Dispute Resolution Centre
Dispute Resolution Centre
Dispute Resolution Centre
27-30 July
Basic Mediation Course – held at the Marriott Resort Surfers Paradise,
Gold Coast, presenters, Professors Pat Cavanagh and John wade.
Evaluation of course:
http://www.bond.edu.au/law/centres/drc/feedback/GoldCoastJuly2006.pdf
LAURENCE BOULLE
3-5 May Presented opening keynote address at National Mediation Conference, Hobart, on a
National Mediator accreditation System. See report below.
10-11 April Attended members meeting of National Native Title Tribunal, Melbourne.
27-28 April Conducted with Pat Cavanagh Conflict Management course for REIQ.
10 May One day workshop for Residential Tenancies Authority for Australian Centre for
Peace and Conflict Studies, University of Queensland.
27 May Presentation on National Mediator Accreditation System at the Institute of
Arbitrators and Mediators of Australia annual conference, Palm Cove, Queensland.
5-15 June Conducted LLM Mediation course, with guest presentations from Professor Thomas
Trenczek, Professor Nadja Alexander, John Spender QC, and Pat Cavanagh.
JOHN WADE
20 April-17 May Negotiation training courses for Blake Dawson Waldron, Lawyers in Sydney,
Melbourne and Brisbane
Bond Dispute Resolution News
14-20 June Mediation and Arbitration training courses for Federal Department of Foreign Affairs
and Trade in Beijing and Bangkok, together with Professor Jeffrey Waincymer from
Monash University
11-13 August Visit Woody Mosten in Los Angeles
14-19 August Lead Five day mediation course at Southern Methodist University, Dallas Texas
28 August Negotiation training for Freehills, Lawyers and clients in Sydney
30 August One day conflict management workshop for Public Sector In-House Counsel, Hyatt
Hotel, Canberra
John Wade
August 2006 – Four chapters in Schneider and Honeyman (eds), The Negotiator’s
Fieldbook (American Bar Association: 2006).
Forthcoming with Jeffrey Waincymer, an article on International Trade and Conflict
Management (Australian Government).
(See C. Hedges War is a Force that Gives Us Meaning (NY: Anchor, 2003); abacus
by John Wade)
Outline
In 1991, a group of people associated with the Dispute Resolution Centre at Bond
University were invited by the Law Council of Australia to design a three-day training
course for arbitration of family property disputes.1
The designers attempted to follow adult learning theories and used learning ideas
from the successful mediation courses run through the Dispute Resolution Centre at
Bond University.
The family arbitration course has since been held on nine occasions around Australia
and over 240 of the most respected and “expert” family law specialists in the nation
have attended.2 Many hoped to become family arbitrators, or to participate in family
arbitrations as legal representatives, due to legislative developments in that field in
Australia in 1990s.3
The Decision-Making Exercise
One of the learning modules at each of the nine arbitration courses required each
family lawyer participant to write a judgment overnight on a set of facts which were
given to each person at the end of the second day of training. This exercise replicated
a budget arbitration-on-the-papers, which was predicted to be the most popular form
of family property arbitration, particularly for poor and middle-class families in
∗
Director of Dispute Resolution Centre, School of Law, Bond University, Gold Coast, Queensland,
Australia 4213; email [email protected]; website
http://www.bond.edu.au/law/centres/index. Consultant, Hopgood Ganim, Lawyers, Brisbane. This
is a revised version of an article which originally appeared in (2003) 17 Aust Journal of Family Law
224.
1
The group included Professors John Wade, Laurence Boulle and Bobette Wolski, lawyers Rick
Jones and Phil Theobald, and Sartaj Gill. Phil provided the original inspiration – see Family Law
Council, Arbitration in Family Law (Canberra: AGPS, 1988). See also now Catherine Morris,
Arbitration of Family Law Disputes in British Columbia – a paper prepared for the Ministry of
Attorney General of British Columbia, 2004.
2
Trainers have included Laurence Boulle, John Wade, Bobette Wolski, Phil Theobald, John
Hertzberg, John Dorter, Bill Westbrook.
3
See J.H. Wade, “Arbitration of Matrimonial Property Disputes” (1999) 11 Bond Law Review 395-
434 for a background and analysis to the legislative reforms in Australia.
4
eg see Whiteley and Whiteley (1996) FLC 92-684 (Full Court of the Family Court describes how to
write a judgment).
5
One participant, clearly unsuited to the arbitral role except for selected artistic clients, wrote his
judgment as doggerel poetry – see Annexure “C”.
hand column represents the arbitrators’ decisions on which valuation to accept, and
the middle column what percentage division to use. The third column represents the
arbitrator’s actual cash award to the wife, Mabel. The third column, which shows the
actual cash award, also indicates that occasionally there are puzzling discrepancies
between the percentage division allegedly applied, and the cash award actually made.
Most lawyers are not mathematicians.
COURSE A
M 60:40 $40,000
M 50:50 $36,000
M 45:55 $40,600
M 47:53 $38,500
F 30:70 $38,500
F 35:65 $40,000
F 40:60 $38,000
F 36:64 $59,000
M 40:60 $38,000
F 30:70 $54,400
F 45:55 $30,250
F 40:60 $38,000
F 40:60 $38,000
M 56:44 $30,000
M 35:65 $49,800
M 46:54 $40,000
M 46:54 $40,000
F 40:60 $38,000
M 46:54 $40,000
M 45:55 $40,200
M 35:65 $49,800
M 40:60 $45,000
F 50:50 $30,000
SUMMARY – COURSE A
COURSE B
M 30:70 $54,000
M 40:60 $42,000
F 69:31 $25,000
M 40:60 $43,000
F 25:75 $40,000
M 50:50 $36,000
M 43:57 $42,300
F 45:55 $34,000
F 45:55 $34,000
F 39:61 $38,500
M 40:60 $45,200
M 42.5:57.5 $41,000
F 40:60 $35,000
M 46:54 $40,000
M 30:70 $54,000
F 42:58 $36,500
SUMMARY – COURSE B
6
A. Sarat and W. Felstiner, Divorce Lawyers and Their Clients (New York: OUP, 1995).
decisions made in the past, habitual language used (eg “This is the range”; “You are
entitled to…; “That advice is wrong”; that is a “mistake”), and the concept of
“knowledge”.
What are Possible Explanations for this Diversity of Decision-Making
Outcomes?
The shock of experiencing first hand such divergent arbitral decisions has encouraged
attempted explanations or rationalisations. Is this “normal” divergence? Or are there
“special” factors present which make the scatter-gun outcomes exceptional?
Normal Diversity?
It is possible that this degree of divergence in substantive outcomes of family property
division, even between experts, is quite statistically “normal”.
There is a considerable body of knowledge and research which suggests that we as
(expert) human beings, are hard-wired to make unpredictable decisions.7 This
knowledge has, until the last decade, been missing from law libraries and the lawyers’
canon of rationality.8
What is unusual is to have nine large gatherings of experts in one field, who then
make considered written decisions upon identical facts. If such gatherings of experts
could be organised regularly in many fields of law, or in other kinds of decision-
making, then similar results may follow. That would be an interesting body of
research which may additionally change some people’s behaviour by the actual
process of participation.
To repeat, diverse outcomes may be normal, whereas the opportunity to observe and
personally experience diversity in a repeated and structured format, is abnormal. “I
always knew that, but now I really know that.”
If such diversity of decision outcomes between experts is normal, the vast majority of
the 240 participants did not perceive it to be normal. Somehow, through decades of
legal practice, they had preserved the belief in self and other expert colleagues, that
expertise and experience would produce common thought patterns, reasoning and
outcomes within a narrow 10% range.
How were such strong beliefs in the certainty of expertise and rationality held for so
long among so many lawyers? What psychological and sociological factors foster
such a delusion about the power of rationality? Anecdotally, lawyers are quick to see
inconsistency among clients, judges and other inexperienced lawyers.9 However,
these exercises compelled participation which indicated personal inconsistency with
respected peers. Lawyers do not like to make “mistakes”, and yet these exercises
seemed to indicate that the majority of experts were making “mistakes” (and had been
making them for decades).
7
J.S. Hammond, R.L. Keeney and H. Raiffa, Smart Choices – A Practical Guide to Making Better
Decisions (Boston: Harvard Business School Press, 1999); S. Plous, The Psychology of Judgment
and Decision Making (New York: McGraw-Hill, 1993).
8
The writings of the legal realists in the USA in 1920s and 1930s reflects the passing influence of
psychological studies upon lawyers’ beliefs and behaviours; eg see J. Frank, “Facts are Guesses” in
Courts on Trial (1949) ch 3; W. Twining, “Taking Facts Seriously” (1984) 34 J of Legal Education
22. See the very helpful A Kapardis, Psychology and Law (Cambridge UP, 2003).
9
See Sarat and Felstiner supra note 6.
10
For ‘normal’ unpredictability, see P Parkinson, “Quantifying the Homemaker Contribution in
Family Property Law” (2003) 31 Federal Law Rev 1.
city to country, and state to state in Australia. These divergent “settlement laws” are
statistically far more important than judge-made law, and are sometimes strangely
resistant to “official” versions of law coming from above.
Accordingly, these national gatherings of family law experts may have been applying
their local, and different, settlement laws to reach different outcomes.
(5) More Facts
These experts made their decisions based on six pages of summarised facts, evidence
and argument. Perhaps the wide range of outcomes would have narrowed with more
documents and more face-to-face questioning? Where the documents submitted for an
arbitration on the papers are clumsy, rambling or leave out “key” factors, then more
evidence and discussion would undoubtedly be helpful. Garbage in – garbage out.
However, in the actual exercises, very few wanted any more information, and most
commented that the information exceeded in content and clarity what would normally
be available when legal advice is given initially.
(6) More Practice
Anecdotally judicial friends tell me that it took them about four years of practice and
feedback to become comfortable and confident in their role as judges.
The socialisation process toward certain degrees of conformity had scarcely begun
with the expert family lawyers who attended the arbitration training courses. (Though
a number were very experienced registrars or arbitrators in other fields of dispute).
Accordingly, it could be argued, (though no-one did!), that the diversity of outcomes
would narrow from say 30% to 15% with the passage of time, practice, peer feedback
and appellate reprimand. Again, if this interesting “conformity” hypothesis is
“correct”, by anecdote or research, it would restore some confidence in the greater
degree of predictability of the college of judges.
(7) Modification by Market Forces?
Another possible explanation for the wide diversity of outcomes, is that these role-
playing arbitrators were not subject to the normal market pressures of keeping repeat
and paying customers satisfied. That is, a practising arbitrator is consciously or
subconsciously aware that both parties can bring future business, and so tries to find a
result which will “give everyone something”. This is one of the standard critiques of
arbitrators (and sometimes judges also), namely that they tend to split the difference
between two extreme claims – or divide the assets, and then refuse to award costs to
the perceived “winner”.
Role-players may feel freer to decide upon their perception of “justice”, without the
modifying market pressure to keep both “customers” satisfied.11
Possible Implications of Diverse Outcomes?
What are some of the possible implications from these diverse outcomes for (expert)
family lawyers? There are many. Six of these are set out below.
• multiplying “error” rate of decisions made by experts in isolation
11
V. Aubert, “Competition and Dissensus: Two Types of Conflict and Conflict Resolution” (1963)
VII Conflict Resolution 26, 39-42.
12
P. McDonald (ed), Settling Up: Property and Income Distribution in Australia (Melbourne:
Prentice Hall, 1986).
13
A. Sherr, “Lawyers and Clients: The First Meeting” (1986) 49 Modern Law Rev. 323.
14
McDonald supra note 12.
15
J.H. Wade, Representing Clients at Mediation and Negotiation (Bond University, 2000) p 189.
11. Experts giving advice in isolation 11. Any expert overconfidence on the
tend to fall into the overconfidence part of the arbitrator is qualified by
trap.16 the immediate visibility of written,
summarised conflicting facts,
perception, evidence and claims.
12. Then the lawyer is subject to the 12. Any expert overconfidence on the
normal trap of finding evidence over part of the arbitrator is qualified by
months or years to confirm what (s)he the immediate visibility of written,
has already spoken/written/advised.17 summarised conflicting facts,
perception, evidence and claims. Also
the arbitrator on the papers will
receive no further evidence; and is
part of a decision making culture
which cognitively tries to “suspend
judgment”, till everything has been
read (or heard) in the very short time
frame available.
13. Then the lawyer consciously or 13. An arbitrator’s decision does not
subconsciously frames the claim and serve the extra purpose of
version of events favourable towards commencing negotiations, or of
his/her client to provide a starting providing a starting point from which
point in predicted negotiations. concessions can be made.
14. Because expert lawyers tend to work 14. The expert arbitrator’s decision is
in relative isolation, their non- under the spotlight of being fully
publicised (often initially oral) advice written, vigorously analysed by
is not subject to peer review or clients and lawyers, and perhaps on
accountability. appeal by a public judge.
Additionally, there is pressure for the
decision to be so impressive that the
arbitrator will be hired again,
preferably by both referring lawyers,
and by other lawyers, who gossip
constantly about the competence of
various service-providers.
To repeat, it is reasonable to hypothesise that all these extra well established variables
will create even wider diversity, and less bunching, in the advice (decision-making) of
expert family lawyers. Accordingly, it should be no surprise that some lawyers begin
negotiations with such wildly divergent advice and claims, other than as a conscious
bargaining tactic. This is not a counsel of despair, rather of humility and caution.
16
Hammond supra note 7.
17
Ibid.
Some lawyers continue to deny that this experiment could have produced such
uniformly “random” results on nine separate occasions. Perhaps, seeing would induce
belief. Perhaps not.
A few commercial lawyers deny that consistently random decisions are a problem for
their more “rational” universe. Others debunk that alleged commercial rationality as
mythology.20
18
See Sarat and Felstiner supra note 6.
19
Studer v Boettcher [2000] NSWCA 263 at 63 per Fitzgerald JA (S.C. of NSWCA). See also G.L.
Davies “Fairness in a Predominantly Adversarial System”, ch 7 of H. Stacey and M. Lavarch (eds)
Beyond the Adversarial System (1999).
20
See R. Benjamin, “Negotiation and Evil: The Sources of Religious and Moral Resistance to the
Settlement of Conflicts” (1998) 15 Mediation Q. 245.
Presumably the denying family lawyers will continue to give 10% (or less) range legal
advice confidently based upon rationality and expertise. There is little public
accountability for this arguably erroneous advice, possibly due to a number of
interesting structural causes. First, in Australia 97%–99% of family property disputes
are settled by negotiation, abandonment or mediation. The confident and wrong
advice (“I have decided that this is what a judge will do in two years’ time”) is hardly
ever put under the public spotlight. In those 1%–3% of situations where the accuracy
of the expert advice is actually tested by a final judicial decision, then it is easy to
explain the “irrational” (ie outside the narrowly predicted range) outcome as
“exceptional” due to factors such as “the wrong judge”, or “weak witness”. Moreover,
few surviving clients have the funds or stamina or risk tolerance to ask three allegedly
“rational” appellate judges to override the allegedly “irrational” trial judge.21
Secondly, lawyers do not have an established culture of peer mentoring or
supervision. Initial oral or written advice is not systematically put under the spotlight
by learned colleagues (who are isolated, busy and working on their own billable
hours).
Thirdly, lawyers do not have established practices of regularly sitting in with
colleagues to study different interviewing and advice-giving habits.
Fourthly, more publicly visible letters of demand, initial written offers, and court
documents engage in predictable high claims or low offers. This normal tactical
method of commencing negotiations effectively hides what “real” advice has been
given to a client behind the inflated or deflated visible demands.22
Fifthly, it is rare for lawyers to invite the spotlight into their offices in the form of
researchers to record, systematise and critique patterns of interviewing and advice –
giving behaviour.23
These are five structural reasons why there is little accountability or transparency for
lawyers when making decisions which lead to key advice being given to clients. This
assists the “ten-percent delusion”.
Thus the Gnostic belief system that (my) expert decision-making processes produce a
narrow range of outcomes has some high protective walls. What can be done about
this structural self-delusion? The delusion may also serve the useful social purpose of
“ending” some disputes, even if confidence in the “accuracy” of the expert’s decision
is not statistically justified.
(4) Legal Education Revisited
21
Although court statistics are difficult to interpret, there were approximately 12,692 applications
made for property orders in the Australian Family Court between 1 July 1999 and 30 June 2000.
Less than 5% of these reach a full judicial hearing. Less than 9% of full judicial hearings receive
appellate decisions. See Family Law Council, Statistical Snapshot of Family Law 2000-01
(Commonwealth of Australia, 2002).
22
For the standard arguments and research favouring commencing some negotiations “high-soft”,
“low-soft”, or near to the “insult zone”, see R Lewicki et al, Negotiation (New York: McGraw-
Hill), 2006, p 48. For legislative attempts to control this common practice, see for example Legal
Professional Act 1987 (NSW) s 198 J (lawyers must certify that claims have “reasonable prospects
of success”); and attempted rebuttal in N Beaumont, “What Are Reasonable Prospects of Success?”
(2002) August Law Soc J (NSW) 42. See also W Pengilley “But You Can’t Do That Anymore! –
The Effect of Section 52 on Common Negotiation Techniques” (1993) 1 Trade Practices Law J
113.
23
Compare Sarat and Felstiner supra note 6.
Pre-law, law school and continuing legal education have been subjected to constant
criticism for a century in Australia and elsewhere. The critics queue up to tilt at
windmills and to heap scorn on the random and destructive goals, methods, resources,
culture, timing, sequence, feedback, assessment, outcomes, teacher selection and
training at law schools in Australia and elsewhere.24 Law schools are not alone as any
educational institution can attest.
This study only adds ammunition for the critics. Where can the more-than-nominal,
less-than-amateur study of the psychology and sociology of human decision-making
(arguably the bread and butter of any lawyer) be fitted into an already overcrowded
law school curriculum? What coverage is “dropped out”? Which teachers and
researchers should be sacked, retrained or hired?
The Law school staff, curriculum and language strongly emphasises the power and
correctness of “legal reasoning”. How can these important foundational skills of
deductive and inductive reasoning be balanced by insights from psychology,
sociology and communication? This is a repetitive cry from the wilderness, though
some small steps back and forth have occurred over the last 80 years.25
(5) Arbitration Demythologised
These startling results have made some experts who attended the family arbitration
courses reluctant to pioneer the use of family arbitration. They discovered
24
eg see note 25, Twining, Arthurs and MacCrate; Law Schools and Professional Education (ABA,
1980: “The Cramton Report”): J. Richardson, “Does Anyone Care for More Hemlock?” (1973) 25
Journal of Legal Education 427; D.D. McFarland, “Self-Images of Professors: Rethinking the
Schism in Legal Education” (1985) 35 J Legal Educ 232; F.A. Allen, “The Causes of Popular
Dissatisfaction with Legal Education” (1976) 62 ABAJ 447; D.C. Bok, “A Flawed System of Law
Practice and Training” (1983) 33 J Legal Educ 570; B. B. Boyer and R.C. Cramton, “American
Legal Education: An Agenda for Research and Reform” (1973-74) 59 Cornell Law Rev 221; R.
Cramton, “Professional Education in Medicine and Law: Structural Difference, Common Feelings,
Possible Opportunities (1986) 34 Clev St Law Rev 349; A. D’Amato, “The Decline and Fall of
Teaching in the Age of Student Consumerism” (1987) 37 J Legal Educ 461; M.L. Levine, Legal
Education (England: Dartmouth, 1993); “Legal Scholarship in the Common Law World” (1987) 50
Modern Law Review; D. Pearce et al, Australia Law Schools AGPS 1987; J.H. Wade, “Legal
Education in Australia – Anomie, August and Excellence” (1989) 39 J of Legal Educ 189; A.
Ziegart, “Legal Education and Work: The Impossible Task of Teaching Law” (AULSA Conference,
1988); P. Spiller, “The History of New Zealand Legal Education: A Study in Ambivalence” (1993)
4 Legal Educ Rev 223; W. Twining, “Developments in Legal Education: Beyond the Primary
School Model” (1990) 2 Legal Educ Rev 35; J.H. Wade, “Legal Skills Training: Some Thoughts on
Terminology and Ongoing Challenges” (1994) 5 Legal Educ Rev 173; W. Twining, “Preparing
Lawyers for the Twenty-First Century” (1992) 3 Legal Educ Rev 1; W. Twining, “Bureaucratic
Rationalism and the Quiet Revolution” (1996) 7 Legal Educ Rev 291; T. Voon and A. Mitchell,
Professor, “Footnotes and the Internet: A Critical Examination of Australian Law Reviews” (1998)
9 Legal Educ Rev 1; V. Brand, “Decline in the Reform of Law Teaching?: The impact of Policy
Reforms in Tertiary Education” (1999) 10 Legal Educ Rev 109; P. Ramsden “Improving the Quality
of Higher Education: Lessons from Research on Student Learning and Educational Leadership”
(1995) 6 Legal Educ Rev 3; E. Clark, “Australian Legal Education a Decade After the Pearce
Report” (1997) 8 Legal Educ Rev 213; D. Weisbrot, “Competition, Cooperation and Legal
Change”, 4 Legal Educ Rev 1; O. Kahn-freund, “Reflections on Legal Education” (1966) 29
Modern Law Rev 121; A Kapardis, Psychology and Law: A Critical Introduction (Cambridge UP:
2003).
25
W.L. Twining, Law in Context – Enlarging a Discipline (Oxford: Clarendon, 1997) esp. chapters 3
& 4; 14-16; Social Sciences and Humanities Council of Canada, Law and Learning (1983: “Arthurs
Report”); ABA, Legal Education and Professional Development – An Educational Continuum
(1992: “MacCrate Report”).
experientially that the enemy lies within. Predictably, attendees uniformly expressed a
litany of grievances towards the litigation system in Australia.26
However, some were obviously disappointed that the decisions of expert colleagues
were even more unpredictable than those of Family Court judges.
The voluntary use of arbitration faces a predictable hurdle. How to find an arbitrator
who has a publicised record across a variety of disputes which indicates acceptable
process, and ranges of substantive outcomes which receive majority approval in the
“expert” community of referring family lawyers? Catch-22.
The only eligible candidates appear to be recently retired, highly respected, motivated
and still energetic Family Court judges. A neophyte arbitrator may be advised to set
up a website of his/her anonymised and indexed awards, so that potential go-between
lawyers can develop some confidence about where (s)he falls in the (±30%) range of
family property division.
(6) The Reform Pendulum Between Discretion and Rules
These “experiments” indicate (yet again) a dramatic level of unpredictability in
human decision-making, even among “experts”. This may reopen the ongoing tension
between fixed rules and uncertain discretion in family property, or any, legislation. Is
it better to have the injustices of certainty, than the injustices of discretion?27
The latter appears to be the consistently preferred end of the rule-discretion spectrum
in Australia. If so, then family lawyers should continue to advise clients (as they
already do), that litigation and arbitration outcomes are indeed a lottery.
Moreover, if judges and arbitrators regularly cannot provide substantively just or
predictable outcomes, then it arguably becomes vital for them to offer respect,
listening skills, intelligence and other forms of emotional and procedural “justice”.
Conclusion
This article has provided yet another illustration of the unpredictability of human
decision-making in the context of written arbitration awards in family property
disputes. Moreover, expertise, experience and education do not apparently give much
comfort that the range of outcomes will be narrow or predictable.
Attempts can, and should, be made to explain, rationalise or “distinguish” this
conclusion of uncertainty. Nevertheless, most of these attempts ring hollow.
Lawyers have always advised clients that judges and suburban practitioners (non-
experts) are irrational and unpredictable. But to discover experientially that the dragon
lies within self and within expert colleagues is a sobering event. Learned books may
have exposed the dragons of decision-making for centuries. We lawyers neither read
nor believe those books. They are not “law” books. We have special and marketable
immunity via education, experience and “rationality”. However, holding the dragon
by the tail has proved to be an uncomfortable learning experience.
26
See Australian Law Reform Commission (ALRC) Managing Justice: A Review of the Federal Civil
Justice System (Report No 89, 2000).
27
eg. Australian Law Reform Commission Report, Matrimonial Property No 39 1987; D. Galligan,
Discretionary Powers: A Legal Study of Official Discretion (OUP, 1986); J.H. Wade, “Recurrent
Themes in Family Law: Everything Old is New Again” (1991) 12 Australian J of Marriage and
Family 97.
“A”
Facts: Mabel and I married in 1992. We lived together for a total of eight and a half
years between 1992 and 2000 in the Lismore area. We mainly lived on a small farm
which I bought in joint names in 1993 with an inheritance of $40,000 received from
my mother. Mabel left finally in 2000 taking our three children now aged 8, 6 and 4
years. She lives with a friend on the Gold Coast in a rented house. She is on social
security. I live on the farm with my girlfriend. I was paying $117 per week child
support between 2000 and January 2001. I have not paid anything since January.
There has been a lot of arguing. Mabel is greedy and unreasonable. She does not get
on with my relatives.
Income:
Husband 2000 - $480 per week average (see attached income tax return)
Debts:
Issues:
Fred’s submissions
(i) Valuation
My valuer should be accepted (valuation is attached). He lives in the area and is well
known. No houses have sold on our street in the last two years for over $50,000. My
town is very depressed economically.
(ii) Percentages
My mother’s inheritance paid for the farm completely. I maintained the farm
completely between 1992 and now, doing planting, mowing, fixing, fencing as well as
my handyman job. Mabel looked after the children – she did a good job there. She
never had a job – I paid for everything. She had a good life and everything would
have been ok if she didn’t keep packing up and leaving. She was influenced by her
feminist friends (and still is).
My job is very uncertain due to the recession and less work in the town.
(i) I pay Mabel $22,000 in 4 equal $5,500 amounts each four months over the
next 16 months; or
(ii) I pay Mabel $20,000 within 4 weeks of this order being made;
(iv) The farm be immediately transferred to me and Mabel can protect her interest
by caveat.
Signed ……………Fred……………
Dated…………………………2001.
The Lismore area continues to be depressed. Sales of small farms are slow.
This farm at 17 Daffodil Street (photo attached) was on the market 4 years ago with
our firm. No realistic buyers emerged. It is a subsistence farm for chickens, sheep and
a few cows. It is not near to public transport and is surrounded by numerous derelict
properties.
Its redeeming features are a well kept bitumen driveway, a neat flower garden and a
compact workshed.
One small 3 hectare farm in Lilifield Street in Lismore sold in December 2000 for
$69,000 but it was well kept, in good position with fences in a good state of repair.
Facts: I agree with most of Fred’s facts dated………………. 2001, but I am not
greedy and unreasonable.
I have had three children (and one abortion) due to Fred. I now have the care of three
demanding children. I am constantly stressed and exhausted. I did not work between
1992 and 2000 because Fred insisted that I stay at home and care for him and the
children.
I worked very hard on the farm – feeding chickens, cleaning the house, washing,
cooking, ironing, driving children around.
The reason I had to leave so often was that Fred’s relatives are interferers and never
thought I was good enough for Fred.
The farm was put in joint names in 1993 because I said to Fred that I did not feel
secure for the future. He wanted me to stay.
Fred says his job is insecure but he has always wanted to reduce his workload.
Assets:
Debts:
Issues:
Mabel’s submission:
(i) Valuation
(ii) Percentages
(ii) I received little parenting help from Fred and total hindrance from his nearby
relatives;
(iii) I have a long future committed to the children with few prospects;
(iv) Fred’s mobility and job prospects have not been harmed by the relationship
(ii) In default, the farm be put up for sale and if need be, be auctioned and from
the net proceeds Mabel be paid (i) $40,000 and (ii) any arrears of child support
which the Child Support Agency says is owing at that time.
Signed ………Mabel…………..
Dated ………………………2001
I am a registered valuer with McArthur & Co, Warwick, Queensland. I have 22 years
of experience in valuing properties in Queensland and NSW.
I viewed the property at 17 Daffodil Street, Lismore (photo attached) and some other
comparative farms in the area which have been sold over the last year. Sales of small
farms have been slow for the last three years but are picking up over the last 6
months.
The farm consists of 4 hectares of flat grassland with some fences in a state of
disrepair. There is a three bedroom house, a large workshop which is used for
repairing machinery and the south eastern corner is well orcharded with orange trees.
Comparable small farms have been sold in the area for $53,000, $69,000 and $59,000
over the last three months.
This farm is at the higher end of that range due to the workshop, orchard, well kept
gardens and sweeping bitumen driveway. I estimate the current value at $67,000. This
may increase over the next year.
“B”
Background facts
Mabel and Fred married in 1992 and separated in 2000. 8.5 year cohabitation in the
Lismore area. There are three children of the marriage, aged 8, 6 and 4 years. The
wife is now living in rented accommodation with the three children. The husband has
remained in the matrimonial home since separation.
The issues
The evidence
(ii) the husband was in full employment during the period of cohabitation and
remains in full time employment.
(iii) the wife took a full time role as homemaker and parent during the course
of cohabitation.
(iv) the wife is dependent on social security for hers and the children’s support.
(v) The husband stopped paying any child support in January 2001.
(vi) The husband has a new partner. There was no evidence of her income or
financial resources.
(vii) With the exception of the former matrimonial home, the assets of the
parties total $25,000.00, and their debts, including both parties legal fees
amount to $4,700.00.
Findings
Both parties had formal valuations of the property prepared. Mr Jones, Fred’s
valuer who had worked in Lismore for 8 years, said the farm had a value of
$55,000.00, based on the following considerations:
and one comparable sale of a property of 3 hectares, [smaller than the subject
property] which was sold in December 2000 in good condition for $69,000.00.
I therefore find the value of the property is $67,000.00 and the total net assets of
the parties amount to a total value of $92,000.00 - $4,700.00. I have included
both parties legal fees in this calculation. I have no evidence of the precise break
down of the wife’s debts, and as the parties legal fees appear to be about the
same, I see no prejudice to either party if I take this course.
On the basis of the wife’s evidence I am satisfied that she played a role on the
farm beyond her role as homemaker. The husband in his submissions has asked
me to accept that his wife played no role in improvements to the property.
However, both valuers have commented favourably on the beautiful garden the
wife submits she created. In addition, she looked after the children, the
household tasks and was mainly responsible for ferrying the children to their
various activities. I am satisfied that Fred performed the majority of tasks on the
property, as well as contributing his income from his employment to the family.
Contributions
1. The only factors which I have considered in departing from a finding of equal
contributions by both parties to the acquisition, conservation and maintenance of
the property, is the husband’s contribution in 1993 of $40,000.00 received by
way of inheritance from his mother and the husband’s exclusive occupation of
the home since separation. It is evident the husband has been in a much stronger
financial position in the last year or so.
2. Although I do not accept the husband’s submission that he did 100% of the
work on the property, I do accept that this windfall as I will call it, allowed the
parties to purchase the Daffodil Road property. It was a significant contribution
which enabled the parties to acquire the property in the first place. Taking into
consideration the fact that the husband has had the benefit of the home since
separation I have determined the level of the husband’s contribution at 63% and
the wife’s at 37%.
1. the wife’s continuing care of 3 young children which is a very significant factor
in diminishing her prospects for an improved income position.
2. the husband’s failure to pay child support since January 2001 and his
submission that he is unlikely to be in a position to pay child support in the
foreseeable future.
Determination
The husband will receive 43% of the net pool of assets, and the wife 57%.
As the wife already holds assets of $10,000 less $3,000.00 in debts = $7,000.00 she
requires an additional $42,761.00 to hold 57% of the pool. The husband already holds
assets of $15,000.00 less debts of $1,700.00 = $13,300.00.
Given the husband’s income and poor employment prospects, I believe on the
evidence between me that it is unlikely the husband will be in a position to pay to the
wife the sum required to satisfy these Orders. However, as both parties submit that if
possible, the property should be transferred to the husband, I have made Orders to
give him that option. In the event the husband is unable to satisfy the Order, the
property will be sold.
Orders
1. That on or before 20 January 2002 the husband pay to the wife by way of
property settlement the sum of $42,761.00
payable as follows:
(a) $7,761.00 on or before 20 August 2001
(b) $7,000.00 on or before the 20th day of each subsequent calendar month
2. That simultaneously with the final payment referred to in Order 1 herein, the
wife will do all things necessary to transfer to the husband all her right title and
interest in the property known as and situated at 17 Daffodil Street, Lismore,
being all the land contained in Folio Identifier…
3. That in the event the husband does not pay any instalment by the due date, the
parties shall do all acts and things necessary to list the property for sale by
private treaty and by way of consequential arrangements in relation to the sale:
(a) details of agents, sale price, etc
(b) and the property shall remain on the market until sold
5. That except as otherwise provided in these Orders, the parties to retain all… etc
Arbitrator28
28
All arbitrators worked through the night after a course dinner to produce their awards.
“C”
Bonding to Bond
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Dispute Resolution Centre
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J H WADE
Director
Bond University Dispute Resolution Centre