Don’s Family Law Blog

Perspectives of the Family Law System: What do we now know and what can we do to respond? delivered by Geoff Sinclair, Chair of the Family Law Section of the Law Council of Australia at the 2nd Family Law System Conference in July.

1. That the divorce rate (per 1000 of population) was 2.7 in 1980, 2.8 in 1999 and 2.2 in 2008.*
2. The fertility rate has fallen in 2001 to 1.7 (per woman) and is now 2.0 which is under the replacement rate of 2.1
3. The percentage of babies born outside marriage is now 34.4%, whereas in 1960 it was 4.8%
4. In 1911 the average size of a household was 4.5 members.  It is now 2.6.

*This I think means that 5.4 people per 1000 divorced in 1980,  5.6 in 1999 and 4.4 in 2008.  Problem with this is, that you if you speak to the Beureau of Statistics they don’t know.

Not much has happened in family law during the federal election campaign.  Neither major party has promised much.  It’s good that family law is not a ‘live’ political issue.

George Brandis has a different approach to restructuring the federal family law courts than the government.  From my perspective I care little about how a restructure takes place.  Right now it is silly to have 2 courts side by side doing the same business. Both sides agree with that.

The Attorney-General announced a new approach to deal with “dysfunctional parents” by further empowering family relationship centre to “positively intervene in a parent’s life”.   Can’t be bad, but we will have to wait and see what the reality will be.

 The Attorney-General also announced a policy to direct more cases to arbitration.  The privatisation of the court’s function will be good for the lawyers, but we shall see (especially given the punters reluctance to arbitrate so far).  Overall, I can’t help you with your voting intentions.

The divorce rate is falling.

This report from CNN.com explains the new concept of “cluster divorces”.  Beware, it seems divorce can be catchy.

It suggests that the (Al) Gore family is such a cluster with 2 separations in a month and 1 preceding this.  Then, maybe Al’s reported wrestling with a masseuse had something to do with it.  Or maybe it’s ‘global warming’ at work … I suspect that would be Al’s theory.

Much has been made of the decision of the Federal Magistrate’s Court to leave a girl in the care of a “heroin addicted sex offender … because the girl’s mother is considered an even more unsuitable parent”.

I have not read the case, however, it seems to me the Federal Magistrate had no choice where the Department of Human Services saw no need to be involved with the family.   The case exemplifies a common problem for judges exercising family law jurisdiction as to what to do where the competing parenting options are both unsuitable and the state welfare authorities see no need to be involved.

Judging is not about good and evil and black and white, but more commonly dealing with shades of grey.

The well publicised Family Court litigation in which a wife has spent $10.5million on fees has taken another turn.  It seems this unfortunate litigant is running out of money.  Who better to blame than her lawyers!

I know nothing other than is publicly reported about this case.  My guess is that the wife’s settlement expectations are diminishing fast having spent a lot of money chasing an illusory goal.  I would also guess that she has been well advised about her prospects of success by her solicitor.

It is easier to blame someone else than take responsibility.  Unfortunately for solicitors we are governed by a system that is heavily loaded in favour of the client.  In fact, I suspect that as a group family law solicitors are provided with the worst protection in contracts.

An amendment to the Family Law Act 1975 will restructure the Family Court of Australia by creating a new division of the court.   The Federal Magistrates Court will have its family law jurisdiction removed with the intention that many existing Federal Magistrates will sit in the new division of the Family Court of Australia.

There can be no compulsion on Federal Magistrates to move courts.  How many will refuse to leave?

We received a letter this morning from a Federal Government department which commenced with the following sentences:

“I refer to your letter of 24th August 2007 … I apologize  for the delay in responding.”

That in-tray is surely overflowing.

The published case of Kandal & Khyatt & Ors illustrates a court working pragmatically and responsively to the need of a 17 year old child.  At fear of being sent to Lebanon to be married by her parents, the child successfully applied to be placed on an airport watch list to prevent her being removed from the country.

For such an application to be determined ex parte is a credit to the Court and those who supported the child, the AFP, the Department of Human Services and Legal Aid New South Wales, not to mention the child herself.