Family law is a unique area of law, because of the amount of people that have access to the family law system in Australia at any given time. Disputes usually arise from husbands and wifes and mums and dads being unable to resolve their problems privately, and so the Family Law Act 1975 (Cth) gives everyone access to the Court for that assistance whether you are a self representer, legal aid funded or have a fancy pants lawyer.

Now the problem with those high priced fancy pants lawyers is that they tend to generate big bills particularly if one or both parties are up for the FIGHT! Often I hear from people who are so frazzled by the other parties tactics to litigate, litigate and litigate that the question is posed – Can I get my costs back in dealing with a highly litigious opposing number? 

Well it isn’t quite that easy…

The Rule…

In family law  the general rule that each party is responsible for their own legal costs. In matters where litigation can stretch for months and years (sound familiar?), this is always very significant factor.
Each time a party applies for the other party to pay some or all of their legal costs, they are required to establish to the Court that the circumstances of their case warrants a departure from that general rule. When considering this, the Court will take into account:

• the parties’ financial circumstances, and any legal aid grants;
• the position of the parties, and their conduct before the Court;
• if the proceedings were due to a breach of existing Court Orders; and,
• attempts made to settle the matter, and anything else the Judge considers relevant.

And for self representers it’s always scary to see in the other party’s orders and application that they are seeking costs. But in 99% of cases it’s just tactical hot air as the chance of getting costs is relatively low unless the party being asked for costs is being an absolute nuisance with endless and unnecessary applications.
A mother who last year made over 20 contravention applications comes to mind!
Funny thing was her excuse for a lawyer was happy to do them all at no doubt enormous cost to both her and the poor unfortunate self representing dad who had to respond to all of them!

Even when a costs order is made, the Judge dealing with the matter has to decide whether to make a cost order on a limited basis (scaled, or party/party costs), or indemnity costs (meaning that every dollar paid by the successful party will be reimbursed by the other side).

In the matter of Jaros & Calden, a case heard in the Federal Circuit Court in Adelaide in August 2019, the issue of indemnity costs were explored by Judge Heffernan:

“Such an order involves a very significant departure from the ordinary course and should only be made in exceptional circumstances. […] Some categories of matter in which it has been held appropriate to make an order for indemnity costs have been: where a party makes allegations of fraud knowing them to be false; or a party makes irrelevant allegations of fraud; evidence of particular misconduct that causes loss of time to the Court and to other parties; the fact that proceedings had been instituted and maintained for an ulterior motive; where proceedings have been commenced in disregard of known facts, or clearly established law; and, the making of allegations which ought never to have been made or a case based on groundless contentions. 

I am satisfied by virtue of […]the conduct of the father in the proceedings, his making of allegations which were not reasonably capable of belief, his deliberate non-compliance with orders of the Court; and what he must have well known to be the hardship caused to the wife in having to make the Application by reason of her difficult financial circumstances, that an order for costs on an indemnity basis is justified in this case with respect to the Application in a Case. Parties must be dissuaded from making baseless allegations, disobeying Court orders for tactical reasons, using children as weapons in a litigious war of attrition and wasting Court time. When all of those features are present, as they are here, they are matters which can tip the balance in favour of an exercise of the Court’s discretion to make an exceptional order for indemnity costs. They have done so on this occasion.” 

So in conclusion…

The matter of Jaros & Calden highlights that whilst indemnity cost Orders are uncommon and should not be expected by parties in family law litigation, a party who has been forced to incur legal costs in an unreasonable situation, may be able to seek costs from the other side.
Although good luck with getting a favourable outcome!

IT’S BEEN A BIG YEAR FOR PROPERTY!

2019 brought with it a range of NEW perspectives on property matters in the Federal Circuit Court. Simply reading the Family Law Act doesn’t give a crystal clear picture of how the court perceives a property issue that it has to rule on. Cases are unique and have variables and circumstances where Judges use the legislation as a base but then make what are called ‘common law’ decisions. In other words, these are decisions based on a judge’s reading of the Family Law Act (or any other relevant legislation) PLUS that Judge taking into consideration the unique circumstances of the matter before the court.

Sometimes judges in landmark cases or appeal proceedings make decisions which change the way a law can be interpreted or viewed. These are called decisions of precedence and once such a decision is made with that level of authority, it becomes the basis for how future decisions in a particular area of family law are made until the next decision of precedence overtakes it. The common law is constantly evolving while the legislation changes at a slower pace until it it changed by the parliament.

Let’s turn it over to our trusty court stickybeak Elroy the Eagle to update you all on some interesting decisions relating to property and spousal maintenance in the Federal Circuit and Family Courts from June till December in 2019.

Eaglets! 
Firstly let me wish you all a feather-full 2020 and may you start the year soaring high with a tremendous squawk.
Ok… enough of the bird humour 😉
2019 had some interesting and unusual moments for the court as they were presented with the usual challenging matters to adjudicate over. Frazzled Judges are thinking of bringing back wigs to compensate for all the lost hair pulled out in dealing with matters regarding property and money.
After all, money does make the world go round.

June 2019


WHERE FAMILY VIOLENCE AFFECTS A PARTIES SCOPE TO CONTRIBUTE

Court did not err in relying on family violence findings in earlier parenting decision in support of a Kennon contribution weighting, where the husband did not object at trial and where there was an abundance of other evidence of violent conduct of the husband
Remember Eaglets, to successfully raise a Kennon argument, the Court must be satisfied that: there was a course of violent conduct by one party towards the other which occurred during the marriage or relationship; and. this conduct had a significantly adverse or negative impact on the party’s contributions to the marriage.

EXPERT EVIDENCE ON PRIZED BOOK COLLECTION INADMISSIBLE

Property – Valuation – Affidavit of bookseller adduced by husband to value his book collection held inadmissible as expert evidence – Affidavit of wife’s alleged expert who was unavailable for cross-examination was inadmissible too – Order made for sale of books.

DENTAL BILLS AND SPOUSAL MAINTENANCE

Spousal maintenance – Urgent lump sum maintenance granted for wife’s urgent periodontal and dental work for which she was being pursued for payment – Section 75(3) (as to disregarding pension) not relevant – Periodic maintenance application adjourned for interim hearing.

July 2019

PROPERTY AND A LONG MARRIAGE – REZONE INCREASES VALUE

Husband’s initial contribution of land soared in value due to rezoning – Judge erred in assessing contributions – Increase in value was “unrelated to the efforts of the parties” – Williams [2007] FamCA 313 “somewhat overstated” importance of an increase in value of an initial contribution, at the expense of all contributions by the parties throughout their relationship.

SHORT AND SWEET RELATIONSHIP …AND PROPERTY

Property – Short childless cohabitation – Initial contribution of entire small pool – Judge’s crediting of interim maintenance payments to appellant against her property settlement (resulting in no settlement being payable) was in error – Contributions reassessed at 90:10 – No adjustment under s 90SF(3).

August 2019

TRANSFERRING PROPERTY TO RELATIVES

Property – Wife fails to prove that a property the husband transferred to his sister and brother-in-law shortly before the parties’ marriage was held on trust for the husband – Court accepts evidence of husband and transferees that the transfer was for good consideration.

PROPERTY – SOLE USE OF THE BEACH HOUSE

Property – Sole use and occupation – Application by husband for sole occupancy of a “currently vacant” beach house occasionally used by his estranged children dismissed – Applicant financially able to rent alternative accommodation but did not want to do so.
No sand between that fellow’s toes I’m afraid!

PROPERTY AND CRAZY INVESTMENT LOSSES BY SPOUSE IN LONG MARRIAGE

Property – 45 year marriage – Elderly parties – Wife’s $1 million mid-marriage inheritance – Pool of $1.74 million included $360,000 notionally added back for wife’s reckless investment losses (not considered under s 75(2)(o) as the waste was identifiable) – Proceeds of life insurance policies paid to husband’s estate added back too – Contributions assessed at 65:35 in wife’s favour.

September 2019

CHALLENGED VALUATION

Property – Valuation by single expert appointed by parties was disputed by wife – Wife was refused leave to rely on shadow expert’s report (her instructions to whom were tainted) – Wife failed to use shadow expert to guide her questioning of the single expert, instead seeking to call him as an adversarial expert.

HUSBAND WITH NO WILL

Property – Husband died intestate (no will) – Wife appointed both as legal personal representative by Supreme Court of NSW and legal personal representative of husband’s estate by the FCC pursuant to s 79(8)(a) of the Act and FLR 6.15.

WHEN YOU DON’T CONTRIBUTE MUCH

Property – Small pool – Wife was of low intellect and contributed very little – Contributions assessed as 75:25 in favour of husband – Finding that wife would never be able to work – Adjustment of 25 per cent in her favour under s 75(2).

October 2019

QUICK SALES AREN’T FAIR

Property – Court erred in dismissing husband’s application for injunction against wife, where parties’ daughter had told him of imminent sale – Injunctions made pending determination of husband’s s 79A application.

PRE-MARITAL PROPERTY

Property – Husband granted sole occupancy of his pre-marital property – Conflict between elderly parties – Wife had ready access to alternative accommodation – Husband’s financial support of her was to continue – Wife also ordered to remove her caveat.

VALUING OVERSEAS PROPERTY

Property – Real estate agent husband’s evidence as to the value of a jointly owned property in China was inadmissible pursuant to s 76 of the Evidence Act (the opinion rule) – Such evidence did not constitute an admission (adverse to his interest in the case) within the meaning of s 81 of that Act to which weight could have been given.

LATE SPOUSAL MAINTENANCE APPLICATION? – NO WORRIES!

In Blevins [2019] FCCA 1923 (11 July 2019) Judge Baker heard an Initiating Application filed in March 2019 for spousal maintenance of $400 per week, filed 23 years after the parties separated and 21 years after their divorce. The parties were 69 and 71. A final order for maintenance had been made in 1999, requiring the husband to pay $750 per month until 8 July 2009 … In 2009 a further final order was made for lump sum maintenance of $275,000.

November 2019

BIG INITIAL CONTRIBUTION AND PROPERTY SPLITS (9 YEAR MARRIAGE)

Property – No error in 80:20 contribution assessment to reflect husband’s initial contribution of $4.97 million (and wife’s $500,000) of a $12.5 million pool –
A nine year cohabitation here eaglets.

SHORT DE FACTO RELATIONSHIP NEEDS INJUSTICE

Property – De facto threshold – Applicant partner for less than 2 years found to have made “substantial contributions” by assisting with renovations but fails to establish “serious injustice” if the order sought were not made.

December 2019

PROPERTY RISES AND SPLITS

Property – Rise in value of property resumed by government treated as windfall for both parties – Trial judge erred by equating periods of separation to the ending of the de facto relationship for the purpose of assessing contributions –Contributions continued during the many separations.

INHERITANCE AND SPOUSAL MAINTENANCE

Spousal maintenance – Applicant wife had inherited $1.6m in 2009, partly spent on property purchases – $520,00 retained in cash, term deposits and shares – While an applicant need not exhaust all capital so as to satisfy s 90SE(1) thresholds, the property of this applicant was such that she was able to support herself – Application for interim maintenance dismissed.

DIVORCE IN DUBAI NOT CONTESTED

Property – Wife’s application for property and spousal maintenance orders permanently stayed on appeal where she had failed to contest divorce proceedings in Dubai (in which she could have applied for property settlement and alimony) – Res judicata can arise notwithstanding differences between laws.

SPOUSAL MAINTENANCE RELEASE…DENIED!

Financial agreements – Clause purporting to release husband from future spousal maintenance held to be void as it did not specify the amount provided for maintenance as required by s 90E of the Family Law Act.

INHERITED PROPERTIES

Property – Court erred by failing to hear and determine wife’s application for declaration as to her one-half equitable interest in family home which husband inherited from his father after trial but before judgment – Further error where inadequate weight given to wife’s contributions.

And there it is folks.

So keep in mind Eaglets that every case before the court is different and the law can only guide the judge particularly if your matter has some complexity or untried element to it.

See you soon with more updates from the court battlegrounds and don’t forget that crack team at the Legal Eagle are always happy to assist self-representers with court preparation and low cost document drafting from applications to affidavits.

Recently, I had a very angry client who assured me he was taking control of his life and had done much research on Google and had even bought some self help books to turn his post marriage life around.
He assured me that with new book at hand and Dr Google on standby he would have a rosy future.

As a lawyer, I often feel torn as to whether I should be providing just plain ol’ legal advice or instead advice on calming down and taking stock of unhappy emotions. Unhappiness and ongoing anger towards your ex is never going to get you good parenting or property solutions either at the negotiating table or at court.
But I think it needs more than a book or a slightly frustrated (but caring) lawyer to help that.

In our stressed out constantly connected world, never a day goes by without a self-help book, seminar, columnist or online blogger assuring us our problems can be solved, moods changed, and our perfection realised with just a few sure fire pieces of advice. 

You see “self-help” is primarily very big business.  

Lindsay E. Myers, a national healthcare consultant notes that the self-improvement industry is worth around $10 billion per year in the U.S. alone.  Year after year, people from broken relationships keep feeding their insatiable appetites for someone’s opinion on how they can better manage their minds and lives.  Myers’ notes that self-help has a high recidivism rate, with the most likely purchaser of a self-help book being the same person who purchased one already in the last 18 months.

Take a quick look at the current crop of gurus and soothsayers sitting atop of the Amazon best sellers list:

• • The Subtle Art of Not Giving a F*ck: A Counterintuitive Approach to Living a Good Life
    

• • Balancing in Heels: My Journey to Health, Happiness, & Making it all Work
  • Calm the F*ck Down: An Irreverent Adult Coloring in Book

Lord have mercy,  a “self-help” colouring-in book!

But I do wonder, if these tomes are so effective at solving our problems why do they usually result in a continuing stream of self-help purchases?  Perhaps we should put down the colouring-in book and instead  join the dots to deduce why self-help ain’t making us or our marriages and relationships better. 

You’ve probably noticed that little voice inside your head. The one that clings to petty grievances, or dislikes of someone or thing, like an tiresome spouse or partner making a daily visit to regurgitate the whining they did yesterday.  This mind noise can end up becoming part of our psyche.
Why can’t we just stop thinking about this nonsense and be more like our ever friendly, non-grudge holding…canine friends.
You see dogs never get addicted to their emotions and that’s probably why they make great companions (unlike that grumpy partner)

Dr Joe Dispenza, author of the best selling “Evolve Your Brain: The Science Of Changing Your Mind”, reminds us that most people are unaware of how addicted they are to their emotions‚ and how the brain perpetuates those addictions automatically.
In short‚ we become slaves to our emotional addictions without even realising it.   

As Joe states: “every time we fire a thought in our brain, we make chemicals, which produce feelings and other reactions in the body.” Our body grows very accustomed to these chemicals, like the ‘happy’ chemical dopamine which comes about with the joy of finding what you are seeking, or the satisfaction of enjoying a meal. 

Dr Dispenza warns us that we  do nearly everything we can, both consciously and subconsciously, to restore our familiar chemical balance. His belief  is that any interruption in the regular, consistent and comfortable level of our chemical makeup results in distress.  Consequently, changing those persistent moods and negative feelings just doesn’t feel right.   In fact, if your regularly angry and then have a ‘good’ day, your body will start to miss those anger related chemicals it is so use to. No need to wonder why certain people predominantly carry the same unhappy disposition. 

What if we were to be mindful and observe these negative patterns of thought‚ and start to rewiring the brain with new thoughts through some simple daily meditation?

Meditation can help break the cycle of unhappiness with ourselves and others. When you take the steps to stop the flow of negative ‘noise’ and imagine goodwill and compassion for others, you also become kinder to yourself.
You can also become a more composed, relaxed and better negotiator when it comes to sorting out your parenting and property matters. Or would you rather the lawyers do it in a “battle royal”… and charge you accordingly?

I like to remember how much I lived in awe of my wonderful bull terrier Scoobi, who we lost five years ago, and his approach to life. Even when chastised, he never held a grudge or carried an unhappy disposition. He just learnt his lessons and moved on with an ever present wagging tail. If I was ever unwell or angry he instinctively gave his unconditional doggy compassion, rather than worrying. He never spent a second regurgitating the daily mind noise we all seem to accept.
Overthinking would of ruined his nature. 

So Why Not Give Meditation A Chance.

I mean you don’t have to follow the meditation described below, for example some people just like to find some quiet time to sit and not think of anything for 10-15 minutes but it’s not as easy as it sounds folks when you have so much on your mind.

Meditation to remove negativity plus create goodwill for others

You will need around 10-15 minutes for this one, and remember to find a spot that is quiet and free from distraction.

1. Take the time to practice a little breath counting meditation for say 5 minutes, to calm the body and empty your mind. Remember, just focus on observing the in-breath and the path it takes, and the number (1-5) on the out-breath. Restart once you get to 5. If your mind starts wandering around the 3 mark, just remind yourself that 3 is the important halfway breath that must not be distracted! If thoughts do pop up that are distracting just acknowledge them and… send them on their way!
   Once you have finished this warm up, tell yourself that you are going to now meditate to remove the negatives and suffering experienced by ALL living beings (yes, not just yourself but even your ex you can’t stand)
   Say to yourself at the start:  May all beings be happy, fulfilled and receive my compassion.
2. On the in-breath visualise a white light entering your nostrils, streaming down your throat and filling your entire being. The white light is your positive energy. Visualise yourself  with the out-breath getting rid of present and future suffering of all in the form of black smoke, repeat this process until you feel you have exhaled all your present and future suffering, and have replaced it with something much better, a radiant joy.
3. You can use this to firstly deal with your own troubled headspace, but then use the same meditation to visualise others for whom you would like to send positive thoughts, both friends and enemies, to help rid their dissatisfactions and unhappiness. You’ll be creating some great karma in your life.
   Again, your ‘mantra’, if you get distracted is: for all beings to be happy, fulfilled and to receive your compassion.

Imagine this white light as having the same effect as a powerful antidepressant, except it’s a totally natural one. And practise this everyday so you can take charge of any odious negative noise and make it something positive.
For as Gandhi said:   

Happiness is when what you think, what you say, and what you do are in harmony.

I’m sure dear old Scoobi would have felt exactly the same way.

*With thanks to David Michie author of:  “Buddhism for Busy People”