War of the Roses in real life!  A parenting case in the Family Law Court   

In 1989, a movie starring Michael Douglas and Kathleen Turner hit the big screen.  The movie was essentially about a wealthy couple with a seemingly perfect marriage.  When their marriage falls apart, material possessions become the centre of an outrageous and bitter divorce battle.

During their marriage the Roses purchased a beautiful old mansion.  Upon the demise of their marriage, both become obsessively determined to keep the mansion and went to extraordinary lengths to get the other to leave.

The last scene of the story is the Roses clinging to a grand chandelier in the foyeur of the mansion that is about to fall... (which ironically Mrs Rose had loosened so that it would fall on Mr Rose and kill him)..   in the movie, the Roses fall with the chandelier and are killed...

Fortunately, that last scene wasn\\\'t acted out in the real life version of War of the Roses ... (nor was the chandelier a feature .. )

Ms McIntosh appeared as Barrister for a Husband in a factual circumstance with some similarity to the movie War of the Roses.

The issues before the court were both property and parenting (4 children ranging in age from 5 to 13).  The parties had lived separated under the same roof for nearly FOUR years as neither would leave the very large mansion-like matrimonial home which the parties had lovingly built in happier times.  On realising the marriage could not be saved, both wanted the home, the children and the lion\\\'s share of the money.  Neither would relent.  The evidence disclosed a tense and stressful homelife marked with abuse between  the parties and resulting  violence between children.  It could be fairly described as a family in crisis.

The Wife threatened the Husband she would take an AVO \\\'out on him\\\', no doubt hoping the Husband would leave.  He didn\\\'t.  The result of that was the Husband distanced himself from the family which was fast becoming dysfunctional.  The Husband \\\'stepped\\\' in when things got out of control (such as one child stabbing another child in the head) but he could no longer function as a father figure or the disciplinarian which the three young boys needed for fear he would be accused of violence.  The Wife was the passive abuser, using the children as a weapon against the Husband, telling them that he was \\\'mean\\\' and refusing to allow the Husband time with them alone.  Financially, the Wife held most of the matrimonial property (in cash) in her name and refused to give any of it to the Husband.  The tension and extraordinary living circumstances meant that everyone including the children were suffering.  The parties needed a resolution and fast.

Extensive and detailed settlement negotiations were undertaken over several months leading up to hearing but the parties could not resolve their differences.

The hearing commenced and the Husband gave evidence and was cross-examined.  As with the Roses, the Husband\\\'s sense of normality had altered whilst living under such stress for so long and this was evident in his evidence.

With leave of the court, settlement negotiations commenced in earnest outside the courtroom and the parties finally and painstakingly (with the help of Ms McIntosh and the Wife\\\'s Counsel), brought the parties to an agreement to end 18 years of cohabitation.  In the end, they agreed to sell the matrimonial home, a 50:50 split of the matrimonial property pool and equal time with the children.  A sensible arrangement and a win/win for the parties.

It was finally over for the Sydney \\\'Roses\\\' but in this story, the parties walked away alive and well.

 

 

SUPREME COURT OF NEW SOUTH WALES

When can a CAVEAT withstand an application for removal when the Caveator has NO REGISTRABLE INTEREST IN LAND?

The general answer to this proposition is it cannot    ...   except, as Ms McIntosh submitted, in potentially ONE limited circumstance.....

In Ryan v Kalocsay [2009] NSWSC 1009 (10 August 2009) Ms McIntosh appeared for the Defendant on a Notice of Motion filed by the Plaintiff.  The Plaintiff\'s application was to have a caveat lodged by the Defendant removed.  The property was the object of the substantive proceedings.  Ms McIntosh quite rightly conceded that the Defendant did not have a registrable interest in land, however, as said by His Honour Slattery at the hearing, Ms McIntosh may have stated the only answer in defence of its removal.  The proposition is, supported in law, that a caveat may be ordered to stay in place if there is only a short time before trial and the balance of convenience so dictates.

The outcome of this motion was that after discussions between the parties and submissions before His Honour, the caveat was ordered to be removed however the Plaintiff entered into an undertaking not to increase borrowings against the property beyond an agreed amount.  It was a satisfactory outcome for all parties.Quoting from the case,starting at paragraph 10:

\"In answer to these submissions Ms McIntosh, who appears for the plaintiff, has effectively conceded the underlying legal merits of Ms Mahmud\'s submissions on this point. She takes a different tack and submits that the balance of convenience requires the caveat to remain in place because there is now only a short time before trial. She refers to the decision of Young J in Beneficial Finance Corporation v Multiplex Construction Pty Ltd [1995] 36 NSWLR 510, and in particular to page 532 where his Honour said:

Again the Court will decline to remove a caveat for a short period of time even if doubtful about the existence of a proprietary interest: see Martyn v Glennan [1979] 2 NSWLR 234 and Kingstone Constructions Pty Ltd v Crispel Pty Ltd (1991) 5 BPR ¶11,987 at 11,991. Thus a proprietary interest in land in the common or garden sense of that term is not always required though at least some of these cases may be explained by the practice of this Court not to determine borderline cases at an interlocutory stage so that if there is an arguable case that the caveator has an interest in land the court allows the caveat to remain until the trial exacting an undertaking as to damages because of the inadequacies of s 74P of the Real Property Act 1900.

11 The two cases referred to by Young J in Beneficial Finance Corporation v Multiplex Construction Pty Ltd provide substantial support for Ms McIntosh’s submission. In Martin v Glennan & Anor (1979) 2 NSWLR 234 the Court held in relation to the former s 97(5) of the Real Property Act that where proceedings are on foot by the caveator to enforce the interest which the caveat has been lodged to protect, there is no bar to the exercise of the Court\'s discretion to remove the caveat. The principles applicable to a case where a caveator has commenced proceedings are similar to those where the caveator has not commenced proceedings. Justice Waddell in Martin v Glennan says that:

\"The correct principles to apply are those appropriate to an interim injunction, that is to say that the caveat should be removed unless the caveator can establish that he would be entitled to an injunction restraining the proprietor from dealing with the land until the determination of the proceedings brought by the caveator\"

12 Ms McIntosh says that here the caveator would be entitled to an interim injunction restraining the registered proprietor from dealing with the land until the determination of the proceedings and therefore the caveat should not be removed now. However both Glennan v Martin and Beneficial Finance are both authority for the proposition that the Court looks at the question as a matter of the balance of convenience.

 

Jill McIntosh of McIntosh Chambers practices in a variety of Jurisdictions including:

Family Law (Parenting and Property/Defacto, married and same sex couples)

Civil/Commercial and Contractual Disputes

Insurance and Personal Injury

Family Provision

Equity

Criminal (Local, District and Supreme Court hearings and applications)

Supreme Court

Appellate

Services provided by McIntosh Chambers (Jill McIntosh, Barrister-at-Law):

Advocate in Contested Hearings

Supreme Court/District Court/Local Court Applications

Court Appearances (Directions/Mentions)

Family Court Appearances

Tribunal Appearances (ADT and CTTT)

Mediation/Arbitration

Settle and advise on documents

Legal Advice

 

Successful Defence of Indecent Assault Charge              

A 25 year old woman caught a train to work as she had done so for the last four years.  She fell asleep on the train and says she awoke with the hand of the defendant high up on inner right thigh and in between her legs.

She alleged the defendant kept his hand there for 5 or 10 minutes whilst she sat there with her eyes closed trying to decide what to do.  Eventually, she says she pushed the defendant out of his seat and waited for  the train to arrive at the next stop.  The woman disembarked (although it was not her regular destination) and alerted railway security.  Police attended a short time later and took statements from the alleged victim and a witness who was on the train.  The Defendant was  located, arrested and charged.  The matter came before the Court at the Downing Centre.

Jill McIntosh was briefed to appear as Barrister for the Defendant.

Section 61L of the Crimes Act 1900 (NSW) - Indecent Assault - Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 5 years.

The police served an Indicatable Brief of Evidence.  The matter was heard in the Local Court by a Magistrate.

The case was robustly prosecuted and vigorously defended. 

The stakes for the Defendant were high.  A conviction for such an offence was likely to have devastating consequences for the Defendant and his family.  The possibility of imprisonment,  a criminal record, the ongoing requirement for disclosure of such an offence in general life and a place on the sex offenders register.  The Defendant was, however, a fairly ordinary soul with a non-descript life.  A hardworking  Figian/Indian immigrant  of Muslim faith and a long married family man, with three school aged children. He was a \'clean-skin\' with no record.  Not even a driving offence. 

The Prosecution case included seven (7) witnesses, one of whom was on the train at the time of the alleged incident.

The Defence case had only one witness.  The Defendant.

The court was \'in camera\' (in private) under s291 Criminal Procedure Act 1986 (NSW) when the alleged victim gave her evidence.  Section 291 (1) states Any part of any proceedings in respect of a prescribed sexual offence in which evidence is given by a complainant is to be held in camera, unless the court otherwise directs.

Ms McIntosh cross-examined several of the police witnesses.  The witness on the train was questioned extensively.  Most importantly, though, the alleged victim was  cross-examined exhaustively for several hours.

The Defendant gave evidence and was led by Ms McIntosh slowly and deliberately through his version of events.  He did not deny that he was seated next to the woman and that he was the man who was pushed by her.  Ms McIntosh set up a \'train seat\' with two chairs in the courtroom so Her Honour could see and the Defendant was asked to sit on the seat and arrange his briefcase and paper as he had done that day. 

The Defendant claimed he did not really notice the woman until she turned slightly sideways, looked at him as though something was wrong with her and pushed him twice out of his seat.  On being pushed, he quickly left his seat and moved towards the exit.  The Defendant strenuously denied he put his hand anywhere on her particularly not her leg or thigh.  He conceded he may have touched her accidentally whilst reading his paper but wasn\'t sure.

The Prosecutor cross-examined the Defendant on whether he said \'I\'m sorry ma\'am\' after being pushed from the seat.  The Defendant claimed he said \'sorr-eee\', meaning \'I\'m sorry I ever sat there\'. 

Denying a charge in itself does not persuade a court or give rise to reasonable doubt.  The plea of not guilty communicates the Defendant\'s denial.  The Defence case was that the alleged victim\'s version of events  at the penultimate moment did not occur.  A challenge to the minute details of the alleged victim\'s version was required.

At the conclusion, Her Honour carefully weighed up the evidence.  After some very tense moments, Her Honour decided she was not persuaded at the requisite level  (beyond reasonable doubt) the event had occured as described by the complainant.  This, Her Honour said, was due to the slight shift in the complainants evidence whilst under cross-examination.  Vigorous and unrelenting cross-examination by Ms McIntosh highlighted inconsistencies in versions given to police and that which was told to the court.  Ms McIntosh extracted an admission from the complainant  she may not have actually seen the hand on her leg after all!

The result?

CASE DISMISSED

WHO ARE OUR CLIENTS?

 

Clients of MCINTOSH CHAMBERS are generally practising solicitors or legal practitioners who seek an advocate for court appearances and/or other specialist services incidental to appearing and preparing to appear in court.

MCINTOSH CHAMBERS welcomes enquiries from persons who are not solicitors or legal practitioners who have litigation or potential litigation issues they are concerned about.

Ms McIntosh has specialist expertise in FAMILY LAW and has appeared and advised in numerous matters in both the Family Court of Australia and Federal Magistrates Court often with excellent results.

Ms McIntosh appears and advises in:

• Parenting Disputes
• Property Settlement matters (involving complex business interests, family trusts, superannuation)
• Divorce matters
• De-Facto relationship (under the Family Law Act 1975 (Cth))
• Binding Financial Agreement matters

Clients who are struggling with marriage breakdown require EXPERIENCE, EMPATHY and CARE!  Ms McIntosh understands the stress and pressure on the client and can present their case to the Court to achieve the best possible result.  She is, by nature a warm and caring person with a lot of life experience to draw upon.  An ESSENTIAL ingredient when understanding the strain that a breakdown in family relationships bring to bear.

 

 

 

MEDIATION

It is much less expensive than court proceedings.  Ms McIntosh appreciates the significant costs (financially and otherwise) that parties go through in litigated family law and domestic relationships matters and is skilled at helping parties reach agreement through these processes.

The advantages of using Mediation to resolve family law disputes include:

• The issue can be dealt with more quickly than waiting for a court date;
• The parties involved make the decision and so are more likely to \'own\' the result;
• The more conciliatory approach may allow former spouses to preserve their relationship in some way which is particularly important when parties have children.

Ms McIntosh has assisted many clients resolve their issues by attending at mediation with the client.  Not all matters are suitable for mediation but Ms McIntosh can help decide and facilitate that process if appropriate.

 

 

Ms Jill McIntosh was called to the Bar in November 2005 and is admitted as a Lawyer in the Supreme Court of New South Wales and the High Court of Australia.

Prior to her successful career in law, Ms McIntosh worked for about 15 years in various management roles in corporations such as Hewlett Packard, Columbia Pictures, Amway of Australia and EMI records.

Ms McIntosh has developed a general practice and competently undertakes work in a variety of jurisdictions.

Ms McIntosh accepts briefs to appear in the  Local Court (civil and criminal) to appellate advocacy in the Supreme Court.

Please direct your enquiry in the first instance to Ms McIntosh on 02 90249540 or by email on This email address is being protected from spambots. You need JavaScript enabled to view it..

The following is just some of the feedback Jill McIntosh has received from her clients and colleagues over the years:

 

 

Thank you so much for everything you have done.  Thanks so much for your support and wisdom.

Email from client 10 January 2014 (mother of child on serious criminal charges)

 

I feel so safe with you.  You are a wonderful person.

Comment from client outside of court November 2013

 

I am speechless with happiness.  I can’t believe what you achieved.  I’m breaking open the champagne tonight.  Thank you so much.

Client comment on the telephone after receiving Judgment in November 2013

 

Thank you again for helping me this week you did an amazing job against a formidable opponent without the resources of an instructing solicitor.

Email from client 16 November 2012 (end of hearing and now waiting for Judgment)

 

You turned nothing into something.  I can’t believe it was possible.

Client’s comments outside the court, matter part-heard from October 2013

 

Ms McIntosh has received many words of thanks from clients and solicitors from 2011 to 2012 ...

 

You were sent to me!  I was so lucky to have you.  Just so lucky!

Words of client at Family Court hearing on 14 September 2011

I know [name of solicitor] briefs you all the time in Family Law.  I just got a matter opposite him.  I know he will brief you.  Are you in it yet? (Answer: not yet)  Consider yourself briefed by me first.

Opponent solicitor at Family Court hearing on 14 September 2011

 

The time has flown since the June hearing. I meant to drop you a line in the meantime. I was so happy with the way you handled everything. You were fantastic! Thankyou! I\\\\\\\'m really looking forward to the conclusion, and putting all this behind me.

Email from client 28 August 2011 (waiting for Judgment)

 

You have all our family law work.

Comment by solicitor in telephone conference July 2011

 

You finished him off in cross-examination!  I couldn\\\\\\\'t believe what I was reading.  It was brilliant.  Just brilliant

Comment by solicitor after reading transcript of hearing July 2011

 

I have a basic understanding of what happened in Court on 3 March and I am grateful for your protection on that day and as a Professional Firefighter with over 20 years experience in dealing with chaotic situations I feel I am qualified to say that you maintained great composure given your late [entry into the matter] and limited preparation within a fluid and somewhat hostile situation.

Email from client 10 March 2011

 

Jill, the client is so happy with you.  Well done.

Solicitor in text message after Court February 2011

 

Dear Jill, GREAT JOB.  Thanks & very well done.  Kind Regards...

Handwritten words written by solicitor on remittance slip 20 October 2010

 

Words can\\\\\\\'t describe how happy I am.  I want to hug you!

Client outside court, Friday, 1 October 2010

 

I haven\\\\\\\'t briefed you before but I was very pleased with your performance.

Solicitor comment outside court

 

Jill, I talked to many barristers before taking you onboard.  I\\\\\\\'m so so glad I chose you.  You really understood my case, not just for me, but for my family and because of you I can start my new life from right now.\\\\\\\'

Client stated after orders made at court on Tuesday, 28 September 2010

 

Thank you, thank you.  My daughter and I are so happy.

Client statment after court and Judgment delivered orally after hearing, Tuesday, 31 August 2010

 

Dear Ms McIntosh, Congratulations!

Email from solicitor after receiving Judgment in parenting matter, Friday, 27 August 2010

 

I got everything I asked for. Thank you, Jill. You are a brilliant barrister and worth every cent...’

Client wrote on Facebook page, Thursday, 1 July 2010

 

That was amazing work, Jill. I can’t believe how you turned everything around!’

Client referring to cross-examination of opponent – June 2010

 

Family law is all over now. Thank God and thank Jill (my barrister)”

Client wrote on my Facebook Wall on 21 May 2010

 

‘Paul came and told me that he thought you were exceptional. I’ve never had a client tell me their barrister is exceptional before.’

Comment by solicitor during court proceedings – 21 May 2010

 

‘I’ve briefed you before and am happy to brief you again. Your work is excellent.’

Remark by solicitor before briefing Ms McIntosh for a hearing in May 2010

 

‘Jill, I don’t know what I would do without you.’

Conversation with Jill B on telephone

 

‘Thank you for making that so much clearer for me. I didn’t really understand it but you made it all make so much sense. I am so grateful’

Conference with client re family property matter – Parramatta

 

‘Your help has been wonderful. I don’t know what we would have done if you hadn’t been there for us.’

Telephone conference with Victorian solicitor

 

‘Jill, you are meticulous with your work and that is very impressive. My clients have full confidence in you.’

Solicitor briefing McIntosh Chambers for nearly four years

 

‘I’m so glad this is finally over. You have made the journey so much easier.’

Comment by client in Family Court, Sydney

 

‘This legal journey has been heartbreaking but you have made it so much easier. Thank you.’

Telephone conversation after court with client.

 

‘Thank you so much for everything you have done. WE can move on now thanks to you.’

Mother of child outside children’s court, Parramatta

 

‘I thought I was gone but the Judge seemed to understand what you were saying and now everything is ok. Thank you.’

December 2008 – Defendant in criminal sentencing matter, Penrith Local Court

 

‘I don’t know how my family and I can thank you for what you have done for us. We are indebted and truly grateful for everything you have done.’

The mother of the client in a Family Court children’s matter at the Family Court, Parramatta

 

‘Without your help, we couldn’t have got out of the mess we were in. Thank you.’

Telephone conversation with direct access client.

 

‘I only want you to represent me, no one else. I couldn’t do this without you.’

Comment by client outside WorkCover interview

 

‘you are my good luck charm!’

Comment by client outside court – Parramatta

 

‘Thank you. Without you, I wouldn’t know who to trust.’

Conversation with Helen C in the Court – Sydney

 

‘You and [solicitor] have been amazing. You are both on my list of people I recommend to others.’

Email from client

 

‘Hi Jill, I never got around to properly thank you for your effort in the matter of .. It is very much appreciated .. another job well done girl!’

Email from instructing solicitor

 

‘thank you very much for your time and the outcome reached this morning. During this process I have been extremely impressed by your professionalism and attitude. I realise you are busy and whilst this may have been a minor matter, we did appreciate you taking this on.’

Email from Sony (corporate) for direct access brief.

 

‘Dear Jill, Great job on the [name] matter yesterday. Hope the good run continues. I have a new matter for you.’

Email received from Solicitor, Chris of Wentworthville

 

‘Thank you for everything Jill. The solicitor told me you were good but you went beyond my expectation.’

Conversation with client, Mr H, outside court in Parramatta.

 

‘Jill you have all my work. I wouldn’t trust anyone else with my legal problems.’

Conversation with client, Scott K – Vaucluse

 

‘Thank you again for everything you have done we really appreciate the time and effort that you and Mark put into it we cannot find words to express our gratitude to you both thank you. Kindest regards Tracey & Chris M

Email received from client to Solicitor and myself – Tamworth

 

‘thank you so much, Jill for all your help. I can’t believe it’s all over now. Words can’t express the relief I feel. You have been amazing.’

Conversation with client, Mr R, outside court in Liverpool

 

‘Jill I appreciate your diligence and ability to think with a great deal of precision and focus a rare talent. Combined with your extensive practical experience in so many disasters, this is not a criticism; you have developed the skills to handle just about anything with a great deal of expertise and relevance. I feel far less stressed knowing that you have that empathy and intelligence that gives you great insight into the many complexities that operate in any situation especially a legal confrontational situation and this will provide an excellent basis to become an outstanding Barrister.’

Email received from client, Helen – Castle Hill

 

Jill, I am writing for two reasons: firstly, to thank you for your recent effort with my property settlement proceedings and to say that, with the information available to me at this time, I am pleased with the result. From my understanding of our conversations the result is better than you had envisaged. Again, my thanks to you for your effort and support ... Again, my thanks for the achieved result that you brought about.’

Email received from client, Craig – Liverpool

 

 

 

 

The dates in the calendar below are an indication of when Ms McIntosh may be available to take a COURT HEARING DATE or other events such as Mentions, Directions, Court Appearances, ALTERNATE DISPUTE RESOLUTION or MEDIATION.  Please ensure you contact Ms McIntosh to confirm.

 (For dates beyond March 2014 please contact Ms McIntosh’s chambers.)

January 2014

MONDAY	TUESDAY	WEDNESDAY	THURSDAY	FRIDAY
	14	15	16	17
20	21	22	23	24

February 2014

MONDAY	TUESDAY	WEDNESDAY	THURSDAY	FRIDAY
3		5		7
10	11	12	13	14
17	18	19
	25	26	27

March 2014

MONDAY	TUESDAY	WEDNESDAY	THURSDAY	FRIDAY
3	4	5	6	7
10	11	12		14
	18	19	20	21

If you require CHAMBER WORK such as conferencing, advice, settling of documents or other work primarily done in CHAMBERS, DO NOT rely upon these dates for availability.  Ms McIntosh works full-time at the NSW Bar and the following is not indicative of when she is available for work outside of court.

Please contact Ms McIntosh or her clerk on (02) 9024 9540. You may also contact Ms McIntosh at This email address is being protected from spambots. You need JavaScript enabled to view it..

 

Disclaimer:  The details above have been provided as a useful tool and an indicator as to Ms McIntosh\\\'s availability for court appearances.  While all due care and diligence has been used to maintain the relevant data, the author of this website at McIntosh Chambers does not make any representations or warranty as to its accuracy.

 

DID YOU KNOW YOU CAN APPROACH A BARRISTER DIRECTLY?

If you have received court papers and you are identified as a DEFENDANT, whether they are criminal or civil proceedings, you may contact McIntosh Chambers directly.  You do not necessarily need to contact a solicitor first.

• If you are contemplating whether to COMMENCE legal action, or if you have ALREADY commenced legal action, you also may also contact McIntosh Chambers directly. 
  
  A Barrister may look at your case for you and decide whether there are factors in which your case would be best served by having a solicitor on the record.  There are some things that a Barrister cannot do for you such as general legal work that is not related to court.  Sometimes the need for a solicitor will arise whilst you are working with the Barrister directly.
  
  There are some positives for you as the client to work directly with a Barrister if the Barrister accepts your case on a direct access basis.  Some of these are:
  
  *  It is possible that you might save some money in that you wont be charged for your solicitor briefing your Barrister as you wont have a solicitor (unless the need arises of course);
  
  *  You will get to know and work one on one with the Barrister; and
  
  *  You may feel that you have more insight into your case as the Barrister is not removed from you.
  
  There are also negatives to working directly with a Barrister.  Some of these are:
  
  *  There can be an urgent need to brief a solicitor at short notice and that solicitor is not familiarised with your case; and
  
  *  There may be work that you will need to undertake as if you are your own solicitor such as writing some letters in your own name which may not have the desired effect that a letter written in the name of the legal practitioner may have.
  
  
  
  

Disclaimer:  A Barrister in practicing in New South Wales must comply with the NSW Bar Rules which are made under s702 of the Legal Profession Act NSW (2004)