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IAFL Global Comparison of LGBT Laws

The International Academy of Family Lawyers, of which Vanessa Mathews is a Fellow, has published a global survey of Lesbian Gay Bisexual Transgender laws (LGBT laws), the results of which can be found here https://www.iafl.com/media/5336/2019-iafl-lgbt-survey.pdf.

The IAFL LGBT Committee stated ‘Laws affecting LGBT people vary greatly by country or jurisdiction. There are now 28 jurisdictions that accept same sex marriage, however gay sex remains illegal in many jurisdictions with the death penalty still applying in 14.

The International Academy of Family Lawyers (“IAFL”) supports all efforts towards full equality of the LGBT community throughout the world and the end to rules that unfairly discriminate against such individuals and, in many countries, criminalize countless couples because of the ones they love. There remains a lot of work to be done.
The work done by some fellows of the IAFL is having a real impact and changing for the better the lives of LGBT people. The LGBT Committee of the IAFL commissioned this survey to capitalize on the knowledge and expertise of some members for the benefit of the IAFL as a whole and the LGBT community.

The individual submissions in this survey are the work of fellows of the IAFL who have kindly donated their time and expertise to answer the same questions as set out below. Each of the contributor’s names and contact details are included.

The LGBT Committee intends that this should be a living resource. We are asking those who have already kindly donated their time to keep us informed as laws change in their jurisdictions. We have detailed submissions from 46 jurisdictions, however, there remains a good number of jurisdictions not covered where the IAFL has fellows. If your jurisdiction is not covered and you feel able to complete a survey, please get in touch with the IAFL.’

Congratulations to the IAFL LGBT committee members for preparing such a comprehensive review of comparative laws.

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Case Studies Case Studies Case Studies De Facto Relationships Financial Agreements Property and Superannuation

Financial loss during a relationship – case note

In the recent Family Court case of Anaya & Anaya [2019] FCCA 1048, the principle in the long established case of Kowaliw and Kowaliw was re-affirmed that:

As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:

  1. Where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets; or
  2. Where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimise d their value.

In Anaya, the husband argued that investment funds (including an inheritance of $1,000,000) ‘lost’ by the wife should be ‘added back’ to the asset pool and treated as an advance on her property settlement. The wife argued that the losses were a matter to be taken into account generally and to have them ‘added back’ to the asset pool would likely result in hardship to her.

His Honour held that at the time the wife decided to enter into the high risk investment she was likely to have been depressed and angry at the husband about their separation but that her decision to do so was reckless and fell within the second category of Kowaliw. The wife’s awareness was exacerbated by the timing of her decisions – after Family Court proceedings had commenced and she had legal representation.

I often have clients ask me to seek redress for losses ‘caused’ by their former partner, for example, the reduced value of their share portfolio or investment in a now worthless time-share resort. For the majority, my answer is no, that these losses were incurred in the course of the marriage but for some however, the answer is ‘yes’, for example, money lost due to gambling.

It is important that each significant financial ‘win’ and ‘loss’ experienced during the marriage is objectively assessed in the context of its surrounding circumstances. An emotional assessment may be misguided and result in unrealistic expectations by the aggrieved client.

I am available to assist with this task – by offering an objective and realistic assessment of your client’s complex property settlements.

Please contact me on vanessam@mflaw.com.au or 9804 7991 if you would like to discuss your client’s situation.

Or have your client contact me to arrange a free initial 15 minute telephone consultation.

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Case Studies child arrangements Parenting Proceedings

The Role Of The Single Expert Witness In Child Custody Matters – Case Note

The role of the Single Expert Witness / Family Report Writer was considered in a recent child custody decision by the Family Court of Western Australia (Worrall and Bartley [2018] FCWA 132).

In accordance with an earlier order that the interim parenting arrangements (child custody) for the nine year old child (who had been the subject of litigation for eight years) be reviewed after 12 months, the Single Expert Witness / Family Report Writer conducted his review and published a report.

The father sought that final parenting orders (child custody orders) be made in terms of the existing interim parenting orders or otherwise in accordance with the recommendations of the Single Expert Witness / Family Report Writer ‘on the papers’, that is without cross examination of the parties and / or witnesses.

The mother objected on the grounds that:

  1. She did not consent to the making of final parenting orders as proposed by the father; and
  2. She did not accept the opinion evidence submitted by the Single Expert Witness / Family Report Writer and the child’s psychologist.

His Honor held that:

  1. It would be procedurally unfair to make final orders in reliance on the Single Expert Witness / Family Report Writer report without affording the mother the opportunity to challenge it in cross-examination;
  2. The simple acceptance of the recommendations of the Single Expert Witness / Family Report Writer, without affording the opportunity for cross-examination, might reasonably be perceived as an abrogation by the Court of its decision-making responsibility in favour of the Expert;
  3. A Single Expert Witness / Family Report Writer, no matter how experienced or qualified, is still simply that: a witness;
  4. The expertise of the Single Expert Witness / Family Report Writer renders his or her opinion evidence admissible, but the opinion remains subject to an assessment by the Court as to the weight to be given by it;
  5. While expert evidence is of great assistance to the Court and informs many of the decisions which must be made, the responsibility for making those decisions is the Court’s alone;
  6. A Court hearing will afford the Court the opportunity to ask questions directly of the Single Expert Witness / Family Report Writer and child’s psychologist, if appropriate.

For these reasons, His Honour declined to determine the matter ‘on the papers’ and the matter was listed for final hearing in the Family Court with cross-examination of the experts.

The Family Court child custody case upholds the principle of ‘procedural fairness’ and the importance of parties having the right to put all witnesses, including expert witnesses, ‘to the test’.

Mathews Family Law & Mediation Specialists is an award winning best family law firm in Melbourne’s eastern suburbs recognised for its expertise in complex Family Court child custody matters.

Please contact Vanessa Mathews on vanessam@mflaw.com.au or  1300 635 529 to arrange a free telephone consultation to discuss your child custody matter with one of the best family lawyers in Melbourne, accredited family law specialist, Vanessa Mathews.