Sunday, 25 January 2009

Cairns man arrested for having sex with sex dolls

This is off topic, but this is the kind of story that is so bizarre that normally I would be writing about it as an "Only in America", but this is an "Only in Queensland" one instead.

A 23 year old man from the Cairns suburb of Manunda has been charged with breaking and entering the Laneway Adult Shop in Cairns. The allegation is that he broke in several times, stole some blow up dolls, and a sex toy,blew some of the dolls up and had sex with them in the laneway outside the shop. On one occasion he is alleged to have stolen 5 dolls, and had sex with one of them in the laneway.

What? Did he take only the good looking ones home?

Apparently he was a discriminating sex doll thief- his preference was for a sex doll called Jungle Jane!

For a link about the court case, according to Fairfax, click here.

For a link to the Cairns Post with photos of the shop including a photo of a deflated, apparently used sex doll, click here.

Not surprisingly, the news has reached the world stage.

NZ surrogate required to pay child support

What is shown time and time again is that in the surrogacy debate the law is way behind what is happening in people's lives.

Fairfax reports that a gay Queensland couple applied to the Federal government for benefits, including presumably the baby bonus. The only problem was that their child was born via a surrogate in New Zealand. Because the father is receiving Centrelink, and can identify the mother, the Child Support Agency has written to her demanding that she pay child support. The birth mother is still liable to pay, because while surrogacy is not illegal in New Zealand, unlike Queensland, there has not been an adoption.

This case is yet another example of the need for people to get good legal advice before seeking surrogacy arrangements, or IVF arrangements that are not through a clinic.

It would also appear that the gay couple, who presumably are usually Queensland residents, have committed offences in Queensland under the Surrogate Parenthood Act 1988. This is because they entered into a surrogacy arrangement. Where that arrangement happened is irrelevant in the eyes of Queensland law.

Battle over dead woman's embryos

News.com.au reports that a Victorian man and his fiancee's mother are battling over the frozen embryos donated by his late fiancee. The mother is opposed to his apparent plans to have one fertilised by his sperm and to be carried by his sister as a surrogate.

Wednesday, 21 January 2009

ACLU urges Tennessee Court to end discrimination against lesbian mum

It would appear that in Australia in 2009 the type of case described here is now an event from the past:

In a brief filed on 23 December, the American Civil Liberties Union is urging a Tennessee appeals court to remove a ban preventing a divorced mum from having her partner of nine years and her own children stay at her home at the same time. The trial court unconstitutionally imposed the so-called "paramour restriction" on the lesbian couple even though the psychologist who performed the custodial evaluation in the case found the partner to be a positive influence in the children's lives.

"Of course I'm willing to do anything to be able to be with my children, but this is really tearing us apart," said Angel Chandler. "It's been a huge emotional and financial drain on our family. It forces us to live apart almost every night, and it is denying my children quality time with a positive role model and person they love."

Chandler and her former spouse, Joseph Barker, have two children, a daughter, 13, and a son, 15. Since they divorced more than 10 years ago, they have shared custody of the two children over the years. They have both entered into new relationships. Chandler has been with her partner since 1999. Barker remarried approximately 5 years ago.

It was not until May 15, 2008, that the court issued the restriction barring Chandler's partner from her home any nights her children are with her. It was imposed after Chandler and Barker appeared before the Gibson County Chancery Court to modify their parenting plan. Even though a court-ordered psychological evaluation of all the parties noted that Chandler's partner was a positive influence on the children, the trial judge imposed the restriction under the erroneous belief that he was required to do so under state law.

The restriction has caused a huge strain on Chandler's relationship. Right after the order was issued, Chandler's partner was forced to move back to North Carolina, making it virtually impossible for the couple to spend time together. Eventually they both relocated to North Carolina where they now live in a duplex that allows them to abide by the order. But Chandler had to leave her job and has just recently found suitable employment. The restriction has also been harmful to Chandler's children, especially her daughter, who enjoyed spending time with her mother's partner and who looked to her for advice and guidance. Living in the duplex, the couple is also losing rental income they relied on before the court imposed the ban.

"By all accounts, this family was succeeding, having gotten through a divorce and introduced a new parent into the home. But nine years on, a Judge has done his best to destroy all that by imposing this impossible restriction," said Christine Sun, the Southeast regional senior staff attorney with the ACLU's Lesbian Gay Bisexual Transgender Project. "We are hopeful that the appeals court will recognize that it is unfair to tear this family apart."

The brief filed by the ACLU charges that the court was wrong to interpret state law as requiring it to impose the partner ban. The brief points out that while there is no evidence in the record to support the imposition of the restriction, there is ample evidence showing that the children were doing fine the first nine years when there were no restrictions on the children's contact with the partner. The psychological report concluded that the children had a positive parent-like relationship with the partner and that children who grow up in homes headed by same-sex couples tend to develop normal social relationships. The brief also charges that the restriction is unconstitutional. It unconstitutionally interferes with Chandler's ability to raise her children as she sees fit, and it places an impossible burden on gay and lesbian parents. The brief notes that unlike straight couples, who have the option of marrying, lesbians and gay men are barred from marrying in the state and would never be able to live with their partners under these restrictions.

"Unfortunately, this case is an all too familiar example of how unfairly lesbian and gay parents are treated in custody and visitation proceedings," said Hedy Weinberg, Executive Director of the ACLU of Tennessee. "All the children's health and welfare organizations have long recognized that lesbian and gay parents are just as capable of being good parents as straight couples and their children are just as well adjusted. We're hopeful the Tennessee courts will come to that realization too."

In addition to Sun, Chandler is being represented by Lucian Pera and Brian Faughnan of Adams and Reese, LLP, Tricia Herzfeld of the ACLU of Tennessee, and Gregory Minton. A copy of the brief filed today in the Court of Appeals of Tennessee, Western Division is available here.

Source: ACLU

Tuesday, 20 January 2009

California: Attorney-General argues that Proposition 8 invalid

Californian Attorney-General Jerry Brown Jr has argued in submissions to the California Supreme Court that Proposition 8 is invalid.

His argument is that the right to marry, under the Californian constitution, is an "inalienable" right which the California Supreme Court can only abridge or modify for compelling reasons when the court judges it as "fundamental". His argument is that because the California Marriage case determined that there was no compelling reason to deny the right to same sex couples, therefore Proposition 8 was invalid.

By contrast, the former Special Prosecutor of President Clinton, Kenneth Starr, now the dean of Malibu based Pepperdine University Law School, argues that Prop 8 is valid and that it invalidates all same sex marriages entered into before it passed.

The case challenging Prop 8 is yet to be decided by the California Supreme Court.

For more, click here [PDF] .

Monday, 19 January 2009

66 countries still discriminate agaisnt HIV/AIDS travellers

Thirty countries deport HIV+ migrant workers, sixty six countries discriminate HIV+ travellers, including 19 in Europe, according to the 2008 survey of the Deutsche AIDS-Hilfe e.V.

The survey shows currently 66 of the 186 countries included have discriminatory restrictions in place. 30 countries do not stand back from deporting people living with HIV or asking them to leave the country, once they are detected to be HIV positive, a huge problem for migrant workers. The majority of countries with entry restrictions require mandatory HIV tests to exclude people with HIV. Findings are published in English at the global database on HIV specific travel restrictions.

The Global Database on HIV-Related Travel Restrictions, an initiative of the German AIDS Federation, the European AIDS Treatment Group and the International AIDS Society, provides updated information from 196 countries, on existing regulations denying entry or residency for people living with HIV, based on relevant country legislation.

Sunday, 18 January 2009

Surrogate mothers could be paid up to $10,000

Mothers could be paid up to $10,000 to give birth to another woman's child under proposed changes to surrogacy laws, according to Brisbane's Sunday Mail. State governments will consider allowing women to be reimbursed by parents for the medical costs, and up to two months' loss of earnings, according to the report.

Gay war widower to be finally recognised

The recent changes to a raft of Commonwealth legislation have highlighted the plight of people such as gay war widower Edward Young who for the last 10 years has been denied the right to have a war widow's pension paid to him simply because he was gay. Now it appears that he will be paid, according to Fairfax Media.

Iranian HIV doctors targeted by regime: Human Rights Watch

A release from Human Rights Watch:

Iran: Acquit HIV/AIDS Doctors Prosecuted in Unfair Trial
January 13, 2009
Related Materials:
Iran: Release Detained HIV/AIDS Experts
Iran: Free AIDS Doctors
Other Material:
Physicians for Human Rights Website
More on Iran from Human Rights Watch
More on HIV/AIDS and human rights from Human Rights Watch
To all appearances, the arrest and now the trial of these two prominent and widely-traveled AIDS doctors seem to be an effort to shut the door on medical and public health collaboration on global health crises...a policy that is dangerous for the well-being of the Iranian people and for global health.
Frank Donaghue, CEO Physicians for Human Rights
(New York, January 13, 2009) - Drs Kamiar and Arash Alaei, Iranian brothers who are known worldwide for their work as HIV/AIDS physicians, are among the four Iranian citizens cited today by Iranian authorities as attempting to overthrow the state, Physicians for Human Rights, Human Rights Watch, and International Campaign for Human Rights in Iran have learned from reliable sources.
According to the Islamic Republic News Agency, Iranian Judiciary spokesperson Ali-Reza Jamshidi told a news conference today that four Iranian citizens had been arrested and brought to the court on charges of "communications with an enemy government" and seeking to overthrow the Iranian government under article 508 of Iran's Islamic Penal Code. Speaking at a press conference, Jamshidi claimed: "They were linked to the CIA, backed by the US government and State Department... They recruited and trained people to work with different espionage networks to launch a velvet overthrow of the Iranian government." Jamshidi added that further details of the case would be forthcoming in the next two days.
PHR, HRW, and ICHRI believe the charge of plotting a coup is being brought unfairly, without the brothers being given the chance to adequately defend themselves. Their trial was marked by clear violations of due process. The Alaeis' human rights have been violated and their commitment to public health worldwide has been misrepresented by the Iranian Government as a threat to their regime.
"To all appearances, the arrest and now the trial of these two prominent and widely-traveled AIDS doctors seem to be an effort to shut the door on medical and public health collaboration on global health crises - a policy that is dangerous for the well-being of the Iranian people and for global health," said Frank Donaghue, CEO of Physicians for Human Rights.
Physicians for Human Rights, Human Rights Watch, and International Campaign for Human Rights in Iran have spoken out repeatedly about their concern that these serious charges had been levied without due process. The verdict in the case of the Drs. Alaei is expected this week, following a one-day trial in Tehran's Revolutionary Court on December 31, 2008, on charges of communicating with an "enemy government." At the trial, the Iranian prosecutor also informed the court of additional, secret evidence which the brothers' attorney had no opportunity to refute, because the prosecutor did not disclose them.
"Their prosecution is truly a witch hunt, and it is completely unacceptable to bring such charges against the Alaei brothers," said Hadi Ghaemi, spokesperson for International Campaign for Human Rights in Iran. "Everything they did was transparent with full knowledge and permission of the Iranian government, including participation in an exchange program on public health in November 2006 in the United States."
Over the last week, more than 2,000 people from around the globe contacted the Iranian Mission to the United Nations in New York City, demanding the Alaeis' release. In addition, 3,100 doctors, nurses, and public health workers from 85 countries have signed an online petition demanding their release, which can be viewed at IranFreeTheDocs.org. Leading physicians and public health specialists and numerous medical and scientific organizations have publicly called for the brothers' release, including HIV/AIDS and health experts, including: Global Fund Executive Director Professor Michel Kazatchkine; Partners in Health co-founder Dr. Paul Farmer; 2008 MacArthur Foundation Genius Grant recipient Wafaa El-Sadr, MD, MPH; Hossam E. Fadel, MD, of the Islamic Medical Association of North America; 1993 Nobel Laureate in Medicine Sir Richard Roberts PhD, FRS; and Ugandan AIDS pioneer Dr. Peter Mugyenyi.
"This case is just one more example of how under President Ahmadinejad's administration, Iran's human rights record has reached new lows," said Joe Amon, director of the HIV/AIDS and Human Rights Program at Human Rights Watch. "Ahmadinejad's presidency has created an intense atmosphere of fear and intimidation felt even by those working on the expansion of HIV/AIDS services."
Dr. Kamiar Alaei is a doctoral candidate at the SUNY Albany School of Public Health in Albany, New York and was expected to resume his studies there this fall. In 2007, he received a Master of Science degree in Population and International Health from the Harvard School of Public Health in Boston.
Dr. Arash Alaei is the former director of the International Education and Research Cooperation of the Iranian National Research Institute of Tuberculosis and Lung Disease. Since 1998, the Drs. Alaei have been carrying out HIV/AIDS treatment and prevention programs, particularly focused on harm reduction for injecting drug users.
In addition to their work in Iran, the Alaei brothers have held training courses for Afghan and Tajik medical workers and have worked to encourage regional cooperation among 12 Middle Eastern and Central Asian countries. Their efforts expanded the expertise of doctors in the region, advanced the progress of medical science, and earned Iran recognition as a model of best practice by the World Health Organization.

Saturday, 17 January 2009

Honduras: Transgender activist murdered

In my ignorance, I would never have imagined ever writing about "Honduras" and "transgender" in the one article. However, as the release from Human Rights Watch sets out clearly, there is clear activism there seeking equal rights:

New York, January 12, 2009) - the Honduran authorities should fully investigate the murder of Cynthia Nicole, a leading Honduras transgender rights defender, and other attacks on the transgender community, Human Rights Watch said today. Nicole's killing is the latest in a series of violent attacks against transgender people in Honduras. Unknown assailants murdered Nicole, 32, in the early hours of January 9, 2009. According to testimonies by other rights activists, three unknown men in a blue car shot Nicole in a drive-by shooting in Barrio Guaserique in Comayaguela, a town just outside the Honduran capital, Tegucigalpa. The transgender rights activist received three shots in the chest and one in the head."Cynthia Nicole fought tirelessly to secure basic rights protections for transgender sex workers," said Juliana Cano Nieto, researcher with the Lesbian, Gay, Bisexual, and Transgender Rights Program at Human Rights Watch.

"The authorities need to find and prosecute the perpetrators of this and previous attacks against the trans community."Nicole's murder comes as violence targeting Honduras's transgender community appears to be on the rise. In November and December 2008 there were attacks, two of which were fatal, against five other transgender people by unknown assailants. On November 20, an attacker killed Yasmin, a transgender sex worker and colleague of Nicole. The next day, on November 21, an attacker shot Bibi, another transgender sex worker, while she was working in the Obelisco, a park in the center of Comayaguela. On December 17, an attacker stabbed Noelia, a third transgender sex worker, 14 times. In addition to these attacks, on December 20, members of the police assaulted a transgender activist doing HIV/AIDS outreach work in Tegucigalpa.

In Nicole's case, police investigators state that they have found the assailant's abandoned car and bullet casings and are searching for the attackers.

However, transgender activists claim that in other cases police and judiciary have not taken effective steps to find those responsible."Impunity compounds the violence," said Cano. "If authorities fail to investigate attacks, victims have no reason to report them - and are ready targets for reprisals."

As a leader in Colectivo Violeta - an organization working to defend the rights and health of transgender people since 1995 - Nicole had a long record of outreach work on rights with transgender sex workers in Tegucigalpa. She provided information about HIV/AIDS and human rights, and represented her community at various national conferences and before the media.

"The transgender community is terrified," said Indyra Mendoza, director of the Honduran lesbian and feminist organization Cattrachas. "But these attacks will not silence the community in Honduras, and we will continue to work to ensure that the rights of transgender people are recognized and protected."Serious violence against transgender people in Honduras has been going on for years. Activists in the country have called this to the attention of domestic authorities, the Inter-American Commission on Human Rights, and UN special rapporteurs, with no response from the Honduran government.

Friday, 16 January 2009

UK: Sex Counsellor can't rely on religion to discriminate against gays

An English sex counsellor who said that he had overcome his "prejudices" but tried to rely on religion to refuse service to gay couples, was not discriminated against according to the Employment Appeals Tribunal as reported by pinknews.co.uk.

Thursday, 15 January 2009

ACLU asks Arkansas court to strike down parenting ban

And of course these changes not only apply to gay and lesbian partners, but all de facto partners in Arkansas who have children:
LITTLE ROCK 30/12/08– The American Civil Liberties Union today filed a lawsuit seeking to strike down a new law that bans any unmarried person who lives with a partner from serving as an adoptive or foster parent in the state of Arkansas.
At a press conference at the Arkansas State Capitol this morning, several of the plaintiffs described how Act 1, which is set to go into effect on January 1, impacts their families and why they decided to be part of the case.
Stephanie Huffman, who already adopted one child from the state in 2004, was one of the plaintiffs who spoke at today’s press conference. Huffman and her partner of 10 years, Wendy Rickman, want to adopt another child or a pair of siblings through the Department of Children and Family Services, but now can’t because of Act 1. “The state already knows we’re good enough parents that they placed one child with us before Act 1 passed,” said Huffman. “Who knows how many children are now cut off by this law from loving homes?”
In the lawsuit filed today, the ACLU argues that Act 1 violates the federal and state constitutional rights to equal protection and due process. Participating in the case are 29 adults and children from over a dozen different families, including a grandmother who lives with her same-sex partner of nine years and is the only relative able and willing to adopt her grandchild who is now in Arkansas state care, several married heterosexual couples who have relatives or friends disqualified by Act 1 who they want to adopt their children if they die, and a heterosexual woman who wants to be a foster or adoptive parent but can’t because she lives with her partner of five years. The complaint was filed this morning in Pulaski County Circuit Court.
“Ever since the election, we’ve been hearing from all corners of the state from dozens of families who are panicking about how Act 1 impacts them,” said Rita Sklar, Executive Director of the ACLU of Arkansas. “This law hurts families and children in many ways – it takes away parents’ right to decide for themselves who will adopt their children if they die, it denies the many children in Arkansas state care a chance at the largest possible pool of potential foster and adoptive homes, and denies couples who are living together but unmarried the chance to provide loving homes to children who desperately need them.”
Among the plaintiffs and their families are:
Sheila Cole: Sheila lives in Tulsa, Oklahoma with Jennifer, her partner of nine years. Sheila’s adult daughter from an earlier relationship had a baby girl in May of 2008 who was placed in the Arkansas foster care system when she was two months old. Sheila wants to adopt her granddaughter and is the relative best able to take in the baby. Every week she makes a four-hour round trip to Bentonville for two hours of visitation with her granddaughter. Sheila has taken foster parenting classes with Oklahoma’s DHS and has passed a home study. She is now waiting for approval from Arkansas, but she’s worried she might not be approved to adopt her own granddaughter because of Act 1.
Stephanie Huffman and Wendy Rickman: Stephanie and Wendy have been together for 10 years and are raising two sons together, one of whom is a 7-year-old with special needs whom Stephanie adopted from the state in 2004. Stephanie and Wendy want to adopt another child, or perhaps a pair of siblings, but can’t because of Act 1.
Frank Pennisi and Matt Harrison; Meredith and Benny Scroggin: Frank and Matt have been together for eight years and live together in Little Rock and would like to become foster or adoptive parents. Matt’s cousin, Meredith Scroggin, and her husband Benny want Frank and Matt to be able to adopt their two daughters in the event of their death.
Cary and Trina Kelley: Cary and his wife, Trina, have two young daughters and live across the road in Fayetteville from Cary’s mother Vickie Kelley and her partner Sophia Estes. Sophia and Vickie have been together 16 years, and cumulatively have three children and six grandchildren. If anything were to happen to Cary and Trina, who held their wedding in Vickie and Sophia’s backyard, they want Vickie and Sophia to be able to adopt their children. Trina, Cary’s wife, spent many years of her childhood in state care and she feels very strongly that children who need homes shouldn’t be cut off from loving relatives like Sophia and Vickie.
Kaytee Wright: Kaytee Wright lives on a farm in Cabot with her partner of five years, Alan Leveritt. Kaytee helps Alan raise his eight-year-old daughter from his previous marriage, of whom he has joint custody. Together she and Alan are also providing a home and financial assistance to a mother and her two young children through a Little Rock shelter for the working homeless. Kaytee was adopted from state care when she was just four weeks old, and she feels very strongly that good homes should be provided to children in the state system. Kaytee would like to adopt a child but cannot because she and Alan aren’t married.
For a complete list of all the plaintiff families and more detailed profiles, please visit http://www.aclu.org/lgbt/parenting/38201res20081230.html
The plaintiffs are represented by Christine P. Sun, Rose Saxe, and Leslie Cooper of the American Civil Liberties Union, Stacey Friedman, Garrard Beeney, and Jennifer Sheinfeld of Sullivan & Cromwell LLP, and Marie-Bernarde Miller and Daniel J. Beck of Williams & Anderson PLC on behalf of the ACLU Foundation of Arkansas.
The case is Cole, et al. v. Arkansas, et al. For more information on the case, including today’s complaint, visit http://www.aclu.org/lgbt/parenting/38199res20081230.html

Source: ACLU

UN General Assembly Affirms Equal Rights for all

In a powerful victory for the principles of the Universal Declaration of Human Rights, 66 nations at the UN General Assembly, including Australia, supported a groundbreaking statement confirming that international human rights protections include sexual orientation and gender identity. It is the first time that a statement condemning rights abuses against lesbian, gay, bisexual, and transgender people has been presented in the General Assembly.

The statement drew unprecedented support from five continents, including six African nations. Argentina read the statement before the General Assembly. A cross-regional group of states coordinated the drafting of the statement, also including Brazil, Croatia, France, Gabon, Japan, the Netherlands, and Norway.

The 66 countries reaffirmed "the principle of non-discrimination, which requires that human rights apply equally to every human being regardless of sexual orientation or gender identity." They stated they are "deeply concerned by violations of human rights and fundamental freedoms based on sexual orientation or gender identity," and said that "violence, harassment, discrimination, exclusion, stigmatization and prejudice are directed against persons in all countries in the world because of sexual orientation or gender identity."

The statement condemned killings, torture, arbitrary arrest, and "deprivation of economic, social and cultural rights, including the right to health." The participating countries urged all nations to "promote and protect human rights of all persons, regardless of sexual orientation and gender identity," and to end all criminal penalties against people because of their sexual orientation or gender identity.

The signatories overcame intense opposition from a group of governments that regularly try to block UN attention to violations based on sexual orientation and gender identity. Only 57 states signed an alternative text promoted by the Organization of the Islamic Conference. While affirming the "principles of non-discrimination and equality," they claimed that universal human rights did not include "the attempt to focus on the rights of certain persons."

At first, the Vatican had voiced strong opposition to the General Assembly statement. Its opposition sparked severe criticism by human rights defenders worldwide. In a significant reversal, however, the Vatican indicated to the General Assembly that it called for repeal of criminal penalties for homosexual conduct.
2008 was the 60th anniversary of the Universal Declaration of Human Rights and the General Assembly statement reaffirms the reach and breadth of those principles. The statement is non-binding, but restates what UN human rights bodies have repeatedly said: that no one should face rights violations because of their sexual orientation and gender identity.

Navanetham Pillay, the UN high commissioner for human rights, strongly supported the statement. In a videotaped message, she cited South Africa's 1996 decision to protect sexual orientation in its Constitution. She pointed to the "task and challenge to move beyond a debate on whether all human beings have rights," to "secure the climate for implementation."

Human rights violations based on sexual orientation and gender identityhappen regularly around the world. For example:
* In the United States, Amnesty International has documented serious patterns of police abuse against lesbian, gay, bisexual, and transgenderpeople, including incidents amounting to torture and ill-treatment. The United States refused to sign the General Assembly statement.
* In Egypt, Human Rights Watch documented a massive crackdown on mensuspected of homosexual conduct between 2001-2004, in which hundreds orthousands of men were arrested and tortured. Egypt actively opposed theGeneral Assembly statement.
* The International Gay and Lesbian Human Rights Commission has documented how, in many African countries, sodomy laws and prejudice deny rights protections to Africans engaged in same-sex practices amid the HIV/AIDS pandemic - and can actually criminalise outreach to affected groups.

The signatories to the General Assembly statement are:Albania, Andorra, Argentina, Armenia, Australia, Austria, Belgium, Bolivia,Bosnia and Herzegovina, Brazil, Bulgaria, Canada, Cape Verde, CentralAfrican Republic, Chile, Colombia, Croatia, Cuba, Cyprus, Czech Republic,Denmark, Ecuador, Estonia, Finland, France, Gabon, Georgia, Germany, Greece,Guinea-Bissau, Hungary, Iceland, Ireland, Israel, Italy, Japan, Latvia,Liechtenstein, Lithuania, Luxembourg, Malta, Mauritius, Mexico, Montenegro,Nepal, Netherlands, New Zealand, Nicaragua, Norway, Paraguay, Poland,Portugal, Romania, San Marino, Sao Tome and Principe, Serbia, Slovakia,Slovenia, Spain, Sweden, Switzerland, the former Yugoslav Republic ofMacedonia, Timor-Leste, United Kingdom, Uruguay, and Venezuela.

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Going to court

There is a perception that when people split up it is inevitable that they will go to court, about something, and that their lawyers will encourage them to go to court.

In most cases, nothing could be further from the truth. Most family lawyers want to help their clients get on with their lives and not be bogged down in a never ending, bitter court case. Whilst they can work the occasional miracle, family lawyers and judges are not miracle workers. They cannot undo in a number of days or weeks or months what it has taken a couple to do often over very many years.

What do people argue about?

In terms of legal disputes, when couples split up, they argue about:
  • money
  • kids
  • safety
  • ending the relationship

Money

These can fall into three categories:

  • property settlement
  • spousal maintenance (although this does not apply in all relationships)
  • child support

Property settlement disputes are usually settled without going to court. Most of the time, people reach agreement between themselves, with some assistance from their lawyers. Despite some people saying that family law matters are matters of relationships, not matters of law, an informal property settlement can lead to financial troubles. Often formal property settlements are needed to provide protection for stamp duty exemption, capital gains tax rollover relief, or for financial certainty.

Sometimes it is necessary to start court proceedings about property settlement or spousal maintenance to avoid a time limit.

Good family lawyers encourage their clients to settle and not to litigate- except as a last resort. With money disputes, this is very easy to calculate-what percentage of the property pool are the lawyer's costs going to be? What difference are the parties apart on property settlement? What is this in real money (as opposed to percentages)? How does this real money compare with the costs that have been incurred or are going to be incurred to go to court?

Parties need to ask themselves: "is the deal one that I can live with?" It doesn't have to be perfect - dealing with an ex, and trying to compromise means that deals rarely are perfect.

Spousal maintenance claims are taken to court much more rarely- in part because the ability to get spousal maintenance out of the former partner might be very low, and the cost of doing so (compared to the cost of what may be obtained) might proportionally be very high.

Child support claims are, in the scheme of things, occasionally brought before the courts- but the great emphasis is going through the Child Support Agency, either formally or informally.

Fighting about kids

Most parents manage to sort this out, without involving lawyers, or if lawyers are involved, lawyers are very much on the periphery. This is how it should be.

With the exception of those cases involving allegations of domestic violence or child abuse, or in urgent cases, the Family Law Act provides that the parties before they go to court must obtain a certificate from a registered dispute resolution practitioner. To get a certificate requires both parties to attend dispute resolution first, or at least be given the opportunity to attend. Dispute resolution used to be called counselling or mediation.

The practitioner in filling out the certificate has a number of options including stating whether or not each party has made a genuine attempt at settling. Obviously if the certificate states that a party has not made a genuine attempt at settling, then that certificate might be used later on against that party.

Unfortunately, the cases that are litigated, and involve the most protracted litigation, are those cases where, in the words of one former judge "a party has not listened to good legal advice, or worse, where both parties have not listened to good legal advice".

Litigation should be avoided wherever possible. Things happen in litigation that could not have been predicted by either of the parties that can cause long standing and possibly permanent damage to either of the parties (but usually both) or worse, to their children. While litigation should always be seen as the last resort, when all attempts to settle have failed, or the need to protect children is required, then unfortunately, sometimes litigation is needed.

Safety

It is sad, but many Australian relationships are characterised by the use of domestic violence. As part of safety planning, it is often necessary to go to court to obtain domestic violence orders.

Ending the relationship

This is simple- the relationship as a couple may have ended when the couple split up. For those recognised under Australian law as married, the married relationship only ends when they are divorced. A divorce application can only be made 12 months after final separation. For those living in de facto relationships- the relationship ends on that final separation. No court order is required to say that it is over. It is important though to get advice about property settlement and spousal maintenance time limits- as these kick in following the final separation or divorce.

Back into blogging!

For the last month I have not posted any articles. This was because of a heavy work schedule, followed by a much needed break.I have now been able to clear the cobwebs from my brain, and am back into blogging!