Tattoos, HIV, Breastfeeding and The Risk of Harm To The Child

Tattoos, HIV, Breastfeeding and The Risk of Harm To The Child

The controversy in Jackson & Macek [2015] FCCA 1656 focussed on whether the mother should breast feed their child. The parties were each 20 years old and their child was born in 2014 (11 months of age at the time of the interim hearing on 5 June 2015).

Whilst the suicidal ideation of the mother was noted by Meyers J at paragraph [18], His Honour found at paragraph [45] that:

• There is no evidence before the Court that suggested that the mother’s mental health is such that at this time it poses a risk to the child, in that the child will suffer physical or psychological harm from coming into contact with the mother or spending time or in this case living with the mother
• in circumstances where the Court forms the view that the mother will not abuse the child or neglect the child or subject the child to family violence as a result of her mental health issues.

At paragraph [37] His Honour said:
“The Court must consider the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. It is a paramount consideration with primacy over all others, and it is a consideration the Court gives greatest weight of those condensations at s.60CC when determining what is in the best interests of the child, particularly with respect to the injunctive order sought by the father in the proceedings.”

Cotic and Cowan and Impartial Directions To The Jury

Cotic and Cowan and Impartial Directions To The Jury

On 6 October 2003 I unsuccessfully argued an appeal against conviction for a man challenging the partiality of the summing up and directions to the jury of the trial judge at his trial.

The following is an extract from the judgment of Holmes J in that case, R v Cotic [2003] QCA 435, and sets out the relevant issues.

Holmes J
The sole ground of the appeal is that a passage in the learned trial Judge’s summing-up, in which he cautioned the jury against assuming that complainants of sexual offences could be expected to behave in any particular way, rendered the summing-up unbalanced and the trial as a whole unfair.

Contentions of The Appellant
Mr Bowler, the appellant’s counsel, accepted that apart from this passage the summing-up was balanced but the passage itself created, he submitted, an imbalance to the significant disadvantage of the appellant.

It exceeded, he said, the limits of acceptable comment so as to render the trial unfair. The comments tended to suggest a view of the trial Judge of the evidence of the complainant and in a finely balanced case they would have the effect of endorsing or lending support to the complainant’s evidence. That could be taken, Mr Bowler submitted, in the context of an intervention by the learned trial Judge in cross-examination of the complainant to suggest a reason why he did not leave the room when he was found alone with the appellant.

Assessment

• But there was, in my view, nothing in his Honour’s comments which endorsed the complainant’s evidence.
• At their highest, his Honour’s remarks did no more than suggest to the jury that they should avoid preconceived notions of how a complainant should behave; and his remarks were attended by the reminder that the jury was free to approach the matter if they wished.
• His Honour did not at any stage suggest that an acceptance of the complainant’s evidence should follow.
• Indeed it is noteworthy that the caution was followed by his reminding the jury of the inconsistencies within the complainant’s evidence, and as compared with the evidence of other Crown witnesses.
• His Honour’s comments in my view were unremarkable and did not display partiality.
• They were observations of the type which Section 620 of the Criminal Code permits and were made with appropriate circumspection.
• Elsewhere in his summing-up he summarised Crown and defence cases with complete fairness and made it clear that the onus lay on the Crown to satisfy the jury beyond reasonable doubt.
• I do not think that the appeal against conviction is made out and I would dismiss it.

Incapable of Sitting On The Court of Appeal

Incapable of Sitting On The Court of Appeal

Relevant Chronology
On 13 March 2014 Brett Peter Cowan was convicted of killing Daniel Morcombe and sentenced to imprisonment for life, with parole eligibility set after serving 20 years. His appeal against that conviction has been attendant with significant controversy.

On 26 and 27 November 2014 the appeal relating to the conviction and sentence of Brett Cowan was heard before Carmody CJ, McMurdo P and Fraser JA.

In February 2015 Justices McMurdo and Fraser completed their draft judgments and sent them to the Chief Justice.

On 15 April 2015 Chief Justice Carmody had not published his judgment in the Cowan appeal and had a private meeting in his chambers with Hetty Johnston of Bravehearts, a child protection advocate organisation.

On 7 May 2015 Chief Justice Carmody withdrew from hearing the appeal on the basis of apprehended bias resulting from his meeting with Hetty Johnston before he had published his judgment in the Cowan appeal.

On 14 May 2015 Chief Justice Carmody announced that he “will be unavailable to preside in court for a month” from 18 May 2015. He was seeking treatment for back problem.

On 18 May 2015 Carmody CJ issued a certificate under s 31(2) Supreme Court of Queensland Act 1991 (Qld) stating that he is incapable of sitting on these appeals in light of his recusal on 7 May 2015. (See paragraph [4] of the Cowan judgment)

On 21 May 2015 Judgment was delivered in R v Cowan; R v Cowan; Ex parte Attorney-General (Qld) [2015] QCA 87.

Discussion
Whilst the Cowan appeal was on foot the meeting between Chief Justice Carmody and Hetty Johnston should not have taken place. Such a meeting was always going to invite a suggestion of apprehended bias on the part of the Chief Justice.

Now that he has withdrawn from any further involvement in the Cowan appeal the issue of how the appeal should proceed arises:

• Can the Court continue with just McMurdo P and Fraser JA? Or
• Does a new Court need to be constituted and the entire appeal start again?

A Court In Undisputed Crisis

A Crisis of Confidence

In my article, A Crisis of Confidence, I said the process of appointing Tim Carmody QC DCJ to be the Chief Justice of the Supreme Court of Queensland had been compromised and his governance of the Supreme Court had been coloured because the following four (4) important principles no longer enjoyed confidence:

1. The integrity, reputation and standing of the Courts is paramount;
2. The Judiciary must be independent from the other arms of Government;
3. The Judiciary must clearly and unquestionably be seen to be independent from the other arms of Government;
4. Any person who is appointed to lead the Supreme Court of Queensland ought to have the general respect of the legal profession and the Judges of the Supreme Court.”

The Rule of Law

I said in my A Crisis of Confidence article, “Queensland is a democratic society. Within that democracy Queensland has chosen to make the rule of law a constituent part of its justice system and therefore its societal structure. In its simplest form the rule of law endeavours to ensure justice for all according to law by placing no one above the law. Adhering to such a societal structure does not always come easy and is not without its challenges. However a society without rules quickly becomes no society at all.

“The rule of law underpins constitutional power in Queensland. At any given time within a community embracing the rule of law there will be debate as to what is and is not, may or may not be correct and proper for that community. So long as that debate is confined to adhering to the structure that ultimately defines the rule of law, the society can continue to function. Once a decision is taken to go outside that structure, the result can be that the system fails to operate to uphold its own foundational concept, namely the rule of law, and then the system itself undermines its own existence. In that case the society finds itself without any system of rules to guide it as to its behaviour.”

I’m with Maintaining The Rule of Law

On Tuesday 6 January 2015 a Queensland election was called for Saturday 31 January 2015.

On Thursday 8 January 2015 Iain Fogerty was charged with public nuisance after standing next to next to Liberal National Party campaigners in Brisbane wearing an “I’m with stupid” T-shirt. Mr Fogerty is the operator of a parody Campbell Newman Twitter account ( @can_do_campbell ). It was reported (hereand here ) up to ten (10) police, including three (3) patrol cars and a paddy wagon, arrived to arrest Mr Fogerty.

Public Nuisance Offence
The Public Nuisance offence is found in Section 6 of the Summary Offences Act 2005 (Qld)

(1) A person must not commit a public nuisance offence.

Maximum penalty-

(a) if the person commits a public nuisance offence within licensed premises, or in the vicinity of licensed premises—25 penalty units or 6 months imprisonment; or
(b) otherwise—10 penalty units or 6 months imprisonment.

(2) A person commits a public nuisance offence if—

(a) the person behaves in—
(i) a disorderly way; or
(ii) an offensive way; or
(iii) a threatening way; or
(iv) a violent way; and
(b) the person’s behaviour interferes, or is likely to interfere, with the peaceful passage through, or enjoyment of, a public place by a member of the public.

Lottery Wins and The Nature of The Relationship of The Parties at The Time

In Eufrosin & Eufrosin [2014] FamCAFC 191 (2 October 2014) the Full Court of the Family Court of Australia (Thackray, Murphy, Aldridge JJ) dealt with the issue of a lottery win in a Family law property adjustment.

Relevantly the Court found:

• “The [lottery win] which came into the husband’s hands did so at a time when the parties were married and still living together. The moneys for the purchase of the ticket came from the husband’s earnings. I am of the view that a win in the lottery is in no different position to the acquisition of a piece of furniture, a block of land or other asset purchased or acquired by parties during a marriage with funds provided by either or both of them. … Marriage is for most partners an economic union. … I have no doubt that the purchase of lottery tickets was in furtherance of a joint matrimonial purpose and therefore any resultant win in the lottery must be regarded as a matrimonial asset. … Although the ticket was purchased by the husband, it was so purchased with the object and hope of achieving a matrimonial objective and I propose therefore to regard same as a matrimonial asset.“ 1 2
• “… In the ordinary run of marriages a [lottery] ticket is purchased by one or other of the parties from money which he or she happens to have at that particular time. That fact should not determine the issue. Where both parties are in receipt of income and where their marriage is predicated upon the basis of each contributing their income towards the joint partnership constituted by their marriage, the purchase of the ticket would be regarded as a purchase from joint funds in the same way as any other purchase within that context and would be treated accordingly … Where one party is working and the other is not the same conclusion would ordinarily apply because that is the mode of partnership selected by the parties … There may be cases where the parties have so conducted their affairs and/or so expressed their intentions that this would not be the appropriate conclusion …” 3 4
• The source of funds should not “determine the issue” of how a lottery win should be treated for s 79 purposes. 5 6
• What is relevant, is the nature of the relationship of the parties at the time the lottery ticket was purchased.  7
• Regardless of the source of the funds, at the time the wife purchased the [lottery] ticket, the “joint endeavour” that had been the marriage of the parties had dissolved; there was no longer a “common use” of property.
• Rather, the parties were applying funds for their respective individual purposes. 8

1. Anastasio and Anastatsio (1981) FLC 91-093 per Baker J said (at 76,649-76,650) 
2. Eufrosin & Eufrosin (2014) FamCAFC 191 (2 October 2014) per Thackray, Murphy, Aldridge JJ (9) 
3. Zyk and Zyk (1997) FLC 92-644 per Nicholson CJ, Fogarty and Baker JJ (at 82,515) 
4. Eufrosin & Eufrosin (2014) FamCAFC 191 (2 October 2014) per Thackray, Murphy, Aldridge JJ (10) 
5. Zyk and Zyk (1997) FLC 92-644) 
6. Eufrosin & Eufrosin (2014) FamCAFC 191 (2 October 2014) per Thackray, Murphy, Aldridge JJ (11) 
7. Eufrosin & Eufrosin (2014) FamCAFC 191 (2 October 2014) per Thackray, Murphy, Aldridge JJ (11) 
8. Eufrosin & Eufrosin (2014) FamCAFC 191 (2 October 2014) per Thackray, Murphy, Aldridge JJ (11)