Monthly Archives: December 2015

An Example Case of Legal Madness

When your ex decides to file phony abuse allegations so that you’re fighting a restraining order during a divorce case, the legal process is in two stages. The first “ex parte” hearing is one which only needs to be attended by the plaintiff, and a temporary order can be filed against you, which is then served in person. The second formal hearing is where you get a chance to defend yourself against it becoming a permanent order. In-between those two dates you are under the restraining order’s standard restrictions (firearms confiscation, a no contact order, and so on).

Unfortunately for those of us fighting an order because of false accusations, the first hearing is one where judges prefer to “err on the side of caution”. In practical terms, this means that the temporary orders are almost always granted against the defendant. Whilst in legitimate cases this is a good thing, it does lead to sly divorce tactics being employed during many breakups.

One prominent example of where the judge’s tendency to automatically grant the temporary order was abused is in the case of television presenter David Letterman. It reminds us of the ease with which the ex parte hearing judges grant restraining orders, effectively cutting fathers off from their kids until those fathers have a chance to respond in court several weeks later.

Basically, a deranged female fan from New Mexico filed restraining order paperwork against him in 2005. At the ex parte court hearing, Colleen Nestler of Santa Fe explained that the defendant (Letterman) had been harassing her since 1994 into marrying him, as well as exerting pressure to become a co-host on his talk show. He’d been responsible for her bankruptcy declaration and ongoing sleep deprivation problems. The temporary restraining order was granted against Letterman, and a court date set for a second hearing so he could argue his defense.

The method of Letterman’s harassment of this lady was… coded messages and facial expressions in his television presentations. Even more disturbing is that when asked if he might have made a mistake, Judge Sanchez stated in the negative.

The fact is that an applicant need only assert a “fear” of violence in most states for the judge to grant the temporary order, even if none has occurred. A new development in some counties is that applications can be made by telephone, without the need to attend county court the same day.

This situation sums up what fathers are up against when fighting a restraining order as part of strategic divorce maneuvers. The only difference is that their stories aren’t widely publicised to mass outrage, and they often don’t have expensive lawyers to descend upon the case to petition a dismissal before the second appointed court date. Meaning that they don’t get to see their children in the meantime.

Australian legal practitioners in fight against legal assistance funding cuts

The Federal Government is under increasing pressure to reverse millions of dollars in funding cuts to legal aid and community legal centres around Australia.

All state and territory Attorneys-General have written to federal Attorney-General George Brandis, warning the Commonwealth’s current funding plan for legal assistance will set the fight against domestic violence and Indigenous disadvantage back decades.

Last year’s budget cut $15 million from legal aid commissions and $6 million from community legal centres.

“There are certainly places in Australia where there are centres that may have to close,” Michael Smith from the National Association of Community Legal Centres (NACLC) told ABC’s AM program.

“There are centres that don’t know whether they’ll be able to stay open and whether those lawyers will be able to continue.

“Even if centres are able to open often those community lawyers are seeing 300 or 400 clients a year, so that’s a lot of people who are going to miss out if those services aren’t there.

“Certainly demand for assistance around family violence is growing like we’ve never seen before.”

The current national partnership agreement for legal assistance services expires at the end of June, and the state and territories are asking Senator Brandis to set out their proposed future funding no later than the end of March.

The letter signed by all seven Attorneys-General called on Senator Brandis to reverse the existing cuts made to legal services, and guarantee no further funding reductions would be made to Legal Aid Commission, Community Legal Centres, and the Aboriginal Legal Service.

If these cuts continue … people facing poverty, people facing homelessness — they will be the people who lose out.
ACT Attorney-General Simon Corbell

“These proposals will affect the most vulnerable members in our community, including foremost women and children who are victims of, or at risk of family violence, as well as Indigenous Australians,” the letter said.

“It is difficult to reconcile these actions with the Prime Minister’s recent recognition of the importance of tackling domestic and family violence and closing the gap between Indigenous and non-Indigenous Australians as national issues.

“Cutting funding to the services which help these vulnerable members of our community, at this time, is short sighted and ill conceived.

“Such a move will further set us back decades in tackling this important issue.”

Parliamentary Secretary to the Prime Minister, Alan Tudge, defended the level of Commonwealth funding for legal aid.

“We’ve got an absolute commitment to providing good funding for the front line legal aid services for vulnerable people,” he told Sky News.

“We’ve committed $1.3 billion over the next four years.”

Mr Tudge said there would be new funding arrangements for legal service organisations from July, which will be announced in the May budget.

“Instead of the Commonwealth funding them directly we will fund them via the state governments and we’re in a process at the moment of working through that.”
Cuts ‘contradict’ domestic violence concerns

ACT Attorney-General Simon Corbell said the states and territories were united.

“It’s very significant that regardless of our political persuasions state and territory attorneys are standing together to tell the federal Attorney-General and the Abbott government that these cuts to legal aid can not stand,” he said.

“If these cuts continue we will see people needing representation and legal advice on domestic violence questions, representation because they’re Indigenous and caught up in the justice system, people facing poverty, people facing homelessness — they will be the people who lose out.”

Victoria’s Attorney-General, Martin Pakula, said cutting legal aid contradicted the Federal Government’s campaign against family violence.

“Our community legal centres do an enormous amount of work supporting the victims of family violence,” he said.

“Now for Tony Abbott and George Brandis to be talking about wanting to deal with the epidemic of family violence but at the same time talking about cuts in assistance to CLCs and Legal Aid is just completely hypocritical.”

West Australian Attorney-General Michael Mischin said he was concerned about WA’s dwindling funding.

He said with WA consistently receiving the second lowest per capita contribution from the Commonwealth of any of the states and territories, it could not afford to lose any further funding.

“Legal aid funding in Western Australia has been dropping considerably over the past 15-odd years, with the State increasing its contribution to legal aid funding across the state, but the Commonwealth share dropping,” he said.

“I’ve got to say that the prospect of us being able to significantly fill up the slack that the Commonwealth has left over the last 15 years is pretty grim.

“I understand the Commonwealth’s problems, but there are certain fundamental obligations that ought not to be abrogated.”

New South Wales Premier Mike Baird said he was also concerned his state would not be able to make up the funding shortfall.

“We understand the impact that they are providing and the service they are providing to some of the most disadvantaged in the state so the Attorney-General is absolutely right, as other Attorney-Generals (sic) across the country are, to ask the Federal Attorney-General to reconsider that,” he said.
Concerns funding cuts will lead to delays in court system

The Federal Government also cut $43 million from legal advocacy services, saying it wanted to direct the funding to frontline services.

Northern Territory Attorney-General John Elferink said while he understood what Senator Brandis was trying to achieve, it would lead to delays in the court system instead.

“If somebody is unrepresented and facing a murder charge or unrepresented and facing a serious indictable offence, then clearly a court would be extremely reluctant to hear a person or a case in front of them without proper legal representation,” Mr Elferink said.

“Particularly if that person is not as sophisticated as somebody else in the ways of the criminal justice system, particularly the Western criminal justice system.”

A spokesman for Senator Brandis said the letter would be given consideration.

He said the Government was committed to protecting the most vulnerable members of the community and would continue to provide a “very substantial” amount of funding for legal assistance.

The spokesman said funding to the states and territories would be considered as part of this year’s budget process.

The Federal Government also announced this week it would fund half of a $30-million national awareness campaign, along with the states and territories.

The NACLC said while that was important, it was not enough.

“We think that prevention is really important and that community awareness will make a difference in the long term about preventing family violence before it occurs,” Mr Smith said.

“Certainly people need to be aware of those problems, but legal services and other support services are totally stretched already.

“So the danger is if we’re only doing more awareness raising, it’ll just create more demand, and the crisis will get worse.”