Wong on Family Law
Select topics on Family Law in Australia
Work-in-progress, 23 March 2025 (last updated)
See also, DV Torts, DV Orders in Wong on Civil Liability.
[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."
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]. ...".
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] Threshold Issue - De Facto Relationships - Property
Two-year de facto relationship on *genuine domestic basis* (defined in ss 4AA, 60EA), child, or substantial contributions, or registered relationship under prescribed state or territory law: s 90SB, Family Law Act 1975 (Cth) (in relation to Superannuation: s 90YZC <https://classic.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s90yzc.html>).
> see discussion in Jonah & White [2011] FamCA 221.
(WA): ss 205Z - 205ZB, Family Court Act 1997 (WA).
[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>.
[G] Asset Split; Expert Evidence; Valuation
Chris Dimock, 'Calculating the Likely Split of Assets' (Paper, 2019) <https://dimockslaw.com.au/wp-content/uploads/2019/10/Calculating-the-Likely-Split-of-Assets.pdf>, archived at <https://perma.cc/R634-YUTL>.
Patrick Parkinson, 'Family Property Division and the Principle of Judicial Restraint' (2018) 41(2) UNSW Law Journal 381 <https://www.unswlawjournal.unsw.edu.au/wp-content/uploads/2018/05/Parkinson.pdf>.
Belinda Fehlberg and Lisa Sarmas, 'Australian family property law: 'Just and Equitable' Outcomes?' (2018) 32 Australian Journal of Family Law 81 <https://www.lexisnexis.com.au/__data/assets/pdf_file/0008/340892/Australian-family-property-law-Just-and-equitable-outcomes-2018-32-AJFL-81.pdf>, archived at <https://perma.cc/PLA6-NHRU>.
Family Court of WA, Assets and Liabilities Worksheet: <https://www.familycourt.wa.gov.au/_files/Forms/Papers%20for%20the%20Judicial%20Officer/Papers-for-the-JO-Assets-Liabilities-Worksheet-Nov-2016.xlsm>.
'Family Law Property Calculator' (Delbridge Forensic Accounting, Excel Sheet) <https://delbridgeforensic.com.au/wp-content/uploads/2021/01/Delbridge-Property-Calculator-Simple-Pool-January-2021.xlsm>.
'Balance Sheet' (FCFCOA) <https://www.fcfcoa.gov.au/fl/forms/balance-sheet>.
'Separation Calculator' (Westpac Banking Corporation, Excel Sheet) <https://www.westpac.com.au/content/dam/public/wbc/documents/excel/Life-moments/WBC_separation_calculator.xlsx>.
Businesses, etc, see [M] below.
Trusts:
> Carolyn Sparke KC, 'Trusts in Family Law' (Paper, Svensons List Family Law CPD, 22 March 2024) <https://svensonbarristers.com.au/wp-content/uploads/2024/03/svenson-cpd-day-trusts-and-family-law-0324.pdf>, archived at <https://perma.cc/H9EP-4VK6>.
> Control of the trust: Kennon v Spry [2008] HCA 56; purpose of the trust and history of trust structure.
Future Needs, adjustment:
> Paul Fildes and Carly Boekee, 'Adjusting for Future Needs in Property Settlements: Time to Take Out the Crystal Ball?' (Paper, Taussig Cherrie Fildes, 31 May 2019) <https://www.tcflawyers.com.au/wp-content/uploads/2021/06/Adjusting_for_Future_Needs_in_Property_Settlements__Time_to_Take_out_the_Crystal_Ball_.pdf>, archived at <https://perma.cc/5KV5-QGWZ>.
Effect of long-term relationship and equal (financial and non-financial contributions) on substantial initial contributions: Jabour & Jabour [2019] FamCAFC 78.
> see also discussion in Lisa Wagner and Stuart Colderick, 'How are pre-relationship assets treated after a separation?' (Webpage, 24 October 2020) <https://www.familylawyersdw.com.au/how-are-pre-relationship-assets-treated-after-a-separation/>, archived at <https://archive.is/NP2EE>.
Exclusion from Asset Pool (ss 4 & 79)/ Inclusion as Financial Resource (s 75(2)(o)):
> See ee, Wei & Xia [2024] FedCFamC1A 65 - parent's funds from overseas used to purchase assets in the name of the couple, turns on evidence.
> family trust, where wife was appointor but never had control, not alter ego: Barrett & Winnie [2022] FedCFamC1A 99.
> Effect or non-effect of separation on inheritances:
> see discussion in Brendan Herbert, 'inheritances can be included in property pool when relationships break down' (MacPherson Kelley, 23 April 2021) <https://mk.com.au/inheritances-can-be-included-in-property-pool-when-relationships-break-down/>, archived at <https://archive.is/tk4rk>.
> see also, > see also, John Werner, 'The Treatment of Inheritances' (Paper, Svenson Barristers, 2018) <https://svensonbarristers.com.au/wp-content/uploads/2018/03/JOHN-WERNER-CPD-SUPER-DAY-15.03.18-.-INHERITANCE-IN-FAMILY-LAW.pdf>.
> see also, 'It’s my inheritance, I got it after we broke up' (Carr & Co, 19 October 2023) <https://carrco.com.au/2023/10/its-my-inheritance-i-got-it-after-we-broke-up/>, archived at <https://archive.md/mrxdv> - capable of being quarantined.
> monies reasonably incurred on living expenses, school fees, legal fees, may be excluded, notional addbacks: see eg, discussion in Judy Ryan, 'Enlarging the Asset Pool - Adding Back Notional Assets' [2006] FedJSchol 1 <https://www6.austlii.edu.au/cgi-bin/viewdoc/au/journals/FedJSchol/2006/1.html>.
> non-commutable pensions: Preston & Preston [2022] FedCFamC1A 157: "The military pension ought not have been notionally identified as an asset when it was not, as it could neither be commuted nor alienated. It was no more than a right, entirely personal to the husband, to receive defined income whilst ever medically unfit."
> See also, discussion in Kate Wild, 'Treatment of non-commutable superannuation pensions in family law property settlements' (Blackwood Family Lawyers, 4 December 2023) <https://www.blackwoodfamilylawyers.com.au/insights/treatment-of-non-commutable-superannuation-pensions-in-family-law-property-settlements/>, archived at <https://archive.md/rSCtT>.
> defined-benefit superannuation interest: see discussion in [L] below. But see also, Semperton v Semperton [2012] FamCAFC 132 - treatment as a financial resource.
>> financial resources and adjustment of division of asset pool.
[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>.
[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.”
[J] Service
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
> Rule 2.49(1): Hague Service Convention countries -- Part IIAB of the Family Law Regulations.
> Rule 2.49(2): Non-Hague Service Convention countries: "A person may serve a document on a person in a non-convention country: (a) in accordance with the law of the non-convention country; or (b) if the non-convention country permits service of judicial documents through the diplomatic channel--through the diplomatic channel."
Acts Interpretation Act 1901 (Cth) s 29: "29 Meaning of service by post (1) Where an Act authorises or requires any document to be served by post, whether the expression “serve” or the expression “give” or “send” or any other expression is used, then the service shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. (2) This section does not affect the operation of section 160 of the Evidence Act 1995."
Postal articles within Australia, presumption of service: Evidence Act 1995 (Cth) s 160: "Postal articles (1) It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the seventh working day after having been posted. (2) This section does not apply if: (a) the proceeding relates to a contract; and (b) all the parties to the proceeding are parties to the contract; and (c) subsection (1) is inconsistent with a term of the contract. (3) In this section: "working day" means a day that is not: (a) a Saturday or a Sunday; or (b) a public holiday or a bank holiday in the place to which the postal article was addressed. Note: Section 182 gives this section a wider application in relation to postal articles sent by a Commonwealth agency."
New Zealand: Rule 2.48: " A person may serve a document on a person in New Zealand in accordance with the Trans-Tasman Proceedings Act 2010 and Division 1.2.3 of these Rules."
Singapore: Hague Service Convention country, from 2023.
Malaysia: Non-Hague Service Convention country. Rule 2.49(2): "A person may serve a document on a person in a non-convention country: (a) in accordance with the law of the non-convention country ...".
> Rules of Court 2012 (Malaysia), Order 10, Rule 1: "General provisions (O. 10, r. 1) 1. (1) Subject to the provisions of any written law and these Rules, a writ shall be served personally on each defendant or sent to each defendant by prepaid A.R. registered post addressed to his last known address and in so far as is practicable, the first attempt at service must be made not later than one month from the date of issue of the writ." <https://www.malaysianbar.org.my/cms/upload_files/document/Rules%20of%20Court%202012.01.07.2012.pdf>, archived at <https://perma.cc/W7RQ-56FL>.
> O 65 Rules 2A, 3: "Alternative mode of service of foreign legal process (O. 65, r. 2A) 2A. (1) Subject to rule 3, this rule applies in relation to the service of any process required in connection with civil proceedings pending before a Court or other tribunal of a foreign country where rule 2 does not apply or is not invoked. (2) The service of any such process within Malaysia may be effected by a method of service authorized by these Rules for the service of analogous process issued by the Court. (3) This rule shall apply notwithstanding that the foreign process is expressed to be or includes a command of the foreign sovereign. 3. ... Civil Procedure Convention".
-> Federal Court of Australia: Fletcher v Capstone Aluminium SDN BHD, in the matter of McLay Industries Pty Ltd (in Liq) [2016] FCA 1459 <https://jade.io/article/507767>: "[19] Rule 10.43(7)(b) requires the applicants to show that service was permitted pursuant to a Convention, if a Convention applies; or service was permitted under the Hague Convention if that Convention applies; or, in any other case, the law of the foreign country. No relevant Civil Procedure Convention with Australia applies in relation to Malaysia or Singapore: para 5(a), affidavit of Mr Shane Bruce Roberts sworn 11 November 2016. Malaysia and Singapore are not parties to the Hague Convention: paras 4 and 6 of the affidavit of Mr Roberts. [20] Thus, the applicants rely upon service on each respondent in the foreign country according to the law of the foreign country. [21] As to the requirements of the law of the foreign country, the applicants rely upon the affidavit of Mr Roberts sworn 11 November 2016. Mr Roberts is a partner in the firm Holman Webb Lawyers, the solicitors for the applicants. Mr Roberts gives evidence of the relevant law of Malaysia on the basis of advice provided in writing by letters of advice dated 10 November 2016 and 11 November 2016 from Mr Dhinesh Bhaskaran and Ms Serena Azizuddin, lawyers with Shearn Delamore & Co in Kuala Lumpur, Malaysia. Mr Bhaskaran is a partner in that firm. Ms Azizuddin is an employed lawyer in that firm. Mr Roberts gives evidence of the relevant law of Singapore on the basis of advice provided in a letter of advice dated 11 November 2016 from Abraham Vergis and Asiyah Arif, lawyers practising in Singapore with a firm called Providence Law Asia LLC (described as a “Law Corporation”). [22] The evidence of Mr Roberts (based on the opinion letters as described earlier) as to the relevant law of Malaysia and Singapore is this. In both Malaysia and Singapore service of foreign proceedings is permitted pursuant to O 65 of an instrument in each jurisdiction called the “Rules of Court” (otherwise described as the “Malaysian ROC” and the “Singapore ROC”). Order 65 in each case is in the same terms. [23] Order 65, r 2 of the Malaysian ROC “applies” in relation to service of any process required in connection with civil proceedings before a court or other tribunal of a foreign country where a letter of request from such a court or tribunal “requesting” service on a person in Malaysia (or in Singapore under O 65, r 2 of the Singaporean ROC) of any such process sent with the letter is received by the Minister and is sent by him to the High Court “with an intimation that it is desirable that effect should be given to the request”. [24] Order 65, r 2(2) to (5) address aspects of that process. [25] Order 65, r 2A is in these terms: 2A.Alternative mode of service of foreign legal process (O 65, r 2A) (1)Subject to rule 3, this rule applies in relation to the service of any process required in connection with civil proceedings pending before a Court or other tribunal of a foreign country where rule 2 does not apply or is not invoked. (2)The service of any such process within Malaysia may be effected by a method of service authorised by these Rules for the service of analogous process issued by the Court. (3)This rule shall apply notwithstanding that the foreign process is expressed to be or includes a command of the foreign sovereign. [emphasis added] [26] Order 65, r 3 applies where service of any process of a foreign court or tribunal is sought to be undertaken pursuant to a subsisting Civil Procedure Convention between the country of the court or tribunal in question and Malaysia (or Singapore for the purposes of the Singaporean ROC). No such Civil Procedure Convention subsists between Australia and Malaysia or between Australia and Singapore. Order 65, r 2A applies “where r 2 does not apply or is not invoked”. As to the circumstances where r 2 does not apply, the Singapore Court of Appeal expressed the following observations in Fortune Hong Kong Trading Ltd v Costco Feoso (Singapore) Pte Ltd [2000] SGCA 24 per Yong Pung How CJ, LP Thean JA and Chao Hick Tin JA (with the judgment of the Court delivered by LP Thean JA: 15In our opinion, the learned judge’s construction of O 65 r 2, with respect, ignores the express provisions therein. Giving the rule its plain and ordinary meaning, we are firmly of the opinion that the rule applies only where a letter of request for service from a foreign court or tribunal is received by the Minister for Law and is subsequently sent by him to the Supreme Court with an intimation that it is desirable that effect should be given to the request. In cases where no such letter of request is received, r 2 simply has no application. A similar view to this effect is stated in the 1979 edition of The Supreme Court Practice on O 69 r 2 of the RSC then in force, which we have quoted earlier. It seems to us that O 65 r 2 is not intended to govern the service of all foreign processes in Singapore issued by the courts or tribunals of non-convention countries. The question we need to consider now is what the procedure there is, which has been provided for service of foreign process emanating from a court or tribunal of a non-convention country, in the absence of a letter of request from the court or tribunal. If no such procedure has been provided, does it follow that the foreign process cannot be served in Singapore as submitted by counsel for the respondents? We think not. … 31In our judgment, the service of foreign process in Singapore need not invariably go through official channels. As we have held, it clearly could not have been intended that O 65 r 2 should be an exhaustive and all, encompassing provision governing the service of all foreign processes in Singapore. Order 65 r 2 applies only where a letter of request for service from a foreign court or tribunal is received by the Minister for Law and is subsequently sent by him to the Supreme Court with an intimation that it is desirable that effect should be given to the request. Where no such letter of request is received, r 2 has no application. Procedure in the absence of a letter of request 32We now turn to consider what the proper procedure is for service in Singapore of a foreign process emanating from a court or tribunal of a non-convention country, where there is no letter of request from the court or tribunal, as in the present case. … … 35In our judgment, in the case of service of the foreign process emanating from a court or tribunal of a non-convention country, where no letter of request is issued by such court or tribunal, the service should be effected by personal service on the defendant in accordance with O 10 r 1, read with O 62 and, in the case of a body corporate, read with the relevant provisions of the Companies Act (Cap 50). Although these rules by their express terms apply only to an originating process issued locally, we see no reason in principle why that mode of service prescribed for service of an originating process issued in Singapore cannot and should not be followed and adopted in the absence of any rule of procedure to the contrary. This mode of service fulfils, at least, the vital function of service of legal process. [emphasis in italics is the original emphasis; emphasis in bold added] [27] Thus, O 65, r 2A “applies”. Order 65, r 2A(2) provides that service of the foreign process may be effected by a method authorised by the Rules for service of “analogous process” issued by the court (that is, process of the Malaysian Court or the Singapore Court). Mr Roberts gives evidence based on the opinions expressed by the Malaysian lawyers and the Singaporean lawyers that an “originating application” filed in the Federal Court is analogous for the purposes of the Malaysian ROC and the Singaporean ROC with a “writ” or “originating summons”. [28] Each respondent is an incorporated entity (a company). [29] Order 62, r 4 of the Malaysian ROC provides that where an action is against a corporation, the writ may be served, relevantly, by “leaving a copy of it at the registered office (if any) of the corporation”. Thus, the originating application of the Federal Court of Australia may be served in the same way. [30] Order 10, r 1 of the Singaporean ROC provides that “[s]ubject to the provisions of any written law and these Rules, a writ must be served personally on each defendant”. Order 10, r 5 provides that O 10, r 1 also applies to an “originating summons”. The Singaporean lawyers say that the Singaporean ROC is supplemented by s 387 of the Companies Act of Singapore (Revised Edition, 31 October 2006; Originating Enactment: Act 42 of 1967) which provides for service of a document on a company by “leaving it at or sending it by registered post to the registered office of the company”. [31] Service was effected upon the first respondent on 24 October 2016. Ismail Bin Marajas, a clerk employed by Shearn Delamore & Co attended the registered address of the first respondent (as to which see para 4 of the affidavit of Mr Marajas affirmed on 31 October 2016 and handed to a man (who acknowledged that the premises were the registered office of the first respondent) the following documents: (i)Letter from Holman Webb Lawyers to the first respondent dated 21 October 2016; (ii)Originating Application filed by the liquidators in the Federal Court of Australia on 11 November 2015; (iii)The Genuine Steps Statement of the Applicants; (iv)Order of the Court made in these proceedings on 9 August 2016; (v)Letter from Shearn Delamore & Co to the first respondent dated 24 October 2016. [32] Mr Marajas says in his affidavit that the individual he engaged with accepted service of the documents on behalf of the first respondent (in the manner described at para 6 of his affidavit). [33] Service was effected upon the second respondent in the way described in the affidavits of Tan Sheng Min (Chen Shengmin) affirmed on 7 November 2016 and 10 November 2016. The deponent is a clerk employed by Providence Law Asia LLC. He says that on 24 October 2016 at 12.50pm he attended the registered office of the second respondent (as to which see para 4 of his affidavit affirmed on 7 November 2016) and handed a copy of the following documents to the Receptionist at the registered address: (i)Letter Holman Webb Lawyers to the second respondent dated 21 October 2016; (ii)Originating Application filed by the liquidators in the Federal Court of Australia on 11 November 2015; (iii)The Genuine Steps Statement of the Applicants; (iv)Order of the Court made in these proceedings on 9 August 2016; (v)Affidavit of Tracy Lee Knight in these proceedings sworn 10 November 2015. [34] Tan Sheng Min says that the individual to whom he handed the documents accepted service of them (in the manner described at para 5 of his affidavit of 7 November 2016). [35] Rule 10.43(7), for the purposes of r 10.43(6) requires the applicants to satisfy the Court that there is “a sufficient explanation for the failure to apply for leave”. An explanation for the failure to apply for leave is set out in the affidavit of Mr Roberts filed 11 November 2016. The explanation given by Mr Roberts involves these considerations. First, limited documents of McLay were provided to the liquidators. Second, a public examination is being carried out. Third, the public examination process is ongoing and has taken longer than the advisers to the applicants anticipated due to the volume of documents produced in response to various summonses; the range of areas of examination identified by the liquidators; and the need to summon additional examinees. Fourth, Mr Roberts has been acting with some haste in working on the various examinations. Fifth, Mr Roberts was anxious to ensure service on each respondent before 11 November 2016. [36] I am satisfied that the factors identified by Mr Roberts in his affidavit demonstrate a sufficient explanation for the failure to apply for leave. I accept that it is correct to say that there is a residual discretion as to whether the Court ought exercise a discretion to confirm service. I am satisfied that there is no consideration which warrants refusing an order confirming service, for all of the reasons identified in these reasons for judgments. One further matter should be mentioned. The underlying payments made by McLay to the Singapore entity (the second respondent) may be payments made pursuant to a contract which engages the provisions of the Sale of Goods (Vienna Convention) Act 1986 (Qld) (the “Vienna Convention Act”). If so, the contract has been performed and the question that arises is whether the making of the payment to the Singapore entity engages a contravention of the Corporations Act 2001 (Cth) in the way earlier described in these reasons. I am satisfied that a prima facie case on that footing arises. I am also satisfied that should the underlying transaction engage the Vienna Convention Act, that Act has no impact upon the question of whether the making of the payment engages a contravention of the Corporations Act 2001 (Cth). No question arises of the application of the Vienna Convention Act in relation to the first respondent as Malaysia is not a signatory to the Convention."
-> Analogous process, query application of Rules of Court 2012 O 10 r 1.
-> See also, 'Malaysia' (International Association of Defense Counsel, 2014) <https://www.iadclaw.org/assets/1/7/SILP_Malaysia.pdf>, archived at <https://perma.cc/5NGZ-YZV8>, p 13.
Malaysia, Rules of Court 2012, O 10, service by private agent:
> Resorts World at Sentosa Pte Ltd v Lim Soo Kok [2016] MLJU 700, [16]-[21] (High Court, Kuala Lumpur), archived at <https://perma.cc/4SCL-HYYA>: "Whether Service of The Singapore Cause Papers Is Irregular [16] The Judgment Debtor in the Judgment Debtor’s Affidavit in Support and in the Judgment Debtor’s Affidavit in Reply has attempted to raise the issues that the service of the Singapore Cause Papers on him is irregular. The Judgment Debtor also stated he has applied to set aside the service of the Singapore Cause Papers, the Order for Substituted Service dated 10.11.2014 and the Singapore Judgment dated 8.12.2014 in the Singapore High Court. [17] The Judgment Creditor submitted that the Singapore Cause Papers were duly served on the Judgment Debtor in accordance with Order 65 Rule 2A(2) of the Rules of Court. “Order 65, r. 2A, Alternative mode of service of foreign legal process” (1)... (2)The service of any such process within Malaysia may be affected by a method of service authorized by these Rules for the service of analogous process issued by the Court.” [18] The Judgment Creditor relied on the authority of the High Court in Malayan Banking Berhad v Ng Man Heng [2005] 1 MLJ 470 where it was held at 491A as follows: “... I am of the considered view that the service of the writ on the Judgment Debtor in Malaysia through a private agent is proper and valid.” [19] The affidavit evidence shows that the Judgment Debtor’s application to set aside the service of Singapore Cause Papers, the Order for Substituted Service dated 11.11.2014 and the Singapore Judgment dated 8.12.2014 was dismissed by the Assistant Registrar of the Singapore High Court on 31.7.2015. [20] The evidence also shows that the Judgment Debtor then appealed against the Assistant Registrar’s decision. The Appeal was dismissed by the Singapore High Court on 22.9.2015. There were no further appeals filed by the Judgment Debtor and the time for the Judgment Debtor to file an appeal against the decision has lapsed. [21] Accordingly, the issues on the irregularity and the validity of the service of the Singapore Cause Papers, the Order for Substituted Service dated 10.11.2014 and the Singapore Judgment dated 8.12.2014 are now irrelevant as the Singapore High Court has dismissed the Judgment Debtor’s application."
> Malayan Banking Berhad v Ng Man Heng [2005] 1 MLJ 470, [59] (High Court, Johor Bahru), archived at <https://perma.cc/Y9CK-2K22>: "Order 65 r 2 of the RHC only applies when the minister receives a letter of request from a foreign tribunal seeking assistance to serve a foreign process on a person in Malaysia, and its ambit does not extend beyond this. It does not contain a peremptory order to foreign tribunals to send a request to the Minister in every case where a foreign process is to be served on a defendant in Malaysia. The service of the writ on the judgment debtor in Malaysia through a private agent is proper and valid (see paras 48, 49 and 52). ... 59 For the foregoing reasons, I am of the considered view that the service of the writ on the judgment debtor in Malaysia through a private agent is proper and valid."
Malaysia, Rules of Court 2012, O 10 r 1 service by AR Registered Post
> ** Goh Teng Whoo & Anor v Ample Objectives Sdn Bhd [2021] 3 MLJ 159 (Federal Court, Malaysia), archived at <https://perma.cc/J7QM-H7K8>; see also <https://www.zulrafique.com.my/ckfinder/userfiles/files/case%20update%20judgment/GohTengWhooTanHwaChengvAmpleObjectivesSdnBhd.pdf>, archived at <https://perma.cc/KM7K-57RE>.
-> proof of posting creates a presumption of service: [30]-[36]. Where service of a writ was alleged to have been effected by way of sending the same to a defendant by AR registered post pursuant to O 10 r 1(1) of the Rules, the court could not seal a JID where the affidavit of service did not exhibit the AR registered card containing an endorsement as to receipt by the defendant himself or someone authorised to accept service of the same on his behalf: [43].
> Joseph Kalang Tie v Ikram Suria Sdn Bhd [2021] MLJU 2740, [23]-[26] (High Court, Kuching), archived at <https://perma.cc/KLA2-GZG2>: "[23] The Learned SCJ had judiciously applied the following correct principles of law to the above relevant considerations for proof of postage is indeed not conclusive proof of service, not being immediate like personal service by hand. Non-personal service of an originating process via postal service creates a rebuttable presumption of service upon reading O. 62 r. 4(1)(b), O. 62 r. 4(2) (provision stating O. 62 r. 4 does not prohibit operation of other laws on service) and Section 12 Interpretations Act 1948 & 1967 (the phrase “unless the contrary is proved” appears in Section 12). There is nothing in Section 12 Interpretations Acts that says posting by registered post is conclusive proof of service. [24] The Federal Court in Goh Teng Whoo & Anor v Ample Objectives Sdn Bhd [2021] 4 CLJ 348 has decisively and authoritatively pronounced that service by any kind of “post” (registered post (O. 62 r.4(1)(b) or AR registered post (O. 10 r.1(1)) is not conclusive proof of service. Section 12 of the Interpretation Acts provides that service is “presumed” “until the contrary is proved”. A rebuttable presumption of law that can be displaced by evidence to the contrary. [25] When contrary evidence is shown, the presumption is rebutted and the court will make a finding that there is no service of the document in an application for setting aside. It is anathema to justice and fair play that a Defendant who has no knowledge of the action is attached with liability without being given the opportunity to explain why default judgment should not be entered against it. Here the Respondent had shown and produced to court Exhibit D4 to show that there was no service on 09.03.2021. [26] The failure of the Plaintiff to produce publicly available evidence of service from POS Malaysia’s Tracking Service corroborates the fact that the Defendant was never served as alleged and therefore the presumption of service under Section 12 of the Interpretation Acts have been rebutted by the Defendant on the balance of probabilities. Since the rebuttal evidence shows that service was on 11.5.2020 and the Plaintiff caused the JID to be entered 4 days later on 15.5.2020, the JID is irregular for being in breach of O. 12 r. 4(b) and O. 13 r.1(1) RC2012 with an entry of JID before the time limited for appearing. Furthermore, the impugned JID was irregularly entered under both O. 13 r. 1 AND O. 19 r.2 RC2012 which was disjunctive provisions. ... [35] In this appeal, the learned SCJ in her grounds had highlighted that the reason in allowing the setting aside of the JID entered against the Defendants in the court below is mainly due to the service of the Writ and Statement of Claim. In gist, applying the principles in MBF Finance Bhd v Tiong Kieng Seng [2001] 4 CLJ 38 where the Court of Appeal held that the written receipt given under the Post Office Rules constitutes prima facie and not conclusive proof of service. It is a rebuttable one if the Defendant can show irregularities in the service the presumption of service that arises under the Interpretation Act."
> Chung Wai Meng v Perbadanan Nasional Bhd [2017] MLJU 814, [28]-[34] (Court of Appeal, Putrajaya), archived at <https://perma.cc/T7F4-7LRV>: "[28] There is no proof by the Respondent that the Writ and SOC which were sent by AR registered post to the Appellant’s Jalan Inai address had been duly served on the Appellant. The AR registered acknowledgement card duly signed by the Appellant has not been produced. [29] The Appellant averred that he had been occupying a subsequent address at No. 76, Persiaran Duta Nusantara, Jalan Sri Hartamas 1, 50480 Kuala Lumpur (“subsequent address”) until January 2013, instead of the Jalan Inai address. The subsequent address has been recognised by the Respondent in the substituted service for bankruptcy proceedings against the Appellant. The Appellant on oath had stated that he was completely unaware of the JID until 22.4.2015 when he was in Sabah and his credit card was blocked because of a substituted service for bankruptcy proceedings, and thus, the present recent Application to set aside the JID [RR 2(1) pg 123]. [30] From the Appellant’s evidence, it is clear that he was not served with the Writ and SOC. [31] With respect, despite the decisions in Sivamurthy (supra), and Yap Kee Huat (supra), we take note of the majority of the High Court decisions and authorities in Malaysia, and Commonwealth cases, to which we agree, on the requirement that the AOS [Affidavit of Service] must be “proving due service of the writ on the defendant” as provided in O.13 r.7(1)(b) of the ROC. [32] In the local textbook on civil procedure, Malaysian Civil Procedure, it is categorically stated that the AR card duly acknowledged (in the case of service by AR registered post) must be produced to prove effective service (1AB A/Tab 32). [33] In Public Bank Bhd v. Rasatulin Holdings Sdn Bhd & Ors [1989] 1 MLJ 47, Siti Norma Yaakob J (as she then was) held as follows: “In this instant case, rather than sending the notices by ordinary post, the solicitors for the plaintiff chose to send them by way of AR registered post and by doing so, the plaintiff has varied cl 8 of both guarantees. By so choosing, the plaintiff has also burdened themselves with the added responsibility of seeing that the AR cards shall be returned to them duly acknowledged by the fourth and fifth defendants, for there to be proper service of such notices on them. In this case both the AR cards were returned with the endorsements ‘kembali tidak boleh dituntut’. As there is no proper and effective service of such notices on the fourth and fifth defendants, this in itself a defence to both of them.” (emphasis added). [34] Following the above decision, if a party entitled to utilise the registered post method chooses instead to use AR registered post, it is then incumbent on the party to produce the AR card to evidence acknowledgement of receipt."
[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>.
[L] Defined Benefit Superannuation Interest - s 79
Family Law (Superannuation) Regulations 2001 (Cth) regs 11, 43A
Amos v Louis [2022] FedCFamC2F 1074, [124] et seq (Murdoch J).
[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] Child Support
Antecedents of the conception of a child (except by artificial conception procedure or surrogacy) are not a relevant factor as to whether child covered by child support scheme - child born out of liaison between prostitute mother and client: Lilley & Logan [2009] FMCAfam 868 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FMCAfam/2009/868.html>, archived at <https://archive.is/fEHPG>.
> Court noted however, that question of whether client may be entitled to damages against the mother or brothel may be a possibility and a matter for a different Court: [11]-[13]: "Once conception occurs and a child is born, a child is entitled to the support of the parents. The amount of support is determined by a child support assessment under the Child Support Scheme. The antecedents of the conception do not appear to me to destroy a child’s entitlement under the Child Support Scheme and the Family Law Act 1975. For these reasons I find that the child is properly covered by the Child Support Scheme and properly the subject of a child support assessment. Whether or not the applicant has an independent cause of action against the proprietors of the brothel or escort service concerned and/or the mother, pursuant to any of the commercial arrangements that he refers to is not a matter that I have to determine in this application which deals solely with the application of the Child Support Scheme to the particular child. To the extent he has any rights to damages, his assessment for child support may be relevant in those independent actions, when assessing the amount of any damages."
> See also discussion in, 'Children and the reach of the Child Support Scheme' (Hutchinson Legal, 8 February 2010) <https://www.hutchinsonlegal.com.au/resources/children-and-the-reach-of-the-child-support-scheme>, archived at <https://archive.is/QA35W>.
> see also, presumption of parentage, s 29(2) CS Act.
Archived: <https://archive.is/IRc5f> (28 Nov 2024).
© Jing Zhi Wong, 2023-2025