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<channel>
	<title>The Family Matters Blog</title>
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	<link>http://www.whd.com.au/familymattersblog</link>
	<description>The go-to blog for all legal issues related to your family</description>
	<lastBuildDate>Thu, 17 May 2012 02:06:15 +0000</lastBuildDate>
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		<title>Four girls ordered to return to Italy: The international child abduction case continues</title>
		<link>http://www.whd.com.au/familymattersblog/2012/05/17/four-girls-ordered-to-return-to-italy-the-international-child-abduction-case-continues/</link>
		<comments>http://www.whd.com.au/familymattersblog/2012/05/17/four-girls-ordered-to-return-to-italy-the-international-child-abduction-case-continues/#comments</comments>
		<pubDate>Thu, 17 May 2012 02:06:15 +0000</pubDate>
		<dc:creator>Queensland Law Blog</dc:creator>
				<category><![CDATA[Children]]></category>
		<category><![CDATA[Parenting]]></category>
		<category><![CDATA[children ordered to return to Italy]]></category>
		<category><![CDATA[four girls ordered to return to Italy]]></category>
		<category><![CDATA[international child abduction]]></category>

		<guid isPermaLink="false">http://www.whd.com.au/familymattersblog/?p=140</guid>
		<description><![CDATA[There has been an enormous amount of media attention recently devoted to the case involving four young girls who have been ordered to return to Italy by the Family Court of Australia. The order was made under the 1980 Hague &#8230; <a href="http://www.whd.com.au/familymattersblog/2012/05/17/four-girls-ordered-to-return-to-italy-the-international-child-abduction-case-continues/">Continue reading <span class="meta-nav">&#8594;</span></a>]]></description>
			<content:encoded><![CDATA[<p>There has been an enormous amount of media attention recently devoted to the case involving four young girls who have been ordered to return to Italy by the Family Court of Australia. The order was made under the <em>1980 Hague Convention on the Civil Aspects of International Child Abduction</em>, of which both Australia and Italy are signatories. The treaty is designed to make the return of internationally abducted children as swift as possible, but only if the return does not put the children in grave risk. The treaty states that it “seeks to protect children from the harmful effects of abduction and retention across international boundaries by providing a procedure to bring about their prompt return”. The treaty is therefore intended to protect any child custody arrangements that have already been determined in the country from which the children have been abducted.</p>
<p><strong>The Case in Question</strong></p>
<p>The mother of the children, who was unrepresented at the trial, argued four reasons as to why they should not be returned to Italy; she said:</p>
<ol>
<li>The removal to Australia was not in breach of the father rights of custody of the children;</li>
<li>At the time the children were brought to Australia, the father was not actually exercising any rights of custody;</li>
<li>The father had consented to the children being brought to Australia and that he consented to them being retained permanently in Australia; and</li>
<li>The father agreed to the children living permanently in Australia. This last point was the only point which was able to be heard on appeal.</li>
</ol>
<p>The mother further argued that even if the court found that there had been an unlawful removal of the children from Australia, she said that:</p>
<ol>
<li>There would be a grave physical risk to the children if they were returned to Italy in that they would be exposed to physical and psychological harm;</li>
<li>The children object to being returned to Italy and that they show a strength of feeling beyond the mere expression of a preference and that their maturity is such that their views should be taken into account; and</li>
<li>The children had now settled in Australia and their environment.</li>
</ol>
<p>The burden of proof was on the mother to prove that the father was abusive to the children, that the children’s wish to stay in the country was more than a mere expression. At trial, His Honour, Justice Colin Forrest found that the mother failed on all grounds of her arguments and ordered that the children return to Italy either with or without the mother.</p>
<p>It is important to note that the children have not been ordered into the care of the father, but rather back to the jurisdiction from where they came, in order for the dispute to be determined there. The mother is at liberty to travel with the children and for the children to continue to reside with her whilst the matter is determined in Italy.</p>
<p>On appeal heard in September 2011, the mother argued that the father consented to the children being removed from Italy on a permanent basis to Australia. It was clear to the court that there was no such consent. The mother had in fact told the father that she was only going to Australia for a one month holiday and showed the father the return air tickets.</p>
<p>The mother’s appeal was ultimately dismissed on 9 March 2012 and the children were ordered to leave the country on Monday 14 March.</p>
<p>The mother has called for the Prime Minister and other members of parliament to intervene, however the PM’s office has indicated that there will be no intervention by the government. The mother can seek leave to appeal to the High Court but that would only be granted if the mother can show that there has been an error in law.</p>
<p>As it has subsequently been reported in the media, the children have now been removed from their school and have disappeared with their great-grandmother. A warrant has now been issued for the return of the children and the State and Federal Police are now looking for them.</p>
<p>The children have missed their deadline for returning to Italy and did not appear at Brisbane airport to board the flight to Italy.</p>
<p>The media has been handed four letters by each of the children which have been published in the newspapers.</p>
<p>In a separate action, the oldest of the four children has retained her own legal counsel and has won a stay of the order concerning her until an application can be heard.</p>
<p><strong>The Convention</strong></p>
<p>Thankfully, these sorts of cases are few in number; require specialised knowledge, and are expensive and complex in nature due to the fact that they intrinsically cross several jurisdictions.</p>
<p>What can be seen from this case however is the underlying principle of the convention that the children have been ordered to be returned to a jurisdiction and not to a particular parent.</p>
<p>In this case, the mother could bring an action in Italy for orders that she be allowed to relocate with the children to Australia. In that way, the issues will be determined in the proper jurisdiction.</p>
<p>Fortunately, this is a case where both countries are signatories to the <em>Hague Convention on the Civil Aspects of International Child Abduction; </em>however <em>w</em>here abductions to non-convention countries have taken place, there is little hope of resolution and few, if any, means of legal remedy for family members to maintain some measure of contact with the children. There lies the limited effectiveness of the Convention.</p>
<p>Clearly therefore, the Convention has been effective in putting in place a legal structure in which disputes can be determined. This is, of course, preferable to what exists outside of the Convention. However the legal structure should not be seen as an overall resolution but instead as just one part of a much larger framework needed to support these families.</p>
<p><strong>Conclusion </strong></p>
<p>If your child has been abducted from Australia, you must act immediately and obtain legal advice. Failure to act within a reasonable timeframe could mean that you lose your right to have your child returned to Australia, or that it is considerably more difficult to make sure your child is returned.</p>
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		<title>Dutch sperm donor fathers 82 children. But what about child support?</title>
		<link>http://www.whd.com.au/familymattersblog/2012/04/18/dutch-sperm-donor-fathers-82-children-but-what-about-child-support/</link>
		<comments>http://www.whd.com.au/familymattersblog/2012/04/18/dutch-sperm-donor-fathers-82-children-but-what-about-child-support/#comments</comments>
		<pubDate>Wed, 18 Apr 2012 06:45:28 +0000</pubDate>
		<dc:creator>Queensland Law Blog</dc:creator>
				<category><![CDATA[Children]]></category>
		<category><![CDATA[Donors & Surrogates]]></category>
		<category><![CDATA[child support]]></category>
		<category><![CDATA[child support obligations]]></category>
		<category><![CDATA[Dutch sperm donor]]></category>
		<category><![CDATA[Ed Houben]]></category>
		<category><![CDATA[sperm donation]]></category>
		<category><![CDATA[sperm donor]]></category>

		<guid isPermaLink="false">http://www.whd.com.au/familymattersblog/?p=112</guid>
		<description><![CDATA[Ed Houben, a 42 year old Dutchman, is the father of 82 children, however doesn’t pay a cent in child support. If there is no husband in the picture, sperm donors are considered the parent under the Family Law Act &#8230; <a href="http://www.whd.com.au/familymattersblog/2012/04/18/dutch-sperm-donor-fathers-82-children-but-what-about-child-support/">Continue reading <span class="meta-nav">&#8594;</span></a>]]></description>
			<content:encoded><![CDATA[<p>Ed Houben, a 42 year old Dutchman, is the father of 82 children, however doesn’t pay a cent in child support.</p>
<div class="mceTemp">
<p id="attachment_113" class="wp-caption alignleft" style="width: 160px;"><a href="http://www.whd.com.au/familymattersblog/wp-content/uploads/2012/04/lots-o-babes.jpg"><img class="size-thumbnail wp-image-113" title="babies" src="http://www.whd.com.au/familymattersblog/wp-content/uploads/2012/04/lots-o-babes-150x150.jpg" alt="" width="150" height="150" /></a>If there is no husband in the picture, sperm donors are considered the parent under the Family Law Act and have a duty to maintain the child.</p>
<p>Mr Houben initially donated to sperm banks to father children, but then started helping women conceive naturally by engaging in a sexual relationship with them. Due to his high sperm count, Mr Houben is sought after all over the Netherlands and often travels abroad to meet potential mothers, but will only assist in the conception if he feels “well with them if I were their child”. Additionally, the hopeful mothers have to pay for his travel expenses.</p>
</div>
<p>Mr Houben avoids paying child support by having all the women he sleeps with sign a contract that waives their legal right to it. Whether this would hold up if challenged by one of the mothers is questionable.</p>
<p>This story engages a complex legal area of the rights and obligations of sperm donors. In Australia, the parents of a child have a duty to maintain the child, and in situations where the parents are not together, this generally involves child support. Under the <em>Child Support (Assessment) Act</em>, a person is  the parent of a child if they satisfy one of many situations listed under the Act, one being the presence of their name on the birth certificate. If Mr Houben is listed on any of the children’s birth certificates, in Australia, there would be a prima facie obligation on him to pay child support.</p>
<p>Under the <em>Family Law Act</em>, a child born as a result of artificial conception is given specific consideration as to who their parent is under the law. However, Mr Houben is not simply providing genetic material for an artificial process; he is helping conceive the child naturally which would implicate him as the legal father if he were in Australia. Even if he were not listed on the birth certificate, there is a consideration under the <em>Child Support (Assessment) Act</em> that considers people who have cohabited with the mother for a certain period surrounding the child’s birth as a parent of the child.</p>
<p>If Mr Houben were simply providing genetic material as he was initially, under Australian law he may still be the legal father of the child depending on other circumstances. For example, if a woman and a man are married and cannot conceive naturally, and they turn to artificial means, the child is considered the child of the mother and the other intended parent, her husband, and anyone who provided genetic material is not the parent. However if there is no husband in the picture, the sperm donor is considered the parent under the <em>Family Law Act</em> and so has a duty to maintain the child. Obviously there are some issues as sperm donors are often anonymous.</p>
<p>There are also problems if the situation is reversed, and a sperm donor wishes to have a relationship with their child as in some circumstances they may not be considered the legal parent of the child. In August last year, a lesbian couple were successful in having the biological father’s name taken off the child’s birth certificate in place of the mother’s ex-partner despite the fact that the child and father had an emotional attachment and meaningful relationship.</p>
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		<title>New legislation to make forced marriage a criminal offence</title>
		<link>http://www.whd.com.au/familymattersblog/2012/04/05/new-legislation-to-make-forced-marriage-a-criminal-offence/</link>
		<comments>http://www.whd.com.au/familymattersblog/2012/04/05/new-legislation-to-make-forced-marriage-a-criminal-offence/#comments</comments>
		<pubDate>Thu, 05 Apr 2012 03:36:11 +0000</pubDate>
		<dc:creator>Queensland Law Blog</dc:creator>
				<category><![CDATA[Marriage]]></category>
		<category><![CDATA[consent to marriage]]></category>
		<category><![CDATA[forced marriage]]></category>
		<category><![CDATA[forced marriage a criminal offence]]></category>
		<category><![CDATA[forced marriage protection order]]></category>
		<category><![CDATA[people trafficking]]></category>
		<category><![CDATA[servile marriages]]></category>
		<category><![CDATA[slavery]]></category>

		<guid isPermaLink="false">http://www.whd.com.au/familymattersblog/?p=99</guid>
		<description><![CDATA[New legislation in Australia will provide more protection for the victims of forced marriage It may come as a surprise to many that forced marriages are occurring in Australia with an estimated 50 cases per year. The Australian government has &#8230; <a href="http://www.whd.com.au/familymattersblog/2012/04/05/new-legislation-to-make-forced-marriage-a-criminal-offence/">Continue reading <span class="meta-nav">&#8594;</span></a>]]></description>
			<content:encoded><![CDATA[<div class="mceTemp">
<p id="attachment_103" class="wp-caption alignleft" style="width: 160px;"><a href="http://www.whd.com.au/familymattersblog/wp-content/uploads/2012/04/wedding_rings.jpg"><img class="size-thumbnail wp-image-103" title="wedding_rings" src="http://www.whd.com.au/familymattersblog/wp-content/uploads/2012/04/wedding_rings-150x150.jpg" alt="" width="150" height="150" /></a>New legislation in Australia will provide more protection for the victims of forced marriage</p>
<p>It may come as a surprise to many that forced marriages are occurring in Australia with an estimated 50 cases per year. The Australian government has reacted with plans to follow a number of other nations in introducing specific legislation to make the offence a crime.</p>
</div>
<p>Currently, there are avenues under Australian law to prosecute instigators of a forced marriage such as slavery and people trafficking offences under the Criminal Code, as well as offences relating to consent under the Marriage Act. However these laws do not fully address the practices involved in forced marriage. The difference that the legislation would make is to include circumstances where the victim gives consent but only as a result of the threat of violence, both physical and other.</p>
<p>Additionally, it would make it an offence for any individual who knew or were reckless to the fact that the victim had not given full and free consent to the marriage. This would likely include extended family members as well as religious officials performing the marriage. The legislation would also apply to forced marriages that occur within Australia, as well as those that are performed outside of Australia against an Australian citizen.</p>
<p>Many forced marriages occur outside of Australia against Australian citizens to ensure spousal visas for the international spouse once the Australian citizen returns home.</p>
<p>There is criticism of the legislation as forced marriages generally occur within families, and if the offence is of a criminal nature, many victims may be reluctant to come forward and speak out against family members as it may result in isolation of the victim from their community.</p>
<p>Some countries already have legislation in place which makes a forced marriage a criminal offence and even an attempt at a forced marriage, as is the case in Belgium. The UK has taken an alternative route by introducing a Forced Marriage Protection Order which is available under their Family Law Act. This is a civil remedy compared to a criminal offence which the Australian Government is planning to introduce. The UK have provided rationale for their approach in the hope that by using civil rather than criminal provisions, victims will be more likely to come forward as they don’t need to report their family members to the police.</p>
<p>It is not only women who are victims of forced marriages, and often men who are forced into a marriage become abusive towards the woman.</p>
<p>It has been suggested that the legislation also needs to include women who are ‘deceptively recruited’ into marriages that end up being servile marriages in which the woman becomes the slave of the man.</p>
<p>The heightened awareness of this issue in the media is likely to put a rush on the legislation which has been drafted as a bill but not yet introduced to parliament.</p>
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		<title>Family Court Makes Invalid Orders In De Facto Property Settlements</title>
		<link>http://www.whd.com.au/familymattersblog/2012/02/23/family-court-makes-invalid-orders-in-de-facto-property-settlements/</link>
		<comments>http://www.whd.com.au/familymattersblog/2012/02/23/family-court-makes-invalid-orders-in-de-facto-property-settlements/#comments</comments>
		<pubDate>Thu, 23 Feb 2012 04:42:42 +0000</pubDate>
		<dc:creator>Queensland Law Blog</dc:creator>
				<category><![CDATA[De facto]]></category>
		<category><![CDATA[Property Settlements]]></category>
		<category><![CDATA[de facto]]></category>
		<category><![CDATA[Family Court]]></category>
		<category><![CDATA[Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008]]></category>
		<category><![CDATA[Federal Magistrates Court]]></category>
		<category><![CDATA[Invalid Orders]]></category>
		<category><![CDATA[property disputes]]></category>
		<category><![CDATA[property settlements]]></category>

		<guid isPermaLink="false">http://www.whd.com.au/familymattersblog/?p=88</guid>
		<description><![CDATA[An administrative error has resulted in the validity of thousands of property settlements between de facto couples being brought into question. In 2009, the States relinquished their power to settle property disputes to the Federal Government, meaning that de facto &#8230; <a href="http://www.whd.com.au/familymattersblog/2012/02/23/family-court-makes-invalid-orders-in-de-facto-property-settlements/">Continue reading <span class="meta-nav">&#8594;</span></a>]]></description>
			<content:encoded><![CDATA[<p>An administrative error has resulted in the validity of thousands of property settlements between de facto couples being brought into question. In 2009, the States relinquished their power to settle property disputes to the Federal Government, meaning that de facto couples could have their property disputes dealt with by the Family and/or Federal Magistrates Court in the same manner that married couples do.</p>
<p>The problem arose from the amending legislation, the <em>Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008, </em>never being proclaimed by the Governor-General, a process inherent in passing a new law.</p>
<p>Absence of the proclamation means that the amendment was invalid, that means the Family Court has been making orders for which it had no jurisdiction to do so, between 1 March 2009 and 11 February 2012.</p>
<p>The issue was discovered earlier this month and a proclamation by Governor-General Quentin Bryce enacted the legislation to commence from 11 February 2012. Any orders made by the Family Court from 11 February 2012 cannot be challenged on the basis of jurisdiction.</p>
<p>The Government is now working quickly to correct the error, and warns potential litigants against taking advantage of the error to challenge orders made during this time. Attorney-General Nicola Roxon says making such a challenge, would be “a foolish step for any litigant to take.”</p>
<p>The Government is said to be drafting retrospective legislation which it expects to table in parliament in March. This step will aim to ensure the validity of the likely thousands of orders made in the Family and Federal Magistrates Court during this time.</p>
<p>Any parties to Orders made during this time should seek legal advice, but the message is to keep acting as if your Orders are valid and binding. To act otherwise, would be risky.</p>
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		<title>Federal Mags Court backlog could mean no more Brisbane trial dates until 2013</title>
		<link>http://www.whd.com.au/familymattersblog/2012/01/30/federal-mags-court-backlog-could-mean-no-more-brisbane-trial-dates-until-2013/</link>
		<comments>http://www.whd.com.au/familymattersblog/2012/01/30/federal-mags-court-backlog-could-mean-no-more-brisbane-trial-dates-until-2013/#comments</comments>
		<pubDate>Mon, 30 Jan 2012 04:40:25 +0000</pubDate>
		<dc:creator>Queensland Law Blog</dc:creator>
				<category><![CDATA[General]]></category>
		<category><![CDATA[alternative dispute resolution]]></category>
		<category><![CDATA[Brisbane Federal Magistrates Court]]></category>
		<category><![CDATA[family law litigation]]></category>
		<category><![CDATA[Federal Magistrates Court]]></category>
		<category><![CDATA[litigation]]></category>
		<category><![CDATA[overloaded court system]]></category>
		<category><![CDATA[trial dates]]></category>

		<guid isPermaLink="false">http://www.whd.com.au/familymattersblog/?p=76</guid>
		<description><![CDATA[Family law clients be warned &#8211; 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 &#8230; <a href="http://www.whd.com.au/familymattersblog/2012/01/30/federal-mags-court-backlog-could-mean-no-more-brisbane-trial-dates-until-2013/">Continue reading <span class="meta-nav">&#8594;</span></a>]]></description>
			<content:encoded><![CDATA[<p>Family law clients be warned &#8211; 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.</p>
<p>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?</p>
<p>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.</p>
<p>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.</p>
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		<title>Father denied time with child: Court reminds us that the paramount consideration is the child’s best interests</title>
		<link>http://www.whd.com.au/familymattersblog/2011/12/20/father-denied-time-with-child-court-reminds-us-that-the-paramount-consideration-is-the-child%e2%80%99s-best-interests/</link>
		<comments>http://www.whd.com.au/familymattersblog/2011/12/20/father-denied-time-with-child-court-reminds-us-that-the-paramount-consideration-is-the-child%e2%80%99s-best-interests/#comments</comments>
		<pubDate>Tue, 20 Dec 2011 02:57:49 +0000</pubDate>
		<dc:creator>Queensland Law Blog</dc:creator>
				<category><![CDATA[Children]]></category>
		<category><![CDATA[Parenting]]></category>
		<category><![CDATA[care arrangements]]></category>
		<category><![CDATA[child's best interests]]></category>
		<category><![CDATA[children's matters]]></category>
		<category><![CDATA[family court orders]]></category>
		<category><![CDATA[family court rulings]]></category>
		<category><![CDATA[family law]]></category>
		<category><![CDATA[fathers' rights]]></category>
		<category><![CDATA[independent childrens' lawyer]]></category>
		<category><![CDATA[parenting]]></category>
		<category><![CDATA[parenting orders]]></category>
		<category><![CDATA[s60CC Family Law Act]]></category>
		<category><![CDATA[shared care]]></category>
		<category><![CDATA[shared parental responsbility]]></category>
		<category><![CDATA[shared parenting]]></category>
		<category><![CDATA[visitation orders]]></category>

		<guid isPermaLink="false">http://www.whd.com.au/familymattersblog/?p=57</guid>
		<description><![CDATA[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 &#8230; <a href="http://www.whd.com.au/familymattersblog/2011/12/20/father-denied-time-with-child-court-reminds-us-that-the-paramount-consideration-is-the-child%e2%80%99s-best-interests/">Continue reading <span class="meta-nav">&#8594;</span></a>]]></description>
			<content:encoded><![CDATA[<p style="text-align: left;" align="center">Recent media reports claim ‘shared care dead’ after the Full Court of the Family Court upheld a decision of His Honour Federal Magistrate Wilson.</p>
<p>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 <em>&#8220;Sometimes in parenting cases it is often between alternatives, both of which are less than optimal&#8221;</em> (Federal Magistrate Wilson).</p>
<p>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.</p>
<p>The facts reveal that there are two parents who have both, at times, acted inappropriately and not in their daughter’s best interests.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>It is prudent to quote His Honour in full:</p>
<p><em>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.</em></p>
<p>More importantly he goes on to say:</p>
<p><em>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.</em></p>
<p>The father’s challenge to the decision on appeal to the Full Court of the Family Court was dismissed.</p>
<p>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.</p>
<p>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.</p>
<p>For further information or family law advice contact <a href="mailto:family@whd.com.au">family@whd.com.au</a> or call 07 3232 5700.</p>
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		<title>Stronger laws to deal with international child abduction</title>
		<link>http://www.whd.com.au/familymattersblog/2011/11/25/stronger-laws-to-deal-with-international-child-abduction/</link>
		<comments>http://www.whd.com.au/familymattersblog/2011/11/25/stronger-laws-to-deal-with-international-child-abduction/#comments</comments>
		<pubDate>Fri, 25 Nov 2011 04:12:21 +0000</pubDate>
		<dc:creator>Queensland Law Blog</dc:creator>
				<category><![CDATA[Children]]></category>
		<category><![CDATA[Hague Convention on the Civil Aspects of Internatlonal Child Abduction]]></category>
		<category><![CDATA[international child abduction]]></category>
		<category><![CDATA[parents abducting children]]></category>
		<category><![CDATA[return of abducted children]]></category>
		<category><![CDATA[unlawful removal of children]]></category>
		<category><![CDATA[wrongful retention of a child]]></category>

		<guid isPermaLink="false">http://www.whd.com.au/familymattersblog/?p=36</guid>
		<description><![CDATA[The Government is set to introduce new measures to strengthen Australia&#8217;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 &#8230; <a href="http://www.whd.com.au/familymattersblog/2011/11/25/stronger-laws-to-deal-with-international-child-abduction/">Continue reading <span class="meta-nav">&#8594;</span></a>]]></description>
			<content:encoded><![CDATA[<p>The Government is set to introduce new measures to strengthen Australia&#8217;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.</p>
<p>&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;&#8212;</p>
<p>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.</p>
<p>“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.</p>
<p>“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.</p>
<p>“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.</p>
<p>“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.”</p>
<p>The proposed changes announced today are based on advice provided to the Government by the Family Law Council. The package includes:</p>
<ul>
<li>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;</li>
<li>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);</li>
<li>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;</li>
<li>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;</li>
<li>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</li>
<li>Adding defences to the offences including fleeing from violence and protecting children from imminent harm.</li>
</ul>
<p>“It’s very distressing that any child is wrongfully removed to or wrongfully retained in another country,” Mr McClelland said.</p>
<p>“The abduction of children can have a severe emotional, psychological and financial impact for children and left-behind parents.”</p>
<p>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.</p>
<p>“Child support should always be paid in the best interest of the child,” Ms Macklin said.</p>
<p>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.</p>
<p>“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.</p>
<p>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:</p>
<ul>
<li>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;</li>
<li>Where the person applying consented or subsequently acquiesced to the child being removed from or retained outside Australia.</li>
</ul>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<h1><span style="color: #00999d;">Need advice?</span></h1>
<p><span style="color: #000000;"><span style="color: #999999;">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 </span><a href="mailto:family@whd.com.au">family@whd.com.au</a> </span></p>
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		<title>Four expensive mistakes made by people using DIY Will Kits</title>
		<link>http://www.whd.com.au/familymattersblog/2011/10/05/four-expensive-mistakes-made-by-people-using-diy-will-kits/</link>
		<comments>http://www.whd.com.au/familymattersblog/2011/10/05/four-expensive-mistakes-made-by-people-using-diy-will-kits/#comments</comments>
		<pubDate>Tue, 04 Oct 2011 23:00:13 +0000</pubDate>
		<dc:creator>Queensland Law Blog</dc:creator>
				<category><![CDATA[Wills and Estates]]></category>
		<category><![CDATA[DIY will kits]]></category>
		<category><![CDATA[invalid wills]]></category>
		<category><![CDATA[will kits]]></category>

		<guid isPermaLink="false">http://thefamilymattersblog.wordpress.com/?p=29</guid>
		<description><![CDATA[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 &#8230; <a href="http://www.whd.com.au/familymattersblog/2011/10/05/four-expensive-mistakes-made-by-people-using-diy-will-kits/">Continue reading <span class="meta-nav">&#8594;</span></a>]]></description>
			<content:encoded><![CDATA[<p style="text-align: left;" align="center">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.</p>
<p>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.</p>
<p>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.</p>
<p><strong><span style="text-decoration: underline;">Mistake Number 1: Non-awareness of Legal Issues</span></strong></p>
<p>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:</p>
<ol>
<li>The adequate provision for spouse and/or children with consideration of any potential claims from ex-partners or stepchildren;</li>
<li>A proper understanding of how superannuation, corporate and trust structures, and taxation implications will impact on your estate; and</li>
<li>An alternative distribution plan if any or all of your bequests fail.</li>
</ol>
<p>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.</p>
<p><span style="text-decoration: underline;"><strong>Mistake Number 2: Incorrect Drafting</strong><em></em></span></p>
<p>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.</p>
<p>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<br />
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.</p>
<p><strong><span style="text-decoration: underline;">Mistake Number 3: Incorrect Execution </span></strong></p>
<p>Incorrect execution of a Will creates a legal problem which may result in a costly application to the court.</p>
<p><strong>Case Study # 1</strong></p>
<p>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.</p>
<p><strong>Case Study # 2</strong></p>
<p>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.</p>
<p>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.</p>
<p>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<br />
of two witnesses who are present at the same time.</p>
<p><strong>Case Study # 3</strong></p>
<p>In a third case,<em> </em>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 <em>Succession Act </em>(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.</p>
<p>These practices breach the strict legal formalities which must be adhered to and may result in a costly application to the Court.</p>
<p><span style="text-decoration: underline;"><strong>Mistake Number 4: Incorrect Witnesses</strong></span></p>
<p>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.</p>
<p><strong>Case Study # 1</strong></p>
<p>In the first case<em>, </em>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 <em>Succession Act </em>(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.</p>
<p><strong>Case Study # 2</strong></p>
<p>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<br />
‘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.’</p>
<p>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.<br />
The intended beneficiary was also ordered to pay the Executors’ legal costs out of her share of the Estate on an indemnity basis.</p>
<p><strong><span style="text-decoration: underline;">Conclusion</span></strong></p>
<p>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, <strong><span style="text-decoration: underline;">contact Loan Chow</span> </strong>on <span style="text-decoration: underline;">(07) 3232 5719</span> or <a href="mailto:loanc@whd.com.au"><strong>loanc@whd.com.au</strong></a><strong>. </strong></p>
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		<title>Court rules child should not spend two week block with father</title>
		<link>http://www.whd.com.au/familymattersblog/2011/09/14/court-rules-child-should-not-spend-two-week-block-with-father/</link>
		<comments>http://www.whd.com.au/familymattersblog/2011/09/14/court-rules-child-should-not-spend-two-week-block-with-father/#comments</comments>
		<pubDate>Wed, 14 Sep 2011 06:30:25 +0000</pubDate>
		<dc:creator>Queensland Law Blog</dc:creator>
				<category><![CDATA[Children]]></category>
		<category><![CDATA[Parenting]]></category>
		<category><![CDATA[children's matters]]></category>
		<category><![CDATA[custody]]></category>
		<category><![CDATA[family court rulings]]></category>
		<category><![CDATA[parenting]]></category>
		<category><![CDATA[parenting orders]]></category>
		<category><![CDATA[shared parenting]]></category>
		<category><![CDATA[visitation orders]]></category>

		<guid isPermaLink="false">http://thefamilymattersblog.wordpress.com/?p=21</guid>
		<description><![CDATA[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 &#8230; <a href="http://www.whd.com.au/familymattersblog/2011/09/14/court-rules-child-should-not-spend-two-week-block-with-father/">Continue reading <span class="meta-nav">&#8594;</span></a>]]></description>
			<content:encoded><![CDATA[<p>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.</p>
<p>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.</p>
<p>He said <em>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.</em></p>
<p>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.</p>
<p>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.</p>
<p>If you require legal advice or representation for a family law issue, please feel free to contact us on <a href="mailto:family@whd.com.au">family@whd.com.au</a> or visit our <a href="http://www.whd.com.au/p6/family-de-facto-relationships.html" target="_blank">website</a>.</p>
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		<title>Family Court rules on child&#8217;s name</title>
		<link>http://www.whd.com.au/familymattersblog/2011/08/24/familycourtrulesonchildsname/</link>
		<comments>http://www.whd.com.au/familymattersblog/2011/08/24/familycourtrulesonchildsname/#comments</comments>
		<pubDate>Wed, 24 Aug 2011 05:35:32 +0000</pubDate>
		<dc:creator>Queensland Law Blog</dc:creator>
				<category><![CDATA[Parenting]]></category>
		<category><![CDATA[family court rulings]]></category>
		<category><![CDATA[family law]]></category>
		<category><![CDATA[naming a child]]></category>
		<category><![CDATA[parenting]]></category>

		<guid isPermaLink="false">http://thefamilymattersblog.wordpress.com/?p=7</guid>
		<description><![CDATA[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 &#8230; <a href="http://www.whd.com.au/familymattersblog/2011/08/24/familycourtrulesonchildsname/">Continue reading <span class="meta-nav">&#8594;</span></a>]]></description>
			<content:encoded><![CDATA[<p>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.</p>
<p>This first issue discusses the interesting case heard by the Family Court in Queensland where it was forced to rule on a child&#8217;s name.</p>
<p>&#8212;&#8212;&#8212;-</p>
<p>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.</p>
<p>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<br />
‘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.</p>
<p>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.</p>
<p>If you require legal advice or representation for a family law issue, please feel free to contact us on <a href="mailto:family@whd.com.au">family@whd.com.au</a> or visit our <a href="http://www.whd.com.au/p6/family-de-facto-relationships.html" target="_blank">website</a>.</p>
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