Thursday, 26 November 2015

White Ribbon Day

Yesterday, 25 November I commemorated the International Day for the Elimination of Violence Against Women, or White Ribbon Day. I attended with 600 other Queenslanders at an event co-hosted by Premier Anastasia Palaczszuk and Dame Quentin Bryce. I and other White Ribbon Ambassadors attended. 

Several ambassadors of change, Darren Lockyer, Aurizon CEO Lance Hockridge, psychologist and COAG representative Ed Mosby and Magistrate Strohfeld all spoke of the critical beef for men to stand up and challenge entrenched attitudes to violence. 

Two events stood out for me. The Premier announced up to 10 days domestic violence leave a year, on top of other leave entitlements. Wonderful, though sad it's needed. 

The other was the increase in domestic violence applications at Southport since the specialist domestic violence court trial commenced. I thought may be 2,3 or say even 10%. No, the increase has been a whopping 59%! What other pent up demand for safety is there elsewhere in the country that the courts and society have not yet accommodated?

Quentin Bryce and Anastasia Palaczszuk in front of the Gallipoli choir. 

Grace Grace MP

Magistrate Colin Strohfeld
Aurizon CEO Lance Hockridge

Monday, 21 September 2015

Trustees for sale- new case

When things get really ugly, and no one can agree about anything when it comes to property settlement matters, sometimes the court is called upon to appoint trustees for sale of property. Who in turn is appointed can at times in itself be a vexed question.

This very issue was seen in a fight between three brothers, the Chows,  who were arguing over their late mother's estate. The way that the problems were addressed in the NSW Supreme Court in Chow v Chow (No 1) [2015] NSWSC 1347 contain pearls of wisdom. The judgment is not a long one, so I have included the whole judgment:

  1. The present proceedings involve a dispute in relatively small compass that has arisen amongst three brothers, who are the sons of the late Grace Chow who died on 1 December 2002. Probate of her will was granted to the three brothers on 27 September 2004 together with the third defendant who has filed a submitting appearance. The estate of Grace Chow is now fully administered. There remains in the estate a property at Darling Point. There are also in the estate three other parcels of real estate which are now co-owned by the three brothers, which I will refer to as Wentworth Avenue, a property containing two units, a Yeo Street property containing eight units and a Mosman property containing two units. Thus, there are four parcels of real estate which are involved in this current dispute. There is also a parcel of jewellery owned by the late Grace Chow. That parcel of jewellery has a value of approximately half a million dollars. Of that half a million dollars, one item is estimated as having a value of or at least a maximum value of about $350,000 and another $120,000, and there is somewhere between $30,000 and $100,000 worth of what I can irreverently call bits and pieces.
  2. The brothers are, to a great degree, agreed that all four parcels of real estate and the jewellery should be sold and a distribution should be made. However, there are four matters on which there is dispute and which I have to resolve. These are: (a) whilst it is agreed that orders should be made under Section 66G of the Conveyancing Act 1919 in respect of the four parcels of real estate, there is no agreement as to who should be the trustees, and the plaintiff and the first defendant on the one hand and the second defendant on the other hand have put forward counter proposals.
  3. Item (A) for decision is as to who should be the trustees to be appointed under Section 66G; item (B) is how should the jewellery be sold; item (C) is how should the costs of the present application be borne; and item (D) is what is the appropriate form of the orders. I will not deal with (C) until I have given my decision on (A) and (B), which will happen shortly. Then I will hear submissions on (C) and decide the point, then stand the matter over for short minutes to be brought in in due course because the orders may be very complicated. I will deal with (D) at a later date.

Item (A)

  1. I then pass to (A). The two sets of possible trustees are as follows, as put up by the first defendant and accepted by the plaintiff, are Mr Martin and Mr Anderson. Mr Martin is described in the evidence as an experienced property professional having worked for more than 40 years in the property industry, for 23 years he was in senior positions with a leading firm of estate agents. He has a non-executive board position with two companies in the industry and had been involved in senior roles.
  2. Mr Anderson has also been in the industry for a long time. He is a CPA of 40 years standing. He has been a member of various boards, and he has been in senior executive roles with estate agents and persons involved in the property industry for very many years.
  3. The opposing people put up by the second defendant are two company liquidators, Mr Olde and Mr Landrey. They are partners and they are experienced official liquidators. The second defendant put up alternatively two other official liquidators, but that is very much a reserve panel.
  4. I have no doubt that whichever team I appoint would carry out a competent and professional job. I suggested at one stage that perhaps one person from each team might be appropriate, although I could see that would lead to extra costs for consultation; but as that suggestion was not taken up by anybody, I will put it to one side.
  5. In Arrow Custodians Pty Limited V Pine Forests of Australia Pty Limited [2006] NSWSC 341, at [21] I said:
When deciding upon trustees for sale, where there is no consent, four factors usually need to be considered by the Court. These are in no particular order of importance; (1) the principle that the Court tends to prefer the preference of a person with the greater interest in the land ... (2) the trustees should be independent and as free from conflict of interests as possible ... (3) the trustees, particularly where they have more active duties than merely to sell a piece of real estate, should have the appropriate skill, expertise and experience; and (4) the Court should endeavour to get the best value for the parties' money and see that as between two equally alternative proposals the cheaper is preferred.   
  1. At the commencement of the hearing I put to all counsel that I assumed that those principles were the relevant ones to consider in this dispute and no one denied this, thus accordingly I apply them.
  2. So far as the first factor is concerned, we have a situation where the plaintiff and the first defendant hold two-thirds of the beneficial interest in the property and the second defendant one-third. Accordingly, on the larger interest factor, the plaintiff and the first defendant get a plus for Messrs Martin and Anderson. Factor 2 is that the trustee should be independent. That seems equally the case with both proposals. Factor 3 the appropriate skill, expertise and experience; that again appears to be relatively equal. I slightly prefer the plaintiff. The task is something like comparing apples and oranges because the second defendant's team as official liquidators would be used to selling all sorts of property the plaintiff and first defendant team are more skilled in the selling and dealing with real property. The reason why I slightly prefer the plaintiff is that one of the second defendant's nominees, Mr Langrey, is currently seconded to do some work in Denver Colorado. Although Mr Olde says that in any event when two people are appointed one has the lead and the other has the support role, and this would still be possible even though Mr Langrey is in Denver. It seems to me that is not the most desirable state of affairs.
  3. There are a whole series of cases and in the textbooks and Dalrymple v Melville (1932) 32 SR (NSW) 596 is one where a trustee has got into problems because there are two trustees and one leaves it to the other who does not deal with the matter appropriately. With two professional persons like Mr Olde and Mr Langrey, both of whom cannot be passed by the appropriate authorities as official liquidators, that is only a small problem. Nonetheless, when one is looking at very small margins over the two contenders, I slightly favour the plaintiff.
  4. Factor 4 focuses on costs. There are different methods proposed by the rival contenders as to the method of charging. The plaintiff and the first defendant's team say they will charge 0.85 per cent on the sale of properties within the brotherhood and 1 per cent outside that. On the other hand, the liquidators intend to charge their normal charge out rates which involve $625 an hour for the managing directors and corresponding lesser sums for persons lower down the pecking order. However, they would cap their fees at not more than what Messrs Martin and Anderson would charge.
  5. Mr Walton SC, who appears for the second defendant with Mr Sneddon, says this would mean marginally there could be a slight saving in costs with the Olde/Langrey team as opposed to the Martin/Anderson team. I think that is just possible, but the chances of it happening are relatively slim. Accordingly, when I add up the four factors, it seems to me that the plaintiff and first defendant's team is, if I can use the expression, ahead on points. Accordingly, I favour appointing them.

Item (B)

  1. The next question is what is to happen to the jewellery. The suggestion of Mr Blackburn-Hart SC, who appears with Ms Tucker for the plaintiff, is that it be left to the trustees to decide the method of sale. Normally, I would have a lot of sympathy with that proposal because it is far better for these things to be worked out at the coal face rather than judges to work it out in advance in theory. However, these brothers have a tendency to resort to litigation and to postpone the question seems to me not to perform my duty under s 56 of the Statute.
  2. It seems to me however, that I can to some extent get the best of both worlds, that is both leave it to the trustee and also give the trustee some advice in advance. The advice is that, unless the trustees consider that there are factors at the time when they make their decision to sell which outweigh what I am about to say, it would be appropriate to put in play what the first defendant suggests is the appropriate method of sale, that is in accordance with page 278 of the court book, that the two special items of jewellery which are referred to in evidence as parcel A and parcel B be again valued by an independent valuer. That valuation not be disclosed but the beneficiaries may then bid on parcel A and parcel B and the trustees would be justified in selling to the highest bidder, assuming there is a bidder, otherwise to sell at auction.
  3. Then the remainder of the jewellery should be put into three parcels C, D and E, the contents to be approximately equal in value, the contents of each parcel to be specified and again the brothers may bid for each parcel. The highest bid for any particular parcel is to be accepted.
  4. However, it should be noted that Section 66G only applies to the real estate so that the appropriate order when the short minutes are drawn up should recognise it is under Section 36A of the Conveyancing Act and the appropriate adjustments be made. I believe what I have just said deals with the matters of principle.
  5. As I said, I will leave Item (C) to be dealt with for now. When the orders are drawn up, care must be taken to make sure that under Sections 66H and 66I of the Conveyancing Act sufficient details are given as to consultation and as to the procedure to be adopted where one of the brothers is the successful bidder for any particular piece of property so far as that brother's interest, being set off against the purchase price.

Sunday, 23 August 2015

Australians loved using Ashley Madison

Recent figures from Reuters, folllowing the Ashley Madison data dump, show an extraordinary number of Australians used the website, presumably to have affairs. The numbers are simply astounding, and Aussies took to Ashley Madison with gusto- at twice the rate of big cities overseas:

Sao Paulo, Brazil is the overall winner with 374,542 users.

The population of Sao Paulo is about 11 million, or about half the Australian population in that one city. In other words, about 3% of the population had signed up.

New York: 268, 171

New York has a population of 8.4 million. About 3% again.

Sydney: 251, 813

Sydney has a population of 4.3 million. Almost 6%!

Melbourne: 213, 847

Melbourne has a population of 4.1 million. About 5%.

Brisbane: 118,857

Brisbane has a population of 2.1 million. Almost 6% again!

Perth: 88,754

Perth has a population of 1.8 million. Just under 5%.

Sunday, 16 August 2015

Divorce filing fees stay down- for now at least

"Those magnificent men in their flying machines,
they go up tiddly up up,
they go down tiddly down down.": Those Magnificent Men in Their Flying Machines

A great quote to describe the  way that family law filing fees have been going.

Before 25 June they were down. They were going to go upppity up, up on 1 July: substantially. Then the Senate stepped in on 25 June and disallowed the increase. They remained tiddly down, down.

That might once have been the end of the matter as the Legislative Instruments Act 2003 provides that when a regulation is disallowed by the Senate, that instrument cannot be reintroduced for 6 months.

The Government was not to be outdone. On Sunday 12 July 2015, when the Senate was in recess, the Government hiked the fees again uppity up, up- to take effect the following morning, Monday 13 July. However, just to make sure that the Government didn't get stuck by the Legislative Instruments Act, the fees were hiked up by an extra $5.

The fee hike was substantial:

  • A $355.00 increase in the full Application for Divorce fee in the Federal Circuit Court of Australia from $845.00 to $1,200.00. This increase matches the full Application for Divorce Fee in the Federal Circuit Court to the Family Court of Australia, which has increased from $1,195.00 to $1,200.00;
  • An $85.00 increase in the fees for an Application for Consent Orders from $155.00 to $240.00;
  • A $70.00 increase in the fees for issuing subpoenas from $55.00 to $125.00; and
  • A new filing fee will be payable for the filing of amended applications or subpoenas in the sum of $125.00.
I do not recall in 30 years of practice that chaos like this has happened from a fee hike. Those who lodged their fees by post were rejected because the amount was too little. Suddenly solicitors were demanding more money from disgruntled clients for the filing fee, because the Government had made the changes without any notice.

The ALP and the Senate were not to be outdone.

The first step was to challenge the tiddly, up, up in the Federal Court. ALP members Graham Perrett and Senator Claire Moore were in the Federal Court seeking to get the fee hike set aside, suing Attorney-General George Brandis in the process, and to go tiddly down, down. If they had been successful, then any reduction in fees by the Senate overturning the fee hike would have had to be refunded by the Commonwealth government.

They were not successful, the Federal Court deciding that fee hike was different from the previous uppity, up, up.

In the meantime the Senate came to the fore again and disallowed the fee hike. Unless the Government introduces yet another, different fee hike, the fees remain as is, the 25 June rate, for the next 6 months with the divorce filing fee at $845, not $1200, for example.

Watch this space to see what happens next!

Sunday, 2 August 2015

Defending a Hague Convention case

Of all the cases that are the hardest to defend, and therefore the one to make sure is handled the most carefully, is a Hague case. They are not to be trifled with.

Hague cases are technically demanding, and it is essential to get the detail right- first time. Because they are often dealt with very quickly, attempting to patch up a defence to a Hague case because of mistakes made earlier may be too little, too late. It is essential when defending a Hague matter not to jump to conclusions, and to examine the evidence very carefully.

So that I am not speaking in tongues, a Hague case is one brought under the Hague Child Abduction Convention of 1980. The concept of a Hague case is really simple- it is designed that by the most efficient means that the children will be returned to the country that they came from.

There are some tricks to Hague cases, and cases when they are defended sometimes turn on hotly contested facts, but here goes:

  • A child is taken from country A to country B.
  • Both countries have to have signed up to the Hague Child Abduction Convention. Sometimes this is called ratification, but could be accession or succession.
  • An added trick is that even if a country has signed up to the Hague Child Abduction Convention, they may not have signed up with the other country. In other words, both have signed up, but not with each other.  This is because one country may have placed a reservation with the other country.
  • The child was wrongfully removed from the first country or if properly removed from the first country was wrongfully retained in the second country. It is important to check that there was a wrongful removal, if that is alleged. It may be that because of the laws of country A that what at first glance is wrongful turns out not to be so.
  • The first country must be the child's habitual country of residence. If not the Convention does not apply.
  • The wrongful removal or wrongful retention was in breach of rights of custody of a person. "Custody" has technical requirements and includes the right to determine where the child can live. In Australia, the term "custody" is generally not used. The term "custody" within the meaning of the Convention would in Australia generally equate to parental responsibility. The question of this breach can depend on complex facts and law, and needs to be checked carefully.
  • The person whose rights of custody have been breached then approaches the government in their country which then sends paperwork to the Australian government, which then sends them to the local authorities, such as the NSW Central Authority, to apply to the Family Court to have the child returned.
  • That person must have, but for the actions complained of, been exercising rights of custody before the removal or retention.
  • The child must be under 16.
  • The application has been made within 1 year of the wrongful removal or retention. 
As you can see, even with this thumbnail sketch, Hague applications are very technical matters.

In defending a Hague matter, it is usually better to be able to defeat it on one of these technical points, rather than have to rely on one of the five defences. The reason is simple- even if the defence is made out, it is then a matter of discretion for the judge about whether the child should return. Quite often the judge will find that the defence is made out, but in light of the overall requirements of the convention order the child to go home.

The five defences are:

  •  the person was not exercising rights of custody
  • the person consented or acquiesced to the removal or retention
  • there is a grave risk to the child who would be placed in an intolerable situation of being returned (this can be a very tricky defence to establish)
  • a mature child objects to being returned- and has a strength of feeling on the point that goes beyond mere wishes
  • it would be a breach of human rights and fundamental freedoms to return the child

It is a mistake to assume that the basis of the Convention is that the best interests of the child are the paramount concern. This is not the basis of the Convention. The Convention is designed to ensure a quick return of the child back to their home country, where matters such as with whom the child can live will then be determined. Judges have often said that their role is NOT to determine best interests. that can be determined somewhere else.

I have enjoyed both prosecuting and defending Hague cases in Australia and overseas.

International Academy of Matrimonial Lawyers to become the International Academy of Family Lawyers

Context is everything, as they say. What might be a perfectly acceptable use of English in one part of the world could in another part be screamingly funny, because of local colloquial language.

The same applies to businesses.

I discovered that this week, when I received a letter from International Academy of Matrimonial Lawyers President, William Longrigg, that the Academy is changing its name from the outdated International Academy of Matrimonial Lawyers to the more modern International Academy of Family Lawyers. An overdue and welcome change. I am proud to be a Fellow of the Academy, the most prestigious group of family lawyers in the world, and I am pleased that its name is changing with the times.

But to get to this point, of possibly changing the name,  the Board of the Academy decided to engage a brand consultancy, which was- wait for it-  Red Rooster Group, not Red Rooster in Australia, the national fast food chicken chain

It was one of those letters I had to read twice, wondering whether I had read it correctly. I had indeed!

Monday, 6 July 2015

Some basic lessons of mediation: learnt over 29 years!

It is hard to believe, but it is now almost 30 years since I attended my first mediation in family law.

Back then we didn't call them mediations. We called them legal aid conferences. Legal Aid Queensland worked out that it was broke and decided to do something innovative- rather than fund both parties to go to court (remember when they did that), it thought that it could innovate by mediating a dispute, and hopefully get the matter resolved, with a better outcome for the parties, the children and taxpayers.

It pioneered an approach nationwide that then rolled out across the country, being finetuned year after year since then, aided by regulatory changes in 1996 and (a big lick of money as well) in 2006.

How we mediate has changed considerably since those pioneering days. No longer it is done in the lunchroom at Legal Aid's Woodridge office (at least I hope not!). Back then there were no offices for this new program, so the staff lunchroom was the one that was requisitioned. It was the only one big enough, but there were some obvious drawbacks:

  • everything had to stop at lunchtime, whether we liked it or not. Legal Aid employees in the office at the time quite rightly used to get quite snappy when they couldn't have their lunches! It was bad enough that they were prevented form having their coffees!
  • there was no ventilation. Sooner or later the oxygen level in the room would drop, the heat would increase and we would have to open the door to vetilate- rather defeating the confidentiality of discussions.
Since those pioneering days (back when Legal Aid Queensland had its headquarters in what is now Macarthur Chambers), mediation practice is much more streamlined. There are some common features between then and now:

  • It's not court! The mediators role is help fashion an agreement. It is not to find fault or determine who is telling the truth. He or she is not the judge.
  • Similarly, there are no witnesses. It's just and your ex (or more parties for more complex disputes). No one is getting into the witness box.
  • It is a bargaining exercise. The whole idea is to see if you can cut a deal, either about your kids or your money or both. It is a reality test.
  • If you can cut a deal, then that deal is usually the best. You don't want to be cut short, but then you don't want many months of agony, spending countless thousands on legal fees, taking time off from work, and always wondering whether you will be ok.
  • You are in much more control of the outcome than if you have a trial. While trials can have their cleansing and therapeutic sides- that type of trial is very rare. Much more likely is that someone who does not know you, your ex or your kids will be making hurtful comments about your and your childrens' lives. This can be largely avoided by mediation, or as we seem to be compelled to call it these day in children's matters- family dispute resolution.
  • It's good to be prepared! I have lost count of the number of clients who have come to see me for the first time, to get advice about the deal of the century that they have signed at mediation. Too often I shake my head and say- this is a bad deal, and it could have all been avoided if only you had properly prepared for mediation, including obtaining legal advice before you turned up.
  • When it comes to property matters it is important that there is as much agreement as there can be about the property pool and the history of contributions.
  • Mediation is generally ill advised in domestic violence and sexual abuse cases, or similar cases. Each of the parties must feel as though they have equal bargaining power- otherwise mediation is pointless.
  • If there is a domestic violence or similar order, it needs to be considered carefully before the mediation occurs, as the terms of the order might mean undertaking mediation in some form (or at all) is a criminal offence.
  • Mediation is not limited to occuring in person. Most occur in separate rooms, but can also occur via technology, such as Skype or phone. 
  • Going to mediation can be stressful! Guaranteed you will feel worn out afterwards!
  • Don't resile from the deal. It is better not to sign a deal, than to feel pressured, sign away and then the following day or week say- no, I am not going through with that. If you think things were ugly and bitter before the mediation, guaranteed that they will be a whole lot worse afterwards.
  • You can still live in hope. Many matters that don't settle at mediation settle afterwards. Last week one of our clients settled her matter some weeks after mediating. After they were poles apart at mediation, I thought that the chances of going to trial were very high. A great outcome!