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Appeal Pathways in WA : De facto vs Married Relationships

Posted on by madeleinedeleo

I have recently read an article in the August 2016 Ex Curia magazine published by the Family Law Practitioners Association of Western Australia, by Vince Bradley of Lavan Legal. It explores the ramifications of the decision CDW v LVE (2015) WA SCA 247 (“CDW v LVE”) .

 

I have only been involved in 1 appeal. I did some research on the practice and procedure of appeals however it has been some time since this occurred and I run the risk of forgetting what I learnt. When I read this article I saw a good opportunity to revisit this topic. As a junior practitioner we would seldom expect to use this knowledge. However my view is that most of what we know we will not use. Better to be a know it all than a know nothing.

CDW v LVE (2015) WA SCA 247 (“CDW v LVE”) was heard in the Supreme Court on 12 August 2015 before Martin CJ, Buss JA and Mitchel J and the judgment was delivered on 4 December 2015.

There has been previous parenting proceedings between this de facto couple. Proceedings were commenced again in 2014 on the ground of changed circumstances. Magistrate Andrews determined that the circumstances had not adequately changed to justify re-opening the matter.

The Father appealed this decision ot the Court of Appeal, who decided that they did not have jurisdiction. This was confirmed at paragraph 68 of the judgment where their Honours’ stated: “For these reasons, there can be no doubt that the order, the subject of this appeal was an interlocutory order made by a Family Law Magistrate in the Magistrate’s Court of Western Australia. In the exercise of non-federal jurisdiction because the order was interlocutory, no appeal lies to this court. Any appeal from the Court lies to the Family Court of Western Australia under s 211 of the Act, and unless and until a class or classes of decree subscribed in regulations made under the act, it can only be bought with leave. This appeal is therefore incompetent, and must be dismissed. “

The recent decision of MCG v JM [2016] WASCA 75 (“MCG v JM”) has been decided in the wake of the decision in CDW v LVE.

 

*****to finish

 

 

 

 

Posted in Family Law

Bias in Family Law cases

Posted on by madeleinedeleo

This post is my attempt to digest the Charisteas decision, summarised briefly below. My understanding is that it is very rare for a judicial officer to be found to have bias. This issue is of particular interest to me as a matter I have had some involvement with against a self-represented litigant, has raised these issues. An application for recusal on account of bias was made.

 

General Authority

This paragraph will set out the general authorities for bias, which applies to all cases irrespective of subject matter. The next section of this post will deal with Family Law bias cases.

 

The “relevant legal principles” were recently summarised by the New South Wales Court of Appeal in Crossman v Sheahan [2016] NSWCA 200. Relevantly, Basten JA said :
21. The test for disqualification on the basis of a reasonable apprehension of bias is not entirely easy to apply. It contains three discrete elements, which are interrelated. Thus, in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ stated:
6. … a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle. …

8. The apprehension of bias principle admits of the possibility of human frailty…. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. … Only then can the reasonableness of the asserted apprehension of bias be assessed.
22. The three elements are (a) what the fair-minded observer might apprehend, (b) whether the judge might not be impartial and (c) the reasonableness of the apprehension. The third element, dealing with the reasonableness of the apprehension, requires a “logical connection” between the matter relied on as an indicator of pre-judgment and the feared deviation from impartial determination of the case before the court. It imposes a constraint on what might otherwise be a low (in the sense of undemanding) standard for disqualification. On one view, the third element requires a degree of clear thinking on the part of the hypothetical “fair minded lay observer”; on another view, the logical connection must be established to the satisfaction of the reviewing court, or the judge dealing with a recusal application. That is, on the latter view the test involves an objective assessment of the reasonableness of the apprehension, rather than determining whether the fair-minded lay observer “might” perceive a logical connection.

23. It is the latter approach which the High Court undertook in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 …

24. …

25. In order to consider whether there is a logical connection between the opinion said to give rise to prejudgment and the proceedings to be determined, it is necessary to identify the issues in the proceedings. That exercise is not necessarily straightforward. Where the question is raised before the commencement of the proceedings, it would usually be appropriate to have regard to the pleadings in a civil matter. However, the issues in dispute may be refined (or even expanded) in the course of proceedings. It would be inappropriate to take a narrow or over-refined view of the issues as pleaded.

 

Johnson v Johnson(2000) 201 CLR 488 (“Johnson“) and Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner“). The passages are lengthy, but it is helpful to reproduce them (with footnotes omitted):
61. The principles which apply in respect of disqualification for actual or apprehended bias are clearly explained in two decisions of the High Court – Johnson and Ebner. In the former case the plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) set out the principles relevant to apprehended bias at 492-493 as follows:
11. … It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.

12. That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision”. The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.

13. Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly(1989) 167 CLR 568, Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them. (footnotes omitted)
62. The test to be applied was further expanded by the High Court in Ebner where the plurality (Gleeson CJ, McHugh, Gummow and Hayne JJ) said at 348:
The principle to be applied

19. Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.

20. This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.

21. It is not possible to state in a categorical form the circumstances in which a judge, although personally convinced that he or she is not disqualified, may properly decline to sit. Circumstances vary, and may include such factors as the stage at which an objection is raised, the practical possibility of arranging for another judge to hear the case, and the public or constitutional role of the court before which the proceedings are being conducted. These problems usually arise in a context in which a judge has no particular personal desire to hear a case. If a judge were anxious to sit in a particular case, and took pains to arrange that he or she would do so, questions of actual bias may arise.

22. The particular principle or principles which determine the grounds upon which a judge will be disqualified from hearing a case follow from a consideration of the fundamental principle that court cases, civil or criminal, must be decided by an independent and impartial tribunal.

23. Bias, whether actual or apprehended, connotes the absence of impartiality. It may not be an adequate term to cover all cases of the absence of independence. (emphasis added)

Family Law bias cases

Apprehended bias : Batey-Elton & Elton [2010] FamCAFC 79

Strahan & Strahan (Disqualification) (2009) FLC 93-414 (“Strahan“) the Full Court (May, Boland and Thackray JJ) at paragraph 5 of their reasons referred to these two decisions as follows:
It will be noted that the plurality in Johnson considered it unnecessary to undertake a detailed analysis of the principles relating to apprehended bias, preferring to rely on the test of “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.” The plurality in Ebner articulated a two step process to be used in applying that test in individual cases. The first step is the identification of the matters said to give rise to the apprehended bias. The second step requires consideration of the “logical connection” between the matters identified and the possibility, real not remote, of a deviation from the course of deciding the case on its merits.

At [23] of Charisteas, Walters J states: 

23 As explained in Ebner and Strahan, the Court must take certain steps in considering an application of this nature:
The first step is the identification of the matters said to give rise to the apprehended bias. The second step requires consideration of the “logical connection” between the matters identified and the possibility, real not remote, of a deviation from the course of deciding the case on its merits.

[24] I reiterate that the test for apprehended bias is whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. “The question the judge is required to decide”, therefore, becomes an important matter.

25 As submitted in the recusal submissions at [5] to [7], further considerations are also relevant. For example:
a) the fair minded lay observer –
i) is reasonable;

ii) is not unduly sensitive or suspicious, but fair-minded and informed;

iii) is willing and able to consider “the whole circumstances”; and

iv) understands that a judicial officer’s training equips him or her to discard irrelevancies;
b) the test for apprehended bias is an objective test of possibility (as distinct from probability), but the possibility must be real and not remote;

c) the judicial officer should avoid any tendency to be over-ready to disqualify himself or herself from presiding over an appointed trial; and

d) the case for disqualification must be “firmly established”.

 

Posted in Family Law

Charisteas and Charisteas [2016] FCWA 106

Posted on by madeleinedeleo

This case was heard by Judge Walters. There was 1 Applicant and 8 Respondents. The case was heard in September 2016 and judgment was delivered in November 2016.

The Applicant was represented by Perth barrister Gillian Anderson. The first Respondent was represented by Senior Counsel Peter Dowding. The second, third, fourth and fifth respondents were represented by Perth barrister Steven Penglis. I note Mr Penglis does not ordinarily practice in Family Law and his areas of expertise originate from Commerical Law.

This case was described by His Honour as having an ‘unfortunate’ history. There has been extensive litigation with trials and appeals. His Honour referred to the following to summarise the history of the matter:-

a) the Full Court’s decisions in VC & GC and Ors [2010] FamCAFC 62 and AG and Ors & VC and Anor [2013] FamCAFC 60;

b) Justice Crisford’s decision in Charisteas & Charisteas [2012] FCWA 1; and

c) Judge Walter’s decision in Charisteas & Charisteas [2015] FCWA 15.

The adult children of the Husband and Wife have become parties, and are the sixth, seventh and eight respondents (self-represented) “the adult children”.

A trial was conducted in August 21016. In September 2016 there was an interlocutory hearing for orders to be made pending the delivery of judgement. 2 days before the September 2016 hearing, the adult children filed an application for Judge Walters to recuse himself on account of bias. All 8 respondents supported the recusal application. the applicant opposed it.

His Honour summarised the following for dismissing the recusal application:-

a) There had been, in my view, and in the circumstances of the complex proceedings before the Court, “an inappropriate and unexplained delay which … is unconscionable in relation to an application for recusal”. I added that the recusal application had been “made far too late in the context of the current proceedings”.

b) Even if the recusal application had not been made too late in the context of the current proceedings, it is without merit. In this regard, I said that the legal principles (some of which had been discussed in the recusal submissions) include the following comments from the decision of Mason J in Re JRL: Ex Parte CJL (1986) 161 CLR 342 (“Re JRL“) at 352 (references omitted):
… It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party.I pause at this stage to observe that, since Mason J made those comments, the test has changed to what can be described as the “double might” test (see below). In any event, his Honour continued:
… There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established… Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

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The Sellout by Paul Beatty

Posted on by madeleinedeleo

About 1 month ago I picked up a book from the front table of Crow Books. The one line blurb from the Guardian caught my eye: “The most lacerating American satire in years”. The front and back cover contains replicates of a small image of a black man wearing a matching white cap, white pants and white boots with a pink long sleeve shirt, holding a lit, yellow lantern.

I struggle finding books I like. I am always trying to bring back the love of books I had when I was a child, when I would go to libraries and second-hand bookshops and pick up armfulls of books and tear through them, and be back the next weekend. Now, there is always something tedious or repetitive about what I’m reading. When I saw this title, I must say the publishers did their job well in drawing people in. I confess, I choose books purely superficially. They either have to be in the literary fiction area, or there has to be an amazing cover that makes me think I would be missing out on some contemporary classic.

It has taken me about a month to get through this quite short novel. Now I did not find this book very “laugh out loud” funny, though it has its moments. I’m glad that I took so long with this book, because as the weeks have gone by and I come back to read a chapter or two, in the time between reading bits and pieces pop into my head. It’s really like nothing else I’ve read.

As a brief summary, the book is in first person. We do not know the name of the narrator, known only as “Me”. The beginning of the novel sets the scene of a town of Dickens which lies somewhere in Los Angeles, a black agrarian ghetto. And I mean agrarian in the traditional sense, as the narrator is a farmer and devotes much of his time tending to his crops and his animals. He has been brought up as a social experiment by his father who is a sociologist obsessed by black identity and racism. It is difficult to convey just how wacky these experiments are, though by one example which made me laugh, his father makes him stand in a busy intersection with money sticking out of his pockets and his father then walks up to him and mugs him. He beats him and takes the money, and people starting joining in with his father to assist him in “ass kicking” his son, who all assume he is the mugger. “One woman put me in a well-execute and, in retrospect, merciful, near-naked choke-hold.” When he regained consciousness his father was handing out surveys to ask them how satisfied the bystanders were in their act of selflessness out of 5 from ‘not at all” to ‘very satisfied’.

His Father dies early in the book, leaving big shoes for “Me” to fill. His Father, known as the “nigger whisperer“, is famous among black people as an advocate and someone who truly understands black identity. “Me” is more concerned with tending to his crops, and perfecting his mandarins. He has a friend that follows him around, “Hominy”, who was the black child actor from the Little Rascals. Hominy is somewhat childlike and his self-worth supported only by his childhood fame.

The town of Dickens is, without notice, removed from the map. Almost overnight, “Me” notices that streetsigns no longer refer to it. What was once a proud slum that no one else would go near, has suddenly been erased. “Me” finds Hominy “buck naked and hanging by his neck from a wooden beam,” with an erection described as “his brown member spouted like a twig from a frizzy snowball of shock-white pubic hair.” He is still alive, trying but failing to end himself. Hominy later explains that along with the silent eradication of Dickens disappeared Hominy’s fan base and his sense of relevance. Hominy says that that day used to be a “whippin’ day” under slavery. “Been this way ever since we first set foot in this country. Someone’s getting whipped or stopped and frisked, whether or not anyone done anything wrong. So why not make it worthwhile and act a fool Wednesday if you gonna get beat on Thuraday, right massa?“. Hominy starts to assume the role of slave/master (or “massa”), and from then on we have our story.

“Me” finds a way to make his own statement about black identity and racism in America. He starts by segregating a bus. He then proceeds to segregate the entire of Dickens. Instead of a revolt against this monemental change, no one notices. The only thing that changes is that there is an increase of peace and the schools are doing better than ever.

It is remarkable this book was short-listed, let alone won the Man Booker prize. It is the first American novel to do so, and the Booker prize is traditionally awarded to more traditional books, not satirical and to many, offensive books about uniquely American issues.

The timing of this book is unquestionable. There is no doubt that the book would not have attracted the same momentum if the Black Lives Matter movement was not such an incredible force today. Some reviewers have said this in a critical way, as though the book has cheated its way to the Booker Prize in some way and it is riding on the coattails of this movement. My view is that any form of art, whether it is a book or something else, cannot be viewed in isolation. There is nothing wrong with this book being a product of its time. That is what art is all about.

Line for line this book throws at you stereotypes, assumptions and sometimes it bluntly says it like it is. For me, this book has been completely refreshing and exactly what I have been looking for. I am looking for writers who are bold. Paul Beatty has reached his hand through the pages of this book to slap us across the face so we will listen and remember. A very important book and essential reading.

Posted in Family Law

Jones and Hill [2016] FCWA 87

Posted on by madeleinedeleo

Family Court of Western Australia, Perth

O’Brien J

14 October 2016

Representation:

Applicant Father: Mr R Klimek; Klimek & Co

Respondent Mother: Mr R Crane ; Friedman Lurie Singh & D’Angelo

Background

This case involved a dispute between the Father (Jones) and the Mother (Hill) in relation to parenting arrangements for their 2 daughters who were approximately 7 and 9 at the time of judgement. The parties were also unable to resolve property settlement.

The parties had been in a de facto relationship from about 1997 to 1998 until they separated in the end of 2011. They met in the United Kingdom and moved to Australia in 2002.

The Father was about 47 and the Mother 41 at the time of judgement. The Father was employed full-time as a nurse and the mother was completing relief work whilst studying. Both parties were born in England, met in England in about 1995 and began living together in 1997 or 1998.

In relation to children’s orders, the Mother was seeking to relocate with the children to the United Kingdom which the Father opposed. Margaret Cherubino was appointed as single expert witness.

In relation to property orders, the net asset pool excluding superannuation was approximately $90,000. The parties’ respective positions were $22,193 apart.

His Honour’s criticisms of the parties’ conduct

  1. A limited number of issues were resolved prior to trial. The judge commented that “the state of preparation of the matter meant that the relief sought…remained ill-defined by the commencement of trial”. Counsel had not considered that Father’s date of separation would have meant that the Mother’s Form 1 Application had been filed out of timeThe Father was requested to particularise his application for children’s orders. A further Minute of Proposed Orders was filed seeking in relation to relocation:-
  2. In the event the court permits [the mother] to relocate with the children to the United Kingdom, then this Court make parenting orders: (a) as it deems in the best interests of the children with a view to them spending time with and communicating with [the father] to the maximum extent possible whilst [the father] continues to reside in the Commonwealth of Australia; and (b) in the event he also relocates in the future, then in equivalent terms to those sought by him in these orders with respect to the parents both continuing to reside in the Perth metropolitan area, save and except the children live equally with each parent.
  3. This was criticised by the judge as it did not adequately particularise the Father’s application as it did not set out what the proposed arrangements would be in the event the relocation was granted. Secondly the second limb of the proposal was criticised as it proposed a significant to the arrangements to equal time “at the best of the father, if he chooses to move to England”. The Father was directed to against further particularise his application.
  1. Secondly, the parties were criticised by not preparing a joint schedule of assets and liabilities.
  2. Thirdly, the Father’s solicitor was criticised for failing to comply with the duty of disclosure. The Wife’s solicitor had said that they were inhibited in preparing a joint schedule as the Father had not complied with the duty of disclosure. The trial judge referred to the Father’s undertaking of disclosure and noted that no documents from 2016 had been included.
  3. Fourthly, the Father’s solicitor was criticised for filing an affidavit 400 pages long for an “uncomplicated case” [71], despite previous directions by the Honourable Justice Walters. The Father’s solicitor then acknowledged that many annexures were irrelevant and the father was ordered to file a schedule identifying the exhibits he sought to be received into evidence. Out of 92, he sought to rely on 43.
  4. Fifthly, the Father sought to tender during the Father’s evidence in chief, a report prepared by a psychologist. The psychologist was not the treating psychologist and had been consulted for the purpose of preparing the report. the report had not been disclosed to the mother’s solicitors, although the father’s solicitor claimed the father had sent a copy directly to the mother. at[76] his honour commented, “even allowing for the apparent misunderstanding by many practitioners of the scope and operation of Divsion 11A fo Part 5 of the Act, the approxch adopted on behalf of the father was remarkable”. the report was notadmitted.

Parenting Orders

It was agreed that there be ESPR and the children live with the Mother.

The Mother proposed to relocate to England. The Father opposed this and sought that instead the children continue living with her in Perth and that the children spend time with him on a regular “rolling” arrangement based on his work roster. The Mother proposed that if she remained in Perth that the children spend time with the father each alternate weekend and each intervening Wednesday and some other time as agreed.

In the event the relocate was permitted, the Mother sought that the children spend time with the Father in England ini each of the English term holidays and Summer holidays.

Property Orders

There was a very modest asset pool of $89,013 plus chattels and nominal sums in bank accounts. The Father also had $74,000 in superannuation and the Mother had $8,193. THe $89,013 comprised of the proceeds of sale of the FMH.

The Father sought that the Mother keep the proceeds of sale. The Mother sought that in addition to the proceeds that the Father pay her $22,000.

Children’s Orders Decision

As ESPR was agreed, the judge was required to consider whether equal time with each parent would be in the children’s best interests and reasonably practicable. If not, then the judge is required to consider whether substantial and significant time would be.

There is no presumption either way in relocation cases. The children’s best interests remain paramount. There does not need to be ‘compelling’ reasons for the move. The Court must balance the children’s best interests with the proposed relocating parent’s right to freedom of movement (query where freedom of movement comes under the FCA).

The Court requires evidence of the benefits of the relocation, which includes the welfare of both the parent and the children. The proposed relocating parent “is not required to justify her desire to move to England, beyond the scope of the Court being satisfied that hte application is bona fide and not motivated by some ulterior consideration” [92].

Section 66C guides the consideration of best interests, for primary and additional considerations.

Neither party proposed equal time. His Honour concluded it would not be in the best interest of the children. it was clearly not practicable if the relocation was permitted, and not practicable in Perth iven the father’s work commitments.

Leave out of time

There remained the issue of whether the limitation date had expired. Section 205ZB requires the application to be commenced within 2 years of the date of separation. Consent cannot be given for leave to apply out of time for de facto relationships. Consent can be given for married couples, pursuant to section 44(3) of the Family Law Act 1975.

Some discussion was had in relation to applying out of time. The application must first establish that hte applicant would suffer hardship (generally interepreted as ‘substantial detriment’ and not merely the loss ofte opportunity to litigate) if leave were not granted. Secondly, the court must consider whether prima facie there is a viable claim for property settlement. These are linked and the stronger the claim the stronger the likelihood of hardship. This decision is still ultimately discretionary. There is a wide discretion under section 205ZB(2).

Property settlement judgement

At [67] His Honour commented about the general approach. The Court’s power is “not confined by any steps or stages”. The Court must still however satisfy the legislative requirements of identifying assets and liabilities, assessing contributions and section 205ZD(3) factors. At [68] he says the Court is required to assess respective contributions “holistically”. He is in favour of allotting a percentage.

At [69] he remarks that in most cases the Court assesses contributions in a global sense, however the Court remains entitled to assess contributions on an asset by asset basis.

My thoughts

One of the commonly used terms of phrase that lawyers tend to use when they actually mean “fuck you”, is to preface something by saying “with respect”. O’Brien may have enjoyed adding a section of his judgment devoted to the many flaws of Richard Klimek entitled “With Respect”.

 

I can’t believe an asset pool sub $100,000 could have gone to trial, where the differences between the parties was less than $20,000. That would be my major criticism of how this case was run by both solicitors. Family Law is hideously expensive and it is cases like these that give rise to the image of Family Lawyers as money-hungry vampires that live off the pain and suffering of others.