Category Archives: News

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Social networking sites partly to blame for increase in couple splits over 55yo

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ONLINE networking, empty nest syndrome and an increasing acceptance of separation are driving up the number of “grey divorces” in South Australia, experts say.

Adelaide law firmssay the number of divorces by couples over 55 has significantly increased.

Family Law specialist at Adelaide’s Tindall Gask Bentley, Jane Miller, said her firm was dealing with an increase of almost 40 per in divorce cases in this age category during the past four years.

“We are starting to see more divorces from people that age and above because it is becoming more accepted in society on the whole,” she said.

“Rather than staying together and unhappy, like the generation before them might have, it is now much more acceptable to separate.”

Ms Miller said separation might have a big impact on mental wellbeing and could be confronting for the bank balance.

“When you split assets that people have worked very hard for and for a very long time it can be quite distressing and the lifestyle that a couple is used to can be seriously affected.”

Principal of Adelaide Lawyers Nick Greer said his firm was also dealing with a significant increase in divorce cases.

And he said that number would be even greater if divorce paperwork was not seen as so expensive.

“The lodging fee for divorces is now $800 — which is a significant deterrent to people actually applying for divorces now,” he said.

“Unless someone is wanting to get remarried, we are finding many do not lodge a divorce application until they deem it necessary.”

Latest Australian Bureau of Statistics figures reveal divorce rates are on the rise, up two per cent since 2011, with a total of 49,917 Australians – including 3,511 South Australians – splitting from their partners in 2012.

The results show a gradual increase in the median age at separation and divorce since 2007.

People aged between 40 to 44 had the highest percentage of divorces granted, with 16.9 per cent of males and 17.6 per cent of females granted a divorce in this age group in 2012.

UniSA senior lecturer of clinical psychology Dr Nadine Pelling said older people were getting much more techno-savvy and often were tempted by friendships sparked on the internet.

“The grass always looks greener on the other side but you have to remember you are only seeing a part of people that they want you to see,” she said.

“Also, the population is getting older, people are living longer so couples might have 25 years or more left after the kids leave, instead of just a few years, so they have to think about loner-term happiness rather than just sticking it out.”

She said that she often speaks with couples who had decided to hold together until they were older as they did not want to rip the family fabric for their children and separate earlier.

Family Psychology and Mediator principal councillor Ian Richards agreed couples over 55 often felt it challenging to deal with the “empty nest” syndrome.

“The couple suddenly has to redefine who they are,” he said.

“It used to be all about the children then suddenly they look at each other and go ‘who are you’”.

Mr Richards said although initially a difficult transition, couples that decided to stay together often achieved great happiness together.

Renewed calls for a Royal Commission to be held into domestic violence

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A LEADING child safety organisation Bravehearts has supported a Victorian Labor push for a Royal Commission to be held into domestic violence.

Bravehearts founder Hetty Johnston said on Sunday the Queensland-based organisation fully supported the proposal, calling for drastic measures to protect women and children.

However, Ms Johnston said it will fail to achieve its true objective if it did not include the Family Law Court.

“Whether its child sexual assault, domestic violence, or both, the fact is there is no accountability and no transparency within the Family Law Court,” she said.

“That is a combination that is always dangerous in any situation and in any organisation, including our judicial system.

“The Family Law Courts continually demonstrate profound ignorance and indifference in putting our children and their mothers in danger so consistently.

“Drastic measures must be taken now so the safety of women and children in this country is an immediate priority.

“They should not have to live in fear in their own homes.”

Victoria’s Opposition Leader Daniel Andrews vowed to establish the inquiry if elected on November 29 saying domestic violence had become a national emergency.

Rosie Batty, whose son Luke was bashed to death by his father Greg Anderson on a cricket oval earlier this year, said she would fully support any commission which was established.

Ms Batty told ABC Online she welcomed a Royal Commission to begin addressing the problem.

“I think it is great. I think that to be taking family violence so seriously is a really important step,” she said.

“It is really encouraging that someone really listened to some of the concerns that we have.”

Empty days, lonely nights


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A belief that children under three should not stay overnight with their separated or divorced father has underpinned our family law system for years. Has it all been a mistake? Bettina Arndt reports.

Across Australia, fathers are being told in mediation sessions or by lawyers that there’s no hope of overnight contact with children under three years old.

At Family Relationship Centres (FRCs), where couples attend compulsory mediation prior to a Family Court appearance, any sharing of overnight care of infants and toddlers tends to be discouraged.

“Sharing of overnight care of infants is problematic,” states a South Australian Family Law Pathways document produced for local family law organisations. The document, funded by the Commonwealth Attorney-General’s department, is circulated by many FRCs throughout the country.

It stresses the “importance of the primary attachment relationship” with the mother and reassures dads that with regular contact, even of a few hours, they can “readily develop close and loving relationships” with their children.

But according to a recently published academic paper endorsed by 110 leading international experts, it is not the case that sharing of overnight care of infants is problematic. The paper, Social Science and Parenting Plans for Young Children: A consensus report was published in February in the American Psychological Association’s journal, Psychology, Public Policy and Law.

It is backed by leading Australian academics including Don Edgar, the former head of the Australian Institute of Family Studies, Judy Cashmore, Associate Professor in Socio-Legal Studies at Sydney University and Barry Nurcombe, Emeritus Professor of Child & Adolescent Psychiatry, University of Queensland.

This article analyses existing research and finds that infants commonly develop attachment relationships with more than one care giver and concludes that in normal circumstances children are likely to do better if they have overnight contact with both parents.

It also finds that depriving young children of the opportunity to stay overnight with their fathers could compromise the quality of developing father-child relationships.

The article makes compelling reading because it challenges current policy on the care of young children – policy that has such a firm grip on Australia’s family law system. The report also provides a review of the research underpinning that policy. The most influential study was led by La Trobe university adjunct professor and clinical psychologist Jennifer McIntosh. Her study suggests even one night a week of overnight care undertaken by the non-primary parent may increase the stress levels of children aged zero to two in certain circumstances.

The influence of this study on Australia’s family law system has been so profound that barristers have a special phrase to describe the common experience of losing the battle for some overnight care of toddlers – they joke they’ve been “McIntoshed”. But for the fathers concerned it is no joking matter.

The McIntosh era dates back to 2010 when the Labor government commissioned her to lead an investigation into the impact on preschoolers of overnight contact in their father’s care.

The previous Coalition government had implemented a series of reforms to family law aimed at enabling children to have more contact with their fathers after a divorce, including in 2006, a presumption of shared parental responsibility.

Prime minister John Howard was an outspoken advocate of the father’s role in children’s lives but the Rudd government showed no such inclination.

“Our government supported the right of children to contact with both their parents, provided the child is not exposed to any risk,” says Philip Ruddock, the attorney-general who implemented the 2006 reform. “Labor has sought to wind that back. They’ve long been captured by the female lobby determined to retain sole control over their children.”

In 2007, McIntosh published a report highly critical of the Coalition’s shared custody reforms. When Labor attorney-general Robert McClelland appointed a lead researcher for the new “preschoolers” study McIntosh was the obvious candidate.

The results brought bad news for fathers. McIntosh’s key finding was that infants under two who spent one night or more a week and toddlers who spend 10 days a month of overnight time in their non-primary caregiver’s care are more irritable, more severely distressed and insecure in their relationships with their primary parent, less persistent at tasks, and more physically and emotionally stressed.

However, the significance of these findings have been questioned in two papers published online in February in Psycho-logy, Public Policy and Law. The expert report, Social Science and Parenting Plans for Young Children: A consensus report, written by Richard Warshak, psychiatry professor from the University of Texas Southwestern Medical Centre claims that McIntosh and her colleagues “drew unwarranted conclusions from their data”.

The report finds that there are issues with the way the data in McIntosh’s study was collected and analysed and this leads to problems with the way the findings have later been applied in policy making and agenda setting.

The report finds that the study provides no reliable basis to support custody policy, recommendations or decisions and hence the findings from the data should not have been used as a platform for developing public policy in the area. This is something that McIntosh acknowledges in her research paper.

Further criticisms of McIntosh’s study and the way it has been used are laid out in the second paper by Linda Nielsen: Woozles: Their Role in Custody Law Reform, Parenting Plans and Family Court which was published at much the same time in the same psychology journal. This claims the McIntosh research has been used by policymakers, the media and academic circles in a way that goes beyond its original findings.

McIntosh has recently co-written a two-part paper soon to be published in the Family Court Review – Parental separation and overnight care of young children: Consensus through Theoretical and Empirical Integration examines the current research evidence and acknowledges that “cautions against any overnight care during the first three years have not been supported”.

This paper is “welcome”, says University of Sydney law professor Patrick Parkinson. Parkinson applauds the emerging consensus that it is fine for infants and toddlers to spend some overnight time with their fathers provided the child is comfortable in that care.

“Blanket statements to the effect that children under three should never stay overnight with their non-resident fathers should now be treated as entirely incorrect,” he says. However, he also says that many family law practitioners, counsellors and mediators have had the impression that the research supported such a policy.

McIntosh claims she has “never suggested that children under three should never stay overnight with the father”. While acknowledging that the limitations of her study have always been on clear view, she defends the reliability of the data on which her study was based.

In a discussion paper for the Australian Association for Infant Mental Health (AAIMH) in 2011, McIntosh wrote that: “Regardless of socio-economic background, parenting warmth or co-operation between parents, the shared overnight care of children less than four years of age had a significantly negative impact on the emotional and behavioural wellbeing of the child. Babies under two years who lived one or more overnights a week with both parents were significantly stressed.”

The same year she also wrote a guest editorial for The Family Court Review which included the following summary: “Repeated overnight stays away from the primary caregiver in the first year or two may strain the infant and disrupt formation of secure attachment with both parents. Overnight stays away from the primary caregiver in early infancy are generally best avoided unless of benefit to the primary caregiver.”

In response to questions from The Age McIntosh says the overnight studies “should not on their own dictate any kind of policy”.

McIntosh’s background papers were used to prepare guidelines on infant care for a number of leading organisations such the Australian Psychology Society and AAIMH. She is listed as the lead author of the APS position paper which states “infants (under three) have biologically grounded needs for continuous reliable care from a primary care giver”.

McIntosh told The Age that Richard Warshak and Linda Nielsen are “impassioned advocates who have sought to discredit me . . . to further political agendas”. Warshak is an international authority on parental alienation in child custody who has worked as a White House consultant on family law reform. Nielsen is a professor of adolescent and educational psychology who has published extensively on father-daughter relationships and shared parenting.

“The experts who signed the report are amongst the best in the world in their fields,” says Barry Nurcombe, Emeritus Professor of Child & Adolescent Psychiatry at the University of Queensland, who is among the 110 academics who endorse Warshak’s paper.

Nurcombe says the paper highlights the fact that current policies relating to overnight contact with these young children have been excessively affected by misplaced concern about the primary attachment to the mother.

“Since we didn’t know whether any shared overnight care was harmful we fell back on the default position assuming that primary attachment was all important,” he says, explaining that many experts, like him, have now been convinced that these children can form multiple attachments.

He notes that the consensus report was signed by world authorities on attachment Ross Thompson, Karin Grossmann and Avi Sagi-Schwartz and the editor of the leading journal in the area, Howard Steele.

The very notion of a “primary parent” or “primary attachment” has come in for a battering in the fierce public discussion that has taken place over this issue. Many academic and media articles point out this doesn’t make sense given that most children under two living with single mothers at least occasionally and sometimes frequently stay overnight with other people – grandparents or other relatives, babysitters – plus spend long hours in childcare. There are also many cultures where shared care is normal in extended families.

For the last few years thousands of Australian fathers have had their contact with their young children limited to a few hours often spent wandering in parks or fast food restaurants. They have been forced to spend huge sums on lawyers, fighting to be able to care for their children overnight.

The McIntosh study is one of the major reasons they have not been successful, says Justin Dowd, a leading family lawyer and past president of the Law Society of NSW.

“It led to the belief, almost a presumption, that children under three should not spend overnight time with their non-resident parent. Faced with that research many fathers have been discouraged from even bringing applications for overnight time with very young children and the ones who have gone to court have often been disappointed to find that research being quoted against their application.”

While many fathers will celebrate if that research finally loses the hold it has had on our family law system, others will be angry that it cost them years of being active fathers closely involved in the lives of their children. There are signs that the expert consensus paper may prove a game changer for many fathers trying to negotiate overnight care of young children. Diana Bryant, the Chief Justice of the Family Court, whilst stressing cases before the court are subject to individual assessment, says it is vitally important that “family consultants and experts giving evidence in family law proceedings, as well as judges, are familiar with the current research and differing views about it”.

She also expects the court’s family consultants to keep up to date with current debates: “They have been made aware of this particular issue in relation to overnights and young children.”

The Australian Association for Infant Mental Health is revising its policies as are some key organisations which run the FRCs. “Given the new position papers that have recently been published we will be reviewing the literature that we give to parents to help them make the best decisions they can for their children,” says Matt Stubbs, the acting clinical services director of Interrelate.

But it is the fathers themselves who have the strongest motivation to ensure the family law system responds to these new events. Their support groups are determined this will happen. Barry Guidera, CEO of Dads in Distress Support Services: “We will make sure fathers are informed about the new consensus statement so that they choose lawyers and mediators who are up to date with the current expert opinion on this vital issue.”


Special skills as contributions in family law property divisions

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Whether you and your ex-spouse are negotiating your own property settlement, or whether you are making your case before the Family Court, part of that process will involve a consideration of the contributions each party has made to the marital asset pool.

Such contributions may be financial or non-financial, which will include any contributions as a homemaker and/or parent, and they will be considered broadly at three stages: initially, during the relationship, and post separation.

In a classic family law property settlement, you may encounter a couple who married when they were young and neither party had assets of significance. The couple start out working, they buy a house, they start a family and the husband continues in his paid employment while the wife stays home to raise the children. Then, after 20 years or so, they decide to separate. Their asset pool includes their home, the parties’ super, a couple of motor vehicles, furniture, bank accounts and various other items, with a net value of up to $1m or so.

In their circumstances, the husband has made the greater financial contribution as he was working full-time for the majority of the relationship, while the wife has made the greater contribution as a home-maker and parent, as she was the one who looked after the children and the household full-time.

The Family Court would generally consider the parties’ contributions as equal, as the family unit was a joint endeavour and the parties’ respective roles were both equally necessary. This would generally be expected to result in a 50/50 division of the marital asset pool subject to any necessary adjustments for the parties’ future needs.

In similar circumstances to our classic family, but where one of the parties, for example, has received an inheritance or has been gifted funds from a family member, there may be an adjustment in favour of that party to reflect the fact that the family unit benefited through the existence of that party’s other relationships.

The adjustment is generally expressed as a percentage of the marital asset pool, and the extent of the adjustment will depend on several factors including (but not limited to) the amount of the inheritance or funds provided, the timing of the receipt of the funds, what the funds were used for and the size of the current marital asset pool.

In a small number of cases, it has been argued that one party has made a significant contribution to the marital asset pool due to the exercise of skills that should be regarded as special, or over and above the standard contribution made by a party merely contributing financially through a full-time job.

Special skills have included one party working to create very successful and lucrative business, or one party having an exceptional entrepreneurial ability. The argument is that solely due to the particular skill of this one party, the marital asset pool has been considerably increased and that their role should be recognised by a special adjustment to the overall division of the property in their favour

The notion of this special skill contribution is contentious:

  • The argument is usually only raised in relation to large marital asset pools above $10m. There is therefore an arbitrary (but undefined) line over which the income earned is special but under which is considered “the norm”.
  • Where joint funds are used in an investment, both parties are subject to the same financial risks, so if the risk did not pay off, both parties will suffer the detriment, whereas if the risk is successful, the special skill doctrine would only reward the Husband.
  • The doctrine could technically be applied to non-financial contributions as home-maker and parent (where the parties had a child with special needs for example). However, this is rarely the case in practice.
  • There is no legislative basis for the argument.

The future of the special skill argument is uncertain. In a recent decision (Kane [2013] FamCAFC 205), the Full Court of the Family Court of Australia remitted for hearing a property case which had recognised “a principle in which weight is attributed to the special skill of a spouse” and which been decided with an adjustment in favour of the husband to recognise his efforts in investing in shares of a company.

In the original case, the husband invested $1,060,400, which increased to $3,420,294 in less than 2 years. The Full Court stated in their decision that excessive weight had been placed on his contribution and that the Family Law Act does not require, and the authorities do not mandate, any such doctrine (of special contribution).

Another recent decision which had recognised the special contribution of the husband (Smith & Fields [2012] FamCA 510) has been appealed. The matter was heard in November 2013, and the decision is yet to be handed down but the appeal has given the Full Court the opportunity to consider the doctrine.

At this stage, there is nothing to preclude a party making the special skill argument. However, it is far from certain that the courts will apply the doctrine and we may receive a definitive answer in the not too distant future.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Barriers to overnight arrangements may be lifted under a new court proposal

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Barriers constraining divorced fathers having their young children stay with them overnight may be lifted, with key family law organisations revising policies blocking overnight care of infants and toddlers.

The rethink follows the publication of an academic paper endorsed by 110 leading international experts challenging the policies. The paper is highly critical of a key 2010 study that found any regular overnight care by fathers was damaging to infants and toddlers.

The paper, Social Science and Parenting Plans for Young Children: A consensus report, by Professor Richard Warshak was published in the American Psychological Association’s journal, Psychology, Public Policy and Law, in February.

It says that the 2010 study, led by Melbourne child psychologist Dr Jennifer McIntosh, was inappropriately used to suggest that any regular overnight care by fathers was damaging to infants and toddlers. ‘‘This study provides no reliable basis to support custody policy, recommendations or decisions,’’ the Warshak paper found.

The experts said the findings of Dr McIntosh’s study should not have been used as a platform for developing public policy in this area. Dr McIntosh has told Fairfax Media she pointed out in her research paper that her findings should not have been used for making policy.

Professor Warshak was an ‘‘impassioned advocate’’ seeking to discredit her to further his own political agendas, Dr McIntosh said. She said her work had been ‘‘interpreted in a particular way by fathers’ rights groups for some time’’, and that ‘‘the conclusions in her research were only ever gender neutral, and cautionary only as to frequency of overnight care of infants in particular circumstances’’.

McIntosh’s lawyer said: ‘‘Unfortunately, she cannot control how these conclusions are extrapolated by third parties and then attributed to her. However, it is important to confirm that she is not the source of such extrapolations.’’

Some key organisations, such as the Australian Association for Infant Mental Health are revising their policies regarding overnight care of infants, as are many of the Family Relationship Centres (FRCs) offering the compulsory mediation required prior to Family Court proceedings.

‘‘Given the new positions papers that have recently been published we will be reviewing the literature that we give to parents to help them make the best decisions they can for their children,’’ said Matt Stubbs, the acting clinical services director of Interrelate family centres.

One of the experts who endorsed the consensus paper, foundation director of the Australian Institute of Studies, Don Edgar, said he was ‘‘disturbed’’  that research findings were  used against fathers’ access to, and visiting rights with, young children.

‘‘Those who endorsed Warshak’s careful review paper are not ideologists for men; they simply object to the misinterpretation of data and its misuse in family law policy,’’ he said. ‘‘Children need consistent contact to form bonds with fathers and other carers, not just mothers, and lack of early contact denies children both the right to dual parenting and to ongoing child support from their fathers.’’

The expert paper concluded infants commonly develop attachment relationships with more than one caregiver and that in normal circumstances children are likely to do better if they have some overnight contact with both parents.

It said depriving young children the opportunity to stay overnight with their fathers could compromise the development of father-child relationships.

McIntosh has recently co-authored a two-part paper soon to be published in the Family Court Review – ‘‘Parental separation and overnight care of young children: Consensus through Theoretical and Empirical Integration’’ – which examines the current research evidence and acknowledges that ‘‘cautions against any overnight care during the first three years have not been supported’’.

There are signs the new consensus paper could affect current policies. Diana Bryant, the Chief Justice of the Family Court, said she expected her court’s personnel, including judges, family consultants and experts to be familiar with current research, including recent developments regarding overnight care.

Relationships Australia, which runs most of the FRCs issued this statement: ‘‘If there has been a trend towards limiting shared parenting and overnight contact with young children and fathers in recent years, it has not been a move advocated by Relationships Australia. We have noted an increase in shared parenting in recent years and consider this a positive outcome for both children and parents.’’

Federal Attorney-General Senator George Brandis said: ‘‘it is very important key public institutions have regard to evidence-based advice,’’ while noting the government cannot direct policy influencing mediation in FRCs nor decisions made by the courts.

While there is nothing in the Family Law Act concerning overnight care of pre-schoolers, the Coalition has previously indicated it would examine changes made by the Labor government to Howard government reforms promoting shared parental care.


Want Free Legal Aid Access? If You Live In The City of Gloucester Your in Luck

Free legal aid access

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ELIGIBLE people living in and around Gloucester can now get regular, free legal assistance for civil law issues.

Bucketts Way Neighbourhood Group and the Legal Aid Newcastle office have teamed up to provide fortnightly free legal advice services.

The advice will be provided via web-conference or telephone by lawyers from Legal Aid NSW.

Clients will be supported by staff from Bucketts Way Neighbourhood Group to use technology to access lawyers.

People can get assistance with problems including: debt and money issues; problems with housing; issues with Centrelink payments and Centrelink debts; issues with employment; guardianship and powers of attorney; fines and traffic offences; driver’s licence suspensions; car accidents; buying goods and services; AVOs; discrimination; and problems with police.

“The use of telephone and web conferencing is an innovative way of facilitating access to legal services for people living in Gloucester,” chief executive of Legal Aid NSW Bill Grant said.

“It is important that people can get help with common legal problems such as credit and debt, employment law and tenancy issues. Problems such as these can have a very big impact on people’s lives.

“Getting advice early can help people understand their situation and what they can do about it and, in some cases, find a way to pursue their rights and entitlements,” Mr Grant said.

 The initiative was formulated out of Bucketts Way Neighbourhood Group’s community development worker Kelley Chapman advocating for the community to have a free legal presence in Gloucester.

“It is exciting as Legal Aid has not convened its clinics utilising technology in delivering their service, via web cam, in this manner previously. Essentially Gloucester is a pilot service,” she said.

“If the service proves to be successful the initiative will be able to be delivered into other rural isolated communities which will potentially support once unreachable communities due to time and cost restraints.”

The clinics will be held at Bucketts Way Neighbourhood Group at 14 Queen St every second and fourth Thursday of the month from 9.30am to 12pm. Bookings can be made by calling

Kelley Chapman on 6558 2058 or email

Great Cause Helping Those in Need

Legal eagles to Walk for Justice

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Hundreds of lawyers will take to the streets during Law Week next month to celebrate National Pro Bono Day and raise funds for Justice Connect.

This year’s Walk for Justice will be held on 13 May in Melbourne, Sydney and Newcastle as part of Law Week 2014 (12-18 May).

The event supports pro bono organisation Justice Connect, which provides access to justice to marginalised and disadvantaged people and the community organisations that support them.

Legal eagles to Walk for Justice

In Sydney and Newcastle the Walk for Justiceis dedicated to the Justice Connect MOSAIC program and the work pro bono lawyers do in assisting refugees and newly-arrived migrants.

The Melbourne event will focus attention on the Justice Connect Homeless Law program and a new project that aims to prevent women and their children from becoming homeless.

Last year, the Walk attracted hundreds of lawyers as well as Lawyers Weekly.

“I thought it is a good thing to do,” Allens paralegal Jacques Mcelhone told Lawyers Weekly at the 2013 event.

“I do know that PILCH do a lot of good work in the community for people who don’t have access to legal representation, so I thought it would be a good thing to support,” he added.

It is still possible to register for the walk, which takes about an hour.

Helpful Article for People Seeking Self Representation

Standing up for themselves: self-represented litigants

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Thursday 3 April 2014 9:08AM

With legal aid budgets under extreme pressure and the cost of hiring a lawyer out of reach for many, self-represented litigants are increasingly common, particularly in the civil and family court systems. Christine Demiris takes a look at the litigants who go it alone.

Last week, John* represented himself at a three-day hearing at the Federal Circuit Court in Brisbane after being quoted $20,000 by a lawyer. Despite reaching an out-of-court settlement he was happy with, John found the experience confusing and stressful. ‘Just being able to stand in front of a courtroom and have your say … became quite difficult to get through,’ he says.

John received some assistance in preparing his case from the Queensland Public Interest Law Clearing House (QPILCH). They helped him draft documents and explained the legal steps in the process. John says the assistance also helped him in forming questions for witnesses.

In a lot of ways self-represented litigants have expectations of the court system that don’t reflect the reality of the situation.


Despite the obvious value of such pre-trial assistance, QPILCH coordinator and Federal Court solicitor Elizabeth Pendlebury believes that the ability of a litigant to successfully argue his or her own case ‘really depends on the litigant, it depends on how sophisticated they are themselves, how readily they wrap their heads around the information that we are able to provide’.

There are success stories, such as one self-represented client who, following an 18-month process, ran a five-day trial, obtained the orders he had been seeking and was then able to successfully respond to a consequent appeal.

‘In a lot of ways self-represented litigants have expectations of the court system that don’t reflect the reality of the situation,’ says Ms Pendlebury. ‘So there’s a perception that if they can “have their day in court” everything will be all right … they don’t expect to have to follow a lot of pre-trial proceedings and steps to set out their case.’

The lack of understanding about court and pre-trial processes presents a unique challenge to the courts. Judge Phillip Misso manages the damages list in the County Court of Victoria. He describes some self-represented litigants setting up their cases in an ‘almost indescribable’ manner when compared to what a lawyer would do. The result, according to Justice Misso, is a situation in which sometimes ‘I think you do have a pretty good case, you just haven’t had the means by which you can pull it all together’. For this reason, Justice Misso says, self-represented litigants ‘in the majority of cases … don’t come off too well’.

There are measures in place to assist self-represented litigants in the County Court of Victoria, such as a self-represented litigant coordinator and informative videos and booklets. Some judges also assist self-represented litigants by making orders that are a sort of ‘roadmap’, setting out the steps that the person is required to take and signposting to help manage people’s expectations about the process. There is, however, a limit to what the court can do because of the need preserve the integrity of the adversarial system. ‘We have to be very careful that we don’t go too far to actually be the advocate for the self-represented litigant,’ says Justice Misso.

Managing expectations is particularly important, and particularly difficult, when faced with a querulous litigant. Although they make up only a small percentage of the broader group of self-represented litigants, querulous parties can have a significant impact on the court process. Tania Sourdin is a professor of law and dispute resolution at Monash University. She says querulous litigants in some cases ‘present information which is incorrect or inaccurate, or behave in a way which makes it very difficult to run a case in an appropriate manner, and really to accord some dignity in terms of the processes’. The bad behaviour Ms Sourdin describes includes examples of stalking, deliberately causing delay and presenting information which is incorrect or inaccurate.

‘The way in which the person talks to the person on the other side is so appalling that one really wonders how justice can be done under those circumstances,’ says Sourdin.

Communication between parties is a particular concern in the family law jurisdiction, where self-representation is common. Kate* acted for herself when her ex-partner sought to vary the care arrangements for their children. ‘The biggest problem was the fact that the other party did have a lawyer, and so I think he felt like he could push me around a little bit more than he may have if I had representation,’ she says.

Read more: Can police be held responsible for not protecting women?

Like John, Kate consulted with a lawyer prior to her hearing, which she says helped her level of confidence. Nonetheless, Kate says that she would recommend hiring a lawyer for those who can afford it. ‘I would have felt much more confident … that would have maybe not made the situation so stressful,’ she says.

The ability of an unrepresented litigant to effectively navigate the process and obtain a satisfactory outcome from the court when compared to a represented litigant depends on the case, according to Mark Le Poer Trench, a judge in Sydney’s Family Court. He believes that in less adversarial cases, such as parenting cases, the ‘judges take on a far more active role’ whereas in a more strictly adversarial case such as property disputes, it is up to the unrepresented litigant. ‘They have to put before the court evidence to support the orders that they are seeking,’ he says.

Self-represented litigants also create a difficult situation in which alleged perpetrators of abuse or violence cross-examine their alleged victims. In those circumstances, ‘a judge just has to control it’ so as to ensure the alleged perpetrator is not further abusing somebody throughy their questioning, says Le Poer Trench.

Eleanor* was directly cross-examined by her abusive ex-partner during Family Court proceedings. She describes the ‘horrendous’ experience as having ‘stripped’ her. ‘At the end of the day I walked out of there not sure whether I could actually face the court the next day, and I literally wanted to throw myself in front of the first bus,’ she says.

Despite a warning from the magistrate that he only ask appropriate questions, Eleanor felt her ex-partner was given ‘all of his power back’. ‘Even though his questions may not have seemed to have been that bad to other people, he knew which questions to ask, he knew how to press the buttons of trauma for me,’ she says.

The prospect of going to trial and being directly cross-examined by a violent ex-partner is a source of major discouragement against pursuing court action, according to Pasanna Mutha-Merennege, the Womens Legal Service of Victoria’s policy and campaigns manager. Ms Mutha-Merennege feels that, as well as additional legal-aid funding, there is a need for legislative protection to prevent self-represented litigants from being able to directly cross-examine vulnerable parties.

About 30 per cent of trials in the Family Court involve an unrepresented party, according to the 2013 annual report published by the court. Given the considerable expense of hiring a lawyer and the strain on legal aid funding, that is unlikely to change. Instead, self-represented litigants are likely to become more common. Given this reality, guidance from the court and the sort of legislative protections advocated by Ms Mutha-Merennege will be increasingly important to ensure that people are able to navigate the justice system on their own.

Australia to help victims of family violence on partner visas

June 27, 2012

Australia has introduced new measures to help victims of family violence on provisional partner visas. Australia’s Minister for Immigration and Citizenship, Chris Bowen MP, and the Minister for the Status of Women, Julie Collins MP, said the changes would lead to an improvement in the assessment of family violence cases under migration law and provide for a wider range of evidence to support such claims.

“Under the new arrangements, in order to improve the accessibility and operation of family violence provisions, we will streamline the evidence requirements claims for a visa on the basis of family violence,” Bowen said. “The current process of obtaining statutory declarations, with a set of technical requirements, can be quite difficult for some victims.”

The department plans to implement the changes from 24 November 2012. In the interim, the Australia Department of Immigration and Citizenship (DIAC) will update policy guidelines to confirm that applicants on partner visas that provide evidence in addition to the required statutory declarations should be considered.

Under Australia’s Family Violence Provisions, certain people applying for permanent residence in Australia can continue with their application after the breakdown of their marriage, if they can provide acceptable evidence that they or a member of their family unit have experienced family violence from their partner. This covers partners and spouses in a number of family and business class visa clases.

“Domestic and family violence are unacceptable. It’s important women do not face obstacles in leaving violent relationships and that they receive the support and assistance they need,” Collins said. “These measures will make a real difference to the lives of women on temporary visas who have experienced the trauma of family violence.”

However, to ensure the integrity of assessments, applicants on partner visas will still need to provide a minimum standard of evidence.

“DIAC will consult with a range of organisations who work with victims of family violence to develop an appropriate list of acceptable evidence,” Bowen said.

Partners or fiancés of Australian citizens, Australian permanent residents or eligible New Zealand citizens can apply to enter and/or remain permanently in Australia. Partner category migration may apply to:
•people intending to get married (fiancés)
•married partners
•domestic partners and those in a same-sex relationship

Court system ‘better, even if underfunded.’

BY: DEBBIE GUEST, The Australian
June 08, 2012

LONG delays in Western Australia’s Family Court cannot be blamed on the separation from other states, but is instead due to a lack of resources, lawyers say.

Family law specialists in the west say the system of a separately run court is the envy of other states and has many advantages.

The delays, which force warring couples to wait almost two years for a trial, have come under scrutiny and left the court’s chief judge, Stephen Thackray, calling for extra permanent judicial officers.

Chief Judge Thackray warned last week in The Australian that funding issues needed to be addressed to avoid his court falling into the red.

The federal Attorney-General, Nicola Roxon, has said the government is committed to a national family law system.

But the president of the Family Law Practitioners Association of WA, Rod Hooper, said that the separate model was the best in the country.

“The model we have in WA, absent the resourcing issue, is the envy of everybody else,” he told The Australian.

Mr Hooper said the Family Court of WA had developed some of the most innovative practices of any other state.

“It’s not that this is some little parochial, out-of-date court that needs to be patted on the head and shoved in a corner; it’s a court that’s been at the innovation forefront forever and still is,” he said.

Mr Hooper said all the commissioned reports and research had indicated that WA’s system was an appropriate and good model.

“The simple reason is this: in all of the other states, when you want information from state authorities, it’s a bit complicated to get it because you’ve got problems between state and federal departments. In the Family Court of WA, we’ve got an officer of the Department for Child Protection who works in the court, so if you want information and files it’s immediately shared. It is the same with state police.”

He said resourcing problems began in 2002 when the Labor government introduced legislation allowing de facto couples, including same-sex couples, to argue property disputes before the court.

“Since then the Family Court of WA has been starved of funds,” he said.

Chief Judge Thackray declined to comment on whether WA should continue to have a separate Family Court model, and said it was a matter for government.

He did tell The Australian that the court “greatly valued” the close and collaborative arrangements with Child Protection and family law providers, most of which were state-based.

“I think it is fair to say that the way we work with the local agencies is widely regarded as a good model,” Chief Judge Thackray said.

“In my experience it is important that those close working links are nurtured at the local level.”

Law Council of Australia family law section deputy chairman Rick O’Brien said that, structurally, the WA system was better.

“The only downside of WA maintaining a separate Family Court is the opportunity it affords governments to argue about who should fund it,” he said.

“The court, in my personal opinion, needs a permanent judicial roster of at least six judges and nine magistrates,” Mr O’Brien said.

The court at present has five judges and eight magistrates, one part-time. This does not include recent announcements by state and federal governments that have seen funding for a temporary magistrate, an acting magistrate and support staff.

WA Attorney-General Christian Porter said the delay in the Family Court was not due to how it operated and could be blamed on three judges becoming ill and the failure of the federal government to replace them quickly.

“If the state withdrew completely from the family court jurisdiction in WA, no state money of any type would flow to the family court and then the question arises: would West Australians be better off relying solely on the commonwealth government? And I would of thought on recent experience the answer is no,” Mr Porter said.