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ADVOCACY IN THE FEDERAL MAGISTRATES COURT: Drawing the Appropriate Material

ADVOCACY IN THE FEDERAL MAGISTRATES COURT: Drawing the Appropriate Material. By Federal Magistrate Margaret Cassidy. Acknowledgment.

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ADVOCACY IN THE FEDERAL MAGISTRATES COURT: Drawing the Appropriate Material

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  1. ADVOCACY IN THE FEDERAL MAGISTRATES COURT:Drawing the Appropriate Material By Federal Magistrate Margaret Cassidy

  2. Acknowledgment • I wish to acknowledge that I drew some of the material for this presentation from a paper provided by Miss Barbara Tynan, (Barrister, as she then was) now a Queensland Magistrate. • Miss Tynan’s paper was presented at the Family Law Residential 1996 (11 – 14 July 1996).

  3. Affidavits • Advantages • Disadvantages

  4. Inadmissible Material in Affidavits – Why Not? • Constitutes a failure in your duty to the Court; • A Judge will place little or no weight on that material; • Assumptions that Judges will be influenced favourably should be (and probably will be) punished rather than rewarded; • Fail to prove the point by admissible material; • Creates confidence crisis for the client; • Why forewarn the opposition of material available to you in cross examination?

  5. Inadmissible Material in Affidavits – Why Not? (cont’d) • The cost of litigation: • Time spent drawing and engrossing inadmissible material; • Cost to client for drawing and engrossing inadmissible material; • Opponent’s time considering inadmissible material; • Evoking responses in kind; • Court time dealing with objections; • Lengthened cross examination; • Increased number of witnesses.

  6. Inadmissible Material in Affidavits – Why Not? (cont’d) • Time and effort spent for no reward; • Risk of a costs order; • Professional pride.

  7. What Else is There? • Interrogatories – s.45 of the Federal Magistrates Act 1999 and Part 14 of the Federal Magistrates Court Rules 2001; • Discovery – s.45 of the Federal Magistrates Act 1999 and Part 14 of the Federal Magistrates Court Rules 2001; • Notice to produce – Rule 15A.17 of the Federal Magistrates Court Rules 2001.

  8. What Else is There? (cont’d) • Notice to admit – Rule 15.31 of the Federal Magistrates Court Rules 2001; • Subpoena – Part 15A of the Federal Magistrates Court Rules 2001; • Other witnesses; • Expert evidence – Division 15.2 of the Federal Magistrates Court Rules 2001; • Conferences of experts; • Notice to cross examine.

  9. Costs • The risk of too little: • McGrath & McGrath (1988) FLC 91-922 p.76,678. • The risk of too much: • Ensabella & Ensabella (1980) FLC 90-867.

  10. McGrath & McGrath (1988) FLC 91-922 “ [76,678] …The initial affidavits filed on behalf of the wife in support of her application are of an abysmal standard. Her first affidavit in support of her property application failed to recognise many of the matters which the Act requires the Court to take into account in such proceedings and those issues on which it does touch are dealt with in an appallingly superficial manner. … it is clear that neither party's case received the benefit of the attention and professional competence which members of the public are entitled to expect from qualified members of the legal profession. … If either of the parties wishes to make an application for an order for costs against either of the solicitors, then it is appropriate that that party be advised and represented by other solicitors for the purposes of the application and I propose to grant leave to both parties to restore the matter to the list for the purpose of seeking such orders for costs as they may see fit.”

  11. Ensabella & Ensabella (1980) FLC 90-867 The husband sought an order for costs against the wife in respect of costs said to be unnecessarily incurred in responding to the wife’s affidavit in support of her custody application. The wife’s affidavit was 43 pages in length. The husband’s affidavit in reply required some 21 hours of conference time to prepare and was some 32 pages in length. Justice Fogarty in ordering that the wife pay one half of the husband’s costs of preparing the affidavit in reply said: “[75,503] … When one turns to the affidavit itself it is impossible in my view to conclude other than that it was a grossly unreasonable affidavit. It dealt in exhausting detail with a number of matters which could not really be said, on any view, to be relevant to the ultimate issue of custody and it dealt at inordinate length with matters of varying shades of relevance. … [75,504] … In my view, many of the matters contained in the wife's affidavit were irrelevant on any view and ought not to have been included. Substantial portions of the affidavit dealt in inordinate and unnecessary length with matters which were only of marginal significance. …” (Acknowledging subjective judgements necessarily made as to content and style of an affidavit, His Honour continued) “[75,505] … But there has to be an outward limit to such matters and it seems to me that upon any reasonable test this affidavit was prolix and contained many matters of detail which it was unnecessary and unreasonable to include. … This placed the husband and those acting for him in an awkward situation. It was difficult for them to avoid answering at least most of the material and that in my view involved them in substantial additional and unnecessary expense. …”

  12. The Preparation of the Case “Given that the art of advocacy is about persuasion every endeavour to persuade should be made from the outset and not left until the final address.” Bryant, D., “Preparation for and Conduct of a Trial Involving Property and Financial issues”, Fifth National Family Law Conference Handbook, BLEC, Perth, 1992, p. 179.

  13. The Rules are the Same • The questions for the practitioner preparing an affidavit for trial are: • What are the applicable procedural rules? • What are the applicable evidentiary rules? • What factors in the legislation apply to this case? • What do the cases say on this issue? • What do I wish to prove? • How can / may I prove it?

  14. Procedural Rules • Evidence in chief by affidavit (s.64 Federal Magistrates Court Act 1999); • Timing for filing affidavit; • Objectionable material may be struck out of affidavit (Rule 15.29 of the Federal Magistrates Court Rules 2001); • Costs caused by material struck out (Rule 15.29 of the Federal Magistrates Court Rules 2001).

  15. Evidentiary Rules • Relevance (s.55, 56, 57 and 58 Evidence Act (1995)); • Hearsay (Part 3.2 Evidence Act (1995)); • Opinion evidence (Part 3.3 Evidence Act (1995)); • Discretions to exclude evidence (Part 3.11 Evidence Act (1995)).

  16. Section 69ZT Family Law Act 1975 Rules of evidence not to apply unless Court decides • The Court has to decide that the circumstances are exceptional before it applies some or all of the provisions excluded under s.69ZT(1).

  17. Section 69ZT Family Law Act 1975(cont’d) • The provisions of the Evidence Act (1995) excluded by the rule deal with: • General rules about giving evidence (Divisions 3, 4 and 5 of Part 2.1 Evidence Act (1995)); • Provisions relating to documents and demonstrations, experiments and inspections (Part 2.2 and 2.3 Evidence Act (1995)); and • Provisions relating to hearsay, opinion, admissions, evidence of judgements and convictions, tendency and coincidence, credibility and character (Part 3.2 to 3.8 Evidence Act (1995)).

  18. Application of Evidence Rules • Serious allegations of sexual abuse of children; and • Serious allegations of domestic violence.

  19. General Matters Know & understand: • The legislation; • The seminal case law; • The matters you need to prove; and • Do not regurgitate a year-by-year history of the marriage / cohabitation.

  20. Financial Matters – the Legislation • In s.79(2) of the Family Law Act 1975, the court is constrained against making an order unless satisfied that it is just and equitable to make that order. • The Court is assisted by the guidelines set out in s.79(4) of the Family Law Act 1975.

  21. Financial Matters – the Cases • Injunctions in relation to property: • Exclusive occupation: • Davis [1976] FLC 90-062 • Restraining the disposition of property: • Mullen & De Bry [2006] FLC 93-293

  22. Financial Matters – the Cases (cont’d) • The meaning of property: • Definition: • Duff [1977] FLC 90-217 • Kennon & Spry [2008] HCA 56 • Assignability: • Best & Best [1993] FLC 92-418 • Superannuation: • Coghlan [2005] FLC 92-220

  23. Financial Matters – the Cases (cont’d) • Financial Resources: • Kelly & Kelly (No 2) [1981] FLC 91-108 • Valuation of Property: • Lenehan [1987] FLC 91-814 • Not entitled to a “mid” figure. • Contributions to welfare of family: • Robb [1995] FLC 92-555 • Valuing homemaker contributions: • Waters & Jurek [1995] FLC92-635

  24. Financial Matters – the Cases (cont’d) • Homemaker contributions to business assets: • Ferraro [1993] FLC 92-335 • Negative contributions: • Kennon [1997] FLC 92-757 • Add backs or waste: • Chorn & Hopkins [2004] FamCA 633 • Kowaliw & Kowaliw [1981] FLC 91-092 • Omacini & Omacini [2005] FamCA 195 • Townsend & Townsend [1995] FLC 92-569

  25. Financial Matters – the Cases (cont’d) • Future needs: • Clauson [1995] FLC 92-595 • Waters & Jurek [1995] FLC92-635 • Third parties’ trusts: • Ascot Investments Pty Ltd & Harper (1981) 148 CLR 337 • Third party debts: • Biltoft [1995] FLC 92-614 • Bankruptcy: • Lemnos [2007] FamCA 1058

  26. Financial Matters – the Cases (cont’d) • Full disclosure: • Weir [1993] FLC 92-338 • Assessing contributions: • Norbis [1986] FLC 91-712 • Global or asset by asset • Mallet [1984] FLC 91-507 • No presumption of equality

  27. Financial Matters – The Cases (cont’d) • Financial contributions: • Gifts: • Kessey [1994] FLC 92-495 • Kickaby [1995] FLC 92-642 • Lottery wins: • Zyk [1995] FLC 92-644 • Farmer & Bramley [2000] FLC 93-06 • Inheritances: • Bonnici [1992] FLC 92-272 • Figgins [2002] FLC 93-122

  28. Financial Matters – The Cases (cont’d) • Damages awards: • Aleksovski [1996] FLC 92-705 • Williams [1984] FLC 91-541 • Pre-relationship contributions: • Bremner [1995] FLC 92-560 • Pierce [1999] FLC 92-844

  29. The Court’s Formula • The four-step approach: In Hickey & Hickey (2003) FLC 93-143 at [39], the Full Court of the Family Court described the preferred four-step approach in property matters as follows:

  30. “The case law reveals that there is a preferred approach to the determination of an application brought pursuant to s.79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties.

  31. Thirdly, the Court should identify and assess the relevant matters referred to in ss79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s79(4)(e), the matters referred to in s75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case …”

  32. Step 1 • Determine the asset pool: • Include add backs; • Include the treatment of debts.

  33. Step 2 • Determine the contributions: • Initial; • During cohabitation; • Post-separation; • Include financial and non-financial contributions, direct and indirect contributions, contributions made on behalf of a party and contributions as a homemaker or parent.

  34. Step 3 • Determine the other factors. Step 4 Determine the justice and equity.

  35. How Not to Do It Sheehan & Sheehan (1983) FLC 91-352

  36. Sheehan & Sheehan (1983) FLC 91-352 Following a marriage of some 33 years a wife applied for periodic maintenance, property settlement and orders in relation to money owing. Her affidavit in support of her application was 135 pages in length and covered in detail the history of the lives of the parties and of their marriage. The husband applied to have the affidavit and another not form part of the proceedings. “[78,360] …Such affidavit contains minute and unnecessary details of not only all matters which could possibly be relevant, but also of matters which could not have any weight or bearing on the ultimate outcome of the proceedings. For example, details of the husband's war service… …The affidavit goes into extreme detail on matters of the husband's health. … … I do not propose to set out in detail and thereby compound the approach made by the draftsman, the whole of the irrelevancies and unreasonable detail included in the affidavit. It included unreasonable and unwarranted innuendoes of malpractice on the part of the husband and other persons. The drafting of an affidavit must to some extent depend upon the subjective judgment of the draftsman, but there must, in my view, be a limit beyond which it must be apparent that the affidavit is becoming unnecessarily prolix and oppressive. … [78,361] … I think that the affidavits are embarrassing both from the excessive length at which the statements of fact are set out, both those that are necessary and those that are unnecessary, and the husband is put in a position of not easily understanding whether he is to be affected by all or any of those matters or not. He ought not to be embarrassed by having to deal with them. (Rossage v. Rossage and Others (1960) 1AII E.R. 600 at p. 602). It may well be that the mere stating of facts at too great a length would not of itself justify the removal of the affidavits. But when, in addition to the lengthy statement of material facts, there are inordinate statements of immaterial facts, then I think that the husband is put in an invidious position in endeavouring to determine the issues which he has to meet (Davy v. Garrett 7 Ch. 473, at p. 488).”

  37. Children’s Matters – The Legislation • Section 60CC Family Law Act 1975: • Primary considerations; • Additional considerations. • Section 60CA Family Law Act 1975: • The best interests of the child is paramount.

  38. Children’s Matters – The Legislation(cont’d) • Section 61DA(1) Family Law Act 1975: • Presumption of equal shared parental responsibility and when it does not apply. • Section 65DAA(1)&(2) Family Law Act 1975: • If presumption applied then it is necessary to consider: • Equal time; • Substantial and significant time.

  39. Children’s Matters – The Cases • Parental responsibility: • Goode & Goode [2006] FLC 93-286 at 80,893-80,894 • Gillick & West Norfolk and Wisbech Area Health Authority and another (1986) 1 AC 112 • Re Marion (1992) 175 CLR 218 at 249 – 254 • Meaningful relationships between child and parent: • Mazorski & Albright (2007) 37 Fam LR 518 para 19-26

  40. Children’s Matters – The Cases(cont’d) • Views of the child: • Dylan & Dylan [2007] FamCA 842 para 173-180 and 221-244 • Gender in parenting disputes: • Gronow & Gronow (1979) 144 CLR 513 para 526-527 • Gay and lesbian parents: • In the marriage of L. & L. (1983) FLC 91-353 at 78,363 and 78,367

  41. Children’s Matters – The Cases(cont’d) • Cultural issues and Aboriginality: • B and R and the Separate Representative (1995) FLC 92-636 at 82,391 – 82, 414 • Independent children’s representation: • Re K (1994) FLC 92-461 • Child abuse: • M & M (1988)166 CLR 69 para 71-78 • Relocation disputes • Variation of orders: • SPS & PLS [2008] FamCAFC 16

  42. Rules for Clients Under Cross Examination • Frequently the following advice is given to clients to prepare them for cross examination: • Listen to the question. • Answer that question. Stop. Wait. • Do not volunteer information not sought. • If you do not understand the question – do not answer. • If you do not understand the question – ask. • Tell the story in your own words. • Do not gloss over difficult points – tell the truth. • Do not argue. • It is exactly the same advice you should give yourselves as you are preparing evidence by way of affidavit. It is the advice you should give yourselves as you are taking instructions for that material.

  43. Format of the Affidavit • Headings • Subheadings • Paragraph size • Sub-paragraphing • Consistent numbering system • Grammar • Spelling • Exhibits: • The use of annexures to affidavit material should be scrutinised. Where annexures are necessary, they should be used. However from time to time they appear to be used as a substitute for evidence. • Photographs: • A bundle of “happy snaps” annexed to an affidavit is rarely probative of anything.

  44. The Golden Rules DO: • Observe the procedural rules. • Obey the rules of evidence. • Be thoroughly familiar with the sections of the legislation upon which you rely. • Be familiar with relevant cases. • Use relevance as the touchstone when considering what material to keep in and what to throw out. • Make affidavits expansive and virtually complete as far as your client’s case is concerned. • Personalise the affidavit (with examples where possible).

  45. The Golden Rules (cont’d) • Raise the issues plainly on the material but do not lay all your cards on the table. • Accentuate the positive. • Support quasi-opinion with objective facts. • Make full disclosure in financial proceedings. • Test and re-test the evidence to ensure that the sequence is correct where sequence of events is important. • Remember: the more recent the event the more likely it is to be of relevance.

  46. The Golden Rules (cont’d) DO NOT • Use smear tactics. • Dwell upon past misdemeanours. • Make careless statements or overstatements which expose your client on cross examination. Loose lips sink ships! • Use inadmissible material in the belief that the judge who strikes it out will be influenced by it nevertheless.

  47. Case Examples • Conclusions often contained in affidavits are not supported by the relevant facts. For example: • The husband was an alcoholic. • The wife used excessive force in disciplining the children. • Throughout the marriage the wife acted as a farm hand on the property which the husband inherited from his parents. • The husband subjected the wife to domestic violence throughout the marriage.

  48. Case Examples (cont’d) • The wife has always suffered from anxiety. • The wife’s financial resources are in excess of those of the husband. • The husband inappropriately touched the genital areas of the children. • Throughout the marriage the wife was the primary care giver of the children. • The husband is a violent person. • The wife suffers from depression. • After the marriage the wife’s father made a gift of real property to her.

  49. Case Examples (cont’d) • The wife’s prospects of obtaining employment are poor. • The wife has, since separation, constantly harassed the husband. • The husband has had, and will continue to have, a far greater earning capacity than the wife. • The husband would not be in his current employment position were it not for the wife. • The wife still smokes “dope”.

  50. Draft Affidavits Draft affidavits for both property and parenting matters have been prepared by Federal Magistrate Slack. With His Honour’s consent, I have included those drafts in the material.

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