Brief October 2018

VOLUME 45 | NUMBER 9 | OCTOBER 2018

Law for Life See inside A View from the Bench Part 2 The Law Society of Western Australia’s Old Court House Law Museum Late Inheritances and the Family Law Courts Older People’s Rights Service – A Specialist Elder Abuse Service in WA Intestacy Law Reform in Western Australia

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Volume 45 | Number 9 | October 2018

12

CONTENTS

06

FOLLOW US lawsocietywa.asn.au LawSocietyWA @LawSocietyWA

14

24

ARTICLES 06

A View from the Bench Part 2 - Navigating Conveyor-Belt Justice: The Dynamics of Family Violence and Practicalities in Magistrates Courts

10

Lawyer Visits to Schools Network

12

The Law Society of Western Australia’s Old Court House Law Museum

14

Law Society's Education & Community Services: The State Government Must Reverse its Decision to Cut Funding

16

Late Inheritances and the Family Law Courts

24

Older People’s Rights Service: A Specialist Elder Abuse Service in WA

32

Intestacy Law Reform in Western Australia

DISCLAIMER: The views and opinions expressed in Brief and the claims made in advertisements published within it, are not to be taken as those of, or as being endorsed by the Law Society of Western Australia (Inc.) or the Brief Editorial Committee. No responsibility whatsoever is accepted by the Society, or the Editorial Committee for any opinion, information or advertisement contained in or conveyed by Brief.

COPYRIGHT: Readers are advised that the materials that appear in Brief Journal are copyright protected. Copyright is retained by the author.

Readers wanting to cite from or reference articles in Brief Journal should reference as follows: (Month and Year) Brief Magazine (Perth: The Law Society of Western Australia) at page __). Readers wanting to reproduce a substantial part of any article in Brief Journal should obtain permission from individual authors. If an author’s name is not provided, or if readers are not able to locate an author’s contact details, readers should contact the Law Society of Western Australia (Inc.).

The trade mark BRIEF is the subject of registered trade mark 1253722 and is owned by the Law Society of Western Australia (Inc). Trade mark 1253722 is registered for Western Australia.

Published monthly (except January) Advertising enquiries to Manager Marketing and Communications: Madeleine McErlain Tel: (08) 9324 8650 | Email: mmcerlain@lawsocietywa.asn.au Senior Communications and Media Officer: Andrew MacNiven Communications and Design Officer: Charles McDonald RRP $16.00 incl GST. Printed by Scott Print

Editor: Jason MacLaurin Editorial Committee: Gregory Boyle, Thomas Camp, Dr Rebecca Collins, The Hon John McKechnie QC, Fiona Poh, Dr Pat Saraceni, Robert Sceales, Verginia Serdev-Patterson, Eu-Min Teng Brief is the official journal of the Law Society of Western Australia Level 4, 160 St Georges Tce Perth WA 6000 Phone: (08) 9324 8600 | Fax: (08) 9324 8699 Email: brief@lawsocietywa.asn.au | Web: lawsocietywa.asn.au ISSN 0312 5831 Submission of articles: Contributions to Brief are always welcome.

For details, contact brief@lawsocietywa.asn.au

REGULARS

President: Hayley Cormann

02 President's Report

38 Family Law Case Notes

04 Editor's Opinion

40 Law Council Update

34 The Case of the Bootleg Beer

41 Cartoon

35 Book Review; Watching Out: Reflections on Justice and Injustice

42 Professional Announcements

36 Ex Juris: Travel Tales from the Legal Profession

42 Classifieds

37 Drover's Dog

42 New Members

Senior Vice President: Greg McIntyre SC Junior Vice President & Treasurer: Jocelyne Boujos Immediate Past President: Alain Musikanth Ordinary Members: Brahma Dharmananda SC, Elisabeth Edwards, Catherine Fletcher, Emma Griffiths, Karina Hafford, Eric Heenan, Fiona Low, Marshall McKenna, Denis McLeod, Jodie Moffat, Nicholas van Hattem, Paula Wilkinson Junior Members: Zoe Bush, Sarah O’Brien-Smith, Brooke Sojan Country Member: Kerstin Stringer Chief Executive Officer: David Price

44 Events Calendar

01

PRESIDENT'S REPORT Hayley Cormann President, The Law Society of Western Australia

Welcome to the October edition of Brief.

The theme of this edition, ‘Law for Life’, explores how people interact with the law and our legal system throughout their lives. This could be – creating a will or dealing with inheritance matters in the Family Court; confronting issues in the Magistrates Court arising from family violence; accessing different legal services such as the Older People's Rights Service or Law Access; or learning more about the law through the Law Society’s Lawyer Visits to Schools programme or our Old Court House Law Museum.

Law Society Education and Community Services This edition of Brief features articles on aspects of the Law Society’s Education and Community Services, a vital and essential service for our community and students. Notwithstanding their vital importance, the State Government is cutting more than $110,000 in funding to these services from 1 July 2019. However, it is more important than ever for Australians to have a strong understanding of their rights and responsibilities before the law, and knowledge of how their legal system operates, and the Law Society’s Education and Community Services, including the Francis Burt Law Education Programme, Mock Trial Competition and Old Court House Law Museum, play a crucial and unique role in advancing public understanding of the law.

These services also provide essential equity of access to civics education and help create legally capable citizens.

It is unacceptable the decision has been made to cut important state funding to the services, and the Society is mounting a campaign together with other stakeholders to ensure the Government hears our message on the need to reverse this decision. If you would like to get involved in the campaign to help the Society ensure our message is heard, please contact me directly.

The Law Society Welcomes Legislation for Expungement of Historical Homosexual Convictions The Law Society welcomes the recent passage of legislation by the State Parliament to implement a scheme for the expungement of historical convictions related to consensual homosexual activity.

Consensual homosexual activity was historically criminalised by provisions of

02 | BRIEF OCTOBER 2018

the Criminal Code Act 1913, which have since been repealed. However, this repeal did not address continuing issues for people convicted under the previously existing discriminatory legislation.

ongoing support of our Continuing Professional Development programme; Her Honour was notably a speaker at the Law Society’s Law Summer School conference earlier this year.

The passage of this new legislation follows sustained advocacy by the Law Society.

In April 2016, the Law Society first made a submission to the then Attorney General, encouraging the introduction to Parliament of legislation to extinguish and expunge all criminal convictions for historical offences that were discriminatory to the Lesbian, Gay, Bisexual, Transgender, Intersex and Queer (LGBTIQ) community. This advocacy has continued, and the passage of this legislation now marks a significant step towards correcting historical injustice and discrimination towards the LGBTQI community.

Justice Curthoys will sit full time in the Supreme Court of Western Australia from 1 November 2018. Justice Curthoys leaves his role as President of the State Administrative Tribunal (SAT), which His Honour has held since February 2014. In addition to responsibilities across the Supreme Court’s General Division, Justice Curthoys will be responsible for the judicial case management of contested probate matters and matters arising under the Family Provision Act 1972.

Council Elections Members eligible to nominate for a position on the Law Society’s Council in 2019 will have now received an electronic link to the nomination form. Remember! Nominations close on Wednesday, 17 October, so be sure to get yours in on time.

It is essential the Law Society continues to be representative of our broad and diverse legal profession in Western Australia, and I therefore encourage any eligible member who is thinking of nominating to please do so.

Once the nomination period closes, voting will open on Tuesday, 30 October, with ballot papers transmitted to eligible members electronically by independent voting services organisation CorpVote.

If you have any queries or concerns about the nomination process or timeline, please contact Vernon Thompson, General Manager Corporate Services at vthompson@ lawsocietywa.asn.au.

Recent Judicial Appointments I congratulate and acknowledge recent judicial appointees and announcements, including the Hon Justice Janine Pritchard, the Hon Justice Jeremy Curthoys and Magistrate Paul Glass.

Justice Pritchard has been appointed as a judge of the Court of Appeal of Western Australia. Her Honour has been a longstanding and valued member of the Law Society, having joined in 1994. The Law Society is grateful for Justice Pritchard’s

Magistrate Glass has been appointed as a magistrate of the Family Court of Western Australia, having relocated from Victoria.

Magistrate Glass has been a talented practitioner in the area of family law for many years. His commitment to access to justice is demonstrated by his time at Victoria Legal Aid, where he practised as a Senior Family Lawyer from 2009 to 2011. Since then, he has practised as a barrister at the Victorian Bar and served as a part-time member of the Victorian Administrative Appeals Tribunal.

End of Year Celebration – Save the Date The Law Society’s annual End of Year Celebration is fast approaching! The event will be held on Wednesday, 5 December 2018, from 5.30pm to 7.30pm, at The Westin Perth. The End of Year Celebration is always a fantastic evening, so please save the date in your diary now so as not to miss out.

Registrations to reserve your place at this event will be open soon.

Law Society Annual General Meeting The Law Society’s Annual General Meeting will be held on Thursday, 22 November 2018 at 5.15pm on Level 26, QV1 Building, 250 St Georges Terrace – the offices of Herbert Smith Freehills.

Again, please mark this in your calendars, and I look forward to seeing as many members as possible there for our meeting, followed by drinks and refreshments.

For now, I wish you all a safe and happy month of October, and as always, would love to hear from you, our members. Please contact either me directly, any other member of the Executive or the Society’s Chief Executive Officer, to share with us your ideas, feedback and concerns.

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03

EDITOR'S OPINION Jason MacLaurin Editor, Brief | Barrister, Francis Burt Chambers

This month’s Brief has a theme of ‘Law for Life’ and includes a diverse array of articles, touching upon various stages of the life cycle.

and hardships can be boasted of, and in particular by the younger generation coming through?

There are articles upon the law’s role with the most vulnerable in society, such as Fran Ottolini’s item upon the important issue of elder abuse.

Surviving the upcoming micro-aggression pandemic of 2019? Or the great kombucha shortage and kale famine of 2021? Getting over a humiliating defeat at the hands of a 13-year-old Norwegian after an epic 38 hour battle on the online game Fortnite while suffering chafing from adult diapers worn at the time?3

Often, the best work lawyers do, and can do, is with the vulnerable. This does not just involve those who are vulnerable by reason of age, constitution, language, minority status or cultural challenges, but also vulnerable, even if only episodically, because of other circumstances: whether it be crime, family breakdowns, financial circumstances, or bereavement.

There are also items about the introduction of school students to the law and the legal profession, and a much appreciated ‘View from the Bench.’

Shakespeare saw involvement in the administration of justice as part of the cycle of life and one of the ‘Seven Stages of Man’1 from the ‘All the World’s a Stage’ speech (As You Like It Act II Scene VII).2 Shakespeare’s fifth stage was a person of ‘justice’ such as a judge: “and then the justice, in fair rounded belly with good capon lined with eyes severe and beard of formal cut” (if persons of ‘justice’ include barristers, it seems that, due to the mention of the belly and beard, the Editor may be on the receiving end of a 395 year-old sledge from the great Bard).

The preceding fourth stage was that of a soldier. It is of historical interest, and also humbling, how many prominent lawyers from past ‘great generations’ not only did military service but only studied and practiced law after military service – often after being wounded.

An Australian example is former High Court Justice Sir William Owen, who lied about his age (inflating it by two years) to serve in WWI, was wounded in September 1917 during the Battle of Menin Road (part of the Battle of Passchendaele) and then returned to service to be gassed in the Battle of the Somme in May 1918. After being discharged, he clearly decided this was not enough combat and punishment for one lifetime, and enrolled to study law.

Such biographies are not only humbling, but worrisome for those of us not of the great generations, and with concern for the younger millennials to come. What battles

04 | BRIEF OCTOBER 2018

Speaking of judges being subject to combat fire, it is impossible to ignore the recent (and ongoing at the time of writing) spectacle in the US surrounding SCOTUS nominee Brett Kavanaugh.

This Editorial did not intend to devote so much time to the SCOTUS nominations.

However, since fortuitously mentioning “borking” prior to Associate Justice Kennedy even resigning, things have gone out of control in a big way and we are now in extraordinary times.

The current situation in the US cannot be ignored as we now have an extraordinary maelstrom4 involving the most contentious modern issues in the law, politics, society, culture, the #metoo movement, the presumption of innocence, civil discourse, protection of reputation, the treatment of victims, trial by media, and the role of lawyers.

It is hard to know where it all will end, but a fair guess is like the end of Stanley Kubrick’s Dr Strangelove though with more explosions and radioactive fallout, and less Vera Lynn. It is also unclear who or how many (including in the law, media, and politics) may be Slim Pickens – cowboy-riding the bombs to obliteration.

It is such a controversial event that it would be dangerous to express an opinion or comment upon it at the moment.

However, readers of Brief expect courage and conviction. So a controversial hot take on the controversy will be made in this editorial.

Before doing that though, it is appropriate to turn to one reason for the current rancour – being that there is no longer a filibuster over SCOTUS nominees, meaning only a Senate majority vote is required for confirmation.

Filibusters have an interesting history, though have not featured much in Australia, due to stricter rules here concerning speaking times for legislators. Filibustering is of course a delaying tactic where speeches are dragged

out for so long as to prevent a vote.

Jimmy Stewart, speaking to the point of exhaustion to block an Appropriations Bill in the classic film Mr Smith Goes to Washington brought the filibuster into the popular imagination. In fact, the Editor was up late the other night thinking he was watching that great scene only to realise it was actually a replay of Rob Oakeshott’s speech to Parliament after the 2010 election.

Now, we are coming to this editorial’s hot take on the Kavanaugh nomination, but first some more interesting facts about filibusters.5 The longest UK House of Commons speech in the 20th century was made by Sir Ivan Lawrence, who spoke for four hours 23 minutes against the – wait for it – 1985 Fluoridation Bill.

That may sound overwrought, however, fans of Kubrick’s Dr Strangelove will recall that, in that movie, the path to a nuclear holocaust was laid by General Jack D Ripper’s belief that America was under insidious attack by the great Communist Russian conspiracy, fluoridation of water.

Former presidential candidate and US Senator Ted Cruz filibustered for five hours, which included reading books such as Dr Seuss’ Green Eggs and Ham. Any parent who has tried to get young children to bed knows what it’s like to actually feel like you’ve been reading Dr Seuss for five hours solid. And, how children are not only great filibusters of sleep but also, when it comes to brushing their teeth, of fluoride.

So now we finally come to the controversial take on the Kavanaugh matter: oh wait, sorry, I’ve already exceeded this Editorial’s word limit by quite a lot. Apologies, I’ll have to end now.

And that, Dear Readers, is how you filibuster.

Notes 1 Or, If You Like It (terrible pun intended but regretted) the “Seven Stages of People” 2 And these stages were expressed much earlier than Shakespeare, for instance, in Ovid’s Metamorphoses, which Shakespeare may well have studied.

3 This is, sadly, an actual thing with online video gaming: see “GoW tournament shut down by diaper gamer,” engadget.com.

4 Again to continue the pundemonium, If You Like It, “personstrom”.

5 ‘The art of the filibuster: How do you talk for 24 hours straight?’, Jon Kelly, BBC News Magazine.

Brief welcomes your thoughts and feedback. Send all letters to the editor to brief@lawsocietywa.asn.au

KBE Legal Hub

What is KBE Legal Hub?

It is with the greatest of pleasure that we announce Rebecca Johnston and John Poulsen have joined our team for the launch of KBE Legal Hub.

KBE Legal Hub is all about choice.

From 1 October, KBE Human Capital became KBE Legal Hub, providing the full suite of permanent and flexible working options for Western Australia’s lawyers, law firms and in-house teams.

For talented lawyers – we empower lawyers to choose how and when you work, with the best law firms and in-house teams in Western Australia.

For law firms and in-house teams – we deliver unrivalled legal talent, allowing you to scale your legal workforce up and down, as and when required. We are here to help you build your workforce of the future.

KBE Legal Hub consists of Managing Partners, In-House Legal Counsel, Senior Lawyers, Legal Recruitment Consultants and Law Firm Futurists. We have united with one clear purpose – to help make the Western Australian legal profession a happier, healthier place for lawyers, law firms and in-house teams.

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We are currently seeking Salaried and Equity Partners for positions with leading firms across all practice areas. Our clients are leading national/international and Western Australia’s most sought after boutique firms. Many of our long-term clients have significant growth plans and have engaged us to secure Partners, Senior Associates and Special Counsel in the following areas: • • • • •

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Given the nature and structure of the company and legal team, the incoming lawyer will be exposed to a range of interesting and diverse corporate/commercial law matters.

The company is open to meeting with and hiring lawyers from a variety of backgrounds with the only key requirements being strong drafting skills and the ability to relate to senior stakeholders within the business.

The ideal candidate will have 4-7+ years’ PAE from either private practice or in-house. This contract position offers a highly competitive remuneration with the potential for the role to be extended or become permanent if this is of interest. Day rate of $600-$900 (plus super, plus benefits).

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A View from the Bench

Part 2 – Navigating Conveyor-Belt Justice: The Dynamics of Family Violence and Practicalities in Magistrates Courts

By Magistrate Deen Potter This article is adapted from a paper presented at a Law Society CPD seminar on 21 March 2018

In Part 1 of this article, published in Brief of July 2018, the objective was to provide practitioners with an insight into the current working environment of the Magistrates Courts and provide some useful guidelines as to how they may assist in making the best use of limited time and resources in General Lists. In Part 2 we explore some of the practical and theoretical issues for Magistrates and Practitioners when dealing with family violence matters.

The community’s understanding and appreciation of the dynamics and complexity of family violence has evolved dramatically over the past decade.

Magistrates are acutely aware of the complex dynamics of family violence and that it can take many forms, not just physical acts of violence. Many victims suffer such violence behind closed doors without any outside support. Perpetrators of violence can be manipulative both psychologically and emotionally with the effect that victims often blame themselves for the violence that they are being subjected to. Perpetrators can often feel a heightened sense of confidence because of the power imbalance that they enjoy with respect to the victim of their violence. The Court is aware that many victims will not complain about this violence due to fear of repercussions within the violent relationship or social stigma and from a lack of self-esteem or a sense of obligation to keep the family unit functioning. It may be a significant 06 | BRIEF OCTOBER 2018

period of time before a victim can feel safe enough to break free of the confines of the violent relationship and seek assistance and then rebuild and feel confident enough to speak about their experiences.

This type of violence is particularly abhorrent because of the long term effects it has upon communities. There is no doubt that it places a very significant burden upon the State’s resources both in the short and long term. It is possible that the true economic and social cost of family violence is unquantifiable because of the intergenerational trauma and consequential effects that it engenders.

The accumulated research demonstrates that family violence is not based in socioeconomic circumstance, race, religion or creed; it may be just more visible in some communities or sections of the community than others. As much as family violence is reported there would appear to be an equal if not greater

volume of unreported long term, serious family and domestic violence.

Family and Domestic Violence is an extremely complex problem with no singular theory or proposal able to adequately or comprehensively address or resolve the phenomenon. One of the great challenges and imperatives for our community is to develop comprehensive and systemic responses to family and domestic violence.

Any singular reliance upon both the civil and criminal justice systems to deliver the real change that is required is to provide victims with false hope. The intergenerational transmission of the trauma caused by family and domestic violence cannot be remedied by legislative change alone.

Ultimately, the focus of government policy should be on developing and implementing comprehensive primary interventions which drive a seismic shift in attitudes by men and women, but

primarily men, as to the inexcusable levels of family and domestic violence in our communities. There must be long-term and deep strategies to create communities where such violence is to be considered absolutely as an aberration and not the norm. In addition, in order to deal with the immediate aftermath of family and domestic violence intensive interventionist programmes broadly available, not just limited to specialist Courts, must be accessible to both perpetrators and victims. Government must genuinely commit to resourcing multi-layered and multi-faceted strategies.

Bearing all of that in mind there is a need to consider, directly and with a measure of honesty, some specific issues faced by those operating in the Magistrates Courts on a daily basis. a) Failure of Victims to Attend Defended Criminal Hearings This is a well-known phenomenon amongst those who practice and administer law. The further one gets from the metropolitan region and, therefore, support services, the greater the frequency and prevalence of the phenomenon.

Police prosecutors and lawyers often predicate their out-of-court negotiations on the basis that victims are reluctant to attend the hearing of a defended charge.

It is a reality that Court listings are developed on the basis that victims of family and domestic violence are unlikely attend Court to give their evidence. Significant resources across the criminal justice system are dedicated to pursuing prosecutions that are simply not going to be, at the end of the day, successful.

In family violence time is of the essence. Waiting times for matters to proceed to trial are a very real disincentive for victims to attend defended hearings. Memories wane and people move on with their lives, often reconciling with the alleged offender. The complexities and realities of day-to-day living take precedence over and above a protracted and uncertain Court process.

Pleas of guilty on the day of trial are often entered after the Accused has seen that the victim is committed to giving their evidence. Where victims

do attend Court they often simply indicate that they wish to withdraw or recant from their original statement to police.

This phenomenon is one of the greatest impediments to positively impacting upon rates of family violence. There is no accountability for offenders and victims are alienated and unprotected by the system. Responses to this issue require theorists and policy makers to think innovatively and with a level of pragmatism.

Video statements taken from alleged victims from police body cameras at the crime scene and/ or at a police station to be used as ‘best evidence’ or ‘evidence–inchief’ in a similar fashion as child witness statements may have a role to play in truncating the trial process for those victims. Such a proposal has genuine merit but needs to be carefully worked through to ensure that it does not give rise to unintended adverse consequences.

In what can only be accepted as an interim pragmatic measure pending greater commitment to address this

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issue, expedited family violence multi-trial lists have been created in Joondalup to bring as many matters to a conclusion as soon as possible. It is not ideal because it simply reinforces the fact that many trials will simply fall away at an unacceptable rate, not by reason of pleas of guilty, but more likely because unwilling victims are walking away from the process.

One recommendation emerging from research undertaken in Western Australia in 2010 was that a plea of ‘no contest’ should be considered as an alternative plea.

There was significant support for the introduction of a ‘no contest’ plea with 79% of legal practitioners surveyed for that research indicating that this type of plea would be beneficial in targeting Accused who require therapeutic intervention.

This type of plea may be also a very significant circuit breaker to alleviate the pressure on Court listings in family violence and, ultimately, channel offenders towards and into rehabilitative programmes.

The ‘no contest plea’ would free up trial listings and allow an initially resistant offender to commence the process of interventionist rehabilitation. b) Victims as advocates for perpetrators Adding a layer of complexity in dealing with family violence in the Magistrates Courts is the fact that many alleged victims tend to be strong advocates for the alleged offender. It is not uncommon for victims to attend Court and attempt to address the Court directly or through a written Statement advocating for the Accused to be released on bail or sentenced to a non-custodial disposition. This is often against all of the information provided to the Court indicating that there is a high risk of re-offending in a like manner against the same victim. Theoretical approaches will explain this phenomenon as the victim acting in a self-preservation mode, to be seen to be supportive of the alleged perpetrator and encourage their favour.

The Court is often implored by prosecution and other agencies to save the victim from themselves.

That is easier said than done.

Some alleged victims can mount vocal and pressing cases for the 08 | BRIEF OCTOBER 2018

release of the alleged offender, often based on the need for social or financial support or, of greater concern, that they as victims have provided false or contaminated information to the charging authorities. Bearing in mind that the presumption of innocence still remains the fundamental principle of our criminal justice system a remand in custody against this background can, in some cases, have catastrophic consequences for family units such as mortgage defaults and homelessness. In addition, it must be acknowledged that some alleged victims are just as dysfunctional in their personal lives as the alleged perpetrator, suffering from drug and alcohol addictions, serious psychological and psychiatric health issues and are, given our expanded understanding of what constitutes family violence, equally capable of committing acts of family violence.

Where the Court does grant bail the imposition of protective bail conditions can lead to regular breaches by Accused person at the invitation, often insistence, of the alleged victim. The solemnity of the Court’s orders and protective bail conditions is undermined.

The Court is placed, both directly and indirectly, into the role of relationship advisor and counsellor.

In these all of these circumstances should the Court, faced with a strident victim, stand in their stead as locus parentis; or, recognise that they are consenting adults with access to agencies and services much better equipped than a Court to assist them in navigating the complexity of their history, current circumstances and future.

Legal practitioners approached by this category of victim should resist from inviting the Court to ask that person to stand up in the middle of a busy, open Court list and ventilate the issues. Practitioners are strongly advised to instead refer them directly and immediately to Victim Support or Family Violence Services who can then conduct a full interview and a more extensive, independent, risk assessment. c) Risk Assessment Family Violence Lists in Magistrates Courts have become a ‘hub’ for the collation of historical and current information held by agencies including the Family Violence

Service, Police, Corrective Services, child welfare agencies, nongovernment support agencies and Court hearing results in both the criminal and civil jurisdiction.

Risk assessment is central and critical. The days of agencies jealously guarding and withholding information in artificial silos is, thankfully, over. Regular interagency meetings are held whereby ‘highrisk’ cases are monitored and reviewed by these ‘stakeholders’. For an example, police will be informed if there has been a recent family violence contact or intervention by a child welfare agency and vice versa.

In reviewing and providing information to the Court, and each other, the agencies discharge their duty and can continue their task of assessing risk and allocating and coordinating interventionist resources to act upon that assessment. It represents a seismic shift in the way in which our community systemically identifies and addresses family violence and there are some very innovative and positive programmatic developments beginning to show signs of life.

However, for the Court, who is not an agency ‘stakeholder’ the presentation of this plethora of information, presented generally through Risk Assessment Reports represents a very real dilemma.

The Court has been placed in an invidious position. Firstly, a great deal of the information is hearsay, unsubstantiated and/or uncharged.

Notwithstanding, it will often disclose very high levels of severe family violence within the family unit.

The Court is permitted to take any information into account when considering the issue of bail and when managing an individual on a judicially case-managed list.

However, having been presented with this information and having relied upon it to manage the real or perceived risks, what is the Court to do with it at the point of sentencing?

The short, narrow and legally correct answer is to disregard this inadmissible material entirely and focus on the offence charged, the agreed facts, the prior record of the Accused and any aggravating and mitigating factors. Magistrates are well adept at undertaking this objective task.

However, the broader concern is that where the Court undertakes its

duty and imposes a sentence that is reflective of the offence charged but appears to be out-of-step with the disclosed background and assessed risk level and, then, a seminal event occurs, the Court will be accused of being derelict in its duty to protect a victim of family violence. This potentially leaves the Court exposed to misdirected criticism about its functions and functionality.

Final Observations Family violence is an insidious form of violence that undermines community structures in complex and often undocumented ways. The perpetrator’s hand extends to impacting on those around the victim. Its impact on the economy is real and incalculable. However, whilst there has been a strong and justifiable focus on the status of the victim the current discourse is in danger of lacking critical analysis as to the true complexity of family violence.

Court trial listings are often predicated on the fact, not perception, that very few defended hearings in family violence will proceed. Magistrates are, on a daily basis, around the State faced with individuals who have been charged with Breach of

Protective Bail Conditions and Breach of Family Violence Restraining Orders.

The victim and Accused reconcile irrespective of protective bail conditions or Restraining Orders. The technical and correct approach is that the onus remains on the person bound to observe the terms of the Courts Orders. However, in many cases, that approach is overly-simplistic and dramatically removed from day-today reality. Whlst not a factor in mitigation, minor ‘consensual’ or ‘invited’ breaches of Court Orders and bail conditions often results in the Court imposing nominal fines thereby undermining the objective gravity of the offence and, in turn, the status of the Court in upholding its own orders.

Given the prevalence of so many complexities and co-morbidities within our communities, coupled with our deeper understanding and appreciation of the complexities of family violence the modern day Magistrate’s task often distils to one of triage-style risk assessment and management, balancing multilayered and multifaceted objectives often in direct opposition with each other. In family violence matters, in particular, conveyer-belt justice has the potential to undermine the considered courtroom process. Conveyor-belt justice cannot

enhance victim safety, an Accused’s accountability or deliver solution–focused results where appropriate. Intensive, innovative and timely interventions are required if the Court is going to be able to adequately and appropriately play its role in correcting the traumatic, cyclic and devastating impact of family violence.

Endnotes 1

2

See in particular the National Family and Domestic Violence Benchbook (Cth Attorney General’s Department) at http://dfvbenchbook.aija.org.au/. This is a comprehensive and accessible national resource useful to judicial officers and practitioners and draws together current and developing research, legislative initiatives, victim experiences and case law relevant to family and domestic violence.

See Mugford J. 1989. Domestic violence. Violence today No. 2. Canberra: Australian Institute of Criminology. https://aic.gov.au/publications/vt/vt02

3

See generally Enhancing Laws Concerning Family and Domestic Violence: Final Report, Law Reform Commission of Western Australia, Project No.104, June 2014; see also Magistrate Kate Hawkins(Vic.) and Deputy Chief Magistrate Felicity Broughton(Vic.), Sentencing in Family Violence Cases, Paper presented to the National Judicial College of Australia Conference on Current Issues in Sentencing, June 6-7 February 2016

4

See Hawkins, K and Broughton, F, ibid at 20.

5

See Potter, D, Working in a new paradigm: Lawyers, Problem-solving courts and Therapeutic Jurisprudence in Western Australia (2010) Thesis Paper, LLM, University of Western Australia at https://api.researchrepository.uwa.edu.au/portalfiles/portal/3230924

6

Morgan A, Boxall H & Brown R. 2018. Targeting repeat domestic violence: Assessing short term risk of reoffending. Trends & issues in crime and criminal justice No. 552. Canberra: Australian Institute of Criminology. https://aic.gov.au/publications/tandi/tandi552

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09

Lawyer Visits to Schools Network The Lawyer Visits to Schools Network is co-ordinated by the Law Society’s Francis Burt Law Education Programme. The visits provide an opportunity for the legal profession to engage with students and teachers in the community. The aim is to increase student awareness and understanding of the law, legal principles and the court system in Western Australia.

Throughout the year the Law Society receives many requests from both metropolitan and country schools and the year levels range from Year 3 through to Year 12 students. The feedback from lawyers and teachers has always been very positive with many expressing how rewarding the experience has been and how much better students and teachers understand the work of the legal profession.

In 2017/18 more than 30 volunteers from the legal profession facilitated visits for 1,170 students.

Recently, the Honourable Philip Eaton, a retired Judge from the District Court of Western Australia, travelled to Wyalkatchem District High School to

10 | BRIEF OCTOBER 2018

speak to a group of Year 9 students and provided the following account of his visit.

“In response to a call from the Law Society of WA, I enquired of my wife, Elizabeth, whether she fancied a trip with me to Wyalkatchem. Wyalkatchem lies about two and a half hours drive north-east of Perth. The town has, like many towns in the Wheatbelt, over the past 60 years seen a steady decline in population and services. It now has a population of about 375. The very pretty District High School, as the principal explained to me, has capacity for 300 students. The current student population is about 70 spread from Kindergarten to Year 10. Students completing Years 11 and 12 must do so by boarding at a metropolitan school or at

 The Honourable Philip Eaton, a retired Judge from the District Court of Western Australia, speaks to year 9 students at Wyalkatchem District High School.

Northam Senior High School or Cunderdin Agricultural College.

Upon arrival Elizabeth and I joined most of the six teaching staff for a chat over coffee and cake at the morning recess. I then spoke to 16 students being Years 7 to 10.

It was a delightful experience. They were interested in both the drama and comedy of the courtroom. There were many thoughtful questions, particularly about the experience of being a judge. We were thrilled to be later given a copy of the school newsletter which included student comment on our visit and what I’d said to them.”

The teacher, Ms Emma Grant, said “The students were really interested in the different court cases, and interesting things that happened in the courtroom, and enjoyed touching the funny wigs the judge had to wear. This builds upon work the students have been doing this term in Politics, and gave them a deeper understanding of what actually happens in a courtroom.”

Comments from students included: I thoroughly enjoyed having Judge Phillip Eaton coming for our incursion. He gave us very interesting information about the process of becoming a judge and he had very funny stories to tell. He repeatedly knew answers for all my questions and every answer was more exciting than the last. I really loved the excursion and hope to see him again” Makayla He told us the threats that had happened to him, the safety he had for himself in case someone tried to hurt him or his family and what happens in the court of being a judge." Molly He showed us his wigs and told us that American judges are different to Australian judges because American judges have gavels and Australian judges do not use gavels. We asked him some questions and he answered most of them, one of the questions we asked him was, ‘What was the worst case you ever had?’ and he said that homicide is definitely the worst cases they deal with.” Shani

The Law Society thanks the Honourable Philip Eaton for volunteering to speak to the students at Wyalkatchem District High School.

The Lawyer Visits to Schools Network would not be possible without the support of the legal profession and we are very grateful to all those that volunteer to take up these requests.

If you would like to volunteer to speak to students please refer to requests that are placed in the weekly Friday Facts email newsletter and please feel free to distribute information about the Lawyer Visits to Schools Network to schools in your community.

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The Law Society of Western Australia’s Old Court House Law Museum

By Julianne Mackay, Museum Curator

The Law Society’s Old Court House Law Museum (the Museum) is the only law museum in Western Australia and one of only a handful worldwide. It was one of the most important public buildings in the Swan River Colony for at least two decades and served as a court house, school, church, concert hall and public meeting hall.

It is significant for its versatile and continual usage over a period of 182 years and its links to the colony's early cultural, religious and educational beginnings. Now a community museum, its aims are to promote understanding of the law, legal issues and the legal profession in Western Australia, and to preserve this history and cultural material for present and future generations.

The Old Court House has been considered by the community to be culturally significant, as demonstrated by being classified by the National Trust of Australia (WA), on the database of the Heritage Council of WA, and on the Register of the National Estate.

The collection is unique and includes documents relating to the administration of law and justice in WA dating back

12 | BRIEF OCTOBER 2018

to the early 19th Century, legal regalia, photographs, books, artworks, portraits, office and personal items belonging to members of the legal profession, and oral histories.

The temporary exhibitions and audio overview of the history of the area in which the Old Court House is located contribute to the narrative of the building and the Museum collection by

teasing out historical and contemporary considerations through a legal framework.

Temporary exhibitions allow the Museum to feature focused projects or issues relating to both past and present issues relating to the Museum. They also provide a space for input from various stakeholders, from co-creating initiatives and partnerships to research support and incoming loans.

The Old Court House Law Museum is working on a temporary exhibition to commemorate Armistice Day 2018 and the end of the First World War. This exhibition, From Law to War to Peace is centred on a photograph found in the Museum’s collection. Taken in 1913, the photo features many Perth lawyers, some from prominent Western Australian families including the Jacksons and the Heenans. Many served in various roles in the First World War; some did not return to Australia. It is our intention to

The Old Court House, Stirling Gardens.

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create an exhibition commemorating as many people as possible featured in the photograph, to tell their stories not only from their wartime experiences but also during peacetime, when many returned to Australia and carved out very successful careers in areas including law, politics and education.

To help tell the stories of these individuals, artefacts, didactic panels, maps, photographs and other significant items will be used. Following on from the preliminary research, the Curators will work on a temporary exhibition design to bring all of these elements together to deliver the project. We intend to have this exhibition on display for several months and incorporate a series of public programs to compliment it.

We are presenting a public talk with family members and a guest speaker to accompany the exhibition and to feature as part of the Heritage Perth Open Days

A group of young lawyers photographed before the war, which accounted for the lives of several of the young men portrayed.

weekend in October. Underlying this curatorial choice is the idea that even small communities have a strong sense of identity and are deeply affected by global, political, economic and social

forces. We aim to commemorate ordinary men who went to war and achieved extraordinary things and their ongoing influence post war.

13

Law Society's Education & Community Services: The State Government Must Reverse its Decision to Cut Funding

By Hayley Cormann, President, The Law Society of Western Australia

There is strong evidence that many Australians have an inadequate understanding of their rights and responsibilities before the law.

Community Services are composed of the Francis Burt Education Programme, Mock Trial Competition and Old Court House Museum. In 2017/2018 more than 19,000 people benefited from, or accessed, the services, demonstrating its enormous reach within our community.

The Law Council of Australia recently published its Final Report of The Justice Project – a comprehensive national review into the state of access to justice, led by the Hon Robert French AC, former Chief Justice of the High Court of Australia. One of its key findings was that Australians from all walks of life lack the capability to recognise legal problems or seek out proper assistance.

The Law Society’s Francis Burt Law Education Programme in particular plays a crucial and unique role in advancing community understanding of the law, with its driving principal being that all Western Australians should understand the legal system which affects their everyday lives.

In 2017/18, 11,000 people, the majority of whom were school students, participated in the Programme’s activities; observing a court in session, taking part in a scripted mock trial scenario, Cluedunnit Kids Competition, or hearing from a lawyer in the classroom through the Lawyer Visits to Schools Network. These unique learning experiences, aligned to the WA school curriculum, provide participants with a deeper understanding of the law and the mechanics of our justice system.

That is why community legal education is vitally important. Without an adequate awareness of the law, citizens find themselves disconnected from their legal system and the protections it can offer.

It is more important than ever for governments to invest in programmes that promote access to justice and knowledge of legal issues. It is therefore incongruous that the State Government is cutting more than $110,000 in funding to the Law Society of Western Australia’s Education and Community Services from 1 July 2019. Our Education and 14 | BRIEF OCTOBER 2018

The Law Society’s long-running Mock Trial Competition’s reputation precedes itself as a dynamic introduction to the law for young people, while fostering engagement with the legal profession,

courts and judiciary. In 2017/18, 1,304 students participated from across 53 schools in 124 teams. Students learn valuable skills in research, public speaking, analytical thinking, problem solving and teamwork.

The Law Society also proudly operates the Old Court House Law Museum, from the oldest building in the City of Perth. The Museum leads in collecting, conserving and interpreting the history of the law in WA and was recently commended at the Museum and Galleries National Awards. The Museum welcomed 6,971 visitors in 2017/18.

A significant majority of the Society’s Education and Community Services are utilised by students in both government and private schools across the Perth metropolitan area, as well as in country regions. From 2017, for the first time ever the teaching of Civics and Citizenship in Western Australia became mandatory for Years 3 to 10. The State Government’s decision to make this teaching area mandatory in 2017, yet cut funding to the Law Society’s community legal education programmes in 2019 is entirely contradictory.

At a time when there is a dire need for

these programmes – reflected by the increasing public demands on the Law Society’s Education and Community Services and for online resources (with around 7,000 downloads in 2017/18) – the funding cut does not make sense, and must be reversed.

The Society’s Education and Community Services actively work to engage with marginalised groups. For example, our Lore Law Project is led by Aboriginal and Torres Strait Islander youth, offering a ‘skills for life’ approach and acknowledging that Indigenous young people often walk in two legal worlds. This project and other activities use a humancentred design process to create selfworth in young people, enabling them to make positive contributions to society, as they grow into adulthood and embark on pathways to employment.

Education and knowledge improve access to justice and create a fairer, more transparent justice system. The Law Society’s Education and Community Services provide crucial equity of access to civics education and help create legally capable citizens. The State Government must reverse its decision and restore its funding from 1 July 2019 - an investment in these services is an investment in democracy, justice and the rule of law, for the benefit of everyone in society.

The Society is building an important campaign together with our stakeholders to ensure our message to the State Government is heard loud and clear. If you have any questions about the services available through the Society's Education and Community sector, or you would like to become involved in the campaign, please contact me.

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15

Late Inheritances and the Family Law Courts

By Devin M. M. Sanghavi, Associate Director, Klimek & Wijay Family Lawyers Accredited Family Law Specialist

Joanna and Simon commence living together in July 1994. They marry in 1996, and separate in February 2009. Joanna and Simon have 2 children, 6 and 9 years old at the time of separation. Shortly after separation, Simon inherits $3 million. Besides the inheritance, Joanna and Simon have accumulated property worth $4.8 million. Property settlement proceedings commence. From a moral or logical standpoint, one may consider Joanna would not be entitled to receive any portion of Simon’s inheritance as part of the settlement; and they would be forgiven for taking such a view.

INTRODUCTION In property settlement proceedings in relation to a marriage (or de facto relationship), a family law court (a court exercising family law jurisdiction) shall not make an order altering interests in property unless it is just and equitable to do so.1 The court determines a party’s entitlement to property settlement by what is effectively a 5-step enquiry.2 First, the court must identify all existing legal and equitable interests of the parties in property. Second, it must consider whether it is just and equitable to make

16 | BRIEF OCTOBER 2018

any property settlement order.3 Third, it must assess the financial and nonfinancial contributions made in relation to property of the parties, and homemaker and parenting contributions made towards the welfare of the family.

Fourth, it must take into account specific prescribed factors4 which relate to the parties’ needs in the future. Finally, it must consider whether the orders it proposes to make are just and equitable.

The facts described in relation to Joanna and Simon above, are those of a case heard in the Family Court of Western

Australia in March 2013. The decision was appealed to the Full Court of the Family Court of Australia, and later the subject of an unsuccessful Special Leave Application to the High Court. The Full Court’s decision, and the Special Leave Application, both, are reported under the pseudonym of “Singerson & Joans”. The Full Court’s decision, left undisturbed by the High Court, resulted in the wife (Joanna in the scenario above) receiving 47.5% of all property, including the inheritance ($2.6 million at the time of trial in 2013). 5 Are special rules or guidelines necessary for late inheritances? Perhaps exaggerated, flawed, and an entirely inaccurate proposition, but is a family court effectively subverting the specific wishes of a dead person by effectively allowing a portion of their legacy to flow to an unintended beneficiary?

PALM TREE JUSTICE The family law courts have broad but not unrestrained powers when exercising the discretion to alter interests in property.

As recently as 2012, the High Court made clear in the seminal decision of Stanford6, that a family law court must not do, and is not entitled to do, what could be described as “palm tree justice”7 when exercising its broad discretion.

Instead, it must exercise its discretion in accordance with statute and existing legal principles. Key legal principles affecting late inheritances are discussed below by reference to the decisions in which they arose.

husband or wife as the case may be or other particular services to protect a property… Accordingly, we think that in the present case the monies received by the husband from the sale of the freehold and from his uncle’s estate should not be brought into account. (emphasis added) Paragraph 44 of Bonnici has been relied upon to make arguments to the following effect: 1. late inheritances ought not to be taken into account, and so excluded, in a property settlement, and remain the sole benefit of the spouse that brought it in9; 2. the non-inheriting party could not be said to have contributed in any significant way, to a late inheritance given the nature of the asset and the timing of such a contribution and so the inheritance must be treated differently to other assets10; When the outcome and trajectory of a decision such as Singerson are analysed, one could be forgiven for feeling a sense of injustice for the spouse for whose benefit the inheritance was bequeathed.

That being said, in the author’s view, it is not inconsistency in uniform decisionmaking, but rather the unique factors of every case and the imperative for a family law court to exercise its discretion in accordance with legal principles, which inevitably leads to variable outcomes.

IN OR OUT Can an inheritance be excluded, or immune, from consideration by a family law court due to it being received late during a relationship or after separation?

The 1991 decision of Bonnici8 is a frequent reference point. Bonnici involved a 17-year marriage which produced 2 children. The husband inherited $20,000 before separation and $500,000 within a year of separation. Notably, the wife had made significantly greater financial and welfare contributions compared to those of the husband (besides his inheritance).

What is significant about Bonnici is not its outcome, rather what the Full Court stated at paragraph 44 of its decision: 44. The other party cannot be regarded as contributing significantly to an inheritance received very late in the relationship and certainly not after it has terminated, except in very unusual circumstances. Such circumstances might include the care of the testator prior to death by the

3. contributions made prior to the receipt of an inheritance bear no relevance to it11; 4. contributions need be made by the non-inheriting party towards the person whom bequeathed assets to the inheriting party - if not then that factor should suffice to exclude the inheritance from being brought into account in assessing contributions12.

In the author’s view, arguments to the effect of, or any permutation of, those in paragraphs 1, 2 and 4 above are incapable of being sustained if made today. The argument in paragraph 3 could be accepted in an appropriate case.13 Paragraph 44 of Bonnici may have created confusion (apparent in some of the cases referred to in this article) about the proper approach to be taken, possibly due to how it was interpreted or relied upon. The Full Court clarified this issue 20 years later - in their 2013 decision in Bishop14, and then in their 2017 decisions of Calvin15 and Holland16.

Bishop involved a relationship of 23 years. There were 3 children. The wife received an inheritance 3 years prior to separation, from an aunt in England.

Once received the inheritance was kept separate from all other assets. The trial judge excluded the inheritance from calculation of the property available for distribution, because he considered he was “constrained by [Bonnici] in leaving the inheritance…out of the calculation of the pool”. The Full Court confirmed the Bonnici decision did not give rise to such a constraint.17 The Full Court’s clarification

was somewhat succinct, but expanded upon in their decision in Calvin.

In Calvin18, the marriage was of 8 years duration and produced one child. The husband received an inheritance 4 years after separation. The primary issue on appeal was whether the trial judge made an error of law in including the inheritance amongst the property to be divided. The Full Court made clear, unequivocally, that “property acquired after separation can be the subject of division”19. The Full Court also confirmed, in relation to reliance by the husband on paragraph 44 of Bonnici, that the earlier Full Court in Bonnici was not “purporting to lay down a guideline as to the approach the court should take to inheritances received after separation”.

Both these key points were made again by the Full Court in its subsequent decision in Holland20. Holland also concerned the issue of whether an afteracquired inheritance could be excluded from a court’s consideration. A secondary issue in this case was whether the inheritance upon its exclusion from the pool of available assets, could instead be treated as a financial resource. The Full Court explicitly confirmed that “it is wrong as a matter of principle to refer to any existing legal or equitable interests in property of the parties or either of them as “excluded” from, or “immune” from consideration…”.21 The Full Court also re-iterated that use of the expression “resource” or “financial resource” should be “confined to those interests which do not fall into the definition of property as such to which the parties have a present entitlement”22.

Put simply, an inheritance, or what is left of it, if existing at the time of trial cannot be excluded or ignored from consideration. Care ought to be taken in refraining from using the term “financial resource” to describe or refer to existing property interests of the parties.

THE ASSESSMENT OF CONTRIBUTIONS AND FACTORS AFFECTING NEEDS OF THE PARTIES IN THE FUTURE A different but equally important aspect of cases involving late inheritances is the assessment of each spouse’ contributions.

Once a trial judge has identified existing legal and equitable interests of the spouses in property, and considered how those assets were acquired, used or improved, they then have a discretion as to whether contributions made by spouses are assessed as against all property, or on an asset-by-asset basis23, or a two or three pool approach24, or a hybrid of those approaches.

17

An inheritance is likely to be regarded as a contribution by the party for whose benefit it was bequeathed25. It also bears mentioning that the task of assessing contributions is less mathematical and more holistic.26 This becomes increasingly important where contributions other than financial contributions are prominent.

Factors such as whether the relationship produced children, and the length of the relationship, to name a few, can be critical. This is to ensure that contributions other than financial contributions, are given substantive and not token weight in the context of the relationship as a whole.

One of the earliest decisions of a family law court concerning a late inheritance is the 1978 decision of James27. It involved a 13-year marriage which produced 2 children. Shortly after separation, the husband inherited farming land from his father. Of substantial relevance was that during the marriage both spouses worked on this farming land in their own way, and made their respective contributions on the basis of an expectation to inherit the property “in the fullness of time”. At first instance, it was found that but for the parties having dependent children, the wife would not have been entitled to any portion of the husband’s inheritance. On this aspect of the findings, the Full Court took the view that proper consideration had not been given, amongst other circumstances, to the contributions the wife made during the marriage.28 Overzealous focus on the lateness of an inheritance, and on who receives the inheritance, can lead to inadequate 18 | BRIEF OCTOBER 2018

consideration of other contributions made prior to the receipt of the inheritance.29 Comments by Cronin J, in a first-instance decision in 2012, are particularly apt in this regard: Isolating or quarantining an inheritance must be cautiously done to ensure that earlier important contributions to the family in particular, are not ignored. As will be seen…there is a distinct possibility of that happening if the focus is entirely on the assets received by the wife from inheritances and gifts.30 Also apt is the “gold bar” analogy used

by Kay J in the case of Aleksovski31, as follows: 90. …The Judge must weigh up various areas of contribution. In a short marriage, significant weight might be given to a large capital contribution. In a long marriage, other factors often assume great significance and ought not be left almost unseen by eyes dazzled by the magnitude of recently acquired capital. A party may enter a marriage with a gold bar which sits in a bank vault for the entirety of the marriage. For 20 years the parties each strive for their mutual support and at the end of the 20 year marriage, they have the gold bar. In another scenario they enter the marriage with nothing, they strive for 20 years and on the last day the wife inherits a gold bar. In my view it matters little

when the gold bar entered the relationship. What is important is to somehow give a reasonable value to all of the elements that go to making up the entirety of the marriage relationship. Just as early capital contribution is diminished by subsequent events during the marriage, late capital contribution which leads to an accelerated improvement in the value of the assets of the parties may also be given something less than directly proportional weight because of those other elements. (emphasis added) One of the arguments by the wife’s counsel in Aleksovski, was that monies received by the wife from her motorvehicle accident was “peculiarly personal” to the wife. It is not difficult to imagine such an argument lending itself to a case involving a late inheritance. Kay J emphasised the following as to the “peculiarly personal” argument: 93. I am not entirely convinced that the analogies used by his Honour are all apposite. The moneys are peculiarly personal to the recipient.

This is almost always true of inheritances although often the parties both change their spending and saving habits in anticipation of an inheritance. The parties may both work a farm property or in a business owned by the parent of one spouse in anticipation of eventually inheriting it and in so doing may forgo entitlements such as wages (see James v James (1978) FLC

90-487). A lottery win is of a different dimension. ... With damages for pain and suffering or with an inheritance, the other s 79 considerations required to alter the ownership of that fund need to be all the more powerful before it could be said to be just and equitable and proper to make such an order.

Aleksovski was a 1996 decision of the Full Court which concerned compensation, not after-acquired inheritance, but is nonetheless relevant. It involved an 18-year marriage. The wife received $143,000 in compensation as a result of a motor-vehicle accident shortly before separation. The Full Court found error in the trial judge giving full weight to the wife’s contributions (including the compensation received by her), and failing to give proper weight to those of the husband. The decision of the trial judge to order the wife to, in effect, receive the full benefit of the property purchased from her compensation monies and also to retain 75% of the matrimonial home resulted in a significant imbalance in the property each party would have retained, and this imbalance was overlooked, leading to an unfair result.

In 2000, the Full Court delivered the

decision known as Farmer and Bramley32.

It concerned lottery winnings received after separation. The parties commenced living together in 1983, married in 1984, separated in January 1995, and divorced in April 1997. There was one child of the marriage, and both parties also had children from prior relationships.

After separation but before the parties divorced, the husband won $5 million in lottery – this was the only asset of significance. The trial judge awarded the wife $750,000 due to her contributions made in her role as home-maker and parent during the relationship. It was also significant that the wife’s contributions during the relationship were found to have been made more arduous due to the husband’s heroin addiction. The husband appealed. The majority of the Full Court found no merit in the appeal. Finn J made the following observation (particularly apt for this article): 57. Secondly, if it was to be determined that a majority of the community considered that one spouse should, as a general rule, have no entitlement to share in property either by good fortune or good management acquired after separation by the other spouse,

then the Act would need to be amended to make this clear. As the Act currently stands, the jurisdiction conferred by s.79(1) to alter the interests of spouses in property extends without limitation to all the property which either spouse is entitled.

In the Full Court’s 2010 decision of Polonius33, the parties commenced cohabitation in 1975, married in 1980 and separated in 1997. The marriage resulted in 2 children. Around separation, the husband was on the verge of being made bankrupt. Shortly before separation, the wife received $10,366. Shortly after separation, the wife received $281,000.

Both amounts were received by way of inheritance. The wife applied part of these funds to assist the husband in his bankruptcy proceedings, and by doing so, the husband’s interest in the family home was saved from being divested.

The balance of the inheritance was used by the wife to fund the purchase of two properties, pay expenses related to bankruptcy proceedings, and pay for household expenses. Notably, the parties lived together after separation, for 10 years. Given the wife’s extensive contribution, it was decided the husband

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did not have anything to do with [the inheritance]. You might say that is right. There are lots of factual things that might emerge; he did not have any debts when he left home because she had been supporting him – had he, the value of his inheritance might have been reduced by the debts. You just cannot assume that this little treasure box was something to which no contribution had been made. In this myriad of potential factual analysis that the court has to undertake, we submit that it has exercised its discretion appropriately”.36

should receive virtually none of the assets. This was held by the Full Court to be an error, as it effectively ignored the contributions of the husband, both before and after separation.

In Singerson, like in Polonius, the wife was found to have contributed significantly towards building up the assets of the relationship and towards the care of the 2 children of the relationship. The relationship spanned 15 years. By the time the inheritance was received (around separation), the bulk of the various contributions identified had already been made by the wife. Following separation, the wife was found to have made significant contributions towards the children. Looking forwards, the trial judge could not ignore that the wife would have the children primarily in her care for a further 5 – 8 years. Several errors were identified by the Full Court as having been made in the approach taken by the trial judge in assessing contributions.

In re-exercising its discretion, the Full Court decided it was appropriate to assess contributions as against all of the property (including the inheritance), and effectively gave significant weight to the wife’s contributions made towards the children during the entire relationship. On this aspect of the findings, the Full Court observed that the trial judge had “misled himself…in identifying only the four years between separation and trial as being the appropriate time upon which to assess contributions to the inheritance rather than across their 15 year relationship”34.

Subsequently the husband in Singerson 20 | BRIEF OCTOBER 2018

made a Special Leave Application to the High Court. The Special Leave Application, at its essence, could be said to have agitated the very argument Finn J in Farmer expressed disapproval of: that special rules or guidelines are necessary for cases involving after-acquired property. The crux of the Application, in terms of an asserted error of law, was that the wife made no contribution towards the inheritance, and therefore, it was erroneous to effectively treat it in the same manner as all of the other assets (to which the parties had made their respective contributions). In developing that argument further, the husband’s counsel expressed the error made, to be treating the wife’s welfare contributions (towards the children and the family) prior to receipt of the inheritance, as a contribution towards the inheritance.

During the course of exchanges between bench and bar during the Special Leave hearing, French CJ cautioned against giving overzealous attention to “ascertainment of contributions”, and against creating “rules out of what are guidelines appropriate to particular cases”35.

The wife’s counsel submitted that no error had been demonstrated by the Full Court and that no further appellate guidance was necessary in relation to afteracquired property. As counsel for the wife submitted, in relation to the question of the assessment of contributions made prior to the receipt of an inheritance: …The husband in this case obviously feels a great injustice that his wife

On 8 August 2018, the Full Court delivered a decision known as Hurst & Hurst37. In Hurst, the marriage was of 38 years duration. The marriage produced 4 children. One of the children was under 18 years of age and lived with the wife at the time of trial. One of the adult children also lived with the wife and required ongoing care which was provided by the wife (this arrangement was at the time anticipated to continue into the future).

The husband had a modest income, and the wife relied on Centrelink benefits.

Relevantly, the husband received a number of inheritances and gifts throughout the marriage. The final of the inheritances left to him, was received in 2003, being a block of vacant land. It was valued at $400,000 at the time it was received, but increased in value to $1.82 million by the time of trial. The block of vacant land was unencumbered and only rates and slashing costs were paid on an ongoing basis during the marriage.

The net value of property available for distribution at the time of trial was $2.66 million. Although the inheritance was not received late in the marriage, this case is relevant because the assessment of contributions and each spouse’ future needs, was the primary issue.

At first instance, the trial judge found that each spouse worked very hard in their respective roles during their lengthy marriage. However, the trial judge made a separate finding as regards contributions in relation to the inheritance, to which it was determined as follows: It cannot be said that the wife has made any contribution to this property other than indirectly by the rates and slashing costs being paid.38 No evidence was put forward at the time of trial as to whether any factors other than market forces had led to the increase in value of the vacant block of land. The trial judge, in the author’s view, perhaps to give recognition and adequate weight to the husband’s

contribution given the value of the block of land at trial, assessed the division of property on the basis of contributions as 72.5 / 27.5 % in favour of the husband.

The Full Court found this to be an error because such a conclusion was not open to make given the available evidence.

In finding that only indirect financial contributions had been made by the wife towards the inheritance, the other types of contributions made both prior to and after the receipt of the inheritance, were effectively quarantined from applying to the inheritance. This error, it was said by the Full Court, “wreaks an injustice upon the wife”.39 Additionally, the Full Court found the trial judge had effectively failed to properly and sufficiently consider several relevant factors in assessing the future needs of the spouses. The errors in failing to properly assess contributions and factors affecting each spouse’ needs in the future, were critical in the Full Court moving to allow the appeal and remitting it for further re-hearing.

CONCLUSION Anecdotal experience continues to show that clients are often disbelieving, when confronted with legal advice by their family lawyer, that their inheritance from Great Aunt Betsy (who their less than beloved ex-spouse or partner barely knew) may be the subject of a claim for property settlement at the end of a relationship. Family lawyers are tasked with the difficult role of endeavouring to explain to those clients how this has come to pass. The provision of that legal advice is often met in equal measures by expressions of exasperation from clients, queries about how that case law can be just or fair, and lay-person arguments with the lawyer about the logic of it all.

In the author’s view an inheritance, or what is left of it, existing at the time of trial will not be excluded from consideration as

part of the ‘property’, when a family law court is to determine what, if any, order for alteration of property interests should be made.

A late inheritance is likely to be considered as but one fact of contribution to be assessed along with all other contributions made during the whole of the relationship. In appropriate cases, it is open to a court to consider that the receipt of a late inheritance by one party, be treated highly favourably in the assessment of contributions for the recipient spouse. On the other hand, it is also open to the court to treat a late inheritance as simply another asset of the parties, and then assess all types of contributions of both spouses throughout the whole of the relationship as against all available property and without distinction between categories of property. Taking a fixed position, in family law litigation, that one’s inheritance received late in a relationship, be attributed solely to them, ought to be a considered decision made after having considered, amongst other matters, the commerciality of proceeding to trial, the possible final outcomes, and the possibility of an appeal.

majority refer to the observations made in the earlier High Court decision of R v Watson; Ex parte Armstrong (1976) 136 CLR 248.

8 In the Marriage Of: Anthony Milton Bonnici Appellant/ Husband and Jacqueline Angela Bonnici Respondent/Wife [1991] FamCA 86; (1992) FLC 92-272 9 See for examples: Calvin & McTier [2017] FamCAFC 125; Holland & Holland [2017] FamCAFC 166; Madden v Madden [2006] FLC 93-294; [2006] FamCA 1391; Nikas & Anthis [2015] FCCA 1871 10 See for examples: Bishop & Bishop [2013] FamCAFC 138; Singerson (refer Note 5 above); Karllsson v Karllsson [2018] FamCA 305; Nikas (refer Note 9 above) 11 Singerson (refer Note 5 above); Calvin (refer Note 9 above) 12 See Holland (refer Note 9 above) at paragraph 17; See also Cobb & Cobb [2015] FCCA 2653 for an example of a decision where such an argument was made.

13 See the reasoning at paragraph 49 of Holland (refer Note 9 above) 14 Bishop (refer Note 10 above) 15 Calvin & McTier (refer Note 9 above) 16 Holland (refer Note 9 above) 17 Paragraph 28 of Bishop (refer Note 10 above); Surprisingly perhaps, no reference was made to the Stanford decision.

18 Calvin & McTier (refer Note 9 above) 19 At paragraph 25 (refer Note 9 above); The Full Court made extensive reference to relevant parts of the Stanford decision (refer Note 1 above) including reference to the requirement for all existing legal and equitable interests in property, to be identified.

20 Holland (refer Note 9 above) 21 Holland (refer Note 9 above) at paragraph 25 22 Holland (refer Note 9 above) at paragraph 21 23 Norbis v Norbis (1986) 161 CLR 513 24 Coghlan v Coghlan (2005) FLC 93-220; For an example of this approach in relation to a late inheritance, see Marcel & Garrigan [2013] FamCAFC 94 25 Kessey and Kessey (1994) FLC 92-495 26 Dickons v Dickons (2012) 50 Fam LR 244

Notes: 1 Section 79(2) of the Family Law Act 1975 (Commonwealth) (“FLA”); s205ZG(3) of the Family Court Act 1997 (WA) (“FCA”). The power to make a property settlement order is contained in s79 of the FLA, and for de facto relationships in Western Australia, in s205ZG of the FCA. The Family Court of Western Australia exercises both federal jurisdiction and non-federal jurisdiction. In its nonfederal jurisdiction, it can hear and decide, amongst other matters, applications, in relation to de facto relationships, for orders with respect to property and maintenance: s36(4) of FCA. The FCA contains provisions which mirror the FLA for the most part in relation to children, property settlement and maintenance.

2 Stanford v Stanford (2012) 247 CLR 108 3 In most cases this requirement is “readily satisfied” because the parties’ relationship is at an end and so common use of property will cease: Stanford (Note 2 above) at paragraph 42.

4 These factors are listed in s75(2) of the FLA; s205ZD(3) of the FCA.

27 In the Marriage of James, R.D. and James, M.O. (1978) FLC 90-487 28 In the Marriage of James (refer Note 27 above) at paragraph 29 29 See for example: Figgins & Figgins (2002) FLC 93-122; (2002) 29 Fam LR 544 30 Sinclair & Sinclair [2012] FamCA 388 31 Between: Vlade Aleksovski Appellant/Husband and Gail Aleksovski Respondent/Wife [1996] FamCA 111 32 [2000] FamCA 1615 33 Polonius v York [2010] FamCAFC 228 34 Paragraph 65 of Singerson (refer Note 5 above) 35 Singerson & Joans [2015] HCATrans 195 36 Singerson (refer Note 35 above) 37 [2018] FamCAFC 146 38 Hurst (refer note 37 above) at paragraph 16 39 Hurst (refer note 37 above) at paragraph 32

5 [2014] FamCAFC 238 6 Refer Note 2 above 7 Stanford (note 2 above), at paragraph 38 where the

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11 Benefits of CPD Freedom

by Fiona Halsey Fiona Halsey, Director, Halseys and Law Society CPD Freedom Member

CPD Freedom is exclusive to Law Society members and allows you to attend unlimited Law Society seminars and webinars for one annual fee of just $600 (or $300 for Restricted Practitioner and CLC members)*.

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1. The ability to hear from the leaders of the profession Judges, registrars, silks, senior commercial and litigation practitioners, and academics all present or chair seminars and workshops for the Law Society. The Law Society often engages practitioners who have worked in an important case to present a seminar. An excellent example of this was a recent seminar on defamation law.

The presenters for this seminar were counsel from the two highest profile defamation cases of recent times, Rebel Wilson v Bauer Media, and Rayney. The speakers were all counsel who actually appeared in those cases, being eminent Victorian silk Dr Matthew Collins QC, Martin Bennett (the session chair), Rachael Young and Jason MacLaurin.

2. Inspiration to improve Law can be a tough profession, and it is great to take time to effectively recharge yourself. Holidays are important, but so is listening to skilful practitioners who encourage you to improve.

3. Actual improvement High quality CPD helps all of us (and especially less experienced practitioners) to develop skills and knowledge to excel in our work.

4. Intellectual interest Many of us studied law because we were intellectually interested in law. It is possible, especially in a commercial practice, to feel that your work has become largely administrative, and a matter of drafting never-ending contracts. Attending high-quality CPD can help reignite your enjoyment of the practice of law.

5. Cost effective Law Society CPD is very cost effective, especially if you take advantage of the new CPD Freedom. For a few hundred dollars, you have access to an enormous range of interesting and timely information.

6. Practical and relevant Law Society CPD has significant advantages over eastern state providers because the programs are developed by local lawyers. This means that the issues relevant and specific to Western Australia are covered in important detail. So much of the work we do is state specific. Many academic texts are eastern state centric. There are areas of the law where there is little written commentary and Law Society CPD provides the only accessible commentary.

know who practices in that area and are able to select the right expert to present a seminar or workshop on their behalf. Because the Law Society is more interested in the dissemination of information rather than profitability, it covers even topics which may only affect a small proportion of total practitioners.

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23

Older People’s Rights Service: A Specialist Elder Abuse Service in WA

By Fran Ottolinii, Senior Lawyer, Northern Suburbs Community Legal Centre

This article is adapted from a paper presented at a Law Society CPD seminar on 3 November 2017

The Older People’s Right Service (OPRS) is a specialised legal unit run at Northern Suburbs Community Legal Centre Inc (Northern Suburbs).

Northern Suburbs is one of over 30 community legal services in WA and one of over 200 in Australia, which provide free or low cost legal service to disadvantaged members of the community.

Northern Suburbs operates three offices in the northern metropolitan area. Although it is a generalist practice, it offers three specialised law units: Residential Tenancy, the Women’s Resource and Engagement Network (WREN), which is a specialist domestic violence unit under a health/justice partnership, and OPRS, which is a specialist multifaceted service for older people experiencing or at risk of elder abuse, and the only one of its kind in WA. This article will only highlight a small part of OPRS involvement in the area of elder abuse, and I will give our case studies by way of evidence of the work we do.

I also hope to expose some of the challenges and limitations that lawyers face when assisting older clients involved in issues of elder abuse.

However, before looking at some of 24 | BRIEF OCTOBER 2018

the complexities of elder abuse, I will comment on some contentious terms.

In 2007, the Commonwealth Government in its report, ‘Older People and the Law’ ii used the term ‘older Australians’ to refer to persons aged 65 years or older, and 50 years or older for indigenous Australians. However, the term ‘older’ or ‘elder’ can be contentious. Just ask any

baby boomer! In an effort to overcome the contention, OPRS uses the terms in the context of a relationship in which there is an older and a younger party.

The term ‘abuse’ is also not well received by older people. One of OPRS clients blackened out the word because she didn’t want her family to know that she was being abused. Like other stages of family and domestic violence, elder abuse may take some time before it is recognised for what it is.

What is Elder Abuse?

Presently, there is no legal definition of elder abuse, and OPRS calls attention to the need for a national legal definition.

Furthermore, OPRS advocates that any national definition should recognise that elder abuse arises in relationships of trust, as well as in those akin in family and domestic violence, where there is domination and fear. For this reason, OPRS also advocates that the onus of proof of ‘harm’ (broadly defined) should shift from the older person to

or psychological abuse, social abuse, physical abuse, sexual abuse or neglect”.

In OPRS experience, the WHO definition and the APEA adaptation of the definition do not adequately cover informal relationships where the primary element is fear and control, and OPRS contend that elder abuse is the closing stage in the cycle of family violence.

By way of example, see Case Study 1.

Sylvia, Elder Abuse or Family Violence – Case Study 1 Sylvia (now deceased) was one of the OPRS first clients. She had been a victim of domestic violence as a child and throughout her married life. Her husband was an alcoholic and alcohol and drugs adversely affected her four children.

When we met with Sylvia, she was a very frail 70-year-old woman who had given up on life. She carried an oxygen supply wherever she went, she had a brain aneurism, and her diabetes could not be stabilised. She remained in an abusive relationship with the only child not estranged from her.

the entrusted or dominant person in the relationship.

The recent Australian Law Reform Commission report on Elder Abuseiii recommended the use of the World Health Organisation (WHO) definition of elder abuse in its entirety. That being – …a single, or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust, which causes harm or distress to an older person.iv Presently, OPRS uses the definition promoted by the WA Alliance for the Prevention of Elder Abuse (APEA) .v It is printed in the APEA Elder Abuse Protocolvi and it is an adaptation of the WHO definition, where elder abuse is – …any act which causes harm to an older person and occurs within an informal relationship of trust such as family or friends.

Furthermore, elder abuse – …can take many forms, including financial or material abuse, emotional

After Sylvia’s husband died, she down sized to a small unit in a retirement complex. For the first time in her life, she felt some tranquillity, but it was short lived. Unannounced and unexpected, her son Dave appeared at the door and without saying a word he sat on her couch and fell asleep.

Dave had come straight from a Family Court hearing where, as he said, he lost the lot.

The real motive for visiting Sylvia was to force her to sell her unit and to give him the money to use as a deposit on a house for himself. Dave did not respect that Sylvia wanted to remain in her home and that it was not in her interest to sell it. Sylvia feared that if she didn’t do what Dave wanted, he would physically harm her. Dave threatened her with burning down the house if she “…called the cops” on him, and to show that he meant it, he set fire to his bag in her lounge room.

Sylvia sold her unit for $79,000.00.

With the money, Dave purchased a three-bedroom house away from Sylvia’s friends and familiar surroundings. Sylvia’s name was included to the certificate of title, and her name added to the mortgage contract.

Sylvia’s GP referred her to the OPRS. The GP who was aware of Sylvia’s disadvantaged position, expressed grave concern about her emotional state of mind, which raised the risk of the aneurism bursting.

The OPRS social worker made immediate provisions for Sylvia’s physical safety, and the case was managed as a family violence matter, a multi-disciplinary and integrated approach. However, women’s refuges in Perth do not provide suitable accommodation to senior women, and Sylvia was ineligible for public housing because of her legal interest in a house. In addition, Sylvia’s complex health issues required close monitoring, and the OPRS social worker broke new ground by working directly with the relevant medical staff to achieve the best outcome for her.

Sylvia’s case brought to light the value of a wrap-around service required by clients in complex elder abuse matters.

The OPRS offer this specialised service to such clients.

The predominant problem with the WHO (and APEA) definition is that the onus of proving harm appears to rest on the vulnerable party, who (like in Sylvia case) may fear, or protect, the dominant or trusted party. OPRS has found that a notable number of aggrieved older clients seek our assistance in the hope that we can improve the life of the other party, so that their own life might improve. This stands true whether the older person is in a relationship of trust or one of dominance.

Who are OPRS senior clients?

Our clients do not fit comfortably into one homogeneous group. However, for convenience, we categorise them into three broad categories.

Firstly, there are those clients who effectively use legal and other services to their best advantage. These older people are no different to anyone else seeking legal assistance to resolve legal issues.

Secondly, a small group of older people referred to us have issues of legal incapacity, and the Office of the Public Advocate (OPA) is best placed to assist them.

Thirdly, the majority of older clients are considered capable of upholding their rights and freedoms, but due to their position within the family or close relationship, they are unable (and 25

sometimes choose not) to protect their own interests. That is, they are neither completely incapacitated nor completely safe, to make their own decisions. The older people in this group are colloquially referred to as being in the ‘grey zone’ because they are deemed legally capable but highly vulnerable to elder abuse.

This group is the mainstay of OPRS casework.

Although the test for legal capacity, in every case, is time and subject specific,vii a general approach was described in 1954 in Gibbons v Wright where it was said that the party must have – …such soundness of mind as to be capable of understanding the general nature of what he is doing by his participation.viii The High Court proceeded to explain that – Ordinarily the nature of the transaction means…the general purport of the instrument; but in some cases it may mean the effect of the wider transaction, which the instrument is a means of carrying out.ix This means that, when our older (capable but vulnerable) clients enter into a transaction or execute a document, they must clearly understand the specific matter at hand and the possible effects of their decision on that matter. That is, capacity relates to their ability to freely consent to and choose a course of action, once fully and properly advised.

OPRS has found that many of our clients do have the requisite soundness of mind to understand what is going on, and even appreciate the possible devastating effects of their action, but because of their disadvantaged position within the relationship, they are not free to make the decisions they would want to make.

Their exercise of free will is constrained and as a result, they will often give up and lose out.

By way of example, see Case Study 2.

Dorothy, Capable but Vulnerable – Case Study 2 Dorothy is 90 years old and is a low-income self-funded retiree who lives alone in her sprawling Wembley house. She has multiple medical problems, in addition to poor hearing and macular degeneration.

Her daughter, Jill is 65 years old and lives within walking distance from her mother. Her son Phillip is 71 years

26 | BRIEF OCTOBER 2018

old, a retired banker, and he lives in Albany. The siblings do not get on well with each other.

Dorothy has an investment property, which is occupied by Jill’s two sons, rent-free. Jill promised to pay the rates and to cover other costs of the property while the boys lived there, but Dorothy has had little money from Jill.

Dorothy also has two investment accounts with the Commonwealth Bank, which now generate her only source of income. She banks at the Floreat branch and has done so for the past 50 years. When her husband was alive, they knew the manager and the counter staff very well, but now things have changed.

Dorothy planned for her future. She updated her will, chose a residential care facility, and appointed Jill as her substitute decision maker under an Enduring Power of Attorney (EPA) and Enduring Power of Guardianship (EPG). She felt confident that she had safeguarded her estate by bringing her EPA into force only if the Tribunal made a declaration of legal incapacity.

Her EPG document clearly nominates her chosen care facility and directed that Jill only make medical decisions with the family GP’s advice.

As Dorothy is frequently hospitalised, she has often asked Jill to bring her household bills and cheque book to the hospital. On one such occasion, Jill allegedly slipped a bank authority form in amongst other documents for Dorothy to sign. Jill then presented the signed authority to a Commonwealth Bank branch in Fremantle, and closed one of Dorothy’s term deposit accounts.

Jill also requested that all bank correspondence regarding the closure be re-directed to her own address.

When Dorothy did not receive the expected notice about the invested money, she made inquiry at the Floreat branch. The bank manager refused to provide assistance, but did inform Dorothy that the account was closed

by Jill as nominee.

At the time Dorothy met with OPRS, she was overwhelmed by emotion and too distraught to convey lucid instructions. Her primary concern was on how she would survive and pay her bills. She was also overwhelmed by shame that Jill (whom she had trusted) could do such a thing to her, and equally distressing was her

fear that Phillip would find out about it.

OPRS also sees a significant number of female clients who are at risk of, or experiencing elder abuse because they are in a relationship of dominance and fear and feel they have no other choice.

Dorothy knew that if she reported the matter to the police or took other action against her, Jill would “… break off with me”. She instructed OPRS to ask the bank to report it, so that Jill couldn’t blame her. But then, retracted the instructions because she didn’t want Jill implicated with the police or the tribunal, as it would affect the family’s good name in the community. Moreover, Dorothy resolutely refused to revoke Jill’s EPA or EPG. Dorothy’s strong emotional dependence on her relationship with Jill, and the shame over Jill’s conduct, constrained her freedom of choice. Moreover, her vulnerability, borne from a position of special disadvantage in the relationship, may well continue to expose her to further risks of elder abuse.

Dorothy’s matter was partly resolved by revoking the bank authority, and putting the bank on notice of her vulnerability and high risk of financial elder abuse.

Dorothy also lodged a complaint with the Financial Ombudsman Service, and she was referred to a will specialist to re-draft her will. The client advocate made inquiry as to whether Dorothy was eligible for a part pension but, she was declined.

A further small but significant change to Dorothy’s life was made when she permitted our client advocate to conference with her community services co-ordinator and her friend next door.

They were made aware of Dorothy’s plight and they kept an eye on her until she was ready to enter residential care.

She also agreed to enter her name on OPRS Seniors Register program.

Given Dorothy as a benchmark, OPRS clients are mainly women aged between 75 and 90 years who reside in the community. For a large number of our female clients, their risk of abuse arises because of the trust placed on family member or friends during a time of grief or medical crisis.

OPRS also sees a significant number of female clients who are at risk of, or experiencing elder abuse because they are in a relationship of dominance and fear and feel they have no other choice.

(See Sylvia’s case) It is interesting to note that our husband and wife cases or ‘couple clients’ are significantly younger; between 65 and 75 years, and their significant vulnerability arises because of trust placed in the 27

other party for security of tenure and future in-house care.

As to the perpetrators, OPRS has found that daughters between the ages of 45 to 65 years make up the largest group.

However, male perpetrators number closely behind their female counterpart, but are often grandsons, or middle age males returning to live at home as in Sylvia’s case.

What are the common forms of elder abuse for OPRS clients?

It is true that elder abuse is part of the cycle of family and domestic violence.

However, it is important to know where ‘domestic violence’ ends and ‘elder abuse’ begins. Primarily, this importance is associated with prevalence and statistical data, but also because the predominant focus of elder abuse is ‘economic loss’ for OPRS clients.

OPRS agrees with current opinion that emotional abuse and financial abuse are the most common forms of elder abuse, and that financial elder abuse from loved ones in position of trust has economic and psychological consequences from which older people cannot fully recover.

Presently, there is no legal definition of financial elder abuse, and again, OPRS has adopted the APEA description, which is – ...the improper use of the older person’s finances or assets.

OPRS considers this to be inadequate, and advocates that for the protection of financial resources of vulnerable older people, the notion of undue influence and unconscionability should form an integral part of any definition of financial elder abuse. In the United States, the Maine Bureau of Financial Institutionsx uses these concepts in their definition of financial abuse.xi More importantly, the inclusion of these concepts may also go some way to addressing the cultural or attitudinal differences regarding the sharing of funds that occurs in some CALD and indigenous communities.

OPRS also agrees with current opinion that financial elder abuse is largely unreported, (and we would add unpunished) and we advocate for urgent law reform in this area.

Against this backdrop, about 85% of OPRS cases have a significant financial abuse component. For convenience, OPRS broadly categorises financial elder abuse cases under three headings.

These are – a. breaches of informal family financial

28 | BRIEF OCTOBER 2018

agreements – commonly referred to as family agreements; b. misuse of powers under an EPA and banking matters; and c. financial hardship imposed by adult children living at home – colloquially termed ‘boomerang kids’.

OPRS has also noted that sibling rivalry, including between stepsiblings, can also give rise to financial elder abuse, and that it causes considerable financial and emotional harm to the older person.

Although, initially the rivalry may appear beneficial to the older person, often the underlying reason for the display of support and affection is to gain financial favour over other siblings.

By way of example, see Case Study 3.

Darco, Sibling Rivalry – Case Study 3 Darco is an immigrant from Croatia.

He came to Australia to work on the Snowy River Scheme. After Darco’s wife died in 2000, he moved to Perth to be close to his three daughters.

He is a self-funded retiree and lives in his own house in Subiaco. Darco’s daughters are all financially well established and his grandchildren are well settled in professional careers, except for his youngest grandson, James.

Darco’s youngest daughter, Franca, who is James mother, told her father that she admired and respected his strong work ethics and she wanted James to emulate him. Franca suggested that James should move in with Darco to help James to remain focused on his university studies. In return, James could help around the house and keep his grandfather company.

Soon after James moved in with Darco, Franca arranged for him to visit a geriatrician and a copy of the geriatrician’s report was attached to Darco’s EPA and EPG. These documents granted plenary financial and guardianship powers to Franca.

Darco suffered a serious fall, and his medical team advised his daughters to consider age care for him. Darco’s daughters agreed to find suitable residential care for him. The hospital social worker also suggested that Darco’s daughters consider making a Tribunal application to safeguard his financial and general welfare because

he was showing considerable shortterm memory loss. Franca revealed Darco’s EPA, EPG, and the medical report, which had been completed some two years earlier.

About six months after Darco entered into residential care, he was referred to OPRS by one of his other grandchildren who had discovered that Darco’s house was in James’ sole name and that the transfer of land document had ‘for love and affection’ as consideration given.

When OPRS took Darco’’s instructions he appeared legally capable of understanding the effect of the transfer document, but did not recall whether he had authorised it.

Moreover, he had no recollection of signing an EPA or EPG document, and he wanted his house back.

In preparation for a Tribunal application, OPRS sought Darco’s medical, geriatric and psychogeriatric reports. However, they were inconclusive and by the time a second psychogeriatric report was completed, Darco’s physical and mental health had significantly declined.

At the tribunal hearing, Franca did not deny that she had completed the transfer of land document and lodged it, but claimed that she had acted under Darco’s instructions at a time when he was fully capable of making such decisions for himself.

She outlined Darco’s reasons for gifting the house to James. Firstly, it was to encourage James to finish his university studies, which James had done. Secondly, James was the only grandchild who did not own a house, and Darco did not want James disadvantaged, particularly after having contributed to it and to Darco’s personal care.

The Tribunal member was satisfied that Franca had not breached her statutory duties under s.107 of the Guardianship and Administration Act 1990 (WA) and that Darco, at the time, had requisite capacity to make his own decisions. As measure of protection, the Tribunal ordered that Franca provide accounts and records annually for auditing.

Darco’s case shows how sibling rivalry can cause financial and emotional harm to a vulnerable parent. It also brings to light the inadequacy of Part 9 of the Guardianship and Administration Act

and that the Tribunal lacks jurisdiction to hear real property matters. Hence, vulnerable older people are further disadvantaged because too often the only response is a court action.

What are family agreements?

We have seen familial parties enter into many different forms of family agreements for many reasons. However, the most common reasons cover mutual benefits of the parties, and older people financially advancing their loved one.

For statistical purposes, OPRS divides family agreement disputes into the following categories: •

granny flats and other asset for care agreements, which involve the transfer of assets in exchange for life accommodation and future care – commonly termed granny flat cases;

•

co-habitation and co-ownership of land;

•

personal interest free loans, and conditional gifts; and

•

guarantees and mortgages, which benefit the other party.

Family agreements usually involve the transfer of real property or other large assets, but the parties seldom seek legal and/or financial advice before entering into the transaction, since the basis of the agreement is trust.

By way of example, see Case Study 4.

Mr and Mrs R, Granny Flat Agreement – Case Study 4 Mrs and Mrs R have two children and five grandchildren in Perth. They sold up and moved to Australia to live with their son Eric.

Mr and Mrs R contributed most of their money towards building a new house and a large granny flat on Eric’s land in one of the hill suburbs (hills property). They lived happily at the hills property, until Eric’s marriage failed.

As part of Eric’s family law property split, he requested and was given ownership of the hills property, on the basis that his parents had life occupancy, and had significantly contributed to the cost of building both houses on the land.

Eric found a new partner. Soon after she went to live with Eric at the hills property, animosity grew between her,

and Mr and Mrs R, until Eric told his parents that the land had been sold and they had to move out.

Eric told his parents that he couldn’t give them any money because it was all tied up in the purchase of his and his partner’s new home.

Mr and Mrs R in their 80’s and still unfamiliar with Australia, had to find urgent accommodation for themselves.

It is our experience that older people use family agreements, which involve assets for accommodation and care, as a future planning tool. However, if these agreements fail, it is usually the older person who suffers significant financial loss.

I will provide one further example, involving the exchange of assets for accommodation and care.

By way of example, see Case Study 5.

Transfer of Property for Life Accommodation and Care – Case Study 5 Delphine, who is 85 years old, takes pride in knowing that she can still look after herself and her lovely home.

She has two children, who often visit her. Her daughter Annette is recently divorced and Annette’s children live overseas. Her son Darren never married.

Annette is Delphine’s nominated carer at Centrelink, and for some time she has been saying that, it is time for Delphine to think about residential care.

Delphine is not adverse to the idea of residential care but feels that the high cost of care will leave little to pass on to her children when she dies. Nevertheless, she has sought information about various care facilities and she even attended a talk given by OPRS. Delphine spoke to Darren about her concerns. Darren said that Delphine didn’t need to go into care, and proposed that he rent out his house and move in to look after her full time.

Annette objected strongly to Darren’s proposal, and made it known to her mother.

Delphine does not like conflict of any kind, but she believed she had found the perfect solution when she asked

both of her children to look after her in her own home.

Annette agreed that she and Daren should rent out their own homes and move back in with mum. Annette also suggested that Delphine should transfer the home to her children so they would be responsible for the overheads and maintenance costs.

Delphine took Annette’s advice and transferred the title to Darren and Annette as tenants in common in equal share. She also notified Centrelink that the house was transferred to her children to look after her for the remainder or her life in her own home. To satisfy the Centrelink granny flat requirements, Annette wrote a statement about the family agreement so that Delphine retained her full pension.

Unfortunately, Delphine’s children could not live under the same roof, and the parties had no set of guidelines to resolve this event.

Annette moved out of the home and soon thereafter, she sold her share to Darren.

Now, Delphine cleans up after Darren without Annette’s help and daily, she feels stressed and anxious about his messy behaviour. However, she will not confront him, but wants things as they were. Delphine would like her house back.

The principle of indefeasibility means that there is no easy or cheap way of getting Delphine’s house title back. Although she has a case in equity (particularly in equitable estoppel) and may protect her interest with a caveat, Delphine does not want to go to court. Furthermore, the emotional trauma Delphine would suffer would make it extremely difficult for her to withstand the rigour of a Supreme Court action.

For Delphine, it was a simple arrangement that she entered into with her children to secure her life accommodation and care.

However, she cannot understand why the law does not provide a simple resolution for the breach of the promise that her children made to her.

Enduring powers of attorney and banking matters The OPRS attributes financial loss by enduring attorneys to both a lack of knowledge of the law in this area, and blatant fraud.

29

There is wide misunderstanding (even amongst lawyers) as to the responsibilities of enduring attorneys who act in the supportive decisionmaking role, and those who act as substitute decision-makers. The issues are further complicated by educational and promotional literature which is either silent or inadequately describes the dual legal powers of an enduring attorney when an EPA comes into force immediately.

Controversially, OPRS believes that EPA documentation should not be freely available. Moreover, bringing an EPA into force only upon the production of a medical report of the principal’s legal incapacity (similar to the EPG document) can remedy many of the present issues, as can an effective system of registration.

Also controversially, OPRS believes that an EPA is not always necessary nor the best future-planning tool for all older people. We advocate that in some cases, such as when an older person suffers a physical infirmity, or has financial involvement in a family or other business, the drafting of an EPA would be advantageous. In these instances, OPRS recommends that the older person receive legal advice from a specialist in this area.

The following case illustrates that EPAs are not always a necessary future planning tool.

Filomena, no need for EPA – Case Study 6: Filomena is aged 91 and still lives independently in her own home. Clara is a part-time nurse and is Filomena’s only child.

Clara is Filomena’s next-of-kin on medical and hospital records, a restricted nominee on Filomena’s bank account, and Filomena’s correspondence nominee at Centrelink. She has set up direct debits for Filomena’s household bills, and she transports Filomena to appointments, outings and shopping, but otherwise she encourages Filomena to keep independent and active in the community.

Some of Filomena’s friends have told her that they have an EPA in case of loss of capacity. Filomena wants one too, because she does not want to burden Clara more than she is already doing. Clara told her mother that she is prepared to apply for a Tribunal order for administration and guardianship if

30 | BRIEF OCTOBER 2018

the need arises. However, Filomena remained concerned, so Clara made an appointment for her mother to see the OPRS lawyer.

OPRS has also found that too often, older people grant power under an EPA to family members or close friends because they are experiencing a crisis, and they often do so without legal advice. OPRS has observed that when older people enter into EPAs during a time of crisis, they not only expose themselves to risks of financial elder abuse, but may also give rise to issues of incapacity.

Boomerang kids You may have heard of the term ‘boomerang kids’ to refer to adult children returning to live with their parents. The term may also be used to cover adult children who have never left home or grandchildren living with grandparents. In such cases, it is not uncommon for the younger person to expose the older person to financial and emotional elder abuse, as they often believe that they have the right to remain for as long as they want, cost-free.

There can be many reasons why an adult child returned to live at home, but OPRS considers the following to be the most common.

• Loss of employment and financial hardship; • Addiction and mental health issues; or • Separation and divorce.

OPRS has observed that when the adult child returns to live at home, the parents generally do not outline the conditions for the stay, and will only confront the issue when they are no longer coping with the intrusion.

Negotiating boundaries for co-habitation, even after the fact, may achieve some success. However, removing an adult child from the family home, when they do not want to go, is not a simple matter. So, how does OPRS help older clients to remove their boomerang kids?

In our experience, it requires a lengthy wrap-around intervention program. But ultimately the heavy hand of the law in the form of a Violence Restraining Order (VRO) is required, and we all know that a VRO severs relationships – it does not build them.

By way of example, see Case Study 7.

A Boomerang Kid – Case Study 7: Elba loves cruising, and when her husband, Edwin, was still alive, they would cruise every six months. MaryJo, their youngest daughter, would move in to housesit.

After Edwin died, Mary-Jo told Elba that she was staying to look after her.

At first Elba appreciated Mary-Jo’s company and they did things that they had never done as mother and daughter. Elba even took Mary-Jo on a cruise. However, Elba had had enough of Mary-Jo, and her drinking friends and asked Mary-Jo to move out.

Mary-Jo bluntly told Elba that she was a stupid and useless old woman who wouldn’t survive a day without help.

At some level, Elba believed this to be true. Her Edwin had always done everything for her. In addition, Elba had suffered a serious fall on her last cruise and now had to use a walking frame.

Elba had another, more recent fall in the middle of the night. She had called out to Mary-Jo, but Mary-Jo was too drunk to be of any assistance, and Elba dragged herself to the telephone to call an ambulance. The hospital social worker referred Elba to OPRS. Over a period of about sixteen months, the client advocate worked with Elba and monitored Elba’s relationship with Mary-Jo. The advocate implemented and co-ordinated a safety plan and advised the local DV policing team about the plan. However, Mary-Jo promptly withdrew the application, informing OPRS that her mother was far too frail to function without her living at home.

The eviction plan was put into place at a strategic point. Elba was instructed to give Mary-Jo a hand written eviction notice at a time the police were asked to make a welfare check. The eviction notice gave Mary-Jo four days to remove herself from the property, but allowed her to return with removalists to remove her bulky items.

On the eve of the eviction date, Elba used a mobile telephone to advise us that Mary-Jo had not moved out. She instructed us to inform the police, and the police removed Mary-Jo under a police order.

Although Elba did not want to take VRO action gainst her daughter, the eviction notice as predicted, did not work and in the end a VRO was the only effective

remedy.

Perhaps we should view this as a good outcome for Elba, because all the emotional and financial abuse stopped once the VRO was in place. However, the cost to Elba, an elderly, frail and ill woman, was in terms of the loss of a relationship with her daughter.

Understanding financial elder abuse from the perspective of OPRS clients Before looking for possible financial elder abuse solutions, we need to understand what it is that capable, but vulnerable older people want. OPRS has found that they generally want to – • maintain family relations, no matter how wayward or dysfunctional their family members might be.

• resolve their adult children’s problems, viewing any improvement in their children’s lives as a direct improvement in their own lives.

• have support from their family and to rely on family members to manage their personal and financial affairs but only when they become unable to do so for themselves.

• have a case/support worker with whom they can establish confidence and trust.

• have their case worker co-ordinate the services that they and their adult children need.

• have quick and simple solutions (to often very complex issues) with minimum input or self-help.

• avoid taking court action against their children or other loved one.

So, where do the solutions lie?

It is clear that OPRS clients value our multi-faceted, wrap-around approach,

which endeavours to accommodate all of their needs. However, this type of holistic service is generally foreign to legal practice.

significant difference to this group of people, OPRS advocates that there is a need for reform across almost all areas of the law.

Although non-legal remedies are the preferred options for OPRS clients, they are not sufficient to stem the growing problem of elder abuse. OPRS believes there is an urgent need to consider new legislation to reform the many areas of the law, which fall short of protecting older people’s rights and freedoms, and for a legal framework, which appropriately recognises their special needs.

However, OPRS believes that law reform is not enough to tackle the many issues of elder abuse, and OPRS calls for a multi-disciplinary, wrap-around response from all requisite government agencies involved with elder abuse issues.

Conclusion As I have endeavoured to point out, OPRS clients fall into the category of legally capable but highly vulnerable to elder abuse. Our case studies show the breadth of issues affecting older people, but also clearly point to the predominance of financial exploitation perpetrated against them. It is on this basis that OPRS advocates for the law to effectively and appropriately respond to the needs of capable but vulnerable older people. And, if we are to make a

Bequests Help Save Cats’ Lives As a charity, Cat Haven relies heavily on the kind donations and bequests of West Australians. We are WA’s premier cat welfare organisation, accepting over 6500 cats a year and rehoming as many as possible.

We can assure your clients that their cat will be looked after and rehomed if they are left behind if a bequest is

NOTES: i

Fran Ottolini is a senior lawyer at Northern Suburbs Community Legal Centre, located at 10 Cobbler Place Mirrabooka WA. She runs the elder abuse program under the Older Peopled Rights Service. She may be contacted on (08) 9440 1663, email: fran.ottolini@ nsclegal.org.au

ii

House of Representatives Standing Committee on Legal and Constitutional affairs, Canberra 2007

iii

Elder Abuse – A National Legal Response, May 2017

iv

World Health Organisation, The Toronto Declaration on the Global Prevention of Elder Abuse (2002)

v

Established in 2005 to promote a whole of government policy framework that values and supports the rights of older people.

vi

Guidelines for Action, December 2013

vii

Gibbons v Wright (1954) 91 CLR 423 at 437

viii

(1954) 91 CLR 423 at 437-38

ix

Ibid

x

USA government body which supervises all statechartered financial institutions

xi

“when a person illegally or improperly uses the resources of an incapacitated or dependant adult for the profit or advantage of someone other than the adult.”

Please Donate, Adopt Foster, Bequeath, Volunteer

made to Cat Haven. By suggesting and guiding your clients on how to bequeath a gift, you will also be providing much needed support for the homeless cats of Perth.

For more information or a brochure, go to www.cathaven.com.au or call Chandra Woodley on 9442 3600.

31

Intestacy Law Reform in Western Australia

By John Hockley, Barrister, Francis Burt Chambers

Introduction Reform of the intestacy provisions of the Administration Act 1903 (WA) is long overdue in Western Australia. In 1988, when commenting on the then present unsatisfactory state of the succession laws in WA, the Western Australian Law Reform Commission said: Much of the present law in this area in Western Australia is both archaic and of quite unjustifiable technicality.

Every other Australian State and Territory has changed their laws on intestacy in recent years either as a recognition of the need to update these laws or a part of the Uniform Succession Law Project.

On Wednesday 27 June 2018, the Leader of the House, on behalf of the Attorney-General, Mr. John Quigley, MLA, introduced into Parliament a Bill to reform the intestacy laws in Western Australia. The Bill is called the Administration Amendment Bill 2018.

The Administration Act 1903, in sections 12-17, covers what happens when a person dies intestate or without a will or omits some property from their will.

The intestacy provisions were last amended in 1982. The current laws do not make sufficient provision for a surviving spouse of an intestate.

Approximately one quarter of the 60007000 deaths in Western Australia per year involve the intestacy provisions.

A person can forget to make a will, or forget to update their will after a divorce. A person can forget to include some property in their will. Many young people who are high risk-takers do not have a will. The estates of many of the people who commit suicide fall under the intestacy provisions.

Many spouses and families in Western Australia will be beneficially affected by the proposed changes. The AttorneyGeneral, Mr John Quigley must be

32 | BRIEF OCTOBER 2018

commended for recognising the injustice of the existing intestacy provisions and acting promptly to remedy them very soon after election to Government.

Proposed Changes

Understanding the New Intestacy Provisions

The declared sum is the sum the Minister has declared to apply for that item under an order.

The intestacy provisions are primarily found in section 14 Entitlements on intestacy in subsection (1) that is, subject to section 15 (De facto partners and distribution in intestacy), where a person dies leaving intestate property, it is distributed according to the entitlements set out in the Table below subsection (1).

Whole or Partial Intestacy A person can die wholly intestate if they die without a valid will. A partial intestacy arises if the deceased omits one or more items of property from their will. For instance, if a person omits to include in their will, their interest in the family’s “holiday residence” or “bolt hole”.

Statutory Legacy or Declared Sum Under the former legislation the surviving spouse of the intestate received a statutory legacy of $50,000 and one third of the estate. The children of the deceased intestate share equally the remaining two thirds of the estate.

The Statutory Legacy in Western Australia could only be altered by legislation.

In other all other Australian States and Territories the Statutory Legacy has increased in recent years. For example, in New South Wales the statutory legacy has been increased to $250,000 but in South Australia the Statutory Legacy has been increased only to $100,000.

This sum is indexed, usually subject to an index, such as. The CPI index and adjusted by regulation.

Under the new legislation the statutory legacy changes its name to the declared sum.

An order means the order made by the Minister under section 14A (2).

A specified item specified item means any of the following items, the monetary amounts ($ amounts) listed in the Table. a) item 2 (a); and (b) (each occurrence); (original sum s14A (1) (a) $435,000); [formerly $50,000]. b) item 3 (a); and (b) (each occurrence); (original sum s14A (1) (b) $650,000); [formerly $75,000]. c) item 3(b) (i) (A) and (B); (original sum s14A (1) (c) 52,000); [formerly $6,000]. d) item 6 (a); and (b) (each occurrence); (original sum s14A (1) (d) $52,000); [formerly $6,000].

Under section 14A (2), the Minister may make an order declaring for each specified item, the sum that is to apply for that item.

Under section 14A (3), a sum declared by the Minister in an order must be the amount in dollars determined by the following formula rounded to the nearest $500.

S = T x _E_______ 1632.10

Where:S is the sum that is to apply for a specified item, before rounding to the nearest $500.

T is the original sum for that specified item.

E is the estimate of the average

weekly earnings of full-time adult employees in Australia most recently published by the Australian Statistician as an original estimate.

Under section 14A (4) an order is subsidiary legislation for the purposes of the Interpretation Act 1984.

Pursuant to section 14A (5) the Interpretation Act 1984 section 42 applies to an order as if the order were regulations.

Innovative Use of Average Weekly Earnings The use of Average Weekly Earnings to index the amounts in the intestacy provisions is an innovative use of this statistic calculated twice a year by the Commonwealth Statistician. The sum $1,632.10 is the sum calculated in May 2018 just before the Bill was introduced into Parliament on 22 June 2018.

This formula comes from the Defamation Act (2005), an Act that Government members in the new Labor Government had some familiarity with in recent times.

The Previous Liberal Government had drafted nine drafts of this bill prepared by Parliamentary Counsel. Seven of those drafts used the median house price in Perth as the statistic. The last two drafts used a fixed monetary amount that was to be indexed. Unfortunately, none of the drafts obtained the support of the Party Room and the result was that no Administration Amendment Bill was tabled in State Parliament before it was prorogued before the last State election.

The use of Average Weekly Earnings to index the amounts in the intestacy provisions fell between the amounts in draft Bills using the median house price in Perth and the fixed monetary amounts in earlier drafts of the Administration Amendment Bill.

Statutory Legacy/Declared Sum increased significantly and indexed to ‘average wages” and changed by regulation The result of the application of the above formulae is that under subsection (4) the $50,000 statutory legacy is increased in Item 2(b) to $435,000 and the $75,000 on Item 3(b) is increased to $650,000. The new sums of $435,000 and $650,000 are indexed to ‘average wages’ and changed by regulation and not legislation.

Subsection (4) reads: “(4) Where the intestate dies leaving a husband or wife who is entitled to-

a) The sum of $435,000 mentioned in item 2(b) of the Table (or if there is a declared sum for item 2, that sum); or b) The sum of $650,000 mentioned in item 3(b) of the Table, (or if there is a declared sum for item 3(a) and (b), that sum).”

The increase in the statutory legacy from $50,000 not indexed, to $435,000 indexed, where there are issue, especially issue of a prior marriage of the intestate, is an enormous benefit to the surviving spouse as it gives her or him greater equity in the matrimonial home.

This increased equity may be enough, in some cases, to obtain the whole of the matrimonial home. If not, the increased equity can be used to borrow money to ‘buy-out’ the children of a first marriage who, under the Table in Item 2(b), obtain two thirds of the residue of the estate.

The change may reduce the number of Family Provision actions by widows of intestates who commence an action to obtain further provision from their former spouse’s estate so that they can obtain a greater share or all of the former matrimonial home from the children of the spouse’s former marriage or de facto relationship. This reasoning also applies to the increase in the statutory legacy from $75,000 not indexed to $650,000 indexed, to enable the surviving spouse where there is no issue to buy-out: parents, brothers or sisters or the children of deceased brothers and sisters of the intestate under the Table in Item 3(b) (i) or (ii).

Increased Amounts for Parents of the Intestate The Parliament has recognised that many parents assist their children buy homes and if they survive a child who dies intestate they will now receive an increased amount from $6,000 to $52,000 under the Table, Item 3(b)(A) and (B) and under the Table, Item 6(a) and (b).

Recognition that the Amount is indexed The automatic indexation of the declared sum (formerly the statutory legacy), every six months has resulted in the need for a new provision in the Act. After section 14(1) a new section (1B) has been inserted into the Act. Section (1B) states: “(1B) In this section, the declared sum for a specified item applicable to an intestate is the declared sum

for that specified item under the order that has effect at the time the intestate dies (even if that order later ceases to have effect, including if the order ceases to have effect under the Interpretation Act 1984 section 42(2) as applied be section 14A (5).”

When Do The New Provisions Commence?

In order to clarify when the new provisions commence a new section, section (11) has been added after section 14(10).

Section 14(11) states: “(11) The estate of a person who dies intestate as to all or any of their property before the day on which the Administration Amendment Act 2018 section 4 comes into operation is to be distributed as if that section had not come into operation.”

Conclusions The need for reform of the intestacy provisions has been known in Western Australia for many years. The reforms are welcome. They bring the intestacy laws in Western Australia to be more closely aligned but not the same as those in any other Australian State and Territory.

Many people have contributed to these much needed reforms including the WA Law Reform Commission in 1988; members of the legal profession and various committees.

Thanks are also due to the editors and editorial committees of Brief who over the years have kept the need for the reform of the unjust, antiquated intestacy laws before its readers.

Notes: 1

The reform of the intestacy provisions was recognised as far back as 1988. See: WA Law Reform Commission of Western Australia, Report: “The Administration of Assets of the Solvent Estates of Deceased Persons in the Payments of Debts and Legacies”, Project No –Part VII- June 1988”: See also: John Hockley, “The need for succession law reform in WA: please don't die in WA?” (2003) 30(6) Brief 13.

2

The most recent State to change its intestacy provisions was Victoria that amended Part 1A of the Administration and Probate Act 1958 (Vic) increasing the statutory legacy to $451,909, indexed to the CPI, as well as other changes.

3

A project of the Australian Law Reform Commission that was delegated to the Queensland Law Reform Commission to try to obtain uniform succession laws in Australia. The result is that the succession laws in Australian States and Territories are now closer aligned but unfortunately, uniformity was not achieved.

4

Wills Act 1970 (WA) s 14A introduced by the Wills Amendment Act 20017 that commenced on 9 February 2008. No other Australian State of territory has changed their Will Act or equivalent legislation to revoke all wills on divorce.

33

Quirky Cases

The Case of the Bootleg Beer

By John McKechnie, QC

Long ago in a city at the edge of the settled world, lived a man whose profession was making bootleg beer.

For many years, the excise man had tried in vain to catch the bootlegger. Finally; success.

The bootlegger was charged with being in possession of beer on which duty had not been paid.

It was with quiet satisfaction that the excise man attended court, confident of victory.

Alas, his hopes were dashed! After two days of evidence, the Magistrate (as such minor judicial officials were called), dismissed the prosecution.

Now at this time, there were in the city only two lawyers. If one was briefed for the prosecution, the other would be briefed for the defence. They shared one characteristic, both loathed the Magistrate.

It took little persuasion then for the prosecutor to succumb to the excise man's entreaties and lodge an appeal in the Supreme Court of that place.

During the delay between the Magistrate's decision and the appeal, an extraordinary event occurred.

The good burghers of the town rebelled. They rebelled against the supposed tyranny of the Governor, and the cronyism of the entire Supreme Court - all one of him.

It was suggested they leave town on the next boat!

And so they did.

Now of course there was a problem. There was no Judge and cases were banking up.

Wise bureaucrats found an elegant solution. As it was not known how the turmoil would end, the appointment of a new Judge might be precipitate.

So, a Deputy Judge was appointed.

Thus it was that the appeal came on before the Deputy Judge. He was astonished at the faulty

34 | BRIEF OCTOBER 2018

reasoning of the Magistrate. Why, the evidence was overwhelming. The Magistrate had got it very wrong. The bootlegger was convicted and severely penalised.

So far in this tale of events far away in time and place, nothing seems out of the ordinary. But like all good tales, there is a twist. The erring Magistrate and the righteous Deputy Judge were one and the same person!

There the matter might have rested but you will remember that the entire bar, both of them, hated the Magistrate - and the Deputy Judge too for that matter.

The lawyer for the bootlegger forthwith appealed to the Highest Court in the Land, many miles away.

As was the custom in those far off days, the Judges dressed magnificently in ornate apparel. Members of the bar dressed more humbly but still in a manner befitting their office.

All day the argument raged about whether the bootlegger in fact possessed duty free beer. Of course not. The Highest Court in the Land was not concerned with such trifles.

No, the important question for the court was simply stated: Can you have a Deputy Judge when you don't have a Judge?

Less than a week later, the answer was known.

"No" said three wise Judges.

"Yes" said two obviously not so wise Judges.

So justice was served (and back in the city far away, so was beer).

[Adapted from Presley v Geraghty [1921] 29 CLR 154].

BOOK REVIEW

Watching Out: Reflections on Justice and Injustice

By Julian Burnside, QC Review by Dr Steven Cohen

Recently, I found myself trolling a Twitter conversation, where a leading liberal online pundit was seething at the mouth because, he said, the Australian government continued to favour energy companies over the protection of the Great Barrier Reef … just the kind of anarchic cronyism one would expect from a Liberal Government!

Although the Twitter thread was a discourse on conservative political policy, its motivation is justice. It is these types of concerns, that Barrister Julian Burnside AO QC considers in his most recent book Watching Out. Burnside, a senior Silk at the Victorian Bar, made his name acting as lead Counsel in Trevorrow v South Australia [2007] SASC 285, the first case in which an Australian Court acknowledged the Stolen Generation’s claim for legal compensation. More famously, Burnside was leading Counsel for the Maritime Union of Australia in the Waterfront Dispute, Australia’s own David and Goliath battle.

It’s cases like these that Burnside analyses in Watching Out. In so doing, his thesis plays out: a denial of basic rights is not compatible with a just society. Here, Burnside seems to declare that there is nothing wrong with being judgmental, as long as it is virtuous

BWA-Ad264 200218.indd 2

and fair, and not simply about sympathy and value.

Watching Out is the sequel to Burnside’s bestselling book, Watching Brief.

Only it’s better; tracing the history of Australia’s legal system from the Magna Carta, through the rigours of Court procedure, Watching Out constructs a powerful argument for incorporating more justice into our legal system.

Each chapter illustrates a facet of the judicial system – from the presumption of innocence to the challenges with Legal Aid and even an examination of the cabrank rule. Rather than simply argue that there is a great chasm between justice and law, Burnside also presents the framework to fix it.

Interestingly, it is the analysis of the cab-rank rule that is the most enthralling chapter. The rule, which prohibits Barristers from incorporating political and ethical allegiances into their practice, ironically became the accidental framework for Burnside’s activism. Despite his current notoriety as a champion of the Left, Burnside confesses to a previous ‘vague distaste’ for the Unions and the Australian Labor Party. This changed in 1998, when, by virtue of the cab-rank rule, Burnside became embroiled in one of the most bitterly fought domestic issues of the

Howard era.

At the heart of the Waterfront Dispute, Burnside explains, was the principle of legality – that the conduct of the powerful must be tempered by the processes of the law. The decision to mediate this power determines whether or not our legal system is successful. He argues that, as a mature democratic society, we must aspire to a legal system that ensures dignity and justice for all, and not just the rich and powerful.

From there, the book traces Australia’s record on injustice: from the Tampa Case and our treatment of asylum seekers, to our laws on euthanasia and the detention of David Hicks. These highly readable narratives are not only fascinating for the personal insights that Burnside affords us, but also in the context of a not-sojust justice system.

In some ways, the book reminds me of Harvard Law Professor’s Michael J. Sandel’s text Justice. In it, Sandel writes, “Justice is inescapably judgmental. A politics emptied of substantive moral engagement makes for an impoverished civic life.”

Burnside wants us to live a meaningful moral life. To do so, we need a meaningful moral justice system. And, as Sandel argues, this requires us to lift our political and legal game.

20/2/18 11:09 am

35

Glencoe

Ex Juris: Travel Tales from the Legal Profession Scotland Edinburgh

Australians are great travelers and lawyers are no different. Each month a reader of Brief tells us about their favourite travel destination.

Billy Connolly once said, “There are two seasons in Scotland – June and winter.” This year’s summer was one of the warmest in recent years (reaching a balmy 27°C on occasion), however by the time the writer visited in August, the climate had settled back into a typically mild but dreich (Scottish word meaning dreary, bleak) late-summer state. But no-one visits Scotland for the weather.

In 2017, travel publisher Rough Guides named Scotland the most beautiful country in the world, saying, “Who can deny that these wild beaches, deep lochs and craggy castles are some of the most wonderful and beautiful sights in the world?” The sheer variety of easily accessible natural landscapes, combined with a deep sense of history, make Scotland a distant (from Australia) but undeniably attractive destination for any traveller.

The writer was based outside Edinburgh, arguably Scotland’s most picturesque city. A visit to Edinburgh Castle is essential. The castle towers over the city atop a volcanic rock formation and provides some of the best views of Edinburgh from its battlements.

Purchase an audio guide when touring the castle for the most comprehensive experience. If you’re interested in military history, set aside a couple of hours to visit the National War Museum of Scotland, which is housed inside the castle walls. Take the opportunity to see the ‘Honours of Scotland’, which date from the 15th and 16th centuries and are the oldest surviving crown jewels in the British Isles.

During August, the population of Edinburgh swells with visitors from all over the world, drawn by the Edinburgh Fringe Festival, the world's largest

36 | BRIEF OCTOBER 2018

arts festival (Perth is now home to the third-largest, behind Adelaide in second place). With thousands of shows, there should be something to suit any taste, but with so many performers (many of whom are relative unknowns) the quality of the acts can be a lottery.

Just an hour’s drive west from Edinburgh, across the ‘Central Belt’, is Glasgow, Scotland’s largest city. Famous for being an industrial powerhouse, particularly in the field of shipbuilding, Glasgow was known as the British Empire’s ‘Second City’. After a period of post-industrial decline, Glasgow has been significantly revitalised. The central river Clyde waterfront has been regenerated and is now a commercial, residential and cultural hub featuring attractions such as the Glasgow Science Centre. Art lovers will enjoy a visit to the Kelvingrove Art Gallery and Museum, built in 1901, which houses notable works including Salvador Dalí’s Christ of Saint John of the Cross. Glasgow is perhaps more ‘rough around the edges’ in parts than the arguably more refined Edinburgh, yet it has its own unique and vibrant charm.

In Scotland the countryside is never far away. One benefit of the frequent rain is the verdant landscapes; travel northwest from Glasgow and you’ll soon find Loch Lomond, which you can explore via

Glasgow

boat cruise – or kayak or water-ski for the more adventurous.

Continue travelling north-west along the A82 road and you’ll come to the magnificent valleys and soaring mountain peaks of Glencoe – the archetypal Scottish Highland landscape. Travelling through Fort William and past Ben Nevis, the highest mountain in the British Isles, you might stop at the quaint town of Fort Augustus, which is built around the Caledonian Canal and provides the southern entry point to Loch Ness.

Further north is Inverness and Culloden, the site of the last pitched battle fought on British soil, in 1746.

Travelling back south through the vast Cairngorms National Park, stop off at the historic town of Perth (from which our State capital derives its name) and the nearby Palace of Scone, the site of coronation ceremonies of Scottish monarchs for centuries. Don’t miss the attractive seaside university town of St Andrews, with its large ruined castle, cathedral and famous golf course, or Stirling, which has its own magnificent castle overlooking the pleasant town.

Scotland is certainly a destination that rewards repeat visits, as this traveller was unable to fit in trips to the Western Isles including Skye, or the north-eastern Grampians or southern Borders regions.

Tell us about your favourite (or not so favourite) destinations and why you travel there. Please send your contributions to brief@lawsocietywa.asn.au

Dr ver's Dog Send your submissions to the Dog via brief@lawsocietywa.asn.au

It is incredible how quickly the year flies by, seemingly with ever increasing velocity. The times when one would prepare and send a letter to a colleague, then to diarise the file for two weeks for a response, are no more. Your Dog recalls a partners’ conference of a large law firm where the debate centred around whether telex was a more reliable means of communication than facsimile!

The old practice where the best man at a wedding would read telegrams from family members unable to attend and scattered around the globe is a distant memory. These days it is more likely than not that some of the invited guests would be scanning Facebook, Twitter, Instagram and the like as the speeches proceed!

Your Dog has recently returned from leave. As indicated in prior columns, for all the beauty and attractions to be found in Europe, Western Australia beats them all.

The saying “a stranger in one’s own city” is so often accurate. I suppose that in one’s own city, in the words of Bruce Springsteen – 'Blood Brothers' – “We lose ourselves in work to do and bills to pay…”, and other daily activities which have the effect of obscuring one’s view, limiting the time one has to enjoy the local environment.

Your Dog hastens to congratulate His Honour Justice Quinlan on his appointment as Chief Justice of Western Australia. The former Chief Justice, His Honour Wayne Martin AC, QC, blazed a trail in procedural reforms in the Courts, so it is likely that will continue.

His Honour’s views as to making access to justice more affordable across the board are close to Your Dog’s heart. As pointed out, acting pro bono is no substitute for affordable legal services.

Your Dog sometimes wonders why discovery and production of documents enjoys such prominence in the judicial and arbitral process, especially where it is usually only a handful of documents that turn out to be relevant.

Perhaps discovery is a refined form of throwing ink at the page, advocated as a way to pass exams! The day of the paperless office may be approaching, but does it come at the expense of careful and precise thought and expression?

An interesting article by Michael Pelly (AFR Legal Editor) recently appeared in the Australian Financial Review (10 August 2018) entitled 'Collective Judgment'. Mr Pelly there reports on studies by Professor Jeremy Gans of the University of Melbourne and James Lee of Kings

College, London, with reference to High Court judgment statistics compiled by Professor Andrew Lynch and Professor George Williams. Mr Pelly cites these statistics as to the way Justices of the High Court have decided on cases where they sat together. This is an analysis by number of judgments and number of assents. It appears that there is a greater degree of consensuality in the Court. Mr Pelly cites a speech by Her Honour Justice Kiefel, titled 'The Individual Judge', in which she said: A long judgment which says more than is necessary is less likely to attract agreement. Neither will a judgment written in the idiosyncratic style of the author, or in florid language from the classics or 19th-century literature. It is better to resist the temptation to quote extensively from literature unless the aim is not to have others join in.

The epitome of a lack of consensuality amongst the Justices of the High Court was the decision in Hepples v Federal Commissioner of Taxation (1992) 173 CLR 492; [1992] 22 ATR 852 where the majority would dismiss an appeal but for discrepant reasons, and each of those reasons was rejected by a majority, differently constituted. Quite where that left taxpayers, lawyers, accountants and the Commissioner of Taxation was never discussed!

Surely consensuality achieves the purpose of determining what the law means and how it is to be applied?

It is pleasing to see that 28 years or so after the government of Western Australia stated that the statutory legacy was manifestly inadequate, and that s 14 of the Administration Act 1903 (WA) required updating, it is soon to be amended. It will now provide for the statutory legacy to be increased with reference to the median house price and set

by Regulation. This will bring WA law into line with all other States and directly benefit the widows and widowers of the more than 40% of West Australians that die intestate. A great initiative championed by the Law Society to the current government.

Your Dog

37

FAMILY LAW CASE NOTES Robert Glade-Wright Former barrister and accredited family law specialist

Property – In isolating a contribution to a specific asset in a global approach, court failed to heed risk of ignoring contributions that lacked such a nexus In Hurst [2018] FamCAFC 146 (8 August 2018) the Full Court (Thackray, Ainslie-Wallace & Murphy JJ) heard the wife’s appeal against a property order relating to a 38 year marriage where the husband inherited land 14 years before trial (“the Suburb C property”). The land was worth $400,000 when acquired but $1.82m at trial. The parties had three children.

The youngest child (13) and the eldest, an adult child with psychiatric issues, lived with the wife.

The net pool was worth $2.66m. Carew J assessed contributions at 72.5:27.5 in the husband’s favour, saying (at [14]) that “[i]t cannot be said that the wife has made any contribution to … [the inherited land] other than indirectly by the rates and slashing costs being paid”. A 12.5 per cent adjustment under s 75(2) for the wife produced an overall 60:40 division for the husband.

The Full Court said (from [15]): “ … Within the context of [a global] approach a broad assessment is made of the contributions of all types made by both parties across the whole of the period of a very long marriage. Yet, the reasons also evidence one exception to that approach, namely the identified indirect (financial) contributions made to the Suburb C property.

[16] There is no error of itself in her Honour considering separately any such contributions …

[17] However, there is a danger in doing so. Isolating indirect

38 | BRIEF OCTOBER 2018

contributions to but one part of the property interests of the parties in the context of a global assessment of contributions risks ignoring significant contributions made by both parties that do not have a nexus with that particular property. We consider … that her Honour did not heed that risk. The finding that the wife has not made any contributions to the Suburb C property other than the specific indirect contribution to slashing and rates is, in our … view, not open to her Honour on the evidence before her.”

Also (at [57]-[65]) discerning error in the trial judge’s assessment of s 75(2) factors, the Court allowed the appeal, remitting the case for rehearing.

Children – Judge avoided determining the issues presented by the parties at an interim hearing In Matenson [2018] FamCAFC 133 (20 July 2018) Murphy J, sitting in the appellate jurisdiction of the Family Court of Australia, allowed the appeal of an unrepresented father against the dismissal of his interim parenting application by an unidentified judge of the FCC relating to children aged 16, 13 and 11. His concern was the lapse of time since he had seen his children despite an earlier order granting time which he alleged the unrepresented mother was contravening.

Despite all parties seeking an order for some time (the father the removal of supervision and the mother and ICL an order that the eldest child see the father as she wished but that the other children spend some time with him) the Court, referring to “an impasse” ([26]), dismissed all interim applications and set the case down for trial in 10 months. In allowing the appeal

and remitting the case for rehearing, Murphy J said (from [33]): “In the Federal Circuit Court at least, interim proceedings are almost always conducted within huge lists where large numbers of cases seek a hearing. The convoluted and conflicting assertions common to many of those cases cannot be tested. The exquisite difficulties in fashioning interim orders in the best interests of the subject child or children pending a trial (which those same scarce resources dictate may be significantly delayed) is, or should be, obvious.

[34] Yet, it is a task which, with all its inherent difficulties, must be confronted not avoided. The jurisdiction of the court has been properly invoked and it must be exercised, albeit it in significantly less than ideal circumstances. ( …)

[36] At no time did her Honour identify the competing proposals of the parties or identify the issues necessary for her determination.

Her Honour makes no reference to matters which she considered uncontentious. Indeed, the references to any evidence are … extremely sparse. … [T]he family report … was alluded to but her Honour did not refer to any particular aspects of that (albeit untested) evidence.”

Children – Section 65DAA not triggered by order for equal shared parental responsibility as to some but not all major long-term issues In Pruchnik & Pruchnik (No. 2) [2018] FamCAFC 128 (11 July 2018) the Full Court (Ryan, Aldridge & Austin

JJ) dismissed with costs the mother’s appeal against Hannam J’s parenting order implementing a change of care for children of 12 and 9 to the father from the mother who was found to have been intermittently withholding the children since 2014 (three years after separation) “without reason” ([2]).

It was also found that the children were at risk of rejecting the father unless the family dynamics in the mother’s household towards the father changed ([3]). The mother was granted supervised time.

Sole parental responsibility had been sought by both parties (the father as to medical and schooling decisions only) but was granted to the father. On appeal the mother argued that as the presumption of equal shared parental responsibility had not been rebutted under s 61DA(4) the Court failed to apply s 65DAA (court to consider equal time etc if an order is made for such responsibility).

The Full Court (at [35]-[37]) applied authority including Doherty [2016] FamCAFC 182 which held that an order for equal shared parental responsibility need not be in relation to every aspect of parental responsibility and that such an order does not trigger s 65DAA. The Court (at [49]-[50]) rejected submissions by the mother and ICL that explicit and cogent reasons (and thus evidence) why the presumption should be rebutted were necessary, given that the parents had agreed that the conditions for the operation of s 61DA(4) were met. The Court added:

Property – Husband’s initial contribution of land soared in value due to re-zoning during long marriage In Jabour [2018] FCCA 928 (25 May 2018) Judge Mercuri heard a property case for parties whose 25 year marriage produced three children and where the husband owned a half interest in three parcels of land (30, 30 and 44 acres) at cohabitation, having bought them from his father in 1975 for $26,000. After 11 years of marriage he sold his interest in the 30 acre lots to acquire all of the 44 acre lot. After being re-zoned for residential use, the property sold in October 2017 for $10,350,000.

The net pool was $9,033,913 plus $371,686 of superannuation. While each party agreed contributions during the relationship to be equal and that no s 75(2) adjustment was necessary the husband sought a 70:30 division to reflect his initial contribution.

the 44 acre lot, the wife made some, albeit a non-financial, contribution to the ultimate position that the parties found themselves in, namely to own outright a 44 acre lot of land which has subsequently increased in value. This contribution, however, must be weighed against the fact that without the husband’s initial interest in the original Property A property, the parties would not have had the opportunity to use some of the proceeds of the sale of the 30 acre lot to purchase the remaining half share in the 44 acre lot at all.”

An order was made for a 66:34 division of non-superannuation assets in the husband’s favour and an equal division of superannuation.

Robert Glade-Wright is the founder, principal author and editor of The Family Law Book, a one-volume, After citing Williams [2007] FamCA 313 loose-leaf and online subscription service. thefamilylawbook.com.au. He (in which the Full Court held that an is assisted by accredited family law initial contribution should be valued at its ultimate proceeds of sale or current specialist Craig Nicol. value if not sold) the Court (from [92]) discussed other authority including Zappacosta [1976] FamCA 56, saying (at [126]): “This contribution, however, must be weighed against the myriad of contributions made by both parties throughout the course of their relationship which has spanned 27 years and resulted in three adult children … [and] against the fact that this was a union in which the parties … by their actions shared in the vicissitudes of the relationship, much of which is demonstrated by the numerous businesses and business ventures which the parties undertook throughout their relationship.”

“It follows that against the background of the mother’s concession as to the application of s 61DA(4) (a concession which, given the orders sought by the father, he also adopted), it was sufficient compliance with the provision for the primary judge to The Court continued (at [134]): declare herself … satisfied that ‘in these circumstances it is in the “I am persuaded that by children’s best interests for the supporting the husband in his parent with whom the children decision to use the proceeds are to primarily live to have sole of the sale of the 30 acre lot to parental responsibility for them’ purchase the other half share in …”

39

Law Council Update

Senate's further motion to ensure proper consultation on court merger bills praised

from those who work in and around the system, but the mums and dads who have unfortunately been caught up in it.

The Law Council has applauded the passing of a Senate motion ensuring that the public hearings into a proposed shake-up of the family court system will be held in a timely and appropriate manner – and crucially, after submissions have been received.

“Australia’s family court system is under immense pressure, but there is no practical reason to push this reform through parliament this year. We must get it right, not do it quick.

The Senate directed the Legal and Constitutional Affairs Legislation Committee to conduct public hearings into the two merger bills after the close of submissions on 23 November 2018 and before 15 April 2019.

The motion, introduced by Senator Rex Patrick, followed an earlier motion to extend the submission deadline from barely a month to around three months.

Following the earlier motion, the government did not alter its tabling date and intended to hand down the final report the next business day after the close of submissions. The committee had also planned on holding public hearings ahead of the submission deadline.

“Today’s motion again provides the government with the opportunity to take into consideration the Australian Law Reform Commission Review of the Family Law System, which will be delivered to government on 31 March 2019.

“We again submit that it is vital the ALRC’s detailed findings are considered before the Senate committee reports and the bills inevitably go to a vote,” Mr Bailes said. Mr Bailes also noted that the measures in the bills provide no extra funding for the chronically underresourced court system or associated support services.

Amendments to My Health Record needed so vulnerable children are not exposed to potential harm

The bills aim to merge the current Federal Circuit Court of Australia and the Family Court of Australia into the new Federal Circuit and Family Court of Australia, representing the biggest structural change to Australia’s justice system in decades.

The My Health Records of children could be accessed by parents who are subject to Apprehended Domestic Violence Orders, and the definition of 'parental responsibility' under the My Health Records Act should be amended, according to the Law Council.

The Law Council of Australia President, Morry Bailes, applauded the vote, saying that the peak body had advocated to parliamentarians for a more considered consultation process.

The Law Council of Australia’s President, Morry Bailes, the Chair of the Privacy Law Committee, Business Law Section, Olga Ganopolsky, and the Chair of the Family Law Section, Wendy Kayler-Thomson, appeared before a Senate inquiry into the My Health Records system.

“Changes of this magnitude must not be rushed through the parliament without proper scrutiny and debate,” Mr Bailes said. “Further, the government’s original intention to hear evidence prior to the close of submissions is clearly not as valuable as hearing evidence after the submission period.

“The Law Council commends the Senate for ensuring that public hearings are held following the close of submissions, and that ample time and space is allocated for them.

“The committee needs to not just hear

40 | BRIEF OCTOBER 2018

Mr Bailes said while he welcomed some additional privacy protections contained in the My Health Records Amendment (Strengthening Privacy) Bill 2018, concerns remained.

“The current definition of 'parental responsibility' under the Act exposes the health records of children to misuse. The legislation needs to protect the location and identity of victims of family violence from being shared with perpetrators,” Mr Bailes said.

“Currently an authorised representative of a healthcare participant includes a person with parental responsibility. The Law Council understands that either party who is an authorised representative can access, amend, or delete a child’s My Health Record. Yet the definition of parental responsibility under the My Health Records Act is very broad.

“The definition of parental responsibility includes a person who merely has an order that a child spend time with a person. But a parent can retain parental responsibility for a child even if subject to a parenting order preventing them from contact with the child, or requiring their contact with the child to occur only under supervised conditions.

“In fact, a parent who is subject to a State-based Apprehended Domestic Violence Order will still hold parental responsibility for a child under the Family Law Act and would therefore still be considered an authorised representative under the current My Health Record system.

“This means that they may be able to ascertain the residential address of the child and the other parent. This creates serious issues for children and parents who may be at risk of harm if their location was to be disclosed through My Health Record to the perpetrator of violence.

“The definition of parental responsibility under the Act should be amended so that a person must have a parenting order for the child to spend unsupervised time with that person. It should also be stipulated that a person does not have parental responsibility if the person has a restraining order or personal protection order preventing them from spending time with the child.”

The Law Council also recommended that a healthcare recipient should provide informed consent if their My Health Record data was to be used for medical research purposes.

“This consent can be readily sought and obtained through the user settings and communication channels facilitated by the My Health Record system between individuals and prospective researchers,” Mr Bailes said.

41

Career moves and changes in the profession

New Members

Avon Legal

Lexvoco

New members joining the Law Society (September 2018)

Avon Legal is delighted to announce the promotion of Julia Wedlock to Senior Associate of our Family Law team. Julia has extensive experience Julia Wedlock in all areas of family law including property settlements, parenting matters, spousal maintenance, child support and binding financial agreements. Julia is passionate about protecting her client’s best interests. We extend our congratulations on her promotion.

NewLaw firm lexvoco has officially expanded its Australasian offering to Perth with a focus on legal operations, Naomi Hutchings and secondments and Camilla Kraj-Krajewski technology to help WA in-house legal teams become more innovative and agile. lexvoco’s WA offering is co-led by Naomi Hutchings and Camilla KrajKrajewski. Naomi was previously Managing Counsel for BHP and Camilla was previously in-house at the Pilbara Ports Authority and led a team of advisors at Rio Tinto Iron Ore.

Professional Announcements

Restricted Practitioner Ms Shang-Wen Chien Clifford Chance

Associate Membership Mrs Jane Connor Murdoch University - School of Law Ms Jenny Hotinski University of Notre Dame Australia Mr Valentine Nhunzvi Central Queensland University

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BRIEF For advertising opportunities in Brief please contact:

Madeleine McErlain Manager, Marketing and Communications T: (08) 9324 8650 E: advertising@lawsocietywa.asn.au lawsocietywa.asn.au

The Law Society’s wellbeing and resilience programme LawCare WA has a holistic approach to wellbeing and resilience.

Membership of the Law Society provides complimentary access to LawCare WA to help you manage your career, life, health and wellbeing.

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LawCare WA offers a free confidential telephone advice service to members on personal matters relating to a range of human resources and employee relations issues.*

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Members of the profession connect with experienced practitioners for advice on ethical issues or complaints through the Senior Advisors Panel and Western Australian Bar Association Referral Service.

Working in the legal profession can be rewarding and challenging. It is important to find balance in your life as you juggle career, family, friends and hobbies.

Referral service provided by WABA

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Attend complimentary Pilates classes provided by HBF twice a year Participate in sporting tournaments hosted by the Law Society’s Young Lawyers Committee Take advantage of exclusive offers through the Law Society’s member privileges programme

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*This service is only for a Law Society member who is an individual employee (not an employer). If after speaking to CCIWA more substantial employee relations advice is required, members may use the Law Society’s Find a Lawyer service to find legal practitioners specialising in employee relations law. Disclaimer: The Law Society facilitates all the above services and does not warrant or guarantee the work undertaken by any third party organisation, firm or individual listed or provided and is not liable in relation to any aspect of services they may provide to you.

43

Events Calendar

With thanks to our CPD partner

Stay up-to-date with the latest Law Society member events and CPD seminars

OCTOBER 2018 Membership Events Tuesday, 2 October & 9 October Pilates Classes Thursday, 18 October YLC Inter Profession Networking Event

Friday, 12 October Ethics on Friday: Ethical issues in representing alleged perpetrators of family and domestic violence Also available as a webinar

CPD Seminars

Monday, 15 October Setting Aside Domestic and International Commercial Arbitration Awards

Wednesday, 3 October Secure Data Erasure and Wireless Security WEBINAR

Friday, 16 October What is Unique about the Government Contract?

Wednesday, 3 October Respectfully Disagreeing with the ATO in Relation to Tax Disputes

Wednesday, 17 October Recent developments in legislative drafting

Tuesday, 9 October Reaching inwards & outwards: Connecting your way to wellbeing

Thursday, 18 October Property Law Update

Wednesday, 10 October Fostering healthy relationships with the bench Thursday, 11 October Contract Law Masterclass

Monday, 22 October Avoiding Common Pitfalls in Will Drafting WEBINAR Wednesday, 24 October Legal Costs Thursday, 25 October Non-linear Legal Careers Also available as a webinar

NOVEMBER 2018 Membership Events Friday, 9 November YLC Mixed Netball Competition Wednesday, 28 November Welcome to the Profession Breakfast CPD Seminars Wednesday, 7 November Legal Project Management Essentials Thursday, 8 November Risk Management for Family Lawyers Friday, 9 November Ethics on Friday: LPCC Investigations and/or Disciplinary Proceedings – Disclosure Obligations Monday, 12 November Creating the Optimal General Counsel / Outside Counsel Relationship WEBINAR Tuesday, 13 November Leading in Law - Leading through persuasive influence

Wednesday, 14 November Strata Titles Act & Community Title Schemes Wednesday, 14 November Creating and Managing Precedents WEBINAR Wednesday, 14 November ASIC Series - Enhancing Australia’s Statutory Whistleblower Regime Thursday, 15 November Superannuation and Estate Planning Wednesday, 21 November A View from the Bench Wednesday, 28 November Looking to America: Lessons for a Western Australian Mental Health Court Thursday, 29 November Managing a Peak Performing Team: Motivate, Engage and Deliver Outstanding Results

For all CPD-related enquiries please contact cpd@lawsocietywa.asn.au or (08) 9324 8640.

For all membership-related enquiries please contact membership@lawsocietywa.asn.au or (08) 9324 8692.

For all upcoming events and further information please visit lawsocietywa.asn.au

44 | BRIEF OCTOBER 2018

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