Sunday, 8 February 2015

Don't assume that you will have a family law property settlement in your favour- case

Too often it is assumed by a party, and sometimes their lawyer, that going to the Family Court will mean a get rich quick experience. It is mistakenly assumed by many, for example, that living together for 2 years will mean that the person who has nothing  will get 50%. Not so- except in the most extraordinary case.

Similarly, some years ago I had a number of cases where the couple had split up after 5 years of living together. The line was run by the solicitors on the other side, always unsuccessfully, because it was not based in law but was only an ambit claim, that their client, who had come into the relationship with no property, should be entitled to 45%. What rubbish. They ended up with nothing like that- because they were not entitled to anything like 45%. They were never going to get 45%. In the words of Darryl Kerrigan from The Castle: "Tell 'em they're dreaming."

I mention this because too often people who go to the Family Law Courts for property settlement have unrealistic expectations of what they are entitled to on property settlement.

An illustration of when a judge decided NOT to make a property settlement was the recent case of Fielding and Nichol. As Chief Judge Thackray stated about the de facto husband:

"His evidence appeared at times to be driven by a sense of entitlement arising out of having devoted 12 years of his life to the relationship."

The de facto husband and wife had lived together for 12 years. Each came into the relationship with real estate. The de facto husband wanted a 50/50 division of property. The de facto wife said that there should not be any adjustment of property and each should come out of the relationship with the real estate that they came into the relationship with. The de facto husband was 74 and the de facto wife 66. Both were retired, but supplemented their meagre income by the sale of their art. During the course of their relationship they kept their monies largely separate.

The difference between the parties was not big. The de facto husband owned $348,000 of property, and the de facto wife $465,000. In other words, there was an argument of about $60,000.

Chief Judge Thackray refused to make an order for property settlement in favour of the de facto husband.

His Honour held:

  • the husband’s insistence (and the wife’s agreement) throughout the relationship that the parties’ financial affairs should be kept entirely separate, with the intention that each would continue to hold their property separately, in circumstances where each party was mature, intelligent, and not in any way overborne by the other;
  • the fact that the assets were indeed kept entirely separate and the great bulk of them now exist in precisely the same form in which they were held at the commencement of the relationship (save for the fact that the wife now has an encumbrance over her property for which she is solely responsible);
  • the absence of any evidence to suggest the husband refrained from accumulating other assets (assuming he had the capacity to do so), or otherwise changed his position, as a result of having the benefit of using the wife’s home during their relationship and having assumed they would live out their days together;
  • the fact that neither party made any provision for the other to receive an interest in their property in the event of their death (save for the minor issue of the car, which lends support to the conclusion that the parties otherwise intended that the other would never obtain an interest in their assets);
  • the extent of the work done by the husband around the wife’s property was not such as to lead to a conclusion that it would be just and equitable to adjust existing property interests, especially given that the husband (and, for part of the time, his son) lived in the property free of rent; and
  • the ages and state of health of both parties, and the fact that although the wife has property of somewhat greater value than the husband’s, each party nevertheless has a significant asset which could be realised to meet needs that cannot be met from current income (noting that, at present, both are able to meet their necessary expenditure from their own income).

Because you're not supposed to hit girls

Recently a friend sent me a Youtube video where boys are interviewed. They are asked, eventually, to slap a girl. The boys know that this is wrong. They refuse to do so. In the words of one boy: "Because you're not supposed to hit girls."

These boys understood what many men do not: violence against their loved ones, their women, is unacceptable.

Wednesday, 3 December 2014

Extraordinary case: where a judge or court officials were accused of altering the transcript

Sometimes I come across a case that makes me shake my head.I read this case the other day that was in another realm; the barrister for the mother accused a Family Court judge or court officials of altering the transcript. Even worse - it appears that after the mother acknowledged that the transcript was accurate, her counsel continued to argue the point, with the result that the mother copped an indemnity costs order against her, and her counsel has been referred by the court to regulatory authorities.

Rather than read my version of what happened, here is the extract from the judgment in Carpenter and Carpenter, with "drivel" and "butt plug"included, starting with Ground 9 of the appeal by the mother: 

"Ground 9
The interests of justice in this case cannot be seen to be supported where the recordings of proceedings were edited and or amended before final transcription by the official transcribers.
  1. We are seriously troubled by the assertions made not only in this so-called ground of appeal, but also in the written and oral submissions of Ms Merkin.
  2. The first point to make is that it is not a proper ground of appeal. No appealable error is alleged, and it should be struck out as sought by both the father and the ICL. We observe though that Ms Merkin continued to pursue this complaint before us.
  3. The second and most concerning aspect is that the statements and submissions made by Ms Merkin in relation to this issue appear to have been made in breach of Rules 63 and/or 64 of the Barristers’ Conduct Rules of the
    Bar Association of Queensland.
  4. Those Rules are as follows:
63. A barrister must not allege any matter of fact in:
(a) any court document settled by the barrister;
(b) any submission during any hearing;
(c) the course of an opening address; or
(d) the course of a closing address or submission on the evidence;
unless the barrister believes on reasonable grounds that the factual material already available provides a proper basis to do so.
  1. A barrister must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the barrister believes on reasonable grounds that:
(a) available material by which the allegation could be supported provides a proper basis for it; and
(b) the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it is not made out.
  1. The written submissions of Ms Merkin in support of this complaint are as follows:
The Transcript is incomplete and absent of sections of the proceedings before the court where the internal record of the transcript demonstrates events not transcribed but nevertheless having been raised during the trial. It is not open to counsel to edit or amend the transcript. Neither is it open for anyone to do so either: Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11, at 72, per Heydon, Crennan, Bell JJ; and indeed, had the transcript been different than the transcript provided by the official transcriber, it would constitute a serious offence as an officer of the court. If the recordings have been edited or amended in any way, is not open to the judiciary or anyone on behalf of any judiciary to amend or edit the audio recordings of the proceedings before they are sent to the official transcribers.
(Footnotes omitted)
  1. It is plain that in that submission the allegation is being made that, inter alia, the trial judge may have amended or edited “the audio recordings of the proceedings before they are sent to the official transcribers.” It is also a fair reading of the submission that it is being alleged that the trial judge may have in addition edited or amended the transcript.
  2. In the affidavit material comprising the further evidence sought to be adduced by the mother, there is evidence that relates to this issue. Both the father’s counsel and the counsel for the ICL took no objection to this court receiving that evidence, and we are content to do so. Specifically, that evidence is comprised in paragraphs 73 to 84 of the mother’s affidavit filed on 6 September 2013, and in paragraphs 5 and 6 of her affidavit tendered to this court on
    20 September 2013.
  3. In summary, following the obtaining of the transcript of the hearing for the purposes of the appeal, the mother claimed that there were three instances where what was said in court did not appear in that transcript. In paragraph 75 of her affidavit filed on 6 September 2013 the mother identifies those three “data gaps” as follows:
    1. ...
Transcript – Data gaps
There are three areas of transcript which I say are missing. These areas are:
i. Appeal Book 6 – Day 1 of trial – pages 963 to 973
First sentence by his Honour before appearances announced, he said “Your client’s affidavit is full of drivel” to my barrister. This material is missing from the first page of the transcript.
  1. Appeal Book 7 – Day 3 of the transcript – pages 1117-1121 line 5 1117 to line 15.
Submissions of Ms Merkin to His Honour stated during this period “I’m the expert”.
  1. Appeal Book – Day 3 – pages 1131 to 1138 during
    Ms Merkin’s cross examination of [Detective T].
Ms Merkin held up a butt plug. His Honour asked what it was. Ms Merkin said “it is commonly referred to as a butt plug”. His Honour told Ms Merkin she was not allowed to bring such items into the court. It happened around P-171 but this record is missing from the transcript. The reason it was so obvious to me the material was missing is that at the time Ms Merkin held up the butt plug I clearly recall His Honour raised his voice and started to shout angrily. He shouted at Ms Merkin “You can’t bring that into my Court”. The event described above was referred to in Day 4, at P-350 from line 25 to line 15, P-351.
  1. The mother then deposes in paragraphs 76 and 77 to a “fourth piece of missing data”. She said this:
    1. It very recently came to my attention after conversations with my father, [Mr X], that there is a fourth piece of data is missing. On or about 30 August my father asked me words to the effect of “is the judge’s comment in the transcript?” I asked him which comment and he said words to the effect the comment where the Judge stated “I will be the judge of whether the children have been sexually abused and if you don’t like that then you can appeal”.
    2. I checked the transcript for each of the 3 dates my father attended the trial but could not find the comment he remembers the Judge made. ...
  2. Subsequently the mother consulted an “audio recording specialist” about digital court recording systems, and then she attended at court and listened to the audio of the hearing before his Honour. The mother recorded her “findings” in paragraph 80 of her affidavit as follows:
I listened to sections of the audio in which I had identified sections of data that were missing in the transcript and followed the audio with the relevant Appeal Book containing the written transcript in front of me. I was using a pair of i-phone earphones to listen to the recording rather than the old style earphones the subpoena room provided. In relation to item 1 and item 2 of my concerns I could not ascertain any discrepancies between the audio and the written transcript. What I did find was that, with the headphone I used which are the latest i-phone technology, I could audibly hear separate “channels” of audio in separate ears. For example I could hear the Judge’s channel in my left ear only and Ms Merkin’s channel in my right ear phone only.
(Our emphasis)
  1. In relation to the third piece of data allegedly missing, the only discrepancy the mother could find was a rustling sound was not recorded in the transcript. In paragraphs 81 to 83 of her affidavit, the mother deposed to hearing on the audio “a rustling sound of ... thin plastic” whereas the bag in which she brought the “butt plug” to court for the purposes of Ms Merkin’s cross-examination of the police officer was a “thick, black plastic bag” which when rustled sounded quite different to the sound in the relevant section of the audio. She also claims that when compared with the written transcript, “[t]he rustling of plastic is out of place”.
  2. Thus, in summary, bearing in mind the mother could not find on the audio recording the fourth piece of data allegedly missing, the only difference between the audio recording and the transcript is the absence of a rustling sound. However, we do not consider that to be of any significance or indeed supportive of the allegations the mother makes.
  3. As a result, the mother then consulted another “Audio engineering technician” about “how audio is constructed and how possible it is to make alterations to it.” The mother says that she was told that “it is possible”, but she subsequently ran out of time to again listen to the audio to test what the engineer told her.
  4. We note the following in relation to this evidence:
    1. The “quality team” of the contractor, Auscript, checked the audio in response to a complaint by the mother, and verified that the transcript in relation to the third alleged missing piece of data is “true to what was said in court”.
    2. In relation to the first alleged “data gap”, we note that according to the transcript, on 22 August 2012 his Honour commented that much of the further affidavit of the mother of 24 July 2012 “contains inadmissible nonsense”, and subsequently on that same day, his Honour said in relation to certain affidavit material relied on by the mother, that “[i]t seems to mostly contain inadmissible drivel to me in the nature of a character reference ...”.
    1. In relation to the third alleged “data gap”, we note that the relevant part of the cross-examination of the police officer by Ms Merkin commenced on 27 August 2012 (at page 171). Then there is the cross-examination of the mother by counsel for the ICL on the next day (28 August 2012), where this topic is pursued (at page 350). However, there is no discrepancy between the audio recording and the transcript, (save and except of course the rustling sound which we have found to be of no significance).
  5. It has not been established to us that anybody has amended or edited either the transcript of this hearing or the audio of this hearing before it has been transcribed.
  6. The particular concern that we have about the conduct of Ms Merkin is that despite the mother in effect no longer pursuing the claim that the transcript had been edited or amended, and limiting the claim in her evidence to an allegation in relation to the audio recording, her counsel has, as referred to above, pursued both claims, and most troubling, has suggested that the trial judge may have been involved in this.
  7. In these circumstances we propose to have the Appeals Registrar forward these reasons for judgment and the relevant part of the transcript of the proceedings before us to the Bar Association of Queensland for them to take whatever action they consider appropriate."

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.