Lottery Wins and The Nature of The Relationship of The Parties at The Time

In Eufrosin & Eufrosin [2014] FamCAFC 191 (2 October 2014) the Full Court of the Family Court of Australia (Thackray, Murphy, Aldridge JJ) dealt with the issue of a lottery win in a Family law property adjustment.

Relevantly the Court found:

• “The [lottery win] which came into the husband’s hands did so at a time when the parties were married and still living together. The moneys for the purchase of the ticket came from the husband’s earnings. I am of the view that a win in the lottery is in no different position to the acquisition of a piece of furniture, a block of land or other asset purchased or acquired by parties during a marriage with funds provided by either or both of them. … Marriage is for most partners an economic union. … I have no doubt that the purchase of lottery tickets was in furtherance of a joint matrimonial purpose and therefore any resultant win in the lottery must be regarded as a matrimonial asset. … Although the ticket was purchased by the husband, it was so purchased with the object and hope of achieving a matrimonial objective and I propose therefore to regard same as a matrimonial asset.“ 1 2
• “… In the ordinary run of marriages a [lottery] ticket is purchased by one or other of the parties from money which he or she happens to have at that particular time. That fact should not determine the issue. Where both parties are in receipt of income and where their marriage is predicated upon the basis of each contributing their income towards the joint partnership constituted by their marriage, the purchase of the ticket would be regarded as a purchase from joint funds in the same way as any other purchase within that context and would be treated accordingly … Where one party is working and the other is not the same conclusion would ordinarily apply because that is the mode of partnership selected by the parties … There may be cases where the parties have so conducted their affairs and/or so expressed their intentions that this would not be the appropriate conclusion …” 3 4
• The source of funds should not “determine the issue” of how a lottery win should be treated for s 79 purposes. 5 6
• What is relevant, is the nature of the relationship of the parties at the time the lottery ticket was purchased.  7
• Regardless of the source of the funds, at the time the wife purchased the [lottery] ticket, the “joint endeavour” that had been the marriage of the parties had dissolved; there was no longer a “common use” of property.
• Rather, the parties were applying funds for their respective individual purposes. 8

1. Anastasio and Anastatsio (1981) FLC 91-093 per Baker J said (at 76,649-76,650) 
2. Eufrosin & Eufrosin (2014) FamCAFC 191 (2 October 2014) per Thackray, Murphy, Aldridge JJ (9) 
3. Zyk and Zyk (1997) FLC 92-644 per Nicholson CJ, Fogarty and Baker JJ (at 82,515) 
4. Eufrosin & Eufrosin (2014) FamCAFC 191 (2 October 2014) per Thackray, Murphy, Aldridge JJ (10) 
5. Zyk and Zyk (1997) FLC 92-644) 
6. Eufrosin & Eufrosin (2014) FamCAFC 191 (2 October 2014) per Thackray, Murphy, Aldridge JJ (11) 
7. Eufrosin & Eufrosin (2014) FamCAFC 191 (2 October 2014) per Thackray, Murphy, Aldridge JJ (11) 
8. Eufrosin & Eufrosin (2014) FamCAFC 191 (2 October 2014) per Thackray, Murphy, Aldridge JJ (11) 

Agitating Issues In The Best Interests of The Children

In my To Thine Own Self Be True article I posed a Family Law Act 1975 question:

• The possible self-destructive behaviour of the mother was an issue worth agitating before the Court.
• Was it in the best interests of the children to be placed primarily in the care of such a parent?
• It appeared that circumstances were conspiring to prevent the agitation of that issue.
• Did the duty to the Court in our adversarial system extend to requiring that material be placed before the Court to agitate that issue, so that it could be considered in determining what was in the best interests of the children?

On that occasion I did not need to resolve the question. Since I wrote my case note on Nettle & Nada I have considered the question a little further.

I look at two (2) cases for some assistance:
• RCB as litigation guardian of EKV, CEV, CIV and LRV v The Honourable Justice Colin James Forrest [2012] HCA 47 (7 November 2012); and
• Nettle & Nada [2013] FCCA 1677 (31 October 2013)

RCB
The proceedings in RCB involved an application under Regulation 14 of the Convention on the Civil Aspects of International Child Abduction (“the Convention”). Relevantly they involved consideration of:

• The interests and views of the child;
• The report of a family consultant; and
• The role of the Independent Children’s Lawyer.

In relation to ascertaining children’s views and interests, French CJ, Hayne, Crennan, Kiefel and Bell JJ. Found

An application under Regulation 14 is not brought to resolve, in an adversarial setting between parties in conflict, questions about the care and custody of a child. It is brought to determine whether Australia’s obligation under the Convention, to return a child wrongfully removed from a country of habitual residence, is engaged. If it is engaged, disputed questions of care and custody fall to be resolved in accordance with the laws of the country from which the child has been removed. That being said, the interests and views of the child are relevant to the existence of the obligation. 1

The Diversity Factor In The Appointment of Judges

The process of appointing judicial officers is something upon which I have previously written
1. In that article I endorsed the principles articulated by the Bar Association of Queensland, namely that:

1. “The integrity, reputation and standing of the Courts is paramount;
2. The Judiciary must be independent from the other arms of Government;
3. The Judiciary must clearly and unquestionably be seen to be independent from the other arms of Government;
4. Any person who is appointed to lead the Supreme Court of Queensland ought to have the general respect of the legal profession and the Judges of the Supreme Court.”

In her article “Appointing Australia’s highest judges deserves proper scrutiny” 2, Dr Gabrielle Appleby 3asks

• Should judges also be representative of the community that their rulings affect?
• What role should politics play in judicial appointments, if any?

In my experience, as careful as any government might be in selecting its candidates for judicial office, the one criteria that can never be predicted and it may even be the most important, is the effect judicial office and its attendant power will have on the individual office bearer.

Diversity
In respect of the Diversity discussion Dr Appleby said:
“It has also been suggested that a diverse judiciary may bring different perspectives to how justice may be achieved. For example, Justice Bertha Wilson, Canada’s first female Supreme Court judge, argued that men and women often conceive of legal problems differently. Men see problems as arising from competing rights, whereas women see problems as arising from competing obligations. Women therefore emphasise the importance of preserving relationships, not winning or losing.

Secret Relocation Involved Blatant Cunning and Deceit

The issue of relocation was dealt with by Judge Neville in Nettle & Nada [2013] FCCA 1677 (31 October 2013).

In July 2012 the Respondent Mother and the subject child clandestinely moved / secretly relocated from New South Wales to Hobart, Tasmania, without reference to the Father and the Court. This subterfuge by the Mother was, and has continued to be, facilitated to a significant degree by her parents. The Father and the Court continued to be deceived that she remained living in New South Wales until March 2013. 1

The Court had no evidence regarding, among other things, the fiancé of the Mother and his involvement in the life of the child 2  and the Court learnt about the fiancé of the Mother for the first time in the course of the trial 3

Almost all of the major long-term issues involving the child thus far had been taken solely by the Mother, without reference to the Father (the surname of the child, details on her birth certificate, her attendance at day-care, all relevant health decisions). 4

The experienced Independent Children’s Lawyer proposed that the child remain living with her Mother in Hobart, primarily because the child was [now] well settled there.

Standing and Hypothetical Questions – The VLAD Challenge

In Kuczborski v Queensland [2014] HCA 46 (14 November 2014) the High Court of Australia considered the Vicious Lawless Association Disestablishment Act 2013 (Qld) and other related legislation. Relevantly for this article I will identify how the Court dealt with the issue of standing of the Plaintiff to sue.

French CJ

Standing and Hypothetical Issues

96 There was no dispute that the plaintiff, as a member of a declared criminal organisation, has standing to challenge the validity of ss 60A, 60B and 60C of the Criminal Code and ss 173EB, 173EC and 173ED of the Liquor Act. And no party or intervener submitted that the dispute about the validity of those provisions is hypothetical. Each provision prohibits what would otherwise be lawful conduct of a kind in which the plaintiff wishes to engage.

97 The State of Queensland and the Attorneys-General for the Commonwealth and Victoria intervening submitted, however, that the plaintiff has no standing to challenge any of the other impugned provisions and that the issues which he seeks to raise about their validity are hypothetical. All of those other impugned provisions (the whole of the VLAD Act, those provisions of the Criminal Code which provide for imposing more severe punishment on participants in criminal organisations and the impugned provisions of the Bail Act) (“the relevant provisions”) apply only to persons who have been charged with or convicted of certain offences. The arguments about standing and hypothetical issue in respect of the relevant provisions were all ultimately founded on the proposition that the plaintiff has not been accused of, or charged with, and does not say that he has committed, or will commit, any of the offences which engage the relevant provisions. And even if the relevant provisions are invalid, the plaintiff could not lawfully engage in the conduct which would have engaged those provisions.

98 Questions of standing, matter and hypothetical issue cannot be separated into watertight compartments. The statement in In re Judiciary and Navigation Acts 1 that “there can be no matter within the meaning of [s 76 of the Constitution] unless there is some immediate right, duty or liability to be established by the determination of the Court” emphasises the intersection between standing and matter and the associated question of whether an issue is hypothetical. As was said in Mellifont v Attorney-General (Q) 2, this statement in In re Judiciary and Navigation Acts refers not only to “the notion of an abstract question of law not involving the right or duty of any body or person”, but also to “the making of a declaration of law divorced or dissociated from any attempt to administer it”.

99 In this case, the central observation to make is that the plaintiff does not seek to have this Court establish by its determination of his challenge to the relevant provisions any immediate right, duty or liability which the plaintiff claims or to which he alleges he is subject. Unlike the plaintiffs in Croome v Tasmania 3, the plaintiff does not suggest that he will engage in conduct which will engage the relevant provisions. Because he does not say that he will engage in that conduct, the plaintiff does not show that he is a person who is now, or in the immediate future probably will be, affected, whether in his person or his property, by the relevant provisions 4. And unlike the challenge which was made in Croome, if the plaintiff succeeded in his challenges to the validity of the relevant provisions, the relevant conduct would still be unlawful.

100 It is not necessary, in these circumstances, to deal with any differences that may be revealed by the reasons for decision in Croome. It is not necessary to consider any more detailed questions about standing, matter or hypothetical issue. It is not necessary to consider whether, or when, a declaration may be made if the conduct in question is not lawful. It is enough to conclude that the plaintiff’s challenges to the relevant provisions (the whole of the VLAD Act, those provisions of the Criminal Code which provide for imposing more severe punishment on participants in criminal organisations and the impugned provisions of the Bail Act) fail for want of standing, or because, being hypothetical questions, there is no “matter” for the purposes of s 76 of the Constitution, or for both want of standing and absence of “matter”. It is not necessary, and the answers to the questions in the Further Amended Special Case should not attempt, to attribute one rather than another of those reasons to the plaintiff’s being refused the relief which he seeks in respect of the relevant provisions.

Crennan, Kiefel, Gageler and Keane JJ.

184 The established requirements as to standing ensure that the work of the courts remains focused upon the determination of rights, duties, liabilities and obligations as the most concrete and specific expression of the law in its practical operation, rather than the writing of essays of essentially academic interest. To recognise that a person has a sufficient interest to seek the exercise of judicial power where that exercise is apt to affect “the legal situation of persons subject to the jurisdiction of the court” 5serves to maintain the ordinary characteristics of judicial power 6.
185 It may be accepted that there is a general public interest that governments act in accordance with the law enforced by the courts [168 Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) HCA 49; (1998) 194 CLR 247 at 284-285 (109).]; but to conclude that the plaintiff’s sense of grievance at the injustice of these laws is not an interest which suffices to give him standing to challenge their validity is not to undermine this aspect of the rule of law 7. Any person actually in jeopardy of punishment under these laws will have standing to challenge their validity.
186 In addition, the established requirements as to standing help to ensure that the exercise of judicial power is informed, as fully as possible, by the “concrete adverseness which sharpens the presentation of issues” 8. It may be acknowledged that the rules as to standing will not always achieve that purpose, as will be seen in the discussion of the wide-ranging arguments agitated in this case in relation to the second category of challenged laws. Nevertheless, adherence to the established requirements as to standing is generally apt to improve the quality of judicial decision-making by ensuring that the focus and strength of the arguments advanced by the parties reflect the importance of the prospective outcome for the parties 9.
187 Finally at this stage, it may be noted that the plaintiff does not claim a declaration as to his proper sentence were he to commit an offence in circumstances which would attract the operation of the impugned provisions. Such a claim would also be an impermissible request for an advisory opinion 10. It is inconceivable that a court would entertain a claim for an indication, in advance of the commission of an offence, of the extent of the punishment to be imposed on a person contemplating the commission of the offence. It is not necessary to explore these difficulties further.
188 It is sufficient here to conclude that the plaintiff lacks standing to seek a declaration that the first category of laws is invalid.

Bell J also found the plaintiff had no standing to seek the relief he requested 11

Conclusion

Ultimately the questions the Plaintiff wanted resolved were not considered by the Court, because the Court found he had no standing to seek the relief he requested.

1. (1921) HCA 20; (1921) 29 CLR 257 at 265 per Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ; (1921) HCA 20 
2. (1991) HCA 53; (1991) 173 CLR 289 at 303 per Mason CJ, Deane, Dawson, Gaudron and McHugh JJ; (1991) HCA 53. See also Croome v Tasmania (1997) HCA 5; (1997) 191 CLR 119 at 124-125 per Brennan CJ, Dawson and Toohey JJ, 136 per Gaudron, McHugh and Gummow JJ; (1997) HCA 5; Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) HCA 49; (1998) 194 CLR 247 at 262 (37) per Gaudron, Gummow and Kirby JJ; (1998) HCA 49. 
3. (1997) HCA 5; (1997) 191 CLR 119. 
4. cf Toowoomba Foundry Pty Ltd v The Commonwealth (1945) HCA 15; (1945) 71 CLR 545 at 570 per Latham CJ; (1945) HCA 15; Croome (1997) HCA 5; (1997) 191 CLR 119 at 126 per Brennan CJ, Dawson and Toohey JJ, 137 per Gaudron, McHugh and Gummow JJ. 
5. Mellifont v Attorney-General (Q) (1991) HCA 53; (1991) 173 CLR 289 at 318; (1991) HCA 53. 
6. cf Mellifont v Attorney-General (Q) (1991) HCA 53; (1991) 173 CLR 289 at 304-305. See also Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 at 609-610 (41), 637 (121); (2000) HCA 11. 
7. See Keyzer, Open Constitutional Courts, (2010) at 138; Evans, “Standing to Raise Constitutional Issues Reconsidered”, (2010) 22(3) Bond Law Review 38 at 44-49. 
8. Baker v Carr (1962) USSC 48; 369 US 186 at 204 (1962); O’Shea v Littleton (1974) USSC 9; 414 US 488 at 494 (1974); Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) HCA 49; (1998) 194 CLR 247 at 262 (37). 
9. Mellifont v Attorney-General (Q) (1991) HCA 53; (1991) 173 CLR 289 at 318. 
10. In re Judiciary and Navigation Acts (1921) HCA 20; (1921) 29 CLR 257 at 265-267; (1921) HCA 20; Mellifont v Attorney-General (Q) (1991) HCA 53; (1991) 173 CLR 289 at 303. 
11. (285) 

Adult Child Maintenance

In Everett & Everett [2014] FamCAFC 152 (26 August 2014) the Full Court (May, Strickland & Tree JJ) considered the issue of adult child maintenance. Relevantly the Court found

• “(a) It is not a necessary element, before adult child maintenance can be ordered, that there be a warm relationship between the parent and the child; and
• (b) There should not be a practice in adult child maintenance applications of conducting a detailed examination of the relationship between the child and the Respondent; however
• (c) It cannot be said that the attitude or behaviour of the child to the Respondent could, to use the language of s 66K(1)(e), never be a special circumstance which, if not taken into account in the particular case, would result in an injustice or undue hardship to any person.” 1

• “The task confronting a parent, who wishes to rely upon the filial relationship in determining what contribution should be made by them to the maintenance of the child, is a particularly difficult one.”
• If the filial relationship is not taken into account, the parent would need to show that it would result in an injustice or undue hardship to either them or someone else.” 2

“Necessary” under s66L … “means that:

• The maintenance is needed by the child; and
• It is reasonable to require the parent to contribute,
• Having regard to the parties’ financial circumstances and other relevant factors.” 3 4

1. at para (47) 
2. at para (48) 
3. In the Marriage of Tuck (1981) FLC 91-021 per Evatt CJ and Murray J at 76,227 
4. at para (77) 

Apprehended Bias

On Thursday 28 August 2014 Ms Kathy Jackson was appearing as a witness before the Royal Commission Into Trade Union Governance and Corruption. During those proceedings Ms Jackson made an Application to preclude Mr Mark Irving, counsel for the Health Services Union, from cross-examining her. The following case note has been compiled predominantly using direct quotes from the transcript, with some editing on my part for emphasis.

Chronology

• Late 1992 or Early 1993 Ms Jackson and Mr Irving were in a sexual relationship
• That relationship lasted 6-8 weeks
• Monday 16 June 2014 It was obvious from this date onwards that the Health Services Union would be at issue with Ms Jackson on various factual matters and would wish to test her evidence by cross-examination.
• Wednesday 18 June 2014 Ms Jackson gave evidence to the hearing
• Thursday 19 June 2014. Ms Jackson gave evidence to the hearing
• Wednesday 30 July 2014 Kathy Jackson continued that evidence
• Wednesday 30 July 2014 The examination of Kathy Jackson by senior counsel assisting the Commission was interrupted when she made a successful application for an adjournment in order to procure some legal assistance.
• For some weeks Ms Jackson has had that legal assistance.
• Friday 22 August 2014 Solicitors for Kathy Jackson advised her that Mr Irving had applied to the Commission to cross-examine her
• Monday 25 August 2014 Kathy Jackson attended a conference with her solicitor and senior counsel and advised them that she had a concern about being cross-examined by Mr Irving
• Tuesday, 26 August 2014 The solicitors for Kathy Jackson wrote to the solicitors for the Health Services Union objecting to the application by Mr Irving to cross-examine Ms Jackson
• Wednesday 27 August 2014 The solicitors for the Health Services Union indicated that any application would be opposed
• Thursday 28 August 2014 Application by Kathy Jackson to preclude Mark Irving from cross-examining her
• Thursday 28 August 2014 Affidavit of Kathy Jackson
• Thursday 28 August 2014 Application Rejected

Evidence

The Prior Sexual Relationship Between Kathy Jackson and Mark Irving

Affidavit of Kathy Jackson (Affirmed Thursday 28 August 2014)
4 After about 8 months, in or about late 1992 or early 1993, Mr Irving and I had a few too many drinks and I went back to his place where we had a sexual relationship. I was at the time married to my first husband, which he knew. That marriage was unhappy and abusive.

5 Over the course of the next 6-8 weeks I would go back to his place after Friday night drinks and we would have sex. I recall he lived near the cemetery and he had a barber’s chair in his lounge.

Argument

In Favour of Allowing The Cross-Examination by Mr Irving To Proceed

• It is conceded that Mark Irving has been representing the Health Services Union for some two (2) years in litigation against Ms Jackson.
• It is common ground that the relevant events took place more than 20 years ago.
• There is no evidence of any ill-feeling or poor behaviour or unhappy behaviour during the intervening 21 years.
• On Monday 16 June 2014 Mr Irving announced his appearance that he was counsel for the HSU
• It must inevitably follow that in all likelihood he would be cross-examining.
• Ms Jackson knew of that situation from Monday 16 June 2014
• There is no question and no suggestion that any information which may have been imparted during this relationship some 20 years ago could have any relevance on proceedings before the Commission today.
• No medical evidence has been obtained supportive of the proposition that an examination by this particular counsel would have any impact one way or the other upon this particular witness.
• Kathy Jackson gave evidence to the effect that she has suffered serious mental health issues and has been on stress leave for two (2) years.
• However, that evidence:
• • Emanated from the witness;
• • was not supported by any medical evidence; and
• • was not relied on in the application to prevent Mark Irving from cross-examining Kathy Jackson.
• The objection was not to Kathy Jackson being cross-examined, but that Mark Irving should not carry out that cross-examination.
• Cross-examination of Kathy Jackson by either the junior counsel colleague of Mark Irving or the senior solicitor running the matter would be acceptable

Against Allowing The Cross-Examination To Proceed

• The witness, Kathy Jackson, is being compelled to answer serious allegations against her and to do so under oath;
• Inevitably, those questions go to some extent into personal matters, including matters relating to the personal relationships of the witness.

Decision

• The application should be rejected
• The events which underlie Ms Jackson’s application took place more than 20 years ago.
• They took place quite a number of years before the events about which there is a controversy between Ms Jackson and the Health Services Union took place.
• It has not been argued that Ms Jackson imparted information to Mr Irving in the course of their relationship which could be relevant to those events or to the Commission’s consideration of them.
• Indeed, the contrary is accepted.
• It is not alleged that the cross-examination by Mr Irving would cause Kathy Jackson any greater stress than that of any other cross-examiner.
• The application is not based on the position of Ms Jackson but on the position of Mr Irving.
• There was no evidence that:
• • Mr Irving will not be objective in his cross-examination of Kathy Jackson; nor
• • He would be hostile to the point of furthering a personal vendetta
• The record does not suggest that Mr Irving’s role has been that of attacking Ms Jackson as distinct from carrying out the legitimate instructions of his client in defence of its position.
• I must confess that the chronology that I have set out earlier undermines the credibility of the application.
• If Ms Jackson really had the fears and beliefs about Mr Irving that she claims to have, she would have protested at the time when Mr Irving first announced his appearance, but this was not done.
• For those reasons, I see no impediment to Mr Irving conducting the cross-examination of Ms Jackson.