Sunday, 28 September 2014

Why I like being a divorce lawyer: "Only one person believed in me- you did, and you changed my life as a result. Thank you."

Many of my colleagues over the years- those who do not do family law- have said that those who do family law are mad, and "I don't know how you can do  it"- before regaling me with their rare, searing family law experiences. "Give me crime, or leases, or commercial work" seems to be the mantra, anything other than family law. They have evidently not experienced the extraordinary personal rewards that come from being a divorce lawyer.

Recently I had the joy of seeing an old colleague retire. My colleague was my supervisor many years ago- in the 80's, and she finally retired at the age of 78. Carmel Murray was known as the Duchess of Divorce- someone who tirelessly fought for her clients.

I mention Carmel, because it was from her inspiration that I decided to become a family lawyer. When I went to uni, family law was ironically the subject I liked the least. It didn't seem like real law- like trusts and equity- but had to do with the sordid topic of divorce. I was much more interested in what REAL law had to offer.

Then reality hit when I started in practice as a graduate law clerk in 1985. Insurance work, commercial work- well it might have been real- but on the whole I was bored rigid. After the rigours of a law degree, I could not believe that the rest of my life would have ended up like this! And then one day Carmel blew into the office. A force of nature, Carmel practised solely in matrimonial matters, as she said back then, and was beloved by her clients. Unlike the clients in insurance and commercial work, family law clients were real people!

Real people going through stresses and strains brought their own rewards. I discovered that I could help real people. This was not like helping a corporation, usually in a fight about money. This was helping those who were going through the pain of separation and divorce- and helping them stand up on their own two feet. At times, I would help my clients rediscover their sense of humour (although of course I was a lawyer, not a counsellor), and most often of all, their sense of decency and self-esteem.

There are few more satisfying acts than helping someone who has no self-esteem, after suffering the knocks of a relationship breakdown, and often an abusive relationship, to be able in the rough and tumble of divorce to be able to stand on their own two feet, and be able to take pride in themselves.

One of the most memorable occasions was acting for an Aboriginal woman who had suffered horrendous domestic violence. She was but a punching bag for her husband, a terrible, violent drunk, who bullied everyone around him, and when he didn't get his own way accused them of racism.

Her separation was more dramatic than most. Her husband was laying into her but that was not enough. He enlisted their teenage sons to help throw their mum over the bonnet of their car. She, and I'll call her Shelley, escaped, with blood pouring from her face. Shelley ended up at the local doctors' surgery. They quickly cleaned and stitched her up, and called the police. The police arrived- and did very little indeed. The police took Shelley to a refuge. The police told her to apply for a DVO. She had no idea what a DVO was. They didn't explain that it was a domestic violence order, or how to get one. They also didn't tell her that it was their duty- under law- to apply for one on her behalf if they reasonably suspected that she had been the subject of domestic violence. They also didn't tell her that she could press criminal charges against her husband.

Instead, Shelley was conveyed to a place of safety at least, the refuge. There she got help to apply for a protection order, when I was asked to help her, which I did gladly. Although Shelley's husband was going to contest her application, he arrived late at court, and Shelley was able to obtain the vital protection she needed.

Shelley then sought to have her husband charged with assault. Despite the clearest evidence that she had been grievously assaulted, police refused to take any action. I phoned the cop in question- to be given the lecture about why he was smart, and my client and I were dumb, how he was a police officer, and I a mere lawyer, etc. Well, that had the predictable response- the tersely worded letter of complaint by me about the cop. I didn't want the cop to lose his job. I just wanted him to do his job- the job that he had sworn an oath of office to perform. If I had sworn an oath of office as a solicitor, and he had sworn a similar oath as a police officer, the least he could do was to give me some respect and courtesy, and do the same for those seeking the protection of the law. The least he could do for Shelley, and the interests of justice, was to investigate the complaint of assault, and if the evidence stacked up- to charge Shelley's husband.

Following the complaint being made- and resolved- the police officer charged Shelley's husband with serious assault. That was not the end of that. Shelley's husband pleaded not guilty, and even dragged the kids in as witnesses to say how their mother had lied. They were disbelieved. Shelley's husband was convicted, and luckily for him, he was not jailed.

And on it went. Shelley wanted to see her kids. Off we trooped to the Family Court. It was one of those cases that leaves a bad flavour in the mouth. The expert who interviewed the sons said quite clearly that they were overborne by their dad, when they said that they wanted nothing to do with Shelley- but that there was little that he or the court could do. Reality hit home. With a sense of resignation Shelley stopped the court proceedings.

And then 7 years later on a Tuesday morning, completely out of the blue, Shelley phoned me, to thank me for what I had done. I said that I hadn't done much- we had got the protection order, her husband had not been jailed, and most bitterly of all, she had not been able to spend time with her boys. I had tried my best- law is the art of the possible- but we had not succeeded in having her husband made truly accountable for his actions, nor in allowing the boys to have a relationship with her.

Shelley told me that her life had turned around. She was now married to a man who was loving and respectful, kind and not a violent drunk. Shelley had managed to score full time work- extraordinary given that she had only got to Grade 3 at school. But most amazing of all, Shelley's sons were now living with her. They too had managed to escape the clutches of their dad, and moved to live with their loving mum.

Shelley then came to the crux of the call- why she had phoned me was to thank me. I said that there didn't seem much for her to thank me- given the outcome. Shelley told me that I was wrong. What I had taught her was to believe in herself. "No one believed in me, not even me. Only one person believed in me- you did, and you changed my life as a result. Thank you."

Wednesday, 24 September 2014

What an extraordinary morning- acceptance by both IAML and AAARTA!

Some morning its pays to wake up! This morning was one of those mornings. When I went through my emails this morning I came across two extraordinary emails. This morning I have been accepted into membership of both the International Academy of Matrimonial Lawyers, the most prestigious grouping of family lawyers internationally, and as the first international fellow of the American Academy of Assisted reproductive Treatment Attorneys, AAARTA.

If there is any doubt whatever, I have been recognised by my peers here and overseas, after extremely thorough vetting processes,  as having the necessary expertise in family law and surrogacy matters.

What an extraordinary day!

Tuesday, 23 September 2014

Visit to an old friend opposed to domestic violence

Last night I was lucky enough to call in an old friend who was recovering from major surgery. Her prospects are good, thankfully.

Visiting her made me reflect as to how long it has been that I have been involved with domestic violence. This is because we became friends in trying to help stop domestic violence. My friend started a court based domestic violence service. It was and is designed to help women and children when the women need to go to court (and related matters) over domestic violence issues.

I first met my friend as long ago as 1992. I had formed the view that she had started the service back then- but it became a running joke that although she had undertaken work in the area from 1992, she did not start the service until 1993. I was there from the beginning, although I did not get formally involved on her committee until 1999.

Long after my friend retired from that service years ago, I continued on the committee, finally leaving there, due to my other commitments, only last year.

When I first met my now old friend, way back in 1992, I had already had 7 years of helping survivors of domestic violence. I hadn't intended this to be part of what I did as a lawyer, but I was confronted by the ugliness of what many women (and occasional men) had to go through in their home lives. I hadn't been subjected to domestic violence when I grew up. My parents loved each other to bits.

Domestic violence was and remains truly shocking. While we as a society have taken considerable strides in reducing rates and the severity of domestic violence, it still remains unacceptably high, especially among aboriginal communities, and homicides still happen, as we saw with the murder of Allison Baden-Clay, for example by her husband Gerard Baden-Clay. And just in case I am unclear- any domestic violence is unacceptably high. We are all entitled to live in safety and freedom, hopefully in loving, respectful relationships.

So I decided to do what I could to help end domestic violence. This desire on my part has led me to help found a domestic violence service (now 20 years old), chair the committee of a women's and children's refuge, and be on the board for several years of a charity seeking to end domestic violence.

But above all, in the midst of this personal commitment, I was seeking to do good in my role as a lawyer- and by those special skills and training, help protect those who have been the subject of domestic violence. Lawyers have the ability by virtue of their advocacy and skills to make real differences in the lives of their clients and those around them. Our job at its finest is not by the numbers- it is making real changes in the lives of people- whether in the day to day run of litigation, advocacy and negotiation, or in the longer term advocacy for change of legislation and systems to be fairer and consistent.

I also recalled last night how many years ago my friend and I had both worked with a young woman full of laughter and joy who had helped end domestic violence, until she in turn was forced to flee for her safety- before she was murdered by her former partner. A tragic, preventable loss.

Last night as I was visiting my friend, I reflected about how I have been blessed to have helped change lives for the better, by helping keep people safer, and that thankfully, no one has been killed on my watch. Hopefully that record will endure. 

Mediation is just another form of negotiation

Today I helped a client at a mediation. One of the striking things about today's mediation, as opposed to any other, was that the mediator announced that he had been involved in over 4000 mediations. The first thing I thought when I heard that number is that I thought that it was a huge number- and then I am afraid to say that I thought that he was old!

However, the number made me reflect that I have been attending or running mediations as a mediator since, unbelievably, 1986. I can't boast of having had over 4000, but I would guess well over a 1000 or 2.

What struck me about all of this is the obvious- mediation is just another form of negotiation. Good lawyers should be able to negotiate on behalf of their clients. The reality is that there are negotiators and there are negotiators. An acquaintance of mine, who sold finance to buyers of cars, once joyfully told me the story of how car salesmen used to love it when lawyers came along to buy a new car. Why? Because the lawyers thought that they could negotiate- and assumed that when they signed the deal they were winners. The reality was that the lawyers were particularly poor negotiators, who did not know all the landscape before they went to buy a car- so when they went to buy a car while they thought that they were getting a bargain, the salesmen sold them the most expensive option. Last laugh to the salesmen.

When I say that mediation is another form of negotiation- that's all it is. Don't get me wrong- if you have a mediation then as a lawyer you must be prepared. It always amazes me the number of lawyers who unfortunately do not prepare for court adequately, and are left floundering when they get there. Mediation is no different, in the sense that preparation is essential.

But that's not all, of course. The lawyer's role in the mediation is to help guide the matter to resolution- if it is in the best interests of the client. Some of this come from reality testing, and making sure that the client is realistic BEFORE the mediation about the likely outcome. There is no point posturing before a mediation with a hopelessly exaggerated, unrealistic ambit claim, if all that it achieves is that the client concerned then believes that they are entitled to such an amount, and then won't back off. As well, an ambit claim has the profound effect of torpedoing any goodwill from the other side which may be vital in settling the matter.

After all, if the matter doesn't settle at mediation, then it may result in tens of thousands of dollars and months of misery while the matter proceeds through the Family Law Courts- let alone what untold misery could be inflicted by the parents on their children (even if a property dispute).

But why I say that mediation is a form of negotiation, is that despite the usually very helpful role of the mediator, mediation is not an end in itself. It is merely another form of negotiation, and something that should come to most family lawyers well. While mediation is the flavour of the month, negotiation BEFORE any mediation, or INSTEAD of mediation, or if it fails or does not resolve everything, negotiation AFTER a mediation should never be ignored. Those negotiations might settle the matter, even though they may not involve the intervention of a very helpful and very skilled mediator. 

Wednesday, 30 July 2014

Call for papers: gendered violence research network conference



Conference Background
The Gendered Violence Research Network (GVRN) – a joint initiative of UNSW Arts and Social Sciences and UNSW Law – will hold its inaugural Asia-Pacific conference on Gendered Violence and Violations at UNSW Australia (The University of New South Wales) in Sydney on 10-12 February 2015.

Gendered violence is increasingly recognised as a major global problem and constitutes a violation of human rights for women, men, children and elders. This ground-breaking international conference with an Asia-Pacific focus will combine and expand interdisciplinary research and practitioner knowledge to encourage innovation and best practice in responding to gendered and sexualised violence. It will also be an opportunity to explore less visible violations related to gendered inequality and injustice, including the continuing effects of colonisation.
Conference Themes / Streams
The GVRN conference aims to facilitate the exchange of perspectives, ideas and strategies between countries, regions and sectors, and will focus on the following conference themes/streams:
  • Investigating psycho-social, therapeutic and prevention interventions for gendered violence and violations: what are emerging interventions and do we know how effective they are, and can we intervene and prevent at the same time?
  • Engaging with policy and legal responses to gendered violence and violations: how are policies at different levels being designed, implemented and evaluated; and what are existing and potential innovative legal responses?
  • Exploring conceptualisations and representations of gendered violence and violations: how can various art forms  literature, television, visual arts and multimedia  be used by diverse cultural groups, and produce spaces of critique and agency?

Abstract Submissions / Call for Papers

The GVRN seeks submissions from academics, practitioners, policy makers, activists and advocates that address any of the conference themes, as well as the topics below. 
Forms of gendered violence, including:
  • Sexual assault
  • Domestic and family violence
  • Intimate partner violence
  • Child sexual abuse
  • Trafficking for domestic and sexual slavery and exploitation
  • Survival sex
  • Conflict-related sexualised violence
  • Gendered violence in migration, refugee and diaspora communities
  • Female infanticide
Areas related to gendered violence, including:
  • Cultural representations in literature, art, television and film
  • Law and justice reform
  • Theoretical and conceptual explorations
  • Disability and other intersectional issues
  • Intergenerational effects of colonisation
  • Perpetrators and offenders
  • Primary prevention
  • Trauma-informed care
  • Service gaps.
Submission Guidelines
Please submit abstracts of up to 200 words for 20 minute oral/paper presentations (excluding time for Q&A) along with a brief biography using the link to UNSW’s online conference manager as below. Proposals for complete panels (up to 3 presenters) and suggestions for chairs are also welcome. The deadline for abstracts is Friday, 5 September 2014.


Selection of Papers
We particularly welcome submissions that introduce challenging and unconventional perspectives, emerging evidence on the effectiveness of interventions, and those which are globally relevant or from the Asia-Pacific region. Other criteria for selection will include quality, organisation and clarity, originality, accessibility and relevance to current debates related to gendered violence. If papers are based on empirical research, preference will be given to abstracts showing evidence of research results.
Papers presented elsewhere may be submitted for consideration at this conference provided that full disclosure is made in the abstract submission.
Acceptance of papers for presentation at the conference is necessarily competitive. Selection will be the responsibility of the GVRN Conference Academic Committee, and will be based on the abstracts submitted. The GVRN Conference Academic Committee reserves the right to decline any submission.

Notification of acceptance will be on or before Friday, 17 October 2014. Successful applicants will be notified using the email address provided in the submission. Applicants must confirm their intention to participate and have paid their registration fees (at the discounted early bird rate) by Friday, 14 November 2014.
Publications

Selected contributors will be invited to submit extended versions of their papers for inclusion in one of several peer-reviewed post-conference publications.

 


About the Gendered Violence Research Network
GVRN members explore gendered violence – also known as gender-related or gender-based violence – as an expression of power and control over individuals or groups because of their gender. GVRN’s research interests span traumatic experiences including sexual assault, rape, domestic and family violence, conflict-related sexual violence, trafficking for domestic and sexual exploitation, and girl child infanticide. 
Subscribe for More Information
For updates on the conference – including the launch of the conference website, registrations opening, program details, confirmed speakers, master classes and poster sessions, sponsorship/partnership opportunities – as well as information about other GVRN activities, please subscribe to our e-List:
Subscribe here!
For specific enquiries about the conference or GVRN, please refer to the contact details below.
Our mailing address is:
Gendered Violence Research Network
UNSW AUSTRALIA (The University of New South Wales)
Sydney NSW 2052 Australia

Phone: +61 2 9385 2991
Fax: +61 2 9385 2993
Email: gvrn@unsw.edu.au
Website: www.arts.unsw.edu.au/gvrn

Tuesday, 1 July 2014

My four step approach to coping with separation and divorce

When you have been helping people going through divorce as long as I have, over 29 years (sorry that figure just made me feel old!), then you start to think about how different people recover from the pain of divorce and separation quicker than other people.

Over time, I have distilled this down to four factors. Sure there are others, but I see these four as being vital.

Factor 1: have a support network

I can't emphasise how important this is. If you are going through the pain of separation and divorce, it is vital in my view to have friends and family to whom you can talk and get things off your chest. someone to bounce ideas off. To give you support at those moments when you might otherwise do something silly. Who aren't too judgmental, but have good, calm heads on their shoulders. Support from a support network such as this is vital, and often the most important factor in getting through the pain of divorce and separation in one piece.

Factor 2: see a counsellor

Some of my clients don't get this, but I'll make it clear here: much as I am great at giving advice, I am a lawyer, not a counsellor. Counsellors are trained in the social sciences, and hopefully can listen well, and respond to you in positive ways. When your friends and family have had enough, or more than enough of supporting you through one disaster or another, please oh please get the support of someone who is paid to listen to you and to help you. Someone who will give you trained and dispassionate advice, and will charge you a lot less than a lawyer!

Factor 3: have a positive attitude to life

When the heavens open up, and lighting and thunder abounds, you fell betrayed by your ex, and cannot believe the latest outrage in his Facebook post, or in her solicitor's letter, or in his girlfriend's affidavit, or in his text message, it's easy to get angry. If anger is not dissipated quickly, it accumulates, and festers, and eventually turns into bitterness- driving you into a sour, shrivelled human being, who drives friends and family away (hence no support network except from other bitter people) and can have a devastating impact on your kids. No matter how hard it may seem, and ensuring that you take proper stock of your situation and do not live in a fool's paradise, have a positive attitude to life. You will find that by doing so that you will get through the most trying of circumstances quicker and in better shape than if you remain angry and bitter.

I remember many years ago acting for a female client who came to me under the most desperate circumstances. Police had rescued her from the farm in which she lived with her husband- before he might have killed her.

My client, I'll call her Grace, then went on to Centrelink benefits, lived in an outer suburb with no car, and virtually no public transport, and eventually in the most trying of circumstances managed to get a menial job. On top of everything else, when she split from her husband, Grace was shunned from her church, because she dared to split from her husband- no matter that he had beaten her, and threatened to kill her while armed with a gun.

To get to and from work everyday required gargantuan effort- and on top of that she had the Family Court fight from hell. It was a typical knock down, drag out matter, where Grace's husband tried to use every trick in the book to make sure that Grace did not get a cent. Think Josef Stalin's scorched earth policy and you've got the general idea. Grace after all that did get paid.

In the midst of this fight, I asked Grace how she was going. What I expected to hear was- terrible, awful, everything is bad, I'm the victim, etc, etc. Imagine my surprise when Grace said life could not be better. Why, said I? This doesn't make sense. Grace had a job, and all the feeling of socialising and pride that came from that. She found new fun- including water skiing- not bad for a woman in her 50's. Grace found new friends. Life had turned the corner- she could not have been happier. On top of everything else, Grace's mystery kidney complaint, which could not be cured, but resulted in her hospitalisation, but which doctors attributed to stress, amazingly lifted after she left her husband- and never returned.

Factor 4: get fit

Getting fit for most of us is not hard- it just requires a little time, effort and discipline. Provided you have some walking shoes it can be done for free. It sounds obvious, but exercise for someone going through the pain of separation and divorce is one of the best antidotes:

  • feeling fitter and stronger will mean that you have a more positive attitude to life
  • while exercising, you can get all those negative thoughts out of your brain, and either be able to reflect or meditate
  • while exercising, you will be absorbing more oxygen- again making you feel better
  • while exercising, your body will release endorphins- the body's natural pain killers- also giving you that euphoric feeling.


Monday, 23 June 2014

Take care with caveats- Family Court

In Homer's classic tale of the wanderings after Troy, the Odyssey, one of the challenges facing Odysseus was to escape the Sirens. These three singing maidens would sing to seafarers, calling them to their deaths when the seafarers, hearing their beautiful voices, would steer their ships to certain doom on the rocks. Odysseus, wisest of them all, plugged all his sailor's ears and had himself tied to the mast of the ship. He gave strict orders that when he called out to follow the Sirens, his men must ignore him. When the time came, and the Sirens sang out, Odysseus and his men, alone of all the sailors, sailed safely past.

If only this approach had been taken by the wife in a recent case before the Family Court. In the case, called Auricchio and Auricchio, the wife started court proceedings seeking 90% of the property owned by the parties. The husband filed his documents in response, saying that there was little point in the wife seeking certain restraining orders, or injunctions, against property to be sold, because the property had already been sold. The same day as the husband filed his documents, the wife lodged her caveat.

A caveat (which is from Latin and means "beware" or "warning") is a very powerful document. it prevents the registration of any dealings on land with the consent of the person who lodged the caveat. In effect you may be unable to sell, lease or mortgage property. This puts the caveator in a very strong position.

To lodge a caveat you must show that you have a caveatable interest- a specific interest in that land. If you don't then as part of the accountability for lodging such a document, the court can remove the caveat. You can also be liable for interest, costs and damages. Hence- be very, very careful indeed in lodging a caveat without justification.

When the matter finally came before the court, the wife said that she needed more time before the caveat argument could be put, as she needed more disclosure from the husband and his companies. She said the disclosure had been late and deficient.

Justice Forrest, in considering whether or not the caveat should remain, said that there was a three part the test that the caveator had to establish:

  • "(i) there is a serious question to be tried which involves showing “a sufficient likelihood of success to justify in the circumstances the preservation of the status quo”; and
  • (ii) it is fairly arguable that the caveator has a caveatable interest in the land, and, if so 
  • (iii) the balance of convenience favours the retention of the caveat on the title.”
His Honour stated:

 
  1. The adjournment of the application for the removal of the caveat was not made on the basis of the fact that the wife had only been given notice of it on Monday 7 April, two days before the hearing. It was made on the basis that the husband’s disclosure pursuant to Kent J’s orders had been late and deficient, and that the wife thus needed more time to consider the disclosed documents. Mr Looney QC submitted that proper consideration of the disclosed material would better place the wife to be able to present her case as to the balance of convenience favouring the retention of the caveat.
  2. Mr North SC made the submission in response that if the wife’s evidence did not disclose an arguable case for the determination of a caveatable interest in the subject property, there was no point to the adjournment that was being sought to more carefully consider the preparation of her case in respect to the balance of convenience argument. I respectfully considered that submission to have merit and considered that if I was not satisfied by the wife’s evidence that she had an arguable case to establish the interest in the land that she claimed in the caveat that there was no point in granting the adjournment just so matters relevant to the balance of convenience could be further considered.
  3. I set out in paragraph 18 of these reasons the interest claimed by the wife in the caveat she lodged and the grounds of the claim that she set out in the same caveat. She asserts she owns “an estate in fee simple as beneficial owner” on the basis of an “implied, resulting or constructive trust”. Although the Court was informed that there was a current intention to file in the proceedings in this Court an Amended Application seeking to establish the interest the wife claimed, that had not been done by the time of the hearing, which was just under three weeks from the lodgement of the caveat. Of course, a caveator has 3 months from the lodgement of the caveat to take such a step before the caveat lapses or only 14 days from the date of being served with a notice requiring her to do so by the caveatee.[5] The caveatee (the Second Respondent) had not served such notice at the time of the hearing and the wife had not yet “asserted” her interest, in the sense of taking a formal step in the proceedings in this Court to establish her interest as claimed.
  4. Nevertheless, the onus to satisfy the Court that she had an arguable case for an equitable or beneficial interest in the C Street property was on her and it may have been easier for her to meet that onus had a formal step been taken such as the filing of an Amended Application with an attached pleaded case in the form of a Statement of Claim. That had not happened and the wife was in the position of having to try to meet the onus on the evidence that was before the Court....\
To be able to establish that she had a caveatable interest, the wife asserted that her interest in that land arose by virtue of an implied, resulting or a constructive trust. Unfortunately, the wife had no evidence before the court to say so. His Honour stated of Mr North SC who represented the husband:

  1. He submitted, correctly, I was satisfied, that she did not depose to any bases asserting a caveatable interest such as claimed by her. He also submitted, again correctly, I was satisfied, that no trust was deposed to of the nature asserted by the wife in the caveat. The submission went on to assert:
... the Wife offers no evidence to support the existence of a trust, a breach of trust, or some other foundation for the remedy of constructive trust, for instance some unconscionable dealing.
  1. Again I respectfully accepted that submission. ...
  1. "With respect, the highest I could put the position advanced by Mr Looney QC for the wife on the evidence is that there is an inference available to be drawn by the Court that the wife, therefore, somehow contributed $48,000 into the cost of purchasing the Q Street development site or the cost of constructing the units on that site. Without actually having deposed to the assertion or without actually submitting it was the case, I understand the wife’s case is likely to be that she therefore somehow acquired an equitable interest in the Q Street development that on the sale of all of the units in that property must be traceable, through the use of the $530,000 from the sale proceeds of those units in the purchase of the C Street site for around $1,500,000, into an interest in that property.
  2. As Mr North SC submitted, correctly, I was satisfied, there was simply no evidence from the wife, who carried the onus of persuading the Court, that the $48,000 was somehow transferred by her to the Second Respondent other than as a loan and actually applied in the Suburb R development in some way. The Court was simply being asked to draw inferences to this effect from the evidence and Mr Looney QC himself even submitted that the wife could not fully “articulate all of the events that give rise to such a trust”.
  3. As Mr North SC ultimately pointed out, even putting the wife’s case at its highest, with all inferences being drawn in her favour, the value of any equitable interest that she might potentially establish she had in the Q Street development that cost approximately $2,700,000 alone just to construct would have to be minimal. Tracing that through the $530,000 of the total $4,119,000 sale proceeds from Q Street that were put into the approximate $1,500,000 total purchase price of the C Street property would, if it somehow could be demonstrated to have given rise to an equitable interest, be an interest of even more minimal value.
  4. In all of these circumstances, I was just not satisfied by the wife that there was a serious question to be tried and that she had demonstrated “a sufficient likelihood of success to justify in the circumstances the preservation of the status quo”. I was not persuaded that the wife had a “fairly arguable” caveatable interest in the C Street property.
  5. Accordingly, I determined not only that the adjournment sought by the wife should not be granted but also that the caveat should be ordered to be removed without even going on to hear any further argument as to the balance of convenience."
In ordering the removal of the caveat, Justice Forrest reserved the costs of the husband.