Freud Slips over in Family Law Court

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I am often asked at the surgery "does this new family law court (sic, but herein FLC) at the Federal Magistrate Service (herein FMS) offer any relief from a bloke losing the shirt off his back"? In fact, because the FMS is so new I really have not had a handle on its performance, particularly in property matters (where the FMS has jurisdiction in cases up to some $700,000 asset pool). However I have had a child support victory against Slater & Gordon in front of Bryant CFM herself - the case of Woolley. Maybe Slaters were too preoccupied with inflating and deflating women's breasts, and lost the plot?

Please note, with most notorious notable notability that, as for FCA, "bloke friendly" decisions such as Woolley are not noted by way of publication at FMS site! However, Greerite cases such as the one below are published, with alacrity.

Anyway, looks like this new case posted at the FMS web site on 9 September 2002 might answer the above question in the negative. The promo for the gig says:

AP and ENP [2002] FMCA fam 16
Federal Magistrate Walters
27 June 2002
FAMILY LAW - Property settlement - husband Victorian war veteran - effect of wife's
psychological or emotional condition - wife suffering from untreated clinical depression
- application of s.75(2) factors.
(the emphasis is mine)

Please read the case and make up your own mind!

The Reasons for Judgment reveals that bloke was in fact a Vietnam War "veteran" (as "returned soldier" is now termed, to keep in with the Americans), and although he suffered such emotional stress in (real) war, he may have been left wondering if "the Victorian War" was a term borrowed from the black movie "War of the Roses" to describe (any) FLC, including the FMS, and the War turned out to be worse than the one in Vietnam.

Now, as I explain to blokes at the surgery, if you want to give the lot to Buttercup and lawyers there are 2 paths on the Yellow Brick Road. Firstly there is what the solicitors' union calls House & Garden, whereby you sign over your "consent" to 75% to Buttercup, all for $15,000 consideration to your solicitor. In House & Garden there is only one step - like you give her 75%, no reasons needed so no need to identify steps.

Secondly if you go to court with a solicitor/barrister to argue (not) your case, the court is obliged to explain the Reasons and it is a two step process, which I will explain below (because that's what happened in this case).

In this gig Buttercup claimed the normal shattered/battered symptoms of the normal "Little Ozzie Pensioner" (borrowed from Kay J in Halge & Carrol, and herein LOP), starting her pleadings as that she would be so distressed in her Divorce Investment Portfolio (herein DIP) if she did not get the lot, that she would top herself. The Magistrate explained to her that although bloke would be DIPed, he still had the right to a DIP hearing. Or in other words even a DIPpy Buttercup could not force an estoppel on s 79. Nice try but didn't work. But the lawyers knew that - it was just a facade to show bloke "how fair the court can be"! Besides bloke must be left with enough to pay the lawyers, as we see below.

So the first step is called contribution share, which using the so called "global" approach for a long marriage would be 50/50. In fact the Beak even tantalised bloke by saying he might have given him more than half but because of "alcohol abuse" he would give her 57.5%. He relied on a recent case in the Family Court of Australia (herein FCA) where bloke beat wife so wife got more. But wait on, this bloke never abused Buttercup at all, just the bottle (but see below).

Buttercup had deposed that bloke spent $5 per day on grog and $5 on fags, and bloke did not dispute that, in fact deposing that Vietnam caused the (mild) drinking. Well, 6 standard drinks per day is considered by health professionals as "social drinking" only and bloke would have needed to be on turps almost to get to 6 drinks for his $5. Moreover any self respectful "ATSIC type" in FNQ where I live (who turn their noses up at anything less than VB) would have got to $5 by elevenses (as well as $5 for fags), and any Family Court Lawyer (herein FCL) held to $5 a day would consider it "cold turkey". So it is hard to see that bloke was even abusing grog, quite apart from abusing Buttercup.

The second step is the "slush zone" of s 75(2), formerly termed the maintenance element, prior to 1987 when Parliament introduced s 77A to require the court to specify the slush so as to reduce Buttercup's hands-out from Centrelink, via "maintenance income testing". The court just stopped calling it maintenance and the rort continued at a cost of 2 billion dollars per annum to John Doe. Most Buttercups, having already become the "parent in possession" (of the kids) can pick up 25% here, no sweat. So how was the Beak in this case going to explain any s 75(2) with no kids at all? Well the answer is he did bring the total up to 75% (by adding 17.5% to the 57.5%), by way of the "health" and "resources" of the parties under s 75(2).

By synopsis I would call this the Tale of Two Pensioners. On one hand bloke was getting his TPI pension (from Danna Vale) by dint of fighting the yellow peril to save Oz and American apple pie, the horror of which left him "totally and permanently and incapacitated" (hence the TPI pension) and with a (very minor) drinking habit. All in all this resulted in deep depression, even before the Judgment.

On the other hand Buttercup was getting the Little Ozzie Pension (from Amanda Vanstone), by dint of a life as a sofa loafer watching Gerry Springer and reading Greer, also resulting in deep depression when her promised empowerment of bloke did not come off.

But the bottom line is that both were being supported by the taxpayer because they were in deep depression as a result of their respective "lives", but Buttercup's situation was seen by "Judge & Co" to be worth 25% more than bloke's situation. I doubt that a "fair minded" person/tax payer would see it that way (rather, the reverse), but that is what went down in this FMS gig, perhaps even outdoing the FCA? So short answer is FMS does not look like an alternative to FCA in shirt loss matters. The longer answer would be to repeat Colonel Kurtz in Apocalypse Now - The Horror ... The Horror!

By the way, the Beak conveniently made the order for $27,000 from Buttercup to bloke (so she could keep the home worth $145,000 as her DIP) to be via bloke's solicitor into his "trust" fund (aka solicitor's overseas holiday fund). So in this case the solicitor hardly even needed to do anything illegal (apart from the extortionate quantum of the fee) in simply keeping the money, 15 grand for him and 15 for the barrister as the fee for "service", though bloke might consider it as a fee for enhanced horror. Had the order been payment to bloke, then bloke could have contested the bill and lousy advocacy, or flown the coup with the $27,000, so the trust fund order was once again a device to ensure bloke ended with no shirt at all.

But you say the bill was 30 grand and bloke only got 27 grand? Well that is termed "the Golden But Say to You" - albeit not as great as an HIH Golden Hello! The lawyers forgive 3 grand of the bill by toting up 15 each, totalling it to 30 grand, but then on the next line saying "but say to you 27 grand". In this way they can sleep at nite, knowing they have been so fair and reasonable in not requiring bloke to go into debt to "get" his rightful property settlement (of zero). The Horror ... The Horror!

Only nice thing is bloke can no longer afford lawyers, so at last can actually seek a fair deal in court as a Self Represented Litigant, but with proper advocacy. His next step is an appeal of this gig to a single judge of FCA, and I for one would be prepared to prepare his appeal for him. It is not easy to come back from the ashes but it seems blokes will always dig a hole for themselves by first using lawyers, before any thoughts of reformation.

One wonders if bloke's grog expenditure might well have increased exponentially as a result of the Victorian War - well over that caused by the Vietnam War.

To be fair to the bloke, he might well have assumed ("ASSUME = to make an ASS of U and ME") his lawyer would be ethical, even prior to the flavour of the month (in Victoria only?) ethics consultant push/farce in law firms. Window dressing folks - nothing but window dressing. The plain truth is that if you use a lawyer in family law, it has always been, is now and ever will be The Horror ... The Horror!

PS - I played tennis last Monday (9 September 2002) against a lovely lady who works for the RSL (thankfully not renamed as VL) who tells me Danna Vale has a medal for little old me for my own service to Oz as a Vietnam conscript in 1965. She says it is a lovely medal and she will bring the application form (there is always a form) to tennis this Monday. This begs the question whether Veterans of Wars in the various FLCs should be so decorated.

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