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It is with some sadness to me that Chief Justice Diana Bryant of the Family Court of Australia has retired. Her Honour after being appointed as a Senior Counsel, was appointed as the first head of the then Federal Magistrates Court, before being appointed as Chief Justice of the Family Court- a role that she has undertaken with great skill. Her workload has been extraordinary- and her view of the world has nevertheless been focussed on children, and those unfortunate enough to be before her court- the ordinary mums and dads who end up in court.

Yesterday her replacement was announced:


The Australian Bar Association (ABA) welcomes the announcement today of the appointment of the new Chief Justice of the Family Court and the new Chief Judge of the Federal Circuit Court and a Justice of the Family Court.
The new Chief Justice of the Family Court is to be the Honourable John Pascoe AC CVO, who is the current Chief Judge of the Federal Circuit Court.
The new Chief Judge of the Federal Circuit Court and a Justice of the Family Court is to be Mr Will Alstergren QC.
The ABA is particularly delighted with the appointment of Mr Alstergren QC, who has served for many years on the Council of the ABA and has been its President during this year.
Mr Alstergren will bring a wealth of experience and formidable leadership skills to a major national court the jurisdiction of which extends to numerous fields of vital interest to all Australians, particularly family and immigration law.
The ABA takes the opportunity to express its sincere gratitude to Mr Alstergen QC for his outstanding leadership and service to the law and to the Australian Bar.






Chief Judge Pascoe has been an outstanding leader of the Federal Circuit Court. I have no doubt he will be a most able Chief Justice. His Honour has spoken at length about protecting children, including tackling child trafficking. His Honour has for the last two years been Australia's representative at The Hague working group on a proposed Hague convention on private international law concerning children, including international surrogacy arrangements.

I wish his Honour and Mr Alstergren  good luck in their onerous tasks ahead!



Stephen Page, Harrington Family Lawyers, Brisbane spage@harringtonfamilylawyers.com 61(7) 3221 9544
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Tonight I attend a function recognising the service of Justice Michelle May, who is retiring after many years of service from the Family Court of Australia.

I had the privilege many years ago of briefing her when she was junior counsel; and then after she was appointed as Queen’s Counsel; and then appearing before her when she sat in the Family Court; and then appearing before her when she sat as an appeal judge in the Family Court.

Her colleagues on the bench quickly discovered what those of us in private practice had already discovered, a lawyer of the top order who:

·         had grace, courtesy and humility as standout qualities;

·         had a great sense of judgment,  justice and fairness;

·         had a great sense of care about those with whom she dealt, particularly downtrodden parents and their children;

·         was concerned about the insidious impact of domestic violence; and

·         was extremely hardworking and competent.

I will miss Justice May terribly.  I consider that she is one of the best judges and lawyers I have ever come across.  The Family Court will be poorer because she has left.  I hope that in her return to civilian life that she has time to assist with family law, whether it be by way of mediations or arbitration or assisting in various charitable ways.   Her judgment, sense of decency and humanity, skill and grace are the equal of any.

She will be sorely missed.
Stephen Page, Harrington Family Lawyers, Brisbane spage@harringtonfamilylawyers.com 61(7) 3221 9544
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Attorney-General Senator George Brandis has released the following statement:



protecting family violence victims from being
cross-examined by alleged perpetrators

Today, I release draft legislative amendments to the Family Law Act 1975 to ensure victims of family violence are protected from being personally cross-examined by their alleged perpetrators.

The proposed legislative changes are part of the Government’s ongoing commitment to implementing protections against family violence for Australian families, and form part of the Government’s package of measures to further support the family law system.   

The draft amendments see a legislative ban on self-represented parties conducting direct
cross-examination where one party is convicted or charged of an offence involving violence against another party. The court will also have discretion to disallow direct cross-examination in other matters where there are allegations of family violence.

To maintain procedural fairness, the court will be able to appoint a person to act as an intermediary to ask questions in cross examination on behalf of a party.

The draft amendments respond to concerns that family violence victims may experience further trauma from being directly cross-examined by their alleged perpetrators. This issue has been the subject of consultation with stakeholders and was identified as a key area of reform by the federal, state and territory governments at the 2016 COAG National Summit on reducing violence against women and their children.

The draft legislation, consultation paper and information on how to make a submission are available at: ag.gov.au/Consultations/Pages/Family-violence-cross-examination-amendments.aspx. Submissions can be lodged until 25 August 2017.
17 July 2017
Stephen Page, Harrington Family Lawyers, Brisbane spage@harringtonfamilylawyers.com 61(7) 3221 9544
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When family lawyers and judges talk about The Hague Convention, often the one of many that they will be the 1980 Hague Convention, which deals with civil aspects of international child abduction. This Convention has so permeated the thinking of many family lawyers and judges that they often refer to it merely as the Hague Convention, and Hague Convention countries in submissions and orders.

Lawyers and judges should not be so lazy, as there are many Hague Conventions- and the signatories for each one are different.

Be that as it may, one of the defences to a Hague Convention application is to say that the child is at grave risk of harm if the child were to return to the country from which it originally travelled. This defence is available under Article 13(1)(b) of the Convention.

The Hague Permanent Bureau (the body that manages Hague Conventions) has now released a draft guide as to how to assess Article 13(1)(b) cases. The Guide is over 120 pages long, but for the first time talks about the possibility of mediation as well as domestic violence.

The Convention has been criticised by women's groups because of its alleged failure to properly take into account allegations of domestic violence when assessing grave risk. When the US was pushing Japan (ultimately successfully) to sign the Convention recently, women's groups were resisting, because of the perception that domestic violence was not taken seriously enough.

I recall some years ago I acted for the mother of two children who was resisting their return from Ireland to Australia because, she said, there had been severe domestic violence. The father denied that there had been any domestic violence. Rather than assess the domestic violence, the Irish court ordered the return of the children to Australia, saying that Australian courts could properly assess whether or not there had been domestic violence.

The Australian court ultimately found that the time between the children and their father ought to be supervised.

The draft Guide says this about assessing domestic violence:

"When assertions of domestic violence are raised in the context of an Article 13(1)(b) case, the appropriate and expeditious examination of such assertions falls to the judicial or other competent authority hearing the return proceeding, including whether any substantiated assertions meet the threshold of posing a grave risk to the child."

One wonders if this approach had been taken in the Irish case whether the court would have ordered the return of the children to Australia.

The Guide even refers to the availability of risk of harm assessment tools. 

The draft Guide is here. The Bureau has circulated the draft for comment by members nations, including Australia. If you have issues about the draft, and you're a lawyer, then let the Family Law Section of the Law Council of Australia know. If you're not a family lawyer, I suggest that you let Federal Attorney-General Senator George Brandis know your views.
Stephen Page, Harrington Family Lawyers, Brisbane spage@harringtonfamilylawyers.com 61(7) 3221 9544
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I was asked today what is my advice of coping with advice. On reflection there are 8 top tips:



After 30 years of doing divorce work, my 8 top tips when separating are:


  • Make sure you and the kids are safe.
  • Have a support network- family, friends.

  • Go see a counsellor- someone independent to sort your head out helps.
  • Have a positive attitude- aside from yourself, this can be invaluable for your kids
  • Exercise- the best antidote to the stress of separating.
  • Protect the kids positively. While the poison of separating affects you- it can impact your kids permanently.
  • Get financial advice from an expert.
  •      Hire the most experienced lawyer you can find. They may not have to do much, but they might  save your bacon.
Stephen Page, Harrington Family Lawyers, Brisbane spage@harringtonfamilylawyers.com 61(7) 3221 9544
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Now that the budget sails have been set, we can be sure of one thing in this budget- there will be little relief for the beleaguered Family Law Courts. The Federal Government will not be stumping up cash for the courts, and nor will it be appointing judges.

A week or so ago, the member for Newcastle was complaining that their Federal Circuit judge (who had retired) had not been replaced, leading to inevitable chaos for those unfortunate enough to need the courts to help sort out their and their children's lives.

Today comes the news that the Chief Justice of the Family Court of Australia, Diana Bryant AO, has once again pleaded for money. This is a plea that her Honour and Chief Judge John Pascoe  AC, CVO have stated repeatedly- in what appears to have been a case of falling on deaf ears.

I have been a family lawyer for over 30 years. I have never seen the court lists as bad as they are now. Cases can take several years from beginniing to a trial at end. This is a systemic crisis requiring a systemic solution and money to fix. Here are some possible solutions:

  • in the Federal Circuit Court, offer ongoing pensions to Federal Circuit judges after they retire- as any other judge gets. The Commonwealth has never paid these pensions, thinking that it would be cheaper to appoint judges without the hidden cost of pensions. Judges, having been appointed under the Constitution, cannot be removed except by a vote of both Houses of Parliament. In Queensland, for example, that has happened only once- and that occurred in the midst of the Fitzgerald Inquiry. Currently judges have no incentive to retire if they are unfit. They then have to rely on their (often inadequate) savings. So what do they do? Remain on the bench, keep taking a salary, but don't sit. The result? A big increase in the backlog, as other judges have to then fill the gap, meaning that their lists also fall behind.
  • Continue with mediation. Mediation has continued to settle matters that once were thought of as being impossible to settle. However the most intractable disputes need judges to decide- and to do so quickly. Justice delayed, as it is said, is justice denied. The model commenced in Queensland has seen 80% of cases settle which are referred from the courts to private mediators.
  • Continue with collaborative lawyering. Collaborative cases usually avoid going to court. In most cases that's a good thing.
  • For those who have the means- require them to engage in private arbitration. It seems scandalous to say that because the State can't afford to pay, then private citizens should pay. However, in some large property cases, the parties have more than enough means and should be able to have these decided quicker through arbitration.
  • Appoint more Federal Circuit Court judges. It is estimated that there are 10 judges needing to be appointed, but not yet appointed.
  • More money for legal aid. As the productivity commission found- more money for legal aid means a substantial drop in self-represented litigants before the courts. Thirty years ago seeing someone represent themselves in court was rare. These days a majority of cases in the Family Law Courts involve one or both parties acting for themselves. As the old proverb goes: "A man who acts for himself in court has a fool for a client." Cases involving self-represented parties often run longer, get stuck on side issues, and are less capable of being resolved, because the litigant is not a lawyer experienced in the field. For a case which is probably the classic example of how court time can be wasted (by both the lawyers and by at least one party who was self-represented)- see this case.
Stephen Page, Harrington Family Lawyers, Brisbane spage@harringtonfamilylawyers.com 61(7) 3221 9544
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Recently I presented at the seventh annual Family Law Forum run by Legalwise in Brisbane about third party property settlement issues. My paper is below. The shorthand version  of what I have set out in the paper is to be circumspect before leaping into quicksand. It's a lot easier getting in than getting out.



LEGALWISE FAMILY LAW CONFERENCE









SEVENTH ANNUAL FAMILY LAW FORUM SESSION 1:
FAMILY LAW UPDATE

THIRD PARTY PROPERTY MATTERS



By Stephen Page
Partner Harrington Family Lawyers








Third Party Property Matters1.         Is it necessary to join the third party? 
This is the fundamental question that every lawyer must consider.  Join a third party when it is not necessary to join that third party and there is a real chance that a costs order will be made against your client.  If it is necessary to join the third party and they aren’t joined, then is your client prejudiced?
In most situations, it is not necessary to join a third party, but require the other party to the relationship to do certain things or refrain from doing them.
Example 1
Many years ago I was in the duty list in the Family Court.  I was for the wife.  The husband had been put on notice that he was to not deal with a sizeable amount of money in a bank account or in the alternative for it to be paid into my trust account.

There were some settlement negotiations outside the door of the court.  The husband then told me that there was no point negotiating or having any orders made because in fact the bank had already given notice of its intention to exercise its power of sale as mortgagee and everything was lost. 

The injunction application was proceeded with.  The injunction was granted, but as it turns out the husband did not comply with that in any event.  Enquiries were made with the bank and, instead of joining the bank as a party, the bank was persuaded not to take further action for the moment, in reliance upon my client’s representations that she would protect the bank’s position, including keeping the bank informed of the Family Court proceedings (which the bank hadn’t been aware of).

A very useful illustration of whether it is necessary to join a third party is the case of Budiarta and Zavahir [2016] FamCA 923, a decision of Forrest J.  The wife who was the respondent in parenting property proceedings filed a further amended response.  In that, she sought an order that the husband’s mother be joined as a second respondent to the property settlement proceedings as well as orders pursuant to section 106B setting aside some transfers of money from the husband to his mother. 
When the matter was before his Honour on a trial management hearing, it became clear that the wife’s application for the order that her former mother-in-law be joined had not been heard and determined and after hearing it was opposed by the former mother-in-law and husband, his Honour listed it for a discrete hearing.  Counsel who appeared for the wife pointed out that the wife could simply have complied with Rule 6.03 of the Family Law Rules which provides a clear means by which a party may add another party after the case is started, leaving it for the party who was joined to apply under Rule 6.04 to be removed if they considered that appropriate.  His Honour noted that as no explanation was proffered as to why that course was not taken, he could only assume that the availability of that course was overlooked by the wife’s solicitors.
The wife’s counsel then said that the question of whether or not the wife’s former mother-in-law is to be joined involves a consideration of the proposition contained in Rule 6.02(1):
            “A person whose rights may be directly affected by an issue in a case, and whose participation as a party is necessary for the court to determine all issues in dispute in the case, must be included as a party to the case.”
The evidence of the wife, the husband and his mother confirmed without dispute that the transactions the wife sought to have set aside occurred with the money being paid, as the wife alleged, from the husband’s account to his mother on the specified date.  The wife sought orders from the court that required the husband’s mother to repay the money to the husband and then simply to be paid directly to the wife by way of property settlement.  The wife sought a further order securing that payment by charge against her former mother-in-law’s unincumbent Western Australian property. 

His Honour stated:
            “At first glance, it therefore appears [under s106B(2) and s80(1)] that the Court could very well have the power to make the order charging the husband’s mother’s property if the Court is satisfied after a trial of the orders sought pursuant to s106B should be made and that the husband’s mother should be ordered to repay the money directly to the wife rather than the husband, with an order charging her own real property with that payment.  I did not hear detailed argument on this point from counsel for both parties and do not consider that I need now to definitively determine that question at this point.  I am merely determining the question of whether the husband’s mother should be joined as a party to the proceedings.  Whether, ultimately, a charging order can be made against her property to secure any order that she may repay money through the husband’s wife if dispositions are set aside pursuant to s106B is a matter I am satisfied can be left to be determined after trial if the question of the Court’s power to do so still remains in dispute at such time.  The legitimate invocation of the Court’s power contained in s106B to set aside the identified dispositions of money from the husband to his mother, if the preconditions for the exercise of such power are satisfied, is sufficient context within which to determine the disputed question of joinder, in my judgment.”
His Honour then considered whether it was necessary for the husband’s mother’s participation as a party is necessary for the court to determine all the issues in dispute in the case.
The husband’s mother submitted that it was not necessary for her to be joined because:
·         The husband had filed affidavit evidence of his mother already;
·         It was clear that she will be a witness at the trial and will be available for cross-examination;
·         She will already be a participant in the trial, as a witness and does not need to be joined to ensure that she participates;
·         Her participation in the trial as a witness will permit the court to determine all issues in dispute in the case;
·         It is simply not necessary for her to be a party to the proceedings for this court to make orders that affect her rights such that would bind her.
His Honour said at [12]:
            “I took that to be a concession that procedure fairness has been done by the husband’s mother being appropriately put on notice of the orders sought against her by the wife and a further concession that even if she is not a party to the proceedings in which orders pursuant to s106B are sought for the setting aside of dispositions and money by the husband to her and the repayment of that money by her to the wife through the husband pursuant to a s79 order, that any such orders would bind her.  Those are, in my judgment, sensible and appropriate concessions which are, in the circumstances, correct.
            When the possibility of the husband subsequently making a tactical decision not to read and rely upon the affidavit evidence of his mother at the trial, so as to prevent her from being available to be cross-examined by counsel for the wife, was raised, counsel for the husband’s mother pointed out that the husband would then face grave, probably insurmountable difficulties in his defence of the wife’s application for s106B orders if he chose to take that course.  The solicitor who appeared for the husband agreed with that submission and positively assured the Court that no such tactical decision would be taken and that the husband’s mother can be expected to be a critical witness at the trial, whose evidence the husband clearly wants the Court to consider.”
His Honour noted that Warnick J in Wayne and Dillon and Dillon [2008] FamCAFC 204 at [18] and [19] said in respect of Rule 11.01(1) of the then Federal Magistrates Court Rules, which are very similar in form to Rule 6.02 of the Family Law Rules:
            “The word “necessary”… must mean something more than “useful” or “expeditious”.  In my view, if there are available alternative means to joinder to the substantive proceedings, of obtaining from a third person or someone already a party what is needed to allow an applicant for joinder to establish an identified “case”, joinder is unlikely to be “necessary”.
            However, if a cause of action, recognisable at law, against a “third person” is particularised, then it is at least highly likely that joinder will be “necessary for the Court to completely and finally determine all matters in dispute”.”
Forrest J determined that it was not necessary to join the husband’s mother: at [18]:
            “The husband’s mother was quite apparently resolute in not wanting to be a party to the proceedings although she was quite content to be a witness and to be cross-examined on her affidavit evidence.  As I have said, she accepts that any orders the Court makes directed at her pursuant to s106B will bind her.  Of course, although as a party she could choose not to have legal representation and choose to take no real active part in the trial other than as witness, there is a potential for her to consider she should have legal representation and that could cost her quite a lot of money.  She clearly eschews that prospect and has chosen, notwithstanding being full appraised of the relief that the wife seeks against her and the husband and having clearly received comprehensive legal advice from experience family law solicitors and counsel, not to become a party to the proceedings and to actively oppose such course.”
His Honour stated at [21]:
            “I accept the submission of counsel for the husband’s mother that her joinder is not necessary to determine all of the issues in dispute and to make, if considered appropriate just and equitable, orders that bind her at the conclusion of the trial.”
2.         Get the other party to do your bidding
The classic example of that is Re Dovey ex parte Ross (1979) FLC90-616 in which there were orders restraining the husband from taking action as a shareholder or director of a company which owned the former matrimonial home.
3.         Associated Jurisdiction
Let us assume that you decide that you can’t merely obtain orders against the other party but you need to seek orders against someone else.  Section 33 of the Act gives the Family Court jurisdiction which is associated jurisdiction:
            “To the extent that the constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within the jurisdiction expressed by this Act or any law to be conferred on the Court that are associated with matters (including matters before the Court upon an appeal) in which the jurisdiction of the Court is invoked or that arise in proceedings (including proceedings upon an appeal) before the Court.”
In Philip Morris Inc v. Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457, the High Court considered s32(1) of the Federal Court of Australia Act 1976, an equivalent provision to s33.  The majority observed that by virtue of s77 of the Constitution, the jurisdiction that can be conferred by the Commonwealth Parliament on any federal court is limited to matters which fall within the scope of s75 and s76 of the Constitution.  Therefore, the associated jurisdiction of the Federal Court must be limited to matters that arise under a Commonwealth statute which does not itself invest the Court with jurisdiction and that the associated jurisdiction therefore does not enable the Court to entertain matters based on state law. 
Subsequently, in Prince and Prince (1984) FLC91-501, Fogarty J recognised that the decision in Philip Morris equally applied to s33.  Under s33 there must be a matter.  In Fencott v. Muller [1983] HCA 12; (1983) 152 CLR 570, four members of the High Court said that the majority view in Philip Morris was that a matter is a justiciable controversy:
            “…which must either be constituted or must include a claim arising under a federal law but which may also include another cause of action arising under another law, provided it is attached and is not severable from the former claim.”
Of course s33 only operates if the Family Court already has jurisdiction: Re Ross-Jones; ex parte Beaumont (1979) FLC90-606 at pp78, 102 – 78, 103 per Gibbs J.
4.         Accrued Jurisdiction
Accrued jurisdiction is best explained by Barwick CJ in Philip Morris at p.475:
            “It is settled doctrine in Australia that when a court which can exercise federal jurisdiction has its jurisdiction attracted in relation to a matter, that jurisdiction extends to the resolution of the whole matter.  This accrued federal jurisdiction is not limited to matters incidental to that aspect of the matter which has in the first place attracted federal jurisdiction.  It extends, in my opinion, the whole matter between the parties.  This accrued jurisdiction carries with it the authority to make such remedial orders as are necessary or convenient for or in consequence of that resolution.  For this purpose the court exercising federal jurisdiction may enforce rights which derive from a non-federal source.  This exercise of this jurisdiction, which for want of a better term I shall call ‘accrued’ jurisdiction is, discretionary and not mandatory, although it will be obligatory to exercise the federal jurisdiction which has been attracted in relation to the matter.”
It is within the Court’s discretion whether it will exercise accrued jurisdiction: Stack v. Coast Securities (No.9) Pty Ltd(1983) 57ALJR 731; in Mackay and Mackay(1984) FLC91-573, Nygh J at p.79, 639 said:
            “The crucial question is the relationship of the issues with each other as they have emerged from the pleadings. 
            The fact that the parties to the federal claim and the non-federal claim are not identical, does not per se render those claims several.”
Warby and Warby(2002) FLC93-091
The Full Court held at pp88, 790 to 88, 792 that the Family Court of Australia is not restricted to the determination of a family law claim or proceeding; it may exercise accrued jurisdiction to determine the non-federal aspects of a justiciable controversy of which the family law claim or cause of action forms a part.  The factual circumstances of the case will determine whether jurisdiction arises and whether it is appropriate to exercise the jurisdiction:
1.      There is no constitutional basis for not applying to the Family Court of Australia the High Court’s analysis in Philip Morris of how and why the Federal Court has and may exercise accrued jurisdiction.
2.      The applicability of Philip Morris, Fencott v Muller and Stack to “federal courts”, a category which necessarily includes the Family Court of Australia, is expressly recognised in Re Wakim.
3.      But the Federal Court of Australia and the Family Court of Australia are creatures of statute and courts of limited jurisdiction.  The fact that the Family Court of Australia has a more specialised jurisdiction than the Federal Court of Australia does not provide a basis for doubting the availability of accrued jurisdiction of the Family Court of Australia.  It should not be forgotten that the Family Court of Australia is currently invested with federal jurisdiction by Commonwealth legislation under the Family Law Act
4.      The amendment to s31 of the Family Law Act 1983 gave the Court jurisdiction in “matters arising”under the principal or repealed Act “in respect to which matrimonial causes are instituted or continued” and that this legislative grant is to be distinguished from the earlier conferral of jurisdiction in “matrimonial causes” only.  The granted jurisdiction should not be read down.
5.      There may have been a blurring of distinction between the existence of accrued jurisdiction of the power to grant a remedy if accrued jurisdiction is exercised.  Once the property factual test is satisfied, the inability to grant an appropriate remedy is relevant to whether the available accrued jurisdiction should, in the exercise of discretion, be invoked.
6.      The Full Court in Davidson and Davidson (No.2) (1984) FLC92/469 gave an expansive interpretation to the ambit of powers available to the Court in s80 and there was power granted in s34 of the Act to the Court: “in relation to matters in which it has jurisdiction, to make orders of such kinds, and to issue, or direct the issue of, writs of such kinds, as the Court considers appropriate” – although there are questions about the scope of that provision.
7.      There is the issue of the Family Court’s capacity to adjudicate and make orders with respect to third parties.  Section 78 confers the power to make a declaration with respect to existing title or rights.  Since the amendment in 1988, the provision is not expressly confined to the property of the parties to the marriage or either of them and there is no authority which says that such a declaration may not bond a third party.  Ascot Investments – it was decided with reference to the limitation of the Family Court’s powers under sections 80 and 114 of the Act to validly order a company and its directors to register a transfer of shares and thereby to alter the nature, incidence or extent of the parties’ property and impose new restrictions on rights or powers of third parties.
The Full Court then said at p88, 793 as to the relevant factors as to whether the Court will exercise the accrued jurisdiction are:
1.      What the parties have done;
2.      The relationships between or among them;
3.      The laws which attract rights or liabilities to the conduct and relationships;
4.      Whether the claims are part of a single justiciable controversy and in determining that question whether the claims are “attached” and not “severable” or “disparate”;
5.      Whether the claims are non-severable for matrimonial cause and arise out of the common sub-stratum of facts; and
6.      Whether the Court has the power to grant appropriate remedies in respect of the “attached” claims.

The Full Court went on to say at p.88, 793:
            “Once the Family Court of Australia has the jurisdiction to make determinations which affect a properly notified third party, that third party cannot thwart the making of orders that affect the third party by declining to participate in the proceedings.  We agree with the submission for the husband that to find otherwise would elevate the status of the third party so as to enable the third party to thwart the exercise of the Court’s duty to determine the application between the parties to a marriage or former marriage.”
In Noll and Noll (2013) FLC93-529, the Full Court considered an appeal from the decision by Le Poer Trench J following refusal to determine the husband’s application for the Court to exercise accrued jurisdiction to determine the husband’s cross-claim for damages against the wife’s solicitors at the same time as it determined the wife’s claim against the husband relating to the financial agreement between the husband and the wife.
The Full Court said:
“[36]   One of the difficulties with a case such as this is…is that the question of the availability of the accrued jurisdiction has to be “decided on limited information”.  This is particularly so in the present case where we do not have available to us any affidavit.  We have only the claims made in the wife’s Statement of Claim, the husband’s Defence, and his cross-claim…Those documents reveal only that the wife claims that she entered the financial agreement on the basis of misrepresentations from the husband, and/or as a result of undue influence or unconscionable conduct on his part, and/or that the husband failed to ensure that the legal advice which the wife received was independent, and that if the wife succeeds in a challenge to the financial agreement, the husband will claim damages against the solicitors for breach of provisions of the Fair Trading Act 1999 (Vic), breach of warranty and breach of duty, with such damages being the difference between any order that would have been made had the financial agreement been binding and that which would be made if the agreement had not been binding.
37.       There would certainly be some facts relating to the entry by the husband and wife into the financial agreement and the dealings which each had with Law Firm A which would form some common substratum of fact, both for the wife’s claim against the husband in relation to the financial agreement and for the husband’s cross-claim against Law Firm A.  But we cannot be certain on the material before us that the entire factual basis..
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A requirement of making a financial agreement a binding one is to have independent legal advice. In a recent case, the wife alleged that she was subject to duress from the husband, when it came to two binding agreements- one signed just a few days before they married, and another signed shortly after they married.

In the case, Kennedy and Thorne, the husband and wife met on a dating site. She lived overseas and was 36. She spoke Greek. The husband was 67 and a property developer worth at least $18 million. The wife migrated to Australia under a spousal or prospective wife visa. Within a few months of living together in Australia, they married. After about four years they split up. It's not clear from the judgment how much the wife would receive under the second agreement, but at trial she sought $1.2 million, which seems clear would have been a lot more than she would have been entitled to under the second agreement.

The wife's difficulty was that before she signed the agreements she was told by her solicitor not to sign because they were terrible agreements- one of them being one of the worst that the solicitor had seen. The Full Court found that because of this legal advice the wife was not under the duress that the trial judge had found:

  1. Here, the evidence relied on by the wife to establish duress is in summary as follows:
    1. From the moment the parties met the husband expressed to the wife that he would provide for her and look after her for life if she came to Australia and married him.
    2. The husband made it clear that the wife would need to sign a document prior to marrying that acknowledged his wealth was his and it would go to his children.
    1. The wife was at all times financially and emotionally dependent on the husband having permanently left and cut her ties with Country B, and being in Australia on a limited visa.
    1. Just prior to the wedding, the husband arranged an appointment for the wife with a solicitor for the purpose of the wife obtaining legal advice about the financial agreement prepared by the husband’s solicitor.
    2. Before seeing the solicitor, the husband told the wife that if she did not sign the agreement the wedding would be off, and he told the wife and the solicitor that the agreement was non-negotiable.
    3. The wife’s parents and her sister had arrived in Australia for the wedding.
    4. The husband drove the wife and her sister to the appointment with the solicitor and waited outside.
    5. At the meeting with the solicitor, the wife became aware for the first time of the contents of the agreement and had information about the husband’s financial position.
    6. The solicitor provided her advice to the wife, and it was to the effect that the agreement was no good and she should not sign it. That verbal advice was followed up with detailed written advice by the solicitor, and at a subsequent appointment the solicitor went through that written advice with the wife.
    7. Despite the legal advice, the wife signed the agreement and the wedding went ahead.
    8. As to the second agreement, the wife’s position had not changed, in that she was still entirely dependent upon the husband, and similar conditions were in place. The wife saw the same solicitor and was given the same advice, but despite that, proceeded to sign this agreement.
  2. It is not apparent to us from that evidence what is the “threatened or actual unlawful conduct” of the husband. Or put another way, what pressure he applied that was “illegitimate” or “unlawful”.
  3. There is no doubt that the wife was reliant on the husband both financially and emotionally, and she looked to him to provide for and to care for her, but the husband met that expectation, and the wife accepted it. Thus, that cannot be seen as an element of illegitimate or unlawful pressure.
  4. Certainly, the husband imposed conditions, but as her Honour found, the wife was “keen to acquiesce”. In other words, the wife was well aware from the outset that the husband’s wealth was his, and that he intended it to go to his children. She was also well aware that a document needed to be signed to protect the husband’s and his children’s position.
  5. In relation to the agreements specifically, the fact that the husband required an agreement before entering the marriage cannot be a basis for finding duress. Nor can the fact that a second agreement was required. Further, and as we have referred to above, the wife’s concern was not as to what would happen to her financially whilst the husband was alive, but as to what would happen if he died. That was her focus, and that was dealt with to her satisfaction in the agreements.
  6. Again, as we have emphasised above, it was not in fact the case that the agreements were non-negotiable. Changes were made by the wife through her solicitor, and they were accepted by the husband.
  7. However, the real difficulty for the wife in establishing duress is that she was provided with independent legal advice about the agreements, she was advised not to sign them, but she went ahead regardless.
  8. We are not persuaded that the wife entered into either agreement under duress, and we are content to find that they are both valid and enforceable. However, once we have found that the second agreement is valid and enforceable, there is no need to bother with the first agreement because, as referred to above, the second agreement terminated the first.
  9. As to whether either agreement is binding, again we only need concern ourselves with the second agreement. To be binding, s 90G of the Act must be satisfied, and in particular there needs to have been independent legal advice provided to both parties about specific matters. We have found that that was the case, and accordingly, we are also content to declare the second agreement binding on the parties.
The wife has sought leave to appeal to the High Court.
Stephen Page, Harrington Family Lawyers, Brisbane spage@harringtonfamilylawyers.com 61(7) 3221 9544
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One of the perennial issues facing those whose relationships have ended- and by extension, their lawyers, mediators, arbitrators and family law judges, is what weight should be given to initial contributions as against contributions over the length of a marriage, especially a long marriage? Typically the party with most of the money, usually the husband, will say that initial contributions should attract a lot more weight (and therefore the other party, usually the wife) will get considerably less, while the party who came into the relationship with a lot less (usually the wife) will say- we have been together a long time, and if you don't count my contributions as equal, I am being ripped off.

Into this mix is the ongoing fight between family lawyers- when the lawyer for the party with money follows their client's line, and the one without takes the opposite view. All too often these matters do not resolve by negotiation, or through mediation, but end up at trial, with parties who have stark, polarised opposite world views.

One such case was that of Wallis and Manning. On an asset pool of just under $2 million, when the husband came in with most of the farming property and licences from family gifts, the trial judge after a 27 year marriage assessed the contributions of the parties as 70/30, and with the adjustment for future factors, this meant a division in favour of the husband of 60/40, or a difference between them of about $750,000. A big difference given the size of the pool after such a long marriage.

Not surprisingly, the wife appealed- and she was successful. Not surprisingly, the end result after a 27 year marriage was an equal outcome. The Full Court of the Family Court assessed contributions as 57.5%/42.5% in favour of the husband, with a 7.5% adjustment tot he wife in light of future factors.

Like cases should be decided alike
The first thing that the case stands for is that, even though there is a wide discretion under the Family Law Act as to what is a just and equitable order as to property settlement, judges (and therefore mediators, family lawyers and parties) should be guided by like cases.

The Full Court stated:

  1. A central question which emerges from the appellant’s grounds and arguments is whether that tension or question can and should be answered by reference to the assertion of a “range” of outcomes that mark the boundaries of a proper exercise of discretion in a particular case.
  2. The exercise of wide discretions informed by statutory considerations or well settled common law principles is not, of course, unique to s 79 of the Act. Awards of general damages for non-pecuniary loss in tort, and sentencing in criminal cases are familiar examples where daily tasks of judges include precisely that. Where the exercise of jurisdiction and power involve wide discretions by reference to statutory considerations or well-settled common law principles terms of convenience emerge, as do common practices, designed to facilitate expedition in the running of cases and “shorthand” submissions made within them. The assertion of a “range of outcomes” by the parties to a case is common in all such areas. In cases seeking orders for settlement of property pursuant to the Act, the practice is almost ubiquitous.
and:

Reference to comparable cases serves a principle central to the exercise of a wide discretion, namely, that like cases should be treated alike. That end seeks to avoid “arbitrary and capricious decision-making” which is the antithesis of “consistency in judicial adjudication”.

and:
Realistically there should be a consistency of results ...where genuine comparability exists, to provide “assistance and guidance in determining what is just and appropriate”

and:

  1. While recognising the fact that no two cases are precisely the same, we are of the view that comparable cases can, and perhaps should far more often, be used so as to inform, relevantly, the assessment of contributions within s 79.
  2. The word “comparable” is used advisedly. The search is not for “some sort of tariff let alone an appropriate upper and lower end of the range of orders which may be made”. Nor is it a search for the “right” or “correct” result: the very wide discretion inherent in s 79 is antithetical to both. The search is for comparability – for “what has been done in other (more or less) comparable cases”– with consistency as its aim.
  3. It is nevertheless also important to recognise, as Gibbs CJ did in Mallet that earlier decisions:
... do no more than provide a guide; they cannot put fetters on the discretionary power which the Parliament has left largely unfettered. It is necessary for the court, in each case, after having had regard to the matters which the Act requires it to consider, to do what is just and equitable in all the circumstances of the particular case.

How did the Full Court assess contributions?
The Full Court decided that the contributions of the husband were greater than that of the wife.

The Full Court held:

The parties were married for 27 years. Their marriage occupied virtually the entirety of their adult lives. Judicial debate has surrounded the so-called “erosion principle” but that debate has centred primarily on the question of whether early capital contributions are eroded only by “an imbalance” in later contributions. In our view, talk of “erosion” of the early capital contribution obscures the issue rather than illuminates it. However, it can be taken as well settled that the length of the relationship has a significant impact on how early significant capital contributions should be viewed in assessing the totality of the parties’ contributions. For example, the Full Court has said:
The longer the duration of the marriage, depending on the quality and extent of her contribution, the more the proportionality of the original contribution is reduced.[73]
and
The longer the marriage the more likely it is that there will be later factors of significance, and in the ultimate the exercise is to weigh the original contribution with all other, later, factors and those later factors, whether equal or not, may in the circumstances of the individual case reduce the significance of the original contribution.[74]
  1. The length of a marriage is important, then, in assessing the respective contributions of the parties, particularly when it is said that significant capital contributions made early in the marriage are a dominant feature of that assessment. It is, accordingly, an important consideration in seeking decisions that might assist in the assessment of contributions by reason of being “more or less similar” to the present.
  2. The land and water licences gifted by the husband’s father remain, many years later, as the predominant component of “the property of the parties or either of them” to which orders made under s 79 will apply.
  3. One half of the current value of Property N is $125,000. The half share in Property G has a value of $281,420. The Property G water licences have a total current value of about $700,000. The combined current value of the land and water licences gifted by the father represents about 35 per cent of the gross current value of the property and superannuation interests available for distribution and about 56 per cent of the net current value of that property. The wife’s capital contribution of her inheritance represents roughly 1 per cent and 1.75 per cent of the gross and nett respectively.
  4. The gifts made by the husband’s father were made early in a long marriage. The use to which those gifts were put rendered them of fundamental importance to the parties throughout the marriage. They provided the foundation for a farming business, operated as a partnership between the husband and the wife, from which the marriage derived income during its duration. They provided land upon which the parties’ home was situated and, thus, a place to live.
  5. The husband conceded in cross-examination that the current state of the properties and their current value was due to the very significant efforts of both parties in roles that both differed and overlapped throughout the marriage. Her Honour found in that respect that the wife “performed more of the parenting and the husband performed more of the work outside the home”. We adopt that uncontroversial finding.
  6. There can be little doubt on the evidence that each party contributed to the maximum of their respective capacities and abilities within these various roles. There was a genuine mutuality to their relationship and it, and the financial decisions and arrangements within it, were subject to the “unstated assumptions” that devolve from that mutuality. Contributions on this farming property involved hard work outside of what might be described as “normal working hours”, often seven days a week and often without holidays. Life and the derivation of income were subject to factors outside of the efforts of the parties (for example natural disasters, natural climatic conditions and the like). The parties’ roles were performed in an area relatively remote from urban facilities and interests.
  7. We see no reason to attribute to the role of either party any predominance or any greater “value”....
No two marriages are identical and reference to comparable cases is not designed to find either a “perfect match” or a “right answer”. Rather, what is sought is a comparison with more or less similar cases with a view to achieving a measure of consistency of assessments. That search might commence with comparable decisions of the Full Court where the discretion has been re-exercised. Both principle and pragmatics result in that pool of cases being small. That is because any re-exercise by the Full Court must be undertaken by reference to the facts and circumstances existing at the hearing of the appeal, and very frequently, many contested issues emerge between the judgment and the hearing of the appeal which effectively precludes a bench of three from re-exercising.





Stephen Page, Harrington Family Lawyers, Brisbane spage@harringtonfamilylawyers.com 61(7) 3221 9544
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Following action by the Weatherill government, South Australia has reviewed its laws concerning LGBTI people, resulting in the passing of a bill to set up a relationships register in South Australia. The relationships register, to commence at a date to be proclaimed, will bring SA into line with Qld, NSW, ACT, Victoria and Tasmania, which also have relationship registers.

Having a registered relationship can have a major impact on legal issues for a couple. If they split up, for example, then this means it is beyond doubt that at some stage they were in a de facto relationship- potentially saving many tens of thousands of dollars arguing in the Family Law Courts about whether they were or were not in a de facto relationship. Passing this law is a good move.
Stephen Page, Harrington Family Lawyers, Brisbane spage@harringtonfamilylawyers.com 61(7) 3221 9544
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