Freedom Law

Application to discharge spousal maintenance dismissed

Application to discharge spousal maintenance dismissed

Ezard & Ezard

Application to discharge existing Court Order and arrears

  1. I turn now to consider the husband’s application to discharge the existing order which requires him to pay spousal maintenance to the mother and his application for discharge of the arrears owing by him to her as a consequence of that Order.
  2. The husband’s formal application is contained within the Response to an Application in a Case (filed 20 October 2016) by which he seeks an order that the Order made 4 May 2015 – which provides that he is to pay the mother spousal maintenance in an amount of $1,000.00 per week – be discharged.
  3. I note, however, that a further Order was made by consent on 13 July 2015. This Order (which is the operative order) reflects the parties’ agreement that, from 15 June 2015, the husband pay the wife $1,000.00 per week spousal maintenance and that, by way of order departing from the quantum of child support payable pursuant to the assessment of child support in accordance with the Child Support Assessment Act 1989 (Cth), he pay the mother child support in the amount of $500.00 per child per week from 15 June 2015 and also pay the costs of the children’s attendance at private school and meet other defined expenditures.
  4. During the hearing, Counsel for the husband made it clear that the husband seeks to discharge the July 2015 Order only insofar as it relates to his obligation to pay spouse maintenance and that he seeks to discharge only those arrears which have arisen as a consequence of the obligation imposed upon him by that order to pay spouse maintenance to the wife in the sum of $1,000.00 per week. He does not, therefore, seek to discharge the Order insofar as it relates to his financial obligation to pay child support or to discharge any arrears which exist in relation to that obligation.
  5. The wife’s evidence is that the husband ceased making any payments in relation to child support and spousal maintenance in about October 2015. She says that, since then, he has only paid mortgage and insurance premiums referable to the former shared residence and has paid the children’s school fees. She accepts that he has paid $17,683.32 since the July 2015 Order was made.
  6. The wife asserts that, as at 12 December 2016, the husband is in arrears in an amount of $33,000.00 – referable to spousal maintenance – and $25,320.11 – referable to child support.
  7. Her case, in essence, is that his failure to comply with the obligations to pay monies he agreed to pay to her has arisen in circumstances where he continues to take the children with him to Sydney each alternate weekend. It is also submitted that his non-compliance with the Order has occurred despite his gross personal income for tax purposes being over $2 million in the 2015 financial year and about $800,000.00 in the 2016 financial year.
  8. It was appropriately accepted by Counsel for the husband that the husband bears the onus of establishing those matters prescribed by s 83 of the Family Law Act 1975 (Cth). That section provides that, if there is in force an order with respect to the maintenance of a party to a marriage, the Court may (relevantly) discharge the order if there is any just cause for so doing or suspend the operation of the order (wholly or in part) either until further order or until a fixed time or the happening of some future event or, subject to s 83(2), vary the order so as to increase or decrease any amount ordered to be payed or in any other manner.
  9. Section 83(2) of the Act relevantly provides that the Court shall not make an order increasing or decreasing an amount ordered to be paid by an order unless it is satisfied that, since the order was made, the circumstances of the person liable to make payments under the order have so changed as to justify it so doing. Further bases upon which a Court may make an order increasing or decreasing an amount previously ordered includes that material facts were withheld from the Court that made the order or that evidence previously given was false.
  10. Section 83(5A) of the Act relevantly provides that the Court should have regard to any payments, transfer or settlement of property made by a party to a marriage to the other party. There is no evidence to suggest that there has been any transfer or settlement of property previously made by the husband to the wife, other than that he has previously paid $30,000.00 to her for her use in meeting legal expenses associated with the litigation.
  11. It is clear also (see s 83(6) of the Act) that the Court has the power to make an order decreasing the amount of a periodic sum payable under another order in a retrospective manner to such date as the Court considers appropriate. Section 83(7) of the Act provides that, for the purposes of s 83, the Court shall have regard to the provisions of s72 and s 75 of the Family Law Act 1975 (Cth).
  12. Having regard to the evidence relied upon by the husband in support of his application, I consider, on an interim basis, it to be more likely than not that the indebtedness referred to by the husband in that material was likely to have been known to him at the time he entered into the July consent order. Further, whilst it appears he received a Statutory Demand for payment of about $900,000.00 in October 2015, this was referable to a period from October 2014 to October 2015 and likely known to the husband. I also take into account that, despite this Demand having been received by him, he made no application to the Court to seek to be released from the terms of the consent order made in July 2015 until much more recently. Further, there is no evidence given by the husband to suggest that the debts he refers to – including the significant one to the Australian Taxation Office – as those he is required to repay arose only after he entered into the July consent order, or that his obligation to meet those repayments represents a significant change to his financial circumstances in circumstances that were unknown to him, or incapable of being known by him, when he entered into the July 2015 consent order.
  13. Further, whilst the May 2015 Order was, it seems, the original order by which the husband agreed to pay the wife $1,000.00 per week by way of spouse maintenance, he reaffirmed this agreement on 15 July 2015 when he agreed to a further order being made in those terms. His evidence is that he learned of the loss of a contract with a government department, “in about July 2015”. His evidence is no more specific than this. He says that, as a consequence of the loss of this contract, he lost income and had an increased debt level. However, he obviously is the person who could have given clear evidence that he had not lost the contract at the time he entered into the consent order in mid-July 2015 or, for example, that he did not know there was any prospect of him losing the contract or, for example, that he was completely taken by surprise at the loss of the contract. The fact is that he has not provided the Court with such evidence. Further, it seems to me he could clearly have particularised the date on which he learned of the loss of the contract with the government department so as to establish – without doubt – that it either pre or post-dated 15 July 2015 (when the terms of the consent order were struck) but he chose not to.
  14. Whilst it was submitted on his behalf that he pays about $9,348.00 per week tax, the mortgage repayments on the home in which the mother and children live and rent for himself, it is also clear that this was the situation at the time the parties entered into the consent order made on 15 July 2015.
  15. In addition, I note the contents of the father’s discussions with Ms I (the Family Report writer) in late August 2016 to the effect that he would be prepared to meet more significant financial obligations if the children and mother remained living in Australia: “If she gives him his financial settlement”, and the mother directs these monies to the children’s development and not religious development. This appears to me, on a prima facie basis at least, to be some evidence to suggest his financial position was not then so constrained that he was unable to pay moneys he is currently required to pay in meeting obligations imposed on him by the July 2015 Order.
  16. I am not persuaded that the husband has discharged the onus of establishing the matters required by s 83 of the Act.
  17. I consider that, if he decided not to take the children to Sydney every second weekend and, therefore, decided not to incur the costs associated with those visits (such as flights, accommodation and transport) it is much more likely than not that he would easily have the capacity to meet the terms of the Order he agreed to in July 2015.
  18. I accept, on an interim basis at least, the submission made on behalf of the wife to the effect that it appears the husband has simply determined to place the expenses associated with having the children participate in foreign language classes in Sydney every second weekend – which he estimates to be in an amount of $2,000.00 per week or $104,000.00 per year – ahead of his obligation to meet the existing order for the payment of spousal maintenance to the wife.
  19. I am not persuaded that the husband has discharged the onus of establishing that he does not have the capacity to meet the payments required to be made pursuant to the existing Order. I am not persuaded that the husband has discharged the onus of establishing that his circumstances have so changed since the July 2015 Order was made as to justify decreasing the amount payable or discharging the arrears.
  20. I am not persuaded that there is a just cause for discharging the term of the July 2015 Order which requires the husband to pay spousal maintenance to the wife of $1,000.00 per week. For these reasons, I decline to do so. Similarly, I am not persuaded that the husband has discharge the onus of establishing that there is a just cause to discharge the arrears payable by him to the wife in consequence of the existence of the July 2015 Order and I decline to do so.

Inability to work needed to succeed in spousal maintenance

Inability to work needed to succeed in spousal maintenance

Meehan & Meehan

inability to Work and Spousal Maintenance

  1. The husband also makes an application for spousal maintenance payable by the wife in the quantum of $150 per week ongoing and open-ended.
  2. Section 74(1) of the Act provides:
    In proceedings with respect of the maintenance of a party to a marriage, the Court may make such order as it considers proper for the provision of maintenance in accordance with this part.
  3. Section 72(1) states:
    A party to a marriage is liable to maintain the other party, to the extent that the first – mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:

a) by reason of having the care and control of a child the marriage was not attained the age of 18 years;

b) by reason of age or physical or mental incapacity for appropriate gainful employment; or 
c) for any other reason. 
having regard to any relevant matter referred to in sub-section 75(2).
85. The consideration under s72 is a different one to the consideration of the s75(2) factors generally under this s79 process towards altering property interests. That is, s72creates a threshold of onus of proof in an applicant, firstly, to show that he/she has ‘needs’ and, secondly, that he/she cannot meet those needs It is then, and only then, if that threshold is crossed, that a Court will turn to consider the ability of the respondent to contribute to an applicant’s needs.

  1. The husband’s needs are set out and effectively unchallenged in his statement of financial circumstances filed to June 2017. He deposes to needs of $800 per week inclusive of legal costs of $385 per week. These costs are not an ongoing expense and I therefore accept the husband’s proper weekly expenses at approximately $415 per week. He currently has no accommodation costs and the options created by my s79 orders will add extra expense for him in this regard.
  2. The husband’s income is limited to interest on his superannuation fund which currently brings in $267 per week. The separate nature of the maintenance consideration as opposed to the s79 process implies that a party should not necessarily be required to diminish their assets as a form of self-maintenance.
  3. The difficulty with the husband’s application, however, is that he has not in my view, discharge his evidentiary burden in showing that he cannot obtain some employment to attend to his own needs. It is true that he has not worked for remunerative employment for some 17 years. His doctor deposes to a number of physical ailments which would preclude him from heavy labour. He is 58 years of age. Nevertheless, cross-examination of Dr A elicited concessions that the husband could perform lighter work. Dr A agreed that the husband could physically undertake his previous occupations as a (occupations omitted) or other rather less physical work such as (omitted) or (omitted). Whilst I accept that entry for Mr Meehan into the workforce might be circumstantially difficult, this is not the test. There is no evidence before me of any efforts or attempts by the husband to obtain any employment whatsoever or to undertake any form of re-training so as to enter the workforce. In this sense there is no evidence of him mitigating his own current position. I am not satisfied, therefore, that he has discharged that onus which rests heavily on him and therefore has not crossed that threshold question in his application for spousal maintenance must fail at that point.

Unable to support herself – Wife awarded spousal maintenance

Unable to support herself – Wife awarded spousal maintenance

Unable to support herself:

Wife’s case

  1. The Wife deposes to both X and Mr P suffering from “crippling depression and anxiety” as a result of their exposure to the Husband’s behaviours, and to neither of them spending time with the Husband since separation. The Wife says she has been under significant financial stress since the parties’ separation. She has limited capacity to earn an income. She cannot afford to meet the costs of X’s medical treatment or many of hers or X’s day to day needs. She has been slowly depleting the inheritance she received from her mother’s estate in (omitted) 2016. Until consent orders were made at the time of this hearing, restraining the dissipation of the parties’ joint assets, the Wife was concerned that the Husband would diminish their joint assets including his (country omitted) retirement benefits. The Husband’s decision to sever the joint tenancy on the Property A property without her consent led to her concern that he would deal with his share of the property unless restrained from doing so. As already noted, the restraints sought by the Wife were made by consent at the time of this hearing.

Husband’s case

  1. The Husband relies on his Response filed 10 October 2017, his Affidavit and Financial Statement sworn on the same day. The Husband contends that the Wife is earning more than disclosed and that she has an even greater earning capacity. The Husband’s counsel argues that the Wife has not established the basis for a number of the expenses she claims. For example she adduces no medical evidence as to X’s treatment needs. In relation to the lump sum sought for repairs to the Property A property, except in relation to fence repairs, the Wife fails to adduce evidence to support her contention that the repairs/works are required. The Husband would agree only to the cost of the fence repairs being paid from the Controlled Monies Account.

Can the Wife adequately support herself?

  1. The Wife is 49 years of age and was out of the workforce for over 20 years while caring for the parties’ three children, looking after the home, supporting the Husband in his career, including relocating the family to (country omitted) and later to the (country omitted). While she was engaged in (business omitted) for a limited time in both (country omitted) and Sydney before the parties separated, the Wife’s income was minimal. She was always financially dependent on the Husband. The Wife deposes to compromised health from depression and anxiety and polyarthritis[5]. She deposes to her daughter X suffering from mental health issues and borderline personality disorder, demanding her time and care. While the Wife received an inheritance in April 2016 of approximately $108,000, she has already spent over half that inheritance on expenses she claims she has otherwise been unable to meet. The Wife’s counsel argues that it is not reasonable for the Wife to utilise all her funds, in circumstances where she has minimal earning capacity and minimal ability to provide for her needs, and the children’s needs into the future[6].
  2. The Wife deposes to ceasing full time work in 1994, then significantly reducing her working hours to care for the parties’ first child, Mr B, born in (omitted) 1996. While the Husband says, and I accept, that he supported the Wife to establish and maintain her (omitted) business before the relationship ended, I am satisfied on the basis of the facts set out in the chronology, that the Wife never had the opportunity to engage in full time, well paid employment, as the Husband always did. The Wife deposes to the Husband working long hours and travelling frequently for up to a week approximately once a month, which resulted in the Wife being responsible for the vast majority of domestic and child care tasks. The Wife did not return to the workforce in any meaningful way until after separation when she worked in her own fledgling (omitted) business.

Assets

  1. The Wife deposes to owning the Property A home jointly with the Husband, to bank proceeds of $75,361 (excluding account held for X), $2,918 in a paypal account, $86 in a (omitted) share portfolio and $41,981 (50% of $83,962) in the parties’ Controlled Monies Account. The Wife has a car with an estimated value of $23,000, a (omitted) business of unknown value (generating a small income), household contents with an estimated value of $5,000, and $4,000 in her solicitors’ trust account. She holds gold coins gifted to the three children by her mother. The Wife deposes to a superannuation entitlement held in two funds with a total value of $27,839. She has no liabilities.
  2. The Husband questions the accuracy of the Wife’s asset position. He relies in particular on her failure to disclose receipt of her inheritance in April 2016, until December 2016. He believes the Wife has held accounts she has not disclosed. While the Wife clearly failed in her legal obligation to fully disclose her financial position when withholding information about her inheritance, I find no evidence to support a finding that the Wife is hiding assets.
  3. I do not accept the Husband’s counsel’s argument that the Wife’s asset position disqualifies her claim for interim spouse maintenance, and that the case of Mitchell[10] should be distinguished. I am not satisfied it would be reasonable to require the Wife to spend her only capital funds to meet her reasonable needs, while the Husband meets his expenses on the income made possible by the Wife’s domestic contributions made over a 20 year marriage.
  4. On the basis of my findings, I am satisfied that the Wife cannot adequately support herself and that her reasonable needs total a net $603 a week.

Does the Husband have capacity to pay?

  1. The Husband’s counsel submits that despite his income and earning capacity, the Husband has no capacity to meet a spouse maintenance claim. He asks the Court to note that the Husband has not been able to establish more permanent living arrangements, while the Wife has had the advantage of living in the former matrimonial home.

Husband’s financial position

  1. As already noted, on a comparison of each party’s claimed expenses, the Husband claims more for entertainment, for food, holidays, for car expenses, clothing and shoes, chemist, for gifts, for hairdressing and toiletries than does the Wife. In addition he claims $312 a week for other necessary expenses (including cigarettes, a gym membership, and an admin fee from (omitted)). He pays $400 a week in rent to his landlord who is his partner. If I allow $150 for food (the Wife claims $100), $25 for hobbies/entertainment (the Wife claims $25), $10 for gifts (the Wife claims $5) and $200 a week for other necessary expenses (the Wife claims $8), that reduces the Husband’s expenses by $274 a week but still allows him higher expenses than the Wife. He already has a surplus of $184 a week on his own figures. This would give the Husband a total surplus of $458 a week from which to pay interim spouse maintenance.

What order is reasonable having regard to relevant s.75(2) factors?

  1. The Wife’s counsel submits that the Wife, at 49 years of age, has compromised health, including anxiety, depression and arthritis; the Wife has responsibility for caring for X who suffers from significant mental health issues. Counsel submits that the Husband has the greater capacity to work and to earn a substantial income and that the Wife seeks a modest standard of living, considerably lower than the standard of living the parties enjoyed during the marriage. Counsel submits that even on his own evidence, the Husband enjoys a far superior financial position to that of the Wife.
  2. The Husband’s counsel submits that the court should have regard to the length of time since separation (3 years), and to the Husband’s financial support to the Wife until 12 months ago.
  3. The Husband admits he has suffered from various addictions which has resulted in monies being wasted and has necessitated undertaking treatment in a residential facility. The Wife’s unchallenged evidence is that the balance of the mortgages secured on the (country omitted) and Property A properties would have been significantly less, and the value of the parties’ assets greater, had the Husband not gambled. In December 2013, the Husband entered a rehabilitation programme at the (omitted) for 4 weeks, the discharge summary noting that he presented with “compulsive gambling behaviours”. I find this a relevant factor under s.75(2)(o).

Determination

  1. I have determined that the Husband will pay spouse maintenance to the Wife in the sum of $400 a week on an interim basis. I have determined to dismiss the Husband’s interim application for the Property A property to be sold. That will be a question for final hearing if the property matter is not resolved earlier.

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Family Court expert referred to Medical Council

Family Court expert referred to Medical Council after parents lodge complaints

Expert:

A recent article from ABC News Australia

Updated 

They’ve been described as the “gods of the court” — the report writers whose written assessments can affect the Family Court’s decision on which parent gets custody of their children.

Key points:

  • Practitioner who performs expert witness work in family court under inquiry
  • Parents lodged series of complaints with health regulators
  • Family Court says private report writers “not compelled to comply” with its standards

For parents who say the report writer got it wrong, the choice is stark: pursue the legal “fight of your life” to overturn the report or accept losing custody of your kids.

Family report writers are usually social workers, psychologists or psychiatrists.

Now, a group of parents has banded together to launch a challenge against one report writer in New South Wales, alleging his practices “place the public at risk”.

The group has accused him of a string of failures including “grossly inaccurate and incomplete” recording of interviews, “misdiagnosis”, and that he “applies unscientific theory”, particularly in response to allegations of child abuse and family violence.

Their campaign has resulted in the alleged problem practitioner being referred to the Medical Council of New South Wales, a body that has the ability to suspend the practitioner’s registration if it believes the public is at an immediate risk.

One member of the group has told the ABC the work of the report writer had caused “irreversible damage” to their family.

“Our lives are certainly never going to be the same again and I feel open disgust for a system that tolerates somebody who is so obviously acting outside the law and outside his expertise,” Kellie* said.

“If a report is wrong and the court relies on it, it destroys lives, particularly the children’s.”

The group of parents hope their action will bring renewed scrutiny to the regulation of Family Court report writers, who critics say can operate “beyond the rule of law”.

“We certainly see it as a milestone shift in the regulator’s position because they’ve held the wrong position for years that these [practitioners] engaged by the court are beyond the reach of regulation and in a sense, beyond the rule of law,” Kellie said.

One Sydney-based psychologist with more than 30 years’ experience told the ABC he saw the work of the alleged problem practitioner after several parents came to him seeking a second opinion.

The psychologist, who did not want to be named, said on several occasions he prepared secondary reports that were submitted to court.

“The work I’ve seen has had dramatic effects upon the parents involved and I reached different conclusions, very different conclusions,” he said.

“It’s questionable that someone should diagnose a personality disorder based on a few interviews only, particularly in an acrimonious situation.

“The difficulty is judicial or legal decisions are made on that where people may lose custody of their children when there may be very little basis for that.”

Do you know more about this story? Email Specialist.Team@abc.net.au

Family report writers known as ‘gods of the court’

The type of practitioner at the centre of the group’s complaints is referred to by the court as a single expert witness, and by the legal community as a family report writer.

They work either internally as employees of the court or as external contractors. Those employed by the courts are referred to as family consultants.

In family law matters, report writers meet with families, make an assessment of issues within the case and prepare a report of recommendations for judges to consider when deciding the best arrangement for children involved in custody battles.

Concerns about these practitioners go beyond one case and extend to the lack of governance over the entire process of report writing.

In an overburdened court system, barristers and lawyers have told the ABC the recommendations in expert reports can be heavily considered in deliberations.

One parent advocate told the ABC challenging a family report, or “counteracting the gods of the court”, would be “the fight of your life”.

Similar comments were made in submissions to last year’s parliamentary inquiry into Australia’s family law system.

In December, that inquiry handed down its report and recommended “abolishing private family consultants” as well as establishing a “national accreditation system” that included a “complaints mechanism for parties when family consultants do not meet the required professional standards”.

Private report writers ‘not compelled to comply’ with standards

The practitioner at the centre of the recent complaints is a private family report writer, or, a single expert witness. Currently, there is no accreditation for conducting this kind of work.

Family report writers do not need to have clinical experience, and while specialised training in dealing with violence and abuse allegations is encouraged in a set of guidelines, it is not compulsory.

The Family Court of Australia said an accreditation system for internal family consultants “would be unnecessary” as that work is already the responsibility of the courts.

In a submission to the current Australian Law Reform Review, Family Court Chief Justice John Pascoe said:

“An accreditation scheme which allows parties to ascertain that a private report writer has acquired and maintained the required competencies and works to a high standard could greatly assist both litigants and the court to which the report would be submitted.”

The courts that hear family law matters — currently, the Family Court of Australia, the Federal Circuit Court and the Family Court of Western Australia — developed the Australian Standards of Practice of Family Assessments and Reporting.

The court said “these standards are an outline of what the court considers to be good practice” and private report writers were “not compelled to comply”.

Courts give report writers ‘monopoly position’

Attorney-General Christian Porter said the Federal Government’s legislation to reform the courts would streamline administrative issues, focusing on costs to litigants, delays and the skill level of those working in the system.

“Largely a regulatory regime would be for government, but equally there is a massive ability through the rules of court to ensure there are certain standards that have to be met by experts and that is a process which has to be designed in the court,” he said.

Australia’s federal courts:

  • High Court of Australia
  • Federal Court of Australia
  • Supreme Court
  • Family Court of Australia
  • Federal Circuit Court of Australia

Family law matters are dealt with in the Family Court and the Federal Circuit Court (FCC) as well as the Family Court of Western Australia.

“At the moment you’ve got two different courts with two different sets of rules dealing with essentially the same matters which has proven to be a great failure.”

Mr Porter said the planned amalgamation of the Family Court of Australia and the Federal Circuit Court would help, “ensure that costs of experts of a variety of types are kept to a minimum”.

In some judgements, parents are ordered to pay several thousand dollars each for a single report.

In some cases, judges name the private family report writer parents who must engage in interim court orders, but there is no regulation for what that practitioner can charge.

Federal Liberal MP Craig Kelly has campaigned for regulation of these practitioners, particularly their fee structure.

“They should be given a list of people they can go to to get this done,” Mr Kelly said.

“To allocate it to one person where one person is given basically a monopoly position where they can charge whatever they want is against every principle of justice, of fairness and equity and every economic principle we abide by,” he said.

Parents turn to health regulators

The Family Court and the Federal Circuit Court have a complaints process for report writers employed internally.

After hitting dead ends with the courts when trying to complain about private practitioners, both Kellie* and another advocate who spoke to the ABC had some success complaining to the relevant health authorities.

In NSW, the Health Care Complaints Commission (HCCC), the Medical Council, and the national health regulator, the Australian Health Practitioner Regulation Agency (AHPRA), govern registered health practitioners together under what’s referred to as a co-regulatory arrangement.

In this case, the HCCC received the parents’ complaints and decided to refer them to the Medical Council.

In one response to the group, the HCCC said there were, “concerns about the conduct” of the practitioner, “in relation to his use of particular clinical theories and his interview techniques” and that it was a, “broader issue of conduct outside of a specific family law case”.

The HCCC confirmed to the ABC it had received “a number of different types of complaints” about the practitioner.

The Medical Council does not have the power to investigate the claims, but can conduct inquiries and suspend a practitioner if there is an immediate risk to the public.

If it decides a full investigation is required, the complaints will be batted back to the HCCC and the public may be consulted.

The Medical Council told the ABC national law, “makes it an offence to disclose information about complaints” it receives, but each would be, “considered according to its facts”.

In May last year, the Federal Government directed the Australian Law Reform Commission to conduct a “comprehensive review” into the family law system. That inquiry is due to deliver its report to the Attorney-General in March 2019.

Mr Porter said if that inquiry returned recommendations about regulation of family report writers, the Government would take them “very seriously”.

‘The public doesn’t know how bad this is’

A former president of the Clinical Psychologists Association of Australia and a psychology clinic director at the University of Sydney, Judy Hyde, said the level of training family report writers were required to have was “scary”.

“The public doesn’t know how bad this is,” she said.

The players:

  • Judges/Magistrates
  • Barristers
  • Counsels
  • Independent Children’s Lawyers
  • Litigants (usually parents)
  • Children
  • Expert witnesses, particularly family report writers

“This is terrible because what they’re saying is, we’re prepared to have people with unaccredited training undertake assessments of very complex, specialised, difficult cases where people’s lives are based on the decisions that are made for them.

“For the rest of their lives it will have an impact.”

Ms Hyde made the point that other types of assessments have registers of approved suppliers.

“WorkCover requires you to have accredited training for WorkCover … that should be the same at least for the children that we’re trying to deal with and help manage their lives going forward,” she said.

Ms Hyde acknowledged family law was a difficult area of practice for assessors.

“There are complaints made by people who haven’t got what they wanted, but the fact is people are very poorly trained to actually manage these assessments anyway and the lives of our children are put at risk,” she said.

*Kellie’s name has been changed.

Topics: law-crime-and-justicefamily-lawlawsfamilyfamily-and-childrencommunity-and-societyaustralia

First posted 

Going underground – mother and children in hiding

Going underground – mother and children in hiding

A recent article by ABC News Australia about a real life case of a mother and children exiting normal life and going underground after consent orders for equal time with the father.

On the run

A mother and her children fled into hiding, avoiding police for three years. For the first time she tells the story of how she did it, and how she was caught.

Exclusive by Kristian Silva – ABC NEWS AUSTRALIA

They made their escape when it was dark.

Kate* and her two children, William and Ally, jumped into a car driven by someone they barely knew. As it sped off, they pulled a sheet over their heads and cowered in the back.

When the car stopped, they got out, climbed into another vehicle and the sheets went over them again until they arrived at an isolated rural property hours later.

It would be their home for the next few months before it came time to move again.

The children were barely reading age, but they got used to the drill. During the next three years on the run, they changed homes six or seven times.

Kate claimed she was fleeing domestic violence and protecting her children from emotional and physical abuse by their father, Gabriel.

Gabriel has always denied the allegations, which were also rejected by the Federal Circuit Court.

The court had ordered custody be shared equally between the parents, so Kate’s decision to vanish with her children was an act of blatant defiance.

As a result, she is spending the next 18 months in jail.

But like another recent high-profile case of a mother allegedly taking her twin young girls and hiding them in regional NSW, she didn’t pull it off alone.

She had a secret network of people helping her evade authorities every step of the way.

‘I went everywhere to get help’

The bitter custody battle between Kate and her ex-husband escalated in 2014.

As the case entered the time-consuming and costly Family Court system, Kate told the ABC she was scared not only for her life, but for her children.

She agreed to the custody arrangement in late 2014, but within two months had decided she didn’t want him to have any access.

“I went to the domestic violence taskforce, I went to the local politicians, I went everywhere to try and get help,” Kate says.

“I would not take the law into my own hands unless I felt it was an absolute necessity.”

Three weeks before Christmas that year, she did just that.

Kate talks guardedly about a secret network that helped her escape and hide with the children in various locations around Australia. She would not identify anyone involved, nor say how she came into contact with them.

Kate and the children were staying at her mother Helen’s home in Brisbane when the escape plan was enacted, but Helen had gone away for the weekend.

“She didn’t know we were going. I left her a note saying we weren’t going to stay,” Kate says.

Remembering that moment, she began to sob quietly.

The secret network

Kate and the children lived on remote acreages in places where there were no close neighbours or street signs indicating where they were.

They lived with families, but often had their own space and did not get too involved in the lives of their hosts.

“They were taking us on and taking a big risk. We stayed inside and did mostly home-schooling,” she says.

“At night time, I’d do odd jobs for the people I was staying with in exchange for putting a roof over our head and feeding us.

“I had no phone, no internet, no clocks, nothing. I had no idea of time. I didn’t pay any attention.”

Kate said while she and her mother are incredibly close, it was too risky to contact her or other friends.

According to court documents from a different case, Queensland police believe a network that hides runaway parents and children exists in Australia.

They have alleged the network helped move a mother and two daughters from north Queensland to the north of Western Australia, then to Perth and regional New South Wales.

It is not clear whether Kate’s network is the same group, although Kate admits being a close friend of the mother at the centre of that case.

Kate says she was oblivious to the massive search underway to locate her and the children.

The court issued a recovery notice, taking the rare step of releasing their names and photos to the media in 2015. The Australian Federal Police were looking too.

Kate is surprised that so much was done to find them, but admitted she did not think about it a lot.

“Domestic violence, mate … The fear of dying was greater than worrying whether the cops were coming or not.”

Father’s desperate search

Gabriel is about 10 years older than Kate and was her second husband.

Several years after they met, Ally was born and they were married. Three months after Ally’s birth, Kate was pregnant with their second child, William.

After things broke down a couple of years later, they tried to reconcile but decided to split for good in 2013.

Gabriel said he was committed to sharing custody of the kids.

“I never expected this,” he told a newspaper, six months after his children disappeared.

Gabriel declined to be interviewed for this story, saying he was now bound by the court’s secrecy provisions.

He went to extraordinary lengths to find his children, hiring private investigators and flying to New Zealand, Brazil and the UK to chase down leads. He did media interviews and put up flyers in shopping centres and parks around Australia.

In May last year, Gabriel called child recovery consultant Col Chapman.

Chapman claims to have located more than 100 children, sometimes travelling overseas to take them back from a parent who has left Australia.

He said he had encountered dozens of parents accused of domestic violence offences and that Gabriel did not fit the bill.

“He denies all the allegations, and he was aghast at his inability to defend himself,” Chapman says.

“How do you disprove a lie? How do you say ‘I didn’t do it?'”

Life on the run ends

In the end, all it took to locate Kate, William and Ally was a simple property search.

Kate says she chose to give up the security provided by the network because her mother had cancer. It had spread to her lungs and the prognosis was not good.

It was mid-2017 and Kate was still disconnected from the outside world, but the network decided she needed to be told about her mother’s condition.

Soon after, the family were driven back to Helen’s house in the middle of the night.

Kate and the children moved in, but remained in hiding. Helen had refused chemotherapy and Kate used her medical training to treat her.

Meanwhile, Chapman and his staff were closing in, having received a tip-off Kate was staying in a suburb 30 minutes north of Brisbane.

“We just hit that area hard with advertising in every chemist, every 7-Eleven, every IGA, every garage,” Chapman says.

“Then we did a property search. [Helen] had purchased a new property. We gave that to the AFP and they found the kids.”

Kate’s voice shakes as she describes what happened that day.

“The cops turned up around eight o’clock in the morning … it felt like a swarm of them. They scared the living shit out of me and mum,” she says.

“I begged them not to take us,” Kate says. “I said: ‘If I’d known you were coming I’d have killed us rather than go back to this shit.'”

Kate says it was flippant and spoken in the heat of the moment.

But authorities and Gabriel’s lawyers took those words extremely seriously.

Judgment day

Kate has not seen her children since that day last December. They now live with Gabriel.

In the foyer of the Federal Circuit Court in Brisbane, Kate has been hugging friends and trying to stay positive despite being charged with contempt of court.

While never charged with abduction or a criminal offence, Gabriel and his lawyers pursued her for failing to stick to the agreed custody arrangement from 2014.

Helen has also been charged with contempt of court for failing to inform authorities about her daughter’s whereabouts.

In the flesh, Kate looks different to the woman in the photos released when the missing persons search was underway.

She has lost weight but there is a sadness in her face. She says she misses her kids, and that years of sleepless nights and exasperation have taken their toll.

She also expresses anger at the Family Court system, arguing it does not give enough credit to women suffering domestic violence.

“It’s been absolute hell, what we’ve been through. And no-one listens. Everyone thinks its a freaking joke, but it’s not,” she says.

“It’s not just happening to me, it’s happening to loads of other women.”

Mother, grandmother jailed

In the courtroom, Judge Michael Jarrett is scathing when describing Kate’s actions. He says she showed “flagrant disregard” for the court when she absconded with the children.

He says Kate deprived the children of getting to know their father and inflicted trauma upon them because of the many times they shifted homes.

Judge Jarrett says Kate’s claims about domestic violence and emotional abuse of the children had no factual basis.

“On the balance of probabilities, I am completely unsatisfied [Kate] was subjected to the domestic violence or family violence she describes,” he says.

Judge Jarrett sentences Kate to 18 months in jail for contempt of court. None of it will be suspended, meaning she will serve the full term. A fine, he says, would be “inappropriate”.

There is a loud gasp in the courtroom. Some in the gallery anxiously whisper to each other to check if they heard the judge correctly. Others begin crying.

Kate is motionless and stone-faced.

Next, Justice Jarrett turns his attention to Helen. She too will go to jail for a minimum of three months, with a further three months of her sentence to be suspended.

“I have no doubt a custodial sentence will be difficult,” Judge Jarrett says to 74-year-old Helen.

“Court orders are to be obeyed and any breach will be dealt with.”

Justice Jarrett calls for the security officers. The women are to be escorted to the cells and in a matter of minutes their jail terms will begin.

Kate is visibly upset now, but has to hold it together in the time she has left to quickly talk with her lawyer and embrace her closest supporters.

Helen remains seated. Her face has turned white and she looks stunned.

Outside court, Kate and Helen’s lawyer confirms the women will not be appealing Judge Jarrett’s ruling.

“They’ve run out of money,” she says.

Even Gabriel’s legal team is surprised by the sentence imposed. They had only asked for a 12-month jail term for Kate and for Helen’s penalty to be wholly suspended.

Col Chapman says Gabriel initially didn’t want his ex-wife to be sent to prison, but was talked into it by his lawyers.

“The justice system must step in to send a message to other mothers that this cannot go on,” Chapman says.

A new beginning

William and Ally have spent the last eight months living with Gabriel, who has full-time custody of them for now.

He is hopeful of making the arrangement permanent by the end of the year.

Those close to Gabriel say he would be open to Kate having some contact with the children when she is released, but it would need to be heavily controlled.

He hasn’t forgotten what Kate said about killing the children, even though she maintains it was an empty threat.

The kids had vague memories of their father when they returned, but quickly settled in to their new routine. From time to time, they still ask after their mum and grandma.

They are yet to be told that both are now in prison. A counsellor will be consulted on how to break the news to them.

They are back at school for the first time in years. Gabriel wants to teach the children how to ride bikes. William is due to join a cricket club this summer. Ally will give ballet a try.

Chapman says Gabriel is making the most of his second chance at being William and Ally’s father.

“He’s loving it. He’s thriving,” he says.

Names of the mother, father, children and grandmother have been changed to comply with court regulations.

Credits

First posted 

 

Formal property settlement – why bother?

Formal property settlement – why bother?

There are some very good reasons why it is best to arrange a formal property settlement through your lawyer:

  1. No more claims – A formal property settlement finalises all financial claims between partners under the Family Law Act. No matter how amicable you are at the time of separation, this can change and unless you have a formal property settlement, your former partner can still make a claim years down the track – which will take into account the property you have now, not the property you had at the time of separation!
  2. No stamp duty – Why pay stamp duty to gain half of the house you already own half own? A formal property settlement means that the state government gives you a break on stamp duty if you are taking on the home as part of the property settlement. Even if you decide you don’t want a formal property settlement and prefer to pay the stamp duty, if you are relying on getting refinance, your lender will likely make it a condition that you get a formal property settlement.
  3. Superannuation shifting – If part of the deal is that superannuation is moved around between each parties’ super accounts (eg. so that you both walk away with similar super balances) this can be made possible by a formal property settlement.

Trust is a wonderful thing when everyone is still friendly (if not friends anymore). But when things become unfriendly (perhaps because of new partners on the scene, divided views about arrangements for children, child support problems), trust is usually the first thing to disappear and getting legal advice and action to pursue legal rights becomes a priority.

At Freedom Law, we keep the complex simple for you. Call us today for an obligation-free consultation to discuss the best way forward for you and your finances.

Sunshine Coast / Brisbane / Gold Coast

 

Poor litigant does not prevent an indemnity costs order

Poor litigant does not prevent an indemnity costs order

In the recent case of Kappel & Carlsson (No.2) [2018] FCCA 2973 (24 October 2018), the court made it abundantly clear that a “poor” litigant will not avoid a costs order, including an indemnity costs order, if they are unsuccessful:

  1. Ms Agresta brought to my attention a decision of the Family Court of Australia to the effect that an order for the payment of costs is a rarity and should only be made when exceptional circumstances are found to exist. I disagree. The family law jurisdiction does not stand outside of mainstream jurisprudence administered in the Commonwealth courts throughout Australia. Cases under the Act attract cost considerations by reason of the elements of s 117(2A). Nowhere in s 117(2) or s 117(2A) is there expression of the concept that indemnity costs orders should only be made in exceptional circumstances.
  2. To the contrary.
  3. Section 117(2) proceeds on the basis that the court may make such costs orders as the court considers just where the court is of the opinion that there are circumstances that justify the making of such an order. The making of a costs order is subject to the considerations in, among other sections, subss 117(2) and 117(2A). But the threshold point is that, in the absence of legislation forbidding the making of a costs order, the court is entitled to make a costs order, the only issue being the basis on which those costs are to be paid.
  4. The usual position is that costs are ordered to be paid on a party and party basis. In Colgate-Palmolive, Sheppard J traced the evolution of the learning on point. There, his Honour distilled the collection of propositions of fact and law that enable a court, acting properly in the exercise of its unfettered jurisdiction, to make a costs order, to order their payment on an indemnity basis. While it was true that Sheppard J’s distillation was unique to that time, it catalogued a very large number of authorities on point. By no means was the point undecided by 1993 that indemnity costs could be ordered. For that matter, Shepherd J referred to the settled practice for centuries in England, it being an entrenched practice in Australia, that costs were ordinarily ordered on a party and party basis but even as long ago as 1887, in the Chancery case of Andrews v Barnes,[6] the Court of Appeal spoke of the discretionary power to award costs as between solicitor and client “as and when the justice of the case might so require”. Importantly, over a century ago there was nothing to suggest that indemnity costs orders were rare or should be made only when exceptional circumstances existed. Expressed in such extremist terms, that has never been the law.
  5. The circumstances in which indemnity costs may be ordered were catalogued by Sheppard J. Yet his Honour said as follows –
    It remains to say that the existence of particular facts and circumstances capable of warranting the making of an order for the payment of costs, for instance, on the indemnity basis, does not mean that judges are necessarily obliged to exercise their discretion to make such an order. The costs are always in the discretion of the trial judge…
  6. A [poor litigant] is not a reason for refusing to make a costs order on a particular basis. The basis for the making of the order and the factual matrix surrounding a person’s ability to meet such an order are two different things. Whether or not the applicant is impecunious, whether he can meet in order for the payment of $26,233.90 or whether he could be assisted in paying that sum (if so, by whom and by when) all fell beyond the factual arena of this litigation.
  7. Litigants in the family law arena should be treated no differently to other litigants before this court where legislation empowers a judge to make a costs order and established authorities make statements of principle about the basis on which such a costs order can be properly made.

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Actuarial risk assessment for child abuse and neglect

Actuarial risk assessment for child abuse and neglect

The recent case of Halloran & Halloran [2018] FCCA 2825 (5 October 2018) explored the use of actuarial risk assessment for child abuse and neglect:

      1. At paragraphs 88 to 91 inclusive, Dr A makes an evaluation based on the Ackerman-Schoendorf Custody Evaluation Scales. This information will be reproduced in full because it seems to have influenced Dr A’s concerns about the risk to the children from both parents.
        Ackerman-Schoendorf Custody Evaluation Scales (ASPECT 1992, 1994)

 

[88] ASPECT is a tool to aid clinical decision-making about parental fitness to exercise parental responsibility and provide a child’s principal residence. It incorporates standardised scales, questionnaires and clinician observations in order to quantify parental characteristics related to effective custodial parenting. In this case the short form was used since the longer form incorporates results from tests (WAIS, Rorschach, MMPI-2) which were not administered. Across three subscales the ASPECT rates child-parent relationships, parenting practices, and the overall psychological well-being of each parent (including ability to provide a suitable home environment and appropriate social support networks), the weighted average scores of which yield a Parental Custody Index or PCI. The PCI was constructed to assess the general appropriateness of the parent’s presentation, emotional and cognitive capacity to provide effective parenting and a suitable home/social environment. A statistically significant difference between PCI scores identifies the parent with the higher score as the more effective parent. When both parents are rated highly effective ASPECT will not assist with decision-making. In this case neither parent is rated effective, but the mother’s score is lower due to substantiated physical child abuse and associated court proceedings.

 

Actuarial risk assessment for child abuse and neglect

 

[89] Both parents were actuarially-rated for child maltreatment recidivism risk. Research indicates that actuarially-calculated ratings of recidivism risk for a variety of anti-social behaviour (spousal abuse, child abuse, sexual offences, violent offending) are much more accurate predictors of re-offending that unaided clinical judgement. The South Australian Department of Family and Community Services developed a risk assessment scale in 1995 which was re-validated in 1998 on 674 families confirmed for abuse who were followed up for 12 months (cf. Johnson, Wagner & Wiebush, 2000). (NB. FACS has developed a modified version of this instrument but as there is no validation data available I prefer to use the older instrument).

SA Risk Assessment Scale (1997 version)

Percentage of standardization sample in that range subsequently confirmed for any type of maltreatment

LOW RISK (scores -2 to2)

3.4%

MEDIUM RISK (scores 3-7)

18.2%

HIGH RISK (scores 8-10)

27.7%

VERY HIGH RISK (scores > 11)

43%

[90] Based on case history relating to prior parenting deficits for each parent, as well as concerns which emerged at interview, I rated the father on Neglect/Emotional Abuse scale. I rated the mother on the Physical Abuse Scale (since that is the documented basis for prior notifications/ investigations/ police charges for assaulting [V]) The actuarially-calculated risk of neglect for the father is high. The actuarially calculated risk of physical abuse for the mother is high. The SA instrument includes four discretionary policy overrides, which immediately elevate a parent’s risk to very high. One of these overrides includes assault causing actual bodily harm which requires medical treatment. If applied regarding [V]’s assault in 2013 that places Ms Halloran in the very high-risk group.

[91] The baseline population risk of child maltreatment is not precisely known but is often assumed to be about 5%. As shown above, 27.7% of children restored to parents in the high-risk group were later confirmed for maltreatment in the SA study. Normally protective parents would not entrust their children to a school or child care centre which boasted that only 30-40% of their staff were likely to be dangerous to children. In fact, most parents would probably decline to entrust their children to a service boasting that less than 20% of their staff were likely to harm children whereas at least 80% were safe, competent caregivers. However, many caseworkers and judicial officers in the Children’s Court apparently find these to be tolerable risks for other people’s children, as maltreated children are often restored to parents actuarially-assessed as medium risks, whereas risk levels of high – very high risk are more likely to be deemed intolerable.

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Forensic psychology and its role in parenting matters

Forensic psychology and its role in parenting matters

In the recent case of Halloran & Halloran [2018] FCCA 2825 (5 October 2018), an executive summary of relevant matters under the Family Law Act as they applied to this case was prepared by the appointed forensic psychologist:

The Reports of Dr A

  1. Dr A is a consultant forensic Psychologist appointed by the Court to provide a Single Expert Report in this matter. The interviews with the family were conducted on 3 and 4 October 2017, and her Report dated 19 October 2017 was released to the parties on 23 October 2017. At the time of the interviews, Dr A had available to her all of the evidence of the parties, including a substantial volume of documents produced on subpoena.
  2. Dr A’s executive summary, found at pages 6 and 7 of her Report, is a very useful digest of her evaluation and is reproduced below:
Issue
Evaluation
  1. The benefit to the children of having a meaningful relationship with either parent or any other persons.
All children will benefit from a lasting sense of family belonging. Meaningful relationships between mother & [V], [W] or [X] seem impossible now
Whether the children are at risk of any physical or psychological harm from abuse, neglect or family violence.
At risk of neglect of medical needs ([W]) & emotional needs in care of father (all); at risk of physical harm in care of mother (older three).
The nature of the parents’ relationship, the impact of this relationship on the children.
Toxic. Source of trauma for all the children. No prospect of co-parenting.
Any views expressed by the children and any factors that may affect the weight to be accorded to those views.
[V] has run away; [W] cannot speak; [X] asks for no contact with mother /residence with father: [Y] & [Z] show some interest in seeing mother. These are traumatised children who cannot evaluate their best interests objectively.
The relationship between the children and with each of their parents and any other relevant person.
[V]: hostile to mother, father cannot control her; [W]: physically dependent, non-verbal; [X] close to g/p/parents & father; [Y] seems closest to p/g/parents; [Z] has affectional ties to both parents.
The willingness & ability of parents to facilitate/ encourage relationships between children & the other parent.
Apparently neither willing nor able during the marriage or since.
The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either parent/ other person
[Z] (and perhaps [Y]) might draw inferences harmful to their self-esteem if they had no contact with mother.
The capacity of each parent or any other person to provide for the needs of the children, including emotional and intellectual needs.
Suboptimal due to their intrinsic personal characteristics. Abuse of older siblings was previously substantiated for the mother. The father is not authoritative, cannot parent strategically and seems not to be a proactive advocate for [W].
The attitude to children/ responsibilities of parenthood of parents /relevant persons.
Father- marginally adequate for [X], [Y] and [Z]. with support. The p/g/parents seem committed to the children.
The extent to which each parent participates in children’s lives/decisions
Court findings about whether the father has been negligent about the NDIS/wheelchair will cast light
The effect on children of spending equal/significant time with each parent
Deleterious. Out of the question
The mental state of the both parents in so far as it relates to parenting issues.
Neither is sufficiently stress-hardy to effectively parent 5 children, one of whom is seriously disabled
Whether parents have any psychological issues affecting parenting capacity
Both show warped information-processing and evasiveness of responsibility. See previous point.
Whether or not any treatment or therapy is recommended for parents or children. If so, the nature of any treatment or therapy.
1:1 adult counselling has not been helpful for the family situation in the past and is unlikely to be helpful now. The children benefit from supportive counselling
Whether the practical difficulty & expense of the children spending time with other parent will substantially affect the children’s direct contact with both parents
Interim – no, Long-term-probably. Supervision by grandparents on either side is unsuitable. Agency supervised contact will be costly long-term
The maturity, sex, lifestyle, background (including lifestyle, culture and tradition) .
Not a determining issue
Any family violence order that applies or has applied to the children/ family member
Not currently in force
Any other matter the Court Expert considers relevant.
This is a child protection matter better suited to the Children’s Court. [W] needs advocacy to obtain NDIS benefits. She urgently needs a wheelchair.

Read more here

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