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Lack of Family Law reflecting Australia today

With the ingress of many migrants Australian Family Law has not transformed with the times.

A few recent property settlement hearings demonstrated an inadequacy in the Family Law Act 1975 and illustrated how modifications have not maintained a Family Law Act consistent with all the cultures entering recently into Australia post settlement. Migrants can retain assets in their homelands or where they have been.

In a hearing a I heard woman from Lebanon was attempting to identify the assets of her ex-husband in that country. The husband had a block of units near the seaside which appeared to be worth just a few bricks. His attitude was aggressive and the woman's expectation for disclosure frustrated.

In another, a Indian couple had property where again the lack of a similar method to valuing as that of Australia is non-existent. The husband had a property in northern India which was revealed by him to me as being far in excess as to what he admitted. The term "Fair Market Value" as employed here to describe the value of a property here is reported in the Indian newspapers as being perhaps one-fifth of the value of the property. Stamp duty is evaded as the lower the value the less stamp duty is payable. In India property transactions are conducted with a cash consideration for the black money component and perhaps some legitimate money through the conventional method. No database is held as it is in Australia. A record of who owns the property is, as is any encumbrances details.

Common knowledge evidence from Australia is more readily admissible as against that of other countries. Newspaper articles in Australia refer to events which can be reasonably known to the court. When articles in newspapers are deemed to be hearsay the opportunity to have that which is common knowledge in these foreign jurisdictions entered into the court record is challenging.

Is it possible/probable that a lawyer with accreditation in that foreign land's court system can give to the court that common knowledge?. In effect being a expert?

The costs associated with acquiring evidence in a foreign jurisdiction is inordinate when it is simply common knowledge. For instance why should it be necessary to prove that there is a black market economy in Lebanon or India, that the stamp duty avoidance has created a valuing system catering for the avoidance purpose, rather than determining the actual values at which properties are exchanged.

The non-disclosure of property and the extent of weight discretion generally afforded it is an unknown and in our adversarial system is as fickle as the persuasion. In some judgements when doubts on credibility are alive in respect of both parties to a matter the discernment of the facts becomes nebulous.  It is easy to read judgements and feel that it is the reading of the party's behaviour before the court which contributes substantially as to how a judgement is reasoned.

How does one prove to an Australian Family Court judge that something does not exist in another country when it does not exist? The court does not undertake research. It relies on parties creating precedents, at their expense, from which the court relies for it's authorities. Since not all cases go to appeals there is a distortion as to what is reference material. Local common knowledge has become digitised and it is now possible to read on-line what a local in a far off land also reads and holds to be "local" common knowledge. If direct cognition is the absolute standard which applies legal proceedings would be in general stultified. The hearsay rules are the immediate obstacle. How can they be negotiated?

Parliament is possibly the place wherein such change might arise. That is a tedious process and the diversity of the systems from which migrants have come is as numerous as there are nations. Is the Family Law Act favouring a person as a consequence of their origins?

How to overcome having such material which is common knowledge in a foreign nation accepted into evidence is the immediate remedy being sought. Any ideas would be appreciated!

When the law is behind the times justice may be dead on arrival!

What is done for you, let it be done, what you must do, be sure you do it, as the wise person does today that what the fool will do in three days - Buddha
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