White Ribbon Day: domestic violence and family law

On Tuesday 25 November events took place around Australia to mark White Ribbon Day. 

White Ribbon aims to raise awareness to end men's violence against women. White Ribbon Australia observes the International Day Of the Elimination of Violence against Women, known internationally as White Women Ribbon Day, annually on November 25.

As part of this years events 1233 ABC Newcastle interviewed Federal Circuit Court Judge Myers in relation to domestic violence cases and how they impact on children.

An article in relation to the interview can be found here: http://www.abc.net.au/local/stories/2014/11/25/4135828.htm

In the interview Judge Myers said "family violence against women takes a multitude of different facets. It's not just simply someone punching a woman it's more than that; it's in overall control thing." His Honour also said you don't often see men come out and say [they're] a victim of domestic violence; it's out there…"

During the interview it was mentioned that there was 1449 domestic violence assaults reported in the Newcastle and Lake Macquarie area in the 12 months to March 2014. While those statistics relate to criminal matters (including Apprehended Domestic Violence orders) Judge Myers said the number of cases he sees in his Court is a reflection on the broader society.

Speaking about the impact of family violence in relation to family law matters His Honour said "we see a lot of parents come in [that are] probably separating too late, where really the relationship has been over for some period of time" … "I'm seeing a set of circumstances where children are growing up in a relationship in their household but they don't understand what it's like to have a 'normal' household they don't understand that it's unacceptable."

His Honour said "this isn't just something that's isolated in my court. What my court sees is simply a reflection of what is taking place in society."

Statistics on marriage and divorce

The Australian Bureau of Statistics ("ABS") has just released the 2013 statistics on marriage and divorce in Australia.

The key points from 2013 are:

• There were 118,962 marriages registered - this is a decrease of 3.5% from 2012;
• The majority of brides (81.3%) and grooms (79.7%) had not been married before;
• 76.6% of couples lived together prior to marriage. This was down by 1%;
• The median age for marriage was 31.5 years for males and 29.5 years for females. 

• There were 47,638 divorces granted - this is a decrease of 4.6% from 2012;
• The median duration of marriage was 12.1 years. This has been steadily decreasing from 12.6 years in 2005;
• The median age for divorce was 44.8 years for men and 42.2 years for women;
• 47.4% of applications involve marriages where there are children;
• 41.2% of applications for divorce were joint applications. 

Gift or loan?

I was reading an article recently about the rise and rise of parents helping their adult children to purchase property. Now this isn't a new phenomenon but given rising property prices it may be a trend destined to only increase.

According to the article on domain.com.au parents are supporting their children's home ownership aspirations by something as relatively simple as providing cash through to utilising the equity in their own home.

While the focus of the rest of the article was on the effect this can have on first home ownership statistics (if parents are on the title for the property apparently the purchase can fall through the current definition used by statisticians) it got me thinking about the impact that monies from parents can have on family law matters.

The question of how money from one party's parents is dealt with in considering how to divide the parties assets and liabilities as at separation has been a vexed one for the Court over the years.

The starting issue is whether the monies are a gift or a loan. Answering this question comes down to the evidence.

If there is a contemporary, written loan agreement than that may be good evidence of the money being a loan. Otherwise it can become a question of whose evidence is to be believed.

However, it is important to remember, even if the Court concludes that it was a loan, that the Court still has discretion as to the amount that is to be included as a liability of the parties.

For example, there may be situations where loans are made on favourable terms and not at arms length - such as where there is no interest payable or there is no fixed payment schedule. In such circumstances the Court may reduce the effective amount repayable.

In the matter of Sulo and Colpetti [2010] the Court did not include the husband's loan to his father at all as there was no evidence that the husband's father was intending to actively pursue a claim against the husband for the monies.

In circumstances were the money is a gift - either because that was always the intention or because the Court does not accept that it was a loan - the Court then needs to consider what effect if any the money has on determining the contributions made by the parties.

In some cases, such as Pellegrino and Pellegrino (1997) the Court was asked to consider the issue in the context of the parents giving the money intending to receive a benefit themselves (in that case for an extension where they were to reside).

That is, however, the exception and in the majority of matters the monies have been given to benefit the parties to the relationship.  

In the case of Gosper and Gosper (1987) the Court stated that determining if the monies where intended to benefit both parties to the relationship or only the adult child is the starting point.

In Kessey and Kessey (1994) the Full Court stated: "a contribution by a parent of a party to a marriage to the property of the marriage will be taken to be a contribution made by or on behalf of the party who is the child of the parent unless there is evidence which establishes it was not the intention of the parent to benefit on his or her child." 

Orders for costs in family law matters

In family law proceedings before the Family Law Courts parties normally bear their own legal costs.

Despite this the court is regularly asked to consider the issue of costs. But a recent case caught my eye as it provided a review of the existing authorities on this topic. The case is known as Nada & Nettle (Costs) [2014].

On 16 July 2014 the Full Court of the Family Court dismissed an appeal brought by Ms Nada, the mother, against Orders that required her and the child to move back to regional NSW from Tasmania. In July 2012 Ms Nada had moved the child from regional NSW to Tasmania without the knowledge or permission of the father. The mother was unsuccessful on the appeal.

The father sought an Order that the mother pay his costs of and incidental to the appeal up to and including 11 March 2014 on a party-party basis and thereafter on an indemnity basis. The mother opposed the application and sought no order be made.

The Court started by setting out section 117(1) of the Family Law Act 1975 and that the guiding principle of that section is that each party to proceedings under the Act should bear his or her own costs unless the Court is of the opinion that there are circumstances that justify the making of a costs order. The Court then turned to section 117(2) which sets out matters to which the Court should have regard in determining what, if any, order should be made. In this case the matters relevant were the financial circumstances of each of the parties, whether a party to the proceedings has been wholly unsuccessful and whether either party to the proceedings has made an offer in writing to settle the proceedings and the terms of that offer.

The mother contended that her financial circumstances are such that, of themselves, there ought be no order for costs because she had no capacity to pay any costs ordered. The Court noted that while the mother stated that she did not have capacity to pay and that any order to pay would have a negative impact she did not state what capacity she did have or what the negative impact would be. The Court noted that just because "a party is impecunious, even indigent, is not a bar to the making of a costs order if the Court is otherwise of the opinion that such an order ought to be made".

The mother conceded that she was wholly unsuccessful but submitted that due to there having been two errors in the first instance judgement there was merit in the appeal. The Court determined that the mother was wholly unsuccessful and the mother was not able to demonstrate a material error of principal in the trial judge’s determination.

The next issue - and the key to the mention of the date of 11 March 2014 - was that the father made an offer to the mother on 11 March 2014.

That letter had sought that the mother withdraw her appeal and if she did so the father would not seek costs. The letter specifically stated that it would be relied upon in seeking an order for indemnity costs. The offer was rejected by the mother.

The Court considered the case of Lenova & Lenova (Costs) [2011] and quoted the following "In this jurisdiction, costs do not “follow the event” ... each party to proceedings under this Act shall bear his or her own costs ... a litigant, or prospective litigant, cannot rely upon a costs order following upon success in the action as a means of dissuading the other party from pursuing unmeritorious litigation ... A timely offer in writing genuinely made might, then, be seen as an important part of a limited armoury available to prospective litigants seeking to avoid the costs of litigation."

The Court concluded that the rejection of the father's offer was of sufficient weight to justify an order that the mother pay the father's costs of the appeal.

The question then became what kind of costs was the mother required to pay.

One way in which the Courts will do this is "party-party costs". Such costs are capped at the scale set out in the legislation. Another way in which the Court can order legal costs to be paid by the other party is through "indemnity costs". Indemnity costs are all costs reasonably and property incurred where the conduct of a party warrants such an Order being made. Indemnity costs are most frequently awarded when a party has declined an offer of settlement and has received an outcome less than what was offered.

In this case the Court looked at the established authority of Kohan and Kohan (1993) and quoted " the Court should not depart lightly from the ordinary rules relating to costs between party and party and the circumstances justifying the departure should be of an exceptional kind." The Court then considered what circumstances could justify a departure from party-party costs and quoted from Colgate Palmolive Co v Cussons Pty Ltd [1993] where the following list was provided "evidence of particular misconduct that causes loss of time to the court and to other parties ... the fact that the proceedings were commenced or continued for some ulterior motive ... or in wilful disregard of known facts or clearly established law ... the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions ... an imprudent refusal of an offer to compromise"

Ultimately the Court was not persuaded that neither the mother’s failure to accept the offer nor any other aspect of the case falls within the circumstances set out in Colgate-Palmolive nor was there anything in the nature of this appeal that falls within the “exceptional” case in which indemnity costs may be ordered.

On that basis the Court ordered that the mother pay the father's costs of and incidental to the appeal on a party and party basis.