Wednesday, 3 December 2014

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

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

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

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

Sunday, 28 September 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, 24 September 2014

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

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

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

What an extraordinary day!

Tuesday, 23 September 2014

Visit to an old friend opposed to domestic violence

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

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

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

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

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

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

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

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

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

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

Mediation is just another form of negotiation

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

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

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

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

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

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

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

Wednesday, 30 July 2014

Call for papers: gendered violence research network conference



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

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

Abstract Submissions / Call for Papers

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


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

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

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

 


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

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

Tuesday, 1 July 2014

My four step approach to coping with separation and divorce

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

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

Factor 1: have a support network

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

Factor 2: see a counsellor

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

Factor 3: have a positive attitude to life

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

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

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

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

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

Factor 4: get fit

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

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


Monday, 23 June 2014

Take care with caveats- Family Court

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

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

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

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

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

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

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

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

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

Monday, 2 June 2014

Having sex with others means you can still be in a de facto relationship: Family Court

Having sex with others during the duration of a relationship can still mean that you are in a de facto relationship, even if you consider that you aren't, according to a recent Family Court decision, although as Justice Tree stated, "although there may have been some aspects of the parties’ relationship which some may regard as unusual or unconventional."

In the case, known as Crowley and Pappas, a gay couple had lived together in a de facto relationship from 1987 until 2005 or 2006, when they split up. Although they moved in together in 2005 or 2006, the question was whether the de facto relationship had resumed. If it had, as Mr Crowley maintained, then it continued until 2011. Mr Pappas maintained that they had lived as flatmates.

One of the problems with that approach was about their sex life. Whether parties have sex is not the be all and end all about whether there is a de facto relationship. There are many couples, after all, who do not have sex, and many other couples who are not in a de facto relationship who do have sex.

Mr Pappas said that Mr Crowley had previously been unfaithful, before they split in 2005 or 2006 , "seeing other men behind my back whom he contacted through a  gay  chat site" and that in late 2005 he discovered that Mr Crowley was seeking sex with another man. His evidence was that Mr Crowley said “I want an open relationship.” To this Mr Pappas replied “I do not want an open relationship. That is not what a relationship is all about....I was devastated. I did not want an open relationship or to be with other people and I just wanted to have a loving and committed life partnership with [Mr Crowley]. [Mr Crowley] however expressed to me that [he] did not want this any more.”

Mr Pappas then said that about four weeks later, Mr Crowley brought another man to their home and invited Mr Pappas to join in sex with them, which invitation Mr Pappas declined. Nonetheless Mr Crowley and the other man engaged in sex in front of Mr Pappas. After that event Mr Pappas says that he told Mr Crowley “[o]ur relationship is over. What just happened makes me feel physically ill. All trust between us is gone. If you want an open relationship you can have one, but not with me.” Mr Pappas said that from that day onward, he considered that their de facto relationship was over.

Mr Pappas then says, after they started living together again:

[Mr Crowley] pressured and intimidated me into sleeping in the same bed as [him], and I succumbed, however there was absolutely no sexual contact or intimacy between [him] and I.I did not want to share a bed with [Mr Crowley] and I locked him out of the bedroom as often as I could and I would sleep in other rooms to try to avoid [him] whenever possible.
[Mr Crowley] became furious and would humiliate me whenever I broached the topic of having separate sleeping arrangements and he would become aggressive, storming off and shouting. I was intimidated by [him]. I kept sleeping in the same bed as [him] to keep the peace and avoid [his] fury. I believe that [Mr Crowley] would physically harm me if I continued to disagree with [him].
When [Mr Crowley] and I did share a bed [he]and I each slept away from each other and there was absolutely no sexual contact or intimacy between us."

Mr Pappas did concede that there had been sex between them after they started living together again:


  • on one occasion where it was said that the parties had jointly engaged in sex with a third person whilst holidaying overseas. Mr Pappas appeared to concede that event, but said that on the night in question his drink had been spiked. 
  • Mr Crowley  volunteered the names of two persons with whom he said both he and Mr Pappas had engaged in mutual sexual encounters, along with “several others whose names I don’t know,” which assertion was not thereafter squarely challenged by Mr Pappas. Mr Crowley went on to say that he had opened an account with a particular internet site in the mid to early 2000’s, and that both he and Mr Pappas used it to find third parties to bring into their relationship for sexual encounters. Faced with such specific assertions, Mr Pappas chose not to investigate or challenge them further in his cross-examination of Mr Crowley. 
Justice Tree stated:

The principal concern of Mr Pappas appears to be that the parties did not have a mutual commitment to an exclusive, monogamous, sexual relationship. Whether by virtue of that or otherwise, he further said that he had no mutual commitment to share his life with Mr Crowley, because in fact he was planning, upon achieving financial security, to “make a stand, after which it was going to be my rules from now on.” Leaving aside that his evidence as to that matter was not challenged, in my opinion Mr Pappas did indeed intend, after 2005, to ensure that he became financially independent of Mr Crowley My view is that he was so hurt by his long-time partner’s desire to have a non-monogamous relationship, that he wanted to be able to wholly separate from him – emotionally, physically, financially and otherwise – in the event that circumstances in the future inclined him so to do.

However that finding does not preclude Mr Pappas nonetheless being in a de facto relationship. It is equally consistent that Mr Pappas was keeping his options open to “escape” the relationship, if things went badly, but also to continue the relationship if things were tolerable. Indeed, such a strategy has a degree of common sense to it.

Sunday, 1 June 2014

Love and marriage go together like a horse and carriage...

Last week I happened to be in Melbourne, as I was a speaker at the Surrogacy Australia conference. This was the beginning of a manic week, which also involved attendances in the Family Court in Adelaide, and Cairns (twice).

In any case, I happened to be walking past the Commonwealth Courts building in Melbourne, which houses the Family Court of Australia and the Federal Circuit Court of Australia. Then I saw this, which I took to be ironic.

How often does romance end in divorce? More importantly, in this picture, how often do those intending to marry take a horse drawn carriage past the place where they may divorce? Is this an omen of bad things to come?



Tuesday, 20 May 2014

High Court rules for a former mistress about issue estoppel

Be careful what you say, is the clear message from the High Court in a recent case. When the Family Law Act changes came through a couple of years ago to allow de facto property settlement, there was a lot of noise that mistresses may be able to claim property settlement. In the recent High Court case a former mistress was able to claim a property settlement- but by other means, by relying on issue estoppel.


Issue estoppel essentially means that because someone has made representations, and you have acted on those representations, that they are prevented- or estopped- from denying the consequences of their actions, and therefore are liable to make good.


The recent case of Sidhu v Van Dyke was a classic example of an issue estoppel case.


Facts of the case


Mr Sidhu lived with his wife in the main homestead of a 32-hectare rural property known as Burra Station, located near Queanbeyan in New South Wales. In 1996, Ms van Dyke married the brother of Mr Sidhu's wife. Later in that year, Ms van Dyke and her husband moved into Oaks Cottage, a building located approximately 100 metres away from the main homestead on Burra Station. There they began to raise their newborn child. Ms van Dyke and her husband paid rent to Mrs Sidhu.


Both the main homestead and Oaks Cottage were located on an unsubdivided lot of land described as the Homestead Block, which was owned by Mr and Mrs Sidhu.

Towards the end of 1997, Mr Sidhu and Ms van Dyke commenced a sexual relationship. In 1998, Mr Sidhu said to Ms van Dyke:
"I love you and can tell you love me too. I want you to have a home here with me. I am planning to subdivide Burra Station. As soon as this is done, I will make sure the Oaks [Cottage] is put into your name ... Using my Indian family money to buy this place means I can make my own decisions as to what I do with it, and I want you to have it because I love you. You need a home of your own to raise [your child] in. I can provide it".

Ms van Dyke's husband learned of the liaison between them, and in the middle of 1998 the Ms van Dyke and her husband separated and later divorced.

When Ms van Dyke told Mr Sidhu, who was himself a lawyer, that she needed to find a lawyer to assist her with her divorce and property settlement, he said to her words to the effect, "you have the Oaks you do not need a settlement from him. You can do the divorce yourself, you don't need a lawyer." In the divorce proceedings she did not seek a property settlement.

After the departure of Ms van Dyke's husband, she continued to live in Oaks Cottage with her young child.

In about September 1998, Ms van Dyke asked Mr Sidhu  whether she should stop paying rent "now that the Oaks is my property". Mr Sidhu replied: "How about you continue to pay what you can as this will help keep things low key with [my wife]."

While Ms van Dyke lived in Oaks Cottage, she paid rent to Mrs Sidhu at a rate which was lower than the market rate. Ms van Dyke also carried out unpaid work in relation to the maintenance and renovation of Oaks Cottage and the improvement and maintenance of Burra Station, and an adjoining rural property owned by a company in which Mr and Mrs Sidhu owned shares. Ms van Dyke was also actively involved in the work involved in the subdivision of Burra Station for which Mr and Mrs Sidhu applied to the local council. 

Ms van Dyke was employed part time elsewhere; she did not seek full-time employment during her stay at Burra Station. As a result, over a period of eight and a half years, she lost the opportunity to earn wages which she might have earned as a natural resource catchment officer or a ranger. These disadvantages were not quantified by evidence, but were substantial.

In 2000, Mr Sidhu, in response to expressions of concern by Ms van Dyke as to the security of her position, gave her a signed note in which he confirmed that "[d]uring the years 1996 to 2000" he had "expressed to [her] that [he] was willing to gift [her] the house in which she resided at the time (Oaks Cottage, ... Burra NSW)".

In mid-2005, Ms van Dyke again pressed Mr Sidhu for some confirmation of his "continued promise that the house would be [her] own". This pressure elicited an email which proposed terms for a transfer of the property "at a price based on valuation by agent[s]" but with Mr and Mrs Sidhu agreeing to bear the financial burden of defraying that price.

In October 2005, the local council gave conditional approval to a subdivision of the Homestead Block into three lots. Completion of the subdivision was conditional upon the construction of roads enabling access to the lots. In a practical sense, the subdivision also depended on the consent of Mrs Sidhu and the availability of adequate finance. One of the proposed lots ("the Oaks Property") was 7.3-7.4 hectares.

In February 2006, Oaks Cottage burnt down and the respondent and her child moved into a vacant relocatable cottage on the Homestead Block.

During May 2006, the parties discussed arrangements concerning the Ms van Dyke's long-term accommodation at Burra Station. During the course of those discussions the appellant gave the respondent a handwritten statement in which he said that his wife "agrees [that] when the house which burned in an accident in mid-February is rebuilt and as soon as it is possible to transfer the property on which the house is rebuilt, it will be done".

In July 2006, Ms van Dyke offered to purchase the relocatable cottage from Mr and Mrs Sidhu, but they rejected that offer, saying they could not sell it because they did not own it. On that day, Ms van Dyke left Burra Station and the relationship between Mr Sidhu and Ms van Dyke came to an end. Mr and Mrs Sidhu refused to transfer the Oaks Property to Ms van Dyke.

The subdivision did not proceed. Conditions of the approval as to the construction of roads were not satisfied by Mr Sidhu.

The law
The majority held:


"It is the conduct of the representee induced by the representor which is the very foundation for equitable intervention. Reliance is a fact to be found; it is not to be imputed on the basis of evidence which falls short of proof of the fact. It is actual reliance by the promisee, and the state of affairs so created, which answers the concern that equitable estoppel not be allowed to outflank Jorden v Money by dispensing with the need for consideration if a promise is to be enforceable as a contract.  It is not the breach of promise, but the promisor's responsibility for the detrimental reliance by the promisee, which makes it unconscionable for the promisor to resile from his or her promise."


Their Honours continued:


"A review of the whole of the evidence shows that the respondent had made out a compelling case of detrimental reliance. There are four broad reasons why that is so.
  1. First, there is the evidence-in-chief of the respondent. It may be noted that the primary judge considered the respondent to be a truthful witness. In the respondent's evidence-in-chief she had said that:
  2. "As a result of the [appellant's] repeated promise of the Oaks Property to me ... I did not seek or engage in any full time paid work in the 8.5 years between January 1998 and July 2006 ... [I]n the belief that I had a home in the Oaks Property, I chose instead to improve the Oaks and to repay the [appellant] in every way that I could using all the time and energy that I had for what I believed was his generous gift to me ... I also lost the opportunity to obtain a property settlement from my divorce ... [and] the opportunity to purchase a property for my son and me from money from my divorce settlement and salary from a full-time job."
  3. That evidence was likely, as a matter of the probabilities of human behaviour, to be true. Indeed, it would be remarkable if the appellant's promises did not have some influence upon the respondent's decision to stay on and work at Burra Station. Upon the breakdown of the respondent's marriage, she was confronted with difficult decisions relating to the course of her life and the care and maintenance of her child. The appellant's promises were objectively likely to have had a significant effect upon the decision-making of a person in the respondent's position. The appellant's assurances were integral to his proposal to the respondent to put their relationship on a firm long-term footing. It is unlikely that she would have thrown in her lot with the appellant and exerted herself as she did over a period of eight and a half years if he had not made the promises which he in fact made. To the contrary, it is likely that she would have sought to maximise her own income for the benefit of herself and her infant son by seeking the most gainful form of employment.
  4. Secondly, the primary judge said:
"I have no doubt that [the respondent] placed faith in [the appellant] and in the promises he made her and that this played a part in her willingness to spend time and effort in the maintenance and improvement of The Oaks Cottage and assisted [sic] on the Burra Station property".
  1. Her Honour's finding that the appellant's promises "played a part in her willingness to spend time and effort in the maintenance and improvement of The Oaks Cottage and assisted on the Burra Station property" warranted the conclusion that the respondent had discharged the onus she bore on the basis that to establish estoppel by encouragement it is not necessary that the conduct of the party estopped should be the sole inducement operating on the mind of the party setting up the estoppel. Counsel for the appellant disputed this proposition but did not cite any authority in support of their position. The respondent's position is amply supported by authority.
  2. In Amalgamated Investment & Property Co Ltd (in liq) v Texas Commerce International Bank Ltd, Robert Goff J said that:
"the question is not whether the representee acted, or desisted from acting, solely in reliance on the encouragement or representation of the other party; the question is rather whether his conduct was so influenced by the encouragement or representation ... that it would be unconscionable for the representor thereafter to enforce his strict legal rights." (emphasis in original)
  1. Similarly, in Steria Ltd v Hutchison, Neuberger LJ said that it is sufficient for the representee to show that "the representation was a significant factor which he took into account when deciding whether to [act as he did]." This approach conforms to that taken by the High Court as long ago as Newbon v City Mutual Life Assurance Society Ltd, where it was said that the "supposed belief" of the representee as "a contributing cause" of the representee's conduct was a "sufficient connection between the assumption and the position of detriment". It is the view which continued to prevail in Gould v Vaggelas.
  2. Thirdly, apart from the respondent's direct testimony in support of her case, the primary judge accepted[81] that the respondent displayed a concern from time to time that the appellant honour his promises. While it is true that this concern was consistent with an understanding on the respondent's part that the appellant's promises were not contractually binding, the fact that the respondent exhibited that concern, and the fact that the appellant sought to allay that concern by giving her written assurances that the property would be transferred to her[82], tend to confirm that the appellant's promises were material to the respondent's willingness to remain living at Oaks Cottage and working on Burra Station as part of maintaining her ongoing relationship with the appellant.
  3. Fourthly, the principal argument for the appellant, which was that the cross-examination of the respondent showed that the appellant's promises were not a real inducement which contributed to the respondent's decision to conduct herself as she did over a period of eight and a half years, is not compelling.
  4. Counsel for the appellant emphasised the finding of the primary judge that the "contributions" of the appellant and the respondent to their eight-and-a-half-year relationship seemed "to be broadly matched"[83]. But the question here is whether the respondent would have committed to, and remained in, the relationship with the appellant, with all that that entailed in terms of the effect upon the material well-being of herself and her son, had she not been given the assurances made by the appellant. In this regard, the answers elicited from the respondent in cross-examination did not accept the proposition that the appellant's promises were immaterial to her. And as has been noted, some of her answers were positively to the effect that the extent of her involvement in maintaining Oaks Cottage and Burra Station was induced by the appellant's assurances of security. That evidence was to the effect that the promises in question were a vital aspect of the security which the appellant plainly understood was of concern to her.
  5. This category of equitable estoppel serves to vindicate the expectations of the representee against a party who seeks unconscionably to resile from an expectation he or she has created[84]. The extent to which it is unconscionable of the appellant to seek to resile from the position expressed in his assurances to the respondent may be gauged by reflecting on the likely response of the respondent if the appellant had told her in January 1998: "I am happy for you to remain at Oaks Cottage, but only for so long as it suits me and my wife to have you here; and, while you remain on the property, you must care for it as if you were the owner of the property and do unpaid work on parts of Burra Station other than the property. Until I make the property over to you, you must pay rent sufficient to content my wife. Should you choose to leave, you will leave with nothing in return for the value of your work here."
  6. In summary, on all the evidence, it should be found that the respondent was induced to remain at the property and to continue to work for the appellant and his wife by the assurances which he made. It is unconscionable for the appellant now to resile from his assurances." (emphasis added)
The matter was remitted to the NSW Supreme Court to assess damages to be paid.