Freedom Law

Most expensive family law case?

Most expensive family law case?

Strahan & Strahan [2019] FamCAFC 31 (21 February 2019)


Mr Hooper SC
McInnes Wilson Lawyers
Mr Geddes QC with Mr Wilson
Kennedy Partners Lawyers
  1. The wife brings three appeals against orders made by Cronin J. The appeals were heard together and these reasons relate to all three.
  2. The husband and wife separated after 11 years of marriage in January 2005 and divorced in February 2006. They have been litigating about their marriage longer than they were married.
  3. Since the first Initiating Application was filed shortly after separation, over 700 documents have been filed resulting in a vast number of different hearings. Sixty-one sets of reasons have been published. Ten previous appeals have been heard and determined. By March 2017, the parties had between them spent some $35 million in legal fees. They have each spent more since. The wife has instructed approximately 16 different firms of solicitors. Inclusive of senior counsel who argued the instant appeals, the wife has instructed eight different senior counsel and 14 different junior counsel.


  1. At the conclusion of the hearing the Court reserved its decision but, in order to save further time and expense, sought submissions in respect of costs from each of the parties in the event that the appeals were either successful or unsuccessful.
  2. Senior counsel for the wife made no submissions in opposition to the application by the husband that the wife pay his costs of and incidental to the appeals in the event they failed.
  3. We consider that circumstances here justify an order for costs in all three appeals. The wife has been wholly unsuccessful. We have considered the financial circumstances of the parties. The appeals have their genesis in the refusal by the trial judge to grant what was a significant indulgence and an indulgence which in substance had been refused previously.
  4. We will order that the wife pay the husband’s costs of and incidental to all three appeals.

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Bank of Mum and Dad – getting it right

Bank of Mum and Dad – getting it right

Great article by The Rub highlighting the importance of children in relationships getting Binding Financial Agreements in place to ensure their spouses cannot receive a portion of what the “Bank of Mum and Dad” contribute:

The fall in housing prices has led parents to rethink whether they should open up the Bank of Mum and Dad (BoMAD) for their first home buyer offspring.

Housing prices in Sydney have dropped 10.94 per cent and in Melbourne 9.73 per cent over the last 12 months, according the latest figures from CoreLogic.

This has impacted the number of Australians using BoMAD to finance their first home. According to recent data from Digital Finance Analytics, the number has dropped from over 60 per cent in 2018 to 20 per cent in February 2019.

While these concerns are top of mind, parents should take time to consider the best way to help their children into a home. There are number of important structuring issues to get right, including deciding whether to go guarantor on a mortgage, gift the deposit or lend it, or go into a property purchase as co-buyer. Each has its pros and cons.

Principal of Digital Finance Analytics, Martin North says: “Parents are more concerned in a falling market about the equity in their property, when facing into retirement. The ‘ATM’ has run dry. They cannot afford to pass money down the generation now.”

This drop in property value has decreased the amount of equity available in BoMAD and more parents are unwilling to take that risk and has taken property values back to what they were in 2015 but the decline is ongoing.

“There was a considerable run up to the middle of last year but since then first home buyers who are using the bank of mum and dad has dropped considerably,” North says.

On the other hand, first home buyers may be waiting for the market to bottom off before buying property.

Group executive of financial services at Canstar, Steve Mickenbecker says: “This decrease is probably because mum and dad are saying it’s not a great time to be buying because you will probably be able to buy better in a year’s time.”

According to the Australian Prudential Regulation Authority, BoMAD is ranked among the top 10 lenders in Australia, dishing out over $29 billion to first home buyers and beating out lenders such as AMP Bank and ME Bank.

HLB Man Judd partner in wealth management Jonathan Philpot talks to a lot of clients about BoMAD as a planning issue.

Philpot says: “It’s definitely been on the rise with helping out the children getting their first home, particularly in the last five to six years in Sydney with the market having risen so quickly and the banks wanting 20 per cent deposit.

“Often it’s not considered when people are planning for their own retirement. They are not really factoring in also helping the children with their first home. It usually pops up at the time and I’ve seen a few times where the clients put themselves at a financial risk to help their children.”

Gifting a deposit is a simple way for parents to assist their children in purchasing property.

A drawback for the first home buyer is that this does not show the lender that they can save and if there is a relationship break down, the child’s spouse may be entitled to half the amount.

“In this case it is important for banks to know that this is a gift so that the money is separate from the lending,” Mickenbecker says.

More than half of Resimac’s Generational Property Ladder Survey respondents would consider a gifting cash to their children to purchase property.

Parents need to be aware that this has no protection in getting the money back or in the case of their child’s relationship breakdown.

Going guarantor allows BoMAD to provide assistance without giving cash up front, using the equity in their property instead. Parents will be legally responsible for paying back the loan if the first home buyer is no longer able to.

This quite a popular method for parents as Resimac’s survey saw that 36 per cent of respondents considered going guarantor.

There is substantial risk with this method as it can have detrimental effects on parents’ credit ratings and prevent them from accessing their future credit as the guarantee needs to be disclosed to when applying for credit.

Philpot says: “We strongly discourage going guarantor for children as there is too great a risk for parents who are late in their working life or are retired to be potentially liable for a substantial home loan if the child was not able to meet the repayments.”

It was only last week that Macquarie Bank announced in a note to mortgage brokers that from March 18 it no longer offers family guarantee loans. This marks the first major bank to cease this particular method of mum and dad banking.

ASIC’s MoneySmart recommends that parents consider if they can afford to pay back the loan if the child no longer can and to ensure that they understand the risks surrounding this method.

Co-buying or tenants in common is when parents buy in partnership with their child. The child will own a portion of the property and can buy their parents out later in order to take full ownership of the property.

Around 32 per cent of Resimac’s Generational Property Ladder Survey respondents would consider buying their child’s home in partnership with them.

For extra protection in the case of the parents’ death, it is recommended to buy in joint names or through a family trust so the property would transfer instantly to the child.

“You have to be a party to the mortgage and to the loan and it can be a messy approach as you would be borrowing with your child and in law from the bank and that could affect your future plans and flexibility,” Mickenbecker says.

Loaning a deposit is considered the safest option for parents to protect themselves when assisting their children in purchasing property.

It is recommended that a formal loan document be drawn up, not just a known agreement in order to protect against the child’s relationship breakdown and generally they are written in a way similar to a bank loan and the children pay a small sum of interest so there is a commitment.

“We always recommend a formal loan agreement with a nominal interest rate, rather than gifting the money to the child. It might just be an interest-only loan for 25 years but that’s the protection over what their giving their child over a potential relationship breakdown,” Philpot says.

For some parents, it can be seen as an investment instead of putting money into a term deposit.

“Half the loans we see have been generally a one-year term deposit rate and the parents want to have a financial investment in that regard. Instead of putting that into a term deposit they invest in their children.”

While protecting the parents, this option may impact the bank’s lending and the child will end up with less than if it was a gift or another method.

Mickenbecker says: “The problem that arises is that you need to have this conversation without involving the bank too much as they are likely to say that if it is a loan then they will need to factor that into the servicing analysis of their loan.”

However, millennials should take consideration when taking on debt in a world where wages are not growing as the burden of the debt will not decline.

Omniwealth financial planner Steven Korner says: “People rush into buying a home because they have been conditioned to, but if someone is being gifted an amount from their parents to buy their home, the main concern is that if they can’t save that deposit on their own they may struggle to keep up with mortgage repayments.”

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Tax debts – courts power to substitute debtors

Tax debts – courts power to substitute debtors

Commissioner of Taxation v Tomaras [2018] HCA 62 (13 December 2018)

  1. KIEFEL CJ AND KEANE J. We agree with Gordon J that under  s 90AE  of the Family Law Act 1975 (Cth) (“the Act“) the court has power to order the Commissioner of Taxation to substitute one party to a marriage for the other in relation to a debt owed to the Commonwealth for income tax. Accordingly, the appeal must be dismissed. Gratefully adopting her Honour’s summary of the factual background, the relevant legislation, and the reasons of the Full Court of the Family Court of Australia, we proceed to explain our reasons for that conclusion.
  2. Since the decision of this Court in Bropho v Western Australia[1] it has been settled that the presumption of statutory construction that general words in a statute do not bind the Crown may be displaced without the use of express words or words of necessary intendment. If the legislative provision in question, when construed in context, discloses an intention to apply to the circumstances of the particular case, then effect must be given to that intention. In this case the intention of the Act is not in doubt.
  3. Within Pt VIII of the Act, a court considering the exercise of its jurisdiction in property settlement proceedings under s 79 must, by reason of s 75(2)(ha), take into account the effect of any proposed order on the ability of a creditor of a party to the marriage to recover the creditor’s debt. Nothing in Pt VIII of the Actsuggests an intention to differentiate between Commonwealth, State and Territory revenue authorities or an intention to differentiate between revenue authorities and other creditors. Further, s 80(1)(f) provides that a court exercising its powers under s 79 may “order that payments be made … to a public authority for the benefit of a party to the marriage”. It is not disputed that this provision contemplates the making of an order that one party to a marriage pay the taxation liability of another to a revenue authority. Thus it is apparent that, in Pt VIII of the Act, the term “creditor” is apt to include the Commonwealth and indeed any other revenue authority.
  4. Within Pt VIIIAA of the Acts 90AA states that the object of that Part is to allow the court to make an order in relation to the property of a marriage under s 79 of the Act that is directed to, or alters the rights, liabilities or property interests of, a third party. Within Pt VIIIAA s 90AE(1)(b)  provides that in proceedings under s 79, the court may make “an order directed to a creditor of one party to a marriage to substitute the other party … to the marriage for that party in relation to the debt owed to the creditor”. Part VIIIAA is thus explicitly ancillary to s 79 of the Act.
  5. Given that Pt VIIIAA is ancillary to Pt VIII, a suggestion that a “creditor” in Pt VIIIAA is different from a “creditor” in Pt VIII would be difficult to sustain. Nothing in the language of Pt VIIIAA affords any support to such a suggestion. Further, nothing in the extraneous materials referred to by the parties targets a mischief that might be remedied only by giving “creditor” a narrower scope in Pt VIIIAA than it has in Pt VIII.
  6. It must be understood, however, that the power of the court under Pt VIIIAA to make an order directed to a third party is not at large. The power to make an order under s 90AE(1) is conditioned by  s 90AE(3).  Such an order may be made only if, among other things:

“(a) the making of the order is reasonably necessary, or reasonably appropriate and adapted, to effect a division of property between the parties to the marriage; and

(b) if the order concerns a debt of a party to the marriage – it is not foreseeable at the time that the order is made that to make the order would result in the debt not being paid in full; and

(d) the court is satisfied that, in all the circumstances, it is just and equitable to make the order”.

  1. Some statutes may differentiate between ordinary creditors and revenue authorities. In such cases the general consideration of equality before the law, which tends against the application of the presumption that the Crown is not bound by a statute, can be seen to have been displaced in favour of the public interest specifically associated with governmental functions such as the protection of the revenue[2]. The Act is not such a statute.
  2. Any concern for the protection of the revenue – Commonwealth, State or Territory – is met by the terms of  s 90AE(3)(b).  If this condition is not satisfied, the power to make an order under  s 90AE(1)(b)  is not enlivened. The observance of this condition by the court is apt to ensure that the interests of the revenue authorities, and other creditors for that matter, are not adversely affected by the making of an order under  s 90AE(1)(b).  The scope of this power should not be distorted by attributing to the Parliament an unfounded apprehension that the courts cannot be trusted to ensure that the statutory conditions upon which the power may be exercised are satisfied.
  3. Given that, so far as appears from the record in the present case, the husband is a bankrupt and the wife is solvent, it is not possible to see how the condition in  s 90AE(3)(b)  could be satisfied in this case. More generally, it is difficult to see how any case where there is a real prospect that the substitution of one spouse for another as the debtor of the revenue authority would create or enhance a risk of non-payment would not fall foul of s 90AE(3)(b) of the Act.
  4. It might also be suggested that the prospect that an order for substitution might render the substituted party liable for a revenue debt without the benefit of rights of objection available exclusively to the other party to the marriage as “the taxpayer” under the relevant revenue legislation would mean that the condition in  s 90AE(3)(d)  is not satisfied. This suggestion raises a question of no little complexity. The circumstance that the income tax liability of the substituted party could not be contested by that party would not necessarily make it unjust or inequitable to order substitution. It may be, for example, that any challenge to the tax liability asserted by the Commissioner would clearly be resolved in favour of the Commissioner. In such a case, an inability to contest the tax liability would not occasion substantial injustice to the substituted party. However, it will rarely be the case that a court trying proceedings between the parties to a marriage will be able responsibly to come to a firm view as to the likely outcome of such a contest.
  5. As a practical matter, where a real question arises as to whether a party to a marriage would be substantially prejudiced by an order for substitution, the better course for the court would usually be to conclude that it cannot be satisfied that the condition in  s 90AE(3)(b)  could be met. In the present case, given that on the material in the record the condition in s 90AE(3)(b) could not be satisfied, it is unnecessary to reach a conclusion in relation to  s 90AE(3)(d). 
  6. For those reasons, we agree with the terms of the answer proposed by Gordon J to the question posed by the stated case.
  7. As to the procedure adopted in this case, we would observe that it is regrettable that the primary judge was invited by the parties to state a question of law for the Full Court. While the primary judge cannot fairly be criticised for acceding to the course proposed by the parties, it would have been more efficient, in terms of the administration of justice, if the wife’s application for substitution had been allowed to proceed to a determination on the merits. Given the difficulty confronting the wife’s application for substitution by reason of the condition in  s 90AE(3)(b) , the question stated for the opinion of the Full Court was unlikely ever to be of other than academic interest.

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Death of spouse – property settlement proceedings too late

Property settlement proceedings cannot be filed after death of spouse

Simonds (deceased) & Coyle [2019] FamCAFC 47 (26 March 2019)


  1. The principal issue in this case is whether the trial judge had jurisdiction to entertain the Amended Initiating Application that had been filed on 25 May 2018, amending the Initiating Application filed on 10 May 2017.
  2. In the Amended Initiating Application the de facto wife sought leave pursuant to s 44(6) of the Act to institute proceedings for property settlement, and an order for property settlement.
  3. As can be seen, that application was filed after the death of the de facto husband in late July 2017, and at that date there was no valid or competent proceedings for property settlement before the Court. As referred to above, there had been an Initiating Application filed by the de facto wife on 10 May 2017 seeking an order for property settlement, but that application was void and of no effect because leave to file that application had not been given by the Court pursuant to s 44(6) of the Act.
  4. Pursuant to s 39B(1) of the Act, jurisdiction is conferred on the Federal Circuit Court of Australia “with respect to matters arising under [the] Act in respect of which de facto financial causes are instituted under [the] Act”.
  5. Here, no de facto financial cause had been instituted prior to the death of the de facto husband, and none could be instituted after that death, even though there are legal personal representatives of the deceased de facto husband, namely the appellants.
  6. As was said in 1981 by the Full Court in Sims and Sims (1981) FLC 91-072 (“Sims and Sims”) at 76,534:

The jurisdiction of this Court is based entirely on statute. Save as expressly provided, this statute does not confer any general power on this Court to entertain proceedings against or by the legal personal representative of a deceased party…

  1. There is no express provision providing for proceedings such as these to be instituted after the death of the de facto husband, and any right to seek a property settlement abated upon the occurrence of that event (Sims and Sims, Phillips and Phillips [1985] FamCA 19(1985) FLC 91-634Parker v Arcus and Castiglione(1984) FLC 91581).
  2. There is of course s 90SM(8) which allows for property settlement proceedings that are not completed at the date of death to be continued in certain circumstances by or against the legal personal representative of the deceased party, but that subsection does not apply here because there were no property settlement proceedings before the Court as at the date of the death of the de facto husband. To repeat, the necessary leave had not been given to institute such proceedings.
  3. I say again, his Honour did not have jurisdiction under s 39B(1) of the Act to entertain the Amended Initiating Application filed by the de facto wife on 25 May 2018, because there was no financial de facto cause instituted. The relevant definition of de facto financial cause in s 4 of the Act is as follows:

…(c) proceedings between the parties to a de facto relationship with respect to the distribution, after the breakdown of the de facto relationship, of the property of the parties or either of them;

  1. Plainly, there were no such proceedings here.
  2. His Honour, in his brief reasons for judgment, failed to deal at all with the question of whether he had jurisdiction. Without addressing that issue his Honour simply proceeded on the basis that despite the death of the de facto husband, he could grant leave to the de facto wife to institute proceedings for property settlement nunc pro tunc pursuant to r 1.09 of the Rules, and grant leave nunc pro tunc for her to continue those proceedings against the legal personal representatives of the deceased de facto husband.
  3. First, it is a mystery as to why his Honour applied a family law rule in a Federal Circuit Court of Australia matter, but more relevantly, it is not at all apparent how his Honour used that rule and certainly in this respect there is a lack of adequate reasons. Rule 1.09 provides:

If the court is satisfied that:

(a) a legislative provision does not provide a practice or procedure; or

(b) a difficulty arises, or doubt exists, in relation to a matter of practice or procedure;

it may make such orders as it considers necessary.

  1. Here, there is no mention by his Honour of any legislative provision which does not provide a practice or procedure, and there is no difficulty or doubt in relation to a matter of practice or procedure.
  2. His Honour has also sought to grant leave “nunc pro tunc”. That is a rule of practice and procedure to regularise the records of the court, and it cannot create jurisdiction where there is none. In other words, if there was no jurisdiction to entertain the application filed on 25 May 2018, the court still did not have jurisdiction at the time his Honour made the orders.
  3. That disposes of the appeal. There is no doubt that his Honour erred in law in making the orders that he did. He had no jurisdiction to entertain the application, and referring to r 1.09 and purporting to grant leave to institute proceedings, and to continue them after the death of the de facto husband, by making orders nunc pro tunc, was ineffective.
  4. Thus, there being merit in the appeal, leave to appeal should be granted and the appeal allowed. As a consequence the orders made by his Honour must be set aside, and the applications filed by the de facto wife on 10 May 2017 and 25 May 2018 should be dismissed.

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Rectification of BFA upheld

Rectification of BFA upheld

Rectification of the agreement (Grounds 1, 2, 4 and 5)

  1. The husband contended the Agreement’s rectification by the primary judge was erroneous – both by expressing it to be a financial agreement made pursuant to s 90B of the Act (Grounds 1, 2 and 5) and by amending the terms of clause 17 (Ground 4). Notwithstanding his differentiation of the two forms of rectification in the grounds of appeal, the husband’s arguments can only sensibly be considered compendiously because they ran together and were not segregated under the various grounds and sub-grounds of appeal.
  2. A written contract is presumed to correctly record the agreement of the parties to it and, in order to displace that presumption, a party seeking rectification of the contract must advance “clear and convincing proof” it does not embody the final intention of the parties (see Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329 at 345; Pukallus v Cameron [1982] HCA 63(1982) 180 CLR 447 at 452, 456 (“Pukallus”); Maralinga Pty Ltd v Major Enterprises Pty Ltd [1973] HCA 23(1973) 128 CLR 336 at 350). For that purpose, the parties’ mutual intention is the relevant feature of the evidence, as there is no room for rectification of the contract if the contrary intention is not shared (see Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407(2009) 76 NSWLR 603 at 710; Ryledar Pty Ltd v Euphoric Pty Ltd [2007] NSWCA 65;(2007) 69 NSWLR 603 at 655, 660). The parties did not contest the correctness of those principles. Rather, their dispute concerned the application of the principles to the evidence adduced.
  3. The husband contended the evidence did not admit of the finding that the parties mutually intended the Agreement would be a binding financial agreement which affected their rights upon separation by preserving the assets they individually introduced to the relationship.
  4. It was submitted for the husband in the appeal:

…When the Appellant signed the Agreement, he intended it to be as drafted by the Respondent’s Solicitors with no amendments and after receiving advice from his Solicitor. As far as the Appellant is concerned, there was no mistake and there can be no rectification.

  1. However, the absurdity of that proposition is established by the corollary. If the husband did not intend the Agreement to be a binding financial agreement with full force and effect under the Act, he must then have pointlessly intended the Agreement would be a nullity since, in its unaltered form, the Agreement was unenforceable under State law in a State court; be it Victorian or any other. Jurisdiction to determine the matrimonial causes between the parties was exclusively conferred by and under the Act, which could not be ousted by an agreement purporting to be created and enforced under State law. The wife’s senior counsel was correct to describe the Agreement’s attempt to reserve jurisdiction and power under State law as “meaningless and without any effect whatsoever” (Transcript 24 May 2018, p.15 line 23).
  2. If the husband did not intend to mislead the wife by executing the Agreement so as to induce her false belief he considered the Agreement was binding, the only rational alternative is that he signed the Agreement honestly believing (contrary to his lawyer’s submissions) the Agreement would bind the parties without realising it would fail to do so in the form it was executed.
  3. The husband’s lawyer was mistaken when he informed the primary judge the Agreement in its unaltered form could be enforced in “the courts of the state” (Transcript 24 May 2018, p.27 line 23). To be clear, he was there referring to the Agreement’s stated dedication to its adjudication exclusively under Victorian law in a Victorian court. He could not have been referring to the prospective enforcement of the Agreement by a State court exercising federal jurisdiction under the Act, for two obvious reasons.
  4. First, he asserted the agreement was not intended to impinge upon the parties’ matrimonial rights under the Act in any way, as he went on to explain:

…the court’s jurisdiction is not ousted. It’s [the Agreement is] just one of the documents that the court can consider [in the property settlement proceedings].

(Transcript 24 May 2018, p.22 lines 35–36)

…There was no intention to exclude the jurisdiction of this court. So he has signed it, and the court can take into consideration what is stated here. But the court’s jurisdiction is not ousted…

(Transcript 24 May 2018, p.23 lines 3–6)

…all we say is that we agreed to enter into a prenuptial agreement as drafted in this manner and not a binding financial agreement that excludes the jurisdiction of the court.

(Transcript 24 May 2018, p.27 lines 30–32)

  1. Secondly, the litigation was already being entertained by the Federal Circuit Court and he was at liberty to try and enforce the Agreement in its unaltered form then and there. There was no need and, indeed, no jurisdictional scope to separately approach a State court to try and do so. However, not only did he not seek to enforce the Agreement against the wife, he sought an order from the primary judge to set it aside.
  2. It should be noted that the husband’s application to set the Agreement aside was entirely irreconcilable with his written submissions filed in advance of the hearing, in which it was asserted:

The parties have clearly chosen the applicable laws and have given the courts in Victoria exclusive jurisdiction to determine any dispute arising from the Pre-Nuptial Agreement. This Court has no jurisdiction to determine any dispute arising from the Pre-nuptial Agreement.

(Emphasis added)

  1. The husband could not explain how, on the one hand, he could contend the primary judge had no jurisdiction to hear and determine any dispute about the Agreement but, on the other hand, actually ask the primary judge to hear and determine his application to set the Agreement aside. It should also not escape attention that his application to set the Agreement aside pre-supposed its validity as a binding financial agreement under the Act, which characterisation of the Agreement he simultaneously denied. The illogicality of the husband’s position about the Agreement, its intended effect, and its enforceability was, thereby, clearly revealed.
  2. During the hearing before the primary judge, the husband’s lawyer was driven to effectively concede he advised the husband upon, and allowed him to sign, an agreement which the lawyer contemplated would be ineffectual. The following exchange occurred between the primary judge and the husband’s lawyer:

[COUNSEL FOR THE HUSBAND]: …this is a rubbish document…

[HIS HONOUR]: Well, you advised on it.


[HIS HONOUR]: You gave advice about it.

[COUNSEL FOR THE HUSBAND]: Yes. If the client wants to sign an agreement that’s non-binding, it’s as if it is…

[HIS HONOUR]: Yes, but they’re relying on you for advice.

[COUNSEL FOR THE HUSBAND]: Yes. All he has signed is a prenuptial agreement, if at all…

(Transcript 24 May 2018, p.22 line 36 to p.23 line 3)

  1. On the question of rectification, the husband submitted to the primary judge the parties had no common intention that the agreement would provide otherwise than as it stated. When pressed to explain why, the husband’s lawyer said:

…There was no discussion regarding the terms that she put in [the Agreement]. And based on this, your Honour, there cannot be any rectification. There was no discussion regarding the terms of this agreement.

(Transcript 24 May 2018, p.26 lines 33–35)

…we say that the wife has not produced clear and convincing evidence to say that there was common intention because evidence showed otherwise; the agreement showed otherwise, the way it was drafted. And most important is the wife did not, in her own affidavit, say what the terms are supposed to be. She did not say what instructions she gave to her solicitor. Her solicitor did not come and say, “I have made a mistake. It should be a section 90B agreement.”…

(Transcript 24 May 2018, p.28 lines 13–18)

  1. The fact the terms of the Agreement, as drafted by the wife’s lawyers, were not thereafter negotiated was immaterial. Before the Agreement was prepared, the parties privately discussed its purpose and, as it transpired, the terms of the Agreement did not fulfil the intended objective. The wife was certainly unaware of the dissonance and, inferentially, the primary judge found the husband was probably also unaware of that fact.
  2. Contrary to the husband’s submission to the primary judge, the wife did depose in her affidavit to the intended purpose of the Agreement. She said it was the parties’ “mutual intention” that the Agreement would “set out the property that [they] would each receive in the event of separation and to waive [their] rights to property settlement or to seek spousal maintenance from [the] other”. Although the husband denied the fact, he did not object to the admissibility of her evidence in that form and chose not to cross-examine the wife about it.
  3. In the appeal, the husband’s lawyer conceded the parties did, at least initially, commonly intend that they would enter into a binding financial agreement, but then asserted the wife failed to prove their common intention subsisted until they executed the Agreement. It was uncontroversial that, for the Agreement to be amenable to rectification, the parties’ common intention for the Agreement to be a binding financial agreement must have subsisted until its execution (see Pukallus at 452, 456).
  4. Three impediments obstruct acceptance of the husband’s submission. First, the wife’s evidence strongly implied their common intention subsisted until the Agreement was executed. Secondly, given the husband’s concession there was an initial common intention, he did not then give evidence expressing or even implying he recanted from their common intention prior to the Agreement’s execution. Thirdly, as was open, the primary judge inferred the continuation of the parties’ common intention and the husband’s lawyer was unable to identify any aspect of the evidence which demonstrated the finding was wrong.
  5. The parties’ common intention to execute a binding financial agreement was evident from: the wife’s evidence about their “mutual intention”; the parties’ consistent evidence that they discussed and intended the Agreement to protect the wife’s small business against any claim by the husband in the event of their separation; the identification of the assets they each introduced to the marriage in separate schedules to the Agreement; and the terms of the Agreement itself, which purported to protect the assets they each introduced to the marriage against any matrimonial claim made by the other. The wife’s senior counsel submitted to the primary judge that the inference of the parties’ common intention to create a binding financial agreement was “inescapable”. Whether the inference was so strong is a moot point, but the inference drawn by the primary judge to that effect was certainly available on the evidence.
  6. Because it was open to the primary judge to accept such evidence and to infer the parties’ intentions from it, the nature of the instructions the wife gave her lawyer, the nature of the advice she received from her lawyer about the Agreement, and her failure to call her lawyer as a witness at the hearing was of no consequence. There was no gap in the evidence which needed to be plugged by the wife’s lawyer and so there was no room for any adverse inference to be drawn from her lawyer’s absence as a witness (see Jones v Dunkel [1959] HCA 8(1959) 101 CLR 298), for which inference the husband contended before the primary judge.
  7. Having drawn the inference of the parties’ common intention to execute a binding financial agreement, that the Agreement did not embody the parties’ objective was an inevitable conclusion. No other device but a binding financial agreement could have carried the parties’ common intention into effect.
  8. Since the Agreement did not, by reason of its omissions and inaccuracies, achieve the parties’ common intention, the wife submitted to the primary judge it was a “classic situation where rectification is available” (Transcript 24 May 2018, p.17 lines 38–39), which submission the primary judge was able to accept.
  9. The primary judge referred (at [39]–[40]) to Senior & Anderson (2011) FLC 93470, where the Full Court held (at [34]-[36], [105]-[107], [110]-[112], [129], [132]–[133], [138]–[139], [143], [159]–[160]) there was power to rectify the financial agreement in that particular case by substituting correct references to s 90D of the Act for the erroneous references to s 90C, when the correct statutory provision manifested the parties’ common intention. That situation is analogous to the present. Here, the insertion into the Agreement of reference to s 90B of the Act would manifest the parties’ common intention to achieve a financial agreement within the meaning of the Act.
  10. As was submitted for the wife in the appeal, the parties did not need to have a common intention about the precise words in which the terms of the agreement should be expressed; only that they had a common intention about the substance and detail of its intended effect (see Fitzgerald v Masters [1956] HCA 53(1956) 95 CLR 420 at 426–427; Muriti v Prendergast [2005] NSWSC 281 at [137]). For that reason, the fact the parties did not specifically discuss s 90B of the Act in the context of what they agreed the Agreement should accomplish, is no bar to the Agreement’s rectification by insertion of reference to that provision.
  11. Since the Agreement could not possibly be a financial agreement within the meaning of the Act without its express reference to s 90B (ss 4(1), 90B(1)(b)), the Agreement’s rectification to reflect the parties’ common intention could only be achieved by an order in terms of Order 1 made by the primary judge. Hence, the validity of the order.
  12. Given the Agreement was rectified to reflect its status as a financial agreement under s 90B of the Act, any litigation over the Agreement was the exclusive province of a court exercising jurisdiction under the Act. State courts may, in certain circumstances, exercise federal jurisdiction under the Act, but it was impossible for any Victorian court to entertain and determine any litigation about the agreement under Victorian contract law. The provisions of clause 17 of the agreement were, therefore, nonsense and had to be rectified or severed to render the Agreement correct and intelligible, for which reason Order 3 was also correctly made.

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Kennon claims are difficult to maintain

Kennon claims are difficult to maintain

Keating & Keating [2019] FamCAFC 46 (21 March 2019)

  1. Turning then to Kennon, the rationale for a contributions adjustment as a consequence of family violence was explained by Fogarty and Lindenmayer JJ at 84,294:

Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s.79. We prefer this approach to the concept of “negative contributions” which is sometimes referred to in this discussion.

  1. And at 84,294 – 84,295:

It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect and of necessity it does not encompass (as in Ferguson) conduct related to the breakdown of the marriage (basically because it would not have had a sufficient duration for this impact to be relevant to contributions).

(Emphasis added)

  1. In Spagnardi the Full Court referred to Kennon and the necessity to show that the conduct had a “discernible impact” on the party’s contributions but noted that, there was an “insufficiency of evidence” [47]. Their Honours then continued:

As Kennon has established, it is necessary to provide evidence to establish:

  • The incidence of domestic violence;
  • The effect of domestic violence; and
  • Evidence to enable the court to quantify the effect of that violence upon the parties [sic] capacity to “contribute” as defined by section 79(4).

(Emphasis added)

  1. Their Honours further noted at [48] that there was a “complete absence of evidence as to how the husband’s conduct affected her ability to contribute”. At first blush the reference in Spagnardi to “quantification” seems to elevate the need for an evidentiary nexus or “discernible impact” between the conduct complained of and its effect on the party’s ability to make relevant contributions, requiring expert or actuarial evidence of the effect of the violence. That impression is reinforced by their Honour’s reference to and comparison with the husband’s failure to adduce evidence to demonstrate the impact on the value of the house by his renovations and improvements at [50] where their Honours said:

An absence of quantification was also apparent in the appellant’s case. While the husband went to great lengths to identify each of the tasks undertaken by him in connection with renovations and improvements to the matrimonial property, he failed to provide evidence of the direct effect of his endeavours upon the value of that property.

  1. This uncomfortable analogy does not illuminate what “quantification” of the effect of violence on contributions might look like. It suggests something more than the evidence by the victim spouse. We struggle to understand what that “quantification” evidence might be beyond that given by the victim spouse as to the incidence and effect of the violence as identified in Spagnardi in the first two dot points at [47]. Furthermore, we fail to see how this third step accords with the decision in Kennon which the Full Court in Spagnardi said governed the situation. Perhaps the use of the word “quantification” is infelicitous and has unintentionally added a gloss to the ratio in Kennon when, in truth, the Court in Spagnardi was merely reinforcing the need for there to be an evidentiary nexus between the conduct complained of and the capacity (and or effort expended) to make relevant contributions. And, depending upon the nature of the violence established, in the absence of express evidence about the effect that violence had on the victim spouse’s contributions, how difficult it might be for the Court to draw inferences which would establish the evidentiary nexus (see Spagnardi at [42]). But we did not have the benefit of argument on the point (nor it seems did the primary judge) and prefer to express no final view about it.
  2. In any event, the primary judge gave no consideration to the inferences that might properly be drawn from the wife’s albeit limited evidence as to the effect on her of the husband’s violence taken in conjunction with her evidence of the severity of the violence. In this respect although there was evidence about violent behaviour by the wife, it was not the husband’s case that this warranted an adjustment in his favour. Perhaps this is why there is no reference to this evidence in the trial reasons.
  3. Turning then to the frequency and severity of the violence, we are troubled that the primary judge seems to have dismissed all incidents of violence towards the wife except that which resulted in the wife’s wrist being broken by the husband, apparently because her evidence was uncorroborated.
  4. It is well settled that a party does not require his or her evidence to be corroborated before evidence of family violence can be accepted. A decade ago the Full Court said in Amador & Amador [2009] FamCAFC 196;(2009) 43 Fam LR 268 at [79]:

Where domestic violence occurs in a family it frequently occurs in circumstances where there are no witnesses other than the parties to the marriage, and possibly their children. We cannot accept that a court could never make a positive finding that such violence occurred without there being corroborative evidence from a third party or a document or an admission. We have not been referred to any authority in support of such a proposition.

  1. The primary judge’s approach to the wife’s claim for an adjustment as a consequence of family violence was undoubtedly affected by the confused approach she adopted at trial and as reflected in her summary of argument filed in the appeal. Nonetheless it seems to us that his Honour’s approach to the issue of family violence as demonstrated in his reasons is persuasive of the conclusion that he misdirected his attention from the “discernible impact” of the husband’s violence on the wife’s capacity to make contributions focussing instead on there being no evidence allowing “quantification” of that effect. However, for an abundance of caution given the absence of a transcript, we cannot conclusively say that his decision to make no “Kennon” type adjustment was wrong. That argument and its ultimate determination must await the remitted trial.

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Family Report Process

What is a family report and how is it used?

The court or an independent children’s lawyer (if one has been appointed) may organise a family report during family law proceedings. A family report provides information about you, your children and your family to help the court identify what is in your children’s best interests. A family report is one of many documents that the court will consider when making decisions about your children.

A family report may include recommendations to the court about:

  • parental roles and responsibilities
  • how your children will spend time and communicate with their parents, family members and other significant people in their lives
  • any safety issues
  • support services or interventions that may help the children or adults, like attending a post-separation parenting program, for example.

Who writes the family report?

An accredited professional, such as a social worker or psychologist, will write the family report. This report writer usually has a lot of experience working with children and families. The court considers report writers to be independent experts in child and family matters.

How is the information for a family report collected?

  • The report writer will speak to the adults and children.
  • The report writer will decide whether they need to see the children and adults together as well as individually.
  • The report writer usually sees everyone at their offices and does not usually attend your home.
  • The report writer will determine who they need to see and speak to during the course of your scheduled appointment/s.
  • The adults and children involved in the court proceedings will also be involved in the family report assessment.
  • The report writer may involve other household members and significant others (eg extended family and friends) if they think it is necessary.

The report writer may collect information about:

  • your children and their individual needs
  • your children’s relationships with family members and significant others
  • your children’s views – if they want to tell the report writer
  • your views about what is in your children’s best interests
  • your family history, including the history of parenting roles and arrangements and the relationships between the adults (past and present)
  • what is currently happening in your child’s life
  • issues relevant to the children’s and adults’ safety.
  • If you have any questions about your family report appointment you can ask the independent children’s lawyer (if there is one), your lawyer (if you have one) or the report writer.

How to prepare for your appointment with the report writer:

  • think about what is best for your children and why you think it is best for them.
  • Tell the children they are going to see someone that is helping you to work out the best way for the children to spend time with people who are important to them.
  • The amount of time the appointment takes will vary (depending on the issues and the number of people involved) but you will probably be there for most of the day.
  • Whoever is bringing the children needs to bring someone to look after them while the adults are being interviewed.
  • Bring food, drinks and some things to keep the children entertained.
  • The adults should bring along, or have in mind, a play activity they can do with the children as the report writer may want to observe the children spending time with the adults.

How will the report writer use the information they collect?

The report writer will use the information they collect during this process to write the family report. The information you provide to the report writer cannot be kept confidential. The court can access any information collected by the report writer, even if it is not used in the final family report. If the matter goes to a hearing, the report writer may be required to give evidence at your hearing.

Who will see the family report?

Once the report writer has finished writing the family report, a copy will be given to:

  • the court
  • the independent children’s lawyer (if one has been appointed)
  • you or your lawyer (if you have one)
  • the person you are in dispute with or their lawyer (if they have one).

No one else will be given or shown a copy of the report.

Who will tell my child about the court’s decision?

Usually the parents explain the court’s decision to the children. In some instances, the report writer and the independent children’s lawyer may explain the outcome to your children when the court has made its final decision.

What if I have concerns about the report or the report writer?

If you have concerns about the report, the process used, or the report writer you can talk to us about what options are available in these circumstances.

What if I have concerns about my safety?

Sometimes people have concerns about their safety, or their children’s safety, around other people who will be involved in the family report. It is important for the report writer to know if you are concerned about your safety or if there are protection orders in place, so steps can be taken to ensure the safety of everyone involved in the report process.

More information

If you would like more information about a family report, please contact us at Freedom Law for an in person or online consultation.


DFRDB, MSBS and ADF Superannuation

Key points:

  1. DFRDB super closed to new members as of 1 October 1991;
  2. MSBS super closed to new members as of 1 July 2016;
  3. The new super for ADF members is ADF Super.

Unlike the previous super schemes (DFRDB and MSBS), the new ADF Super scheme is an accumulation benefit.

The previous super schemes were defined benefit.

There is a big difference between an accumulation benefit and a defined benefit, most notably, a defined benefit has to be valued by an actuary and the result of that valuation is that the actual benefit is usually higher than what is stated in the annual benefit statement.

If you or your partner have a defined benefit, it will need to be valued for family law purposes in the event of relationship breakdown.

Like all superannuation schemes, military schemes can be flagged or split between members of the scheme and non-member partners.

Superannuation is a complex topic and many considerations come into play, including preserved and non-preserved amounts and taxation issues.

It is important to obtain legal advice about your rights when it comes to superannuation and relationship breakdown.

If you need representation or advice about superannuation issues in family law, contact us at Freedom Law, The Family Law Specialist today for clarity about your situation.

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Baptism Order found to be “procedurally unfair”

Baptism Order found to be “procedurally unfair”

Was the order for the baptism of the child procedurally unfair? (Ground 3)

  1. As we have seen, the appellant submits that she was not given any reasonable warning of the possibility of the order requiring baptism being made and that, in making the order, the primary judge therefore failed to accord her procedural fairness.
  2. The appellant submitted the order for baptism was one “which none of the parties contemplated and to which evidence and argument was not directed”.
  3. The ICL accepted this to be so, saying in her Summary of Argument:
    1. The ICL accepts that the parties were not informed that the primary judge was contemplating making an order requiring [X] to be baptised. Whilst there was evidence received in relation to the common intention of the parties to expose [X] to religion (as part of one family unit, and [X] being educated at a Roman Catholic school), they were unaware that when his Honour was forming the view that “it is very important for [X] to have an identity”, and “[X] must understand why it was that he was called into this world”, and that “[X] was born so that he could be educated in the Catholic tradition”, that his Honour was minded to ensure that [X]’s obtained salvation by way of baptism. There has been a disconnect between the evidence, and what his Honour has used the evidence to order.
    2. The parties have not been afforded an opportunity to be heard on the issue of baptism. This order should be set aside for that reason alone, quite apart from the constitutional issue traversed above in this summary of argument.

(Footnotes omitted)

  1. The respondent sought to maintain the order, submitting:

The Respondent submits that His Honour commented to the Report Writer at trial that with the child potentially going to [G Catholic Primary School] and [G Catholic High School], “there may be a necessity for him to be baptized as a Catholic”. The child’s religious and cultural upbringing was an issue in dispute. The parties were then provided with leave to file written submissions regarding issues in dispute. The Appellant failed to address such religious and cultural issues, but her failure is not an error of law or fact.

(Respondent’s Summary of Argument, p.8) (Footnotes omitted)

  1. In effect, the respondent submitted that as the child was to go to a Catholic primary school it was obvious or likely that, given her evidence, the child would have to be baptised. Thus, she submitted the order was within reasonable contemplation and there was not procedural unfairness.
  2. It is axiomatic that a person is entitled to know the case that is being made against them and which they must meet: Kioa v West [1985] HCA 81(1985) 159 CLR 550 at 582.
  3. The rule was explained in this manner by Gibbs CJ in National Companies and Securities Commission v News Corp Ltd [1984] HCA 29(1984) 156 CLR 296 at 312:

The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise.

  1. Consequently, it is necessary to look closely at the conduct of the proceedings to see whether the order had been reasonably foreshadowed and whether the making of the order involved any unfairness.
  2. We begin by observing that neither of the parties, nor the ICL, expressly sought an order requiring the baptism of the child.
  3. The appellant’s position prior to and during the hearing before the primary judge was that she should have sole parental responsibility for the child. It follows that, if this order was made, all issues of religion and schooling would be left to her. She had enrolled the child at D School without consulting the respondent. It was evident that she would not willingly abide to the arrangement made when the child was conceived to send him to G Catholic Primary School (“G Primary School”) and G Catholic High School (“G High School”). Indeed, she proposed moving to another suburb that would make travel to and from those schools very inconvenient if not impossible.
  4. The respondent’s case outline indicated that she sought an order for equal shared parental responsibility which means that decisions as to religion and schooling would have to be agreed between her and the appellant (s 65DAC of the Act).
  5. Her position shifted during the course of the hearing. In her written submissions she accepted that if “the court makes orders for the health service that is to support [X] and for his schooling, there is no need to make an order for [equal shared parental responsibility]”.
  6. In her submission the ICL proposed that the appellant have sole parental responsibility but that specific orders dealing with health and schooling be made. The submissions dealt with religion as follows:
    1. However, the importance of the Catholicism [sic] religion to the [respondent] should be taken into account and reflected in the orders. Both the [respondent] and the [appellant] acknowledged the importance in their lives of the Catholicism [sic] religion and the orders as proposed by the Independent Children’s Lawyer take into account this importance on account of the choice of both primary and high schools being Catholic schools, as agreed to by the parties prior to separation. The [appellant] reaffirmed this agreement at trial.

(Footnotes omitted)

  1. This, with respect, somewhat overstates the evidence to which we shall refer in a moment.
  2. The appellant’s reference to religion in her affidavits was simply to say: “[d]uring my teens I realised I was a lesbian. I went to a Catholic school and was not able to express who I truly was so I turned to marijuana”. She proposed that the child attend a local non-faith based school. That evidence cannot support a finding that the Catholic religion was of importance in her life.
  3. In cross-examination of the appellant by counsel for the respondent, the following exchange took place:

[COUNSEL FOR THE RESPONDENT]: You’re aware from the material that has been filed in these proceedings that my client is proposing a particular school for your son, aren’t you?


[COUNSEL FOR THE RESPONDENT]: That school is a school that the two of you agreed when you were together.


[THE APPELLANT]: We spoke about it and [the respondent] had high intentions of doing it, so – and I agreed.

[COUNSEL FOR THE RESPONDENT]: Yes. And that’s the school that [Y] goes to?


[COUNSEL FOR THE RESPONDENT]: And you’ve got a Catholic background?


[COUNSEL FOR THE RESPONDENT]: And she has got a Catholic background?


[COUNSEL FOR THE RESPONDENT]: If I suggested to you that moving to [J Town] is an effective way to stop your son from going to the school that [the respondent] proposes because of distance, would you agree or disagree with that proposition?

[THE APPELLANT]: I agree with what you have suggested.

(Transcript 19 July 2018, p.83 lines 19–34)

  1. That evidence falls well short of a desire on the part of the appellant to raise the child as a Roman Catholic or for him to attend a Catholic school.
  2. The respondent gave the following evidence:


  1. I am seeking that an Order be made that unless otherwise agreed, that [X] complete his education at [G Primary School] and [G High School].
  2. My eldest son, [Y], is currently in Year 2 at [G Primary School] and will be moving through to [G High School] for his high school.
  3. [The appellant] and I had discussed [X]’s schooling prior to separation and it was always agreed that the children would attend the same school.
  4. Both [the appellant] and I live closer to [G Primary School] now than we did when we were cohabitating.
  5. [The appellant]’s father and grandmother are both Catholic. [The appellant] received a Catholic education.
  6. My family are Catholics, I was baptised Catholic and I received a mostly Catholic education.

(Respondent’s affidavit filed 21 June 2018) (Emphasis removed)

  1. This evidence establishes that there was no agreement as to a Catholic upbringing for the child. It follows that there was no evidence of discussion, let alone agreement, about baptism. As there was no mutual commitment to a religious upbringing that would necessarily involve baptism, it cannot be said that a baptism was an obvious aspect of the child’s upbringing.
  2. The respondent submitted that it could easily be inferred that the order for baptism was ancillary to the order for the child to attend G Primary School because baptism would be required before enrolment could take place. She relied on the following passage in the family consultant’s report:
    1. [Ms T Lysons] indicated a further dispute about which school [X] should attend. She reported a belief that the parents had previously agreed to for [X] to attend the [G] Primary School, in order that he would attend the same school as [Y]. She reported a belief that [X] would need to be baptised in order to attend the [G] Primary School.
  3. The basis of the respondent’s belief was not explained.
  4. When this issue was raised with the appellant, she informed the family consultant that she was opposed to baptism:
    1. [Ms B Lysons] identified that religion is a further issue in dispute between the parents. She reported that [Ms T Lysons] wants [X] baptised Catholic in order that he may attend the same school as [Y]. [Ms B Lysons] reported that she is not in support of [X] being baptised Catholic, and would prefer [X] to attend a local school, rather than having to endure the long commute required for him to attend [Y]’s school.
  5. It is reasonable to deduce that if the respondent had sought an order for baptism it most likely would have been opposed.
  6. Finally, the primary judge asked the family consultant questions on this issue as follows:

[HIS HONOUR]: All right. And if we look at, though – if it were that – because [the respondent] has made certain requests of me to make specific orders and that be a specific order as to where [X] goes to school, in effect now, during kindergarten, where he goes to prep to grade 6 and then where he goes to high school. With regard to health, that he be going to this particular health centre with a particular GP but obviously if that GP isn’t around, others within the practice will have access to the records so that that practice becomes the GP for [X]. And that if [X] is going to the particular school that he’s going to, it may be a – there may be a necessity for him to be baptised as a Catholic, which apparently both [Ms Lysons] have been baptised as Catholics themselves. So that if those specific orders were made and put in place, I’m just sort of wondering would that be some sort of way in which, “Well, you know, there you go, those are your main important things that have already been ordered, the two of you try and sort it out.” What’s your take on that?

[THE FAMILY CONSULTANT]: Yes, look, I certainly think that that would narrow the amount of topics that – that would be available for further conflict, I suppose. But from – from what I’ve read and what you’ve told me in terms of what you’ve heard so far, while it might narrow them – or, I guess, maybe not even narrow them – while it might take those three decisions out of the – the vast amount of things there would be to argue about, I suspect if the conflict is to the degree that we’re talking about at the moment, that there’s just an infinite number of other topics that people can find to argue about.

(Transcript 19 July 2018, p.97 lines 20 – 39) (Emphasis added)

  1. The respondent submitted that the two passages in the Family Report and the above exchange sufficiently raised the issue of baptism, at least in the context of it being required for entry to G Primary School and that it was open to the primary judge to make an order for baptism without expressly raising it with the parties.
  2. We do not accept this submission.
  3. First, we do not think the evidence established the premises set out in the submission, namely that baptism was essential if the child was to attend G Primary School. The source of the respondent’s belief that the child would need to be baptised was not revealed. Further, the evidence falls short of establishing that the child would need to be baptised into the Catholic faith, which was the order that was made as opposed to being baptised into any Christian faith.
  4. Secondly, and more importantly, we do not consider that the discussions with the family consultant and the question posed by his Honour reasonably raised the issue of baptism. After all, the words were “there may be a necessity” for baptism. That is hardly an indication that such an order was within active contemplation.
  5. Attitudes towards baptism and how or whether it should be undertaken range as widely as people’s views on religion. It cannot therefore be assumed that baptism can be easily regarded as merely a step ancillary to enrolment in a school, not unlike the purchase of a uniform or enrolment in particular activities. In short, we are not prepared to accept that an order requiring a child to attend a Catholic school, for example, necessarily involves baptism or that an order for baptism can be seen as being merely ancillary to such an order. The considerations range much more widely and involve the parties’ approaches to religion. Furthermore, education and religious upbringing are defined as discrete aspects of “major long-term issues” under the Act (s 4(1)). It follows that although in a given case it might be established that the two are interrelated, one is not automatically ancillary to the other.
  6. The appellant’s evidence, as best it can be gleaned, was that she opposed baptism. This is of some significance because under the orders that were ultimately made she had sole parental responsibility for the religious upbringing of the child. There was no evidence as to how she proposed to do that or as to how baptism as a Catholic might fit with those plans.
  7. We consider that the issue was of sufficient significance, especially for the appellant, that the prospect of an order being made for baptism should have been expressly raised before it was made. The oblique references to it in the evidence were insufficient to raise it as an issue under active consideration.
  8. In a different context, in White v Overland [2001] FCA 1333 at [4] Allsop J (as his Honour then was) referred to the need for the parties to ensure that all parties are cognisant of the issues in dispute. In a commonly repeated passage, his Honour then said:

Any practice of quietly leaving footprints in correspondence or directions hearings to be uncovered some time later in an attempt to reveal that a matter was always in issue should be discouraged firmly.

  1. The same may be said of footprints scattered in the evidence.
  2. We accept, of course, that in parenting cases, parties’ cases shift and turn as the hearing progresses and as the evidence develops along with, sometimes, the parties’ understanding of what may be in the child’s best interests. During the course of the proceedings, some issues may fall away and new ones may arise. Nonetheless, the question remains the same: namely, whether the person against whom a particular order is sought is sufficiently aware of the possibility of that order being made so that they are able to marshal a case against it.
  3. In many parenting cases the field of dispute is quite clear and many orders that can be made are obviously in contemplation from the orders proposed by the parties, the evidence and their submissions. In the present case, however, we do not consider that the footprints about baptism that have been left in the evidence sufficiently raised the possibility of an order for baptism being made.
  4. It follows that the appellant was denied procedural fairness and the order must be set aside. The respondent asked that the issue of baptism be remitted for rehearing. We are unable to do so because no application for such an order was made and, accordingly, there is nothing to remit.

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Jones v Dunkel Rule – what does it mean?

Jones v Dunkel Rule – what does it mean?

After the judge had finished summing up a juryman asked a direct question seeking further guidance upon the significance of the fact that the defendant Hegedus could have given evidence and did not. His question was: “Rightly or wrongly I have it in my mind that the defendant could have come here today and given evidence. Am I entitled to regard that in my mind as a weakness in the case of the defendants, that he did not?” The judge said: “Counsel for the defendant has the responsibility for the conduct of the defence. Counsel decided not to call evidence, and having directed you already with regard to that matter I do not propose to say anything more to you.” Counsel for the plaintiff then intervened and in the course of doing so referred to what Jordan C.J. had said in De Gioia v. Darling Island Stevedoring and Lighterage Co. Ltd. (1941) 42 SR (NSW) 1; 59 WN 22 , and submitted “when the matter goes to the jury then I do submit that the jury are entitled to take into consideration that here was a case where on the merits there was one person who could have told them the facts and they have no answer from that person”. Counsel for the defendants then submitted that the plaintiff had the onus of proof “and the fact that the defendant does not call any evidence does not absolve the plaintiff from proving her case”. The trial judge then gave a further direction as follows: “This is the position, the defendant having called no evidence it is a matter of common sense that you should accept the plaintiff’s evidence with respect to the facts as being accurate. The fact that the defendant Hegedus has not gone into the box and offered any explanation leaves you in this position, that you can accept the facts given by the plaintiff as proved, but the question then is whether you should find negligence against him as a matter of inference to be drawn from those facts, and that is the question for you, whether you think from the proved facts an inference of negligence ought to be drawn. If you think so, the plaintiff is entitled to your verdict. If, on the other hand, you think no such inference can be drawn then the verdict must go against the plaintiff and in favour of the defendant.” (at p312)

8. I regard this direction as incomplete and because the trial judge gave it as part of his answer to the juryman’s question and after counsel for the plaintiff had objected to the earlier part of that answer, I think O. XXII, r. 15, does not prevent the misdirection being taken as a ground of appeal. (at p312)

9. In my opinion a proper direction in the circumstances should have made three things clear: (i) that the absence of the defendant Hegedus as a witness cannot be used to make up any deficiency of evidence; (ii) that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence; (iii) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference. (at p312)

10. Taking the summing-up as a whole I think the first and second matters to which I have referred were covered adequately but I do not think that the third was referred to at all and in giving the guidance that the juryman sought not only was no reference made to it but the distinction made in the course of the summing-up between “proved facts” and “inferences” was emphasised and the impression was conveyed that once the jury came to the point of drawing inferences the defendant’s absence from the witness-box could have no significance. To use the words of Smith J. in Black v. Tung [1953] VicLawRp 84; (1953) VLR 629 : “The charge therefore withdrew from their consideration a matter which, if there was evidence proper to be submitted to them, they were entitled to regard as rendering more probable the inferences as to negligence and causation contended for by the plaintiffs” (1953) VLR, at pp 634, 635 . In my opinion this entitled the plaintiff to a new trial. (at p313)

11. The Full Court was, it appears, inclined to think that there was no case to go to the jury and being of that view it rejected the argument that the failure of Hegedus to give evidence could be relied upon to supply the deficiency of evidence. I agree with the Full Court that the failure of Hegedus to give evidence could not be used to fill gaps or to convert suspicion into inference but I treat this as a case where the failure to give evidence could be used to assist the jury in deciding which of the inferences open to them they should draw. (at p313)

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