Wednesday, 4 November 2015

Suicidal Ideation of a Parent and Proper Medical Evidence of Treatment

Where there is evidence of suicidal ideation on the part of a parent with children who are subject to the Family Law Act 1975, the other parent may raise the issue of the need to protect the children from abuse or neglect. In Dooley & Skelton [2015] FCCA 2195 the father alleged that the suicidal ideation of the mother was part of the evidence of her mental health problems and there was an unacceptable risk to the children from being returned to the care of the mother and living with her.

It seems the mother was able to produce relevant helpful evidence to assist her case. The evidence showed she had “a background history of anxiety and depression” and relevantly she “experienced an episode of reactive depression and needed to be hospitalised for about a week”. “At that time, the mother was suffering low moods in relation to her then life circumstances. She was expressing suicidal thoughts but had no plans. After about one week, the mother was discharged from hospital for her own followup with her own treating doctors.” (See Judge Newbrun at [45])

The mother produced evidence that since her discharge from hospital she “has acted responsibly”. She sought psychological treatment, as well as treatment from her general medical practitioner. “The reports of her doctors and psychologists state the mother is committed to ongoing therapy.” That medical evidence contended “that the mother is now able to take care of her children’s needs and provide them with a safe and stable environment”. The Court accepted that medical evidence. (See [46])

The evidence of the mother was that whilst in hospital “she was seen by a psychiatrist, social worker, psychologist”. (See [47]) There was further evidence that prior to being admitted to hospital “the mother was experiencing some suicidal ideation , which had increased over the previous two weeks”. There was also evidence that prior to being discharged from hospital the mother was provided with a GP Mental Health Treatment plan. (See [48])

The mother produced evidence of her:
  • compliance with treatment from her medical practitioners; and
  • continuing treatment.
The evidence of the mother and her treating health professionals satisfied the Court that:
  • she had made a substantial recovery from her relevant mental health issues; and
  • she was presently able to take care of the needs of her children and provide them in a safe and stable environment (See [49])

The Court found that on the evidence before it “there is no unacceptable risk to the children from being returned to the mother’s care and living with her” (See [45]) and ordered that the children be returned to live with the mother.

Read in conjunction with Hunter & Morrison (Contravention) [2014] FamCA 198 (28 March 2014) Dooley & Skelton shows how to respond to the suicidal ideation of a parent and the material to place before the Court.

In Hunter & Morrison (Contravention) Tree J said at paragraph [54] “In my view, whilst the report of Mr A showed that the mother’s solicitors were taking steps to comply with the requests of the father made via his solicitors, the provision of the report, without more, did not go far enough. It ought to have addressed specifically the question of  suicidal ideation, and to have made it clear that Mr A had been appraised of the mother’s recent alleged disclosures to the children. Absent that sort of specificity, it was nothing more than a general statement which inevitably would be insufficient to placate the beliefs of the father.”

Further in Savage & Savage [2016] FamCA 20 Hannam J spoke to the issue of providing the Court with appropriate evidence from a suitably qualified expert concerning the mental health of the relevant parent, as it applies to their parenting capacity.

The dispute was whether there was an unacceptable risk of harm to the children if they were to spend unsupervised time with the father as he proposed, as a result of his mental condition and associated risk of suicidality. (See [28] and [30])

At [60] Hannam J said “Due to the mental health difficulties and suicidality in particular of the father, does he lack capacity to care for the children under the orders he proposes?”

At [77] Hannan J concluded

  • "as I do not have appropriate evidence from a suitably qualified expert concerning the mental health of the father as it applies to his parenting capacity, I am of the view that there is some risk of harm to the children; and"
  • "at this stage it is appropriate to mitigate that risk by requiring that the time with them of the father be supervised."

Sunday, 20 September 2015

The Cult of Personality Has Taken Our Integrity

The Confession
The confession is a constituent part of the criminal law. In some cases a confession is sufficient evidence to secure a conviction without any other significant evidence. Much jurisprudence is based on the importance of the confession. In a relatively recent case the admissibility of the alleged confession was contested.  The Crown said the voluntary confessions of Brett Peter Cowan should be admissible against him and they support his conviction for murder. Mr Cowan agreed the confessions were voluntary, but were made in circumstances where they should not be admissible against him at his trial. The Queensland Court of Appeal found that the subject confessions were admissible against Mr Cowan and his conviction for murder should stand.

As is almost always the case, media reporting of and commentary on the Cowan matter was happy to acknowledge the existence, validity and relevance of the subject confessions. It was a criminal law matter and the confessions were a proper part of the prosecution case.

In stark contrast to that approach is the behaviour now adopted in our political arena, both by the politicians and the reporters and commentators on the political activities (or most of them), be they in the established media or the new media. The lust to control or at least dominate the 20 second sound bite and the news cycle has drastically changed the dynamic. The political answer and the spin is all important. Legal questions that arise in the political arena are now routinely answered with a political answer, not a legal answer, because it suits the political agenda of the person purporting to answer the question. Immediacy trumps authenticity in this new dynamic. Give your answer and spin it with the authenticity the self-importance you are trying to create provides and you will be seen as an authority is the approach. Many times that “political” advice is the wrong answer to the legal question, but that is irrelevant to the self-promoters. It is more important that they be seen to be important and influential, rather than them being correct. They want to continue with their argument and/or agenda and do not want to be delayed or derailed by the inconvenience of the rigours of the law. Those who try to criticise this Cult of Personality approach to answering questions and provide the correct legal answer are criticised and told they cannot be correct. Again the political answer is sought to usurp the legal answer.

In this new dynamic, where support for a position is thought necessary, “experts” consulted are invariably of the “friendly” variety, as they will not challenge the narrative sought to be advanced. This “expert” support for the narrative appears to lend authenticity to the author and improves their profile and status.

The lack of critical analysis in this new dynamic is a fatal flaw and our education, debate and community are poorer for it.

The Stolen Diary
It is incontrovertible that when he was Speaker of the House of Representatives the diary of Peter Slipper was stolen. During litigation commenced by James Ashby against Peter Slipper Ashby confessed to stealing the diary and Mal Brough confessed to receiving that stolen diary. Mal Brough has made several voluntary confessions in that regard.

On Wednesday 12 December 2012 Rares J gave judgment in the relevant Ashby -v- Slipper litigation. His Honour granted the application of Mr Slipper and dismissed the proceedings on the grounds that they were an abuse of process of the Court. In so doing His Honour made several very damning findings against Mal Brough.

The Cult of Personality
The response from the media to that judgment is instructive. Many in the media find the rigours of adhering to correct legal protocol inconvenient and bothersome. It is much easier to provide a political response, rather than a legal response, particularly as the political response rarely is subject to an appeal Court and has no adverse consequences if it is wrong. Also, as I indicated earlier, many media people (both old media and new) want to be seen as players influencing what is going on and to enjoy an elevated status as a result of possessing that influence.

The reality is that the theft of the diary of the Speaker has not been pursued in any effective way by either the Federal or State police. The confessions of both Ashby and Brough have been ignored, notwithstanding that they would be admissible against them in court and would likely lead to a conviction against each of Ashby and Brough, in the same way as occurred with Mr Cowan.

The False Dichotomy
With our new dynamic infected by the Cult of Personality the political games that the politicians and the media who report on them play have usurped proper legal process and given us two very different arenas in our society. The legal world where the criminal law applies and is subject to all the established checks and balances and the political world, where the law is applied arbitrarily to suit the agenda of those seeking to advance the narrative.

Ultimately the dichotomy is false, if the behaviour in the political world can be subjected to a properly constituted and empowered Court. That reality would be very uncomfortable and inconvenient to those now happily pursuing the Cult of Personality in the world of political games.

As a nation, when we do not properly investigate and prosecute the theft of the diary of the Speaker of the House of Representatives, particularly when a confession to that crime is on the public record, we have lost our integrity. No amount of political spin and news cycle manoeuvring will change the fact that this matter has not been pursued and those people supposedly in responsible positions in our community do not see it as a matter worth pursuing. The parliament has been corrupted and for political expedience. Failure to investigate that corruption reinforces the loss of integrity. It is a matter which goes beyond partisan politics and is far more important than the selfish vanity of the Cult of Personality.

Rewarding Mal Brough with a position in the Federal Cabinet after he has voluntarily confessed on several occasions to receiving the stolen diary of the Speaker shows our system has completely broken and is utterly bereft of integrity. It shames everyone involved and everyone who condones it.

Legal questions deserve legal answers. Political expedience is no longer an adequate or sufficient answer. In the long run it is not even an expedient answer because a wrong answer is a wrong answer. It is time to banish the Cult of Personality from our political dynamic and restore integrity.

Sunday, 16 August 2015

Dynamic Tension

There is often tension in the law as to whether a conservative or more robust approach should be taken in respect of an issue. Opinions may differ according to how an issue is viewed. It might be said that a controversy arising out of the Royal Commission into Trade Union Governance and Corruption has produced some dynamic tension in that regard.

Thursday 13 March 2014
On Thursday 13 March 2014 The Royal Commission into Trade Union Governance and Corruption was established with former High Court Judge, the Hon Dyson Heydon AC QC, as the Commissioner.

Wednesday 9 April 2014
On Wednesday 9 April 2014 opening remarks at the Royal Commission into Trade Union Governance and Corruption were made by Commissioner Heydon.

Thursday 28 August 2014
On Thursday 28 August 2014 Commissioner Heydon ruled on what was a bias and conflict of interest claim by the witness Kathy Jackson.

Thursday 30 October 2014
On Thursday 30 October 2014 the Letters Patent establishing the Commission of Inquiry extended the date for the report of the results of the inquiry and relevant recommendations from 31 December 2014 to 31 December 2015.

Tuesday 14 April 2015
It would seem from at least Tuesday 14 April 2015 the NSW Bar Association ran an advertisement of Commissioner Heydon speaking at the dinner which included the Sir Garfield Barwick Address.

Drawing on my own modest experience speaking at seminars, the invitation to speak is extended and acceptance confirmed in advance of the specific advertising of the event.

Thursday 13 August 2015
On Thursday 13 August 2015 it was revealed that the 6th annual Sir Garfield Barwick Address was to be delivered by the Hon Dyson Heydon AC QC at a dinner to be held at the Castlereagh Hotel, 169 Castlereagh Street, Sydney on Wednesday 26 August 2015 from 6:00 pm.

The invitation widely circulated on Thursday 13 August 2015 was resplendent with Liberal Party New South Wales branding. Relevantly it read:
  • “The Lawyers Branch and the Legal Policy Branch invite you to attend the 6th annual Sir Garfield Barwick Address”
  • “This year the address will be delivered by The Hon Dyson Heydon AC QC”
  • “Cheques should be made payable to: Liberal Party of Australia (NSW Division)” and
  • “A receipt will be issued. All proceeds from this event will be applied to State election campaigning.”

With the revelation of Commissioner Heydon accepting the speaking engagement at a Liberal Party fundraiser, whilst still in the role of conducting a Commission of Inquiry into Trade Union Governance and Corruption, the question arose as to whether Commissioner Heydon ought be removed from the Inquiry due to apprehended bias. Since the instigation of the Inquiry criticism had been levelled at the federal government that it was a politically motivated vehicle designed to attack its opponents, the Australian Labor Party.

The Law
Conveniently two cases dealing with the issue of apprehended bias are instructive here.

In Re Carruthers v Connolly, Ryan & A-G [1997] QSC 132 Thomas J said:
“The principal question is whether either Commissioner is disqualified because of actual or apprehended bias touching matters upon which they are required to investigate and report.”

“In determining the ultimate question of ostensible bias on the part of a Commissioner, the Court must attempt to form some view whether the conduct in the circumstances would give rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the Commissioner will not discharge his task impartially.”

“But the expectation that the person exercising the power will bring an impartial and unprejudiced mind to the resolution of the question entrusted to that person is not to be diluted. Condemnation by a biased tribunal is an unacceptable abuse, just as exoneration by a biased tribunal may be considered worthless.”

Justice Thomas ultimately ruled to stop the Connolly-Ryan Inquiry.

The "If the Commissioner were thought to harbour political prejudice" Test of Thomas J seems problematic for Commissioner Heydon.

When sitting on the High Court of Australia Justice Heydon was part of a majority judgment (with Kiefel and Bell JJ) in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2 which will give his present predicament little comfort, in my submission. In that case their Honours wrote at paragraph [139]:
“It is fundamental to the administration of justice that the judge be neutral. It is for this reason that the appearance of departure from neutrality is a ground of disqualification[179]. Because the rule is concerned with the appearance of bias, and not the actuality, it is the perception of the hypothetical observer that provides the yardstick. It is the public's perception of neutrality with which the rule is concerned.”

The appearance of departure from neutrality appears to have been triggered by Commissioner Heydon by his accepting the speaking engagement at a Liberal Party fundraiser, whilst he was still in the role of conducting the Commission of Inquiry.

Commissioner Heydon is required to make findings of credit in respect of witnesses at the Royal Commission into Trade Union Governance and Corruption. He can no longer be seen to be impartial doing so.

With that in mind:
  • No one at the NSW Bar Association thought Commissioner Heydon giving the speech to the Liberal Party fundraiser was a bad idea?
  • Counsel Assisting the Royal Commission into Trade Union Governance and Corruption did not think that Commissioner Heydon giving the speech to the Liberal Party fundraiser was a bad idea?

In accepting the subject speaking engagement, Commissioner Heydon compromised the Royal Commission into Trade Union Governance and Corruption. That is the integrity of all the proceedings over which Commissioner Heydon has presided are now compromised. The threshold was breached at agreeing to speak at the fundraiser. The magnitude of the function is irrelevant. Consequences flow from the breach. There is no proper basis for the Royal Commission into Trade Union Governance and Corruption to continue now. It has become irreparably compromised.

Having arrived at that position, the correspondence trail from the first invitation to the correspondence released on Thursday 13 August 2015 interests me. Has any ground shifted? As the government is happy to say in respect of the metadata it seeks to collect from the citizens, "Nothing to hide, nothing to fear". The Liberal Party should produce all of the correspondence in relation to the speaking engagement. If the relevant correspondence contained exculpatory material, one would expect it to be produced. It is curious why the correspondence has not been released. The inference is not good for Commissioner Heydon, the Commission of Inquiry or the Liberal Party.

There is also some incongruity about a Commission of Inquiry seeking to determine the truth, yet relevant correspondence which could perhaps clarify an issue in respect of that Inquiry not being produced by the Commissioner overseeing that Inquiry and an entity (the Liberal Party) which may have ultimately compromised that Commission of Inquiry.

Counsel Assisting
If Commissioner Heydon will not withdraw or stand down, a question arises as to whether Counsel Assisting has an obligation to make an application for Commissioner Heydon to stand down in respect of the bias allegation. A quick reconsideration of Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2 suggests Counsel Assisting should apply for Commissioner Heydon to withdraw. Whilst that is a criminal law case, it details the roles of the Judge and the Crown Prosecutor in proceedings. It also canvasses the role of defence counsel. It can also be seen to respect the duty to the Court all legal practitioners are required to observe.

In my submission Counsel Assisting has an obligation to preserve the integrity of the Commission of Inquiry and make an application to Commissioner Heydon for him to consider the issue of apprehended bias and perhaps conflict of interest.

In that regard there is merit in making a Dallas Buyers Club LLC v iiNet Limited (No 4) [2015] FCA 838 type preliminary discovery application for the aforementioned correspondence which has yet to be produced, to determine if an apprehended bias application is needed. Such an application may need to be made to another Court, seeing as it potentially involves Commissioner Heydon producing correspondence.

So it can be seen that significant tension has arisen as a result of Commissioner Heydon agreeing to give the speech to the Liberal Party fundraiser. I would resolve the dynamic tension by having Commissioner Heydon withdraw or stand down from the Commission of Inquiry. That would also be an approach which would encourage the community to have confidence in the Courts and the administration of justice.

Tuesday, 14 July 2015

Consequences of Making a Suicide Threat

It is misconceived to dismiss an expression of suicidal ideation as merely an act of manipulation. Suicidal ideation can be evidence of Borderline Personality Disorder.   An expression of suicidal ideation requires a risk assessment, so that a risk of imminent harm can be properly established.  Upon the suicide threat being made the person threatening suicide is someone who needs immediate professional mental health and medical attention. That is the case irrespective of whether the threat was made in the presence of the children of the relationship. Where there are children involved in the relationship, the person making the suicide threat should expect that threat to be the subject of a Child Concern Report with the Department of Children’s Services.  Making a false claim of suicidal ideation is a form of emotional blackmail and emotional abuse.

Given the need for professional mental health and medical attention for the person who makes the suicide threat and the severe consequences which may result if the threat is real and not merely manipulative, the safer view is that suicide threats should always be taken seriously. Let the medical professionals determine if the threat was just manipulation. That also enables the process of obtaining professional mental health and medical attention to commence. It will also enable records to be kept of the episode. Reference may be made to those records in the future, if necessary.

Upon being notified of the suicidal ideation of an employee, the employer should acknowledge the need to subject the author of the ideation to a comprehensive suicide risk assessment. Without that assessment it is hard to see how the employer can assert that the subject employee is fit or safe for work. (See Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374)

The Full Court of the Family Court looked at suicidal ideation by a parent in Houston & Houston [2011] FamCAFC 178.  In that case the Court posed a number of questions and made a number of observations.
  • The risk for further or ongoing suicidal ideation needs to be assessed
  • What is the history of suicidal ideation by the parent making the suicide threat?
  • Has the parent with the suicidal ideation had any thoughts of harming the children?
  • Where the mother who made the suicide threat gives a history of the father wanting to harm their children, it is noteworthy that evidence to substantiate her beliefs is not available
  • The dearth of evidence to support them suggests that these beliefs are not based on facts
  • What is the psychological profile of the mother?
  • Has the mother had previous thoughts of harming the children?
  • Should the Court’s findings not be to her liking could this occur in the future?
  • The features of the mother ‘of histrionic, paranoid and borderline personality features were a major issue” for which the mother should “seek treatment on an urgent basis.”’
  • “the mother had nonetheless done nothing in a “practical sense” to follow the recommendations of the psychologist”.
  • Are the children at risk of psychological harm if they remained in the care of their mother who made the suicide threat?

In Hunter & Morrison (Contravention) [2014] FamCA 198 the Family Court also dealt with suicidal ideation by a parent. In that case the father maintained that he was fearful for the safety of the children and concerned about the ongoing mental health of the mother.  The father did not support unsupervised time between the mother and the children.

The Court supported the father:
  • writing “to seek clarification of the opinion of the treating psychologist of the mother specifically in relation to the prospect of the mother experiencing and, if she experienced, entertaining, suicidal ideation whilst having the children in her care” (See para [52]); and
  • withholding the children from their holiday contact with the mother in order to protect them from risk of harm (See para [55]).

The suicidal ideation of a parent and the possible self-destructive behaviour of a parent are issues which should be agitated before the Court.  They are matters of which the Family Consultant should be apprised and which the Independent Children’s Lawyer would be expected to agitate before the Court. Records compiled as a result of the suicide threat being reported to the medical professionals will assist in that consideration process.

It is clear that the suicidal ideation of a parent is something of which the other parent is entitled to be apprised, so that they can make fully informed decisions as to the safety and welfare of the children. Particularly bearing in mind Section 60CC (2) (b) of the Family Law Act 1975, “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”.

In addition, the suicide threat having been made, the legal representatives of the respective parents should ensure that they have properly discharged their obligations under s60D of the Family Law Act 1975 (obligations in relation to best interests of the child) and advised the respective parents of the need to protect the children from harm.

It is hard to see how parenting orders can be made in the best interests of the children without proper consideration of these issues.

Wednesday, 1 July 2015

Withdrawing Children From Holiday Contact

In what became known as the case of the four Italian sisters, the parents and the sisters were resident in Italy. The parents separated and divorced. In November 2008 in Italy the parents agreed to have joint custody of their four (4) daughters. They made a consensual separation agreement to that effect.

On 23 June 2010 the four sisters were all below 16 years of age and resident in Italy. Their mother took them with her to Australia, ostensibly for a one (1) month holiday. Their father remained in Italy. Since arriving in June 2010 until a Court ordered their return to Italy in 2012, the sisters remained in Australia.

These actions by the mother involved some significant planning and deception on her part.

It took legal proceedings by the father, which were protracted by the mother, for the four sisters to be returned to Italy and his care. (See RCB as litigation guardian of EKV, CEV, CIV and LRV v The Honourable Justice Colin James Forrest [2012] HCA 47 (7 November 2012))

In Hunter & Morrison (contravention) [2014] FamCA 198 the father learned that the mother made statements about her suicidal tendencies to and in the presence of the children. It resulted in him reconsidering the safety of the children in her presence. The father was concerned as to whether the mother presented a physical and emotional risk to the children by virtue of her alleged suicidal ideation and he withheld the children from their holiday contact with the mother in order to protect them from risk of harm.

Once the suicidal ideation claim was made it enlivened the prospect that the mother should seek professional medical and mental health assistance. That is the case irrespective of whether it was made in the presence of the children.

The Court supported the father writing “to seek clarification of the opinion of the treating psychologist of the mother specifically in relation to the prospect of the mother experiencing and, if she experienced, entertaining, suicidal ideation whilst having the children in her care” (See para [52]) and withholding the children from their holiday contact with the mother in order to protect them from risk of harm (See para [55]).

If a parent in the position of the father of the four Italian sisters was possessed of knowledge of the intentions of the mother prior to her leaving Italy with the four children, he may be able to take some action to prevent the removal of the children from Italy. Writing a letter to the mother in a manner comparable to that written by the father in Hunter & Morrison is one such action. If the father does not get satisfactory answers from the mother, he might withhold the children from the holiday contact with the mother. The mother may then need to go to Court to demonstrate the bona fides of her proposed holiday with the children.

A seemingly well-planned separation and divorce, coupled with suicidal ideation are very good reasons to be circumspect about a proposed overseas holiday. If the parent is not proactive before the proposed overseas holiday, it may be too late once the children have left the country to take action to return them.

Tuesday, 19 May 2015

Wilful Blindness Is Not The Solution

Nervous Breakdown
Several years ago I visited a friend, she had a female guest there also, a happily married mother. What started out as a pleasant afternoon, became serious rather quickly when the female guest had a minor nervous breakdown. In the following weeks her condition deteriorated and the consequences escalated, such that an unpleasant scene she subsequently created at the business she ran lead to her being forced to spend some time involuntarily in a psychiatric hospital for treatment for her condition. The change in the health of the mother had a drastic impact upon her family, including her primary-school-aged children.

Prior to the episode at her work it was clear that the mother should seek professional medical and mental health assistance. Her behaviour enlivened the possibility that she be asked to submit to a non-urgent mental health assessment via a Justices Examination Order (JEO). Such an Order is issued by a Magistrate or Justice of the Peace (JP) and would involve the mother submitting to an examination by a doctor or authorised mental health practitioner. Any person can make an application for a JEO, including a relative of the person to be assessed. I have seen a JEO used in greater family law proceedings. I suggested to my friend it is something the husband / father might seriously consider in the circumstances, were he truly concerned about the welfare of his children.

Once the episode at the work of the mother occurred that decision was taken out of the hands of the husband / father and the benefits of an early intervention were lost.

Manipulative False Suicidal Ideation Claim
In light of that nervous breakdown situation, consider someone who makes a manipulative false suicidal ideation claim. They have evidenced their bullying, emotional blackmail and emotional abuse to maintain adherence to their narrative and / or control the amount of attention they get. It is also possibly evidence of self-destructive behaviour on the part of the author of the false claim.

The maker of the false claim is responsible for these developments, which are a consequence of decisions they made voluntarily. There is now good evidence to support the contention that the person who made the false claim should seek professional medical and mental health assistance. It can be evidence of Borderline Personality Disorder. Their role with their employer is also entitled to be reviewed. In that regard someone who makes a manipulative false suicidal ideation claim is not someone who should be lecturing at health conferences.

Consider the implications if the person who made the manipulative false suicidal ideation claim also has the role of the primary carer of the children of the relationship. It was the mother who had the nervous breakdown I mentioned earlier.

In Jackson & Macek [2015] FCCA 1656 Meyers J said at paragraph [37]:
“The Court must consider the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. It is a paramount consideration with primacy over all others, and it is a consideration the Court gives greatest weight of those condensations at s.60CC [of the Family Law Act 1975] when determining what is in the best interests of the child.”

Relevantly here:
  • The suicidal ideation of the mother puts in question her mental health
  • Does the mental health of the mother pose a risk to the children, in that the children will suffer physical or psychological harm from coming into contact with the mother or spending time or living with the mother?
  • Will the mother abuse the children or neglect the children or subject the children to family violence as a result?
(See Jackson & Macek [2015] FCCA 1656 per Meyers J at paragraph [45])

In Hunter & Morrison (contravention) [2014] FamCA 198 the mother made statements about her alleged suicidal tendencies to and in the presence of the children (per Tree J at para [28]). The emergence of the alleged suicidal ideation of the mother caused the father to reconsider the safety of the children (See para [57])

The question then arose:
  • Did the mother present a physical and emotional risk to the children by virtue of her alleged suicidal ideation? (See para [33])

The Court found that:
  • “it was reasonable for the father to seek clarification of the opinion of the treating psychologist of the mother specifically in relation to the prospect of the mother experiencing and, if she experienced, entertaining, suicidal ideation whilst having the children in her care” (See para [52])
  • “the father believed that it was necessary to withhold the children from their holiday contact with the mother in order to protect them from risk of harm, should she experience or entertain or act upon suicidal ideation whilst the children were in her care” (See para [55])
  • the belief of the father was based on reasonable grounds (See para [55])

The consequences that flowed from confronting the reality of the condition of the mother who was the friend of my friend were profound, both for the mother and her family. Early or earlier intervention may have provided a less profound impact upon those involved.

Ignoring the reality of what making the manipulative false suicidal ideation claim evidenced will not make it go away. Denying the benefits early intervention can bring to the situation reduces the treatment and management options for the entire situation.

Whilst the maker of the manipulative false suicidal ideation claim may revel in their success after seemingly achieving their attention-seeking or narrative controlling goal, the reality of their condition and disposition will not go away. The need for professional medical and mental health assistance will continue and by ignoring early intervention, the available treatment options are reduced.

Other consequences flow from making the suicide threat. Where there are children involved in the relationship, the person making the suicide threat should expect that threat to be the subject of a Child Concern Report with the Department of Children’s Services. It is conceivable that the parent not making the threat may then be fearful for the safety of the children  and concerned about the ongoing mental health of the parent who made the threat. Consequently the parent not making the threat may require that time spent with the children by the parent who made the threat be supervised by a responsible adult.

Whatever was the personal situation of the maker of the manipulative false suicidal ideation claim before it was made, it changed upon their voluntary act of making the claim. That act opened the door to scrutiny of their circumstances and if such scrutiny is not welcome in the life of the author, perhaps that is something which should have been considered before the claim was made. They have exposed their condition and their circumstances. Wilful blindness to the implications of that exposure is not the solution.

Friday, 1 May 2015

Reconciliation Requires Humility, Sincerity, Remorse and Contrition

In the movie Notting Hill (1999) the character played by Julia Roberts attends the bookshop where the character played by Hugh Grant works. She wants to resume their romantic relationship. Her request is resplendent with humility and sincerity. At its height she says,
And don’t forget, I'm just a girl, standing in front of a boy, asking him to love her.

The response of the Hugh Grant character is sensible in terms of protecting himself and based on a realistic assessment of their lives together and apart to that point. In a very pleasant conversation, he declines her request. The Julia Roberts character leaves his bookshop and goes about her business.

The Hugh Grant character reflects upon his decision to decline to resume the romantic relationship with the Julia Roberts character and realises he has made a mistake. Subsequently an opportunity presents itself for both of them to be at the same place at the same time. The Hugh Grant character seizes that opportunity and conveys to the Julia Roberts character his enthusiasm to resume their romantic relationship. His plea to the Julia Roberts character was also resplendent with humility and sincerity. Ultimately it was successful and their romantic relationship was resumed.

An Abstract Question
Shortly after I watched that movie a friend asked me an abstract question: Would I entertain a conversation from a specific former girlfriend with a view to reconciling our relationship? A lengthy conversations ensued.

I have long contended that we live in a world where people (wrongly) think it is acceptable to lie and that no adverse consequences flow from that dishonesty. That contention was put to the test rather promptly.

My friend knew a fair bit of the history and circumstances of the woman the subject of the abstract question. The woman in question had deliberately sabotaged a good relationship to pursue other relationships with other men. Her dishonesty increased markedly once she had established her relationship with one of the men. She was actively pursuing a new life and strategic friendships she had made were paying dividends for her. Flaunting her new life and her new men was a part of her strategy. She was also carefully crafting her narrative and her relationship with me was not a constituent part of that narrative. By her words and her actions, she had made it abundantly clear that I no longer served any useful purpose in her life.

I have written previously about credibility and I said independent corroboration of the contention the person with the shattered credibility seeks to make may be required in future before some people are prepared to accept that contention. As they made their aforementioned respective pleas for reconciliation, the characters of both Julia Roberts and Hugh Grant could be seen to be demonstrating humility, sincerity, remorse and contrition. It gave their pleas the necessary quality of integrity.

I told my friend who posed the abstract reconciliation question to me that I would be prepared to make the following concessions:
I would give the woman in question credit for:

  • The telephone call to request meet to apologise and resume our relationship
  • Getting on a plane and travelling to Brisbane
  • Arranging a hotel room to have the subject discussion

Thereafter things got very difficult. The logistics of the actual meeting were then discussed. Was it a hotel where security required meeting in the foyer or could the guest proceed straight to the room? There were strengths and weaknesses in both options.

Once entry to the hotel room had been achieved the complexity of the situation became clear.

My friend and I agreed that the subject conversation could only take place without there being any interruptions by computers, telephones, television or radio. Towards the end of our relationship the woman in question had become quite fond of utilising her mobile telephone and / or her computer whilst in my company, often to contact other people. My many requests for her to not do so were all ignored. It was one of the strategies she used to sabotage the relationship.

My friend contended that once I saw the woman in question my resistance would disappear. I assured my friend that any currency the woman in question may have had in respect of her physical appearance had been spent by her appalling behaviour and her significant dishonesty. Whilst the new life the woman in question worked so assiduously to create at the end of our relationship may have suited her purpose at that time, it did nothing to endear her to me. She has a significant history of not keeping her commitments to me and I have no interest in experiencing any more of her considerable nastiness. In fact what she had achieved was a situation where I do not know what part of the history she told me was true and what part was false. She was now in a position where I would not be inclined to believe a word she said without independent corroboration.

In the end I could not give my friend a specific answer as to what would be required to achieve the specific reconciliation she proposed in her abstract question. Whatever the woman in question said and did during that hypothetical meeting to discuss reconciliation, she would be required to demonstrate significant convincing humility, sincerity, remorse and contrition. Her plea would need to be resplendent with integrity. Then and only then might the proposed reconciliation be possible.

Whether by accident or design the Notting Hill movie had provided a rather insightful example of the reconciliation request and what one needed to do to successfully negotiate the exercise.

Insofar as the woman the subject of the abstract question is concerned, I have no realistic expectation that I will ever test my theory with her.

Monday, 27 April 2015

When Acts Done For Political Expedience Amount To Breaking The Law

Accessing and distributing restricted child support documents and information of now Independent MP Billy Gordon and his former partner, Kristy Peckham, for political expedience has become a very serious issue.

On Friday 24 April 2015 it was reported that:

  • A few hours before the A Current Affair interview [on Thursday 23 April 2015], the Liberal National Party (“LNP”) handed documents to journalists detailing some of [now independent MP] Mr [Billy] Gordon's child support payments and naming his two young children.


  • The Queensland Opposition has attempted to divert attention away from its release of confidential child support documents relating to Billy Gordon, instead pointing the finger at the Premier and the questions it says she still needs to answer.
  • Deputy Opposition Leader John-Paul Langbroek repeatedly told journalists the issue wasn't that the LNP had released child support documents, which revealed Mr Gordon's children's names and were potentially a breach of the law.
  • The documents partially shown on the program and released by the LNP to the media on Thursday ahead of its airing, show Mr Gordon is potentially once again in arrears, for more than $700.

(Brisbane Times)

On Monday 27 April 2015 it was reported that:

  • Mr Springborg today defended the release by his office of copies of Mr Gordon's former partner's child support statements to journalists.
  • He said the information was for background, not publication.
  • "Those documents were distributed to actually indicate quite clearly that this matter, which Mr Gordon and the Premier had said had been dealt with, was not dealt with," Mr Springborg said.
  • "They were distributed by way of background information, with no expectation that they were being published, and that was the information that was given to the [media] gallery at the time."

(ABC News) (The Guardian)

If the reports are accurate the Liberal National Party may be in some difficulty. The release of documents to journalists detailing some of the child support payments of Mr Gordon and naming his two (2) young children would appear to breach section 150AA(1) of the Child Support (Assessment) Act 1989 (Cth). The Penalty for such a breach is Imprisonment for up to one (1) year.

The subject revelation could hardly be said to be without knowledge as there was controversy previously about the revelations of the criminal history of Mr Gordon and that such behaviour might be unlawful. Before that fellow LNP member Mal Brough courted significant controversy when he admitted to receiving the diary of Peter Slipper, the then Speaker of the Federal Parliament and his then political rival, from James Ashby. A police enquiry was then called for in respect of Mr Brough and his behaviour.

Mr Springborg seems to admit the subject communication of relevant information behaviour.  Thus far he has demonstrated no basis in connection with relevant Child Support proceedings to be in possession of the documents and then to communicate relevant information in respect of them. Prima facie it would appear an offence has been committed and a confession to that offence has been made, albeit in an attempt to distance himself from the allegedly offending behaviour. On that basis there is substance in the call by Mr Gordon for the police to investigate the subject communication of relevant information.

Prosecutions in this field are not without precedent. On Monday 24 March 2014 the owner of The Courier-Mail newspaper, Queensland Newspapers, was sentenced in the District Court in Brisbane for breaching restrictions on publishing court proceedings. In 2012 it identified a family involved in a Family Court parenting dispute by publishing names and photographs of the mother and four (4) children involved.

The Court fined the newspaper $120,000 and allowed it one (1) month to pay the fine.

The Rule of Law
A significant issue in the 2014 election was the attack upon the Rule of Law by the LNP government during its term in office. The approach of the LNP to the Billy Gordon matter can be said to be a continuation of that attack. It speaks to the judgment of the LNP that it would persist with an approach found by the electorate to be repugnant. It is also curious why the LNP thinks it should be entitled to breach the law and in turn benefit from those breaches to achieve a new election and possibly return to government.

It is disturbing that the LNP leader can access restricted documents and distribute them as he sees fit. His explanation for so doing is not satisfactory and his behaviour and that of his party is akin to the tail trying to wag the dog.

It should not be normal practice for Queensland politicians to access any confidential data they wish. They should be subject to the law and the Rule of Law in the same way as the rest of the community.

Whilst in the circumstances the release of the documents in question on this occasion might have been attendant with more circumspection, that they were not is the responsibility of the LNP and Mr Springborg. Both have sought to pursue the Billy Gordon matter for all the political expedience they can achieve from it. That motivation is another relevant consideration when assessing the subject access to and distribution of the documents and information in question.

Prima facie an offence appears to have been committed and, in the explanation for the behaviour, Mr Springborg appears to admit to both the behaviour and the offence. There is also an issue as to public confidence in both good governance and the police. The matter is entitled to be properly investigated and on the material to hand to date, there is an understandable expectation for Mr Springborg to be prosecuted for breaching section 150AA(1) of the Child Support (Assessment) Act 1989 (Cth).

Thursday, 16 April 2015

Endorsements and Credibility

Using a cross-examination technique in relation to a peripheral lie, we can see the impact inconsistent statements made as a result of a paid blind endorsement can have on the reputation of the maker of those inconsistent statements.

The Utility of a Peripheral Lie
In my cross-examination article I discussed how a peripheral lie can be used to challenge the credibility of a witness:
“A provable peripheral lie is a good friend when you are seeking to dismantle the credibility of a witness. If the witness is prepared to lie about something unimportant, then they are definitely prepared to lie about the crucial matters of the case, is how the argument goes.”

Inconsistent Statements
In Bilal & Omar [2015] FamCAFC 30 (27 February 2015) relevantly Bryant CJ, Murphy and Loughnan JJ at para [43] considered the issue of credibility of the wife.
  • The wife’s affidavit deposes, and the solicitor’s certificate attests, that the wife has received advice of a certain kind.
  • In defending the husband’s case, the wife clearly asserted in the witness box a position entirely inconsistent with that.
  • Put simply, the wife put squarely into issue whether the advice required under s 90G had in fact been given.

At para [54] the Court agreed with the contentions of the husband that on the evidence adverse credit findings in respect of the wife were appropriate.

Blind Endorsements
ABC science commentator Dr Karl Kruszelnicki (“Dr Karl”) agreed to and did appear in a number of advertisements promoting the Intergenerational Report (“IGR”) of the Federal Government. He subsequently acknowledged he was only able to read parts of that Report before he agreed to the advertisements as the rest of the Report was under embargo by the Federal Government. The advertisements appeared without a disclosure that Dr Karl was endorsing a Report he had not read.

Once the public became aware of the contents of the Report, that it was a flawed, partisan political document, which Dr Karl acknowledged “largely ignores the impact of climate change”, there was an outcry as to the aforementioned endorsement and promotion by Dr Karl.

Dr Karl then sought to distance himself from his prior support for and endorsement of the Report.

Dr Karl knew or ought to have known the significance of accepting an engagement to endorse a Report which he had not read. His reputation, such as it was, was sought to lend credence to the Report. Endorsing something he had not read seems to be a pretty significant error of judgment on his part. Endorse the principles you say the Report promotes, if you wish, but do not endorse the Report without reading it.

His change of position, contrition and decision “to donate any moneys received from the IGR campaign to needy Government schools” can be said to be hollow, as it only came after significant public disquiet was expressed about his endorsement of the IGR. That change of position etc can be said to be not an act he initiated.

Whilst his actions can be said to have the benefit of now focussing attention on the problems with the IGR, the damage his reputation has suffered can also be said to be significant. The lack of disclosure of the fact that Dr Karl had not read the Report he was apparently endorsing is a relevant issue. Paid blind endorsements are not worth much in terms of credibility. Integrity free endorsements should be accompanied by an appropriate warning

The impact of the aforementioned blind endorsement upon his reputation is significant. Whatever Dr Karl may purport to say now can be said to be tainted by his poor judgment and lack of research attendant with his paid endorsement of the IGR. His apparently afterthought-inspired contrition will do little to redeem his reputation in the eyes of some people.

When you look at his history and discover that in 2007 he made a statement about climate change that he subsequently admitted was wrong, his credibility takes a further battering.

His most recent foray into commentary should have been informed by his earlier experiences.

In Lee & Anor v State of Queensland [2015] QDC 83 McGill SC DCJ at para [43] found that he was not prepared to accept the evidence of the Plaintiff Mr Swindles “as reliable unless it was independently supported, or inherently probable”. Using the Lee case as a guide, independent corroboration of the contention Dr Karl seeks to make may be required in future before some people are prepared to accept that contention.

The fact that by his actions Dr Karl has educated people as to:
  • the flaws in the IGR;
  • the process by which the government sought to promote it; and
  • the damage a paid blind endorsement without any accompanying disclosure can do to a reputation,
may be little consolation to him as he reflects upon putting his reputation in jeopardy and in circumstances which were entirely avoidable.

Sunday, 29 March 2015

Domestic Violence Is Not a Political Tool

There is no question Australia needs to undergo a culture change in respect of the way it views and deals with Domestic and Family Violence. That includes media and political personnel. It is not something that is to be pursued only for political expedience. Using Domestic Violence as a political tool is appalling. It does nothing to help the victims or take the issue seriously.

Sadly the latest case to hit the limelight, that of Mr Billy Gordon, the newly elected Member for Cook in the Queensland Parliament, seems to have done so for reasons of political expedience, rather than for genuine interest in and concern for the issue of Domestic and Family Violence.

Saturday 7 September 2013
On Saturday 7 September 2013 at the Federal Election in the seat of Leichhardt, Liberal National Party (“LNP”) candidate Warren Entsch received 55.7% of the final vote and Australian Labor Party (“ALP”) candidate Billy Gordon received 44.3% of the final vote. Mr Warren Entsch was the re-elected Member for Leichhardt in the Federal Parliament with a 1.1% swing to the LNP.

Saturday 31 January 2015
On Saturday 31 January 2015 at the State election in the seat of Cook, Australian Labor Party (“ALP”) candidate Billy Gordon received 56.8% of the final vote and Liberal National Party (“LNP”) candidate David Kempton received 43.2% of the final vote. Mr Gordon was the newly elected Member for Cook in the Queensland Parliament with a 10.2% swing to the Australian Labor Party.

Also on Saturday 31 January 2015 at the State election in the seat of Cairns, ALP candidate Rob Pyne received 58.5% of the final vote and LNP candidate Gavin King received 41.5% of the final vote. Mr Pyne was the newly elected Member for Cairns in the Queensland Parliament with a 17.3% swing to the Australian Labor Party.

Early February 2015
In early February 2015 the former partner of Mr Gordon is said to have contacted the aforementioned Mr Warren Entsch and asked for help in recouping child support from Mr Gordon.

Friday 6 March 2015
The aforementioned Gavin King said he had been in discussions with the ex-partner of Mr Gordon in the three (3) weeks before the publication of the allegations on or about Friday 27 March 2015, i.e. roughly Friday 6 March 2015. Initially the main emphasis from Mr King of those allegations was on the alleged Domestic Violence.

Friday 13 March 2015
Mr Entsch contended that on Friday 13 March 2015 he received an email from the former partner of Mr Gordon which detailed her allegations. He further contended he did not consider the matter was something which required his immediate involvement.

Wednesday 18 March 2015
On Wednesday 18 March 2015 the Office of the Premier Annastacia Palaszczuk received a letter from the partner of Mr Billy Gordon “outlining a number of allegations against Mr Billy Gordon, the newly elected Member for Cook in the Queensland Parliament”.

Mr Evan Moorhead, State Secretary of the Queensland branch of the Australian Labor Party advised the partner of Mr Billy Gordon to make a complaint about the alleged conduct to the Queensland Police Service.

It seems no Application under the Domestic and Family Violence Protection Act 2012 for a Domestic Violence Protection Order, either temporary or permanent, was or had been made at that stage.

Wednesday 25 March 2015
An email dated Wednesday 25 March 2015 was sent from Tarnya Smith MP to the spouse or partner of Billy Gordon in relation to her complaint of domestic abuse and failure to pay child support by Mr Gordon. The recommendation in that e-mail was for the partner of Mr Gordon to contact the police and make a complaint.


  • A solicitor could also have made an Application for a Domestic Violence Protection Order in respect of the former partner of Mr Billy Gordon.
  • Why did the former partner of Mr Billy Gordon not approach a solicitor or go to the police herself?
  • The strong inference is that the allegations of domestic violence were not the most pressing issue for the former partner of Mr Gordon, but rather the unpaid child support was her main concern.

Friday 27 March 2015
By letter dated Friday 27 March 2015 from the Premier Annastacia Palaszczuk to Ian Stewart, Commissioner of Police, the matter was referred to the Queensland Police Service:

  • “For its consideration and investigation of the allegations as appropriate”; and
  • “To investigate these matters to ascertain whether there is any evidence of the commission of criminal offences”.

Saturday 28 March 2015 2:24 pm
On Saturday 28 March 2015 at 2:24 pm Billy Gordon published a Statement on Facebook. Relevantly that statement revealed the following criminal history.

It is worth noting that Mr Gordon was born in 1973 and in Queensland criminal justice, a child is “a person who has not turned 17 years” (Section 4 of the Youth Justice Act 1992 Schedule 4 Dictionary).

Criminal History
“This contact has included being charged and convicted with:


  • Breaking entering and stealing in 1987 in Innisfail [Age 13]
  • Breaking and entering with intent, attempted breaking and entering and stealing in 1990 in Atherton [Age 16]


  • Breach of probation in 1992 in Atherton [Age 18/19]
  • Public nuisance in 1996 in Normanton [Age 22/23] and
  • Breach of bail conditions in 1999 (stemming from not attending a court summons from the 1996 incident). [Age 25/26]

In addition I have twice had my driver’s licence suspended for unlicensed driving (2004 [Age 30/31] and 2008 [Age 34/35]).

Finally, in 2008 I was served with an Apprehended Violence Order as a result of a complaint by my mother. [Age 34/35]

My mother at the time was concerned that I was going to return to a relationship with an ex-partner (we were at said ex-partner’s residence) and I asked her to leave in a manner that she found threatening. My mother has confirmed to me that there were no allegations of physical violence made with respect to this incident.

This AVO was never heard in court, and does not form part of my criminal record however I provide its details now for completeness.”

Sunday 29 March 2015
Premier Annastacia Palaszczuk expelled MP for Cook, Billy Gordon, from the ALP and advised him to resign his seat in Parliament.

Many issues arise for consideration in this matter. Here are some of them.

1 Failure To Disclose Relevant Information
It is hard to understand why Mr Billy Gordon did not reveal his criminal history at the time he sought preselection for the ALP. Given the nature of politics, it is something he should have expected to be revealed in respect of him, if he was not prepared to reveal it himself. Failure to reveal his criminal history puts in question his honesty and his integrity.

Having said that the letter dated Tuesday 31 March 2015 from the Clerk of The Parliament to the Speaker, the Honourable Peter Wellington MP sets out the position clearly in terms of the legal obligation upon Mr Gordon to reveal his criminal history.
“In short, there appears, based on the limited information available, to have been no lawful obligation on Mr Gordon to disclose any of the matters relating to his criminal history.”

2 Failure On The Part of The ALP To Do Due Diligence On Their Candidate
There has been some discussion on social media about doing criminal history checks with the police for all candidates for political office. That raises some privacy issues, if the candidate does not consent. However if the candidate is obliged to consent to a criminal history check or not progress in the pre-selection process, that may resolve the difficulty.

Without the ability to do relevant external or third party checks, the pre-selection process seems to rely upon the honesty and integrity of the candidate.

In this particular case two (2) separate requests were apparently made of the Australian Federal Police to check the criminal history of Mr Gordon and on each occasion they revealed no relevant criminal history. That being the case the ALP had no better information to continue with its due diligence on its candidate, Mr Gordon, and no opportunity to consider whether the subject criminal history is something which is entitled to be revealed to the public.

3 Mr Billy Gordon Is Now a Member of Parliament
There having been no challenge to the lawfulness of his election, Mr Billy Gordon is now a Member of Parliament and is entitled to all the rights and privileges that go with it.

Once again referring to the letter dated Tuesday 31 March 2015 from the Clerk of The Parliament to the Speaker, the Honourable Peter Wellington MP:
“... a person is not qualified to be a member if they have been convicted of an offence and sentenced to imprisonment for a period o f one year, no less than two years prior to being a candidate. 

“This ground of qualification does not appear to be an issue in the context of Mr Gordon. There is no suggestion that within 2 years before the day of nomination, Mr Gordon has been convicted of an offence against the law of Queensland, another State or the Commonwealth and sentenced to more than 1 year’s imprisonment.”


“In short, a member is only disqualified if they are convicted of an offence and sentenced to a term of imprisonment of one year or more or convicted of certain enumerated offences (corruption, electoral corruption, treason etc.).

“As outlined earlier the material provided to you makes allegations against Mr Gordon (assault and deprivation of liberty) in respect of which if he was convicted, he may be sentenced to a period of imprisonment exceeding one year. If this was the case he would be disqualified under the provisions of the POQ Act. However, Mr Gordon is entitled to the presumption of innocence and until such time as he is convicted and sentenced of any offence that satisfies s.72, he is not disqualified from being a member.”

4 Mr Billy Gordon Has The Rights of All Accused in Queensland
Mr Billy Gordon is entitled to the presumption of innocence and a fair trial according to law in respect of any criminal offences he may have allegedly committed.

If an application under the Domestic and Family Violence Protection Act 2012 for a Domestic Violence Protection Order was made in respect of him, under s51 Mr Gordon may be entitled to consent to an order being made in respect of him without admitting to any of the allegations the subject of the application.

5 Removing Billy Gordon From Office Would Need To Be In Accordance with The Law
It seems much of the discussion about this matter has really been about political expedience. The LNP seem to want to remove Mr Gordon from office because it believes so doing will enhance its chances of seizing political power in Queensland. Much of the media discussion has been about trying to shape how the political agenda will play out. The domestic violence case which is at the heart of this matter has been relegated to minor importance to facilitate this political posturing.

Despite what goes on in the minds of political expedients, the Rule of Law applies to Mr Gordon in this matter and he is entitled to all of the rights available to him under it. Any attempt to improperly or unlawfully remove him from office would more than likely enliven rights in him to challenge that removal in the Courts.

If the Billy Gordon case finds its way to the Supreme Court, the controversy raised by Justice Wilson about the Chief Justice and the Court of Disputed Returns comes very much into focus and the integrity of the Court will be relied upon to achieve the correct result according to law.

6 Disclosure of All Members of Parliament with a Criminal and / or Domestic Violence History Is Now a Live Issue
The pursuit for political expedience of a matter containing domestic and family violence allegations has lead us to an unfortunate position. That is the disclosure of all Members of Parliament with a criminal and / or domestic violence history is now a live issue.

Despite the enthusiasm for it by many people, my position remains the same: Do not sideline the Rule of Law for political expedience.

I made some observations on Twitter:

  • Ask moralising Springborg if he is prepared to get Verity Barton to confess to her specific offences & accept the consequences?
  • It suits the present political wishes of Springborg to do away with the presumption of innocence etc
  • That has adverse consequences

The leader of the Opposition is now in an awkward position. His quest for political expedience would have him sacrifice the rights of his colleagues and party members in order for him to maintain a consistent position. It is not for him to sacrifice their rights.

The rights those who seek political expedience seem to want to sacrifice in respect of Mr Gordon are rights they may wish to enjoy themselves in the future.

7 The Vote of Mr Gordon In The Parliament
The letter dated Tuesday 31 March 2015 from the Clerk of The Parliament to the Speaker, the Honourable Peter Wellington MP is again instructive:

“Neither the Speaker, party leader, nor the House itself can generally disallow Mr Gordon’s vote on any matter. The only legitimate grounds to disallow Mr Gordon’s vote is in the exceedingly rare circumstance of a vote on a matter in which a member has a direct pecuniary interest (SO 259). Impeding or attempting to impede a member or inappropriately influence a member’s vote may constitute a contempt.

“There has been considerable talk in recent days about whether parties should rely on Mr Gordon’s vote. Under current Standing Orders (see Chapter 19), any member in the Assembly when a vote takes place on a question, must vote with either the Ayes or the Noes. They cannot abstain on the floor of the Assembly. Members vote from their seat and the votes of cross bench members (which Mr Gordon now is) are not apparent to anyone until such time as the Clerk verbally advises the vote of those cross bench members to the Assembly. The votes of cross-bench members are recorded after the votes of the government and the opposition.

“In other words, it is not up to the discretion o f a party leader as to whether they are going to use Mr Gordon’s vote - Mr Gordon has a right to vote. Furthermore, party leaders would not necessarily know what the vote of Mr Gordon was until towards the conclusion of the division after party votes have already been recorded.”

The former partner of Mr Billy Gordon is entitled to better treatment than having her case utilised because someone thought it may facilitate some political expedience for them. Sacrificing the rights of Mr Gordon for that same political expedience is also unhelpful, unproductive and unwise.

To the extent that her case is really about the payment of outstanding child support, the former partner of Mr Billy Gordon is more likely to receive that child support if Mr Gordon remains a Member of Parliament. The machinations undertaken by the LNP using her case to have Mr Gordon removed from Parliament, so there can be another election in Cook and the LNP might win that election and then be able to form government, is not an outcome which would provide the former partner of Mr Gordon with much satisfaction.

The much needed culture change in respect of the way Australia views and deals with Domestic and Family Violence is unlikely to occur whilst cases are used for purposes of political expedience. It is time leadership is shown by both politicians and those in the media to give this issue the significance and respect it deserves.

Friday, 23 January 2015

Defamation Litigation May Not Stop The Discussion

Campbell Newman -v- Alan Jones - Defamation

An understanding of normal litigation practice may give some insight into why Campbell Newman launched the Defamation proceedings against Alan Jones in the way that he did.

One would normally expect relevant instructions to have been given from Campbell Newman to his Solicitors and they ask relevant questions of him to confirm his instructions and the nature of his complaint. There may also be some research needed on the part of the Solicitors to obtain relevant supporting material for the complaint.

The Solicitors would then prepare a Brief to Counsel to advise on the matter generally and the prospects of success of Mr Newman. That may also involve a conference with Counsel to confirm the instructions of Mr Newman and the direction in which he wished to proceed.

Counsel would then be briefed to Settle the Claim and Statement of Claim, the Court documents which set out the claim and the relevant facts and contentions of the Plaintiff.

Where Counsel has settled the proceedings, normal practice is that a statement as such should be included at the end of the pleading (eg This pleading was settled by [x] of Counsel). There appeared to be no such statement at the end of the published documents. There being no statement that the relevant documents were settled by Counsel, it would seem they were prepared and finalised by the Solicitors.

A perusal of those published documents reveals that:

  • The alleged defamatory Publication occurred on:
  • Monday 19 January 2015;
  • Tuesday 20 January 2015; and
  • Wednesday 21 January 2015.
  • On Thursday 22 January 2015 the relevant legal proceedings were filed in the Supreme Court of Queensland, Brisbane Registry (BS 820 of 2015)
  • No mention is made of a "Concerns Notice" being sent by the Plaintiff to the Defendant

Further, an Audio Recording of the Defendant (Friday 23 January 2015) suggests no "Concerns Notice" was sent by the Plaintiff to the Defendant.

Given the foregoing and the apparently short time taken to prepare and file the subject proceedings (1-3 days), it appears that they were prepared by the Solicitors only.

It is expected that the Defendants will defend the litigation and in so doing prepare, file and serve a detailed Defence to the subject Statement of Claim. It may be that upon being served with the Defence of the Defendants, the Plaintiff decides to re-plead its Statement of Claim and engage Counsel to do so.

In the circumstances it is submitted, it is reasonable to conclude that the subject proceedings were designed to stop discussion of issues during the election campaign, rather than were issued to truly prosecute the subject alleged defamation.

One of the problems with litigating alleged defamation is the litigation discusses the issue/s the Plaintiff does not want to discuss. (See Queensland Premier suing Alan Jones is ‘risky’: legal experts)

The tactical wisdom in pursuing that litigation in that fashion is a relevant consideration. Insofar as the 2015 State election is concerned, it may have the effect of focussing attention upon issues Mr Newman would rather not discuss.