ADVOCACY IN THE FEDERAL MAGISTRATES COURT: Drawing the Appropriate Material

1
ADVOCACY IN THE FEDERAL MAGISTRATES
COURTDrawing 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 Tynans paper was presented at the Family
  Law Residential 1996 (11 14 July 1996).

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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?
(contd)

• The cost of litigation
• Time spent drawing and engrossing inadmissible
  material
• Cost to client for drawing and engrossing
  inadmissible material
• Opponents 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?
(contd)

• Time and effort spent for no reward
• Risk of a costs order
• Professional pride.

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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? (contd)

• 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.

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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.

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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
  wifes affidavit in support of her custody
  application. The wifes affidavit was 43 pages
  in length. The husbands 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 husbands 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.
  

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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?

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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).

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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)).

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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).

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Section 69ZT Family Law Act 1975(contd)

• 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)).

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Application of Evidence Rules

• Serious allegations of sexual abuse of children
  and
• Serious allegations of domestic violence.

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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.

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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.

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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

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Financial Matters the Cases (contd)

• 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

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Financial Matters the Cases (contd)

• 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

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Financial Matters the Cases (contd)

• 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

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Financial Matters the Cases (contd)

• 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

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Financial Matters the Cases (contd)

• 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

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Financial Matters The Cases (contd)

• 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

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Financial Matters The Cases (contd)

• 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

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The Courts 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

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• 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.

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• 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

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Step 1

• Determine the asset pool
• Include add backs
• Include the treatment of debts.

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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.

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Step 3

• Determine the other factors.

Step 4

• Determine the justice and equity.

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How Not to Do It

• Sheehan Sheehan (1983) FLC 91-352

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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).

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Childrens 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.

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Childrens Matters The Legislation(contd)

• 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.

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Childrens 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

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Childrens Matters The Cases(contd)

• 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

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Childrens Matters The Cases(contd)

• Cultural issues and Aboriginality
• B and R and the Separate Representative (1995)
  FLC 92-636 at 82,391 82, 414
• Independent childrens 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

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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.

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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.

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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 clients case is concerned.
• Personalise the affidavit (with examples where
  possible).

45
The Golden Rules (contd)

• 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.

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The Golden Rules (contd)

• 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.

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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.

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Case Examples (contd)

• The wife has always suffered from anxiety.
• The wifes 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 wifes father made a gift
  of real property to her.

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Case Examples (contd)

• The wifes 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.

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Draft Affidavits

• Draft affidavits for both property and parenting
  matters have been prepared by Federal Magistrate
  Slack.
• With His Honours consent, I have included those
  drafts in the material.