ADVOCACY IN THE
FEDERAL MAGISTRATES
COURT:
Drawing the Appropriate
Material
By Federal Magistrate Margaret Cassidy
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).
Affidavits
Advantages
Disadvantages
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?
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.
Inadmissible Material in Affidavits –
Why Not? (cont’d)
Time and effort spent for no reward;
Risk of a costs order;
Professional pride.
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.
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.
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.
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.”
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. …”
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.
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?
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).
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)).
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).
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)).
Application of Evidence Rules
Serious allegations of sexual abuse of
children; and
Serious allegations of domestic violence.
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.
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.
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
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
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
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
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
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
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
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
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:
“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.
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 …”
Step 1
Determine the asset pool:
– Include add backs;
– Include the treatment of debts.
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.
Step 3
Determine the other factors.
Step 4
Determine the justice and equity.
How Not to Do It
Sheehan & Sheehan (1983) FLC 91-352
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).”
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.
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.
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
Children’s Matters – The Cases
(cont’d)
Views of the child:
– Dylan & Dylan [2007] FamCA 842 para 173180 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
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
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.
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.
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).
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.
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.
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.
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.
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”.
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.