Barbanera dispute over father's Will

The court warned the Barbanera children about the consequences of not resolving a dispute over the will of their late father.

“The findings in this case, whatever its outcome, would be unlikely to make comfortable reading for any of them or for any of their acquaintances,” according to NSW Supreme Court judge Michael Slattery.

However, the three siblings could not co-operate to prevent the public airing of their acrimonious family history.

Peter took his siblings Nancy and Peter to court after he was left out of his father’s will. He sought up to $300,000 from his father Antonio’s estate, which included a house worth more than $2 million and $50,000 cash.

Antonio Barbanera attached to two of his wills a detailed explanation of why he had excluded his oldest son.

“While living at the family home at Haberfield, he was constantly abusive towards me, my wife and his siblings,” he wrote. “He was often physically violent towards his siblings, beating each of them on a number of occasions.”

In deciding he was not entitled to a portion of his father’s estate, Justice Slattery found John’s relationship with his parents was “extremely turbulent and volatile” and was characterised by abuse, threats and intimidation.

The judge said John behaved in a controlling manner towards his siblings, detailing an incident involving his deceased sister Angela Barbanera.

“I accept that on one occasion in 1983 when John discovered that Angela had a boyfriend, John became enraged and punched Angela very hard in the face, causing her to fall to the kitchen floor with her face heavily bleeding,” the judge said. “He then stepped on her and kicked her while she lay motionless on the floor.”

On another occasion, John chased Angela with a firearm, threatening to kill her, after she ended a relationship with one of his friends.

Justice Slattery said the three siblings’ evidence “was profoundly distorted by their personal prejudices”.

The judge criticised John’s obsession with Nancy’s romantic life as a teenager, and his claim that she had an affair with a married man.

“He demonstrated an unshakeable sense of entitlement to judge the private life of his female siblings that was difficult to comprehend,” he said.

The judge was also critical of Nancy, who he said displayed “profound revulsion” and an “uncontrollable courtroom abhorrence” of John.

“At one point in her testimony, Nancy turned to John in the court room, ignoring both counsel and the court, and delivered an obscene and vitriolic rant directly towards John,” he said. “She accused him of many things, but in substance of ruining her life.”

Justice Slattery said Peter nursed a “powerful resentment” against John based on their childhood and a falling out over business that involved Peter attempting to hit his brother with a crowbar.

The judge said Nancy and Peter tried to keep John away from their dying mother. They also humiliated John and his wife Pina Barbanera at their mother’s funeral by hiring security guards to watch him.

“The other major act of humiliation was the complete deletion of John’s name from mention at the funeral,” Justice Slattery said. “So effective was this that I accept Pina’s evidence that after the ceremony, the priest conducting Maria’s Requiem Mass approached John and her to apologise.”

But Justice Slattery rejected John’s claim for family provision because of his “comfortable” financial position of more than $5 million as well as his “capacity and a propensity to work” despite health issues. Other family members, in contrast, had “real and oppressing financial concerns”, he said.

The judge also pointed to the “tumultuous family history”, describing John as “the prime aggressive mover in creating family chaos and disharmony over the years”.

Prue Vines, a professor in the University of NSW Faculty of Law, said John’s history of violence did not necessarily mean he should be cut out of his father’s will.

“In this jurisdiction the testator is supposed to be wise and just, and sometimes forgiving as well,” she said. “It is the combination of the violence, unwillingness to end the estrangement along with the fact that he was clearly the best-off sibling that meant there was no evidence that he had been inadequately provided for.”

Professor Vines added: “This is an extreme case of a family’s dirty laundry being exposed. It is extremely sad.”

Phillip McGowan, the director of De Groots wills and estate lawyers, said taking a will dispute to court can be highly emotional and is usually expensive.

“While a legal resolution may be obtained, this is often at the expense of personal or family ties or emotional wellbeing,” he said.