These children are slowly indoctrinated into believing that their father is
cruel and unkind and likely to hurt them, when this is not the case
according to the Australian.
These children are slowly indoctrinated into believing that their father is
cruel and unkind and likely to hurt them, when this is not the case
It is always important to keep in mind that an adjustment of X% for s 75(2) factors leads to a disparity in the value of property received by the parties representing 2 x X%. It is that disparity, measured in “money terms”, that requires consideration in determining whether the result is just and equitable: see Campbell v Kuskey (1998) FLC 92-795 at 84,928. In the present matter, the 12% adjustment led to a disparity in favour of the wife equivalent in value to 24% of the assets, or in “money terms” an amount of $226,947 out of a total asset pool of $945,614....
His Honour did not, however, expressly record the cumulative effect of his
orders, electing instead to record the amounts each party would receive from
superannuation and non- superannuation assets respectively. Whilst it would, in
our view, have been desirable for his Honour to have recorded in dollar terms
the total impact of the proposed s 75(2) adjustment, we do not consider his
failure to do so constitutes appellable error.
We do consider, however, that in making what has been called the “leap”
from “qualitative evaluation” to “quantitative reflection” of that evaluation,
his Honour arrived at an adjustment for s 75(2) factors that was outside the
reasonable range of discretion.
The outcome needs to be considered in the context of the parties having
had a long marriage and now having no dependent children. Each of them is
gainfully employed. Although the husband has a superior earning capacity to the
wife and is four years younger than her, his income earning capacity is by no
The differential in the capital received by the parties in the present
matter was not far short of a quarter of a million dollars. The factor his
Honour said he particularly took into account in arriving at that outcome was
the disparity in income earning capacities and the associated impact on future
superannuation entitlements. His Honour did not quantify the impact on the
superannuation entitlements, although he did say that the value of the husband’s
superannuation “should increase at a significantly greater rate than the
superannuation entitlements of the wife”.
Reference to the husband’s statement of financial circumstances reveals
that he has salaried employment and his superannuation entitlements are held in
“accumulation” funds. We were not referred to any evidence that would suggest
the value of those entitlements would increase at any greater rate than the
wife’s entitlements. The inference we therefore draw is that his Honour assumed
the husband’s entitlements would increase at a greater rate than the wife’s
because his employer would be required to make greater superannuation
contributions commensurate with his greater income. In our view, that was a
proper assumption to make. However, when notice is taken of the current
superannuation guarantee levy (9% of gross income), the difference in
contributions into the parties’ respective funds would amount to only a few
thousand dollars per annum.
This relatively modest difference in annual contributions into the
parties’ superannuation funds would then need to be considered alongside the
disparity in net incomes of the parties (i.e. approximately $27,000 per annum)
in order to determine whether or not his Honour erred in arriving at a result
whereby the wife received $226,946 more than the husband out of a pool worth
Although counsel for the wife submitted that the opening sentence of
paragraph 35 indicated that his Honour had also taken other factors into account
(which he suggested were the differences in the parties’ ages, training, skills
and health) we do not discern from his Honour’s judgment that he considered
those matters to be of any real significance, save that he did draw attention to
the fact the husband was four years younger than the wife when he was
considering the parties’ entitlement to superannuation.
In our view, the differences in the parties’ net incomes and the
associated impact on their future superannuation entitlements, even when
considered with the differences in their ages, could not justify a s 75(2)
adjustment of 12%. The adjustment was outside the reasonable range of discretion
and the appeal will therefore be allowed.
We should also observe that we consider it was incumbent upon the trial
Judge to have regard to the fact that whatever additional portion of the
non-superannuation assets the wife received on account of s 75(2) factors would
be immediately available to her to invest. This would lessen to some extent the
difference in the parties’ incomes. The fact that the wife might prefer instead
to retain her unencumbered property is not the point – she has the option to
liquidate assets in order to generate income. There is no indication that his
Honour gave consideration to this issue.
Hindsight is a wonderful thing whereas in complex financial arrangements looking
ahead can be more difficult.
Similarly, when one looks at paragraph (f) it is quite clear that the purpose of
that provision is to ensure that offers to settle, if made seriously, are
considered seriously, to ensure the costs of litigation is avoided, the workload
of this Court is lightened, and one other consideration is certainly that a
party with greater wealth is not placed in a position whereby he or she can wear
out the other by simple attrition. In the circumstances of this case, although
paragraph (f) does not have a priority per se, the considerations represented by paragraph (f) are of overriding importance.
It is, therefore, my view that her Honour erred in not awarding the wife reasonable costs incurred after the date on which the offer was made ...
The plain words of the paragraph [s 117(2A)(f)] do not limit a Court’s attention
to offers which are greater than the amount awarded. Nor does the paragraph
state what consequences flow from whether the offer is greater or lesser than
the amount awarded, or how much that is the case. Words of limitation should not
be imported into the provision and nor should it be read as though offers in
proceedings under the Act carry the same consequences as payments into court in
common law matters.
We do, however, consider that the closer the offer is to
the award when the offer is under the amount awarded by the Court, the more
weight that should be given to this factor in considering the question of costs.
This principle must not, however, be rigidly applied. Offers must be seen in the
context of the case and the extent of the offeree’s knowledge of the parties’ financial
circumstances while the offer is live. In the family law jurisdiction, it is not
uncommon to find relationships where one party, often the wife, has
significantly less grasp of the parties’ financial arrangements, or the
financial circumstances are so complex that it would be premature to accept an
offer. There are also cases where the contents of the offer are in themselves
the subject matter of disputed value and legitimate subject matter for
determination. These and other features of the context of offers must be taken
into account when considering whether it was reasonable or not to accept an
offer, no matter how close to the ultimate result the offer may be.
There is no inconsistency between Robinson & Higginbotham and Pennisi v Pennisi. From both cases it is apparent that the significance of offers of settlement may differ and the context in which the offer of settlement is made is a proper matter to be considered.
Where there has been significant delay, there can be no assumptions that
statements of a general assertive character made by the judge are based on a
sufficient consideration of the evidence, or that evidence relevant to a
particular finding not considered in the judgment has not been overlooked by the
judge in making that finding where that evidence, if accepted, could have
supported a different finding....
And, finally, the long delay may give rise to a reasonable apprehension by the losing party that the judge delayed giving judgment because he or she had been unable to grapple adequately with the issues and, in the end, had become attracted to the decision which was the easiest to make. The possibility that such an apprehension may be held by the losing party requires the judge to deal with that party’s arguments in such a way as to demonstrate that those arguments have been understood and that their rejection has been based on a clear and rational process of reasoning.
The family report writer recommended that the children live in the mother's household on the basis that there were some protections for the children, including a ban on physical discipline, the father seeing the children regularly (so giving the mother respite), and parenting training.
The Full Court held that the Federal Magistrate's analysis of the risk of violence in the father's household was inadequate:
i) the Federal Magistrate says that he has consciously not made an order that neither party physically discipline the children because, given the issues that have been ventilated at trial, such an order is unnecessary and “both parties now know full well that such conduct is inappropriate” is quite inconsistent with the balance of the learned Magistrate’s assessment of risk in the mother’s household.
(ii) Secondly, that part of his judgment where he indicated that he rejected the family report writer's recommendation as to where the children should live, because the writer had said that should only occur with appropriate safeguards, as to which the Federal Magistrate said the writer had given no explanation of safeguards, is erroneous. The Magistrate set out the writer's evidence in his report in which the recommendation was made. However, in the very next paragraph, which was not quoted by the learned Magistrate, the writer had said:
Apart from the normal undertakings not to physically discipline the children, both parents may benefit from a parenting program in addition to – if resources allow – individual counseling on parenting. Moreover, in his examination in chief, then counsel for the ICL asked the report writer about the “safeguards” referred to in his report and then asked:
“Is there anything else that can be put in place that you think would help?”
The writer responded
“I would think that if the children are – if the younger children are in the care of their mother the most important aspect would be that the father is having continuing visits and time with the children, not only for the benefit of his relationship with them but also to relieve stress amongst the whole family and upon the mother.
(iii) While (save for the inconsistency referred to in the first point above) it may be that the Federal Magistrate adequately addressed the question of risk of violence in the care of the mother and while from time to time he mentioned evidence of abusive behaviour by the father, of the older children, the learned Magistrate did not attempt to make any real assessment of risk of violence in the father’s household, despite the writer's opinion of that risk and ample evidence pointing to that as an issue.
For example, the father had no extended history of carrying the burdens of child rearing, but had still acted abusively towards V. In relation to that event involving V, leading to the husband abandoning the children late at night, the family report writer had said:
...He [the father] appears to accept that this was inappropriate, but I doubt that this will prevent the same thing from occurring again.
In addition, the evidence from the Department of Child Safety included a number of allegations against the father.
"We do not say that, properly weighed, a finding that risk of violence was less in the father’s household than in that of the mother might not have been open. Our conclusion is however, that the learned Magistrate’s assessment of comparative risk, in a case in which that was a critical factor, was inadequate." (emphasis added)
This type of case is not limited to Facebook or Myspace. One could well imagine parties wanting to look at their ex's adult connections type site. The case is a signal reminder that posting information on the web has all kinds of risks. Those going through a family law split are often the most vulnerable to a vengeful ex determined to dig up dirt for some perceived advantage in the court case.
Everyone's in a downturn. A look at who's best equipped to bounce back.
The good news
Yes, there is some. Self-assessment transactions can occur almost instantly, not having to wait 48 hours as was required through the OSR. The 48 hour turnaround compares with NSW which is 24 hours.
You will be positioned on a special moveable table with your head, neck or
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MRI machine makes during the exam.
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Unfortunately, some parents abuse the privilege and write abusive comments, or when they don't like what the other side has written, keep the book and then claim that it is "lost". To prevent this happening, sometimes the other parents photocopy every page before handing over the book. What a pain! I have had clients say to me that they want to copy everything, but who has access to a copier?
I recently received a blurb about a new product called the Family Law Communications Book. What joy such a simple thing can bring. It's funny how something so cheap can save so much aggravation and cost. As they say, necessity is the mother of invention, and in my opinion at least this product is needed, and welcome.
Here is what the blurb said:
This book is printed in triplicate with carbonless paper. When you make an entry, you tear out the top sheet and keep it for your record. The other party can use the remaining sheets to write a response or follow up and they tear out the second copy for their record. The third copy remains in the book as a permanent record. If the book is lost or stolen, each of you still have your record of what was written. The books are designed to be numbered by volume and each set of pages is also consecutively numbered from 1 through to 30, enough to do the average family for more than a year. The books are printed with a durable cover in A5 size so that fit easily into the children’s school or overnight bags.
What an excellent idea!
Faced with that evidence, the outcome was not in doubt: Waters was acquitted. Not surprisingly, NY police are now being trained in being careful in what to say online.
In my life before this parliament I acted in family law for more than 20 years and both
prosecuted and defended thousands of cases involving domestic violence, so I know that
intimate family relationships—relationships of blood, marriage and culture—are perilous
for women and children. One in three women experiences domestic violence in
their relationships. The Queensland Police Service estimates that about 30,000 instances
of domestic violence are dealt with by Queensland police annually. However, many
go unreported, so there are many more than that. Signs at work include bruises, frequent
accidents, vague explanations, plans being cancelled at the last minute, having to check
things with their husband or partner, changes in behaviour, unexplained sick days, frequent
calls and emails from their husband or partner and long hours spent at work simply to avoid going home.
The impact of domestic violence on our workplaces is enormous. Four million women and six million men are in the workplace in Australia. It is estimated by a report to the Brisbane Lord Mayor’s Women’s Advisory Committee entitled Impacts and costs of domestic violence on the Australian business/corporate sector[rtf file] that domestic violence costs $1.5 billion annually in direct and indirect costs and opportunities lost. Access Economics, in its 2004 report The cost of
domestic violence to the Australian economy, estimates that domestic violence cost our
economy $8.1 billion in 2003.
I urge all CEOs and all businesses in my community and nationally to get behind Australia’s
CEO Challenge to harness the power of the workplace to tackle domestic violence. It is important that the patterns of power and control, including physical, sexual, emotional, verbal and financial abuse, are gotten rid of in our workplaces and in our family life. The repercussions for women and children in my community and in the community nationally are horrendous. We should do everything we can in our workplaces to ensure that women are protected so that their children
can have lives of fulfilment free from domestic violence. I commend Australia’s CEO Challenge for the work they do.
I acknowledge and accept that the Court should be slow to discharge the ICL...
Whilst this matter was not without difficulty, the most significant matter,
in my view, is that the husband has deposed and asserts that the offices of the
ICL, which is a small firm in a country town, provided him with advice, upon
which he acted in circumstances where he could reasonably have assumed legal
proceedings may be commenced and he was entitled to expect that that advice was
confidential. Whilst he could not point to a letter of engagement or file, in my
view, what is at stake is that the integrity of the legal process and the legal
profession so that all parties involved in litigation may have confidence in the
integrity of the legal system and the process.
In my view the justice of
this matter does require that the ICL be restrained from acting.
The passage from the Full Court's decision in Kennon clearly indicates that
is a relatively narrow band of cases to which a Kennon-type
apply. The Full Court's decision focuses on conduct
marriage, but not
afterwards, which suggests the concept
not intended to
post-separation contribution. There
emphasis by the Full
Court on the
had a discernable impact on
made by one
focus seems to be on
that there has
impact on a party's
ought to have
been. As I
read the Full Court's
decision, little or
room is left for
inference. The claim can
only be established by
satisfies the Court on
the balance of
As a comparison, in the recent Federal Magistrates Court case of Jarrett and Jarrett, McGuire FM had this to say, showing that a Kennon claim can be hard work to get up:
The wife raised a further contribution issue in that she claims to have suffered
domestic violence at the hands of the husband. He denies any physical violence.
The evidence of the wife is that the husband was for a period a heavy
drinker. She says he would become violent and that he yelled at and hit her and
the children. On an occasion she was pushed out the front door and into the
street with the oldest child. There was police involvement. The wife moved to a
women’s refuge for a couple of weeks. She obtained an intervention order against
It is clear that following the decision of the Full Court of
the Family Court of Australia in Kennon v Kennon domestic violence can be a relevant contribution
However, it is also clear that it is incumbent upon a party
relying on such an issue to show more than violence per se. The onus is to
demonstrate the violent conduct:
...to have had a significant adverse impact
upon that party’s contributions to the marriage, or, put the other way, to have
made his or her contributions significantly more arduous than they ought to have
The courts have emphasised the exceptional nature of the
principle. The onus is to prove a connection between violence and contribution.
In my view, in this case the wife has not discharged that onus. Her evidence
is only as to the fact of the alleged violence rather than any impact on her
The Court has an inherent power to amend an order in such a manner as to give
rise to the Court’s intentions even where the order has been entered. This power
arises even if the Court thought the order did reflect its intention; Gikas v
Papanayiotou (1977) 2 NSWLR 944; Hatton v Harris