Articles & PAPERS
Below are articles and papers, written by Mark Hanna unless otherwise stated.
Peruse at your leisure.
HELL HATH NO FURY LIKE A BABY SCORNED: HOW ‘BABY GAMMY’ BECAME THE SYMBOL OF EVERYTHING THAT’S WRONG WITH SURROGACY
How wrong can commercial surrogacy go? What happens when a baby ends up in the protection of a convicted paedophile?
Baby Gammy an Australian Judge had to decide…
A paper presented to the LAWASIA Golden Jubilee Conference 2016…
TESTAMENTARY FREEDOM. DOES IT EXIST?
Can you write a will and have your wishes executed?
In this paper presented to the LAWASIA 2015 Annual Conference, Mark Hanna examines the situation in Australia and throughout the region.
Boat People and the sinking of Siev X – a book review by Mark Hanna in ‘Civil Liberty’, magazine of the NSW Council of Civil Liberties September 2005 (see page 29)
A Certain Maritime Incident – the sinking of SIEV X provides a compelling and engaging examination of an incident whose importance in Australian political history should no be underestimated…
David beats Goliath in High Court Showdown February 2010 – re Kirk v Industrial Relations Commission of NSW.
Picture this: experienced postie on his rounds drives his motor scooter knowingly and inexplicably straight through a major highway intersection, where the lights are red. Unsurprisingly he is killed. His employer is then criminally charged for violations of Occupational Health and Safety law…
Canberra Times 5 May 2010, Article by Jenna Hand Drink Driving Public Servant was ‘tired and had not eaten’.
A young public servant had been working too hard to eat properly on the day she was caught drink-driving, a Canberra court has heard. Anastasiya Vdovychenko, 23, had only eaten a light breakfast and grabbed a sandwich for lunch on Thursday, January 14, when she was breath-tested on Belconnen Way in Aranda shortly before midnight…
South Sydney Herald, Article on Wills: ‘Good Will Week’
Flying overseas soon? Been divorced? Changed relationships? Own your own house or have a mortgage? Have children? Chances are you are one of the 45 per cent of Australians who don’t have a will. Maybe you don’t think you need one. Or don’t figure on dying soon! Who does? Perhaps you should take the opportunity during Good Will Week, August 5-11, to re-think your position and protect those you love…
South Sydney Herald Article on Children and Divorce: “What Happens to the Children?”
Sarah of Chippendale asks: “My partner and I have separated. I have taken the children and want them to stay with me. How can I formalise this arrangement? What rights do I have?”
The question that Sarah asks is all too typical. However, there is no easy answer, especially if the two parents cannot agree between themselves on the living and other arrangements for their children, post separation… Read more
CAN A COUPLE BE MARRIED & DIVORCED TO EACH OTHER AT THE SAME TIM?
Surprisingly the answer may be YES!
A recent case reported under the name of Jasmit & Jasmit in the Federal Circuit Court illustrates the perils of international divorce litigation.
Mr Jasmit and his wife were both born in India. He applied for divorce in Australia though they had married in India in 2011. Both parties had lived together in India for a month, then in Australia for three months. By then Mr Jasmit considered the marriage over and his wife had returned to India.
Mr Jasmit applied for a divorce here because he was entitled to do so, having lived in Australia for 12 months before he filed the application and intending to live here indefinitely.
Mrs Jasmit did not want a divorce at all, but she especially did not want an Australian divorce. She had filed her own application in India for restitution of conjugal rights, spouse maintenance and to try to stop Mr Jasmit from leaving India. He got wind of this, and left India before any documents could be filed and served on him.
Her Indian application was filed before his Australian application.
The judge was then faced with two parties each wanting different orders in relation to the same marriage in different countries. Under Australian law, the husband was entitled to proceed with his divorce application unless the wife could show that Australia was a clearly inappropriate place for the case to be conducted.
Her arguments were:
- An Australian divorce would not be recognised in India so that she might be divorced in Australia, a country that she would not live in, but she would still be married in India, a country in which she was going to stay. This is known as a “limping marriage”.
- She could not come to Australia to fight the Australian case because she did not have any money and could not get a visa. On the other hand Mr Jasmit could come to India because he was an Indian national and he had the money.
- The parties began their relationship in India, married in India, and separated in India and spent very little time in Australia.
The husband was not represented by a lawyer and the wife not represented or present at all. The judge had to work out for himself what the law of India was, which he did by doing diligent research online. He was able to conclude that, as the wife said, India would not recognise the Australian divorce and she would still be married under Indian law. The judge concluded that Mrs Jasmit would suffer hardship from an Australian divorce. Mr Jasmit could try to get a divorce in India.
What apparently swayed the judge to decide that Mr Jasmit should have his Australian divorce was that Mr Jasmit might not be able to get an Indian divorce at all, that he could certainly get a divorce only in Australia. He should have the benefits and protection of Australian law.
He therefore concluded that Australia was not a clearly inappropriate forum despite the hardship and injustice that his decision would cause to Mrs Jasmit. He granted the divorce.
Acknowledgement and thanks to Max Meyers, the author of the article “Married or Not, Depends on where you live”. This is an edited version of that article.
For advice on Divorce and other Family Law issues, contact Mark Hanna Lawyers.