Archive

Archive for May, 2009

‘Politics and religion in Family Law disputes’ (ABC Radio National, The Law Report, 12 May 2009)

familyThis recent family court case raises really interesting question about the rights of parents in deciding the upbringing of their children, especially when the parents are in disputes over the upbringing of their children.  It also touches on a deeper question regarding one of the fundamental human rights, namely freedom of beliefs.  

‘Politics and religion in Family Law disputes’ (ABC Radio National, The Law Report, 12 May 2009)

In this case, a dispute emerged between the father and the mother over how their child is brought up.  It is not clear from the media report, but one would imagine that the couple are separated.  To be more specific, the father objects to how the mother is exposing their child to neo-Nazi websites and indoctrinating their child with neo-Nazi beliefs, and asked the Family Court to ban the mother from doing so.  

How did the judge approach the case?

(Justice Faulks) decided at the moment that the parents are entitled to their own views, even if they are antisocial views, even if they are views which, if put into practice, may result in contravention of various pieces of legislation. And in his judgment of course he refers to those pieces of legislation such as the Human Rights legislation. But a person is not guilty, not guilty of any criminal offence, by holding those views. He expressed concern that the parents should temper their behaviour in front of the child, so that the child may not be seriously harmed, psychologically harmed, by the parents’ views.

So on the one hand, freedom of beliefs mean the right to hold any political and religious beliefs, even if such belief contravenes human rights legislation.  However, the judge also took into consideration the welfare of the child, especially with regards to the child’s psychological well-being.  All this really flows back to Australia’s ratification of the Convention on the Rights of Child (1990).  As part of our ratification of the convention, our family courts must see the interests of the child as its primary concerns, above that of the parents.  This is dramatically so in child custody cases, when parental rights often come into direct conflict, with the children caught in the middle.  

In this case, the judge decided that

… the mother be restrained from viewing websites relating to Nazis and fascism or sites that breach the Racial Discrimination Act when the child was in the house, and also that both parents be restrained from teaching or encouraging the child to take or hold political views, and be restrained from taking a child to rallies or political meetings.

Note however that this is an interim decision, meaning that the judge has not yet reached his final decision.  According to David Lardner, lawyer acting on behalf of the father, the judge 

took the view that until and unless evidence is provided of how extreme the mother’s views are, that we should, in the interim, temper our behaviour to ensure that the child is protected, pending a full hearing when the mother’s views can be explored and see whether or not in the upbringing of the child by the mother, and/or the father for that matter, their political beliefs, or their behavioural beliefs, would have an adverse effect on the wellbeing of the child.

One cannot help but note how difficult it would be to enforce such decision.  This underlies the inherent problem of a court solution to family law cases.  

David Lardner also discussed similar cases involving mothers who worked in the sex-industry who were fighting for custody of their children against their ex-partners.  Invariably, their socially disreputable professions were highlighted by their ex-partners in the courtroom.  However, according to Lardner, 

… in each case, the court looked at whether or not the mother had the best interests of the child or children at heart. The question really was whether or not the mother brought in to the lives of the child or children, her activities, and whether or not she believed that those activities were activities that should be adopted by her children or child. So that in each case, we successfully fought off the allegations of the father that she was not an appropriate person to look after the children of the relationship.

‘Rudd rejects civil union’ (Sydney Star Observer, 28 April 2009)

gay coupleDespite the inclusion of same-sex couples under the umbrella of de-facto couples in the new federal legislation that took effect on March 2009, Rudd has firmly rejected any notion of legal recognition of same-sex marriage under his government.  This is despite the fact that recognition of same-sex marriages was one of the recommendations that came out from the 2020 summit.  Needlessly to say, the Sydney gay and lesbian community have been disappointed by this, as this article in the the Sydney Star Observer illustrates.

‘Rudd rejects civil union’ (Sydney Star Observer, 28 April 2009)

Rudd’s main argument for rejecting any notion of recognising homosexual marriages is that the widespread community perception remains that marriage is between a man and a woman for life.  However, this is not really the case according to a same-sex marriage advocacy group, Australian Marriage Equality.

Opinion polls consistently show that a majority of Australians support same-sex marriage, making a nonsense of the Government’s stated belief that its policy ‘reflects a widely held view in the community’”, AME spokesman Peter Furness said.

‘California upholds gay marriage ban’ (SMH, 27 May 2009)

This is a setback for advocates for same-sex marriage in America, though only time will tell what the implications might be.gay couple

‘California upholds gay marriage ban’ (SMH, 27 May 2009)

California’s Supreme Court on Tuesday upheld a referendum that outlawed gay marriage but said 18,000 same-sex weddings carried out before the vote would remain legally valid.

Gay and lesbian activists had been seeking to overturn the results of the November referendum, which redefined marriage in California as being unions between men and women only.

Opponents said the referendum – known as Proposition 8 – was an illegal revision of the state’s constitution and said that the rights of minorities should not be vulnerable to a simple majority vote.

However, the California Supreme Court justices said in a 6-1 majority opinion that the referendum – which passed by a margin of 52.5 to 47.5 per cent – was legal and should be allowed to remain.

What is interesting from an Australian perspective is the use of referendum in this case.  In Australia, referendum has mostly been used for constitutional issues, or in two instances, on conscription.  Rudd has stated that the majority of people in Australia sees marriage as an union between a man and a woman.  One wonders if this can be tested through a referendum.

Categories: family law Tags:

‘A Gay-Marriage Solution: End Marriage?’ (Time, 16 March 2009)

May 17, 2009 1 comment

gay coupleThis is an interesting proposal to end the legal battles between the proponents of the recognition of same-sex marriages and its opponents that is currently raging in the United States.  

‘A Gay-Marriage Solution: End Marriage?’ (Time, 16 March 2009)

(According to) a paper published March 2 in the San Francisco Chronicle, two law professors from Pepperdine University issued a call to re-examine the role the government plays in marriage. The authors — one of whom voted for and one against Proposition 8, which ended gay marriage in California — say the best way out of the intractable legal wars over gay marriage is to take marriage out of the hands of the government altogether. 

What is fascinating is that there are proponents for this idea on both sides of the fence.  Perhaps part of the attraction of this solution is that it seems to satisfy the core concerns of both sides of the debate.  

Instead, give gay and straight couples alike the same license, a certificate confirming them as a family, and call it a civil union — anything, really, other than marriage. For people who feel the word marriage is important, the next stop after the courthouse could be the church, where they could bless their union with all the religious ceremony they wanted. Religions would lose nothing of their role in sanctioning the kinds of unions that they find in keeping with their tenets. And for nonbelievers and those who find the word marriageless important, the civil-union license issued by the state would be all they needed to unlock the benefits reserved in most states and in federal law for married couples.

If this goes through in America, expect it to cause legal ripples throughout the western world.

‘Bikie laws a threat to rights, says Cowdery’ (SMH, 16 May 2009)

criminal justiceMuch has been written about the recent legislation rushed through the state parliament by Premier Nathan Rees in response to the bikie gang incident at Sydney International Airport.  I myself have posted one article already on this blog regarding this issue.  So there shouldn’t be any need to post another article about this.

Unless the article relates to comments by Nicholas Cowdery QC, NSW Director of Public Prosecutors.  As usual, Nicholas Cowdery does not pull any punches.  (If you are interested, read Nicholas Cowdery, Getting Justice Wrong: Myths Media and Crime (Allen & Unwin, 2001))

‘Bikie laws a threat to rights, says Cowdery’ (SMH, 16 May 2009)

THE Director of Public Prosecutions, Nicholas Cowdery, QC, has condemned the Government’s new bikie laws as “very troubling legislation” that could lead to a police state and represent “another giant leap backwards for human rights and the separation of powers – in short, the rule of law”.

Wow!  ‘Police state’?  Attacks on the separation of powers and rule of law?  We know the law in question is problematic, but these are pretty bold claims.  However he is the head of NSW DPP, and his arguments are well substantiated.  Firstly,

(The new legislation) “does not apply only to bikie gangs but ‘to any particular organisation’ in respect of which the Police Commissioner chooses to make an application.

In other words, the new legislation gives the Police Commissioner, who is an unelected official, the power to request the court to designate any organisation as criminal.  This places the onus on the judge to balance the rights of the individuals against the power of the state.  However,

Mr Cowdery says the fact the Attorney-General has the power to declare which “eligible” Supreme Court judge could hear an application to proscribe a gang meant an attorney-general could have “unfettered power to ‘stack’ the hearing of applications for declarations of organisations under the act with judges willing to enforce it”.

In other words, it gives the Attorney-General the power to walk all over the separation of power.  Moreover,

the Attorney-General could also “revoke or qualify the authority of a judge to determine applications for declarations if he or she does not perform to the Government’s satisfaction’.

Cowdery did note in the article that while a ‘police state’ might not have been the intention of the legislators, this is a serious erosion of our basic civic and human rights.

‘Woman in jail ‘should have been in a care home” (SMH, 9 May 2009)

coroners courtThis appears to be a very serious case of miscarriage of justice, and it highlights again the importance of the role of Coroner’s Court in our criminal justice system.

‘Woman in jail ‘should have been in a care home” (SMH, 9 May 2009)

A 73-YEAR-OLD woman convicted of Social Security fraud, who was suffering cancer, dementia and other problems and should have been sent to a nursing home, died less than five months into a three-year prison sentence imposed by the District Court, Glebe Coroner’s Court has heard.

The woman in question was Mary Anne Roberts.  During the trial, a written submission was tendered on her behalf by Nicholas Brennan, director of the geriatric unit at St Vincents Hospital, about her medical conditions.  According to Brennan’s report, Mary Anne Roberts was not fit to serve a jail sentence.  She was “suffering the effects of multiple strokes, was able to walk only with the aid of a frame or another person.”  The judge however dismissed the report, and sentence her to a five years in gaol.

While in prison, Mary Anne Roberts’ medical condition rapidly deteriorated, and it was exasperated by the fact the prison system did not have the facilities that catered to her frail medical conditions.  The following extract highlights examples of incompetency and departmental turf war that led to her final death.

A Justice Health team had tried to transfer her to the Mum Shirl Unit at Mullawa but the Department of Corrective Services had refused to admit her there. There had also been a demarcation dispute between the Prison Officers Association and health workers over who should shower her, and even an apparent dispute over who should push her wheelchair.

Mary Anne Roberts later died from bacterial endocarditis in Auburn Hospital.  Prior to death, she was suffering from dehydration, golden staph infection, as well as abscesses and pressure sores on her heel and back.

The hearing continues.

On the new Federal legislation concerning property separation of de-facto couples

familyAs students should know, a legislative amendment to Family Law Act 1975 (Cth) took effect as of 1 March 2009.  This legislative amendment, the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth), places the matter of property separation for de-facto couples under federal jurisdiction.  This effectively means that de-facto couples who wish to terminate their relationship and separate their properties would go through the mechanism of Family Court of Australia, rather than the state judicial mechanism.  (The only exceptions to this are South Australia and Western Australia!  A small prize to any student who can figure out why 🙂 

The law has caused some confusion among the public and the media.  So, to clear up some of the confusions, I have included some extracts from the website of a Family Law firm in Brisbane (‘Brisbane Family Lawyers’).  

Definition of a ‘de facto’ couple:

A person is in a de facto relationship with another person if the persons are not legally married to each other, they are not otherwise related by family, and having regard to all of the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

Note that this applies to both heterosexual couples and homosexual couples.  I can see that it would very hard to deny homosexual couples the legal right to adopt children as a couple.  

The circumstances of the relationship may include the duration of the relationship, common residence, a sexual relationship, financial interdependence, care and support of children, and public reputation (s. 4AA). There is no threshold requirement of cohabitation.

Note that you do not need tick all the boxes to qualify as a bona fide de-facto couple.  This is perhaps where the confusion lies.  As this lawyer explains further.

A Court may make an order or declaration if the Court is satisfied that the period, or the total of the periods, of the de-facto relationship is at least two (2) years, or there is a child of the de-facto relationship, or if failure to make the order or declaration would result in serious injustice to the applicant (s. 90SB).

Ex-partner maintenance:

  • The Court may make such orders as it considers proper for the maintenance of a party (s. 90SE (1), for a declaration of an interest in property (s. 90SL (1)) and for alteration of property interests (s.90SM (1)). Part VIIIB (Superannuation Interests) is extended to apply to a de-facto relationship. 
  • Third parties may be included in de facto property proceedings (in a similar way to the existing Part VIIIA).
  • The Court may make an order or declaration about the existence or otherwise of a de facto relationship (s.90RD).

 Note that if a de facto couple has already legally separated under state law prior to the commencement of this legislation, they may still opt to reconstitute their separation agreement under the new federal legislation.