 |
News & Events June 2009
09 June 2009
The Age (Melbourne)
Legal aid centres struggling
Selma Milovanovic
A decade of inadequate funding means one in five disadvantaged people who
seek legal aid is turned away - a number expected to rise as the financial
crisis bites.
A chorus of national legal bodies, in submissions to a Senate committee
inquiry into access to justice, has rebuked the Government for ignoring
the need for ongoing funding.
The disadvantaged, 80 per cent of whom earn less than $26,000 a year, are
being turned away by overbooked community legal centres, which have
trouble keeping expert lawyers who earn up to 40 per cent less than the average
public servant.
Several of the calls for ongoing legal aid funding came last month after
the Government announced a one-off $20 million payment for legal aid,
community and Aboriginal legal centres.
The National Association of Community Legal Centres says its lawyers alone
provide more than $20 million worth of free legal assistance a year,
despite suffering an 18 per cent funding cut in the past decade.
In the past year, the association recorded 25 per cent jumps in employment
and tenancy law inquiries.
The National Pro Bono Resource Centre's submission called legal aid
funding "grossly inadequate" by international standards. Australia spends $22 a
person on legal aid, whereas England and Wales spend $91.
"It is not appropriate for the Australian or state governments to rely on
the self-sacrifice of community-sector workers to achieve the outcomes the
Australian Government asserts are essential to its social inclusion
program and a fair and just society," said Liz O'Brien, national convenor of the
National Association of Community Legal Centres.
The association was joined by Aboriginal law groups, the Family Court and
the Law Council of Australia in criticising the Government for not
adopting the recommendations of a 2004 Senate inquiry into access to justice. The
inquiry broadly attributed problems to Commonwealth legal aid funding cuts
in 1996 and a change of rules which led to federal funding being used only
for legal aid grants covering Commonwealth law matters.
The Commonwealth-state funding divide often led to broken families having
to apply for two different legal aid grants, the Victorian Aboriginal
Legal Service Cooperative said.
Child protection and family violence is covered by state law, while other
family law matters are federally regulated.
The chief justices of the Family Court and Federal Magistrates Court said
the urgent need for funding for family law matters had been ignored.
The National Pro Bono Resource Centre said the Government had effectively
shifted the burden of free legal help to community legal centres and the
private legal profession.
The committee will report in August.
09 June 2009
The Australian
Court allows mums to take kids overseas
By Caroline Overington
The Family Court is allowing mothers to leave their home state and even
the country to establish a new life for themselves and their children, despite
the introduction of a shared parenting law that encourages a meaningful
relationship with both parents.
A recent study of the reform introduced by the Howard government in 2006,
shows mothers are still being allowed to relocate to countries such as the
US, Sweden and Switzerland, even if it ruptures the relationship between
the children and their father, and where there is no evidence of violence.
The study concedes that such moves - known as relocation cases - succeed
less often than they did before the shared parenting law came into effect,
but they still happen.
The report by Kate Harkins and Patricia Eastel of the faculty of law at
the University of Canberra, considered 50 relocation matters heard in the
Family Court and the Federal Magistrates Court between 2003 and 2008.
The authors sought evidence that the reform introduced in mid-2006, had
affected the primary carer's (usually the mother's) ability to relocate
after divorce. They concluded that relocation had become more difficult,
especially in cases where children had strong relationships with both
parents and where there was no history of family violence.
In 50 cases examined by the authors, 60 per cent of parents wanting to
relocate were allowed to do so. However, when the authors compared the
outcome of relocation cases post-2006 with those cases decided before the
new shared parenting laws came in, they found that relocation had become
more difficult.
"Pre-amendment, three-quarters (15 in 20 cases) of those wanting to move
were allowed to do so," the report said.
By comparison, just half of relocation applications (15 of 30 cases) have
been approved in the years since the shared care amendment was enacted.
Edward Dabrowski, the federal director of the Shared Parenting Council of
Australia, which supports strong relationships between fathers and their
children after divorce, said the trend toward keeping parents in a close
proximity to each other after divorce was encouraging.
"But since 2006, there have been cases where people have gone overseas
with their children," he said. "It is more difficult to move, but it's not
impossible, and there are cases where it has come down to the views of
judges, and their wide discretion.
"In our view, it's axiomatic. The legislation says children need to see
mum and dad frequently, and it's difficult to see how that came be done if one
parent is in Brisbane and the other in Melbourne."
He said it was hard to find any factor that would mitigate against shared
parenting, other than proven violence to the children, or to the mother.
09 June 2009
The Australian
Lives torn asunder
By Caroline Overington
Most of what used to be called child custody cases are settled between
divorcing parents well before the case gets to the Family Court. Those
that aren't typically involve couples who loathe each other with such intensity
that they cannot agree on even the smallest matters regarding their
children.
They need a judge to decide where the kids will live after divorce, how
often they should see the other parent, what surname the children should
have and where they should go to school.
Then, too, there are the so-called relocation cases where one parent,
usually the mother, wants to move and take the children with her.
Sometimes it's because she escaping an abusive, violent marriage and wants a fresh
start. Other times it's because she wants to move to be with her new
partner. Sometimes she wants to be nearer to her own mother or to other
family members who may be able to help her with the children; or to an
area where there is cheaper housing; or where she's likelier to find work.
In almost every case, if she gets permission to go, it will mean her
children will be able to spend much less time - sometimes hardly any
time - with their father, who naturally enough will fight to stop the relocation.
Not for nothing, then, did former Family Court judge Richard Chisholm
describe relocation cases as the "San Andreas fault" of family law. They
are cases that lead to rupture and ruin in families.
There was some hope in 2006 that this might change. In July that year the
Howard government introduced what is known as the shared parenting
amendment to the Family Law Act. The idea behind the amendment was simple:
it was in the best interests of children that they had a meaningful
relationship with both parents after divorce and that usually meant
spending significant time with both parents, during the week, on weekends
and during the holidays. On the subject of relocation cases, the amendment
was silent. It didn't say that mothers couldn't move with their children
after divorce; it didn't say that they were still allowed to move after
divorce.
There was a feeling, however, that the amendment would make it more
difficult for mothers to relocate after divorce because it was difficult
for a child to have a meaningful relationship with their father, if they
lived in, say, Colorado, and he lived in Melbourne.
Three years on, it's clear that the law has made it more difficult for
parents to relocate after divorce. Two academic studies have independently
reached that conclusion, and both agree that an international relocation
is harder still. As far as the Shared Parenting Council of Australia is
concerned, that's a good thing.
After all, before the law came in, mothers were generally allowed to go
wherever they wanted after divorce. They could meet someone on the
internet who lived in the US, for example, and as long as they were the primary
carer of the children there was a good chance the Family Court would let
her leave the country to pursue that relationship, in the process
rupturing whatever relationship they had with their real dad, who most likely loved
them very much and was a critically important person in their lives.
That kind of thing is now less likely to happen but it's still not
impossible for mothers to leave the country with their children, as
fathers are finding out.
In one recent case, known as Bletch and Douglas, a mother was allowed to
move with her nine-year-old son to the US after developing a "unique
communications skill" that landed her a media profile, a $450,000 book
advance and interest from talk shows. The father, who has fought for years
for greater access to his son, was told that he could have access during
the school holidays, and make use of emails and webcam. The father could
not believe the shared parenting laws would support such an arrangement.
He flew to the US and tried to see the boy there, landing himself in trouble
with local police.
In another case, known as Bradley and Bradley, a mother was permitted to
return to her native Sweden with her two children after her marriage
ended. She alleged child abuse. It was never proven and the judge did not accept
that it had occurred. He acknowledged the distress the relocation would
cause the children's father, saying "communication with the children will
be difficult" since they would be living on opposite sides of the world.
But he thought the father could stay in touch by email. The judge said the
mother would have access to superior child care and affordable
acommodation in Sweden. She also would be close to her family. The children would fly
out to visit or else the father could visit them in Europe.
Groups such as the Shared Parenting Council were stunned that such
decisions were possible under the law.
As lawyer David Alexander told a seminar in March, the laws didn't
introduce a specific presumption against relocation. Instead, Alexander
explained, the starting point for the court was that a child's best
interests were served by having parents who had equal shared parental
responsibility after divorce.
But that didn't mean a 50-50 time split was the automatic outcome. It
would sometimes mean that the mother was restrained from moving the children too
far from the father, but not always. To illustrate, Alexander used several
recent cases in which the mother wanted to move the children, but was
restrained by the Family Court. In one such case, the mother had in mind a
move from Sydney to the NSW Hunter Valley. She thought it would be better
for the children to live a rural lifestyle and she'd be able to afford a
larger home. The judge restrained her, saying such a move would make it
"impractical for the father to spend substantial and significant time with
the children".
In another case, two children aged six and three were living with their
mother on the south coast of NSW. She moved to a town 144km from the
children's father. The court ordered her to return the children, saying
they were entitled to significant time with their father and that was best
achieved by having them live nearby.
Alexander concluded that there was a "fresh approach to the involvement of
both parents in the lives of their children" and it "seems likely that the
court will find it easier to deny an application to relocate".
"It's now a relatively simple matter for the non-residential parent to
claim that even a short-distance relocation will preclude substantial and
significant time (with the child)."
It's not always the case that a mother won't be able to move overseas or
interstate.
In Godfrey and Sanders, for example, the Family Court allowed a mother to
move from Melbourne to Brisbane, over the objections of the father. The
court said the shared parenting law promoted a child's right to a
meaningful relationship with both parents, but meaningful didn't mean
optimal and while it obviously wasn't ideal for the children to be living
in one state while their father lived in another, there was still
opportunity for them to have a meaningful relationship on school holidays
and by email.
That different judges in different states are making difficult decisions
under the law is vexing for lawyers, who are finding it difficult to
advise their clients. But the case that really has brought confusion about the
law is that known as Rosa and Rosa, which came before the Family Court last
month.
Mr and Mrs Rosa (pseudonyms) were married in Sydney in 2000 and had a
daughter in 2002. In early 2007, when the child was five, the couple moved
to a remote town in Queensland so the father could take up a job as a
mining engineer. Six months later, the marriage ended. (Under law it's
irrelevant for the purposes of child custody who ended the marriage, but
for the record, the father told the mother it was over, packed up her
things and put them out on the deck.)
The mother took their daughter back to Sydney, but the Family Court
ordered her to return the child to the remote town where her former husband lived,
while the parents fought over where their daughter should be reared. The
mother wanted to move her back to Sydney, for good reason. In the remote
town, where rents were high and men outnumbered women by a considerable
degree, she could afford only to live in a caravan park. She had no family
in the area and few friends.
The mother told the court she was isolated and broke, and wanted to go
home to Sydney, where she would be able to find a job and would have the
support of her own mother.
Federal magistrate John Coker, presiding over the initial hearing, asked
the mother whether she would go to Sydney without her daughter. She said
she would not, and in fact said she would never leave her daughter.
Coker asked the father if he would go to Sydney, if that was where his
daughter was living. He said he would not because he wanted to keep
working at his job. Asked whether he could find work elsewhere, the father said
that yes, but he enjoyed this job in Queensland and wanted to keep it.
Given that the father would not leave Queensland and the mother would not
leave her daughter, Coker decided that the only way the child could have a
meaningful relationship with both parents was to have her live with her
mother in far north Queensland in a week-about arrangement with her
father.
The decision effectively ties the mother to the father's job, which itself
presents an interesting condundrum for the future. What, for example,
should happen if the father decides to take a new job in another mining
town? Will he be allowed to take his daughter with him and, if so, must
the mother follow? It seems likely that parliament did not intend to hobble
women in this way.
Zoe Rathus is a senior lecturer in law at Griffith University. She is
cautious about reading too much into the Rosa decision, saying it may not
be precedent-setting.
"Playing the devil's advocate here, there are some cases that have gone
the other way," she says.
"Whatever has been decided in this particular case, it doesn't mean that
every parent in Australia who needs to relocate after a divorce should
assume that they won't be able to do it. There is nothing in the (new) law
that says that. And another judge might have made a completely different
decision in this case." But, she says, the laws "create a complex set of
ideas, and it's a set of ideas that crash into each other and there is a
great deal of confusion at the coalface of family law about what the new
law says and what it actually means, and how it is working, in practice,
and it's usually not a good idea for confusion to reign".
The federal Attorney-General's Department is believed to have an appetite
for change to the shared parenting law but is proceeding with caution.
Before it does anything, it wants to see the results of a review of the
law by the Australian Institute of Family Studies, a review that was built
into the original law. That report is due in December. Attorney-General Robert
McClelland has commissioned his own report, which is due by the end of the
year.
The Australian has put questions about the shared parenting law, and the
confusion it seems to be creating, to Family Court Chief Justice Diana
Bryant.
Her office says there are three points for separating parents to keep in
mind.
First, each case will be determined on its unique facts, and judges must
consider the best interests of the individual children in each case.
Second, there is no particular pattern that can be relied on to predict a
decision and, therefore, it makes no sense to go to court, believing that
a particular outcome is certain.
Third, an appeal court may be comprised of judges who will have decided a
matter differently at the first hearing and who may indeed believe that
the lower court's decision is an awful one, but they can't overturn a decision
unless there has been an error of law.
06 June 2009
The Independent Weekly
Death sentence for Federal Magistrates Court
By Suzie Keen
South Australian couples seeking a divorce or parenting orders may be tied
up for longer in court action with the planned abolition of the Federal
Magistrates Court.
The Federal Government claims the court reforms will save $7.8 million
over four years and speed up dispute resolution, but the move has been attacked
as a "grave mistake" by shadow Attorney-General George Brandis and the
Shared Parenting Council of Australia (SPCA).
"If the Rudd Government proceeds with its plan to abolish the Federal
Magistrates Court, and drive all family law cases into the more expensive
Family Court, the result will be increased costs, longer delays and less
accessible justice," Mr Brandis said.
Almost 80 per cent of all family law applications in 2007-08 were filed in
the first instance in the Federal Magistrates Court, including 7626 in
Adelaide, according to the court's annual report. And despite the
Government's claim that the system is inefficient, almost 90 per cent of
all family matters were completed within six months of filing.
Divorce applications represent more than half of the court's workload, and
98.8 per cent of divorces were finalised in less than six months in the
last financial year. More than 3618 divorce applications were filed in
Adelaide in 2007-08, with 3589 finalised.
The SPCA argues that the creation of the Federal Magistrates Court was one
of the most beneficial family reforms, with many matters now resolved in
weeks rather than years under the Family Court, reducing the emotional and
financial costs to parents.
"One would be foolhardy and stupid to abolish a court that has achieved
such enormous success, providing swifter dispute resolution at a reduced
cost and achieving better outcomes for parents and children," said council
spokesman Geoffrey Greene.
"The prospect of asking parents to enter into a demonstrably more complex,
less efficient and more expensive Family Court is the worst possible
option."
The Federal Magistrates Court also deals with general federal law matters,
such as workplace relations cases (14 applications filed in Adelaide in
2007-08), bankruptcy applications (291), human rights matters (21),
migration law and trade practices.
Under the reforms, due to take effect next year, these cases would come
under the jurisdiction of the Federal Court.
Federal Attorney-General Robert McClelland said the changes would improve
efficiency and reduce confusion by eliminating duplication between the
courts.
"It will effectively create a one-stop-shop in family and other federal
law matters, ensuring an integrated and accessible system that focuses on
dispute resolution," he said.
03 June 2009
ABC Radio National
The World Today
Family law experts say 50-50 rule doesn't work
Reporter: Jennifer Macey
Transcript
PETER CAVE: Family law experts are calling for the shared parenting law to
be scrapped or radically overhauled, saying that the 50-50 parenting rule
doesn't always work.
The law was introduced by the Howard government in 2006 and put greater
emphasis on children spending equal time with both parents.
But the head of the Family Law Council says this often gives fathers a
false expectation that they will be granted equal time, when this isn't
true for the majority of cases.
Jennifer Macey reports.
JENNIFER MACEY: The Howard Government introduced changes to the Family Law
Act three years ago, claiming that equal time with both parents would be
in the best interests of the child.
But the chair of the Family Law Council, Professor John Wade from Bond
University, says the changes were hastily written gobbledegook.
JOHN WADE: The amendments appear to have been bought in very hurriedly and
pasted together at the last moment, with a lot of compromises of wording
with the result that you need a PhD in statutory interpretation to
understand what the amendments mean when they talk about shared parenting
and presumptions.
It's extremely difficult to understand and I think it's placed a very
unfair burden on judges, to in the few cases that get to court, to try to
interpret what this means.
JENNIFER MACEY: Professor Wade says the laws create two problems, firstly,
the children aren't always best served by being split between two homes
and secondly, that many parents are wrongly given the impression they are
entitled to a 50-50 shared arrangement.
JOHN WADE: And they begin negotiations with arguments that, "Oh but I'm
entitled to 50-50" as a starting point in the bidding, and that's led to
some very unfortunate settlements where people have agreed to young
children being substantial equal time between parents and shuttling them
across cities or across the country.
And that's not the judges' fault, that's because people use the words as
levers in negotiations.
JENNIFER MACEY: Since the law was introduced there's been much debate
about whether equal shared parenting is in fact the best thing for
children.
Clive Price is the director of Unifam, the family and relationships
counselling arm of the Uniting Church.
CLIVE PRICE: From my experience in talking with children, living in two
households is always going to be more complicated than living in one. Kids
complain about never knowing where their homework is, about only being
able to play sport every second weekend, and lots of practical things.
But much more importantly it's the conflict that kids are witnesses to and
are caught up in, the tug of war between two parents that has the biggest
impact and effect on children.
JENNIFER MACEY: He believes separated or divorced couples should be given
more support in how to actually manage the shared parenting arrangements.
CLIVE PRICE: 'Cause a lot of money and a lot of resources goes into
sorting out what the arrangements are going to be, but I think we need to
have more resources into equipping parents after separation to know how to
manage these new and often complex arrangements.
JENNIFER MACEY: While the rhetoric of the equal custody laws was that the
presumption of courts would be to share parenting, in reality, judges seem
to be reluctant to grant a straight 50-50 split in most cases.
Figures released by the court from more than 1,400 cases finalised in 2007
and 2008 show that only 15 per cent of cases actually resulted in equal
time.
But Professor John Wade says the reality is that divided custody is hard
to maintain.
JOHN WADE: The stats can be very misleading 'cause they're not giving you
the picture of the other 95 per cent of, or 96 per cent of cases that
settle, and they're not telling you what happens a year later.
And the initial research says a year later these arrangements just aren't
working.
JENNIFER MACEY: The Government has commissioned the Australian Institute
of Family Studies to review the Shared Parental Responsibility Act and
report back in December this year.
But Professor Wade says that's too late.
JOHN WADE: I think you should act sooner rather than later, you shouldn't
fiddle while Rome burns.
JENNIFER MACEY: But Patrick Parkinson, the former chair of the Family Law
Council and Professor of Law at the University of Sydney, says there's no
need to scrap the current law.
But he says it may need some tweaking.
PATRICK PARKINSON: Courts need further guidance and lawyers need further
guidance on when shared care is and is not appropriate.
You've got to be very careful with shared care arrangements under about
five-years-old because of the attachments that very young children have to
their primary carer. You don't want to have long gaps between the time
they see mum.
It's better to have frequent short visits from dad rather than to have
long separations from mum.
So there's some clarification needed, I think it's important to give
further clarification around the issue of relocation.
But it would be a grave mistake to think that the whole legislation is
deeply flawed, it would also be a grave mistake to amend the law on the
basis of anecdotes or horror stories. We need proper evaluation, proper
research and careful thought.
PETER CAVE: Professor Patrick Parkinson from the University of Sydney
ending that report from Jennifer Macey.
MP3 format:
http://mpegmedia.abc.net.au/news/audio/twt/200906/20090603-twt-08-family-cou
rt.mp3
01 June 2009
The Australian
Divorced mums forced to stay put
By Caroline Overington
New laws governing the custody of children are being used to prevent
mothers from moving even a short distance from the family home after a
divorce, according to experts in the field.
Non-custodial parents - usually fathers - are able to use the laws to claim
that such a move will deny their children the right to spend "substantial
and significant time" with both parents, as required by the new law.
In one case, known in court transcripts as Crowe, a father was able to get
the Family Court to restrain his former wife from moving the children's
home to "any place outside a radius of 30km from the Sydney GPO".
The new law requires the Family Court to presume that the best interests of
the child are served by a meaningful relationship with both parents.
Two recent studies of the impact of these provisions confirm it is now
harder for parents to get permission to leave town with the kids, even in
cases where the wife is at extreme disadvantage.
The Australian last week reported a case where a mother was prevented from
leaving a remote town in far north Queensland with her five-year-old
daughter, despite having lived there for less than a year, and being
confined by high rent to life in a caravan park.
In a paper presented to a lawyers' symposium in March, David Alexander
said: "It is now a relatively simple matter for the non-residential parent
to claim that even a short-distance relocation will preclude substantial
and significant time (with the child)."
Similar conclusions were reached by family law expert Patrick Parkinson, in
the Australian Journal of Family Studies.
His analysis "indicates that it is harder for a primary caregiver to
relocate than before the 2006 amendments".
Dads In Distress is funded by the Australian Federal Government.
|
|
Back to www.dadsindistress.asn.au
