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The problems with section 102NA of the Family Law Act 1975

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“During the longest period of human history—so-called prehistorical times—the value or disvalue of an action was derived from its consequences: the action itself was considered as little as its origin, it was rather the way a distinction or disgrace still reaches back today from a child to its parents, in China, it was the retroactive force of success or failure that led men to think well or ill of an action… In the last ten thousand years, however, one has reached the point, step by step, in a few large regions on the earth, where it is no longer the consequences but the origin of an action that one allows to decide its value… one came to agree that the value of an action lay in the value of the intention. The intention as the whole origin and prehistory of an action: almost to the present day this prejudice dominated moral praise, blame, judgment, and philosophy on earth.— But today—shouldn’t we have reached the necessity of once more resolving on a reversal and fundamental shift in values, owing to another self-examination of man, another growth in profundity—do we not stand at the threshold of a period which should be designated negatively, to begin with, as extra-moral: today, is not the suspicion growing, at least among us immoralists, that the decisive value of an action lies precisely in what is unintentional in it, while everything about it that is intentional, everything about it that can be seen, known, “conscious,” still belongs to its surface and skin—which, like every skin, betrays something but conceals even more? In short, we believe that the intention is merely a sign and symptom that still requires interpretation, moreover, a sign that means too much and therefore, taken by itself alone, almost nothing—that morality in the traditional sense, the morality of intentions, was a prejudice, precipitate and perhaps provisional, something on the order of astrology and alchemy, but in any case something that must be overcome.”

― Friedrich Nietzsche, Beyond Good and Evil (1886)
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High Court holds contact with Counsel amounts to apprehension of bias

Posted on Categories civil litigation, Family law 2 Comments on High Court holds contact with Counsel amounts to apprehension of bias

 

The failure by a judge of the Family Court of Western Australia to refrain from communicating with Counsel for one of the parties in a matter he was to deliver judgment in has resulted in the High Court reaffirming the principles set out in Ebner v The Official Trustee in Bankruptcy.
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Sterling Law gets costs order against solicitor

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This week, Sterling Law obtained a costs order on the indemnity basis against a solicitor in the Federal Circuit and Family Court of Australia.

The Facts

Sterling Law acted for the father in a parenting matter. The mother had prior to proceedings relocated from Katoomba NSW to Queensland without notice to our client. Our client the father sought a relocation order so that the child could have a meaningful relationship with both parents.

After the Federal Circuit Court trial, judgment was reserved. The mother then sought to re-open the evidence by filing an Application in a Case instead of complying with the Court’s Orders for the filing of written submissions. Solicitor for the mother said that the Application in a Case was filed on Senior Counsel’s advice.

The Application in a Case was dismissed at the first return date on 16 July 2021. The solicitor for the mother appeared without Counsel and sought an adjournment so that Senior Counsel could argue the Application. Sterling Law also appeared without Counsel and pointed out the ‘new’ evidence was not germane to the child’s best interests, nor was it likely to change the result. Furthermore, the mother was not a credible witness, and this had been demonstrated when she was extensively cross-examined at trial, so a hearing with further cross-examination would be required if the evidence was reopened. The ICL noted the ‘new’ evidence could have been adduced at the trial.

Judge Tonkin dismissed the Application in a Case later that day. Sterling Law then sought indemnity costs on behalf of the father against the mother, her solicitor and Counsel. We submitted that the Application in a Case was bound to fail, had caused undue delay and expense and had been filed for the ulterior purpose of delaying judgment so that the mother could remain in Queensland for longer. Furthermore, an offer of compromise was imprudently not accepted. None of those submissions were challenged on behalf of the mother or her lawyers.

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Judge Vasta sued for $2M over imprisonment of husband

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THE FACTS

Mr Stradford (“the husband”) and Ms Stradford (“the wife”) were engaged in property settlement proceedings in the Federal Circuit Court of Australia. Within those proceedings, on 6 December 2018 Judge Vasta made the following declaration and order:

1. That the Applicant [MR STRADFORD] be sentenced to a period of imprisonment in the [X Correctional Centre] for a period of twelve (12) months, to be served immediately with the Applicant to be released from prison on … 2019, with the balance of the sentence to be suspended for a period of two (2) years from today’s date.

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Mother ordered to pay half of father’s legal costs

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In a 2014 case, the Family Court of Australia awarded legal costs against a mother in a decision that sits as an exception to the usual mantra of family law court costs.

Legal advice

The Facts

The father was awarded custody and sole parental responsibility for the children of his relationship with his former wife, Ms Alexander, who had since remarried to a registered sexual offender. The mother was ordered to spend time with the children on alternate weekends.
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12 common misperceptions of family law clients

Posted on Categories Evidence, Family law Tags , , , , 2 Comments on 12 common misperceptions of family law clients

“Oh would some power the gift give us, To see ourselves as others see us” – Robert Burns. 

seperation-blog

 
In any area of law, a client’s perceptions of matters related to their case are often inaccurate. This is partly because clients don’t have the benefit of the knowledge that comes from experience in such matters. Part of a solicitor’s job is to educate a client about the process, the substantive law and the like. As a result, it is prudent to manage the expectations of clients and after every significant event ask the client whether they understood what has happened, and listen their understanding so that one can ascertain their perceptions.

A client’s perceptions are often further clouded by their emotions, particularly in family law. Many clients’ perceptions of the situation are inaccurate or even twisted, because to put it bluntly their emotions can blind them from actuality. As a result, what a family law client believes to be the case often is not the case at all. And many clients resist being told (and even resent) someone else telling them that their perceptions are inaccurate or untrue.
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Things to do when you separate from your partner

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Have you just separated? Are you thinking of separating? If so, here is a list of useful things to do as soon as you can.
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