Don’s Family Law Blog

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.

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.

Publicity at last for the decision of Justice Barry to disqualify himself from a trial.

Barry.Nilsson. instructed Jenny Hogan. The costs thrown away by the parties are significant.  Who should pay?

There have been some opinions expressed about this case that I will not repeat.  Justice Barry should hope “it all goes away”.

The Federal Attorney-General advertised in Saturday’s Courier Mail for expressions of interest for a judicial appointment to the Family Court of Australia in Queensland.

This, of course, is a change of style from past Attorneys- General where a “tap on the shoulder” was the go.

It’s been 3 years since the last appointment and with the ever decreasing size of the numbers of the Family Court judiciary, a rare opportunity.

Practitioners will be hoping for a “strong” appointment.

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.

I was pleased to see the appointment of Leanne Turner as a Federal Magistrate (to sit in Darwin).  This constitutes a third Barry.Nilsson. appointment to that court.

As reported in The Australian, Justice Murphy has made orders banning a father from having any form of relationship with his children aged 13,11,10 and 9.

A sad but sensible decision.

The Federal Government is consulting on its proposed plan to extend family law arbitration to include issues relating to the children (reported in the Sydney Morning Herald).  Presently, arbitration is only available in property adjustment cases.

As reported, there appears to be some confusion between mediation and arbitration.  I suspect this will be clarified when we know the detail of the dispute resolution model to be adopted.  It’s a big change and I will not yet make a call as to its merits.

The Federal Attorney-General has this morning made a speech at the launch of National Law Week where he stated:

The Federal Government has moved to delay the 2009-2010 Federal Budget promise to restructure the Family and Federal Magistrates Courts.  The decision has resulted in an awkward situation where, $40,885m from the 2010-2011 Budget, which had been transferred from the Federal Magistrates Court to the Family Court under the 2009-2010 Budget, will now have to be transferred back under an invoicing system between the two Courts to be implemented by the Government. 

More concerning for consumers of the Family and Federal Magistrates Courts is that the Federal Government has given no indication as to when it is likely to undertake the promised restructure.  Until the restructure, the two Courts will continue under the confusing current system, operating in the same jurisdiction.   To read more: http://www.ag.gov.au/