Parental responsibility to children following separation or divorce

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What happens when your ex partner won;t let you see your kids

When families separate it is often a very challenging time for everyone involved, especially children. Emotions are intensified and it can be difficult to separate them from everything else that needs to happen following a separation.

While it is never the intention of parents to hurt their children, unfortunately, the children often end up stuck in the middle.  All to frequently one parent may make it difficult for the other parent to spend time with their children.

If this is the case, then both parties need to understand the following –

Shared parental responsibility

When parents separate or divorce, their parental responsibility toward their children does not end. The starting point in family law is that parental responsibility should be shared equally between both parents.  The law provides that children are entitled to spend time with both parents. You have a right to spend time with your children.  This may also apply to Grandparents and other people of significance in the children’s lives.

The best interests of your child

When determining the living arrangements of the children The Family Court of Western Australia accesses what is in the best interests of the child(ren).  The law directs the court to start from the presumption that the best interests of children are served when they have both their parents in their lives.

Substantial and equal time

In fact, even if your children’s living arrangements mean that they live with your ex-partner or spouse, you are generally still entitled to have substantial and equal time with your kids. So this means that in most cases you can see your children, visit with them and even have them stay with you at your house.

Parenting plans and consent orders

Parenting Plans are a written agreement that both parents enter into freely which outlines the future arrangements for the child(ren). It is then dated and signed by both parents to make it official.

A Parenting Plan may contain information about the care, welfare and development of your children as well as arrangements relating to people of significance in your child(ren)s life, such as Grandparents.

It is advisable to seek legal advice from a family lawyer if you are entering into a Parenting Plan, even though they are not binding Court orders.

Don’t think that just because they aren’t binding Court orders doesn’t mean that there aren’t consequences when a parent breaks the arrangement.

If you want a stronger form of agreement, you can make a joint application to the Family Court for consent orders in the terms of the parenting plan so that your spouse or partner will be bound by the agreement. If there is a Court order, then it will be easier to enforce the agreement if your spouse or partner breaks the agreement.

Parenting Orders

If, for example, you and your spouse divorced or separated and you did not have a written agreement about the living and parenting arrangements over your children, you can file an application with the Family Court for a parenting order.

You can file an application with the court, but you will be directed to serve a copy of your application on your ex-partner. This is best done in person, however if this is not possible you can send the orders to your ex-partner by post.  Please note, however, that there are various requirements on how documents are to be served (for example, one spouse cannot serve the application on the other spouse – a third party must serve the application), and there are various requirements on how you must prove to the Court that the application has been properly served.

Family Dispute Resolution

Before you or your ex-partner can apply to the Family Court for Parenting Orders you will have to attend mediation with a registered family dispute resolution provider.  This is compulsory mediation, and the Family Court will not hear your application if you do not attach a certification issued by the family dispute resolution provider.  The certification will state that you appeared for mediation, but you did not reach an agreement.

You may be exempted from the mandatory requirement of compulsory family mediation if there are special circumstances such as urgency, domestic violence or abuse or neglect of your children by your spouse or partner. Be careful in making such an allegation, however, because you will be required by the Family Court to produce and present evidence on this.

Recovery Order

In some circumstances, even though you have gone through the process and obtained Parenting Orders, a parent may move or take the child(ren) away.  If, for example, your spouse or partner took your children from school without your knowledge or consent, or refuses to return the children after their agreed period of contact with the children, you can apply to the Family Court for a Recovery Order. The Family Court can order the police to find and return your kids to you.

What you can expect at Family Court

At an early stage of the proceedings, a Family Consultant will often talk to you and your spouse to identify the issues and explore options for agreement.  Later in the proceedings, the Court may direct the Family Consultant to interview you, your spouse and perhaps also the children to prepare a report to assist the Court to make orders in the best interests of the children.

When the application is set for trial, you will need to present evidence. The evidence consists of affidavits (these are personal sworn statements that set out the facts) by yourself and any other person you want to call as a witness.  This might include reports by social workers, healthcare providers, the police, school authorities or anyone else who can give relevant evidence.  Anyone who swears an affidavit can then be cross-examined by your spouse (or their lawyers) at the trial.

Although you can represent yourself at trial, you need someone experienced and knowledgeable about the procedure, such as a Family Law expert, so that your evidence can be presented in a clear and convincing manner before the judge, and so that the other’s witnesses can be carefully cross-examined.

The above is an overview of the options available to you following a separation when children are involved.  It is always best to seek legal advice with issues as important as these.  At Perth Lawyers Macdonald Rudder we have been helping Western Australians since 1987 and have extensive knowledge and experience with family law. Our team of Family Lawyers understand how difficult these times can be and will treat your situation with the sensitivity and understanding it deserves while striving for the best outcome.  If you would like to seek legal advice please contact us today.

Are there financial requirements following separation or divorce?

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The short answer is yes. There are financial requirements for when you and your spouse or partner separate or divorce according to Family law.

Sometimes during a marriage, couples purchase assets or properties jointly or invest in income generating ventures. Some couples pool their assets and properties together or keep them separate.  There may also be assets or properties owned individually by a spouse and which may be distinct from the assets/properties gained during the marriage (or defacto relationship). One example could be if the couple lived in a house which was inherited by one of the partners from their parents prior to the marriage. Even though the house was an inheritance of one spouse, after separation, the other spouse may want to be able to continue living in the house as part of their property settlement.  When creditors have security over a house or other property, this can also complicate how or whether assets can be transferred as part of any settlement.

In any event, all assets and liabilities (whether owned/owed by one spouse or by both spouses) must be divided between them in the case of separation or divorce.  Any agreement to divide assets and liabilities will only be final and binding if confirmed in Court orders or a special type of agreement known as a “financial agreement”.

You can see that it isn’t an easy or black and white process.  It is often in your best interest to engage an experienced Family Lawyer to ensure that legal requirements are met.

When a marriage, de facto or same-sex partnership breaks down and the partners decide to dissolve the marriage or partnership, the separation may have an impact on third parties such as their children and their creditors and debtors. Thus, partners and spouses need to make financial arrangements for the payment of bills, debts and spousal and child support out of the assets and properties jointly owned by the marriage or partnership or out of their separate personal properties.

Spouses or partners can agree on how to divide the assets and liabilities amicably and privately and then submit their agreement to the Family Court to ask for consent orders to make it binding on them.

What happens when partners disagree on the division of assets?

When spouses or partners disagree on the division of assets and liabilities, they can open a family dispute on financial matters. When spouses opt for this, they have to comply with pre-action procedures.

First, they need to have a full and frank disclosure of all the assets of the marriage as well its liabilities.

Second, they need either to agree the values of these assets and properties or have those values appraised.  Sometimes, properties (like a house, a book collection or a painting) may have sentimental value, and one of the spouses seeks to retain ownership instead of selling it and dividing up the proceeds.  Assigning a monetary value to the property will ensure that the other spouse will get some other property that has equal monetary value.

Often the parties may only have assets in Western Australia, however, there are instances when the parties own properties in other states or other countries as well. The division and distribution of those properties need to be formalised.

Third, the spouses or partners need to go through counselling, arbitration or mediation to try and settle financial matters amicably. When this happens, the agreement between the parties which was reached through these alternative dispute resolution procedures can be submitted to the Family Court for its approval and for consent orders to be issued so that the agreement will be binding on the former partners or spouses.

There are times when the spouses or partners agree on the distribution of properties, but a property is subject to a mortgage or other security. If that property is to be transferred as part of the property settlement, then that debt will need to be re-financed.

Financial and property arrangements in the event of separation or divorce are not something to be taken lightly. Not only your own future, but that of your children could be significantly affected.
Note also that there is often a time limit for applying to the Court for property division orders.  If that deadline expires, you may well lose your right to seek property division from your former partner.

Legal representation is highly recommended in case of property distribution to ensure that your rights to your personal properties and your right to a share in the properties of the marriage will be adequately protected and asserted.

At Perth Lawyers Macdonald Rudder we have been successfully helping our clients in matters of Family Law for over 29 years.  We understand that it is a difficult time and will always treat your situation with sensitivity and understanding while striving for the best outcome.  Contact us today to book into to see one of our experienced lawyers and make sure you are protected.

Writing a Will – 5 Reasons to engage a Wills and Estates Lawyer

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Top 5 Reasons why you need a lawyer to prepare your Will.

Writing a Will is vital. It is estimated that almost 50% of Australians die without a Will. Which means you are leaving it up to the Courts to decide how your Estate is distributed. Do you want to leave it up to the courts to distribute your Estate?

Here are five reasons why we believe you should engage a Lawyer to prepare your Will for you.

#5 A lawyer can make sure your Will conforms to legal requirements.

You can always go on the internet and research the legal requirements for Wills for creating a Will yourself. However, you cannot be certain if what you write yourself conforms to legal requirements.

A lawyer can clarify if what you intend to do with your properties is allowed by law.

For example – Are you allowed to give one child a bigger share than the others? If your Will does leave one child more, will your other children succeed if they contest your will?

What if you signed your Will in the presence of your witnesses but the witnesses was replying to a text message on their phone at the exact time you were signing it and is not paying attention – does this meet the requirements of the law? How would you know if it does?

You need a lawyer to make sure that your Will, its contents and the manner in which it is executed all conform to legal requirements. It can save your loved ones a lot of unnecessary stress dealing with someone contesting a will and the like following your death.

#4 A lawyer can help you accurately list down properties you can dispose of in your Will.

Not all property you own can be included in your Will.

For instance, if you are a co-owner of property, common sense dictates that you cannot dispose of the entire property as there are two of you who own it jointly. So, the question is, can you at least dispose of your share? Can you include your half of the property as one of the items of property in your will? That depends on a number of factors – and this is why you should seek legal advice.

What if you are a beneficiary of a Trust? Can you include the right to receive the proceeds of the Trust as part of your properties that can be disposed of in your Will?

What about insurance policies? Can you distribute the proceeds of an insurance policy in a will? That depends, doesn’t it? It depends on whether your insurance policy has a designated beneficiary and if the designation of the beneficiary is irrevocable. How would you know if and when you can dispose of the proceeds from an insurance policy in your Will?

You will want the advice of an experienced and knowledgeable lawyer. These questions are complex and can only be answered by a lawyer who is intimate with all the details of other transactions.

#3 A lawyer can help ensure that your Will is complete.

Have you forgotten anyone significant in your life to whom you want to leave something upon your death? Are you required to include all your legal heirs in your will? Are you required to give equal shares to all your heirs so that they won’t challenge your will?

Can you exclude from your will a child who has accused you of abuse or neglect? Can you exclude your step children from your will?

Do you have minor children? Do you need to provide for their guardianship? Can you entrust your executor with the legal custody of your minor children? Can you give them an inheritance on condition that they qualify for admission to University? Can you give them an inheritance on condition that they get married first?

Have you made provision for your funeral arrangements and set aside property to be used exclusively to help defray the expenses for your funeral? Have you thought about donating your organs?

Have you appointed an executor of your Will? What if the executor you have named in your Will repudiates his or her nomination? What if the executor you chose and nominated in your will is incapacitated — who will be the executor? Have you made arrangements for the payment of your executor?

Can you release a debt in a Will? Can you assign to an heir the legal right to sue another person to get property belonging to you that has been taken by someone else? Can you bequeath on an heir the right to collect on an indebtedness?

Can you make special bequests? Can you make special gifts of specific pieces of property like a diamond ring to your best friend? Can you leave your pet cat a sum of money to pay for veterinary expenses? Can you give properties to heirs on a condition that they take care of your cat?

Obviously, these questions can only be answered by a lawyer. Only a lawyer can help you make decisions about property dispositions that will be legally enforceable even when there is a challenge to your will. You want your will to be tight and loophole-free.

#2 A lawyer can give you the advice to reduce the risk of challenges to your will.

Those people closest to you can actually contest a Will if they feel that the distribution of your properties in your Will is unfair to them. How can you make sure that they do not have serious legal grounds for contesting a will?

If you’ve been divorced several times, are you required to leave something in your will for all your ex-wives? What if you’ve had several partners, are you required to leave something for each of them?

Can you say in your Will that the heir that challenges the Will, will forfeit his or her share?

The intricacies of your past relationships with wives and partners play a role in determining whether your will shall be vulnerable to challenge. And if one of your heirs succeeds in challenging a will, your testamentary dispositions will be modified by the court.

For these reasons, you need the advice of a lawyer specialising in Wills and Estate Planning.

#1 A lawyer can help you make sure that your Will is valid.

Last but not the least, and in fact, this is the most significant reason why you need to have a lawyer draw up your Will for you. A lawyer can help you prove that your Will was drawn up by you while you were of sound mind.

Testators must be of sound mind when determining the manner by which their properties will be distributed upon death.

Testators know who their heirs are, the nature of their relationship they have with them and the reason they are included in the Will.

Testators know what properties they own, where there are, how much they own, and the manner they want those properties distributed.

But how will you word and phrase your Will so that you can show that you do possess a “sound mind” at the time you executed the will?

What if, after you execute your Will, you suffer from a disease or sustain an injury that diminishes your intellectual capacity or alters your mental state. How can this affect the validity of your Will? Does it affect the validity of your Will at all?

All these questions and concerns can be answered by your lawyer.

Often, a testator will think that engaging an experienced Will Lawyer to prepare a Will is simply too much expense. Consider the alternative: if your Will does not conform to legal requirements and if your Will does not show that you were of sound of mind at the time of the execution of your Will, your Will may be nullified in its entirety. If your Will disregards some of your legal heirs and the courts decide that they are entitled to a fair share of your properties, your Will may be open to modification.

If your Will is found to be invalid for having failed to conform to the requirements of the law, then, your Estate will be distributed by the courts and not in accordance with your wishes. To prevent the possibility of your Will being invalidated and your estate passing into intestacy, we firmly advise to consult a lawyer about preparing your Will.

At Perth Law Firm Macdonald Rudder we have been helping our clients with Estate Planning and Will preparation since 1987. Get in touch today to discuss your Will and Estate Planning with one of our friendly lawyers.

English Bill of Rights 1689

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An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown

Whereas the Lords Spiritual and Temporal and Commons assembled at Westminster, lawfully, fully and freely representing all the estates of the people of this realm, did upon the thirteenth day of February in the year of our Lord one thousand six hundred eighty-eight [old style date] present unto their Majesties, then called and known by the names and style of William and Mary, prince and princess of Orange, being present in their proper persons, a certain declaration in writing made by the said Lords and Commons in the words following, viz.:

Whereas the late King James the Second, by the assistance of divers evil counsellors, judges and ministers employed by him, did endeavour to subvert and extirpate the Protestant religion and the laws and liberties of this kingdom;

By assuming and exercising a power of dispensing with and suspending of laws and the execution of laws without consent of Parliament;

By committing and prosecuting divers worthy prelates for humbly petitioning to be excused from concurring to the said assumed power;

By issuing and causing to be executed a commission under the great seal for erecting a court called the Court of Commissioners for Ecclesiastical Causes;

By levying money for and to the use of the Crown by pretence of prerogative for other time and in other manner than the same was granted by Parliament;

By raising and keeping a standing army within this kingdom in time of peace without consent of Parliament, and quartering soldiers contrary to law;

By causing several good subjects being Protestants to be disarmed at the same time when papists were both armed and employed contrary to law;

By violating the freedom of election of members to serve in Parliament;

By prosecutions in the Court of King’s Bench for matters and causes cognizable only in Parliament, and by divers other arbitrary and illegal courses;

And whereas of late years partial corrupt and unqualified persons have been returned and served on juries in trials, and particularly divers jurors in trials for high treason which were not freeholders;

And excessive bail hath been required of persons committed in criminal cases to elude the benefit of the laws made for the liberty of the subjects;

And excessive fines have been imposed;

And illegal and cruel punishments inflicted;

And several grants and promises made of fines and forfeitures before any conviction or judgment against the persons upon whom the same were to be levied;

All which are utterly and directly contrary to the known laws and statutes and freedom of this realm;

And whereas the said late King James the Second having abdicated the government and the throne being thereby vacant, his Highness the prince of Orange (whom it hath pleased Almighty God to make the glorious instrument of delivering this kingdom from popery and arbitrary power) did (by the advice of the Lords Spiritual and Temporal and divers principal persons of the Commons) cause letters to be written to the Lords Spiritual and Temporal being Protestants, and other letters to the several counties, cities, universities, boroughs and cinque ports, for the choosing of such persons to represent them as were of right to be sent to Parliament, to meet and sit at Westminster upon the two and twentieth day of January in this year one thousand six hundred eighty and eight [old style date], in order to such an establishment as that their religion, laws and liberties might not again be in danger of being subverted, upon which letters elections having been accordingly made;

And thereupon the said Lords Spiritual and Temporal and Commons, pursuant to their respective letters and elections, being now assembled in a full and free representative of this nation, taking into their most serious consideration the best means for attaining the ends aforesaid, do in the first place (as their ancestors in like case have usually done) for the vindicating and asserting their ancient rights and liberties declare

That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal;

That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal;

That the commission for erecting the late Court of Commissioners for Ecclesiastical Causes, and all other commissions and courts of like nature, are illegal and pernicious;

That levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal;

That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal;

That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law;

That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;

That election of members of Parliament ought to be free;

That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament;

That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;

That jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders;

That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void;

And that for redress of all grievances, and for the amending, strengthening and preserving of the laws, Parliaments ought to be held frequently.

And they do claim, demand and insist upon all and singular the premises as their undoubted rights and liberties, and that no declarations, judgments, doings or proceedings to the prejudice of the people in any of the said premises ought in any wise to be drawn hereafter into consequence or example; to which demand of their rights they are particularly encouraged by the declaration of his Highness the prince of Orange as being the only means for obtaining a full redress and remedy therein. Having therefore an entire confidence that his said Highness the prince of Orange will perfect the deliverance so far advanced by him, and will still preserve them from the violation of their rights which they have here asserted, and from all other attempts upon their religion, rights and liberties, the said Lords Spiritual and Temporal and Commons assembled at Westminster do resolve that William and Mary, prince and princess of Orange, be and be declared king and queen of England, France and Ireland and the dominions thereunto belonging, to hold the crown and royal dignity of the said kingdoms and dominions to them, the said prince and princess, during their lives and the life of the survivor to them, and that the sole and full exercise of the regal power be only in and executed by the said prince of Orange in the names of the said prince and princess during their joint lives, and after their deceases the said crown and royal dignity of the same kingdoms and dominions to be to the heirs of the body of the said princess, and for default of such issue to the Princess Anne of Denmark and the heirs of her body, and for default of such issue to the heirs of the body of the said prince of Orange. And the Lords Spiritual and Temporal and Commons do pray the said prince and princess to accept the same accordingly.

And that the oaths hereafter mentioned be taken by all persons of whom the oaths have allegiance and supremacy might be required by law, instead of them; and that the said oaths of allegiance and supremacy be abrogated.

I, A.B., do sincerely promise and swear that I will be faithful and bear true allegiance to their Majesties King William and Queen Mary. So help me God.

I, A.B., do swear that I do from my heart abhor, detest and abjure as impious and heretical this damnable doctrine and position, that princes excommunicated or deprived by the Pope or any authority of the see of Rome may be deposed or murdered by their subjects or any other whatsoever. And I do declare that no foreign prince, person, prelate, state or potentate hath or ought to have any jurisdiction, power, superiority, pre-eminence or authority, ecclesiastical or spiritual, within this realm. So help me God.

Upon which their said Majesties did accept the crown and royal dignity of the kingdoms of England, France and Ireland, and the dominions thereunto belonging, according to the resolution and desire of the said Lords and Commons contained in the said declaration. And thereupon their Majesties were pleased that the said Lords Spiritual and Temporal and Commons, being the two Houses of Parliament, should continue to sit, and with their Majesties’ royal concurrence make effectual provision for the settlement of the religion, laws and liberties of this kingdom, so that the same for the future might not be in danger again of being subverted, to which the said Lords Spiritual and Temporal and Commons did agree, and proceed to act accordingly. Now in pursuance of the premises the said Lords Spiritual and Temporal and Commons in Parliament assembled, for the ratifying, confirming and establishing the said declaration and the articles, clauses, matters and things therein contained by the force of law made in due form by authority of Parliament, do pray that it may be declared and enacted that all and singular the rights and liberties asserted and claimed in the said declaration are the true, ancient and indubitable rights and liberties of the people of this kingdom, and so shall be esteemed, allowed, adjudged, deemed and taken to be; and that all and every the particulars aforesaid shall be firmly and strictly holden and observed as they are expressed in the said declaration, and all officers and ministers whatsoever shall serve their Majesties and their successors according to the same in all time to come. And the said Lords Spiritual and Temporal and Commons, seriously considering how it hath pleased Almighty God in his marvellous providence and merciful goodness to this nation to provide and preserve their said Majesties’ royal persons most happily to reign over us upon the throne of their ancestors, for which they render unto him from the bottom of their hearts their humblest thanks and praises, do truly, firmly, assuredly and in the sincerity of their hearts think, and do hereby recognize, acknowledge and declare, that King James the Second having abdicated the government, and their Majesties having accepted the crown and royal dignity as aforesaid, their said Majesties did become, were, are and of right ought to be by the laws of this realm our sovereign liege lord and lady, king and queen of England, France and Ireland and the dominions thereunto belonging, in and to whose princely persons the royal state, crown and dignity of the said realms with all honours, styles, titles, regalities, prerogatives, powers, jurisdictions and authorities to the same belonging and appertaining are most fully, rightfully and entirely invested and incorporated, united and annexed. And for preventing all questions and divisions in this realm by reason of any pretended titles to the crown, and for preserving a certainty in the succession thereof, in and upon which the unity, peace, tranquility and safety of this nation doth under God wholly consist and depend, the said Lords Spiritual and Temporal and Commons do beseech their Majesties that it may be enacted, established and declared, that the crown and regal government of the said kingdoms and dominions, with all and singular the premises thereunto belonging and appertaining, shall be and continue to their said Majesties and the survivor of them during their lives and the life of the survivor of them, and that the entire, perfect and full exercise of the regal power and government be only in and executed by his Majesty in the names of both their Majesties during their joint lives; and after their deceases the said crown and premises shall be and remain to the heirs of the body of her Majesty, and for default of such issue to her Royal Highness the Princess Anne of Denmark and the heirs of the body of his said Majesty; and thereunto the said Lords Spiritual and Temporal and Commons do in the name of all the people aforesaid most humbly and faithfully submit themselves, their heirs and posterities for ever, and do faithfully promise that they will stand to, maintain and defend their said Majesties, and also the limitation and succession of the crown herein specified and contained, to the utmost of their powers with their lives and estates against all persons whatsoever that shall attempt anything to the contrary. And whereas it hath been found by experience that it is inconsistent with the safety and welfare of this Protestant kingdom to be governed by a popish prince, or by any king or queen marrying a papist, the said Lords Spiritual and Temporal and Commons do further pray that it may be enacted, that all and every person and persons that is, are or shall be reconciled to or shall hold communion with the see or Church of Rome, or shall profess the popish religion, or shall marry a papist, shall be excluded and be for ever incapable to inherit, possess or enjoy the crown and government of this realm and Ireland and the dominions thereunto belonging or any part of the same, or to have, use or exercise any regal power, authority or jurisdiction within the same; and in all and every such case or cases the people of these realms shall be and are hereby absolved of their allegiance; and the said crown and government shall from time to time descend to and be enjoyed by such person or persons being Protestants as should have inherited and enjoyed the same in case the said person or persons so reconciled, holding communion or professing or marrying as aforesaid were naturally dead; and that every king and queen of this realm who at any time hereafter shall come to and succeed in the imperial crown of this kingdom shall on the first day of the meeting of the first Parliament next after his or her coming to the crown, sitting in his or her throne in the House of Peers in the presence of the Lords and Commons therein assembled, or at his or her coronation before such person or persons who shall administer the coronation oath to him or her at the time of his or her taking the said oath (which shall first happen), make, subscribe and audibly repeat the declaration mentioned in the statute made in the thirtieth year of the reign of King Charles the Second entitled, _An Act for the more effectual preserving the king’s person and government by disabling papists from sitting in either House of Parliament._ But if it shall happen that such king or queen upon his or her succession to the crown of this realm shall be under the age of twelve years, then every such king or queen shall make, subscribe and audibly repeat the same declaration at his or her coronation or the first day of the meeting of the first Parliament as aforesaid which shall first happen after such king or queen shall have attained the said age of twelve years. All which their Majesties are contented and pleased shall be declared, enacted and established by authority of this present Parliament, and shall stand, remain and be the law of this realm for ever; and the same are by their said Majesties, by and with the advice and consent of the Lords Spiritual and Temporal and Commons in Parliament assembled and by the authority of the same, declared, enacted and established accordingly.

II. And be it further declared and enacted by the authority aforesaid, that from and after this present session of Parliament no dispensation by _non obstante_ of or to any statute or any part thereof shall be allowed, but that the same shall be held void and of no effect, except a dispensation be allowed of in such statute, and except in such cases as shall be specially provided for by one or more bill or bills to be passed during this present session of Parliament.

III. Provided that no charter or grant or pardon granted before the three and twentieth day of October in the year of our Lord one thousand six hundred eighty-nine shall be any ways impeached or invalidated by this Act, but that the same shall be and remain of the same force and effect in law and no other than as if this Act had never been made.

Rule of law – Of the dangers of specialist courts

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In Kirk v Industrial Relations Commission [2010] HCA 1 at [122] Heydon J endorsed the following statement in the text Rule of Law Geoffrey de Q Walker, Melbourne University Press, 1988 at [35]:

“History teaches us to be suspicious of specialist courts and tribunals of all descriptions. They are usually established precisely because proceedings conducted in accordance with normal judicial standards of fairness are not producing the outcomes that the government wants. From the Court of Star Chamber to the multitude of military courts and revolutionary tribunals in our own century, this lesson has been repeated time and time again.”

His Honour continued:

…a major difficulty in setting up a particular court, like the Industrial Court, to deal with specific categories of work, one of which is a criminal jurisdiction in relation to a very important matter like industrial safety, is that the separate court tends to lose touch with the traditions, standards and mores of the wider profession and judiciary. It thus forgets fundamental matters like the incapacity of the prosecution to call the accused as a witness even if the accused consents. Another difficulty in setting up specialist courts is that they tend to become over-enthusiastic about vindicating the purposes for which they were set up.

Rule of Law – Of judicial independence

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Address given by the Chief Justice of NSW, Jim Spigelman January 2007

The significance of the independence of the judiciary is not always fully appreciated. Indeed, some sections of government, and of our media, appear to resent judicial authority. Some appear to believe that there may be advantage to their own reputation by being seen to be “tough on the judges”. This is fraught with danger for our freedoms and social stability.

There is a tendency to treat judges as if they were public servants, subject to a bureaucratic criteria of performance. This approach fails to recognise the constitutional role of the judiciary as a distinct arm of government.

The white heat of an election campaign is not a propitious time to debate matters of principle.

Judicial independence is not a privilege of judges which we acquire as a perk of office. Judicial independence is a fundamental right of citizens. It is one of the rights that is enshrined as a constitutional principle.

Citizens are entitled to protection from the exercise of the power that others are able to exercise over their lives. Our society cannot be governed by the rule of the law without an institutionalised arrangement for the independence of the judiciary. Furthermore, democracy depends on the courts enforcing what the Parliament intended, not what the executive wants.

We tinker with this institutional arrangement at our peril. Today, this tinkering is often expressed in terms of judges being “out of touch”. However, as the Chief Justice of the High Court, Murray Gleeson, has observed, the real complaint is not that judges are “out of touch” but that they are “out of reach”. Judges are meant to be hard to get at.

It is essential to understand that the most frequent litigant in the courts of this state is the executive branch of government.

People who are used to getting their way do not usually take kindly to their wishes being frustrated. In the past that has included the aristocracy, when it was the centre of social and economic power. These days such centres of power include major corporations and the mass media. Throughout history the executive branch of government has been such a centre of power.

It is vital that the independence of the judiciary does not depend solely on the personal integrity and resilience of individual judges. Independence has been institutionalised.

The exercise of judicial power must be insulated, indeed isolated, from pressure or interference by the executive branch of government.

There is no single model for achieving this objective. Nevertheless such independence and impartiality must not only exist. It must appear to exist – reflected in the aphorism that justice must not only be done but must manifestly be seen to be done.

On January 21 a news release was issued in the name of the Premier announcing that the Government intended to introduce legislation for the appointment of two community representatives, to what was described as “the conduct division of the NSW Judicial Commission”.

No reason was given as to why, so soon after a detailed and comprehensive review of these matters, it was nevertheless necessary to make further changes.

The membership of a conduct division of the Judicial Commission is a critical, indeed an essential, feature of the constitutional arrangements for judicial independence in this state. On Monday last week I wrote to the Premier, Morris Iemma, expressing my disappointment that a matter of such significance to the relationship between the executive and the judicial branches of government should be announced in this manner and without consultation with the judiciary.

It would be wrong and contrary to constitutional principle if an appointment to a conduct division were to be made by the executive branch of government.

In response to my letter to the Premier, the NSW Attorney-General, has informed me that, if re-elected, the Government will undertake consultations about the details of the proposal. The Attorney-General expressed his opinion that the judicial commission should be involved in the selection of the two “community representatives” and in determining which should sit on a particular matter.

I trust that in the course of such consultations the judiciary can rely on the support of the legal profession to maintain the principle of judicial independence.

Politics – Free speech

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Australian Broadcasting Corporation v O’Neill [2006] HCA 46

Per Gleeson CJ And Crennan J
31… Blackstone, in his Commentaries Blackstone, Commentaries, (1769) bk 4, at 151-152., as long ago as 1769 distinguished between prior restraint of publication and subsequent legal consequences:

“The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity” (emphasis in original).

What lay behind Blackstone’s remarks was the conclusion in the late 17th century of the controversy between Parliament and the Crown over free speech and freedom of the press. From Tudor times, the House of Commons appreciated that its role in public life would be seriously curtailed without such freedoms. This explains the House’s repeated assertions, over the century, of a “liberty” to “speak freely their consciences without check or controlment””The Apology of the Commons, 20 June 1604” in Stephenson & Marcham, Sources of English Constitutional History, (1972), vol 1, 418 at 422.. This liberty found its way into The Bill of Rights, 1689 Expressed as a right to “freedom of speech and debates or proceedings in parliament.”. The “check or controlment” complained about came from the Crown or its councillors. A freedom to speak on behalf of the commons became a freedom, as Blackstone notes of “[e]very freeman”. Hand in hand with these developments went the dismantling of the Crown’s control, or censorship, of the press, first asserted generally by Ordinance in 1534, and requiring all manuscripts to be scrutinised and licensed by the Stationers’ Company. Decrees in Star Chamber reinforced that control or censorship in respect of both printers and books. As explained in the joint reasons of Gummow and Hayne JJ, the dismantling of the licensing system was effectively completed by 1695 See [80].. The public interest in free speech is explained not least by reference to the fact that freedom of speech and freedom of the press were important aspects of the constitutional struggles which came to rest with the Act of Settlement of 1701. Subsequently, courts of equity were not willing to enjoin publication of defamatory matter, not only because that would usurp the authority of juries, but also because they were most reluctant to be asked “to exercise the powers of a censor” Fleming v Newton (1848) 1 HLC 363 at 371 per Lord Cottenham LC.. This latter consideration remains important in our democracy.

32 It is one thing for the law to impose consequences, civil or criminal, in the case of an abuse of the right of free speech. It is another matter for a court to interfere with the right of free speech by prior restraint. In working out the consequences of abuse of such freedom, the law strikes a balance between competing interests, which include an individual’s interest in his or her reputation. When, however, a court is asked to intervene in advance of publication wider considerations are involved. This is the main reason for the “exceptional caution” Bonnard v Perryman [1891] 2 Ch 269 at 284 per Lord Coleridge CJ. with which the power to grant an interlocutory injunction in a case of defamation is approached…

 

 

 

Politics – Declaration of Independence

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1

Drafting the Declaration of Independence
Benjamin Franklin, John Adams, Thomas Jefferson

The Declaration of Independence of the Thirteen Colonies

In CONGRESS, July 4, 1776

33

The unanimous Declaration of the thirteen united States of America

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,
–That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shown, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
–Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain [George III] is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.
He has refused his Assent to Laws, the most wholesome and necessary for the public good.
He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.
He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.
He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance.
He has kept among us, in times of peace, Standing Armies without the consent of our legislatures.
He has affected to render the Military independent of and superior to the Civil power.
He has combined with others to subject us to a jurisdiction foreign to our constitution and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
For Quartering large bodies of armed troops among us:
For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:
For cutting off our Trade with all parts of the world:
For imposing Taxes on us without our Consent:
For depriving us, in many cases, of the benefits of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offences:
For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:
For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:
For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
He has abdicated Government here, by declaring us out of his Protection and waging War against us.
He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.
He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty and perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.
He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.
In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.
We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by the Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

Signing the Declaration of Independence – July 2, 1776

Signed by:

Connecticut:
Roger Sherman, Samuel Huntington, William Williams, Oliver Wolcott

Delaware:
Caesar Rodney, George Read, Thomas McKean

Georgia:
Button Gwinnett, Lyman Hall, George Walton

Maryland:
Samuel Chase, William Paca, Thomas Stone, Charles Carroll of Carrollton

Massachusetts:
John Hancock, Samuel Adams, John Adams, Robert Treat Paine, Elbridge Gerry

New Hampshire:
Josiah Bartlett, William Whipple, Matthew Thornton

New Jersey:
Richard Stockton, John Witherspoon, Francis Hopkinson, John Hart, Abraham Clark

New York:
William Floyd, Philip Livingston, Francis Lewis, Lewis Morris

North Carolina:
William Hooper, Joseph Hewes, John Penn

Pennsylvania:
Robert Morris, Benjamin Rush, Benjamin Franklin, John Morton, George Clymer, James Smith, George Taylor, James Wilson, George Ross

Rhode Island:
Stephen Hopkins, William Ellery

South Carolina:
Edward Rutledge, Thomas Heyward, Jr., Thomas Lynch, Jr., Arthur Middleton

Virginia:
George Wythe, Richard Henry Lee, Thomas Jefferson, Benjamin Harrison, Thomas Nelson, Jr., Francis Lightfoot Lee, Carter Braxton