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					Family Court Bulletin
Issue 6 July 2010
Court grants first adoption
In Falconio & Anor & Conchita,1 a decision delivered in December 2009, the Hon.
Deputy Chief Justice John Faulks exercised jurisdiction, pursuant to the Jurisdiction
of Courts (Cross-Vesting) Acts of the Commonwealth and the Australian Capital
Territory (ACT), to grant an adoption.

This was an unusual decision for the Family Court as it is believed to be the first time
that the Family Court has ever granted an adoption.

Adoption proceedings and cross-vested jurisdiction
Under the Family Law Act 1975 (Cth), the Court only has jurisdiction to give parties
leave to commence adoption proceedings,2 but not to grant an adoption. This is a
result of a historical accident.

The Family Court was initially to have jurisdiction to grant adoptions, however this
jurisdiction was never proclaimed. Consequently, if the Family Court grants leave to a
party to commence adoption proceedings, applications for adoption are then
determined by the superior courts of the states and the territories.

As a result of the High Court’s decision in Re Wakim; Ex parte McNally, 3 the federal
courts of the Commonwealth are no longer able to exercise the jurisdiction of a state
Supreme Court. However, the decision in Re Wakim did not affect the ability of the
Family Court in the ACT exercising the jurisdiction of the ACT Supreme Court by
virtue of cross-vesting legislation.

Granting leave to commence adoption proceedings is subject to the Court being
satisfied that it is in a child’s best interests. 4 A person’s parental responsibility ends
once a child is adopted (unless that person is a prescribed adopting parent for the
purposes of the Family Law Act 1975 (Cth)). 5

The facts of the case
Mr Falconio sought to be the adoptive father of his new wife’s (Ms Silvio) children
(aged 14 and 9 years). Mr Conchita, the biological father, initially sought to oppose
Mr Falconio’s application and sought substantial and significant time with the
children. However, after considering reports from the ACT Office of Children, Youth
and Family Support and a family consultant of the Family Court, Mr Conchita
conceded that he did not oppose Mr Falconio’s application.

His Honour determined that it was in the best interests of the children that leave be
granted for the adoption proceedings to occur and that the adoption should be
granted pursuant to the Adoption Act 1993 (ACT). His Honour took into account Mr
Conchita’s attitude towards the children and acknowledgment that he would be giving
up parental responsibility; the geographical impediments to Mr Conchita spending
time with the children, and the minimal amount of time Mr Conchita had actually
spent with the children. His Honour also took into account the nature of the
relationship between the children and Mr Falconio and Ms Silvio and the environment
they could offer the children. His Honour also ordered that the children spend such
time with Mr Conchita as they wished, and for their surnames to be changed to
reflect both Mr Falconio and Ms Silvio’s surnames.
1 Falconio & Anor & Conchita [2009] FamCA 1323.
2 Family Law Act 1975 (Cth) s 60G(1).
3 Re Wakim; Ex parte McNally (1999) 198 CLR 511.
4 Family Law Act 1975 (Cth) s 60G(2).
5 Family Law Act 1975 (Cth) s 61E(2).


From the Chief Justice
I am pleased to report that in May the Government announced its plan outlining the
future structure of the federal court system. The Attorney-General, the Hon Robert
McClelland and Minister for Defence, Senator John Faulkner, announced the
Government’s decision to establish a new federal court, the Military Court of
Australia, under Chapter III of the Australian Constitution. This decision impacts on
the Family Court of Australia and the Federal Magistrates Court of Australia.

Under the new arrangements that have been announced, the Federal Magistrates
Court will be retained and will continue to hear general federal law matters and will
be administered by the Federal Court. Some Federal Magistrates will receive dual
commissions to enable them to hear particular classes of matters in the Military
Court.

A lower tier of the Family Court will be established and commissions in the Family
Court in that division will be offered to Federal Magistrates who undertake mainly
family law work.

We now await the progress of the proposed legislation.

In addition to the announcement on the structure of the federal courts, there have
been other significant changes in the federal judicial system since the last issue of
the Family Court Bulletin. In particular, Chief Justice Black retired as Chief Justice of
the Federal Court on 21 March 2010.

On 10 February 2010 the Attorney announced the appointment of the Honourable
Justice Patrick Keane, formerly of the Queensland Court of Appeal, as Chief Justice
of the Federal Court of Australia. Chief Justice Keane was sworn in on 22 March
2010.

There are many important issues on which the federal superior courts are required to
respond and act, and more often our interests are similar rather than different. I have
already met with Chief Justice Keane to discuss a number of these issues. I look
forward to working with him and wish him well in his new role.

The Family Court has also had three retirements: Justice Warnick from the Appeal
Division, Brisbane Registry; Justice Flohm from the Parramatta Registry; and Justice
Brown from the Melbourne Registry.

I hope that in the near future we will have an announcement about new appointments
for Sydney and Parramatta. Justices Jordan and Waddy, who retired in December
2009, are also featured in the Retirements section of this issue.

The Court has continued to be involved with other courts in legal affairs in our region.
Justices Rose and Fowler represented the court recently in China and India
respectively. Justice Rose has now given several papers in China on processes in
the Family Court, particularly the Less Adversarial Trial. Justice Fowler joined a
delegation of Australian judges who travelled to India late last year to consult with
other Indian judges and administrators.

There continues to be many overseas conferences at which the input of the Family
Court of Australia is regarded as important. In February I attended the International
Judicial Conference on Cross Border Family Relocation in Washington which was
run by the US State Department and the Hague Private International Law Secretariat.
This was a successful conference. Delegates reached agreement on a document
known as the Washington Declaration on International Family Relocation. More than
50 judges from countries including North America, Europe, South America, India,
Pakistan, Australia and New Zealand agreed upon a number of principles about the
determination of international relocation cases.

I also attended the Association of Family and Conciliation Courts conference in
Denver, USA in early June and Deputy Chief Justice will be attending the
International Child Abduction, Forced Marriage and Relocation Conference in London
in early July representing the Family Court of Australia.

The Denver conference, which was also attended by Federal Magistrates Sexton and
Altobelli, had as its theme the vexed issue of parental alienation, or perhaps as it is
better described, rejecting behaviour. There continues to be a heated debate
between various experts in the United States about whether there is a category of
alienation which can constitute a psychiatric condition fitting within the DSM 5 criteria
which experts in Australia have not embraced, and we will watch with interest what
happens in the United States.

Federal Magistrate Altobelli and I presented a workshop in which we explored
whether and to what extent elements of the Less Adversarial Trial could be
incorporated into a trial court with high volume workload. Interestingly it emerged that
some international jurisdictions have incorporated a modified version of the Family
Court’s process into their case management.

The Government’s 2010–11 Federal Budget announced in May has implications for
both the Family Court and Federal Magistrates Court. Essentially, the operational
funding provided to both Courts by the Government will reduce by $6.567m in
2010- 11. This reduction will be achieved primarily by savings from not replacing
some judicial officers when they retire or resign and from the removal of depreciation
funding from all Government agencies to increase transparency around the budget
process as part of ’Operation Sunlight’. The Courts are examining ways in which
savings can be achieved without impacting service delivery. It is something that I will
be monitoring closely.

The Court has responded to the Australian Law Reform Commission’s consultation
paper on family violence. In his speech on 17 May at the launch of National Law
Week the Attorney-General flagged a number of initiatives in which the Courts will be
involved so as usual, it appears that we will continue to have a busy time ahead in
the next few months.
Judgments of interest
MRR v GR [2010] HCA 4
(French CJ, Gummow, Hayne, Kiefel and Bell JJ), 3 March 2010

The parties lived in the matrimonial home in Sydney from 1993 until they separated
in 2007 when they moved to Mount Isa where the father had secured work. In August
2007 the parties separated and the mother returned to Sydney with the child without
the father’s consent.

Proceedings were commenced in the Federal Magistrates Court which resulted in
interim orders being made providing that the mother return to Mount Isa with the child
and the parties have an equal time parenting arrangement pursuant to s 65DAA(1) of
the Family Law Act 1975 (Cth).

From the time the mother returned to Mount Isa to the date of the hearing, the mother
had been required to live in a caravan park with the child on alternate weeks. The
mother said that she could not afford good quality accommodation in any event and
the cheaper rental properties were in ‘rough’ areas. The mother had limited
opportunities for employment in Mount Isa and supported herself from social security
payments and income from casual employment. In contrast, the mother had full time
employment opportunities with her former employer in Sydney.

The Federal Magistrate said that he applied the presumption of equal shared
parental responsibility and considered that it would not be beneficial to the child if the
parents lived ‘thousands of kilometres apart’. The mother appealed to the Full Court
of the Family Court of Australia. That appeal was dismissed on the basis that the
Federal Magistrate adequately considered the reasonable practicability of an equal
time arrangement and thus no appealable error arose.

The mother lodged an application for special leave to appeal against the Full Court’s
decision to the High Court of Australia and special leave was duly granted.

In allowing the appeal, the High Court found that the Court is only empowered to
make an order that a child spend equal time with both parents if such an order is
found to be both in the best interests of the child and reasonably practicable. While
the Full Court of the Family Court acknowledged that the Federal Magistrate ‘did not
expressly address the issue of whether an equal time arrangement would be
‘reasonably practicable’’, the Full Court found that the Federal Magistrate considered,
at some length, the matters under s 60CC in determining what arrangements are in
the child’s best interest. The High Court disagreed with this approach and found that
in applying s 65DAA(1), the Court must be satisfied that both of the conditions are
answered in the affirmative before making an order for equal time. The High Court
said:

Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider
both the question whether it is in the best interests of the child to spend equal time
with each of the parents (par (a)) and the question whether it is reasonably
practicable that the child spend equal time with each of them (par (b)).
It is only where both questions are answered in the affirmative that consideration may
be given, under par (c), to the making of an order.
The High Court took the matter further proclaiming that in the absence of an
affirmative answer to whether an equal time arrangement would be reasonably
practicable, there is no power to make an order for equal time parenting.

Collu & Rinaldo [2010] FamCAFC 53
(May, O’Ryan and Strickland JJ), 25 March 2010

This international relocation case involved a child who was aged four years at the
date of the appeal. It is the first Full Court decision to be handed down following on
from the High Court’s decision in MRR & GR.

The parties met in 2002 and commenced a relationship in 2003. The only child of the
relationship was born in 2005. The parties resided in Sydney for the majority of their
relationship before the mother relocated with the child to Dubai in March 2007 with
the father’s consent. The parties’ agreement was that the mother would live in Dubai
for a period of 13 months.

Before the 13 month period had elapsed, the mother sought an order that she be
permitted to remain in Dubai for a period of approximately two years. This application
was pursued at trial with an alternative proposal that the mother and child relocate to
North Queensland and for the child to spend three months with the father in Sydney.

Prior to the appeal the arrangement in place for the child was that he live with each
parent on a month about basis in Dubai and Sydney. The Full Court criticised that
arrangement as being unsatisfactory.

In light of the recent High Court decision in MRR v GR [2010] HCA 4, their Honours
provided the parties with an opportunity to make further submissions.

The mother’s complaints were summarised into three broad areas:
   1. the mother’s attitude to the relationship of the child and father and her
      capacity to provide for the emotional needs of the child
   2. the trial Judge failing to adequately assess and weigh up all of the relevant
      considerations regarding the best interests of the child, and
   3. the trial Judge failing to adequately deal with the statutory considerations for
      considering whether the child should spend equal or substantial and
      significant time with each parent.

On the first issue the Full Court found that the trial Judge erred in relation to the
various matters that she took into account in forming her view about the mother and
further did not consider, weigh and assess the evidence regarding the best interests
of the child. On the issue of equal time, the Full Court found that the trial Judge was
obliged to undertake what the High Court in MRR v GR (supra) described as a
‘practical assessment’ of whether equal time or substantial and significant time was
‘feasible’. The appeal was subsequently allowed and remitted to for redetermination.

Kostres & Kostres [2009] FamCAFC 222
(Bryant CJ, Boland and Jordan JJ), 15 December 2009

This appeal is concerned with the interpretation of a financial agreement.

Two days before their marriage in January 2002, the parties executed a financial
agreement in order to regulate their financial affairs.
Without repeating the actual terms of the agreement, it is sufficient to note that the
parties’ intention was to isolate their pre-existing assets and that all other assets
which were obtained during the marriage be shared mutually between them.

Throughout the ensuing years of their marriage, the parties acquired a number of
businesses and properties, either in the wife’s name or in her capacity as trustee.
The assets were largely funded by way of loans. On the advice of an accountant a
discretionary trust deed was settled with the wife being appointed sole trustee and
primary beneficiaries consisting of the children from the parties’ former marriages.

In June 2006, by which time the parties’ marriage had broken down, the husband
commenced proceedings in the Federal Magistrates Court seeking orders that the
wife pay him an amount representing one half of the net value of assets acquired
during the marriage. The wife agreed with the proposition put forward by the husband
save for her submission that the business was in her name and therefore should be
treated separately.

The Federal Magistrate found that the real property acquired by the trust was to
remain the wife’s property, however the goodwill of the business was a joint asset
and should be shared equally between the parties.

The husband appealed to the Full Court of the Family Court of Australia and the wife
cross appealed.

The Full Court allowed the appeal finding that the financial agreement was so
ambiguous that it made the parties’ intention impossible to discern. Their Honours
concluded that ‘care in establishing the mutual intention of the parties, and drafting
the terms of the financial agreement with precision assume the utmost importance’. It
is also relevant to note that the Government’s attempt to remedy the strict
compliance test enunciated in Black & Black [2008] FamCAFC 7 did not apply in this
case as it was agreed that no defect in form of the financial agreement was alleged.

Commonwealth Courts Portal and eFiling
Commonwealth Courts Portal (www.comcourts.gov.au)
As of 1 June 2010, there were over 1100 firms registered and over 20 000 registered
individual users.

eFiling – Applications for Divorce
eFiling of Applications for Divorce through the Commonwealth Courts Portal was
introduced at the end of September 2009. Approximately 500 divorces are now being
eFiled each month.

eFiling – Supplementary documents
eFiling of supplementary documents has been in place since August 2008. Since
then, over 14 000 supplementary documents have been eFiled.

XML Uploader
An XML Uploader has been released for divorces. This means that law firms can
upload an application created in their back office system direct to the Portal without
having to re-key the data into our eform.
Direct Debit payments
A Direct Debit facility has been created for law firms who do not wish to use credit
card payments.

Family Court of Western Australia
Family Court of Western Australia eFiling of applications for divorce went live on 27
March 2010 and 58 applications have been eFiled to date.

Divorce locking
The eFiling process was modified in May 2010 so that a signed scanned copy of the
Affidavit of Applicants (eFiling) must be uploaded before the fee can be paid and a
hearing date selected. This was done to resolve the compliance problems
experienced due to non-filing of the Affidavit.

New starred files system to replace bookmarked files
An enhancement to replace the older style Bookmarking system with a more modern
system of Starred Files was implemented in the last release. Bookmarks have been
replaced by stars. If you want to follow particular files, activate the white star by
clicking it. All starred files can be seen under the Starred tab in your Available Files.
To make an orange star inactive, click the star again and it will turn white. Any
existing bookmarks have been converted to stars.

Initiating Application
Work is still progressing on introducing eFiling of the Initiating Application.
Implementation remains planned for the third quarter of 2010.

The Commonwealth Courts Portal Steering Committee is currently reviewing
development priorities including some major enhancements for the next 12 months.

Users prefer after-hours access
Many portal users are ‘night owls’ making the portal’s 24 hour accessibility very
important. The following table shows the number of portal pages being accessed
throughout the evening and night during April 2010:
6pm to 10pm            32 327 pages loaded
10pm to midnight       41 738 pages loaded
Midnight to 8am        18 026 pages loaded


Initiatives and Programs
Translated information reviewed
The Courts have recently reviewed the publications in languages other than English
to incorporate rule amendments and changes to court services.

The Courts currently have 11 publications translated into ten different languages. The
translated fact sheets are summaries of the full English version with simplified
information written in question and answer format. This is the preferred format for
translated information as some legal terms and court processes do not translate well
into other languages.

The provision of translated information is essential to support access to justice for
clients with English as a second language.
Translated information is available online at www.familylawcourt.gov.au>Services for
culturally and linguistically diverse people.

Publications
    Marriage, families and separation
    Before you file – pre-action procedure for financial cases
    Subpoena – information for requesting person
    Enforcement Hearings
    Third Part Debt Notices
    Key Contacts
    Compliance with parenting orders
    Going to Court – tips for your court hearing
    What the Family Law Courts staff can and cannot do for clients
    Do you have fears for your safety when attending court?
    Parenting orders – obligations, consequences and who can help?

Languages
    Arabic
    Filipino
    Greek
    Korean
    Serbian
    Simplified Chinese
    Traditional Chinese
    Spanish
    Turkish
    Vietnamese

Indigenous clients and the Family Law Courts
The Courts have developed new Indigenous information products for clients and staff
to further meet the needs of Indigenous clients involved in family law proceedings.

These information packages were developed in consultation with the Indigenous
Working Group, who is also developing a Reconciliation Action Plan identifying the
steps the Courts will take to build better relationships with Indigenous Australians. A
research project is also underway, which will investigate the impact of the shift in the
provision of services to Indigenous clients previously provided by the Court’s
Indigenous Family Liaison Officers to Family Relationship Centres.

The Indigenous Working Group (consisting of Justice Benjamin, Federal Magistrate
Donald, and Leisha Lister - Executive Advisor to the Chief Executive Officer) is also
considering how to manage applications of parenting orders concerning residence,
contact and specific issues as a result of traditional and customary adoption practices
by Torres Strait Islanders.

A new client brochure ‘Indigenous Families and the Family Law Courts’ is available at
family law registries and can also be downloaded from www.familylawcourts.gov.au
My Beautiful World
Children’s Art Competition
The Family Law Courts’ Children’s Art Competition ran from May to June this year,
with the winners announced during the last week of June. The competition was a
great success, with over 150 entries received from all over Australia.

There were 10 winners who each received a personally engraved MP3 player, with
13 entrants receiving a Highly Commended certificate.


NEW publications
Service Charter
The Service Charters for the Family Court and the Federal Magistrates Court have
been amalgamated into one document. This document is available on the Courts’
websites at:
    www.familycourt.gov.au
    www.fmc.gov.au

Service Commitments
The Service Commitments document is a summary of the Service Charter and has
been developed for display at registries and for distribution to clients.

For more information about either document, please contact Family Law Courts
National Communication on:
    Phone: (02) 6243 8690
    Email: communication@familylawcourts.gov.au


Interesting web facts

www.familylawcourts.gov.au
In 2009–10 the Family Law Courts website was visited 766 120 times. Of these,
518 714 were visiting the website for the first time.

This is an increase from 2008-09 of 177 460 visitors and 120 630 first time visitors.

The top three most frequently viewed Family Law Courts web pages in May 2010
were:
    Forms
    Separation and Divorce
    Divorce forms and kits

The three most common search keywords on the Family Law Courts website were:
    divorce
    Australia
    family

www.familycourt.gov.au
In 2009–10 the Family Court of Australia website was visited 892 360 times. Of
these, 462 233 were visiting the website for the first time.
This represents an increase from 2008-09 of 153 674 visitors and 84 068 first time
visitors.

The three most common search keywords on the Family Law Courts website were:
    divorce
    Australia
    family

The three most common search keywords on the Family Court website were:
    court
    family
    Australia


International Association of Women Judges’ Conference,
Seoul, South Korea
During the week of 10 May 2010 over 400 women judges met in Seoul at the 10th
International Association of Women Judges Conference.

Among the delegates were judges from Afghanistan, Haiti and Nepal. The Australian
women judges arranged for sponsorship of two judges from Papua New Guinea and
one judge from Timor Leste.

As a member of the association, Justice Boland was pleased to be able to attend the
conference. All branches of the Australian judiciary were well represented led by her
Honour Judge Sarah Bradley, the President of the Australian Association and the
Honourable Justice Margaret Beazley of the New South Wales Court of Appeal who
is a member of the executive board of the International Association. The Australian
judges were honoured to be invited by the Australian Ambassador to South and
North Korea, Mr Sam Gerovich, to lunch with him during the conference.

The International Association of Women Judges (IAWJ) is a non-profit, non-partisan
organisation of more than 4000 members at all levels of the judiciary in more than 90
nations. Since being formed in 1991, the IAWJ has attracted membership by women
judges from diverse legal-judicial systems who share a commitment to equal justice
under the rule of law. The Australian branch of the association was formed in 1992 at
the instigation of Justice Jane Matthews and the former Chief Justice of the Family
Court, the Honourable Elizabeth Evatt. Justice Boland was on the organising
committee when the 8th IAWJ conference was held in Sydney four years ago. Chief
Justice Bryant has recently agreed to be the representative of the Federal Courts for
the Australian association.

‘It is a very humbling experience to hear of the work being carried out by members of
the IAWJ in extraordinarily difficult conditions. The Haitian judges told us of the
destruction of their Court, the death of two of their Judges, and their struggle to
maintain the rule of law following the devastating earthquake. It was inspiring to learn
of the achievements one judge in California had brought about with almost no
resources when she was placed in charge of guardianship matters. Her work has led
to the establishment of an Elder Law Centre, social support for the disabled including
those suffering with dementia and an effective and compassionate court process’
Justice Boland said.
Significant papers dealing with matters as diverse as reproductive technology law in
Italy, judicial participation on the International Criminal Court and a transforming
decision of the Delhi High Court dealing with the rights of gay and homosexual
persons were covered in the conference.

The next conference will be held in London in 2012 under the auspices of the new
president of the association Lady Brenda Hale of the U.K. Supreme Court.

Court fees up from 1 July 2010
The Courts have received notification of the biennial increase of the prescribed
Family Court and Federal Magistrate Court fees from the Attorney-General’s
Department.

The new fee schedule applies from 1 July 2010.

Information about the new fees is available on www.familylawcourts.gov.au

Executive Appointment
Mr Richard Foster
Richard Foster has been re-appointed as the Family Court’s Chief Executive Officer.
Richard’s contract has been extended for a further five years.

Vale
George Ernest Lambert
The Honourable George Ernest Lambert, retired Justice of the Family Court of
Australia, passed away peacefully on 26 March 2010. The Court offers its
condolences to George’s family and friends.

Retirements
Justice Warnick
Justice Warnick resigned his commission as a judge of the Family Court on 31 March
2010. Justice Warnick was appointed to the Family Court on 2 September 1991,
having been a member of the bar prior to his appointment. On 12 December 2002,
he was appointed to the Appeal Division. His Honour’s contribution to the
jurisprudence of the court was significant particularly during the post-2006
amendments.

Justice Brown
Justice Brown resigned her commission as a judge of the Family Court on 2 June
2010. Justice Brown was a judge of the Family Court for over 16 years. For many
years undertook responsibility for the administrative functions for the Southern
Region of the Court and through the Chief Justice’s Consultative Committee for the
wider administration of the Court. Justice Brown is widely respected both inside and
outside the Court for her prodigious work ethic, her sound judgment and support of
the Court, particularly the Melbourne Registry.

Justice Waddy RFD
Justice Waddy resigned his commission as a judge of the Family Court on 17
December 2009. Justice Waddy was educated at the King’s School in Parramatta on
a scholarship. He completed a Bachelor of Laws at the University of Sydney in 1962
and became an associate to his Honour Nagle J of the New South Wales Supreme
Court in 1963. Following admission to the New South Wales Bar in the same year,
Justice Waddy practised as a barrister-at-law, becoming Queen’s Counsel in 1988.
After a long and successful career at the bar, he was appointed to the bench of the
Family Court in July 1998. His colleagues will remember his unfailing judicial
courtroom conduct, his dignity and unwavering courtesy in the courtroom.

Justice Jordan
Justice Jordan retired on 31 December 2009 after 15 years as a judge of the Family
Court. Justice Jordan completed a Bachelor of Law at the University of Queensland
and enjoyed 21 years working in law before he was sworn in as a judge of the Court
in 1994.

Justice Flohm
Justice Flohm retired on 29 April 2010, after almost 11 years as a judge of the Family
Court at Parramatta. During this period her honour served for five years as the first
Magellan judge of NSW, as well as six years as the Parramatta case management
judge. On leaving school Justice Flohm continued with classical ballet studies before
heading to Europe where she worked in the fashion industry for several years, as an
executive director of a lifestyle magazine and as an assistant TV film producer. Her
honour completed a Bachelor of Arts in 1978 and Bachelor of Laws in 1981 and was
admitted to practice as a Barrister of the Supreme Court of NSW in 1982, enjoying 17
years working in law before being sworn in as a judge of the Court in 1999.


Further Information
For more information about this publication—including ordering additional copies or
to make changes to your mailing details (including removal from the mailing list)
contact the Family Law Courts National Communication Office.
T (02) 6243 8690
F (02) 6243 8711
E communication@familylawcourts.gov.au

				
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