Perspective and the Law A presentation by the Hon John McKechnie

By Dianne Caruso Senior Associate, HHG Legal Group

Fabrizi and Grasso (Deceased) [2020] FCWA 164

In this decision, her Honour Justice Duncanson dismissed property settlement proceedings in circumstances where the parties had been in a de facto relationship which continued after the initiating application was filed and ended upon the death of the Respondent. Her Honour dismissed the proceedings on the basis that the Applicant had failed to establish that, had the Respondent not died, it would have been just and equitable for the Court to make an Order with respect to property. Her Honour noted that although she had previously found an application could be made for property settlement in circumstances where parties had not separated, it did not follow that the Court would make an Order for property settlement. The Applicant, Ms Fabrizi filed an initiating application seeking property settlement orders under section 205ZG of the Family Court Act 1997 (WA) (the Act) on 19 February 2018. The named Respondent in the application was Mr Grasso. At the time the application was filed the Applicant and Mr Grasso were in a de facto relationship with one another. In early 2018, Mr Grasso died. Subsequently, an Order was made that the deceased be substituted by his son, who was his legal personal representative. Earlier in the proceedings, her Honour Justice Duncanson had handed down reasons for decision determining that there was no requirement in the Act for a de facto relationship to have ended before a party could commence proceedings for alteration of property interests. In the Respondent’s application, he sought Orders that the proceedings be dismissed on the basis that the Court would not have made an Order with respect to property in favour of the Applicant if the deceased had not died and therefore, the Court could not make an order with respect to property under section 205ZG(8) (b)(i) of the Act. Section 205ZG(8)(b) provides: 8. Where, before proceedings with respect to the property of de facto partners, or either of them are completed, either party to the proceedings dies —

… (b) if the court is of the opinion — (i) that it would have made an order with respect to property if the deceased party had not died; and (ii) that it is still appropriate to make an order with respect to property, the court may make such order as it considers appropriate with respect to any of the property of the de facto partners, or either of them… The key issue for determination by the Court therefore was whether the Court would have made an Order with respect to property if the deceased had not died and if so, if it was still appropriate to do so. The relevant facts included:

The parties met in 1996 and commenced a de facto relationship in 1997 which endured until the death of Mr Grasso in early 2018.

On 14 February 2018 the Trustee of Family Trust A, the deceased, the Applicant, the Respondent and his brother executed a Deed whereby the Applicant was given a life interest in Properties A and B, with the remainder in both properties to the Respondent and his brother as tenants in common in equal shares.

In a separate Will, the deceased left the Applicant a life interest in a property in Country A. The Applicant learned of the contents of the deceased’s Will and was disappointed by the provision made for her therein, but she still loved the deceased and they remained in a relationship until the death of the deceased.

The Applicant filed an initiating application in the

Family Court on 19 February 2018 which was not served on the deceased.

The Applicant estimated her property to have a value of $734,412. She had a liability of $2,647 and superannuation of $716,514. She estimated the property held by the estate of the deceased and other entities to have a total value of $63,927,916.

The Respondent deposed that at the time of the deceased’s death he had a net asset pool of approximately $40million in Australia with a property in Country A worth around $1.3million.

At the time of the hearing, the Applicant had also made a claim against the deceased’s estate under the Family Provision Act in proceedings in the

Supreme Court of Western Australia. Her Honour cited paragraph 24 of the High Court decision of Stanford v Stanford (2012) 247 CLR 108 where the plurality considered the equivalent provision to section 205ZG(8)(b) of the Act, namely section 79(8) of the Family Law Act 1975 (Cth), as follows: “Section 79(8)(b) thus requires a court considering an application for a property settlement order which is continued by or against the legal personal representative of a deceased party to determine first, whether it would have made an order with respect to property if the deceased party had not died and second, whether, despite the death, it is still appropriate to make an order. Both of those inquiries require consideration of s 79(2) and its direction that the court not make an order unless “satisfied that, in all the circumstances, it is just and equitable” to do so. It follows that, in cases where s 79(8) applies, a court must consider whether, had the party not died, it would have been just and equitable to make an order and whether, the party having died, it is still just and equitable to make an order.” Her Honour went on to state at paragraph 53 that the plurality in Stanford (supra) said three fundamental propositions must not be obscured. She quoted from paragraphs 37 to 44 inclusive of Stanford (supra) including the following paragraphs with respect to the three fundamental propositions: 37. First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. So much follows from the text of s 79(1)(a) itself, which refers to “altering the interests of the parties to the marriage in the property” (emphasis added). The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order. 38. Second, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion. In Wirth v Wirth, Dixon CJ observed that a power to make such order with respect to property and costs “as [the judge] thinks fit”, in any question between husband and wife as to the title to or possession of property, is a power which “rests upon the law and not upon judicial discretion”. And as four members of this Court observed about proceedings for maintenance and property settlement orders in R v

Watson; Ex parte Armstrong: “The judge called upon to decide proceedings of that kind is not entitled to do what has been described as ‘palm tree justice’. No doubt he is given a wide discretion, but he must exercise it in accordance with legal principles, including the principles which the Act itself lays down”. 39. Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is “just and equitable” to make the order is not to be answered by assuming that the parties’ rights to or interests in marital property are or should be different from those that then exist. All the more is that so when it is recognised that s 79 of the Act must be applied keeping in mind that “[c]ommunity of ownership arising from marriage has no place in the common law”.

Questions between husband and wife about the ownership of property that may be then, or may have been in the past, enjoyed in common are to be “decided according to the same scheme of legal titles and equitable principles as govern the rights of any two persons who are not spouses”.

The question presented by s 79 is whether those rights and interests should be altered. 40. Third, whether making a property settlement order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down”. To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act. Her Honour found that during the parties’ relationship the parties conducted their financial arrangements in such a way that significant assets were retained in the deceased’s name but he looked after the Applicant and if she wanted something she could buy it. The reason the Applicant brought her application was her concern that when the deceased passed, she may not receive appropriate financial provision. The Applicant had now made an application pursuant to the Family Provision Act in the Supreme Court of Western Australia. Her Honour held at paragraphs 68 to 70 inclusive: 68. Had the deceased not died the Court would not have had a principled reason to interfere with their chosen arrangements. It would not have been just and equitable to make an order with respect to their property. 69. I consider that the Court would not have made an order with respect to property if the deceased had not died and consequently after his death it could not be found to still be appropriate to make an order. 70. With reference to my reasons ([2019] FCWA 176) I found that an application could be made for property settlement even though the parties had not separated. It does not however follow that the Court would make an order for property settlement. The requirements of s 205ZG(1), (2), (8) and (9) must be satisfied. In the circumstances of these parties they are not. Her Honour dismissed the proceedings.

‘Tweeting’ perils

Gino Dal Pont

Professor, Faculty of Law, University of Tasmania

Ethics Column

• Society’s espousal of greater sensitivity to

‘difference’ has temporally coincided with avenues to easily express opinions to the world at large. • There is scope for tension between these two trajectories. • Lawyers should accordingly take especial care when ‘tweeting’ opinions.

There seems little doubt that modern Australian society has, over the passage of time, in significant ways espoused greater sensitivity to what some may describe as ‘difference’. In part as a result of statutory enactments, we have become more attuned, many would say, to the ills of discrimination, harassment or vilification on the basis of race, gender, religion, sexual orientation, etc. The foregoing has coincided temporally with burgeoning avenues for the dissemination of a breadth of views and opinions. Prime amongst these, of course, is the Internet. With little more than a tap on a keyboard, a person can propagate his or her opinions to the world at large. Increasingly fractured global societies have spawned a wide variety of opinions, not always either supported by compelling evidence or devoid of illegitimate discrimination, harassment or vilification. This ‘democratisation’ to the disseminating of opinion has witnessed some of its greatest impact via the medium of Twitter and its progeny. As members of society, lawyers are hardly immune from the above trends. As to the former, it is unsurprising to find professional rules that explicitly target the professional inappropriateness of a lawyer engaging in discrimination and sexual harassment in the course of practice.1 In line with this, the last decade or so has witnessed an increasing number of lawyers being the subject of professional discipline for, inter alia, behaviour involving sexual harassment2 and racial slurs.3

Beyond revolutionising access to legal materials and providing an avenue for marketing legal services, the Internet has proven a vehicle for lawyers (just like other members of society) to express opinions. One would hope that those opinions are well grounded in the facts, especially bearing in mind that many in society will place greater credence in an opinion expressed by a lawyer (especially where it aligns with their existing views or prejudices). Nor it is surprising that lawyers should pursue the practice of issuing Twitter (or the like) messages. It might be borne in mind that the brevity characterising Twitter posts, which satisfies many persons’ desire for information in bite-size chunks, can at the same time nourish an ignorance of the bigger picture / issue. Moreover, the very ease and informality of ‘tweeting’ can sometimes characterise its content as reactionary and not well considered or measured. (The same can be said of email communications but these do not risk immediate dissemination to the world at large). Lawyers who exercise their freedom of speech via ‘tweeting’ secure no immunity from the professional (or legal) consequences of, say, sexist or racist comments. This remains so even if the ‘tweet’ is made in a personal capacity; after all, by reason of the status of their author, illegitimately offensive comments may cast a shadow over the profession as a whole. From a disciplinary standpoint, this recently came home to roost for an English barrister as a result of his sexist and racist response, via Twitter, to another person’s ‘tweet’.4 The original ‘tweet’ came from a young black female student at Cambridge University as an open letter to the English Faculty, where she called for the faculty to, inter alia, ‘decolonize its reading lists and incorporate postcolonial thought alongside its existing curriculum’. Included was a suggestion for a ‘zero tolerance policy on the dismissal of race as a subject worthy of discussion/enquiry in essays’. The barrister, a strong believer in the Canon of Western literature and culture, was upset by the open letter. This prompted him to ‘tweet’ a response in the following terms:5 ‘Read it. Now; refuse to perform [a specified sexual act] on shrill [racist descriptor] who will destroy an academic reputation it has taken aeons to build’. The Bar Standards Board alleged that the ‘tweet’ amounted to professional misconduct. The Disciplinary Panel agreed, ordering that the barrister be reprimanded and fined £1,000. On the barrister’s appeal, Warby J declined to interfere with the Panel’s determination. His Lordship accepted that the barrister’s language would lower the profession in the public eye in departing from the standards expected of the profession: the promotion of equality and diversity, and the avoidance of language that is ‘racially charged and derogatory to women’.6 The lesson for lawyers: ‘think before you tweet’.

NOTES:

1 Legal Profession Conduct Rules 2010 (WA) r 17(5). 2 See, for example, PLP v McGarvie [2014] VSCA 253. 3 See, for example, Legal Profession Complaints Committee v in de Braekt (2012) 80 SR (WA) 134 4 Diggins v Bar Standards Board [2020] EWHC 467 (Admin). 5 The offending language has been excised from this quote; interested readers should consult the case for the full quote. 6 Diggins v Bar Standards Board [2020] EWHC 467 (Admin) at [89].

Craig Nicol and Keleigh Robinson Accredited family law specialists Editor and co-editor of The Family Law Book

Financial agreements – That the wife was advised against signing the BFA, but did so anyway, may be an “indicium of undue influence” as held in Thorne v Kennedy [2021] FamCAFC 9

In Beroni & Corelli [2021] FamCAFC 9 (10 February 2021) the Full Court (Strickland, Aldridge & Kent JJ) dismissed with costs the husband’s appeal from Tree J’s decision in Corelli & Beroni [2019] FamCA 911 where a hairdresser’s testimony corroborated the wife’s case that she was not proficient in English when she signed a Part VIIIAB financial agreement, the Court setting it aside for unconscionability and undue influence.

The agreement was signed a few months before the wife was granted a spouse visa. While the agreement and advice provided to the wife was in English, the Court accepted that the wife did not understand the nature of what she signed; the content of the agreement; nor the advice provided to her, despite the wife having not called evidence from her then solicitor.

The Full Court said (from [31]):

“It is the husband’s contention that … in circumstances where the wife’s solicitor advised her against signing the BFA …, the wife acted on her own free will. ( … )

[35] ( … ) Given the 30 minute duration of the meeting along with the wife’s lack of proficiency in English, any explanation given to the wife would have been wholly inadequate for her to understand the advantages and disadvantages of signing the BFA.

[36] ( … ) [T]hat the wife was advised against signing the BFA, but did so anyway, may be an ‘indicium of undue influence’ as was held to be the case by the plurality in Thorne v Kennedy [ed. full citation: Thorne v Kennedy [2021] FamCAFC 9] ( … )

[64] … [I]t is one thing for the wife to have had an understanding of the effect of the BFA not radically different from its actual effect … but it is a very different thing for a person to have sufficient knowledge and understanding adequately to protect their own interests ( … )”

Costs – No error in trial judge’s order that applicant’s barrister and solicitor pay respondent’s costs where property case improperly pursued

In Beamish & Coburn (Deceased) [2021] FamCAFC 20 (22 February 2021) the Full Court (Aldridge, Austin & Tree JJ) dismissed with costs an appeal in a case where a live in carer had sought a declaration as to the existence of a de facto relationship and property orders.

The Court found that there was no evidence of the breakdown of a de facto relationship. The applicant’s barrister and solicitor appealed the order that they be jointly and severally liable for the respondent’s costs, fixed at $100,000.

The Full Court said (from [14]):

“The initiating application … was signed by [the applicant] …. At line 27, a cross indicated that a date of final separation was ‘[n]ot applicable’ ( … )

[27] In her affidavit … [the applicant] … said:

... I believe [we] are still a couple but for the restrictions placed on me to visit him at his nursing home ( ... ) ... [The deceased] did not voluntarily leave me but was forced to...

[28] … [D]ifficulties emerge from this evidence.

[29] The first is whether the parties had … separated at all. This issue can arise when one party … is moved to a hospital or an aged care facility. This does not … mean there has been a separation or breakdown of the … relationship ( … )

[30] The second is identifying the date of the breakdown of the … relationship …

[31] … [T]he … judge found that the … practitioners were … negligent in failing to come to grips with these difficulties. … [T]he [barrister] … said that she considered withdrawing … but did not do so because the [solicitor] … threatened to sue her for negligence.( … ) [79] The … various forms of the initiating application filed by [the applicant] … failed to assert a breakdown of the relationship or identify a date that it occurred. … [T]he first three versions of the initiating application sought a declaration that the relationship had not ended. … [The applicant’s] … affidavit evidence was consistent with … no breakdown of the relationship.”

Children – Father’s loss of confidence in family report writer insufficient to support his application to appoint a new expert

In Behrendt & Cadenet (No. 2) [2021] FamCA 19 (29 January 2021) Harper J dismissed a father’s interim application in a parenting case for the appointment of a new family report writer in respect of a 10 year old child, where the family report writer, Dr B, referred in an interim report to the mother’s allegation that she had in her possession a large amount of pornography downloaded by the father which, when appraised, might become a finding of paraphilia on the father’s part ([3]). A USB stick of “about 500 professionally shot stack static images of young attractive women” and “pornographic digital movies” was provided to Dr B who recommended that reports be obtained from an IT expert (as to viewing patterns) and a paraphilia expert ([5]-[6]). The Court said (from [16]):

“The father … argued that the

USB materials have negligible probative value. … [17] … [T]he father contended that the material Dr B had … seen may have contaminated his opinion … he may … have prejudged factual issues such as the ownership of the pornographic material and the nature of the father’s viewing patterns ( … ) [20] I reject the argument based on the assertion that the USB materials have negligible probative value. … [I]t is not possible or appropriate to attempt to form any view about the probative value of the USB materials at this point. ( … ) [21] … Although the father disavowed any reliance upon apprehended bias, it seems to me that is … what lies behind his assertions of loss of confidence in Dr B. … [22] … The … fact that [Dr B] … considered that further expert evidence was necessary demonstrates that he himself was not offering any opinion about the father’s habit of viewing material ( … ) [26] I accept the submission of Counsel for the mother that if loss of confidence alone was a broadly applicable criterion for discharge of a single expert, such discharges would be happening on a regular basis. ( … )”

Craig Nicol is the editor of The Family Law Book and Keleigh Robinson, co-editor. They are accredited (in Qld and Vic respectively) as specialists in family law. The Family Law Book is a one-volume, loose-leaf and online subscription service: thefamilylawbook.com.au.

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The Tale of The Tardy Coroner

By John McKechnie QC

In 1903, on his retirement as a police magistrate and coroner after 43 years, William Caswell was described as ‘courteous in manner, merciful to the deserving and hater of all sham’. The many admiring speeches did not mention ‘punctual’. He had served across New South Wales. For 25 years he had been the magistrate and coroner in Moruya, a picturesque little town on the coast south of Bateman’s Bay. His time in Moruya was not uniformly happy and at one stage he found himself having to answer charges that seemed to stem from a religious disagreement. Perhaps his stress from the unfortunate proceedings coloured his judgment in what was to come. Whatever it was, his tardiness contributed to what a judge later described as a very unwise proceeding. In 1877 it was the practice of the coroner to sit with a jury. Mr Collier, who lived some distance from Moruya was summonsed for jury service at 9 am.

This time arrived and passed. No coroner. Mr Collier became more irritated. Finally, at 10 o’clock, the coroner arrived. Mr Collier was not amused. He spoke to his fellow jurors loudly enough for Mr Caswell to hear. “It is hard to be summoned for 9 o’clock. Caswell could not attend because he had not his cows milked and had to supply the stores with butter before he could attend to his business.”

To emphasize the point, Mr Collier repeated those words several times and concluded by saying “I am not a toady and get no favours.” Poor Mr Caswell. Mr Collier had not finished with him. At the conclusion of the proceedings, while Mr Caswell was making his way back to his buggy, Mr Collier, from the deck of a boat bearing him home, screeched “I defy you”. That did it. Mr Caswell caused Mr Collier to be charged under the Vagrancy Act with unlawfully using insulting behaviour towards Mr Caswell whereby a breach of the peace might have been occasioned. Mr Collier was fined three pounds or one month in gaol. But were the words insulting? That was the question for the full court. No said 3 judges. Justice Hargrave thought that the toady reference might bring Mr Caswell up to heat, but more was needed.

While hooting might be insulting, screeching was not.

Justice Fawcett was pretty scathing about the coroner. Mr Collier in his opinion was justified in making the observation that he did. No doubt Mr Caswell was irritated at being found at fault with the discharge of his duty but the words were amply justified by his conduct. Justice Manning, who had called the proceedings very unwise also thought Mr Caswell was in the wrong having kept the jury waiting for an hour. Mr Caswell moved shortly thereafter to Goulburn where he served faithfully to general acclaim for the next quarter century. In due course the person who had caused him so much grief with the charges (which were dismissed) welcomed him back to Moruya as a friend.

Finally, a point to note. If a magistrate or coroner unreasonably keeps you waiting don’t, whatever you do, hoot. Screech instead.

(Adapted from Ex p. Collier (1877) NSW Knox R 513)