Federal Mags Court backlog could mean no more Brisbane trial dates until 2013

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Family law clients be warned – if you believe that you can obtain a prompt resolution of your matter by taking it to trial, rather than first exploring all alternative dispute resolution (“ADR”) options, then you could be in for a shock.

One Federal Magistrate recently advised, in open court, that his trial calendar for 2012 was full and he was already allocating trial dates for 2013. And the workload placed on all Federal Magistrates in Brisbane could well be similar – some Magistrates have been known to be hearing up to 35 matters (case reviews, interlocutory applications, etc) in a day. If such workloads are the norm, even when a Magistrate finally is able to conduct a trial of your case, how long will it then take to find the time to write the judgment in that case?

To reduce the stress on the Federal Magistrates Court system, we believe some Magistrates are calling for more resources to be put into the Brisbane Registry. Even if those calls are accepted by government, how long will it take for the necessary resources to be put in place, and then how long will it take to clear the backlog of cases in the current bottleneck? In the meantime, the delay for litigants would continue.

For clients to avoid the stress and other hardships of disruption to their attempts to finalise their family law litigation, they are strongly encouraged to consider all ADR options, such as informal conferences or mediation, to resolve their cases. If they insist on “their day in court”, they could be waiting for years, rather than months, to see the end of their litigation.

Father denied time with child: Court reminds us that the paramount consideration is the child’s best interests

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Recent media reports claim ‘shared care dead’ after the Full Court of the Family Court upheld a decision of His Honour Federal Magistrate Wilson.

The decision made no provision for the father to spend time with the child of the marriage. However, a close reading of the appeal decision makes it clear that there was only one victim in this matter: the young child of this relationship. But “Sometimes in parenting cases it is often between alternatives, both of which are less than optimal” (Federal Magistrate Wilson).

The child and her mother were locked out of the family home by the father sometime in February 2007. What follows is a lengthy and litigious family law dispute about the welfare of this child.

The facts reveal that there are two parents who have both, at times, acted inappropriately and not in their daughter’s best interests.

The father sought court orders to see his daughter a few times a week and on school holidays. Father and child were seeing each other up until such time as the father had the daughter examined at a local hospital alleging that the mother’s new partner had sexually abused her. As the Federal Magistrate described, this had a ‘cataclysmic effect’ on the course of the matter. As a result of the allegation, the mother commenced withholding the child from her father. The father responded by commencing a string of contravention applications against the mother for not complying with the court orders. Matters between the parents could not be resolved and a trial was commenced and abandoned a couple of times.

The Department of Child Safety investigated the abuse allegations and His Honour determined that the child had not been abused. Despite this finding, the father continued to believe the child was being abused and took her to counselling on one of his few visits. On this occasion, the child made further disclosures of abuse, this time against her own father. These events caused the department to take out a child protection order. The department wanted to institute supervised time between the father and child, but the mother was so upset at the prospect, she fled. Visits were eventually resumed after the mother was threatened with arrest, but the child said she didn’t want to spend time with the father.

The crux of this dispute was the father wanting access to his daughter. He did not seek orders that she live with him, but he did want to be involved in his daughter’s life. The dispute became protracted and insurmountable when the mother refused to allow the access and to foster any relationship between the father and the child. This resulted in a child caught in the middle of a fight between her parents and being potentially subject to emotional and other forms of psychological abuse from each parent.

As is often the case with contentious children’s cases, a lawyer was appointed to represent the child and experts such as a psychiatrist and a family consultant provided reports to assist the court. The children’s lawyer supported the father in spending time with the child, and that every effort should be made to make the mother comply with an order to that effect.

The decision made by the Magistrate was a most unusual one, made all the more difficult by the evidence that showed the child had a close and loving relationship with her father. Despite this bond, no expert recommended that the child should live with the father. That would only upset the balance of what the child had always known, that is to live with her mother, who was, and had always been, her primary carer.

The Family Law Act 1975 provides a ‘pathway’ to making decisions that are in a child’s best interests. Section 60CC sets out criteria for such interests, which are then applied to the questions of whether parents should spend equal time or substantial and significant time with a child; and finally whether those arrangements are practicable.

The objective of the Act is that it is beneficial for a child to have a close and loving relationship with both parents. However, each case must turn on its own facts and this is one such exception.

Federal Magistrate Wilson ruled, in a 90 page judgment, that the child should live with the mother and the mother be solely responsible for her. No provision was made for the father to spend time with the child. In the end His Honour was called to weigh up the facts and make a decision about what would ultimately be in this child’s best interests.

It is prudent to quote His Honour in full:

I have wrestled with devising some form of order that would see the child spend time with her father on a periodic basis, with changeovers occurring at some neutral place such as a contact centre. However, I conclude that such a regime would not work and in fact would inflict further emotional harm on the child. I reach that conclusion also cognisant of the fact that if the mother defies such orders, as she has stated she will do, the option of changing the child’s residential parent is not a viable one. I have reached that conclusion because interim orders have been made on a fairly regular basis over the past almost three years and they have proved troublesome. Whenever one parent has the opportunity of criticising the other they do so and have run to the court for assistance. Most recently, the mother has demonstrated most emphatically that she was not supportive of the child having any relationship with her father. If orders were made that compel the mother to deliver the child to a contact centre to spend time with the father either on a supervised or unsupervised basis, I am convinced that the child would not attend such visits as has happened on repeated occasions during the past six or seven months.

More importantly he goes on to say:

I am cognisant that the termination of a child’s relationship with one of her parents is a course of last resort. This outcome is neither satisfying to the court nor edifying of either party. However, when the child’s best interests are the focus, rather than the expectations or hopes of either parent, the conclusion reached is inevitable. It may be thought that the result arrived at demonstrates either an acceptance of the mother’s position or a surrender to her unreasonable refusal to permit a relationship between the child and her father. Neither of those conclusions is correct. Once it is accepted, as I do, that it is not in the child’s best interests to live primarily with her father; and that because of the antipathy between the parents any form of shared parenting would expose the child to further emotional abuse, the court is really left with no alternative but to make the orders that I propose. The orders should not be seen as any vindication of the mother’s actions.

The father’s challenge to the decision on appeal to the Full Court of the Family Court was dismissed.

This was never a shared parenting case. The father did not seek such an order (he did briefly during the trial, but later abandoned the idea). Despite many interest groups in the community wishing the amendments to the Family Law Act would peel away the prospect (or scope) of shared care, it remains an issue unless the presumption of shared parental responsibility is rebutted and the circumstances warrant a different care arrangement.

Parents in the family court system should not look at this decision as a win for either parent. The court will continue to shun parents who alienate and ostracise relationships with the other parent. Think of the best interests of the child and determine your actions based on this guiding principle.

For further information or family law advice contact family@whd.com.au or call 07 3232 5700.

Stronger laws to deal with international child abduction

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The Government is set to introduce new measures to strengthen Australia’s laws that deal with international child abduction. Below is an extract of the official joint media release issued by the Attorney General Hon. Robert McClelland MP and Minister for Families, Housing, Community Services and Indigenous Affairs Hon. Jenny Macklin MP, which explains the measures in further detail.

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Attorney-General Robert McClelland said the package of measures will include new criminal offences under the Family Law Act, extending the coverage of existing offences, allowing the family law courts to stop child support payments for parents who have abducted their child overseas and new information gathering powers for courts to locate children abducted from Australia.

“On average, two to three children are wrongfully removed from Australia or retained in another country every week by one of their parents,” said Mr McClelland.

“Being forced to go through the experience of having your child taken away to another country is unimaginable for any parent. Australia is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, which provides a strong mechanism for lawfully seeking the return of abducted children.

“We are proposing these measures to ensure our laws remain as effective as possible to maximise the prospect of the safe return of children who are abducted by a parent and taken overseas.

“We want to strengthen the laws to stop children being abducted in the first place, improve the mechanisms to locate a child overseas and remove barriers so the child can be returned to Australia.”

The proposed changes announced today are based on advice provided to the Government by the Family Law Council. The package includes:

  • Allowing the Family Law Courts to suspend child support payments for parents who abduct their children overseas to both Hague and non-Hague signatory countries, where they are satisfied it is in the best interests of the child;
  • New criminal offences under the Family Law Act to include the wrongful retention of a child overseas with a maximum penalty of three years imprisonment (currently it is only an offence to remove a child overseas);
  • Extending the coverage of the offences to include where a parent attends, or has been invited to attend, family dispute resolution, as well as if an application for   parenting orders has been filed with the family law courts;
  • Removing potential barriers for foreign courts to order the return of children to Australia by providing the Commonwealth Director of Public Prosecutions with the ability to give an undertaking that prosecution will not be pursued if a child is returned to Australia;
  • Greater powers for the Australian Family Law Courts to require individuals or entities to provide information to the Commonwealth Central Authority (CCA) to assist in locating children wrongfully removed from or retained outside Australia; and
  • Adding defences to the offences including fleeing from violence and protecting children from imminent harm.

“It’s very distressing that any child is wrongfully removed to or wrongfully retained in another country,” Mr McClelland said.

“The abduction of children can have a severe emotional, psychological and financial impact for children and left-behind parents.”

The Minister for Families, Housing, Community Services and Indigenous Affairs Jenny Macklin said under the proposed changes, courts will be able to suspend the payment of maintenance or child support by a parent that’s left behind.

“Child support should always be paid in the best interest of the child,” Ms Macklin said.

Generally this is regardless of parents’ access arrangements. But unlike domestic matters, when children are wrongfully removed from or retained outside Australia, the left behind parent is unable to effectively access the Australian legal system or have the Australian courts appropriately determine issues of care and protection for their children.

“We believe that the family law courts are best placed to make a decision about whether suspending child support is in the best interests of a child who has been wrongfully removed,” Ms Macklin said.

Consistent with the recommendations of the Family Law Council, a range of exceptions will apply to the discretion of the Courts to suspend child support:

  • Where the person applying to the Family Law Courts was not actually exercising rights of custody to the child at the time of the child’s removal from or retention outside Australia;
  • Where the person applying consented or subsequently acquiesced to the child being removed from or retained outside Australia.

The Court should also have regard to whether the taking parent was fleeing from violence, whether the child objects to returning to Australia, and the best interests of the child.

Draft legislation to implement this change in policy is expected to be ready by the end of this year to be introduced in Parliament in the first half of 2012.

The Government will also consider the recommendations of the Senate Committee on legal and Constitutional Affairs, which is inquiring into the issue of international child abduction.

Need advice?

If you or someone you know needs advice relating to international child abduction or any other family law matter, contact our specialist family law team on +61 7 3232 5700 or email family@whd.com.au

Four expensive mistakes made by people using DIY Will Kits

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Your Will is possibly the most important legal document you will ever make. Despite the importance of this document, many people attempt to create a valid Will using a DIY Will Kit.

The drafting of a Will requires a specific set of legal skills and is often a complex task.  As a result, there are many risks involved when using DIY Will Kits and the disadvantages clearly outweigh the tempting prospect of an initial saving on legal costs.

In fact, your Estate may be required to spend considerably more in legal fees to achieve the outcome you desired. Even costly litigation cannot guarantee that mistakes will be corrected and your last wishes may never be respected.

Mistake Number 1: Non-awareness of Legal Issues

The first error many people make when using DIY Will Kits is a failure to consider the legal issues relevant to their personal situation. Some legal issues that need to be considered are:

  1. The adequate provision for spouse and/or children with consideration of any potential claims from ex-partners or stepchildren;
  2. A proper understanding of how superannuation, corporate and trust structures, and taxation implications will impact on your estate; and
  3. An alternative distribution plan if any or all of your bequests fail.

DIY Will Kits are standard forms by nature and fail to consider your individual circumstances. By engaging a solicitor you can ensure that you are provided with accurate legal advice regarding the various options available to you.

Mistake Number 2: Incorrect Drafting

Many people complete DIY Will Kits with the best intentions, however, through lack of technical knowledge, they can use ambiguous or incorrect wording. As a result, the Executors of the Will may be forced to make an application to the Court to determine the true meaning or effect of the wording of the terms of the Will.

Other Will makers fail to understand the terminology or instructions set out in a Will Kit. In addition to incurring significant legal costs, Executors are burdened with unwelcome and stressful Court proceedings. This substantial cost and delay in administering an
Estate can be avoided by consulting a Wills and Estates solicitor who is are experienced in drafting Will clauses with maximum certainty to ensure your wishes are carried out.

Mistake Number 3: Incorrect Execution

Incorrect execution of a Will creates a legal problem which may result in a costly application to the court.

Case Study # 1

Often, people sign DIY Will Kits using different pens.  For example, in one case, an elderly man, Mr Vogele, completed a DIY Will Kit using correct wording, however, parts of the Will were written in two different types of ink. Notwithstanding the use of two different types of ink, as the Will was also unwitnessed and unsigned, the Court refused to uphold the validity of the Will. The Court decided that it had not been convinced that Mr Vogele intended the drafted document to take effect as his Will.

Case Study # 2

In another case, a man asked his de facto partner to complete a DIY Will Kit in accordance with his verbal instructions.  He was a man who was particular about the use of pens.

While his partner was completing the DIY Will Kit, the man complained about the pen she was using.  Each time he complained, his partner would get another pen and return to continue completing the DIY Will Kit.  The end result was that four pens were used to complete the DIY Will Kit and this cast doubt on the validity of the Will.

Many Will makers fail to correctly execute their Will by not signing in the presence of two or more witnesses. This legal formality requires the Will maker to sign in the presence
of two witnesses who are present at the same time.

Case Study # 3

In a third case, the Will maker drafted what appeared to be a valid Will. However, the Court noted that although the Will had been correctly drafted, signed and dated by the Will maker, it did not satisfy the requirements of the Succession Act (Qld) 1981, in that it was not witnessed. Luckily, in this case, the Court was able to give effect to the document based on strong evidence that satisfied the Court that the document embodied the Will maker’s testamentary intentions and that he intended the document to form his Will. The legal costs incurred by having the Court determine the validity of the document may have been avoided had the Will maker consulted a Wills and Estates solicitor.

These practices breach the strict legal formalities which must be adhered to and may result in a costly application to the Court.

Mistake Number 4: Incorrect Witnesses

A Court may determine that a gift in a Will is invalid if one of the witnesses is the beneficiary of the gift, or related to a beneficiary of that gift.

Case Study # 1

In the first case, the Will maker, Mr Jackson, asked his de facto spouse to witness his Will. The Court noted that the de facto spouse was both a beneficiary and a witness to the Will. According to the Succession Act (Qld) 1981, where a beneficiary is a witness to the Will, the gift to that beneficiary is void. The Court ordered that Mr Jackson’s intended gift to his de facto spouse failed due to a simple error in witnessing.

Case Study # 2

In a similar case, the Will maker purchased a Will Kit which provided instructions as to who can and cannot witness the Will. However, the Court held that the instructions were
‘dangerous’ as they failed to inform the Will maker that a gift may fail ‘where the spouse of a person to whom the gift is made is an attesting witness.’

The instructions of the DIY Will Kit were followed and the Will was witnessed by the husband of an intended beneficiary, who was to share equally in the Estate with surviving siblings. As a result of this oversight, the intended beneficiary was forced to commence costly legal proceedings to have the Court determine the validity of the gift.
The intended beneficiary was also ordered to pay the Executors’ legal costs out of her share of the Estate on an indemnity basis.

Conclusion

In order to avoid the many pitfalls of DIY Will Kits, it is vital that you consult a Wills and Estates solicitor when creating your Will. This can ensure that you receive important Estate planning advice and your wishes are recorded in a manner that is legally binding. To enquire about any of the above information, contact Loan Chow on (07) 3232 5719 or loanc@whd.com.au.

Court rules child should not spend two week block with father

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This week we look at a decision of the Family Court which determined that it is not in the best interests of a four-year-old to spend a two week block with each parent.

His Honour Justice Forrest accepted the view of the expert, Dr Keith Sedgman, that a two week block period of time was too long for  such a young child to be away from his mother who was deemed to be his primary carer.

He said that such a long period of separation from the parent with whom the child is principally or primarily attached still at this young age is somewhat concerning in respect of the ongoing emotional development of this child, particularly as he approaches the commencement of school.

The father worked away from Brisbane on a two week on/two week off roster.  The father wanted the child to live with him for the entirety of the time the father was in Brisbane.  This arrangement had in fact been operating for over twelve months prior to the matter being judicially determined.  The mother sought orders that the child should be returned to her for a two to three day period in the middle of the time the child spent with the father.  The expert agreed and the court ordered there was no likely detriment to the child being returned to the mother for two days during the time he spent with his father.

It is important to remember that each case will turn on its own facts and in other instances with different circumstances it might be appropriate for such an arrangement to be made.

If you require legal advice or representation for a family law issue, please feel free to contact us on family@whd.com.au or visit our website.

Family Court rules on child’s name

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Welcome to the first edition of The Family Law Blog, where we will discuss issues and offer useful information on issues affecting your family, including family law, parenting, divorce, binding financial agreements, property settlements, wills and estate planning.

This first issue discusses the interesting case heard by the Family Court in Queensland where it was forced to rule on a child’s name.

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The Family Court has recently been forced to determine the  name of a small child after the parents failed to agree.  The child, now aged two years, is known by a different name in each respective parent’s household.

In a judgement handed down by newly appointed Justice Colin Forrest in June 2011, he was required to decide the child’s name to allow her birth to be formally recorded with the Queensland Registry of Births, Deaths and Marriages.  His Honour said that
‘in all the circumstances, the child should be known by the name preferred by the mother alone, as the mother was the one caring for the child single handedly at birth and who has done so, principally, ever since and decided on reasonable reflection to name her that at birth for what, His Honour accepted, were clearly good enough reasons.  The mother named the child after considering and clearly rejecting the name the father preferred’.  His Honour went on to say, the child is now generally known to the world by the name chosen by the mother except for the time she spends in the father’s household.

It was acknowledged that whilst the father may continue to call the child by her preferred name, the child would for all other purposes, be formally known by her registered name.

If you require legal advice or representation for a family law issue, please feel free to contact us on family@whd.com.au or visit our website.