European law to reform UK business rules

Britain’s new Human Rights Act will change centuries of British legal theory by gradually incorporating into British law the 1949 European Convention on Human Rights (ECHR).

The likely effects on British commercial and corporate law are not yet clear.

The Convention is applied in the European Court of Human Rights, and is resorted to by British or other European applicants when fundamental rights are allegedly infringed and appeals in domestic law have been exhausted.

In 1996 the Court ruled that the British trial of Ernest Saunders, chief executive of Guinness, on financial charges was unfair. The Court’s reason was the use of pre-trial evidence given by Saunders in 1990 to British Board of Trade inspectors without the right of silence.

The Court has no power to impose decisions and can embarrass governments and defendants but not coerce them.

Neither is this system part of the EU. The ECHR and the Court are separate from the EU, and the only connection is an EU agreement which states that the ECHR will be “respected”. This is unenforceable and thus virtually meaningless.

The UN has a similar document to the ECHR called the International Covenant on Civil and Political Rights (ICCPR). This is part of public international law and all nations which have signed it are supposed to abide by it.

In reality, it is unenforceable and only resorted to for political reasons such as the present war crimes tribunals in the former Yugoslavia. It has no place in British law.

The Human Rights Act recently passed by Blair’s government takes the important step of gradually incorporating ECHR into English law.

This means that instead of going to a powerless court staffed by foreign judges in a process that can take up to ten years, UK citizens will be able to ask their own High Court judges to decide if the Convention has been breached.

Although judges will lack the power to contradict parliament’s wishes, they have the power to interpret all laws in line with the ECHR and indicate those Acts of parliament that conflict with it.

The judicial tradition in England suggests that judges will not hesitate to criticise government if they have the authority to do so.

The new Human Rights Act turns centuries of legal theory on its head. Britain has always adhered to “residual rights theory” which essentially means that whatever is not outlawed is acceptable.

Now the idea of a “right” is placed first, and all other legal consequences flow from it, as in most European civil law traditions.

This is quite alien to English legal thinkers who assert that one needs laws before rights in order to know what the rights can be.

Secondly,it will change the structure and content of all UK laws. Existing laws now must be interpreted consistently with the ECHR.

Judges were previously restricted in how they could read legislation, but now they have more scope to challenge Parliament.

New rights will also be introduced. For example, the ECHR includes a right to freedom from religious discrimination, but there was no such right in English law previously.

There is no doubt that the new Act will have important repercussions for business in the UK. Individuals or organisations will not only be able to sue central and local government, but all public bodies will be susceptible to challenge. The interface between business and government or regulation will be a potential arena of conflict.

Various business bodies must abide by the new legislation. These include tribunals and disciplinary panels of various organisations such as the Advertising Standards Authority, the Take-Over Panel, the Department of Trade and Industry (DTI), and privatised utility companies such as British Gas.

It will also affect “mixed enterprises”, the public enterprises in the form of limited companies in which the government owns shares.

One significant impact of the legislation will be on commercial crime investigations.

Presently, executives are obliged to answer questions from the DTI or other investigative bodies during large-scale fraud investigations.

In the past such answers were used in trials. This happened at the trial of Ernest Saunders during the Guinness scandal. The European Court later condemned this practice as an infringement of the right to a fair trial. It is likely that under the new law people will not be obliged to answer questions during such investigations.

Disciplinary proceedings will also be significantly affected. Tribunals regulating the legal profession and other self-regulating organisations in the City will feel the new pressure.

The ECHR guarantees a fair trial and a public hearing by an impartial tribunal. In tribunals there is presently no right to silence, and the burden of proof is often placed on the defendant.

Military Courts Martial have already been declared unfair by the European Court and there is little doubt that other tribunals will follow.

Major city business institutions whose disciplinary proceedings are almost always held in private will probably have to change.

As many individuals may not wish to broadcast their problems, it seems likely that individuals will be given a choice between a private and a public hearing. This will change the way disciplinary proceedings are conducted.

British business will also be affected by several new rights enshrined in the Act. For example, there will be a right to freedom from religious discrimination which might affect employment practices in relation to holy days and religious holidays. More importantly, for the first time in Britain there will be right to privacy, which will be crucial to the media. The main press may be exempt, but the Act would have to be observed by the BBC and other public organisations.

The new right to privacy is long overdue. It may be interpreted to cover non-public media organisations. The press may be brought within the reach of the new law. An individual may invoke a right to privacy. Another possibility is that the courts will be bound to interpret the common law to include a right to privacy.

Thus the new Human Rights Act may not bring a “quiet revolution” in English law, but a noisy one.

Large businesses and public organisations will have to closely watch future developments, because it is by no means clear exactly what the implications of the new Human Rights Act will be for commerce in the UK.

Commercial aspects of Italian law

Vincenzo Sinisi As with most other Western European countries, Italy has a civil law system. The basic rules governing contractual relationships are embodied in the Italian Civil Code which was enacted in 1942. Although these laws have not been substantially modified by the legislature during the past 50 years, Italian courts have been flexible in die interpretation of the Code’s provisions. Generally, the application of Italian Civil Code and the implementation of new legislation have reflected the changing needs of Italian society.

This discussion will focus primarily on “domestic law,” meaning the law contained in the Italian Civil Code. However, a lawyer drafting any contract which will be executed by Italian residents or in Italy should be aware that there are various international conventions which may be applicable. The most important conventions are:

The Treaty of Rome. This treaty was the founding document of the European Economic Community. Specifically, Italian contracts may be subject to the antitrust provisions contained in Articles 85 and 86, as well as pertinent regulations as they are interpreted and applied by current case law.

The United Nations Convention on Contracts for the International Sales of Goods. Effective in Italy since Jan. 1, 1988, this convention governs contract formation, obligations, risk allocation, and remedies. It applies to contracts for the sale of goods between parties whose places of business are in different countries.

Jurisdiction

The provisions regulating the choice of law, as well as other rules regarding private international law issues, are set forth in the “Preliminary Provisions to the Civil Code” (Disposizioni preliminari al codice civile). Article 25 of the Preliminary Provisions sets forth three criteria to determine the law governing a contractual relationship: nationality, place of formation, and agreement of the parties.

The first criterion is used for contracts executed by parties sharing the same nationality. In this case, the law governing the contract is that of the country of shared nationality. The second criterion refers to the place of formation of the contract and is used when a contract is entered into by parties of differing nationalities. Both of these criteria may be superseded by an agreement between the parties as to the governing law. However, there should be a logical connection between their choice of law and the transaction, especially with parties sharing the same nationality.

The parties to a contract may, indirectly, determine the law which will govern the formation of a contract. Article 26 of the Preliminary Provisions states that the formation of an instrument, whether or not contractual, is governed by the law of the place where the instrument is formed or, alternatively, by the law that governs the substance of the instrument. Thus, the parties may apply their choice of law with respect to the substance of the agreement to determine the validity of the formation of the contract.

Law No. 613 of Oct. 14, 1985, implementing the EC Convention of June 19, 1980 on the Applicable Law for Contractual Obligations, reiterates that parties have the liberty to choose the applicable law for their contractual obligations. The main exception to this right is that the parties cannot avoid the mandatory provisions of Italian law by selecting the laws of a country which has no minimum contacts with the parties or the dispute. In such an event, the laws of the designated country which lacks such minimum contacts would prevail only to the extent that such laws did not conflict with the mandatory provisions of Italian law. The above exception would not apply where the designated state had sufficient minimum contacts.

The contracting parties are limited in their choice of law by Italian legal principles governing the protection of public welfare. An Italian court would not enforce a provision of foreign law or a contractual provision, even if valid under the law chosen by the parties, if its enforcement would violate a fundamental principle of Italian public policy.

Choice of Forum

The Italian Code of Civil Procedure does not provide parties with as much flexibility with respect to the choice of forum. The parties to a contract may avoid the jurisdiction of the Italian courts and submit a contractual dispute to a court of the jurisdiction of their choice only if the parties are non-Italians or, in the event one of the parties is Italian, if this party is neither a resident of, nor domiciled in Italy (Article 2 of the Italian Code of Civil Procedure). The scope of this rather strict regulation is limited by the provisions of the Brussels Convention on Jurisdiction and the Enforcement of Judgments, Sept. 27, 1968, as amended, which is in force in all EC countries. According to Article 17 of die Convention, parties to a transaction may choose another signatory country (i.e., another EC country), as the competent forum, provided that at least one of the parties is domiciled in a signatory country and that the agreement does not conflict with the Convention’s jurisdiction provisions. These provisions state that the exclusive forum for disputes regarding real property, status of a corporate entity, public records, trademark, copyright and patent, and enforcement of judgments is the place where the matter in controversy is located.

Contract Principles

One of the basic principles of Italian contract law is that of leaving the parties free to govern their economic relationship. The Civil Code contains provisions governing general contract principles and also provides for specific types of agreements including sales contracts, agency agreements, lease contracts, loan agreements, and insurance agreements. The Code contains standard terms which facilitate drafting and performance. However, most rules may be modified by agreement between the parties.

Italian contract law also dictates certain requirements designed to protect a party in a weaker bargaining position or with less experience. For example, standard contracts prepared by one party which modify certain provisions of the Civil Code must provide for separate written approval of the modifications by the other party. These provisions include modifications on limitations of responsibility, the right to terminate or suspend the agreement, limitations on the right to raise objections, restrictions on relationships with third parties, automatic renewal or extension of the contract, arbitration clauses, and choice of forum.

Another protection which has recently been introduced in Italy is that of the “cooling off” period, which permits a customer who has signed a door-to-door salesman’s contract to cancel the contract within a certain period of time after its execution. Furthermore, any such contract must contain a warning that cancellation is permitted in this period. In the event the contract does not contain such a warning, the customer has the right to cancel the contract even after this time limit.

The rules governing the valid formation of a contract not executed simultaneously by the parties are set forth in the Italian Civil Code. An offer is deemed accepted when the offeror has received an acceptance at the place and in the manner indicated. This is normally at the offeror’s place of business or domicile, but the offeror may request specific formalities for a valid acceptance. An important point to note is that an acceptance which has terms even slightly different from the terms of the offer is considered a counter offer. Additionally, a contract is concluded when the offeror has received the acceptance, not, as in the United States, when the acceptance is sent. This point is particularly important with respect to international contracts, because, as noted above, the law governing a contract is, in the absence of an agreement to the contrary, the law of the place where the contract was concluded.

In theory, parties to a contract are free to determine the form of their agreement. In practice, however, this liberty is limited. Initially, the Civil Code requires that certain contracts be in writing, including contracts relating to the creation or transfer of rights to real property, long-term leases, and certain corporate documents. Furthermore, of those contracts not required to be in writing, the existence of only those with a value of less than 5,000 lire (approximately $4.35 at an exchange rate of 1,150 lire to one dollar) may be proven by oral testimony. Certain exceptions do exist. An exception is granted, for example, if the party asserting the existence of a contract produces some written documentation, originating from the other party, which evidences that a written agreement was entered into between the parties. In any event, upon consideration of the circumstances of the case, courts have discretion to permit oral testimony relating to the existence and contents of a contract.

Agency Agreements

Commercial agents have long enjoyed a protected status under Italian legislation. They may operate as self-employed persons carrying on their own business independently or on behalf of a principal. In either case, an agent has certain guarantees in the event of termination. Throughout the duration of an agency contract, a principal must make a contribution to an agent’s insurance fund (ENASARCO) in order to provide sickness, termination, and pension benefits.

Upon termination, the agent is entitled to compensation for the termination itself and for the clientele already provided to the principal. The termination payment comes from the ENASARCO fund and the compensation for clientele is based on the annual value of clientele serviced by the agent. This method has the virtue of providing certainty in calculating the compensation due. However, the situation has recently been complicated by the implementation of a new EC Commercial Agents Directive. The Legislative Decree that introduces the Directive (Italian Law No. 303 of 1991) adopts the option of compensation but without stipulating a clear formula. It also does not preclude further claims for damages arising out of termination. It may be that the practical result will be similar but there will be some confusion during the first months of application of the new law, which will come into effect on Jan. 1, 1993.

Distribution Agreements

Contracts which govern the relationship between manufacturers and distributors or wholesalers are not regulated by any special rules of law. Therefore, they are subject to the ordinary provision of the Italian Civil Code relating to contracts. Most distribution agreements operate by repeated sales of stock to the distributor, who may or may not be bound by a designated territory, exclusivity, competition, or confidentiality. They may operate by way of agency sale, but this is uncommon since it would not be favorable for a manufacturer to risk creating an agency relationship. There will be no compensation upon expiration of the contract unless otherwise stipulated, but there will be damages in the event of breach by either party.

The major limitation on distribution agreements, as well as franchising operations, is that they must not offend the rules against unfair competition. As anywhere else within the European Community, distributors in Italy must respect the principles of Articles 85 and 86 of the Treaty of Rome. They must also comply with the parallel rules of Italy’s own antitrust legislation.

The extent to which Italy’s antitrust legislation will be applied remains unclear. Although Italian law contains the EC prohibitions against competition restrictions, the EC block exemptions do not exist in Italy. Block exemptions permit conduct that would otherwise violate competition rules and are an essential part of the EC structure of distribution and franchising agreements. The pronouncements of Italy’s Competition Authority on this subject have not clarified the situation. It is probable that the Authority does not want to concern itself with agreements which comply with conditions equivalent to those of the EC block exemptions. On the other hand, any such unreported agreement could be rendered invalid if the Authority were to investigate. Though it would be prudent to report automatically all but the most minor agreements, very few enterprises actually do so.

Mobil, Infodata offer online environmental info – Infodata Systems Inc uses Inquire/Text interface for EarthLaw data base on domestic laws and regulations – Newsfront – Brief Article

Environmental, health and safety laws are contained in a new online system developed jointly by Mobil Corp., Fairfax, Va., and Infodata Systems, Inc., Falls Church, Va.

The Infodata Inquire/Text full-text retrieval package is the basis for the software interface and allows users of the system to query several online environmental databases from one screen.

Priced at $120,000 annually, the EarthLaw system will initially include domestic laws and regulations and later offer access to international data.

The Effect of Divorce on Children

Family & Consumer Resources
Call your county Extension office
for more informtion
Most divorcing parents are very concerned about their children’s
reactions to their separation and divorce. They want to know, “Will
my child grow up to be healthy and happy?”
Sociologists and psychologists are just beginning to provide reliable
information about the effects of divorce on children. There are a
number of important factors. Research shows that the effects depend
on the age of the child at the time of divorce. It can also depend on
the child’s gender and personality, the amount of conflict between
parents and the support provided by friends and family.
Age of children
We know little about the effects of divorce on children younger than two or three years of age. Young
children do not always suffer if a divorce occurs. However, problems may occur if a close relationship or
bond between a parent and child is broken. Parents should agree on parenting and childcare
arrangements so the child does not grow up experiencing conflict between his or her parents.
Infants
Infants may not understand conflict, but may react to changes in parent’s energy level and mood. Infants may
loose their appetite or have an upset stomach and spit up more.
Preschool children
Children from three to five years of age frequently believe they have caused their parents’ divorce. For example,
they might think that if they had eaten their dinner or done their chores when told to do so, Daddy wouldn’t
have gone away. Preschoolers may fear being left alone or abandoned altogether. They may show baby-like
behavior, such as wanting their security blanket or old toys, or they begin wetting the bed. They may deny that
anything has changed, or they may become uncooperative, depressed, or angry. Although they want the security
of being near an adult, they may act disobedient and aggressive.
School-aged children
Some psychologists believe the adjustment to parental divorce is more difficult for elementary school children
than for younger or older children. School-age children are old enough to understand that they are in pain
because of their parents’ separation. They are too young, however, to understand or to control their reactions to
this pain.
They may experience grief, embarrassment, resentment, divided loyalty and intense anger. Their ability to
become actively involved in play and activities with other children may help them cope with their family life
situation.
The Effects of Divorce on Children
Children this age may hope parents will get back together. Elementary
aged children may feel rejected by the parent who left. They may complain
of headaches or stomachaches.
Adolescents
Teens also experience anger, fear, loneliness, depression and guilt.
Some feel pushed into adulthood if they must take responsibility for
many new chores or care of siblings. Teens may respond to parents’
low energy level and high stress level by trying to take control over
the family. Others feel a loss of parental support in handling emerging
sexual feelings. Teens also may doubt their own ability to get married or to stay married.
Teens may understand the causes leading to their parents’ separation. Their ability to remember the
conflict and stress of the divorce may interfere with their ability to cope with the changes in their family.
They may also feel pressure to “choose” one of their parents over the other, or to fault one parent over
the other for the “cause” of the divorce.
Gender effects
Researchers are now finding that boys raised by fathers and girls raised by mothers may do better than children
raised by the parent of the opposite sex. School age boys living with their fathers or in joint living arrangements
seem to be less aggressive. They also have fewer emotional problems than those boys who live with their
mothers and have little or no contact with their fathers. Girls raised with mothers tend to be more responsible
and mature than girls raised by their fathers.
However, the children’s adjustment following a divorce has more to do with the quality of the parent-child
relationship than with the gender and age of the child.
Helping children adjust to divorce
Although painful, discussing the separation and divorce with your children will strengthen your
relationship with them. It will also maintain their trust in you. Sharing general information is appropriate
when talking with younger children. Adolescents will want more details. Be sure to let them know what
the future holds for them. They will want to know what their relationship will be with both parents.
The most important factor for children’s well being seems to be limiting the amount and intensity of
conflict between parents. Minimizing the conflict and hostility between parents following the divorce
can contribute to the child’s growth. Agreement between the parents on discipline and child rearing, as
well as love and approval from both parents, contributes to the child’s sense of well being and selfworth.
Although joint living arrangements have many benefits, recent research suggests there may be times
when there are drawbacks to this arrangement. Preschool children may think they are being punished
when they are moved from one household to another. They feel that they are sent away because they are
naughty.
Older children may dislike this type of arrangement if it intrudes on their daily lives. Some parents in
joint arrangements fight with each other because they are in constant contact. Their children suffer as a
result. Successful joint parenting requires regular communication and cooperation that may be difficult
for parents who don’t get along. If there is a very high level of conflict or violence between the parents, then a
joint living arrangement may not be in the best interest of children.
Day-to-day involvement of both parents in their children’s lives is the clearest way of letting children
know they are loved and valued. A parent who lives in a different town or state can still keep in close
touch with his or her children. Letters, e-mails, phone calls, tape-recorded messages and sharing
paperwork and artwork done in school are ways parents and children can keep in contact.
Children of all ages fantasize that their parents will get together again.
This may be particularly true when parents are successfully co-parenting.
Be clear with the children about the finality of the divorce, and discourage
their attempts to get you back together.
If possible, limit the number of disruptions children must handle during
separation and divorce. For example, try to keep the child in the same
school, childcare facility, home or neighborhood.
Talk to children about your concerns related to the divorce. This will help them understand what is
happening.
Develop positive ways to handle your stress. For example, exercise, eat nutritious food, spend time with
friends or take up a hobby. If you feel you are under too much stress and may hurt your children, ask for
help immediately. Call a crisis hotline, or your former spouse, a friend or relative and ask for help.
Turn to relatives and friends for support. Don’t rely on your children to meet your needs for
companionship and affection. Take care of yourself so you can take care of your children.
Be sure to let your children see the positive ways you use to cope with stress. This helps them
understand that they must also find positive methods to handle their feelings. Suggest activities they
might do to feel better. Playing with friends, joining a club, taking up a hobby, or reading can be helpful
in reducing stress. Perhaps there are some activities, such as going for walks, that you and your child can
do together.
Practice a kind, but firm, style of discipline. Accept children’s feelings of anger. Help them find
acceptable ways of expressing this anger without hurting themselves, other people, animals, or property.
Provide the nurturing and love that your children need, while setting firm limits on aggressiveness and
other inappropriate behavior.
Adult friends and family members can provide emotional warmth, reassurance and comfort to your
children. They can teach them new skills and activities and act as role models. They can also let children
know that they are important and valued.
Counseling with social workers, psychologists, marriage and family therapists, or psychiatrists can help
some children. Many schools and religious organizations also provide support group sessions. In these
situations children can explore their feelings and learn how other children from divorced families cope.
It often takes two or more years for children to adjust to their parents’ divorce. Through love,
understanding and keeping in close contact with your children, you will help them grow into welladjusted
and productive adults.
Sources:
DeBord, K. (1997). Focus on kids: The effects of divorce on children. North Carolina Cooperative Extension Service.
Hughes, R., & Scherer, J. Parenting on you own. University of Illinois at Urbana-Champaign Cooperative Extension.
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Original fact sheet developed by Mary W. Temke, Extension Human Development Specialist,
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Updated 5/06 by Emily Douglas, Extension Family Education & Policy Specialist
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(603) 527-5475 (603) 539-3331 (603) 352-4550 (603) 788-4961 (603) 787-6944
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(603) 225-5505

Remember the Kids

PM-1638 / January 1996
divorce matters
Among the first questions parents must
answer in a separation or divorce are how,
when, and what to tell their children.
Because telling children may be painful,
parents could be tempted to delay this
task. It is usually better for children,
however, to know about the decision
immediately, and before a parent moves.
The way this information is presented can
set the tone for a child’s response. If
possible, both parents should tell each of
their children about the divorce at the
same time.
Although individual response may vary,
parents need to know that children will
be anxious and worried about what this
situation means. They need to think
about several questions.
What do children
need to know?
• They did not cause the divorce.
• Neither parent is rejecting them.
• They still have a family even though
their parents will no longer be married.
• Their parents will love them forever,
even though their feelings for each
other have changed.
• Their parents will continue to take care
of them.
Talking with children
Tips for Helping Children Through Divorce
• Be as honest with them as possible.
• Acknowledge their feelings.
• Discuss upcoming changes with them.
• Give them reassurance and a sense of security.
• Be fair when discussing their other parent.
• Provide them as much stability as possible.
• Support and encourage their individual
interests.
• Trust their ability to adapt.
• Tell them both of their parents love them.
• There is a reason for the divorce.
Parents should agree on an explanation
in advance, remembering that too many
details may confuse children.
• Some things will stay the same and
others will change. Common questions
children might ask are who will they
live with, when will they see the other
parent and family members such as
grandparents, and where will they go to
school.
• Children need to know their parents
will consider their feelings when
making important decisions.
• Because divorce is upsetting to everyone,
they need to assure their children
that things will work out and life will
improve.
How can parents help
children during a
divorce?
Following is a list of ways you can help
your children survive your divorce.
Check off the ones you have done and
circle the ones you plan to do.
Reassurance
q Assure your children that the divorce
was not their fault.
q Assure your children that both
parents love them.
q Tell your children that it’s OK to feel
sad because they miss their other
parent.
Stability
q Maintain the individual relationships
you have with each of your children.
Encourage the other parent to do the
same.
q Stick to a daily routine with your
children.
q Make changes in your children’s lives
slowly, letting them discuss these
changes with you. Reward your
children for their efforts in making
these changes.
Encouragement
q Encourage your children to play with
friends and participate in other ageappropriate
activities.
What don’t children need
to know?
• Unless the other parent is a genuine
threat, children shouldn’t know anything
that might negatively affect that
relationship. Parents need to be truthful
with their children, but should avoid
discussing issues such as money or
extramarital affairs with them.
What do children worry
about?
• Children worry about the parent who is
leaving: Where will Dad live? How will
Mom manage? Will Dad be safe? Will
Mom be comfortable and happy?
• Children worry that they will be forced
to take sides by their parents, grandparents,
or other family members.
• Children worry that they will have to
choose one parent over the other.
• Children worry about how family
occasions such as birthdays and holidays
will be celebrated.
• Children worry about disrupted routines.
Who will take care of them when
they’re sick? Who will take them to
soccer practice or piano lessons? Who
will sign their report cards?
Parents should ask their children what
they are worried about, recognizing that
children might not be able to identify
their concerns initially.
What can parents do to
reassure children?
• Once parents have identified their
children’s concerns, they should try to
respond honestly to them. Important
decisions such as living arrangements
should be shared as soon as they are
made.
q Encourage your children to continue
to pursue their interests.
Fairness
q Do not ask your children, either
directly or indirectly, which parent
they love more.
q Be fair in sharing your children’s time
with their other parent.
Honesty
q Acknowledge that your children may
want you and your former spouse to
reunite. Do not encourage or support
this wish.
q Talk with your children honestly
about any changes that will affect
them before they occur.
Support
q Support your children’s need to visit
their other parent.
q Support your children’s desire to love
both of you. Tell them it’s OK.
Security
q Don’t use your children as a counselor
or source of emotional support.
Seeing parents needy and dependent
may make children feel insecure. Find
an adult who can fulfill these needs
for you.
q Remind your children that you and
your former spouse will still take care
of them.
Trust
q Show your children that you trust
their ability adapt to these changes.
What shouldn’t parents
say?
Following is a list of destructive remarks
that you should not make to your children.
If you find yourself saying words
like these, stop and think about how they
might affect your children. All of these
remarks raise fear and anxiety.
• “If you don’t behave, I’ll send you to
live with your father.”
• “You’re lazy/stubborn/bad tempered,
just like your mother.”
• “I could get along better here by
myself.”
• “If you weren’t here, I could…”
• “Sometimes I wish I’d been the one to
skip out.”
• “Your father put you up to saying that.”
• “Your mom doesn’t love any of us or
she wouldn’t have left us.”
• “You can’t trust him.”
• “She was just no good.”
• “If he loved you, he would send your
support checks on time.”
• “If your mother is five minutes late
again, you’re just not going with her.”
• “If you don’t like what I buy you, ask
your father to do better.”
• “Who would you really rather be with,
Mommy or Daddy?”
• “What is your mother saying about
me?”
• “Now that you’re the little man/little
woman of the house…”
• “Someday you’ll leave me too, just like
your father. Promise me that you’ll
never leave.”
• “You’re all I have. You’re the only
person I can rely on.”
• “Over my dead body!”
. . . and justice for all
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Issued in furtherance of Cooperative Extension
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References
Wallerstein, Judith S. and Joan Berlin
Kelly. 1980. Surviving the Breakup: How
Children and Parents Cope With Divorce.
Basic Books.
Wallerstein, Judith S. and Sandra
Blakeslee. 1990. Second Chances: Men,
Women and Children A Decade After
Divorce – Who Wins, Who Loses – and
Why. Ticknor & Fields, N.Y.
Be sure to read more publications in
the “Divorce Matters” series:
• Talking with children (PM-1638)
• Visitation dos and don’ts (PM-1641)
• Coping with stress and change (PM-
1637)
• A child’s view (PM-1639)
• Talking with your child’s other
parent (PM-1640)
Contact the Iowa State University
Extension office in your county for
more information about children and
families.
Family Life 3
Originally developed as Parenting Apart:
Strategies for Effective Co-Parenting by M.
Mulroy, R. Sabatelli, C. Malley, and R.
Waldron (1995), University of Connecticut
Cooperative Extension. Adapted with
permission for use in Iowa by Lesia
Oesterreich, ISU Extension family life
specialist.
Editor: Jolene McCoy

LOU v. KRAMER

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

NORMA LOU,

Petitioner-Appellee,

UNPUBLISHED

January 19, 2006

v No. 257808

Berrien Circuit Court

ARTHUR WILLIAM KRAMER,

LC No. 04-001317-PH

Respondent-Appellant.

Before: Zahra, P.J., and Murphy and Neff, JJ.

MEMORANDUM.

Pursuant to MCR 3.709(B)(1), respondent appeals as of right a circuit court order

denying his motion to rescind a personal protection order (PPO), which was obtained by

petitioner, and which prohibited respondent from approaching, following, contacting,

confronting, and threatening petitioner, along with precluding respondent from engaging in

various other “stalking” behaviors. The trial court conducted an evidentiary hearing on

respondent’s motion to rescind the PPO, and the motion was denied, although the PPO was

amended to the extent that respondent was no longer prohibited from “appearing” within

petitioner’s sight; the parties are next door neighbors. The PPO expired under its own terms on

June 29, 2005, and has not been extended. We dismiss the appeal as moot.

“‘An issue is moot if an event has occurred that renders it impossible for the court, if it

should decide in favor of the party, to grant relief.’” City of Warren v Detroit, 261 Mich App

165, 166 n 1; 680 NW2d 57 (2004), quoting Michigan Nat’l Bank v St Paul Fire & Marine InsCo

, 223 Mich App 19, 21; 566 NW2d 7 (1997). A moot issue may be reviewed if the issue is

publicly significant and is likely to recur, yet also is likely to evade judicial review. City ofWarren, supra

at 166 n 1. Because the PPO at issue expired on June 29, 2005, it is impossible

for this Court to rectify the alleged undue restraint on respondent’s actions as a result of the PPO

during the time it was in force. Furthermore, we decline respondent’s invitation to find that the

issues raised are of public significance.1 Moreover, even though petitioner may attempt to

1 We note that nothing in the language of MCL 600.2950a prevents a person from obtaining a

PPO against a neighbor if the neighbor engages in stalking as defined in and prohibited by the

Michigan Penal Code.

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obtain another PPO, new factual circumstances and allegations of harassment, of which we are

not privy, will play a role in that request. Accordingly, this appeal is dismissed as moot.

Appeal dismissed.

/s/ Brian K. Zahra

/s/ William B. Murphy

/s/ Janet T. Neff

RECENT DECISIONS OF THE AUSTRALIAN FAMILY COURT

Frank Bates1

(1) School of Law, University of Newcastle, New south Wales, 2308, Australia

Published online: 27 July 2006

ABSTRACT This article examines some recent decisions of the Family Court of Australia as they relate to matters of private international law in family law matters. Although the notion of forum non conveniens is considered, a major focus remains on the approach of the jurisdiction to the Hague Convention on Civil Aspects of International Child Abduction. In the various issues which have appeared before it, the Family Court of Australia has demonstrated a degree of confusion which suggests that other jurisdictions should be cautious in their dealings with Australia in the areas which the article discusses.
Keywords Australia – conflict of laws – family law

Professor of Law, University of Newcastle (NSW).

OTTEVAERE V. TWEEDLE

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

DAWN OTTEVAERE,

Petitioner-Appellee,

UNPUBLISHED

December 20, 2005

v No. 259078

Ingham Circuit Court

ANDREW MICHAEL TWEDDLE,

LC No. 04-001101-PP

Respondent-Appellant.

Before: Fitzgerald, P.J., and O’Connell and Kelly, JJ.

PER CURIAM.

Respondent appeals as of right from the November 12, 2004, criminal contempt order

committing him to thirty days in jail and ordering him to pay $500 for violation of a personal

protection order (PPO). This is one of two cases being heard by this Court involving

respondent’s alleged violation of this PPO.1 As in the other appeal, we affirm.

Petitioner and respondent were divorced after a six-year marriage that produced two

children. Subsequent to their divorce, petitioner alleged that respondent physically threatened

her, made harassing and intimidating phone calls, repeatedly threatened to not return the children

after visitation, and battered her during a visitation exchange. Petitioner sought a PPO, which

was issued after a hearing.

The court issued a PPO that in relevant part prohibited respondent from “stalking as

defined by MCL 750.411h and MCL 750.411i which includes but is not limited to . . . appearing

at petitioner’s work place or residence.”2 Several months later, and after respondent had been

found in contempt in for a prior violation of the PPO, petitioner’s fiancé witnessed respondent

drive slowly past petitioner’s house with the car window rolled down. Respondent’s son who

was playing in the front yard also recognized his father. Petitioner’s house is located in back of a

1 Ottevaere v Tweddle, unpublished opinion per curiam of the Court of Appeals, issued _______

(Docket No. 255776). Docket No. 255776 involves a prior found violation of the PPO, for

which respondent served four days in jail. Id.

2 Docket No. 255776 involves a violation of the PPO’s prohibition against contacting petitioner

by telephone. Id.

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private subdivision with only one entrance, a dead-end that ran within twenty-five yards of

petitioner’s home. After a show-cause hearing, respondent was found to be in criminal contempt

of the PPO.

Respondent argues that the court improperly concluded that he violated the PPO. We

disagree. “A trial court’s findings in a contempt proceeding must be affirmed on appeal if there

is competent evidence to support them. However, the issuance of an order of contempt rests in

the sound discretion of the trial court, and is reviewed only for an abuse of discretion.” Brandt vBrandt, 250 Mich App 68, 73; 645 NW2d 327 (2002) (citations omitted). To support a finding

of criminal contempt, “an alleged contemnor’s ‘willful disregard or disobedience’ of a court

order and a clearly contemptuous act must be proved beyond a reasonable doubt.” In re

Contempt of Auto Club Ins Ass’n, 243 Mich App 697, 714; 624 NW2d 443 (2000), quoting

People v Boynton, 154 Mich App 245, 248, 397 NW2d 191 (1986); see also MCR 3.708(H)(3).

Respondent argues on appeal that the order only prohibited him from statutory stalking,

so the court was required to find beyond a reasonable doubt that he committed a course of

conduct involving two or more instances of harassment before it could hold him in contempt.

However, the court originally granted the PPO because it found that petitioner had established a

course of harassing conduct by respondent. Therefore, any further violation, including

respondent’s arrival at petitioner’s home, would merely add to the established series and

continue the harassment, contrary to both the statute, MCL 750.411h, and the very plain

language of the PPO. The specific restriction against respondent going to petitioner’s home was

also reinforced in the court’s verbal instructions to respondent at the hearing to enter the PPO, so

the trial court correctly found that respondent’s appearance at petitioner’s home on the one

occasion sufficed to constitute contempt.

Respondent also agues that he did not violate the order because petitioner was not at

home and he therefore did not “contact” her. However, the PPO plainly enjoined respondent

from appearing at petitioner’s home without reference to contact. Moreover, applying the

common use of the language employed, people at and around petitioner’s home plainly saw

respondent drive along the dead-end access road within twenty-five yards of her house, so he

“appeared at” her home.

Next, respondent agues that the order is unconstitutionally vague because it is impossible

to tell how near respondent must be to petitioner’s residence before he has appeared “at” her

residence. This argument is also without merit. The language of the PPO was sufficiently clear

to allow respondent to understand that driving within twenty-five yards of petitioner’s home on a

drive with no outlet is close enough to be considered “appearing at” her residence and a violation

of the PPO.

Respondent also argues that the court did not specifically find beyond a reasonable doubt

that respondent intended to violate the PPO. Respondent cites the trial court’s comment during

sentencing that “respondent is apparently, I guess, trying to get as close to the edge of behaviors

as he possibly thinks he might be able to do.” However, respondent omits the second half of the

sentence, where the trial court concludes that respondent “easily can be understood by me to

have stepped over the line and ignored a clear order.” Accordingly, the trial court appropriately

concluded that respondent intentionally violated the plain terms of the PPO. Competent

evidence was presented to prove respondent’s intent to violate the PPO, especially the evidence

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showing that respondent slowly drove by petitioner’s back-lot residence with his window down

on a dead-end access road.

Finally, respondent argues that his thirty-day jail sentence was disproportionately high.

However, because respondent has already served his sentence, the issue is moot. In re Contemptof Dudzinski, 257 Mich App 96, 112; 667 NW2d 68 (2003). In any event, we conclude that the

sentence was proportionate under the circumstances.

Affirmed.

/s/ E. Thomas Fitzgerald

/s/ Peter D. O’Connell

/s/ Kirsten Frank Kelly

GOODING v. GOODING

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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
ALBERT LEE GOODING,
Plaintiff-Appellee,
UNPUBLISHED
January 12, 2006
v No. 254528
Oakland Circuit Court
MARK ANTHONY GOODING,
LC No. 2004-688561-PP
Defendant-Appellant.
Before: O’Connell, P.J., and Smolenski and Talbot, JJ.
PER CURIAM.
Following a bench hearing, defendant was found in criminal contempt for violating a
personal protection order, MCL 600.2950(23). He was committed to jail for ninety-three days,
with credit for seven days served, and ordered to undergo anger management counseling. He
appeals as of right. We reverse and remand. This appeal is being decided without oral argument
pursuant to MCR 7.214(E).
Defendant argues that his due-process rights were violated by the trial court’s failure to
apply the correct standard of proof in his criminal contempt hearing. We agree. Defendant
failed to object to the use of the improper burden of proof standard and otherwise did not
preserve a claim of constitutional error. Therefore, we will not reverse his conviction unless we
find plain error that affected his substantial rights. People v Carines, 460 Mich 750, 763-764;
597 NW2d 130 (1999).
During the show cause hearing, the prosecution, in its opening statement and closing
argument, stated that it would prove defendant’s guilt by a preponderance of the evidence. In its
findings of fact, the trial court found “by a preponderance of the evidence that the Respondent
did, in fact, violate the personal protection order.” However, this is a criminal contempt action,
so “[t]he petitioner or the prosecuting attorney has the burden of proving the respondent’s guilt
of criminal contempt beyond a reasonable doubt . . . .” MCR 3.708(H)(3).
It is clear from the record that the trial court did not merely misstate the standard of
proof, but that the incorrect, and lower, standard of proof was used to evaluate the evidence. The
United States Supreme Court has held that the “use of the reasonable-doubt standard is
indispensable to command the respect and confidence of the community in applications of the
criminal law.” In re Winship, 397 US 358, 364; 90 S Ct 1068; 25 L Ed 2d 368 (1970). The court
made it clear that “the Due Process Clause protects the accused against conviction except upon
-2-
proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is
charged.” Id. Applying the incorrect standard was plain error. Furthermore, using the
preponderance of the evidence standard seriously affected the fairness and integrity of the
proceedings. Carines, supra at 763. Therefore, the error warrants reversal. Id.
Defendant further argues that the charge of violating the personal protection order should
be dismissed with prejudice, because to dismiss without prejudice would subject him to another
hearing on the same charges in violation of the constitutional protection against double jeopardy.
US Const, Am V. Defendant cites no authority and provides no support for this position, and the
failure to apply the correct standard is clearly a trial error. See Burks v United States, 437 US 1,
15-16; 98 S Ct 2141; 57 L Ed 2d 1 (1978).
Reversed and remanded for further proceedings in accordance with this opinion. We do
not retain jurisdiction.
/s/ Peter D. O’Connell
/s/ Michael R. Smolenski
/s/ Michael J. Talbot

OTTOVAERE v. TWEEDLE

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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
DAWN OTTEVAERE,
Petitioner-Appellee,
UNPUBLISHED
December 20, 2005
v No. 255776
Ingham Circuit Court
ANDREW MICHAEL TWEDDLE,
LC No. 04-001101-PP
Respondent-Appellant.
Before: Fitzgerald, P.J., and O’Connell and Kelly, JJ.
PER CURIAM.
Respondent appeals as of right from the April 30, 2004, entry of a personal protection
order (PPO) against him and the May 14, 2004, criminal contempt order sentencing him to four
days in jail for violation of the PPO. This is one of two cases being heard by this Court
involving respondent’s alleged violation of this PPO.1 As in the other appeal, we affirm.
Petitioner and respondent were divorced after a six-year marriage that produced two
children. Subsequent to their divorce, petitioner alleged that respondent physically threatened
her, made harassing and intimidating phone calls, repeatedly threatened to not return the children
after visitation, and battered her during a visitation exchange. Petitioner sought a PPO, and a
hearing on the matter was held during which she testified that her preferred method of
communication with respondent was through e-mail or letters. Respondent testified that he
would like to be able to speak to his children over the phone, but agreed that the parenting time
order did not currently address such contact. Nonetheless, both parties agreed that respondent
should be allowed to talk on the phone with his children during pre-arranged times.
The court issued the PPO, which, among other restrictions, prohibited respondent from
contacting petitioner by telephone, with the exception that “respondent may call children at a
prescheduled time at petitioner’s house.”2 Nonetheless, three days after the PPO was issued and
1 Ottevaere v Tweddle, unpublished opinion per curiam of the Court of Appeals, issued _____
(Docket No. 259078). Docket No. 259078 involves a second violation of the PPO, for which
respondent served thirty days in jail and was fined $500. Id.
2 Docket No. 259078 involves the PPO’s prohibition against appearing at petitioner’s home. Id.
-2-
with no telephone schedule in place, respondent called petitioner’s residence and left the
following message: “Hi, it’s me, Daddy, just calling to talk to Shoey and Baggy. I’ll call back
around seven.” The next day respondent replied to petitioner’s e-mail regarding parenting time
for the July Fourth weekend. A few minutes after sending the e-mail, he called petitioner and
requested to speak to the children. Petitioner contacted the police and a show cause hearing took
place a few weeks later. Respondent testified at the hearing that he misunderstood the PPO and
was merely calling in an attempt to pre-schedule telephone visitation with his children.
Respondent testified that he believed the PPO allowed him to contact petitioner via telephone to
make such arrangements. The court held respondent in criminal contempt for violation of the
PPO and ordered that he serve four days in jail, which respondent served in July 2004.
Upon motion of the parties, the Oakland Circuit Court (which had jurisdiction over
custody and parenting time issues) subsequently issued an order which stated in relevant part, “In
furtherance of the Personal Protection Order entered by the Ingham County Circuit Court[,] . . .
[respondent] . . . shall have telephone contact with the minor children by calling them on
Mondays and Thursdays . . . between 8:00 a.m. and 8:20 a.m. . . . The parties shall not speak to
each other during these telephone calls.”
Respondent first argues that the Ingham Circuit Court erred by failing to contact the
Oakland Circuit Court before issuing the PPO as required by MCR 3.706(C). However,
respondent has failed to provide any evidence demonstrating that the Ingham Circuit Court failed
to comply with the requirements of MCR 3.706(C).3 Therefore, this issue is without merit.
Next, respondent argues that the PPO was so vague that it was impossible to comply
with. We disagree because a reasonable person could easily understand that the phone calls
would violate the order, but respondent nevertheless “refused or neglected to reasonably
endeavor to comply with the order.” Butler v Butler, 80 Mich App 696, 700; 265 NW2d 17
(1978). The language of the PPO clearly indicates that respondent could only call the children at
pre-arranged times. The PPO did not prohibit respondent from contacting petitioner by e-mail or
in writing or even by means of a third-party intermediary. Respondent, in fact, understood the
relevant directives of the PPO. Respondent admitted that he heard petitioner express her
preference for e-mail communication during the hearing to enter the PPO. Respondent also
admitted to knowing that other forms of communication were available to him. And when
pressed by the circuit court about the phone message referencing “Shoey and Baggy,” respondent
stated, “I wanted to leave a message for the children, not Dawn, because I knew I wasn’t
supposed to have a call to Dawn.”
3 Respondent asserts that when the Oakland Circuit Court issued the order to schedule telephone
contact, the presiding judge stated that to the best of his knowledge, the Ingham Circuit Court
never contacted him. The transcript respondent cites has not been provided. In any event, this
transcript is not part of the record of the lower court, in which this issue should have been raised
initially, so respondent fails to substantiate this claim of error. Amorello v Monsanto Corp, 186
Mich App 324, 330; 463 NW2d 487 (1990).
-3-
Next, respondent argues that the trial court erred by failing to apply the proper burden of
proof. We disagree. “A trial court’s findings in a contempt proceeding must be affirmed on
appeal if there is competent evidence to support them. However, the issuance of an order of
contempt rests in the sound discretion of the trial court, and is reviewed only for an abuse of
discretion.” Brandt v Brandt, 250 Mich App 68, 73; 645 NW2d 327 (2002) (citations omitted).
To support a finding of criminal contempt, “an alleged contemnor’s ‘willful disregard or
disobedience’ of a court order and a clearly contemptuous act must be proved beyond a
reasonable doubt.” In re Contempt of Auto Club Ins Ass’n, 243 Mich App 697, 714; 624 NW2d
443 (2000), quoting People v Boynton, 154 Mich App 245, 248, 397 NW2d 191 (1986); see also
MCR 3.708(H)(3). Contrary to respondent’s assertion, there is no indication in the record that
the court disregarded the appropriate burden of proof. The fact that the court reached a
conclusion at odds with respondent’s position does not indicate that the court applied the wrong
burden of proof.
The finding that respondent willfully disregarded the order is supported by competent
evidence. As noted above, the PPO precluded respondent from “contacting the petitioner by
telephone.” This provision was modified by a hand-written note, which provided that
“respondent may call children at a prescheduled time at petitioner’s house.” Nevertheless, only
days after the PPO was issued, respondent called and left a recorded message directed to his
children. He called back the following day, after making acceptable e-mail arrangements
regarding holiday plans, and asked petitioner to put the children on the line. At the time of these
calls, a telephone visitation schedule was not yet in place. Respondent’s excuse that he was
calling to set the schedule was belied by his confessed knowledge that he was not to phone
petitioner, his reference only to his children in his message, his e-mail contact with petitioner the
following day, and his request to speak to the children in the second phone call. Accordingly,
the circuit court’s finding that respondent willfully disregarded and clearly violated the PPO
beyond a reasonable doubt was supported by competent evidence. Brandt, supra.
Next, respondent argues on appeal that the court erred by failing to notify him of certain
matters as required by MCR 3.708(D), including the alleged violation, the right to contest the
violation or plead guilty, and the right to a lawyer. Because respondent failed to preserve this
issue for appeal, he must show plain error affecting his substantial rights. People v Carines, 460
Mich 750, 763-764; 597 NW2d 130 (1999). Any error in this regard did not affect respondent’s
substantial rights and was ultimately harmless. Respondent was clearly aware of the conduct
constituting the violation, his right to an attorney, and his right to contest the charge, because he
appeared at the contempt hearing to contest the charge and brought his attorney who ably argued
the facts and law regarding the particular charge.
Finally, respondent argues that his four-day jail sentence was disproportionately high.
However, respondent has already served his sentence, so the issue is moot. In re Contempt of
Dudzinski, 257 Mich App 96, 112; 667 NW2d 68 (2003). In any event, the sentence was
proportionate under the circumstances.
Affirmed.
/s/ E. Thomas Fitzgerald
/s/ Peter D. O’Connell
/s/ Kirsten Frank Kelly