THE WEEKEND AUSTRALIAN, AUGUST 16-17, 2014theaustralian.com.au THE NATION 5

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Family affair: couples still fighting for equality

AARON FRANCIS

Jacqui Tomlins and Sarah Nichols, with their children Scout, left, Cully, back left, and Corin, and Adrian and Jason Tuazon-McCheyne and their son Ruben, back right

TEN years ago today, what start-ed as a small, quiet battle by twosame-sex couples to have theirmarriages formally recognisedwas brought to a crushing stand-still on the national stage.

The couples’ bid started in theVictorian Family Court andended in federal parliament onAugust 16, 2004, when JohnHoward dramatically intervenedto make gay marriage, which atthat point was legally ambiguous,illegal.

Ten years on, with four child-ren between them, the couples arein disbelief that they are still notlegally married and progress onmarriage equality has been slowerthan they then hoped. At the time,their case, but not their names,was referred to in the debate, andis forever recorded in Hansard asone of the reasons the issue need-ed to be dealt with urgently.

On August 23, 2003, Mel-

bourne woman Jacqui Tomlinsmarried her partner, Sarah, at herfamily’s cottage by Lake Catcha-coma in southern Ontario. Theirbaby son Corin was there, andfriends and family flew from Mel-bourne to see them wed. Whenthey returned to Melbournemany people asked them whethertheir marriage was recognised.

About the same time, a gaymale couple they had not yet met,Jason and Adrian Tuazon-McCheyne — who had married inCanada in January 2004 — hadreturned to Melbourne and werewondering the same thing. Amutual friend put them in touchand they launched legal proceed-ings to clarify the legal standing oftheir marriages.

“At that time, the legislationdid not specifically define mar-riage as between a man and awoman, nor did it bar the recog-nition of an overseas marriage be-tween two people of the same sex.This meant that the legislationwas, at least, ambiguous andcould, at best, be interpreted inour favour,” Ms Tomlins said.

She says she remembers leav-ing the lawyers’ chambers with asense of excitement about thepossibility that her Canadianmarriage might actually be recog-nised at home.

While Jacqui and Sarah hadalready started a family, Jasonand Adrian were planning theirs

and wanted some legal certainty,especially in relation to their kids.

“The legal team did their stuffand a date was set for our hearingin the Family Court, 23rd August,2004 — ironically, our first wed-ding anniversary,” Ms Tomlinssaid. “The more people we spoketo, the stronger our case seemedto be. The legislation didn’t say we

couldn’t get married and it didn’tsay our overseas marriagecouldn’t be recognised. We wereat least in with a chance.”

As the day of the hearingapproached, they were notified bytheir lawyers that the matter hadbeen tabled for discussion in fed-eral parliament.

“Clearly, the government hadworked out that they were onshaky ground and in the secondweek of July there was lengthy de-bate over the Marriage Amend-ment Bill,” Ms Tomlins said.

Exactly one week before theirhearing, the Marriage Amend-ment Act 2004 received royal as-sent, and made their legalchallenge redundant. Ms Tomlinssaid she thought it would takeabout 10 years for gay marriage tohappen in Australia.

“I thought five years was prob-ably too soon, but really thoughtby 10 years it would be done,” shesaid. “It’s 10 years today and weare still not legally married in Aus-tralia. We have three kids andthey don’t understand it; for kids itjust doesn’t make any sense.”

Jason and his partner have aneight-year-old son, Ruben. Jasonsays he is in disbelief that, after adecade of campaigning, his rela-tionship is still not considered alegal marriage. “The court at thetime had to refund our moneybecause the laws that were passedwere written in a way that therewas no grounds to do anything,”he said. “It’s all a bit depressing, tobe honest.”

However, in 10 years he hasseen a transformation in the wayAustralians view his relationshipand his family. “Everything haschanged; it’s a pity the lawshaven’t kept up,” he said.

After the case, Jason went onto set up Australian MarriageEquality with a small group ofcampaigners. The group has nowbecome a powerfully lobby groupand is on the cusp of pushing forthe Coalition to change its pos-ition to allow a conscience vote. InJanuary this year, Jason launchedthe Australian Equality Party(AEP) to provide the lesbian, gay,bisexual, transgender, intersexand queer community with an

independent voice inside federalparliament. The AEP is currentlybeing registered by the electoralcommission.

Liberal Democratic Party sen-ator David Leyonhjelm is draftinga gay marriage bill to force theCoalition into a position wherethe partyroom must consider theissue. If the bill is tabled, TheWeekend Australian understandsCoalition MPs will demand achange in position to allow them aconscience vote. But even if theCoalition position changes, thereare still not enough votes in theparliament for gay marriage tobecome legal in this term of par-liament.

Ms Tomlins said that when gaymarriage did become law — an“inevitable” development, in herwords — the two couples wouldhave a big joint party with theirfriends, family and children to cel-ebrate the journey they embarkedon: first as strangers, now as verygood friends. “We won’t have awedding again, we’ve had ourwedding,” she said. “It will thenfinally be recognised.”

EXCLUSIVE

PATRICIA KARVELAS

AUSTRALIA’S biggest invest-ment bank could be exposed tomillions of dollars in compen-sation claims after being forced tocontact 160,000 past and presentclients of its financial planningbusiness with offers to review theadvice they were given.

In a significant escalation of theaction by the Australian Securities& Investments Commissionagainst Macquarie over wide-spread failings in its financial plan-

ning business the bank will offer to“remediate’’ clients, includingcompensation, if there were prob-lems with the advice they received.

There are now more than half amillion financial planning clientsseeking reviews of the advice theywere given, including about400,000 clients of the Common-wealth Bank of Australia.

CBA had already spent $51m oncompensation for 1100 clients of itstwo financial planning businessesand is bracing for more under anew review by former High Courtjudge Ian Callinan.

The Macquarie offer comesafter a Senate committee in Junecalled for a royal commission intothe CBA’s financial planning busi-ness and criticised ASIC’s over-sight of Macquarie.

Nationals senator John Willi-ams said it was “better late thannever’’ for ASIC to put pressure onMacquarie over its financial plan-ning business.

“I want to see a corporate regu-lator that is feared,’’ he said.

“If people do the wrong thingthey should fear the regulator.’’

ASIC commissioner Peter Kell

said the regulator remained con-cerned about standards in the in-dustry after taking action againstfive firms, including AMP and in-vestment bank UBS, since 2006.

“This is an industry that has tolift its game,’’ Mr Kell said. “Theyneed to put the customer first.’’

The offer extends to any clientof Macquarie Private Wealth since2004 and follows the bank’s effortsto review files of clients of advisersidentified as being high risk.

The business has already suf-fered some financial consequen-ces with 300 of the 600 advisers in

place before ASIC’s interventionleaving the firm and the number ofclients falling from a reported319,500 to 87,000 since Januarylast year when ASIC imposed acourt-enforceable undertaking re-quiring the bank to overhaul prac-tices in the private wealth business.

The bank had been accused ofcovering up an internal reviewthat found more than 80 per centof advisers failed to comply withindustry standards.

Macquarie said yesterday thatit had said it was contacting clientslast month at its annual meeting

and had completed three out offour phases of the overhaul re-quired by ASIC.

It has installed a new manage-ment team overseen by deputychief executive Greg Ward, pro-vided 11,500 hours of face-to-faceadviser training and is conductinga review of client files where con-cerns are identified by the firm orthe client.

Under the expanded remedia-tion offer clients can have theirfiles reviewed by the firm and re-ceive $5000 towards the cost of anindependent review of the file.

ASIC said the Financial Ombuds-man would also waive time limitson complaints for clients whowanted to complain to the indus-try-funded arbiter.

But class-action law firm Mau-rice Blackburn said clients mightnot be compensated properly be-cause the process was flawed.

John Berrill, head of financialdisputes at Maurice Blackburnsaid clients needed legal represen-tation at the start of the process, asthe Senate committee inquiry intoASIC found, rather than after-wards, as proposed by Macquarie.

Macquarie could be hit for millionsANDREW WHITE

‘Clearly, the government had worked out that they were on shaky ground’

JACQUI TOMLINS

LONG-TERM natural cycleslinked to the sun could explainthe pause in global average sur-face temperatures and offer abetter guide for coastal plannersto predict sea level rises, stormsurges and natural disasters.

Publication of the findings inOcean and Coastal Managementfollows a decade-long strugglefor the lead author, Australianscientist Robert Baker from theUniversity of New England,whose work has challenged theorthodox climate science viewthat carbon dioxide is the domi-nant factor in climate change.

Dr Baker, a former chair ofthe International GeographicalCommission on Modelling Geo-graphic Systems, said what hadbeen a purely scientific debate onclimate change until 2005 hadbecome political. His latest paperwith his PhD student faced aseries of objections from scien-tists close to the Intergovern-mental Panel on ClimateChange but was published afteran 11-member peer review panelvoted 8-3 to publish. An editorialthat accompanied the paper saidit was an “excellent example ofhow to approach these complexissues that are now vulnerable tooften irrational and heated de-bate instead of the requiredproper scientific discussion”.

The Baker paper suggests ahybrid model that allows futureclimate change to be estimatedwith or without human influen-ces. The authors said this wouldprovide a better legal foundationfor decision making. Problemswith coastal planning in NSW,based on sea-level predictionsfrom climate modelling, werecited in the international paper.

The paper accepts that ifthere is a human influence on cli-mate change, then it could resultin a threefold increase in one-in-100-year extreme coastalevents. But it says, as the hiatusshows, human influence can beovertaken by long-term naturalcycles, making predictions lesscertain. The combination ofnatural and human-inducedchange in a hybrid model ofnatural cycles and human influ-ence suggested by Dr Baker pro-duces a “planner’s dilemma” ofdetermining whether extremeevents are natural fluctuationsor from anthropogenic warming.

The paper shows, from scien-tific analysis of a large number ofdata sets, that previous fluctua-tions are periodic and likely torepeat, which has previouslybeen ignored in climate models.According to the paper, the newmodel was able to simulate anumber of climate features . Thisincluded greater heat uptake inthe oceans to explain the presenttemperature “pause”; regionaleffects whereby global warmingimpacts were not evenly spread ;and planetary, lunar and solarcycles being embedded withinthe chaotic fluctuations in short-term mean sea-level data. His-toric cycles could be predicted torepeat, except with the additionof anthropogenic warming,where the impact could be mag-nified.

The IPCC’s latest report saidthe “pause” was due to naturalvariation and ocean warming.Climate scientists say they ex-pect warming to resume in thenear future.

Sun cycle link to climate pauseGRAHAM LLOYDENVIRONMENT EDITOR

INDIAN police have revealedthat an 1100-year-old Hindusculpture of Shiva with his handsbroken off was stolen frombeneath a peepol tree in a templecomplex, after it was taken out-side for unauthorised repairs.

The solid, 112cm-high stonecarving was then smuggled fromIndia to New York, where in2004 it was sold to the Art Gal-lery of NSW for $300,000.

According to the theft reportby local police in the southernIndian state of Tamil Nadu, theArdharishvarana was removedin 2002 along with seven otherdamaged sculptures from Vridh-dhagiriswarar Temple.

A temple donor had agreed topay for the pieces to be repairedand a sculptor had been assignedthe task, even though templeauthorities had not receivedpermission for the undertaking.

The antiquities, including thehandlers Shiva with the bullNandi, were photographed andthen placed beneath a tree. Fromthis spot the deity was stolen; theothers were left behind. Thepolice report was compiled afterHindu art enthusiast VijayKumar last year told The Austra-lian the Art Gallery of NSW stat-ue was identical to one depictedin Douglas E. Barratt’s 1974 sur-vey of Hindu art.

Police said the temple’sexecutive officer RajendranSingh retired some time after thetheft and no suspects had yetbeen identified.

Within two years of the theft,the Shiva with Nandi had beenfurnished with a bogus collectinghistory and sold by New Yorkantiquities dealer Subhash Ka-poor to the Sydney gallery.

It was the last of six pieces theArt Gallery of NSW bought fromKapoor over 20 years.

The gallery’s former directorEdmund Capon said he hadstopped doing business withKapoor in 2004 or early 2005after becoming aware of his un-savoury reputation.

Kapoor was arrested threeyears ago and is awaiting trial inTamil Nadu, his case havingbeen delayed while prosecutorsawait the return from Australiaof the Ardharishvarana and adancing Shiva bought by theNational Gallery of Australia in2008 for $5.6 million.

Both pieces were surrenderedin April after India requestedtheir return.

Looted Shiva leftoutsidefor repairEXCLUSIVE

MICHAELA BOLAND

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