LSJ November 2020

40 years of Silverwater LSJ goes behind the walls of Sydney’s most notorious prison Under the COVID veil How the process of lawmaking has changed since the onset of coronavirus Judging the USA What we can learn from America’s judicial appointment system

Truth vs reputation Does ICAC strike the right balance in its quest for anwers?

ISSUE 72 NOVEMBER 2020

Takinga newdirection How an alternative approach to criminal justice can break the cycle of recidivism

PLUS: UPDATES ON COSTS, TAX, MEDIATION, FAMILY LAW, EMPLOYMENT & MORE

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ISSUE 72 I NOVEMBER 2020 I LSJ 28

Contents

24

26

34

Features

24 Hot topic Headline grabbing and career

34 Inside Silverwater Paul Maley’s exclusive interview and tour with Corrective Services Commissioner Peter Severin 40 The power of the pandemic Kirrily Schwarz explores the

50 Finding her rhythm Keerthi Ravi tells Kirrily Schwarz how the discipline of Indian classical dance underpins her success in law 54 Fitness Personal trainer Zara Michales serves up a hardcore workout to improve strength and stability; no sit-ups required 56 Travel From the cultural delights of Canberra to hidden luxury on the Central Coast: there is no better time for a road trip

ending: does ICAC strike the right balance in its quest for the truth?

26 Lunchwith The Law Society’s new CEO Sonja Stewart unveils her vision and best leadership tips to Kate Allman 28 Courting alternatives Are diversionary schemes the answer to our troubling prison and recidivism rates? Amy Dale writes

long-term implications of swift lawmaking in the COVID-19 era

46 Mindset Angela Heise on the many forms of grief and the importance of recognising our losses

ISSUE 72 I NOVEMBER 2020 I LSJ 3

56 80

Regulars

Legal updates

6 From the editor 8 President’s message 10 Mailbag 14 News

66 Advocacy

80 Property

The latest developments in advocacy and law reform

Landmark decision overturns blanket ban on pets in strata building

68 Opinion

82 Family law

Trump, RBG, Barrett: A lesson in what not to do?

Consideration of the legality and admissibility of covert recordings in family law

23 Expert witless 23 The LSJ quiz 44 Career matters 46 Mindset 49 Career coach 52 Health 60 Youwish 62 Books and lifestyle 64 The case that changedme

70 Costs

Part one in our LSJ series on alternative fee arrangements

84 Family law

Family Court settles dispute over hormone therapy for teenager with gender dysphoria

73 Charities & taxation GoFundMe: the gift that keeps on giving? 76 Taxation

86 Employment law

Recent insights from the Federal Court on when a complaint or inquiry is a ‘workplace right’

A matter of trust: working together to avoid tax stings

77 Risk

89 Case notes

Cautionary tales for employers with sta‚ working long hours

The latest High Court, Federal Court, family, criminal, and elder law and succession judgments

78 Mediation

Benefits of the Singapore Convention to Australians resolving international commercial disputes

67 Library additions 106 Avid for scandal

4 LSJ I ISSUE 72 I NOVEMBER 2020

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A word from the editor

Welcome to the November edition of LSJ . is month, we delve into the best and the worst of our justice system. Amy Dale’s cover story on page 28, “Courting alternatives”, is an important analysis on whether alternative justice – such as drug courts and justice reinvestment – can actually be effective. On the other hand, Paul Maley’s piece on page 34, “Life on the inside”, is a warts-and-all glimpse at what happens when prison is the only option. It’s an interesting juxtaposition, and one that should spark reflection about the way we deal with certain offenders. Enjoy the edition! Apology to Mark Richardson e second paragraph of the article titled “Lunch with Michael Tidball” on page 26 of the August edition of LSJ contained a description of events and circumstances surrounding the conclusion of the 10-year term of former CEO of the Law Society Mark Richardson. Mr Richardson concluded his term as CEO when he announced his decision to step down to pursue his career elsewhere. Mr Richardson led the Law Society successfully through a profound period of change and challenge for the legal profession, which was acknowledged at his farewell. e Law Society fully withdraws and apologises to Mr Richardson to the extent that the description of events and circumstances contained in the article may be regarded as suggesting otherwise. Claire Chaffey

ISSN 2203-8906

Managing Editor Claire Chaffey Legal Editor Klára Major Assistant Legal Editor

Jacquie Mancy Online Editor

Kate Allman Journalist Amy Dale Art Directors Alys Martin Andy Raubinger Communications Coordinator Floyd Alexander-Hunt Advertising Sales Account Manager Jessica Lupton Editorial enquiries journal@lawsociety.com.au Classified Ads www.lawsociety.com.au/advertise Advertising enquiries advertising@lawsociety.com.au or 02 9926 0290

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Contributors

© 2020 e Law Society of New South Wales, ACN 000 000 699, ABN 98 696 304 966. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced without the specific written permission of the Law Society of New South Wales. Opinions are not the official opinions of the Law Society unless expressly stated. e Law Society accepts no responsibility for the accuracy of any information contained in this journal and readers should rely upon their own enquiries in making decisions touching their own interest.

Prof Helen Irving Opinion p68

Amy Dale Cover story p28

Paul Maley Feature p34

Prof Michael Legg Costs p70 Professor Legg is Director of the Law Society of NSW Future of Law and Innovation in the Profession research stream at UNSW Law. This month, he kicks o‚ a new series examining the “Kill Bill” movement and the future of costs in the legal profession.

27,100 * *AUDITED MARCH 2019 DISTRIBUTION

Professor Irving is an expert in Australian and US Constitutional law at the University of Sydney. Here, she examines what we might learn from the US Supreme Court nomination hearings in light of the upcoming vacancies on our High Court. .

Amy is a journalist at LSJ . She has previously worked in government social policy and media relations, as a court reporter and is a published true crime author. This month, she asks: can alternative courts fix our troubling recidivism rates?

Paul is a Walkley Award- winning journalist who has covered politics and national security issues for more than 15 years. This month, he steps inside Silverwater Prison to interview Commissioner Peter Severin and glimpse life behind bars.

40yearsofSilverwater LSJ goesbehind thewallsof Sydney’smostnotoriousprison UndertheCOVIDveil How theprocessof lawmakinghas changed since theonsetofcoronavirus JudgingtheUSA Whatwecan learn fromAmerica’s judicialappointment system

ISSUE72 NOVEMBER2020

Truthvsreputation Does ICAC strike the right balance in itsquest foranwers?

ISSUE72 NOVEMBER2020

Takinga newdirection Howanalternativeapproach tocriminal justicecan breakthecycleofrecidivism

Have an idea? We would like to publish articles from a broad pool of expert members and we’re eager to hear your ideas regarding topics of interest to the profession. If you have an idea for an article, email a brief outline of your topic and angle to journal@lawsociety.com.au. Our team will consider your idea and pursue it with you further if we would like to publish it in LSJ . We will provide editorial guidelines at this time. Please note that we do not accept unsolicited articles.

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Cover design: Alys Martin

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NEXT ISSUE: 1 DECEMBER 2020

6 LSJ I ISSUE 72 I NOVEMBER 2020

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ISSUE 72 I NOVEMBER 2020 I LSJ 7

President’s message

A long with the Opening of Law Term Dinner at NSW Parliament House, the Law Society’s Annual Members Dinner is the event I most look forward to each year. It is an opportunity to gather with colleagues, members, and friends of the Society, reflect on our achievements as a profes- sion, and honour those outstanding practitioners who have in- dividually contributed above and beyond in the practice of law. While the pandemic restrictions stopped us from gathering en masse this year, I was delighted that so many guests were able to join me online for the virtual Annual Members’ Ad- dress on Monday 26 October. As I stated in my address, this year has tested all of us, and more challenges may lie ahead. But there is much to celebrate as a profession in 2020 – our resilience and capacity to adapt, the strength and unity of our profession, and our efforts to ensure access to justice to the people of NSW. During the Annual Members’ Address, I had the honour of awarding the Law Society of NSW 2020 President’s Medal to Peter Rosier, Principal Solicitor of Rosier Partners Lawyers. Peter has been a key figure in the Law Society’s advocacy for

electronic conveyancing and played a pivotal role in preparing practitioners for this momentous change. He has nearly 50 years of experience in legal practice and is currently a member of the Law Society’s Property Law Committee, where he has served since 1998. An Accredited Specialist in Property Law since 1997, Peter also serves on the property law advisory committee for the specialist accreditation scheme and is a member of the Law Society’s Costs Committee. e President’s Medal is a fitting acknowledgement of Peter’s outstanding contribution over many de- cades to the development of property law and policy in NSW and to his immense support to the legal profes- sion generally. Congratulations Peter, and, on behalf of the profession, thank you for your service to the law. Congratulations also to Ruth Pollard, Director of Legal and Professional Services at the NSW Trustee and Guardian, and the 2020 winner of the Highly Commended category. Ruth has contributed to reforms that have benefited the clients of the NSW Trustee and Guardian over many years. She also has an impres- sive track record promoting the rights of people with disabilities and the welfare of animals, all of which is demonstrated by her extensive volunteer work. As part of the proceedings, the Law Society’s new CEO, Sonja Stewart, acknowledged the achievements of the Class of 1970, the members of the Law Society who have practised continuously for 50 years. As Sonja reflected, these solicitors have spent the best part of their life not only practising law but volunteering their time and expertise to serve their communities. I join with the CEO in thanking these members for their service, which spans decades, practice areas and jurisdictions. For those who missed it, the Annual Members Address can be viewed on demand via the Law Society’s events page. I have no doubt that this recording of our year in review will serve as an important historical record of the extraordinary events of 2020.

Richard Harvey , President, Law Society of NSW

8 LSJ I ISSUE 72 I NOVEMBER 2020

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ISSUE 72 I NOVEMBER 2020 I LSJ 9

Mailbag LETTERS TO THE EDITOR

Fondmemories of Dick Gee

An imaginary hell Michael Berg’s letter demand- ing lawyers who question the orthodoxy that anthropogenic global warming/climate change (AGW) is occurring be censored and not be allowed to have their letters on the subject published is unacceptable in an open and democratic nation. Mr Berg hangs his censor’s hat on two hackneyed pillars of AGW. The first is that 97 per cent con- sensus of climate scientists believe in AGW. This has been contradicted, but even if it had not been repudiated it is not scientific. Karl Popper’s Theory of Falsification demands that scientific proof be 100 per cent. Popper’s swan analogy shows that one black swan can disprove 97 white swans. The second is the precautionary principle. AGW believers say that even if there is no proof of AGW, or merely 10 per cent as Mr Berg suggests, then all the action to head o— AGW is still justified. This is nonsense. Everything must be subject to a cost benefit analysis. Policies to defeat AGW are costing Austra- lia a great deal, tens of billions of dollars. Those policies and the science behind them should be continually questioned. After all, the precautionary principle is based on Pascal’s Wager where the great mathematician pro- posed it was better to lie than go to an imaginary Hell. Anthony Cox Much ado about nothing In the September LSJ , Bruce McClintock had it right when he categorised the purported NSW defamation reforms as ‘Much Ado about Not Much.’ He is correct, as the reforms really change very little. For example, he questioned the addition of the ‘serious harm’ test and sug- gested it would achieve nothing except possibly to increase lit- igation. The serious harm test was copied from British law that should have been left where it was, as it has not proven to be useful. In LaChaux v Indepen-

be caring and to like attention to detail (a verse in Mark’s gospel interpreted to the nth degree). I had a few chance meetings with Dick while he was at the bar. I never appeared before him in the Family Court nor met him outside except on one Sunday night at Sydney airport. I was waiting in the lounge with the other passengers for a flight to Dubbo. I noticed His Honour’s arrival in the lounge. He briefly nodded to me. He then, until boarding was called, walked around the lounge continuous- ly, having no further recognition of my presence. As I was lined up on the tarmac with the other passengers to board the aircraft, His Honour sidled up beside me and we spoke briefly. At Dubbo airport I watched as His Honour was met by a person in livery and whisked, with his minders, into a waiting limo. After the airport encounter, I reflected on how His Honour had to live his life on the bench. To be forever conscious of a threat to his life. He was not seated but walked constantly, making himself a less vulnerable target. That he could not chat with me was understandable, as I may have appeared before him in the Dubbo sittings of court. The author of the LSJ story notes that family law was changed forever. No more so than for the justices of the Family Court and their families. Peter Poulton, retired solicitor No fear of punishment and no humiliation of being placed in the ranks of criminals ever made anyone empathic. Only long-term treatment supervised by a competent counsellor and overseen by a treating psychiatrist with an expertise in psychological rehabilitation turns a previously cruel person trustworthy. Criminalising emotional abuse spurs a vicious circle of sanctioned control and the violence it seeks to redress. Eric Shumsky Should we criminalise psychological abuse?

The October 2020 LSJ recounts the events sur- rounding the bombing of the Family Court at Parramatta and the tragedies that preceded and followed it. The article, in its ultimate paragraph, wraps up the saga in a very poignant way. For it describes how the late Justice Richard Gee remained on the bench of the Family Court for many years after he and his children survived the bombing of their family home. I would like to share with your readers a few of my experiences with this courageous and kindly gentleman. As a law student in the late 1950s, I joined the Sydney University Evangelical Union (EU). His Honour was then a member of the EU. I knew him as Dick Gee. He was either a senior student or recent graduate, I cannot recall. Giving up many lunch hours, Dick mentored young students, to listen to their problems and to give them the benefit of his innate wisdom. As a Lay Reader in the Anglican Church, Dick put his pastoral skills to prac- tical use. Six decades on, I recall with fondness Dick taking me and my colleague aside during an EU weekend house party at Bundeena. In a fatherly manner, he counselled us as to the way he expected us to behave in that pious and august setting. We had expected the week- end to be more “party” than “piety”. The raison d’être for the weekend was the in-depth study of one verse of Mark’s gospel. Hardly riveting stu— for late teenagers. I am reminded that Jewish scholars took great delight in spending days argu- ing over the meaning of one word in the Talmud or Torah. Thus, my colleague and I found ourselves in the midst of a Christian equivalent. The events of the weekend demonstrated the traits Dick needed to pos- sess to be a future Family Court Justice. He showed himself to

WRITETOUS: We would love to hear your views on the news. The author of our favourite letter, email or tweet each month will win lunch for four at the Law Society dining room.

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10 LSJ I ISSUE 72 I NOVEMBER 2020

LETTERS TO THE EDITOR

dent Print Ltd [2019] UKSC 27, the UK Supreme Court, in a unanimous deci- sion, explained that this test required ‘a combination of the inherent ten- dency of the words and their actual impact on those to whom they were communicated’. That is, there is now a two-prong test consisting of inherent tendency and actual impact – which Lord Sumption at par 17 observed as being ‘no revolution on the law of defamation’. That, too, is an under- statement. Where I part company with Mr McClintock is with respect to his generally favourable evaluation of the NSW defamation regime prior to the reforms. He focuses on journal- ism, but I suggest that journalism in its conventional sense is of increasingly less significance. We cannot escape the reality of international social media as a primary means of information. Tik Tok alone claims over 500 million regular users. In my view, as both a practitioner and teacher of media law, the NSW statutes are archaic and out of touch as having been conceived for an era long past when locally printed edited materials were the primary

source of communication. Today, as the cyberworld continues to expand, Australia risks being seriously out of harmony with international trends. The world of media has under- gone fundamental alteration and reforms should be geared to finding some level of harmony with the world. Europe has led the path in accommo- dating the reality of cyber technology with legitimate personal rights and interests. For reforms to be meaning- ful, we cannot pretend to live in an isolation chamber. The tragedy of the defamation reform e•ort was that this was an opportunity to meaningfully confront the challenges and reality of the cyberworld. Nearly 20 years ago, in Dow Jones v Gutnick, Justice Kirby (par 166) recognised the cyberworld and invited a legislative solution to the challenges. In terms of 21 st Century media evolution, 20 years is nearly an eternity – yet virtually nothing has happened. Where Mr McClintock called the reforms Much Ado About Not Much, I would go so far to say Much Ado About Nothing. Dr Harry Melkonian

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Mailbag LETTERS TO THE EDITOR

Our readers demand excellence. You should, too. Advertise with us.

VALE Michael Antony Paul

It is not often that a solicitor practises continuously for 61 years. Michael Paul was such a solicitor, on a full-time basis for most of that period. After a debilitating struggle with cancer, Michael passed away on 4 August 2020. When lawyers have gone into battle together over many years holding the hand of clients with their anxieties, hopes and expectations in liti- gation, a deep bond between them often develops. Michael and I had such a bond and friendship over my 26 years at the Bar and beyond. As practising lawyers, our prime responsibility is to provide ethical and quality service to our clients. That is subject to the overarching responsibility to the Australian system of justice. We should ask ourselves, if we were the client, what is it we would want from our lawyer? In my experi- ence, the answer principally encompasses: a high standard of knowledge and experience in its application; a keen analysis of the issues; e†ciency in progressing and completing a matter; legal advice with professionalism and integrity; and last, but not least, the ability to listen (not just “hear”) and to commu-

ISSUE68 JULY 2020

ISSUE68 JULY2020

Acrumblingpedestal Criticismof theHighCourt is growing louder,but towhatend? Legalre-education HasCOVID-19 foreverchanged thewayweeducateour lawyers?

LunchwiththePremier GladysBerejiklian letsherguard down to talkabout true leadership

Deaths incustody The search foranswers in the faceofpolice silence

Why lawyersmustbeonthefront line ofpreventingelderabuse Thehighcostof growingold ISSUE69 AUGUST 2020 ISSUE69 AUGUST2020

Aclassoftheirown? AsVictoriachanges the ruleson contingency fees,willNSW follow? Unearthingdirtysecrets A stringofcomplaintshas revealed agrim realityaboutourprivacy laws Endingtheshamegame Why theprofessionmustchange theway it talksaboutharassment

nicate clearly and succinctly. Michael was such a lawyer.

25/6/20 2:43pm

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It’samatteroftrust Howdutyand land tax surcharges will impactdiscretionary trusts

LSJ06_Cover_July.indd 1

The shadowof injustice

“When lawyers have gone into battle together over many years holding the hand of clients with their anxieties, hopes and expectations in litigation, a deep bond between them often develops.”

Whypeopleofcolourareatadistinct disadvantagewithinour legalsystem

Atruereignofterror Those touchedby theFamily Courtbomberhorror speakout Decisionsmadeeasy Asartificial intelligence improves is it time to start trusting thedata? Keepingpacewithtech Has the timecome foranew tortof cyberharm forprivacybreaches? Borderingonconflict The true significanceofClive Palmer’sconstitutionalchallenge

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ISSUE71 OCTOBER2020

23/7/20 6:52pm

ISSUE71 OCTOBER2020

With the impactsofCOVID-19ongoing, wecheck inonthementalhealthofthe legalprofession The longhaul

During the many years of our professional relationship, we conducted cases in the Local Court, the Supreme Court of NSW, the Family Court of Australia and the High Court. Those cases included criminal matters, common law actions, equity suits, family law matters and appellate proceedings. It is not always recognised that other areas of the law such as trusts, tax and the corporations law often impact upon issues in complex family property division cases. Michael had a su†cient working knowledge of those areas which enabled him to hear alarm bells ringing that others may have missed. It is little wonder that Michael had a reputation as a first- class litigator and, in particular, one of the country’s leading family law specialists for many years, well before specialist accreditation came into force. Over the years, he contributed greatly to the careers of prominent senior counsel, several of whom ultimately became judges in the Supreme Court and Family Court. Michael was devoted to his family. With his late wife Sandra, they raised four loving children with whom they had an endur- ing close relationship. There is an ancient saying that, “when an elderly person dies, it is as if a library has burned down”. However, for all those who have been touched by Michael his knowledge, empathy and sheer decency live on. The Hon. Peter I. Rose AM QC

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VALE Christopher Bruce Brierley

For nearly all of his career, Chris was what might generally be described as an “insurance lawyer”. And while that is true, it goes nowhere near doing justice to describing his skills and reputation. That is because, for most of his career, Chis practised in a specific and highly specialised corner of insurance law: Chris was – and I mean this liter- ally – the “lawyer’s lawyer”. He was retained, day in day out, as the solicitor representing lawyers. Much of this work centred upon claims of negligence made against lawyers, but it extended and included defending lawyers sub- ject to ethical complaints and facing disciplinary charges. It would be di‚cult to overstate the importance of that role as it is regarded amongst the legal profession. In the profession, it is important for each of us to know that all of us as a group are properly and ably represented. The reputation of individual practitioners is at stake, and the reputation of the profession as a whole is at stake. We also want to know that liabilities are paid when they should be paid, and claims are properly defended when they should be defended. And that concern is sharpened when the issues raise ethical matters; It follows that lawyers who practise in the area in which Chris practised are commonly held by their peers in the highest esteem – or, where the lawyer receiving the advice hears something that he or she does not wish to hear, in the lowest esteem. It is not easy. Which leads me to another issue – acting day in, day out for lawyers is an unenviable task. Many clients are good persons who might have made an uncharacteristic error. But just as many are mad, bad and immediately dislikeable. And, frankly, most of them are di‚cult clients (a matter to which I will return). Often Chris was called upon to represent lawyers of mixed competence, mixed dedication, mixed financial stability, mixed sobriety, and even mixed sanity. Despite all of the di‚culties and complexities that this could throw up, Chris treated every single one of those clients as an individual, and he genuinely cared for the future of each of them. And that was so even when he may have been unsympathetic to their competence, dedication, ethics, etc. Chris provided every one of those men and women not only with the time and care they deserved, he provided them with the time and care they needed – I saw this in conference when I was briefed by Chris (and at times it nearly drove me mad). Representing lawyers is itself a speciality. But that speciality means that Chris was representing clients who were involved in any of the many speciality areas within the law – one day it could be a tax lawyer; the next it could be a personal injuries lawyer. In my experience with Chris he covered every area, whether it was mining law, family law, real property law – he covered the field; Chris was always calm – that is a key issue here, he was always calm; he was never ruŒed. When things went wrong in a trial, he simply adjusted the course. Chris was always good humoured – the man enjoyed a laugh, and had an uncanny ability to see the lighter and brighter side of the darker aspects. Chris always conducted his cases with care – I mention this before, but I want to repeat it to underline it for a particular reason. Chris always exercised uncanny good judgment – I got this particularly from Catherine Osborne – she pointed out how Chris had remarkably good judgment, even under pressure. And this was not limited to legal issues, he was an excellent judge of character. Chris was always competent – Chris was one of the most generally competent lawyers with whom I had the pleasure to deal. I owe a lot to Chris Brierley. Vale Chris, vale. When I was younger, I used to wonder whether it was possible to be both a good man and a good lawyer. You answered that question for me. I have spoken about you as though you were only a good lawyer, whereas everyone in this room knows the truth – you were a good man, Chris. Farewell Chris, farewell. True, Kim, Charlotte and Eliza have su–ered a terrible loss, and so have the rest of us. But even in this time of deep grief, I am inclined to think that whatever loss we feel now has been vastly outweighed by all of the wonderful benefits we have received by knowing you Chris, and having you in our lives for the time that we did. Geo Watson SC

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ISSUE 72 I NOVEMBER 2020 I LSJ 13

Briefs NEWS

FEDERAL BUDGET Budget delivers crucial cash injection for family law

BY KATE ALLMAN

Family law services and facilities will receive a crucial funding boost to alleviate escalating demand on the courts, under the Morrison Government’s 2020-21 Federal Budget announced in October. e government promised to inject $87.3 million into front-line intervention services that help families going through a separation as part of its Economic Recovery Plan. Federal Attorney-General Christian Porter said this funding would go towards mediation and support services aimed at easing the court’s caseload by assisting families to resolve matters quickly without having to go to court. “Legal fees associated with protracted court action can rapidly eat away at the funds parents need to restart their lives after a separation, so it makes good sense to assist them to settle matters amicably wherever possible,” said Porter. “Keeping matters out of the courts also helps to reduce congestion for those cases where court proceedings are necessary.” e Budget included $35.7 million in additional resources and judges for the Federal Circuit Court to ensure timely case hearings for migration and family law. It also announced $2.5 million to allow the federal family law courts to continue hearing urgent matters through a specialist COVID-19 list, which LSJ has previously reported on, and $4.8 million for the Family Violence and Cross-examination of Parties Scheme, introduced in 2019, which offers protection to victims of family violence by keeping them out of court and offering legal aid representation to represent them under cross-examination. Chief Executive Officer and Principal

AM radio in August that lawyers and specialists working in family violence support services had a “real fear” that demand for family law services would increase as employment support measures like JobKeeper were reduced. “ ere is, we think, a spike [in family violence] going on and we have real concerns,” he said. Data compiled by Women’s Safety NSW from frontline domestic and family violence specialists confirms this suspected “spike” – reporting a substantial increase in the number of victims seeking assistance during COVID-19. Services reported a 40 per cent increase in women approaching domestic violence services for the first time. e Law Council of Australia welcomed the funding increases announced in the Budget but was disappointed by a projected increase in Federal Court filing fees for migration litigants, as well as a lack of increased assistance for the community legal sector. “ e legal assistance sector has been chronically underfunded for years by successive governments, yet these frontline legal services have stood up to the challenge and worked tirelessly during the aftermath of the bushfires and throughout the pandemic to assist vulnerable Australians with their legal needs,” said President of the Law Council Pauline Wright. “A properly funded legal assistance sector, together with adequate funding for Commonwealth courts and tribunals, are essential components to the COVID-19 crisis recovery. e Government’s failure to adequately fund this sector will only hurt our recovery.”

Family Court Chief Justice Will Alstergren

Registrar of the Family Court and Federal Circuit Court David Pringle said the additional funding would be “of great assistance”. “Securing key and ongoing funding for judicial and registrar resources has been a priority for the courts,” Registrar Pringle said in a statement in October. “ e additional funding appropriately recognises the important work that the Courts do and the important need for further judicial and registrar resources to reduce litigation timeframes, support judges and alleviate some of their heavy workload. It is also an endorsement of the great work our skilled registrars are doing and the importance of expanding national lists like the COVID-19 lists.” e Family Court has reported a 200 per cent increase in urgent applications amid the pandemic, many due to family violence and parenting matters that emerged during lockdowns across the country. Chief Justice of the Family Court of Australia Will Alstergren told ABC

14 LSJ I ISSUE 72 I NOVEMBER 2020

NEWS

Influencer

NEWTHISMONTH Tune in to JustChat

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e latest episode of LSJ ’s brand new podcast JustChat lands October 30, featuring an interview with Teela Reid, a proud Aboriginal criminal de- fense lawyer, author and advocate for reshaping the justice system. Search “JustChat” on your favourite podcast platform or head to whooshkaa.com/ shows/just-chat to subscribe.

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New year, newdiary

Ruth Bader Ginsberg Associate Justice of the Supreme Court of the United States 1993-2020

e year 2020 is nearly over (thank goodness) and a brand new Law So- ciety Diary will soon be available to make planning for 2021 a little easier. e 2021 diary will be available in two sizes but does not include a directory. Pre-order your 2021 diary via the Law Society’s online shop at eshop.lawsoci- ety.com.au

I am ever hopeful that if the court has a blind spot today, its eyes will be open tomorrow.

ISSUE 72 I NOVEMBER 2020 I LSJ 15

Briefs NEWS

What led you to pursue a career in law? My great uncle, who was the only educated person in our family, encouraged me to pursue law because I was bright. From that point on, that was it, I was going to be a lawyer. My mother was widowed when I was four, and she experienced a very hard life in the 1950s as a single mother. She always wanted me to have a profession that I could rely on if circumstances become hard. Consequently, she was keen for me to go to university and back then it was easy to because we got a commonwealth scholarship. ey paid me $7.60 a week to cover my living experiences, which was a lot at that time. It’s a totally different world. e volume and complexity of legisla- tion has been the most significant change. Back then it was easy for us to be general practitioners and either know it all or know where to find it. Now, people have to specialise and compartmentalise their practice because you can’t spread yourself over the volume of law there is now. We also used to know the name of everyone in court, but now everyone is anonymous. Now that we’re relying more and more on the internet, it’s going to be less personal. What has 50 years in the profession taught you? It has taught me to listen to all sides of the story. It’s important to bal- ance and consider everything that comes your way. ere’s a breadth of thinking that lawyers have which I’m glad to have acquired. e legal profession has taught me to be interested in everything – news, travel and the natural world. What do you like to do in your spare time? When you retire, everything is spare time. I work part time as a consultant; I am a member of the NSW Animal Ethics Committee and spend a lot of time looking after my own animals. I have three alpacas – Coco, Pablo and Boris Johnson. I also have two sheep, two Maria Linkenbagh has practised as a solicitor for over 50 years and gained experience in a range of areas. Now semi-retired, Linkenbagh provides consultancy services to DINA Lawyers and works as a volunteer for a number of organisations including the NSW Animal Ethics Committee. Linkenbagh tells FLOYD ALEXANDER-HUNT about her career and what it takes to survive in the legal profession. sixminuteswith MARIA LINKENBAGH How have things changed since you first started in the legal profession?

ponies and 15 chooks. I go walking, I listen to classical music and I love to watch ballet. I also look after my five acres in Coomba and accommodate houseguests. I’m a bit of an old granny in one sense, but I can still go to court and be a solicitor. Howhave youadapted to the challenges of COVID-19? e main effect it’s had on me is that I don’t go to Sydney for hearing days anymore. I’ve had to learn to do things online, which can be tricky. I recently had a day with the NSW Animal Ethics Committee where we spent eight hours on Zoom. I was exhausted by the end of the day. I miss my jaunts to Sydney. To regularly consider whether you are satisfied in what you’re doing. If you’re doing family law and it’s driving you nuts, get out of it and do something else. You’ve got to let the profession be satisfying for you on the inside. It’s not about money, it should be about how you feel you can serve the profession, the community and your clients. What is the secret to maintaining a long and happy career in law?

16 LSJ I ISSUE 72 I NOVEMBER 2020

NEWS

DOMESTIC VIOLENCE

Criminalising coercion? Government announces domestic violence inquiry

e NSW Government will establish a parliamentary inquiry into coercive control as it considers whether to criminalise behaviour that is frequently a precursor to domestic violence murders. NSW Attorney-General Mark Speakman also issued a Discussion Paper on 13 October that considers what coercive control is, how such behaviour is currently addressed in NSW, and the potential benefits and challenges of criminalisation. “Creating a coercive control offence would be a complex though potentially very worthwhile reform that could help prevent these homicides,” Speakman said. “ orough research, consultation and careful consideration is crucial to avoid

risks such as misidentifying victims as offenders or capturing behaviour that ought not to be criminalised. “Adapting from an incident-based model of investigation and prosecution to that of a course of conduct would be a significant change to the way our justice system broadly operates. “A new offence may not be the best, or only, way to improve our response to non- physical forms of domestic abuse.” President of the Law Society of NSW Richard Harvey commended the Attorney-General for committing to a detailed look at coercive control and issuing the paper that will encourage input from the profession, key stakeholders and the public.

“ e Law Society is looking forward to drawing on the expertise of the profession and providing a detailed submission on this important, but complex, issue,” Harvey said. “Formalising the process with an Inquiry by a Joint Parliamentary Committee is an appropriate way to give this issue the deep analysis it deserves. “ e release of a Discussion Paper will assist with the comprehensive consultation that is required to consider law reforms relating to coercive control.”

To read the full Discussion Paper, visit: crimeprevention.nsw.gov.au/domesticviolence/ Pages/coercive-control-discussion-paper.aspx

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ISSUE 72 I NOVEMBER 2020 I LSJ 17

Briefs NEWS

RURAL AND REGIONAL LAW

Rural Issues Day: country lawyers celebrated for guidance and care

Country solicitors are helping to decrease the stigma around mental illness by sup- porting their clients during “an extraor- dinarily tough time”, the Law Society’s annual Rural Issues Day has heard. e 2020 virtual event included ses- sions on retaining talent in the profession in regional areas, navigating hardship in a year of disaster and setbacks, and legal ethics for rural practice. e keynote address was delivered by Bronnie Taylor, the NSW Minister for Mental Health, Regional Youth and Women, who thanked rural and region- al practitioners for their increased “pas-

toral care” to clients in the aftermath of the drought, the horror bushfire sea- son and the ongoing challenges of the COVID-19 pandemic. “ e opportunity that has present- ed itself is that people are talking about mental health … the more we decrease stigma, the more opportunity we have for people to put their hand up,” Taylor said. “I am sure that many of you, as re- gional lawyers in the community, are of- ten the people who clients open up to … so you are an important and valued part of the ongoing conversation we are hav- ing in society about mental health.

“As [we] all know, rural and regional NSW have had an extraordinarily tough time in the last few years. Chances are people are at their most stressed and con- cerned when they have a legal problem and they are accessing a legal service. “ ey often turn to you as someone that they trust and, more importantly, someone they are seeking guidance from. I have no doubt many of you would have played more of a pastoral care role than you are usually used to in the pandem- ic. For this I say, on behalf of the NSW Government and on behalf of us all, thank you.”

Know someone with a new position? Email us the details and a photograph (at least 1MB) at journal@lawsociety.com.au

Karla Elias Promoted to Associate (Family Law) Frank Law

Julie Bowker Appointed as Partner Carter Newell Sydney

Karl Maakasa Joined as Partner Barker Henley

SarimAttique Joined as Senior Associate Turner Freeman Lawyers

Deena Palethorpe Promoted to Senior Associate Holmes Donnelly & Co

Jennifer Tassis Joined as Associate Lawyer Cominos Family Lawyers.

Melody van der Wallen Admitted as Solicitor Cominos Family Lawyers.

Chris Leahy Joined as Principal Leahy Lawyers

Christopher Palumbo Joined as Senior Associate Dorter Family Lawyers & Mediators

18 LSJ I ISSUE 72 I NOVEMBER 2020

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