Wong on Family Law
Wong on Family Law
Select topics on Family Law in Australia
Work-in-progress, 11 April 2025 (last updated)
Spousal Maintenance, Child Maintenance and Child Support
See also, DV torts, relationship between Family Law and DV regimes in Wong on Civil Liability.
Family Law Act 1975 - Federal Register of Legislation: <https://www.legislation.gov.au/C2004A00275/latest/text>.
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 - Federal Register of Legislation: <https://www.legislation.gov.au/F2021L01197/latest/text>.
Child Support (Assessment) Act 1989 - Federal Register of Legislation: <http://legislation.gov.au/C2004A03872/latest/text>.
[A] Resources; Guides; Annotated Legislation
Richard Chisholm, Julie Kearney and Martha Barnett, Annotated Family Law Legislation (LexisNexis, 8th ed, 2024) (release, 13 Dec 2024).
Richard Chisholm, Julie Kearney and Martha Barnett, Annotated Family Law Legislation (LexisNexis, 7th ed, 2023).
Richard Chisholm, Julie Kearney and Martha Barnett, Annotated Family Law Legislation (LexisNexis, 4th ed, 2017) <https://dokumen.pub/qdownload/annotated-family-law-legislation-4th-edition-9780409346848-0409346845.html>, archived at <https://perma.cc/S3RS-LH5D>.
Eithne Mills & Marlene Ebejer, Family Law (LexisNexis, Focus Series, 2017) <https://dokumen.pub/family-law-7th-edition-9780409344936-0409344931.html>, archived at <https://perma.cc/W4NY-AWQX>.
A Practitioner's Guide to Family Law (LexisNexis & NSW Young Lawyers, 5th ed, 2015) <https://www.lawsociety.com.au/sites/default/files/2018-05/The%20Practitioner%27s%20Guide%20to%20Family%20Law%205th%20Edition-ilovepdf-compressed.pdf>, archived at <https://perma.cc/M5HT-J2GR>.
Lisa Young, Adiva Sifris, Robyn Carroll & Geoffrey Monahan, Family Law in Australia (LexisNexis, 9th ed, 2016) <https://dokumen.pub/qdownload/family-law-in-australia-9th-edition-9780409341379-0409341371.html>, archived at <https://perma.cc/CDE6-NLGF>.
Renata Alexander et al, Australian Master Family Law Guide (CCH Wolter Kluwers, 10th ed, 2019) <https://dokumen.pub/australian-master-family-law-guide-10th-edition-9781925672329-1925672328.html>, archived at <https://perma.cc/F8RV-TJ7F>. -- book now up to 12th ed, 2024.
Patrick Parkinson, Australian Family Law in Context: Commentary and Materials (Thomson Reuters, 7th ed, 2019) <https://dokumen.pub/australian-family-law-in-context-commentary-and-materials-seventh-edition-9780455241241-0455241244.html>, archived at <https://perma.cc/VR2F-TYE7>. -- now in its 8th ed, 2023.
List of knowledge areas in Family Law (comprehensive):
> NSW Specialist Accreditation Scheme: 2025 Family Law Assessment Requirements (NSW Law Society) <https://www.lawsociety.com.au/sites/default/files/2024-12/2025%20Family%20Law%20Assessment%20Requirements%20-%20FINAL.pdf>, archived at <https://perma.cc/NS76-ZEAL>.
> NSW Specialist Accreditation Scheme: 2024 Family Law Assessment Requirements (NSW Law Society) <https://www.lawsociety.com.au/sites/default/files/2023-12/2024%20Family%20Law%20Assessment%20Requirements%20-%20FINAL.pdf>, archived at <https://perma.cc/84NH-Z6FC>.
> NSW Specialist Accreditation Scheme: 2023 Family Law Assessment Requirements (NSW Law Society) <https://www.lawsociety.com.au/sites/default/files/2022-12/2023%20Family%20Law%20Assessment%20Requirements%20V1%20-%20FINAL.pdf>, archived at <https://perma.cc/9RQK-4BCY>.
> WA 2025 Specialist Accreditation Assessment Guidelines: Family Law (The Law Society of Western Australia) <https://lawsocietywa.asn.au/wp-content/uploads/2024/12/2025-Specialist-Accreditation-Assessment-Guidelines-Family-Law.pdf>, archived at <https://perma.cc/H3TF-9JJX>.
> QLD Family Law Specialist Assessment Criteria 2023: Specialist Accrediation Distinction in Law (Queensland Law Society) <https://www.qls.com.au/getattachment/ba5f4d96-81d0-468f-9901-c5e894828de5/2023-flsa-program-assessment-criteria_final.pdf>, archived at <https://perma.cc/VX4U-GW74>.
> VIC 2023 Accredited Specialisation Assessment Guidelines: Family Law (Law Institute of Victoria) <https://www.liv.asn.au/download.aspx?DocumentVersionKey=96abdd64-d3cc-44e4-9df0-1c0189b919e4>, archived at <https://perma.cc/NZG2-HVCK>. -- see also <https://www.liv.asn.au/web/content/communities---networks/accredited_specialisation/become_accredited_specialist.aspx>.
UK Law: Jonathan Herring, Family Law (Pearson, 8th ed, 2017) <https://www.aghalibrary.com/storage/books/1609407553_AghaLibrary.pdf>, archived at <https://perma.cc/6SRT-BFYF>.
Family Court of Western Australia, Self Represented Litigants Handbooks <https://www.familycourt.wa.gov.au/S/self_represented_litigants_handbooks.aspx>:
> Parenting Cases <https://www.familycourt.wa.gov.au/_files/Legal_resources/Representing_Yourself_Guide_Parenting_Cases.pdf>, archived at <https://perma.cc/9ENR-FYZ8> (Feb 2025).
> Property Cases <https://www.familycourt.wa.gov.au/_files/Legal_resources/Guide_Representing_yourself_Court_Property_Cases.pdf>, archived at <https://perma.cc/7V3L-28ES> (May 2024).
Legal Aid Tasmania, Independent Children's Lawyers Practice Standards & Guidelines (June 2024) <https://www.legalaid.tas.gov.au/wp-content/uploads/2024/06/ICL-Practice-Standard-Guidelines.pdf>, archived at <https://perma.cc/T4SM-U7EU>.
[B] Affidavits; Sworn Evidence
Phillip Sorensen, 'How to write a family law affidavit: Facts the basis of persuasion' (Paper, 18 April 2023) <https://www.phillipsorensen.com.au/psb_docs/how-to-write-family-law-affidavit-06-23.pdf>, archived at <https://perma.cc/L5ZD-8AC6>.
Paul Fildes, 'Affidavits in Family Law' (Taussig, Cherrie, Fildes Lawyers) <https://www.tcflawyers.com.au/wp-content/uploads/2021/06/Affidavits_in_Family_Law.pdf>, archived at <https://perma.cc/GG44-FZ83>.
Richard Maurice, 'Drafting Effective Family Law Affidavits and Case Summaries' (Paper, 2019) <https://richardmauricelaw.com/wp-content/uploads/2019/01/defl.pdf>, archived at <https://perma.cc/D2ZW-QWRT>.
[C] Pleadings; Advocacy
Neil McGregor, 'Drafting Pleadings involving Third Parties in Family Court Matters' (Paper, 25 July 2019) <https://brisbanechambers.com/wp-content/uploads/2019/08/Drafting-pleadings-involving-third-parties-in-family-court-law-matters-N-McGregor-250719.pdf>.
Family Law Forms (Federal Court) <https://www.fcfcoa.gov.au/fl/forms>.
[D] Costs
NSW Law Society, Costs Guidebook 7th ed, chapter 10 - Costs in Family Law Matters <https://www.lawsociety.com.au/sites/default/files/2018-03/Ch%20110.pdf>.
Scale of costs:
> Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) Sch 1 <https://classic.austlii.edu.au/au/legis/cth/num_reg/fcafcoa2lr2021202101205652/sch1.html>.
> Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3 <https://classic.austlii.edu.au/au/legis/cth/num_reg/fcafcoalr2021202101197559/sch3.html>.
[E] Jurisdiction
Mary Keyes, 'Jurisdiction in International Family Litigation: A Critical Analysis' (2004) 27(1) UNSW Law Journal 42 <https://www.unswlawjournal.unsw.edu.au/wp-content/uploads/2017/09/27-1-16.pdf>.
Subject matter:
> Eg, "The basis for the view that a proceeding to enforce a maintenance agreement which has been approved by the Family Court is a matrimonial cause is Carew and Carew (1979) 5 Fam LR 513 ; [1979] FLC 90-698 . The Full Court of the Family Court held (FLC at p 78,724): “It would be contrary to the express intention of the legislature to hold that proceedings for the enforcement of an approved maintenance agreement are not a matrimonial cause. Such proceedings should be regarded both as proceedings with respect to the enforcement of a decree, and as proceedings in relation to completed proceedings (ie the proceedings for the approval of the agreement). They are therefore a matrimonial cause …” However, whilst a maintenance agreement may be enforced as if it were an order of the Family Court in which it is deemed to be registered (ss 88 and 87(7)), it is clear that nothing makes it or even deems it to be a judgment, order or decree of that court. Such a point was recognized by Fitzgerald J in Re Stehbens ; Ex parte Stehbens (1982) 8 Fam LR 91 ; [1982] FLC 91-229 by Connolly J in Re Masterton (1978) 37 FLR 75 , and by the Appeal Court of New South Wales in Ellinas v Ellinas (1979) 5 Fam LR 114 ; [1979] FLC 90-649 . There is therefore a jump in the reasoning by which the court in Carew, supra , concluded that enforcement proceedings were proceedings with respect to the enforcement of a decree. This seems to be the central point of departure between the reasoning in Carew on the one hand, and Ellinas and a line of New South Wales decisions on the other. It may be said that no one would deny that the Family Court has the powers of enforcement recognized by s 88. Those enforcement procedures have already been mentioned, and are conferred principally by reg 136 made pursuant to s 123. But that is not to say that when a Family Court judge responds to an application under reg 136 he is entertaining a matrimonial cause as defined in s 4. He is simply exercising the jurisdiction that ss 88 and 123 and the rules give him. It may be noted that s 119 provides that either party to a marriage may bring proceedings in contract or in tort against the other party and that the word “party” is defined to include a party to a former marriage. For the above reasons I think that proceedings in a civil court which are equivalent to the enforcement of a maintenance agreement are not proceedings in relation to “proceedings between the parties to a marriage for the approval by a court of a maintenance agreement”. It follows that there is no sufficient relation between sub-paras (f) and (d) to make such proceedings a matrimonial cause. I may also say that I prefer the reasoning in Ellinas v Ellinas, supra , and succeeding cases including McLean (1979) 5 Fam LR 197 ; [1979] 1 NSWLR 620 Oliver (1978) 33 FLR 277 ; Hinchen [1982] FLC 91-266 and Perlman (1983) 8 Fam LR 811 ; [1983] FLC 91-308 to that in Carew (1979) 5 Fam LR 513 ; [1979] FLC 90-698 and ensuing Family Court decisions which naturally follow Carew, and which include Hutchinson (1979) 5 Fam LR 476 ; [1979] FLC 90-691 . The question remains whether proceedings to enforce a maintenance agreement are in relation to “proceedings between the parties to a marriage with respect to the property of the parties to the marriage or of either of them, being proceedings in relation to current pending or completed proceedings for principal relief between those parties”. The quoted words comprise sub-para (ca) of the definition. It is sufficient to say that the only proceedings that can be contemplated under that sub-paragraph that are relevant for present purposes are those with which I have already dealt, and the initial application which preceded the making of the agreement. Whilst it may be said that the initial application for property settlement was a proceeding in relation to completed proceedings for principal relief (namely the original dissolution of marriage) under sub-para (ca), it cannot be said that such proceedings are themselves “concurrent pending or completed proceedings” which they must be if sub-para (f) is to apply to them. Quite simply nothing is concurrent or pending or capable of being pending in any relevant respect, and the only proceedings capable of being completed proceedings are those for the approval by the court of the maintenance agreement, which have already been dealt with in the discussion concerning sub-para (d).": Noble v Noble (1983) 9 Fam LR 55.
Clearly inappropriate forum?:
> see eg, discussion in P v B [2003] FamCA 121 (Park v Byon) <https://jade.io/article/754379>.
> see also, Lundquist & Lundquist [2024] FedCFamC1A 219, [37]: "It is difficult to understand why property settlement proceedings (another matrimonial cause) being litigated in Australia without jurisdictional objection would not be a relevant circumstance when considering whether Australia would be a “clearly inappropriate forum”. When deciding whether to grant a stay or an anti-suit injunction, all proceedings arising out a matrimonial relationship should be seen as forming a single controversy, see: Dobson & Londen (2005) FLC 93-225 at 79,712. These property settlement proceedings demonstrate an acceptance of the proposition that, at least for that matrimonial cause, Australia is not a clearly inappropriate forum."
> is it the same controversy? (Magistrates Court restraining order and Parenting Matters parenting order) not same controversy even through evidence overlaps: "[54] Before turning to the grounds of the application it is convenient to address the central contention raised by the applicant. Though it is expressed in a variety of ways the essence of the contention is that each of the first and second respondents erred in law by failing to hold that it was prima facie vexatious and oppressive for the applicant to seek a restraining order from the Magistrates Court when it was open to her to have sought such an order from the Family Court in the parenting proceedings. The applicant placed particular reliance on statements made by Mason J (as his Honour then was) in Moore v Inglis,40 cited with approval by the majority in Henry v Henry, in the italicised passage of judgment reproduced at [52] to the effect that it was prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second and subsequent action if an action was already pending with respect to the matter in issue. [55] The applicant placed considerable reliance on the identification by the majority in Henry v Henry of the ‘marital relationship’ as the subject matter of the controversy and the characterisation of disputes about property, maintenance, and the custody of children as ‘ordinarily [being] but aspects of an underlying controversy with respect to the marital relationship’.41 [56] In my view, the applicant’s argument does not attach sufficient weight to the qualification inherent in the word ordinarily in the majority’s observation and elevates it to an inflexible statement of principle to be applied without regard to the relevant factual context. In this case the parenting proceedings and the restraining order proceedings should not be characterised as separate proceedings with respect to ‘the matter in issue’ or ‘the identical issue or same controversy’ (to use the language of the majority in Henry v Henry). My reasons for this view are as follows. [57] First, the central issue in the parenting proceedings was what parenting orders were in the best interests of the children, s 60CA of the Family Law Act as determined by reference to the considerations in s 60CC of the Family Law Act. [58] Second, the central issue in the restraining order proceedings was whether the first other party had experienced family violence or was at risk of family violence committed by the applicant. The Restraining Orders Act does not deal with parenting orders. The object of applications under the Restraining Orders Act for family violence restraining orders is to ensure the safety of persons who have experienced or are at the risk of family violence,42 and this is reflected in the principles and provisions governing the making of such orders, see s 10B(1)(a), s 10D(1), s 10F(1)(a) and s 10G(1). A family relationship under the Restraining Orders Act is a concept that is wider than a ‘marital relationship’. The definition of ‘family relationship’ in the Restraining Orders Act includes the relationship between two persons who were but are no longer married to each other.43 [59] Third, the first other party sought different relief in the restraining order proceedings from that sought by her in the parenting proceedings. In the parenting proceedings the relief sought by the first other party was limited to parenting orders. In the restraining order proceedings the relief sought by the first other party was limited to a family violence restraining order. There was no overlap in the relief. Further, in response to the applicant’s concerns to the effect the interim order compromised his ability to maintain a relationship with the children, the first other party made it clear in her evidence in the anti-suit injunction proceedings that her concern was not to discourage the children from having a relationship with the applicant but to restrain him from ‘using third parties, systems and agencies to disparage [her], harass [her] and to perpetuate his unfounded allegations about [her] mental health’. [60] Fourth, having regard to the factual findings contained in the first respondent’s judgment and the evidence relied on by the first other party in support of the interim order application, it is clear there was an overlap in the evidence adduced in the two proceedings but an overlap in the evidence adduced in separate proceedings is not sufficient to sustain the proposition that the proceedings are with respect to the same controversy. [61] It follows from both from this analysis and from what was said in CSR Ltd v Cigna Insurance Australia Ltd about the difference in the principles governing anti-suit injunctions and stay applications that the first respondent was not required by the authority of Henry v Henry to deal with the anti-suit injunction application on the basis that the restraining order proceedings in the Magistrates Court were prima facie vexatious and oppressive as contended by the applicant.": Lietzau v Berry [2025] WASC 56.
Domicile of dependence in Australia abolished: Domicile Act 1982 (Cth) s 6.
Anti-Suit Injunctions: see eg, discussion in Bronia Tulloch, 'Anti Suit Injunctions' (Paper, 9 October 2024) <https://foleys-assets.spicyweb.net.au/main/Podcast/CPD-Materials/Family-Law-Breakfast-24/Seminar-Paper-Anti-Suit-Injunctions-Bronia-Tulloch.pdf>, archived at <https://perma.cc/S77N-LCLU>: "... Some Recent Cases 18.In Sweeney & Burniss [2024] FedCFamC1A 145 (12 September 2024) the Full Court dismissed an appeal from a decision at first instance by Carew J: Sweeney & Burniss [2023] FedCFamC1F 1032 (5 December 2023). At first instance the court held that Australia was clearly an inappropriate forum and permanently stayed the Australian proceedings. 19.Bajek & Bajek [2024] FedCFamC1F 466 was a first instance decision of Austin J. Parenting proceedings were pending in Australia and other country. The mother and children were living in another country, the father sought a determination of parenting issues in the FCFCOA. The court found that the parenting proceedings should be heard in Australia. 20.Mittelman & Eilerts [2024] FedCFamC1F 115 (5 March 2024), Williams J granted an anti-suit injunction to restrain the husband from proceeding with his proceedings in another country.".
** Issues in Cross-Border Family Law: see discussion at Jacky Campbell (Forte Family Lawyers, 26 August 2024) <https://fortefamilylawyers.com.au/cross-border-family-law/>, archived at <https://archive.is/KQ425>.
Scope of a foreign plaintiff's submission to jurisdiction:
> Nudd v Taylor [2000] QSC 344;
> see also discussion in AFS Freight Management Pty Ltd and Anor v Ziegler Nederland BV [2000] QSC 489, [7]-[11] (Douglas J): "It is clear that a party can only be taken to have submitted to the jurisdiction of the court in circumstances where its conduct is inconsistent with the maintenance of an objection to the court’s jurisdiction. It must be shown that the party alleged to have waived the objection to jurisdiction has taken some step, which is only necessary or useful, if the objection has been actually waived. See National Commercial Bank v Wimborne (1979) 11 NSWLR 156. Failure to object at first opportunity does not amount to submission. For example, filing affidavits and contesting the merits of a case, even though an appearance has not been entered, will constitute submission. See Boyle v Sacker (1888) 39 Ch D 249. However in Williams v The Society of Lloyd’s [1994] 1 VR 274, McDonald J considered that a formal request by the defendants of the plaintiff for further and better particulars of the statement of claim did not amount to submission. A defendant is also taken to have submitted to the jurisdiction of the court where before entering an appearance, it seeks interlocutory relief which is only consistent with an intention to contest the merits of the case. See White v Hardwick (1922) 23 SR (NSW) 6. Similarly, a foreign litigant who institutes proceedings as a plaintiff is taken to have submitted to the jurisdiction of the court to entertain any defence by way of cross-claim against him. The fact that the cross-claim involves a different cause of action from that which the foreign plaintiff has brought does not preclude it from being raised if the cross-claim is founded on or directly arises out of the same subject matter as that of the initial action. See Marlborough Harbour Board v Charter Travel Co Ltd 18 NSWLR 223. But the plaintiff is not taken to have submitted to claims outside of and independent of the subject matter of the initial action. See National Commercial Bank v Wimborne (supra). This principle was approved recently in Nudd v Taylor [2000] QSC 344 where Holmes J said in determining that a foreign litigant had submitted himself to this jurisdiction: [21] “It is too broad a statement to say that a foreign plaintiff who proceeds in Queensland thereby submits himself to the court’s jurisdiction at large. The position, is, in my respect view, correctly stated by Holland J in National Commercial Bank v Wimborne 35: “a foreign plaintiff, not otherwise subject to the jurisdiction of the court, who brings an action in the Court submits himself by necessary implication to every matter of counter-claim that would operate as a defence to his action or that would as a set off or cross claim arising out of the same subject matter reduce or extinguish the plaintiffs’ claim; and also, at least if he is not a foreign Sovereign, to a counterclaim founded on or directly arising out of the same subject matter as the plaintiffs’ claim that would require to be tried in order to do justice between the parties in relation to that subject matter even if it might result in a judgment against the plaintiff on the counterclaim.” His Honour continued, “To what has the plaintiff submitted? The answer to that lies, I think, in a consideration of what the plaintiff has brought to the Court for adjudication. He could not, in my opinion, properly be said to have submitted to claims outside of and independent of the subject matter of his own action”. 36 [22] That case was cited with approval by the New South Wales Court of Appeal in Marlborough Harbour Board v Charter Travel Co Ltd 37. In the latter case, the court was prepared to go somewhat further, deciding that the foreign plaintiff’s submission to the jurisdiction extended to a counterclaim which raised a new cause of action, provided that such a cross-claim was founded on or directly arose out of the same subject matter as that of the action. [23] To similar effect, the English Court of Appeal in Republic of Liberia v Gulf Oceanic 38 concluded that a plaintiff submitted himself to the incidents of his litigation, including liability to a counterclaim properly brought. In that case the plaintiffs had sought a declaration in relation to a contract for the purchase of oil and a resulting arbitration. The defendant’s counterclaim for damages for breach of the same contract and tort for wrongful procuring of the breach was permitted to stand, notwithstanding that the foreign defendants could not, in the absence of their own litigation, have been made amenable to the jurisdiction of the court on such an action.” In my view the defendants in this case have by their conduct submitted themselves to the jurisdiction of this court.".
[E.A] Parallel Proceedings in State and Territory Courts - for Damages, etc
See discussion in [DV2] in Wong on Civil Liability.
Rock v Henderson [2021] NSWCA 155: "Per Brereton JA: A claim for property adjustment in family law proceedings by one spouse may be offset by a claim for damages by the other. Doing so via separate proceedings in a different court is permissible and is not an abuse of process. While the quantum of the damages claimed by the applicant was no doubt not coincidental in view of the proceeds of sale of the Lilydale property, the applicant’s claim did not circumvent the family law proceedings: [36]-[43]. ... Per Wright J: The correspondence between the Lilydale proceeds and the damages sought may not have been fortuitous, but there was insufficient evidence to establish a logical connection. In contrast, evidence from the applicant that he was aggrieved by the respondent’s conduct and thus brought the proceedings for the genuine purpose of seeking damages was unchallenged. That was his immediate purpose, and the existence of any other ulterior motives outside of it is immaterial. The primary judge thus erred in finding that the proceedings were commenced for an improper purpose, and that such a purpose amounted to an abuse of process: [74]-[98]. ..."
> See resolution of matter - unsuccessful on malicious prosecution claim, but successful on trespass claim for nominal damages: Rock v Henderson; Rock v Henderson (No 2) [2025] NSWCA 47 <https://jade.io/article/1124889>.
Haines v Rader (No 4) [2022] FedCFamC1F 1008, [60]-[65] et seq.
Abuse of process?: "Any finding of abuse of process is a serious matter and the party seeking a permanent stay bears a heavy onus: Rock v Henderson [2021] NSWCA 155 at [2] and [37]": Kelly v UNSW [2025] NSWDC 24, [116].
[E.B] Abuse of Process in Family Law
standalone application for s 69VA declaration: "... The general principle where an applicant seeks to obtain a result outside of the scope of the remedy was stated by Lord Evershed in Re Majory [1955] Ch 600 at page 623 and 624: …[T]he court proceedings may not be used or threatened for the purpose of obtaining for the person so using or threatening them some collateral advantage to himself, and not for the purpose for which such proceedings are properly designed and exist; and a party so using or threatening proceedings will be liable to be held guilty of abusing the process of the court and therefore disqualified from invoking the powers of the court by proceedings he has abused. It is a consideration but not a determination that this application falls into that category. I also note the remarks of Brennan J in Jago v District Court of New South Wales (1989) 168 CLR 23 at page 47 and 48: …An abuse of process occurs when the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve…Although it is not possible to state exhaustively all the categories of abuse of process, it will generally be found in the use of criminal process inconsistently with some aspect of its true purpose, whether relating to the hearing and determination, its finality, the reason for examining the accused’s conduct or the exoneration of the accused from liability to punishment for the conduct alleged against him… I do not think that I need to consider further whether the application is an abuse of process. I am able to find that on the information and evidence currently presented, noting that the matter was listed for a final hearing this day, that there is no parentage dispute and as such, the submissions are dependent upon this Court, in effect, making what I describe as a stand alone declaration of parentage. I do not consider the authorities support such a contention and I do not propose to make the declaration as sought by the applicants.": Bima & Anor [2014] FamCA 1170, [21]-[25].
[F] Financial Agreements
Phillip Sorensen, 'Binding the Financial Agreement' (Paper, 10 June 2023) <https://www.phillipsorensen.com.au/psb_docs/binding-the-financial-agreement-06-23.pdf>, archived at <https://perma.cc/WS46-GFJ9>.
Paul Fildes, 'Understanding the Elements of a Binding Financial Agreement: Steps to Precision Drafting' (Paper, 13 September 2019) <https://www.tcflawyers.com.au/wp-content/uploads/2021/06/Understanding_the_elements_of_a_Binding_Financial_Agreement__Steps_to_precision_drafting.pdf>, archived at <>.
Paul Fildes, 'Drafting Binding Financial Agreements and COVID-19' (Paper, 2021) <https://www.tcflawyers.com.au/wp-content/uploads/2021/06/Drafting_Binding_Financial_Agreements_and_COVID-19.pdf>, archived at <>.
Setting aside a BFA: see discussion in Simon Marks QC and Jamie Burreket, 'Setting Aside a Financial Agreement in Equity' (Paper, 20 October 2016) <https://bablaw.com.au/wp-content/uploads/2016/11/SettingAsideBindingFinancialAgreements.pdf>.
[H] Parenting Orders; Precedent (*pre-2024 precedents may be outdated)
Parenting Orders - What you need to know (AG's Department, 2023) <https://www.ag.gov.au/sites/default/files/2023-05/parenting-orders-handbook-2023.pdf>. -- see also <https://www.ag.gov.au/families-and-marriage/publications/parenting-orders-what-you-need-know>.
Ne exeat colonia injunction.
6 May 2024 changes: Family Law Amendment Act 2023 and Family Law Amendment (Information Sharing) Act 2023: <https://www.fcfcoa.gov.au/news-and-media-centre/fla2023>. -- removing the presumption of ‘equal shared parental responsibility’ and a new definition (list of factors) for ‘best interests of the child’; ss 60CC, 65DAAA.
> Consultation Paper: <https://consultations.ag.gov.au/families-and-marriage/family-law-regs-2024/user_uploads/consultation-paper_family-law-regulations-2024.pdf>.
> 'Recent Change in how the Court determines the Best Interest of the Child' (Webpage) <https://www.rnglawyers.com.au/news-and-publications/rng-lawyers-blog/recent-changein-how-the-court-determinesthe-best-interest-of-the-child>, archived at <https://archive.md/2eUYi>.
> 'The Family Law Amendment Act 2023 (Cth): A summary of the changes which will commence on 6 May 2024' (LexisNexis, 10 April 2024) <https://www.lexisnexis.com.au/en/insights-and-analysis/practice-intelligence/2024/the-family-law-amendment-act-2023-cth>, archived at <https://archive.is/TK847>.
?2025: Family Law Amendment Bill 2024 (Cth).
> explainer: 'Australia’s 2025 Family Law Landscape: Key Reforms and Family Law Regulations Explained' (Webpage, 18 October 2024) <https://mediationsaustralia.com.au/family-law-regulations-explained/>, archived at <https://archive.is/8Q820>.
Michele Brooks, 'New Parenting Orders Framework' (Presentation, 28 May 2024) <https://foleys-assets.spicyweb.net.au/main/Podcast/CPD-Materials/Family-Law-Amendment-Act-2023-compressed.pdf>.
May 2024 amendments to FLA: see Jacky Campbell, 'Family Law Act Amendments & Parenting Arrangements: A New Pathway or Stuck on the Same Old Road?' (Forte Lawyers, 21 August 2024) <https://fortefamilylawyers.com.au/family-law-act-amendments/>, archived at <https://archive.md/lYdTS>.
Children:
> Unacceptable Risks? Best interest of the child:
> General statement: "[45] In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA). [46] The best interests of the child are determined by reference to the matters set out in s 60CC and generally include: arrangements that promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of the child and each person who has care of the child; any views expressed by the child; the developmental, psychological, emotional and cultural needs of the child; the capacity of each person who has or will have parental responsibility to provide for the child’s needs; the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so; and in considering those matters, the Court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child, and any family violence order that applies or has applied to the child or a member of the child’s family.[47] Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order. [48] Family violence is defined in s 4AB of the Act and means violent, threatening, or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Examples of such behaviour include assault, sexually abusive behaviour, stalking, repeated derogatory taunts, intentional damage, or destruction of property etc. [49] Abuse in relation to a child is defined in s 4 of the Act and means, among other things, involving a child in a sexual activity or as a sexual object, or causing the child to suffer serious psychological harm including by being exposed to family violence. [50] In cases involving allegations of abuse or family violence, a positive finding should not be made unless the Court is satisfied on the balance of probabilities,2 having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”3 and proof to the reasonable satisfaction of the Court, “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.4 Where a positive finding is not made but it is nevertheless not possible to reject an allegation as groundless, the Court is required to assess and evaluate the magnitude of any risk to the child and to determine whether the risk of harm is unacceptable.5 [51] When assessing the nature and magnitude of a risk posed by a parent or other person, all relevant evidence must be considered as part of the “matrix of evidence”6 to determine whether or not the risk of possible future harm is unacceptable and, in making that determination, it is not necessary to make findings of fact on the balance of probabilities in relation to all relevant evidence (or even any), although caution is required if concluding that a risk is unacceptable where no such findings are made.7 When assessing whether a risk is unacceptable, the Court is concerned with possibilities and not probabilities.8 Whether a risk is found to be unacceptable is not determined according to the civil standard of proof ie on the balance of probabilities.9 [52] When considering the parenting dispute more broadly, it is not necessary to make findings of fact on every factual dispute raised by the parties.10 The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case, and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive conclusion”11 on each and every factual dispute. [53] Each parent has parental responsibility (ie, all the powers, responsibilities, and authority which, by law, parents have in relation to a child) for a child subject to any order made by the Court (s 61C). [54] Section 61D provides that a parenting order can deal with the allocation of responsibility for decision making about major long-term issues, being joint or sole decision making in relation to all or specified major long-term issues. Major long-term issues mean issues about the care, welfare, and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, and changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4). [55] Where an order is made for joint decision making about major long-term issues, parents are required to consult each other in relation to each such decision and make a genuine effort to come to a joint decision (s 61DAA). Where a decision is not a major long-term one, there is no such requirement to consult with the other parent (s 61DAB). [56] Although I may not specifically discuss in these reasons each subparagraph of each relevant section of the Act, I have considered all sections as required when making my determination.12 ": Umarov & Faerber [2024] FEDCFAMC1F 898, [45]-[56].
> Finding of not unacceptable risks - allegation of sexual abuse on child: Maldonado & Maldonado (No 2) [2024] FEDCFAMC1F 885, [54] et seq.
> Finding of unacceptable risk - Where there is a history of the father perpetrating family violence against the mother, including coercive and controlling behaviour and a conviction for breaching a protection order — Where the father has a criminal history, including child sex offences and breaches of his consequent reporting obligations — Where the task of assessing the risk posed by the father is complicated by the father’s Autism Spectrum Disorder and personality vulnerabilities — Where the father disregards court orders and externalises responsibility for his actions — Where the father is to spend no time nor communicate with the children save for sending a card and a gift on special occasions: Umarov & Faerber [2024] FEDCFAMC1F 898.
> Amelioration of unacceptable risk: supervised time: Kuang v Kuang [2025] FedCFamC1A 31, [79].
> Treatment of evidence of best interest amongst allegations of coercive and controlling behaviour, including approach to fact-finding: Pickford v Pickford [2024] FedCFamC1A 249.
"I do not make the law, Parliament does, and intermediate Full Courts and the High Court provide me with guidance as to what it means — my job is to apply the law as it is. Hence, whether or not Aldridge J is correct is not to the point in this case. ... ": Whitehill v Talasjka (No 3) [2024] FedCFamC2F 1890, [72].
[I] Powers of Attorney
[I.1] Presumption of Undue Influence - s 87 Powers of Attorney Act 1998 (Q):
The key question to be decided in cases alleging undue influence (whether arising from a presumption under s 87 of the Act or from established categories of relationships) is “not whether the [principal] understood the effect of what she was doing”, but rather, whether the attorney has shown that the “transaction “cannot be ascribed to the inequality between them which must arise from (her) stronger position” and that “the gift was the independent and well-understood act of a (woman) in a position to exercise a free judgment based on information as full as that of the donee”: Smith v Glegg [2005] 1 Qd R 561, [42]-[43] (McMurdo J), ie, the principal was ‘not the subject of undue influence’: Wylie v Wylie [2021] QSC 210, [79] (Lyons SJA).
In Smith v Clegg, McMurdo J considered that “To rebut the presumption, it is not necessary in every case for a donee to demonstrate that the donor received appropriate and independent advice, although that is often how the presumption is rebutted.”
"where parties actually stand or are presumed to stand in a relation that gives one authority or influence over the other and from the abuse of that power, the weaker party is protected by the law’s recognition of a presumption of undue influence which places the burden of proof on the stronger party. As Dixon J explained in Johnson v Buttress (emphasis added): …, the party in the position of influence cannot maintain his beneficial title to property of substantial value made over to him by the other as a gift, unless he satisfies the court that he took no advantage of the donor, but that the gift was the independent and well-understood act of a man in a position to exercise a free judgment based on information as full as that of the donee.”: Bampton v Vourlides [2024] QCA 191, [42] (Bond JA).
This necessitates an assessment of factors, including, at its core, the “quality of the [principal’s] ability to make an independent and well-understood judgment in relation to whether or not to make the gift”: Bampton v Vourlides [2024] QCA 191, [44] (Bond JA). This assessment will turn on the specific facts and circumstances of the case, assessed as a whole, including the particular relationship between the parties (whether gifts could be explained in less or other rational ways), the capacity of the principal, etc. Bond JA stated at [44]-[45]:
> "… the operation of this rule must have regard to the particular nature of that relationship between the parties, in assessing what is required to rebut the presumption. In Johnson v Buttress, Dixon J said: This burden is imposed upon one of the parties to certain well-known relations as soon it appears that the relation existed and that he has obtained a substantial benefit from the other. A solicitor must thus justify the receipt of such a benefit from his client, a physician from his patient, a parent from his child, a guardian from his ward, and a man from the woman he has engaged to marry. The facts which must be proved in order to satisfy the court that the donor was freed from influence are, perhaps, not always the same in these different relationships, for the influence which grows out of them varies in kind and degree. (Emphasis added.) In the present case, there is a presumption of an influence. But [the mother] was of full capacity at the time of the transfer, and the degree of [the son’s] influence, which s 87 requires to be presumed, could not have been high. Further, there was nothing about this transaction of which [the son] had a knowledge which was not shared with [the mother]. She was just as able to decide whether it was in her interests to transfer this interest. The presumption had to be rebutted, but the burden of proof in this case was not as heavy as in many others, and care must be taken in the application of statements, in other cases, about different types of relationships of presumed influence. Further, although there was the relationship of principal and attorney, it is necessary to consider that there was another relationship between the parties, namely that of mother and son, in which a gift could be explained by motives of gratitude and affection. In Yerkey v Jones, Dixon J observed, about the types of relationships to which the presumption of undue influence applies: But in the relations comprised within the category to which the presumption of undue influence applies, there is another element besides the mere existence of an opportunity or obtaining ascendancy or confidence and of abusing it. It will be found that in none of those relations is it natural to expect the one party to give property to the other. That is to say, the character of the relation itself is never enough to explain the transaction and to account for it without suspicion of confidence abused. The relationship of mother and son does not displace, as a matter of law, the presumption imposed by s 87. But it can be relevant, and in some cases critical, to a question of whether the presumption is rebutted in a particular case. In the present case, that relationship is of central importance."
In Bampton v Vourlides, Bond JA, at [56], upheld the primary judge’s finding that the presumption of undue influence had ben rebutted. The primary judge had regard to the principal’s capacity, personality, medical reports, his comprehension of his financial affairs and his ability to manage his financial affairs, and evidence of continuous harmonious relationship after the alleged impugned transactions were made: “… the primary judge relied on the following in demonstrating that the onus of rebutting the presumption was discharged, and that the gift was the independent and well understood act of a person in a position to exercise a free judgment based on information as full as that of the donee: (a) Her Honour considered that the substance of the case rested upon the allegation that the August altercation occurred as set out by the appellant. In this respect, her Honour did not accept that it occurred in the manner described by the appellant. Therefore, her Honour did not accept that the cheque was presented as a result of the appellant being bullied into it. (b) Her Honour found that Mr Bampton an independent and dominating personality and was in command of his finances due to various purchases and had financial capacity. (c) Her Honour found there was consistent evidence from Suzanne, and letters written after the May argument indicating that the appellant would give Suzanne $300,000. This was also consistent with other evidence of the appellant’s intention to purchase an apartment for Suzanne and to change his will to reflect the payment as a gift. (d) While her Honour accepted that no independent advice was given to the appellant prior to the payment, this was not a determinative factor in rebutting the presumption, as the medical reports reflect that he had capacity to make decisions freely and voluntarily, and in particular could understand consequences of not paying bills and undertaking legal and financial transactions. (e) Her Honour made observations in respect of the timeline of events in concluding that none of which were consistent with the appellant having felt pressured into giving Suzanne the $300,000, in particular: (i) The appellant staying with Suzanne for 2 years after making the transaction and writing affectionate birthday cards. (ii) That while it was not necessarily harmonious when the appellant left, this was dissimilar to incidents occurring during his time at the retirement village. (iii) There were various changes to wills, each being prepared by solicitors, and this included Suzanne remaining as joint executor and at times joint power of attorney. (iv) The action against Suzanne was not commenced until a year after the appellant left Suzanne’s house, and shortly after she had commenced QCAT proceedings with respect to the power of attorney and the appellant’s capacity.”
In Edith White v Judith Liane Wills [2014] NSWSC 1160, Sackar J, stated with generality that while the burden of proof may be discharged by showing a gift proceeded from some laudable motive, that there was a long-held intention to make the gift, or that the donor decided to go ahead with the transaction following advice from an unbiased friend (at [89]), the extent and weight of the burden vary enormously with all the circumstances of the case, including: "[90] … In the case of an illiterate or weak-minded person it will be more difficult for the donee to discharge the prescribed onus of proof than in other cases. The burden will be still heavier upon the donee where the donor has given him all or practically all of his property. [91] Latham CJ also observed at 123: In order to maintain the transaction, it was necessary for the defendant to show affirmatively that the deceased knew what he was doing when he made the transfer, in the sense that he understood its effect and significance in relation to himself, and further to show that the transfer was the result of his own will. [92] And Dixon J noted further at 134 that beneficial title obtained by reason of undue influence will only be set aside where the donee: … satisfies the court that he took no advantage of the donor and that the gift was the independent and well-understood act of a man in a position to exercise a free judgment based on information as full as that of the donee. … [94] It may not be enough for the defendant to establish the disponor in fact intended to give the gift (Huguenin v Baseley(1807) 14 Ves 273, at 299–300). Nor may it be sufficient to show that the proposal came from the donor: see Spong v Spong(1914) 18 CLR 544 at 549; Whereat v Duff[1972] 2 NSWLR 147 at 169 per Asprey JA. [95] The defendant is required to establish that the disponor acted independently of the influence of the dominant party and that she both knew and understood what she was doing (Watkins v Combes(1922) 30 CLR 180). The burden is therefore a high one (Allcard v Skinner(1887) 36 Ch D 145, at 182–183 per Lindley LJ). [97] The presence of independent advice may go towards establishing the existence of a fully informed, free and independent will on the part of the plaintiff (although it is not essential to prove that independent advice was obtained in order to rebut the presumption). … But evidence that such advice has been given is one means, and the most obvious means, of helping to establish that the gift was the result of the free exercise of independent will; and the absence of such advice, even if not sufficient in itself to invalidate the transaction, would plainly be a most important factor in determining whether the gift was in fact the result of a free and genuine exercise of the will of the donor. [100] In Inche Noriah v Shaik Alle Bin Omar[1929] AC 127 the Privy Council noted that to satisfy the requisite quality of independent advice, the advice must originate from someone acting solely in the interests of the donor, at 135–136: Nor are their Lordships prepared to lay down what advice must be received in order to satisfy the rule in cases where independent legal advice is relied upon, further than to say that it must be given with a knowledge of all relevant circumstances and must be such as a competent and honest adviser would give if acting solely in the interests of the donor.…[102] It must however be acknowledged that the absence of legal advice will not in itself substantiate a lack of a fully informed understanding of the transaction. Those facts may emerge in and of themselves.
In Birch v Birch [2020] QCA 31, the Court considered the principal’s capacity, her understanding of her financial affairs (including the financial structure of her assets), the harmonious relationship between the principal and attorney, the principal’s longstanding intention to gift or will the asset, evidence of the principal’s affection as a mother towards the attorney and her gratitude for son’s (attorney’s) contributions over many years to the development and operation of the property, the principal's and her husband’s mutual will to leave the asset to the attorney, in finding that trial judge was correct to find that the presumption of undue influence was rebutted: " In the present case, there is a presumption of an influence. But Betty was of full capacity at the time of the transfer, and the degree of his influence, which s 87 requires to be presumed, could not have been high. Further, there was nothing about this transaction of which Doug had a knowledge which was not shared with Betty. She was just as able to decide whether it was in her interests to transfer this interest. The presumption had to be rebutted, but the burden of proof in this case was not as heavy as in many others, and care must be taken in the application of statements, in other cases, about different types of relationships of presumed influence. … [78] It is convenient to discuss first the submission that this was an improvident transaction for Betty. Betty’s income, for the most part at least, came from distributions from the Trust. At least once Jim had died, the exercise of the trustee’s discretion, as to the distribution of Trust income, was likely to have been controlled by Doug and Juanita. That did not mean, necessarily, that Betty’s position was particularly precarious, because Betty and Doug appear to have had a close and harmonious relationship over many years. There was here no reason for Betty to think that Doug would not do the right thing by her, in the distribution of Trust income or otherwise. And she continued to receive that income, as I have noted, until she sued Doug. Whether Doug’s reaction then was appropriate need not be considered. What presently matters is that, as at August 2011, she had every reason to anticipate that her income from the Trust would continue. [79] It is not unlikely that Betty had an imperfect understanding of a discretionary trust, and, more particularly, what that meant for the ownership of and enjoyment of the income from the livestock. She may not have understood that the livestock was the property of the trustee. But that legal position is unlikely to have been a matter of concern to her. What she did understand was that the grazing business was usually profitable, and that she was receiving regular monthly payments from it. [80] The one-third share of Fairyland was then her principal asset. On any view of the evidence, it was worth far more than her equity in the Eidsvold house. Betty had no proprietary interest in the livestock. When her financial position is stated in such simple terms, this might be considered to have been an improvident transaction. [81] However, there were other considerations. Most importantly, for some years (at least from when the 2004 wills were made), Betty and Jim had been intent on Doug inheriting their shares in Fairyland. According to the now unchallenged findings by the trial judge, Betty and Jim agreed that their wills would be irrevocable and would remain unaltered. Consequently, Betty was subject to equitable obligations in respect of her one-third share in Fairyland. She was obliged not to do anything which would affect the full value of that interest in Fairyland passing to Doug under her will. A reverse mortgage of that interest, if it could have been procured, would have breached that obligation. More generally, consistently with her agreement with Jim, she was not free to sell or otherwise dispose of that interest. Her one-third share, whilst being valuable as measured by one-third of the value of Fairyland, was not as valuable as it would have been if held by a party free from the obligations which were upon her as a result of the mutual wills. Betty would not have understood the operation of equitable principles upon her circumstances, but more generally, she must have felt an obligation to give effect to the intention which she and Jim had held for many years, which was that Doug would be the owner of Fairyland when they had died. In short, she would not have regarded this as her asset to deal with, as she pleased. When that is considered, this was far from a transaction which was clearly improvident. [82] It is submitted that the transaction deprived Betty of a means of obtaining an income by, in effect, requiring some quid pro quo for the use of land in which she was a part owner. The argument is that it would have provided her with a more assured source of income, than by a discretionary distribution by the trustee. This argument cannot be accepted. There was no realistic possibility that Doug, already the owner of one-third of Fairyland, would have agreed to it. Absent Doug’s agreement, Betty had no effective means of preventing the trustee company from using Fairyland for its grazing business, but without paying an agistment fee. And it is unrealistic to suppose that, without the consent and ongoing cooperation of Doug and Juanita, Betty could have arranged for cattle belonging to a third party to agist on Fairyland. [83] As will appear from the above, most of the grounds of appeal challenge the trial judge’s conclusion that Betty received appropriate legal advice. In my view, the advice which Betty did receive is not critical to the outcome in this case. This is because, if the presumption is not otherwise rebutted, the advice which Betty did receive would have been insufficient to make a difference. The main reason for this is that, as Mr Laurentiussen made clear to Betty, he was not her financial adviser and there could have been other considerations which were relevant to her decision. Nevertheless, the fact that Betty received the advice which was given by Mr Laurentiussen is relevant, in demonstrating that she had professional advice which provided her with a good reason for giving this property to Doug then, rather than under her will. [84] However I do not accept all of the criticisms which are made of Mr Laurentiussen’s advice. Mr Laurentiussen did not misstate the legal options which were open to Betty, or the possible legal consequences of them. The circumstances, which did exist and which would have been apparent to Mr Laurentiussen, were that Betty was of full capacity and had long intended that Doug should become the sole owner of Fairyland. There was an extensive consultation during which Betty, but also Doug, received his advice. As things would have appeared to Mr Laurentiussen, Betty was able to make her own decision about whether this transaction might affect her interests, although she may not have received from him all of the advice which would be relevant to that decision. [85] Like the trial judge, I would accept that Mr Laurentiussen was an independent legal advisor. After he had advised Betty, and she had instructed him to effect the transfer, he did provide some service to Doug in effecting the transaction. But the advice which he gave to Betty, during the lengthy conference on 19 August 2011, was independent advice. [86] By ground 4, it is contended that his Honour erred in reasoning that the presumption was displaced by the fact that, his Honour found, the advice which it is said that Betty should have received would not have persuaded her to act otherwise. It is submitted that this was a significant indication of the effect of Doug’s influence, so that rather than displacing the presumption, it confirmed it. That submission cannot be accepted. The finding that Betty would have proceeded, notwithstanding the receipt of such advice, recognises that there were other circumstances which were influential, most importantly Betty’s affection as a mother towards Doug and her gratitude for Doug’s contributions over many years to the development and operation of the property. [87] Unlike the trial judge, I would not see the fact of the advice given by Mr Parker to Betty, in 2012, as significant in the way in which independent advice at the time of the transaction would have been. What can be said, however, is that her instructions to Mr Parker show that this was not a transaction of which Betty repented until 2013. The appellant’s argument then has to confront the trial judge’s finding that in 2013, Betty came under the influence of some of Doug’s siblings who, it fairly appears from the judgment, were not regarded by his Honour as independent advisers. [88] In my conclusion, the trial judge was correct to find that the presumption of undue influence was rebutted. On the evidence which the trial judge accepted, it was demonstrated that Betty decided to make this gift, uninfluenced by her relationship with Doug as principal and attorney. She made this decision because she wished to avoid the risk that, if her interest was to pass to Doug under her will, that could be challenged by the actions of some of her other children. If she had a concern about Doug being able to borrow enough money to pay out his siblings, for what had been his father’s one-third interest, that was a proper and rational concern. If there had been some challenge to the distribution of her estate, according to her will, that would have had a potential relevance for Doug’s prospects of borrowing something of the order of $1 million to pay for what had been his father’s share. For many years, she and Jim had meant to leave the whole of Fairyland to Doug, and they had made mutual wills to that effect. As I have discussed, this was not an improvident transaction when all the circumstances are considered.
In Pinter v Pinter [2016] QSC 314, Douglas J considered the medical records and capacity of the principal at the time of the transactions, photographic evidence of holidays undertaken by the principal contemporaneously. However, Douglas J found that the presumption was not rebutted on the available evidence: "Applicability of the statutory presumption of undue influence [106] It is safer, therefore, to operate on the basis that the statutory presumption under s 87 that Giacomina was induced to enter the transaction by Marcello’s undue influence does arise. In that context, it is now necessary to examine the evidence about her capacity at the time and to consider whether that presumption has been rebutted. The capacity of Giacomina Pinter in late May 2003 [107] Giacomina was then aged 75 and was also under treatment from Dr Appadurai who gave evidence principally by reference to his clinical notes from 18 September 2002. The history he took from her and Marcello who attended at the consultation on 18 September 2002 was that she had short term memory problems over the previous year, problems with numbers, addition and subtraction and money handling difficulties. Marcello was helping her with her finances which she had managed by herself in the past. Her fluency in English had decreased and she had difficulties with written English in both reading and understanding it. He scored her 18 out of 30 on a mini — mental state examination and was left with the impression that she had “mild dementia — probably mixed”. He put her on Aricept too. [108] At the next consultation on 12 March 2003, not too long before the execution of the transfer, Marcello told Dr Appadurai that there had been a noticeable improvement in his mother, that she was more alert and assertive and cared for herself better. There was no change to the mini-mental state examination at that consultation, although at a later consultation on 14 May 2003 her score increased to 21 out of 30. The doctor noted that she qualified for long term prescription of Aricept. [109] The next consultation was on 6 August 2003 when her mini-mental state examination had decreased to 17 out of 30 and the doctor noted that her accuracy was affected by language. Italian was her first language rather than English. At a consultation on 11 February 2004, the doctor recorded no deterioration. The mini-mental state examination was then 19 out of 30 and she appears to have spoken to him about her plans to move in with her son. At a later consultation on 28 July 2004, there was mention of her going to Italy in September and October of that year. It seems to have ended up as the trip taken in 2005. [110] There was evidence of that trip to Italy with her husband and members of her family in 2005 from which one could conclude that she was still at a stage where she was capable of acting independently to some extent, although, at least according to the evidence of Mrs Maria Mangano, she was suffering toileting accidents that were embarrassing by the end of it. She also needed to be accompanied, for example, when out shopping or on the return flight from Italy to Australia. [111] Giacomina and Eduardo had, however, gone to Italy independently of Mrs Mangano and her husband and the reports of their behaviour before the accident on the escalator to Eduardo in Rome shortly before their departure do not suggest problems with her ability to function appropriately then. Mrs Mangano had not seen as much of them during the earlier period they were in Italy. [112] Dr Roush, Eduardo and Giacomina’s general practitioner, gave similar evidence to that of Dr Appadurai. One thing he said of some significance in respect of the observations of Maria Mangano was that people who had dementia and were thinking of moving on a plane or going any distance suffered a very increased risk of becoming quite impaired.23 That may well explain the behaviour observed by Maria Mangano but does not particularly address whether Giacomina lacked appropriate capacity or was suggestible at the end of May 2003. [113] There is also evidence that Giacomina gave instructions to execute a will on or about 7 September 2004, a document which has not been challenged by the plaintiff, that she remained independent in daily living including cooking and cleaning fairly well around the time of execution of the transfer and that she maintained her social activities without notable neurological deficits and where her cranial nerves were intact. [114] Some photographic evidence of the trip to Europe in 2005 was also relied upon showing someone entirely at ease with the company around them. It was submitted by Mr Quinn for the defendants that there was no indication that she was then a regressive personality who might easily be dominated by her son. [115] Although the medical evidence does suggest that there had been some decline in Giacomina’s cognitive faculties by 30 May 2003, that evidence does not suggest to me that, by then, she lacked capacity to look after her own interests. The fact that she executed a will with solicitors some time later than that which remains unchallenged has a bearing on that issue as does the unchallenged evidence that the idea behind the decision to transfer the Mooloolaba flats came partly at least from her own concerns that they were becoming difficult for them to manage, that she and her husband not enter a nursing home before it became really necessary and that they protect their ability to receive a Commonwealth pension. Both brothers gave evidence that she was aware of those issues as concerns that she and her husband needed to deal with as they aged. The evidence also supports the view that she was concerned to own a significant equity in the property they were to build and live in with the defendants and played a real part in its design to suit hers and Eduardo’s needs. Has the presumption of undue influence been rebutted? [116] I am not satisfied from the evidence I have analysed above that I should conclude that at the time Giacomina signed the transfer she lacked the capacity to know and understand what she was doing or that she was in a position of special disadvantage with respect to Marcello. She was actively looking after hers and her husband’s interests. I shall discuss some of the relevant evidence further in the next section of the judgment but, in my view, the presumption of undue influence has been rebutted."
In Baker v Affoo [2014] QSC 46, Jackson J emphasized (at [87]) that “where the donor is dead and the donee alone is giving evidence of the gift the law requires that as evidence it should be thoroughly and carefully sifted in a state of suspicion.”. In that case, Jackson J had considered analogous cases of elderly principals giving away their property to people in exchange an expectation and promise that they care and provide for them during the remainder of their lives, illustrating the difficulties in such cases of demonstrating the discharge of the burden of rebutting the presumption: "[96] … The question whether the presumption is rebutted is one of fact, based on the circumstances of the case at hand. However, a useful comparison might be attempted with the decision of the High Court of Australia in Watkins v Combes.13 In that case, the elderly donor transferred her house property to friends who were living with her, in exchange for her expectation and their promises that they would care and provided for her during the remainder of her life. The plurality said: … we think it cannot be said that at the time when she executed the transfer now in question she was incompetent to transact business. But, assuming that she was competent to transact business, we have to consider whether, in view of the relation which existed between her and the defendants, this transfer or the gift of £100 should be allowed to stand. We have come to the conclusion that during her residence with the defendants after her return from Western Australia Mrs Reynolds's mind was entirely under the dominion of the defendants, and that she was therefore, as they well knew, incapable of dealing with them on a footing of equality. A disposition of property by her to either of them, whether voluntary or for valuable consideration, made while this relation continued and without the benefit of independent advice, cannot stand. The defendants have failed to prove either that Mrs Reynolds was removed from their influence at the time of the transaction impeached or that she had independent advice in connection with that transaction. Mr Ife acted for both Mrs Reynolds and the defendants in the transaction, and obtained his instructions originally from the defendant Daniel Watkins, and, although he discussed the matter with Mrs Reynolds and gave her certain advice with regard to the form of the documents, it is impossible to treat his advice as ‘independent‘ within the meaning of the rule.14 [97] The defendants sought to establish by their evidence that Ted was fixed in his views, determined, and not likely to change his mind once he formed a view. All of this was presumably intended to show his independence and “a footing of equality“. But against the objective facts, the attempt took on an unreal aspect. At the time of the transfers, Ted was 89, recently widowed, and without other close by emotional supports, except for Bill and Rhonda. He was already physically dependent upon them and that was increasing. He was probably aware that his short term memory was failing or had failed. His concern was to live out his days on the farm. His hope and intention, in doing so, were to persuade Bill and Rhonda, as close friends, to continue and increase their support for him. [98] In those circumstances, for Bill to take a gift of a large amount from Ted was on its face unconscientious because Bill was in a position where great confidence was reposed in him by Ted. Bill, with the benefit of legal advice as well as financial advice, ought to have realised that it was necessary to establish that Ted‘s decision was made with the benefit of independent advice. That Ted was doing it apparently without telling his children made that even more important. [99] The strongest countervailing circumstance in the facts as I have found them to be above was that Ted had the intention to disinherit his children from at least May 2002. In the end, the reasons why Ted did that were not made very clear. He appears to have thought that his children had some intention to have him committed. There is no suggestion that there was any basis for that belief. It indicates unfounded suspicion on Ted‘s part, perhaps even some paranoia. Unless there was some basis for the belief, a wise friend might have counselled Ted against it. It does not appear that Bill or Rhonda did that. Perhaps understandably, Bill supported Ted when Roger confronted Ted about whether he had changed his will. [100] However, despite Ted‘s 2002 change of heart so as to disinherit his children, I am not prepared to find in the circumstances, as previously described, that the defendants discharged their onus to rebut the presumption of undue influence."
Smith v Glegg [2005] 1 Qd R 561 was a case where the attorney’s influence over the principal was positively proved: “[44] To rebut the presumption, it is not necessary in every case for a donee to demonstrate that the donor received appropriate and independent advice, although that is often how the presumption is rebutted. In this case, the plaintiff had no such advice. [45] Smith and Stanton were not her solicitors in this transaction. Ms Taylor thought that their client was Mr Stone. The defendant and Ms Taylor each gave evidence that Ms Taylor explained to the plaintiff the effect of the documents which she was asked to sign. I reject that evidence. Ms Taylor said that in accordance with her usual practice, she would have “read the document to the person … and (made) sure that (she) understood the ramifications and consequences before signing”. I do not see how she could have done so in this case, because the documents were so inconsistent with each other that no lawyer could have sensibly explained their combined effect. And Ms Taylor could not have explained how a transfer of the property to Mr Stone would put the property in the defendant’s beneficial ownership, when Ms Taylor had no understanding that Mr Stone was to hold it for the defendant. Ms Taylor said that it was her usual practice to keep detailed diary notes of meetings such as this one. In this case however there is no such note, an absence which Ms Taylor said “astounds her”. In truth, the plaintiff had no solicitor in this transaction, and nor did the solicitor on the other side of the transaction explain the legal effect of the documents to her. [46] But more importantly still, the plaintiff had no independent advice as to whether it was in her interests to give away what was effectively the whole of her property. [47] The evidence suggests two reasons which the plaintiff could have had for transferring her property. According to some witnesses, the plaintiff had been saying that she was concerned that her will would be contested and that the defendant would not inherit the house. The other possible reason was to avoid having to pay a bond on entry to the retirement home (with possibly a similar advantage from having no assets in relation to rental at the home and her pension). … [53] In her evidence, the defendant seemed to consider that it was entirely for her mother’s good that the house was transferred. There is no reason to think that at the time of the transaction, the defendant referred to the ways in which the plaintiff could be worse off by the transfer. Having regard to the defendant’s suggested marital problems, or the suggested difficulties within Mr Glegg’s business, there was no certainty that the defendant would be able to provide for the plaintiff anything not provided by a pension, even after the defendant had the plaintiff’s property. I infer that the defendant encouraged the plaintiff to transfer her house referring to at least one good reason for it (the bond) and saying effectively nothing of any disadvantage. [54] In this case, therefore, the influence of the defendant is positively proved. Apart from what the plaintiff may have heard said by other residents of the retirement home, her information about the relevant terms and costs for entry to the retirement home must have come from the defendant’s advice. She did not have, as she should have had, independent advice about that matter and whether it warranted a transaction by which the plaintiff gave away substantially all of her property. [55] The defendant strenuously denies that she said words to the effect that the property would be retransferred once the plaintiff was settled into the retirement home. Whilst the defendant was not an impressive witness nor, in my view, was the plaintiff completely reliable. I am unpersuaded that the defendant said that she would retransfer the house. But as I have said, the plaintiff’s pleaded case does not depend upon proof of such an assurance. [56] The defendant’s case that the plaintiff independently decided upon this transaction and initiated the steps to effect it is also inconsistent with the plaintiff’s ignorance of some of what was involved in this transaction. I have found that she did not know of the grant application and nor could she have known that she had been asked to write her signature on a contract which was not intended to have any legal effect. I also accept her evidence that she did not know that she was transferring the house to Mr Stone. Had she known that, it is likely to have caused her concern because her intention was to have the property transferred to the defendant whom she was trusting to continue to see to her care. Ms Pool’s evidence is that she discussed with the plaintiff that the property was to go to Mr Stone, but she could not recall the specifics. I do not accept that evidence which did not seem to come from any actual recollection. [57] I conclude then that the defendant has failed to rebut the presumption of undue influence.”
[K] Testamentary Discretionary Trusts
Family Provision; deceased estate; Trustee / Executor acting for own their reasons rather than in accordance with the testator's testamentary wishes for the operation of the testamentary discretionary trust: William Bkassini v Sonya Sarkis [2017] NSWSC 1487, [312], [376], [393] (Robb J in Eq): "[284] ... William receive the benefits expressed in her memorandum of wishes, and that the reason why she created the testamentary discretionary trust was that she wanted to preserve the capital of her estate for her children and grandchildren, and in particular wanted to avoid placing the capital at risk by giving it to William in circumstances where it could be dissipated by reason of William’s gambling practices. [285] The deceased’s wishes have been thwarted by the decision of Sonya to exercise her discretionary power as trustee to cut off William entirely from the receipt of any benefits from the trust, and furthermore to exercise her statutory right to obtain orders for the sale of both properties. ... [312] Of course, the present is not a case where the testator has judged that the provision to be made for a beneficiary should be reduced by reason of that beneficiary’s conduct. It is a case where a testamentary provision has been chosen by the deceased notwithstanding any shortcomings in the beneficiary’s conduct and the intent of that provision has failed, and where the question arises in the context of the deceased’s executor and trustee trying to deny any provision to the beneficiary for her own reasons, rather than in upholding the testamentary wishes of the deceased. … [376] I concluded earlier that the deceased did want William to enjoy the benefit of her estate during his life but wanted to ensure that he did so in a manner that preserved her capital for the benefit of her children. I have not accepted Sonya’s argument that the essence of the deceased’s testamentary intention was that William should only enjoy such benefits from her estate as Sonya for her own reasons determined from time to time were suitable. … [393] The deceased’s wishes should be given paramount effect in preference to the wishes of Sonya who, I am satisfied, has exercised her trustee’s discretion for her own reasons after many years of compliance with the wishes expressed by the deceased".
> "William Bkassini v Sonya Sarkis 1/11/17 – Value of Estate/ Notional Estate – $880,000 Plaintiff, the widow of the deceased, made a claim after almost whole estate was left to one of 3 children on testamentary trust intended to benefit the Plaintiff. Trustee used discretion to cut Plaintiff off from any benefits after he took up with another woman. Plaintiff owned 2 properties with deceased and lived in one. Plaintiff awarded a “portable” life interest in deceased’s half share in one property and costs.": 'Summary of 2017 Family Provision Cases' (AS Laumberg, 2018) <https://aslaumberg.com.au/summary-of-2017-family-provision-cases/>, archived at <https://archive.is/YDBIi>.
Craig Birtles, 'Will Drafting from a Litigator's Perspective' (Paper, 2023) <https://twowentworth.com.au/wp-content/uploads/2024/05/C-Birtles-BMLS-paper-Will-drafting-8.9.23.pdf>, archived at <https://perma.cc/V5Z5-T49F>.
> Family provision :"... “Provision for eligible persons may be inadequate or improper in form as well as, or as distinct from, in quantum. Thus, provision which is dependent upon the exercise of a discretion by the trustee of a discretionary trust will often, though not invariably, be inadequate or improper: Re WTN (NSWSC Unreported, 3/7/59, McLelland CJ in Eq); referred to in [1959] 33 ALJ 240 Gregory v Hudson (No 2) (New South Wales Supreme Court, Young J, 18 September 1997, unreported).” The above passages do that mean that all testamentary trust structures will be found to not provide adequate and proper provision for an eligible person. The answer to that question depends on the terms of the trust, the financial circumstances of the eligible person, and the other relevant s 60(2) Succession Act 2006 (NSW) factors.".
Craig Birtles, 'War on Trusts' (Paper, Two Wentworth Succession Conference, March 2024) <http://twowentworth.com.au/wp-content/uploads/2024/05/C-Birtles-Paper-War-on-Trusts-23.3.24.pdf>, archived at <https://perma.cc/ZZY9-28D3>.
[K-A] Appointment of a Firm of Solicitors as Trustee and Executor
Re Draper [2022] SASC 46 -- wording of appointment clause
ASCR 2015, r 12.4:
> ** 'Solicitors as Executors - Questions and Answers' (NSW Law Society, Paper) <https://www.lawsociety.com.au/sites/default/files/2018-10/files.pdf>, archived at <https://perma.cc/T9LF-EZ67>. -- template letter.
> 'When commission is awarded to executor in a probate proceedings' in C Sparke, U Stanisich and I Kallweit, Wills Probate & Administration Vic (LexisNexis, 2019) [50,025]-[50,055] <https://perma.cc/CN86-337P>.
> Carol McOmish, 'Solicitors’ and executors’ commission: dangers, pitfalls, recent developments, case law and practical issue affecting lawyers' (Svenson's List, Paper) <https://svensonbarristers.com.au/wp-content/uploads/2017/07/C_McOmish_Solicitor_Executors_Fees_Southern_Solicitors.pdf>, archived at <https://perma.cc/5Y77-Z7YA>.
> 'Appointing a Solicitor as your Executor: Practical Considerations' (De Groot Lawyers, Webpage) <https://degroots.com.au/appointing-a-solicitor-as-your-executor-practical-considerations/>, archived at <https://archive.is/5M1vV>: "... It should be stressed that it is not unprofessional or unethical for a solicitor to accept an appointment as executor. However, the Australian Solicitors Conduct Rules prescribe special requirements to be followed before the appointment is made. A letter must be given to the will-maker addressing the costs and solicitor’s commission that might not be payable if family or friends are appointed. This requirement will also apply where a codicil is made to the will or another will is proposed (where the solicitor’s appointment will continue). ..."
> Russell Cocks, 'Solicitor - Executor's Commission 1 - Horns of a dilemma' (ByLawyers, 1 January 2010) <https://obiter.bylawyers.com.au/solicitor-executors-commission-1/>, archived at <https://archive.is/cbtnI>.
> Russell Cocks, 'Solicitor – Executor’s commission 2 – A fiduciary duty' (ByLawyers, 1 January 2010) <https://obiter.bylawyers.com.au/executors-commission-a-fiduciary-duty-2/>, archived at <https://archive.is/7He7N>.
> Box et al, 'The Solicitor-Executor and Remuneration Clauses' (2002) 76(8) Law Institute Journal 77.
[M] Interim Injunctions in Family Law Property Matters
Section 114(1)(e), Family Law Act 1975 (Cth).
[M.1] Businesses, Companies, Trusts, third parties, etc
Eg, Chea & Sok [2022] FedCFamC1F 628.
> see discussion in 'Injunctions and businesses in family law matters: Chea & Sok [2022] FedCFamC1F 628' (Coulter Legal, 28 October 2022) <https://www.coulterlegal.com.au/injunctions-and-businesses-in-family-law-matters/>, archived at <https://archive.is/Iu8Yi>.
Test, similar to freezing orders, prima facie case and balance of convenience (discretionary factors): Dunworth & Falletti [2020] FamCA 178 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/2020/178.html>.
> see eg, 'Injunction to stop my ex selling assets' (Barton Family Lawyers, 13 February 2022) <https://bartonfamilylaw.com.au/blogs/property/injunction-to-stop-my-ex-selling-assets/>.
> see also, eg, 'Family Law Injunctions' (Armstrong Legal, Webpage) <https://www.armstronglegal.com.au/family-law/court-processes/injunctions/>.
> legitimate business expenses, exception?
> undertaking as to damages.
See discussion in Paul Fildes, 'The Corporations Act and Family Law' (Paper, 12th Annual Family Law Conference, 2-3 August 2018) 29-35 et seq <https://www.tcflawyers.com.au/wp-content/uploads/2021/06/The_Corporations_Act___Family_Law.pdf> archived at <https://perma.cc/ZCF9-G88V>.
See discussion in Dorothy Kovacs, 'The Jurisdiction of the Family Court with Respect to Family Companies' (1982) Adelaide Law Review 163 <https://classic.austlii.edu.au/au/journals/AdelLawRw/1982/9.pdf>.
third parties, effect on, etc; discussion on jurisdiction: See discussion in Justice Paul Brereton, 'Third Parties: Invited Guests or Gate Crashers' (Paper, 13th National Family Law Conferene, 6-11 April 2008) <https://supremecourt.nsw.gov.au/documents/Publications/Speeches/Pre-2015-Speeches/Brereton/brereton060408.pdf>.
[N] Notarial Practice
'An Introduction to the Notariats of Australia – seen through the Society of Notaries of Victoria' (Presentation, October 2024) <https://www.notarypublic.ie/wp-content/uploads/2024/12/Notariats-Australia-2024.pdf>, archived at <https://perma.cc/K52K-ZMTS>: "... Australian Notaries Public are all senior practising lawyers appointed by the Supreme Court of the relevant State or Territory in which they intend to practice, except in the State of Queensland and New Zealand where legislation does not exist and appointments rely on English law [similar to those in Great Britain – Scriveners and General Notaries] where Notaries are appointed under its common law heritage by England’s Archbishop of Canterbury, acting through the Master of the Faculties."
Key Texts:
> Peter Zablud, Principles of Notorial Practice (Notary Press, 3rd ed, 2024).
> Peter Zablud, A Notary's Forms and Precedents (Psophidian Press, 2002) <https://catalogue.nla.gov.au/catalog/551775>.
Practice Manual (The Society of Notaries of Queensland Incorporated, rev Nov 2008) <https://societyofnotariesqld.org/wp-content/uploads/2019/03/05-Practice-Manual-Rev-04-Nov-2008.pdf>, archived at <https://perma.cc/83HC-ZZMU>.
Hansard, Western Australia, 7 April 2005, Hon Peter Foss <https://www.parliament.wa.gov.au/Hansard%5Chansard.nsf/0/54e50cac7b099da9c825757000129df3/$FILE/C37%20S1%2020050407%20p483b-491a.pdf>, archived at <https://perma.cc/P2UC-TP8V>: "... Up to date I have informed members about the history of and the legal basis for public notaries. They have learnt that notaries have a different function in common law from civil law countries and that their principal role is that link between common law and civil law countries. However, members still do not know what a public notary does. That is what I intend to tell them. I happened to be quite lucky in this respect because very soon after I was articled, I got the lucky job of being a notary’s clerk. The firm to which I belonged was unusual in that it had three notaries public. They were the former senior partner, Mr Earnest Blanckensee, who had retired and only occasionally came in but still did do notarial acts as were required, and his two sons, the late Robert Blanckensee, and Allen Blanckensee. The firm had three notaries public. It became clear that the public notaries did not do much of the notary work themselves; they had a notary clerk. Interestingly, the person who had to know more of the law was the notary’s clerk. As the notary’s clerk, and being a thorough young articled clerk, the first time I was asked to note and protest a bill of exchange, I was somewhat taken aback. I had to find out how it was done. I sought the help of Brookes Notary, which was the leading book on notarial practice. I should explain what is noting and protesting a bill of exchange. Nearly each of those words sounds like gobbledygook. What is a bill of exchange? How does one note and is a bill of protest exchanged? Bills of exchanges are mentioned in the commonwealth Bills of Exchange Act 1909, which deals with all bills of exchange. ... That is all perfectly clear. What is a bill of exchange? A bill of exchange is a more general type of document similar to a cheque. Cheques now have a separate act of their own. However, at that time they did not; they were treated as being a specific case of bills of exchange. The difference between a cheque and a bill of exchange is that in the case of a bill of a cheque, a person draws the cheque on his bank payable to somebody else. In the case of a bill of exchange, it can be drawn on anybody to pay somebody else. It does not have to be drawn on a bank. There are many technical rules that I will not go into about bills of exchange. They were used extensively in international commerce before electronic transfers and bank overdrafts etc. A person would agree to sell certain goods to somebody and deliver the goods on board a ship. The documents would be taken from the ship, and title would be given at the other end. Those documents and a bill of exchange drawn on the buyer would be sent to the bank, which would discount them and give out the money straight away. The bank would then send the bank of exchange to the corresponding bank in the other country. All those documents would be given to the receiver, who would examine them before writing an acceptance of it. To get something liable on a bill of exchange, the receiver must accept it. ... Once it has been accepted. The point is that it is a totally different legal case once the person has accepted it. The drawer would then say it was payable at the bank 30 days after acceptance. Some 30 days later the drawer’s bank would present the accepter’s bank with the bill of exchange for it to be honoured. If something had gone wrong in the meantime, the bank would refuse to pay it. Members can imagine the difficulties that existed a couple of hundred years ago trying to prove something that happened in a foreign country. A whole system was set up to deal with it. The bank that presented the bill would go before a notary and say it wanted the bill noted and protested. That is where I came in. The firm for which I was employed acted for a few banks. The bank would produce a bill, which was normally written in any language one could possibly think of. Often the document was not recognisable as a bill. It had to be translated to find out what it was all about. Luckily most of them were written in language about which I had some knowledge and the capacity to translate. Once both the front and back of the bills were read - it was important to read both sides - one could work out where to go to note and protest the bill. I would take the bill to a bank and ask to see the manager. When the manager appeared, I asked him what was his answer on this bill. Bank managers were usually slightly taken aback by having a lawyer’s clerk appear and ask them what was their answer on it. Usually they would say there were insufficient funds and point out that that is what was written on the back of the bill of exchange. That would be the bank’s answer. I would ask the manager what was his name and position in the bank, and write it all down. Then I would go back to the office and make a copy of the bill. I introduced a novel approach to making copies of the bill - photocopying! Until then, the document in the public notaries register was handwritten or sometimes typed but never photocopied. On this brand new innovation, the photocopy of the front and back of the bill, I endorsed the answer I received; “Presented at such-and-such a bank to so-and-so who he said was the manager of the account, and received the answer: insufficient funds”. As notaries clerk I would then sign the document and take it along to the notary, who would put all these marvellous red seals on it and put it into the notaries register. If somebody wanted to sue on it, they did not have to produce the bill, the evidence or anything. All they had to say was, “Give us a protest from the notaries register.” That document - the protest - under the notaries seal, which was a copy of what was in the notaries register, would be notarised. A person would get this lovely, elaborate-looking copy of it with a big notaries seal on it, which was quite an impressive looking thing with a ribbon that was tied in and so forth. Normally, the notaries document also had to be legalised, which involved taking it to the local consul. The consul would attach another piece of paper to it with his seal on it saying that the person is a notary. That document would go over to the country, and that country could then say, “Our consular officer, of whom we take judicial notice, says that this person is a notary in that district and that this bill was presented to this person on this date and dishonoured by receiving this answer etc” - end of story! The law could still be argued about, but, at that stage, that was it. A person did not need to go to a whole lot of difficulty to prove things. As members can see, notaries have a very important part to play in international trade, although their role is less important now with the introduction of electronic transfers. Another area in which notaries have had involvement has been in taking ships’ protests. This goes back to the time when communications were difficult. In shipping law there is a thing called “a general average event”. Sometimes when a boat is at sea, a terrible storm can blow up and the ship might be lost. The only way the ship can be saved is to toss all the cargo overboard or throw some of the ship’s equipment overboard. On any voyage there are three principle interests; the cargo, the freight and the hull. When one of those interests suffers extra damage in order to preserve all three, then the master of the ship is entitled to average that damage across all the interests according to value. Therefore, if all or half of the cargo is thrown overboard to lighten the ship so it will not sink, the person who suffers the damage is the person who owns that cargo. Because throwing that cargo overboard saved the other two interests, then it is only fair that the owners of the other interests should help out. How does a person prove that the event happened? As soon as the ship docks at the next port, the most important thing the master must do is to go straight to the public notary and protest the event and say that he had a general average event. The notary will duly record all this in his notarial register, and in due course it will go back with the account. This still does not solve all the problems, but at least it shows that a protest took place and early on in the piece the master protested about the general average event. The third thing in which notaries are involved in this state is the verification and the swearing of documents. I do not know how many people who come from civil law countries have had difficulties in dealing with legal matters in their country of origin. A person does not even have to be a first generation immigrant for them to have problems. For instance, my mother was Portuguese, and I am still tied up in things involving my grandfather’s estate. He died in 1949. I suspect that, at the rate we are going, I will probably go prior to his estate being wound up. Every time somebody dies, as my mother’s generation have inevitably been doing, especially as she was one of the youngest in her family, we have to substitute the heirs for the people who were previously the inheritors. When my grandfather died, his children were the inheritors. However, all but two of the next generation are dead - my mother had 12 sisters and two brothers so there are quite a few of them - and some of the next generation are also dead. Under civil law, and because we are dealing with real property, a person cannot sell it as easily in common law countries. It is very difficult to get rid of certain things. What is really holding us up at the moment is my grandfather’s home. I have lost count of how many people are involved in the estate and how many times everything has been held up while we have to substitute more people into the thing because of the death of some other person. We are trying to get this person out of the house who has been sitting in there for a rather long time, and we have a court case going on. Of course, every time things like this happen, we have all got to agree to it and it requires the intervention of a notary. We have to get an affidavit in Portuguese that is full of legal terms, we have to get that notarised by a notary and then we have to get the Portuguese consul to legalise it before it goes off to a Portuguese court. Sometimes we can bypass the notary. There are other documents with which a notary is involved. If a person transfers land in civil law countries, it must be registered by a notary. This goes back centuries, and it was the original method of getting over the problems that we have dealt with under the Torrens land title system; that is, the Transfer of Land Act. We have a system of land registry and an assessment of indefeasible title guaranteed by the state. Prior to that, we had a system of common law tenure, which depended upon a thing called root of title. If a person wanted to show that he owned land, he would have to show a bundle of documents that showed the ownership of that land and its transfer going back many years, and that is still done in some places in New South Wales where some of the old system title is in place. We did have some here, but generally speaking everybody who wants to deal with a title transfers it to the Transfer of Land Act. However, that is the system we had. It was atrocious because people would lose documents, and on top of all that we had a system of trusts, which is unique to common law. A person could show he has the legal title but he would find that he had to hold it in trust for somebody else. Even though a person could hold the legal title, somebody else had the benefit of it. Therefore, we came up with the Transfer of Land Act. Earlier in civil law systems, the document was not even legal; a person could not even pass title if he had not registered that document with a notary. Therefore, that document had to be taken to the notary and signed, and a copy of it would be entered into his register and certified that it had been registered. The result was that they then had a public register system whereby the change of title could be tracked. Many people found it very annoying. They like to be able to sign a contract of sale and know that they are there; that does not happen in civil law countries. In civil law countries, a person has not achieved anything until the notary has registered a document. Notaries deal with many other things. I think wills have to be done before a public notary. Many other documents that we would normally get a lawyer to draw up or that we would write up on our own and then sign cannot be done like that in a civil law country. It is a far more formalistic process that is subject to controls. As was said in the case from which I read earlier, we have little idea about notaries because we come across them only in rare cases; that is, if, like me, a person was a notaries clerk and had to do a job for a bank or a shipping company, or if a person has the misfortune to have legal business in a civil law country and must continually appear before a notary public to try to get things done. The situation was simplified by allowing people to go straight to the consular officer rather than having to go via a notary. I will skip through the application a bit further to where it quotes another summary from page 19 of Brooke’s Notary - Generally speaking, a notary public in England may be described as an officer of the law . . . whose public office and duty it is to draw, attest or certify under his official seal, for use anywhere in the world, deeds and other documents, including wills or other testamentary documents, conveyances of real and personal property and powers of attorney; to authenticate such documents under his signature and official seal in such a manner as to render them acceptable, as proof of the matters attested by him, to the judicial or other public authorities in the country where they are to be used, whether by means of issuing a notarial certificate as to the due execution of such documents or by drawing them in the form of public instruments; to keep a protocol containing originals of all instruments which he makes in the public form and to issue authentic copies of such instruments; to administer oaths and declarations for use in proceedings in England and elsewhere; to note or certify transactions relating to negotiable instruments; and to draw up protests or other formal papers relating to occurrences on the voyages of ships and their navigation as well as the carriage of cargo in ships. The application then states - That summary obscures some of the important matters of detail required for the proper discharge of the duties of a notary. 22. Here, as in England, an important and a frequent task of notaries is the certification of the due execution of contracts or other instruments which, when sealed with a notary’s seal, are recorded by the notary in a register maintained by the notary. These are known as notarial acts. The notarial act has a particular import in civil law jurisdictions in that it is evidence in court or administrative proceedings that the matter verified by the notarial act needs no further proof. Notarial acts may either be in public form or in private form. 23. As McLelland J noted in Application of Michaelis . . . in international legal practice, great reliance is placed by authorities of one country on the accuracy and validity of notarial acts performed in other countries. This is particularly so in jurisdictions founded on the civil law in which notarial acts are regarded as probative in court proceedings. McLelland J also noted the public nature of the office and emphasised the need for complete independence on the part of a public notary. He said: “However, it is important to recognise the other ‘public’ aspect of the office, namely that the authority conferred on a public notary is, in a sense, an emanation of the authority of the State itself - I will read that again - is in a sense, an emanation of the authority of the State itself, attracting requirements of impartiality and disinterestedness analogous to those associated with quasi-judicial administrative functions.” The public nature of the office serves to underline the importance of ensuring that an applicant has the skills and experience to discharge the duties and functions of the office both efficiently and competently. 24. A typical notarial act is the noting in public form of a power of attorney by a director on behalf of a company. The notary must be satisfied as to at least 10 facts before certifying the document. It is necessary to institute particular enquiries and examine the relevant documents in order to discharge that task. Plainly, a knowledge of commercial law and practice is required to do so. Another important part of notarial practice deals with the powers of attorney. If the power is to be used abroad, it is usually executed in the presence of two witnesses before a notary who is attested by the latter under his hand and official seal . . . Members might recall that wills are signed by two witnesses. That is because wills were dealt with in the probate, divorce and admiralty division of the High Court. Interestingly, the probate, divorce and admiralty jurisdiction of the High Court was in many respects a civil law jurisdiction, so the procedures in that division were like the civil law procedures - they were quite different from the procedures in common law. The pleadings were sworn to - we still have that - and it was a narrative style instead of pleadings. Everything in it and the whole set of rules relating to it were of the nature of a civil law matter. That is the obvious reason that testamentary dispositions require two witnesses. It goes back to the civil law way of attesting to things. It continues - There are particular requirements for the protest of a bill of exchange and for the noting and drawing up of ships’ protests. There is a heavy onus upon a notary to be satisfied that any notarial act is in order. 25. It is evident, therefore, that, as a general rule, a person applying to be a notary should be a legal practitioner of some years standing and experience. . . . 21. The functions of a notary are not prescribed by statute. They are wholly based on practice and, indeed, that is recognised by the terms of s 91(4) of the Legal Practitioners Act. I referred to the equivalent Western Australian act. It continues - The duties and functions of notaries public in England are described in Brookes Notary at p 19 in these terms - I will not go through all of that. The point I referred to was the public nature of the office. The minister may now be starting to realise why I may be a little reluctant to agree to this bill, notwithstanding that the process involved is one that I think the Attorney General should use. In fact, I am sure that he does. The case also noted the fact that people seek other advice before nominating them. One thing that becomes quite clear from reading Brooke’s Notary as being another qualification that is needed by people who want to become notaries public relates to the fact that many of the documents that notaries public might be asked to draw up are foreign law documents. Generally speaking, I do not think that any notary in Western Australia would do that, other than those who have previously practised in a civil law jurisdiction. However, Brooke’s Notary contains some forms that can be used to draw up various civil law documents. A notary must have some idea of what the civil law is about. A notary cannot function if he does not understand the difference between civil law and common law. I am sure the Minister for Education and Training probably has a better understanding of the difference between civil law and common law than do many lawyers. Anybody who has had to deal with a civil law country will understand that although many things are familiar and similar, many other things are totally different. That really comes from the underlying thought, rather than from the forms at the top. Once the forms, such as those that I get from Portugal, are translated into English - it usually takes me a little while to do that - they could just as easily have been produced for an Australian court. However, the underlying principles are quite different. Another area of the law that a notary must know something about is what is called private international law or conflict of laws; they are two names for the one thing. I regret that that is not a compulsory subject at law school. It should be. I have seen many lawyers get into trouble by not understanding the rules of private international law. It is quite different from public international law, which is very airy-fairy. Private international law is actually the law of Western Australia. It can sometimes be the law of somewhere else. It is a domestic law. The problem is this: if a notary does not understand that point, he will apply the wrong law. We are talking about the people who will be notaries public. First, they must know something about the duties involved in that role. ... The minister might not like this, but I suspect that this will be the first time that the Parliament has, in legislating for notaries, placed something on the record about what they do. If a person is to be qualified, he must know something about his job, and that he can obtain from Brooke’s Notary. He must have a reasonable understanding of a number of normal commercial international languages. If he does not and he has trouble, he will have to use interpreters, and it will be hard work. He must have some understanding of civil law. If he does not have an understanding of civil law, he will get himself into trouble. He must also have some understanding of conflict of laws; otherwise he will apply the wrong law to the transaction. There is one more thing. As well as having an understanding of public international law, he should have some idea of comparative law. If he does not have those things, it is likely to be fraught. With the advent of fast international electronic transactions and new methods of securing payments, the bills of exchange part is probably almost non-existent. I have not practised in a private firm for 16 years, so I would not know whether firms still receive them. However, I do know that even though I ceased to be an articled clerk in 1970, I was still the only person in the whole office who knew how to do noting and processing of bills. Even when I was a senior partner, whenever the notaries clerk got one of these things, he had to come and see me to find out what it was. Every time I trained somebody else, that person would move on to something else and I would be back to training the next person. ... We come back to what is probably the most important area; that is, international transactions. That will probably be the bulk of work. One of the reasons my old firm was kept busy with international transactions was that Ernest Blanckensee, and, following that, Robert Blanckensee, was the consul for Belgium, and Alan Blanckensee was the consul for Germany. Therefore, we could kill two birds with one stone by turning up and speaking to the consul and the notary public, who were in the one office, and there was one notaries clerk who could fix everything for us. The need for notaries public is very much now directed to the fact that Western Australia has a significant population of people who are either from, or the descendants of people from, a civil law country. Most of the countries in Europe and South America are civil law countries. Much of Asia - not all - has civil law. Big chunks of Asia do not have civil law; for instance, India. I have never quite worked out what law China has, but it is probably closer to civil law than our country is. However, places such as Thailand and all the places that were in French Indochina have civil law. In fact, any place that was settled by a civil law jurisdiction has civil law. Indonesia, our near neighbour, has a civil law system. Members will find that the bulk of the world has civil law. There are some exceptions to that. Canada has both. Quebec has civil law; the rest of Canada has common law. The United States has common law, apart from Louisiana, although even in Louisiana the criminal system is civil law. South Africa has a mixture. Its criminal law is common law and its civil law is civil law. Generally speaking, the most common type of law that people will come across is civil law. Whether people have come from Vietnam, South America, anywhere in Europe such as Croatia, Portugal or Italy - it does not matter what their ethnic background is - and even if they do not speak the language, they can get caught up in civil law problems and need the help of a notary public. I forgot to mention one thing, and I should mention it. The office of notary public has been seriously debased in the United States. I should raise this matter because it is relevant. In the United States every legal stenographer is a notary public. Why? In the United States, as part of pretrial discovery, examinations of witnesses are taken down in writing before a notary public. They are certified by the notary public and are then used as part of pretrial discovery. The way that is normally done is that two lawyers turn up, and a stenographer. The lawyers ask their questions in front of the notary public, who also happens to be the stenographer. That person takes everything down in writing and, when finished, certifies it as a notary public. Consequently, it is not a very highly regarded or important public office in the United States. I believe it is very important that we maintain the concept that it is a public office and that there is a public interest in who is appointed. ..."
DFAT legalisation:
> "Notaries register their seals and signatures with the Department of Foreign Affairs and Trade (DFAT). When issuing Apostilles or Authentications, DFAT certifies that the Notary’s signature and seal is genuine.": Simpson Partners <https://simpsonpartners.com.au/10-thing-know-public-notaries/>.
> "Often, the signature and seal of a notary require legalisation. This is where the signature and seal of the notary to certified as correct by the Australian Department of Foreign Affairs and Trade (DFAT). DFAT will issue a certificate of authenticity and attach it to the document. A list of sample signatures and seals pertaining to both public notaries and also Australian government departments and officials, institutions, organisations is maintained on DFAT’s database. The sample signatures and seals cover a period of many years, in order to enable DFAT to authenticate the signature or seal on even very old documents. Some countries are party to the 1961 Hague Convention Abolishing the Requirement for Legalisation of Foreign Public Documents (the Apostille Convention). This enables the use of an Apostille. The Apostille is a statement identifying the signature of the notary and comprises a large stamp affixed to the notary’s signed document. Under the Apostille Convention, the Australian authorised affixer of the Apostille is DFAT. The use of an apostille saves time and expense for the person requiring the notarised document. ...": William + Hughes (Lexology, 27 March 2017) <https://www.lexology.com/library/detail.aspx?g=852bf585-fac7-4d44-9bf4-43aea3e45d0c>.
N P Ready, Brooke's Notary (Sweet & Maxwell, 11th ed, 1992) <https://epdf.pub/queue/brookes-notary.html>, archived at <https://perma.cc/3KXL-WWKF>.
[O] Recognition of Australian Divorce Orders Overseas
Malaysia:
> Ramesh a/l Rajaratnam v SL Sharlini a/p Marnickam [2018] MLJU 1454, [107] (High Court, Kuala Lumpur), archived at <https://perma.cc/V6V2-DUB3>: "[107] In the upshot, it would be contrary to principle and inconsistent with comity if the Malaysian courts were to refuse to recognise a jurisdiction which, mutatis mutandis, they claim for themselves and recognition should thus be given to the said Divorce Order."
Singapore:
> DGX v DGY [2024] SGHC 17 <https://www.elitigation.sg/gd/s/2024_SGHC_17>.
> Yap Chai Ling and another v Hou Wa Yi [2015] SGHC 296: "64 Section 7(b) of the WC provides that a marriage can be dissolved by an order of a court of competent jurisdiction, which includes a foreign court (see Noor Azizan bte Colony at [10]). However, a foreign divorce judgment will only have effect if it is recognised in Singapore in accordance with the rules of private international law (see, generally, Ho Ah Chye at [55]). As Assoc Prof Debbie Ong (as Her Honour then was) explained in International Issues in Family Law in Singapore (Academy Publishing, 2015) at para 5.59, there are three generally recognised bases for recognition: (a) where the judgment was granted by a court of the domicile of one of the parties; (b) where the judgment was granted by a court which exercised jurisdiction on the same basis that a Singapore court would have exercised jurisdiction; (c) where there is a real and sufficient connection between the court which granted the judgment and either party to the marriage. 65 On the facts of this case, it was undisputed that the Wife, a Chinese national, had returned to China in November 2002 and had done so with the intention of making her home there (see [8] above). That was where she resided when proceedings commenced in Shanghai on 13 July 2004 and it appeared that she was still domiciled there at the time of the application below. Therefore, I proceeded on the basis that the Shanghai courts had jurisdiction based on the domicile of the Wife. Once a foreign court is found to be competent, the defences to recognition are limited and international comity usually compels our courts to recognise the foreign divorce judgment (see Ng Sui Wah Novina v Chandra Michael Setiawan [1992] 2 SLR(R) 111 at [26])."
> Yap Chai Ling & Anor v Hou Wa Yi (M.W) [2016] SGCA 39:" 49. ... Ms Chai does not dispute that the Shanghai court was a court of competent jurisdiction. It is also clear that this was the view adopted by the Judge given that Shanghai was the domicile of the wife (see the GD at [65]). As explained in Debbie Ong, International Issues in Family Law in Singapore (Academy Publishing, 2015) (“International Issues in Family Law”), recognition of foreign matrimonial proceedings is governed by the common law and the court will recognise foreign decrees made by a court of competent jurisdiction (at para 5.47). It is further explained that the position now, with the abolition of the wife’s dependent domicile (see s 47 of the Act), is that it is sufficient that a foreign decree is granted by a court of either party’s domicile (see the Singapore High Court decision of Asha Maudgil v Suresh Kumar Gosain [1994] 2 SLR(R) 427 at [18] as well as International Issues in Family Law at para 5.53). As Shanghai was the wife’s domicile, the Shanghai divorce judgment is an order of a court of competent jurisdiction. All of this points towards recognition."
> VEW v VEV [2022] SGCA 34 <https://www.elitigation.sg/gd/s/2022_SGCA_34>.
[P] Social Security Act 1991 (Cth), couples, de-facto relations, effect on
Lyndal Sleep and Kieran Tranter, 'Social Media in Social Security Decision-Making in Australia: An Archive of Truth?' (2018) 22 Media & Arts Law Review 442, archived at <https://perma.cc/Q2NB-NXMX> -- see discussion therein for Centrelink's role in assessing eligibility for social security payments, fact verification approach, use of social media information, etc.
ss 4, 24, Social Security Act 1991 (Cth).
Frearson and Secretary, Department of Social Services (Social Services Second Review) [2021] AATA 2112.
GMHK v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 554.
Toms v Secretary, Department of Social Services [2014] AATA 285, [35] (Wulf M).
Re VYG and Secretary, Department of Social Security (1993) 31 ALD 371. -- intimate examination of the details as to whether two people are in a 'marriage like relationship'.
Fayad v Secretary, Department of Family and Community Services [2004] AATA 1203.
Cantrell v Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1204.
[Q] Mediation Ethics and Responsibility
Guidelines for Lawyers in Mediations (Law Council of Australia, May 2019) <https://lawcouncil.au/publicassets/39a0c218-0994-ea11-9434-005056be13b5/Guidelines%20for%20Lawyers%20in%20Mediations%20Final%2016%20May%202019.pdf>, archived at <https://perma.cc/JK8S-Q3Y5>.
Kathy Douglas and Lola Akin Ojelabi, 'Lawyers’ ethical and practice norms in mediation: including emotion as part of the Australian Guidelines for Lawyers in Mediation' (2023) 26(2) Legal Ethics 297 <https://www.tandfonline.com/doi/full/10.1080/1460728x.2023.2227554>.
[R] Document Management in Family Law
Laura Colla, 'Chapter 34. Document Management: The Court Book; The Tender Bundle; e-Briefs' (Foley's List, May 2024) <https://foleys-assets.spicyweb.net.au/main/Podcast/CPD-Materials/Ebriefs-Laura-Colla-Foleys-List.pdf>, archived at <https://perma.cc/885K-MFYL>.
eBrief Ready.
[S] Probate - Grants of Representation
'Troublesome Estates: Limited, Urgent and Unusual Grants of Representation' (Suzanne Lyttleton Lawyers, 23 January 2024) <https://www.suzannelyttletonlawyers.com.au/post/troublesome-estates-limited-urgent-and-unusual-grants-of-representation>, archived at <https://archive.is/jWG3l>.
[T] Separation
'Pre- & Post-Separation: Securing Private Data' (Paper, Phillips Family Law) <https://www.phillipsfamilylaw.com.au/wp-content/uploads/Securing-Private-Data-Pre-Post-Separation-PDF.pdf>, archived at <https://perma.cc/82M2-9SNQ>.
Services Australia: 'Where to start when you're separating': <https://my.gov.au/en/services/raising-kids/separated-parents/where-to-start-when-you-re-separating>, archived at <https://archive.md/zFihd>.
'Men and Separation' (Relationships Australia, 3rd ed, 2017) <https://www.relationships.org.au/wp-content/uploads/Men-and-separation.pdf>, archived at <https://perma.cc/Q8PU-ZASP>.
'Women and Separation' (Relationships Australia, 4th ed, 2017) <https://racr.org.au/wp-content/uploads/2023/05/women-and-separation.pdf>, archived at <https://perma.cc/2ZAG-GS55>.
*** Checklists:
> 'Separation Checklist' (Webpage, Doolan Wagner Family Lawyers) <https://www.familylawyersdw.com.au/separation-checklist/>, archived at <https://archive.is/thxu8> - "Separation Checklist helps outline some of the things you should consider organising prior to a separation, to ease that stressed feeling."
> 'Separation Checklist (Form, Attwood Marshall Lawyers) <https://attwoodmarshall.com.au/uploads/2024/01/Family-Law-Checklist-Parenting-and-Property-checklist-combined.pdf>.
> 'Separation Checklist' (Sage Family Lawyers, 14 December 2022) <https://sagefamilylawyers.com.au/separation-checklist/>, archived at <https://archive.is/z8gCi>.
> 'Separation Checklist' (Delaney Roberts, 2022) <https://delaneyrobertsfamilylawyers.com.au/wp-content/uploads/2022/11/2622-DR-Separation-Checklist_pf1.pdf>.
> ** 'Divorce and Separation Checklist' (Westpac Banking Corporation) <https://www.westpac.com.au/content/dam/public/wbc/documents/pdf/other/lifemoments/WBC_Divorce-Separation-Checklist.pdf>; ** also, <https://www.westpac.com.au/help/lifemoments/managing-unplanned-moments/separation-divorce/separation-checklist/>.
> 'Separation Checklist: Top 12 Practical Things to Consider' (AH2 Legal, Webpage) <https://www.ah2legal.com.au/separation-checklist/>, archived at <https://archive.md/bW2Cw>.
[U] Relationship between Property Settlement, Child Support, Child Maintenance and Spousal Maintenance
"Section 75(2) serves many masters. It contains matters to be considered in both s 74 (spousal maintenance) and s 79 (alteration of property) proceedings. It contains matters relevant to the capacity of the payer to make maintenance payments, and to the needs of the payee to receive them. It contains matters which are relevant to comparing the situation of the parties when deciding what an appropriate adjustment of property interests should be. But its provisions must be read as ancillary to the power being exercised in each case. The maintenance power is to be found within the confines of ss 72 and 74, the property power within the confines of s 79 sub-ss (1) and (2). It seems to us that in the context of an application for spousal maintenance the consideration in s 75(2)(d) of "the commitments of each of the parties that are necessary to enable the party to support...a child...that the party has a duty to maintain" has greater significance in determining the capacity of a payer to provide support rather than in determining the extent to which the other party requires support. In a maintenance case if, for example, a husband is called upon to pay maintenance for his wife, the Court must determine his capacity to pay that maintenance having regard to his obligation to support his children. The level of support that the wife needs for herself is not dependent upon the level of support she must give to others. In a property case however, the extent to which a division of property may be seen as being appropriate might only properly be measured by examining all the demands that each spouse has to meet. By way of example, s 66M makes it clear that a step-parent does not have a duty to maintain step-children, other than in the circumstances which the Court is required to take into account under s 66M. It would not be a proper application of s 75(2)(d) to create a liability of a father to support his step-children via the device of a maintenance application by his estranged wife on the basis that she has a duty to maintain her children and that she requires the provision of maintenance for herself so that she can in turn support her children. Whilst the legislation permits the Court in exercising its s 74 power to take into account only the various matters set out in s 75(2), the legislation gives little guide as to the manner in which they are to be so taken into account. The power exercised under s 74 is to make such order as the Court considers proper for the provision of maintenance of a party to a marriage. This is not to be confused with the power of the Court to make orders for the maintenance of children or step-children under the provisions of Part VII of the Act nor for the provision of child support under the Child Support (Assessment) Act. There is, however, an overlap between the various sections. In order to avoid "double dipping", s 117 of the Child Support (Assessment) Act enables the Court to take into account in proceedings for a departure order: "any payments...made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent...to the carer entitled to child support...for the benefit of the child." As already indicated, s 75(2)(na) enables the Court, in determining an application for spousal maintenance, to take into account any child support that has been provided, is being provided or might be liable to be provided in the future. Each relevant area of legislation requires different considerations. The obligation to maintain children under Part VII of the Family Law Act is, like the obligation to provide child support under the Child Support (Assessment) Act, an obligation which has priority over all commitments of a parent other than commitments necessary to enable the parent to support himself or herself or any other child or other person that parent has a duty to maintain and is not of a lower priority than a duty of a parent to maintain any other child or any other person. Child maintenance is to be determined having regard to the matters set out in ss 66J and 66K of the Family Law Act, whilst child support is governed generally by the provisions of the Child Support (Assessment) Act, and in respect of any application for departure from administrative assessment, by the provisions of s 117. The matters to be taken into account under both Part VII of the Family Law Act and under the relevant sections of the Child Support (Assessment) Act are not identical to matters to be given consideration in respect of claims for spousal maintenance. Spousal maintenance is ultimately governed by the provisions of ss 72 and 74, namely there being no right to spousal maintenance unless there is a capacity to meet it and an inability by the claimant to meet the claimant's own self-support. In this case, the wife's duty to maintain her own children was only a duty to make an equitable contribution towards their support. The extent of that equitable contribution had not been evaluated by the trial Judge but could probably be said to have been non-existent having regard to the vast amount of wealth available to the husband. On that analysis, even if it was appropriate for the trial Judge to have taken into account the commitments of the wife necessary to enable the wife to support her children, it could not be said that the expenditure of monies on the children by the wife over and above the monies she would be able to obtain by way of appropriate assessment of child support could be seen as necessary expenditure by the wife. It certainly could not be seen as an element of her self-support. In our view, we must conclude that his Honour erred when taking into account what his Honour described as "the obligation to maintain the children pursuant to s 75(2)(d)". In one sense the wife had no obligation to support the children because that obligation could be clearly met by an application for departure from administrative assessment of child support. In another sense, even if she had an obligation to maintain those children, the fact that she was meeting that obligation could not be said to be a necessary element of the amount of support she needed for herself.": Stein v Stein [2000] FamCA 102, [48]-[57].
Double dipping:
> "As to the relevance or otherwise of the expenses of the children, the tension is between the fact that the application is for spousal maintenance (and not for support for the children per se) and the requirements of s 75(2)(d) of the Act. That paragraph provides that in considering spousal maintenance the court shall take into account: … (d) commitments of each of the parties that are necessary to enable the party to support: (i) himself or herself; and (ii) a child or another person that the party has a duty to maintain; and … The difficulty is often where to draw the line, and that is evidenced in the authorities. However, the strongest statements are those made by the Full Court in Stein & Stein (2000) FLC 93-004. There the trial judge made an order for interim spousal maintenance of $1,500 per week. The husband appealed raising one issue, namely whether the costs of supporting the parties’ children should be taken into account in assessing the wife’s needs for maintenance. The Full Court reviewed a number of authorities and then said this about the relevant legislation: 49. It seems to us that in the context of an application for spousal maintenance the consideration in s 75(2)(d) of the commitments of each of the parties that are necessary to enable the party to support...a child...that the party has a duty to maintain has greater significance in determining the capacity of a payer to provide support rather than in determining the extent to which the other party requires support. In a maintenance case if, for example, a husband is called upon to pay maintenance for his wife, the Court must determine his capacity to pay that maintenance having regard to his obligation to support his children. The level of support that the wife needs for herself is not dependent upon the level of support she must give to others. In a property case however, the extent to which a division of property may be seen as being appropriate might only properly be measured by examining all the demands that each spouse has to meet. … 51. Whilst the legislation permits the Court in exercising its s 74 power to take into account only the various matters set out in s 75(2), the legislation gives little guide as to the manner in which they are to be so taken into account. The power exercised under s 74 is to make such order as the Court considers proper for the provision of maintenance of a party to a marriage. This is not to be confused with the power of the Court to make orders for the maintenance of children or step-children under the provisions of Part VII of the Act nor for the provision of child support under the Child Support (Assessment) Act. 52. There is, however, an overlap between the various sections. In order to avoid "double dipping", s 117 of the Child Support (Assessment) Act enables the Court to take into account in proceedings for a departure order: any payments...made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent...to the carer entitled to child support...for the benefit of the child. As already indicated, s 75(2)(na) enables the Court, in determining an application for spousal maintenance, to take into account any child support that has been provided, is being provided or might be liable to be provided in the future. … 54. Child maintenance is to be determined having regard to the matters set out in ss 66J and 66K of the Family Law Act, whilst child support is governed generally by the provisions of the Child Support (Assessment) Act, and in respect of any application for departure from administrative assessment, by the provisions of s 117. The matters to be taken into account under both Part VII of the Family Law Act and under the relevant sections of the Child Support (Assessment) Act are not identical to matters to be given consideration in respect of claims for spousal maintenance. Ultimately on the facts in that case the Full Court found that the trial judge erred in taking into account in determining the claim for interim spousal maintenance the cost of support of the children of the parties pursuant to s 75(2)(d) of the Act. Their Honours were of the view (at [57]) that: … In one sense the wife had no obligation to support the children because that obligation could be clearly met by an application for departure from administrative assessment of child support. In another sense, even if she had an obligation to maintain those children, the fact that she was meeting that obligation could not be said to be a necessary element of the amount of support she needed for herself. It needs to be said though that in subsequent decisions this case has been distinguished on the factual basis that “the husband’s wealth [in the order of $20,000,000] meant that he would be called on to bear the entire cost of meeting the reasonable needs of the children” and thus it was clearly “erroneous” to take “into account in the context of the wife’s spousal maintenance claim the expenses of those children” (Drysdale & Drysdale [2011] FamCAFC 85 at [36]). Thus, in Drysdale, Coleman J, sitting as the Full Court found on the facts of that case that there was no impediment to the court having regard to “commitments” of the wife that were “necessary to enable” her to support herself and a child who she had “a duty to maintain”. In this case, although there is no such factual distinction to be drawn, it was still necessary for the trial judge to carefully consider what (if any) costs of support of the children should be taken into account in assessing the needs of the wife. His Honour though did not do this; his Honour without any express consideration, took into account all of the expenses of the children in fixing the needs of the wife, and thus he has erred.": Padnall & Padnall [2014] FamCAFC 145, [47]-[51].
> "In Stein & Stein (2000) FLC 93-004, the Full Court held that the power of the Court to make orders for spousal maintenance is not to be confused with the power of the Court to make orders for the support of children ... Thus, the necessary expenses of the wife for the purpose of her application for spousal maintenance are confined to those applicable to her own support.": Crichton & Crichton [2018] FamCA 1075, [32]-[33].
> "The wife also sought “$2,000.00 per year towards J’s yearly holiday”. I have already included an allowance of $20.00 per week for holidays in the schedule of expenses incurred by the wife in maintaining J (which schedule, I have found, represents his proper needs whilst he is with the wife). Ms Johns submitted, and I accept, that to make a further allowance for holidays for J would amount to “double dipping”. In any event, I am satisfied that the quantum of child support that I have ordered is fair and reasonable, and appropriate to enable (or assist) the wife to meet J’s proper needs. I would add that, in my opinion, an allowance of $2,000.00 per year for a holiday for J is excessive, and no evidence was presented to support the specific amount claimed.": AR & AL [2004] FMCAFam 597, [114].
> property settlement and child maintenance: "Section 66K requires a court to consider a variety of matters in determining the contribution to be made by the parent or parents. They include the objects of the legislation. They include the income, earning capacity, property and financial resources of the parties. A court must consider the commitments of those parents necessary for their own support. It must take into account the direct and indirect costs of the caring parent including any income and earning capacity foregone by virtue of the caring role. Having found that the wife has the caring responsibility, the wife’s lost opportunity becomes relevant in deciding whether to divide the financial obligation equally but so too does any property settlement division in which there is disparity between the parents. It would be inappropriate to “double dip”.": Jamine & Jamine & Anor (No 2) [2011] FamCA 843, [198].
[W] Weight to be drawn from Medical Reporting; Family Report Writer; Evidence
General Position (WA) - Parenting Matters: "31. Division 12A of Part VII of the Act and its equivalent in the Family Court Act 1997 (WA) provide that in parenting proceedings, unless the Court makes a specific order to the contrary, certain aspects of the Evidence Act 1995 (Cth) (and the Evidence Act 1906 (WA)) do not apply. In particular, relevant to this case, they are provisions relating to hearsay and opinion evidence. It is clear in this case that her Honour did not exclude the operation of Division 12A and therefore she was not bound by the Evidence Act 1995 (Cth) nor the Evidence Act 1906 (WA) and was entitled to admit evidence that was based on hearsay or was otherwise opinion evidence. 32. But in a case in which there were allegations which were contested it would have been helpful, in my view, for the Magistrate to have set out which of those matters she gave weight to and which she did not consider. But as I have said, I do not need to deal with that matter further.": Moszkowski & Moszkowski [2010] FamCAFC 249.
Unchallenged evidence: "The husband’s evidence has been accepted as unchallenged. Unchallenged but admissible evidence still requires a court’s determination as to its weight. Here, there was nothing implausible about the husband’s evidence. In addition, this is not a jurisdiction in which orders are made on a default basis. The husband was required to prove his case on the balance of probabilities (s 40(2) of the Evidence Act 1995 (Cth)). In respect of such things as the values of assets, the husband produced admissible and accepted expert evidence.": Tillman & Tillman [2016] FamCA 14, [25].
Admissions, police record: "Given the father’s admitted substance abuse history, and noting that there is no reason for the police to have inserted that admission if the father did not make it as no charges arose, I accept that although prima facie hearsay, it is likely that the police record of the father’s concession should be given weight, and that the father was back on a prohibited substance as recently as mid-2022, the month before the Trial.": Mitchell & Boyle (No 2) [2022] FedCFamC1F 798, [204].
Family Report Writer:
> "The Court is not bound by the opinions of the family report writer. However, where the foundation for the report is solid and consistent with many of the findings the Court has made, then the Court is entitled to give significant weight to the views and opinions of the report writer. In this case, I do so.": Abramsson & Abramsson (No 2) [2024] FedCFamC1F 912, [94].
> "The report of Ms C, regrettably, was only released some few days before the hearing and did not contain any clear or specific recommendations. That is not a criticism. It is not the role of the report writer to determine the outcome of the proceedings. But the report has a number of deficiencies which largely relate to systematic problems. The children, the subject of these proceedings, [X] and [Y], were not seen with the applicants notwithstanding that their application was to have these children live with them in their full-time care. Within the report substantial criticisms were raised by the applicants, Mr and Mrs Thompson, of the mother and when Ms Dean was then seen subsequently with the children, it would appear from the flavour of that report, that very little testing, or reality testing, of the allegations and criticisms raised by Mr and Mrs Thompson was undertaken, if any. As a consequence, recommendations were made in the report, not with respect to the children’s future parenting arrangements, but as follows: a) Department of Community Services be urgently requested to commission a full comprehensive family report in the matter, and b) That pending Department of Community Services intervention the current orders be enforced and the children spend regular time with their grandmother. The difficulty with those recommendations is that the Department is not a party to these proceedings and I have no power to compel them to do anything. Secondly, and more fundamentally, Ms C was commissioned to prepare the family report and why it is then recommended at the conclusion of a 27-page document that a State Government agency be seized with that very responsibility beggar’s belief. It is also inferred that Department of Community Services would be invited to intervene in these proceedings. Whether that would or would not have been fulfilled is unclear, although, based on the material that is available in the affidavits it would appear unlikely that the Department would intervene as they have had substantial and repeated complaints, it would seem, not only by Ms Thompson, but substantially by her, and Ms Thompson expresses her disappointment, including to Ms C that the Department has, in her words, “done nothing”. One can infer from that that perhaps the Department did not have any concerns that they felt they needed to act upon. In addition to the reports, Ms Dean has also been cross-examined briefly today and there are a number of documents tendered into evidence; seven in the case of the independent children’s lawyer and two on behalf of Ms Dean. The documents tendered by Ms Dean make it clear that she has engaged with a counsellor [R] by the name of Ms J and has attended a number of appointments with that counsellor, although there have been a number of missed appointment. This is so notwithstanding criticisms with some validly that she has not, in the past, taken up services available for her assistance. I accept from Ms Dean’s evidence that this has perhaps related, to a large extent, to child-minding difficulties and that this has been the cause of a number of difficulties in attending appointments or accessing services. Exhibit ICL1 is a useful and comprehensive summary of allegations of domestic violence and criminal behaviour of Mr Miller and which are corroborated by reference to tendered documents ICL2 being COPS event entries from the New South Wales Police. The four page summary of assaults, by the father, Mr Miller, commencing in 2002, and against Ms Dean and members of his family are extensive and disturbing. The assaults include assaults by him upon his parents and each of them, Ms Dean, his brother, the police and strangers. There are also events in relation to assaults by Mr Miller’s brother, Mr M, including sexual assaults upon minors. Similarly, these are concerns which one can infer Ms Thompson is aware of as she has referred to them in interviews with the report writer Ms C. Ms Thompson is reported as remarking that Mr M, then on the run from New South Wales Police and resident in Queensland, has “been in some trouble in Queensland.” That no doubt relates to the two allegations of sexual assault upon minors that are levelled against him and for which he is still sought to be questioned in Queensland. There were also other matters that have caused Mr Miller to come to the Queensland justice system’s attention in relation to breaching bail, although it is unclear what he was on bail for, and convictions in relation to threats to cause serious harm, possessing dangerous drugs, possessing utensils and using a telecommunications device to make threats. They are very consistent with his New South Wales criminal record wherein he has charges and convictions in relation to assault, menacing driving, damaging property, contravening domestic violence orders, stalking and intimidating and the like. In relation to the evidence overall, the criticisms that are largely made of Ms Dean are long on allegation and short on evidence. Whilst these are proceedings to which Division 12A of Part VII applies, and accordingly s.69ZT makes clear that certain aspects of the Evidence Act 1995 do not apply to these proceedings, including provisions dealing with hearsay evidence, the evidence that is sought to be led – and using that term in its loosest sense – by Ms Thompson in relation to her concerns and criticisms of Ms Dean would, but for such non-application, be excluded. Section 69ZT though does not as a blanket allow the introduction of hearsay or opinion evidence nor does it in a blanket fashion allow it in. Sub-s(2) of the section provides that the Court can give such weight as it thinks proper to evidence that is admitted through the non-application of the specified parts of the Evidence Act 1995 and the Court is otherwise left, by sub-s(3) with a discretion to apply the Rules of Evidence as strictly as they consider appropriate in the circumstances. This is a case in which the hearsay and opinion evidence and conjecture is sought to be relied upon as the basis for removing two young children, four and not yet three, from the care of their Aboriginal mother and to place them into the care of their non-parent Caucasian paternal grandparents. In those circumstances I am perfectly and entirely satisfied that the exception in sub-s(3) applies and that the Rules of Evidence can and should be properly and fully applied. Indeed, the probative value of the evidence that is led as the basis of criticism of Ms Dean is, in most respects, so lacking that to rely upon it to make any decision of any importance would be a miscarriage of justice and the mis-exercise of discretion by this Court. There are already enough children removed from their parents and in which indigenous Australians are historically and continually over-represented that I would not be prepared to take any step of the nature suggested by the application of Ms Thompson, now discontinued, without probative evidence strictly in compliance with the Evidence Act. The Rules of Evidence have been developed since Magna Carta and they have developed for good reason. Initially, within the relevant provisions of Magna Carta, rules of evidence were intended to protect citizens from false accusation and false imprisonment. Freeborn John Lilburne continued that development in the 1640s so as to ensure that all litigants are entitled to face their accusers, to know the case that they are to answer and to test evidence that is put before the Court. Magna Carta, some 800 years ago, made clear that hearsay evidence cannot and should not be relied upon in any process. There are good reasons. The consequences of relying upon it in making a decision which profoundly impacts, in this case not only upon Ms Dean, but two children, are far more severe than the consequences of excluding evidence which is not in proper form. It is not undertaken to exclude evidence of that nature for the sake of it, but for the sake of delivering justice and equity, and in this case I am satisfied that it must be so. Further, the absence of corroboration of any of the allegations must, in my mind and in this case, give rise to a Jones & Dunkel (1959) 101 CLR 298 inference against accepting that evidence or its truth. It is suggested in relation to a number of reports given by neighbours, allegedly regarding Ms Dean, that they are too afraid to be on affidavit. That may have some validity but there is nothing at all to otherwise specify or particularise the criticism. Similarly, the allegations that are made in relation to reports to the Department of Community Services, as they then were, and the New South Wales Police of attendances at and observations by those officers of the mother, the children and her household, are not before this Court, and accordingly I am not satisfied should be accepted.": Thompson & Dean & Anor [2011] FMCAFam 1074, [17]-[34].
> "The family report writer seems to identify the obligation to pay the private school fees of attending A Primary School as contributing to an increase in conflict rather than a reduction in it. The identification of this factor seems not to have been stated by either party but rather was one which the author supposed would occur. Another point of view is that the applicant is prepared to incur annual fees of educating the Child at a private school because he considers that education to be in the Child’s best interests. While the considerations raised by the family report writer are relevant, and I have considered them, they are not determinative and the whole of the case must be assessed.": Licata & Buxton [2019] FCCA 3181, [148]-[149].
Expert evidence:
> "Substantial weight must be afforded to the evidence of an expert, suitably qualified and based on an appropriate foundation. Departure from such evidence requires careful consideration, however the ultimate decision must be that of the trial judge.[382] [382] Muldoon & Carlyle (2012) FLC 93-513 at 86,576 [105].": Khatri & Khatri [2024] FCWA 35, [286].
> "The wife sought to rely upon two medical reports prepared by Dr U, a general practitioner. The reports are in relation to the wife, not Mr P, but the reports refer to Mr P having a disability. While the husband concedes that Dr U is the family general practitioner and that Mr P may have attended upon him from time to time, it is not apparent to me, on reading the reports, that Dr U has ever examined Mr P for the purposes of assessing whether he has a disability. The difficulty I have with the reports is that it is not clear, from the way the reports are prepared (notwithstanding the extravagant language used, which borders on advocacy), whether the source of Dr U’s knowledge of Mr P’s asserted disability is because he was told something by the wife or is a consequence of an assessment of Mr P undertaken by him. Consequently, notwithstanding that an application for adult child maintenance falls within Division VII of the Act, and the rules of hearsay and opinion evidence do not apply, I place little, if any, weight on the opinions of Dr U.": Eccheli & Eccheli [2024] FedCFamC1F 234, [72].
> "On consideration, I placed little weight on the evidence of Dr L. She provides therapy to the mother rather than a forensic assessment. She accepts the mother’s version of history without challenge or corroboration. She has not interviewed the father.": Wrenley & Wrenley [2023] FedCFamC1F 979, [79].
Lay opinion about medical or public health, academic papers where authors not available for cross-examination: "The weight which can be given to the medical or public health opinions of witnesses, such as the parties, who have no qualifications or expertise in those areas, and to pamphlets or articles tendered on these topics, is discussed further below. ... In McGregor, at [77], the Full Court also noted that whilst s 67ZT made the hearsay representations contained in academic papers admissible that “…untested previous representations in a document may be given little weight” ... The strict application of the Evidence Act is moderated by Division 12A to provide greater flexibility to the Court when considering what is in the best interests of children. However, the decision making process still requires a rational assessment of the relative weight of the different items of evidence. Pursuant to s 69ZT(2) the court is to give “such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act not applying because of subsection (1).” In considering the weight to be given to the parties’ evidence concerning COVID-19 infections and vaccinations, including the pamphlets, I note that this evidence would have been excluded by both the hearsay and opinion rule. The parties are not medical or public health experts. They are repeating and summarising what other bodies have said about complex medical and public health issues. In the absence of any relevant qualifications of either party to give opinion evidence about this complex issue I do not consider it appropriate to give any weight to either of their opinions on the medical and public health issues associated with COVID-19 infection or vaccination. Similarly, to the extent the mother gave her opinion about medical, psychological and contagion risks specific to the child, she has no expertise to give that evidence on complex medical issues. For the same reasons expressed immediately above I do not consider it appropriate to give any weight to the mother’s opinion evidence on these complex medical issues. These are, of course, issues on which the child’s treating general practitioner or psychologist, or similarly qualified experts, could have given evidence. Noting what was said in McGregor, about reliance on articles, and that the authors of the pamphlets were not available to be cross examined, I also give no weight to the pamphlets tendered by the mother. On the other hand, I give substantial weight to the unchallenged and uncontested evidence of Dr E who is a highly qualified expert. Those opinion were admissible pursuant to s.79 Evidence Act and who provided a summary of the relative risks of COVID-19 vaccination as against COVID-19 for children 5-11. Further, as noted, the father did not take issue with her evidence to the extent to which she gave it. His concern was with the fact that her opinion does not address the possibility of presently unknown risks arising in the future.The mother says that the child has a history of mild respiratory disease, which she believed would put him at an increased risk of harm as a result of his contracting COVID-19. However, the issue of whether the child is particularly susceptible to harm from catching COVID-19 by reason of his medical history is an issue on which medical opinion evidence would be required, and accordingly, as discussed above, I give no weight to this issue. The mother says that the child has suffered anxiety as a consequence of the extended lockdown last year. The father said in oral submissions that there were a variety of issues involved and that the child’s anxiety commenced when he saw television images of a person falling from a plane during the evacuation at the fall of Country G. The mother’s evidence does not on its face establish that the child has any current psychological symptoms that have not been treated, nor that it is the absence of COVID-19 vaccination that is causing or contributing to any such problems as opposed to lockdowns and other restrictions. There is no material from the child’s treating general practitioner or treating psychologist and no evidence that being vaccinated will assist to reduce any current anxiety he may have. The mother suggested that the fact that the child lives with a medical practitioner who deals with COVID-19 patients was a factor suggesting that the child is potentially exposed to a higher risk of contracting the disease, and similarly that his being unvaccinated increases the risks to the young children he lives with. Given the high level of care that one anticipates the mother’s partner would take in that context, and the extent to which COVID-19 is now in the community, it is not clear to me that it is open to draw that inference from this fact alone and I give no weight to the mother’s opinion on that medical issue. Again, these are issues on which the child’s general practitioner might have given admissible opinion evidence. There is no evidence the child is currently suffering from any social exclusion due to his not having had the COVID-19 vaccination. There is evidence that due to the mother’s views about the risks the child poses to others she sees as vulnerable, including the maternal grandparents, may effectively reduce the child’s capacity to spend time with his grandparents and other people. I accept that this may not be in the child’s best interests and that vaccination may impact on this. I do not give significant weight to his factor in the context of all of the evidence. I do take into account the child’s individual features, however, the issues raised by the mother are not in my view factors of any significant weight to be taken into account in determining what is in the child’s best interests. That is particularly so in the context of Dr E’s opinion evidence to which I give significant weight. ... I understand the father’s concern that the Pfizer COVID-19 vaccination for children is comparatively new. We do not have the history of decades of use that exist for the standard childhood vaccinations. However, there is no material before me to assist in determining what weight to give to that possible future unknown. I can only take it into account in a general way as a possible risk.": Palange & Kalhoun [2022] FedCFamC2F 149, [56], [104], [106]-[113], [124]-[129], [140].
Evidence of Children - s 69ZV(2): "Subsection 69ZT(2) of the Family Law Act proceeds on the basis that the relevant provisions of the Evidence Act do not apply. Thus, on a literal reading of s 69ZV(1) of the Family Law Act, the section could never apply as the court does not apply the law against hearsay under that section. That is an irrational result. However, if the reference in s 69ZV(1) of the Family Law Act to subsection 69ZT(2) is read as being a reference to subsection 69ZT(3) instead, the balance of s 69ZV would be capable of application. This is because it is under subsection 69ZT(3) that the hearsay rules – that is to say, the provisions of Part 3.2 of the Evidence Act – are applied to parenting proceedings. We consider that the reference to s 69ZT(2) of the Family Law Act is therefore erroneous and that the legislation intended s 69ZV(1) to refer to s 69ZT(3), and should be read in that way. Such an approach is consistent with authorities that require courts, at times, to look at the logic behind the sections and not simply apply them literally. ... The interpretation we propose is a realistic solution to give effect to the clear intention of the legislature which otherwise would be frustrated by a minor drafting error. It is also consistent with the purpose of the section envisaged by Parliament in the Revised Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth): 12. While the effect of 69ZV is that, in many cases, rules of evidence including the hearsay rule would not apply in child-related proceedings, section 69ZV is necessary to those exceptional cases where a court considers that it is necessary to apply rules of evidence. In those cases, the rules related to hearsay will still not be relevant in relation to evidence of representations made by a child. This provision is particularly relevant for the role of independent children’s lawyers. (Emphasis added) Thus, s 69ZV(2) of the Family Law Act applies to the statement of TT and the trial judge was not in error in admitting it into evidence as evidence of the truth of the representations contained in it. The trial judge noted this, saying: 566. In relation to the evidence of what was said by [TT] to South Australia police the provisions of s 69ZV(2) of the Family Law Act permit the statement to become evidence in the case. The question of weight still needs to be considered as required by s 69ZV(3). This consideration does not apply to the statement of Mr XX. It follows that the trial judge erred in admitting his statement as evidence of the truth of the assertions made in it.": Duarte & Anor & Morse [2019] FamCAFC 93, [171]-[175], [179]-[182].
[X] Effect of relinquishing higher paying jobs for lower paying jobs, lifestyle decision:
"The issue of earning capacity in light of a voluntary reduction in earnings was considered by the Full Court of the Family Court of Australia (“the Full Court”) in DJM v JLM (1998) 23 Fam LR 396; (1998) FLC 92-816 (“DJM”). In their joint judgment, Baker, Kay and Morgan JJ embarked upon a full examination of the authorities relating to a voluntary diminution of income in circumstances where it could be argued that earning capacity exceeded a parent’s actual earnings. In DJM, their Honours were primarily concerned with the issue of spousal support which arose in that case, however their consideration canvassed many authorities on the issues of child support and child maintenance. In DJM, the husband relinquished his high-paying role as a management consultant in favour of a less rigorous (and less lucrative) position as a lecturer and academic. This move was made in the absence of any health reasons, but rather as a lifestyle choice by the husband. The husband claimed that his career move was one that had been planned during the course of the parties’ relationship, but the trial judge, Purdy J, preferred the evidence of the wife, who claimed that the husband had never indicated any such intention to her. Regarding the sudden reduction in the husband’s work pattern and income, Purdy J stated at first instance: “It seems to me if a man is prepared to work at this level while his family is together, there is no basis on which the court can say that he should be excused from such productivity when the marriage breaks down.”[28] [28] As quoted by the Full Court in the appeal decision, DJM & JLM (1998) 23 Fam LR 396, at 416. The Full Court went on to examine various authorities on point: “In Rowe, (FC of A, Fogarty J, 12 December 1994, unreported), the earning capacity of the father was relevant to the issue of the quantum of child support payable. In 1991 the father had been retrenched. After an unemployment period of eight months he began selling carpet tiles. He remained in that job for approximately two years earning about $40,000 per annum. He then entered into a business with himself and his new wife earning about $15,000 per annum. His Honour said: The position for the wife was equally clear cut, namely that the husband had a well paid job, there was no legitimate reason for him to leave, and his child support income should be assessed upon that basis. In my view, the circumstances here overwhelmingly support the wife's approach and it is impossible to give effect to the husband's position. There are a number of difficulties about his case. Firstly, if one accepted the husband's reasons for leaving they do not justify that step, given his responsibilities to his children. No doubt there are a number of people in the community who work in employment which they do not like and who would prefer to work elsewhere or not at all. That is not a choice they can readily make against the background of the Child Support Scheme. There is no suggestion here the work was affecting in any significant physical or emotional way which would prevent or make it dangerous or undesirable for him to continue in that employment. It was rather he did not like the job of selling tiles and felt he was over qualified for that position. Now I do not know whether it is a congenial or uncongenial employment, but it was earning a significant income and he is not in my view, entitled to throw that in at the expense of the children.”[29] (Emphasis added.) [29] DJM & JLM (1998) 23 Fam LR 396, at 416. The Full Court then considered a number of authorities which made it clear that the issue of voluntary unemployment or underemployment is one of fact and discretion that must be weighed by the trial judge in the particular circumstances of each case. Although DJM was primarily concerned with teasing out principles applicable to child support, certain further comments made by the Full Court in relation to support for children bear further examination. Their Honours stated: “A judge might reasonably say that a parent should be working longer hours or in more lucrative employment to meet child support obligations. A spouse is only required to support the other spouse to the extent that he or she is reasonably able to do so. This requirement does not impute the same degree of compulsion about it that the child support and child maintenance tests express. Thus a parent may be required or expected to work long hours or at more than one job if the parent has the capacity and opportunity to do so, and if the children need greater support than they would receive if the parent was only to work shorter hours. At the same time it might not be reasonable to expect an estranged spouse to avail himself or herself of such opportunities so as to provide maintenance for the other spouse. In the latter case it is a question of what is reasonable in the circumstances. … It is open to a court to give weight to the ability of a party to earn income especially where the opportunity clearly exists to utilise that ability. Whether it is or is not appropriate to require a party to work particular hours or work in a particular occupation is a question peculiarly within the province of a trial judge and needs to be measured on a case by case basis. … A judge might accept that it is unreasonable to expect a parent to continue to work 80 hours per week while having obligations to care for one child, and while that parent is still earning more than sufficient for his or her own needs and the needs of that parent's children. Alternatively, a judge might conclude, based on a proven work history, that such a work pattern is entirely reasonable in the circumstances. Ultimately the matter reverts to the exercise of discretion by the trial judge based on the individual circumstances of the case then being tried.”[30] [30] Ibid, at 423-424. In the case of S & S [2005] FMCAfam 78 (“S & S”), Riethmuller FM referred to the reasoning in DJM. S & S concerned an experienced actuary who had elected to work part time at a reduced (though still significant salary). Federal Magistrate Riethmuller made the following comments[31]: [31] S & S [2005] FMCAfam 78, at [69]. “In DJM v JLM (1998) FLC ¶92-816 the Full Court of the Family Court discussed issues relevant to determining income and earning capacity in great detail. Whilst it is ultimately a question of fact in each case, it is appropriate to identify relevant considerations in determining this question of fact. In this regard, relevant considerations will generally fall within the following categories: a) the ability to generate income; b) the opportunity to generate income; and c) whether the parent's pursuits are appropriate in the circumstances.” The evidence in S & S was that the husband had made it known that he only wished to work part-time and given the nature of employment opportunities in his industry and locale, this forestalled any offers of full-time employment, making his desire to work part-time and alleged inability to obtain full-time employment a “self-fulfilling prophecy” in his Honour’s words. The husband in S & S was not lacking in ability to work for any physical or mental reason. The husband in that case was also unable to demonstrate that he had actively sought full-time employment leading the Court to form the view that there was no shortage of opportunities to be had if the husband made genuine efforts to grasp these. His Honour therefore concluded that the father had the same income earning capacity that he had at the time when he left his full-time employment. In this case it is difficult for the Court to accept the father’s argument that he was motivated to significantly change his career, and thus significantly reduce his income, for lifestyle reasons only. He is a relatively young and healthy man who, in the absence of evidence to the contrary, could continue to work as a [omitted], or in a similar capacity, into the years ahead. Given the father’s evidence about the prevalence of [omitted] worldwide and the previous circumstances of his employment, the Court can only conclude that there are sufficient opportunities for the father to resume employment with conditions and remuneration commensurate to his former work.": Hooch & Hooch (No 2) [2012] FMCAFam 1233, [71]-[78].
[Y] Lump Sum Payments, discounted rate multiplier, capitalisation:
"The application of a discount to lump sum orders is not at all without precedent. For example, in Bereat & Bereat [2010] FamCA 693, on a payment ordered by way of spousal maintenance Murphy J granted a discount from $18,000.00 to $15,000.00 (that is, almost 17%) on account of the sum being payable as a lump sum rather than in periodic payments. In so doing, his Honour stated: “I propose to discount that figure slightly to take account of the fact that it is being received as a lump sum and might be invested. I don’t purport to do a precise calculation in that respect, but shall reduce it to, say, $15,000.00.” In Charlton & Crosby [2010] FMCAfam 207, Brown FM considered offering a discount where making a similar order, but decided not to do so given the circumstances of the particular case.[48] [48] [2010] FMCAfam 207, at [444] - [445]. Often, the discount is couched in terms of an adjustment to account for “vicissitudes” which might affect either party positively or negatively in view of the payment of a capitalised sum in lieu of periodic payments. For example, in Brown & Brown [2007] FamCA 151; (2007) 37 Fam LR 59; [2007] FLC 93-316, the Full Court (consisting of Kay, Warnick and Boland JJ) stated (albeit in respect of spousal maintenance): “70. Senior counsel for the husband also submitted that when the trial Judge concluded that the wife should receive an amount that was not dependent on the future vicissitudes of either party, he effectively buffered the wife against adverse vicissitudes, whether for herself or for the husband, but unfairly took no account in the husband’s favour of vicissitudes disadvantageous to him. 71. We accept that when a trial Judge assesses capitalisation of a periodic sum it is common and generally proper to take account of vicissitudes that might “cut” either way. That course is simply a reflection of what Fogarty and Burton JJ observed in Vautin: ‘…that in the exercise of the power to order lump sum maintenance caution is usually appropriate because of the apparent finality of lump sum orders and the difficulties in making predictions into the future.…’ 72. However, given that the husband already had the capacity to pay the lump sum, probably the only vicissitude which might have affected the assessment would be the prospect of a massive loss of fortune for the husband. That might have been thought of as so unlikely to occur, at least to the degree where the contemplated award to the wife would be inappropriate, as to be effectively ignored. Nonetheless, while we think that the range of vicissitude in this case is certainly less than in many other cases where a capitalisation exercise is carried out, we conclude that the failure of O’Ryan J to disclose in his assessment process any consideration of prospective disadvantage to the husband constitutes at least a failure of reasons. 73. Senior counsel for the husband further argued that no discount had been given for interest likely to be received on the lump sum. In so far as some component of the lump sum must provide for the future day to day living expenses of the wife, and therefore is payment in advance, the point again has some validity.” In RNL & RHB [2005] FMCAfam 520, his Honour, Walters FM, stated: “162 I have indicated that the husband should pay spousal maintenance at the rate of $150.00 per week for 2.5 years. 163 In my opinion, the 3% discount scale should be employed to calculate the present value of a relevant weekly sum for the 2.5 year period. (Footnote: See Barrell Insurance Pty Ltd v Pennant Hills Restaurant Limited (1981) 34 ALR 162, Todorovic v Waller (1981) 37 ALR 481 and Racine v Hemmett (1982) 7 FamLR 716) 164 According to the ‘Table of Multipliers’ contained in paragraph [7840] of Butterworths Australian Family Law (CD-ROM version), the 3% ‘multiplier’ relevant to a period of 2 years is 101.3. The 3% ‘multiplier’ relevant to a 3 year period is 149.8. The mid point between the two multipliers (representing 2.5 years) is 125.55. 165 I intend to use 125.55 as the appropriate ‘multiplier’ for a period of 2.5 years. If, as is my view, an appropriate quantum of spousal maintenance payable by the husband (as at the date of the trial) is $150.00 per week, then the present value of that periodic sum for 2.5 years is $18,832.50.” The application of a 3% discount rate hearkens back to the decision of the High Court of Australia in the case of Todorovic v Waller (1981) 150 CLR 482 (“Todorovic”). When the High Court was delivering that decision, the Chief Justice Gibbs made the following statement: “Because of the practical importance of the decision in these cases, the court now publishes this statement as to its effect. In an action for damages for personal injuries, evidence as to the likely course of inflation, or of possible future changes in rates of wages or of prices, is inadmissible. Where there has been a loss of earning capacity which is likely to lead to financial loss in the future, or where the plaintiff's injuries will make it necessary to expend in the future money to provide medical or other services, or goods necessary for the plaintiff's health or comfort, the present value of the future loss ought to be quantified by adopting a discount rate of 3 per cent in all cases, subject, of course, to any relevant statutory provisions. This rate is intended to make the appropriate allowance for inflation, for future changes in rates of wages generally or of prices, and for tax (either actual or notional) upon income from investment of the sum awarded. No further allowance should be made for these matters.” Todorovic was considered by Baumann FM in W & H [2004] FMCAfam 67. His Honour stated: “24. The respondent says the amount to be deposited should be discounted by a rate of three per cent. The applicant says that a simple lump sum calculation should be adopted based on the child support liability I have determined as appropriate. The competing sums to be invested would be either the respondent's estimate (adopting 3 per cent table for six and a half years) $30,600; or the applicant's estimate of $33,300 (using an aggregate method). 25. Whilst most States have shifted away from the 3 per cent discount rate decided upon by the High Court in 1981 (see Todorovic v Waller (1981) 150 CLR 482) there are still differences across the country (see for example the 5 per cent rate adopted in s 57 of the Civil Liability Act 2003 (Qld)). 26. The purpose of using a discount table is to attempt to calculate the present value of a periodic sum for a specific period on the basis that the sum is withdrawn from the capital at weekly intervals and adopted interest is credited to the fund at quarterly intervals on the lower balance in the quarter. I would have adopted the discount rate of 5 per cent save for the following factors: (a) The current child support payment over the next seven years is to be increased by CPI. (b) It would not be appropriate at a time when the child's needs will be at its highest (in 7 years time) for the rate to be reduced to the minimum of $260 because the funds are exhausted. It would be more equitable if the funds are not totally used and, because of the accumulation of interest for the respondent to receive a small refund at the end of the period having properly met his financial obligations to L. As a result I will order the sum of $33,000 to be secured.”": Hooch & Hooch (No 2) [2012] FMCAFam 1233, [104]-[108].
[Z] Importance of Terminology:
"33. During the course of the appeal, it became apparent that the Order made in relation to parental responsibility made by the Magistrate was an order which did not accord with the provisions of Part VII of the Act. The Act talks about equal shared parental responsibility, and the orders sought in relation to parental responsibility on behalf of the mother was an order for equal shared parental responsibility. The father did not seek an order at all in relation to parental responsibility. 34. The importance of using the right terminology is not merely one of form. The Act provides that certain consequences are to follow, and indeed presumptions can follow, from a particular order. As a result, care must always be taken to ensure that the order made does comply with the legislation. This has been pointed out by the Full Court in Robertson & Sento [2009] FamCAFC 49 and also in Newlands & Newlands (2007) 37 Fam LR 103. Sensibly, the parties have both agreed that the Order her Honour made for “joint parental responsibility” should by way of consent be varied to now read as “equal shared parental responsibility”.": Moszkowski & Moszkowski [2010] FamCAFC 249 <https://jade.io/article/618008>.
Archived: <https://archive.is/IRc5f> (28 Nov 2024).
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