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Every Issue

Cite as: Jan/Feb 2011 85(1/2) LIJ, p.68

This month's reviews cover a layperson's guide to separation and divorce, family business succession, illegally obtained evidence and environmental law.

Splitting Up

Judy Hogg, Splitting Up: The essential guide to divorce and separation in Australia, 2010, Jane Curry Publishing, pb $24.95.

According to the Australian Bureau of Statistics, there have been approximately 50,000 divorces each year Australia-wide since the late 1990s. In 2009 alone, roughly 20,000 parenting and/or property matters were filed in the Federal Magistrates Court (where the bulk of family law matters are heard in Australia).

With so many people going through the Family Law Courts each year, a book which clearly explains the jurisdiction – both in terms of the law and procedure, but also in terms of what to expect emotionally – is essential. This is particularly so in an area of law that can be more technical than the average person might expect going in.

This has been achieved with Judy Hogg’s Splitting Up. In many respects, this book can be seen as “Family Law for Dummies”. In simple language, the book attempts to explain to the layperson the potential pitfalls of the family law jurisdiction, from making the decision to “split up” with one’s partner through to how a matter is conducted in the Family Law Courts to how to start over again. The book should not be seen as a “do-it-yourself” text or strictly as a guide for litigants in person. Rather, it is a guide to what needs to be done in the various stages of separation and includes chapters on counselling, property, parenting matters, child support, and how a matter progresses through the courts.

A family lawyer, Judy Hogg peppers the book with illustrative examples to assist the reader in understanding the processes and also perhaps in understanding that they are not alone and that others have travelled this path before them.

The Family Law Courts often cite access to justice as a primary focus of the jurisdiction. This involves not just ensuring that the courts are available to the public, but also that the public is aware of its rights and responsibilities. This book can only assist in that endeavour.


Family Business Succession Guide

Sue Prestney, Family Business Succession Guide, 2010, Thomson Reuters (Professional), pb $120.

For many practitioners, business succession planning for owner-controlled businesses is a source of frustration. So often clients resolve to put the issue on their agenda, have a meeting, discuss the subject and create an action plan, only to see the issue fall into the too hard basket or be overwhelmed by the greater immediacy of day-to-day matters. Sometimes advisers can be an obstacle as well, raising complexities rather than offering solutions and finding it difficult to accept the need for a mix of professional skills.

Many publications in the area have not necessarily helped, as they often seem to highlight the skills of the author and accentuate the mystery of this area, or simply focus on that part of the topic that is within the writer’s comfort zone.

Sue Prestney’s book, by contrast, is a breath of fresh air for those people looking for a practical guide through the many complexities of family business succession. It is a book written with an eye for the practical and has a logical sequence to addressing the many issues involved.

The book starts with the interpersonal factors and likely family dynamics, both of the existing business principal(s) and of the expectant or chosen successors, whether within family or within firm or from outside the firm.

The focus then moves to technical issues, concentrating on accounting and taxation issues and the significance of different ownership arrangements.

The book concludes with a series of appendices, many of which are in checklist form.

It is likely that the book will deservedly find two markets – the professional advisor reader and the current or aspiring business principal reader. For both groups of readers, it will be a practical and useful addition to their libraries.

ALLAN SWAN, Moores Legal

Fruit of the Poisonous Tree

Kerri Mellifont, Fruit of the Poisonous Tree: Evidence derived from illegally or improperly obtained evidence, 2010, The Federation Press, hb $85.

“Fruit of the poisonous tree” is an American expression which denotes evidence obtained as a result of illegality, although not directly so.

For example, a confession is obtained as a result of illegitimate pressure or inducements, as a result of which the police find real evidence. Assume further that the only means of connecting the real evidence to the accused is the confession – there are no fingerprints or DNA and the evidence is not found in a place associated with the accused (except by the confession).

If the confession is excluded, what happens to that part of it that relates to the real evidence? Can the police give evidence that they found the murder weapon in the swamp only because it was the accused’s confession that led them there?

This is a difficult issue because it falls at the boundary of two rules – one relating to confessions and the more limited Bunning principle related to real evidence – and requires us, furthermore, to consider why exactly we exclude confessions illegitimately obtained. Is it because they are unreliable or is it because of the breach of human rights involved?

The discovery of the weapon in the place indicated by the accused would seem to remove the first basis for exclusion, but the human rights objections remain unaffected.

This book should be welcomed because it will assist practitioners faced with this difficult area. It contains a useful discussion on an area on which many practitioners stumble.

The level of scholarship is certainly more than sufficient to justify its publication.

The author’s tripartite division of the jurisprudence into British, Australian and American unfortunately results in her not dealing with a major Canadian case, R v Wray [1971] SCR 272.

Another odd omission which cannot be explained in the same manner is R v Beere [1965] Qd R 370, 372.

The book also deals with the status of confessions in cases where an inadmissible confession is confirmed by a later confession, in itself unobjectionable but causally linked with the earlier one.

DR GREG TAYLOR, Law School, Monash University

Environmental Law in Australia (7th edn)

Gerry Bates, Environmental Law in Australia (7th edn), 2010, LexisNexis Butterworths, pb $142.

This book was first published in 1983 and is now in its 7th edition. It has long been the benchmark Australian environmental law text and should be known to everyone who has studied environmental law in Australia in the past two decades.

Unlike DE Fisher’s Australian Environmental Law (Lawbook Co, 2010) that offers a highly theoretical and almost abstract analysis of environmental law, Bates’ text is a more orthodox and workmanlike overview of environmental law in this country.

The book is 779 pages long and is divided into five parts: The Development of Environmental Law: Institutions, Influences and Instruments; Implementation of Environmental Law; Environmental Assessment: Strategic and Project Based; Environmental Management: Protecting Natural Assets and Environmental Values; and Environmental Litigation: Enforcement and Accountability.

The breadth of topics covered, from the United Nations Convention on the Law of the Sea through to the advertising provisions in s52 of the Planning and Environment Act 1987, necessarily means that analysis is often limited. Further, the book suffers from the same affliction as many other Australian texts insofar as the various jurisdictional rules are routinely of little or no application to interstate regimes.

One interesting initiative is the book’s system of providing online updates, which is welcome given the rapidly changing landscape of environmental regulation in Australia.

So while Environmental Law in Australia remains a solid and dependable starting point for someone facing a new environmental legal research task, it is ultimately of limited value to practitioners. None of this diminishes the text’s value as a teaching aid or for comparative analysis for policy makers. For those readers, this book remains arguably the best in the business.



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