The Bulletin - Law Society of South Australia by lawsocietysa

THE

BULLETIN THE LAW SOCIETY OF SA JOURNAL

VOLUME 43 – ISSUE 10 – NOVEMBER 2021

IN THIS ISSUE

Parenting during a pandemic A humane approach to family law cleints Difficult personalities in divorce matters PLUS

CourtSA launches in Criminal Jurisdiction

FAMILY LAW

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This issue of The Law Society of South Australia: Bulletin is cited as (2020) 43 (10) LSB(SA). ISSN 1038-6777

CONTENTS FAMILY LAW

FEATURES & NEWS

New judges & additional staff to help streamline family law matters Q&A with Judge Meredith Dickson

Parenting during a pandemic: Obligations to create stable environments for children By Virginia Bui

Dealing with a narcissistic personality in a divorce By Selina

It’s client centric lawyering that gets results, not big egos By Rose Cocchiaro

Mediation project helps disadvantaged women divide small-value asset pools By Gabrielle Canny

Family law cross-examination changes: a guide for practitioners By Gabrielle Canny

Justice system reform needed as part of national plan to prevent family & sexual violence By Dr Jacoba Brasch QC

Executive Members President: President-Elect: Vice President: Vice President: Treasurer: Immediate Past President: Council Member: Council Member:

R Sandford J Stewart-Rattray A Lazarevich V Gilliland F Bell T White M Mackie M Tilmouth

Metropolitan Council Members T Dibden M Tilmouth A Lazarevich M Mackie M Boyle E Shaw J Marsh C Charles R Piccolo M Jones Country Members S Minney (Northern and Western Region) P Ryan (Central Region) J Kyrimis (Southern Region) Junior Members vacant Ex Officio Members The Hon V Chapman, Prof V Waye, Prof T Leiman Assoc Prof C Symes

Justice reinvestment: a community driven process to tackle root causes of crime among Aboriginal youth By The Hon Robyn Layton AO QC

authority for all Wills and Estates practitioners By Grant Feary 26

Wellbeing & Resilience: Meditation for busy people who don’t have time to meditate By Amanda Goodfellow

The Anxious Counsel By Martin Hinton QC

CourtSA's launch in the criminal jurisdiction

Young Lawyers: Daniel Fox runner-up in National Golden Gavel

Supreme Court pre-action discovery under the Uniform Civil Rules: Issues and Subsequent Amendments By Jennifer Brook & Mikayla Wilson

Members on the Move

Tax Files: Submission to the Select Committee on Certain Matters Relating to the Operations of the Office of the Valuer-General By John Tucker

Family Law Case Notes By Craig Nichol & Keleigh Robinson

REGULAR COLUMNS 4

President's Message

Bookshelf

From the Editor

Risk Watch: When is an estate distributed?: An important new

Gazing in the Gazette Complied by Master Elizabeth Olsson

KEY LAW SOCIET Y CONTACTS Chief Executive Stephen Hodder stephen.hodder@lawsocietysa.asn.au Executive Officer Rosemary Pridmore rosemary.pridmore@lawsocietysa.asn.au Chief Operations Officer Dale Weetman dale.weetman@lawsocietysa.asn.au Member Services Manager Michelle King michelle.king@lawsocietysa.asn.au Director (Ethics and Practice) Rosalind Burke rosalind.burke@lawsocietysa.asn.au Director (Law Claims) Kiley Rogers krogers@lawguard.com.au Manager (LAF) Annie MacRae annie.macrae@lawsocietysa.asn.au Programme Manager (CPD) Natalie Mackay Natalie.Mackay@lawsocietysa.asn.au Programme Manager (GDLP) Desiree Holland Desiree.Holland@lawsocietysa.asn.au

THE BULLETIN Editor Michael Esposito bulletin@lawsocietysa.asn.au Editorial Committee A Bradshaw P Wilkinson S Errington D Sheldon J Arena D Weekley B Armstrong D Misell M Ford The Law Society Bulletin is published monthly (except January) by: The Law Society of South Australia, Level 10-11, 178 North Tce, Adelaide Ph: (08) 8229 0200 Fax: (08) 8231 1929 Email: bulletin@lawsocietysa.asn.au All contributions letters and enquiries should be directed to The Editor, The Law Society Bulletin, GPO Box 2066, Adelaide 5001.

Views expressed in the Bulletin advertising material included are not necessarily endorsed by The Law Society of South Australia. No responsibility is accepted by the Society, Editor, Publisher or Printer for accuracy of information or errors or omissions. PUBLISHER/ADVERTISER Boylen GPO Box 1128 Adelaide 5001 Ph: (08) 8233 9433 Email: admin@boylen.com.au Studio Manager: Madelaine Raschella Elliott Layout: Henry Rivera Advertising Email: sales@boylen.com.au

PRESIDENT’S MESSAGE

Words are powerful: We should use them carefully when talking about family violence REBECCA SANDFORD, PRESIDENT Please be aware that this column discusses domestic violence, and look after your emotional safety as needed.1

his year the Society has considered a number of proposed legislative changes designed to address domestic and family violence - something which has a significant and hugely detrimental impact on our communities and society. It is still shocking to me that the rate of change in dealing with this issue is so slow, given its insidious effects, and noting that we have demonstrated how quickly we can mobilise when required to deal with other issues with similarly widespread impacts (e.g. COVID-19). Family violence is a topic that is complex, multifaceted, important, and in need of urgent attention. It is critical to make sure that in taking well-intentioned action designed to help, we don’t accidentally do more damage by taking steps which are ultimately dangerous. Nonetheless, there is a clear need for reform in a number of respects to protect against the harms of domestic violence; including to better address the role of coercive control, which is now much better understood than even just a few years ago. In that context, recent attention to approaches for dealing with family violence is notable. In particular, the SA Government’s engagement on the Bill by which it is proposed that coercive and controlling behaviour will be criminalised2 is a good example of a thorough consultation process on potential legislation, with over 200 individuals and organizations providing feedback which was then incorporated into revisions to the law. It’s particularly reassuring to see that next there will be further consultation on a thorough implementation strategy in relation to the new offence, as well as the establishment of a stakeholder reference group, and a roundtable with victim-survivors to provide a voice of lived experience. There have also been amendments this year to the intervention orders regime in SA, with consultation

4 THE BULLETIN November 2021

currently underway as to the introduction of those changes too. Earlier this year the Law Council held a National Roundtable Family Violence: Awareness, Education and Training which I was pleased to have the opportunity to participate in. Following that event, the Law Council has, with input from constituent bodies including the Society, been developing a Draft Model Definition of Family Violence, noting that differences in the definition of that term across jurisdictions can cause difficulties. The Federal Government also recently announced the introduction of the Escaping Violence Payment which provides one-off payments and assistance to help address the financial barriers that may prevent people from leaving violent relationships. These are just a few examples, and whilst there is still more work to be done, it’s good to see concerted attention directed to addressing domestic violence. An additional step worth contemplating when it comes to consideration of these matters in the public domain could be the introduction or adoption of uniformly applicable media codes of conduct for reporting on family and domestic violence. Media reporting is already heavily regulated and restricted by various laws, but these can sometimes operate inconsistently. Dozens of different laws might apply to a story, many of which, if breached, can result in criminal offences or create civil liability risks. However, beyond strict limits about what can and cannot be said, it’s still possible for elements of a report about domestic violence to be harmful, even when perfectly legal. The use of accurate and considered language in the reporting of stories about domestic violence and violence against women might seem simple, but it really does matter. Though many reporters engage in sensitive and informative

journalism on this topic, helping to raise awareness and share stories that benefit victim-survivors, in some quarters it is unfortunately still all too common to see stories which create a high risk of ongoing or additional damage - for example, reports in passive terms which talk about “women attacked”, rather than concentrating on, and condemning, actions of perpetrators. Often, the focus is put on the additional steps victim-survivors should take to stay safe in their dangerous environments, rather than addressing the actual behaviour causing harm. Reporting such matters without due care as to their impact means viewpoints that victims carry blame for violence against them continue to be unfairly and inappropriately perpetuated. Often more could also be done to better canvas intersectional impacts from race, identity and class which can affect experiences and understanding of violence. Specific reporting guidelines on domestic violence and violence against women exist, but their use is voluntary, and varies from jurisdiction to jurisdiction.3 In Australia, Our Watch has released comprehensive guidance4 which includes a focus on evidence-based reporting, as well as the use of appropriate imagery, expert references and support options, and respectful language and headlines to articulate the seriousness of the violence. The Australian Press Council’s succinct Advisory Guideline on this topic,5 which sits alongside its Standards of Practice, is also extremely useful. In addition to setting out guiding principles such as safety, responsibility, context and content, cultural sensitivities, and sources of assistance, the APC Guideline refers to historical context and changing views when it comes to reporting on these matters, and includes a strong focus on the need to provide support to those sharing their stories. In the UK, Level Up has prepared media guidelines with a goal of ensuring domestic homicides are not reported in a way which compromises the dignity

PRESIDENT’S MESSAGE

of the deceased and their families.6 This includes a focus on accountability (placing responsibility on the killer), accuracy (including naming the crime as domestic violence), dignity, equality, and avoidance of use of stock images which reinforce existing stereotypes. Other international organisations have provided similar guidance.7 Although these sorts of guidelines are primarily directed towards media organisations, many lawyers (especially those in criminal and family law) have front-line experience in dealing with impacts of domestic violence, and may also find them useful as a best practice model for talking about this issue. As lawyers, we understand the

importance of language, and know that cases frequently turn on the use of individual words or even punctuation - parsing sentences is part of our daily experience. As competition in the news media market has increased, stories have become increasingly hysterical or polarizing to gain clicks and views, but the concept of leading discussion with a ‘do no harm’ approach should not be groundbreaking. In a world where media battles for our eyeballs and attention every day, while horrifying statistics about rates of injury and death from family violence and its ongoing effects continue to increase, perhaps we should insist on getting the whole (respectful) story, and not just sensational headlines. B

Endnotes 1 Support is available, including through 1800RESPECT (1800 737 732 or 1800respect. org.au). 2 Criminal Law Consolidation (Abusive Behaviour) Amendment Bill 2021 - see https://yoursay.sa.gov. au/control. 3 A similar approach exists in relation to the reporting of self-harm and suicide (a topic worthy of significant attention in its own right). 4 https://media-cdn.ourwatch.org.au/wp-content/ uploads/sites/2/2019/09/09000510/OW3989_ NAT_REPORTING-GUIDELINES_WEB_ FA.pdf. 5 https://www.presscouncil.org.au/ uploads/52321/ufiles/Guidelines/Advisory_ Guideline_on_Family_and_Domestic_Violence_ Reporting_09072021.pdf. 6 https://www.welevelup.org/media-guidelines. 7 See, for example, https://nnedv.org/content/ media-guide/.

FROM THE EDITOR

Being dispassionate & compassionate don’t have to be mutually exclusive MICHAEL ESPOSITO, EDITOR

awyers are usually expected to represent their clients with an air of detachment. Their job is to argue their client’s case as best they can, with the available facts in front of them. Getting emotionally invested in a case can colour one’s judgment and lead to bad decisions. It can also exacerbate the risk of vicarious trauma, which can take a heavy toll. But that doesn’t mean lawyers should altogether shun the human side of a matter, as one of this edition’s authors reminds us. Family lawyer Rose Cocchiaro contends that sometimes, lawyers’ egos can get in the way of achieving the best outcome for clients. She propounds humanising the law, being emotionally attuned to the predicament of the client, demonstrating sincere empathy, and giving clients genuine sense of control of the circumstances they’re in. Sometimes, the biggest ego in a matter belongs to a client. Selina Nikoloudakis, in her article, examines the issue of

representing, or opposing, clients with narcissistic traits. In these situations, remaining calm, rational, and dispassionate is important, especially in scenarios where, as Selina recounts, the opposing client makes threats against their estranged partner or opposing lawyer. Family law, which is the focus of this Bulletin, is a highly emotive area of law. While we all need to be able to “switch off ” from our work lives for the sake of our health and wellbeing, we can still allow ourselves to feel deeply for the plight of others. That is not to say that lawyers should “take on their client’s cause”, as Judge Meredith Dickson warns in a Q&A on page 8. Her Honour advised that lawyers should “reality test” their clients’ desired outcomes. Clients in family law disputes can be driven by strong emotions - spite, jealousy, resentment – that may lead them to seek

outcomes that are not in the best interests of anyone. There is no reason why a lawyer cannot assess a matter objectively while still having compassion for the emotional turmoil that consumes the client. Family lawyers would know that seeking legal remedy alone is not necessarily enough address the problems affecting broken families. Both Selina and Rose emphasised the importance of encouraging clients to have as much support as possible around them, such as medical, psychological, and financial support. It is good client service to help clients get all the expert help and counselling they need. Family law can be messy. Life is messy. And while the legal system may try to clean up these messes, it is important to remember for most fractured families, the journey doesn’t end once a decision is handed down. It is often just the beginning. B November 2021 THE BULLETIN

FEATURE

New judges & additional staff to help streamline family law matters Meredith Dickson was appointed Judge as a Judge of the Federal Circuit Court of Australia in 26 July, and was formally welcomed at a ceremony in the Adelaide Registry of the Court on 22 October. Judge Dickson’s appointment was followed by the commencement of the new Federal Circuit and Family Court of Australia (FCFCOA) on 1 September, meaning Her Honour is a Judge of Division 2 of the FCFCOA dealing with family law, migration and other general law matters. Judge Dickson’s legal career has been primarily focused on family law. At the beginning of her career, Her Honour was an Associate to the Judges and Judicial Registrar of the Adelaide Registry of the Family Court of Australia. Judge Dickson then went in to private practice from 1994 to 2000, before joining the Bar. Her Honour founded Elizabeth Evatt Chambers with Taanya Lewis in 2004, and acted mainly in family law matters, including property, parenting and child support. Judge Dickson has contributed much of her time to mentoring and supporting the profession in other ways. Her Honour’s involvement with the Law Society includes membership of the Women Lawyer’s Committee, Human Rights Committees, Alternative Dispute Resolution Committee, and Family Law Committee Her Honour has also been President of the South Australian Bar Association; a director of the Law Council of Australia; member of the International Academy of Family Lawyers; chair of the Psychology Board of South Australia; and Chair of the Child Death and Serious Injury Review Committee. The Bulletin spoke with Judge Dickson about her role, the newly amalgamated Federal Circuit and Family Court, and the concerted effort of the court to reduce delays and provide better outcomes for families at on of the most difficult times of their lives.

AS A JUDGE OF THE FEDERAL CIRCUIT & FAMILY COURT OF AUSTRALIA (FCFCOA), WHAT TYPES OF MATTERS WILL YOU BE PRESIDING OVER? 6 THE BULLETIN November 2021

As a judge of the Federal Circuit and Family Court of Australia, I will be presiding over Family Law matters involving disputes over parenting, property, child support, spousal maintenance and other issues that arise such as enforcement.

WHAT HAS BEEN YOUR EXPERIENCE OF THE ROLE IN THE SHORT TIME YOU HAVE BEEN AT THE FCFCOA SO FAR? It has been a very exciting time to be at the Court given the merger of the Federal Circuit Court and the Family Court, which occurred on 1 September, 2021. It has been good time to commence at the Court because the judges, registrars and other court staff are learning the new system together. I am really enjoying the challenge of my new role.

WHAT ARE THE WORKLOADS LIKE, AND WHAT PROCESSES ARE IN PLACE TO MANAGE THE WORKLOADS? The workload thus far for me has been manageable, given the recent appointments of a senior judicial registrar, senior registrars and registrars of the Court. The registrars have absorbed much of the urgent interlocutory applications filed since 1 September, 2021. The judges will continue to deal with cases already in their dockets and of course cases which are listed for trial.

HAVE YOU BEEN INVOLVED IN THE LIGHTHOUSE PROJECT, AND IF SO, HAVE YOU NOTICED ANY IMPROVEMENT TO HOW PARTICULAR DISPUTES ARE BEING RESOLVED? I have not yet been professionally involved in the Lighthouse Project as a judge. The Lighthouse Project commenced on 7 December, 2020 in Adelaide. The pilot is a new approach to risk screening that ‘focuses on public health and tailored case management for families involved in the Family Law System’. The pilot has been well received by the profession given it involves a very ‘hands on’ approach to dispute resolution in the early stages of the litigation and with the cases referred to a dedicated court list known as the ‘Evatt

Judge Meredith Dickson

List’. Senior Judicial Registrar Heuer has informed me that to date all Evatt matters have resolved prior to trial.

HOW HAS THE SMALL PROPERTY MATTERS PILOT PROGRAM BEEN PERFORMING? The ‘PPP’ pilot program commenced on 1 March, 2020 in Adelaide. It is a twoyear pilot program. To qualify the property pool between parties needs to be under $500,000 in total, including superannuation. It has been designed to streamline small property pools to a final resolution as soon as possible and to reduce the number of documents filed. A ‘PPP’ matter will involve the filing of an Initiating Application and a financial summary but no affidavit. The parties still need to file a ‘Genuine Steps’ Certificate. Senior Registrar De Corso, who is the PPP Registrar in Adelaide, reports that to date 68% of matters filed in Adelaide have finalised without judicial involvement.

WITH REGARDS TO THE RECENTLY MERGED FEDERAL CIRCUIT COURT AND FAMILY COURT, DO YOU HAVE ANY ADVICE FOR PRACTITIONERS ABOUT NAVIGATING THE SYSTEM? I would advise practitioners to become familiar with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. It is essential that practitioners are

FEATURE

across the new rules and how they may impact on their daily working lives.

this is an approach most adopt as a matter of good practice.

HOW WILL PRACTITIONERS BE EXPECTED TO CONDUCT MATTERS IN THE NEW SYSTEM (EG EXPECTATIONS TO SETTLE QUICKLY)

HOW WILL THE INCREASED NUMBER OF REGISTRARS AFFECT THE HANDLING OF MATTERS IN THE COURT?

My experience with the profession here in Adelaide has always been that there is a focus on trying to resolve matters. Members of the profession are very adept at organising their own informal settlement conferences outside of court ordered conferences and there are a range of excellent mediators in the profession who provide external mediations as well. In addition, the Court offers conciliation conferences and judicial settlement conferences to assist parties to a resolution. I do not consider that any focus on early resolution will come as a surprise to members of the Adelaide profession because

The increased number of registrars will result in matters being triaged from an early stage and with an emphasis on trying to resolve cases before trial. The extra judicial officers available will have an obvious effect on the profession in that matters will now be able to be listed much more quickly in the litigation pathway. The profession will need to respond accordingly as time frames are likely to be truncated.

WHAT DO YOU SEE AS SOME KEY CHALLENGES OF THE PRACTICE FAMILY LAW IN GENERAL, AND WHAT ADVICE

WOULD YOU GIVE TO THE PROFESSION IN RESPONDING TO THESE CHALLENGES? Family law can be a very stressful area of law in which to practice. I think it is important to see legal practice as a ‘marathon and not a sprint’. Find good mentors. Ask counsel for help if you need it. Don’t be afraid to seek help rather than guess what you are doing. There can also be a temptation in this jurisdiction for new practitioners to take on ‘their client’s cause’. It is important for practitioners to ‘reality test’ their client’s desired outcome at times. Family law can also involve many diverse issues and other areas of law, such as succession, personal injury and criminal law. I found it helpful when at the Bar to have other specialist lawyers to call upon when advice from other jurisdictions was required. B

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November 2021 THE BULLETIN

FAMILY LAW

New South Australian judges bolster Federal Circuit and Family Court registry

hree additional judges were appointed to the Adelaide registry of The Federal Circuit and Family Court of Australia on 15 October. The judicial appointments substantially increase the Court’s judicial resources and are expected to assist the Court to manage its demanding caseload. The judicial appointments to the Court’s Adelaide registry are: • Justice Penelope Kari, elevated from Division 2 to Division 1 of the FCFCOA • Judge John McGinn, appointed to Division 2 of the FCFCOA • Judge Caroline Jenkins, appointed to Division 2 of the FCFCOA Nationally, five new judges have been appointed to Division 1 of the Court and six new judges to Division 2. This provides five additional judges overall, with two additional judges in Division 1 and three additional judges in Division 2. This brings the total number of judges nationally to 104. The Court is anticipating further national appointments in the coming months. These recent appointments are in addition to new judicial registrars, child court experts, indigenous liaison officers and support staff that have been engaged to support the judges and undertake a significant role in the case management of matters in the Court. Among the recent appointments include four judicial registrars to the Adelaide registry, being Sharon Thomas, Jane Fox, Suzanne Derewlany and Kaela Dore. The judicial registrars will undertake enhanced duties and roles in the early stage

8 THE BULLETIN November 2021

of proceedings, which will alleviate some of the burden on Judges and enable them to direct significantly more of their time to the hearing and determination of complex interim applications and final hearings. The Chief Justice of the Federal Circuit and Family Court of Australia, the Hon Will Alstergren, said: “South Australia has the significant benefit of receiving three additional judges than previous years, which now provides a total of nine judges for Federal Circuit and Family Court in South Australia.” “On behalf of the Court, I warmly welcome the new judges who will play a critical part in the Court’s future and serving the people of South Australia.”

SA’S NEWEST FEDERAL CIRCUIT AND FAMILY COURT JUDGES Justice Penelope Kari was appointed to the Federal Circuit Court of Australia in March 2019 in the Adelaide registry, and has now been elevated to Division 1 of the Federal Circuit and Family Court of Australia. Her honour holds a Bachelor of Arts and Bachelor of Laws from the University of Adelaide in 2000 and was admitted to the Supreme Court of South Australia in 2001. Justice Kari spent the majority of her early career as a solicitor with David Burrell & Co in Adelaide, specialising in family law and spent a twoyear period with the London Borough of Hammersmith & Fulham. Her Honour was called to the South Australian Bar in 2011. At the Bar, she practiced in family law and was the Coach and Family Law Unit Coordinator for the South Australian Bar Association Bar Readers Course.

Judge John McGinn graduated from the University of Adelaide with a Bachelor of Laws and a Bachelor of Economics in 1983. He was admitted to practice in 1984 and has practiced as a Barrister since 2006. Judge McGinn joins the Court after a successful career at the South Australian Bar as a barrister in Hugh Barton Chambers, practicing exclusively in the area of family law. He has also presented a number of papers for the Law Society of South Australia in the area of family law, particularly relating to practice and procedure and financial matters. In addition, he has been a facilitator and presenter for the South Australian Bar Association Readers Course in the areas of family law and practice. Judge Caroline Jenkins signed the Bar Roll in 2003 and has since developed a practice in Family Law, de facto property, child support and intervention orders. Judge Jenkins is a Nationally Accredited Mediator and is also an AIFLAM Certified Arbitrator. Judge Jenkins completed her articles at Testart Robinson (now Robinson Gill) before commencing the bar readers course in 2003. Prior to commencing legal practice Caroline was a member of the Victoria Police Force for over 10 years, including several years specialising in the areas of domestic violence, sexual assault and the video interviewing of children. As part of her role as a police officer, Judge Jenkins was called upon to educate police in family violence legislation and police policy and has skills in working with clients with mental health issues and those who have been the victims or perpetrators of violence or sexual assault B

FAMILY LAW

Parenting during a pandemic: Obligations to create stable environments for children VIRGINIA BUI, SENIOR ASSOCIATE, JACQUI ION LAWYERS

s lawyers, I think it is reasonable to say that the best of us enjoy some degree of stability and dare I say it, law and order. It is also fair to say that structure, routine and predictability, to a significant degree, has well and truly been tossed out the window with the happenings of the world over the last 18 months or so. And by that, of course I am speaking of the impact of the Covid-19 pandemic. I challenge you to name an area of life that hasn’t been touched (or you might prefer to say marred) by the pandemic. I have no doubt that it will be a talking point in history lessons in decades to come. Closer to home for me, in the Family Law space, the effects of the pandemic have been no stranger. The most common questions which have been asked of Family Lawyers have included: • Can I leave my home to effect handover? • What if my handover location is in a hotspot? • What if my former partner is an essential worker and has a higher risk of exposure to Covid-19? • What are my obligations if my child is quarantining and/or awaiting the results of a Covid-19 test? The answer to these provocations will always start with what legal structure, or lack thereof, have the parents used to record their care arrangements. To set the scene, there are a number of ways in which parents can choose to have their care arrangements recorded. A smaller proportion choose not to record the arrangements at all and are able to reach an agreement directly with their former partner. They are referred to as informal

10 THE BULLETIN November 2021

arrangements. There are then Parenting Plans, which are the middle ground. Parenting Plans record an agreement reached between parents but they are not always legally enforceable. Then there are Court Orders, which can be made with the consent of both parents or by a Court after hearing a matter. If the parenting arrangements were determined by the Court, the legislation provides that the overarching consideration of the Court is the best interests of the child.1 Where a Court Order exists, it is probably superfluous to say that there is an expectation that the Order will be complied with. However, if there was any confusion about the matter, the legislation makes it abundantly clear.2 But regardless of how parenting arrangements have been recorded (or not recorded in some cases) they encapsulate a child’s day to day life. That being, who they live with, who they spend time with, who they communicate with and where they go to school, kindergarten or child care. The familiarity of routine and structure is all important, particularly where there is so much uncertainty around us. But, where the maintenance of structure and stability is at loggerheads with the health and safety of a child, the matter is no longer so simple. In his media release dated 26 March 2020 Chief Justice Alstergren of the Family Court of Australia and Federal Circuit Court of Australia (as they were then known) emphasised the importance of adopting a more practical and resolution focussed approach to resolving these matters. Some excerpts of his advice are set out below: • That parents and carers should act in the best interests of their children,

including ensuring their safety and wellbeing. • Consistent with their responsibilities to act in the children’s best interests, parents and carers are expected to comply with Court orders in relation to parenting arrangements. • If it is safe to do so, parties should communicate with each other about their ability to comply with current orders and they should attempt to find a practical solution. This should be considered sensibly and reasonably. • Even when there is no agreement parents should ensure that the other parent or carer continues to have some contact with the children consistent with the parenting arrangements (i.e. videoconferencing or telephone contact). • That the purpose or the spirit of the orders is respected when altering arrangements. As we family lawyers could easily attest to, it is not always that straightforward when dealing with complex family dynamics. This is particularly the case where parents have been entrenched in long and drawn out legal battles. In a climate where parents are facing the additional mental stress of being confined to their homes, it can only exacerbate the difficulty. Therefore, it is unsurprising that at the same time, the Court has taken matters into its own hands, launching the National Covid-19 list on 26 April 2020. This Court list is dedicated to dealing exclusively with disputes which have arisen as a direct result of Covid-19 and matters allocated to this list are given priority hearing. It was reported that by the end of May 2020, over 60 judgments had been published arising from cases in which Covid-19 had

FAMILY LAW

been a relevant consideration. An example of a typical scenario which may end up in this list is where one parent may bring an application after an agreement has been reached to suspend parenting orders or a Parenting Plan due to restrictions but has failed to resume compliance with those arrangements following the easing of Covid-19 related restrictions. Whether or not we are in the midst of a pandemic, the overarching consideration for the Court when determining a parenting dispute is set out in section 60B of the Family Law Act 1975 (Cth). Section 60B provides that the objectives of the provisions relating to the making of parenting orders are to ensure that children have the benefit of both parents having a meaningful involvement in their lives, to the maximum extent consistent with their best interests. Some examples of some recent decisions follows: • The Court made the decision that the risk of travelling interstate to spend time with a parent was too great and found that it was in the best interests of the children to maintain a meaningful relationship with the other parent by way of electronic communication (Banham & Banham [2020] FCCA 1201). It is well settled in case law that a meaningful relationship is a qualitative concept and is not simply measured by the amount of time a child is spending with a parent.3 • In the decision of Mafton & Salmet (No.2) [2020] FCCA 903 the Court confirmed that the existence of restrictions was not carte blanche authority to ignore parenting orders. It would need to turn on the facts of each individual case.

• In the decision of Makinen & Taube [2021] FCCA 18 the Court made Orders for the father to have sole parental responsibility in relation to vaccinations. In reaching its decision, the Court was mindful of the risk to the children contracting Covid-19 if they were not vaccinated. • In the recent decision of Denham & Newsham [2021] FamCAFC 141 the Full Court set aside a decision permitting a child to relocate to Belgium. The original decision was reached before the pandemic reached its peak in Australia. When the father appealed the decision, he sought to adduce further evidence about the practical difficulties of spending time with the child as a result of the border restrictions and quarantine requirements. The father was ultimately successful in his appeal and the matter was remitted for rehearing. • It would now seem that we will soon be bidding farewell to the pandemic (or the optimist in me hopes), but during the thick of it, it is in the children’s best interests for matters to be brought to a conclusion. In the decision of Cotadini & Georgiou [2020] FamCA 807, Justice Berman made final orders which were conditional and subject to compliance with Covid-19 travel restrictions. Section 70NAE of the Family Law Act 1975 (Cth) provides that a person has a reasonable excuse for contravening an order if there were reasonable grounds that the contravention was necessary to protect the health or safety of a child. While it is doubtful that the possibility of a global pandemic was ever contemplated when the

legislation was being drafted, it would fairly obvious that taking steps to protect a child from the risks of contracting Covid-19 would be an obvious exception. Returning home, South Australia was plunged into lockdown on 18 November 2020 with the harshest lockdown measures that the State had seen up until that point in time. For most of us, visiting the supermarket was the only reason which permitted us to leave our homes. But what about for the purposes of compliance with an Order of the Court? Naturally, it called into question whether parents were allowed to leave home for the purposes of facilitating handover. At 12.01 am on 19 November 2020 it was confirmed by the South Australian Police that parents and children would be permitted to leave their homes for the purposes of complying with care arrangements, whether they were Court ordered or otherwise (Parenting Plans or to follow usual arrangements). Travel to effect handover was deemed to be essential travel. On the flipside, it would seem that common sense would prevail when children were in quarantine or awaiting the Covid-19 test results and those types of reasons would constitute a reasonable excuse. Ultimately, where the world has been turned on its head, parents and lawyers together have an obligation to assure the children of this world that their world remains as stable as it can be. B Endnotes 1 Family Law Act 1975 (Cth) s 60CA. 2 Family Law Act 1975 (Cth), s 65DA, 65M, 65N & 65NA. 3 Mazorski v Albright [2007[ FamCA 520

November 2021 THE BULLETIN

FAMILY LAW

DEALING WITH A NARCISSISTIC PERSONALITY IN A DIVORCE SELINA NIKOLOUDAKIS PARTNER, ANDERSONS SOLICITORS

few years ago, I represented a client in a Family Law property settlement matter. While assisting my client she made a comment which remains in my mind – “I don’t think I’m paying him enough”. She went on to describe a close relationship with her ex-partner; they remained friends who regularly turned to each other for support and guidance. She did not want to “rip him off ” and although she acknowledged my advice, she actually wanted to pay him beyond what a court would likely order. Unfortunately, not all couples are able to resolve their legal disputes amicably; this situation is an exception rather than the rule. I am finding that more of my clients are describing their ex-partner as a “narcissist”. In the world of clinical psychology, the term ‘narcissism’ and more particularly, Narcissistic Personality Disorder (NPD), is a considerably layered (and controversial) diagnosis. There are four primary types of narcissists: overt, covert, malignant and communal.1 Focussing on the first two types, the grandiose, overt narcissist is easier to identify than the covert narcissist whose manipulation tends to hide under the guise of victimhood.2 Of course, most people exhibiting narcissistic personality traits have not been formally diagnosed as having NPD. Similarly, narcissistic personality traits can sometimes be demonstrated by individuals who do not have NPD. This article will focus on individuals that exhibit narcissistic personality traits and how as legal practitioners, we can remain focused and support our clients through the divorce process. It is not uncommon for a solicitor to represent a client or oppose a party who displays the following behaviour:

12 THE BULLETIN November 2021

1. A grandiose sense of self-importance. 2. Preoccupation with fantasies of unlimited success, power, beauty or ideal love. 3. A belief that they are special and unique and can only be understood by, or should only associate with, other special or high-status people or institutions. 4. A need for excessive admiration. 5. A sense of entitlement. 6. Manipulative tendencies. 7. A lack of empathy. 8. Envy of others or a belief that others are envious of them. 9. A demonstration of arrogant and haughty behaviours or attitudes.3 Dealing with an individual displaying these traits can be challenging as they are likely to see boundaries and ethical obligations as obstacles to the pursuit of their goals. I have represented many clients where ex-partners have displayed narcissistic personality traits and behaviours including: 1. Delaying the matter by not responding to legal correspondence or being selective in terms of what they respond to. 2. Stalling the process by not fulfilling their disclosure obligations. 3. Concealing their true financial position. 4. Disregarding court orders and/or an agreed way forward. 5. Threats to unsettle my client, including threatening to expose sensitive information. 6. Casting doubt about the client’s approach to the matter or their legal representation. 7. Harassing and/or threatening the client’s legal team. 8. Changing their mind after an inprinciple agreement has been reached

and blaming my client for not resolving the matter. As a lawyer, the challenge of dealing with such behaviour is compounded in circumstances where the client wishes to react to their ex-partner in a similar manner. The Australian Solicitors’ Conduct Rules should however always underpin our practice as legal practitioners. As an officer of the court, our paramount duty is to the court.4 Rule 175 makes it clear that a solicitor representing a client in a matter before the court must not act as the mere mouthpiece of the client. With this in mind, I always attempt to focus on resolving the legal issues in dispute by: 1. Explaining the relevant legal principles to my client and applying them. 2. Not allowing my client’s emotions or the behaviour of the other party to dictate the process or make us second guess our strategy. Some clients have wanted to use their Affidavit and legal correspondence to highlight their ex-partner’s narcissistic behaviour or to respond to irrelevant allegations. Allowing this would not be fulfilling my ethical duties as a practitioner; I would be doing the client a disservice by not focussing on the legal issues in dispute. The client needs to recognise the other party’s behaviour is not necessarily relevant to their legal matter. One way you can assist the client is by formulating a plan. As lawyers, it is our job to design a pathway to progress our client’s matter; this obviously involves discussing legal strategy. I like to remind my clients of this plan when they become emotional and feel unempowered. Your client needs to feel supported. It is therefore important to have a team of experts in other fields that can assist your client. It is common for lawyers to

FAMILY LAW

recommend their client consults with their GP or a psychologist. At the end of the day, it is not your job to be the psychologist – this is outside your area of expertise. You should also invite your client to consider having a support person at important meetings. I say this because the narcissistic ex-partner is likely to make your client doubt themselves and/ or their legal representation. A scenario I have commonly witnessed occurs when the other party puts forward their offer of settlement. The narcissistic ex-partner attempts to manipulate my client to accept their proposal because “It’s off the table in 24 hours and there is no way that the Judge would give you this much money”. The animosity escalates the longer your client delays providing an answer or when they finally say ‘no’ because the proposal is simply not just and equitable. At all times you need to follow your plan and continue to calmly navigate the process. As daunting as it sounds, I have been involved in matters where my client has told me their ex-partner has threatened to burn down the family home if they did not accept their settlement. Similarly, there have been times where threats have been made against me by the other party. Although you do your best to support your clients, they will sometimes struggle. In one such instance, during almost every conversation, my client could not help but remind me that their ex-partner was a narcissist, providing examples to support their position. In this case, aside from the ex-partner being dismissive of disclosure obligations, they painted a picture of their commercial enterprise which was completely deceptive. The expartner’s behaviour made my client even more suspicious and as such, my client

became fixated on keeping tabs on what their ex was up to, repeatedly conducting numerous searches, to the point that this consumed the client and delayed the finalisation of their matter. Even after the settlement, my client struggled to move on. In another matter, the initially selfrepresented ex-partner of my client called me shortly after I wrote to them and angrily asked “Do you know who I am?”. I replied, you are “Mr X”. He was obviously unimpressed with my response and threatened that if I did not persuade my client to withdraw the court application, there would be “consequences”. My client’s emotional state was fragile and they were extremely fearful of their ex-partner. In this case, my client relied heavily upon a team of experts, which included a psychiatrist. I constantly found myself reminding my client that we were not dealing with a rational person and the ex-partner was adopting a tactic to benefit them and derail our strategy. As a result of my professional exposure to individuals with narcissistic personality traits, I have reached out to personal contacts in psychology to ask for some suggestions to assist clients and lawyers. Their suggestions include: 1. Remain factual and unemotional: Record and document all behaviours and communications. Limit your communication to texts and emails. 2. Don’t give up your boundaries: When negotiating, don’t give up your boundaries and don’t allow changes that compromise your position. 3. Act calmy: Don’t respond to lies and try to defend against these. 4. Only negotiate between lawyers: Avoid being in the same room with the

narcissist, avoid eye contact and do not react or show them your triggers. 5. Don’t be surprised: A narcissistic expartner is likely to lie or manipulate the situation or seek to blame others. In summary, the amicable couple concerned about not paying the other party enough is likely to remain the exception rather than the rule. We are likely to encounter more clients where one party displays narcissistic personality traits. Dealing with a narcissist will have its challenges; some days you may find yourself questioning why you took on the case. If you’re like me, and you are passionate about helping people through difficult times, you will be able to answer that question relatively quickly. Remember, it may appear that narcissists are prevailing but the reality is they often feel threatened and are likely to be dissatisfied. You are not going to be able to change the narcissist so adhere to your plan and encourage your client to engage a team of experts to assist them through what is a challenging and emotional time. B Endnotes 1 Dr Ramani Durvasula, ‘The 4 types of narcissism you need to know’, 2018. 2 Ibid; ‘Not all narcissists are grandiose – the ‘vulnerable’ type can be just as dangerous’ Not all narcissists are grandiose – the ‘vulnerable’ type can be just as dangerous | Relationships | The Guardian. 3 Sheenie Ambardar, MD, ‘What are the DSM-5 diagnostic criteria for narcissistic personality disorder (NPD)?’, 2018. <What are the DSM-5 diagnostic criteria for narcissistic personality disorder (NPD)? (medscape.com)>; Frequency of narcissistic personality disorder in a counseling center population in China | BMC Psychiatry | Full Text (biomedcentral.com); Untitled (nyu.edu).. 4 Rule 3, Australian Solicitors’ Conduct Rules. 5 Australian Solicitors’ Conduct Rules.

November 2021 THE BULLETIN

FEATURE

Justice reinvestment: a community driven process to tackle root causes of crime among Aboriginal youth THE HON. ROBYN LAYTON AO QC

good news story. The Justice Reinvestment project Tiraapendi Wodli is addressing the high rates of Aboriginal people in incarceration from the Port Adelaide and Enfield suburbs (PA&E). The journey began in South Australia in 2012. It is based on the concept of justice reinvestment originally conceived in the United States in 2003 but is so far being adapted and applied in Australia by more than 21 Aboriginal and Torres Strait Islander communities, mostly rural.1 In South Australia it is being implemented by the PA&E Aboriginal2 community (Tiraapendi Wodli) with three way support: non-financial support and advocacy from Justice Reinvestment South Australia (JRSA);3 major funding from the SA Department of Human Services (DHS); and critical support in money and kind by the Australian Red Cross (ARC). Premier Steven Marshall has also lent his political support and endorsement for government funding up until 2023.4

WHAT IS JUSTICE REINVESTMENT? Justice reinvestment is not a program but a process. It addresses high incarceration rates by tackling the root causes of crime to reduce incarceration and invest money into services and supports instead of prisons. It commences by collecting and analysing criminogenic and socioeconomic data to identify communities with high incarceration rates and then developing and applying strategies that address the underlying causes. In Australia it differs from US approaches which are now government led, to instead enable an Aboriginal community itself to identify and implement strategies to tackle causes of crime in its community and strengthen public safety and social cohesion over the long-term for future generations. It is a preventative and supportive approach - a transformative approach that is “bottom up”5 and not “top down”6. Evidence from Australia and worldwide shows that prison entrenches and deepens

14 THE BULLETIN November 2021

disadvantage rather than allowing people to turn their lives around. Many who enter prison are already homeless and jobless and when they leave prison, their prospects of finding a home or a job further deteriorate. Poverty, and poverty of opportunity, makes reoffending and returning to prison more likely. Failure to invest properly in strategies to reduce reoffending means that prisons can end up making communities less safe. Aboriginal community - controlled organisations have a unique capacity to develop and implement localised, tailored solutions and provide culturally appropriate services that have the support of the community. Responding to the needs of community is critical to reducing incarceration and recidivism. This includes assisting with homelessness, improving health and mental issues, improving education, strengthening cultural knowledge and pride, linking people to culturally appropriate services and giving tools to Aboriginal people to improve their lives and employment opportunities. In South Australia the Aboriginal leadership organisation Tiraapendi Wodli does just that. The basic facts in South Australia:7 • 2,986 people are in South Australia’s adult prisons. • 7.9% are women. • 23.5% are Aboriginal and Torres Strait Islander people. • 57% have already been in prison before - the revolving door - the highest in a decade. • 223 persons per 100,000 South Australians are in prison which is above the Australian average (215 per 100,000) and well above most comparable jurisdictions across Western Europe and Canada. • More than 4 in 10 people in prisons are unsentenced and this remand population is proportionately higher than any other Australian state or territory. • 42.3% of people exiting prison receive either another prison sentence or a community corrections order within 2 years of their release.

Premier Steven Marshall, Human Services Minister Michele Lensink and the Sparrow family at the launch of Tiraapendi Wodli

• •

Over half of the youth prison population are young Aboriginal people –10 - 17 years old Young Aboriginal people are 22 times more likely to be in prison than non-Indigenous young people – the beginning of the revolving door.

COMPARATIVE COSTS OF PRISON ORDERS AND COMMUNITY ORDERS The direct cost to South Australians per adult prisoner per year is $86,213 or $236.20 per day.8 The SA Government is also spending an additional $187 million on new prison beds (Yatala Labour Prison and Adelaide Women’s Prison), at a cost of half a million dollars per prison bed.9 In 2018 the Australian Institute of Criminology published research on the costs associated with community corrections orders in Victoria in comparison with the cost of prison sentences over a five-year period.10 The research compared 804 people entering the prison system matched11 with

FEATURE

804 people with community corrections orders. The research showed that the net cost of a prison order was almost three times higher than a community order (an average $144,480 for prison and $49,633 for community). Direct prison sentence costs were by far the largest single cost item followed by loss of quality of life for prisoners, their partners and families, and lost productivity due to loss of paid work and lost earnings. Similar results have also been demonstrated in South Australia in an evaluation undertaken by researchers from the University of New South Wales published in 201912 of the costs of two forms of home detention13 compared to

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the cost of prison detention. The costs of home detention of $1,808 per month, were 22% that of prison costs, that is, prison costs were almost four times higher than home detention costs. This Evaluation also showed that recidivism rates were significantly lower for prisoners who completed their sentence on home detention than prisoners who served the whole of their sentence in prison (20% compared to 34% return to prison). Even higher are the costs of youth aged 10 – 17, $3,125.25 average per young person per day for detention-based services compared to $96.59 average per young person per day for communitybased supervision.14

In short, just from an economic cost and community safety point of view, money spent on providing services and support to offenders in community or on home detention instead of imprisonment is clearly the most effective way to both prevent crime and reduce recidivism. Imprisonment should be reserved for the most serious crimes such as serious offences of violence and community safety.

TIRAAPENDI WODLI - JUSTICE REINVESTMENT After JRSA and ARC had collected the criminogenic and socioeconomic data that revealed high rates of incarceration, the PA&E Aboriginal community were first

40 Waymouth Street Adelaide.

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FEATURE

consulted about whether they wished to implement a justice reinvestment process. Their first request was for a safe and cultural space. After two years of discussion, in 2018 the Aboriginal community elected an Aboriginal leadership group chaired by the late Elder Syd Sparrow, and called themselves Tiraapendi Wodli.15 They developed a comprehensive “Port Adelaide Aboriginal Families Thrive Action Plan 2019 – 2021” and established a culturally safe place - “The Hub”. After moving to Daly Street Port Adelaide, the Hub was officially opened by the Premier and Minister Lensink, the Minister for Human Services, in July, 2021

cultural awareness workshops and a range of other one-off sessions as needed. “Occasions of Support” continues to increase with more than 346 individual occasions per month and “Regular Service Users” of 118 per month. The complexity and regularity of individual service users returning for increasing levels of support is also rising. In addition, local service providers and government agencies are increasing the referrals and are also seeking support and advice to improve their own service engagement with Aboriginal families. The volunteer Aboriginal Community Advocates are indispensable.

FAST FORWARD - THE HUB TODAY

New challenges emerge such as responding to increasing numbers of people ‘living rough’ in local parks and shelters in Port Adelaide, contributed to by COVID. The majority have come from APY Lands, WA remote communities and Far West communities. The health, safety, food security and housing needs and levels of vulnerability of these groups are complex and required a multi-coordinated response.

The Hub is the place where Aboriginal people can safely connect. The role of the small number of paid staff and volunteer Aboriginal Community Advocates, is to maintain a ‘walking alongside’ approach to ensure individuals and families who come to the Hub are well supported to access the services they need. The Hub services include providing small financial supports to assist people to take next steps.16 A major component of the daily activity and support is providing coordinated and intensive one-to-one and family supports. This regularly requires complex family coordination involving housing and homelessness, mental illhealth, trauma, family safety, reconnection with community following prison release, disengagement from services, chronic health issues and poverty. The Hub programs include men’s music and yarning group; ‘family tree’ discussion group; young men’s health and fitness workshops; women’s fitness group; men’s individual life skills education; financial counselling workshops; access to a psychologist co-located at the Hub; Learner driver accredited workshops; traditional arts and crafts workshops;

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RESPONDING FLEXIBLY TO NEW CHALLENGES

NEXT STEPS Tiraapendi Wodli with support, is collecting data both quantitative and qualitative, to demonstrate how the justice reinvestment approach at PA&E is building community strength and safety and reducing incarceration. This is multilayered in its approach and will additionally assess their community data from an Aboriginal perspective. For example, the importance and impact of feeling culturally safe and secure; knowing family history; connecting with Aboriginal people across ages and backgrounds; having a sense of community and respect; engaging in storytelling and yarning; having education not only in the curriculum but in the strength of Aboriginal cultures and traditions; locating supports and mentors to both prevent

offending and assisting with re-connecting with community after incarceration. These next steps are a vital to ensure the journey of success of Tiraapendi Wodli continues. B Endnotes 1 Some main examples are Maranguka Justice Reinvestment Project in Bourke NSW (rural and the most advanced); Just Reinvest NSW in Moree (rural); Just Reinvest in Mt Druit (urban); the Olabud Doogethu Project Halls Creek (WA) (rural); Katherine NT (rural town); Justice Reinvestment ACT (statewide government led - not limited to ATSI communities); Tiraapendi Wodli SA (urban); ARC Ceduna SA (rural town and is justice reinvestment in style). 2 As most Aboriginal persons living in South Australia are not from Torres Strait, it is culturally acceptable to refer to Aboriginal persons and not Aboriginal and Torres Strait Islander persons. 3 JRSA is an organisation with a Board of 11 persons, Aboriginal and non-Aboriginal which supports and advocates for justice reinvestment initiatives in South Australia. 4 A further $850,000 over two years. 5 Developed and implemented by the community, 6 Lead and driven by government or non – Aboriginal organisations. 7 ABS, Prisoners in Australia Reports 2020. 8 Productivity Commission.2021. Report on Government Services. Table 8A.2 9 South Australia Budget Paper 2021-22 Agency Statement Vol.1 p103. 10 AIC Research Report 05. 2018. How much does prison really cost? Comparing costs of imprisonment with community corrections. 11 Ibid. They were matched by demographic fit, current offending, offending history, and risk of offending. Fifteen elements were considered. 12 Cale, J., Zmudzki, F., Hilferty, F., Lafferty, L, Whitten, T., Doyle, M., and Valentine, K. (2018). Evaluation of Home Detention in South Australia: Final Report. SPRC Report /18. Sydney: Social Policy Research Centre, UNSW Sydney. Pp 7, 11. 13 Court Ordered Home Detention - COHD and Release Ordered Home Detention – ROHD. 14 Productivity Commission.2021. Report on Government Services. Tables 17A.09 and 17A.10. 15 The words Tiraapindi Wodli mean “protecting home” in Kaurna language. 16 Such as access to ID, school uniforms, basic home-wares to set up home, course fees, basic clothing etc.

THE ANXIOUS COUNSEL

The Anxious Counsel MARTIN HINTON QC, DIRECTOR OF PUBLIC PROSECUTIONS

on’t do it! Don’t! Don’t look at your phone. It’s the early hours. You know it is. You need to sleep! Stop thinking. Think of the colour black, the darkest shade of black. Think a deep, dark black hole that you are gently passing through. Think floating, like Major Tom … in a most peculiar way … No. No ! Now you’re really thinking. Stop. Think floating on a calm sea, with a gentle breeze and a blue sky. Close your eyes as you drift. Dark, black, blackness ... calm.... float ... sleep, sleep. But it’s just no good. There’s that feeling again. In the middle of your chest. It’s not a burning feeling. And it’s not like you want to be sick. Nothing hurts. But you cannot shake it. Your breath is thin and your chest tight and bubbling. It is difficult to breathe deeply without a concerted effort. It’s consuming. Older generations would say it’s your nerves. Nothing a cup of tea won’t cure. But tea is no good to you in the middle of the night. Tea will not shift this feeling, this allconsuming beast. You are not in control of yourself. You, the high-achieving, logical, rational, stable human being. In a few hours you will endeavour, yet again, to persuade a court, that your client should succeed. But how? Right now you can hardly command yourself. You have put in the hours working this matter up. Tomorrow you must be at your best, your sharpest. Your own professionalism demands it, not to mention the people relying on you. It does not interest me who you are, how you came to be here I want to know if you will stand In the centre of the fire with me And not shrink back1

Stop thinking.

You are so tired. You must sleep. Dark, black, blackness … calm … float … sleep, sleep.

framework. Plain language used, but words carefully chosen. By no means prolix. The seeming simplicity was beguiling.

The beast will not let you. Aaarrrggghhhh!!

You learned so much from watching the back of his head. You also learned that it was alright to worry and be worried. But he cannot help you now. Stop thinking. You are so tired. You must sleep.

Oh the nerves, the nerves; the mysteries of this machine called man! Oh the little that unhinges it, poor creatures that we are.2 Silk for years. Supreme Court trials, courts of appeal, even the High Court, many times. And it’s not as though you have always been pushing at open doors. There’s been some hard, complex arguments made. And you’ve managed. Managed again, and again. Managed well enough to be respected; at least you like to think so. Managed and more. At times, dare you admit it, you have done well, very well. You have brought them back. Made the difference.

Dark, black, blackness … calm … float … sleep, sleep.

So why after all this time has this beast that feeling in the middle of your chest, that will not let you sleep, that consumes you - not been tamed?

You know the case, inside and out. When you get to your feet, adrenaline will sustain you. You know you are equipped and adept at dealing with questions from the bench. Paradoxically, it is the cut and thrust of the debate that you relish. And you know that once you resume your seat, the beast will be nowhere to be seen.

From a young age you learnt to trust yourself. You learnt that it is rare that you totally miss the point. It can happen. Of course it can, but rarely. And you have been in the game long enough to deal with impatient judges and, occasionally, those that seek to denigrate, are rude and are bullies. You know you can do this and do it well. You are so tired. You must sleep. Dark, black, blackness … calm … float … sleep, sleep. What was the name of that silk you once briefed in London all those years ago? The friend of the Prince of Wales. Former Treasury Counsel. His chain smoking before a matter rivalled the Flying Scotsman. He had done it all, representing some of the world’s most important people. And yet he too relied on cigarettes and tea. “Im very worried about this Oz”, he would say, your nationality being all he could remember about you. But when he stood and addressed a court, he was nothing short of brilliant. Propositions logically ordered, within a clearly articulated

You do not have an anxiety disorder. For that you need daily symptoms lasting at least six months. Certainly you are on edge, and you are tired, very tired. But that is not unusual. Sleep will come. You know it will. Perhaps not so soundly tonight, but it will come. What is it that you are so irrationally worried about?

What you cannot do is let the beast decide what you do. You cannot let it define you, and you cannot let it silence you. Your playing small Does not serve the world.3 Be strong. You have a job to do, a responsibility to discharge. We fail! But screw your courage to the sticking place, And we’ll not fail.4 Sleep. Dark, black, blackness … calm … float … sleep, sleep. B Endnotes 1 The Invitation, Oriah Mountain Dreamer. 2 C Dickens, The Chimes: A Goblin Story of Some Bells that Rang an Old Year Out and a New Year In (1845) at p 114. 3 Marianne Williams, Our Deepest Fear. 4 William Shakespeare, Macbeth, Act 1 Sc 7 ln 54.

November 2021 THE BULLETIN

RISK WATCH

When is an estate distributed?: An important new authority for all Wills and Estates practitioners GRANT FEARY, LEGAL RISK COUNSEL, LAW CLAIMS

he South Australian Court of Appeal has recently handed down an interesting authority — Noyce v Jeromel [2021] SASCA 87 — which should be noted by all practitioners advising on claims under the Inheritance (Family Provision) Act 1972 (SA) (IFP ACT) and all practitioners administering estates.

The facts of the case raised an acute point as to when an estate has been distributed for the purposes of Section 8 (5) of the IFP Act, which provides that any distribution of any part of the estate made before an application for an extension of time shall not be disturbed by reason of that application or any order

made on that application. This subsection must be read in conjunction with Section 8 (4) of the IFP Act, which provides that an application for an extension of time to commence an application for further provision shall be made before the final distribution of the estate. The facts of the case were as follows:

PRE-1992

Irene Jeromel was married to Ferdinand Jeromel. They had three children, Fred Jeromel, Danuta Noyce and Paul Jeromel.

1992

Irene became the owner of a property on Arnold Terrace at Royal Park.

1993

Ferdinand and Irene became owners as joint tenants of a property on Royal Terrace at Royal Park.

2000

Ferdinand died in 2000. No grant of probate or letter of administration was sought or made in respect of his estate and his name remained on the certificate of title for the Royal Terrace property.

2017

Fred died.

2018

Irene made a will (her last) appointing Paul as executor and trustee. She left $2000 each to Danuta and Danuta’s two children. The residual was left to Paul.

SEPTEMBER 2019

Irene died. The major assets of Irene’s estate were the Arnold Terrace and Royal Terrace properties.

17 NOVEMBER 2019 Probate of Irene’s will was granted to Paul. 17 MAY 2020

The prima facie time limit for an application for further provision out of Irene’s estate under the IFP Act expired.

19 MAY 2020

Paul signed a Client Authorisation document authorising his lawyers to do certain things to effect the gifts made in Irene’s will. Paul’s lawyers signed and lodged for registration at Land Services SA three documents. These were: i. an Application to Register Death by Survivor in respect of the Royal Terrace property, describing the Applicant as “Paul… as executor of the deceased proprietor vide Probate dated 17 November 2019”; ii. a Transmission Application by Personal Representatives in respect of both properties describing Paul as Applicant in the same way; and iii. a Transfer of both properties from Paul as executor of the estate of the deceased proprietor vide Probate dated 17 November, 2019 to Paul as beneficiary. It will be immediately noted that the references to the Probate in the above documents made no distinction between Irene’s Probate and the estate of Ferdinand, where no probate had been sought.

29 MAY 2020

Danuta instituted an action for further provision from Irene’s estate (i.e. some 12 days after the time limit expired). This action included an application for an extension of time, as well as an interlocutory application seeking an injunction restraining Paul from distributing any assets not already distributed.

1 JUNE 2020

Paul’s lawyer received a requisition from the Registrar-General requiring a change to the description of Paul on the Application to Register Death document so as to reflect the proper position with respect to Ferdinand’s estate. Paul’s lawyer initialled the necessary amendments.

2 JUNE 2020

Danuta’s originating application, injunction application and supporting affidavits were served on Paul. The injunction application was listed for hearing at 10am on 3 June, 2020.

3 JUNE 2020

Shortly after 10am, a Master granted an interim injunction restraining Paul from taking any further steps to distribute and restraining the Registrar-General from registering the Transfer in respect of both properties. Later that day a staff member of Paul’s lawyer lodged the amended Application to Register Death.

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RISK WATCH

Paul said that the estate had been distributed because, on his case, he had done everything that he needed to do to transfer the properties prior to the injunction being made. Danuta argued that the estate had not been distributed because the actual registration of the transfers had not been completed. This was of critical importance for Danuta because, if the estate had been distributed, by reason of Sections 8 (4) and 8 (5) of the IFP Act, her IFP claim would be thwarted, because there would be no remaining assets in the estate for her to claim against. The Court noted various provisions in the Real Property Act 1886 (SA) (RPA) dealing with registration, including Section 67 which provides that an estate or interest in land only passes under an instrument registrable under the Act upon registration of the instrument, as well as Section 249 which preserves equities. The Court also reviewed the authorities relied upon by Paul to the effect that equity may recognise that a gift is effectual if the donor has done everything that is necessary by the donor to effect a legal transfer of the property and render the gift binding on themselves, as well as the authorities as to what constitutes “distribution” under the IFP Act and equivalent legislation. The Court placed great weight on

Easterbrook v Young (1977) 136 CLR 308 where the High Court referred to: • “an actual distribution of the deceased’s property to persons beneficially entitled thereto”; • “the actual distribution of the estate, its removal from the hands or name of the personal representative and its placement in the hands or name of the testamentary or statutory beneficiary”; • “the words ‘distribute’ and ‘distribution’ [being] used in the Act … in the sense of a physical parting with that asset and its placing in the hands or name of an intended beneficiary”; and • “only a complete removal of the whole of the assets of the deceased from the hands or name of the personal representative will prevent the court extending the time for making an application for an order of maintenance.” The Court of Appeal concluded that neither the Arnold Terrace property nor the Royal Terrace property had been distributed within the meaning of Section 8 (5) of the IFP Act. It was found that: • the word “distribution” in Section 8 (5) of the IFP Act takes its meaning from the text, context and evident purpose of that provision and does not merely import equitable concepts applying to

executors and trustees or as to when gifts become effectual; • the Registrar-General was entitled and obliged to reject the Application to Register Death (because it did not correctly refer to the capacity in which Paul was making the application); • because the amended Application to Register Death had not been lodged on 2 June, 2020, and the other documents were dependent on the registration of that document, neither the Arnold Street property nor the Royal Terrace property had been distributed as at 2 June, 2020; and • even if equitable principles as to when gifts become effectual were applied, neither property had become effectual in equity as at 2 June, 020. As a result, Danuta’s application was not nugatory and could proceed in the normal course. The case therefore contains lessons for practitioners administering estates (i.e. it is important to be clear and correct when drafting documents giving effect to testamentary dispositions) and also for those advising on IFP claims (i.e. that it is critically important to issue and serve IFP claims within time and to always consider what effect distribution of estate assets might have on the efficacy of the IFP claim).

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FAMILY LAW

It’s client centric lawyering that gets results, not big egos ROSE COCCHIARO, MANAGING DIRECTOR, RESOLVE DIVORCE

hen I started my family law firm, Resolve Divorce, almost six years ago, I was motivated by two factors: one, to serve the community in a client-centric way that provides transformative experiences; and two, to challenge traditional lawyering, particularly as it relates to servicing clients, and influencing the legal community, demonstrating that doing law differently can achieve success. Resolve Divorce is now a thriving and successful business. It is having an impact on the community in a big way. We are achieving success; stemming from being client centric, humanising the law, and making it about the clients and not our own egos. I now want to be louder. My goal is to influence other lawyers, inspiring them to maximise the positive impact that they can have on the community and holding them accountable to the role they play in fuelling the conflict between parties to a dispute. We should be a profession that is client and outcome focused, motivated and determined to achieve success for our clients and ourselves. I argue that focusing on client centric legal practices and bringing a human element to each client’s legal experience achieves better outcomes. It is our job as lawyers to help our clients understand legal

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concepts, think deeply about the financial and emotional impact of the dispute and guide them to consider various options and be openminded about negotiating outcomes in creative dispute resolution forums, to help them reach settlements. In my experience, modern day clients want and need an environment where it’s a two-way street; where the client can be involved in the process and the negotiation, and have some control over how their matter is run and what outcomes they want to achieve. The skill is being able to toe the fine line to manage your client’s expectations and reality check your client around the reality of the legal outcomes compared to what their goals are. Behind every dispute, conflict has occurred because of a human interaction and something that’s gone wrong between people. It’s about understanding and responding to human emotion and demonstrating authentic empathy. That is what makes you a standout lawyer. At Resolve Divorce, the lawyers consider their responsibility to be beyond the legal advice, approaching assisting clients in a more holistic way. We offer a wellbeing program and get our clients prepared for the process through a series of steps designed to ensure they achieve their best outcome, whatever that means

for them. A recent client came to us describing herself as a “broken woman”. We spent time with her mapping out her goals and preparing her for her future, supporting her to evaluate what she wanted for her life post-divorce. She was well prepared for the negotiation. We assisted her to build a strong support network around her, which included a money coach and a divorce coach. Our client achieved financial empowerment by setting clear financial goals, better understanding her relationship with money, and detailed budgeting. She was also emotionally supported by the divorce coach, and able to overcome any roadblocks she met throughout the negotiation. Through her support network, she learned ways to communicate better and to work through her grief. The negotiation, controlled by her, was focused on understanding her goals, needs and worries. She was able to achieve a positive outcome, in a minimally invasive forum, because she was informed by our advice, empowered by her support network, and had clear goals to work toward. At the meetings, the parties discussed the real issues that mattered, reaching an agreement that met both of their goals, whilst still achieving their legal rights and

FAMILY LAW

entitlements. It was mutually beneficial to both parties. Our client achieved her “best outcome”, a sound legal outcome with her wellbeing in check, giving her confidence about her future. Importantly, our lawyers felt valued and enjoyed the process too. This to me is success, one family at a time. But success has come in other forms too, our network of referrers believes in our innovative dispute resolution techniques because they want to offer their clients something different and support their client to stay supported. This supports us to continue to grow. We have been named in the Top 25 list of Fastest Movers in SA (BDO awards) for the last two years in a row, and Resolve Divorce and our staff are multi-award winners and finalists year after year in

the National Lawyers Weekly awards as well as the Telstra Business awards and annually recognised in the Doyle’s guide for being a leading family law firm. Our firm has more than doubled in staff over the last 12 months, because of lawyers seeking out a firm that better reflects their values and preferred way of working, as well as the demand from clients for our representation. Business is thriving because we have satisfied clients that tell their friends, their referrer and their community. This leads to repeat work and an ever-growing number of networks developing because people want to be a part of something good. I challenge all lawyers to reflect on your practice and whether it is achieving for you, your authentic life; where you

can truly enjoy the work that you do; where you are supported to explore your reason for being lawyers and supported to practice law in a way that fits with your values. Be human; dig deep into your heart and remember what it was that made you want to become a lawyer in the first place. If it is because you had a deep need to help and support people and make a difference to people’s lives, then make sure you are authentically living that. I challenge you to be brave, change the norm and practice modern and responsible human lawyering. Together we can change the way the profession is practicing law and impact the community in a meaningful way into the future and success in all its forms, will follow. B

November 2021 THE BULLETIN

FEATURE

Mediation project helps disadvantaged women divide small-value asset pools GABRIELLE CANNY, DIRECTOR, LEGAL SERVICES COMMISSION

omen who face significant disadvantage can be doubly disadvantaged in property settlement negotiations. To increase their access to justice, the Commonwealth Government has funded an Australia-wide pilot project to provide lawyer-assisted mediation services to separating couples with property pools under $500,000 (excluding superannuation). The program was announced two years ago and, in South Australia, it is delivered through the Legal Services Commission. This initiative is aimed at separating couples with small property pools and is directed towards achieving affordable, timely property settlements. It focuses on vulnerable parties who would ordinarily miss out on a grant of legal aid. This includes people who have experienced domestic violence within their relationship or who have other complex social factors that prevent them from representing themselves or paying for private legal representation. The small-value property dispute project is an extension of the Family Dispute Resolution (FDR) service provided by legal aid commissions in each state and territory.

ACCESSING THIS ASSISTANCE Parties can access the pilot project by making an application for legal aid in the usual manner. If they do not normally qualify for a grant of legal aid for their property matter, it may be considered for inclusion in this small-value property scheme. For a separated couple to take part in the scheme, at least one party must be in receipt of a grant of legal aid under the scheme. However, under this pilot initiative, support can also be provided to the other party at certain times to facilitate their attendance at the mediation conference; this assistance is provided to increase the chances of an out-of-court agreement being reached. The new project is highly responsive to client needs and strives to take an agile

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and holistic approach to the delivery of legal assistance to vulnerable individuals. Parties can be offered legal advice and other assistance (such as financial advice) where it is needed to help them reach an agreement, record their agreement and file the agreement with the court. Parties can also attend a review conference, where required, to encourage them to keep the matter out of court. If an agreement cannot be reached at a conference, lawyers can continue to provide advice to clients about their options and can assist them through the court process if necessary. The program was launched in SA in early 2020 and, despite early hurdles arising from the Covid-19 pandemic, over 180 applications have so far been accepted into the scheme, well exceeding the target of 100 cases. With the benefit of legal assistance under the scheme, some disputes have settled prior to a mediation conference being conducted. In the matters that have proceeded to a conference, an out-of-court settlement has been reached in 95% of cases.

CASE STUDY Kim’s story highlights the life-changing assistance this program can deliver. Kim (not her real name) is a mother of four who had been in a long-term marriage marked by physical, mental and financial abuse. Kim’s husband worked full-time and had substantial superannuation. Kim had limited income and no super. Upon separation, when Kim left the former matrimonial home, Kim’s husband refused to participate in discussions about the division of their assets (valued at $412,000, excluding superannuation). Kim could not afford legal representation. Although not eligible for a traditional grant of legal aid (because she did not have a dispute regarding children) Kim was accepted into the FDR small-property cases project. A degree of support was also provided to her husband to facilitate his participation in the mediation conference regarding the division of their assets. As a result of the assistance provided to each party, and

Legal Services Commission Director Gabrielle Canny

with the guidance of the Chairperson, an equitable out-of-court property settlement was reached at the conference. This has enabled both parties to move forward in their lives in a timely manner after their separation.

BUILDING ON THE SUCCESS OF FDR The small-value property project builds on the success of the wider FDR program that has operated for more than a decade and provides lawyer-assisted dispute resolution to help eligible couples reach out-of-court agreements. The FDR program provides a structured, independent and confidential forum for separating parties to resolve their family law disagreements outside court. A feature of the program is that it provides lawyer assisted shuttle-style dispute resolution rather than roundtable discussions. In this process, each party arrives through a separate entry and goes to a secure room where they have private discussions with their lawyer. The lawyers then meet in a conference room where they work through the issues with

FEATURE

a chairperson who has qualifications in law and is an accredited Family Dispute Resolution practitioner. Throughout the process, each party receives legal advice from their lawyer. This shuttle-style approach is extremely effective, particularly for property settlement matters, ensuring safety and redressing any power imbalance where domestic violence or other issues impact on the ability to negotiate. FDR enables parties to avoid court proceedings that can be expensive, lengthy and deeply distressing. Just as importantly, it empowers parties to reach a settlement that they both agree to – rather than having a decision handed down by a judge.

FUNDING EXTENSION The small-value FDR property project highlights the benefits of lawyer-assisted dispute resolution services for vulnerable individuals. It is a relatively modest project that can make a big difference – to individuals, to their families, to our courts and the wider community. The scheme will be evaluated by the Australian Institute of Family Studies (AIFS) at the conclusion of the pilot. Early analysis of the scheme indicates it has been highly successful. The Commonwealth has extended the scheme’s funding prior to the AIFS evaluation being completed.

Lawyers who have been involved in these matters are to be commended; their efforts are having far-reaching consequences at a critical point in the lives of people who face disadvantage.

HOW CAN LAWYERS AND CLIENTS GET INVOLVED? Clients with small property pools should be encouraged to seek advice about whether they may be assisted under the scheme. Lawyers and clients can get more information about the scheme by calling the Commission’s FDR Unit on (08) 8111 5534 or by visiting the FDR page on the Commission’s website (www.lsc.sa.gov.au). B

A roundup of recent Society meetings & conferences ROSEMARY PRIDMORE, EXECUTIVE OFFICER 3 August 2021 Aboriginal Lands Parliamentary Standing Committee he President, Bec Sandford and the Chair of the Aboriginal Issues Committee, Mr Christopher Charles appeared before the Aboriginal Lands Parliamentary Standing Committee to speak to the Society’s written submission to the Aboriginal Governance Inquiry.

18 August 2021 Meeting with Robert Simms MLC Bec Sandford and the Chief Executive. Stephen Hodder met with the Honourable Robert Simms MLC, Greens SA at Mr Simm’s instigation, and discussed questions raised by Mr Simms as to the Statutes Amendment (Identity Theft) Bill 2021 that was presently before the Parliament. 24 August 2021 SC appointments consultation

The Society was represented by Bec Sandford at the formal consultation convened by the Supreme Court in relation to applicants for appointment as Senior Counsel. 26 August 2021 Meeting with the President of the SAET Bec Sandford met with the President of the SA Employment Tribunal (SAET), the Honourable President Justice Dolphin to discuss SAET visits to regional areas. 17 and 18 September 2021 Quarterly meetings of Law Council (LCA) Directors, Conference of Law Societies, CEOs of Law Societies; and joint CEOs Bec Sandford (as President and also as Society appointed Director of the LCA) and Stephen Hodder variously participated in the above quarterly meetings, which were held via videoconference. Key topics of discussion included the LCA’s

development of a National Model Protocol for firms and practitioners to address sexual harassment; the LCA’s report of its “Lawyer Project”; the Victorian Justice Department’s mandate that lawyers report of misconduct by other lawyers; Covid impacts on the profession; mandatory vaccination; a revision of the LCA’s policy position on the death penalty; legal professional privilege and the Australian Taxation Office; progress towards a reversion of Rule 42, “AntiDiscrimination and Harassment” of the Australian Solicitors’ Conduct Rules (which is before the Standing Committee of Attorneys-General); 23 September 2021 Dive In Festival – 23 September 2021 At the Dive In Festival (global festival for diversity and inclusion in insurance) Bec Sandford presented on the topic of sexual harassment in the legal profession. B November 2021 THE BULLETIN

FEATURE

CourtSA's launch in the criminal jurisdiction

e sat down with CourtSA Executive Director, David Connoley, to find out everything you need to know about CourtSA’s 28 February, 2022 launch in the criminal jurisdiction. What is CourtSA? CourtSA is the Courts Administration Authority’s electronic case management system. It is already being used in the civil and probate jurisdictions and is now being launched in the criminal jurisdictions of the Magistrates, District, Supreme and Youth Courts to enable lawyers to view cases and electronically view and lodge documents. When is CourtSA launching in the criminal jurisdiction? Monday 28 February, 2022. What won’t I be able to do using CourtSA? • Access a case you’re not a party to • Communicate with the Court • Lodge documents that cannot be scanned and uploaded • Perform criminal history checks • Request to have your hearing adjourned (without the consent of the other parties) • Serve documents • Store and view evidence in court or anywhere else (CourtSA is not an evidence management system) • View certain documents on Intervention Order cases • View Committal Briefs • View Facts of Charge • View Offender History Summary Report Will lawyers have to use CourtSA? A decision is yet to be made.

RULES AND FORMS What Rules and Forms will apply? The Joint Rules Advisory Committee are in the process of drafting new Joint Criminal Rules and Forms (Joint Criminal Rules) which will apply to the Magistrates, District, Supreme and ERD Courts. The Joint Criminal Rules are expected to come into effect to coincide with CourtSA’s launch on 28 February, 2022. Can the current Rules and Forms be used after 28 February, 2022? No, once the Rules come into effect,

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they must be used in CourtSA and over the counter lodgements.

LISTINGS Will there be changes to criminal listings when CourtSA launches? Yes, in the Magistrates Court there will be no trials in March and: • 28 February – 25 March: Lists will be limited to 40 matters per day • 28 March - 8 April: Lists will gradually increase • 11 April onwards: Normal listing • We will advise if there are any changes to the Higher Courts and Youth Court closer to the date.

ACCESSING COURTSA AND CASES How can lawyers prepare for the launch of CourtSA? Make sure your L and P Code details are up to date with the Law Society. How will lawyers access CourtSA in the criminal jurisdiction? If you are a lawyer working for a firm or organisation, do not create your own account. Your firm’s account administrator will do this for you. If your firm doesn’t have a CourtSA account, your account administrator can go to https://courtsa.courts.sa.gov.au/ and create one. If you already have a CourtSA account, you don’t need to do anything. How will lawyers get access to cases? From 28 February, 2022, you will need to request access from the Court through CourtSA. It is not possible for the Court to provide you automatic access to any cases you may already be acting on. Under the new Rules, when you request case access you must provide your P Code. This will generate a Notice of Acting identifying you as the Responsible Solicitor on the case and you will receive CourtSA notifications related to the case. If case access is granted, you (as the Responsible Solicitor) and your CourtSA Account Administrator will be given access to the case. Your CourtSA Account Administrator can then allocate it to anyone else in your organisation.

If your client has more than one case, you can request access to multiple cases at a time (as long as you are instructed on the additional cases). If your client has other cases, you are not instructed on you cannot access them. To get a list of your client’s cases email enquiry@courts.sa.gov.au. How long will it take to process case access requests? Requests are usually processed within 24 hours. However, please be mindful that in the weeks after the launch there will be an increased demand for case access so it may take longer. If you need urgent access to a case, you need to lodge your request using CourtSA, make note of the administrative case number allocated to your request, the name and number of the case you wish to access, and contact CourtSA Registry Services. Will defendants be able to access their cases? Yes, they may request access and if it is granted, they will get access to the case. They will be able to view and do anything a lawyer can do. If they instruct a lawyer, the lawyer will need to request case access. Both the defendant and lawyer will have access to the case. Will barristers be able to access their clients’ cases? Yes, barristers will need to request access to their clients’ cases from the Court using CourtSA.

LODGING How will documents be lodged? Documents won’t be signed using CourtSA. If a document requires a signature it must be printed, signed, scanned and uploaded to CourtSA. If no signature is required, the document can be saved as a PDF and uploaded. When a document is lodged, the lodging party will receive a notification to let them know it’s been received by the Registry for review. If the document is accepted, the party will receive another notification letting them know the document can be accessed on CourtSA. If

FEATURE

the document is rejected, the notification will explain why. How will bail applications be made? You will need to complete a paper bail application form, sign, scan and upload it to CourtSA. If your client has multiple cases, you will need to do an application for each case. Will lodging a document on CourtSA count as service? No, once a document has been lodged using CourtSA the parties must still comply with any service obligations under the Rules.

WHAT WILL BE AVAILABLE ON COURTSA? What documents will be available on the electronic court file? The Joint Rules Committee is developing a policy regarding which documents will and will not be available on CourtSA. Will documents lodged over the counter after 28 February, 2022 be available on CourtSA? Yes, the Registry will scan and add documents to CourtSA (provided it adheres to the policy defined by the Joint Rules Committee). Will documents lodged before 28 February, 2022 be available on the electronic court file? No, if you want to view a document lodged before 28 February, 2022 you will need to go to the Registry and request it.

Will CourtSA display my client’s charges and upcoming hearing dates? Yes, each case will show the charges and upcoming hearings. When will outcomes be available? As soon as the outcome is authorised by the Judicial Officer it will appear on CourtSA. You will not be notified that the outcome has been made, you will need to check the case.

IN COURT Can lawyers use CourtSA in court? Parties will be able to login to CourtSA in court and access the electronic court file instead of carrying a paper file. Judicial officers will also have access to the electronic court file on the bench. Can someone other than the Responsible Solicitor appear for the defendant? Yes, anyone who is licensed to practice (including those outside your firm) can appear for the defendant. Will documents still be able to be tendered in court? A decision is yet to be made. How will defendants sign bail agreements? There will be no change to the way defendants sign bail agreements.

TRAINING What training will criminal lawyers get? In the week 14 – 18 February,

COMMITTEE

REPRESENTATIVE

CONTACT EMAIL

Aboriginal Issues Committee Aboriginal Legal Rights Movement Animal Law Committee Criminal Law Committee Community Legal Centres Country Practitioners Committee Law Society Council Legal Services Commission SA Bar Small Practice Committee

Yan Robson

yan@yanrobson.com

Rosie Denny

rosied@alrm.org.au

Jillian Smith jsmith@rspcasa.org.au James Caldicott jcaldicott@caldicottlawyers.com.au Cathy McMorrine cmcmorrine@communityjustice.org.au

2022, the CourtSA team will be giving information sessions about: • Accounts for Account Administrators (setting up your firm’s account, inviting users, allocating cases to users etc) • Navigating CourtSA, lodging and where to go for help • Lodging Informations • Lodging a private Intervention Order • Lodging a bail application, review, plea or anything else In March and April, 2022, the team will hold frequently asked questions sessions. These sessions will be run through the Law Society with registrations opening closer to the date. The CourtSA Help Centre will also contain resources to help people self-serve. Can I see CourtSA criminal before it goes live? Unfortunately, no. The system won’t be ready to be used until it launches. However, representatives from relevant Law Society Committees are on the CourtSA Criminal Practitioner User Group (CCPUG). This group has monthly meetings with the CourtSA team including demonstrations and updates. Representatives are responsible for providing guidance and feedback to the Courts Administration Authority (CAA). If you have any questions about CourtSA please direct them to one of the Society representatives (listed below, along with the Society Committee they belong to). The representative will raise your questions with the group and the CAA: Alternatively, questions can be sent directly to Eloise Burge, Online Services and Practitioner Engagement Manager, at eloise.burge@courts.sa.gov.au.

TROUBLE SHOOTING

Sarah Graham

sgraham@spencergulflaw.com.au

What do I do if CourtSA is not available? You can lodge over the counter or via email.

Emma Shaw Diana Newcombe Jane Abbey Tim Dibden

emma.shaw@lsc.sa.gov.au diana.newcombe@lsc.sa.gov.au jabbey@lenkingchambers.com.au admin@timdibden.com.au

Who can I contact if I experience any issues with accessing CourtSA? Email CourtSA Registry Services at enquiry@courts.sa.gov.au. November 2021 THE BULLETIN

FAMILY LAW

Family law cross-examination changes: a guide for practitioners GABRIELLE CANNY, DIRECTOR, LEGAL SERVICES COMMISSION OF SA

amily law cross-examination processes changed significantly in late 2019. Two years on, it is timely to provide an update to practitioners about the application and effect of those far-reaching legislative amendments. The Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018 (the Act) has applied to any crossexamination in a family law matter since 10 September, 2019. The Act aims to provide appropriate protections for victims of family violence during cross-examination in family law proceedings. Those protections reduce the likelihood of re-traumatisation for victims and remove the difficulty that victims face when they personally cross-examine, or are cross-examined by, their alleged perpetrator.

LEGISLATIVE PROHIBITIONS The Act inserted s 102NA into the Family Law Act 1975 (Cth), prohibiting personal cross-examination in family law proceedings as outlined below. 102NA Mandatory protections for parties in certain cases 1. If, in proceedings under this Act: b. a party (the examining party) intends to cross-examine another party (the witness party); and c. there is an allegation of family violence between the examining party and the witness party; and d. any of the following are satisfied: i. either party has been convicted of, or is charged with, an offence involving violence, or a threat of violence, to the other party; ii. a family violence order (other than an interim order) applies to both parties; iii. an injunction under section 68B or 114 for the personal protection of either party is directed against the other party; iv. the court makes an order that the requirements of subsection (2) are to apply to the crossexamination; v. then the requirements of

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subsection (2) apply to the cross-examination. 2. Both of the following requirements apply to the cross-examination: c. the examining party must not crossexamine the witness party personally; d. the cross-examination must be conducted by a legal practitioner acting on behalf of the examining party.

THE SCHEME OF LEGAL REPRESENTATION At the same time the prohibitions were introduced, the Commonwealth funded legal aid commissions to administer a scheme of legal representation for unrepresented parties who are prohibited from conducting personal cross-examination. The following criteria must be met for a party to be assisted through the Family Violence and Cross-Examination of Parties Scheme (the scheme). The Court must determine that the prohibition on personal cross-examination applies, either through the application of the automatic provisions of s 102NA(1) (c)(i)-(iii), or by discretionary order of the Court under s 102NA(1)(c)(iv). The court must indicate, by notice to the Legal Services Commission, that the prohibition on personal cross-examination applies. Parties must apply to the scheme via an application form available at the court or the Legal Services Commission (the application form is to be completed and lodged with the Legal Services Commission as soon as possible but, in any event, within six weeks of the prohibition). An applicant to the scheme must agree to accept the terms under which legal representation is provided and, in particular, to follow their lawyer’s advice. The scheme is not a grant of legal aid and is not means or merit tested. However, parties may be asked to contribute to the cost of the representation, depending on their circumstances and their ability to pay. The fee scale applicable to a standard grant of aid is applied to matters under the scheme.

SA family lawyers such as Melissa Collis (pictured, left) are providing representation through the crossexamination scheme.

The scheme provides legal representation for the hearing in which cross-examination occurs (generally the final hearing), preparation for that hearing and for late-stage legally assisted family dispute resolution if appropriate. Cost orders may be made by the court, and costs not related to the cross-examination must be met by the party.

THE IMPACT OF THE SCHEME AND THE WORK OF PRACTITIONERS It is now two years since the scheme was first applied to family law trials. In that period, the Legal Services Commission of SA has received more than 100 applications for legal representation under the scheme. In each of these cases a legal practitioner has been appointed. In total, 85% of matters funded under the scheme in SA have been finalised through agreement and without a court judgment. The matters to which the scheme applies are ones in which the parties have been deemed, either legislatively or by the court, to have a history that indicates they should not question each other without representation. Such a high settlement rate for this cohort of clients would seem most unlikely if legal representation had not been available. The Legal Services Commission thanks private practitioners who represent clients in these matters. The dedication and commitment of those practitioners has assisted efforts to increase access to justice and provide greater protection for vulnerable individuals in family law proceedings. B

WELLBEING & RESILIENCE

Meditation for busy people who don’t have time to meditate AMANDA GOODFELLOW, DIRECTOR, AGILE MIND

o you roll your eyes when you hear the word ‘mindfulness’? Everyone seems to be banging on about the benefits of meditation and mindfulness, but who has time to do it? Our daily lives are already overscheduled and full. It feels like yet another thing we must add to our expanding to-do lists along with exercise, work, social and family commitments. The thought of having to add one more thing can be anxiety provoking. The good news is, to practise mindfulness, you don’t need to sit cross legged in a dark room for 30 minutes before sunrise each day watching your breath. You don’t even need to sit if you don’t want to. Mindfulness is an active practice that we can do as we go about our everyday activities. Driving the car, waiting in the supermarket queue, drinking a coffee, in meetings – these are all perfect opportunities to practise mindfulness.

MEDITATION VS MINDFULNESS - WHAT’S THE DIFFERENCE Meditation is the broader practice of training your mind to achieve calm, focus and concentration. There are a million different ways to meditate e.g., focusing on sound, breath, visualisation etc. Mindfulness is bringing your awareness to what’s happening in the present moment without judgement. Observing what’s happening in your body, your thoughts in any given moment and noticing how we are responding. From this place of awareness, we learn to see more clearly, notice unhelpful habits, and make better decisions. Put simply, meditation helps us come back into balance and mindfulness helps us stay there. As human beings, we all have the ability to come into a state of balance where our bodies are relaxed, we feel calm and our mind is clear and focussed. It is our natural state of being as a human – our default setting if you like. But of course, we are often not in that state. We

are mostly living in our heads, planning, worrying, organising. We live in a state of high alert ready to respond to the next threat (real or perceived). Simply being aware of this is the first step to becoming more mindful. Here are four things you can do to start becoming more mindful right now.

BOLT IT ON TO OTHER THINGS The book ‘Atomic Habits’ by James Clear talks about the concept of ‘bolting on’. This works perfectly for mindfulness. For example, you could start to bring mindfulness into the act of brushing your teeth, that way you know you will be doing this at least twice a day. Instead of scrubbing away at your teeth while you try to clean the bathroom and think about your upcoming board meeting, try bringing your full attention to the process of brushing your teeth. Notice the feeling of the water, the sensation of the bristles, the sound of the brush. And just for that short time, you are in the moment, present and aware.

ADJUST YOUR ENVIRONMENT It’s almost impossible to feel calm and connected in the middle of a large noisy crowd. And so it is for your work environment. If your workplace is tense, stressful, lacks natural light and celebrates 14-hour days without breaks, then practising mindfulness can only do so much. Making changes to the environment that are conducive to our physical and mental wellbeing will make a huge difference. For example, adding quiet spaces in the office for people to take short breaks, encouraging time outside each day, running regular workplace meditation sessions, placing visible cues in the office to remind people to check in.

COME TO YOUR SENSES Our senses are the direct route to the present moment. Taking just a few seconds to connect with your senses

creates a circuit breaker for your busy thinking mind. When you are connecting with the direct experience of your senses e.g., sounds around you, the contact of your feet with the floor, the sensation of your breath, then you are in the present moment. Doing this throughout the day is the easiest way to become more present more often.

WORK WITH A TEACHER You wouldn’t undertake a master’s degree without a teacher. You wouldn’t run a marathon without an experienced trainer. Learning meditation and mindfulness is no different. It’s important to have a teacher or guide who can help you find the tools and techniques that work for you. Like learning any new skill there are always roadblocks along the way and it’s easy to give up. A good teacher can keep you on track, measure progress and find creative ways to keep you focussed on the goal. Agile Mind runs specialised mediation and mindfulness programs for professional services clients. Amanda is a meditation and mindfulness teacher with a corporate background in professional services and association management. She is a meditation mentor working with individuals and teams to manage stress, increase resilience and find calm through meditation. November 2021 THE BULLETIN

LAW SOCIETY GOLD ALLIANCE FIRM PROGRAM

Law Society Gold Alliance Firm Program

Gold Alliance firm is a firm which partners with the Society and shows a commitment to the profession and their employees by maintaining 100% membership. The Society is the proud voice of the South Australian legal profession and symbolises the highest standard of professionalism, integrity and excellence. To indicate you are a Member of the Society highlights that you are part of an organisation which promotes and adheres to strict professional and ethical requirements, and which provides resources to Members so that such standards are maintained. As our membership continues to 1878 Elix Lawyers 360 Private Legal Accelerate Family Law and Culshaw Miller Criminal Lawyers Access To Justice Law Firm ADCO Legal Adelaide Capital Lawyers Adelaide Criminal Law Adelaide Family Law Adelaide Injury Law Adelaide Lawyers Adelaide Legal Adelaide Legal Solutions Adelta Legal Adelta Legal (Morphett Vale) Adelta Legal (Tea Tree Gully) AK Family Law Alan Oxenham Alan Wong Alex Mandry Legal Group Alex Mandry Legal Group (QLD) Alison Bradshaw Legal Allen Burtt Almeida & Associates Alpha Family Lawyers AM Legal Anagnostou Business & Commercial Lawyers Andersons Solicitors Andersons Solicitors (Morphett Vale) Andersons Solicitors (Murray Bridge) Andersons Solicitors (Pt Adelaide) Andersons Solicitors (Salisbury) Andersons Solicitors (Whyalla) Andrew & Dale Barristers & Solicitors Andrew B Thiele & Co Andrew B Thiele & Co (MAITLAND) Andrew Hill & Co Andreyev Lawyers Angela Ferdinandy Angela Pierce and Associates Angelopoulos Lawyers Anna Vicic Armour Allen Lawyers Arnold Costs Solicitors ASW Lawyers Australis Chambers Avina Lawyers Awkar & Co Baggio Legal Bakker Vagnarelli Lawyers

28 THE BULLETIN November 2021

grow, so does our ability to more strongly represent you and the legal profession before government, media and the community. And, it’s not just the profession as a whole that benefits. When all of your staff are Members of the Society, you and your clients gain access to the latest information on issues and developments in the law, a network of talent and resources, as well as a gateway to education, support services, publications, savings and productivity. Benefits include: • The Gold Alliance Firm logo may be placed on your website and email footers • The Gold Alliance Firm logo may

Ballinger Legal Bambrick Legal Bampton Law Barbaro Legal Bartel & Hall Bastiaan Sparreboom BBS Lawyers Beger & Co Belchamber Legal Belperio Clark Bernadette Day Lawyer Bianca Barca Lawyers Birtsos Legal Boril Olds Botten Dnistriansky Kellis Bourne Lawyers Boylan Lawyers Boylan Lawyers (Adelaide) Boylan Lawyers (Coober Pedy) Boylan Lawyers (Elizabeth) Boylan Lawyers (Pt Augusta) Boylan Lawyers (Strathalbyn) Boylan Lawyers (Victor Harbor) Boylan Lawyers (Whyalla) Bradbrook Lawyers Brite Legal Brown & Associates Commercial Lawyers BSG Lawyers Barrister Solicitors Notary Public Budden Law Budwal Lawyers Business & General Legal C B McDonough & Co CA Legal & Migration Cacas Legal Calabio Conveyancing Calderwood Atkinson (Elizabeth) Calderwood Atkinson (Nuriootpa) Caldicott Lawyers Camatta Lempens Campbell Law Campbell Rankine Carbone Polvere & Co Cardone & Associates CARES Lawyers Carlin Lawyers Carmel Riordan Lawyers Carmine Barone Carter & Co Lawyers Cavalier Legal

be published on stationery such as letterhead and business cards • Access to subscription discounts for the Standard Form Documents • Your firm will be listed on the Law Society website and in the Bulletin twice each year. This is a unique marketing opportunity for firms, both small and large, to promote to the community and your clients that all practitioners within your firm are Members of their professional association. To enquire if your firm is eligible to become a Gold Alliance Firm, please contact the Society on (08) 8229 0200 or email reception@lawsocietysa.asn.au.

Caveo Partners Legal CCK Lawyers CCR Legal CG Family Law Chong & Co Christine Korobacz Solicitors CJL Family Law CJM Legal Clarke Hemmerling Lawyers Clelands Lawyers Coates Lawyers Codex Legal Comley Legal Commercial and Legal (Legal Services) Community Family Law & Mediation Con O’Neill Barrister & Solicitor Conatur Legal Connolly & Co Constantine Legal Corsers Lawyers Costi & Co Cowell Clarke Cowell Clarke (NSW) CPC Lawyers Craig McKay Legal Crawford Legal Crawford Legal (Vic) Crescent Lawyers Culshaw Miller Lawyers Dadds Jandy Lawyers Daenke Lawyers D’Angelo Lawyers David Barnfield Lawyer David Burrell & Co David Deakin Davies & Co David Johnson Debra Spizzo & Associates Barrister & Solicitors DeGaris Lawyers Denise M. Rieniets & Associates Devine Murdoch Dewar Legal Barristers & Solicitors Di Rosa Lawyers Di Sotto Lawyers Diane Myers Diaspora Legal Distinction Legal Dixon Gallasch Dixon Gallasch (Walkerville) DLS Law DMAW Lawyers

Doconade Adelaide Lawyers Donlan Lawyers Donlan Lawyers (Victor Harbor) Douglas Hoskins Legal Duc Mai Lawyers Duddy Shopov Duncan Fowler Lawyer Dunsford Co Duval Legal Eckermann Lawyers Edge Law Edwards Harris Lawyers/ Family Law Resolutions EMA Legal EMT Legal ENA Law Equality Lawyers Ericson Legal Evans Testa Barrister & Solicitors (West Lakes) Evans Testa Barristers & Solicitors (Light Square) EZRA Legal EZRA Legal (Port Lincon) Fabbian Lawyers Fabrizio Porcaro Fair Work Lawyers Family Law Outcomes Finniss Legal FJS Lawyers Adelaide Fletcher & Lawson Fletchers Lawyers Fleurieu Lawyers Fuda Lawyers Furler & Co Barristers and Solicitors Furler & Co Barristers and Solicitors (Clare) Gabito Lawyers Gabito Lawyers (Pt Lincoln) Gardner Legal & Regulatory Gary Pearce Genders & Partners Georgiadis Lawyers Georgiadis Lawyers (Christies Beach) Germein Reed Germein Reed (Moonta) Gilchrist Connell Gilchrist Connell (NSW) Gretsas & Associates Grope Hamilton Lawyers H F Lambert

LAW SOCIETY GOLD ALLIANCE FIRM PROGRAM

Hackett Lawyers Haebich Law Hamilton Legal Harry Alevizos Hasda Legal Hau Pehn Yapp Hawker van Dissel Law Hepenstall & Associates Herve & Co Heuzenroeders Lawyers Howe Jenkin Family Lawyers Hume Taylor & Co Hume Taylor & Co (Millicent) Hume Taylor & Co (Whyalla) Hutton Cragg Legal Interpret Contracts Interpret Legal J Caruso J Richard Croft Jaak Oks Lawyers Jackson & Associates Jane Moore Jankus Legal JD Legal JDC Law Jennifer Corkhill Jennifer M Bradley Jennifer Stefanac Barrister & Solicitor JKR Lawyers JKR Lawyers (Qld) John Bennett Johnson Lawyers Johnston Legal + Advisory Johnston Withers Johnston Withers (Clare) Johnston Withers (Murray Bridge) Johnston Withers (Port Augusta) Johnston Withers (Roxby Downs) Johnston Withers (Whyalla) Jones Elferink Barristers & Solicitors Jones Harley Toole Joseph Ramsay Sanders Joseph Ramsay Sanders (MurrayLands) Joseph Ramsay Sanders Lawyers (Victor Harbor) Judith Jordan Family and Collaborative Lawyer Karydis-Frisan & Associates Kathryn Herriman Barrister & Solicitor Katrina Jacobs Estate Law KC Lawyers Kelly Kelly Legal Kin Lawyers KJK Legal KP LAWYERS Kruse Legal Kudra & Co Kyrimis Lawyers Lachlan McAuliffe Laity Morrow LawCall (MOUNT BARKER) LawCall (WAYVILLE) LBD Legal Lee & Partners Lee & Partners (Glen Osmond) Legal Projects Commercial Lawyers Legal Projects Family and Relationship Lawyers Lena Grant Les Rowe & Associates Leventis Lawyers Lewis & Shane Lieschke & Weatherill Lindbloms Lawyers Lins Lawyers

Liptak Lawyers Lisacek & Co Lumond Lawyers M Riley Lawyer Mac and Co Lawyers Madsen O’Dea Mahony’s Lawyers (Campbelltown) Mahony’s Lawyers (Mt Gambier) Mahony’s Lawyers (Salisbury) Mahony’s Lawyers (Woodville) Maione Lawyers Mandy Edwards & Co Lawyers Mantzoros & Partners Marie Alvino Marie Stokes Family Lawyers Mark Esau Mark Gustavsson & Associates Mark Mudri & Associates Martha Ioannides Martin Robinson Solicitors Mason Gould Matthew Mitchell Solicitors Matti Lamb & Associates Mayweathers (NSW) Mayweathers (SA) Mayweathers Pirie Street Mazzocchetti Legal McGrath Lawyers Mead Robson Steele Meah & Co Meister Legal Mercurio & Co Micallef Lipson Chambers Michael F Lindblom Michael Hegarty & Associates Michael Rehberg - MR LAW Mildwaters Lawyers Mildwaters Lawyers (Minlaton) Minney & Associates Minotaur Law Mira Zacharia Mitcham Family Law MK Legal & Migration Mont Legal Montague Law Moore Law Disability & Aged Care Moran & Partners Solicitors Motus Legal MPS Law MSM Legal Mullen Lawyers Nathan White Lawyers NDA Law NDEdwards & Co Nemer Essey Lawyers Nexus Law Group Nguyen Wood Lawyers Nicholas Boswell & Co Lawyers Nicholas Eid Nick Xenophon & Co Lawyers NJ Ireland North East Lawyers Northside Lawyers O’Briens Solicitors Oceanic Legal & Migration Services O’Loughlins Lawyers - SA ORB Lawyers ORB Lawyers Christies Beach O’Toole Lawyers P. F. Hall Pace Lawyers Pallaras Legal Pascale Legal Barristers & Solicitors Patsouris & Assoc Paul D Bear Lawyer Paul Kirk Legal

Pederick Lawyers Peripheral Blue Legal Perre Legal Perrotta Legal Perry Lawyers Peter Fisher Lawyers Peter Fisher Lawyers (Woodside) PGC Legal Picotti-Ellis Legal Pittaway Lawyers and Conveyancers Playford Legal Polson Legal Precision Legal R J Cole & Partners R. A. English & Co Radbone & Assoc Randle & Taylor Rebecca Beasley Barrister + Solicitor Rebecca McDougal Regent Legal Resolve Divorce Lawyers RI Consulting Richards & Evans Commercial Lawyers Richards Legal Riverland Commercial Lawyers Roach Corporate Law Robert F Floreani Robert Norman & Associates Robert Saunders & Associates Ronald Frank Bell Rosey Batt & Associates RSA Law Rudall & Rudall (Tanunda) Rudall & Rudall Adelaide Rudall & Rudall Gawler Ryan & Durey Solicitors Ryans Lawyers Ryder Family Law S J McKinnon & Associates SA Family Law Salandra Lawyers Sarah Grimwade Barrister & Solicitor Scales & Partners Scales & Partners (GLENELG) Scammell & Co (Adelaide) Scammell & Co (Gawler) Scammell & Co (Port Adelaide) Scammell & Co (Renmark) Scammell & Co (Walkerville) Schirripa Evans Lawyers Scott Allard Scott Lawyers SE Lawyers (Warradale) Sedsman Legal SG Law Sharon Holmes Shaw & Henderson Silkwoods Chambers Sinoch Lawyers Sonia Petracca Lawyers Southern Coast Legal Specialised Dispute Management Spencer Gulf Law - Suzy Graham St Ives Law Standon Lawyers Stanley Law Stephen Gibbons Lawyers Stevanja & Associates Steven M Clark Stewart-Rattray Lawyers Stokes Legal (Dernancourt) Stokes Legal (Edwardstown) Stokes Legal (Woodville) Strachan Carr Straits Lawyers

Susan Cole Barrister & Solicitors Swan Family Lawyers Terese Wacyk Legal Teusner & Co The Family Law Project The Trustee for D&L Kruse Family Trust Thompson Smyth Barristers & Solicitors Thomson and Associates Tim Clarke & Co Tim Dibden Tindall Gask Bentley Tindall Gask Bentley (Gawler) Tindall Gask Bentley (Mannum) Tindall Gask Bentley (Mt Barker) Tindall Gask Bentley (Murray Bridge) Tindall Gask Bentley (NT) Tindall Gask Bentley (Pt Lincoln) Tindall Gask Bentley (Reynella) Tindall Gask Bentley (Salisbury) Tindall Gask Bentley (WA) Tindall Gask Bentley (Whyalla) Tolis & Co Lawyers Tolis & Co Lawyers (Norwood) Toward Lawyers Town & Country Lawyers Townsends Travancore Legal & Advisory Treloar & Treloar Tri-meridian Corporate & Commercial Law Union Legal SA Varga Lawyers VdV Legal Vellotti Law Von Doussas Voumard Lawyers Voumard Lawyers (Clare) Voumard Lawyers (Adelaide) Voumard Lawyers (Port Pirie) VP Lawyers Wadlow Solicitors WBH Legal Wearing & Blairs Weatherly & Associates Websters Lawyers Websters Lawyers (Ridgehaven) Websters Lawyers (Smithfield) Welden & Coluccio Lawyers (Findon) Welden & Coluccio Lawyers (Prospect) Westley Di Giorgio Norcock Whatson Legal White & White (Wallaroo) White & White Lawyers White Berman Grant Legal Whitington Darby Williams Barristers And Solicitors Wills At Your Home Wills Direct Wilson Lawyers (SA) Winlaw & Associates Winters, Barristers, Solicitors and Notaries Woodburn & Co Woods & Co Lawyers Work Visa Lawyers WRP Legal & Advisory Xiao Lawyers Yan Robson Barrister & Solicitor YLP Legal - Your Legal Partner You Legal Your Estate Lawyer YT Legal ZED Legal ( Australia) Zielinski Legal

November 2021 THE BULLETIN

UNIFORM CIVIL RULES

Supreme Court pre-action discovery under the Uniform Civil Rules: Issues and Subsequent Amendments JENNIFER BROOK, DIRECTOR, SEDSMAN LEGAL AND SUCCESSION & ELDER LAW COMMITTEE MEMBER, AND MIKAYLA WILSON, SOLICITOR, SEDSMAN LEGAL

hose of us practising in estate litigation are frequently faced with matters where Executors are not forthcoming with information or documents to other family members or beneficiaries. It often becomes necessary in those circumstances for clients to apply to the Supreme Court seeking preaction discovery. It was not uncommon for pre-action discovery to be granted in respect of a probate matter under the (old) Supreme Court Civil Rules 2006 (old rules). The predecessor to UCR242, Rule 32 of the old rules, is almost identical in substance. Accordingly, one might expect the associated authorities to apply and for a similar outcome to be determined in respect of a matter brought under UCR242. That did not occur, however, in Moore v Duldig & Ors [2021] SASC 26, thanks to the original wording of UCR 242. Moore v Duldig & Ors [2021] SASC 26 and Judicial Consideration of UCR242 This was the first pre-action discovery application of its kind made pursuant to UCR242, following the introduction of the UCR on 18 May 2020. Those who have read this judgment will have seen that what began as a somewhat ‘straightforward’ application by the Applicant seeking documents including previous Wills, Will files and medical documents relevant to testamentary capacity in order to assist her to decide whether to challenge the validity of the deceased’s purported last Will, ended up in ‘not-so-normal’ territory. To cut to the chase, the initial wording of the relevant parts of UCR242 which ultimately ended up being problematic, was as follows: • 242.1(1) “a person who seeks discovery or production of evidentiary material or information to decide whether or against whom to bring or formulate a claim may institute an action under this rule…”.

30 THE BULLETIN November 2021

• 242.2(1)(c) “the Court may make an order ….if satisfied that …the applicant requires discovery or production of relevant evidentiary material or information to: i. decide whether a cause of action exists, ii. decide against whom the claim lies; or iii. formulate the claim properly. (Bold font added for emphasis). During the course of argument, it became clear that her Honour Judge Bochner was troubled by the inclusion of the word ‘claim’, as set out above. Indeed, she had briefly raised this issue in a previous professional development presentation. Despite many clever and creative arguments by the Applicant’s learned counsel, her Honour ultimately found that: • The UCR mandates that probate actions are to be initiated by way of an Originating Application, not by way of a ‘claim’ (as specifically defined within the UCR); and therefore • The relevant rule as drafted did not allow for pre-action discovery to be granted for proposed primary actions which were required (by the UCR itself) to be brought by way of an Originating Application1 rather than a claim; • The relevant definitions within the UCR were clear and without ambiguity, and were not open to more than one construction, and accordingly she was unable to dispense with or vary the application of the subject rule;2 • Accordingly, and seemingly regrettably, she was forced to dismiss the application. The use of the word ‘claim’ within UCR242 had therefore precluded the Applicant from relief. This was obviously a very different result from similar pre-action discovery applications commenced pursuant to Rule 32 of the old rules. This was also despite her Honour

finding that “there are clearly matters which it would be incumbent on the applicant to investigate prior to commencing an action for a grant of probate in solemn form in respect of a will other than the [last] will, or to defending an action for a grant in solemn form in respect of the [last] will”3. Changes to UCR242.1 – Post Judgment Accordingly, work began behind the scenes to rectify the problem, including consultation with the Succession Law Committee. An amendment to Rule 242.1(1) was gazetted on 24 June 2021, and the amended UCR came into effect on 1 July 2021. It is pleasing to see that the word ‘claim’ in UCR 242.1(1) has now been replaced with ‘proceeding’. Proceeding is defined in the Rules (among other things) to include actions commenced by way of a claim or an originating application. Estate litigators should now be able to breathe a sigh of relief. Pre-action discovery applications should again be able to be brought with respect to a proposed primary action which will ultimately be brought by way of Originating Application. However, keep watching this space! The word ‘claim’ appears to still feature within revised UCR 242.1(2) (a) and (c) and 242.2(1)(c)(ii) and (iii) – although we hope this will not prove to be as significant an issue as the inclusion of ‘claim’ in the gate-keeping provisions of UCR242.1(1). The authors acted as solicitors for the Applicant in the below case, and have attempted to be as objective as possible. B

Endnotes 1 [30-31] 2 [30]. 3 [32].

YOUNG LAWYERS

Fox with no filter embraces inner cat

facebook.com/YLCSA

DANIEL FOX, SOLICITOR, KELLY KELLY LEGAL

few weeks ago I didn’t even know what The Golden Gavel was. I was encouraged (heavily) by the Principal Solicitor of my firm to compete, as she firmly believed that I had all of the necessary skills to succeed. After caving to peer pressure, I enrolled in the South Australian division of the Golden Gavel and attended the Rhino Room on Pirie Street. I received a positive reaction to my presentation that linked the legal profession to online dating, and was subsequently announced the winner. It was here that I discovered that this was only the first of two stages, the next of which would be held in Brisbane. Despite the COVID scares that followed my victory, the border between Brisbane and home remained open, allowing me to compete in person at the national event. As many of my learned colleagues were trapped in lockdowns, it was important that the event preserved some aspect of live performance, rather than solely relying on pre-recorded speeches. The event itself was grand, held in a forum that comfortably fitted the surprisingly large crowd in attendance. It was truly spectacular to witness young lawyers being able to interact and enjoy the night, especially after the

restrictions that many states have endured these past few months. Upon admiring the event, and the bar of course, I presented again a fiveminute presentation on my topic: “I’m not a cat – lawyering in times of COVID”. Here I detailed my brief experiences with lockdown, discussed how the pandemic brought out the feline side in all of us, and freely admitted that I would happily trade nine lives for nine livers; throwing in a few cat-related puns that I would argue were absolutely necessary. Once more, my speech was positively received by the masses and my job was done. However, I did make it abundantly clear that although my time on stage was limited to five minutes, I would still be charging for six. Each competitor on the night brought with them a phenomenal performance, leaving the young and mildly intoxicated professionals in stitches. I do not envy the judges for having to select a victor, but I certainly thank them for awarding me the runner-up of the night. I must also thank the volunteers and sponsors that allowed for such a magnificent event to continue amidst this pandemic. After experiencing this competition firsthand, I urge all young lawyers to participate in this event, regardless of your personal fears of public

Law Society President Dr Jacoba Brasch QC with National Golden Gavel runner-up Daniel Fox

speaking. This event allows you to build on this skill in a more informal way than you may be used to in court or with clients. It also provides you with an opportunity to interact with your peers, which is crucial for someone like myself who is not only new to the industry, but also rurally located. Despite the fact that I was unsuccessful in bringing glory to South Australia, I can assure you that this is only the first of many achievements to come in my legal career, and that there does exist the possibility that I may one day return to the stage in order to claim the elusive title that sat just beyond my reach.

MEMBERS ON THE MOVE

MEMBERS ON THE MOVE N

eville Rochow QC is pleased to inform the profession that he has joined Anthony Mason Chambers. He is prepared to accept briefs to advise and appear in commercial matters, particularly those involving competition, trade practices, and consumer law.

Additionally, he accepts briefs in areas of public law involving administrative appeals, anti-corruption inquiries, anti-discrimination and human rights applications, and constitutional matters. He is also accepting instructions for mediations as counsel and as mediator.

NEVILLE ROCHOW November 2021 THE BULLETIN

TAX FILES

Submission to the Select Committee on Certain Matters Relating to the Operations of the Office of the Valuer-General JOHN TUCKER, DW FOX TUCKER LAWYERS

n 2 September, 2021 Dr Bernard Walrut and I attended before a meeting of the Select Committee of the Legislative Council of the Parliament of SA relating to the Operations of the Office of the Valuer-General to speak to a submission made by the SA members of the Taxation Committee of the Business Law Section of the Law Council of Australia, primarily authored by Dr Walrut. The submission’s main points were as follows:

1. THE VALUATION OF LAND ACT That consideration be given to amending the Valuation of Land Act 1971 (VLA), if not adopting a wholly new piece of legislation, that: 1. Reinforces that equality of rating is a fundamental principle of rating law and the requirements of fairness should be achieved by reference to an individual valuation of each property such that comparable properties are to be valued by the same yardstick including as between districts and areas. I note that the need for an emphasis on fairness in the valuation and consequently the rating of comparable properties between areas gained strong expressions of support from the Chair of the Committee. 2. Introduces a system of smoothing or capping. Many Members will be familiar with impacts from recent leaps in the valuation of properties subject to Valuer-General revaluations; some near doubling their prior valuation, these creating shocks for landowners, commercial tenants and, indirectly, even for commercial and leased residential values themselves by reason of reduced net achievable owner returns. 3. Clarifies what is intended by the concept of unencumbered.

32 THE BULLETIN November 2021

Valuations for taxes are made on the basis of unencumbered value however there are differing judicial views with respect to leases as encumbrances, particularly long-term leases. Clarification is need. 4. Adopts an internal definition of owner, not one linked to the Land Tax Act 1936 (LTA). The definition of owner for the VLA refers to a person who is liable to pay tax in respect of land under the LTA however the 2019 amendments to the LTA now include persons who are notionally owners for limited purposes and their situation requires clarification. 5. Includes express statutory provisions for the creation, use and objection to land use codes. Of particular concern in relation to the VLA is the use of land use codes in connection with property taxes. These were advised to have originated in a planning context but spread from there to use in other contexts including for taxes and duties.

2. VALUATIONS AND USE FOR STAMP DUTY PURPOSES 1. That the Valuer-General’s officers should be willing to engage with taxpayer’s representatives and engage in meaningful discussions where there are issues in respect of value and use. Presently the Valuer-General’s officers do not engage in direct discussions with taxpayer representatives concerning the valuation or use of land as it affects liability for stamp duty. This can limit the Valuer-General’s officers from relevant factual information. Provision for direct communications could potentially limit disputes. 2. That consideration be given to clarifying predominant use of land by reference

to the fee simple use in the context of qualifying land for stamp duty purposes. The concept of predominant use with respect to qualifying land for stamp duty refers to the activity of the fee simple owner. Where there is commercial activity involving residential use (e.g. accommodating students) clarification is needed. The Valuer-General uses predominant use of land in accordance with the Valuer-General’s office Staff Instruction No. 129 dated 7 March, 1989. Permutations of use when for a single purpose spread across multiple holdings and involving a mix of use, for example between commercial and primary production or residential, can create uncertainty beyond the scope of the Staff Instruction.

3. NOTICES, OBJECTION AND APPEAL PROCESS 1. Ideally an annual notice of valuation with both site and capital value should be forwarded at least to the registered proprietor. The current system is confusing and persons receiving notices of assessment in respect of non-current year liabilities often have no remedy in the case of valuation matters. The submission argues that if a taxpayer receives an assessment or notice with rights to dispute the value or tax stated, the taxpayer should have the same rights of objection and appeal to both the tax and value within the time permitted to dispute the tax. The current alternative of multiple notices and dealing with multiple agencies and time periods is unsatisfactory. 2. The objection and appeal process in respect of a taxation matter involving a value issue should be a single process in accordance with the taxation law. The current division of jurisdictions

TAX FILES

between the Supreme Court on State Taxation matters and the South Australian Civil and Administrative Tribunal (SACAT) on valuation matters is argued undesirable, potentially costly and a waste of resources. 3. If the current separate process remains, then the right to object and appeal should not be limited to the current year or exclude discretionary powers. It should allow both, and in the case of both, for past years for cause. 4. Under any appeal process the appellant should have the right to have a de novo review either by SACAT or the Supreme Court. 5. The time in which to appeal should be extended from 21 days to 60 days. The current 21 days is the shortest in Australia.

4. LAND USE CODES 1. The current land use codes appear to serve many roles without an appropriate legislative framework.

Their different purposes are governed by different Acts including the VLA, LTA, ESLA and LGA. The Valuer-General’s guide to the land use codes is at https://www.sa.gov.au/ topics/planning-and-property/buyingand-selling/researching-a-property/ land-use-codes. Currently the site has a booklet of codes as at 8 December, 2020. Legislative changes have since been made particularly to planning laws of relevance. In Takhar v Commissioner of State Taxation [2020] SASC119 Blue J highlighted that the use of land involves both spatial and temporal dimensions, particularly for land used for primary production. The Full Court looked to whether a business of primary production was being carried on and then whether the land was being used for that business. 2. Whether a single set of such codes can serve so many roles is open to doubt. 3. Neither the VLA or LTA refer to land use codes or indicators, yet they

have become significant under the LTA particularly in relation to primary production and residential land, and the Stamp Duties Act 1923 with respect to qualifying land. 4. The time for assigning codes can change for different purposes between 30 June, the date of a transaction or the Valuer-General’s general valuation of the whole of the State each year as at 1 January. Any set of land use codes to be used should be legislatively prescribed and should come with the usual rights of objection and appeal. Many of the issues aired in the submission have had a long agitation with the Commissioner of State Taxes without however reaching resolution. A full copy and the submission will be published by the Select Committee in due course and a transcript of our attendance published in Hansard. Tax Files is contributed by members of the Taxation Committee of the Business Law Section of the Law Council of South Australia. B

New senior counsel appointed

he Society congratulates Jarrod Warren SC and Damian O’Leary SC on their appointments as Senior Counsel on 19 October. Mr Warren SC obtained a Law (Honours) degree in Adelaide and was admitted to practice in September 1994. He practices in the areas of personal injuries litigation and employment/ industrial law. He appears regularly in the Magistrates Court, District Court, South Australian Employment Tribunal

and Administrative Appeals Tribunal. He also appears in the Supreme Court and on occasions in the Federal Court. Mr O’Leary SC obtained a Law degree with first-class Honours before being admitted to legal practice in October 2007. His areas of practice have been in public law, general commercial law, and civil disputes. He has particular expertise in administrative, constitutional, migration, native title, discrimination and workers compensation law. He has appeared in the

Federal Court and as junior counsel in the High Court for the Commonwealth and the State. Chief Justice Chris Kourakis said: “The appointment of Senior Counsel is a significant event for the successful applicants, for the legal profession and the South Australian community. They have earned this recognition through the diligent performance of their duties to the Courts and their clients.” B November 2021 THE BULLETIN

FAMILY LAW CASE NOTES

Family Law Case Notes CRAIG NICOL AND KELEIGH ROBINSON, THE FAMILY LAW BOOK CHILDREN – COURT DID NOT RECONCILE RELOCATION ORDER WITH EXPERT RECOMMENDATION THAT RELOCATION NOT OCCUR UNTIL CHILD WAS NINE

n Denham & Newsham [2021] FamCAFC 141 (6 August, 2021) the Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) allowed a father’s appeal from a decision of Carew J to permit a mother to relocate with a three year old child from Australia to Belgium from March, 2022. The hearing occurred in February, 2020. The orders included provision for the father to travel to Belgium at least three times a year and that the child return to Australia each year. The Full Court said (from [28]): “[The single expert psychiatrist] … gave evidence that the child was too young to sustain significant separations from his father … ( … ) [35] … [T]he single expert … did not give evidence that the child would develop the … capacity to sustain significant gaps of contact if there was an additional two years of regular contact … Her evidence was … relocation should not be considered before the child was eight or nine years of age. This evidence … was of signal importance to the central question and had to be considered. … [I]f the … judge determined that … this evidence should not be accepted, it was necessary to explain why not. … This did not occur and the challenges … have been established. ( … ) [51] … [T]he documents issued by the Australian Department of Home Affairs … record that the availability of regular air

34 THE BULLETIN November 2021

travel should not be assumed and … that flights have reduced. [52] Had this evidence been placed before the … judge, it compelled a finding that the mother’s proposals for the child’s time with the father could not be assured and that any prediction for face-to-face contact between the child and the father … would be no more than mere speculation. … This … undermined the findings to the effect that the child and the father would maintain a meaningful relationship if the child moved to Belgium in 2022.”

PROPERTY – CREDITOR OF DISCHARGED BANKRUPT HAS STANDING TO BRING SECTION 79A APPLICATION In Valder & Saklani [2021] FamCAFC 142 (6 August, 2021) the Full Court (Ryan, Aldridge & Watts JJ) allowed an appeal from a decision of Rees J dismissing an application by a creditor to set aside consent orders. The history included proceedings before the High Court, and the husband owing the creditor $594,028.25 plus costs of over $250,000. The husband and wife entered into consent orders, pursuant to which the husband transferred his interest in a real property to the wife. The husband then declared himself bankrupt. The creditor obtained leave from the Federal Court of Australia (pursuant to s 58(3)(b) of the Bankruptcy Act) to issue a s 79A application in the Family Court. The Full Court said (from [19]): “A discharge from bankruptcy operates

to release the bankrupt ‘from all debts … provable in the bankruptcy’ as per s 153(1) of the Bankruptcy Act. [20] … [T]he Bankruptcy Act continues to refer to the person who … has a right to prove as a creditor. The Bankruptcy Act goes on to provide such creditors … with various rights … which continue after any discharge of the bankrupt … [21] … [T]he bankrupt being discharged from … bankruptcy, does not mean that … creditors cease to be ‘creditor’ for all purposes ( … ) [29] … [When] the appellant commenced … proceedings … she was entitled to do so. … As well as being ‘a person affected by an order’ for the purposes of s 79A(1), [she] is also a ‘party’, a ‘creditor’ and a ‘person whose interests would be affected by the making of the instrument or disposition’ for the purposes of s 106B(4AA)(a), (b) and (c) of the Act. (…) [47] … If it was found that the consent orders had been entered into with the intention of defeating creditors, we do not see why an appropriate variation … could not see the provision for the payment of those creditors … The court would be astute to make orders to overcome fraud on it ( … )”

PROPERTY – WHERE A VALUER HAS PROVIDED A RANGE OF VALUES, THE COURT IS FREE TO MAKE ITS OWN FINDINGS AS TO VALUE In Samper [2021] FamCAFC 140 (5 August, 2021) the Full Court (Ainslie-

FAMILY LAW CASE NOTES

Wallace, Watts & Austin JJ) dismissed with costs a husband’s appeal from a decision of Judge Smith where each party owned a business. The husband’s business operated from rented premises. A single expert valuer opined that the business would have goodwill of $100,000 to $150,000 if the husband obtained a lease with a minimum term of five years ([18]) and that the plant and equipment of the business was worth $45,624. The Court found the business was worth a total of $162,093 being: i) the plant and equipment of $45,624; plus ii) $125,000 for goodwill (being the average between the $100,000 and $150,000 range); with a 5 per cent discount to reflect there being no signed lease. The husband appealed. The Full Court said (from [22]): “It was within the ‘specialised knowledge’ of the … valuer to provide his opinion … by way of a range of the value of the business if a new lease was entered into, or … available ( … ) [23] ( … ) Given the … judge found the opportunity … to obtain a new lease was ‘very likely’, it was open to his Honour to adopt a range of values that assumed that … [24] … [W]here a valuer has provided a range … the court is free to form its own view as to the proper value ... It is usually inappropriate to … select the mean of two valuations ( … Commonwealth v Milledge [1953] HCA 6; … ). However … both parties submitted that the … judge pick the mid-point, albeit of different ranges. … ”

[25] The husband argues that … it was not within the … judge’s expertise to make an allowance for a lease being available or unavailable … when there was no evidence from the landlord as to his intention to continue the lease ( … ) [29] Given the … judge concluded that there was a high probability that there could be a new lease, it was open … to select the discount …”

CHILDREN – CRITICISMS OF INDEPENDENT CHILDREN LAWYER’S CHRONOLOGY INSUFFICIENT TO JUSTIFY THEIR REMOVAL In Lim & Zong [2021] FamCAFC 165 (27 August, 2021) Tree J, sitting in the appellate division of the Family Court of Australia, dismissed an appeal from Judge Coates’ dismissal of a father’s application to discharge an independent children’s lawyer (‘ICL’). The father’s complaints related to a chronology document filed by the ICL and its content. The Court said (from [21]): “A number of authorities have considered the removal of an [ICL], and … the circumstances which may justify such a course. From those, the following points may be discerned: • It is not inconsistent with the independent … discharge of an [ICL]’s obligations … to advocate that a particular course of action adverse to, or inconsistent with, the position of a party, ought be taken by … • … [T]he [ICL]’s owes the same

professional obligations to the Court as does any licenced legal practitioner … • On occasion, the [ICL] will be in an invidious position, but nonetheless they should be no less courageous, no less firm and no less cogent, in advocating for results or findings … • Inevitably the role of the [ICL] involves an exercise of professional judgment which may, on occasion, be precarious and difficult … • It is not appropriate for a litigant to endeavour to micro-manage the [ICL], or critique every step that they take … • … [E]ven if an [ICL] does make a mistake, the Court will [not] necessarily accede to an application to have them discharged. … • It is inevitable that the high standards of competence which the Court expects of [ICL] are not always met. … • A court should be slow to discharge an [ICL] on the basis of largely unsubstantiated complaints of one of the parties ( … ) [34] … [E]ven if it be that the [ICL] was mistaken … and acting upon that mistaken belief, misinformed the Court via her … chronology, that is not conduct which would justify her discharge, unless it could also be shown that it was done either deliberately, or recklessly. ( … ) [63] … [A] chronology is simply an aide, and is not evidence. It is simply too long a bow to draw to say that … the [ICL] thereby misconducted herself in a way which justifies her removal. … ” B November 2021 THE BULLETIN

BOOKSHELF

TREATY-MAKING Abstract from Federation Press In this edited collection, Indigenous and non-Indigenous scholars and policy-makers from Australia and New Zealand engage with

the legal, historical and political dimensions of treaty-making in Australia. These considered and nuanced contributions provide a roadmap for how to develop a legal artifice and treaty relationship that delivers justice

Edited by A Whittaker et al Federation Press 2021 PB $59.95

AUSTRALIAN PERSONAL PROPERTY SECURITIES LAW Abstract from LexisNexis A comprehensive analysis of secured lending law, its policy underpinnings and its application in practice. Uses a series of short examples in each chapter to explain the application of

particular provisions in a practical setting. Provides an overview of the prior law on key topics so that readers can relate the statute’s provisions to the law as they previously knew it and explains the policy reasons for the main provisions.

A Duggan 3rd ed LexisNexis 2021 PB $140.00

FINANCIAL AGREEMENTS UNDER THE FAMILY LAW ACT Abstract from LexisNexis

A Dickey LexisNexis 2021 PB $129.00

The preparation and enforcement of effective and appropriate financial agreements in family law matters can be challenging for both novice and experienced legal practitioners. This important and authoritative new work is designed to assist practitioners to understand the complex points of law that must be considered and applied when undertaking family law

matters involving financial agreements under the Family Law Act. It also provides clear guidance on the preparation of such agreements and includes relevant precedents that may be adapted to the circumstances of each client. The topics include the requirements for financial agreements, the financial matters covered, termination of agreements, superannuation agreements, and advice on drafting effective agreement.

SECURITIES AND FINANCIAL SERVICES Abstract from LexisNexis Securities and Financial Services Law is an authoritative text on the regulation of Australian securities markets and of the various entities involved in those markets. This 10th edition A Dickey LexisNexis 2021 PB $129.00

36 THE BULLETIN November 2021

provides updated commentary on how various legislative amendments resulting from the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry and recent case law affect issuers, intermediaries, market operators, traders and investors.

FAMILY VIOLENCE

Justice system reform needed as part of national plan to prevent family, domestic and sexual violence DR JACOBA BRASCH QC, PRESIDENT, LAW COUNCIL OF AUSTRALIA

awyers working on all sides of family, criminal and other parts of the law in Australia have personally seen and been affected by the impact and aftermath of our national family, domestic and sexual violence crisis. The faces and stories of the women, men and children who have been subjected to violence will never leave us. The Law Council of Australia was privileged to be part of the National Summit on Women’s Safety in September and speak on behalf of those who often cannot speak for themselves. Family, domestic and sexual violence is preventable. There is no excuse for it and it should never occur. It has to be tackled as the national epidemic it is. A priority for the Law Council as the national representative of the legal profession, is to advocate for a justice system which provides protection to victims without fear or favour. Unfortunately, our current system has serious flaws. Every link in the justice system chain, from police, to lawyers, to judges, must be trained in recognising and responding to the signs of family violence. At the moment, around nine in 10 women who experience sexual assault never contact police. Our system deters access to justice rather than encouraging it. Victims of family violence and sexual abuse must feel supported to report and safe to do so. This requires properly resourced frontline services. Separately, for First Nations people, ongoing cultural

competence training is a must and has to be led by First Nations people and organisations. Our legal system must promote and protect the rights of women and children of all backgrounds, particularly those who face greater risk of violence and abuse. Culturally competent, informed service provision that reflects and respects the diverse backgrounds of survivors is essential. There must be acceptance though that a one-size approach does not fit all. During the Summit, we heard the repeated call from First Nations women that they want to be at the centre of what is planned, must have their own National Action Plan and that what might work in one place may not work in another. Across Australia, our legal system must provide consistent responses to family, domestic and sexual violence and support victim focused outcomes. At the moment, not even something as basic as definitions, such as the definition of family violence, align. The Law Council believes expansion of effective models of interventions for perpetrators of FDSV is a priority. Perpetrator intervention programs work by recognising the importance of challenging and shifting abusive and violent behaviours and represent an opportunity for men who use violence to change. These programs aim to break down misogynistic views and a deeply held sense of entitlement which perpetrators use to justify their abuse.

These interventions must be available across the country, including in rural and remote areas, and designed to achieve their aims without compromising the safety of women and children. During the Summit, shortcomings of the current Family Law Act were raised. In particular, its presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. Experiences were shared of children being denied the therapeutic support they need because a perpetrator does not consent to this care being provided and how it can increase the possibility of a child having to live with and spend time with a perpetrator. The Law Council of Australia looks forward to working with the Commonwealth to develop a national approach to justice for victims and survivors of family violence, sexual assault, harassment and coercive control and we welcome the opportunity to contribute further to the National Plan to Reduce Violence against Women and their Children. These are commendable steps in the right direction, but it is time to start sprinting. Violence against and abuse of women and children in Australia is a national emergency which requires decisive and immediate action. Read the Law Council of Australia’s full submission ‘Developing the next National Plan to Reduce Violence against Women and their Children’ here. B November 2021 THE BULLETIN

GAZING IN THE GAZETTE

3 SEPT 2021 – 2 OCT 2021

A MONTHLY REVIEW OF ACTS, APPOINTMENTS, REGULATIONS AND RULES COMPILED BY MASTER ELIZABETH OLSSON OF THE DISTRICT COURT OF SOUTH AUSTRALIA

ACTS PROCLAIMED

ACTS ASSENTED TO

APPOINTMENTS

Statutes Amendment (Local Government Review) Act 2021 (No 26 of 2021) Commencement ss 12(2); 14 ; 15; 18(3); 34; 40; 42; 43(2); 45(2); 46; 50; 53; 54; 56 to 58; 61; 62; 79(7); 80(6); 86; 90(3); 92; 100; 105; 115; 116; 121(1); 122(1); 124; 125(3); 135; 144(2) and (3); 148(2); 149; 150(1) - (4), (6) and (7); 150(9), but only insofar as it deletes subsections (7) and (8) of s 6 of Local Government (Elections) Act 1999 and inserts subsection (7); 152 154; 156 - 159; 161 - 172; 175 – 189; 191; 196(3) - (7), (10), (11), (13), (17) - (32): 10 November 2021 Commencement remaining provisions except ss 5(1) and (3) - (12); 8 – 10; 13; 16; 17; 18(1) and (4); 19; 23 - 33; 35 – 38; 43(1); 44; 48; 55; 59; 63 - 78; 79(1) - (6) and (8); 80(1) - (5) (inclusive) and (7); 81 - 85; 87; 88(3); 89; 90(1); 93 – 98; 99(2); 101 - 104; 106 - 107; 108(2); 109; 117 -118; 120; 121(2) and (3); 122(2); 123; 125(1) and (2); 126 - 133; 136; 141(1), (3), (4) and (6); 142 - 143; 144(1), (5) and (6); 146; 147(1) to (4), (6) and (7); 148(1); 150(5) and (8); 150(9), but only insofar as it inserts subsection (8) into s 6 of Local Government (Elections) Act 1999; 151; 155; 160; 174; 190; 195; 196(1), (2), (8), (9), (12) and (14) - (16); Part 7: 20 September 2021. Gazetted: 16 September 2021, Gazette No. 62 of 2021

Appropriation Act 2021, No. 32 of 2021 Gazetted: 16 September 2021, Gazette No. 62 of 2021

Judge Supreme Court of South Australia on an auxiliary basis, for a term commencing on 20 September 2021 and expiring on 24 December 2021, The Honourable President Walter Sofronoff Gazetted: 16 September 2021, Gazette No. 62 of 2021

Criminal Law Consolidation (Bushfires) Amendment Act 2021, No. 33 of 2021 Gazetted: 16 September 2021, Gazette No. 62 of 2021 COVID-19 Emergency Response (Expiry) (No 3) Amendment Act 2021, No. 34 of 2021 (amends COVID-19 Emergency Response Act 2020 and Local Government Act 1999) Gazetted: 16 September 2021, Gazette No. 62 of 2021 Children and Young People (Oversight and Advocacy Bodies) (Commissioner for Aboriginal Children and Young People) Amendment Act 2021, No. 35 of 2021 Gazetted: 30 September 2021, Gazette No. 64 of 2021 Legislation Interpretation Act 2021, No. 36 of 2021 (repeals Acts Interpretation Act 1915) Gazetted: 30 September 2021, Gazette No. 64 of 2021

Magistrate Youth Court of South Australia From 27 September 2021 principal judiciary for a term of 1 year Magistrate Kathryn Hodder From 29 September 2021 Ancillary judiciary Magistrate David John White Gazetted: 16 September 2021, Gazette No. 62 of 2021

RULES Magistrates Court Rules 1992 Amendment No. 91 Gazetted: 16 September 2021, Gazette No. 62 of 2021

Statutes Amendment (Intervention Orders and Penalties) Act 2021, No. 37 of 2021 (amends Intervention Orders (Prevention of Abuse) Act 2009 and Sentencing Act 2017) Gazetted: 30 September 2021, Gazette No. 64 of 2021

REGULATIONS PROMULGATED (3 SEPTEMBER 2021 – 2 OCTOBER 2021) REGULATION NAME

REG NO. DATE GAZETTED

City of Adelaide (Elections and Polls) (Local Government Review) Variation Regulations 2021

136 of 2021 16 September 2021, Gazette No. 62 of 2021

City of Adelaide (Members Allowances and Benefits) (Local Government Review) Variation Regulations 2021

137 of 2021 16 September 2021, Gazette No. 62 of 2021

Local Government (Elections) (Review) Variation Regulations 2021

138 of 2021 16 September 2021, Gazette No. 62 of 2021

Local Government (General) (Review) Variation Regulations 2021

139 of 2021 16 September 2021, Gazette No. 62 of 2021

Local Government (Members Allowances and Benefits) (Review) Variation Regulations 2021

140 of 2021 16 September 2021, Gazette No. 62 of 2021

Local Government (Procedures at Meetings) (Review) Variation Regulations 141 of 2021 16 September 2021, Gazette No. 62 of 2021 2021 Local Government (Transitional Provisions) Regulations 2021

142 of 2021 16 September 2021, Gazette No. 62 of 2021

Controlled Substances (Controlled Drugs, Precursors and Plants) (Miscellaneous) Variation Regulations 2021

143 of 2021 16 September 2021, Gazette No. 62 of 2021

Planning, Development and Infrastructure (General) (Temporary Accommodation) Variation Regulations 2021

144 of 2021 23 September 2021, Gazette No. 63 of 2021

Children and Young People (Safety) (Exemption from Psychological Assessment) Variation Regulations 2021

145 of 2021 30 September 2021, Gazette No. 64 of 2021

Tobacco and E Cigarette Products (E Cigarette Liquid) Variation Regulations 2021

146 of 2021 30 September 2021, Gazette No. 64 of 2021

38 THE BULLETIN November 2021

LawCare

The LawCare Counselling Service is for members of the profession or members of their immediate family whose lives may be adversely affected by personal or professional problems. If you have a problem, speak to the LawCare counsellor Dr Jill before it overwhelms you. Dr Jill is a medical practitioner highly qualified to treat social and psychological problems, including alcoholism and drug abuse. The Law Society is pleased to be able to cover the gap payments for two consultations with Dr Jill per patient per financial year. All information divulged to the LawCare counsellor is totally confidential. To contact Dr Jill 08 8110 5279 7 days a week LawCare is a member service made possible by the generous support of Arthur J. Gallagher

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The Litigation Assistance Fund (LAF) is a non-profit charitable trust for which the Law Society acts as trustee. Since 1992 it has provided funding assistance to approximately 1,500 civil claimants. LAF receives applications for funding assistance from solicitors on behalf of civil claimants seeking compensation/ damages who are unable to meet the fees and/or disbursements of prosecuting their claim. The applications are subjected to a means test and a merits test. Two different forms of funding exist – Disbursements Only Funding (DOF) and Full Funding. LAF funds itself by receiving a relatively small portion of the monetary proceeds (usually damages) achieved by the claimants whom it assists. Claimants who received DOF funding repay the amount received, plus an uplift of 100% on that amount. Claimants who received Full Funding repay the amount received, plus 15% of their damages. This ensures LAF’s ability to continue to provide assistance to claimants. LAF recommends considering whether applying to LAF is the best course in the circumstances of the claim. There may be better methods of obtaining funding/ representation. For example, all Funding Agreements with LAF give LAF certain rights including that funding can be withdrawn and/or varied. For further information, please visit the Law Society’s website or contact Annie MacRae on 8229 0263.

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The Bulletin - Law Society of South Australia

Articles inside

Mediation project helps disadvantaged women divide small-value asset pools

Tax Files: Submission to the Select Committee on Certain Matters Relating to the Operations of the

Justice system reform needed as part of national plan to prevent family &

Gazing in the Gazette

CourtSA's launch in the criminal jurisdiction

Family Law Case Notes

Justice reinvestment: a community driven process to tackle root causes of crime among Aboriginal youth

It’s client centric lawyering that gets results, not big egos By Rose Cocchiaro

Parenting during a pandemic Obligations to create stable environments for children

President's Message

The Anxious Counsel

From the Editor

Dealing with a narcissistic personality in a divorce By Selina

Risk Watch: When is an estate distributed?: An important new