AHSAN & AHSAN
[2019] FamCA 616
•2 September 2019 (Amended pursuant to r17.02A on 3 September 2019
FAMILY COURT OF AUSTRALIA
(As Amended by Rule 17.02A on 3 September 2019)
| AHSAN & AHSAN | [2019] FamCA 616 |
| FAMILY LAW – CHILDREN – Undefended hearing – Where the father did not comply with trial directions and had disengaged in the proceedings – Where the father perpetrated family violence against the mother – Where the father has alienated the three oldest children from the mother – Where the expert opined that the alienation of the children from the mother constitutes psychological abuse – Where least detrimental order for three oldest children to live with the father – Where best interests of the two youngest children to live with the mother – Where no order made changing the statutory conferral of joint parental responsibility. FAMILY LAW – PROPERTY – Undefended hearing – Where the wife seeks that she receive 80 per cent of the asset pool – Where the husband seeks that he receive 40 per cent of the asset pool – Where the husband did not provide adequate disclosure including a failure to disclosure the source of his legal costs – Where the husband has a valuable financial resource available to him – Where funds added back and credited to the husband to account for his unilateral disposal of the parties’ matrimonial assets – Where orders made for the wife receive 65 per cent and the husband 35 per cent of the asset pool |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAC, 75, 79, 117 Family Law Rules 2004 (Cth) rr 11.02, 16.07, 19.18 |
| Bevan & Bevan [2013] FamCAFC 116 Colgate Palmolive v Cussons Pty Ltd [1993] 46 FCR 225 G & C [2006] FamCA 994 Goode & Goode (2006) FLC 93-286 Harris & Dewell & Harris (Costs) [2018] FamCAFC 180 Herold & Herold (2015) FLC 93-628 In the Marriage ofBlack and Kellner (1992) FLC 92 – 287 In the Marriage of Weir and Weir (1993) FLC 92-338 Kohan & Kohan (1993) FLC 92-340 Mazorski & Albright (2007) Fam LR 518 McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92 Penfold v Penfold (1980) 144 CLR 311 Stanford v Stanford (2012) 247 CLR 108 Trevi & Trevi [2018] FamCAFC 173 Wayne & Wayne [2010] FamCAFC 33 Yunghanns & Ors & Yunghanns & Ors & Yunghanns [2000] FamCA 681 |
| APPLICANT: | Mr Ahsan |
| RESPONDENT: | Mr Ahsan |
| Independent children’s lawyer: | Legal Aid NSW |
| FILE NUMBER: | PAC | 2493 | of | 2016 |
| DATE DELIVERED: | 2 September 2019 (Amended pursuant to r17.02A on 3 September 2019 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 25 October 2018, 29 October - 2 November 2018, 12 December 2018, 5 February 2019 and 2 September 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Ahmad |
| SOLICITOR FOR THE APPLICANT: | Integrated Law Group |
| SOLICiTOR FOR THE RESPONDENT: | Barber Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Neville |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
PARENTING
(1) The children F born … 2003, E born … 2004 and D born … 2007 (“the older children”) live with the father.
(2) The older children spend time with and communicate with the mother in accordance with their wishes.
(3) The children C born … 2008 and B born … 2011 (“the younger children”) live with the mother.
(4) The mother have sole parental responsibility for the younger children.
(5) The younger children spend time with the father as follows:
a. (a) Commencing on the first Saturday after the date of these orders and each alternate Saturday thereafter for a period of six (6) months on a supervised basis with such supervision to be undertaken by a supervision centre or supervision service as nominated by the mother from 10am – 2pm or for such period not exceeding four hours as may be facilitated by that supervision centre or supervision service. The costs of supervision are to be paid by the father;
b. (b) Thereafter, for a period of six months each alternate weekend from 10am Saturday to 10am Sunday with changeovers to occur at a contact centre or supervised by a supervision agency as agreed between the parties with the cost of supervised changeover to be shared equally between the parties;
c. (c) Thereafter:
i.(i) During the school term from after school or 3:00pm each alternate Friday to 6:00pm Sunday;
ii.(ii) For half of all school holidays on an alternating week basis, commencing from the conclusion of school with changeovers to occur at 12pm each week thereafter (except for Christmas Day);
iii.(iii) On each child’s birthday for a period of three hours as agreed between the parties and failing agreement from 3:00pm to 6:00pm;
iv.(iv) If Father’s Day falls outside the father’s time with the younger children in accordance with these Orders, then the younger children are to spend time with the father on the Father’s Day weekend from after school on Friday immediately prior to Father’s Day until 4:30pm on Father’s Day;
v.(v) From 10:00am on 23 December until 10:00am on 25 December; and
vi.(vi) Such other times as agreed between the parties.
d. (d) If Mother’s Day falls outside the Mother’s time with the younger children in accordance with these Orders, then the Father’s time is suspended for the Mother’s Day weekend.
e.(6) For a period of twelve months from the date of these orders the siblings are to spend time together as agreed between the parties for no less than four hours each week, with such time to occur at a supervised contact centre or be supervised by an agreed agency with the cost of the supervision to be shared equally between the parties.
f.(7) In order to facilitate the younger children spending time with the father pursuant to Order 5(c) changeovers shall occur at school or outside school hours at Suburb AA McDonalds.
g.(8) Both parties are restrained from taking any of the children to any correctional facility or permitting any other person to do so on his or her behalf.
h.(9) Pursuant to section 68B of the Family Law Act (Cth) when the younger children are not spending time with the father in accordance with these Orders (or in accordance with a written agreement between the parties) the father is hereby restrained from:
i. (a) Encouraging, allowing, causing, permitting or otherwise acquiescing to the younger children or either of them entering his care and/or control otherwise than in accordance with these Orders or as agreed between the parents. This includes, but is not limited to, allowing, causing, permitting or otherwise acquiescing to the children or either of them entering into any residence where he may live or otherwise be present;
j. (b) Approaching any property by himself or his agents or by anyone at his direction in which the mother is residing in the property except in accordance with any order or agreement in writing;
k. (c) Going within 200 metres of the children’s school, the mother’s residence, or any other location where the mother and the children are residing;
l. (d) Contacting or attempting to communicate with the children by any means including via third parties; and
m. (e) Taking the children into his care or having either of the children in his care, other than in accordance with these Orders or as agreed between the parties.
n.(10) That the parties be restrained from:
o. (a) Making critical or derogatory remarks about the other party or members of the other party’s family in the presence of or within the hearing of the children;
p. (b) Permitting any other person to make critical or derogatory remarks about the other party or members of the other party’s family in the presence of or within the hearing of any of the children;
q. (c) Making critical or derogatory remarks to the other party in the presence of or within the hearing of any of the children; and
r. (d) Involving the children in arrangements or discussions between the parties for any reason including in relation to any variations to the arrangements for the children to spend time with the other party.
s.(11) That the mother be permitted to provide a copy of these orders to the younger children’s school/s.
t.(12) That the father be permitted to provide a copy of these orders to the older children’s school/s and to Dr T.
u.(13) That the mother and father keep the other informed of their mobile telephone numbers at all times.
(14) The ICL shall be responsible for explaining the effect of the parenting orders to the children with the assistance of any expert the ICL considers appropriate including a family consultant through arrangement with the Senior Family Consultant at Child Dispute Services.
w.(15) Both parents shall facilitate such meeting occurring as arranged by the ICL.
(16) That the final orders and reasons for judgment be made available to the Senior Family Consultant of Child Dispute Services prior to the meeting with the children.
PROPERTY
a.(17) Pending compliance with these Orders the husband be restrained by injunction from doing any act or thing to further encumber the property situated at P Street, Suburb I NSW and being the whole of the land in title reference … (the Suburb I property).
b.(18) Pending completion of any sale of the Suburb I property pursuant to these Orders the husband continue to be obligated to pay the mortgage, rates and taxes in accordance with the orders of Hannam J of 14 June 2016 and shall indemnify the wife from all monies payable or incurred as a result of his non-compliance including but not limited to outstanding loan repayment, default interest, sheriff fees, legal costs.
c.(19) In the event of the refusal or failure by the respondent to complete any documents which are necessary to effect and complete a sale of the Suburb I property then within 7 days of a request from the wife, pursuant to Section 106A(2) of the Family Law Act 1975 (Cth), a Registrar of this Registry of the Court be appointed to execute on behalf of the Respondent any documents which are necessary to effect a sale of the Suburb I property and completion of the sale including but not limited to:
d. (a) The forms for engagement of real estate agent;
e. (b) The Contract for Sale of Land;
f. (c) The Transfer of Land; and
g. (d) All other documents reasonably required to effect and complete a sale of the Suburb I property.
h.(20) Each party be responsible for and discharge and indemnify the other in respect of all liabilities in their name.
(21) Each of the parties shall:
j. (a) Retain all right title and interest in and to their respective superannuation entitlements; and
k. (b) Have no further claim on the superannuation entitlements of the other party.
l.(22) Other than as set out in these Orders the parties shall have the sole right title and interest in any other real or personal property which is in their respective possession as at the date of these orders.
m.(23) Any costs payable by the husband to the wife as a consequence of these proceedings be charged against any distribution made towards him prior to that sum being provided.
n.(24) Any payment to the wife pursuant to these orders are first payable to the wife’s solicitor’s trust account.
THE COURT NOTES
A.A. Reasons for decision published on 2 September 2019 relate to the Orders (1) to (24) and Order (27).
THE COURT FURTHER ORDERS THAT
A.(25) The wife is appointed as trustee for the sale of the Suburb I Property;
B.(26) Upon settlement of the sale of the Suburb I property the sale proceeds be dispersed as follows:
b. (a) In payment of real estate agent commissions and all expenses of the sale;
c. (b) In payment of proper legal costs and disbursements incidental to the sale;
d. (c) In adjustment of rates, levies and taxes on the property;
e. (d) In payment of such amount necessarily required by the mortgagee in order to discharge the mortgage over the Suburb I property;
f. (e) $4015 plus 77% of the balance of the proceeds of the sale to the wife, and;
g. (f) The balance to the husband, being 23% of the balance of the proceeds less $4015, such payment being subject to order (23) of these orders and the husband’s compliance with order (27) in relation to the cost payable by him and until the time he has complied with order (27), his balance be held in the wife’s solicitor’s trust account.
THE COURT NOTES
B. Ex tempore Reasons were given on 2 September 2019 for Orders (25) and (26).
COSTS
a.(27) That the husband pay the wife’s costs of and incidental to the proceedings on a party/ party basis as agreed within one month from this date or otherwise as assessed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ahsan & Ahsan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).Family Court of Australia at Parramatta |
FILE NUMBER: PAC 2493 of 2016
| Ms Ahsan |
Applicant
And
| Mr Ahsan |
Respondent
REASONS FOR JUDGMENT
Introduction
a.1. The parties (“the mother” and “the father” in relation to parenting and “the husband” and “the wife” in relation to property) are engaged in a highly acrimonious dispute relating to the future parenting of their five children and distribution of property following the breakdown of their marriage.
b.2. The final trial commenced on 29 October 2018 and was heard on an undefended basis against the father as he had not complied with directions in relation to preparation for trial and had disengaged from the proceedings.
c.3. By the time the final hearing had commenced all five children were living with the father and were estranged from the mother. Intensive family therapy which had taken place in May to July 2018 had not been successful in restoring the children’s relationship with her.
d.4. In the course of the final hearing I formed the view that there were significant risk factors for the children in the care of their father and on 2 November 2018 on application of the Independent Children’s Lawyer (“ICL”) orders were made for the two youngest children aged ten and seven to live with the mother on an interim basis.
e.5. The proceedings were then adjourned to December 2018 for cross-examination of the single expert in relation to parenting and then adjourned again to 5 February 2019 when final oral submissions were heard and judgment reserved.
f.6. Prior to separation the parties had a successful business which provided an income to meet the expenses of the family and household and support mortgage repayments on three properties in which the parties had an interest.
g.7. By the time the final hearing commenced the parties’ assets had diminished significantly. The husband resided with the children in the family home which was and remains the parties’ only major asset.
h.8. It is the wife’s application that she receive 80 per cent and the husband receive 20 per cent of the parties’ net property. The husband proposes orders that would see the wife receive 60 per cent and he receive 40 per cent of the parties’ net property.
9. Earlier in the proceedings the paternal grandfather also asserted an interest in one of the properties owned by the parties known as “the Suburb L property”. In previous interim proceedings orders had been made in relation to the Suburb L property which if complied with would have recognised both parties’ and the paternal grandfather’s agreed view in relation to that interest. These orders were not complied with and at the commencement of the final hearing the wife sought that they be discharged and alternate orders in relation to the Suburb L property be made in their stead.
j.10. In the course of the day set aside for additional oral submissions on 5 February 2019 the parties and the paternal grandfather reached agreement in relation to the Suburb L property and orders dealing with that asset were made.
k.11. In relation to parenting it is the father’s case that it is in the best interests of the children for them to all return to live with him. He sought various different orders in relation to the children’s time with their mother in the course of the proceedings but his final proposal is that the three older children spend time with the mother in accordance with their wishes, and that the two younger children spend defined substantial and significant time with her.
l.12. In the course of the proceedings the mother came to adopt largely the position of the ICL that it would be least detrimental for the oldest three children to live with the father and spend time with her in accordance with their wishes and for the two younger children to continue to live with her and spend defined time with the father and siblings, with such time to commence supervised and then become unsupervised over time.
m.13. The questions for me to determine are first which of the proposed parenting regimes are in the best interests of the children or more accurately in the circumstances of this case the least detrimental to them? And second, whether it is just and equitable to alter the property interests of the parties and if so which of the proposed orders would result in a just and equitable distribution of the parties’ property?
n.14. The wife also seeks an order that the husband pay her costs in the proceedings. In that regard I must determine whether there are circumstances that justify departure from the usual rule that each party bears his or her own costs in the proceedings.
BACKGROUND
a.15. The husband did not file any affidavits or an outline of case for the purposes of the trial and did not seek leave to rely upon affidavits previously filed in the proceedings. His counsel was however permitted to cross-examine the wife, and other witnesses and he otherwise engaged in the proceedings.
b.16. Further, although the husband initially indicated that he was not prepared to make himself available for cross-examination he ultimately was cross-examined as was another person who had accompanied him to court, for reasons that will be explained.
c.17. In these circumstances I am required to glean from cross-examination those matters which are and are not in dispute between the parties. Virtually all of the wife’s account is included in this background on the basis that her evidence was not challenged. Where there was a challenge through cross-examination of the wife or through the husband’s oral evidence about any matters of significance I will indicate my finding as to each particular issue, and reasons for my finding.
The Marriage
a.18. The parents who are of Country V heritage met in 2000. They began living together in 2001 and were married later that year.
b.19. During 2001 prior to the marriage the parties purchased a property which was registered in the wife’s sole name for $226,000 (“the Suburb A property”). It was always treated by the parties as an investment property. There was a loan taken out for the majority of the purchase price which was secured by a mortgage.
c.20. In 2002 the parties purchased a property at Suburb S (“the Suburb S property”) which became their first family home. Little is known about this purchase except that the purchase price was about $300,000 and that a loan was required to be taken out to fund that purchase.
d.21. The wife worked at the commencement of the relationship in a clerical position on a full-time basis earning approximately $35,000 per annum. The husband initially worked as a mechanic earning about $40,000.
e.22. In the first year of the parties’ marriage the husband established a business engaged in the transportation initially of fork lifts and later of plant and earthmoving equipment, known as “R Pty Ltd”. The husband who had previously worked as a mechanic was employed full-time in the R Pty Ltd business from the time it was established. His role in the business was to quote on jobs, roster vehicles, allocate the vehicles, schedule work, engage sub-contractors and drive one of the trucks.
f.23. It is the wife’s contention that the parties’ marriage was characterised by family violence perpetrated by the husband. She was not challenged under cross-examination about her evidence of specific instances of physical violence or controlling behaviour prior to separation and her account is supported to some extent by other evidence to which I will refer. For these reasons her version of these events is accepted and included as uncontested background facts.
g.24. In her affidavit the wife describes physical violence from the earliest days of the marriage beginning with an incident soon after she and the husband returned from their honeymoon when he punched her to the eye with his fist in the course of an argument.
h.25. In 2003 the parties’ first child (“the oldest daughter”) was born. This child was 15 at the commencement of the final hearing.
26. By the time the oldest daughter was born the wife had begun working in the R Pty Ltd business as a bookkeeper and continued to do so until about June 2004 by which stage she was expecting the parties’ second child.
j.27. The parties’ second child, a son (“the older son”) was born in 2004.
k.28. The pattern of physical violence perpetrated by the father against the mother continued and the father also engaged in controlling behaviour towards her. For example, shortly after the older son was born the father required the mother to tell her parents that they were not welcome at their home and that she was not to contact or speak to them. In the course of an argument about this issue the father slapped the mother across the head, pushed her and kicked her in her back.
l.29. The parties bought a property at Suburb I (“the Suburb I property”) in joint names in about 2005 for $524,000. The arrangement for the financing of this property is unclear except to say that the Suburb S property was also sold around this time. The Suburb I property became the family home (“the former family home”) in which the parties lived and raised their children.
m.30. In 2006 the parties purchased the Suburb L property in joint names from the paternal grandparents as an investment. Little is known about this purchase other than that it cost around $300,000, that a loan for an unknown sum was taken out for its purchase and that the paternal grandfather retained an interest in it.
n.31. On 31 December 2006 when the mother was seven and a half months pregnant with the parties’ third child there was a further incident of violence. The father insisted that she go with him to a New Year’s Eve party even though she was exhausted and did not want to attend. The parties argued over this matter and the father became angry telling the mother that she was “being difficult”. He kicked her to the stomach causing her to fall to the ground. The father refused to take the mother to hospital and accused her of being dramatic.
o.32. The parties third child, a girl who is now aged 12 (“the third child”) was born in 2007.
p.33. In 2008 the R business acquired another similar business. On 19 March of the same year the R business was incorporated and registered as R Pty Ltd (“the business”). Another company, N Pty Ltd (“the family company”) owned the shares in R Pty Ltd. The shares in the family company were in turn owned by the husband and wife equally. The husband continued in the same role at R Pty Ltd while the wife continued to be employed part-time as the bookkeeper and undertaking administrative duties in this business.
q.34. The income the parties earned from R Pty Ltd was sufficient to support all of their expenses including loan repayments for three properties, and all outgoings and living expenses for their growing family.
r.35. In mid-2008 the parties renegotiated their three existing housing loans into a single loan (Bank account ending …8 - “the mortgage loan”) and took out a further loan by way of line of credit for the purposes of the business (Bank account ending …38 - “the business loan”).
s.36. Around this time the husband obtained a further loan for $150,000 in both parties’ names which he informed the wife was for business purposes.
t.37. On another occasion in about 2008 there was violent incident between the parties in which the father slapped the mother and hit her with his fist and elbow around her face and head in the course of an argument in the presence of the children. The mother hid in a wardrobe until the father calmed down and was forced by the father to lie to the paternal grandmother when asked about a bruised eye that she suffered in the assault.
u.38. In 2008 the parties’ fourth child, another girl (“the youngest daughter”) was born. This child was 10 at the time of the final hearing.
39. In 2011 the parties’ fifth child, a boy (“the youngest child”) was born. He is now seven.
w.40. In October 2014 the mother was referred by her general practitioner for counselling in order to help her cope with the father’s increasingly abusive behaviour towards her and to learn strategies to deal with the children’s disrespectful behaviour.
41. In April 2015 the father was also referred to a psychologist by his general practitioner. In the reason for referral the doctor recorded “anger for many years, wife will leave patient, unable to cope with his anger”. The father attended four sessions with the psychologist between May and July 2015.
y.42. As noted earlier I am satisfied that the mother’s allegations concerning family violence when the relationship was intact are proved. The husband gave no alternate version of the alleged events as he did not file any affidavit nor was it put to the mother under cross-examination that she was inaccurate, mistaken or untruthful in relation to these matters. While the father denied under cross-examination that he had ever been violent towards the mother there was no dispute that she was referred by her general practitioner for counselling in relation to the father’s allegedly abusive behaviour and that the father was referred to a psychologist for anger management at around the same time. In my view this evidence corroborates the mother’s account in relation to family violence.
z.43. In around August/September 2015 in the course of an argument about payment of an invoice the father grabbed the mother around the throat, pulled her hair and threatened her.
aa.44. There was a further instance of violence the following month on 28 October 2015 when, in the course of a heated argument in the presence of the children the father grabbed the mother placing one hand on the top of each shoulder and the mother pushed him away saying “don’t touch me”. The father then shook the mother. The oldest daughter stepped in between them and put her hand towards the father’s face saying “stop dad. You aren’t allowed to touch mum. It’s illegal”.
bb.45. The parties separated in November 2015 and the mother moved out of the family home with the children. She and the children initially lived with the maternal grandfather in his home. The father has remained in the former family home since separation.
cc.46. In November 2015 the father was again referred to a psychologist for “anger management treatment”. The doctor’s referral letter states “patient need anger management, he lose temper easily, abusive and hit wife.” Under cross-examination the father maintained that he had not been violent and appeared to dispute any connection between his violence, the parties’ separation and a referral made by his general practitioner to a psychologist in relation to his anger, easy loss of temper and abuse towards his wife.
Events following separation
a.47. There was little challenge under cross-examination to the wife’s account of events concerning children or the parties’ financial arrangements following separation. Where her account concerning events during this time was challenged this will be referred to and my finding with respect to that issue included in these background facts. Where the mother’s account was not challenged (and in some cases if it supported by other evidence which will be noted) that version is included as an undisputed matter in this background.
b.48. Initially it appears that the relationship between the parties was reasonably amicable for some months following separation. Messages sent by the husband as late as March and April 2016 contain his expressions of remorse “for everything I’ve done”, hopes for reconciliation and that the separation could be an opportunity to give the mother “some space and some time out”.
c.49. As at the date of separation the husband was receiving $2,000 per week by way of a wage from the business and the wife received about $520. For a few months after separation the wife continued to work in the business ceasing in March 2016. The husband agreed to continue to pay her $520 per week by way of financial support of the children but only made these payments on four occasions.
d.50. The mother engaged solicitors to act on her behalf in relation to family law matters in January 2016. Although numerous letters concerning parenting and property matters were sent to the father between January and April 2016 he steadfastly failed to engage with the mother’s solicitors. The father did however spend time with the children generally each alternate weekend and overnight on a Wednesday during this period.
e.51. The father also failed to participate in family dispute resolution as sought by the mother and in a conversation with the mother’s solicitor stated that he was “not dealing with lawyers”.
f.52. One of the matters about which the wife was seeking the husband’s co-operation related to her moving with the children to the Suburb A property. Although it was registered in her sole name it had been used by the parties jointly as an investment property. The lease was due to expire and the property become vacant in about May 2016 so the wife through her solicitors put the husband on notice that she had served tenants with a notice of termination and of her intention to move into that property, with the children.
g.53. It appears that the wife’s decision to move to the Suburb A property and her determination to involve lawyers in the proceedings caused a change in the husband’s attitude towards her. He was not happy about her proposal and wanted to lease the property rather than have her move into it.
h.54. On Friday 29 April 2016 the mother delivered the children to school in accordance with the parties’ arrangement as the father was due to spend time with the children that weekend. She also left a van owned by the parties with the paternal grandfather so that it could be used by the father to collect the children from school. The mother was due to collect the children from school on the following Monday. For reasons which are unclear that did not eventuate and the following day, 3 May the father brought the children with him to the maternal grandfather’s home after school and collected some items for them from that home. Although the mother approached the father on this occasion and asked him when he would be returning the children he ignored her and drove away.
55. On 4 May 2016 the father advised the Child Support Agency that the children were living with him full time and it appears that he began the process to have the mother assessed for the payment of Child Support.
j.56. The following day the father told the mother that he was not returning the children to her.
k.57. On 6 May 2016 the mother spent some time with the youngest child at his child care centre and informed the father by text message that she intended to see all the children in the afternoon after school. The mother went to the paternal grandparent’s home and waited for the children. When the children and father arrived home there was an aggressive verbal interchange between the parties in the presence of the children. The mother pleaded with the father to stop and he said “I asked you not to go through the solicitors, I was handing you everything on a silver platter and you didn’t listen so we can play dirty now”. While the mother was subsequently waiting down the street to be collected the father drove around the block numerous times with the children in the car constantly sounding the horn at the mother. The mother reported the father’s behaviour to police.
l.58. A few days later on 9 May 2016 the mother borrowed the maternal grandfather’s car and drove to the former family home to see the children. The father only permitted the mother to see them for a short time and then told the children to leave. When the mother attempted to get into her car the father squashed her between the car and the door and pushed the car door onto her in the presence of the children. The children screamed so the mother ran over to comfort them. While the father was standing on the driver’s side of the mother’s car she heard a loud bang and when she returned to the car she noticed that there was a large dint in the driver’s door.
m.59. On about 16 May 2016 the father contacted the mother by phone in relation to the Suburb A property. In the course of the conversation she deposes that he became angry saying “you fucking bitch. I don’t give a fuck where you live if it’s on the street or not but if you move in Suburb A you have to pay me rent”. This caused the mother to feel scared and uncomfortable. On the same day the father sent the mother a text message stating “if you have evicted the tenants I would be advertising it for rent. Thanks”.
n.60. On 18 May 2016 the father sent the mother a further text message telling her that he did not give permission for her or any other person to change the locks at the Suburb A property and that if she had done so he would have a locksmith replace them as he wished to rent the property and would be advertising it on the rental market soon.
o.61. The following day the mother attended the Suburb A property and found that some of the children’s clothing and various items of furniture that she had purchased had been moved from that property. She reported her fears that the father had stolen the property to police and also told them that she was scared of the father and of his history of perpetrating family violence.
p.62. Shortly afterwards the mother did move to the Suburb A property. On 22 May 2016 the father came to the property with the children in the parties’ van. He walked towards the front door, pushed the mother out of the way entered the house and took some photographs even though the mother had told him to leave. As he left the home and got into the car and before he drove off the father said “you’re out of here in two days”.
q.63. Two days later the mother saw the father driving past the house with two other men when she was standing out the front of the Suburb A property with her brother. She saw the father and men approach the house and feeling very scared went inside, locked the house and rang the police. When the police arrived the mother understands that they told the father to leave the property. On the same day the mother’s solicitor sent a letter to the father seeking undertakings in relation to returning the children to the mother and concerning his interference with the Suburb A property but the father did not respond.
r.64. In May 2016 the mother’s brothers and their families spent the day at the Suburb A property to support the mother. A short time after they left the mother heard a loud bang and discovered broken glass on the lounge room floor and saw that a window had been smashed. She contacted police to report the incident and yelled out loudly in the hope that neighbours could hear her. When police arrived at the property it became apparent that a bedroom window had also been smashed.
s.65. Security cameras at her property are said by the mother to show that two young men had approached her house, poured a liquid over her outdoor furniture and used a baseball bat to smash both the lounge room and front bedroom window. The mother provided this footage to the police but the outcome of any police investigation in unknown.
Financial matters following separation
a.66. The wife stopped working in the R Pty Ltd business in March 2016 due to the deterioration in the parties’ personal relationship. She finalised the company’s accounts before leaving which included issuing invoices, following up outstanding debts and banking.
b.67. As at March 2016 R Pty Ltd was in a healthy financial state. There was about $100,000 cash in the bank and average monthly deposits of about $140,000. An average of $60,000 - $80,000 in invoices were issued each month and about $300,000 in unpaid invoices was outstanding.
c.68. On 11 May 2016 a new company was incorporated known as R A Pty Ltd. On the same day the husband sold the assets of R Pty Ltd for either $100,000 or $150,000 to Mr R A Pty Ltd. Mr U a person described by both parties as the husband’s “best friend”, signed the contract for purchase on behalf of R A Pty Ltd.
d.69. On 18 May 2016, (the same date that the husband first put the wife on notice that he did not agree to her moving into the Suburb A property and proposed making it available for rent) he also directed his tax accountant to obtain advice about the potential insolvency of R Pty Ltd. Mr U was appointed as the Sole Director, Secretary and Shareholder of R A Pty Ltd also on this day.
e.70. On 19 May 2016 the wife withdrew $25,000 from the business loan account to fund her relocation to the Suburb A property and to furnish the property in anticipation that she and the children would be living there.
f.71. Between 20 and 25 May 2016 the husband withdrew a total of $108,000 from the parties’ mortgage loan account and the business loan account and transferred these sums to his brother. These withdrawals consumed the entirety of the redraw facility attached to the parties’ mortgage account.
g.72. The wife commenced proceedings on 1 June 2016 seeking orders in relation to the children including a recovery order.
h.73. On 14 June 2016, the date on which the wife’s application for interim parenting orders had been listed, the husband as controller of the family company which owned the shares in R Pty Ltd resolved to voluntarily wind up R Pty Ltd.
74. Interim orders were made on 14 June 2016 requiring the husband to return the children to the wife with whom they were to live. The orders also provided for the wife and the children to have the sole use and occupancy of the Suburb A property and for the husband to be responsible for the mortgage payments.
June 14 court event and following – the children align with the father
a.75. When the mother attended with her brother to collect the children at the location nominated in the June 14 Orders a friend of the father’s approached her and said that the children would not get out of the car. The father’s friend then began recording the attempted handover of the children despite the mother informing him that she did not consent to this happening. The father stated that he consented to the recording and the friend told the mother in presence of two of the children that the children had given him consent to record the incident. Although there were various attempts over the next hour and a half to have the children pass into the mother’s care this did not occur. At one stage when the mother attempted to open the car door she found that it was locked and the oldest two children screamed to her that they did not want to come with her.
b.76. As the children did not pass into the care of the mother as intended the proceedings were urgently re-listed the following day and the father was ordered to present the children to Child Dispute Services. The father complied with this order, changeover occurred at the court and the children returned to live with the mother on 15 June 2016.
c.77. After the children were returned to the mother she took them to the Suburb A property which she had set up as their home. She says that the children behaved appropriately and warmly towards her which was in contrast to their behaviour in the presence of the father.
d.78. The children began misbehaving towards the mother after having a telephone conversation with the father the following day 16 June 2016 though they subsequently settled down.
e.79. On 20 June 2016 the oldest daughter came home from school with a mobile phone which she had received from her paternal grandfather at school so that she and her siblings could contact him whenever they wished while in the mother’s care. The children’s behaviour once again deteriorated later on this day after speaking to the father on the phone.
f.80. The mother reports a pattern of behaviour in which the children would be settled and well behaved and then become unsettled and isolate themselves from her following telephone conversations with the father.
g.81. On 22 June 2016 the father called the children while they were out to dinner with their cousins and the mother could hear the father yelling instructions to them to disobey her and misbehave.
h.82. On 27 June 2016 when the mother attended at the children’s schools to collect them it became apparent that the older son had walked from school to the former family home and then to the paternal grandparent’s home. When the mother arrived to collect the older son from the paternal grandparent’s home although she directed the other children to remain in the car they disobeyed her and got out of the car. The mother asked all of the children to get in the car but they refused and the paternal grandfather then directed the mother to leave his property on the basis that she was “trespassing”. The father then walked past the mother and started rummaging through her handbag in her car. A struggle ensued and the father threw the mother’s purse on the road scattering its contents. As the mother began picking up her belongings the father approached her, lent over her shoulder and wrestled with her using considerable force in an effort to get her phone. The father successfully snatched the mother’s phone from her hand and as she followed him in an effort to retrieve it he pushed her causing her to fall into the garden. All of these events occurred in the presence of the children and the three youngest of them began crying. The oldest daughter approached the parties saying “stop the violence”. The father and paternal grandfather then grabbed the mother and pushed her telling her that she was trespassing. The mother referred to the father and paternal grandfather as “dogs” during this incident. The mother insisted that she was not trespassing but was attempting to take the children.
83. After obtaining possession of the mother’s phone the father damaged it and threw it onto the driveway. The mother called police who attended the paternal grandparent’s home and took a statement from her. When the mother then attempted to retrieve the children from a neighbour’s home where they had been taken the children refused to come with her. The mother decided to leave the children in the father’s care as she did not wish to distress them any further but informed the father through her solicitors that she would be collecting the children from school the following day.
j.84. On the ensuing days when the children were living in her care the mother experienced some behavioural difficulties and arguments with the children especially when they received telephone calls from the father which they insisted should occur in private.
The 8-10 July 2016 incident
a.85. On other occasions during this period the mother deposes to the children speaking privately to their paternal grandparents. On 8 July 2016 after one such phone call the mother and children went to an event with the extended maternal family.
b.86. After returning home from this event the mother put the children to bed. Two of her neighbours, a man named Mr Q and his partner came to the mother’s home and they all sat outside on the front porch talking and drinking alcohol until the early hours of the morning while the children were asleep. The two youngest daughters slept in the mother’s bed. The mother consumed a large quantity of alcohol in the course of the night.
c.87. On one occasion during that night the youngest daughter came into the living room where the mother was with the neighbours and she was told to say hello to the neighbours which included giving each neighbour a hug and a kiss before returning to bed.
d.88. The oldest daughter woke during the night at approximately 2am and saw the mother vomiting, became distressed and woke two of her siblings. The children all became upset and due to the mother’s condition the neighbour Mr Q put the children back to bed, tucking them into bed and kissing them on the cheek.
e.89. The following morning the mother remained in bed sleeping. Police records indicate that the oldest daughter reported being unable to rouse the mother from her sleep in the morning, becoming worried but being unable to use the mother’s phone to call for help as she did not know the security passcode. The oldest daughter then reportedly ran from the home in an attempt to seek help and found her paternal uncle who took her to the police station where she reported what had occurred during the night. The police attended upon the mother’s home and spoke to the children. The police observed that the older son and third child were very distraught and complained that “a man we don’t even know kissed us”.
f.90. The police records indicate that they then spoke to the mother who denied the children’s version of events and stated “yeah I had a few drinks but nothing bad. I was not pissed or anything. The father is brainwashing them”. The police then interviewed the neighbour Mr Q, who admitted to kissing the children on the cheek as a way of calming them down and getting them back to sleep. The police advised the father to take the children into his care at this time.
g.91. On 14 July 2016 the mother filed an Application in a Case seeking that the children be returned to her care. This application was listed before me the following day and orders were made with the consent of the father that the children return to live with the mother.
h.92. On 18 July 2016 further orders were made by another judge at this Registry suspending the father’s time with the children except for a period between 22 – 25 July 2016.
The children come to live with the father
a.93. On 26 July 2016 several members of the maternal family including the maternal uncle, maternal grandfather and two of the mother’s cousins received a video from the father. The video shows the father and children sitting around a table and the third child in particular being questioned by the father and another man with leading questions such as “you don’t want to go back there cos you’re scared of the guy coming back in your room again?”
b.94. On 30 July 2016 the mother encountered the father at the soccer field where the older son was participating in a game. She stood near the soccer coach as she was scared of being in the vicinity of the father but the father walked towards her and said “you and your whole family are dead” while gesturing with his hand across his neck. The father also approached the mother at the end of the game on about three occasions when she was waiting for her son, lunging towards her, shoving her as he walked past and stepping on her foot. The mother said she felt uncomfortable and scared and believed that the father was aware of the effect he was having on her as he called out to a friend standing nearby “go get her a nappy she’s shit herself”. The mother contacted police in relation to the incident and police also attended the mother’s home that day as the father had contacted them asking for a welfare check to be made on the children.
c.95. On Monday 15 August 2016 after the children had spent time with the father over the weekend the mother observed the children’s behaviour to be distant and that they did not wish to engage in conversations with her. When the mother and children arrived home the youngest child deliberately tipped over a water bottle on the lounge room floor and as the mother was trying to mop the floor the oldest daughter grabbed the mop from her, pushed against her and shoved the mop in the mother’s face and hair while laughing at her. The youngest child then took the mop and started doing the same thing. Later the same day the oldest daughter was aggressive and defiant towards the mother, spat in her face and flicked food from her dinner plate around the house. The youngest daughter copied the older daughter and looked towards her for approval. The oldest daughter followed the mother around the house, pushed into her and kicked the walls. She also kicked a window panel causing it to smash and interfered with the mother when she attempted to clear up the broken glass by pushing into her. Due to the difficulties the mother was experiencing managing the children’s behaviour she sent a message to the father to make arrangements with him to deliver the children to his home that evening.
d.96. The father collected the children from the mother and from this time they began living with him on a full time basis and spent time with the mother as determined by him.
e.97. On 30 September 2016 the parties met with a family consultant for the purposes of the Child Responsive Program. The four oldest children were observed to have very negative views of the mother and each reported violence and alcohol use in her household. The Child Responsive Memorandum indicates that the father reported that he was attempting to facilitate the children spending time with the mother but they all, especially the three eldest were reluctant to do so.
f.98. On 12 October 2016 the father contacted the mother and attempted to make arrangements in relation to a court event that was to occur two days later on 14 October 2016. The mother says that the father threatened her in the course of this conversation.
g.99. On 14 October 2016 interim orders were made with the consent of the parties for the sale of the Suburb L property. This came about as the paternal grandfather had asserted an interest in the Suburb L property and was joined to the proceedings. The 14 October 2016 orders required that the parties do all things necessary to subdivide the property and following the registration of the subdivision the Suburb L property was to be sold and a portion of that property was to be transferred to the paternal grandfather in recognition of his interest.
h.100. The subdivision did not proceed but the paternal grandfather has played no further part in the proceedings. As I will explain the issue of the paternal grandfather’s interest in the Suburb L property was resolved on the final day of proceedings in February 2019 with orders made with the consent of the parties including the grandfather.
101. Following the court event on 14 October the mother was in the waiting area outside the court room and the father and paternal grandfather were sitting four to five metres away. The mother states she could overhear them speaking in Arabic and the father looked directly at her and said “I want to shred their skin, I want to kill them all especially her father”.
j.102. On 14 October 2016 the parties were also ordered to engage with an experienced psychologist and family therapist for family therapy with the children. Under cross-examination the mother said that the parties and children attended family therapy on a couple of occasions commencing in late 2016 and it was completed after a few months. The mother was of the view that the therapy had not been successful due to the children behaving in an unruly and disrespectful manner and a lack of regularity in the parties’ appointments with that therapist.
k.103. After leaving court on 14 October 2016 the mother went to stay at the home of one of her brothers. On 17 October 2016 an intruder entered this brother’s home at around 10pm when his family were present and the mother was staying there. The intruder, a man in his early 20’s directly approached the mother. He then removed a baseball bat from his pants and the mother began to run away. As she landed on a lounge she felt a hit to the right side of her head causing her significant pain and numbness. The mother heard her brother yelling and screaming. Neighbours and the mother’s sister in law attended to her and advised her that she was bleeding from the back of her right ear. The mother also felt pain to her thighs and found that she was bruised and swollen on both sides. An ambulance was contacted and officers attended and took the mother to hospital where she received medical attention. The mother annexes to her affidavit photographs showing significant bruising to her thighs and behind her ear which she says she occasioned in this assault.
l.104. It is the mother’s belief that the father arranged for her to be assaulted. She deposes that when she was in a relationship with the father she had heard him say that he could make arrangements for people to be intimidated or hurt if he was unhappy with a situation. The mother was cross-examined about her assertion that the father had said these things and she maintained that her evidence was correct.
m.105. Under cross-examination the father agreed that he had been charged with assault in relation to punching an employee for failing to comply with his direction (a charge which was subsequently dismissed following hearing). The father was also taken to police record of a victim complaining to police in March 2014 that the father had made threats to “have men after [the complainant and witness in the assault charges] if they don’t drop the court matter”. In May 2011 there was a further police record in which a former employee reported receiving threatening phone calls from the father.
n.106. Under cross-examination the father said that he had no recollection of the allegations made against him in 2011 and 2014 but did not deny engaging in this conduct.
o.107. Two days after the assault on 19 October 2016 the mother encountered the father at the school that the youngest child was to attend the following year for his transition day to kindergarten. She deposes that the father mimicked holding an imaginary bat which he swung back and forth while smiling and laughing at her. Although the father through cross-examination of the mother challenged the mother’s account as to his behaviour (and on this issue she remained firm) he did not challenge any of the other events of this day as deposed by the mother. The mother was not challenged on her evidence that on the same day when she was stationery at traffic lights the father pulled into the lane in front of her, got out of his car and approached her car causing her to become scared.
p.108. Later on 19 October 2016 it appears that arrangements had been made for the mother to spend some time with the children in the presence of the father at a fast food outlet. When that occurred the father engaged in a range of behaviours which made the mother feel uncomfortable and intimidated such as holding the doors closed when she was trying to open them, pretending to swing a bat as he had done earlier in the day while smiling at one of the children, mocking and insulting her by referring to her as a “junkie” and encouraging the children to sing and repeat the phrase “ice ice baby”. The older son was disrespectful and rude to the mother, yelling at her and insulting her while the oldest daughter kicked her, swore at her and insulted her. The third child copied her older sister and also kicked the mother and was rude and disrespectful towards her. The youngest child who had been pleasant to the mother earlier in the day imitated his older sibling’s behaviour and language.
q.109. On 21 October 2016 a further hearing concerning interim parenting arrangements was held before Foster J and judgment was reserved. Orders were made on this date that pending delivery of the judgment all of the children except the oldest daughter were to spend time with the mother on Wednesday afternoons and for nine hours each Saturday.
r.110. On 25 November 2016 Foster J published his interim judgment and made further interim parenting orders. These orders provided for the parents to share equally parental responsibility of the children, for the four youngest children to live with the father and spend significant and substantial time with the mother and for the oldest daughter to spend time with the mother according to her wishes. The father was also restrained from being near or at the children’s school or preschool at times of changeovers. Orders were also made to facilitate telephone communication between the children and the non-resident parent and the mother was restrained from consuming alcohol or illicit drugs while the children are in her care. Both the mother and father were ordered to undertake urinalysis drug screening at the request of the ICL.
s.111. The father was not compliant with the November 2016 interim parenting orders. Under cross-examination he indicated that he and the mother agreed between themselves that the children should live with him and spend time with her as he determined. On occasions the mother did attend the location nominated in the orders at the commencement of her time specified in the orders in an apparent belief that the father would deliver the children to her but this did not occur. The father also effectively ignored the order that the parties equally share parental responsibility for the children, making unilateral decisions for the children such as that the third child attend upon a psychologist without the mother’s knowledge or consent.
t.112. In February 2017 a child and family psychiatrist (“the expert”) was appointed for the purposes of providing an expert opinion in the proceedings.
u.113. Although it is not entirely clear it appears that the mother sporadically saw the children through arrangement with the father on a few occasions throughout late 2016 and up until May 2017. As the father did not permit the mother to have regular contact with the children she also arranged for this to occur through weekly visits to their school. In about April 2017 she began being a parent helper in the youngest child’s class.
114. Apart from seeing the younger three children at school it appears that the last time the mother saw them by arrangement with the father prior to the assessment with the expert was for about an hour and a half at a fast food outlet in May 2017.
w.115. On another occasion on 28 May 2017 arrangements had been made between the parents for the mother to spend time with the children but when the father arrived and before he permitted the mother to speak with them he requested to speak to the mother alone. When she refused to do so the father did not allow her to see the children. The older son approached the mother and said “if you don’t call to speak to dad tonight after work that means you don’t love us and you don’t care about us”.
116. The mother attempted to speak with the children on the telephone in accordance with the interim orders but the father refused to permit that to happen.
y.117. In May 2017 the father engaged a private investigator to conduct surveillance of the mother. The report from the private investigation service which became an exhibit in the proceedings confirms that she was under investigation at the father’s behest for 18 days in May 2017 and again for seven days in September 2017.
z.118. During 2017 when the children were living with the father each child had numerous whole day absences and some partial day absences from school which were not fully explained by medical certificates. The older son also exhibited disrespectful and disruptive behaviour at school on at least two occasions in 2017.
aa.119. The parties were seen by the expert individually and with the children in July 2017. The expert’s report dated 9 September 2017 was released to the parties a short time later.
The expert observes alignment of the children with the father and recommends family therapy
a.120. The expert’s opinion will be outlined in greater detail when considering the matters related to the best interests of the children.
b.121. It suffices to say at this stage that the expert concluded at the time of her report (July 2017) that the siblings had a strong alliance with each other and with their father. She described the oldest three children as “markedly concerning young people because of their absolute repudiation of their mother”. Although she felt that some of their grievances were understandable she concluded that those three children had been alienated from their mother. The expert was also of the view that the father had no insight as to his contribution to the attitudes and behaviours of the children.
c.122. The expert opined at the date of her report that interventions into problems arising from alienation become more difficult to remedy over time and noted that some of the appropriate models of family therapy to achieve this result are not readily available. For this reason she recommended that the family engage with Dr W (“the therapist”), a clinical psychologist who offers intensive intervention to assist families with such difficulties and that the therapy with the therapist occur prior to a final hearing to determine whether the dynamics in the family could change.
d.123. The expert was very concerned about the ongoing effects of alienation which she described as a form of psychological abuse and opined that “retaining a false belief that the alienated parent is a dangerous and unworthy parent has severe effects on a child’s development.” It was clear that the expert felt that this intervention should occur urgently as she made alternate recommendations for the children if it did not, which she suggested be put in place from the end of 2017.
e.124. The expert was of the view when she prepared her report that if the clinical intervention by the therapist did not occur or was not successful that structural changes in the family would need to be considered. If this were to become the case she would recommend that the two youngest children live with their mother from the end of 2017 and have restricted time in the first three months with their father and older siblings and that the mother work with an experienced child and family clinician.
f.125. Following the appointment with the expert the mother spent occasional and irregular time with the youngest two children only for a period of about ten months.
Events from September 2017- May 2018
a.126. On 29 November 2017 on application of the ICL orders were made that the parties do all things necessary to engage and participate in intensive clinical intervention family therapy with the therapist. That therapy was scheduled to commence on 27 January 2018 but the parties were aware that payment for the therapy was required prior to it commencing.
b.127. In September 2017 interim orders had been made with the consent of the parties to sell the Suburb A property and the parties through their solicitors had made arrangements for settlement to occur on 18 January 2018.
c.128. In November 2017 the parties were ordered to use the proceeds of the sale of the Suburb A property to pay the therapist’s fees. The mother deposes to delays in the settlement of the sale of the property and her belief that the husband was responsible for this. This issue was the subject of quite extensive cross-examination which did not clarify the matter. It suffices to say that for reasons that are unclear the settlement of the property did not occur until 1 March 2018. The effect of the later date of settlement was that Dr W’s fees were not paid in time and the therapy that was to begin in late January 2018 was cancelled.
d.129. It appears that the children’s attitude towards their mother was deteriorating further during the period following the release of the expert’s report in September 2017 and prior to family therapy. For example, on 16 February 2018 the father drove past the mother on her way to the school. The older son who was in the father’s car made an offensive gesture to the mother and the father called her a “loser” out the window.
e.130. A few days later the mother received a text message presumably from the father (though this is not clear) asking that she not attend the school of the three youngest children at the request of the children. On 21 February 2018 the school principal asked to see each of the parents separately. As the mother approached the principal’s office the father who was leaving called the mother “a fucking loser”. The principal told the mother that the father reported that the children did not want her attending the school.
f.131. Following the meeting with the principal the mother stopped attending the school for a short time but started the school visits again a few weeks later. The mother says that when the visits recommenced the youngest child was very happy to see her and was affectionate towards her.
g.132. The mother was again asked to see the principal who again informed her that the father had objected to her presence at the school but the principal was of the view that there were no problems with this happening.
h.133. On 7 March 2018 the father’s best friend and sole director and shareholder of R A Pty Ltd, Mr U, was charged with supplying a commercial quantity of a prohibited drug other than cannabis and knowingly directing the activities of a criminal group. Police documents reveal that a police search of Mr U’s home on this date found items including electronic scales, a small vial of suspected steroid, counterfeit currency, white powder and six rounds of ammunition. The offences are particularised as having occurred between 9 November 2017 and 7 February 2018. Prior to his arrest Mr U and his wife Ms Y saw the children at least once or twice a week and were occasionally called upon by the father to care for the children.
134. After Mr U’s arrest he was refused bail. Ms Y then saw the children at least three to four times a week. In the course of the hearing it came to light that Ms Y, known the children as “aunty Y” has lived in the family home for some period of time after Mr U’s arrest.
j.135. The father has regularly visited Mr U in custody since the date of his arrest, up to one to two times per week. Since April 2018 he has taken the three eldest children to visit Mr U at the gaol on a number of occasions over the ensuing months. According to the father he took the children to visit Mr U as they “love him”, are close to him and have a close relationship to him.
k.136. The children’s regular and significant absences from school continued throughout 2018 with the third child and youngest daughter being absent on 14 complete days. Once again only some of these absences were explained by medical certificates.
l.137. Sometime in 2018 the third child was being treated by a psychologist for her anxiety. The father and on occasions Ms Y accompanied this child to these appointments without the knowledge or consent of the mother. The session notes from the child’s appointments indicate that the father reported “previous drug use by the mother”. The clinical notes produced by the psychologist indicate that the treatment focused mainly on the third child’s anxieties concerning her mother.
m.138. In May 2018 the mother’s solicitor was able to negotiate for the release of some funds to cover the costs of the therapist’s therapy.
n.139. On the same day that the family therapy commenced the maternal grandfather was the victim of a serious assault in his home in which he was injured and hospitalised. The mother believes that the father arranged for the maternal grandfather to be assaulted in an attempt to provoke her during the therapist’s therapy or deter her from participating in it.
The Family Therapy
a.140. The therapist provided a report (which the parties agreed was provided in her capacity as a treating psychologist for the family) (“the therapist’s report”) dated 17 October 2108 and was also cross-examined in the proceedings.
b.141. In her report the therapist describes sessions that she spent with the family over four consecutive days from 19 May 2018. These sessions included time with the father and the children, the mother and the children, each parent alone, a session with the parents together, and observations of each of the parents with extended family members. The sessions occurred at the parents’ homes and in public venues.
c.142. The therapist described the goals of treatment as follows:
The goals of the intervention have been to assist the children to talk to their mother about their problems with her in sensible and considered ways, to assist them to individuate and identify and disseminate their separate feelings for their mother, to support [the mother] and [the father] separately into appropriate parenting of the children, to allow the children’s genuine feelings and attitude towards their mother to be aired and acted on if necessary, to support the children’s relationship with each parent and move the disputes from parent-child relationships into the adult conflicts where they belong (sic).
a.143. In my view it is not necessary to set out in great detail the therapists’ report relating to each occasion with which she worked with the family in May 2018. Some of her report strays into opinion evidence in relation to the children’s relationship with their mother generally and the therapist’s description of some events which she spent with the mother are in dispute. Further, there are other background events which the therapist notes to give context to her therapy that do not accord with undisputed matters between the parties.
b.144. It suffices to say at this stage that the therapist observed difficulties in the interactions between the children and the mother on the first two occasions in May 2018 but by the end of the third day reports that the children agreed that they would give their mother another chance and then more than one chance. As I understand it the mother does not dispute this summarised description of these events.
c.145. The therapist described the fourth day as “characterised by expressed feelings of hope and reconciliation in the children, their mother, their father, and their paternal grandmother”.
d.146. After completion of this day, on 22 May 2018 the therapist wrote to each of the parties about the process of therapy which includes the following extracts:
…both parents have worked cooperatively with the therapy and they are to be congratulated on their support of the children’s needs.
I write to advise that interim parental agreements include that the children will see their mother on one occasion each week over a dinner at a local fast food restaurant.
The children have collectively decided to provide their mother with an opportunity to resume their relationship with them. In turn, they have agreed that they will not be rude to her, not try to abscond, and they will not call their mother by her Christian name and use the term “mum.” (sic)
a.147. From 25 May 2018 to July 2018, the children continued seeing their mother once a week at a restaurant without the therapist. The therapist (who remained in contact with the children during this period) then joined the family dinner on 20 July 2018. Although as I understand it the therapist and the mother have different views about the success of the weekly dinners it does seem to be common ground that the final session over dinner on 20 July 2018 with the therapist present was particularly problematic.
b.148. The therapist took the view after this event that a short break in therapy was likely to assist the mother and the children and proposed a further day session for 15 September 2018. The mother and the children had no contact between the 20 July and 15 September 2018.
c.149. The therapist includes some detail in her report about the session on 15 September 2018. I include extracts from the report in relation to this contact event as they did not appear to be the subject to any significant dispute by the mother. They also summarise the outcome of the family therapy and provide context for the ensuing events. The therapist’s report about this session includes the following:
At the park, the children were very well-behaved. They were polite and cooperative. They ate their mother’s food and showed that they now understood that they could eat with her, talk with her and cooperate with her without having to show their feelings by verbal rejection, defiance and anger.
[The mother] was again focused on the children’s physical care. She was distracted in her conversations with them and used excuses of tracking the younger children’s safety to avoid difficult conversations with them.
[The mother] did not react with anger on this occasion but unfortunately appeared to take the children’s cooperation as feelings of conviviality towards her. As the visit drew on, the children became flat and hopeless. [The mother] became more vivacious and pleased but missed the children’s growing quiet withdrawal.
…
At the end of the session, we returned to the picnic table as we waited for [the father] to collect the children. In the 15 minutes or so this occurred, and in circumstances where [the mother] understood that there were no future meetings with the children planned, [the mother] left the children in silence and packed up the picnic. The children’s demeanour was of flat disappointment. [The mother] fussed with objects and ignored the children’s flat behaviour. The atmosphere was calm but poignant with the children’s disappointment in the mother obvious.
a.150. The balance of the therapist’s report contains an expression of her opinion about the future parenting arrangements for the children. In the course of cross-examination it was put to the therapist that she had based her recommendations for future parenting arrangements on events reported to her by the parties and the children, which were( at that stage) untested. The therapist also agreed that she did not have access to any documents produced in answer to subpoena or the parties’ affidavits and understood that the court may make significantly different findings as to the facts than as related to her by the parties and children. The therapist had also not been engaged as an adversarial expert. On that basis the therapist agreed that the court could attach little weight to her recommendations for the future parenting arrangements of the children.
b.151. Although the mother rejects some of the therapist’s criticisms of her interactions with the children and takes issue with some of the therapist’s version of events at the therapy sessions there is no dispute that the family therapy was unsuccessful in shifting the family dynamic and the children’s attitude toward her.
c.152. At the commencement of the final hearing the mother had not spent time with the children for six weeks since the picnic at the park on 15 September 2018. The therapist had communicated to her that the children no longer wished to spend time with her at the Friday night dinners.
The Hearing
a.153. As touched upon earlier in this judgment the final hearing which commenced on 29 October 2018 proceeded as against the father on an undefended basis. This came about as the trial directions which had been made as early as 29 November 2017 had not been complied with initially by both parties but by July 2018 the mother had largely complied. At a court event on 20 July 2018 the father’s lawyer indicated that the father was in a position to file an affidavit shortly. At that stage both parties and the ICL agreed that there was an urgent need to determine the parenting proceedings so the final trial was fixed to commence on 29 October 2018 and further trial directions were made.
b.154. The father however did not file any affidavit or Case Outline for the purposes of the trial. It is to be remembered that by this stage all the children were living with him and were effectively estranged from the mother. Moreover the expert had recommended in her report some time ago that if the family therapy was unsuccessful consideration be given to a structural intervention with the family and that her recommendation would be for the two younger children to live with the mother and have a period of no time with the father. There can be no doubt that the parties both understood that the therapist’s therapy had been unsuccessful. The expert had also opined that the children had been subjected to child abuse in that they had come to be alienated from their mother, when in the father’s care. In other words, there were significant concerns about the parent with whom the children were living but that parent was not engaged in the proceedings.
c.155. So far as the property settlement is concerned, at the commencement of the final hearing it is to be remembered the father was continuing to enjoy the benefit of the main remaining asset of the parties as he was residing in the family home. He was also effectively running the R A Pty Ltd business in the same capacity as he had been previously employed in his own business which had since been liquidated. The father’s best friend and the ostensible principal of R A Pty Ltd had been in gaol for eight months having been refused bail while awaiting trial for serious drug offences.
e.401. The husband disputed the amount of his superannuation contended for by the wife ($24,140) but did not provide disclosure in relation to this matter.
f.402. There should be a significant adjustment in the wife’s favour to account for the husband’s superior financial circumstances and the way in which he was able to gain control of the parties’ business and use it for his own purposes.
g.403. Each of the parties have the care and control of children of the marriage who will not reach the age of 18 for some time. Although the wife has a longer period of responsibility for the younger two children of the marriage than the husband due to their younger age, after 12 months those children will be spending each alternate weekend and half school holidays with the husband. Although the three older children will reach adulthood earlier than the younger two, one of those children is only aged 12. Further, there are no prospects of the three older children ever living with the mother and the only time she will spend with them, if any, is likely to be limited and involve little financial responsibility. In my view, there should only be a very small adjustment in favour of the wife to account for each party’s respective responsibility for children under their care.
h.404. The likelihood of the parties seeking or paying child support under the future parenting arrangements is difficult to assess. There is no evidence that the husband paid any child support for the children during the five months following separation when they all lived with the mother. At the time she gave evidence the wife was paying child support of $208 per fortnight although this sum is likely to be reduced following the orders made in November 2018 that the two younger children live with her. On balance, it appears likely that neither parent will seek child support from the other given that they each have roughly similar caring responsibilities for the children of the marriage.
405. I accept the submission made on behalf of the wife that it is a relevant circumstance that she has a number of personal debts including $123,000 in unpaid legal fees and $10,523 to the Department of Human Services. The husband has paid his legal fees to date but did not comply with a trial direction that he file a Costs Disclosure statement setting out his costs to date, his anticipated costs following the hearing, the total sum paid in respect to his costs and the source of funds used to meet these costs.
j.406. The husband’s failure to provide disclosure in relation to his legal fees is one aspect of his failure to provide financial disclosure throughout the entirety of the proceedings.
k.407. From the time the wife sought legal advice a few months after separation the husband has trenchantly failed to engage with her lawyers including by failing to respond to requests for financial disclosure in accordance with the Rules. He conceded under cross-examination that other than providing some tax returns he has not otherwise complied with orders compelling disclosure made as long ago as September 2016.
l.408. Although it became apparent in the course of the proceedings that the husband had filed at least one affidavit and Financial Statement earlier in the proceedings he specifically did not seek leave to rely upon that material at the beginning of the proceedings even though the wife indicated that she would raise no objection to a particular affidavit in relation to property. After the husband had been cross-examined for a day he sought to rely upon the same earlier affidavit. This was opposed by the wife having regard to the point in time it was sought and leave was refused.
m.409. The husband has been aware for a number of years of the wife’s contentions about his unilateral withdrawal of funds from joint accounts, unilateral sale of assets of the business (possibly at an undervalue), and placing the jointly owned company R Pty Ltd into liquidation when it was in a healthy financial state. The effect of these actions has been to diminish the parties’ assets and to remove the company, a valuable jointly owned asset from the wife. The husband has also not disclosed the source of funds for payment of his legal fees without explanation. In summary, the husband has failed at every level to provide the necessary level of financial disclosure to permit the wife a full exploration of these matters and for the court to gain a proper understanding of the financial position of the parties.
n.410. There is a long line of authority in dealing with the parties’ obligation to make full disclosure of their financial position. The Full Court has also consistently held since In the Marriage ofBlack and Kellner (1992) FLC 92 – 287 and In the Marriage of Weir and Weir (1993) FLC 92-338 that once a Court has found that a party has failed to make full disclosure, the court should not be “unduly cautious” in making findings in favour of the other party. A court may also take into account the value of undisclosed assets by increasing the other party’s share of disclosed assets.
o.411. The sums the husband received for the sale of R Pty Ltd and money he removed from joint bank accounts has already been brought to account by being included as assets of the parties in the hands of the husband. I have also taken into account the income the husband earns from his employment with R A Pty Ltd and his defacto interest in that business which is a financial resource for him. It is the wife’s contention that the husband also has ongoing access to undisclosed sources of income as he has been able to pay his legal fees from undisclosed sources and has been able to continue mortgage repayments on the home and support himself and the five children for over two years. The husband’s failure to provide financial disclosure including in relation to his legal costs and the source of the funds to pay them strengthens the inference that he has access to some undisclosed sources of income.
Discussion
a.412. It is contended on behalf of the wife that the foregoing section 75(2) factors justify a contribution based adjustment in her favour of 30 per cent while the husband contends this adjustment should be in order of 10 per cent. The making of property settlement orders is however more than a mathematical exercise, as issues of justice and equity are at its heart.
b.413. The Full Court in a number of decisions such as Wayne & Wayne [2010] FamCAFC 33 (“Wayne”) emphasised the importance of considering the monetary value of the percentage when making an adjustment that is just and equitable, stating at [106]:
We are also somewhat troubled that his Honour did not, in discussing the s 75(2) adjustment, make any reference to the monetary impact of the 10% adjustment which he decided was appropriate. The importance of having regard to the monetary effect of the orders made rather than the percentage division of assets has been emphasised on a number of occasions. For example, in Clauson and Clauson (1995) FLC 92‑595 at 81,911 the Full Court said:
There is, we think, at times a tendency to assess s. 75(2) factors in percentage terms without considering its real impact, and we think there is legitimacy in the views expressed in more recent times that the Court has tended to operate in this area within artificially delineated boundaries. That is, it appears almost to be inevitable that the s. 75(2) factors will be assessed in a range between 10% and 20%. A number of cases will justify an assessment outside those parameters and in any event it is the real impact in money terms which is ultimately the critical issue.
a.414. In Wayne the trial judge made an adjustment of 10 per cent in favour of the wife which when monetarised caused such a disparity as to be outside the reasonable ambit of the trial judge’s broad discretion as to what is just and equitable in those circumstances.
b.415. The result of the wife’s proposed orders would be a 60 per cent disparity between the parties with the husband receiving 20 per cent of the net assets and the wife receiving 80 per cent. In dollar terms, this would result in the husband being entitled to receive $255,955 and the wife receiving $1,023,821.
c.416. The result of the husband’s proposed orders would be a 20 per cent disparity between the parties with the husband receiving 40 per cent of the net assets and the wife receiving 60 per cent. In dollar terms, this would result in the husband being entitled to receive $511,910 and the wife receiving $767,865.
d.417. In my view, when the percentage entitlement contended for by the wife is monetised, the disparity of $767,866 between she and the husband falls outside the ambit of what may be considered just and equitable between the parties.
e.418. I am also of the view that the contention of the husband for a 10 per cent adjustment in favour of the wife for s 75(2) factors which would result in a disparity in dollar terms of $255,955 would not bring about a just and equitable distribution of the parties’ property interests.
f.419. In my view, a just and equitable result would be achieved by an adjustment in favour of the wife to her contribution based entitlement of 15 per cent. This adjustment will appropriately take into account the section 75(2) factors attaching particular weight to the parties’ respective income, property and financial resources including inferences that flow from the husband’s failure to provide financial disclosure, and the responsibilities of each of the parents for the care of their children under 18.
g.420. A 15 per cent adjustment in favour of the wife will result in a 30 per cent disparity between the parties and the wife receiving 65 per cent and the husband receiving 35 per cent of the net property. The wife’s entitlement in dollar terms based on a 65 per cent distribution to her is $831,854 and the husband’s based on a 35 per cent entitlement is $447,921 with the wife receiving $383,932 more than the husband.
h.421. In order to determine the actual amount to be received by each of the parties the amounts added back must be credited to the relevant party. Thus, $350,000 received by the wife under the February 2019 orders in relation to the Suburb L property is to be subtracted from her $831,854 entitlement. She is therefore entitled to receive $481,854.
422. From the husband’s entitlement of $447,921, $305,800 is to be subtracted being the husband’s $105,000 distribution under the February 2019 orders and the $200,800 added back as a premature distribution of joint assets. Accordingly, he is entitled to receive $142,121.
j.423. In oral submissions, the parties both agreed that the distribution of their respective entitlements would be paid for by the sale of the Suburb I property. The entitlements were based on an agreed value of $1 million for that property. The wife agrees that the husband should be given the opportunity to buy out her interest in the Suburb I property as he proposes. I propose making such an order and as this will not involve an actual sale of that property she will be entitled to receive $481,854 based on an agreed value of $1 million. Orders are to be made in the event that the husband does not buy out the wife’s interest and that properly is sold will be the subject of further submissions following the delivery of these Reasons.
COSTS
a.424. The wife seeks an order for costs on an indemnity basis or alternatively payable at the amount of 65 per cent of her costs incurred. The husband opposes any order that he pay the costs of the wife.
The Law
a.425. Section 117(1) of the Act sets out the general rule as being that each party is to bear his or her own costs. That principle is however subject to subsection (2) which gives a Court a discretion to make an order for costs if there are circumstances that it in the opinion of the court justify it in doing so. Any such order for costs pursuant to section 117(2) is “as the Court considers just”.
b.426. The High Court in Penfold v Penfold indicated that the circumstances justifying an order for costs need not be exceptional, but they must, of themselves, be sufficient to justify making the order. Therefore, there is no additional or special onus on an applicant seeking an order for costs other than the Court finding justifiable circumstances to make such an order.
c.427. Section 117(2A) sets out the relevant matters, if any are applicable, to which the Court is to have regard in considering an order for costs.The matters relevant in this case are considered as follows.
The financial position of each of the parties to the proceedings
a.428. As has been discussed previously in this judgment there is a disparity in the financial position of the parties. The wife, who is currently engaged in shift work discloses an average weekly income of $377.52. Although the husband has not filed a Financial Statement relied on in these proceedings, he earns an income from the R A Pty Ltd business. According to his last filed Financial Statement he earned $2,000 a week from that business.
b.429. The financial positions of the parties are also reflected in their ability or lack of ability to pay their legal fees. The wife has a number of debts including $123,000 in legal fees. The husband has been able to pay his legal fees to date but did not comply with a trial direction that he disclose matters relating to his legal fees including the source of the funds to pay them.
c.430. The wife has no financial resources of any significance.
d.431. I previously discussed I am satisfied that R A Pty Ltd is a financial resource available to the husband. In addition to being paid for the work he undertakes as an allocator in that business he receives other benefits such as car repayments. He has also effectively been running that business since the incarceration of Mr U. That business when trading as R Pty Ltd was previously profitable enough to support the entire family.
e.432. In these circumstances I consider it likely, especially when he has not disclosed his financial position, that the husband has some capacity to satisfy any order for costs. In any event, even if he does not have the capacity to pay, impecuniosity is no bar to the making of an order for costs.
f.433. The wife’s legal fees amount to a significant component of her property settlement entitlement.
The conduct of the parties to the proceedings in relation to the proceedings
a.434. The wife contends that the husband has deliberately conducted his case in a manner that has delayed the proceedings and showed disregard to she and the Court. The husband’s failures to engage with the court, comply with court orders and provide financial disclosure have been discussed at length in these Reasons.
b.435. In my view the husband has shown a blatant disregard for the Rules and orders of the Court. He has a history of non-compliance with court orders throughout the proceedings. For example he did not take any steps in relation to the orders made for the sale of the Suburb L property in October 2016, on a number of occasions unilaterally “varied” or not complied with parenting orders and failed to file evidence in accordance with trial directions in order to engage properly with these proceedings.
c.436. The husband’s failure to file a trial affidavit and fully and honestly disclose his financial position caused prejudice to the wife at the hearing. In particular she was required to expose the husband’s interest in R A Pty Ltd and unilateral withdrawal of funds through cross-examination. I accept the wife’s contention this caused her to incur additional legal costs throughout the proceedings. I also accept her contention that the husband’s lack of disclosure and requisite cooperation hindered her ability to sensibly engage in property settlement discussions.
d.437. The husband’s conduct in relation to the parenting proceedings is also relevant in my view to whether there are circumstances that justify departure from the usual rule that each party is to bear his or her own costs.
e.438. It is to be remembered that at the commencement of the proceedings the five children were living with the husband but he was not facilitating their time with the wife in accordance with the interim orders made on 25 November 2016.
f.439. Although the husband was in a unique position to provide evidence in relation to the children’s circumstances since he effectively took them into his care in late April 2016, he did not file any affidavit and relevant matters in relation to the children’s circumstances only came to light through cross examination by counsel for the ICL and the mother. The person who had accompanied the husband to court, Ms Y, also came to be understood as a significant person in the children’s lives and a person who potentially posed some risks to the children through that role and her association with the husband. All matters relating to Ms Y were revealed only through cross-examination, thereby lengthening the proceedings.
g.440. The husband’s conduct, in my view, is a weighty matter in determining this application.
Other relevant matters
a.441. In my view, while it cannot be said that the husband was wholly unsuccessful in the proceedings, it is relevant that he was largely unsuccessful. In relation to parenting, for the reasons given, the orders made in respect of the three older children were at best those that were least detrimental to them. Those orders were made in circumstances where there was no other alternative other than that they live with the husband and spend time with the wife in accordance with their wishes. The alignment of these children with their father and rejection of their mother was so absolute that it was not possible for practical reasons to make any other order. For the reasons given, I am satisfied that the husband bore a great deal of responsibility for this situation. He was not successful in relation to the parenting arrangements for the two younger children.
b.442. Having regard to the foregoing matters, I am satisfied that there is sufficient justification to depart from the usual rule and a costs order will accordingly be made in favour of the wife.
Indemnity costs
a.443. The wife seeks that her costs be paid on an indemnity basis. It is well-settled law that for indemnity costs to be awarded there should be some “special or unusual feature” in the case to justify the departure from party/party costs (Colgate Palmolive v Cussons Pty Ltd [1993] 46 FCR 225) (“Colgate”). The court has discretion under s 117(2) to award indemnity costs in “exceptional” circumstances (Kohan & Kohan (1993) FLC 92-340).
b.444. The category of cases in which an award of an indemnity costs order may be appropriate are not closed and the Full Court of the Family Court observed in Yunghanns & Ors & Yunghanns & Ors & Yunghanns [2000] FamCA 681 at [31]:
… It will suffice to say that the categories of circumstances which enliven the discretion to award indemnity costs are not closed, and that it is not a condition precedent to the exercise of the discretion that some collateral purpose or species of fraud be established against the party against whom such order is sought. …
a.445. In Harris & Dewell & Harris (Costs) [2018] FamCAFC 180 (20 September 2018) the Full Court said (footnotes omitted):
23.In Kohan and Kohan, the Full Court held, in applying the principles expounded by Sheppard J in Colgate-Palmolive, that an order for indemnity costs represents a “very great departure from the normal standard”. In the later decision of the Full Court in Prantage & Prantage, Thackray and Ryan JJ referred to Kohan and other authorities in the Full Courts of both this Court and the Federal Court of Australia as well as the state appeal courts. Their Honours concluded (at [86]) that the “usual rule” continued to apply in respect of awards of costs in this Court notwithstanding the Full Court accepting that the difference between party/party costs and a party’s actual costs has continued to grow significantly.
24.That proposition also derives support from what Callinan J said in Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation. His Honour said that an order for indemnity costs should “be exceedingly rare, as they have a tendency to encourage extravagance and put the quantum of legal fees beyond the effective scrutiny of the courts and their taxing officers”.
25.The rarity of an order for indemnity costs can also be seen illustrated by the comments of Lindgren J in NMFM Property Pty Ltd v Citibank Ltd (No 2), referred to by their Honours in Prantage (at [102] – [103]). Lindgren J said that there is no rule that indemnity costs will be ordered “where the losing party was guilty of ethical or moral delinquency in the antecedent facts which have given rise to the litigation.”
26.Of course, in proceedings under the Act, an overriding “usual rule” is prescribed by s 117(1), namely that each party bears their own costs. The degree of departure between that “usual rule” and a result where one party bears the totality of the other party’s costs can be seen to be all the greater.
a.446. It is submitted on the wife’s behalf that the husband’s conduct in relation to the proceedings has been so egregious to render this an “exceptional” case in which an order for indemnity costs is appropriate. In particular it is contended that the husband’s failure to disclosure his financial circumstances was improper and most likely motivated to secure a more financially advantageous result for the himself than if the Court had been furnished with the true facts. The wife also submits that the husband’s lack of compliance with court orders has substantially impacted her own expenses in conducting the proceedings.
b.447. The husband’s conduct in relation to the proceedings from the outset up until and including the final trial was unacceptable, unreasonable and undoubtedly caused some additional cost to the wife.
c.448. So far as delay in the final trial being heard is concerned, it is to be remembered however that neither party complied with the first trial directions made in November 2017 even though, as I understand it, both parties considered the dispute (especially in relation to parenting) ought to be resolved with urgency. Further, it had been agreed between the parties that the fully contested final trial could be contained within five days. The trial was completed within the days allocated and only had to be adjourned for another month due to the unavailability of the expert. In summary although the husband’s conduct was unacceptable and caused some additional cost to the wife, it does not fall within the category of egregious misconduct as contended by the wife.
d.449. Although the financial inequality between the parties is significant, it is not so great that it is a weighty factor in determining whether indemnity costs should be paid. None of the circumstances identified by Sheppard J in Colgate which may warrant the exercise of the discretion to award indemnity costs are present in this case. The factors present in this case and contended by the wife are only such that the general rule as to costs should be displaced, and those factors of themselves are not enough in my view to amount to an order for indemnity costs.
e.450. In these foregoing circumstances, I am not satisfied that the wife has made out an exceptional case as she is required to do to enliven the exercise of discretion to award indemnity costs.
f.451. As an alternative to indemnity costs, the wife seeks that her costs be paid in the specific amount of $219,656.11 being 65 per cent of all costs in the proceedings.
g.452. The provision relating to the calculation of costs is set out Rule 19.18(1) and (3) of the Rules which states that the court may order that a party is entitled to costs:
a.(a) of a specific amount;
b.(b) as assessed on a particular basis (e.g. lawyer and client, party/party or indemnity);
c.(c) to be calculated in accordance with the method stated in the order; or
d.(d) for part of the case, or part of an amount, assessed in accordance with Schedule 3.
(3) In making an order under subrule (1), the court may consider:
(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness of each party’s behaviour in the case;
(c) the rates ordinarily payable to lawyers in comparable cases;
(d) whether a lawyer’s conduct has been improper or unreasonable;
(e) the time properly spent on the case, or in complying with pre‑action procedures; and
(f) expenses properly paid or payable.
a.453. In considering the wife’s application that her costs be paid in a fixed sum (said to be 65 per cent of her actual costs in the proceedings) I have some difficulty in applying the Rules and relevant schedules. I consider that the parenting proceedings were difficult and complex but the property proceedings were not particularly complex. The husband’s unreasonable behaviour in respect of the entirety of the proceedings is also a relevant factor.
b.454. It is particularly difficult to consider the rates ordinarily payable in a comparable case as there may be few comparable cases. It is very unusual in my view for an undefended hearing to involve six days of evidence. It is also unusual that on many occasions the parties sought orders from the Court which the husband or at times the wife also did not comply with. In all of the circumstances, I am not in a position to assess the reasonableness of the wife’s claim and am satisfied that despite the risk of further expense and delay the proper order to make will involve taxation.
c.455. Having regard to the foregoing, I propose making an order that the husband pay the wife’s party and party costs as agreed and assessed.
ICL Costs
a.456. The ICL sought in her Minute of Order that the parties equally pay the ICL’s costs, being a sum of $10,719.14 each. Neither the ICL nor the parties made any written or oral submissions regarding the ICL’s costs.
b.457. It can be assumed in these circumstances that this order was not pressed. For this reason I decline to make such an order.
I certify that the preceding four hundred and fifty-seven (457) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 2 September 2019.
Legal Associate:
Date: 2 September 2019
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Costs
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Injunction
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Remedies
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Restitution
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Standing
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Statutory Construction
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