Brief May 2016

VOLUME 43 | NUMBER 4 | MAY 2016

FAMILY LAW EDITION

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Contents Volume 43 | Number 4 | May 2016

53

06

Message from Chief Judge of Family Court

08

Letter from the Chief Justice regarding Security Screening Procedures

10

Family Law Practitioners' Association of Western Australia

12

Waiver of Legal Professional Privilege

16

Counsel for the Independent Children's Lawyer

20

Mediation in the Family Court of Western Australia

23

Consumer Credit Legal Service

24

More resources for lawyers who help those who should be in the centre of family law cases – the children

28

From mediation-style conferences to mediation-style arbitration

33

Introduction of a Practice Management Course for Principals of a Legal Practice

36

An Interview with the Honourable Justice O’Brien

38

Cross examination of victims of family and domestic violence by self-represented perpetrators in family law proceedings

40

From bereaved to conceived

44

Lawyer on the Street

53

Law Society Mentoring Programme

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. 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 Moira McKechnie Tel: (08) 9324 8650 Email: mmckechnie@lawsocietywa.asn.au Communications and Media Officer Andrew MacNiven Communications and Design Officer Brett Syme RRP $15.00 incl GST. Printed by Scott Print

COVER Family Law Edition REGULARS 02 President's Report 03 Your voice at work 04 Editor's Opinion 46 Family Law Case Notes 47 Young Lawyers Case Notes 48 Law Council Update 49 Pam Sawyer 50 Professional Announcements 50 Classifieds 51 New Members 52 Events Calendar

Editor Jason MacLaurin

President Elizabeth Needham

Deputy Editors Andrew Cameron, Moira Taylor

Senior Vice President Alain Musikanth

Editorial Committee Gregory Boyle, Andrew Cameron, Rebecca Collins, Robert French, Jason MacLaurin, Brigitte Monchouguy, Alain Musikanth, Maureen O'Connell, Tom Porter, Pat Saraceni, Verginia Serdev-Patterson, Julian Sher, Moira Taylor, Lorilee Yu

Vice President Hayley Cormann

Proofreaders Sonia Chee Brief is the official journal of The Law Society of Western Australia Level 4, 160 St Georges Tce Perth WA 6000 Tel: (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 further details, please contact communicationsofficer@lawsocietywa.asn.au

Treasurer Nathan Ebbs Ordinary Members Alison Aldrich, Marie Botsis, Jocelyne Boujos, Tara Connolly, Nathan Ebbs, Adam Ebell, Nicholas Ellery, Catherine Fletcher, Rebecca Lee, Greg McIntyre SC, Marshall McKenna, Denis McLeod Junior Members Saran Bavich, Sophie Ecker, Jodie Moffat Country Member Brooke Sojan Immediate Past President Matthew Keogh Chief Executive Officer David Price

01

President's Report Elizabeth Needham President, The Law Society of Western Australia

LAW WEEK 2016 By the time this edition of Brief reaches you, Law Week 2016 will be mere days away. As many of you will no doubt be aware, Law Week is an annual celebration of law and justice in the community. It provides an opportunity to demystify the legal system, to build a shared understanding of the role of law in society and to recognise legal practitioners who consistently contribute to the community through pro bono work.

As legal practitioners, we all understand the significant role that the law plays in each of our daily lives. For people who are not constantly immersed in legal practice, the importance of the law may be less clear.

It is vital that the public is well-informed, whether understanding individual rights under the law, employment contracts, how a mediation works, through to setting up a business, having a will prepared or simply knowing what to do and where to go for legal assistance.

A central focus of Law Week this year is the national Legal Aid Matters campaign, which calls on Parliamentarians to address the current crisis in legal assistance funding.

The campaign is being coordinated on a national level by the Law Council of Australia and law societies from every State are taking part.

The current legal aid funding crisis is a result of successive cuts by governments over many years. These cuts have caused real harm, often to the most disadvantaged members of our community and results in significant flow on costs to the taxpayer.

Some of those who can least afford to access legal assistance, such as people with disabilities, young people, and Aboriginal people, have suffered significantly after being denied legal aid.

The Legal Aid Matters campaign aims to raise public awareness about the need for legal assistance and make it a legitimate issue for the upcoming Federal and State elections.

During Law Week 2016, the Society will once again be showcasing a wide array of seminars, information sessions and social events for both the community and the profession.

Law Week will be launched with The Case for Legal Aid – Law Week Breakfast with Fred Chaney AO on Monday, 16 May at 7.15am. We are also delighted to once again welcome the Attorney General, The

02 | BRIEF MAY 2016

Hon Michael Mischin MLC, to the Law Week Breakfast, where he will present the Attorney General's Community Service Law Awards.

Also on Monday, 16 May, the Society's Francis Burt Law Education Programme will welcome nominated Year 10 students, who will take part in a one-day course to enhance leadership skills and civic awareness.

On Tuesday, 17 May, I am participating as one of several Ambassadors in the inaugural Law Access Walk for Justice which will take place from 7.30am to 8.30am. Please join me at Barrack Square on the CBD foreshore on National Pro Bono Day to celebrate the important pro bono work done by so many in the legal profession and to help raise funds for the Law Access Pro Bono Referral Service.

On Wednesday, 18 May at 6.00pm, the Society's Young Lawyers Committee will host the Law Week Panel Discussion on 'Homophobia within the Law'. A panel of eminent speakers will discuss the laws that continue to create barriers for the LGBTIQ community.

On Thursday, 19 May, the Law Week Cocktail Evening is an opportunity to recognise recipients of the Lawyer of the Year Awards and Life Member Awards.

It is also a chance to join colleagues and distinguished guests for an evening of music and conversation in a relaxed atmosphere.

There are many more events for both the community and the profession taking place throughout the week. Please visit lawsocietywa.asn.au/law-week/ to book your place at a Law Week event or to find out more.

NEW LAW LIBRARY – SOCIETY RAISES CONCERNS WITH GOVERNMENT Further to my update in the February 2016 edition of Brief, the Society continues to represent its members' interests in the new Law Library. The Society received advice from the State Solicitors Office on Friday, 1 April 2016 that both the Legal Profession Amendment Bill 2016 and the Legal Profession Amendment (Levy) Bill 2016 (Bills) were to be debated in Parliament the following week. This was coupled with advice for the first time that Cabinet had not accepted the changes the Society and the Western Australian Bar had submitted on 23 December 2016. No explanation was

given as to why nor any opportunity for further discussion.

Subsequently, I wrote to the Attorney General the Hon Michael Mischin MLC and the Hon Adele Farina MLC, Chair of Committees advising that the Society has significant concerns with the Bills, for a variety of reasons. The Bills have now been passed in the Legislative Assembly.

However, the Society remains opposed to the Bills, given: (a) our concern with the formulation of clause 548A(5) in the Legal Profession Amendment Bill 2016 as it currently stands (which presently allows for government to charge any fee it likes for the service if the profession does not agree and makes no provision for ending the arrangement); (b) the fact that the profession will have more limited access to the new library; and (c) the public will have no access.

Furthermore, it has come to the Society's notice from the conversations that the Shadow Attorney has had with the Department of the Attorney General (DoTAG) that DoTAG proposes a levy that would, in the first year of operation of the Law Library, almost double the current $125 contribution included in the cost of a Practicing Certificate from the profession.

This does not make sense when: (a) the level of service will be less than the current Supreme Court Library; (b) there are cost savings likely from removing unnecessary duplication of staffing, floor space required and subscriptions; and (c) we are told that an accurate figure of the costs, taking into account the cost savings cannot be provided to us because the Department is at least 6 months behind in completing the work required in amalgamating the libraries.

I have again written to the Attorney General the Hon Michael Mischin MLC on 15 April 2016 and Hon Adele Farina MLC on the 11 April 2016 seeking urgent meetings to discuss the Bills before they are introduced into the Legislative Council. The Society will continue to engage with government and other affected stakeholders such as the Western Australian Bar Association and the Legal Practice Board of Western Australia to represent our concerns to government.

Your voice at work A snapshot of recent Society initiatives

PRESENTATION OF LOTTERYWEST GRANT CERTIFICATE TO THE LAW SOCIETY OF WESTERN AUSTRALIA The Law Society of Western Australia was formally presented with a grant certificate

by Lotterywest at the Old Court House Law Museum in Perth on Tuesday, 12 April 2016.

Eleni Evangel MLA, the Member for Perth, presented the grant certificate to Elizabeth Needham, President of the Law Society. Volunteers from the City of Perth's iCity Tours were also in attendance to experience the Museum and a trial reenactment.

The grant will enable the Law Society to complete the re-design of the Old Court House Law Museum with the installation of the exhibition entitled From Past to Present: the Changing Face of the Law, and an update to the entrance of the Museum.

The Law Society thanks Lotterywest for its generous grant, and the Lotterywest retailers who sell the games, thereby raising the revenue to make grants such as this possible.

The Old Court House Law Museum is one of only a few law museums in the world. It is housed in the City of Perth's oldest building, constructed in 1836.

The Museum's interpretive displays are accompanied by an audio overview and take visitors on a journey through Western Australia's legal and social history.

The Museum is located in Stirling Gardens, on the corner of Barrack Street and St Georges Terrace, Perth, next to the Supreme Court of Western Australia.

LAW WEEK 2016 Law Week 2016 begins on Monday, 16 May and runs until Friday, 20 May. Law Week provides a chance for the community and the legal profession to engage in an open dialogue and build a shared understanding of the role of law in society.

The opening of Law Week on Monday, 16 May coincides with a national day of action in support of the Law Council of Australia's Legal Aid Matters campaign, which calls on Parliamentarians and the general public to help tackle the current crisis in legal aid funding.

Successive funding cuts over many years have caused real harm to the most

vulnerable members of our community.

Young people, people with low socioeconomic standing and people with disabilities have all suffered after being denied legal aid.

The Law Society encourages all stakeholders to use Law Week 2016 as a catalyst to end the legal aid funding neglect.

Law Society President Elizabeth Needham said, "Law Week is a wonderful opportunity to bring the legal profession and the community together.

"Law Week offers a chance for people to become better informed about the work of lawyers, to demystify the legal system and to celebrate legal practitioners who consistently give back to society through their pro bono work."

Please visit lawsocietywa.asn.au/law-week to find out more.

25th ANNIVERSARY OF ROYAL COMMISSION INTO ABORIGINAL DEATHS IN CUSTODY 15 April 2016 marked the 25th anniversary of the Royal Commission into Aboriginal Deaths in Custody.

The Royal Commission found that the alarmingly high number of deaths in custody was directly related to the disproportionately high number of Aboriginal people who were arrested and imprisoned. A quarter of a century later, the issue of over-representation of Aboriginal people in our prisons has gotten worse, not better.

According to the Australian Bureau of Statistics (ABS), between 2002 and 2012, imprisonment rates for Aboriginal Australians increased from 1,262 to 1,914 Aboriginal prisoners per 100,000 adults. By comparison, the rate for non-Indigenous prisoners increased from 123 to 129 per 100,000 adults.

As at 30 June 2014, the ABS found Western Australia had the highest Aboriginal and Torres Strait Islander imprisonment rate in the country, with 3,663.5 prisoners per 100,000 Aboriginal and Torres Strait Islander adult population.

Since 2010, around 1,000 people have been sent to prison each year solely for unpaid fines, according to the Human Rights Law Centre, with Aboriginal women disproportionately affected.

The 'Change the Record' campaign, which is supported by the Law Council of Australia, found that since 2010, one in every six Aboriginal people going to prison in WA was there to pay off fines. In 2013, almost one-third of all women entering prison in WA were there for unpaid fines, and almost two-thirds of these women were Aboriginal.

Law Society President Elizabeth Needham said, "The Law Society calls on the Western Australian Government to continue to address the underlying influences that have resulted in disproportionately high arrest and incarceration rates among Aboriginal people.

"These figures show that despite efforts to date, we are moving in the wrong direction.

It is vital to invest in early intervention, prevention and diversion strategies to address the root causes of reoffending, cut imprisonment rates, and support stronger and safer communities."

QPS FIRMS CELEBRATE 15th ANNIVERSARY The Society congratulates: •

Lynn & Brown Lawyers (trading as Lynn & Brown);

•

Dwyers Legal Pty Ltd (trading as Dwyer Durack); and

•

SRB Legal

who all recently celebrated their QPS 15th anniversary.

QPS is an important Society initiative which recognises firms that have developed and adhered to documented internal systems and processes. These systems are designed to improve client satisfaction. For more information about QPS, please visit the Society's website.

LAW SOCIETY SUBMISSIONS •

Settlement Agents Code of Conduct 2016 (C150316C1) – Letter to Department of Commerce (State)

•

Law Reform Commission of WA Project 106: Provisional Damages for Gratuitous Services (C150316C5) – Submission to the Law Reform Commission (State)

03

Editor's Opinion Jason MacLaurin Barrister, Francis Burt Chambers, Editor, Brief Journal

This month's Brief is, as occasionally takes place, primarily directed to a particular area of the law - in this case, family law.

Hopefully, this will not deter non-family lawyers from delving into it. The edition contains material relating to other areas, and the family law articles should be of interest to all practitioners.

Admittedly, family law is such a unique and specialised area that the crossover appeal for other lawyers was often considered limited to an appreciation of George Clooney's exploits in the Cohen Brothers' "Intolerable Cruelty" – including his infuriating reference to "Kershner".1 As far as classic family law themed movies went, it at least provided more laughs than "Kramer vs Kramer".

Indeed, I was initially thinking of disqualifying myself from writing an editorial in an edition devoted to family law.

The first reason was that I am, as a practitioner, exquisitely unknowledgeable in the area. However, if not having any idea about a subject was a disqualifying factor for me writing a Brief editorial, most editorials would consist solely of a cartoon stolen from The New Yorker magazine, a series of quotes from PJ O'Rourke (or possibly Nietzsche, depending upon mood) and product recall notices.

The second potentially disqualifying factor was that, regrettably, my main experience in family law has not been in practice, but one might say, on the wrong side of the fence. In Pamplona.

However I decided to persist because (although I accept after that last paragraph the Editorial does not seem to be heading this way in its early parts2) it does have a twist.

One is to note that, as with many who don't practice in the area but know those who do, or are or know "fellow travellers" in the Pamplona Bull Run experience, there is (of course with some exceptions) a sincere admiration for family law practitioners and everything they take on and deal with. This includes an appreciation of the stresses that apply to practitioners who have be knowledgeable is a unique and specialised area of the law, while also having to handle clients in a highly emotional state and possess a deft feel and acceptance of human nature.

04 | BRIEF MAY 2016

These considerations of course apply to most practitioners. However, family law is perhaps a paradigm example of the important work the law does – and has to do – in the resolution of acrimonious adversarial matters.

(such as, even, a re-marriage) without feeling the urge to write a short letter of advice along the lines of: "1) You are not Richard Burton who at least had the advantage of being one of the greatest actors of the last century;

Many readers would have known people (in more limited number, possibly by way of a mirror) who have been involved in family law matters who felt like, not only being a "fish out of water" but also a fish that was filleted, thrown into a griller, and served up. And then also made to pay the bill. And then leave the tip.

2) Though, in fairness to you, I should note that the mere fact you have apparently convinced anyone to fall in love, and enter into a relationship, with you, on any and even more than one occasion, demonstrates that you can't be completely devoid of Thespian talents;

Though it is to be hoped that such sentiments are ultimately, if not soon after at least with time, appreciated as being misplaced.

Another crossover between this peculiar area of family law and other areas is that, unfortunately, few of the "good news" outcomes come to light3 (as opposed to the train wrecks) and not enough is made of the real successes in adversarial proceedings being worked out in the early stages, so as to avoid a confrontational and acrimonious trial – thanks in no small part to the law, judicial officers, mediators, and lawyers.

It is not unique to family law that, as in many adversarial matters and particularly under cross-examination, clients feel they've been portrayed as people who could have resulted in the movie "Seven" only actually lasting seven minutes – in that they've been portrayed as one who simultaneously possess all the deadly sins and hence Kevin Spacey could have just killed them in the first few minutes of the movie and wrapped it all up quickly4 (leaving him free to become President of the United States in "House of Cards").5 So, whilst family lawyers probably deal more frequently with clients that feel they have been subjected to more outrageous injustices than were meted out at WWE's 1998 Royal Rumble6 (yes, that's obscure) this is not an unknown quantity for the profession at large.

3) My tax invoice/account, and a copy of Hedda Gabler, will follow shortly".

As I noted above, this edition contains many excellent articles in the area of family law, but also in other areas. On the family law front it also contains a message from the Chief Justice of the Family Court and an interview with the latest Western Australian appointment to the Family Court, Justice Richard O'Brien.

NOTES 1.

Freddy Bender (Richard Jenkins): "Kershner" does not apply.

Miles Massey: Bring this to trial, we'll see if "Kershner" applies.

Freddy Bender: "Kershner" was in Kentucky.

Miles Massey: "Kershner" was in Kentucky?

Freddy Bender: "Kershner" was in Kentucky.

Miles Massey: All right, Freddy, forget "Kershner".

What's your bottom line?

Freddy Bender: Primary residence, 30 percent of remaining assets.

Miles Massey: What, are you nuts? Have you forgotten "Kershner"?

2.

Like Hitchcock's "Psycho" which in its first third appeared to be a conventional "thief on the run" movie until – no, wait, possibly not the best example…

3.

Although of course naturally and reasonably, confidentiality considerations come into play here.

4.

While I was, with the "Blade Runner" references in the last editorial, assiduous in ensuring it was spoiler-free, I'm terribly sorry but – yes – to those who haven't seen it – at the end of the movie "Seven" that it is indeed going to be Gwenyth Paltrow's dismembered head in the box.

Given one of Ms Paltrow's most famous statements about relationships and the breakdown thereof is that of "conscious uncoupling" the final scene of "Seven" perhaps involves one of he most dramatic examples ever depicted on film of a "conscious [though only on one party's part] uncoupling".

5.

Admittedly, he was responsible for a heap of deaths in that too.

6.

The Editor is happy to discuss with any interested readers.

And this is by no means purporting to detract from the very real specific pressures family lawyers must feel.

It must be a frustrating experience for a family lawyer to encounter, for instance, a repeat client who is asking for advice upon planning to enter into another relationship

Miles Massey (Clooney): Why only 50 [percent], Freddy?

Why not a hundred? While we're dreaming, why not 150? Are you familiar with "Kershner"?

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.au 05

Message from Chief Judge of Family Court The Hon Justice Stephen Thackray Chief Judge of the Family Court of Western Australia

in State Family courts on the Western Australian model.

The Family Court of Western Australia turns 40 on 1 June 2016.

The occasion will be marked a few weeks later by a cocktail party at Government House Ballroom hosted by the Family Court and the Family Law Practitioners' Association. I am delighted that the anniversary is also being recognised by this special edition of Brief.

Anniversaries are a time for reflection – in this case on the wisdom of those who had the foresight to know that our community would be well served by having our own Family Court. Although every state in Australia had the opportunity to create a separate court, Western Australia was the only state to do so.

Speaking at the court's opening ceremony, the Attorney General, the Hon Ian Medcalf QC said: Henceforth there will be no need to go to a multiplicity of courts in order to resolve family problems. This court has been equipped to deal with all the problems, in which respect I believe the system will prove to be superior to that in any other State.

The advantages of our system have not just been related to the problem of "jurisdictional divides", which Chief Justice French has noted were solved by the creation of a State Court. Our system is also unique in the way it has avoided the minefields now existing in other states where two separate courts administer the same family law system.

The collaborative management of our unique system by judges, magistrates, registrars and family consultants, under a combined administration and leadership, ensures the most effective use of resources, and is a vital part of the coherent family law scheme in our State.

All submissions to the Review, except for the Federal Magistrate Court's submission, considered that the most effective model for the delivery by the Courts of family law services would be a single family court, with two separate judicial divisions serviced by a single administration.

Submissions saw this as the most effective mechanism for overcoming the difficulties outlined above.

Importantly, Barblett CJ went on to say:

The wisdom of establishing a State Court was also the subject of comment in the report of the 1980 Joint Select Committee on the Family Law Act, and again in the 1987 report of the Advisory Committee of the Constitutional Commission, which said: In retrospect, there was much to be said for vesting family law jurisdiction 06 | BRIEF MAY 2016

•

FCWA is now doing work which traditionally was done in the Children's Court. This saves families having two courts dealing with their lives, as happens elsewhere. I predict that our (so far underutilised) capacity to combine child protection with mainstream family law will prove one of the real advantages of having a State Court.

•

FCWA is the leader in creating information sharing protocols with local agencies such as the child protection authority, the police and the Department of Education.

We were also the first to have Department for Child Protection staff embedded within our counselling service. This is just one manifestation of the view expressed by a former Attorney General, the Hon Christian Porter, that services are best devised by those "as proximate to people as rational organisational principles will allow".

•

Our court is also accepted as the leader in collaborative relationships with the other major service providers who assist our clients and their families. It is no coincidence that these arrangements exist in the only state with its own State Family Court.

•

Litigants would have experienced much greater delays if our State Government had not been able to appoint acting judges to cover long-term illnesses of some of our judges. This capacity to appoint acting judges is unavailable in federal courts.

The advantages of the system were on full display in the report commissioned by the Commonwealth Attorney-General's Department for its 2008 review of "Future Governance Options for the Federal Family Law Courts in Australia". The report recorded that:

Writing a decade later, the first Chief Judge observed that the decision to have a State Family Court had proved to be "a wise one". He recorded that "Western Australia has not been bedevilled by the jurisdictional problems which have been a feature of the Family Court of Australia".

Size and autonomy have allowed the Family Court of Western Australia to demonstrate flexibility and innovativeness which has allowed the State Court to overcome many of the problems which have beset the federal Court.

regardless of whether the jurisdiction is state or federal. The court can therefore not only deal with the full range of family disputes, but can also grant restraining orders, deal with adoptions and make orders in surrogacy arrangements.

Some of the jurisdictional advantages of having a State Court no longer apply because of the transfer by other states of some of their powers to the Commonwealth. However, it took many years before de facto and same-sex couples could access specialist family courts to deal with their property disputes in the same way WA couples had been doing since 2002.

Significant legal and practical advantages continue to emanate from having our own court: •

FCWA is still the only Australian court which can provide a "onestop" service for family law matters,

These achievements were made possible by the support of the legal profession. The court is grateful for that support and looks forward to proving that there is indeed life after 40!

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Below is the Hon Chief Justice Wayne Martin AC's response in relation to the new security screening procedures, as referred to in the April President's Report.

08 | BRIEF MAY 2016

09

Family Law Practitioners' Association of Western Australia Nicole Croft President, Family Law Practitioners' Association of Western Australia

The Family Law Practitioners' Association of Western Australia (FLPA) thanks the editors of Brief for the opportunity to identify, in summary form, some significant family law issues in Western Australia, for the consideration of the local legal community.

JUDICIAL APPOINTMENTS His Honour Justice O'Brien was recently appointed to the Family Court of Western Australia (and the Family Court of Australia) following the retirement of her Honour Justice Crisford. The Association recognises and appreciates the co-ordinated action of the State and the Commonwealth, which ensured that, on this occasion, there was no time lag between the retirement and the appointment.

The court has not appointed more than five concurrent permanent sitting judges since it commenced operation in 1976.

Forty years later it still operates with five judges. To minimise stresses on the court and to ensure that the efficiency of the court is not unduly impaired, the Association hopes that all future judicial retirements are matched by a prompt appointment. In this respect, on this occasion, the public of Western Australia were well served by both levels of government.

Following the recent retirement of Family Law Magistrate Vander Wal, the State has promptly appointed Family Law Magistrate Osborn, who was sworn in on 4 April 2016. The Association again acknowledges and thanks the State for its recognition, on this occasion, of the importance of eliminating or at least minimising delay between judicial retirements and appointments.

Western Australia remains the only jurisdiction with a state family court. The Family Court of Australia (established by the Commonwealth) operates in all other states and territories. The anniversary presents an opportunity to reflect on what has been achieved and the advantages associated with the retention of a separate state family court in Western Australia.

To celebrate the occasion the Association in conjunction with the court will be hosting a function in the Ballroom at Government House on 15 July 2016.

The Association continues to support the retention of a separate state family court in Western Australia. The advantages include: •

an integrated system;1

•

innovation;2 and

•

the potential for beneficial interaction with other areas within state jurisdiction.3

APPEALS FROM PARENTING ORDERS MADE IN RESPECT OF UNMARRIED PARENTS Children of parties to a marriage are dealt with under the Family Law Act 1975 (Cth). Any appeals from parenting orders dealing with children of a marriage, made under the Family Law Act by a judge of the Family Court of Western Australia or a Family Law Magistrate of Western Australia, lie to the Full Court of the Family Court of Australia. At the discretion of the Chief Judge of the Family Court of Western Australia an appeal from a parenting order made by a Family Law Magistrate of Western Australia may be determined by a single judge.

BENEFITS OF A STATE FAMILY COURT

Children of unmarried parents are dealt with under the Family Court Act 1997 (WA).

2016 marks the 40th anniversary of the Family Court of Western Australia.

Any appeal from a parenting order made by a judge of the Family Court of Western

10 | BRIEF MAY 2016

Australia under the Family Court Act lies to the Court of Appeal.

The Court of Appeal in CDW v LVE [2015] WASCA 247, delivered on 4 December 2015, held that, as a matter of law, all parenting orders were "interlocutory" (save perhaps in exceptional circumstances).

This means that parenting orders previously acted upon as being "final" (so as to enliven the jurisdiction of the Court of Appeal) will now be treated as "interlocutory".

Any appeal from parenting orders of a Family Law Magistrate made under the Family Court Act lie to a single judge of the Family Court of Western Australia.

The effect of this decision is that the Court of Appeal has significantly narrowed the scope of appeals which fall within its jurisdiction.

Consequently, only the Family Court of Western Australia will have the jurisdiction to conduct an appeal from a parenting orders made by a Family Law Magistrate.

This development in the law will increase the work load of the Family Court of Western Australia.

CAVEATS OVER REAL PROPERTY AND FAMILY COURT PROCEEDINGS In order to support a caveat over land falling under the Transfer of Land Act 1893, the caveator must show a 'caveatable interest'. A caveatable interest is ordinarily demonstrated by the caveator asserting facts which arguably give rise to a legal or equitable interest in the subject land.

It has been settled law for many years that proceedings for alteration of property interests filed in the Family Court of Western Australia do not in themselves constitute a 'caveatable interest'. No existing legal or equitable interests in the subject land are altered unless and until the court makes an order

after applying the statutory criteria. Nor do orders sought in such proceedings demonstrate or establish that the applicant has any legal or equitable interest in the subject land prior to an order being made.

An obvious benefit to a caveator is that notice is required to be given in the event that the registered proprietor or a third party wishes to deal with the subject land. For a party to a marriage or de facto relationship which has broken down, with the usual corresponding breakdown in trust between the parties, the ability to lodge a valid caveat in a timely and cost-effective manner may be critically important. Family law practitioners have been subject to complaint by aggrieved clients and litigants on the other side, in some cases for lodging caveats (aggrieved litigant on the other side) and in other cases for failing to lodge caveats (aggrieved client).

If a caveat is lodged by a party to a marriage or de facto relationship which has broken down, and the registered proprietor objects to the caveat, the caveator must bring proceedings in the Supreme Court of Western Australia to maintain the caveat. In circumstances when, sooner or later, parties in these circumstances are likely to be engaged in proceedings in the Family Court of Western Australia, it appears inefficient and not cost-effective either for the litigants or the State to have this type of dispute spread between two courts.

Complications also arise because of the 'exclusive jurisdiction rule' which applies to financial proceedings brought under the Family Law Act and the Family Court Act. Under the Family Law Act, by s8(1) (a), a "matrimonial cause" (relevantly defined in s4(1) to include proceedings between the parties with respect to property) may only be litigated under that Act. And under the Family Court Act, by s205V, a de facto partner eligible to apply for an order with respect to property may not apply to the Supreme Court in its equitable jurisdiction for relief in respect of that property.

The Association made submissions to the state government in October 2015 about proposed amendments to relevant legislation. The proposed amendments address the criteria to support a caveatable interest and the jurisdiction of courts which may deal with relevant applications. The State has recently advised it intends to refer the matter to the Law Reform Commission of Western Australia (LRCWA). Terms of reference for the LRCWA are presently being settled.

DE FACTO SUPERANNUATION SPLITTING Since 2001 parties to a marriage, upon marriage breakdown, have been able to obtain superannuation splitting orders in relation to eligible superannuation interests, pursuant to Part VIIIB of the Family Law Act. In 2008 the Family Law Act was amended by the insertion of Part VIIIAB (headed "Financial Matters Relating to De Facto Relationships").

Part VIIIAB only applies to states and territories whose parliaments have made relevant referrals of legislative power in a manner prescribed by s90RA (and see also s90RC).

Western Australia has not made such a referral. For the reasons given below, this has been to the State's benefit with respect to financial agreements.

However, with respect to superannuation splitting, the State cannot enact provisions in the Family Court Act which are self-contained and effective (unlike its position with financial agreements).

Parties to a broken down de facto relationship in Western Australia are unable to obtain superannuation splitting orders in relation to eligible superannuation interests. In order to ensure consistency with all other jurisdictions, for both married and de facto parties, agreement is required between the State and the Commonwealth about the nature and extent of legislative amendment required to achieve this consistency.

The consequence of this disparity of treatment is that, in the course of making just and equitable orders altering property interests between eligible de facto parties in Western Australia, the court cannot alter either party's superannuation interests. The Association supports the State and Commonwealth continuing to seek a legislative solution which remedies the present anomaly.

FINANCIAL AGREEMENTS The Family Law Act was amended in 2000 by the insertion of Part VIIIA headed "Financial Agreements". The purpose behind the amendment was to enable eligible parties, upon satisfaction of certain conditions, to exclude the operation of Part VIII (headed "Property, Spousal Maintenance and Maintenance Agreements") upon marriage breakdown and reach their own agreement about financial matters which would otherwise fall within the jurisdiction of the court.

Since its enactment Part VIIIA has been amended on several occasions.

The State amended the Family Court Act in 2002 to relevantly adopt Part VIIIA, in its application to eligible de facto parties in Western Australia. However not all of the subsequent amendments to Part VIIIA of the Family Law Act have been adopted in the Family Court Act. The State has had the opportunity to adopt only those amendments which it considers appropriate. Consequently, there are currently material differences between the State and Commonwealth provisions dealing with financial agreements.

The Commonwealth Parliament is presently considering the Family Law Amendment (Financial Agreements and Other Measures) Bill 2015, which proposes further material amendments to Part VIIIA of the Family Law Act. The Association intends to monitor the final version of any amendments and make submissions to the State about the extent to which such amendments should be adopted in the Family Court Act. SELF-CONTAINED RULES FOR THE FAMILY COURT OF WESTERN AUSTRALIA The Family Court Rules 1998 (WA) apply to proceedings in the Family Court of Western Australia. These rules substantially, but not entirely, adopt the Family Law Rules 2004 (Cth). On occasions litigants and lawyers can make errors due to the two sets of rules not being co-extensive. The Family Court Rules are in the process of amendment, with the intention of enabling the user to refer to one set of rules.

FAMILY AND DOMESTIC VIOLENCE Litigants who are victims of family and domestic violence must address some unique difficulties as they move through the court process. Lara Anstie's contribution in this issue of Brief addressing these difficulties is commended to all readers.

NOTES 1.

In Western Australia family law litigants move seamlessly between the Family Court of Western Australia and the Magistrates Court of Western Australia. Elsewhere in Australia the Family Court of Australia and the Federal Circuit Court of Australia operate independently of each other.

2.

See, for example, the project currently being undertaken by the Family Law Council. In his terms of reference to the Council the Commonwealth Attorney-General specifically requested the Council to "examine work being undertaken in Western Australia around the intersection of the family law and child protection jurisdictions."

3.

See, for example, Law Reform Commission of Western Australia. Final Report on project number 104 titled Enhancing Family and Domestic Violence Laws where the Commission made recommendations in relation to the interaction between the family law and restraining order systems in Western Australia.

11

Waiver of Legal Professional Privilege This paper is a shortened version of a paper delivered at a conference held by the Family Law Practitioners' Association of Western Australia in September 2015.1 Penelope Giles Barrister, Francis Burt Chambers

Legal professional privilege is based on the belief that justice is enhanced by the relationship between client and legal advisor being kept confidential and protected from disclosure, even to the courts themselves. This "‌ important common law immunity"2 can be traced back to Elizabethan times and is fundamental to the client-lawyer relationship.

Legal professional privilege elevates the confidential status of the clientlawyer relationship beyond that of any other professional relationship. Medical practitioners,3 psychologists, counsellors,4 therapists5 and teachers, all of whom have confidential relationships with the people to whom they deliver services, are nevertheless subject to subpoenas to produce documents and to give evidence about their communications with their clients.

For practitioners, the law in this area presents both hazards and opportunities.

The main hazard is that a practitioner may engage in conduct, or advise a client to engage in conduct, which has the effect of waiving the client's privilege, when this was not intended. The major opportunity is in identifying waiver of privilege by the practitioner's opponents, sometimes revealing extremely damaging material about the other party, which would otherwise never see the light of day.

This paper does not deal in any detail with the situation in which a client intentionally engages in conduct for forensic advantage, knowing that in doing so he or she waives legal professional privilege.

To do this is a serious step, which should only be taken by a client after full advice concerning the implications of the waiver.

Rather, the paper deals with the situation in which the client or lawyer makes a statement or engages in conduct not intending to waive privilege, but it is later held by a court to have done so.

WHAT IS LEGAL PROFESSIONAL PRIVILEGE? Our legal system generally operates on the notion that all relevant and probative evidence, no matter how sensitive, embarrassing, confidential or personal in 12 | BRIEF MAY 2016

nature, should be put before the court, in order that it can determine the dispute based on the best evidence available.

The law of legal professional privilege operates as an exception to this principle. The privilege afforded certain communications between lawyer and client, has the effect of preventing disclosure even if the communication is highly relevant to the facts in issue.

This is the 'privilege' in legal professional privilege.6 The expression 'client legal privilege' is sometimes favoured as an alternative title, to emphasise that the privilege is that of the client, not the lawyer. This description has been adopted in some statutory formulations7, but not by the common law.

Legal professional privilege operates in two ways – legal advice privilege and litigation privilege. They are summed up neatly by Cross on Evidence as follows: In civil and criminal cases, confidential communications passing between a client and a legal adviser may not be given in evidence or otherwise disclosed by the client and, without the client's consent, may not be given in evidence or otherwise disclosed by the legal adviser if made either (1) to enable the client to obtain, or the adviser to give, legal advice, or assistance, or (2) with reference to litigation that is actual taking place or was in the contemplation of the client.8 No adverse inference may be drawn against a party from the fact that the privilege is claimed.

Another important feature of the law is that the privilege attaches to the communication itself, not the document recording the communication. As a practical matter however, most instructions and legal advice are recorded, at the very least in file notes and sometimes in letters of advice or proofs of evidence. Thus, the argument usually comes down to whether the written record of the communication should be released.

Not all communications between client and lawyer are subject to the privilege.

There is much law on the question of

where the boundaries lie. Communications recording instructions which are given for the purposes of advice, and the advice itself are likely to be privileged. Other documents which appear on a solicitor's file may not attract privilege, including trustee ledgers, and communications recording matters which do not contain legal advice, to name a few. To determine if a document is privileged a close examination of the document itself is required, in the context of the issues in dispute. For example, time recording details may be privileged in some contexts and not in others.

LEGAL PROFESSIONAL PRIVILEGE IN THE FAMILY COURT OF WESTERN AUSTRALIA The Family Court of Western Australia is bound by the Evidence Act 1906 (WA) and not the Evidence Act 1995 (Cth).

The Commonwealth Evidence Act contains provisions concerning client legal privilege some of which do not reflect the common law. The Evidence Act 1906 (WA) contains little reference to the law of legal professional privilege, leaving the field almost entirely to the common law. In Western Australia, family law practitioners should have regard to the common law principles rather than those contained in the Commonwealth Evidence Act. WHAT CONSTITUTES WAIVER OF LEGAL PROFESSIONAL PRIVILEGE? The modern law concerning waiver owes its genesis to statements made in 1986 by the High Court in Attorney General (NT) v Maurice.9 In that decision the Court focused on fairness as the controlling principle in determining if a party had waived privilege.

The High Court's most recent significant ruling on waiver of legal professional privilege is contained in the decision of Mann v Carnell [1999] HCA.10 The High Court in Mann v Carnell made it clear that its determination in that case was not based on the Evidence Act 1995 (Cth), but on common law principles.

The Court also observed that the Commonwealth Evidence Act provisions in respect of waiver of legal professional

privilege are "not identical to the corresponding common law principles".

This is important for Western Australian practitioners, especially those working in jurisdictions governed by the Evidence Act 1906 (WA).

Bello [2010] FCWA 67 these principles are comprehensively addressed. This case is interesting because it deals with three separate arguments regarding waiver, which could fit into all three of the categories of waiver mentioned in Cross.

Waiver occurs where a party entitled to privilege performs an act which is inconsistent with the confidence preserved by it:

In Feoli, the wife had sought an extension of time to review consent orders made by a registrar of the Court. A review is required to be sought within 28 days. She had delayed in seeking the review by four years. The husband demanded production of the files of three different law firms which had acted for the wife. Privilege was claimed by each firm. In considering the privilege argument her Honour noted that the issues in determining the extension of time argument included the interests of justice, and the reasons for the delay.

What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.11 It is not sufficient that the evidence in question be relevant to a question between the parties; if this were the sole requirement, the privilege would be worthless. Privileged documents are not available for inspection merely because they might throw light on the strength or weakness of the case as to specific issues or generally.12 Three categories of waiver have been identified by Cross as being: •

•

•

if a party by pleadings or evidence, expressly or impliedly makes an assertion about the content of confidential communications between that party and a legal adviser, fairness to the other party may mean this assertion is a waiver of privilege; waiver takes place where parties in a pleading, opening or evidence, expose to scrutiny their states of mind, to which their legal advice is likely to have contributed;13 waiver occurs if by reason of some conduct of the party, it would be unfair to the other party, in a way which goes to the integrity of the legal process, for the privilege to be maintained.14

In practice, many instances where the argument arises can contain elements of some or all of these broad categories.

It should be noted that the latter two categories, while appearing in Cross, have been criticised by the authors of that work as being too broad.15 DISCLOSURE OF PRIVILEGED MATERIAL OR REFERRING TO LEGAL ADVICE Commonly, this argument arises where a witness has referred in an affidavit or oral evidence to legal advice received, as part of an explanation concerning the relevant events.

In a decision by Crisford J in Feoli and Di

In the wife's affidavit supporting her application for an extension of time for the review, she annexed a letter from her first family law solicitors which set out the difficulties with overturning the consent orders, but which failed to mention the process of review as an option. Having annexed the letter of advice, and having relied upon it as a reason for her delay in bringing her application, there was little doubt that the wife had waived legal professional privilege.

Her Honour held that: Here the wife has revealed the content of one piece of legal advice.

However, she has not disclosed the facts provided by her and upon which this legal advice was based. She has not provided any other associated communication with her lawyer about the issue. The disclosed letter does not necessarily paint the whole picture. and In this particular case I find the wife's act of disclosing the communication … inconsistent with the maintenance of confidentiality of other documents which may exist and explain the surrounding circumstances of the letter including, but not limited to file notes, memoranda and notes of telephone calls.16 This falls squarely into the first category mentioned by Cross, namely that the wife had disclosed a communication between herself and her lawyer, which made it unfair for her to rely on legal professional privilege for the surrounding documents. It should also be noted that the communication the wife disclosed was central to her argument that she was not properly advised within the 28 days of her right to bring a review application. The husband was entitled to test out the wife's contention that she did not receive proper advice within the relevant period. The

court permitted inspection of documents concerning the surrounding circumstances of the letter.

The second argument in Feoli related to a claim of privilege over the file of solicitors who acted for the wife in a negligence action against one of her family law solicitors. The husband sought the entire file. Her Honour doubted the relevance of any material on the file for the issues before her, and declined to allow the inspection of the file, but adjourned the matter to trial.

The third application in Feoli was the most interesting. The husband sought to inspect the wife's present family law solicitor's file on the grounds she had waived privilege by her conduct. It was argued that her case itself was framed in a way which was inconsistent with the maintenance of legal professional privilege. The wife gave evidence in her trial affidavit that part of the reason for her delay in seeking to review the consent orders was due to her illnesses, including major depression.

She also relied on medical evidence that her delay in instructing her solicitors was linked to her psychiatric condition.

The court held the wife's mental capacity had been raised fairly and squarely in a way which constituted a waiver of privilege: The timing of this and her obtaining legal advice become relevant not only for the fact of it, but how the advice impacted on her actions. It thus becomes inconsistent with the maintenance of her usual right to legal professional privilege.

The reason for her delay in instituting these proceedings is one of the central issues in question. It is important to understand what legal advice she received and the part that played in her actions. I am satisfied that it would be inconsistent for her to raise such issues, yet claim privilege for the likely contents of communications between her and [her solicitors].17 This fits into the third of the Cross categories, namely waiver by conduct, although it has shades of the second, which is the 'state of mind' category.

There are of course some limits on the extent to which reference to legal advice waives privilege. The Federal Court has held that a deponent who does not disclose the content or the gist of legal advice received does not waive privilege even if the deponent has referred to legal advice.18 In Baghti & Baghti [2010] FamCA 171 Cohen J considered a stay application in an appeal against interim children's 13

orders. The court had ordered disclosure to the wife of extensive surveillance material gathered by the husband.

The court had been asked to view the video surveillance material by the husband, as had the judicial registrar who had heard the proceedings.

His Honour held that: If evidence which would otherwise be privileged is relied on, the privilege which would otherwise be attached to evidentiary material which would allow a proper understanding of the evidence is taken away. Here, one incident which was seen during surveillance is relied on in what has apparently been extensive surveillance, one cannot fully appreciate whether the whole of the incident has been shown in the evidence of which privilege has been waived or whether concentration on a single incident over emphasises an aspect which will be seen in a different light if all the surveillance material is shown.19 It is difficult to imagine a more obvious case of waiver. Reliance on a partially disclosed privileged communication is bound to prompt calls for disclosure of the remaining material to paint the full picture.

Another 'state of mind' case was provided in a Full Court decision made in 2007. In Stamp v Stamp [2007] FamCA 420, the Full Court of the Family Court considered an application pursuant to s79A of the Family Law Act 1975 (Cth) to set aside consent property orders. In support of her argument that previous consent orders for property adjustment should be set aside, the wife stated that a brain injury she had suffered caused by a fall from a horse had affected her capacity to instruct her previous solicitors. The wife maintained that this constituted a miscarriage of justice. The husband sought production of documents showing communications between the wife and her solicitors during the period the consent property orders had been made.

The Full Court of the Family Court held: •

•

as it was a pre-trial application, and not an application to adduce evidence, the common law rules of waiver of professional privilege applied, not the provisions of the Evidence Act 1995 (Cth); the wife had raised the issue of her capacity to provide proper instructions; this placed her state of mind in issue, in circumstances in which it was not consistent with her maintenance of the privilege.20

Citing Mann v Carnell, the Full Court said:21 14 | BRIEF MAY 2016

There is a move away from considerations of general fairness.

The focus is on the inconsistency of an act, in this case the wife providing particulars of her claim, while maintaining the confidentiality of the communications between herself and her former solicitors.

In Stamp, the wife placed directly in issue her capacity to provide proper instructions in her previous property settlement, making it unfair to maintain privilege. A central issue for the Court in her s79A application was whether a miscarriage of justice had occurred.

It is emphasised that the court is not looking for some general unfairness at large, but specifically for inconsistency between the maintenance of the privilege and the framing of the case. It is not intended to allow a general testing of any evidence by comparing it to privileged material. This would make the privilege worthless. The principles of waiver are not intended to lay bare all relevant communications, be they privileged or not, to test evidence before the court.

The 'state of mind' cases can really only be understood to apply in circumstances where the deponent has placed his or her state of mind as being central (not merely relevant) to the action itself. This situation is exemplified by the decisions of Feoli, and Stamp in which the court was being asked, effectively, to overturn a previous decision of the court on the basis that the litigant had not at the relevant time had full capacity to instruct her solicitors.22 The waiver cases based on state of mind of a witness were helpfully summed up in Delaney & Delaney.23 Speaking of the waiver, the Court said: It does not constitute a broad inroad into legal professional privilege as a 'substantive and fundamental common law principle' [citing cases].

Nor does it involve any balancing of competing public interests, one in facilitating the application of the rule of law by promoting frank communication between clients and their legal advisers, the other in ensuring that all relevant evidence is placed before a court adjudicating as to the legal rights of parties before it: the recognition of the privilege is itself the outcome of such a balancing process: [citing cases]. Nor is it a consequence of the principle that whenever a person's state of mind is relevant to an issue in proceedings, privilege is taken to be waived in relation to legal advice that may have played part in the formation of that state of mind ‌ It is unnecessary and inappropriate, having said those things, to attempt

to define exhaustively the scope of the principle. Where, however, a party relies on a cause of action, an element of which is the party's state of mind (including the quality of the party's assent to a transaction) the party is taken to have waived privilege in respect of legal advice which the party had, before or at the time of the relevant events, material to the formation of that state of mind.

Note for drafters of affidavits Legal advice is sometimes referred to in affidavits, because it is assumed that it gives the evidence more gravitas. As illustrated above, this may result in a demand for production of the legal advice on the ground that privilege has been waived.

It is important to consider whether the evidence your client gives by affidavit necessitates reference to legal advice at all. A common formulation which would cause trouble would be something like the following: My husband failed to return the children on Sunday night. The next morning, I contacted my lawyer who told me that my husband had acted unlawfully, and that I should apply for a recovery order immediately, which is what I did.

It may be argued that by the reference to legal advice, the deponent has acted inconsistently with the maintenance of the privilege, and all of the documents in existence (for example, file notes, emails, texts, letters between client and solicitor) relevant to the waiver should be disclosed.

Whether the paragraph does in fact waive legal professional privilege is arguable, but it probably does. However, the argument could have been entirely avoided. There was no need to refer to the legal advice.

The paragraph could have just as usefully, and possibly more usefully said: My husband failed to return the children on Sunday night. The next morning, I applied for a recovery order.

Another example of some commonly seen formulations of evidence is: I was engaged in sensitive negotiations to sell the business. I was worried that if I disclosed the documents to the husband he would have interfered and the negotiations would have failed. I took legal advice about this. and My lawyer told me that I shouldn't send the children to see their father, so I followed that advice.

Obviously context is all-important. There are some circumstances in the examples above where it would be necessary – indeed advisable – to include reference to legal advice, but others where it would be most inadvisable. For a lawyer advising on the drafting of an affidavit the question should always be: "What is the relevance of the fact of legal advice to the client's case?" If it is irrelevant, don't refer to it.

If it is relevant, advise your client about whether he or she wishes to waive privilege.

THE SUPPORTIVE FRIEND OR FAMILY MEMBER ATTENDING CONFERENCES WITH LAWYERS Clients in family law often wish to attend conferences with their lawyers accompanied by family members or friends. This raises the question as to whether their attendance at such conferences has waived the client's legal professional privilege. This practice represents a particular danger if the accompanying person is also a witness, who may be cross examined about the contents of a privileged communication.

There is no modern Australian authority the author can locate on whether conducting communications in the presence of family members or friends who hear privileged communications waives privilege.24 It is not clear whether warning all those present that the communication must be kept confidential is sufficient. The adviser must take steps to emphasise the confidential nature of the communication.25 An even safer step is to preclude the attendance of the third party altogether.

If the supportive friend or family member is also a potential witness, other issues arise. Their evidence could be influenced by hearing instructions and advice between client and solicitor, and this could well be a line of cross examination.

Caution is urged in allowing friends and family members to attend conferences, particularly where the third party is likely

to be a witness. Parents of clients and new partners may have grounds to make their own applications to the court. There is the ever present prospect of a conflict arising in these circumstances, quite apart from the issue of waiver of privilege.

MISTAKEN DISCLOSURE OF PRIVILEGED DOCUMENTS Any doubt about the ethical and professional obligations of lawyers in this situation was put to rest in the High Court decision of Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46. In litigation involving disclosure of 60,000 documents, a team of reviewers was responsible for categorising documents as either privileged or not. The firm in receipt of the documents wrote to the firm which had discovered the documents pointing out inconsistencies in the discovery in that some documents containing legal advice had been disclosed. The firm providing the discovery immediately responded saying the relevant documents had been discovered in error, and requested return of the documents and an undertaking that the opponent would not take advantage of the error. The other firm refused.

In a strongly worded judgment the High Court held that there was no doubt that the documents disclosed in error should have been returned immediately on the error being detected with the requested undertaking. The Court also said that it should not have been called upon to make this finding, given the circumstances and lawyers' professional obligations. It did not rule out the prospect that as a question of fairness, the obligation to return documents discovered in error may not apply. The Court also said that the party inadvertently disclosing the documents should be prompt in requesting their return.

CONCLUSION

represented by this complex area of the law? At the heart of the lawyer-client relationship is strict confidentiality in the communications between lawyer and client. If this principle is remembered, it should cause us to think carefully before allowing any of these communications to be revealed.

NOTES 1.

The author thanks Ms Alice McShera of DCH Legal Group for her assistance in research for this paper.

2.

Daniels Corp International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at 553. But see Evidence Act 1906 (WA) ss20A– 20F regarding protected confidences.

3.

The doctor-patient relationship has been granted some privilege in some states but not in Western Australia.

4.

Except those protected by the marriage counselling provisions set out in Family Law Act 1975 (Cth) s10D; N & G [2008] FCWA 61 per Crooks J.

5.

An exception for some counselling communications applies to criminal proceedings – Evidence Act 1906 (WA) s19A – s19M.

6.

There are other forms of privilege recognised by the common law including without prejudice privilege, public interest immunity, the privilege against selfincrimination and marital communications privilege.

7.

For example, see Evidence Act 1995 (Cth).

8.

Cross on Evidence, loose leaf edition at para [25210].

9.

(1986) 161 CLR 175.

10.

Followed in Osland v Secretary of State for Justice [No 2] 2010 HCA 24.

11.

Mann v Carnell (1999) 201 CLR 1 at para 29.

12.

British American Tobacco Service Ltd cited in Stamp v Stamp [2007] FamCA 420, 243 at para 56.

13.

These are sometimes called the 'state of mind' cases and are dealt with more fully below.

14.

While Cross focuses on pleadings and evidence, privilege has been held to be waived in letters, press statements and other documents.

15.

Cross on Evidence (loose leaf edition) at para [25010].

16.

Feoli and Di Bello at para36 and 39.

17.

ibid., at para 54 and 55.

18.

Bennett v Chief Executive Officer, Australian Customs Service (2004) 2010 ALR at 220.

19.

At page 4.

20.

This is very similar to the argument in Feoli concerning the records of the wife's current solicitors.

21.

Refer Note 11 at para 54.

22.

For a 'state of mind' case in the context of civil litigation see Commonwealth of Australia v Temwood Holdings Pty Ltd (2002) WASC 107.

23.

[2009] FamCA 752 at para 90.

24.

However, see obiter in New Zealand High Court decision, Harbour Inn Seafoods v Switzerland General Insurance (2 NZLR 381) at 384 regarding disclosure to an association or confidant unconnected with the proceeding.

25.

Woollahra Municipal Council v Westpac Banking Corp (33 NSWLR) 529 at 540.

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Counsel for the Independent Children's Lawyer How Independent is Counsel in Fact?

Elmi Carlean Barrister, Francis Burt Chambers

Part VII Division 10 of the Commonwealth Family Law Act 19751 (the Act) provides at section 68L that if it appears to the court that a child's interests in the proceedings ought to be independently represented by a lawyer, the court may order that the child's interests be so represented and may make necessary orders to secure such representation, either on the court's own initiative, or on application from any other person.

Section 68LA (1) to (4) sets out in general the role of the Independent Children's lawyer (ICL) as follows: General nature of role of independent children's lawyer (1) This section applies if an independent children's lawyer is appointed for a child in relation to proceedings under this Act. (2) The independent children's lawyer must: (a) form an independent view, based on the evidence available to the independent children's lawyer, of what is in the best interests of the child; and (b) act in relation to the proceedings in what the independent children's lawyer believes to be the best interests of the child.

(3) The independent children's lawyer must, if satisfied that the adoption of a particular course of action is in the best interests of the child, make a submission to the court suggesting the adoption of that course of action.

(4) The independent children's lawyer: (a) is not the child's legal representative; and (b) is not obliged to act on the child's instructions in relation to the proceedings.

16 | BRIEF MAY 2016

Section 68LA(5) places the following specific duties on the ICL: Specific duties of independent children's lawyer (5) The independent children's lawyer must: (a) act impartially in dealings with the parties to the proceedings; and (b) ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court; and (c) if a report or other document that relates to the child is to be used in the proceedings: (i)

analyse the report or other document to identify those matters in the report or other document that the independent children's lawyer considers to be the most significant ones for determining what is in the best interests of the child; and

(ii) ensure that those matters are properly drawn to the court's attention; and (d) endeavour to minimise the trauma to the child associated with the proceedings; and (e) facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child.

This is all fine in principle. However, in practice, when the matter goes to trial, it will often be the case that the ICL will engage counsel. The question addressed here is what is counsel's duty if, upon

analysis of all the evidence, counsel reaches a different view to that held by the ICL and for that matter, the single expert witness (if appointed), as to how the best interests of the child are to be met in the circumstances of a particular case?

Ordinarily, when briefed, counsel is bound by the instructions received (subject to ethical duties to the court).

So the question here is whether counsel is bound by the instructions of the ICL – who ordinarily would have had conduct of the matter up to the point of briefing and would therefore be very familiar with the facts? Or does counsel have a separate duty to act in accordance with the statutory obligations imposed on the ICL, as opposed to acting merely on instructions? In other words, is counsel for the Independent Children's lawyer in fact independent?

The definition under the Commonwealth Act and under the Western Australian Family Court Act 1997, is not necessarily helpful to answer this question, namely: "independent children's lawyer for a child means a lawyer who represents the child's interests in proceedings under an appointment made under a court order under subsection 68L(2)". While counsel is not ordinarily personally appointed under a court order, he or she is, however, nonetheless the lawyer representing the child's interests in the proceedings.

Accordingly, in my view, where counsel is briefed to appear for the ICL, he or she takes on the persona of the ICL, and is therefore to act first and foremost in accordance with the statutory obligations imposed upon that role pursuant to s68LA, as opposed to on instructions.

The importance of this distinction recently became apparent to me as I had cause to grapple with this question.

I was instructed to act as counsel for the ICL at a 3-day trial in which both parents sought primary care of the two young children of the relationship. The ICL had been appointed earlier in the matter by the court under Part VII of the Act, to represent the best interests of the children, in circumstances where

the sparring parents appeared to have lost sight of what was ultimately in the best interests of their children and had become deeply embroiled in the blame game against one another. The children had been yo-yoed from the primary care of one parent to the other parent over a number of years, with a new set of allegations of neglect or abuse and corresponding interim orders to move the children, being lobbed into the fray at each change of care.

The matter was further complicated by the fact that the paternal grandmother – a self-represented litigant and first respondent to the proceedings – was at the time of the trial effectively the primary carer of the children, given that the father, who resided with her, and who had primary care at that point in time, was often absent due to work commitments.

While it was common ground that the children's physical needs were being met while in the paternal grandmother's care, the appropriateness or otherwise of her fulfilling a parenting role to them – with all that entails – was deeply in dispute between the parties.

In performing duties and exercising powers in relation to child-related proceedings, the court must give effect to the principles enunciated in section 69ZN which are paraphrased as follows: 1) The court must consider the needs of the child concerned and the impact that the proceedings may have on the child in determining the conduct of the proceedings; 2) the court must actively direct, control and manage the conduct of the proceedings; 3) the proceedings must be conducted in a way that will safeguard: (a) the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and (b) the parties to the proceedings

against family violence; 4) the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties; and 5) the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.

It is usual in these circumstances for the ICL to obtain assistance from a single expert witness (such as a psychologist or social worker) who is appointed under orders of the court by virtue of section 69ZX, to give effect to these principles.

The court is otherwise faced with the inevitable dilemma of determining the matter, to some extent at least, on the credibility of the parents under crossexamination in the witness box which, of course, requires the thankless task of weighing up his side, her side, and ultimately trying to get to the truth of the circumstances between the parties, based on their 'he-says, she-says' evidence.

A single expert witness was therefore briefed with specific terms of reference in order to formulate a considered view as to how the best interests of the children were to be met in future and following on from that, to make appropriate recommendations to assist the court.

The parties, including the children insofar as that was practically achievable, were accordingly interviewed on a number of occasions and three reports in total ensued.

But what happens where the single expert witness has formed an opinion based on a particular line of questioning of the parties which has led to a particular line of reasoning, and therefore a particular view promoted to the court by way of the reports, with which counsel for the ICL does not agree? More compellingly, what is the situation where the ICL him or herself, has formed a view in this regard based on the recommendations of the

single expert witness, but counsel for the ICL does not agree with that view as being in the best interests of the children?

In the particular matter I am referring to, the single expert witness, a reputable social worker of many years' experience, appeared to have taken a strong dislike to the father and the paternal grandmother, focusing almost exclusively on the issue of the father's apparent violent streak, presenting him as essentially a violent man, with the paternal grandmother being cast as unquestioningly supporting him. The reports which ensued were overwhelmingly critical and recommended that the children urgently be moved back to the mother's primary care.

The children had, earlier in the piece, accordingly been moved back to the mother's care. However, given further allegations of neglect on her part, they once again found themselves in the primary care of the father and paternal grandmother. The single expert witness was engaged on three occasions to provide updated reports to the court and each time the recommendations were the same – for the children to be immediately moved to the mother's care, albeit that by then the parties had lived in separate households for some years and therefore the more recent allegations by the mother as to what went on in the paternal household could be no more than speculation on her part.

The recommendations by the expert for the mother as primary carer were well motivated and comprehensively articulated. Equally, at first glance the case against the father as primary carer was quite compelling, particularly as the analysis relied heavily on academic theory about the long-term effects on children of being exposed to aggressive parenting behaviours, in particular the danger of habituation to violent behaviour as a mechanism to deal with day to day stressors.

While the expert had disclaimed his

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17

findings with a statement to the effect that his views were subject to evidence to the contrary being extracted under crossexamination at trial, the point of departure in all of the reports appeared to be that the father was fundamentally a violent man, which conclusion was reached by the expert based largely on the mother’s version of events as relayed during her interviews with him.

Given that family violence is one of the principles which the court must specifically turn its mind to, it is a very important factor indeed and the views of the expert are not to be lightly dismissed.

At first glance, a well-crafted expert report with damning findings, is of course, therefore most compelling. However, it is counsel's duty to consider the evidence critically as opposed to blindly following the recommendations of the single expert.

On closer analysis it appeared that there had been little or no critical examination of the circumstances faced by the parties at the time, nor any objective testing of whether the outbursts and arguments which clearly prevailed in the household of these young parents when they were still together, were possibly situational and related at least in part to the crisis the young family was undergoing at the time. Accordingly, there was no apparent recognition of them both playing a significant role in perpetuating the crisis.

Not addressing the situational stressors in any depth resulted in the expert apparently not putting the mother's accusations to the father in order to get his version of events, nor exploring the potential impact on him of those stressors in any meaningful way. It also resulted in the issues around the mother's lacking parenting being effectively ignored in the matters which the single expert witness took into account in formulating his recommendations for the court. The mother's apparently neglectful parenting having been serious enough to occasion intervention from the Department for Child Protection, as well as the filing of numerous affidavits by a number of people such as concerned neighbours and the like, who were concerned about her ability to parent the children adequately.

The paternal grandmother was in turn for the most part viewed through the lens of being a mere extension of the father and the fact that the children were ultimately well cared for and in a safe and routinised environment when living with her, was overshadowed by the spectre of the father's alleged violent streak – according to the mother's untested evidence, that is.

Given the persuasive weight which is afforded to the views of a court-appointed single expert witness, it is not surprising 18 | BRIEF MAY 2016

or unusual that the ICL had throughout the life of the matter formed views which accorded with the recommendations of the expert – not having had the benefit either of personal interviews with all the parties and the children nor, of course, having a crystal ball to foretell the outcomes of any cross-examination in due course at trial. The ICL's instructions to counsel were accordingly, and understandably so, for the most part based on the recommendations of the single expert witness.

This brings me to the crux of this article: to follow or not to follow the instructions of the ICL? In my view, counsel's overriding obligation is to represent the best interests of the children to the court as the lawyer representing the child in the proceedings, and having taken all of the evidence into consideration. Counsel is in the unique position of having a bird's eye view of all of the available evidence at the commencement of the trial, together with the added advantage of having a fresh perspective on the matter and possibly possessing a greater level of objectivity than the ICL who would have been closely involved in the matter over some time.

Counsel also has the added advantage of being engaged for the sole purpose of assisting the court to come to the best determination insofar as the interests of the children are concerned. As such, the court will rely on counsel to present it with all the necessary information to enable the court to make the right decision.

However, it will be a fine line to navigate between forming a view contrary to that of the single expert witness, maintaining that view in the face of contrary instructions from the ICL, and persuading the court that there are good reasons for reaching such a contrary conclusion and departing from the recommendations of the single expert witness.

best interests of the children, regardless of what the parties think or wish in this regard.

Where a single expert witness and an ICL have been appointed, the court, even when the matter settles, will therefore still be guided by their views in exercising its discretion before making orders, so as to ensure that they appropriately reflect the best possible outcome for the children in all the circumstances of the case (and with reference to the s69ZN principles referred to above).

In the matter to which I am referring, this is what transpired. The parties decided on a compromise as between themselves regarding the care arrangements for the children. However, the court was not satisfied as to whether that compromise was necessarily in the best interests of the children and therefore sought guidance from counsel, particularly in relation to the views expressed by the single expert witness in various reports.

Given that counsel's views conflicted with those of the single expert witness as well as those of the ICL (insofar as they supported the recommendations of the single expert witness), the tricky question of 'what now' arose. This was because the matter had effectively been settled and the trial was no longer continuing and so there would no longer ordinarily be occasion to test the expert under crossexamination.

It was at this juncture that I found it useful to revert to the statutory framework provided around the role of the ICL and, stepping into the shoes of the ICL, to use section 68LA of the Act as a roadmap so to speak. Specifically therefore:  s68LA (2)(a) Form an independent view:

Should the trial proceed and all parties' evidence be heard, the single expert witness would normally be called as a witness and his or her views could be tested under cross-examination. The potential difficulty which I have flagged above would therefore largely resolve itself in the natural course of events and the court would be able to draw its own conclusions from the evidence led.

However, in Family Court matters, particularly where children are involved, where the parties decide that they wish to settle the matter and reach a compromise, they may find that the court is not automatically minded to make the orders they have agreed between themselves insofar as they relate to the care of the children. This is so because the departure point for the court is that any orders it makes must first and foremost be in the

As counsel you must form an independent view, based on all the evidence available, of what is in the best interests of the child.

The key here is that it must be your independent view, not anyone else's opinion. Canvas your opinion with the instructing ICL and be open to any information you may not have been previously made aware of, but remain firmly independent in your conclusions ultimately reached.

 s68LA (2)(b) Act in the best interests of the child:

You must then act in what you believe to be the best interests of the child. That means that you consider, but are not bound by, the instructions you receive, or the views expressed in any reports, but that you are ultimately guided by your overall weighing up of all of the relevant

evidence.

their argument is.

 s68LA (3) Adopt a course of action:

 s68LA (5)(b) Put the child's views:

If you are satisfied that adopting a particular course of action is in the best interests of the child, you must make appropriate submissions to the court recommending that course of action. Be prepared to set out in some detail the reasons why your views diverge from that of the single expert witness, and be equally prepared to substantiate your contrary recommendations.

Put any views expressed by the child fully before the court. But be mindful of the potential for undue influence being exercised upon the child by a parent who wants a specific outcome. Critically analyse the findings of the single expert witness in this regard to ensure that the views of the child as reported, have not been formed in accordance with the prevailing parent's wishes and or pressure exerted.

 s68LA (4) You are not the child's lawyer:

 s68LA (5)(c)(i) Analyse the report:

You are not the child's legal representative and are not obliged to act on any instructions which the child may have given (or given through a parent). However, you must consider the child's views and afford appropriate weight to them, when taking all the evidence into account.

 s68LA (5)(a) Act impartially:

As counsel, you must act impartially towards all parties to the proceedings. Be alive to the parties using the report of the single expert witness to their advantage, insofar as it supports their case. Do not be swayed by one party's views above another no matter how compelling

Critically analyse the single expert witness's (or any other) report to identify those matters which you consider most significant to determine what is in the best interests of the child. Be alive to theoretical postulation in the reports.

We do not live in an ideal world, and parenting shortcomings flagged in an expert report could simply highlight the fact that there may be nothing more to be realistically expected from the particular parties than adequate parenting at best.

 s68LA (5)(c)(ii) Flag all relevant matters with the Court:

attention of the court. Point out to the court if the expert may have applied an unachievable standard of parenting in his or her recommendations.  s68LA (5)(d) Minimise the trauma to the child:

Try to minimise the trauma to the child associated with the proceedings. This requires consideration of the outcomes least likely to result in further litigation down the track and working hard to try and facilitate those outcomes.

 s68LA (e) Facilitate an agreed resolution:

You must try and achieve a resolution between the parties where at all possible, to the extent to which you consider doing so is in the best interests of the child. Remember in this regard that parents who already are deeply conflicted, are most likely to become even more deeply conflicted following a lengthy trial and being put through cross-examination etc. This does not bode well for future cooperation insofar as the child's needs are concerned.

NOTES 1.

Bring those matters fully to the

The corresponding provisions of the Family Court Act 1997 (WA) are s164 and s165.

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19

Mediation in the Family Court of Western Australia Heinrich Moser1

BACKGROUND By the end of 2011 the Family Court of Western Australia was in crisis. Two of its five judges had been on long-term sick leave and the backlog had blown out to 950 cases. The median wait time for trial had grown to more than two years.

In response to this crisis2 the Western Australian branch of the Australian Institute of Family Law Arbitrators and Mediators (Inc) (AIFLAM) with the assistance of Associate Professor Jill Howieson of the University of Western Australia and in consultation with the Family Court of Western Australia, conducted training in mediation-style conferencing for approximately 60 senior Family Lawyers practising in Western Australia.

The combined effect of the immediate availability of a significant number of practitioners trained in mediation and the Family Court of WA's support of the initiative has in just four years created an atmosphere where alternative dispute resolution external to the Family Court, both prior to and during proceedings, is commonplace and an integral part of the tools applied to resolve matters.

IMPLEMENTATION OF MEDIATION IN THE FAMILY COURT Mediation has become a common process notwithstanding the fact that neither the Family Law Act 1975 (FLA) nor the Family Court Act 1997 (FCA) and their associated Rules and Regulations provide for external mediation or other conciliatory process.

In fact, both Acts require parties to financial proceedings to attend a conciliation conference before a registrar of the court before an order (other than an interim or consent order) can be made, unless special circumstances exist or it is not practicable for the parties to attend such a conference.

Discussions between AIFLAM and the court resulted in a pragmatic solution being found whereby the court would accept that special circumstances 20 | BRIEF MAY 2016

sufficient to warrant a dispensation from attending a conciliation conference would exist if parties had attended a mediation-style conference with a practitioner trained by AIFLAM. The benefit of this dispensation is that if resolution could not be achieved, the case could immediately be placed in the defended list of cases awaiting the allocation of a trial date.

The training provided by AIFLAM consisted of an abbreviated course in mediation (two days as opposed to five days for full accreditation), hence the use of the term "mediation-style conference", and provided participants with the core capacities needed to conduct a conference where parties could engage in interest-based negotiations.

A further fundamental difference between the practitioners trained to chair mediation-style conferences and nonfamily lawyer mediators is that the former can, if requested, express a view on the outcome and thus provide independent guidance to the parties. This is a factor which had been identified by Howieson in her research as being crucial to increase the likelihood of a negotiated settlement and in turn, provided the court with satisfaction that participation in a mediation-style conference was equivalent to compliance with s79(9)(a) FLA/205ZG(9)(a) FCA3.

The benefit of abbreviated training was that it could be delivered to a large number of participants quickly and at a reduced cost, compared with the full mediation training leading to national accreditation.

The underlying idea was to create a mindset which would then lead to participants in the training extending their qualifications to become nationally accredited mediators.

As had been hoped, the uptake of the initiative by the family law profession, both as participants in the training and subsequently by practitioners at large, was enthusiastic and much of what has been intended has come to pass.

EFFECTS OF MEDIATION On Litigants The research conducted by Howieson on procedural justice and lawyer-client interaction in Family Law disputes4: … showed clearly that Australian family lawyers are highly flexible and constructive in their approach to family lawyering. The results highlighted that the lawyers can exhibit a highly conciliatory approach contemporaneously with an adversarial approach (when required) and that the lawyers tailor their approach to suit the particular needs of the client. The results revealed that in the main, the lawyers are constructive and conciliatory in their approach and use a mix of lawyering behaviours in the work. They also tend to use a problem-solving negotiation style. The study found that this overall approach creates a procedurally fair and satisfying dispute resolution process for their clients.

The mix of behaviours that the study found that Australian family lawyers use in their approach to family law dispute resolution include the following: •

interest-based (emphasising finding fair and interest-based solutions),

•

client-centred (sharing information, compassionate, inclusive and respectful of the client, and protecting of legal rights),

•

lawyer-directed (conducting simple and efficient meetings) and

•

court-focused (using the Court to facilitate resolution when appropriate) models of lawyering based on the needs and directions of the client5.

The methodology used in mediationstyle conferences addressed all of these

factors to enable parties to achieve their own sustainable solutions, including in particular the use of mentalising: The underpinning theory to the mediation-style conference training combines what we know about procedural justice and its importance in producing fair and satisfying dispute resolution procedures with the emerging theory of mentalising which refers to "the capacity to attend to and seek to understand behaviour based on the mental states in the self and the other."

The mentalising research shows that when people are able to mentalise, they are able to think more clearly about what they are experiencing and are able to interact with others more constructively. The research shows that mentalising can be a powerful agent of change in conflict situations as people began to uncover the underlying reasons behind their conflict behaviour and the causes for the dispute and the dispute escalation become less opaque.

Further, when parties engage their mentalising capacity it can aid the parties by helping them to reconcile their conflicting emotions and help them to feel less overwhelmed by the cluster of problems that the divorce or separation might have triggered.6 Disputes in family breakdowns, even if they relate solely to financial matters, cannot be reduced to a matter of dollars and cents. There is a multitude of other factors which play a significant part in achieving what parties see as a 'fair' solution. Family lawyers are accustomed to dealing with their clients' feelings of grief, loss of trust and respect to name the most fundamental. The simple truth though is that with the best of intentions, the court is not charged with, nor equipped to deal with, this aspect of disputes that come before it; even a very experienced family lawyer can come to the point where he or she is unable to offer the client a way forward.

On the other hand, these issues can be addressed and accommodated in mediation allowing parties to deal with their grievances in a constructive manner.

In the writer's experience, the most common response of parties after settlement at mediation is one of gratitude that they are able to move on with life, having been able to address their interests and work out a solution which might not be perfect, but at least acceptable.

On Practitioners Firstly, while prior to the end of 2011 there were only a handful of practitioners qualified as mediators, of the 60 practitioners trained in early 2012 as mediation-style conference chairs, 41 have obtained national mediation accreditation status. This clearly shows not just an interest in mediation per se, but more importantly an acceptance that mediation is part and parcel of dispute resolution in family law.

Secondly, this being part of the success of the model adopted and notwithstanding the qualities of family lawyers already observed by Howieson mentioned above, practitioners engaged in mediation, either as mediator or representative of a party, have become used to mentalising themselves. As a result, they are able to more effectively engage in the process.

instituted, the court's resources can be applied to those matters which require judicial determination.

WHERE TO FROM HERE? Despite the positive effects of mediation so far outlined, Nirvana is still far away: •

even if 80% of disputes are resolved, that leaves 20% outstanding;

•

the Court is still some 23 weeks away from its KPI of 60 weeks from institution of proceedings to trial in financial matters;

•

the mediation-style conferencing model is geared towards parties who are both represented, thereby excluding the large proportion of cases where at least one party is self-represented;

•

mediation outside of the court process is costly for litigants. The fees for a full-day mediation, leaving aside the costs of representation, ranges between $2,000 and $6,000 to be shared by the parties;

•

frustratingly it is also the case that even if partial resolution of a matter is achieved, too often the partial agreement falls by the wayside by the time the matter returns to court to deal with the outstanding issues.

On the Court At the end of 2011 the median time to trial was 109 weeks. This was reduced

by August 2013 to 107 weeks, August 2014 92 weeks, August 2015 89 weeks and presently stands at 83 weeks.

This was achieved notwithstanding the number of trials increasing from 2014 to 2015 from 340 to 413.

This improvement is by far not only related to mediation as a tool to resolve matters in court – and to prevent them reaching the court in the first place.

The court has undertaken a number of initiatives to increase its efficiency, some of which are outlined in the interim report of the Law Society's Family Court Delay Working Group published in February 2014.

Regrettably, neither practitioners nor the court have accurate statistics concerning the effect of mediation, so the impact of mediation cannot be adequately measured. Nevertheless, his Honour Justice Stephen Thackray, Chief Judge of the Family Court of Western Australia, has publicly acknowledged the take up of mediation-style conferencing as one of the most important of the factors leading to reduction in wait times in the court.

Leaving aside the debate of what constitutes 'success' in mediation, anecdotally from discussions with other mediators, settlement rates generally exceed 80%. Of course, it can be argued that many matters would settle in any event and at the latest at the courtroom door, however, for the court and its ability to deliver services, the timing of a settlement is crucial. Therefore, if settlement can be achieved at an early stage or even prior to proceedings being

To address the last point in the list of outstanding issues above, work is being undertaken by AIFLAM to record the outcomes of mediations to a) ensure that the court can be satisfied that the requirements of s79(9)/205ZG(9) have been satisfied and b) attempt to record in a formal way any partial resolution with a view to reducing the issues for determination by the court.

In order to obtain a better insight of factors standing in the way of resolutions at mediations, at the last Weekend Conference of the Family Law Practitioners' Association of WA an interactive survey was conducted of more than 200 Family lawyers, including many of the mediators mentioned above who had attended the AIFLAM training.

There were two major factors identified as significantly impeding the success of mediation: the first was inadequate preparation (in particular disclosure) to allow the mediation to tackle all issues, and the second was the approach taken by some lawyers representing parties.

Dealing with the first point, disclosure is always a balancing act between the need to provide relevant material and ensuring proportionality. Mediation is not a short-cut to a resolution without addressing the fundamentals needed to 21

ensure that justice does not miscarry7.

Practitioners need to be mindful that while early resolution is an admirable object, part of the expectations of parties is that a proper process is followed. This may require delving into the sometimes tedious aspects of providing and seeking disclosure so that all parties can make fully informed decisions.

In relation to the second point, the complaints of those surveyed ranged from lawyers being adversarial and citing legal authorities, all the way through to the lawyers just being the client's mouthpiece.

Such complaints are not really surprising.

Lawyers by their nature are solutiondriven, have views on the correct legal outcome for their client and are trained to express them. Mediation, however, takes a different mindset where positions rank secondary to interests, particularly in the family law context. Speaking from personal experience as a mediator, having to ask a party: "What do you think/feel about what has just been said?" takes considerable practice.

In order to deal with these concerns, it is clearly necessary to ensure that all practitioners have access to training to equip them to engage in mediation.

transactional lawyers). As a result, they should rank in importance alongside other matters taught and practised at law schools, such as procedure and commercial practice.

What then with those cases where a resolution cannot be negotiated? Is trial the sole remaining avenue?

Although the Family Law Rules dealing with arbitration have recently been given more teeth, the fundamental issue with arbitration (as with mediation) is that it still requires the consent of both parties and the court cannot order the parties to undergo arbitration.

AIFLAM continues to work closely with the Family Court of Western Australia and meets with the Chief Judge and the Principal Registrar regularly to improve the effectiveness of the process. For instance, AIFLAM has provided the court with a list of mediators specifically available to assist in Hague Convention matters. Further, the court has agreed to make available to practitioners and litigants a list of alternative dispute practitioners compiled by AIFLAM setting out:

Nevertheless, given the experience with mediations and their established place in the family law firmament four years after being almost non-existent, AIFLAM is actively working towards making arbitrations just as mainstream as mediations are now.

•

qualifications as nationally accredited mediators, arbitrators and/or family dispute resolution practitioners;

•

whether a practitioner is prepared to act where one or both parties are not represented; and whether a practitioner is prepared to act on a reduced fee basis.

•

Presently, there is no compulsion to do so. One of the recommendations of the Law Society's Family Court Delay Working Group was to make mediation mandatory. The court does not yet have the power to require this, but if it did, a clear imperative would exist.

To assist the court in gaining an appreciation of how mediation works in practice, AIFLAM was able to make a 'role-play' presentation at the court's recent annual conference explaining the process and advantages of mediationstyle conferencing.

In any event, it is the writer's view that mediation and other alternative dispute resolution procedures are an important part of the armoury of all lawyers (even

Further, AIFLAM has once more called on the expertise of Howieson to explore other options and a discussion paper has been prepared dealing with the

22 | BRIEF MAY 2016

prospects of arbitration as the next step.8

NOTES 1.

LLM, Barrister, Arbitrator and Mediator, Director Australian Institute of Family Law Arbitrators and Mediators (Inc), Stone Chambers, West Perth.

2.

Davis A, Howieson J. Family Law Mediation-style Conferencing: Creating an Opportunity in a Crisis.

Australian Family Lawyer 2012, Vol. 23, p. 13-19.

3.

Howieson J. Bringing the Lawyers into Family Financial Mediations: Protecting the Clients, Supporting the Process and Making use of Evidence-based Practice.

Paper presented at the 15th National Family Law Conference, Hobart, October 2012.

4.

Howieson J. Family Law Dispute Resolution: Procedural justice and the lawyer-client interaction (D Phil Thesis, University of Western Australia, 2008).

5.

Howieson J. Bringing the Lawyers into Family Financial Mediations: Protecting the Clients, Supporting the Process and Making Use of Evidence-based Practice, p. 2.

6.

ibid., p. 4.

7.

See for instance Pearce & Pearce [2016] FamCAFC 14, where the Full Court affirmed the decision of a trial judge setting aside consent orders some 9 years after they were made on the basis of non-disclosure which had deprived a party of the opportunity to make relevant enquiries.

8.

Howieson J. From mediation-style conferences to mediation-style arbitration, May 2016 Brief at page 29.

Consumer Credit Legal Service Website launch cclswa.org.au

Mitchell Coles CCLSWA Solicitors Curtis Ward and Georgina Molloy; CCLSWA Chairman Matthew Knox; CCLSWA Principal Solicitor Faith Cheok; The Hon Michael Mischin Attorney General; CCLSWA Solicitor Gemma Mitchell; and CCLSWA Legal Administrative Assistant Gemma Corles.

WEBSITE LAUNCH On 17 February 2016, Consumer Credit Legal Service (WA) Inc. launched its revamped website. The Attorney General, The Hon Michael Mischin MLC, was our guest of honour who officially launched our website at the Parliament House. The launch went smoothly, despite a small glitch: Parliament House had no internet on that day, thanks to a hack the night before!

Members of the Legislative Assembly, Members of the Legislative Council and our colleagues from the legal fraternity attended the launch.

The revamped website is the culmination of over eight months' hard work by CCLSWA. Solicitor Gemma Mitchell managed the project, under the leadership of Principal Solicitor Faith Cheok. Gemma put in innumerable hours, whilst carrying out her usual duties. At the launch, Gemma gave an overview of the website functions and capabilities. Our guests commented on how fantastic and user-friendly our website is.

The new CCLSWA homepage.

The website contains fact sheets; flow charts; auto-letters; as well as videos and presentations of all aspects of our practice area. Staff and volunteer paralegals at CCLSWA were responsible for preparing the content for the website while Perth-based web designer Burning Fruit produced it.

Since the upgrade, over 7000 users have accessed the website; approximately 1000 visits every month. The website gives users information about their rights and responsibilities in a range of

consumer and credit matters; including the steps they can take when facing financial difficulty, such as applying for hardship variations.

Flow charts give users a clear breakdown of many of the scenarios they may encounter in credit and consumer matters, while the videos provide information snapshots of our practice areas.

CONSUMER CREDIT LEGAL SERVICE (WA) INC. Consumer Credit Legal Service (WA) Inc. is a community legal centre specialising in consumer credit issues and some Australian Consumer Law issues. We operate a telephone advice line manned by volunteer paralegals. We aim to empower callers with the knowledge and tools to self-advocate whenever possible. Since July 2015, the advice line has received over 1500 calls. CCLSWA also helps clients to advocate at cost-free industry dispute resolution bodies, being the Financial Ombudsman Service and the Credit & Investments Ombudsman.

CCLSWA is very active in the community.

We run financial literacy education at high schools throughout the metropolitan area and regularly present guest lectures in law or related courses at the University of Western Australia, Notre Dame, Curtin and Murdoch Universities. We work closely with financial counsellors and other consumer advocates. We also actively participate in law reform and policy development in consumer rights, banking and credit matters.

graduate students with the training required to satisfy the Practical Legal Training component of the Graduate Diploma of Legal Practice, while undergraduate students gain valuable experience in legal practice, often with credit towards their courses. CCLSWA prides itself on its close supervision and training of volunteers. We ensure that our volunteers are constantly challenged to encourage them to develop their legal skills.

The volunteers operate the telephones and take full instructions directly from callers. They draft legal advice, which is checked off by supervising solicitors before they deliver it to clients.

CCLSWA believes in investing in the growth and development of its staff and paralegals. There is ongoing training for staff and volunteers throughout the year, focusing on all aspects of professional development such as legal drafting, communication and presentation skills.

Interested students may apply directly to CCLSWA through its website at cclswa.org.au COMMUNITY LEGAL CENTRES Western Australia is home to 28 community legal centres. In the 20132014 financial year, WA centres provided almost 50,000 instances of legal advice1.

Consumer Credit Legal Service (WA) Inc. is one of such centres, which provides generalist or specialist advice to the Western Australian public. We are proud to be involved in bringing about equity in access to justice.

VOLUNTEER PARALEGAL PROGRAMME

NOTES

CCLSWA's extensive volunteer programme is the engine room of our services. The volunteer cohort is made up of undergraduate and graduate law students from the law schools in Western Australia. The programme provides

ABOUT THE AUTHOR

1.

CLCA(WA) 2013/2014 Annual Report.

Mitchell Coles is a graduate of Murdoch University, with a Juris Doctor, Bachelor of Criminology and Bachelor of Forensics. He has been a volunteer paralegal at CCLSWA since January 2016 and is a Fellow of the inaugural Piddington Justice Project, which aims to provide greater opportunity for law graduates completing their practical legal training, in conjunction with improving access to justice for all.

23

More resources for lawyers who help those who should be in the centre of family law cases – the children Kylie Beckhouse Director, Family Law, Legal Aid NSW

Last financial year, Independent Children's Lawyers (ICLs) represented children in family courts in about 4800 cases – and that figure is growing.

Nationwide Legal Aid commissions engage almost 550 ICLs to do this work.

Representing vulnerable children is arguably one of the most critical roles played by lawyers in the family law system.

ICLs are specially trained legal practitioners appointed in some federal family law children's matters as a 'best interests' advocate for children.

They act as the 'honest broker' by reminding all parties that the child, and their best interests, should be at the centre of proceedings.

They are appointed only in the more complex cases – those involving abuse, mental illness, family violence, substance abuse or intractable conflict.

This work requires great skill to achieve the outcomes that are truly in the best interest of the child.

Not only do ICLs have to be excellent lawyers, they need to be able to relate to the children and understand the complex issues in their lives. They need to work well with those other nonlegal professionals who work with the child or children. They also assist the Court in gaining a better picture of the child's circumstances by providing an independent, impartial, child-focused perspective.

In 2013, a report by the Australian Institute of Family Studies highlighted the importance of understanding social science for lawyers working in a multidisciplinary context. It also raised some suggestions about how ICLs could be better trained and supported.

In the past three years much has been

24 | BRIEF MAY 2016

done in response to the report: •

the monitoring of the performance and selection of ICLs has improved;

•

training and professional development has been enhanced;

•

arrangements concerning complaints, policies, procedures, and practice standards have been reviewed; and

•

there also is now a mandatory ICLspecific continuing professional development requirement, and a protocol for exchanging information with child protection agencies.

In another important step along the way National Legal Aid has produced information for children and their parents about the role of ICLs. Also, in February a new website for ICLs was launched which pulls together much of this important information with other resources to help ICLs carry out their work.

This new website (icl.gov.au) includes access to a mentoring programme, social science research pages sponsored by the Australian Institute for Family Studies, significant cases, as well as legislation and relevant guidelines.

The project, initiated by Legal Aid Commissions across Australia, was supported by collaboration between the Attorney General's Department, the Australian Institute of Family Studies, and the Law Council of Australia.

While Legal Aid budgets are shrinking, the use of ICLs is growing – and court delays and the increase of selfrepresented parties has added to the workload and complexity of cases in the system.

This is why these resources, as well as ongoing professional training – such as the National ICL conference in

Melbourne on 18 October 2016 – are so important to help ICLs to do the best job they can in a difficult environment.

Part of the website is accessible to the public, and provides useful information, including interactive, animated clips explaining the role of ICLs to children.

The website resources are of particular importance for ICLs in rural and remote Australia who traditionally face difficulties in accessing resources, networking and collaboration with colleagues. The website will help them be better connected and have better access to training and mentoring, which in turn will enable them to provide a high quality of service, delivering significant rewards to communities across Australia.

Legal Aid commissions across Australia are funded by the Commonwealth to manage the appointment of all ICL requests from Family Law Courts, appoint private solicitors and in-house lawyers for specific cases under grants of legal aid, and provide mentoring, training and support for ICLs. Together with the Law Council's Family Law section, Legal Aid commissions also train lawyers who wish to be considered as ICLs. ICLs across Australia are encouraged to register, so as to access the secure part of the site.

It is a great example of how good research can lead to better outcomes for children, and how obligations under United Nations conventions (UN Convention on the Rights of the Child) work in practice.

Salaried/Equity Partners and Senior Associates KBE Human Capital is currently partnering with leading national/international and long established boutique firms to secure Salaried/Equity Partners and high calibre Senior Associates.

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If you would like to discuss M&A opportunities within the Western Australian legal market, we would be delighted to speak with you.

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Managing Director

Maryann McKenna Principal Consultant

KBE Human Capital P: 08 6467 7889

A: 1322 Hay Street, West Perth 6005 M: 0411 645 984 M: 0423 867 110 E: chris@kbehumancapital.com.au E: maryann@kbehumancapital.com.au W: kbehumancapital.com.au

LAW WEEK 2016 Monday, 16 May – Friday, 20 May 2016

The Law Society of Western Australia will showcase a series of events and information sessions focusing on law and justice in the community including:

A FOCUS ON LAW AND JUSTICE IN THE COMMUNITY This year’s Law Week provides an excellent opportunity for the profession to engage with the community and to promote its role in enabling an open, independent and unbiased judicial system. Law Week showcases events which provide the opportunity for the community and the legal profession to engage in open dialogue and to build a shared understanding of the role of the law in society.

•

Law Week Breakfast with Fred Chaney AO

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Panel discussion hosted by the Law Society's Young Lawyers Committee

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Mental health seminars

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Free information sessions and talks

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Activities hosted by councils and community centres across Western Australia

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Community events including activities for school students

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Free legal advice – by appointment at specific locations

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Lawyer of the Year Awards

•

Cocktail evening to close Law Week 2016

MONDAY, 16 MAY 2016

WEDNESDAY, 18 MAY 2016

The Case for LegaL aid – LAW WEEk bREAkFAST WITH FRED CHANEy AO Time 7.15am – 9.00am Venue Argyle Ballroom, Parmelia Hilton Perth, 14 Mill Street, Perth Description Keynote speaker Fred Chaney AO marks the opening of Law Week as he delivers the Case for Legal Aid.

LIFELINE WA: DOMESTIC VIOLENCE AWARENESS SESSION Time 9.30am – 11.30am Venue The Law Society of Western Australia Level 5, 160 St Georges Terrace, Perth Description Domestic and family violence is a whole of community issue with a history of stigma and avoidance by most the public and the authorities. DV Aware is a two hour workshop which will raise awareness of the signs of domestic and family violence, what constitutes domestic and family violence and how to respond.

Register Jill Symons on (08) 9261 4463 Cost Free Organiser Lifeline For Legal profession and the community

Register Cost Organiser Award organiser For

The Law Society, once again, is delighted to welcome the Attorney General, The Hon Michael Mischin MLC, to the breakfast to present the Attorney General’s Community Service Law Awards. lawsocietywa.asn.au/law-week Law Society Members - $55 Members, Non-members - $80 The Law Society of Western Australia Department of Attorney General Legal profession and the community

TUESDAY, 17 MAY 2016 LAW ACCESS INAUgURAL WALk FOR JUSTICE Time 7.30am – 8.30am Venue Commences at Barrack Square Description Join us on the CBD foreshore on National Pro Bono Day for the inaugural Law Access Walk for Justice to celebrate the vital pro bono work of the profession and to raise funds for the Law Access Pro Bono Referral Service. Breakfast will follow the walk.

Register everydayhero.com.au/event/lawaccesswalkforjustice Cost Free, registration essential Organiser Law Access For Legal profession and the community HOW DISRUPTION MAy IMPACT ON DIVERSITy IN THE LEgAL PROFESSION Time 12.30pm – 2.00pm Venue The Law Society of Western Australia Level 5, 160 St Georges Terrace, Perth Register lawsocietywa.asn.au/law-week Cost Free Organiser The Law Society and Women Lawyers of WA For Legal profession and the community

ALFRED HAWES STONE TALk - EARLy LAWyER AND PHOTOgRAPHER Time 1.00pm – 2.00pm Venue Old Court House Law Museum, Stirling Gardens Cnr Barrack Street & St Georges Tce, Perth Description Alfred Hawes Stone was one of the first people to practice law in the Swan River Colony. Later in life, he also became a keen amateur photographer. In her talk, Dr Pamela Statham-Drew tells the story of this fascinating character from Perth’s history and in doing so gives us a glimpse of life in early Perth.

Register museum@lawsocietywa.asn.au Cost Free Organiser The Law Society's Old Court House Law Museum For Legal profession and the community

Special thanks to

WEDNESDAY, 18 MAY 2016 MENTAL HEALTH MATTERS: REVIEW OF THE MENTAL HEALTH AND DEPRESSION IN THE PROFESSION REPORT Time 3.30pm – 4.30pm Venue The Law Society of Western Australia Level 5, 160 St Georges Terrace, Perth Description Law Mutual (WA) and the Law Society of Western Australia are committed to initiatives which lead to healthier work environments for the whole profession. For every practitioner, mental health and wellbeing is an important issue and exploring the many aspects of a balanced approach to work and life is of ongoing importance.

Register Cost Organiser Sponsor For

In 2015, the Law Society’s Mental Health and Wellbeing Committee undertook a review of the report on Psychological Distress and Depression in the Legal Profession 2011. This seminar will discuss the review, which has reduced the number of original recommendations in the report from 29 to 13, and explore why the promotion and raising awareness of mental health and wellbeing within the legal profession is important. lawsocietywa.asn.au/law-week Free The Law Society of Western Australia Law Mutual (WA) Legal profession

SOLE PRACTITIONER AND SMALL FIRM FORUM Time 5.00pm – 7.30pm Venue The Law Society of Western Australia Level 5, 160 St Georges Terrace, Perth Description This forum is a valuable networking and learning opportunity for sole practitioners and lawyers from small firms. Come along and make valuable business and social connections, whilst learning about marketing and advertising for sole practitioners and small firm practitioners. After the presentation, join us for canapés and refreshments and mix with colleagues in a relaxed environment.

Register lawsocietywa.asn.au/law-week Cost Law Society Members - Free, Non-members - $30.00 Organiser The Law Society of Western Australia Sponsor Thomson Reuters For Legal profession only RESOLUTION INSTITUTE WA CHAPTER'S LAW WEEk EVENT Time 5.30pm – 7.00pm, please arrive by 5.15pm Venue Jackson McDonald, Level 17, 225 St Georges Terrace, Perth Description Presentation of the Michael Klug Award and Elizabeth Macknay of Herbert Smith Freehills to speak on the Global Pound Conference.

Register resolution.institute/events Cost Free Organiser Resolution Institute combining LEADR and IAMA For Legal profession LAW WEEk PANEL DISCUSSION HOSTED by THE yOUNg LAWyERS COMMITTEE Time 6.00pm – 7.30pm Venue Supreme Court of Western Australia Stirling Gardens, Barrack Street, Perth Description Homophobia within the Law “the Parliament disapproves of sexual relations between persons of the same sex and … disapproves of the promotion or encouragement of homosexual behaviour” - Law Reform (Decriminalisation of Sodomy) Act 1989 (WA)

LAW WEEk DINNER FOR LEgAL PROFESSION AND STAFF Time 7.00pm Venue Lavender Cottage, Peels Place Albany Description Practitioners and practice managers are invited to attend a dinner hosted by the Aboriginal Legal Service of Western Australia Register Registration essential - (08) 9841 7833 or rhickson@als.org.au Cost $60 per person for 2 course meal. BYO. Organiser Aboriginal Legal Service of Western Australia For Legal profession and staff

THURSDAY, 19 MAY 2016 REFUgEE MATTERS Time 12.00pm – 1.30pm Venue The Law Society of Western Australia Level 5, 160 St Georges Terrace, Perth Description A seminar for lawyers and non-lawyers. Networking lunch provided.

Attendees will receive 1 CPD point in Competency 4.

Register lawsocietywa.asn.au/law-week Cost Law Society Members - $79, Non-members - $99, CPD Active Members - Free Organiser The Law Society of Western Australia For Legal profession and the community LAW WEEk COCkTAIL EVENT AND LAWyER OF THE yEAR AWARDS Time 5.30pm – 8.00pm Venue Bankwest Place, Level 1, 300 Murray Street, Perth Description As Law Week comes to a close, the Law Society invites you to a cocktail evening to celebrate law and justice in the community. Join distinguished guests for an evening of music, conversation, and a relaxed atmosphere with colleagues. The cocktail evening will also recognise nominees and recipients of the Lawyer of the Year Awards and the Life Member Awards. Dress - Business attire.

Register lawsocietywa.asn.au/law-week Cost Law Society Members - $60, Non-members - $85 Organiser The Law Society of Western Australia (Hosted by Bankwest) Sponsor Profile Legal Recruitment and Murdoch University For Legal profession

FRIDAY, 20 MAY 2016 MENTAL HEALTH MATTERS: TECHNOLOgy AND ITS EFFECTS ON THE PRACTICE OF LAW Time 9.00am – 10:00am Venue Central Park Theatrette, 152-158 St George's Terrace, Perth Description Law Mutual (WA) and the Law Society of Western Australia are committed to initiatives which lead to healthier work environments for the whole profession. For every practitioner, mental health and wellbeing is an important issue and exploring the many aspects of a balanced approach to work and life is of ongoing importance.

Register Cost Organiser Sponsor For

Whether you are struggling to keep up with technology or don’t know how to ‘switch off’, there is no denying that technology is adding to the levels of stress for lawyers. Join our panel members to discuss how technology has not only changed the way we do business and practice law but also the way we go about our daily lives and its impacts on our mental health. lawsocietywa.asn.au/law-week Free The Law Society of Western Australia Law Mutual (WA) Legal profession

The law has and continues to discriminate against minorities within our community. 27 years ago, being homosexual was a criminal offence, punishable by imprisonment. 14 years ago, it was legal to fire someone based on their sexuality or because they identified as transgender. Today, it remains illegal for members of the same sex to marry, making marriage difficult for transgender people and technically unachievable for those born intersex.

Register Cost Organiser Sponsor For

Join the Law Society's Young Lawyers Committee at the 2016 Law Week Panel Discussion to discuss these and other WA laws that are creating barriers for our LGBTIQ community with an esteemed panel. lawsocietywa.asn.au/law-week Free The Law Society's Young Lawyers Committee KBE Human Capital Legal profession and law students

For a full calendar of Law Week events please visit lawsocietywa.asn.au/law-week

From mediation-style conferences to mediation-style arbitration The next wave of culture change in family dispute resolution?1 We won't know until we try.

Associate Professor Jill Howieson University of Western Australia Faculty of Law Andrew Davies Partner, O'Sullivan Davies Vincent Tan Senior Associate, Crossing Family Lawyers

Mediation-style conferences (MSCs) have delivered a mini-culture change for Western Australian family lawyers (see Moser's paper on page 20 in this edition).

Introduced in 2012 to help reduce the pressure on the Family Court of Western Australia (the court) to resolve property and maintenance matters, MSCs are a blend of conciliation and mediation and are a lawyer-run and lawyer inclusive process. Supported by the court, which uses the MSCs to outsource its conciliation conferences, the MSCs have helped to reduce court loads and have become part of the family law fabric.2 However, while the MSCs have been a success, family courts nationwide are again under pressure. In Western Australia it is taking slightly less than two years to resolve family law disputes in the Family Court and in the rest of Australia it is taking two to three years.3 Clients of Family Relationship Centres (FRCs), the government-led initiative of lawyer-free mediation services for parenting matters, are also reporting waits of up to 12 months or more for mediation.

So, what next in the family law dispute resolution environment? The experience of the MSCs suggests that it might be time for the next wave of culture change in family dispute resolution. With the current resurgence in interest in the arbitration process and the research into the community of practice that has developed out of the MSCs, perhaps the next iteration of the MSCs might be blended mediation and arbitration, or mediation-style arbitration.

Arbitration has always held the promise of being a flexible process, and clients and

28 | BRIEF MAY 2016

practitioners both experience mediation as a dignified and transformative process.

By merging these two processes into one flexible and conclusive process, it is possible that clients and practitioners can achieve the benefits of mediation combined with the finality of resolution provided by arbitration.

THE FIRST WAVE: MSCS Background The introduction of the MSCs was timely. As Moser points out (on page 20), in Western Australia there were 950 property matters in the court's defended list taking up to two years and perhaps more to reach trial. The only formal option that practitioners had for a neutral third-party to assist was in the form of a conciliation conference listed by the Family Court. Due to demand, the conference would often be months after the initial first return date of the matter.

Further, registrars of the court would often have multiple conferences in different rooms, and would need to divide their energies between conferences in an attempt to bring the parties to a resolution. After some negotiation, it was common for the conferences to turn into 'shuttle negotiations' without the input of the third-party neutral. In early 2012, led by Andrew Davies, the then Chair of the Australian Family Law Institute of Arbitrators and Mediators (AIFLAM) and Jill Howieson, Associate Professor at the University of Western Australia's Faculty of Law, AIFLAM introduced mediation training to senior family law practitioners and engaged

with the profession and the court to develop policies and procedures for the pilot. In late March and early April 2012, the practitioners began to conduct MSCs. In June 2012, the court issued a Memorandum to Practitioners in relation to ADR and MSCs and the roll-out of the MSC pilot began.

Support from the court, coupled with the development of a community of practice, saw the new culture of MSCs quickly embraced in Western Australia.4 Practitioners referred to other practitioners, and met regularly to exchange experiences and feedback.

AIFLAM also established a culture of evidence-based practice for the MSCs so that the practitioners could continue to learn and refine process and practice.

Training The training for the MSCs was developed with collaboration from the profession.

Although many of the practitioners had had mediation training previously, training for the MSCs was targeted at understanding what was occurring psychologically for family law clients and how best to use the mediation process to help them to resolve their disputes constructively.

The result was a process based in interest-based facilitative mediation and flexible enough to suit the needs of the parties in each particular case.

Unlike the facilitative mediation process conducted in parenting matters in the FRCs, lawyers chair the MSCs and the clients are usually legally represented.

The MSCs are designed specifically to take advantage of the special role

that lawyers play in resolving disputes: namely providing support to the parties, protecting their client's legal rights and the chair of the conference providing impartial advice or information to the parties if requested and needed.5 Feedback and research evidence from the MSC pilot revealed that the psychological and theoretical underpinnings of the training proved valuable.6 Further, the training simulations and case studies that purposefully included scenarios involving lawyers and complex property matters were welcome additions to the standard mediation training programme.

were more satisfied, and •

When asked what concerns the practitioners still had with the MSCs, the practitioners reported that:

The clients reported that the MSCs were run professionally, that they enjoyed being able to have their say in a controlled environment and have the opportunity to vent and talk about things that had previously been 'swept under the carpet'. They also reported that while they believed that the mediation was a waste of time and money if there was no outcome, at the same time they appreciated that they narrowed the issues in dispute and were more prepared and not so anxious about going to court if the matter did not settle.8 What is working well?

By 2015, practitioners reported that the culture of dispute resolution in Perth had changed. In early 2015, a survey of 10 senior lawyers in Western Australia reported that the MSCs:

they had concerns with the controlling behaviour of some of the lawyers

•

some chairs (mediators) were untrained in facilitative processes and had a tendency to move quickly to solutions without exploring participants' interests

•

their skill levels were low and they needed more training in the facilitative method

•

the cost of co-mediation was prohibitive and that costs could escalate if the matter was not resolved

•

some lawyers were developing an anti-MSC attitude

Evaluation of process Throughout the training and the pilot, AIFLAM collected data as to what worked well in the process, what was still of concern and how practitioners could continue to create and design a process that would work for the client, the lawyer, the profession and the court. Over 70% of the lawyers surveyed at the end of the first year of the pilot viewed the MSCs as a success, the process as procedurally fair and satisfying, and reported that the MSCs were providing the lawyers and clients with an opportunity to listen to each other and resolve their issues amicably.7

enjoyed a reasonable success rate and the ongoing support of the FCWA and litigants.

What is still of concern?

•

with the Court of what the parties had agreed upon and what was still in issue to ensure that if the matter did proceed to trial it was more streamlined •

ways to bring the matter to resolution that do not detract from the progress made in the MSCs.

THE SECOND WAVE: MEDIATIONSTYLE ARBITRATION? So, what does the research tell us? The AIFLAM research supports other findings in the literature, which show that while parties and lawyers view the mediation process as fair, satisfying and useful, there is still a level of frustration when the matters do not settle and proceed to trial.

There is also frustration at the number of parties and lawyers who attend mediation unprepared as to the practical requirements for the mediation and the psychological unpreparedness of clients to resolve their disputes. These are areas where arbitration can assist.

Arbitration - background

The MSC pilot worked well to embed a new culture in family law dispute resolution, educate and up skill family lawyers and create a community of practice in the family mediation field.

However, the pilot also identified some further needs in the area. These needs included:

Arbitration is to some extent the poorer cousin to mediation in the family law environment despite it being one of the oldest forms of alternative dispute resolution (ADR). Arbitration began as an informal process where 'good men' of the community would arbitrate disputes in a timely and economical fashion.9 However, now in its domestic form, arbitration has become slower, more expensive and more rigid. It mirrors litigation in its rules and procedures. Its development into an expensive, private form of litigation has meant that many have wondered whether it will continue to survive as a dispute resolution process.

Indeed, in the family law environment, despite various attempts to promote its attractiveness, arbitration is virtually nonexistent in Australia (with the possible exception of Queensland).10 To date, as far as we know, there has only been a single arbitration conducted in Western Australian in the family law jurisdiction.

•

Mediation and Arbitration

•

many clients and lawyers were unprepared going into the MSCs

•

there needed to be more procedures or strategies around dealing with the 'sticky bits' at the end of the mediation, and

•

some parties were using the voluntary nature of the MSCs to their advantage and were tactically withdrawing from the mediation before its conclusion.

What could be done better?

a method of preparing clients (represented and unrepresented) and lawyers for the MSCs

•

gave their clients the space to resolve their disputes well and to apologise to each other

•

a method (perhaps mediation coaching) to prepare clients psychologically for mediation

•

created a more satisfying way of practising

•

•

had created a change in culture and mindset of the practitioners

training of lawyers in the purpose of facilitative methods so that the MSCs are interest-based and productive

•

saved costs for clients and the court

•

•

enabled closure on matters, outcomes were faster and the clients

continual training in different models of dispute resolution to keep skills active and search for best practice

•

a recording and reporting system

To address some of the concerns of using arbitration individually, commentators have suggested combining it with mediation. 'Medarb' refers to the combined use of mediation and arbitration, traditionally first mediation and then arbitration, and depending on the arbitration culture, conducted by the same third-party neutral, separate neutrals, co-neutrals, or tribunals or panels. There are also other combinations such as arb-med, (arb)-med-arb-different neutrals, shadow mediation, co-med-arb, (arb)-med-arb 29

opt-out etc.11 The configurations are virtually endless.

One combination formally used in Australia is the 'hybrid hearing' introduced by the Queensland Civil and Administrative Tribunal (QCAT) in 2012.12 In a hybrid hearing, parties attend an arbitration hearing first and then participate in mediation afterwards.

Both the arbitration hearing and the mediation take place on the same day and with the same third-party neutral.

After the arbitration, the arbitrator seals his or her award in an envelope. If parties are unable to reach agreement on all their issues in mediation, the envelope is opened and the decision becomes binding. QCAT's hybrid process does not allow the neutral to meet with any of the parties in private session in the mediation segment of the process but other arbitration-mediation hybrids do allow this to occur. 13 Another example is that of grievance mediation where one person mediates while another arbitrates ('different thirdparty neutral').14 Once the process reaches arbitration, grievance mediation precludes any further attempts to mediate. Parties in the grievance mediation can also ask the mediator to issue a non-binding opinion that represents the decision the mediator would have rendered had the mediator arbitrated the case.

As outlined above, there are many ways of using arbitration and mediation either as discrete procedures or blended in some way. University of Western Australia PhD student Dilyara Nigmatullina has examined many of these different combinations. While little empirical data exists, Nigmatullina's extensive survey of the literature coupled with a small empirical study of international arbitrators, presents a picture of med-arb conducted with the same third-party neutral as the most preferable process.15 While the benefits of the combined use of the processes are mostly attributed to the mediation component (preserving business relationships, faster resolution of the dispute, lower costs, and high quality outcomes) the advantage of obtaining an enforceable award was identified as the major benefit attributed to the arbitration component.

Arbitration - the promise The use of mediation and arbitration in combination is not new. Its practice has ancient roots.16 However, perhaps what is new is the re-thinking about arbitration and the promise that it holds.

Arbitration was designed to be an inexpensive, informal, private, dispute 30 | BRIEF MAY 2016

resolution process aimed to provide the speedy resolution to disputes in a procedurally fair and dignified manner.

Parties could have a say in the rules of the arbitration and could choose their own arbitrator. They could agree where and when the arbitration would be held, and choose whether or not to have lawyers represent them. Following this, arbitrators could conduct the arbitration as "he or she thought fit."17 Commercial Arbitration Unfortunately, the practice of arbitration does not seem to have lived up to the promise. Domestic arbitration as practiced in the commercial sector usually resembles a court process, is often as long or longer than a trial, more expensive (as the arbitrator charges a fee), and as formal and unfulfilling for the participants as a trial.18 However, recently, in the commercial jurisdiction, the new Commercial Arbitration Acts (CAA) were drafted to, amongst other things, give parties more control over the process, less appeal routes to the courts and more say in the design of the process of the arbitration.

The paramount object of this Act is to facilitate the fair and final resolution of commercial disputes by impartial arbitral tribunals without unnecessary delay or expense.

This Act aims to achieve its paramount object by: (a) enabling parties to agree about how their commercial disputes are to be resolved …, and (b) providing arbitration procedures that enable commercial disputes to be resolved in a cost effective manner, informally and quickly.19 These changes seem to be an attempt to bring arbitration back to its roots. In June 2002, Lord Mustill suggested that arbitration needed to become more flexible in its process and outcomes, and needed to allow parties to have a more 'mediation-like' experience, if it were to survive. He suggested that arbitration also needed to provide flexible outcomes that were more creative compared to traditional arbitration.20 To date, there is no sign that the changes have produced any significant alterations in the way that domestic arbitration is conducted in Australia and it seems unlikely that these legislative changes on their own will produce a 'cultural change' in practice. However, there is enough flexibility built into the CAAs to enable arbitration to become more mediationlike if the parties and the arbitrators so wish.

Family Arbitration In the family law jurisdiction, s10L of the Family Law Act (FLA), and mirroring provisions in the Family Court Act (FCA), define arbitration as a process (other than the judicial process) in which parties to a dispute present arguments and evidence to an arbitrator, who makes a determination to resolve the dispute.

Neither Act prescribes a set process of arbitration, leaving it open to the arbitrator to conduct the process as he or she thinks fit.

In 2015, the Family Law Amendment (Arbitration and Other Measures) Rules were introduced, in part, to give family law arbitrators the power to order subpoenas (Part 26B.2) and to place a duty on the parties to give timely full and frank disclosure of all information relevant to the arbitration, including information of the parties financial situation (Part 26B.1).

These amendments came into effect on 1 April 2016 and reveal a renewed focus on arbitration in the family law environment to assist parties to consider arbitration rather than using the court.

Facilitative Arbitration – or MediationStyle Arbitration Currently, there is nothing in the CAAs or the FCA to prevent arbitrators from conducting arbitration as an essentially mediative process, where the presentation of 'arguments' could be interests-based needs statements rather than statements of legal positions, and where the process could involve an exploration of interests and options, rather than argument over legal rights and remedies.

Both the CCA and the FCA contemplate arbitration as a flexible, party driven process but with the safeguards of the court system in place if necessary.

The opportunity that arbitration offers is that the arbitrator can make procedural decisions if the parties cannot agree and the finality and enforceability of an award if the parties cannot come to a resolution themselves.

Imagine then, a process that is essentially mediative in nature but conducted in an arbitration framework. It is preferable to not think of this as med-arb, or combined mediation/arbitration or even an amalgamation of the two processes, but instead to think of it as a facilitative arbitration. Facilitative arbitration would be an arbitration conducted in a mediation-like way, where the arbitrator would facilitate the parties through: •

a deep exploration of interests,

•

a realistic consideration of alternatives, and

•

a joint problem-solving session where the parties could explore options to resolve their dispute in ways that would provide satisfying, sustainable and durable solutions that would work well into the future.

If the parties were unable to come up with their own solutions then the arbitrator (having an understanding of the parties' interests – their needs, fears, concerns and desires – and also an understanding of the law) could design a creative award that aimed to meet the parties' interests in the best possible way.

The arbitrator could choose to deliver his or her decision and then give the parties an opportunity to modify it if the parties can agree that things would work better in another way, or give them an opportunity to go away and re-negotiate, or file the award in the court making it legal and enforceable. Just as there are a myriad of design opportunities for the arbitration process itself, so are there different ways that the arbitrator and parties can treat the award. However, all the while the parties will know that if they do not agree to modify it, the arbitrator can finalise and file the award.

Facilitative arbitration could give the participants a process that contains the full benefits of mediation with arbitration's mechanisms to assist the parties to reach resolution. This process could offer the dispute resolution field a solution to resolve its needs.

Need: Parties to be more prepared Offer:

The arbitrator can facilitate and manage this process.

The arbitrator can order the delivery of documents and could

perhaps also order or encourage the parties to have mediation coaching.21 Need: Exploration of interests, benefits of venting and conversing Offer:

The arbitration can include an exploration of interests and an informal discussion of what the dispute is about and what has been the experience for the parties.

Need: Party control of outcome Offer:

The arbitrator can facilitate and give the parties opportunity at all steps of the process to resolve the dispute by agreement.

RISKS AND OPPORTUNITIES As with all things, there are risks and opportunities. The literature gives us a guide as to what commentators think that the risks and benefits of facilitative arbitration might be and we surveyed the senior family lawyers at the focussing meeting. These risks and opportunities are untested and are a matter of perception and opinion only. Some of the risks and opportunities might include: Risks •

Practitioners' and court's unfamiliarity with arbitration and fear of the unknown

•

A possible natural justice issue if the facilitative arbitrator hears from one party without the other present and vice versa22

•

A need for full training in mediation and education in arbitration to ensure that facilitative arbitrators fully understand (among other things):

Need: Party commitment to the process Offer:

A pending decision from the arbitrator if the parties cannot reach an agreement may be sufficient motivation for the parties to continue to stay in the process and attempt to resolve their dispute.

Need: Creative solutions Offer:

The arbitrator can facilitate option generation and can tailor his or her award to meet the interests of the parties rather than adhere to strictly legal remedies.

If parties cannot agree the resolution then the arbitrator can make his or her binding decision.

the purpose of facilitative mediation

•

the rules of arbitration, and

•

the scope of their role

•

A need for testing to determine how the process might differ from the current model of the MSCs and what value it might add.

•

A need to educate and reeducate parties, lawyers and other stakeholders as to the potential of the process

•

A risk of disempowering the client if the arbitration process overshadows the mediative-like process

Need: Finality Offer:

•

31

•

Parties and lawyers might continue to be lax in their preparation and/or create unnecessary delays

•

Lack of engagement from the general and family law community

•

Risk of lack of uptake by the parties and lawyers if arbitration is not mandated

Opportunities •

Would offer full resolution that meets the interests of the parties

•

Flexibility and greater scope to use arbitration on narrow or discrete issues and mediate the rest

•

Arbitration conducted earlier in the court process to save time and money

•

Would enable an exploration of interests and an award that could be tailored to meet those interests if the parties do not reach their own resolution

•

Speed, reduce the court's and lawyer's workload, reduce the wait times for parties

•

Once confidence in the process is established, matters could be extended to include children's matters

•

•

Offers a mechanism for dealing with issues not resolved during the mediation process and the opportunity to file the arbitration award with the court Restructure, repair and resurrect the parties' relationship

RESEARCH The discussion of the risks and potential of a facilitative arbitration process is almost purely theoretical as there is very little empirical data to refute or support these ideas and as far as we know, such a process has not ever been conducted in the family law environment (or perhaps it has been conducted but not observed, recorded or evaluated). This issue is significant because it affects the degree to which an advantage or concern is real or perceived and reminds us that any attempt to pilot a new process in the dispute resolution environment demands that it is accompanied by a rigorous research regime.

Dilyara Nigmatullina describes one piece of empirical evidence that might assist us in our thinking in this area. It comes from, McGillicuddy, Welton, and Pruitt, who in 1987 conducted a field study at a community centre to test the impact on behaviour of stand-alone

32 | BRIEF MAY 2016

mediation, mediation within the same neutral med-arb process, and mediation with a different neutral conducting the mediation and the arbitration separately.23 The results showed that parties in the same neutral med-arb engaged in more problem solving, and were less hostile and competitive than were the parties in the stand-alone mediation and in the med-arb with a different third party neutral process.24 Further, the parties in the same neutral med-arb were more conciliatory in mediation, made more proposals and exhibited a trend toward more concession making than parties in the stand-alone mediation.25 Nigmatullina states that the researchers explained this result by the twofold influence of the same neutral med-arb procedure on party motivation.26 First, the researchers conjectured that the parties showed greater motivation to settle in the mediation part of the same neutral medarb as opposed to stand-alone mediation because they feared that they might lose control of the process if the dispute moved to the arbitration stage. Secondly, the parties appeared more motivated to follow the mediator in the same neutral med-arb because of the respect that is naturally given to a person who has the power to ultimately decide on a dispute.

These results might give us an insight into the promise of a process such as facilitative arbitration, or mediationstyle arbitration. Whilst many writers, commentators and practitioners have suggested such a process over the years, it seems that the time might now be right to put the potential into practice.

CONCLUSION It is clear that in 2012 the MSCs kickstarted a change in the family law dispute resolution environment. Yet, there are still some changes that need to occur to improve the experience for clients, lawyers and the court alike. These changes revolve around preparedness for dispute resolution be it mediation, arbitration or litigation, and finding resolution in the process. Facilitative arbitration seems to offer some answers to these needs but we will not really know until we try it. We need to train for it, practise it and evaluate it.

AIFLAM practitioners and the Family Court have had the courage in the past to work together and creatively design a training, practice and research program that addresses a clear need. It seems that a clear need has again emerged and that the same consultative process is required to find the best ways to tackle the need, equip family law practitioners with new skills and ways of practice, and to provide parties with an efficient and

satisfying dispute resolution experience.

There is an obligation on lawyers to continually think of innovative solutions to assist their clients. While not all cases may be appropriate for this alternate form of dispute resolution, practitioners who are resistant to change should be encouraged to consider the 'butterfly effect' of a difficult, contested litigation process on the financial world of the parties, and the personal impact it will have on them, their children and other trusted friends and family members. If facilitative arbitration provides an antidote to this effect, then perhaps it is worth a try.

NOTES 1.

Associate Professor Jill Howieson, University of Western Australia Faculty of Law; Andrew Davies, Partner, O'Sullivan Davies; Vincent Tan, Senior Associate, Crossing Family Lawyers.

2.

Heinrich Moser. Mediation in the Family Court of Western Australia, May 2016 Brief at page 20.

3.

Anecdotal evidence from Western Australian family lawyers; Berkovic N. Delays in Family Law a National Disgrace. The Australian, 22 January 2016.

4.

See Howieson, J and Davies, A. Family Law MediationStyle Conferencing: Creating an opportunity in a crisis.

Australian Family Lawyer 2012, Vol. 23, p. 13-19

5.

Howieson J. The Professional Culture of Australian Family Lawyers: Pathways to Constructive Change.

International Journal of Law, Policy & the Family 2011, Vol. 25, p. 71-99.

6.

Refer note 4.

7.

Research data from AIFLAM, 2012 surveys.

8.

AIFLAM focusing meeting held at Paterson Dowding Lawyers, Perth, 25 February 2015.

9.

Paulsson J. The Idea of Arbitration. Oxford University Press, 2013, p. 10.

10.

The Hon Robert McClelland. Family Law Council Advice on Arbitration of Family Law Property and Financial Matters, 2008. Available at chrome-extension:// gbkeegbaiigmenfmjfclcdgdpimamgkj/views/app.html.

11.

Nigmatullina D. Developing efficient dispute resolution solutions for international commercial disputes: ways to address concerns associated with the combined use of mediation and arbitration, 2016, submitted D Phil Thesis, University of Western Australia.

12.

Queensland Civil and Administrative Tribunal, Hybrid Hearings, http://www.qcat.qld.gov.au/using-qcat/ practice-directions#2012.

13.

See for example s27D Commercial Arbitration Act 2012 (WA).

14.

Refer note 11.

15.

ibid., at p. 104.

16.

Roebuck D. The Myth of Modern Mediation. Arbitration 2007, Vol. 73, p. 105, p. 106 cited in Nigmatullina D, The Combined Use of Mediation and Arbitration in Commercial Dispute Resolution: Results from an International Study. Journal of International Arbitration 2016, Vol. 33, p. 37, 39.

17.

Section 14 Commercial Arbitration Act 1985 (WA).

18.

Refer note 10.

19.

Commercial Arbitration Act 2012 (WA).

20.

Lord Mustill. Arbitration, Imagination and the Culture of Compromise in David Spencer and Tom Altobelli Dispute Resolution in Australia (2005) 254.

21.

This is a service offered by independent mediators to law firms to coach their clients before mediation.

22.

This is perhaps more a perceived issue than an actual issue, Nigmatullina, refer note 11, Chapter 3.

23.

McGillicuddy N, Welton G & Pruit D. Third-Party Intervention: a Field Experiment Comparing Three Different Models. Journal of Personality and Social Psychology 1987, Vol. 53(1) 104 cited in Nigmatullina, refer note 11.

24.

ibid.

25.

ibid.

26.

ibid.

Introduction of a Practice Management Course for Principals of a Legal Practice Information from the Legal Practice Board Joshua Thomson SC Convenor, Professional Development Committee, Legal Practice Board

Amendments to the Legal Profession Rules 2009 (Rules) were gazetted on 19 February 2016. Division 2A, Condition on local practising certificate: practise as principal of law practice, has been inserted into the Rules.

Division 2A of the Rules requires a local legal practitioner to have successfully completed an approved Practice Management Course (PMC) or to have obtained an exemption from completion of the PMC, and to give notice to the Legal Practice Board (Board), before practising as a principal of a law practice.

A copy of the amendments can be found online here: slp.wa.gov.au/gazette/ gazette.nsf/lookup/2016-29/$file/gg029. pdf.

In 2015 amendments to the Rules regarding the continuing professional development (CPD) scheme were introduced that established a mandatory category of Practice Management as one of the four mandatory CPD categories required to be undertaken by local legal practitioners each year.

On 18 February 2015 the Board's Professional Development Committee (PDC) resolved that: •

A recommendation be referred to the Board for the introduction of a PMC;

•

The PDC proceeds with the development of criteria for the curriculum and delivery of the PMC;

•

The PDC proceeds with the development of criteria for the approval of providers of the PMC; and

•

The PDC proceeds with the development of the necessary rules and amendments to the Rules to enable the imposition of the condition on practising certificates requiring the completion of the PMC.

On 8 April 2015 the Board endorsed the recommendations of the PDC to introduce a PMC.

INTRODUCTION OF A CONDITION

PMC' has been developed.

Consideration was given as to the best method to introduce a mandatory PMC requirement.

To further assist prospective providers of the PMC the following documentation has been developed:

Rather than introducing additional categories of practising certificates it was decided that the most effective and easiest application of the requirement would be through the imposition of a condition on local practising certificates held by practitioners who do not practise in the capacity of:

•

'Guide for the Development of the Content and Structure of a Practice Management Course'; and

•

'Application for approval of PMC Provider'.

•

a sole practitioner;

•

a principal of a practice;

•

a legal practitioner director of an incorporated legal practice; or

•

a partner in a multi-disciplinary practice;

stipulating that the practitioner cannot practise in those capacities until the successful completion of an approved PMC and the removal of the condition from the holder's local practising certificate.

CONTENT OF THE PMC Analysis was undertaken and stakeholders were consulted and invited to provide input on the content of a PMC. Arising from that analysis and consultation, course content has been developed and agreed.

DELIVERY OF THE PMC As the provision and delivery of the PMC is of primary importance to ensure that it achieves its planned objectives of improved practice management, it is essential to ensure that only properly qualified and accredited organisations are approved for the provision of the PMC. It is also important that in granting approval to be a PMC provider the Board is satisfied that the provider is established, competent and capable to deliver the PMC to the highest possible standards.

A 'Criteria for Approval as a Provider of a

PMC PROVIDERS The Board called for Expressions of Interest from providers for delivery of the PMC. On 16 March 2016 the PDC resolved to approve an application from the College of Law (WA) for the delivery of a PMC. Details of the curriculum and programmes of the PMC to be offered by the College of Law (WA) can be obtained by requesting a course brochure from the College, or by contacting Michael Cole on Tel: (08) 9214 0202.

PARTIES REQUIRED TO UNDERTAKE THE PMC A decision was made to identify who would be required to undertake and satisfactorily complete the PMC, or be exempted from completing the PMC. There are many practitioners already in the work place who act in the role of a principal, including: •

sole practitioners;

•

principals of law firms;

•

leaders of in-house legal teams;

•

leaders of legal teams within government agencies;

•

leaders of community legal centres;

•

leaders within the Aboriginal Legal Service;

•

legal practitioner directors of incorporated legal practices; and

•

legal practitioner partners of multidisciplinary practices.

33

Additionally there will be practitioners coming into Western Australia from other jurisdictions (including from international jurisdictions) who will have acted as a principal in those other jurisdictions and who wish to act in the capacity of a principal in this state.

for revocation or variation from the PMC must be in the approved form. The approved forms referred to in rule 18D(2) are: •

It is not realistic to enforce attendance and completion of the PMC on these practitioners.

An exception to this would be those practitioners who had not previously held an unrestricted practising certificate but had acted, for example, as a legal team leader in a government agency. Such a practitioner would need to provide a case for exemption from both the period of unrestricted practice (by application to the Board) and then from the requirement to complete the PMC (by application to the Board) before they could become a principal outside their government working context.

Other exceptions to the imposition of the PMC condition include restricted legal practitioners and practitioners practising solely in the manner of a Barrister.

The PMC condition will not be imposed on a local practising certificate if the holder is still subject to a period of supervised legal practice (see rule 18C(2)). As a restricted practitioner is eligible to be a principal, as a partner in a law practice, it is not practicable to have the PMC condition imposed on the holder's local practising certificate, and the holder be required to comply with the PMC condition prior to completing a period of supervised legal practice.

At the conclusion of the restricted practitioner's period of supervised legal practice, the PMC condition will be imposed on the local practising certificate held.

It is also not realistic to enforce attendance and completion of the PMC on practitioners practising solely in the manner of a Barrister. All current Barristers act in the role of a principal as a sole practitioner and will benefit from the exception in that regard (see rule 18C(2)). However, incoming Barristers may seek to vary the PMC condition to make its effect nugatory while the practitioner practises as a Barrister, has the 'Barrister only' condition imposed on the practitioner's local practising certificate and has completed, or has undertaken to complete, a suitable course for practise as a Barrister that is approved by the WA Bar Association or equivalent within a specified period of time, or the practitioner has the skills or experience to practise as a Barrister (see rule 18F(2)).

Rule 18D(2) provides that an application 34 | BRIEF MAY 2016

•

Revocation: LPB Form 12 Request to Revoke the Condition on a Local Practising Certificate: Practice Management, imposed pursuant to rule 18C(1) of the Legal Profession Rules 2009.

Variation: LPB Form 13 Request to Vary the Condition on a Local Practising Certificate: Practice Management, imposed pursuant to rule 18C(1) of the Legal Profession Rules 2009.

The above forms are available for download from the Board's website.

An additional utilisation of the PMC and the modules within the PMC will be to grant powers to the Board and its delegated committees, and to the Legal Profession Complaints Committee, to impose sanctions and direct that part or all of the PMC be undertaken and successfully completed by practitioners in circumstances that it is deemed appropriate for them to do so. Such sanctions would be implemented through the imposition of a condition on the practitioner's local practising certificate.

By having an imposed sanction condition on the holder's local practising certificate, the practitioner would not be entitled to apply for removal of the primary condition to complete a PMC, or for any other exemption in regard to the PMC, until the sanction condition requirements had been satisfied and the condition removed from the local practising certificate.

PROMOTION OF PMC THROUGH CPD INCENTIVES As there will be a large cohort of practitioners who are not yet eligible, or will not be required, to undertake the PMC, all practitioners are encouraged to undertake the PMC by offering CPD incentives to do so.

The Board agreed that if a practitioner undertakes and successfully completes the PMC the practitioner will be credited with having fulfilled the full 10 point CPD requirement for the CPD year during which the PMC was undertaken.

TIMING AND TRANSITIONAL ARRANGEMENTS As a general principle, the holder of a local practising certificate imposed with the PMC condition cannot commence practise as principal until they have: •

Been granted an exemption to

successfully complete the PMC; or •

Successfully completed the PMC; and

•

applied for and been granted approval for the removal of the condition to successfully complete the PMC from their local practising certificate; and

•

notified the Board of the intention to commence practise as a principal.

However, the availability and timing of the delivery of the PMC may not enable a practitioner to undertake the PMC prior to the planned commencement date as a principal. In such circumstances some flexibility will be needed in allowing time for completion of the PMC condition.

The Board agreed that in circumstances where the availability and timing of the delivery of the PMC may not enable a practitioner to undertake the PMC prior to the planned commencement date as a principal the PMC condition be amended, upon application, to require completion of the PMC within a stipulated time (see rule 18D(1)(b) and LPB Form 13).

NOTICE TO COMMENCE AS A PRINCIPAL To enable the Board to monitor the requirements for the meeting of the PMC condition on practising certificates it is part of the PMC condition that a practitioner intending to commence practise in the capacity of a principal must provide notice to the Board of the practitioner's intention to do so and to advise on the planned commencement date (see rule 18C(1)(b)).

The form referred to in rule 18C(1)(b) is LPB Form 11 Notice of a Practitioner's Intention to Commence as a Principal of a Law Practice. LPB Form 11 is available for download from the Board's website.

Should further information be required, please contact Mr Graeme Geldart, Executive Director of the Board at (08) 6211 3600 (telephone), (08) 9325 2743 (facsimile) or email general@lpbwa.com.

FREQUENTLY ASKED QUESTIONS The approved forms for PMC notifications are: •

LPB Form 11 Notice of a Practitioner's Intention to Commence as a Principal of a Law Practice;

•

LPB Form 12 Request to Revoke the Condition on a Local Practising Certificate: Practice Management,

•

imposed pursuant to rule 18C(1) of the Legal Profession Rules 2009; and

I was the principal of a law practice in another state. Do I need to do the PMC?

LPB Form 13 Request to Vary the Condition on a Local Practising Certificate: Practice Management, imposed pursuant to rule 18C(1) of the Legal Profession Rules 2009.

Possibly not. The Board may be satisfied that you have the skills or experience to practise as the principal of a law practice if you held a practising certificate in another jurisdiction allowing you to practise as a principal.

The above forms are available on the Board's website.

I am already the principal of a law practice. Do I need to complete the PMC? No. Practitioners acting in the capacity of a principal, other than a restricted practitioner, immediately before 1 July 2016 will not have the PMC condition imposed, unless it is subsequently imposed by the Board or the Legal Profession Complaints Committee as a remedial sanction.

This includes Barristers practising solely in the manner of a Barrister and who have a local practising certificate imposed with the 'Barrister only' condition.

There is no need to complete an LPB Form 11. The Board's records should have already identified you as a principal.

I am starting my own practice after 1 July 2016. Do I need to complete the PMC? Unless you are already practising as a principal, yes. The PMC condition comes into force on and from 1 July 2016. All practitioners holding an unrestricted practising certificate will not be able to practise as a principal until the PMC condition has been removed.

You will need to complete LPB Form 11 and LPB Form 12.

I am not going to operate a trust account. Do I need to do the PMC to practise as a principal?

Yes, unless you can satisfy the Board that you have the skills or experience to practise as the principal of a law practice. You will need to complete LPB Form 11 and LPB Form 12.

I want to start my own practice and act as a principal, but I cannot do the PMC course for another 6 months?

You can seek a variation to the PMC condition to enable you to commence as a principal and complete the PMC within a specified time frame. You will need to complete LPB Form 11 and LPB Form 13.

You will need to complete LPB Form 11 and LPB Form 12.

I did a PMC course interstate. Do I need to do a PMC course approved by the Board?

Possibly not. The Board may be satisfied that you have the skills or experience to practise as the principal of a law practice if you have successfully completed a qualification that the Board considers is at least equivalent to an approved PMC. You will need to complete LPB Form 11 and LPB Form 12.

I have other qualifications and experience that enable me to run a practice. Do I need to complete the PMC? Possibly not. The Board may be satisfied that you have the skills or experience to practise as the principal of a law practice if you have prior learning experience that, in the opinion of the Board, demonstrates that you are suitable to practise as the principal of a law practice.

You will need to complete LPB Form 11 and LPB Form 12.

I am going to commence practising solely as a Barrister. Do I need to complete the PMC? You may complete an approved PMC. However, practitioners practising solely as a Barrister can seek a variation to the PMC condition if: •

The practitioner holds a local practising certificate imposed with the 'Barrister only' condition; and

•

The practitioner has successfully completed a course in respect of practise as a Barrister that has been approved by the WA Bar Association; or

•

The practitioner has given the Board a written undertaking that the practitioner will complete a Bar Readers Course within the period of 2 years or a further period allowed by the Board; or

•

The Board is satisfied that the practitioner should not be required to undertake a Bar Readers Course

because the practitioner has the skills or experience to practise as a barrister.

You will need to complete LPB Form11 and LPB Form 13.

Can I do the PMC even if I do not intend to practise as a principal?

Yes. Further, when you first complete the PMC you will be credited with having fulfilled the full 10 point CPD requirement for the CPD year.

Once I have completed the PMC, do I have to do it again?

No, not unless the Board imposes specific conditions on your practising certificate that you complete all or part of the PMC. Do all partners of my firm have to complete the PMC? All partners, principals, commencing will need to complete the PMC to have the PMC condition removed.

Do I have to pay a fee to submit the approved forms LPB Form 11, 12 or 13?

No. I am a restricted practitioner. Can I do the PMC? Yes. However, the Board will consider if you have the skills or experience to practise as a principal once you notify the Board you wish to practise as a principal. That is, if you completed the PMC now, and then relied upon that course to become a principal some years later, your request to have the PMC condition revoked would be subject to Board approval. The Board would then take into account the period of time since you completed the PMC, your experience and whether you are a fit and proper person.

Who is providing the PMC? There will be a list of approved providers published on the Board's website. All questions in regard to the cost of the PMC and schedule of courses should be forwarded to the approved providers directly.

Currently there is one approved PMC provider – the College of Law (WA). Details of the curriculum and programmes of the PMC can be obtained by requesting a course brochure from the College, or by contacting Michael Cole on Tel: (08) 9214 0202.

35

An Interview with the Honourable Justice O’Brien Interview by Denby Kerr DCH Legal Group, Accredited Family Law Specialist

On 8 March 2016, the Family Court of Western Australia (the Court) welcomed the Honourable Judge O'Brien to the Bench following the retirement of the Honourable Justice Crisford after her 12 years of judicial service.

On 11 April 2016, his Honour was also sworn in as a Justice of the Family Court of Australia and his Honour has, since his appointment to the Court on 8 March 2016, sat for all but 2 days.

The appointment of Justice O'Brien comes during a time of emerging challenges for the Family Court. With the increasing number of self-represented litigants, the continuing rise in drug use and associated mental health difficulties, the increasing number of litigants in the Family Court without a proportionate increase in judicial and court resources and with the ongoing demand for prompt judgments to be delivered in what are routinely complex and lengthy proceedings, there is both hope and expectation that his Honour may bring fresh ideas and approaches to the Bench to combat these issues.

Justice O'Brien is also a sportsman, and he brings with him to the Court, significant sporting achievements most notably in volleyball. His Honour's sporting achievements include, amongst other things, his attendance at the Olympic Games as a volleyball coach. His Honour's sporting aptitude will, hopefully, be the foundation of other inimitable skills that his Honour can bring to the Family Court and apply to the heavy lists and challenging proceedings that he will be called on to frequently manage and determine.

Justice O'Brien has a diverse background in the law spanning both public and private practice. Prior to his appointment to the Court, his Honour was Chair of the Family Law Section of the Law Council of Australia.

His Honour's vast experience in family law and his work as Chair of the Family Law Section have, no doubt, provided him with a unique and unflappable skill set which his Honour can now devote to both the expected and unexpected challenges confronting the Family Court judiciary.

The interview with Justice O'Brien following his appointment to the Family Court of Western Australia is as follows: Have your experiences as a Judicial Officer in the Family Court to date met your expectations?

Yes; I expected to be busy right off the bat.

I also expected everyone to be helpful and

36 | BRIEF MAY 2016

they have been.

What advice did you receive both prior to and post your appointment which has been helpful?

I have received a lot of advice; some philosophical, some practical and some which is frankly unprintable. Both current Judges and retired Judges have been generous with their advice and they have emphasised to me the importance in finding my own way. I've had some very good advice as to judgment writing and organising my workload. Chief Justice Martin suggested that I should remember that when the Court Officer says "All Rise", I now do not.

There continues to be discussion in both the profession and in government about the referral of family court powers by Western Australia to the Commonwealth.

Do you have a view about the referral of powers?

The referral of powers is a policy issue for government but I do think that there is sometimes a temptation to conflate the issues of referral of powers and the benefits of a State Family Court (**His Honour did then query whether we ever did, in fact, use the word "conflate" prior to the High Court decision of Stanford but we digress save to say that his Honour makes an apt point**).

And the benefits of a State Court?

It is the single biggest systemic advantage that WA has over the family law systems in other states and territories. Apart from the ability to deal with matters of state legislation and child protection laws in particular, the advantages of having Judges, Magistrates and Registrars all under the one umbrella and on the one team are enormous.

In other states there are issues which arise in relation to the choice of Court as between the Federal Circuit Court and the Family Court, each of which have different Rules and procedures, and there are issues as to transfer of proceedings between those two Courts. That simply doesn't happen here. It has always been my view and it continues to be the view of the Family Law Section of the Law Council, that the Western Australian model is the best in the country.

Another advantage of a unified State Court is in the area of relationship building.

Many of the innovations that our Court has introduced in terms of protocols and information sharing with Child Protection authorities and the Police are the envy of

the Eastern States and to a degree, these protocols are now being copied elsewhere.

Having a unified State Court helps as it means that relationships can be more easily built and maintained even as personnel change. The work that has gone into building those relationships over the years enabled those innovations to get off the ground.

Another benefit of being a State court has been demonstrated in the last few years, with the very speedy appointments of replacements for Justices Martin, Crooks and Crisford – that is a credit to the State Government. The new Family Court Judge in Brisbane whose appointment was announced the same day as mine was replacing a Judge who had retired over a year earlier – I started the week after Justice Crisford retired. As a State court it is also possible for Acting Judges to be appointed, which was critical at a time when 2 of our Judges were unable to work for health reasons – that option is not available in a Federal Court.

You have worked, prior to your appointment, in both public and private practice. Are the skills you developed from each similar or different?

I received great training at Legal Aid and I had to learn quickly to deal with a large file load and with people under significant stress. Working as a Duty Lawyer at the Court taught me to think quickly and decisively and to give clear advice in a (hopefully) understandable way. My time at Jackson McDonald was different, as I was able to work in areas other than family law and in my two years as Managing Partner, I learned a lot about management, politics and diplomacy and many other things. At O'Sullivan Davies, I experienced for the first time the benefits of working in a boutique firm, surrounded by other practitioners practising solely in family law. Bouncing ideas around with other lawyers and mentoring junior lawyers within the firm was a great experience.

There was some controversy prior to your appointment to the Family Court about whether the retiring Justice Crisford should be replaced by a female Judge. From your practice in the profession, do you consider the equal representation of genders on the Family Court Bench to be an important matter?

I think every Judge brings his or her particular strengths and weaknesses to the role regardless of gender, and I'd hesitate to identify any particular judicial characteristics

as being inherently gender based. I think you need a balance of those characteristics across the judiciary and you need a balance of perspectives and life experiences too.

Gender balance on the bench helps achieve that, but it is just one part of the picture.

The Family Court continues to be subject to some criticism about the delays in the production of judgments. Do you subscribe to the rule which requires Judicial Officers to produce their judgments within a three month period?

Well of course most judgments are delivered within three months, the Judges and Magistrates are all acutely aware of the importance to the parties of judgments being delivered promptly. It is also important to the parties that their matters get to trial promptly, and there is a difficult balance to be drawn in the allocation of time and resources. Is it better for a Magistrate or Judge to have days out of Court to finalise judgments in non-urgent matters, or to be in Court to deal more quickly with urgent parenting cases where a child is at risk? The issue comes down to the workload of the Court and resourcing.

The Family Court of Western Australia has the same number of judges as when it first opened its doors 40 years ago. Since then the population of Western Australia has almost doubled and the jurisdiction of the Family Court has expanded to include a greater proportion of that population.

Do you have a view about whether the Court can introduce any processes or procedures which help to reduce the costs of proceedings to litigants? Have you considered the interstate docket system or perhaps the automatic scheduling of a substantive interim hearing when matters are initiated in the Court?

It's a bit too early for me to have an informed view. I do have the luxury at the moment of being able to try a few things in relation to matters listed before me for trial. I am conducting status hearings a few weeks prior to trial to try to ensure that matters are ready and that issues can be narrowed if possible. I'm hopeful that at worst, those hearings will reduce the time wasted on the first day of many trials. There is a chicken and egg element in the delays and lead up to trial – the longer a litigant has to wait, the more likely it is that new issues will arise or valuations and expert reports will need updating or interim relief will be needed.

The more interlocutory hearings that the Court handles, the fewer trials it can list, and the longer the delay.

The Court and the profession have to work together on that and, frankly, on compliance issues generally. Due to the nature of the jurisdiction, we can't always take a strict compliance approach to procedural matters particularly in parenting cases and with the high number of self-represented litigants in the system. By the same token, the profession can and should do better in complying with the Rules and procedural

orders. People can complain about the delays but the late filing of documents and the expectation that the Court and the other party can accommodate that makes no sense. In a matter I heard a few weeks ago, a represented party sought to hand up her primary trial affidavit in the morning of the trial when the self-represented litigant had filed his trial affidavit months earlier in compliance with orders.

I hasten to say that I can afford to say these things without people thinking I have leapt to the "dark side" following my appointment – I was saying the same things when I was a practitioner.

You have been Chair to the Family Law Section in the Law Council. What did this position involve for you?

It was a really interesting, though challenging, role. The Family Law Section has over 2000 members, and providing services for those members is very important – including regular CPD events, a quarterly journal, and monthly online news and case summaries. Section also runs the biennial national Family Law Conference which is far and away the largest legal CPD event in Australia. Section liaises regularly with the Courts and with Legal Aid, and its working relationships there are very important.

The policy work, and interaction with government, was a really interesting part of the role. Section was consulted regularly by government about legislative reform, and has developed a very good working relationship with the Attorney Generals Department over many years. Having said that, part of the job (as with the Law Society and other professional organisations) is to raise uncomfortable issues – principally, the inadequate resourcing of the Family Law system. A particular focus of mine during my time as Chair of Family Law Section was the need for simplification of Part VII of the Family Law Act following the 2006 parenting reforms – that is an issue which attracted broad attention and support and I'm sure the dialogue will be ongoing.

What is your experience with the younger and developing practitioners in the Family Court?

I have to be a bit careful here, as there are a lot of very able young lawyers practising in family law who do a very good job. I am also aware that I was very lucky as a young lawyer to have great mentors, and not everyone is that lucky. Having said that (and it may just be me getting old and grumpy) I did notice in my last few years in practice the tendency for some young lawyers to be unhelpfully aggressive or confrontational.

I often say that family lawyers should take their own version of the Hippocratic oath – "first do no harm". That extends to how lawyers write their letters, how they present in Court, and how they deal with their colleagues. If a lawyer (old or young) is inflaming the matter by his or her conduct, then that is a real problem.

I also think that all family lawyers (not just the youngsters) need to try always to identify early on the real issues in a case and focus on them. The clients often can't see the wood for the trees – it's the lawyers' job to help them focus. I remember when he was Chief Judge, the Honourable Michael Holden used to say that when he was at the bar he counted himself lucky if a brief contained more than two or three real issues that would make a difference to the outcome. He also used to say that no one ever won or lost custody because of an incident of nappy rash or sunburn, but that he still kept seeing affidavits full of evidence about them.

The really good young lawyers are the ones who quickly identify the real issues in a case, agree what can sensibly be agreed, and then deal analytically and dispassionately with the issues that can't be agreed.

On a different topic entirely, some shorter statured members in the profession have contended that you may be a heightest. This is perhaps an assertion which arises from your associations with very many tall people in the volleyball sphere. Do you admit that you are a heightest? (**after a short chuckle**). That is denied, but please pass on my fond regards to Ms Hynes.

You have been heavily listed since your appointment and there has been some comment about the practice of loading up new Judicial Officers with trials and hearings following their appointment.

How are you tracking?

I don't think it's a designed practice. I think it is just a matter of the new person not having a existing load of judgments and so on to start with. It makes sense for a new Judge to be in Court a lot, as I have been.

So far, so good.

Moving forward, what do you think are the biggest challenges faced by the Family Court of Western Australia?

Court resources need to catch up to, and then keep pace with, the workload. Legal Aid funding is inadequate, and there is the increasing prevalence of drug, violence and mental health issues in society, and therefore in the matters that come to the Court. They are all linked. Of course extra resources are not the only answer. As I said earlier, the Court and the profession need to keep working together to try and use those resources more efficiently. The Court has always had a very good working relationship with the Family Law profession, and been open about sharing ideas and initiatives. I'd like to think I made a contribution to that as a member of the profession, and I hope to continue that from the other side of the fence.

Thank you Judge.

37

Cross examination of victims of family and domestic violence by self-represented perpetrators in family law proceedings Lara Anstie Partner, Clairs Keeley and Council Member, Family Law Practitioners' Association of Western Australia

Family and domestic violence (FDV) is a common feature in relationship breakdowns, sometimes characterised by court events in care and protection proceedings in the Children's Court, criminal proceedings and restraining order proceedings in the Magistrates Court, and parenting and financial proceedings in the Family Court1, often for the same couple.

In 2014-2015, at the time of filing the application for substantive relief in the Family Court of Western Australia, selfrepresented litigants accounted for: •

56.7% of applicants seeking parenting orders only;

•

22.4% of applicants seeking financial orders only; and

•

27.8% of applicants seeking parenting and financial orders2.

No statistics are available for the number of self-represented respondents, or for litigants who became self-represented by the time of trial. Anecdotal evidence from practitioners suggests that litigants self-represent once legal fees become prohibitive, and that attrition accounts for a large proportion of settlements.

The grim reality for judicial officers of the court is that they must balance the need for access to justice, procedural fairness for parties and efficiency with limited resources. The court's obligations to self-represented litigants are outlined in In re F: Litigants in Person Guidelines3, decided before the current provisions for special witnesses were inserted into the Evidence Act 1906 (WA) in 2004.

The court must take into account evidence of FDV in some, but not all, substantive applications: in parenting cases, in determining the best interests of the children4, and in financial cases when a party makes a Kennon claim5.

As an unfortunate consequence of the concept of 'no fault' divorce, only the most egregious marital conduct, that which would otherwise be actionable in tort, is the basis for compensation 38 | BRIEF MAY 2016

of victims for FDV, notwithstanding the fear and misery in which they have lived, many of them for decades.

in protecting our most vulnerable from further abuse by the exploitation of our justice system.

Fear of the judicial process itself is a significant deterrent to victims, let alone the opportunities perpetrators have to abuse the process to punish or intimidate their victims. The decision by the Court of Appeal in Baron v Walsh6 is seminal in confirming that pursuing legally available procedures can comprise an act of abuse within the meaning of Restraining Orders Act 1997 (WA) s6.

A party's right to cross-examine a witness is fundamental to our system of justice. Cross-examination also has the potential to be exploited by perpetrators to commit further emotional abuse against their victims.

In balancing what might otherwise be competing objectives, the court should be able to afford procedural fairness to the alleged perpetrator while protecting the interests of an alleged victim of FDV. An associated challenge in applying procedural changes is to avoid the appearance of pre-judgment in circumstances where an alleged perpetrator denies the allegations of FDV.

Lawyers as a profession, and a community, are slow to recognise all of the forms FDV takes. We are all familiar with physical assault as an obvious method, however we may perceive this as an isolated incident, or characterise the behaviour as 'historical' or 'situational', without recognising that this and other behaviour may be part of a pattern of coercive control. The FDV dynamic tends not to change once the relationship ends, but the forms of coercive control may change. These forms of coercive control escalate when the victim ends the relationship or applies to the court, such behaviours by the victim constituting a direct challenge to the perpetrator's control.

In cases where FDV is not relevant to the substantive issues in dispute, there is a tendency (certainly by practitioners) to treat evidence of FDV as irrelevant in family law proceedings. There is a significant risk that the court's delivery of procedural fairness and access to justice is impaired if this results in a vulnerable witness being subjected to crossexamination by the self-represented perpetrator.

Lawyers acting for alleged victims of FDV have a duty to identify when the quality of their client's evidence is likely to be compromised as a consequence of the FDV dynamic in the relationship between their client as witness and the selfrepresented cross-examiner7. Further, we as a community, have a common interest

Practices vary between judicial officers and courts. In the criminal jurisdiction, the courts have admirably protected complainants in sexual assault trials, child witnesses and "special witnesses" by exercise of the powers in s106R of the Evidence Act 19068. Subsection 106R(3) provides: (3) The grounds on which an order may be made are that if the person is not treated as a special witness he or she would, in the court's opinion — (a) by reason of physical disability or mental impairment, be unlikely to be able to give evidence, or to give evidence satisfactorily; or (b) be likely — (i) to suffer severe emotional trauma; or (ii) to be so intimidated or distressed as to be unable to give evidence or to give evidence satisfactorily, by reason of age, cultural background, relationship to any party to the proceeding, the nature of

the subject-matter of the evidence, or any other factor that the court considers relevant.

While there is no consistent practice, the authorities indicate that in general: •

The court receives an application for a declaration that a witness is a "special witness".

•

The application is sometimes, but not always, supported by evidence from an expert witness, such as a psychiatrist9 or social worker10.

Evidence of a police officer has also been accepted11.

•

If the court makes the declaration, it then determines by what process the witness shall give evidence. The Act provides for the witness to: o

have a support person present; or

o

have a communicator while giving evidence; or

o

give evidence outside the court room, by video link12.

Courts have made other arrangements when video link is not available, such as excluding the accused from court while the child complainant's police interview was played to the court in the complainant's presence13.

The Family Court of Western Australia has used this type of process sparingly.14 Section 44C of the Restraining Orders Act 1997 prohibits direct crossexamination of a witness in a family and domestic relationship by a selfrepresented alleged perpetrator unless the witness consents and the court considers it otherwise appropriate, or unless the court is of the opinion that it is not just or desirable for an order to be made pursuant to s44C that the self-represented litigant is not entitled to directly cross-examine the witness. This section is for the benefit of the witness,

not the examiner15.

The Family Court of Australia published Family Violence Best Practice Principles (FVBPP) in cases concerning children in 200916. The policy is confined to parenting cases. Consideration should be given to these principles being applied equally in financial matters.

The Family Court of Western Australia has a Family Violence Policy17, which is available on its website18. The policy includes the court's family violence strategy which specifically acknowledges the impact family violence on a person's ability to participate in court proceedings, and states the court's safety measures. The court provides parties with an opportunity to communicate their safety concerns and to propose measures to ameliorate those concerns by written request.19

•

While this procedure may not eliminate the trauma, intimidation and distress caused to victims in cross examination by the perpetrator, we can inform ourselves of their experience, and act to prevent the justice system from being a tool of further emotional abuse.

NOTES 1.

Incorporating the work of the nine family law magistrates at 150 Terrace Road, Perth.

2.

Family Court of Western Australia Annual Review 20142015 2016, p11.

3.

(2001) 27 FamLR 517, FLC 93-072.

4.

Section 60CC Family Law Act 1975 (Cth); s66C Family Court Act 1997 (WA).

5.

Kennon & Kennon (1997) 139 FLR 118; 22 FamLR 1; (1997) FLC 92-757. In Kennon ( 1997) FLC 92-757 at 84-294 the Full Court of the Family Court stated that "[W]here there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party's contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties' respective contributions…".

6.

[2014] WASCA 124 per McLure P at paragraph 63.

7.

The ethical issues for a lawyer acting for an alleged perpetrator of FDV are more complex.

The Family Court Rules 1998 (WA) are in the process of being redrafted. Those rules, and relevant provisions in the Family Court Act 1997 (WA), should provide for a process that: •

•

•

Identifies victim witnesses and parties, either by relying on the person's self-identification or by the court's own assessment to an 'arguable case' standard, based on a standard assessment tool such as the Common Risk Assessment tool20; Once identified, the witness must be treated as a special witness pursuant to Section 106R of the Evidence Act, unless the witness or party opts out (akin to s44C of the Restraining Orders Act 1997) of the "special witness" category as provided in s106R of the Evidence Act; At minimum, in some cases involving a self-represented cross examiner, prohibit direct cross-examination of the witness;

If at all possible, have special witnesses routinely give their evidence by CCTV from within the Court precinct, or by video link from a remote location.

8.

Inserted by amendment in 2004.

9.

Wills v the State of Western Australia [2013]WASCA 124.

10.

The State of Western Australia v Dale [2015] WASC 151.

11.

Smart v Clarke [2014] WASC 104.

12.

Section 106N of the Evidence Act 1906.

13.

Pritchard v WA Police [2007] WASC 127.

14.

Noting that only 1 of the 10 permanent court rooms of the Family Court of Western Australia is equipped for video link.

15.

Cramphorn v Bailey [2014]WASCA 60.

16.

Edition 3.2 published December 2016.

17.

Family Court of Western Australia June 2015.

18.

http://www.familycourt.wa.gov.au/V/violence_policy. aspx?uid=2146-6679-8432-4649.

19.

A pro forma letter to this effect may be found on the Family Court of Western Australia website together with the Family Violence Policy.

20.

Department for Child Protection and Family Support, Government of Western Australia, Western Australian Common Risk Assessment and Case Management Framework (2nd ed). 2015, p.89-94.

39

From bereaved to conceived Creating life after death through posthumous assisted reproduction Rachel Oakeley1 The article first appeared in issue 122 of Precedent, the journal of the Australian Lawyers Alliance, published in June 2014.

In 1818, Mary Shelly wrote her sci-fi fantasy, Frankenstein. In her story, life was created by extracting and combining parts from dead bodies, which were illegally exhumed. In the 20th century, creating life from tissue of the deceased is not only possible but happening. The question remains, though, whether it lawfully should?

Scientific advances mean that it is now possible to collect sperm from a deceased man and use it to create a pregnancy for his wife or partner. The law is struggling to keep up with the technological developments in this field.

Human Reproductive Technology (HRT) is an accepted part of modern life. As a society, we are generally comfortable with HRT being available to create life for people struggling with fertility issues.

Fertility preservation through extraction and cryogenic storage of gametes (sperm and oocytes) and embryos for use in artificial reproduction is commonplace throughout Australia and the western world. People suffering from reproductive ailments, such as cancer patients who have their reproductive functions destroyed by chemotherapy, are now afforded a chance to conceive through the preservation of gametes for later use.

HRT can also be used (and is increasingly being used) for posthumous assisted reproduction (PAR). PAR involves the use of gametes which have been collected during life and which are in cryogenic storage. Although highly controversial in the 1970s, PAR seems to be more acceptable in the 21st century. Today, a mother accessing embryos created for in vitro fertilisation (IVF) and using them for PAR to create a sibling for a child of a deceased father, for example, is more likely to be congratulated than criticised.

Posthumous collection and use of gametes (PCUG) remains much more controversial. PCUG involves the collection of gametes from the body in the 24 or so hours following death and their cryogenic storage with the intention that leave will be granted by the relevant authority for their use to create a pregnancy for the wife or partner of the 40 | BRIEF MAY 2016

deceased.

In Australia, PAR and PCUG are largely governed by state legislation, which has led to different outcomes for people seeking access to them, depending on their state of residence.

THE SCIENTIFIC HISTORY The first artificial insemination of a woman's genital tract with sperm (into the vagina) was carried out by Dr Spallanzani in 1780.

In 1949, an English agricultural biologist, Christopher Polge,2 reported that sperm could be frozen and thawed. Significant medical advances followed, initially driven by the cattle industry which began using the frozen sperm of prize bulls for breeding programmes.

In the mid-1950s, doctors found that inserting sperm into the womb rather than the vagina, through intrauterine insemination (IUI), resulted in much higher pregnancy rates in women.

Medicine advanced still further when Professor Patrick Steptoe successfully developed an in vitro embryo, by resulting in the birth of the first 'test tube baby', Louise Brown, in 1978.

In the 1990s, intra-cytoplasmic sperm injection (ICSI), in which sperm is injected directly into an ovum, enabled fertility doctors to use sperm of a lower quality.

It is this technology that makes PCUG possible. Sperm which is immature, or which has reduced mobility as a result of death, can be sufficiently viable to achieve a fertilised egg using ICSI. It is not technically possible (at the moment, at least) to harvest eggs from a deceased woman and use them to create life, so this paper focuses on the posthumous use of sperm.

The idea of a man fathering a child after death is far from new. In 1866, an Italian scientist, Montegazza, discovered that human sperm could survive freezing. He proposed that sperm banks be used by widows whose husbands were killed at war.3

LEGAL DEVELOPMENTS IN POSTHUMOUS USE OF GAMETES In the UK in 1977, Kim Casali gave birth to a son 16 months after his father died. It was front-page news and Ms Casali faced severe criticism. In 1984, the Warnock committee considered the Casali facts and commented, 'The use by a widow of her dead husband's semen for AIH is a practice which we feel should be actively discouraged.'4 Ms Casali had worked directly with a fertility clinic and without any court action being necessary. It appears that she was able to have the fertility treatment in circumstances where there was no statutory bar to it.

In 1984, the French tribunal de grande instance made the first-known5 legal decision about the use of stored sperm for reproductive purposes.6 Mr Parpalaix had deposited sperm prior to chemotherapy.

His widow was granted control of the sperm after his death and she was later artificially inseminated. Sadly for her, a pregnancy did not follow. In that case, Mr Parpalaix had not given any direction in his contract about posthumous use and the court considered at length whether his intentions could be determined with sufficient certainty after death. The court also considered the legal status of the sperm – whether it was human tissue or property capable of being dealt with under inheritance law provisions.

In 1993, a Los Angeles court considered a case7 where the deceased had provided notice of his intentions that his sperm be made available to his partner, Ms Hecht, for her own use. The deceased had deposited sperm and made a will about the use of his sperm only a matter of weeks before taking his own life. The deceased had two adult children from a previous relationship. They opposed the use of the sperm in the manner described by their father. The Court held that the sperm was capable of disposition by will.

American, Gabby Vernoff, made headline news around the world in 1999, when she became pregnant with the child of her late husband, Bruce Vernoff, four years

after his sudden accidental death. Mr Vernoff's sperm had been posthumously extracted 30 hours after his death, at his wife's request. Four years later, she gave birth to his child. The key issue for consideration in that case8 was the child's legitimacy. Did she have a father or a donor? And was she entitled to inherit anything of her father's estate? The Social Security Administration Tribunal denied child survivor benefits. On appeal, the court affirmed the decision of the tribunal on the basis that the child was not a dependant of the deceased at the time of his death. Interestingly, the state of Arizona determined that a child conceived posthumously from sperm stored by the biological father just prior to him receiving cancer treatment, was his biological child and therefore did have legitimacy and inheritance rights.9 In the UK, Diane Blood was successfully able to take possession of the sperm of her husband who died in 1995 and transport it to Brussels, where, in 1999 and 2002, she was successfully impregnated. But under UK law, the births of Mrs Blood's two children had to be recorded with a blank space on the certificate where their father's name should have been. She argued that this rule breached their right to private and family life under the European Convention on Human Rights. The High Court agreed and the UK later passed the Human Fertilisation and Embryology (Deceased Fathers) Act 2003. Through this Act, Mrs Blood's children now have a registered legitimate father under UK law.

in imminent danger of dying. The man's wife sought orders for the collection of his sperm. His Honour concluded that parens patriae jurisdiction did not extend to authorisation of the non-therapeutic procedure of the removal of sperm. He also held that the Guardianship Act 1987 (NSW) and the Human Tissue Act 1983 (NSW) did not confer jurisdiction either.

In that case, the husband and wife had 'no plans' for children until they got on their feet financially. Justice O'Keefe also noted that even if jurisdictional power was available to him, he would not make the order. He expressed concern about the emotional state of the applicant and indicated that she was 'quite likely to change her mind' in the future about wishing to bear a child and raise it alone.

In Re Gray it was held that neither the general nor the inherent jurisdiction of the Queensland Supreme Court, nor the Supreme Court of Queensland Act 1991 (Qld), nor the parens patriae jurisdiction provided the Court with the power to make orders in favour of a widow over the dead body of her husband.

11

The Court found that Part 3 of the Transplantation and Anatomy Act 1979 (Qld) regulated the removal of tissue (which was defined in such a way as to include semen) from dead bodies, but his Honour held that the Act did not apply because the removal had to be for transplantation into the body of a living person or for some 'therapeutic… or… other medical or scientific purposes' and that the applicant's purpose was not one of those.12

DEVELOPMENT OF AUSTRALIAN LAW ON PCUG

Justice Chesterman also declined the application for the following three reasons:

Generally, the Australian courts have made decisions on PCUG cases in two tranches: firstly making a decision about collection and storage; and secondly making a decision about use.

1. There was no evidence of consent in the lifetime of the deceased to the proposed removal of sperm;

The first decision about collection and storage usually has to be made on an urgent ex parte oral application. The time between death and extraction and storage is critical. It is generally accepted among fertility specialists that collection and storage should occur within 36 hours of death if the sperm is to remain viable.

There is fascinating dicta about jurisdiction: whether the court (usually a state supreme court) had inherent jurisdiction – parens patriae jurisdiction (in the case of a man in a coma and incapable of making a decision) or jurisdiction under property law.

In MAW v Western Sydney Area Health Service ,10 Justice O'Keefe had to consider parens patriae jurisdiction of the NSW Supreme Court in relation to a man who was in a coma after an accident and

2. The court could have no confidence that the applicant was acting upon careful or rational deliberation; and 3. It was contrary to the best interests of a child to be born fatherless.

Re Gray was followed in Baker v Queensland.13 Then in 2004,14 Justice Atkinson of the Supreme Court of Queensland held that, in the absence of explicit statutory prohibition on the retrieval of sperm from a dead body, the court did have inherent jurisdiction to make an order for retrieval and storage so that the question of use could be considered at a later date. Her Honour referred to Re Gray and Baker v State of Queensland but found (at [35]) that there were 'valid public policy arguments' that pointed in the opposite direction to those which she thought had led Justices Chesterman and Muir to refuse the applications in those cases.

It would appear from the more recent Supreme Court dicta around Australia that extraction of sperm from a deceased man is less controversial than it was in bygone years.

It is generally now settled that posthumous collection of gametes can legitimately occur under the various Acts dealing with tissue extraction and use. In Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex Parte C,15 the Supreme Court of WA indicated that an urgent ex parte application may not be required for future cases. Justice Edleman concluded that the hospital had the power to extract and store sperm without the need for a court order on these bases: 1. The hospital could remove human tissue for medical purposes. Justice Edleman held that sperm was included in the definition of 'human tissue' and that future IVF treatment fell within the definition of 'medical purposes'.

2. The spouse or next of kin was able to indicate whether there was any possible objection to the use of the human tissue of the deceased for the proposed purpose.

Justice Edleman then followed an established judicial course of action regarding the use of the gametes; namely to leave that decision for a more considered application at a later date.

There now appears to be a settled course: remove and store; then consider what legitimate use, if any, can be made of the gametes – in particular, whether the gametes can be used for the purpose of creating a life.

Human tissue extraction tends to be dealt with in the context of legislation governing human tissue intended for organ donation.16 Gametes tend to be given a different or special status because they are human tissue which has the ability to create new life, rather than be used for treatment of an already existing human life.

KEY AUSTRALIAN DECISIONS Ex parte orders for posthumous extraction have now occurred in a number of Australian jurisdictions. Whether gametes can be used after extraction will depend on the state legislation of the day and its interpretation by the courts.

The situation in WA Section 22 of the Human Tissue and Transplant Act 1982 (WA) permits the removal of human tissue for 'medical purposes' from a person who has died.

The Human Reproductive Technology Act 41

1991 (WA) specifically prohibits any use of gametes from a deceased person for reproductive purposes.17 This has created a strange scenario for recipients of orders from the WA Supreme Court permitting the collection of gametes from a spouse or de facto partner.18 Having collected the gametes, the law as it currently stands prevents the use of the gametes for reproductive purposes. The practical result in WA is that fertility clinics are burdened with the responsibility (and cost) of storing the gametes.

AB v Attorney-General of Victoria19 Mrs & Mrs AB were residents of the ACT. Mr AB was killed in a car crash in Victoria.

Orders were made for the retrieval of sperm pursuant to the Human Tissue and Transplant Act 1982 (Vic) with storage in accordance with the Infertility Treatment Act 1995 (Vic). Whether Mrs AB could use the sperm was to be decided later.

Several years later, in AB v The Attorney General for the State of Victoria,20 Justice Hargrave considered the later application

by Mrs AB to use the sperm for her own treatment. Prohibited from directing that it be used to impregnate her under Victorian legislation, Mrs AB had sought to direct that the sperm be transferred to a clinic in the ACT, where she intended to use it.

Justice Hargrave considered carefully the recent amendments to the Infertility Treatment Act 1995 (Vic). Ultimately, he concluded that the applicant was prohibited through s12 of the Act from receiving treatment in Victoria but that she could direct that the sperm be transported to the ACT, where she could receive the treatment she sought for her own pregnancy with her late husband's sperm.

According to media reports, Mrs AB went on to be successfully impregnated in the ACT.21 Fields v Attorney-General of Victoria22 An application was brought on behalf of a young wife in intensive care after a car accident which killed her 23-year-old husband. His parents sought an order for the removal and storage of his sperm.

Prior to the accident, the couple had been attending a fertility treatment programme.

An order for retrieval and storage was made, with the question of use adjourned.

More recent decisions In NSW in 2011, Jocelyn Edwards, as the administrator of her late husband's estate, was held to have the right to direct that her late husband's sperm be collected and then transported to a jurisdiction which would permit her to make use of it for her own pregnancy.23 Justice Hulme had to consider whether it 42 | BRIEF MAY 2016

was proper for Mrs Edwards to take the sperm elsewhere when ss21 and 22 of the Assisted Reproductive Technology Act 2007 (NSW) prevented use without written consent and prohibited an ART provider from 'exporting' gametes without consent. Justice Hulme concluded that Mrs Edwards could deal with the sperm as 'property' and that she was entitled to possession of it. Justice Hulme then said that the fertility clinic would not be caught by the prohibition under s22 because the clinic was not 'supplying' to another state but 'releasing' the gametes to Mrs Edwards. Justice Hulme considered the fact that his decision could be seen as 'turning a blind eye' to the likelihood that Mrs Edwards would use the sperm in a manner which was contrary to NSW legislative provisions, by going to a different jurisdiction. Notwithstanding that likely outcome, he ordered that the sperm be released to Mrs Edwards.

In 2012, Justice Gray handed down his decision in the Supreme Court of South Australia which permitted the applicant to take possession of her late husband's sperm, knowing that she would then take it to the ACT for use in her own pregnancy, and despite there being legislation in South Australia which prohibited that use.24 A SUMMARY We now have a somewhat muddled legislative scene. The Australian jurisdictions' positions were summarised

by Justice Gray in his judgement in Re H, AE (No. 2)25 as follows: 20 … Legislation in New South Wales and Victoria prohibits the use of a deceased person's gametes in assisted reproductive treatment unless there is written consent from the donor to that effect. Section 23 of the Assisted Reproductive Technology Act 2007 (NSW) prohibits an assisted reproductive treatment provider from using a gamete, defined to include human sperm, after the death of the gamete provider unless "the gamete provider has consented to the use of the gamete after his or her death". Consent is defined to mean consent in accordance with section 17 of the Act, which requires consent to be given by written notice.

21. Section 46 of the Assisted Reproductive Treatment Act 2008 (Vic) provides that a registered assisted reproductive treatment provider may use gametes after a donor's death only if "the deceased person

provided written consent for the deceased person's gametes ... to be used in a treatment procedure".

22. Western Australia has banned the use of gametes of a deceased person. Direction 8.9 made on 30 November 2004 in the Government Gazette relevantly provides:

"No posthumous use of gametes: Any person to whom the licence applies must not knowingly use or authorise the use of gametes in an artificial fertilisation procedure after the death of the gamete provider."

Pursuant to section 3(8) of the Human Reproductive Technology Act 1991 (WA), all directions published in the Government Gazette are taken to be subsidiary legislation. Pursuant to section 6(1) of the Act, assisted reproductive treatment is only permitted when carried out pursuant to a licence, issued under the Human Reproductive Technology Act, to conduct such treatment.

23. In the remaining states and territories there is no specific legislation. In these jurisdictions, regard apparently is had to the earlier referred to guidelines of the National Health and Medical Research Council. The guidelines are not, in themselves, legally binding.

24. The Research Involving Human Embryos Act 2002 (Cth) regulates the provision of assisted reproductive treatment. Section 11 restricts the use of an embryo, relevantly, to accredited assisted reproductive treatment centres. Accredited assisted reproductive treatment centres are defined as those accredited by the Reproductive Technology Accreditation Committee of the Fertility Society of Australia. Accreditation by the Reproductive Technology Accreditation Committee is contingent upon compliance with the National Health and Medical Research Council Guidelines.

WHAT DOES THE FUTURE HOLD FOR AUSTRALIANS AND PCUG? The National Health and Medical Research Council (NHMRC) published the Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research in 2007. Regarding

the use of gametes from deceased or dying persons or from persons in postcoma unresponsive state, the guidelines say:

'Clinics must not facilitate the use of gametes to achieve pregnancy in such circumstances, unless all of the following conditions are met: •

•

•

•

•

a deceased person has left clearly expressed and witnessed directions consenting to the use of his or her gametes; or a person in a post-coma unresponsive state ('vegetative state') prepared clearly expressed and witnessed directions, before he or she entered the coma, consenting to the use of his or her gametes; or a dying person prepares clearly expressed and witnessed directions consenting to the use, after death, of his or her gametes; and the prospective parent received counselling about the consequences of such use; and the use does not diminish the fulfilment of the right of any child who may be born to knowledge of his or her biological parents.'26

The ACT appears to be the most liberal jurisdiction in relation to PAR. The ACT reproductive treatment clinics operate under the NHMRC guidelines that govern accreditation. Although these guidelines deny the posthumous use of sperm unless 'a deceased person has left clearly expressed and witnessed directions', the guidelines are just that: guidelines. They are not enforceable or subject to judicial interpretation. The fertility clinics receiving gametes as a result of interstate supreme court orders appear to have adopted a wide interpretation of the meaning of 'clearly expressed and witnessed' consent.

PCUG is increasingly likely to be permitted in most Australian states and territories, where it is requested by the widow or defacto partner of the deceased.

There is precedent for the release of gametes to the person with legal proprietorship, in the knowledge that they will be taken to a location where they can be used for HRT treatment. Whether that release will be granted is likely to be decided on a case-by-case basis.

lack of gametes available for couples struggling to become fertile, should gametes be capable of being donated in the same way human organs are? To paraphrase a number of supreme court judgments… that is a decision for another day.

NOTES 1.

Rachel Oakeley is a family law Barrister at John Toohey Chambers. Her family law work includes surrogacy and fertility law. She is a Deputy Member of the Reproductive Technology Council for Western Australia.

2.

C Polge; AU Smith; AS Parkes, (1949), 'Revival of Spermatozoa after Vitrification and Dehydration at Low Temperatures', Nature 164 (4172): 666.

3.

E Donald Shapiro & Benedene Sonnenblick, 'Widow and the Sperm: The Law of Post-Mortem Insemination', 1 JL & Health 229 (1985-1987).

4.

Report Of The Committee Of Inquiry Into Human Fertilisation And Embryology 1984 (Cmnd 9314) available online at http://www.hfea.gov.uk/docs/ Warnock_Report_of_the_Committee_of_Inquiry_into_ Human_Fertilisation_and_Embryology_1984.pdf.

5.

Shapiro & Sonnenblick, see above n2.

6.

Parpalaix c CECOS Trib. gr inst. Creteil, Aug. 1, 1984, Gazette du Palais [GP], Sept. 15, 1984, at 11.

7.

Hecht v Superior Court (1993) 20 Cal Rptr 2d 275.

8.

Vernoff v Astrue United States Court of Appeals, Ninth Circuit No. 08-55049 17 June 1999.

9.

See Gillett-Netting ex rel Netting v Barnhart, 371 F.3d 595 (9th Cir. 2004).

10.

MAW v Western Sydney Area Health Service (2000) 49 NSWLR 231.

11.

Re Gray [2001] 2 Qd R 35.

12.

Ibid, at [41].

13.

Baker v Queensland [2003] QSC 2.

14.

See Re Denman [2004] QSC 70; [2004] 2 Qd R 595.

15.

[2013] WASC 3.

16.

See Human Tissue Act 1983 (NSW); Transplantation and Anatomy Act 1979 (Qld); Transplantation and Anatomy Act 1983 (SA); Human Tissue Act 1982 (Vic); Human Tissue and Transplant Act 1982 (WA).

17.

Per Direction 8.9 of the Human Reproductive Technology Act 1991 (WA), Government Gazette, WA, No. 201, 30 November 2004, 5435.

18.

See Re Section 22 of the Human Tissue and Transplant Act 1982 (WA); Ex Parte C [2013] WASC 3.

It is beyond the scope of this article to discuss other key considerations such as parental status (is the father named on the birth certificate?) and inheritance rights (could a posthumously conceived child have a claim over the estate of the father?)

19.

AB v Attorney-General of Victoria [1998] Unreported, 23 July 1998, Gillard J (BC9803488).

20.

AB v The Attorney General for the State of Victoria [2005] VSC 180.

21.

Kate Legge, 'A matter of life and death', the Australian, April 6, 2013.

22.

Fields v Attorney General of Victoria [2004] Unreported, Coldrey J, 1 June 2004.

23.

Jocelyn Edwards; Re the estate of the late Mark Edwards [2011] NSWSC 478.

For all states, more work and thought is needed. The law continues to play catchup with modern medicine and societal attitudes. In Australia, where there is a

24.

See Re H, AE (No. 2) [2012] SASC 177 (12 October 2012) and Re H, AE (No. 3) [2013] SASC 196.

25.

Re H, AE (No. 2) [2012] SASC 177.

26.

NHMRC, Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research, 2007, para 6.15 – 6.17.

Decisions will be made after careful consideration of consent and bestinterests-of-children principles.

CONCLUSION It appears that the use of posthumously collected gametes will remain possible only in limited circumstances. Whether those limited circumstances will expand over time will be determined by public opinion, legislative development and judicial discretion.

Whatever direction the law takes, consistency in legislation across the states and territories is now required.

There are litigants in some states who are permitted to use stored gametes and others in very similar circumstances in other states who are not. Given the trend towards a permissive approach to PCUG in recent supreme court decisions, one wonders whether conservative WA may need to consider updating its Gazetted Directions to align with the national ethical guidelines and social trends.

The Dogs’ Refuge Home (WA) operates under a pro-life policy and relies on community support for funding.

E S TA B L I S H E D 1 9 3 5

Dog lovers can leave a lasting legacy By suggesting a bequest to the Dogs’ Refuge Home of WA, you can help your client leave a lasting legacy to support the caring and rehoming of lost and abandoned dogs in Perth.

We are one of WA’s oldest animal charities and operate a pro-life policy. Your clients can also be assured that we can make arrangements for their pet dogs to be cared for and re-homed.

For information, visit www.dogshome.org.au or request our Bequest brochure on 9381 8166. You can also contact Chris Osborn, who is a Lawyer for any advice on 9481 2040; 0400 206 105 or chris.osborn@whlaw.com.au Our recommended wording is: “I leave...to the Dogs’ Refuge Home (WA) Inc of 30 Lemnos St, Shenton Park, WA for its general purposes and the receipt of its President, Treasurer or Secretary shall be a sufficient discharge to my Trustees”.

43

Lawyer on the Street

Courtney Robertson LL.M. Candidate, Columbia University, 2016

Courtney Robertson is an alumna of the Young Lawyers Committee (YLC), and is currently undertaking a Master of Laws in New York City. The YLC recently touched base with her in an effort to gain some insight into what led her to where she is today. Here's what she had to say…

1. What have been the motivating factors in your career?

I started out at Maxim Litigation Consultants as a law graduate in 2010 because the firm had a reputation for great litigation work and I knew I wanted to be a litigator. In 2012, when Maxim and Lavan integrated, I joined Lavan's Dispute Resolution and Litigation team.

In 2014, I moved to Darwin in the Northern Territory in an effort to gain government experience. This was an opportunity to learn about governmental process, and to obtain an insider's perspective of the administration of justice in public practices. My role as a Senior Lawyer in the litigation team at the Solicitor for the Northern Territory offered me significant responsibility and autonomy, which was great for my professional development.

In August 2015, I moved to the United States to undertake a Master of Laws.

US law schools are renowned for their academic rigour, and more broadly, the US provides an interesting comparative perspective on law. Columbia Law School ticked all the boxes for me both academically and professionally. The fact that it is in New York City is definitely an added bonus!

2. What are the ways you find growth in your career?

I am always on the lookout for opportunities to learn something new; to

44 | BRIEF MAY 2016

refine a skill or increase my understanding of an issue; to learn of developments in the law; and more generally, to keep abreast of what's happening in the news. Undertaking a Master of Laws has provided me with a good grounding in certain practice areas and an excellent platform to further develop my dispute resolution skills. Day-to-day, I read widely (twitter, websites, journals) and listen to all sorts of podcasts. I think the most important thing is to have a curiosity for the law and to appreciate its effects.

3. What are the challenges you face in your career/studies?

While as a profession we have come a long way on certain gender equality issues, women still face significant discrimination. There remains the assumption that women are less committed to their work, or are more absent and less productive than their male counterparts, particularly once they've had children. Just last week, a colleague told me she spent more time in a job interview talking about her husband and whether or not she intended to have children, than about her qualifications for the job. The profession needs to do better than this: we're in the profession of applying the law in the interests of our clients, and the profession should be setting an example for other professions and industries.

4. How do you find balance in your life so you can keep performing at your best in your career?

I try very hard to make time for things that are important to me: my health, family, my personal and professional development outside of work. Sometimes the balance is hard to find, but it is worth the investment of time. We're all more productive and creative when we're healthy and happy.

Being a student again took a bit of getting used to, particularly because the daily routine that comes with being a lawyer no longer applies. This, of course, has its perks, but I still try to keep up some sort of a routine: one that involves eating properly, exercising, and studying and relaxing.

5. Do you have any tips and tricks that you've learnt that you wish you'd been told when you were starting out?

By way of advice to young lawyers starting out, I would urge them to find a mentor: you will be surprised at how willing mentors are to help you as you start out in your career! Invest in a buddy at work or someone you can chat to about work. Triple check everything, and if you don't understand something or make a mistake, say so: it is all part of the learning process.

Shea Lukey I am a solicitor at Ernst & Young in the tax controversy and policy team. Working in a complex area of the law, with strong political undertones and heavy media scrutiny, I have the opportunity to engage with varied interested parties who are affected by tax policy. I have been privileged to work with a small team of highly talented individuals who have mentored me through the early years of my career and have taught me how to survive, and indeed excel, in a challenging professional environment.

My choice of career path was shaped by a number of factors. During my latter years at university I was eager to do something which allowed me to utilise the full suite of both legal and commercial skills I had developed. I was also cognisant of the importance of selecting a practice area which maximised my ability to make meaningful contributions to society. A strong understanding of Australia's taxation laws, coupled with the political context in which they exist, means I can contribute to an area of policy which affects all segments of society.

Beyond my day-to-day work, I am a member of the Young Lawyers Committee. My involvement with the

YLC has been integral to my personal growth as it has provided me with the opportunity to contribute more broadly to the junior profession. Since starting with Ernst & Young a little over two years ago, the real challenge has not been in my ability to understand and apply the legal and commercial skills I developed at university; but rather, to develop those soft-skills which will allow me to succeed in a tough professional environment. During this early stage of my career, there appeared to be a lack of focus in encouraging the development of some fundamental skills which are key to the success of a junior lawyer.

Whether this was an area that had been taken for granted over the years, or merely forgotten about, this is an area that I want to focus on in my participation on the Committee. Specifically, I think there needs to be a greater focus on the development of soft-skills, which can be achieved through seminars and other educational forums.

I think it is important to continue to foster a collegiate, supportive culture within the junior legal profession. I would say to all juniors in the profession, even if you do so with some hesitation, get involved with your profession to the greatest extent possible.

Tannaz Pasha I am a solicitor and registered migration agent at The Humanitarian Group. I first started work here as a PLT student in 2012 when we were still known as CASE for Refugees. My job is to assist people outside their home country who cannot return home because they are at risk of persecution or serious human rights violations. I have always been drawn to human rights law and refugee law. Without doubt, the most motivating factor in my career is my clients - to be able to change a person's life gives me so much gratification and joy.

The hardest part of my job is often the hopelessness and frustration I feel when I can't help somebody, or if my clients receive a negative outcome. No matter how painstakingly you prepare for a case, at the end of the day you must accept that your best may sometimes not be enough, and you have to prepare yourself and your client for the worst.

Since I have started working for The Humanitarian Group, the law concerning asylum seekers has changed a number of times and those changes have not always been positive for our clients. As a result, our organisation has had to make some adjustments in the past and, no doubt, there will be more challenges and hard times coming our way. Despite this, The Humanitarian Group has gone from strength to strength and I feel privileged that I am part of a brilliant team of solicitors and human beings. Our mission is to empower vulnerable people by providing professional and accessible migration assistance, legal advice and education. Our aim is to embrace diversity and strengthen communities. Many of my clients have gone on and achieved great success after the grant of a visa, whether that is landing the job of their dreams or getting a PhD. But above all, they are now able to live a life free from persecution and harm.

Due to the nature of my work, I try very hard to have a good work/life balance.

I get a lot of enjoyment from travelling with my husband. Whether it is a quick trip down south or jumping on a plane to Europe, for me this is simply the best way to switch off and rejuvenate!

Commercial/Corporate/ Insolvency Lawyer +4 years PAE Recently ranked by Doyle’s Guide as one of only two First Tier firms in Western Australia and a recommended firm Australia wide, Bennett + Co is a Perth-based law firm specialising in corporate and commercial law with a vision to provide impeccable legal advice and representation based on a comprehensive focus on the needs of our clients.

Bennett + Co offers the opportunity to build successful careers through challenging and interesting work in a fun, friendly and supportive environment.

We are seeking expressions of interest from mid to senior lawyers to join our commercial and corporate division with • • • • •

at least 4+ years’ legal experience within commercial, corporate and/or insolvency; excellent interpersonal skills; strong drafting and written communication skills; the ability to build rapport with clients and deliver a superior service; and a high attention to detail and accuracy.

Please submit your resume to HR@bennettandco.com.au or for more information visit bennettandco.com.au

45

Family Law Case Notes Robert Glade-Wright Former barrister and accredited family law specialist

Property – Finding of shorter life expectancy due to ill health in the absence of expert evidence set aside In Fontana [2016] FamCAFC 11 (9 February 2016) the Full Court (Strickland, Murphy & Watts JJ) allowed the husband's appeal against a property order made by Collier J in which the wife was granted an adjustment of 4.5% under s75(2) in respect of a $1.7 million pool based on findings that included the husband's life expectancy.

It was found that he suffered renal failure and diabetes, was "dependent on dialysis three or four times weekly" ([5]), that "[his] needs … are likely to subsist for a shorter time than … the wife's needs" ([19]) but that the Court was "unable, on the material available … to put any realistic figure on his life expectancy" ([23]). After citing case law, in particular Lawrie (1981) FLC 91-102, the Full Court said ([26]-[27]): The guidance provided by these … cases has been followed in subsequent cases where there has been clear expert evidence, which was accepted, relating to shortened life expectancy of a predictable duration arising from a medical condition (see T & D & Anor [2006] FamCA 1248; Miklic & Miklic and Anor [2010] FamCA 741; Jurlina & Jurlina [2014] FamCA 284).

In this case his Honour, having … said that he was unable to make even an educated guess, let alone a finding, about the husband's life expectancy, has … reached a conclusion that the husband's needs are likely to subsist for a shorter time than the wife's needs. His Honour was in error in making that finding … where he had explicitly found that he could make no conclusive finding in relation to the husband's life expectancy.

Property – Setting aside of consent order due to husband's non-disclosure of inconsistent valuation he gave to his bank upheld In Pearce [2016] FamCAFC 14 (11 February 2016) the Full Court (Murphy, Aldridge & Forrest JJ) dismissed the husband's appeal against an order made by Dawe J under s79A setting aside a final order (made by consent) for the husband's failure to disclose to the wife "significant information" ([2]). The Full Court said (at [19]-[21]): Her Honour found that there was a lack of disclosure causative of miscarriage of justice by reason of the husband's

46 | BRIEF MAY 2016

failure to disclose a representation made by [him] to a bank … that D Street had a value of $700,000 [not $550,000 which he claimed before the consent order].

Her Honour was plainly of the view that if that representation had been disclosed … the wife would have been put on notice of the discrepancy between that representation as to value and the significantly different representation as to value made relatively contemporaneously in the consent orders. She was denied that knowledge, and the consequent opportunity to make such further or other enquiries as she might choose, as a consequence. She was also denied the opportunity to negotiate a settlement whose terms may have reflected that difference.

The impugning of 'the integrity of the judicial process' which, as her Honour recognised, lies at the heart of s79A's requisite miscarriage of justice occurred here not because the property may or may not have had a particular value, but because the wife's consent was not a fully informed consent.

Property – Initial contributions ($959,000 by husband and $168,000 wife) – Seven year marriage – Two children – $4.25 million pool In Telfer [2016] FCWA 2 (4 January 2016), a case before Walters J of the Family Court of WA, a seven year marriage produced two children (of 6 and 8) and assets of $4.25 million although the wife made initial contributions of $168,000 and the husband $960,000. As separation occurred in 2011 post-separation contributions were also considered. The husband worked in the building industry, undertaking studies which led to his qualifying as a builder (and an income of $585,358) when the parties separated whereas the wife was a teacher in part-time work (income $32,926) while caring for the children.

After citing Williams [2007] FamCA 313 as to the relevance of initial contributions Walters J concluded ([234]): In all the circumstances … I conclude that between 60% and 65% of the overall property pool should be awarded to the husband [for] his contributions from the commencement of cohabitation to the date of trial …

As it would be intellectually dishonest of me to choose either the higher or lower figure within the range I have specified, I shall fix the midpoint – being 62.5% – as being appropriate.

An adjustment of 7.5% was made under s75(2) in favour of the wife for the husband's "very substantial" earning capacity and the wife's care of the children, producing an overall division of 55:45 in favour of the husband.

Property – De facto property application dismissed – Not just and equitable to make an order In Chancellor & McCoy [2016] FCCA 53 (25 January 2016) Judge Turner considered a 27 year de facto relationship between a childless, same sex couple – the applicant Ms Chancellor and respondent Ms McCoy. The Court found that Ms McCoy acquired a property in her name the year after the relationship began; that the parties lived in and renovated that property, Ms McCoy funding the renovations, Ms Chancellor "assisting with the labour" and paying "$100 to $120 a fortnight to Ms McCoy" during "most of the relationship" ([52]); and that Ms Chancellor bought a property in 2002 in her name, renovations to that property being funded by Ms Chancellor, Ms McCoy "assisting with the labour" ([11]).

After citing Stanford (2012) 293 ALR 70, Bevan [2013] FamCAFC 116 and other case law (from [25]) the Court concluded ([59]) that "it would not be just and equitable to make an order altering the property interests". The Court said that the parties for 27 years "conducted their affairs in such a way that neither party would or could have acquired an interest in the property owned by the other" in that there was no intermingling of finances; each acquired property in their own name, remained responsible for their own debts and was able to use their wages as they chose without accounting to the other party; neither party provided for the other in the event of their death and at separation neither was aware of the assets the other had acquired. Ms Chancellor's application for a property order was dismissed.

Robert Glade-Wright is the founder, principal author and editor of The Family Law Book, a one-volume, loose-leaf and online subscription service. thefamilylawbook.com.au. He is assisted by accredited family law specialist Craig Nicol.

Young Lawyers Case Notes Compiled by volunteers coordinated by the Law Society's Young Lawyers Committee

Sakari Resources Ltd v Purvis [2016] WASCA 24 Conflict of laws - Application for stay of Western Australian proceedings due to related proceedings in Singapore Relevant principles In this case, the Court of Appeal considered the Master's dismissal of an application for a stay of proceedings in the Supreme Court of Western Australia.

Decision of the Master Purvis commenced proceedings in the general division of the Supreme Court of Western Australia against Sakari, a company incorporated in Singapore, for breach of an employment contract.

Two weeks after being served with the WA proceedings, Sakari commenced proceedings against Purvis and others in the High Court of Singapore. The Singapore proceedings related to the same issues raised in the WA proceedings, but were broader in scope.

Sakari applied to the Master for an order permanently staying the WA proceedings, alternatively, for a temporary stay, pending the outcome of the Singapore proceedings.

After considering the factors connecting the case to WA, the Master dismissed the application on the basis that it could not be concluded that WA was a clearly inappropriate forum.

'productive of serious and unjustified trouble and harassment to the defendant'.1 (Emphasis added.)

The Court observed that where there are both local proceedings and proceedings in a foreign jurisdiction arising out of the same sub-stratum of fact, but raising different issues or involving different parties, the local proceedings must be considered in light of the controversy as a whole arising out of that sub-stratum of fact in order to determine whether continuing the local proceedings would be 'vexatious or oppressive'.2 The applicant bears the onus of establishing that the proceedings are vexatious or oppressive.

The Court found that the Master ought to have considered whether the continuation of the WA proceedings would be vexatious or oppressive, and erred by only considering the question of whether WA was a clearly inappropriate forum.

While two of Sakari's grounds of appeal were upheld, Sakari's appeal was dismissed as the Court of Appeal found that the WA proceedings would not be vexatious or oppressive and accordingly the application should be dismissed.

Author: Sarah O'Brien-Smith, Solicitor, Hunt & Humphry

The State of Western Australia v Penny [2016] WADC 19

Sakari appealed against the Master's decision to dismiss the application for a stay.

Section 31A of the Evidence Act 1906 (WA)- Previous convictions for burglary Leave granted to lead propensity evidence

Proceedings in the Court of Appeal

Ms Penny was charged with burglary and the State applied for leave to adduce evidence of Ms Penny's previous convictions for offences committed under similar circumstances. Bowden DCJ granted leave, and in doing so summarised the requirements for evidence to be admissible under s31A of the Evidence Act 1906 (WA) (the Act) as follows.

The Court of Appeal confirmed the general principle that, where a party has regularly invoked the jurisdiction of an Australian court: …the proceedings will not be stayed unless the defendant can establish that, having regard to the factual circumstances and the availability of an appropriate tribunal in a foreign country, the Australian court is clearly so inappropriate a forum for the determination of the dispute that it would be oppressive or vexatious for the proceeding to continue. The continuation of the proceedings will be oppressive where they would be 'seriously and unfairly burdensome, prejudicial or damaging'; and will be vexatious where they would be

1. Propensity or relationship evidence Firstly, the evidence has to be 'relationship' or 'propensity' evidence: see the definitions in s31A(1) of the Act which have been construed widely. Relevantly, propensity evidence includes evidence of the conduct of the accused and of a tendency the accused has or had.

'significant probative value': s31A(2)(a) of the Act. The evidence must be more than merely relevant to the facts in issue - its probative value must be important or of consequence, and rationally affect the assessment of the probability of a relevant fact in issue to a significant extent.

In this case, the main issue was whether Ms Penny was the person who committed the burglary. Bowden DCJ held that the evidence of Ms Penny's prior convictions showed she had a tendency to commit burglaries and was significant, as it went to rebut her innocent explanation as to why her DNA was at the crime scene: [22]- [24].

3. Risk of an unfair trial vs the public interest Finally, the probative value of the evidence compared to the degree of risk of an unfair trial must be such that fair-minded people would think the public interest in adducing all relevant evidence of guilt should have priority over the risk of an unfair trial: s31A(2)(b) of the Act. Here, the risk was that the jury would misuse the evidence of Ms Penny's prior convictions by considering that, because she was a person likely to do such acts, she must have committed the burglary in question. Further, the jury may find against Ms Penny because of an apprehension that she escaped punishment for her past burglaries.

In granting the State leave, Bowden DCJ found that fair-minded people would think the public interest in adducing the evidence of Ms Penny's previous convictions must have priority over the risk of an unfair trial. Importantly, Bowden DCJ rejected the defence's argument that, once the jury heard the evidence of the previous convictions, they would not be able to apply their minds objectively to the charge in question. Any risk of the jury misusing the evidence of Ms Penny's convictions could be overcome by a direction from the trial judge. For the evidence to be excluded would require the jury to consider Ms Penny's claim of innocent association in a vacuum: [27]- [32].

Author anonymous NOTES 1.

Citing Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538 at [555]; CSR v Cigna Insurance CSR v Cigna Insurance Australia Ltd [1997] HCA 33; (1997) 189 CLR 345 at [390]- [391].

2.

Citing CSR v Cigna Insurance Australia Ltd at [401].

2. Significant probative value Secondly, the evidence must have

47

Law Council Update LAW COUNCIL CALLS FOR MANDATORY SENTENCING TO BE DROPPED FOR ALCOHOL-RELATED OFFENCES ON 25TH ANNIVERSARY OF ABORIGINAL DEATHS IN CUSTODY ROYAL COMMISSION

behind bars than their fellow citizens in 1991, today they are 14 times more likely.

We have to open our eyes to the effect mandatory sentencing is having on this shameful national crisis.

The Law Council of Australia will tell a Senate inquiry into the need for a nationallyconsistent approach to alcohol-fuelled violence today that mandatory minimum penalties for alcohol-fuelled violence offences should be repealed.

“COAG should work toward a national agreement on alcohol-fuelled violence; and needs to establish a new National Indigenous Law and Justice Framework, setting out and funding an effective intergovernmental response to Indigenous crime and imprisonment.

The peak body for Australian lawyers emphasised that mandatory sentencing is not effective as a deterrent or consistent with rule of law principles. Alternate approaches could, for example, include tougher maximum sentences, targeted diversion or justice reinvestment.

However the Law Council's president, Stuart Clark AM, said the capacity of judges to exercise discretion was critical and cited the recent case of an Irish tourist who punched his brother in Sydney as an example of the danger 'one-size-fits-all' nature of mandatory sentencing.

“This case serves as a salient wake-up call for the perverse outcomes mandatory sentencing can create," Mr Clark said.

“If Barry Lyttle had been just a little more intoxicated and if his brother had died in hospital, we would have seen an automatic sentence of eight years in prison. How would such an outcome have served the community?

“Mandatory sentencing undermines central principles of our justice system.

It can actually create greater law and order problems, because we know that imprisonment can increase the chances of an individual engaging in more serious criminal acts down the track.

“Opposing mandatory sentencing does not mean being 'soft on crime'. Harsher maximum sentences can be introduced, but allowing judges room to examine the unique circumstances of a case is vital. Exercising judgement is what judges are there for."

Mr Clark also noted that mandatory sentencing for alcohol-related offences — as well as more broadly — was having a devastating effect on Australia's Indigenous imprisonment crisis.

“The rapid increase in prison rates since the 25th Anniversary of the Royal Commission into Aboriginal Deaths in Custody requires urgent intergovernmental action, starting with removal of mandatory sentencing laws."

LAW COUNCIL CALLS ON COAG LEADERS TO SEIZE HISTORIC OPPORTUNITY TO REDUCE FAMILY VIOLENCE The Law Council of Australia is calling upon the Council of Australian Governments to seize the opportunity for intergovernmental action following the release of the Victorian Royal Commission Report into Family Violence.

Law Council of Australia President Stuart Clark AM said a number of the report's recommendations could be seized on by COAG leaders, including: • the recommendation to adopt family law reforms that reduce fragmentation of jurisdictions in cases involving family violence; • the creation of a single national database for family violence, child protection and family law orders, judgments, transcripts and other relevant court documentation that is accessible to each of the relevant courts and other agencies; • the development of a national family violence risk assessment framework and tool; • the expansion of resourcing for legal services to resolve the current overburdening of duty lawyer services in family violence matters; • the development of safety hubs; and

“It is 25 years to the day since the Royal Commission into Aboriginal Deaths in Custody shocked the nation with its findings and things are now much, much worse," Mr Clark said.

• the streamlining of court processes for families affected by family violence by enhancing the powers of specialist family violence courts and ensuring that all family violence matters are heard and determined in such courts.

“Whereas Indigenous Australians were seven times more likely to find themselves

“The nation's leaders have been presented with a golden opportunity to stand on

48 | BRIEF MAY 2016

the shoulders of the Victorian Royal Commission and act decisively to reduce family violence," Mr Clark said.

“The recommendations we know will have a real effect have been laid out. We now need genuine national leadership to get them implemented."

LAW COUNCIL WELCOMES APPOINTMENT OF JUDGE ANNE DEMACK AS THE NEW FEDERAL CIRCUIT COURT JUDGE TO ROCKHAMPTON The Law Council has welcomed the appointment of a new Federal Circuit Court judge, Judge Anne Demack, to Rockhampton.

Judge Demack will circuit to Emerald, Gladstone, Mackay and also Brisbane, on occasion.

Chair of the Law Council's Rural, Regional and Remote (RRR) Lawyers Committee Morry Bailes said Judge Demack would bring a wealth of experience to the role.

“The appointment of Judge Demack will serve to greatly improve access to justice in the community," Mr Bailes said.

“Research undertaken in recent years indicates that there is a shortage of investment in the legal system and legal services in rural, regional, and remote areas. The appointment of Judge Demack is therefore an extremely welcome development."

Mr Bailes noted that the number of legal professionals working in country Australia is continuing to decline and that a Law Council survey, conducted in 2009, had demonstrated this problem would significantly worsen in coming years.

“The Law Council is concerned that a critical shortage of lawyers in rural, regional, and remote areas is negatively impacting the ability of individuals to access legal services," Mr Bailes said.

“There is a pressing need for government to address the recruitment and retention of legal practitioners to country Australia."

Judge Demack's appointment was announced by the Attorney-General, Senator George Brandis, earlier this month.

At the ceremony and first sitting, Federal Member for Capricornia Michelle Landry noted that having a judge based in Rockhampton and travelling the 100 kilometres around the area to service the community would be immensely helpful to the families of Central Queensland.

pam sawyer

49

Professional Announcements Career moves and changes in your profession

Carr & Co Divorce and Family Lawyers

Kim Wilson & Co Family Lawyers

Stacey Wellings

William Sloan

Jessica Rasmussen

Carr & Co Divorce and Family Lawyers is pleased to announce that Stacey Wellings has been promoted to Senior Associate and Jessica Rasmussen to Associate.

Both Stacey and Jessica have been members of the Carr & Co team for an extended period of time. Both solicitors and the firm offer legal advice and representation in all areas of family law.

Jon Long

Jenny Edinger

Jon Long and Jenny Edinger have joined the Employment and Workplace Relations section of Panetta McGrath Lawyers.

Nicola Ashford

Dianne Caruso

Kim Wilson & Co Family Lawyers is pleased to announce William Sloan has joined the firm from 4 March 2016 as one of our Senior Associates. Nicola Ashford joined our team as a Family Lawyer on 25 February 2016. We also acknowledge Dianne Caruso was appointed an Associate of the firm in 2015.

Classifieds LIFE-STYLE LEGAL PRACTICE If there is such a thing we believe we have created it. Tony and Rosemary Lee offer for sale their unique Legal Practice at beautiful Mission Beach in Tropical North Queensland.

Accommodation on site available Registered boat mooring Please direct enquiries to admin@leeandco.com.au or phone (07) 4068 8100

MISSING WILL Any person knowing the whereabouts of the last Will made by PHILLIP THOMAS LONGHURST late of 5 St Helens Grove, Landsdale in the State of Western Australia born on 8 May 1966 died on 20 August 2015, please contact Maria Fifield of Avon Legal, Suite 7, 9 The Avenue MIDLAND WA 6056.

Telephone: 9274 1977 Email: shemali@avonlegal.com.au

P F

08 9321 0522 08 9321 0622

E info@pmlawyers.com.au W pmlawyers.com.au

You will gain direct exposure to a diverse range of employer clients working across both advisory and litigious matters in employment and workplace relations.

We provide regular training and supervision from our senior team. Depending on your PAE level, you will also have the opportunity to work independently as well as within a

50 | BRIEF MAY 2016

It is hereby notified for general information in accordance with Rule 36 of the Legal Profession Rules 2009 that, at a duty convened meeting of the Board, the following practitioners were declared to be elected members of the Legal Practice Board for a two year term commencing Thursday, 7 April 2016:•

Simon Shenton FRENCH

•

John James HOCKLEY

With a friendly and supportive culture the right candidate will enjoy the benefit of career progression in a firm that highly values its healthy work/life balance.

•

John Robert Broderick LEY

•

Ann Marie LISCIA

This is an excellent opportunity to join a growing team and secure a competitive package with the option of flexible working arrangements.

•

John George SYMINTON

•

Robert Graham WILSON

Workplace Relations Lawyer This successful boutique West Perth practice has a growth opportunity in its Workplace Relations group for a talented lawyer to join its supportive and experienced team.

Legal Practice Board Elected Members

cohesive and committed team environment.

If you are interested in finding out more, please submit your CV and letter of application to info@pmlawyers.com.au.

New Members New members joining the Law Society (March 2016)

Associate Membership

Miss Roisin Keating

University of Notre Dame Australia

Mr Timothy Spooner

Nexia Australia

Miss Nicola Mullen

Arns & Associates

Mr Ben O'Connor

Murdoch University

Dr Narrelle Morris

Curtin University

Mrs Danielle Pampling

Murdoch University

Mr Raymond Johnstone

Murdoch University

Mr Justin Chanlongsirichai

University of Notre Dame Australia

Miss Jessica Pemberton University of Notre Dame Australia

Mr Andrew Weston

University of Notre Dame Australia

Miss Jordan Cahill

Murdoch University

Mr Andreus van der Vyver

Edith Cowan University

Mr Sunand Fernandez

Murdoch University

Miss Jasmine Ball

Murdoch University

Mr Ivo Evangelista

Murdoch University

Mr Brent Rayner

Mr Jordan Hurley

HHG Legal Group

James Cook University

Mr Andrew Oud

University of Notre Dame Australia

Miss April Min-Din

Murdoch University

Miss Maddy Shellabear

University of Notre Dame Australia

Mr Dino Todorov

Edith Cowan University

Mr Louis Mitchell

University of Notre Dame Australia

Miss Felicity Boyd

University of Notre Dame Australia

Ms Victoria Winter Ms Leishae Burke

University of Western Australia

Miss Sally Ross

University of Western Australia

Mr Tom Camp

Supreme Court of Western Australia

CORRS PERTH CELEBRATES OFFICE RELOCATION TO WORKPLACE OF THE FUTURE

Australian independent law firm Corrs Chambers Westgarth officially opened its new Perth premises after recently relocating to prestigious Brookfield Place Tower 2. The move fulfils Corrs' strategic vision to create inspiring workplaces in which collaboration, learning and knowledge sharing can thrive.

The new office was opened at an event on Wednesday, 16 March

by The Honourable Wayne Martin AC QC, Chief Justice of Western Australia. Partner-in-charge of Corrs Perth Nicholas Ellery said he was delighted to host the event for the Perth business community: "Corrs is a national independent firm with a strong international presence.

We have a long history in Western Australia. The move to our innovative workplace represents a new page in our history in WA." This is the fourth and final move in three years for Corrs to innovative workplaces. The firm was the first large Australian law firm to adopt an open and flexible office. It made the brave step in 2013 to break away from traditional ways of working moving to new premises at 8 Chifley, Sydney.

Corrs partner and CEO John W.H.

Ms Thulani Rajapaksa

Murdoch University

Mr Ajay Singh Sahota

Murdoch University

Mr Samuel Turco Ms Jessica Parker

Murdoch University

Ordinary Membership Mr Paul Sheiner

Roe Legal Services (WA) Pty Ltd

Ms Susan Markham

Director of Public Prosecutions Commonwealth

Miss Sharleena Ramdhas

Ramdhas Poli Barristers & Solicitors

Restricted Practitioner Miss Jessica Jones

Minter Ellison

Ms Elizabeth Wreck

BIS Industries Ltd

Mr Tun Lian Yeo

Mills Oakley

Ms Daphne Jones-Bolla

Sparke Helmore

Mrs May Townsend

Denton AO said he was extremely proud of the firm's pioneering spirit: "The commitment to embracing our new workplaces and a new way of working is integral to the spirit that makes Corrs such a successful firm. We made a bold move for the legal sector. Other firms have since followed our lead."

The four office moves have taken the firm to a new level with an open, flexible and efficient working environment to benefit both its people and clients. The Perth workplace - like Corrs Sydney, Melbourne and Brisbane - is completely wireless offices allowing laptops, phone calls, digital files and printing accessible from anywhere.

"It has meant that we can connect with each other any time and in any way and given us more choice in the way we work," Nicholas Ellery said.

The firm's courage to do things differently and steer away from the traditional law firm office resulted in an Innovation in Legal IT Award at the Lawtech Conference Awards in 2014 for use of technology. In 2015 the open and flexible workplace strategy was applauded by Financial Times Asia Pacific Innovative Lawyers as "standout", placing second overall in the Business of Law category.

51

Events Calendar

With thanks to our CPD partner

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

DATE

EVENT

LOCATION

MAY MEMBERSHIP EVENTS Monday, 16 May

The Case for Legal Aid – Law Week Breakfast with Fred Chaney AO and 2016 Attorney General's Community Service Law Awards

Parmelia Hilton, Perth

Monday, 16 May

Youth Civics Leadership Day – by invitation only

The Law Society of Western Australia, The Old Court House Law Museum

Wednesday, 18 May

Law Week Panel Discussion presented by the Young Lawyers Committee

Supreme Court of Western Australia

Wednesday, 18 May

Alfred Hawes Stone Talk: Early Lawyer and Photographer, with Dr Pamela Statham-Drew

The Old Court House Law Museum

Wednesday, 18 May

Lifeline WA: Domestic Violence Alert Session

The Law Society of Western Australia

Wednesday, 18 May

Sole Practitioner and Small Firm Forum

The Law Society of Western Australia

Thursday, 19 May

Law Week Cocktail Evening and Lawyer of the Year Awards

Bankwest, Perth

MAY CPD SEMINARS Tuesday, 17 May

How disruption may impact on diversity in the legal profession

The Law Society of Western Australia

Wednesday, 18 May

Mental Health Matters: review of the mental health and depression in the profession report

The Law Society of Western Australia

Thursday, 19 May

Refugee matters: a seminar for lawyers and non-lawyers

The Law Society of Western Australia

Friday, 20 May

Mental Health Matters: technology and its effects on the practice of law – panel discussion

Central Park Theatrette

JUNE MEMBERSHIP EVENTS Friday, 17 June

Society Club

Ocean Centre Hotel, Geraldton

June

Society Club

Perth CBD

JUNE CPD SEMINARS Thursday, 9 June

QPS Accreditation workshop one

The Law Society of Western Australia

Thursday, 16 June

QPS Accreditation workshop two

The Law Society of Western Australia

Friday, 17 June

Country Roadshow: Geraldton

Ocean Centre Hotel, Geraldton

Friday, 24 June

Introduction to advocacy

The Law Society of Western Australia

JULY CPD SEMINARS Tuesday, 19 July

Changes to the Office of State Revenue's assessment practices

The Law Society of Western Australia

AUGUST CPD SEMINARS Friday, 5 August Sunday, 7 August

Practical advocacy weekend

Seashells Resort Mandurah

SEPTEMBER MEMBERSHIP EVENTS Friday, 9 September

Gala Dinner Celebration – Marking 10 years of service by the Hon Wayne Martin AC as Chief Justice of Western Australia

Perth Convention and Exhibition Centre

For all CPD-related enquiries please contact cpd@lawsocietywa.asn.au or (08) 9324 8614 For all membership-related enquiries please contact membership@lawsocietywa.asn.au or (08) 9324 8638 For all upcoming events and further information please visit lawsocietywa.asn.au 52 | BRIEF MAY 2016

Law Society Mentoring Programme Your opportunity to receive guidance from a senior member of the profession

Aboriginal and Torres Strait Islander Law Students The Law Society and its Indigenous Legal Issues Committee offer a mentoring programme for Aboriginal and Torres Strait Islander law students from Western Australian universities.

You will receive one-on-one contact with a legal practitioner with whom you can discuss your law course and your options and aspirations after graduation.

Contact between you and your mentor can be over coffee or lunch, or by email if you are a student at a country campus. The mentors are lawyers with an interest in assisting Aboriginal and Torres Strait Islander law students.

Please visit lawsocietywa.asn.au/ mentoring-programme to complete an Expression of Interest or find out more. Expressions of Interest must be received by the Law Society by 5.00pm on Monday, 16 May 2016.

2016 Junior Practitioner Mentoring Programme

Sponsored by

The mentoring programme is open to junior practitioners who: •

have been admitted to practice for a period of less than five years at December 2016;

•

are financial ordinary members of the Law Society; and

•

will be able to participate in the programme between July 2016 and March 2017.

Mentees will be paired with a mentor who is an experienced member of the legal profession. Mentors and mentees attend separate workshops to establish an understanding of the responsibilities, benefits and parameters of the mentoring relationship. Matches are carefully selected and the mentoring relationship is monitored by the programme facilitator.

Please visit lawsocietywa.asn.au/ mentoring-programme to complete an Expression of Interest or find out more. Expressions of Interest must be received by the Law Society by 5.00pm on Thursday, 19 May 2016.

lawsocietywa.asn.au 53

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