Don’s Family Law Blog

Reported in The Age today an important change to that state’s domestic violence legislation.

First comment:  sexist piece of reporting “men who financially abuse …”

Second comment:  the relevance of this will surely only be in extreme cases.

Third comment:  what remedies will be available?  How will this sit with the Family Court’s spouse maintenance power (as it is now, and will be soon for defacto couples)

It’s too early for conclusions, but the application of this law deserves watching.

The Attorney-General has today announced the Rudd Government’s introduction of legislation which will allow de facto couples (regardless of whether they be same-sex or opposite-sex couples) to bring proceedings for property and maintenance in the Family Court of Australia.

De facto financial disputes have been dealt with by State and Territory courts.  If the parties have children, then any child related issues have been dealt with by the Family Court of Australia, resulting in the need to bring proceedings in 2 jurisdictions and the consequential financial and emotional burden this imposes on the parties.
The changes are long overdue, not least because presently the laws are inconsistent on the issue of de facto property matters across Australia.  This landmark legislation is the implementation of an agreement reached at the Standing Committee of Attorneys-General in 2002.

In the press release the Attorney-General Robert McClelland is quoted “This honours a commitment in the Government’s National Platform to ensure that family law applies in a consistent and uniform way to de facto relationships.  Consistent with the Government’s policy, the legislation will not discriminate between opposite-sex and same-sex de facto couples.  Nothing in the legislation will alter marriage laws”

“Legalise polygamous unions: Muslim leaders”

Queensland is set to appoint 2 additional Federal Magistrates, I assume in lieu of an appointment to replace Carmody J. in the Family Court.

Below is a copy of an, as yet unpublished, letter to the editor of The Australian  submitted by my colleague Adam Cooper:

The Editor

The Australian - Review

23 June 2008

Dear Editor

Re:Eros part of our humanity - The Australian - Review (22 June 2008)

David Malouf argues that the law should not deny our collective entitlement to experience Bill Henson’s evocation of a 13 year old nude girl. He says that it is hypocritical for society to deny the entitlement simply because some of us may experience disgust or shame at the erotic possibilities of such a photograph. David Malouf, like Bill Henson, is wrong.

To begin with, Malouf argues that it is dangerous for the blunt instrument of the law wielded by those in government (and like me, practice it) to beat down the nuances and complexities of art. To that end, he cites the thick end of the argument’s wedge, claiming by inference that the last people you would want making laws about art were the allegedly art-loving Nazis of 1930s Germany. In that, Malouf may have a point. I am a lawyer. I confess that I saw more grace and beauty in Michael Holding’s run up and delivery stride than anything I saw Baryshnikov or Nureyev do, skilful and amazing that it was. And I admit to much greater pleasure experiencing the poetry of Robert Harvey, inexplicably emerging goal-wards from a pack of angry opponents with a lump of leather, than I ever did reading Shakespeare. Yet further, the monochromatic scratchings of my 8 year old daughter inspire far greater emotion in me than what I saw at the last Warhol exhibition at the GOMA in Brisbane. Perhaps that makes me a philistine. Perhaps just an “Aussie dad.” But if (a) being a lawyer and (b) preferring sport over what might homogenously be called “art” disentitles me to reflect critically on the latter, then I am happy to go to my grave agreeing with Malouf on this point.

On the flip side then, it is a bit rich for Malouf, prodigious and successful author he is, to then make comment on the law. He says he (we?) expect the law to be discriminating. With the greatest of respect, the law should be anything but. In fact, once the law starts to discriminate, once it is applied subjectively, then the law fails. Indeed, if I may borrow from Malouf’s own argument, a “discriminating law” is exactly what enabled the Nazis of 1930s Germany to inflict such horror upon the world.

The law should not discriminate. It should, perhaps as Malouf argues, be aware of complexity and nuance. But in that sense, perhaps it should be more aware of the nuance and complexity of the psycho-sexualisation of the subject 13 year old girl, potentially damaged by the photographs. Perhaps it should be more aware that pictures of nude 13 year old girls may well be erotic, but that the nuance and complexity of our society dictates that 13 year olds should not be made or encouraged to be erotic. Perhaps in such a complex and nuanced world, the law should make every effort to allow children to simply be children.

Malouf concludes that viewing these pictures leads us to discover what is most human in us. Indeed that is also true. It leads us to conclude that an artist’s right of expression is more valuable than a child’s right to innocence. Such a conclusion is wrong and the law should make it right.

Adam Cooper

The Chief Justice of the High Court of Australia, Murray Gleeson, has raised doubt as to the appropriateness of time costing in an interview with The Australian Financial Review (AFR.pdf) .He is, with respect, absolutely correct.  There are many times when inefficient lawyers are rewarded bhy time costing.  Similarly there are many times when efficient lawyers are under-rewarded by time costing.  His Honour states it is difficult for lawyers to imbue “in their clients an understanding of the value their advice brings to a case”.  It is this notion of “value” to a case that should drive legal fees. 

I am  using lump sum fees for some services in recognition of the value I provide and also to provide certainty to clients. 

Surgeons do this all the time.  I’m told by orthopaedic surgeon friends that they would charge above $3,000 for an anterior cruciate ligament repair.  The pre and post care, plus the operation is 2 hours work or $1,500 per hour.  Would anyone quibble with this fee given the value the surgeon brings to the patient?

The saying “only in America” it seems can now be extended to Canada where it has been reported that a court has overturned a `grounding’ imposed by a father on his 12 year old daughter. 

The father had refused his permission for the girl to go on a school trip as punishment for her accessing a chatroom he had blocked, and posting “inappropriate” pictures of herself on-line.  Most parents of teenagers would, I think, consider this a reasonable and justified punishment.  The court apparently did not agree.  The decision is being appealed and I can only hope that common sense prevails.

The girl was represented by a lawyer previously appointed by the court in the parent’s protracted custody dispute. 

Justice Carmody is retiring from his position as Family Court Judge on 9 July and will return to the bar.

Ethical restraints will, no doubt, see him not practicing in Family Law.

A seven year old boy was at the centre of a courtroom drama yesterday when he challenged a court ruling over who should have custody of him.

The boy has a history of being beaten by his parents and the judge initially awarded custody to his aunt, in keeping with the child custody law and regulations requiring that family unity be maintained to the degree possible.

The boy surprised the court when he proclaimed that his aunt beat him more than his parents and he adamantly refused to live with her.

When the judge suggested that he live with his grandparents, the boy cried out that they also beat him.

After considering the remainder of the immediate family and learning that domestic violence was apparently a way of life among them, the judge took the unprecedented step of allowing the boy to propose who should have custody of him.

After two recesses to check legal references and confer with child welfare officials, the judge granted temporary custody to the NSW State of Origin team, whom the boy firmly believes are not capable of beating anyone.

The murder of solicitor David Robinson  shows how a family law practice can be volatile and even downright dangerous.