LEGAL PRACTITIONERS ADMISSION BOARD MARCH 1996 FAMILY LAW TIME: Three Hours. Candidates are required to attempt FOUR questions - ONE QUESTION FROM EACH PART No question is compulsory. All questions are of equal value. If a candidate answers more than the specified number of questions, only the first 4 questions attempted will be marked. All questions may be answered in one examination booklet. Each page of each answer must be numbered with the appropriate question number. Candidates must indicate which questions they have answered on the cover of the first examination booklet. Candidates must write their answers clearly. Lack of legibility may lead to a delay in the candidate’s result being given. Permitted Material: No materials, other than those listed below, are permitted in the examination room. Either Australian Family Law Act 1975 with Rules and Regulations, CCH or Australian Family Court Legislation Service, Butterworths. The Law Extension Committee’s Family Law case list is attached to the examination paper. Permitted materials may be underlined or highlighted but must not be otherwise marked or annotated in any way, nor may stickers or fliers be attached to the materials. As some instances of cheating and of bringing unauthorised material into the examination room have come to the attention of the Admission Board, candidates are warned that such conduct will result in instant expulsion from the examination and may result in exclusion from all further examinations. PART ONE Answer only ONE question from this part. Question 1. In R v Lambert; Ex parte Plummer (1980) 146 CLR 447, Gibbs J, discussing the test for validity of laws under s51 (xxi) of the Commonwealth Constitution stated (at 456- 457): The crucial question, however, is whether the legislation creates, defines or declares rights or duties that arise out of, or have a close connection with, the marriage relationship. If not, the law cannot be said to be one with respect to marriage. ....... The question whether a law is one with respect to marriage is one of degree. The answer to it depends on the closeness of the connection between the law and the marriage relationship. Sometimes...it is helpful to consider what sorts of rights and duties flow from the relationship marriage in the ordinary understanding of reasonable men. That is not to say that Parliament cannot create new rights and duties of a kind not previously envisaged. But there comes a time when it is inaccurate to describe rights and duties, although created in respect of a child of a marriage, as rights and duties arising out of the marriage relationship.” Discuss, critically the above quotation with reference to the facts of Lambert’s case and other cases concerning the scope of s51 (xxi) of the Constitution. Question 2. John and Marcia were married in 1988. Following the marriage, they moved in with John’s mother and step-brother, on a property owned by John. A child, Susan, is born to John and Marcia in February 1990. The circumstances of the household are strained by the poor relationship between Marcia and John’s mother. In January 1996, Marcia leaves the home, taking Susan with her, stating that she has had enough of John’s mother. She also alleges that John has been violent towards her and Susan. By a consent order made in the Local Court of New South Wales, Marcia is given sole custody of Susan. Marcia and Susan are presently living in a women’s refuge. (Question 2 continues) (Question 2 continued) Marcia now wishes to obtain exclusive occupancy of the home. It transpires that John’s mother claims an equitable half share in the home, and in August 1995 lodged a caveat on the register to protect her claimed interest. John’s brother-in-law claims to be a tenant of John’s mother, pursuant to a lease executed in August 1995. Marcia seeks your advice about obtaining exclusive occupancy of the home. Advise her. Question 3. Answer BOTH (a) and (b). (a) Explain and discuss the effect of the decision of the High Court of Australia in Harris v Caladine (1990-1991) 173 CLR 84. What are the practical implications of this decision with respect to orders made by consent by Registrars of Judicial Registrars of the Family Court of Australia? (b) Michael and Lisa have been married since 1982. They separate in July 1995. Lisa continues to live on the farm the parties occupied during the marriage. The farm property is owned by the parties as joint tenants. In February 1996 Michael arrives with some workmen and begins cutting down trees and removing gravel and earth from the property. Lisa protest, but Michael tells her that he owns half the property and has a right to take the timber, gravel and earth from it. Lisa seeks your advice about obtaining an injunction under s114 of the Family Law Act 1975 (Cth) preventing Michael from removing any more earth or timber from the land. No other proceedings have been contemplated by Lisa at this stage. Advise Lisa. PART TWO Answer ONE question from this part. Question 4. Margot, a 35 year-old mother of two children (now aged 8 and 11) meets Gerald, an extremely successful business man at a party in September 1992. They commence a sexual relationship shortly afterwards. Margot had been married before, but her previous husband died in 1990, leaving her in strained financial circumstances (she has no marketable skills). (Part Two Q uestion 4 continues) (Part Two Question 4 continued) Margot and the children move in with Gerald in his luxury northern beaches home in December 1992. Gerald pays for the children to attend a very expensive and well- regarded private school. Margot and the children are provided with a lavish standard of living. In September 1995 Gerald asks Margot to marry him. She says no, telling Gerald that the memories of her past marriage are too painful. Gerald is upset at Margot’s response, and becomes agitated. He tells her that if she does not marry him, the children will be taken from their schools and she will be left to look after them herself. He also says that he will apply for custody of the children, and use Margot’s history of depression following her first husband’s death against her in the proceedings. Margot is extremely upset at the thought of the children losing their new-found advantages, and worried at the prospect of losing custody of them. A friend studying family law tells her that Gerald may have a case for custody, but that it was hard to predict the outcome. This intensifies Margot’s concerns. On 14 November 1995 Gerald and Margot are married in a civil ceremony. In March 1996 Margot approaches you and says she wants to get the marriage annulled. She says that Gerald has become violent, and she is terrified of him, and scared for the children’s safety. She tells you that she would never have got married had it not been for her fears for her children’s future. Advise Margot about her prospects in a nullity application under s51 of the Family Law Act 1975 (Cth). Comment upon what evidence she might need to maximise her chances of success in such an application. Question 5. Andrew and Sarah were married in October 1994. On 4 January 1995 Sarah is told by a friend at work that Andrew is having an affair. Sarah believes her friend, and confronts Andrew. Andrew denies the story, and an argument ensues. Sarah refuses to talk to Andrew after the argument, and commences to sleep on the sofa-bed. The parties cease sharing meals, although Sarah allows Andrew to eat leftovers from the meals she prepares for herself, and continues to do the washing and ironing. Andrew continues to do the gardening. Between 4 January and 31 December 1995 the parties have sexual intercourse on four occasions. Sarah continues regularly to go with Andrew to work functions and dinners. On New Year’s Eve 1995 the parties have a long talk, and agree that they should continue with the marriage, and discuss ways of improving it. Sarah returns to sleep with Andrew in the main bedroom. On 30 March 1996 Andrew confesses to having had an affair. Sarah says nothing, but storms out of the house, leaving most of her possessions behind. (Question 5 continues) (Question 5 continued) Sarah approaches you for advice in April 1996. she wants to know the earliest date upon which she can file an application for dissolution of marriage under the Family Law Act 1975 (Cth). She tells you she has not spoken to Andrew since she left the house. Advise her. PART THREE Answer ONE question from this part. Question 6. Discuss the approach to the assessment of contributions to property owned by the parties to a marriage under s79 of the Family Law Act 1975 (Cth), as interpreted by the Family Court of Australia and the High Court of Australia. What, in your view, are the merits and/or shortcomings of the present state of the law in this area ? Question 7. Helen consults you in March 1996 about her prospects in an application for property settlement under the Family Law Act 1975 (Cth) against her former husband, Bill. She tells you the following facts: (a) She and Bill were married in May 1968. Helen is now 49; Bill is now 52 years old. (b) There are three children of the marriage. Tom and Peter were born in 1969 and 1972, and are now both self-supporting. Alison was born in 1981 and is presently being looked after by Bill. No formal orders have been made with respect to the custody of Alison. (c) During the marriage the parties lived in a home given to them in July 1968 by Bill’s parents, both of whom are now dead. The property was and is held by Helen and Bill as joint tenants. (d) Shortly after the marriage, Bill qualified as an architect, and joined the firm of Smith & Co. He is now a senior partner in that firm. The partnership deed of Smith & Co states that an interest in the partnership may not be transferred without the consent of 75% of the partners. Bill presently receives $80,000- $100,000 per annum as his share in the profits of the firm. (Question 7 continues) (Question 7 continued) (e) Prior to the marriage Helen had been in regular employment as a book keeper. She did not work between 1968 and 1976. Between 1976 and 1981 she resumed full-time employment. She left work again between 1981 and 1985. During her absences from the work force she looked after the children on a full- time basis. She has been in employment since 1985, earning about $26,000 per annum. (f) In January 1994 Helen won $250,000 in Lotto. $150,000 of this remains in a bank account in Helen’s sole name. $50,000 was spent on a holiday for the family and a new car. The remaining $50,000 was used by Bill to buy a block of land. He told Helen he would pay her back, and gave her $15,000 to this end in January 1995. (g) Helen has been told that Bill has been joined by the Local Council as a defendant in a negligence action brought by a member of the public ( X”), claiming damages following the collapse of a platform in a building designed by Bill and occupied by the Council. $1 million in damages is sought by X. Advise Helen of the potential significance of each of the above matters in the proceedings she is contemplating. Question 8. Discuss the principles governing the approach of the Family Court of Australia to assets owned by family companies or trusts in property or maintenance proceedings under Part VIII of the Family Law Act 1975 (Cth). PART FOUR Answer ONE question from this part. Question 9. Philip and Margaret were in a de facto relationship between 1989 and July 1995, when they separated. A child, Mark, was born to the couple in February 1990. During the relationship, Philip worked full-time. Margaret worked occasionally, but spent most of her time looking after Mark. Philip spent time with Mark on weekends. Following the separation, Margaret retains custody of Mark. Philip exercises access on alternate weekends. No formal orders are made. (Part Four Question 9 continues) (Part Four Question 9 continued) In August 1995, Philip begins a homosexual relationship with Steve. Steve moves in with Philip in December 1995. Access by Philip to Mark continues, with Steve present during most access visits. In January 1996, Philip notices large bruises on Mark’s arms and legs. When asked about these by Philip, Mark says Mummy’s friend did it”. Philip is concerned that Frank, Margaret’s new boyfriend, is being violent towards Mark. He contacts Margaret, who tells him that Frank sometimes hits her, but does not hit Mark. Philip’s fears are not allayed. He seeks your advice regarding his chances of obtaining custody of Mark. He tells you that he has a report from a paediatrician stating that Mark has definitely been subjected to serious physical abuse. Advise Philip. Question 10. Answer both (a) and (b). (a) Discuss the effect of the decision of the Full Court in Brown and Pedersen [1992] FLC 92-271. (b) In Horman and Horman (1976) 5 Fam LR 796 at 797 Fogarty J stated: Our community enjoys the benefits of widely differing social styles and attitudes and it would be unacceptable if a parent’s custodial position was endangered simply because that person’s mode or style of living or attitude to life differed even radically from what might be regarded as the community norm”. What are the implications of this statement for custody and access decisions under Part VII of the Family Law Act 1975 (Cth)? Illustrate your answer with reference to decided cases. - End of pa per -