Risks in lodging a Caveat.

The dangers of lodging a caveat to protect a purported interest in property are illustrated by the decision of Forrest J in Auricchio & Auricchio [2014] FamCA 240.

In applying Queensland State Law pursuant to the accrued federal jurisdiction of the Family Court, His Honour ordered that the wife forthwith take all necessary steps to cause the Queensland Registrar of Titles to remove the caveat from the title to the subject property and reserved the husband's costs.

The Court held  that the wife had not discharged the necessary evidentiary onus on her to uphold the caveat on the title.

Worth a look if you are contemplating placing a caveat on title to protect a client's interest.

Special Contributions to Property

For an interesting and recent discussion of the notion of "special contributions" see the Full Court decision of Hoffman & Hoffman [2014] FamCAFC 92.

FM Brewster as he then was ordered an equal division of property in a pool of about $10m after the parties' 36 year cohabitation.

In so doing, His Honour declined to accept any principle of special contributions.

The husband had asserted that his special skills and entrepreneurial flair were instrumental in the parties having the property they did at trial.

In dismissing the appeal the Full Court bench of Faulks DCJ, Murphy J and Watts J rejected the notion that there was a binding principle of law relating to "special contributions" or that there was any legitimate guideline in respect of such contributions.

Further that the nature of the category of contributions asserted by the husband was not of itself relevant but must be considered as with all other contributions made by each of the parties.

The Full Court held that "Read as a whole his Honour's reasons reflect a proper consideration of all matters relevant to the exercise of his Honour's wide discretion insofar as it specifically relates to contributions ".

"Cheer Squad"and other Affidavits

 It is not unusual in reported cases for Judges to make observations about aspects of practice.

The case of Baines and Crabal, an interim parenting matter, where judgment was delivered by Judge Scarlett in the Sydney registry on 30 April 2014 is a case in point.

In handing down judgment His Honour included some very worthwhile reflections on the purpose and use of affidavits in the family law jurisdiction which are worth quoting in full as I have done below.

His Honour's comments about the prevalence and weight attributed to what are colloquially referred to as "cheer squad" affidavits are particularly pertinent. 

 

"Affidavits

[38] Apart from the affidavits of the parties themselves, the parties’ lawyers have obtained supporting affidavits from members of the parties’ friends and family members.

[39] A practice has developed in parenting proceedings before this Court filing affidavits of this type, often referred to colloquially as “cheer squad affidavits. These affidavits are often short on facts but replete with supportive opinions, so that they read more like character references than statements of fact.

[40] These affidavits are often justified by reference to s.69ZT of the Family Law Act 1975, provides that certain provisions of the Evidence Act 1995 (Cth) do not apply to child-related proceedings. There is a mistaken view among some practitioners that the law of evidence does not apply at all in parenting proceedings. This is a serious error.

[41] Section 69ZT provides that certain Divisions of Part 2.1 of the Evidence Act 1995, Parts 2.2 and 2.3, and Parts 3.2 to 3.8 inclusive do not apply. The section does not exclude the operation of the Evidence Act 1995 in its entirety.

[42] The text book The Law of Affidavits⁸ by John Levingston states at page 7:

In Australia, an affidavit is defined as a written statement made by a person which is sworn or affirmed before a person authorised to administer an oath or affirmation that the contents of the statement are true, as a substitute for oral evidence.

[43] An affidavit must contain statements of fact that are relevant the case of the party who relies on that affidavit. Relevance is the criterion for admissibility, because s.69ZT does not exclude the operation of s.56 of the Evidence Act 1995, which states quite simply:

(1) Except as otherwise provided by this Act, evidence that it relevant in a proceeding is admissible in the proceeding.

 (2) Evidence that is not relevant in the proceeding is not admissible.

[44] Whilst it is true that s.69ZT of the Family Law Act 1975 provides at paragraph (1)(c) that Parts 3.2 to Part 3.8, including Part 3.3 which applies to opinion, does not apply, this should not be taken to mean that a deponent to an affidavit can provide a commentary on the proceedings or set out his or her views on what orders the Court should make. It is equally true that the deponent should not set out in the affidavit his or her innermost thoughts about the situation or how he or she reacted emotionally when hearing about certain events.

[45] Such matters cannot be relevant, and if they are not relevant they are not admissible.

[46] As a general principle, a Court will not place a great deal of weight on an affidavit from a close family member giving a ringing endorsement of the Applicant’s or Respondent’s qualities as a parent. Such affidavits are about as useful as a defendant facing sentencing on a criminal charge relying on a character reference from his or her mother.

[47] It is of no evidentiary value whatsoever to fill an affidavit from a relative with hearsay statements from the Applicant about his case, such as:

Mr Baines has disclosed to me that Ms Crabal’s immediate family did not treat Mr Baines with respect.⁹

Or:

At [Ms Crabal’s] sister’s wedding, Mr Baines was seated at the back table with all the children while every other adult was seated together. Mr Baines told me that he felt he was there as the baby sitter.¹⁰

[48] Endorsements of a party’s qualities in general terms without any detail whatsoever are of little or no evidentiary value, for example:

I believe Mr Baines is able to care for the children full time. He has always been there for the children and I know that he loves, encourages and supports the children. I know that the children mean everything to Mr Baines.¹¹

[49] Documents speak for themselves. The contents of a letter cannot be introduced by statements such as:

Ms Crabal and Mr Baines showed me a letter that Mr Baines had received from his then employer [omitted], I recall the letter said…¹²

[50] Similarly, it is of no evidentiary value for a deponent to provide the Court with his or her innermost thoughts, such as “On a number of occasions I have being (sic) concerned about Mr Baines’s ability to care for the children“ or “I would be concerned for the children’s wellbeing and safety if they were to return to live with Mr Baines“.¹³

[51] Another deponent provided evidence of sorts about what she did not do by stating“Despite my observations I did not contact the Police, as I did not want Mr Baines to further verbally abuse Ms Crabal“ or what she could not imagine:

I cannot imagine the trauma that this may have caused Ms Crabal and in particular the children…¹⁴

[52] When drafting affidavits, practitioners should consider whether the evidence contained in the affidavit will actually add some strength to the case of their client. Evidence does not become stronger just because the party tells someone else who then faithfully repeats it all in an affidavit.

[53] It should be clear that the opinion of an interested party about a situation is usually not relevant, and if evidence is not relevant it is not admissible. Irrelevant evidence will not be saved even by the most generous interpretation of s.69ZT of the Family Law Act 1975."

 

 

 

The threshold test in spousal maintenance

Recently I had cause to revisit the issue of the threshold issue in spousal maintenance. 

The matter was looked at by the Full Family Court in the case of McCrossen and McCrossen [2006] FamCA 868.

A wife who wanted to become a teacher failed in her bid for spousal maintenance because the court found she could support herself by using her existing skills.

The wife had been out of the workforce since 1996, but had last worked as a section head in the public service. The wife gave evidence that she wished to be retrained as a teacher rather than return to her former occupation. Expert evidence was given on behalf of the husband that she could get a job in the public service on a higher salary than she would receive after retraining as a teacher.

The Court held that the Family Law Act requires that a party establish that they are unable to support themself, not that they are unable to support themself in a particular endeavour as opposed to another which may be available to them. Accordingly the wife did not satisfy the threshold test for eligibility for spousal maintenance.

This case has very practical implications for a party seeking support from the other after separation.

The National Personal Properties Security Register

The Personal Properties Securities Act(PPSR) came into full effect on Friday 31 January 2014 after two years grace.

The new national register has replaced 24 state based registers.

The PPSR is now the single source of data nationally  for proof of ownership for any personal property, ranging from cars, to mortgages and equipment.

The register has created additional red tape for businesses.

According  to today's Financial Review from which this article is drawn, business groups and lawyers say  that in practice the legislation has introduced new definitions of ownership which have led to confusion.

While the idea of a single register seems to generally have been welcomed, the changes are apparently having an impact not readily understood.

Insolvency lawyer Morgan Kelly of Ferrier Hodgson is quoted as saying that he had dealt with several cases in the past two years where companies were unaware of the new laws and lost title to their equipment.

It would clearly be prudent for anyone who may be affected by the new laws to seek advice or try to acquire some knowledge of the new laws to protect their position.

Perceptions and Stories

Eric and Fran are in conflict.

They've always had a hard time working together, but lately the frustration and tension has spilled over to colleagues and family members on each side.

Fran catches you first, her story emerging in messy, manic detail. Eric, she claims, is acting unreasonably. He is incompetent and he is being childish.You know you are only hearing Fran's side of things, but still, you have a hard time imagining how Eric could explain his behaviour. It seems inexcusable, and you tell Fran she is right to be so upset.

Eric calls you later that day. He says he doesn't want to speak ill of Fran, but demands that you hear his version of what happened. You listen, as Eric describes what "really happened, " and you soon find yourself confused. Eric, it seems, is the real victim here. You try to resist the urge to take Eric's side, but give in: "you are right to be so upset, you tell him.

Moments later, you get an email from a mutual friend, who asks if you know anything about what is going on between Eric and Fran. " I've spoken to both of them," you write, and then realize that you simply haven't figured out how to reconcile what you've heard so far. You know both Fran and Eric well enough to know that neither is lying, or even intentionally shading the truth.And yet their descriptions of the dispute could not be more different.

The Brain as a Story-Based System

What's going on? Artificial intelligence researcher Roger Schank puts it well: "Human memory is story-based." Far from simply reflecting or recording reality, our minds engage in a complex interplay between what we perceive and what we already know, unconsciously adding and deleting information in the service of the story. Disputes occur when the stories we tell about what's happening-who's right,what's fair, who's to blame-diverge.Each side retreats to their own narrative which describes their experience of "reality," and the dispute intensifies.

Extracted from Heen & Stone" Perceptions and Stories"; The Negotiator's Fieldbook at p 343.

Property Market

Almost weekly if not more frequently we are being made aware of surveys predicting rises in property prices  for 2014.

In today's Financial Review we are told that property is in for a bumper year, with higher prices, increased building and more jobs according to a new survey.

The bullish outlook, based on the views of 2500 property professionals, is apparently the strongest recorded in the four-year history of the Property Council-ANZ Property Confidence Index.

Property Council chief executive Peter Verwer said expectations of house-price growth and new housing construction were driving a strong increase in confidence.

ANZ head of property research Paul Braddick said momentum would continue into 2014.

More solid house-price growth is expected in 2014, led by Queensland.

Mr Braddick predicted the national median house price would rise around 6 per cent , with rises of up to 7.5 per cent in Sydney and Brisbane.

All sectors are expected to be positive.

It is expected that the upturn will flow through to the broader economy, through employment in construction, through increased stamp duties for government and from the wealth effect on consumer spending.

This excerpt is based on an article entitled "Housing bulls run rampant into 2014", in the property section of the AFR of 16 January 2014.