Don’s Family Law Blog

The Semple review recommends the merger of the Family Court of Australia and the Federal Magistrates Court.  Apparently, this is not as simple as it sounds (see Australian article).

I can’t help thinking, regardless of all that, that all we the profession, and our clients the litigants, want are consistent cogently communicated decisions from judicial officers.  Regrettably, I can’t say this is being achieved nearly as much as it should be.

Barry & Nilsson family law partner, Geoff Sinclair, has been elected Chair of the Family Law Section (FLS) of the Law Council of Australia.

The FLS is the pre-eminent representative body of the Australian family law profession.  It is to the FLS that the government and courts speak. Geoff is the first Queenslander to be elected to this position. Congratulations Geoff!

 An interesting decision of FM Altobelli in a matter of Hogan & Hogan [2008] FMCAfam 1219 where a husband conceded that he had spent $20,000 on cannabis during the course of the relationship and the wife asserted that this was “waste” and should be added back to the matrimonial pool as notional property of the husband. 

Interestingly FM Altobelli was not convinced by the wife’s argument that as the activity was illegal it should fall within the category of waste, but did go on the classify it as waste based on his findings that the “consumption of cannabis was clearly an addiction that was attributable to the husband alone, and not the wife”, that the wife obtained no benefit, and that it “was an entirely selfish pursuit, designed to produce pleasure and possibly some form of relief to the husband”.

Does this mean that we should now add back alcohol consumed during a relationship if one party is teetotal, or perhaps excessive trips to a spa? Where might this finding take us?

Despite the Courier Mail’s recent media blitz which, on selective anecdotal evidence, paints a sombre picture of family law in Australia, it seems that we don’t have it all that bad when compared with others.  An article in the KyivPost is worth a read.

 I suspect the proposed law to extend spouse maintenance to defacto couples is ahead of community attitudes.  A more acceptable approach would be to limit claims to spouse maintenance to only those relationships with a child.

 “Philandering husbands could soon be forced by the courts to keep paying for their mistresses after an affair ends”  So says the Courier Mail.

Rest easy philandering husbands.  Mistresses will not be entitled to maintenance.  The proposed amendments to the Act define a de facto relationship as:

the persons are not legally married to each other; and

the persons are not related by family; and

having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

Could you really confuse the role of a mistress with the role of a spouse?  I don’t think so.  Sensationalism lives.

 I’m reliably informed that, barring an unforseen coup, colleague and Barry & Nilsson partner, Geoff Sinclair, will soon be elected Chairman of the Family Law Section (FLS) of the Law Council of Australia.

The FLS is the pre-eminent representative body of the family law profession in Australia.  The FLS is the jewel in the crown of the Law Council of Australia.

The role will take Geoff to many airport lounges and will involve much of his greatest passion … fine dining.

I don’t have the time to point out all the errors contained in Matthew Fines-Clinton’s article in today’s Courier Mail.  As far as I am aware:

1. Shared parental responsibility (by other names) has been a concept consistently engrained in the Family Law Act since 1975.  It’s not new.
2. The courts don’t (and shouldn’t) impose equal or substantial care arrangements where there is a high level of conflict.
3. The courts don’t (and shouldn’t) impose equal or substantial care arrangements where there is a very young child.
4. There is no presumption of equality of parenting time.

The Act, as it is written, responds to all of the problems pointed to in the one-sided anecdotal evidence relied upon.

The real issue is the quality of parents’ representation and sometimes the judicial process itself.

Tim Carmody S.C. had all the power he needed to sever joint parental responsibility when he sat as a Famiy Court judge.  Why the angst now?

 Divorcing parents can behave very badly causing psychological harm to their children.  The Italian police have taken on the issue and are prosecuting parents of a suffering 12 year old (see article: Son `damaged’ by parents’ divorce).

I’ve seen it happen.  There are more than a few parents who deliberately force psychological suffering on their children in the hope of winning an argument.