Freedom Law

Briginshaw test and what it means for family law

Briginshaw test and what it means for family law

“There is no mathematical scale according to which degrees of certainty of intellectual conviction can be computed or valued. But there are differences in degree of certainty, which are real, and which can be intelligently stated, although it is impossible to draw precise lines, as upon a diagram, and to assign each case to a particular subdivision of certainty. No court should act upon mere suspicion, surmise or guesswork in any case. In a civil case, fair inference may justify a finding upon the basis of preponderance of probability. The standard of proof required by a cautious and responsible tribunal will naturally vary in accordance with the seriousness or importance of the issue—See Wills’ Circumstantial Evidence (1902), 5th ed., p. 267, note n: “Men will pronounce without hesitation that a person owes another a hundred pounds on evidence on which they certainly would not hang him, and yet all the rules of law applying to one case apply to the other and the processes are the same.”

Read more here

The Briginshaw test is applied in family law, particularly where the court is asked to make a finding regarding a serious allegation, such as sexual abuse of a child. A mere allegation, without more, is unlikely to result in such a finding.

The family law courts remain courts of law and evidence and in the absence of evidence in support of allegations, the person making the allegation is nearly always disappointed.

If you need help with your family law case, contact us at Freedom Law today. We specialise in preparing cases for hearings at short notice all over Australia and we are happy to provide you with a fixed fee quote where possible. Our team members can assist you with your enquiry.

Family report recommendations weighed heavily by Court

Pierce & Percival

Family Report Recommendations

Family Report Writer

  1. The family report was Exhibit A. The family consultant who prepared the family report was Ms K. She interviewed the parties, the children, and the mother’s new partner on 3 August 2016.
  2. The father told the family report writer that his new residence at (omitted) comprised a two-bedroom apartment. (omitted) is located about 130 km distance from (omitted) Public School and it takes about 1hr 45m to 2 hours to drive, one-way. The father commutes from (omitted) to work in Sydney each day.
  3. The father stated he is a frequent visitor to his brother’s home, located in (omitted) Sydney close to (omitted), where he is always welcome to stay overnight with the children.
  4. The father did not complete a university degree course, but entered the workforce instead. He trained on the job to become a (occupation omitted). He worked in this specialty in his fly in fly out job in Western Australia. He also works in this position with (employer omitted), including as a (occupation omitted).
  5. Both parties informed the family report writer that the father had not spent time with the children since the weekend commencing 21 May 2016, a period of almost 3 months.
  6. The family report writer noted that an issue in dispute, at the time of her interviews with the parties, was whether or not the time that the children spend with the father should be reduced or remain as current, noting the interim parenting orders of November 2015.
  7. The mother presented to the family report writer, inter alia, as being conscientious with a strong preference for order, finding reassurance in routine, consistency and structure. She also impressed as carrying a high level of underlying anxiety, being disposed to a constant state of nervous vigilance.
  8. The mother told the family report writer that the children had been expressing that they were not enjoying the time that they were spending with the father from around Easter 2016.
  9. The family report writer observed that the mother appeared to place a high priority on the importance of the children maintaining their involvement in multiple sporting activities.
  10. The father impressed the family report writer, inter alia, as being emotionally defended and the bearing of a man who believed the world seemed in a conspiracy to slight or injure him. He impressed as carrying an underlying level of sadness and unresolved grief. He demonstrated that that although prone to introspection, he was also an intelligent, thoughtful man who was articulate and capable of insight, and seemed to care deeply about maintaining a relationship with the children.
  11. The father told the family report writer that he wanted to see the children and spend fatherly time with them without the interruption and interference of other people.
  12. The father told the family report writer that his ex-girlfriend was “a psycho” so he could not stay with her and he did not have enough money to pay the mortgage and live in Sydney. He earns $69,000 a year and he pays $687 per month in child support.
  13. In discussing his current alcohol use the father told the family report writer that he has not been using alcohol when the children are with him, not since the court order. He said he is happy to keep the court order in this context (the court notes that interim order 11 of the court’s orders of 24 November 2015 provides that the father is restrained from consuming alcohol whilst the children are in his care and shall not consume alcohol for at least 12 hours prior to the children coming into his care). He stated that he does not have a dependence on alcohol, it is not a need or requirement, and he is not an alcoholic.
  14. The children told the family report writer that the reason the children have refused to go with the father to spend time with him, as provided under the court orders, is, inter alia, because he does not listen; spending time with the father makes them feel anxious and afraid; they are afraid to tell the father what they feel for fear of him becoming angry with them; they never know where they are going to sleep; (omitted) is too far away and they may not make it back to play sport on weekends or get to school in time on Mondays.
  15. The family report writer noted that these concerns of the children echo the same concerns reported by the mother. Further, the child Y, when asked by the family report writer what was the main problem, stated, “there were always changes. When dad went to Western Australia, the entire thing had to change. We didn’t know when we were seeing dad. Then he was living with his girlfriend at (omitted). But now he has moved to the (omitted).”
  16. The child Y also reported to the family report writer that the father and his former girlfriend used to fight with each other with swearing. The children were mostly watching movies or sleeping during this time.
  17. The child X reported to the family report writer, inter alia, that she feels that she cannot say anything around the father. She reported that when the father asked the children whether their weekend was fun, if she said it was not fun, the father “lost it at us, he gets really mad, he started swearing at us… So if I had a bad day, now I just say “yes” and agree with him because I don’t want to get yelled at again.” She further stated that they cannot speak up when they are with the father. They do not say anything or do anything. They just try to stay happy. The child X stated that, “but I feel really down inside.”
  18. The child Y reported to the family report writer that “I start to feel worried and thinking about my worries…like what if I do a bad job and thinking about it… It feels like you are panicking if I think about going to see dad.” He stated that if he went to see the father by himself he would be very worried if no one was with him. The child X stated that if she had to see the father by herself, she would feel awkward and would not know what to do.
  19. The child Y reported to the family report writer that if he calls the father Mr Percival at his house he gets mad. This child reported that on one occasion the father, when he got mad, punched a wall, when they were at the father’s residence in bed.
  20. The child X stated that she had not seen the father drinking alcohol or seeming under the influence of alcohol when the children were spending time with him for a long time. She stated that she was not worried about this issue any more.
  21. The family report writer referred to the children’s strong feelings of emotional ambivalence, disappointment and anger toward the father.
  22. The family report writer observed the children in the presence of the father. Once in the children’s presence, the family report writer observed that the father showed himself capable of warming, becoming animated, maintaining age-appropriate conversation and even being playful, funny and demonstrative toward them. The family report writer observed that towards the end of the children’s time with the father in the observation session, the children showed genuine expressions of happiness and joy. She stated that the children said goodbye to the father having broken through some of the strained distance that had initially kept them apart. They exchanged spontaneous and reciprocal hugs with the father.
  23. Under the heading “Evaluation”, the family report writer stated that the children were assessed as having a warm and positive relationship with the mother, who was their primary attachment figure and carer.
  24. The family report writer assessed that although the children have been refusing contact with the father, their anxiety and ambivalence concerning the father closely mirrors the same anxieties and fears about the father expressed by the mother, in particular that the father can erupt with explosive outburst of anger which causes the children distress.
  25. The family report writer stated that the father appears to have some difficulties with poor emotional regulation and his capacity for effective parenting reflective functioning is changeable. She observed that although the father demonstrated he is capable of being child focused and having insight into the children’s emotional-social needs, his capacity for making himself both physically and emotionally available has been inconsistent and intermittent. She stated that the children seem to genuinely experience a high level of anxiety when they are with the father because they have learnt over time that spending time with him is not always emotionally safe or predictable. She observed that the children are strongly aligned with the mother.
  26. The family report writer assessed that the child X has a closer and stronger attachment with the father than does Y.
  27. The family report writer stated that the father, by self-report in his affidavit material, admitted that at the time of the separation he had great difficulties adjusting to the loss of the marriage. The father appears to have had a strong post separation grief reaction which led to a period of depression and difficulties with using alcohol as a coping strategy (the court notes the father’s admission in paragraph 60 of his trial affidavit that at the time of separation, his consumption of alcohol had increased and he used alcohol as a means to cope). The father’s capacity for effective parental reflective functional and emotional availability immediately post separation was assessed by the family report writer to have been low. She observed that the mother appeared to demonstrate an extremely high level of hypervigilant concern for the children’s safety and showed a level of unwillingness to allow the father to have any opportunity to begin to repair or even develop his own relationship with the children without it being mediated through the mother.
  28. The family report writer observed that there appeared to have been a significant rupture in the bond of trust between the child Y and the father which had created what was assessed to be an ambivalent attachment relationship between Y and the father. She assessed that the father’s intermittent emotional and physical availability across Y’s early years appeared to have also been a contributing factor to the growing ambivalence and developing hostility that this child felt towards the father.
  29. The family report writer stated that the children both reported feeling a level of anxiety and fear when spending time with the father. She referred to the children describing times when they had seen the father erupt with explosive anger and disapproval which they felt was directed toward them. She noted that the father denied that he got angry with the children. The family report writer stated that based on the father’s presentation and interaction with her, it was assessed that the father does struggle with poor emotional regulation and is likely to struggle with sudden flashes and outbursts of anger.
  30. The family report writer stated that the father did not appear to have the same difficulties with alcohol use as he did during the marriage and after separation.
  31. The family report writer stated that the father was assessed as lacking insight into the extent to which his own past conduct had contributed to the rupture in the children’s relationship with him, however he was not wilfully or consciously neglectful or seeking to harm the children.
  32. The family report writer stated that the children could benefit from the mother working on learning how to allow the children to become more emotionally independent and individuated from her and how she might learn to establish and maintain better boundaries with the children.
  33. The family report writer observed that the parties’ post separation relationship was characterised by extremely low levels of trust and very high levels of conflict. She stated that this case had a marker of being one of entrenched and enduring conflict. She stated that the conflict appeared to be getting worse and more entrenched. It was also now threatening to undermine the children’s ability to enjoy a close and significant relationship with the father and there were signs that the risk of the children becoming permanently estranged from the father over time was high.
  34. The family report writer stated that the father may still benefit from seeking professional help in better addressing and overcoming his poor emotional regulation and anger issues and examining how this may be impacting his parenting and the children’s relationship with him.
  35. The family report writer stated that the father has not helped himself. His reputation for intermittent availability to the children emotionally and geographically in the past, has been reinforced by his choice to relocate away from (omitted) to the (omitted). She stated that the children and the mother have expressed valid concerns about the impracticality of maintaining the current time spent with father arrangements when the father lives two hours away from where the children have long established sporting commitments and activities.
  36. The family report writer referred to the child X’s extra-curricular activities including representative (hobbies omitted) at a national level. She stated that asking this child to sacrifice participation in activities which showcase her gifts and talents will not assist her to want to spend time with the father. She stated that both children’s longer term emotional and psychological health and well-being and their capacity to form successful intimate adult relationships will be at risk of being undermined if they are allowed to continue to reject the father and are not assisted to try to repair the rupture between them. She stated that it was the child Y who was assessed as being at greater risk to develop a longer term anxiety disorder and become entrenched in his refusal to see the father and estranged from him. She referred to the child’s vulnerability to anxiety and his preference for routine and structure.
  37. Under the heading “Recommendations”, the family report writer stated, inter alia, that unless the father relocates back to the (omitted) area, whilst the father resides at (omitted), the time the children spend with him should be reduced to include from Friday after school until Sunday evening and half of the school holidays. Further, that the father should facilitate and support the children attending their sporting activities. It was inappropriate in the circumstances of this family for the mother to be in attendance at every sporting event when the children are scheduled to spend time with the father; the children need to be assisted to learn to rely on the father independent of the mother. That the number of sporting activities and commitments arranged by the mother for the children needs to be seriously rationalised to make room for the father to be able to spend time with the children.
  38. The family report writer recommended that the children’s wish to spend less time with the father during the weekend, so that they can continue to participate in their sporting commitments and not be required to undertake a two hour drive from (omitted) to (omitted) before school on Monday mornings, needs to be given serious consideration. She recommended that if the father was unable to make suitable structured arrangements to facilitate getting the children to their sporting engagements on Saturdays and Sundays when they are spending time with him, then the court should consider reducing the time that the children spend with the father to include each alternate weekend after sport on Saturday until Sunday evening. Finally, the family report writer recommended that the children and the parents should be referred for assistance by a family therapist/social worker or psychologist who specialises in post separation conflict and anxiety in children and/or the Anchor (Supporting Kids Through Separation) Program run by Unifam at (omitted).

Oral evidence of family report writer

  1. The court refers to the family report writer’s oral evidence, aspects of which are set out below.
  2. The family report writer stated that she did not think that the mother was deliberately trying to undermine the children’s relationship with the father.
  3. The family report writer was cross-examined in relation to whether family therapy should occur before the children began spending time with the father. The family report writer stated that an order providing, for example, daytime time to be spent by the children with the father every second weekend in conjunction with family therapy could be considered initially. She had stated that something positive between the children and the father should occur sooner rather than later.
  4. The family report writer referred to the children’s anxiety in possibly not getting to their sporting activities on the Saturday morning if they were spending the fortnightly Friday night with the father at (omitted).
  5. The family report writer stated that from the material that she had read, the children were not yet ready to go with the father on the fortnightly Friday night.
  6. The family report writer expressed concern as to how one addressed the children’s anxiety (in not getting to their sporting activity on the Saturday morning) which was real. She stated that if the children have to go with the father to (omitted) on the Friday night then their anxiety was a real problem.
  7. In this context, the family report writer was cross-examined in relation to whether the children’s anxiety could be addressed by staying in Sydney with the father on the fortnightly Friday night. She stated that if the father had a “predictable” place for the children to stay on the Friday night that might help.
  8. Cross-examined by the father in relation to the children spending holiday time with him, the family report writer stated that the children would need to know who would be present with the father, and that the father would provide his full attention. The father would need to take care at the beginning, to assist the children have confidence with him.
  9. The family report writer stated that a graduated program of the children spending time with the father would provide more flexibility, starting where the children “are” presently.
  10. In relation to Saturday sporting activities, the family report writer stated, inter alia, that she would be reluctant to see the children’s sporting activities “bleed” into Saturday afternoons, with the Saturday morning sports being acceptable.
  11. The family report writer stated that if the children were presently reluctant to spend time with the father, then a graduated regime of the children spending time with the father may work and family therapy might have to start before such time commences.
  12. The court accepts the evidence of the family report writer subject to the court’s comments under the meaningful relationship primary consideration discussion later in these Reasons.

Leave to proceed against post-separation assets granted

Leave to proceed against post-separation assets granted

In Pinkett & Pinkett [2018] FCCA 712 (1 February 2018), the court allowed an Applicant Wife to proceed out of time (3 years) with an application for property settlement and spousal maintenance where there was little if any property at the time the deadline expired but the husband inherited about $350,000 post separation.

The Court was satisfied that the Applicant Wife would suffer hardship if she were not permitted to proceed with an application for property settlement, and the Court was also satisfied that she a substantive reason for delay (serious mental health issues).

The Court noted that the Respondent Husband would be put to significant expense in defending the Applicant Wife’s claim without any guarantee of recovering his costs from her should her application for a property settlement fail.

It was also noted by the Court that the Respondent Husband had made significant post-separation financial contributions to the parties children.

  1. The reality is, at the date of separation – the wife says 2010, the husband November 2011, as at the date of the decree nisi was pronounced and the expiration of the period within which the wife could have brought her application, the parties had no assets other than their superannuation which the wife had cashed in and also the husband had a car. The wife withdrew her superannuation in August 2014. The husband had $44,051 in superannuation. He currently has $134,000 in superannuation so the vast majority of that has been accrued since separation.
  2. However, the case law is clear in relation to property applications. The contributions of a spouse to assets in one or the other’s hands is not just during the marriage, it’s the whole of the relationship and parties can, post-separation continue to make a contribution to assets in one party’s hands or the other. That contribution can be, as it would be here with the wife, a parenting and homemaking contribution which has yet to be assessed by the court. For that proposition, you would look at the matters of Pierce & Pierce[2] and the matter of Fields & Smith[3].
  3. The wife’s case is she was unable to bring her proceedings due to an incompetence or inability from proceedings commenced in (country omitted) against her father and grandfather initially for sexual abuse of she and her sisters when they were children. 

Read more here

1300 365 108

Withholding of child invokes a Recovery Order

Withholding of child invokes a Recovery Order

A father has failed in his bid to resist the making of a Recovery Order where he fails to return a child contrary to a Parenting Plan:

Solos & Michaud [2018] FCCA 3050 (1 October 2018)

  1. In this application the mother has sought orders in the nature of a recovery order for the return of the child of the relationship who was not returned to the care of the mother following the provision of the child to the father most recently. The basis upon which the father resists returning the child is apprehension of risk to the child by reason of what he says is the mother’s self-confessed and proven drug-taking activity.
  2. I am not satisfied that there is merit in the father’s application. To the contrary. I am satisfied that it would orchestrate greater trauma to the child for the child to continue to live with the father having regard to the fact that the child was in the care of the mother until this application.
  3. Let me explain my reasoning.
  4. Some time ago the parents entered into a parenting agreement without the need of court involvement pursuant to which they agreed on a regime for each parent to have time with their child. One parent lives in Queensland. The other lives in Victoria. Pursuant to that arrangement the mother made the child available to the father in the state of Victoria. The time for the return of the child under the parenting arrangement required the child to be returned to the mother by a particular time. The father did not agree to that. Then followed an exchange between the parents culminating in an agreement by the father to return the child.
  5. For reasons not adequately explained the father the very next day brought this proceeding in this court in which he sought a rearrangement of the time regime.
  6. The evidence in respect of the so-called drug taking is unproven. It involves a great many allegations and counter-allegations, none of which are tested. Today, Mr Bunning of counsel handed to me a document from the Drug Detection Agency that indicated that the mother had returned a clean report in respect of drug-taking activities as recently as 24 September 2018. On behalf of the father, Mr Roberts said that the mother was a frequent and habitual user of a variety of drugs. That did not appear to be borne out by the evidence, albeit that the evidence is untested on the point.
  7. Ultimately, in a consideration of the application that is before me today the primary consideration is the best interests of the child. Both parties contended that the balance tipped in his or her favour. It seemed to me that the father, without the approval of the mother and without court sanction, failed to comply with his parenting arrangements as recorded in the parenting agreement. He instead has purported to rely on an historic examination of the mother’s drug-taking history, which, as I have indicated is based on the recent drug detection agency report and is not borne out.
  8. I am not in a position to assess the ability of either parent to adequately care for the child by reason of drug-taking activities or other factors. That can only be done with the benefit of a full investigation into the matter. But at this interim level it seemed to me that the most compelling factor that bore upon this case was obviously the best interest of the child underpinned by the time with whom the child has spent the most time thus far in the child’s short life.
  9. The mother has been the primary carer. I am satisfied that it would orchestrate much greater hardship to the child not to return to the mother than the reverse and, in those circumstances, it seemed to me that it is best to act in the child’s best interests at all times by making an order for the recovery of the child to the care of the mother.
  10. The price, of course, for that order is an absolute prohibition forthwith on any drug taking by the mother of any drugs of any description and I will forthwith prohibit her from so doing and I will require her to submit herself for fortnightly screening and verification. I will make a recommendation to the judge to whom this case is ultimately transferred to entertain an application if any one of the reports as to fortnightly screening is in the positive. In other words, the slightest indication of drug taking (or a resumption of drug taking if any pre-existed) will be visited sanguinely upon the mother.

Read more here

1300 365 108

Laws – what are they?

Laws – what are they?

The existence of laws is fundamental to a society governed by the rule of law. However, the creation and enforcement of laws does not, of itself, constitute or enable a society to be governed by the rule of law.

The important distinction must be drawn between a society governed by laws and a society governed by the rule of law. A society governed by laws, without consideration and embrace of the rule of law as a guiding and underlying principle, has the potential to be a tyrannical or “Police” state.

There are a myriad of definitions of “law” and it is, perhaps, instructive to consider a number of those definitions and statements made regarding them before turning to consider how laws might be (or have been) used to achieve justice or oppression and thus why the “rule of law” is fundamentally important in achieving the former rather than latter outcome.

The Organisation of American States1 provides this useful definition:

The law is a set of rules for society, designed to protect basic rights and freedoms, and to treat everyone fairly

The Legal Services Commission of South Australia provides the following useful and interesting discussion (rather than definition) of laws2:

a law is the product of the social conditions at the time it is made. The law is not static. Just as relationships between people or between people and the Government are not fixed permanently, so the law changes by responding to the current social and political values of the dominant culture. As societies become more complex so too does the law. It governs our private relationships through contract, tort, property, succession, trust and family law as well as our public relationships with the State through criminal, constitutional and administrative law

The Canadian Department of Justice provides the following insight3:

Rules made by government are called “laws4.” Laws are meant to control or change our behaviour and, unlike rules of morality, they are enforced by the courts… Ever since people began to live together in society laws have been necessary to hold that society together… Even in a well-ordered society, people have disagreements, and conflicts arise; the law provides a way to resolve disputes peacefully… Laws help to ensure a safe and peaceful society in which people’s rights are respected

Whilst the above examples are illustrative they make clear that laws are generally accepted as addressing fundamental purposes including:

  • Universality
  • Consistency
  • Regulation
  • Changeability and responsiveness
  • Protective of individual and collective rights

If one were to turn to utilitarian jurisprudential philosophers5 such as Bentham, Milne and Paine it might be opined that a “good” law:

  • Protects individual freedom;
  • Ensures collective security (including through the individual’s responsibility to not infringe that security through the prudent exercise of his/her freedom by reference to the freedom of others); and,
  • Acknowledges and protects fundamental rights.

Yet clearly there are examples where laws have not met these purposes and yet have been laws enacted by elected governments. Readily recognised examples might include:

  •  “Jim Crow” segregation laws in various of the United States of America (whereby segregation was legally imposed or protected by “separate but equal” laws) and enduring until the 1960’s6
  • Similar Australian laws establishing the various officers of the Protector of Aborigines7
  • Apartheid and Pass laws in pre 1994 South Africa8
  • Russia and Zimbabwe’s recent anti gay laws
  • The suggested “Illegality” of recent Crimean succession motions.

The importance of laws being uniform in their application is generally accepted as fundamental to their doing justice. However, there are clear and obvious examples when this has not been so even when suggested to be so or where on the laws’ face it has appeared to be so. On such example is the 1776 American Declaration of Independence which contains the prosaic opening passage:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of Happiness

Whilst few would cavil with these words it must be remembered that at the time such “freedom” was declared as universal that:

  • Women were not legally recognised as equal nor permitted to vote (a circumstance I have listed first amongst many injustices arising from the Declaration as I prepare this speech on International Women’s Day);
  • The First Nations Peoples of the then United States were not treated with such unanimity of equality9;
  • Slavery flourished10 (and including a number of the drafters and signatories of the Declaration owning slaves).

The injustice of such anomalies (indeed hypocrisies) has been the subject of substantial and significant comment by judicial officers and political and Civil Rights leaders including:

Our constitution is color-blind, and neither knows nor tolerates classes among citizens….The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved

– Justice Harlan11

Freedom and justice cannot be parceled out in pieces to suit political convenience. I don’t believe you can stand for freedom for one group of people and deny it to others.

– Coretta Scott King

Law and order exist for the purpose of establishing justice and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress.

– Martin Luther King Jnr

Laws are the means by which political will is given expression. Thus if the political will is not just then nor will be the expression of that will. In this sense the absence of justice constitutes injustice and injustice oppresses. Similarly, a law passed for an unjust purpose will oppress.

Martin Luther King Jnr had sagely opined that:

Law and order exist for the purpose of establishing justice and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress

Sadly time does not permit any detailed discussion of what might be meant by “justice”.

Read more here from Judge Joe Harman

Queensland / Victoria / New South Wales

Law and ‘Digital Natives’

Law and ‘Digital Natives’

Digital Natives – The advent of large legal databases, available over the internet for instant access and research, coupled with the relatively inexpensive availability of 4G WiFi and the almost universal penetration of smart phones has changed the courtroom forever. As Berring explains ‘Many lawyers … remain creatures of the old information, and will never change their views of how things ought to be.  However, they are being superseded by newer researchers, who come to the progression as devotees of electronic information.’[14]

In the court room, many young lawyers (digital natives) no longer bring copies of legislation, court rules, or cases, instead relying upon their ability to access this information with a tablet or smart phone.  To older lawyers (often not digital natives), used to dragging large brief cases full of books to the court room (often just in case a point arises) the almost carefree attendance of younger lawyers with only a writing pad and a few documents appears like a lack of preparation.  In some cases it is a lack of preparation, with the lawyer comforted by the thought that they can look things up in court (rather like the false comfort that one can look up answers in an open book exam); but in other cases there is a change in how lawyers access the law, and their preparations.  Remarkably, we are also seeing a retreat to statutory provisions and first principles by many young lawyers, presumably driven by the overwhelming volume of case law now available and changes in legal education: no doubt this will soon lead to a greater demand for machine analysis of cases to better expose the decision making norms.

The ready availability of materials that are free to access, primarily on AustLII, has resulted in AustLII being the most common source of legal materials used electronically in the court room.  I suspect that the subscription services currently face three key difficulties that do not confront AustLII:

  1. The subscription services remain relatively expensive, and often out of the reach of smaller firms;
  2. Subscription services face the difficulty of having to protect their content as it is their business asset, thus often do not appear to have provided login systems that allow lawyers from firms to easily use their own devices;
  3. The subscription services are often slower to load on a device as a result of the complex screen rendering designs.

It also seems likely that in the future subscription services will face the difficulty that their rendering of information does not easily permit re-use of the information, even for the most simple things such as occurs with screen scrapers for automated bibliography programs, such as Zotero.[15]

The most significant change in behaviours is that of the self-represented[16] litigant.  The array of un-represented litigants highlights at least one criticism of Prensky’s thesis: not all digital natives are adept with the new technology.  However, in those adept with new technology, the digital natives capacity to overwhelm the court and their opponents with material is greatly enhanced by the use of resources like AustLII.  The well prepared un-represented litigant may come to court armed with numerous authorities (sometimes relying upon single (or even partial) sentences from each case).  Some bring clean copies of judgments, others produce tattered and incomplete copies of decisions, many assume that the court will be familiar with every AustLII case (or have it available on the bench) and that they don’t need to provide copies to the court.  This makes the need to judicial access to the internet, from the bench, or at least a court office that can access the internet and print material important in such cases.

On an entirely pragmatic level, whilst the appeal courts may be able to insist upon ‘Authorised’ versions of decisions from the parties, the battle is long lost in the busy trial courts, even with many lawyers.  The courts must respond by changing with the new socio-legal cultures that technology has brought.

Read more here by Judge Grant Riethmuller

Maroochydore / Noosa / Caloundra

The ongoing need to ‘democratise’ the law

The ongoing need to ‘democratise’ the law

Democratise the law – It is a fundamental principle of our legal system that ignorance of the law is no excuse.[6]  If ignorance is no excuse, it stands to reason that the ordinary citizen must be placed in a position to learn what the law is (at least to the extent that this is reasonably possible).  In this regard, in Coleman v Power[7] Gleeson CJ referred to the important statement of Scott LJ in Blackpool Corporation v Locker,[8] saying that:

‘the rule that ignorance of the law is no excuse is “the working hypothesis on which the rule of law rests in British democracy”. Most significantly his Lordship went on to make the point that the corollary of the rule is that information as to the content of the law should be readily accessible to the public.’

In Australian Competition & Consumer Commission v Anglo Estates Pty Ltd[9] French J restated the rule in terms more apt for those in the antipodes, saying that ‘… the rule that ignorance of the law is no excuse is the working hypothesis on which the rule of law rests in Australian democracy.’

In 1948, when Blackpool Corporation v Locker[10] was decided, there were real practical difficulties to enabling free access to the law. Scott LJ made the point, with respect to sub-delegated legislation, that if there is no obligation to publish, then:

John Citizen may remain in complete ignorance of what rights over him and his property have been secretly conferred by the minister on some authority of other, and what residual rights have been left to himself. For practical purposes, the rule of law, of which the nation is so justly proud, breaks down because the aggrieved subject’s legal remedy is gravely impaired … [and] … appear to me ex debito jutitiæ to demonstrate the crying need of immediate publication …

Not long before, the Chancellor’s Commission on Law Reporting had rejected proposals to restrict litigant to relying upon cases reported in the Authorised Reports on the grounds that it would strike ‘at the base of “one of the pillars of freedom, that the administration of justice must be public.”’[11]  More recently, Justice Lindsay has noted that the ‘availability, accessibility and content of reports of the processes and decisions, of Australian courts are central to the concept of “law” in Australian society.’[12]

The central importance of the case law being readily available, as opposed to merely a text book or bureaucrat’s summary on a web page, lies in the fundamental nature of the doctrine of precedent. As Bacon so eloquently expresses it:

It is a sound precept not to take the law from the rules, but to make the rule from the existing law.  For the proof is not to be sought from the words of the rule, as if it were the text of law.  The rule, like the magnetic needle, points at the law, but does not settle it.[13]

Even in modern times when so much law is to be found in statute, and the words are the text of the law, there are such broad discretions that access to examples of application of the statutory rules, in order to identify the normative outcomes, is essential to a nuanced understanding of the legal rules.

If ignorance of the law is no excuse, and realistic access to justice expected for every citizen, then the case law must be freely available in a format that can not only be accessed, but used by ordinary citizens in the courts.  The only realistic way to achieve this is to allow decisions found on AustLII to be relied upon in court.

Read more here by Judge Grant Riethmuller

Brisbane / Gold Coast / Sunshine Coast

The Adoption Pathway in Queensland and its interaction with the Family Law Act

The Adoption Pathway in Queensland and its interaction with the Family Law Act

  1. In Queensland, the adoption of children is governed by the Adoption Act 2009. It is a piece of Queensland legislation, not Commonwealth. Under that legislation, a stepparent of a child may apply to the Chief Executive of the Queensland Department of Child Safety, Youth and Women to arrange an adoption of his or her stepchild, provided that a number of preconditions are met. Those include that the stepparent is a spouse of a parent of the child; that the parent, the stepparent and the child all live together; that the adults have been spouses and both living together with the subject child for a continuous period of at least three years up to the time of the application.
  2. They also include the requirement that the stepparent applicant be an adult and an Australian citizen, or at least the spouse of the applicant must be an Australian citizen. They must also reside in Queensland and, interestingly, not be of the same gender as their spouse. The child must be at least 5 years of age and not yet 17. Finally, the stepparent must have been granted leave to proceed with the adoption application by this Court pursuant to s 60G(1) of the Family Law Act.
  3. Section 60G of the Family Law Act is as follows:

(1) Subject to subsection 2 the Family Court may grant leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent.

(2) In proceedings for leave under subsection (1), the court must consider whether granting leave would be in the child’s best interests having regard to the effect of paragraph 60F(4)(a), or paragraph 60HA(3)(a), and of sections 61E and 65J.

  1. Section 61E of the Act provides as follows: (1)(a) a child is adopted; and (b) immediately before the adoption, a person had parental responsibility for the child, whether in full or to a limited extent and whether because of section 61C or because of a parenting order.

(2) The person’s parental responsibility for the child ends on the adoption of the child, unless the adoption is by a prescribed adopting parent and leave was not granted under section 60G for the adoption proceedings to be commenced.

  1. If this court grants leave to proceed to commence adoption proceedings pursuant to s 60G and then an adoption order is made in favour of Mr Church and Ms Baxter by a State court under the Adoption Act, any parental responsibility that pre-existed the adoption order in accordance with the provisions of the Family Law Act, immediately ceases. That is, the biological parents of the child, in this case particularly Mr Baxter, will no longer have parental responsibility in respect of the child pursuant to the Act and any orders that were already in place in respect of parenting matters would automatically cease.
  2. Section 65J is in very similar terms to s 61E, except that it relates to the impact of an adoption by a prescribed adopting parent on a current parenting order where leave to make the adoption application was granted pursuant to s 60G. A current parenting order stops being in force if the child is adopted.
  3. I consider it sufficient to say that in proceedings for leave for proceedings to be commenced in the State court by a stepparent seeking the adoption of a child, that this Court must consider whether the granting of that leave would be in the child’s best interests, having regard to the effect of a number of other important sections of the Family Law Act.
  4. Essentially, the effect of those critical sections of the Family Law Act to which regard must be had when considering the child’s best interests is that on the granting of an adoption order pursuant to State legislation, any pre-existing parental responsibility rights or rights in respect of the child spending time with or living with the other parent, immediately cease.
  5. However, in the circumstances of this case, that will not matter insofar as parental responsibility is concerned for Mr Baxter, because Ms Baxter already has sole parental responsibility for the child under orders made pursuant to s 61C(1) of the Act. Interestingly, since the parties separated, Mr Baxter has been assessed as having a child support liability and an obligation to pay child support for the child to the Child Support Agency. Ms Baxter’s evidence, which I accept, is that she has never received any financial support from Mr Baxter for the child.
  6. Mr Church is, pursuant to the definition of a “prescribed adopting parent” contained in s 4 of the Act, a person within the definition contained.

Read more here

Sunshine Coast / Brisbane / Gold Coast / Townsville

SOLE OCCUPATION OF THE FORMER MATRIMONIAL HOME

SOLE OCCUPATION OF THE FORMER MATRIMONIAL HOME

  1. The wife seeks an order that the husband vacate the former matrimonial home, which is the main residence on the property and move into the “granny flat”, which forms part of the same building, where the wife and children currently reside.
  2. The husband opposes such an order being made.
  3. Section 114 of the Act provides the court may make such order or grant such injunction “as it considers proper” with respect to a matter to which the proceedings relate.
  4. In Sieling v Sieling [1979] FamCA 23(1979) FLC 90-627 the Full Court said:

The power to grant injunctions is, of course, a discretionary power, not to be exercised lightly. The Court must balance the hardship to each party of granting or refusing an order, and frame its order in such a way as to impose no further restriction than is necessary to achieve the protection of the applicant’s interest. It will not lightly interfere with the rights of an owner of property on the basis of a vague or uncertain claim. There must be circumstances arising out of the marital relationship which make it necessary to restrain, temporarily, a spouse from using his or her property rights to the detriment of the other party.

  1. In Davis & Davis [1976] FamCA 38(1976) FLC 90-062 at 75,309 the Full Court said that considerations include:

…the means and needs of the parties, the needs of the children, hardship to either party or to the children and, where relevant, conduct of one party which may justify the other party in leaving the home or in asking for the expulsion from the home of the first party.

  1. It is the wife’s contention that the former matrimonial home is substantially larger than the “granny flat” in which she currently resides with the children and in circumstances where the children live primarily with her she and the children should live in the main residence. She further contends that the husband is living alone in the larger residence and is not living there for significant periods of time while he spends time at his other properties. It is her position that the balance of convenience favours the husband vacating the main residence and moving into the “granny flat”.
  2. The husband contends that the term “granny flat” for the smaller residence on the property is a misnomer as the residence has three bedrooms and a bathroom. It is not disputed by the wife that the “granny flat” has multiple bedrooms, a bathroom, a laundry and is liveable.
  3. I am of the view that while the current residence of the wife and the children may not be ideal in her eyes, the wife is not entitled to the same standard of living that the parties enjoyed prior to separation but to a standard that is reasonable and adequate. In circumstances where the wife and children’s residence is adequate to meet their daily needs I do not make orders for the husband to vacate the main residence of the former matrimonial home. The ultimate occupation of the former matrimonial home will be a matter for final hearing.

Read more here

Brisbane / Gold Coast / Sunshine Coast / Townsville

Overnight care patterns and the psycho-emotional development of infants and preschoolers

Study 2: Overnight care patterns and the psycho-emotional development of infants and preschoolers

About Study 2

Study 2 draws on data collected as part of the Longitudinal Study of Australian Children (LSAC).3 LSAC follows the development of 10,000 children and families from around Australia, exploring the interaction of children’s social, economic and cultural environments with their ongoing adjustment and wellbeing. The study began in 2004 with two cohorts – families with 4-5 year old children (K cohort) and families with infants up to one year old (B cohort). The samples are followed up every two years. Three age groups were examined in Study 2: infants under two years (B1 cohort), older infants 2-3 years old (B2 cohort), and 4-5 year olds (B3 and K1 cohorts combined).

Four research questions guided the study. Relative to rare overnight and primary care overnight patterns, and controlling for related contextual variables (including low socio-economic status [SES], single-parent status, social support, parenting qualities, and co-parenting conflict and cooperation):

1. Does higher frequency shared overnight care parenting differentially affect the infant’s/child’s growing ability to self-regulate his/her emotions and behaviours, and to focus and attend?

2. Does shared parenting differentially affect the infant’s/child’s physical and psychosocial health status?

3. What is the demographic profile of families who largely share the care of their very young children?

4. What parenting qualities, co-parent relationship characteristics and socio-demographic characteristics moderate or mediate relationships between parenting arrangements and the above outcomes?

Three patterns of overnight care were examined. We distinguished higher frequency overnight stays from lower frequency overnight care, and included a third group of children who had some daytime contact, but rarely if ever had overnight care. Consistent with current Australian policy, we adopted the terms “shared care” to reflect the highest frequency of overnight-stay groups, and “primary care” to reflect situations in which the young child lived primarily with one parent while having steady but lower frequency overnight contact with the non-resident parent. Tables 2 and 3 show the sample sizes for the groups of interest.

Read more here

Sunshine Coast