Wednesday, 29 December 2010

Autistic boy ruled OK for sex change by family court | News.com.au http://ht.ly/3voHm
Gay parents are more equal than others: study SMH http://ht.ly/3voky

Monday, 27 December 2010

Child neglect equally harmful as physical or sexual abuse: study http://ht.ly/3uxCj
Judge orders girl, 14, to live with sect http://ht.ly/3uxBX

Saturday, 25 December 2010

Beating the Christmas blues

It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to heaven, we were all going direct the other way.

Dickens- A Tale of Two Cities


The hardest part at Christmas when you are separated or divorced, especially when your children aren't with you, is the sense of loneliness. It is accentuated by it being Christmas- when all around you there are carols being sung, peace and joy being proclaimed, and underlying it all a message of love.

When you're alone, and feeling unloved, it can be a bit hard to take. The pain at times can feel overwhelming. It can be numbing, crushing, and make you question your inner beliefs. Like acid, it eats away at you, and you start to wonder whether you have done anything right to anybody in your life.

As a friend of mine said to me pithily the other day: "Snap out of it."

It is vitally important to stop wallowing in self-pity, especially at Christmas. You have a life to lead, a joyous productive life, where you can by your daily actions improve the lives of others, as well as yourself.

Beating the Christmas blues

  1. Think positively. Stop wallowing in self-pity.Even in the worst moments, you have lots to offer yourself and others, especially family and friends. It is much easier to look at a glass half full than one half empty.
  2. Be with people who love you, if possible, such as family and friends. Support networks are vital. If you don't have anyone, think about how you will get a support network in the new year. Join a club or association or go to church. Before you know it, you will have friends who love and accept you for who you are.
  3. Help others, if you can't be with people who love you. There are always people worse off at Christmas than you. The fact that you have been able to read this online means that you are ahead of many people already.
  4. Smell the roses. Remember that life moves a day at a time. Squeeze the joy out of every day. There may have been little things that you liked before that you have overlooked or not noticed. Get in touch with what brings you joy. Think of those interests that you gave away when you were in a relationship, but you have always wanted to do. Fishing, cooking, travel, watching the cricket, here we come.
  5. Get counselling. It is always good to talk to an objective, supportive counsellor. There is no shame in doing so. This may be hard on Christmas Day. Lifeline operates a free 24/7 counselling service: 13 11 14. It is always better to talk to someone than do something stupid.
  6. Make realistic goals. The year has almost ended, and the new year is about to start. What realistic goals do you need to make to help put your life on track? If you are not seeing your children, what do you need to do to ensure that you can see them? You may have to go through family dispute resolution, see a family lawyer like me, or even as a last resort go to court. Think it through.
  7. Take care of yourself. Don't be too hard on yourself. Your body and mind are your temples. Look after them and nurture them.
  8. Get fit. One of the key ways to turn your life around. There is nothing like fitness to dispel feelings of gloom. A rush of oxygen and endorphins, better self-image, and feeling better and stronger, is one of the best ways to beat the Christmas blues.
Merry Christmas one and all.

Sunday, 19 December 2010

WikiLeaks cleared of breaking Australian law | Courier Mail http://ht.ly/3rrrx

Wednesday, 15 December 2010

Red Book plan a step towards gay marriage http://ht.ly/3poNn

Monday, 13 December 2010

Proposed laws will ban Tasmanians, for the first time, from accessing overseas commercial surrogacy clinics.

Friday, 10 December 2010

Spy cameras the latest weapon in war on child-support dodgers : http://ht.ly/3mWsc

Family Court: conduct reconsidered: zip is not enough

In a recent Full Court of the Family Court case of Polonius and York, the court said that to give the husband nothing by way of property settlement was not enough, and remitted the matter for rehearing before a different Federal Magistrate. The court summarised the law as to conduct on property settlements.

The court also said that in cases where there had been a long marriage, followed by a long separation, the appropriate course might be to assess property on an asset by asset basis.

The parties had separated in 1997, after a 22 year marriage. They continued to live under the same roof for another 10 years. The husband became bankrupt shortly after separation, and the wife paid out the trustee to keep the house. As a reminder of why it is important to remember that the time limit for property settlement is one year after divorce, not separation, many years after they separated, and after he was discharged from bankruptcy, the husband sought a property settlement.

Federal Magistrate McGuire thought that the appropriate amount that the husband should receive was nought, nil, nix, zero or zip, or as the Full Court said:

The effect of the order made by the Federal Magistrate was that the Husband only received his superannuation interest of $1,500.00 or 0.17 per cent of the net assets of the parties. The former matrimonial home and the superannuation interests have a value of $459,226.00 of which the Husband received an entitlement of 0.33 per cent. In other words, the Husband received virtually nothing, which is what his Honour intended.

The Federal Magistrate considered that the wife's contributions post-separation "negated" the husband's earlier contributions, a proposition specifically rejected by the Full Court.

Conduct

  1. Marital conduct of parties is not specifically referred to in s 79 of the Act and as a general proposition the marital behaviour of parties is not of itself relevant to applications under s 79: Soblusky and Soblusky (1976) FLC 90-124. However, there may be circumstances in which marital conduct may be relevant and taken into account. If the conduct of a party towards the other had a significant adverse impact upon the other parties’ contributions to the marriage or made the other parties’ contributions more arduous than they ought to have been, then this may be relevant: Kennon v Kennon [1997] FamCA 27; (1997) FLC 92-757. As well, certain types of behaviour which have a direct connection with financial matters may be relevant. In Sheedy and Sheedy (1979) FLC 90-719 Nygh J said at 78,872 that conduct may be relevant “if it has financial consequences, such as financial misbehaviour resulting in the waste or suspension of family assets”: see also Fisher and Fisher (1990) FLC 92-127 at 77,846.
  2. In Kowaliw Baker J said at 76,644:
As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of the marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a) where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets or
(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Conduct of the kind referred to in para. (a) and (b) above having economic consequences is clearly in my view relevant under sec. 75(2)(o) to applications for settlement of property instituted under the provisions of sec. 79.
Examples of this type of conduct may include circumstances where the drinking and gambling of one party has led to the failure of a business or the dissipation of assets: see Mead and Mead (1983) FLC 91-354 per Asche SJ at 78,369.
  1. In Kowaliw Baker J also said at 76,644-45: “It does seem to me, however, that if a party has either by deliberate act or by economic recklessness reduced the value of assets available for distribution then the economic consequences which flow therefrom including the resultant burden to the other party are directly relevant to a consideration of the respective contributions of the parties contemplated by sec. 79(4)”.
  2. It follows that in certain circumstances financial misconduct or financial misbehaviour may be taken into account in a number of ways. It may be taken into account by the notional inclusion of an amount at step one of the preferred approach to the determination of an application pursuant to s 79 of the Act which was explained in Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) [2003] FamCA 395; (2003) FLC 93-143 or when assessing the contributions at step two of the preferred approach or perhaps when considering the other factors at step three of the preferred approach: see M and M [1998] FamCA 42 (1 May 1998).
  3. In this case, it was not established that there was financial misconduct or financial misbehaviour as we have described above. The Federal Magistrate made clear at [73] that the evidence did not enable him to “make a positive finding that the [Husband had] acted recklessly, negligently or wantonly”. Thus, it follows that the parties had the benefit of amounts that comprised the secured and unsecured debts of the Husband of perhaps $241,626.00 ($139,626.00 plus $102,000.00): see Boege and Boege.
  4. We also observe that in relation to what Baker J said in Kowaliw with respect to the sharing by parties of financial losses, in Browne v Green [1999] FamCA 1483; (1999) FLC 92-873 the Full Court (Lindenmayer, Finn and Holden JJ) observed at 86,364:
    1. On a careful consideration of the material before us, we have had to conclude that it was manifestly unjust to the husband in this case to depart from the Kowaliw guideline and to place upon him the full burden of the losses, merely on the basis that he was that party who initiated and had overall control of the venture which led to the financial losses, particularly in circumstances where there is no suggestion that the wife was anything other then a willing participant. There can be little doubt that had the Hayle project succeeded, the wife would have sought to share in the fruits of that success, and there would seem to be no reason why she would not have been entitled to do so. It is this last-mentioned consideration, being that parties generally expect to share the economic profits of a marriage, which, in our view, requires that there should be good and substantial reasons for departing from the principle that where there are economic losses incurred in a marriage, those losses should be shared, absent any negligence, recklessness or deliberate dissipation of assets by one party. No such good and substantial reasons are apparent to us in this case. (emphasis added)

    Post-separation contributions

    The Full Court stated:


    It then becomes necessary to consider what happened subsequent to separation in mid-1997. Before proceeding we observe that in Zalewski and Zalewski [2005] FamCA 996; (2005) FLC 93-241, Finn J observed at 79,978:
It is my impression that there are currently coming before the Court a significant number of cases in which the period between the parties’ separation and the hearing of their property settlement proceedings is substantial. The delay seems often to arise, at least in part, because the parties have initially reached some form of informal (or even formal) settlement from which one party later resiles (often for good reason). In these long separation periods, the parties will usually have built up substantial new assets or incurred substantial liabilities. In an endeavour to satisfy the parties that any orders which are eventually made by the Court in these somewhat complicated cases are just and equitable, it can, in my view, be very useful for Judges to assess contributions to property on an asset by asset basis. (emphasis added)

We agree with these observations. In a case such as this, where there was a marriage of long duration and a lengthy period of separation before the hearing of applications for property settlement, during which time significant assets were accumulated by one or both parties, it should indicate that in such circumstances it may be more useful to undertake an assessment of contributions on an asset by asset, or, category of asset by category of asset basis: see Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513.
Way now clear for surrogacy for profit for UK parents to be: SMH http://ht.ly/3mOOB

Thursday, 9 December 2010

Full Court: no need to intervene but give evidence if money owed to you

In the recent Full Court of the Family Court case of Baldwin and Baldwin, there were three main issues:

  1. whether the husband's mother and brother should have intervened in the proceedings;
  2. what debts should be included in the asset pool; and
  3. whether a tax debt should be included.
1. Affidavit or intervention?

It is common for family members to swear affidavits in property settlement proceedings about money owing to them. It is less common that they will intervene. In this case the mother and brother gave evidence, but did not intervene.

It was alleged that money was owing by the husband to the trust controlled by his brother and mother. Counsel for the wife criticised them for not intervening, a point accepted by the trial judge.

The Full Court held:

We agree with Senior Counsel for the husband that it was unnecessary for the husband’s mother and brother to have intervened in the proceedings to protect the debts owed to their trust, and that it was an error for his Honour to have taken this consideration into account as he appears to have done when determining not to include the debts in question in his calculation of the net value of the parties’ property. 
 2. What debts?

An  was as to the amount owing to the husband by a family trust, and whether that should be balanced by a debt owing to a related entity. The court held:

  1. While we recognise that there are good arguments for taking into account in the calculation of the net value of the parties’ property both the husband’s loan account with the A Baldwin Trust and the debts owed to that trust by the parties’ company, nevertheless, we propose in the exercise of our discretion not to do so in our re-determination of this case.
  2. This is not only because the debts to the trust are legally the responsibility of the company and not of the parties personally, but also, more importantly, because we cannot be satisfied that the company may not have some capacity itself to repay some of the debts. We note in this regard that in the document prepared by the wife’s counsel, Mr North SC, which contained the schedule of the parties’ assets (which his Honour adopted), there is also included a schedule of the company’s assets and liabilities. That schedule (which we do not consider necessary to set out) indicates that the company may have funds in the order of $685,000.00 which could be used to satisfy part of its liability to the trust.
  3. Moreover, we consider that if in determining the value of the parties’ property we were to take into account a liability of the company, it would also be necessary to take into account any assets it has. While there is some indication of such assets in Mr North SC’s schedule of the company assets and liabilities, we do not consider that we have the necessary supporting evidence to allow us to do this. Furthermore, we understood from our discussion with counsel at the hearing of the appeal, that the case was not run at trial on the basis that the company structure could be completely ignored, in the sense that all its assets and liabilities could simply be regarded as the assets and liabilities of the parties.
  4. Once we have determined that we cannot safely take into account the liability of the company to the trust, it follows from what we have said earlier, that we cannot take into account as an asset of the parties, the husband’s loan account with the trust. However, given that the expert’s evidence was that if loans to the trust (including the company’s loan) were not repaid in full, then it was unlikely the husband would receive the full - and we emphasise “the full” - balance of the loan owing to him, and given also the expert’s evidence concerning the book values of the trust at over $4.5 million, we would be prepared to take into account in our consideration of the s 75(2) matters, the likelihood that the husband will receive at least some of his loan account at some time.
3. Personal tax- or for the benefit of the parties?

The husband owed just under $120,000 in outstanding income tax. Some of this related to the period before separation. The trial judge did not take it into account, as he said it was the husband's personal tax liability and that the husband should have paid it:

In the course of the oral submissions of the husband’s solicitor, his Honour queried why the tax liability should be deducted in the calculation of the net value of the parties’ property. The husband’s solicitor responded that it was because it had been incurred “while the parties were together”. His Honour responded that it was the husband’s “personal tax”, and he can be read as enquiring as to why the wife should be responsible for the interest and penalties which arose because the tax was not paid. The husband’s solicitor responded that his client had not been in a position to lodge a tax return as he never had the money to pay the tax.

The Full Court held that the tax debt had to be taken into account:

His Honour’s reason for refusing to include the estimated tax liability in his calculation of the net value of the parties’ property was that it was the husband’s responsibility alone to pay the tax on the income (which was received from his family trust). We do not accept that that conclusion was open to his Honour in circumstances where there is no suggestion that any income actually received by the husband was used for the purposes other than the parties’ family and/or business (cf Parshen v Parshen (1996) FLC 92-720). To the extent that distributions from the A Baldwin Trust were not actually paid to the husband, these would now be represented in the husband’s loan account with the trust.(emphasis added)

Wednesday, 8 December 2010

Family Court: no right to legal representation in family report interviews

The Full Court of the Family Court has ruled that there is no right to legal representation in the family report interview process.

It did so in the Tryon and Clutterbuck saga. Mr and Mrs Tryon had previously been unco-operative with the obtaining of a DNA report about their twins. Mr Clutterbuck said that he was the father, even though Mr and Mrs Tryon had not separated. The Federal Magistrates Court had found, therefore, that in light of their refusal to be co-operative, that Mr Clutterbuck was the father.

Following an unsuccessful appeal to the Full Court of the Family Court, the matter ended up in the Family Court. The Tryons refused to take part in the family report process (where a psychologist or social worker interviews the family to assess what is in the best interests of the child) without having their lawyer present. Not surprisingly, the family report writer was not going to undertake an interview with a lawyer present.

An order was then made for their to be a family report- with the Tryons to attend without their lawyer. Not happy with this result, the appealed, saying that they had a right to a lawyer.

The Full Court of the Family Court rejected the appeal and the alleged right:

  1. In the course of written submissions in support of that challenge, senior counsel for the Tryons asserted that the trial judge had erred by refusing to allow their solicitor to be present at the interview for the purpose of the preparation of the s 62G report. So doing was asserted to have constituted a denial of natural justice to the Tryons.
  2. At other places in his written submissions, senior counsel for the Tryons referred to the “exercise of discretion” in relation to the question of the Tryons’ entitlement to legal representation at interviews with the family consultant.
  3. Early in the course of oral submissions to this Court, senior counsel for the Tryons clarified that the real basis of the challenge maintained by them was that the Tryons had an absolute right to be legally represented during interviews with the family consultant for the purposes of preparing the s 62G report. By denying the Tryons that right, the trial judge was asserted to have denied them natural justice. Senior Counsel for the Tryons thus confirmed that no part of the challenge to the trial judge’s order involved questions of the exercise of discretion. Put simply, the Tryons’ contention was thus that the trial judge had no discretion to deny the Tryons the right to be represented during the interviews.
  4. In his written submissions, senior counsel for the Tryons submitted that although a family consultant “does not sit judicially or possess the qualifications of a judicial officer he or she nevertheless performs discretionary functions, sometimes analogous to judicial work”.
  5. Reference was then made to the judgment of Heydon J in Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531, in reliance upon which it was submitted that the “discretionary functions carried out by a family consultant” gave rise to obligations of the kind to which Heydon J referred in the context of the Industrial Relations Court. We struggle to accept that a family consultant exercises any “discretion” in the preparation of a report pursuant to s 62G of the Act, or otherwise discharges functions “analogous” to judicial functions.
  6. In our view, the role of the family consultant in acting pursuant to s 62G is that of an expert preparing a written report in reliance upon his or her expertise. Whilst the expert opinion evidence of the family consultant may assume significance in the exercise of discretion by the court in the proceedings in which it is received, that does not in our view imbue the task undertaken by the family consultant with discretionary or judicial elements.
  7. It was further submitted by senior counsel for the Tryons that:
    1. In the absence of a definitive ambit of enquiry contained in the legislation that founds the power to appoint a consultant, one necessarily must invoke the rules of natural justice. These have been referred to as rules of procedural fairness and are designed to ensure that decision-making is fair and reasonable. Put simply, natural justice involves decision-makers informing people of the case against them or their interests, giving them a right to be heard (the hearing rule); not having a personal interest in the outcome (the rule against bias); and acting only on the basis of logically probative evidence (the no evidence rule).
  8. Whilst we do not disagree with the statement of principle asserted by senior counsel for the Tryons, there is in our view a significant distinction between a person or body exercising “decision-making” powers, such as a court or tribunal, and a person, such as a family consultant, who provides expert opinion evidence to such body for the purpose of its decision-making function. To the extent that an expert witness is shown to have departed from the standards to which senior counsel referred, the weight likely to be given to such evidence by the decision-maker will be reduced, or the evidence possibly even ignored.
  9. It was further submitted by senior counsel for the Tryons that:
    1. There is a presumption in law that the rules of natural justice must be observed in exercising statutory power that could affect the rights, interests or legitimate expectations of individuals. It may be the case if action is taken by a public official by or on behalf of a public sector agency to merely collect information and report to the management of an agency, there is no obligation to notify the subject of the complaint. However, if an investigation will lead to findings and recommendations about the matter, the investigator should provide natural justice to the person against whom allegations have been made.
  10. We do not disagree with the statement of principle asserted in this submission. We do not accept however that the family consultant exercises any “power” in preparing a family report. Nor does the family consultant make “findings” in the sense that the term is applied to judicial determinations. Nor does it follow that the report of a family consultant “will lead” to findings by the court in which the evidence of the family consultant is adduced with respect to the “rights, interests or legitimate expectations” of parties to the proceedings in that court. They may have that result, or they may not. What impact, if any, the report of the family consultant has upon the exercise of a judge’s discretion will only be determined after its author has been cross-examined if the report is controversial, and all other relevant evidence considered. Clearly, the extent to which it emerges in the course of cross-examination of a family consultant that he or she has expressed opinions or recommendations in the absence of affording a party a fair opportunity to be heard is likely to reduce, or even destroy the weight which would otherwise be given such conclusions or recommendations.
  11. Senior counsel for the Tryons also relied upon the decision of the Federal Court in WABZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 30; (2004) 134 FCR 271 in which the Refugee Review Tribunal erroneously refused to allow a solicitor to represent a person whose rights under the migration laws of this country were under consideration. There is an obvious and material difference between being represented in proceedings which could result in a person’s expulsion from, or detention in the Commonwealth, being represented, and a person being represented for the purpose of the preparation of a report pursuant to s 62G of the Act, the weight given to which would be determined after the parties referred to in such report had the opportunity to cross-examine its author during the course of proceedings in the court in which other evidence would also be adduced, and tested.
  12. Senior counsel for the Tryons sought to support his clients’ case by reference to the decision of the High Court in R v Cook; Ex parte Twigg [1980] HCA 36; (1980) FLC 90-859, (1980) 147 CLR 15. It was submitted that the High Court accepted in Cook’s case that a “s 62G inquiry involves or may involve the parties seeking legal advice as to whether they can or whether they may or may not answer questions”. [Transcript 16 April 2010, page 11, lines 21-23]. The entitlement to legal representation was submitted to have been a “basic right”, identified and recognised by the High Court.
  13. It was thus submitted that:
...once you have a basic right in the context of a s  62G order not to answer questions, then it’s not a quantum leap, it’s not a substantial move to conclude, well, that right must necessarily involve legal advice. And legal advice based upon the issues to be determined, legal advice based upon the law, on the rules of evidence, etcetera.
Now, it would be passing strange to countenance a procedure where a person in the Appellants’ - people in the Appellants’ position could obtain legal advice in contemplation of a s 62G hearing in advance without knowing what form the hearing would take, without knowing what questions would be asked, without knowing what issues the counsellor would raise or be interested in over and above the very broad outline contained in the original order.
So once you start with the premise that there is a right either to be silent or to answer some questions, then we would argue that necessarily, as a matter of fairness and natural justice, just involve legal advice. And to make any sense of that proposition which we say is basic, it must necessarily require the provisions of legal advice in the hearing at the time the hearing takes place. [Transcript 16 April 2010, page 11, lines 25 – 41].
  1. The combination of the right to legal advice prior to the preparation of a s 62G report, an absence of express statutory prohibition on legal representation during interviews with a family consultant for the preparation of such report, the nature of the report, and its potential significance were thus submitted to lead to the conclusion that parties to proceedings in which such a report was ordered had an absolute right to legal representation during interviews for its preparation.
  2. Senior counsel for the Attorney-General submitted that there was no constitutional entitlement to legal representation, except in the area of serious criminal offences in reliance upon the decision of the High Court in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 and New South Wales v Canellis [1994] HCA 51; (1994) 181 CLR 309.
  3. It was accordingly submitted that the only basis upon which the Tryons could claim a “right” to legal representation at interviews conducted for the purpose of a s 62G report must be found within the Family Law Act as a statutory right or, if not able to be found in the Act, as a requirement of natural justice. Senior counsel for the Attorney-General submitted that neither of those possible bases for a “right” to legal representation could be established.
  4. It was submitted by senior counsel for the Attorney-General that s 62G contained no express right to legal representation in relation to the preparation of a report ordered pursuant to the section. It was further submitted that there was no basis upon which it could be said that s 62G implied any “right” to legal representation.
  5. As we have earlier recorded, senior counsel for the Tryons submitted that there is no prohibition in s  62G on parties being legally represented at interviews with a family consultant for the purpose of preparing a report pursuant to s  62G of the Act. The absence of an express, or implied “right” to, or prohibition upon legal representation at interviews for the preparation of reports renders closer scrutiny of the nature of the process enlivened by the making of a s 62G order appropriate.
  6. The crux of the submissions of senior counsel for the Attorney-General in relation to this topic were that:-
    1. It is arguable that no obligation to accord natural justice arises in respect of the actual preparation of the report by the family consultant.
    2. Obligations to accord natural justice are most readily found to be imposed upon ‘decision-makers’. However, the family consultant is not acting as a decision-maker. He/she is preparing a report, that may be used by the trial judge when the judge makes decisions in the exercise of judicial power.
  7. By reference to the decisions of the High Court in Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596, Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408, and Edelsten v Health Insurance Commission (1990) 27 FCR 56, Northrop and Lockart JJ at 69-70, it was further submitted by senior counsel for the Attorney-General that “arguably” there was no requirement to afford procedural fairness in respect of the preparation of the family consultant’s report because it was “preliminary in nature” and lacked finality or immediate consequences for the Tryons, or the father.
  8. In support of the contention that the family report was “preliminary” to the issue to be determined, which related to the best interests of the children the subject of the proceedings, senior counsel for the Attorney-General relied upon the fact that the family report was only one of a number of evidentiary matters to be considered by the court determining the parenting proceedings.
  9. Senior counsel for the Attorney-General also relied upon the reality that the judge finally determining the proceedings would, in accordance with the principles of natural justice, afford all parties the opportunity to challenge the contents of, or reliance upon, the report produced pursuant to s 62G. It was submitted however that those matters gave rise to no “right” to legal representation at interviews conducted for the purpose of preparing the s 62G report.
  10. It was further submitted by senior counsel for the Attorney-General that:
    1. In any event, even if the rules of natural justice did apply during the preparation of the report itself, the content of that obligation to accord natural justice would not extend to any requirement to permit legal representation at appointments with the family consultant.
  11. It was further submitted on behalf of the Attorney-General that what was required by a decision maker to satisfy natural justice obligations would “largely depend on the particular facts of each particular case” and that there was “no fixed body of rules”, the requirements of natural justice being “flexible”, the circumstances of a particular case determining what was required in accordance with “the duty to act fairly”. (See Kioa v West [1985] HCA 81; (1985) 159 CLR 550, Mason J at 585.)
  12. By reference to the judgment of Brennan J in National Companies & Securities Commission v News Corp Ltd [1984] HCA 29; (1984) 156 CLR 296 and the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 it was submitted that the terms of the Family Law Act, and particularly s 62G, which created the function, the nature of the function and the administrative framework in which the statute requires the function to be performed, were factors material to determining what had to be done to satisfy the requirements of natural justice.
  13. Having analysed those factors (paragraphs 18, 19 & 20) senior counsel for the Attorney-General admitted that:
    1. Whilst the content of any obligation to accord natural justice may extend to giving the Appellants an opportunity (or opportunities) to be interviewed, and to present material to the family consultant that they considered relevant, it would not extend to requiring the family consultant to conduct the interviews in the presence of a legal representative. There is nothing in the statutory framework that supports such an implication. Rather, if anything, it supports the opposite conclusion.
  14. For reasons which he articulated, senior counsel for the Attorney-General submitted that the High Court’s decision in Cook provided no support for the Tryons’ contention that they had a “right” to legal representation, or that denying them legal representation at interviews with the family consultant constituted a denial of natural justice. With respect to senior counsel for the Tryons, largely for the reasons articulated by senior counsel for the Attorney-General, we are not persuaded that the High Court’s decision in Cook supports the Tryons’ claim. There is a material distinction between providing legal advice to a party, or anyone else who is to be interviewed by a family consultant for the purpose of preparation of a s 62G report, and having a legal representative present during the course of such interviews.
  15. The nature of the s 62G report, the reality that the expert opinion evidence contained in it may be tested, and that the weight given to it is a matter for the court, combined with the reality that such evidence is only part of the evidence before the court, and that such weight is ultimately likely to be significantly or even decisively influenced by findings made by the court with respect to disputed issues of fact are influential in the conclusion we have reached in relation to this issue.
  16. The provisions of s 135 of the Evidence Act 1995 (Cth) provide further support for concluding that, although the family consultant conducting interviews for the preparation of the s 62G report had an obligation to give each of the parties and any other persons interviewed for that purpose a fair and unbiased hearing, such obligation did not extend to a “right” to legal representation during such interviews. The safeguards to which we have referred alleviate the risk that a party will be adversely impacted in parenting proceedings in the event of the family consultant failing to conduct interviews fairly and impartially.
  17. Section 135 provides:
General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a)  be unfairly prejudicial to a party; or
(b)  be misleading or confusing; or
(c)  cause or result in undue waste of time.
  1. In submissions in reply, senior counsel for the Tryons submitted:
    1. The Family Consultant’s Report is the conduit through which the views of the children are put before the court. The process engaged in preparing/obtaining the report must be transparent. The accuracy and reliability of the facts adduced in the report can only be properly ensured via a legal representative. The presumption that a lawyer would hinder or obstruct the process is misconceived. Rather than hinder or obstruct, the presence of a lawyer would guard against second and third-hand hearsay; oppressive, unfair and misleading questions; and bullying.
  2. With respect, this submission does not really advance the Tryons’ contention that they have had an absolute right to legal representation at interviews with the family consultant, any more than would the converse of the propositions advanced in this submission be supportive of the absence of such an entitlement. With respect to senior counsel for the Tryons, the factual assumptions upon which the submission is based are not assumptions we would make. The submission also overlooks the reality that it is the court in which the report is received which decides the proceedings, not the family consultant. The family consultant is an expert witness. The principles governing expert opinion evidence are not in doubt. In Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, Heydon J (as he then was) clearly explained the nature of expert opinion evidence, and the role such evidence plays, or may play, in proceedings determined by the “ultimate trier of fact”, which in this case is undoubtedly the court.
  3. Nowhere, either in the provisions of the Evidence Act governing expert opinion evidence, or any decision to which we have been referred or have discovered for ourselves, does the proposition that a party is entitled to legal representation during the course of preparation of expert opinion evidence find support. That cannot be inadvertent.
  4. In his submissions in reply, senior counsel for the Tryons sought to rely upon s 41 of the Evidence Act in support of the asserted entitlement to legal representation at interviews with the family consultant.
  5. Section 41 of the Evidence Act, which, as senior counsel for the Tryons reminded the Court, is preserved by s 69ZT(1)(a) of the Act, provides:
Improper questions
(1)  The court must disallow a question put to a witness in cross-examination, or inform the witness that it need not be answered, if the court is of the opinion that the question (referred to as a disallowable question):
(a)  is misleading or confusing; or
(b)  is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; or
(c)  is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate; or
(d)  has no basis other than a stereotype (for example, a stereotype based on the witness's sex, race, culture, ethnicity, age or mental, intellectual or physical disability).
(2)  Without limiting the matters the court may take into account for the purposes of subsection (1), it is to take into account:
(a)  any relevant condition or characteristic of the witness of which the court is, or is made, aware, including age, education, ethnic and cultural background, gender, language background and skills, level of maturity and understanding and personality; and
(b)  any mental, intellectual or physical disability of which the court is, or is made, aware and to which the witness is, or appears to be, subject; and
 (c)  the context in which the question is put, including:
(i)  the nature of the proceeding; and
(ii)  in a criminal proceeding--the nature of the offence to which the proceeding relates; and
(iii)  the relationship (if any) between the witness and any other party to the proceeding.
(3)  A question is not a disallowable question merely because:
(a)  the question challenges the truthfulness of the witness or the consistency or accuracy of any statement made by the witness; or
(b)  the question requires the witness to discuss a subject that could be considered distasteful to, or private by, the witness.
(4)  A party may object to a question put to a witness on the ground that it is a disallowable question.
(5)  However, the duty imposed on the court by this section applies whether or not an objection is raised to a particular question.
(6)  A failure by the court to disallow a question under this section, or to inform the witness that it need not be answered, does not affect the admissibility in evidence of any answer given by the witness in response to the question.
Note: A person must not, without the express permission of a court, print or publish any question that the court has disallowed under this section: see section 195.
  1. Again, with respect to senior counsel for the Tryons, the provisions of s 41 of the Evidence Act are directed to the court which decides the proceedings in which the family consultant’s report may be received as evidence. We do not perceive anything emerging from s 41 advances the Tryons’ contentions.
  2. Senior counsel for the Tryons further submitted in reply:
    1. A report, prepared in an evidentiary equitable environment, can be given the weight it deserves. The garnering of evidence in such a report is an essential part of the judicial process: it is innate. Should it be contaminated, the substantive hearing becomes a mockery.
  3. With respect to senior counsel for the Tryons, we cannot accept that the substantive hearing becomes a “mockery” in the circumstances articulated in this submission. In the event of the family report being shown to have been “contaminated” on any basis, its contents may be totally disregarded or given little weight. Whilst it is true that the greater the extent to which the author of a family report departs from standards of fairness and impartiality in its preparation, the less likely that the report will be afforded significant weight, that does not in our view translate as an entitlement to legal representation during interviews for its preparation.
  4. Finally, it was submitted in reply by senior counsel for the Tryons that:
    1. Family consultants are not trained in law. They are not trained in the manner of eliciting information and asking questions in a fair and appropriate way. The presence of a legal representative would ensure that fairness prevailed; it would not undermine he process. Rather, it would advance it. It would strengthen the Report in that the court could be comfortably satisfied that procedural fairness was a hallmark of its preparation. The interview-ambiance of a low-key approach and sensitivity would be retained.
  5. With all due respect to senior counsel for the Tryons, we do not accept that family consultants are limited in the various ways asserted in this submission. Family consultants are “officers” of the court (s 38N(1)(d)) whose functions and obligations are prescribed by s 11A of the Act. Family reports “may” be received in evidence in proceedings under the Act (s 62G(8)), they are not automatically entitled to be received in evidence. The tender of the report may be challenged on the bases identified by senior counsel for the Tryons, or on other bases (e.g. s 135 of Evidence Act 1995). The weight appropriate to be given to a family report is that determined by the court hearing the proceedings in which the report is tendered, if it is received in evidence by the court. Quite apart from the overarching requirement of the court to afford parties to proceedings before it natural justice, an ample legislative framework precludes family reports suffering from the defects referred to in this submission adversely impacting upon a party’s rights, without the necessity of the parties being legally represented at interviews for the purpose of preparing such reports.
The section 11C challenge
  1. In the course of senior counsel for the Tryons’ written submissions, it was asserted that s 11C of the Act provided an “avenue” of admissibility of an “admission” but that the section did not prevent unfairly prejudicial and irrelevant questions being asked. Only by a lawyer having been present were the requirements of s 11C asserted to have been potentially fulfilled.
  2. During the course of oral submissions, prior to the intervention of the Attorney-General, the potential operation for s 11C of the Act assumed greater prominence.
  3. Section 11C of the Act provides:
Admissibility of communications with family consultants and referrals from family consultants
(1)  Evidence of anything said, or any admission made, by or in the company of:
(a)  a family consultant performing the functions of a family consultant; or
(b)  a person (the professional) to whom a family consultant refers a person for medical or other professional consultation, while the professional is carrying out professional services for the person;
is admissible in proceedings under this Act.
Note 1:       Communications with family consultants are not confidential (except in the special circumstances set out in subsection 38BD(3) in relation to consultants having several roles).
Note 2:       Subsection (1) does not prevent things said or admissions made by or in the company of family consultants from being admissible in proceedings other than proceedings under this Act.
(2)  Subsection (1) does not apply to a thing said or an admission made by a person who, at the time of saying the thing or making the admission, had not been informed of the effect of subsection (1).
(3)  Despite subsection (2), a thing said or admission made is admissible even if the person who said the thing or made the admission had not been informed of the effect of subsection (1), if:
(a)  it is an admission by an adult that indicates that a child under 18 has been abused or is at risk of abuse; or
(b)  it is a disclosure by a child under 18 that indicates that the child has been abused or is at risk of abuse;
unless, in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources.
  1. As is clear from its terms, the section is directed to the admissibility of statements made during the course of interviews for the preparation of the family report. As those statements would normally be contained in, and conveyed by a family report, the section can be seen as relevant to the admissibility of family reports.
  2. Senior counsel for the Tryons asserted that, at least inferentially, s 11C provided support for his contention that the Tryons had a “right” to legal representation during interviews with a family consultant for the purpose of preparing a s 62G report. Particular emphasis was placed upon the provisions of s 11C(3) of the Act, by reason of what senior counsel for the Tryons described as admissions against interest potentially having “serious implications”. It was thus submitted that:
... where one is talking in terms of admissions against interest, which could have serious implications, there is a requirement, first of all, that the proceedings be recorded. Secondly, that the person being interviewed or interrogated be represented, and the analogy that we’ve just given, I think just reinforces the importance of this type of inquiry, and justifies, for those reasons alone, that the legal representative should be present during the course of such an inquiry. Now, we acknowledge, of course, that the family consultant is not legally trained, and may be totally unaware of the strictures of the law about certain events, hearsay evidence and all that sort of thing. But that’s even more reason why there should be a lawyer present. [Transcript 16 April 2010, lines 5-16 page 20].
  1. Senior counsel for the Tryons submitted that the absence of any clear indication in s 11C as to who was to inform the party or persons being interviewed of the effect of s 11C(1) and, the fact that it would be “almost impossible to contemplate giving this sort of advice in advance, because the interviewee may be willing to cooperate as far as they possibly can, but be unaware of the finer points that might emerge in remaining silent, answering some questions, not answering others, being aware of their rights, the right to remain silent, etc”, provided further support for concluding that the Tryons had the right to representation at interviews with the family consultant.
  2. Senior counsel for the Attorney-General submitted that s 11C provided no assistance to the Tryons’ appeal. Senior counsel for the Attorney-General submitted that section 11C of the Act was a provision:
    1. ...making it clear that communications with family consultants are admissible in proceedings under the Act, as long as, generally (and subject to certain exceptions) parties are made aware of this fact beforehand. It should not be interpreted as having any further effect, or otherwise altering the nature of the family consultant’s role. If anything, it can be argued that Parliament expressly made provision for a ‘safeguard’ within s11C, by ensuring that things said or admissions made by a person are admissible only if, generally, that person had been informed of the effect of s 11C(1) ie was aware of their admissibility. The express inclusion of a safeguard like this tends to suggest that, the Parliament did not consider it necessary for there to be other safeguards eg to do with legal representation.
  3. We have previously considered, and rejected, the Tryons’ assertion that, by implication from s 62G, and the nature of the interviews the family consultant was conducting for the purpose of preparing a s 62G report, the Tryons were entitled to legal representation at such interviews. We agree with the submissions of senior counsel for the Attorney-General that s 11C does not provide, either independently or in conjunction with the other matters relied upon by senior counsel for the Tryons, a basis for finding a “right” to legal representation at interviews with a family consultant for the preparation of a s 62G report. In any event, it cannot be assumed that legal representation at interviews with a family consultant would necessarily avert a failure to comply with the requirements of s 11C(1) of the Act. Nor would it alter the operation of s 11C(3).
  4. The family consultant preparing a s 62G report undoubtedly has an obligation to deal fairly and impartially with parties and/or other persons who are interviewed for the purpose of preparation of the s 62G report. Section 11C provides a statutory “safeguard” in relation to interviews with a family consultant for the purpose of a s 62G report. Subject to the exceptional circumstances provided for in s 11C(3), the failure, at least inferentially by the family consultant conducting interviews for the preparation of s 62G report, to point out to the parties and other persons interviewed the effect of s 11C(1) of the Act, renders the resultant report inadmissible. We do not understand that compliance with s 11C renders admissible any matter appearing in the report which falls beyond the terms of the section, although such matters would not necessarily be inadmissible.
  5. Assuming that a s 62G report is not rendered inadmissible by s 11C(2) or on any other basis, its contents may be tested by cross-examination, and must in any event be considered in the light of the court’s findings with respect to disputed issues of fact, the outcome of which will impact upon the weight likely to be given to the opinions contained in the report.
  6. There are within s 60CC of the Act a number of other matters to which the court must have regard. The judge determining the parenting proceedings is obliged to provide adequate reasons for his or her decision. Such decision may be appealed against as of right. The absence of any express or implied entitlement to legal representation during interviews for the preparation of the family report, the nature of the process entailed in the preparation of a s 62G report, and its status or function in parenting proceedings, combined with the abundance of safeguards to which we have referred lead us to conclude that parties or other persons interviewed by family consultants for the purpose of preparing a family report have no “right” to legal representation during such interviews. We thus conclude that the trial judge did not err in making the order which gives rise to the present challenge.(emphasis added)

Tuesday, 7 December 2010

Full Court: statement of principles in obtaining leave to appeal

Justice May, sitting as the Full Court of the Family Court in Manolis and Manolis has restated the principles in obtaining leave to appeal. She did so in the context of allowing a husband leave when his solicitors twice made miscalculations.

Her Honour stated:

Reference was made to Clivery & Conway [2010] FamCA 1435 and the well known principles referable to such leave applications were discussed:
  1. The principles emerging from Gallo v Dawson may be summarised as follows:
    • The grant of an extension of time is not automatic.
    • The object is to ensure that Rules which fix times do not become instruments of injustice.
    • Since the discretion to extend the time is given for the sole purpose of enabling the Court to do justice between the parties, the discretion can only be exercised upon proof that strict compliance with the Rules will work an injustice upon the applicant.
    • When determining whether the Rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time.
    • When considering an application for extension of time in which to file an appeal or an application, it is necessary also to consider the prospects of success of that appeal or application.

Monday, 6 December 2010

Family Court: statement of principles as to contributions

The Full Court of the Family Court in a recent case has again emphasised that in long term relationships particularly, it is a question of weight that is given to different contributions during the course of a relationship.
It did so in the recent case of Sindel and Milton. Mr Sindel was a very smart man. The holder of an MBA, on his own case, he had out earned Ms Milton 3:1 during the course of a 26 year relationship. Unemployed at the time of the trial, Mr Sindel gave evidence that it was only a matter of months before he would be earning big bucks again.
The trial
Justice Fowler acknowledged the higher income of Mr Sindel during the marriage, but ultimately divided the $5.5 million property pool 50:50. His Honour stated:
The husband spent a lot of time analysing his superior earning capacity and investment and other business acumen. He put strongly before the Court his superior financial contributions, the esteem in which his services were held and the approbation of his business associates and others in his industry and decision making. It is that which is reflected in the significant disparity in the income earning capacities of each of the husband and the wife. The husband has historically out-earned the wife by an amount of up to 3:1. The husband says that employment would be available to him which would mean he was at least out-earning the wife in the order of 2:1. He is presently unemployed but his evidence is that in but a few months he will again be employed. That development of his earning capacity was in part due to his innate intelligence but also due to the opportunities afforded to him by the wife because of the work that she did and the contributions she made to the family.
His Honour then assessed the weightage given for this superior contribution should be 53/47 in favour of Mr Sindel, but when assessing future factors under s.75(2) of the Family Law Act, there should be an equal division:
The wife has a [...] degree and the husband has engineering and a Masters in Business Administration degree available to him. He is in sense more flexibly qualified than the wife. He has a shorter life expectancy than the wife. He has as demonstrated in this case a confident manner and a lively intelligence. I have no doubt he will continue to demonstrate those skills for some time. 
Mr Sindel did not like the outcome, and appealed- unsuccessfully.
The appeal
Mr Sindel said how hard it would be for him to earn big bucks given his age and unemployment. Unfortunately for him, he was stuck with his evidence:
It is very difficult for someone at my age to simply walk into a job at 320K or thereabouts, or even 200K if, you know, I am in a position as I am, unemployed at the moment. If you were working and were in a senior job and had been there three years, it gives you a greater prospect, your Honour. I hope you appreciate that.
  1. However, the difficulty with the husband’s submissions is one which was pointed out by the trial judge during the trial. His Honour said:-
But you are bound by your own evidence, aren’t you, in that? You have said that you thought it would be a matter of months before you got a job.
  1. We do not accept the central proposition asserted by Senior Counsel for the husband as to the husband’s concessions. In fact, as the transcript reveals, the husband’s evidence was clear and unequivocal. Examples from the evidence before his Honour include:-
    • An acknowledgement, put forward by the husband to the Child Support Agency, that “not withstanding the current market”, the husband’s “experience and skills, employment history” were such that he could “have employment in months”;
    • The husband confirmed clearly in his evidence that this was in fact his expectation;
    • The husband conceded that any expected employment would “be in a similar position to the one that [he] occupied recently”;
    • The husband conceded that his “total remuneration, including bonuses, might be something in the order of about $300,000 per annum” if “he was lucky”;
    • The husband conceded that, if he was “unlucky”, his remuneration “might be about $200,000”;
    • The husband conceded that someone with his experience and skill would be looking at remuneration in terms of a base salary of about $200,000 or thereabouts.
  2. It should be pointed out that the wife’s income at the date of the trial was about $107,000 per annum.
  3. Based upon the evidence just referred to, the trial judge put directly to the husband the proposition that, ultimately, was included in his Honour’s reasons:-
His Honour: Well I think it is pretty clear that you can out earn the wife by an order of something of 3 to 1.
[Mr Sindel]: I am sorry, I beg your pardon your Honour? I missed that
His Honour: It seem pretty clear that you can out earn the wife by an order of 3 and something to 1.
[Mr Sindel]: Right
His Honour: Yes
Restatement of contributions
Mr Sindel argued that his contributions were "special" and therefore he should get more. The Full Court rejected this and restated the law as to contributions, particularly after a long marriage, such as this one. Their Honours stated:
  1. The husband argued before the trial judge that these contributions were “special” - a proposition rejected by his Honour.
  2. Given the approach adopted by the husband at trial, to which the trial judge refers, and the presentation of this aspect of the appeal, we consider it important to emphasise relevant principles applicable to the assessment of contributions.
  3. The High Court in Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 said (per Mason and Deane JJ at 524):-
The Family Court has rightly criticised the practice of giving over-zealous attention to the ascertainment of the parties’ contributions, and we take this opportunity of expressing our unqualified agreement with that criticism, noting at the same time that the ascertainment of the parties’ financial contributions necessarily entails reference to particular assets in the manner already indicated.
  1. In Aleksovski & Aleksovski (1996) FLC 92-705 Kay J held:-
    1. ...What is important is to somehow give a reasonable value to all of the elements that go to making up the entirety of the marriage relationship. Just as early capital contribution is diminished by subsequent events during the marriage, late capital contribution which leads to an accelerated improvement in the value of the assets of the parties may also be given something less than directly proportional weight because of those other elements.
  2. Calculations that might be seen to have a “mathematical” or “accounting” emphasis can, particularly in the context of a lengthy marriage, be prone to mislead
  3. An assessment of contributions is not a mathematical or accounting exercise because the assessment required by the Act is “a matter of judgment and not a computation”. (In the Marriage of Garrett (1984) FLC 91-539 at 79,372; see also Norbis.) It is important not to “overvalue” direct financial contributions merely because they can be measured in money just as it is important not to “undervalue” indirect contributions or contributions to the family because they cannot be (commensurately) measured in money.
  4. So, too, it is important to give recognition to the fact that the wife’s homemaker and parent contributions have themselves contributed to the direct financial contributions made by the husband resulting from his remunerative employment. The income produced from that employment is itself referable to a number of factors, some related to the individual talents and abilities of the husband, some to plain good luck and others societal.
  5. A marriage partner can arrive at a particular point (or points) in time at which they earn remuneration (or, not as the case may be) by reason of the contributions made by each of the parties across the length of a marriage partnership. So it is here, in respect of the husband’s remuneration, significant though it was.
  6. In this particular marriage partnership the roles of each of the parties led them to a point where the husband received and made a substantial financial contribution from his employment effort, and the wife made significant contributions by way of income from her employment, albeit less than the husband, but greater contributions as homemaker and parent.
  7. We also refer to what was said by this Court in Kennon v Kennon at 84,299:
Marriage involves a myriad of matters, large and small, which go to make up that union and differentiate it from more casual, transitory relationships. It involves sharing the minutiae of daily life, support during good and bad times, care and intimacy. These and other matters are intended to be encompassed by the matters in s.79, the actual balance of those components varying from marriage to marriage. Essentially it is an intimate sharing of mutual but diverse talents for their joint benefit... [citations omitted]
  1. The Full Court there also cited with approval what was said by an earlier Full Court in Waters and Jurek at 83,379, namely:
In most marriages, there is a division of roles, duties and responsibilities between the parties. As part of their union, the parties choose to live in a way which will advance their interests - as individuals and as a partnership. The parties make different contributions to the marriage, which the law recognizes cannot simply be assessed in monetary terms or to the extent that they have financial consequences. Homemaker contributions are to be given as much weight as those of the primary breadwinner.
On separation, the partnership, and the division of roles and responsibilities which it produced, comes to an end. Individually, the parties are left largely in the personal situations that the marriage has assigned to them. However, the world outside the marriage does not recognize some of the activities that within the marriage used to be regarded as valuable contributions. Homemaker contributions, for example, are no longer financially equal to those of the breadwinner. Post-separation, the party who had assumed the less financially rewarded responsibilities of the marriage is at an immediate disadvantage. Yet that party often cannot simply turn to more financially rewarding activities. Often, opportunities to do so are no longer open, or, if they are, time is required before they can be accessed and acted upon.
  1. The Full Court continued - in a passage which resonates with the husband’s submissions in the appeal with respect to s 75(2)(b) of the Act:
When the marriage ends, especially where that marriage has been a long one, one cannot separate the parties as individuals from the people they became in the context of the marriage relationship, and the allocation of roles, duties and responsibilities which it entailed. In some cases, an adjustment is called for because it would be unjust for the roles and activities of a party, which were recognized until separation, and which largely determined or influenced the personal development of that party and the arrangements between the parties, to suddenly count for little, while those of the other party, which were of equal significance during the marriage, to now have a far greater financial impact outside the home - in circumstances where it was the joint decision of the parties that that be the way in which they would conduct their affairs, and where that decision was made in the expectation of the relationship continuing.
(emphasis added)

Sunday, 5 December 2010

Family Court: no loss to child being with a Chinese mother

The Full Court of the Family Court recently upheld a decision of  a Federal Magistrate that there were benefits to a child living with his Chinese-Australian mother, and not the detriments portrayed by the father that the child would be immersed in a Chinese environment and lose his English skills.

The Full Court stated, in the case called Edelman and Zu (No. 2):


At paragraph 77 of his reasons under the headings “Other Considerations” and “Cultural issues”, the Federal Magistrate noted the mother has a Chinese heritage and explained at paragraph 78:Whilst [the child] has been raised in Australia, it is nevertheless important to him that he have the opportunity and ability to maintain contact with his mother’s cultural heritage. I do not consider that the father is likely to promote that aspect of [the child’s] development.
  1. At paragraph 79 of his reasons, the Federal Magistrate assessed there would be a benefit to the child living with the mother in that he was likely to be bilingual speaking both English and Mandarin as compared to living predominantly with the father who did not speak Mandarin.
  2. At paragraph 80, the Federal Magistrate dealt with the assertions made on behalf of the father that if the child lived with the mother he would become “immersed in the Chinese culture; that he will lose his English skills and that he will ultimately suffer disadvantage if he lives predominantly with his mother”.
  3. Significantly the Federal Magistrate, who had the opportunity to see and assess the mother in the witness box, concluded:
... Whilst I accept that the mother is likely to find work within the Chinese community in Brisbane and she is likely to socialise with other Chinese families, I was not satisfied that she has an intention to immerse [the child] in that culture to the detriment of his Australian culture...
  1. The Federal Magistrate went on to find the mother had good English skills and that he considered she wanted to assimilate herself into Australian society which she saw in broad terms as providing “benefits for her sons in having a strong connection to both communities”. The Federal Magistrate found “[u]ltimately I would see greater benefits for [the child] in the mother’s approach to his cultural identity than the father’s approach”. This finding was replicated by the Federal Magistrate in his conclusions in paragraph 97(f).
  2. In the Marriage of Goudge, Evatt CJ, in dealing with a ground of appeal asserting the trial Judge had failed to give sufficient weight to the mother’s Aboriginal heritage, said at page 509:
The appellant’s submissions on these points raise matters which are both important and difficult to determine. The court is reluctant to make value judgments as to the merits of differing cultural, religious or ethnic heritage: see Sanders and Sanders [1976] FLC 90-078 at 75,374; N and N [1981] FLC 91-111 at 76,828-9. In any event, these children are of mixed race, and in so far as there are significant differences between the cultural heritage and identity of each of their parents, it is not for this court to prefer one over the other on that ground.
  1. Her Honour went on to note:
The submission put by the appellant, however, was not that a preference should be expressed for the culture and background available to these children as part Aboriginals, but that it should be regarded as a positive feature, able to provide something worthwhile to these children. This was coupled with the submission that the father would prefer to shut out this aspect of the children’s lives, that he did not accept the children’s Aboriginality and saw it as damaging...
  1. Her Honour therefore explained matters of differing cultural heritage were “another indication that cultural factors are to be given weight in deciding the welfare of children”. Her Honour said, at pages 510-511, “[m]any cases arising under the Family Law Act involve children who have real connections with two different cultural, racial or religious backgrounds” and later observed “[t]he relevance of such factors must, of course, vary from case to case depending on the individual circumstances”.
  2. We are satisfied in the circumstances of this case the Federal Magistrate did no more than the statute required him to do as part of his overall consideration of the additional consideration and no appealable error is demonstrated.
Transgendered officer gets army to change policy: http://ht.ly/3k0oR Bridget and Emma are deeply in love. Bridget still wants to soldier.

Saturday, 4 December 2010

NSW surrogacy laws likely to take effect in the New Year: ABC http://ht.ly/3jOaC
Money woes kill marriages http://ht.ly/3jEEh

Sunday, 28 November 2010

Guide to commercial surrogacy laws in Australia: http://ht.ly/3ghs7
Who can adopt in Australia: state by state guide http://ht.ly/3giir
Guide to commercial surrogacy laws in Australia: http://ht.ly/3ghqX

Thursday, 25 November 2010

Today, 25 November, is White Ribbon Day: UN International Day for the Elimination of Violence Against Women. http://ht.ly/3f9JW

Tuesday, 23 November 2010

Man forced to share $90million lottery win with ex http://ht.ly/3e3nY . Shows why property settlement should be done right first time.

Monday, 22 November 2010

American surrogacy expert to speak at Sydney seminar http://ht.ly/3djkl
Childless couples face jail as part of international baby ban http://ht.ly/3djep Also applies in ACT and Qld

Sunday, 21 November 2010

Brisbane: divorce capital of Australia: http://ht.ly/3d5t7 Moving to "paradise" doesn't fix a troubled marriage.

Saturday, 20 November 2010

The legal case for gay marriage: http://ht.ly/3cMLA

Friday, 12 November 2010

Push for specialist domestic violence courts: http://ht.ly/38kky

Thursday, 11 November 2010

Family Law Act changes to tighten child protection: http://ht.ly/37rG8

Wednesday, 10 November 2010

Surrogacy laws pass NSW lower house: http://ht.ly/37rtS

Sunday, 7 November 2010

Bligh backs gay marriage: Brisbane Times http://ht.ly/35z3S

Saturday, 23 October 2010

78% of Aussies support gay marriage: poll http://ht.ly/2XXLL
Said it before, say it again: Facebook is a family lawyer's dream: http://ht.ly/2XWTW

Friday, 8 October 2010

Kennon principle rejected: Federal Magistrates Court

In a recent Federal Magistrates Court case, Federal Magistrate Brewster has rejected the application of the Kennon principles. His Honour, in a case called Palmer and Palmer, found that the statement by the majority of the judges in Kennon was obiter dicta, not ratio decidendi, and was therefore not binding upon him. He further critically analysed the effect of Kennon. Finally, he discounted the contributions of the husband for paying for his step-child, when the husband's violence impacted on the step-child.

Kennon was a 1997 decision of the Full Court of the Family Court. The decision was by Justice Fogarty, Baker and Lindenmayer. In the seminal judgment by Justices Fogarty and Lindenmayer, their Honours considered when violence could be relevant in a property settlement matter. In broad terms, they found that in some cases violence could be taken into account on a property settlement.

The Full Court of the Family Court is the appellate court in most family law matters. Decisions of that court are binding on trial judges in the Family Court and the Federal Magistrates Court.

Legal doctrine holds that the essential reasoning of a higher court, the Latin being "ratio decidendi", is binding on the lower court. Other statements by the court, in Latin called "obiter dicta", are not.


Federal Magistrate Brewster stated:
  1. Ms Haughton who appeared for the wife submitted that I should make an adjustment in favour of the wife based on the principles set out in Kennon & Kennon [1997] FamCA 27; (1997) FLC 92-757. Kennon was a case where the husband had been violent to the wife throughout the course of the marriage. The Full Court stated that, if by reason of a course of violent conduct perpetrated by one party to a marriage on another the victim’s contributions were made more arduous, a contribution based adjustment could be made in favour of the victim.
  2. As I have indicated the wife maintains that the husband was violent towards her during the course of the marriage. She says that the husband’s conduct towards her was not confined to physical attacks. In paragraph 43 of her affidavit filed 15 March 2010 she says as follows:
    • I say that I have endured daily verbal assault from [Mr Palmer]. [Mr Palmer] would often complain about how the vertical blinds were turned in our house. Almost every day he would come home and re-arrange them in a way he felt they should be. He would then say to me “how stupid are you, you can’t even get the blinds right.” It was rare that a day would pass during our marriage that [Mr Palmer] would not call me an offensive name such as “boof-head”, “fucking stupid bitch”, “dumb”, “idiot”, “fat cow tick”, “pig” or swear at me, raise his voice in anger at me or say to me “you have not achieved what I expected of you” and/or “you failed to follow through”. [Mr Palmer] would often say “I wish I had married a more educated woman. Unless you earn at least one hundred thousand dollars a year you do not deserve a seat at the table of life.”
  3. I have always doubted that what I will call the “Kennon” principle is good law. In one case I discussed my reservations as to this issue and declined to extend the principle to apply to only verbal violence. The husband appealed on other issues but unfortunately the wife did not cross appeal my refusal to make an adjustment in her favour by reason of the Kennon principle. If she had I would not have the problem I now face. In other cases I have not had to confront the issue as the degree of violence involved did not bring the principle into play. I believe however that in this case I must do so.
  4. It might be thought that my opinion as to the Kennon principle is academic by reason of the doctrine of stare decisis. As I have indicated Kennon was a decision of the Full Court. However I am not bound by everything that the Full Court might say. I am only bound to apply ratio of the Court. In Kennon the analysis of the Full Court was obita dicta. This is because the trial judge found that the wife’s contributions were not made more arduous by reason of the husband’s violence. In the end result therefore no adjustment was made in her favour by reason of the Kennon principle. However there is dicta and there is dicta. One might, depending on the circumstances, have little hesitation in declining to follow dicta of the Full Court which is in the nature of a “throwaway line”. The discussion in Kennon however was reasoned and detailed. And, if all the judges who have sat on the Full Court over its history were to attend to a dinner with a seating plan based on eminence, the judges who comprised the Court in that case, Fogarty, Lindenmayer and Baker JJ, would be allocated places well above the salt. I appreciate therefore that refusing to follow such a Full Court authority is not a matter to be enterprised lightly or unadvisedly. I appreciate that others might properly and reasonably consider that, when it comes to a reasoned and unanimous decision of the Full Court, dicta or otherwise, a court in the position the Federal Magistrates Court occupies in the judicial hierarchy should follow it. This would appear to be the view taken by Altobelli FM in the decision I refer to in paragraph 99. However, with considerable reservations, that is not a course I propose to take.
  5. The first thing to note is that the Kennon principle is anchored in the area of contributions. It is not based on section 75(2)(o).
  6. The difficulty I have with the Kennon principle as a part of the contribution based division can be illustrated by reference to an anecdote recounted by the great American judge and jurist Oliver Wendell Holmes in his article The Path of the Law (10 Harv, LR Rev. 457 (1897)). In this story a legally unqualified Justice of the Peace in a rural area is hearing a claim for damages brought by a farmer against his neighbour. The farmer lent a churn to the neighbour who returned it in a damaged state. The Justice of the Peace dismissed the claim. He explained that he had searched all the authorities and whilst he could find cases where a neighbour who returned a damaged plough, or a cart, or any number of farm implements was found liable in damages he could find no case where damages were awarded for a broken churn.
  7. The point of this story is that the law is not comprised of a “wilderness of single instances” and legal analysis should involve a much greater level of abstraction than was applied in this case. The question the Justice of the Peace should have asked himself, when being urged to break new ground and extend the liability of a gratuitous bailee to churns, was whether there is any jurisprudential basis for treating a damaged churn differently to a damaged plough. The answer of course is that there is not.
  8. I return to the Kennon principle. Is that principle confined to instances of domestic violence if the violence makes the victim’s contributions more arduous? Or is it an example of a wider principle and akin to a minor premise in a syllogism? If there is a wider principle it would seem to me that it is to the effect that contributions are not necessarily to be measured in absolute terms but may be weighted by reference to the arduousness involved in making those contributions.
  9. I shall now turn to a hypothetical example. Suppose we had a marriage where the wife was a white collar worker and the husband a coal miner and that each earned the same amount. For the purposes of this example I will assume that the husband worked in the type of mine, and was at the coalface doing the type of work, described by George Orwell in The Road to Wigan Pier. Is he to be given a contribution based adjustment in his favour by reason of the arduousness involved in his financial contributions?
  10. The first thing to note is that I am unaware of any authority for the proposition that a person in a position of the husband in my hypothetical case could have a contribution based adjustment made in his favour. I raised this with the wife’s counsel who was unable to point me to any such case. I am unaware of any authority, apart from Kennon, and the cases which follow it, for the proposition that contributions are not necessarily to be measured in absolute terms but may be weighted according to the degree of arduousness involved in making those contributions.
  11. Secondly there is no indication in the Act that contributions are to be weighted in this way.
  12. I conclude therefore that there is no legal principle which would justify giving my coal miner husband a contribution based adjustment in his favour. The question now arises whether this hypothetical case involves a churn and Kennon a plough or whether there is a properly based jurisprudential distinction to be drawn between Kennon and my hypothetical case.
  13. It seems to me that there are three bases on which I could distinguish my hypothetical coal miner case from Kennon. The first concerns the nature of the arduousness involved in each case. The arduousness in Kennon was not of the same nature as the arduousness in the coal miner’s case. In the coal miner’s case it was that the husband’s contributions were made in dirty uncomfortable, oppressive cramped and dangerous conditions and involved arduous physical labour. In the Kennon type case the arduousness is of a more subtle nature. It involves the contributions of the wife being made in circumstances where she would be always fearful and apprehensive. It might involve taking extra steps or precautions in the way that she performs her homemaking or parenting tasks. As example is found in this case. The wife describes in her affidavit an occasion where the husband was watching television while she prepared an evening meal. She says that the husband became angry because of the noise she was making in doing so and reacted violently.
  14. This appears to me to be the most cogent reason for distinguishing the coal miner’s case from Kennon. The term “arduous” can have two meanings. The first is something that is difficult or requiring great exertion. The second can mean hard to endure, full of hardships, such as an arduous voyage. The life of a victim of domestic violence may be arduous in the second sense but not the first. However I am still unable to find any sound jurisprudential reason for making this distinction. And in any event my coal miner’s case fits both definitions of arduousness in that his work involved great exertion and also working in oppressive conditions. I cannot find any jurisprudential basis for distinguishing between the nature of the arduousness. To my way of thinking one is a plough and the other is a churn.
  15. The second basis is that the arduousness involved in a Kennon type case is arduousness caused by the other party whereas the arduousness in my coal miner’s case is a simple fact associated with his employment. Again I cannot see any proper jurisprudential basis which would justify treating these in a different way.
  16. The third basis is that the contributions in question in the hypothetical case were financial contributions and those in Kennon non financial contributions. I can see no logical difference.
  17. It seems to me that one could only justify a Kennon adjustment if the fact that the husband’s violent conduct having made the wife’s non financial contributions more onerous her contributions are to be treated as having some special feature about them.
  18. The concept of “special” or “outstanding” contributions is no stranger to section 79 jurisprudence. In some cases in the past courts have made a contribution based adjustment in favour of an entrepreneurial husband whose skills have brought great wealth to the family. These have been referred to as “big money cases.” In JEL and DDF [2000] FamCA 1353; (2001) FLC 93-075 at paragraph 128 the Full Court in dicta posited the possibility that non financial contributions could in some circumstances be in this category. The Court in that case at paragraph 136 also referred to Kennon as an example of contributions being given additional weight by reason of being special contributions However it is fair to say that, insofar as financial contributions are concerned, the tide appears to be running out in this respect and that the era of special contributions may well be at an end. This process appears to have been started by the House of Lords in White v White [2000] UKHL 54; [2001] 1 All ER 1. The speeches of the Law Lords in that case were discussed and endorsed by the Full Court of the Family Court of Australia in Figgins and Figgins [2002] FamCA 688; (2002) FLC 93-122. Encouraged by this case the English Court of Appeal in Lambert v Lambert [2002] EWCA Civ 1685 effectively put an end, in England at any rate, to the concept of special financial contributions. I think it likely that this case will be followed next time a big money case comes before the Full Court. In any event given what fell from the Full Court in Figgins I do not believe that I am required to follow the earlier cases and even if I were I am not required to expand the ratio in those cases, which concerned special financial contributions, to non financial contributions impacted upon by violence by reason of the dicta in JEL and DFF. What is sauce for the goose is sauce for the gander and if special financial contributions do not lead to an adjustment in favour of a husband then special non-financial contributions resulting from a husband’s violent behaviour making a wife’s non financial contributions more onerous should not lead to a contribution based adjustment in favour of the wife.[1]
  19. A question might also be asked how special is special? At what point does a high income earning husband’s financial contributions cancel out the battered wife’s special contributions. If the big money cases are any guide he would have to have made a fortune of some millions to have his contributions classified as special. This however does not appear to be the position of the trial judge in the case of S and S which I discuss in paragraphs 97 and 98 but I will not dilate on this further. The problems Kennon raises, to my mind at any rate, should by now I trust be apparent.
  20. An interesting illustration of where the Kennon principle can lead is found in the decision of Coleman J in Cuneo & Cuneo and Cuneo [2006] FamCA 158. In that case his Honour made a Kennon adjustment by reason of the husband’s violent conduct but tempered the extent of the adjustment by reason of the fact that the husband’s violent propensities were a consequence of a war related psychological condition. In a discussion at paragraphs 259 to 267 his Honour described the conduct of the husband as “involuntary” or “largely involuntary” and “external to and beyond (his) control.” His Honour does not appear to be using the term “voluntary” in the sense that it is used in criminal law and his approach seems to me to open up issues of free will verses determinism that I am not qualified to discuss. The case also illustrates the plough verses churn aspects of the Kennon principle. As an example in some cases (a short marriage with no children is a typical example) the parties’ financial contributions will be a decisive factor. So in a case where the wife’s having a steady job as compared to the husband’s erratic employment history resulted in her making greater financial contributions she would expect an adjustment in her favour. Suppose the husband’s inability to hold down a job was a result of his irascible temperament and inability to fit into the workplace. I would have thought that this would be considered irrelevant. But suppose the husband’s temperament was a result of a war related psychological condition (or a brain injury or a difficult upbringing). Is this to be taken into account? Not in my experience.
  21. Is the Kennon principle confined to case of domestic violence or does it extend to other forms of conduct? At page 84,294 in their joint judgment Fogarty and Lindenmayer JJ said
    • In the above formulation we have referred only to domestic violence........but its application is not limited to this.
  22. When considering this comment it might be useful to bear in mind the English case of Le Brogue v Le Brogue [1964] 3 All ER 464. In that case the wife petitioned for divorce on the ground of cruelty. It will be recalled that under the Australian Matrimonial Causes Act 1959 cruelty was a ground for divorce and this reflected the English law. The conduct of the husband relied upon by the wife was that he was extremely taciturn or non confrontational and, whenever she wanted to “pick a bone” with him, he would simply shrug his shoulders and walk away. She became so frustrated by this conduct that she developed an ulcer. At first instance the trial judge granted a decree on the basis of cruelty. This was reversed by the Court of Appeal but the technical issue of whether such conduct can be classified as “cruelty” within the meaning of the then legislation is irrelevant to the present discussion. Suffice to say that it was the conduct of the husband that caused the wife to develop an ulcer and this may well have made her performance of her domestic duties more arduous. I daresay no one would contend in a similar case today that a husband should have his share of the property pool reduced by his unwillingness to engage in arguments with his wife. But the case may be relevant when contemplating the implications involved in expanding the Kennon principle to arduousness caused by conduct of the other party other than violence. But to confine it to physical violence raises the plough and churn problem.
  23. It would seem to me to make more sense, if violence is to brought into account in the contribution based division, to reduce the weight to be given to the contributions of the perpetrator rather than to increase the weight to be given to the victim’s contributions.[∗] In a hypothetical case where both parties earned comparable incomes and there was a violent husband it does not seem to me to be unreasonable to make a contribution based division in favour of the wife on the basis that the positive contributions made by the husband to the welfare of the family were cancelled out by the negative contribution to the welfare of the family caused by his violence. The wife would have an adjustment made in her favour because she made equal financial contributions and greater non financial contributions. But this would involve reviving the concept of negative contributions which has been disapproved by the Full Court.
  24. It needs to be noted however that such an approach would have a practical impact in only a limited number of cases. In the present case for all practical purposes the husband was the sole breadwinner. I would not have made a contribution based adjustment in favour of the wife even if he did nothing around the house and the wife had therefore made all the non financial contributions. To do so would be to quantatively compare financial and non financial contributions. This is impossible, or at least undesirable. The difficulties that would be caused by taking such an approach are easily illustrated. In this case the husband’s income is about $130,000 a year. Suppose I made a contribution based adjustment in favour of the wife on the basis of the husband having made no non financial contribution. This would be because I considered that her role as the sole homemaker and parent to be more significant that the husband’s role as sole breadwinner. But what would I do in an identical case where the husband’s income was $230,000 a year? There is a way in which financial and non financial contributions can be measured and compared but I suspect that in this case it would not be to the advantage of the wife. It was done, in my time in practice, to quantify a Griffith v Kerkemeyer[*] claim. It was to look at the rates organisations such as Dial-An-Angel charge for their services.
  25. In summary for the reasons that I have explained I am not bound by the dicta of the Court in Kennon and for the reasons I have given I decline to follow it. I believe that contributions are to be measured in absolute terms and not weighted by considerations of arduousness, whether caused by domestic violence or otherwise.
  26. Before I leave this aspect of the case there are two matters I should address.
  27. The first is that Kennon has been the subject of a subsequent decision of the Full Court in S & S [2003] FamCA 905. At paragraph 40 the Court said that “There is no doubt that domestic violence may be a relevant factor in assessing contribution.”
  28. At first glance this emphatic statement might seem to put the issue beyond doubt. It made me pause to think. However it needs to be looked at in context. In that case the trial judge made a Kennon based adjustment in favour of the wife (although in the result this was cancelled out by post separation contributions by the husband. An illustration of the problems I have referred to earlier). The husband appealed. He did not contend that Kennon was bad law but contended that the evidence was insufficient to bring that principle into operation. The Full Court agreed and allowed the appeal. It can be seen therefore that the passage I have quoted is dicta, and moreover dicta concerning an issue not argued before the Court. Whilst I would not put it in the “throwaway line” category it is clearly a statement which is not binding on me.
  29. The second is the decision of Altobelli FM in Kozovska and Kozovski [2009] FMCAfam 1014. In that case his Honour made a contribution based adjustment in favour of the wife under the Kennon principle. I am fortified in rejecting that principle by some comments made by his Honour in the course of his judgment. At paragraph 77 he said as follows:
    • Assessing the extent that the more arduous contribution should be reflected in the property settlement is difficult, and rather arbitrary. Counsel for the wife submitted it should be 10%. I accept this figure as being appropriate under the circumstances of this case, but, quite frankly, if I had been asked to assess contribution at a higher figure, I would have. My real concern, however, is as to the artificiality of a “Kennon” type adjustment, whatever the percentage is. Having regard to the nature of the violence suffered by the wife during a long marriage it is clear that neither 10% or any other figure could possibly be characterised as compensatory because no amount should compensate her for what she experienced at the hands of the husband. On a property pool of about $1,300,000, 10% is $130,000, an amount which almost offends one’s sense of justice and equity having regard to the findings I have made. Clearly the adjustment that the Full Court contemplated in its decision in Kennon was not meant to be compensatory, but more in the nature of perhaps symbolic recognition of the extraordinary efforts of one’s spouse in persisting with contributions in the face of enormous and unjustified adversity. One cannot help but think that much greater thought needs to be given to the very rationale of a Kennon type adjustment, and whether there might be a better, more transparent, and fairer method for dealing with issues of conduct in the course of financial matters in the Family Law Courts.
  30. I respectfully agree with all that his Honour has said. Further, in my opinion if domestic violence is to be taken into account in the section 79 exercise it is for the legislature, not the judiciary, to take the lead. To import issues of domestic violence into the section 79 issue is in reality an exercise in public policy.
  31. Ms Haughton urged me to make a contribution based adjustment in favour of the wife by reason of her care of the child [Y]. [Y] has cerebral palsy and there is no doubt that this put, and still puts, significant burdens on the wife in travelling to medical appointments and otherwise managing her care.
  32. I was not referred to any authority bearing on this issue and, insofar as contributions before separation are concerned, I am unaware of any that directly deal with the issue. The Full Court in JEL and DFF [2000] FamCA 1353; (2001) FLC 93-075 in dicta indicated that the care of a handicapped child could be a “special contribution” but whether or not that case is still good law after Figgins is open to question. Further I note the comments by Thorpe LJ in Lambert (which, as I have indicated, may have applied the coup de grace to JEL and DFF) where at paragraph 45 he said:
    • Examples cited of the mother who cares for a handicapped child seemed to me both theoretical and distasteful. Such sacrifice and achievements are the product of love and commitment and are not to be counted in cash.
  33. In the result I decline to make a contribution based adjustment on this basis with respect to the period of cohabitation. Apart from Thorpe LJ’s comments the problem with doing so is that it involves comparing the husband’s greater financial contributions with the wife’s non financial contributions. I have already discussed the problems with this. And it raises other problems. Is a parent who has had the care of six children to have a greater adjustment made in her favour than a parent caring for three children?
  34. An issue arises as to whether an adjustment should be made by reason of the presence in the parties’ household of the wife’s child [Z]. [Z] lived with the parties for a significant period during the relationship. The husband effectively contributed to his support as only a modest amount of child support, about $15 a week, was received from [Z]’s father. He also performed the role of stepfather.
  35. The Full Court in Robb and Robb [1994] FamCA 136; (1995) FLC 92-555 held that a step-parent’s financial contributions to a child of the other party and non-financial contributions as a step-parent in relation to that child can be taken into account in the contribution based division. When I raised the matter with Ms Haughton she pointed out to me that the Court made it clear that any such adjustment is not made under section 79(4)(a), (b) or (c) but under section 75(2)(o). I confess that I had not previously appreciated this. That section permits the Court to take into account “any other fact or circumstance that the justice of the case requires”. By reason of its general nature paragraph (o) gives me a wide discretion. In this case I decline to exercise it in favour of the husband. Both the wife and [Z] have alleged that [Z] was exposed to violence on the part of and suffered mistreatment at the hands of the husband. I accept that evidence. I believe that the justice of the case requires me to take this into account. I decline to make an adjustment in favour of the husband by reason of the presence of [Z] in the household.