Barns & Barns
[2021] FedCFamC1F 214
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Barns & Barns [2021] FedCFamC1F 214
File number(s): MLC 14779 of 2019 Judgment of: REES J Date of judgment: 23 November 2021 Catchwords: FAMILY LAW – INTERIM PROPERTY – Application for interim financial relief – No source of funds identified to satisfy an order for partial property settlement or interim costs – Where the husband doesn’t have capacity to pay spousal maintenance – Where no notice of the child support departure was served on the Child Support Registrar – Applications dismissed.
FAMILY LAW – INTERIM PARENTING – Child to have a meaningful relationship with both parents – Orders made increasing time the father spends with the child.
FAMILY LAW – PRACTICE AND PROCEDURE – Review of a Senior Judicial Registrar’s decision – Where the wife sought to review orders requiring her to pay the husband and third parties’ costs following a subpoena objection hearing – Orders upheld.Legislation: Child Support (Assessment) Act 1989 (Cth) s 117
Family Law Act 1975 (Cth) s 117(2A)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.13
Cases cited: Lesley & Lesley [2015] FamCA 894
Salvage & Fosse (2020) FLC 93-966
Division: Division 1 First Instance Number of paragraphs: 122 Date of hearing: 17 November 2021 Place: Sydney Counsel for the Applicant: Ms Smallwood SC Solicitor for the Applicant: Lander & Rogers Counsel for the Respondent: Mr Dickson QC Solicitor for the Respondent: York Law Family Law Specialists Counsel for Objectors to Subpoena: Mr Kearney SC Solicitor for Objectors to Subpoena: Hargreaves Family Lawyers ORDERS
MLC 14779 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BARNS
Applicant
AND: MS BARNS
Respondent
AND: E PTY LIMITED, MR O BARNS & MS T BARNS
Objectors to Subpoena
ORDER MADE BY:
REES J
DATE OF ORDER:
23 NOVEMBER 2021
THE COURT ORDERS:
1.
That the wife must pay the husband’s costs of and incidental to the Notices of Objection – Subpoena filed on 15 February 2021 in response to the two Subpoenas issued on
29 January 2021 to National Australia Bank Limited as agreed or assessed within
28 days of agreement or assessment.
2.
That the wife must pay the Objectors’ costs of and incidental to the Notice of Objection – Subpoena filed on 17 February 2021 in response to the Subpoena issued on
29 January 2021 to National Australia Bank Limited excluding:
(a)The costs of the subpoena hearing on 3 March 2021; and
(b)
Costs of and incidental to preparing and filing written submissions pursuant to
Order 5 of the orders made on 3 March 2021
as agreed or assessed within 28 days of agreement or assessment.
3.
That within three months of the date of these orders, the wife pay the costs of
Mr O Barns, Ms T Barns and of E Pty Limited in relation to the application to review the Senior Judicial Registrar’s orders assessed at $7,652.
4.That the wife’s application for interim property settlement is dismissed.
5.That the wife’s application for spousal maintenance is dismissed.
6.That the wife’s application for lump sum costs pursuant to the Family Law Act 1975 (Cth) s 117(2A) (“the Act”) is dismissed.
7.
That the wife’s application for a “dollar for dollar” order pursuant to s 117(2A)
of the Act is dismissed.
8.That the wife’s application for a child support departure order is dismissed.
9.That the child X (“X”) born … 2018 spend time with the husband, in a four week cycle, as follows:
(a)Each Tuesday from 3.00 pm until Wednesday at 9.00 am.
(b)Commencing on Friday 26 November 2021, for three consecutive weekends from Friday at 3.00 pm until Sunday at 6.00 pm.
(c)On the fourth week of the cycle, from Friday at 3.00 pm until 9.00 am on Saturday.
10.That on one weekend in each four week cycle, the husband may travel with X to Melbourne.
11.That changeovers on Tuesday morning and Friday afternoon are to occur by the husband collecting X from day care.
12.That changeovers which do not occur from day care are to be at McDonalds at Suburb U.
13.That the husband and the wife shall not:
(a)Speak about the proceedings in the presence of hearing X or permit any other person to do so.
(b)Denigrate the other parent or any member of the other parent’s family in the presence or hearing of X or permit any other person to do so.
14.That both parents are permitted to liaise and communicate with X’s day care providers to obtain information about X that is usually available to parents.
15.That each parent notify the other as soon as reasonably practicable of any accident or medical emergency involving X including medical treatment or hospitalisation.
16.That the wife be restrained from engaging medical or allied health treatment for X without the consent of the husband.
17.That each parent be entitled to communicate with any health professional with whom X is engaged.
18.That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Barns & Barns has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:
Mr Barns (“the husband”) and Ms Barns (“the wife”) separated on
29 November 2019. They have one child, X (“X”) who was born in 2018.
The husband and the wife lived in Sydney until 2019 when they moved to Melbourne.
In November 2019, the wife unilaterally returned to Sydney with X. In 2020, the husband elected to rent in Sydney so that he could maintain his relationship with X.
The substantive proceedings concern parenting arrangements for X and property settlement.
The wife proposes to remain living in Sydney and that X live with her. The husband proposes that X live with him in Melbourne.
In relation to property, the wife seeks an adjustment of an unspecified pool of property and the husband contends that there is no property and that the secured liabilities exceed the value of the real estate which he owns.
Presently, X lives with the wife and spends time with the husband in accordance with orders made on 15 March 2021, in each two week cycle, from after day care on
Monday until 6.00 pm and from after day care on Friday until 6.00 pm on Saturday in the
first week and from after day care on Monday until Tuesday morning and from
9.00 am to 6.00 pm on Saturday in the second week.
The husband now seeks to vary those orders to extend the time he spends with X in a variable four week schedule where the arrangements in the first and second weeks differ from the proposal for the third week which, in turn, is different from the other three weeks. Central to the husband’s proposal is that, once in each four week cycle, the weekend time should be four days to allow him to take X to Melbourne to spend time with his paternal grandparents. The husband then seeks numerous further orders regulating parenting behaviour and the time X will spend with each parent on special occasions.
The wife seeks orders which have the effect of continuing the orders made 15 March 2021.
The wife also seeks, on an interim basis:
·a partial property settlement of $100,000;
·interim costs in the sum of $241,679;
·or in the alternate, a “dollar for dollar” order, that is, that for every dollar the husband pays in legal fees, he is to pay her lawyers a dollar;
·spousal maintenance in the sum of $1,000 per week; and
·a child support departure order such that the husband pay, in addition to the assessed amount, the costs of the child’s attendance at day care and, from 2022 at a nominated private school (including uniforms, extras and the like).
Further, the wife seeks to review Orders 2 and 3 made by a Senior Judicial Registrar on
5 August 2021 requiring the wife to pay costs in relation to objections to subpoena issued by the wife to the National Australia Bank (“NAB”). The objections were made both by the husband and by the husband’s parents and a company controlled by the husband’s parents, E Pty Limited (“EPL”).
WHAT IS THE EVIDENCE OF THE PARTIES’ RESPECTIVE FINANCIAL POSITIONS?
The application in relation to costs and interim property settlement require an investigation, in so far as it is possible on the available evidence, of the parties’ respective assets, liabilities and income.
The wife has no significant assets.
The husband is the registered proprietor of a house in Melbourne where they lived for a short time in 2019.
There is no evidence of the value of the Melbourne property. The husband, in his
Financial Statement, ascribes to it the value at the time of purchase, $2,360,000.
The husband’s evidence is that the mortgage liabilities, secured against the Melbourne property, exceed its value. The husband has bank accounts totalling $18,930 and a car.
It does not appear to be disputed that the husband, before the parties separated, executed documents giving security for money advanced to him for the purchase of the Melbourne property and for living expenses.
The wife disputes the asserted mortgage liabilities.
The husband’s evidence is that he has a mortgage to the NAB for which he pays
$1,826 per week and a mortgage to EPL as trustee of the Barns Settlement Trust
(“the Trust”) for which he pays $755 per week.
The husband is one of the discretionary beneficiaries of the Trust. He is not the appointor of the Trust and nor is he either a shareholder or a director of EPL. The husband deposed that his father controls the Trust. Further the husband deposed that he has not received any distribution from the Trust since the commencement of the parties’ relationship.
The husband’s father has sworn an affidavit in the proceedings. He deposed that he, and his wife, are the shareholders and directors of EPL. He deposed that the Trust has lent money to the husband to purchase real property and to maintain his lifestyle. Annexed to the affidavit of the husband’s father are two loan agreements, both executed on 8 October 2019.
The first agreement, titled “Deed of Loan Agreement (Interest and Capital)” refers to three advances. The first of $100,000 is acknowledged to have been repaid.
The second of $2,261,483.41 of which $1,652,100 was repaid, has a balance owing of $609,418.41 as at 16 April 2019 with interest repayable on the balance outstanding.
The third advance made on 13 August 2019 of $1,270,000, of which $300,000 was repaid leaving $970,000 outstanding, was for the purchase of the Melbourne property.
In relation to the amounts outstanding, interest is specified to be paid monthly at the rate of
3 per cent per annum, increasing on default to 4.6 per cent per annum and the advances are to be secured over the Melbourne property.
The Deed contemplates further advances.
The second agreement, titled “Deed of Loan Agreement (No Interest)”, between EPL and the husband relates to advances between 1 July 2013 and 2 April 2019 and attaches a ledger showing advances totalling $489,825.08, repayments of $285,427.88 and a balance outstanding of $204,397.20. That Deed also contemplates further advances. Repayment is to be at the discretion of the lender on the giving of one month’s notice.
The husband’s father deposed that the husband has made repayments as required by the Trust and that those repayments continue to be made.
The husband’s father deposed that the money must be repaid and that the Trust has entered into similar agreements with the husband’s brother to whom funds have also been advanced.
The wife asserts that the husband should have equity in the Melbourne property.
Her contention, which appears to have been reconstructed from documents produced on subpoena, is as follows:
·At the commencement of cohabitation, the husband owned an apartment in Sydney with an equity of $335,000 (“the apartment”).
·In February 2015, the husband refinanced the mortgage over the apartment and borrowed a further $205,000, increasing the liability to $520,000.
·The increased amount of $205,000 together with a further $15,000 was applied towards the purchase of a property, jointly with his father, at Suburb U for $1,675,000 (“Suburb U”). The husband and his father jointly borrowed $1,340,000. The wife does not assert that the husband paid the balance of the purchase price of Suburb U or the attendant stamp duty and legal costs which, I infer, must have been paid by the husband’s father. She disputes the husband’s contention that he borrowed from the Trust to pay those expenses.
·The balance of the purchase price of Suburb U was $115,000. The stamp duty on the purchase was $77,615. Allowing for the payment of legal costs, the additional amount required to settle would have been about $195,000.
·
In September 2017, the mortgage over Suburb U was increased to $1,800,000.
The amount of $459,718.27 was paid into an account in the joint names of the husband and his father with the NAB #...03.
·In September 2017, the husband again increased the mortgage over the apartment to $549,500 and paid the amount of $43,589.18 into an offset account. Since the amount outstanding pursuant to the mortgage in February 2018 was reduced to $505,629.11, I infer that the amount in the offset account was applied to the reduction of the mortgage.
·In February 2018, the husband sold the apartment for $816,000. After the discharge of the mortgage and payment of costs of sale, he received $285,565.89 which he paid into an offset account related to the mortgage over Suburb U.
·In March 2019, the husband purchased a property in Melbourne for $2,362,000. The deposit of $236,200 was paid from an account in the joint names of the husband and his father with the NAB #...92. The wife does not assert that the husband had paid any funds into the NAB account, nor does she assert that the husband had $236,200.
·To complete the purchase of the Melbourne property, EPL paid $2,261,283.41 on settlement. However, shortly after settlement, the NAB advanced $1,696,443.86 by way of mortgage over the Melbourne property and those funds were paid to EPL.
·In June 2019, Suburb U was sold for $1,860,000. $1,696,443.86 was paid to discharge the mortgage to the NAB and $67,681.49 was deposited into an account in the name of the husband’s parents.
It is not clear what the wife asserts is the husband’s equity in the Melbourne property. If her interpretation of the material produced on subpoena is correct, then the husband was entitled to a half share of the money deposited in the NAB #...03 account, about $230,000. However, that takes no account of the additional funds for the purchase of Suburb U which, on her version, did not come from the husband and therefore must have come from his father or EPL.
Further, the wife’s reconstruction does not take into account the money which the
husband’s father deposed was lent to the husband for living expenses during the marriage, secured over the Melbourne property as set out in the second Deed of Loan Agreement
(No Interest).
It is possible that, on the final hearing of the property proceedings, the trial judge will find that there is no property for distribution between the husband and the wife.
The husband relies on a Financial Statement sworn on 12 November 2021. He deposes to an income of $2,903 per week.
From that income, he pays fixed expenses for income tax, mortgage payments, rates, rent, private health insurance, home and contents insurance, vehicle registration and child support totalling $4,958.
The husband has not let the Melbourne property to which he wishes to return with X.
The wife relies on a Financial Statement sworn 13 August 2021. She has income from employment of $685 per week. She receives child support for X and a commonwealth benefit.
The wife deposes to fixed expenses for tax, rent, car insurance and registration of
$642 per week. She estimates her discretionary expenses to be $1,242 per week.
The wife has savings of $4,333 and a car. She has no other assets of significance.
INTERIM PROPERTY SETTLEMENT
To make an order for an interim or partial property settlement, the Court must firstly be satisfied that there is a fund from which such an order can be paid. Apart from the asserted notional equity in the Melbourne property, the wife identified no source of funds available to satisfy such an order.
Further, in the event that it is ultimately determined that there is no property to be distributed between the husband and the wife, the wife does not identify any fund from which the advanced sum could be repaid.
This application will be dismissed.
SPOUSAL MAINTENANCE
I accept that the wife has established that she is unable to support herself adequately from her own employment and because she has the care of X. The wife has qualifications as a carer and it is not asserted that she has qualifications or experience that would enable her to obtain better paid employment.
However, I am not satisfied that the husband has any ability to pay spousal maintenance. I am conscious of the fact that the husband’s evidence in relation to his fixed commitments, particularly in relation to the mortgage payments, is disputed by the wife who, as I understand her case, does not accept that he has a liability to the corporate entities controlled by his father as the husband asserts. However, it is not possible for that issue to be determined in the limited scope of the available evidence and of this enquiry, without the benefit of cross-examination.
I accept that the husband currently pays rent for a premises which he occupies with his new partner and that she makes no contribution. However, if I were to give him credit for paying only half of the rent ($500) and to remove for the purposes of this determination the mortgage payment to EPL, the husband still has fixed expenses which exceed his income.
There is no evidence of the amount of rent that would be paid for the Melbourne property if it were let.
I do not accept the submission of senior counsel for the wife that the husband should be required to sell the Melbourne property in order to pay spousal maintenance. In any event, the Melbourne property has not been sold and the husband’s commitments remain ongoing at the time of the determination of this application.
I am not satisfied that the husband has any capacity to pay spousal maintenance and the application will be dismissed.
INTERIM COSTS
The wife seeks payment of $241,679 within 14 days. She is unable to identify a fund from which the payment can be made.
The Full Court considered the making of orders for lump sum costs in Salvage & Fosse
(2020) FLC 93-966 where the majority stated:7.The introduction of s 79 of the Act, followed by s 90SM and, the acceptance of the making of appropriate orders dealing with only part of the property in advance of the final hearing, saw these sections relied upon to support orders for the transfer of funds for the purpose of paying legal fees to be incurred in those proceedings. Where there are assets which will be divided between the parties but which are held by only one party, this is an obvious and principled approach because, it permits each party to deal with the property that he or she will receive as a result of the division of property as they see fit, including for the payment of legal fees. It recognises the inherent unfairness of a party being able to marshal all of the assets to prosecute their claim and leaving the other party to fend for themselves without that benefit.
8.… s 117 of the Act empowers the Court to make such orders as to costs and is of sufficient width to empower the making of the order sought by the respondent in the proceedings.
9.Such a concession merely accepts a now long-held and unimpeachable jurisprudence.
10. …
11.The considerations that apply to applications under s 79 and s 90SM and, s 117 of the Act, are quite different and some care must be taken in identifying the relevant principles that apply to each (Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 ("Strahan") at [84]).
12.Importantly, in property settlement proceedings it may be sufficient for an applicant to establish that he or she would be likely to receive a property settlement that would be "sufficient to cover the advance" (Zschokke and Zschokke (1996) FLC 92-693 ("Zschokke") at 83,216). There, the Full Court of the Family Court of Australia went on to adopt the following passage from Harris and Harris (1993) FLC 92-378 at 79,930:
…[T]he Judge must be satisfied that the remaining property will be adequate to meet the legitimate expectations of both parties at the final hearing, or that the order which is contemplated is capable of being reversed or adjusted if it is subsequently necessary to do so…
13.The power to make orders in the exercise of the property power may be exercised by a series of orders, with the crucial issue being whether or not the power to make orders for the settlement of property has been exhausted or spent. Unless it has, further orders may be made with respect to property the subject of earlier orders (Gabel & Yardley (2008) FLC 93-386 at [69] and [126]). In other words, that earlier order may be taken into account or, indeed reversed, prior to or as part of the final exercise of the s 79 (or s 90SM) power without resort to s 79A of the Act and its equivalents or, an appeal. However, the notion of orders being "reversed or adjusted" does not easily apply to costs orders made in the exercise of the costs power, especially if the applicant fails. The very nature of a litigation funding order is that the funds will be spent on the costs of the proceedings, which may or may not be successful. There is a real risk that the funds can never be recovered or otherwise taken into account.
14.The critical question therefore is whether the applicant has "any real prospects of obtaining justice unless the order sought is made" (Parker v Parker (1992) 16 Fam LR 458 at 461), or in terms of s 117(2) of the Act, whether in all the circumstances the costs order is just. That question raises, at least, consideration of the strength of the applicant's case and the effect of the order upon the respondent.
15.It would not be just, for example, for the respondent to have to pay the legal expenses of the applicant, where the case to be taken was weak, fanciful or misguided or where the effect on the respondent of such an order would work an injustice. We do not consider it helpful, however, for there to be a need to identify the applicant's case as strong, persuasive or such like to justify an order. That invites a descent into semantics and an artificial characterisation of the strength of the proposed proceedings. The consideration should be whether the case to be raised by the applicant is sufficient, in all of the circumstances, as to its nature and prospects, to justify an interim order for costs. This conclusion accords with Zschokke at FLC 83,217, where the Full Court said:
… We agree that, as was submitted by [c]ounsel for the wife, the requirement of justice (which was expressly drawn to attention by the Full Court in Hogan and also implied by Brennan J in Breen) must remain a "basic" condition in the making of an order of the type in question under s 117(2).
(See also Strahan at [124]).
16.In this matter, the respondent faced the task of persuading not only the primary judge that she had a claim to set aside the Cohabitation Agreement of sufficient merit to justify an interim costs order but also that her subsequent property application was of sufficient merit and value to justify that course. There would be no point in providing funding to pursue a case to set aside the Cohabitation Agreement, unless the Court was satisfied that the respondent would be likely to receive a property settlement of such value as to justify that course.
17.The position is somewhat analogous to an application for leave to commence property proceedings out of time pursuant to s 44(3) (or s 44(6)) of the Act. In such proceedings, the Court looks at, amongst other things, the likely costs of the proceedings and the probable range of results. If the costs of the proceedings do not justify the likely return and would not have the effect of alleviating the applicant's hardship, then leave will not be granted (Gadzen & Simkin (2018) FLC 93-871 at [35]-[37]).
Thus, in order to warrant the making of an order pursuant to the Family Law Act 1975 (Cth) s 117(2A) (“the Act”), the wife must establish the following:
·That she would not have any real prospects of obtaining justice unless an order is made; and
·That her case for property settlement is sufficient, in all the circumstances, as to its nature and prospects, to justify the making of the order; and
·That the costs sought are proportionate to the probable range of results.
In the present instance, if the husband’s case is accepted, there is no property to be adjusted between the parties.
The wife has neither income nor assets from which she could repay any sum advanced to her for costs.
I am not satisfied, on the evidence currently available, that the wife has demonstrated that her prospects are sufficient to justify the making of the order she seeks.
The application will be dismissed.
DOLLAR FOR DOLLAR ORDER
The same considerations apply to the wife’s application for a “dollar for dollar” order and that application will be dismissed.
INTERIM CHILD SUPPORT DEPARTURE ORDER
The wife seeks orders that would have the effect that, in addition to child support as assessed, the husband pay private school fees commencing in 2022 when X will be four years old.
There is no evidence that the husband has been consulted in relation to enrolling X at the specified school and he does not consent to the enrolment.
The wife has not established that the husband has any capacity to pay the amount she seeks.
However, it is not necessary to consider the merits of the wife’s application.
An application for a child support departure order is made pursuant to the provisions of s 117 of the Child Support (Assessment) Act 1989 (Cth). Rule 1.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provides that the Child Support Registrar must be served with such an application and is entitled to intervene. No notice has been given to the Child Support Registrar.
I adopt, with respect, the reasoning of McClelland DCJ in Lesley & Lesley [2015] FamCA 894 where his Honour said:
59.Failure to serve the Registrar in accordance with the Rules is fatal to the Court dealing with the application at this time. Requiring service to be effected is not simply insisting on ritualistic compliance with the Rules for the sake of mere compliance. Non-service on a person or entity that has a statutory right of intervention is a fundamental denial of natural justice that, in the absence of urgency, prevents the Court from dealing with that aspect of the application. In Child Support Registrar & Nixon, the Full Court said:
…given the emphasis placed by the High Court in both Taylor and Allesch v Maunz on the right of a party to be heard when an order is to be made affecting that party, we accept that where a party has not been given notice of the proceedings in which the order was made, and thus not been heard on the making of the order, that that is a matter which should be given very significant weight in the exercise of the discretion to set aside the order. As his Honour did not refer to the fact that the order had been made without notice to the Registrar, it has to be assumed that he gave this fact no weight, and thus his discretion must be regarded as having miscarried on account of his failure to have regard to this important matter.
We add that we do not accept, as we understood to be submitted by the respondents, that a distinction should be drawn between a party to the proceedings as opposed to a third party.
(Footnotes omitted)
The application will be dismissed.
REVIEW OF THE SENIOR JUDICIAL REGISTRAR’S DECISION
The wife issued a subpoena to the NAB seeking the production of bank statements in relation to accounts in the name of EPL from 1 January 2013; accounts in the names of the husband’s parents from 2015 and the husband’s accounts from 2015. The husband’s parents and EPL (“the third parties”) were not parties to the proceedings.
The husband’s parents personally, and as directors of EPL, lodged an objection broadly on the ground that the subpoenas were too wide, seeking to have produced documents relating to the personal affairs of the husband’s parents and the commercial dealings of EPL which were unrelated to any issue in the proceedings. The husband lodged a similar objection in relation to his own accounts.
On 12 March 2021, the Senior Judicial Registrar (“the registrar”) upheld the objections. The wife did not seek to review that decision.
On 5 August 2021, the registrar ordered the wife to pay the husband and objectors’ costs.
The wife now seeks to review that decision.
This determination therefore proceeds by way of hearing de novo and is governed by the provisions of s 117(2A) of the Act.
I propose to deal firstly with the order for costs in favour of the third parties.
Although there is no evidence of the financial position of the husband’s parents or of EPL, I infer from the evidence in the substantive proceedings that they are in a vastly superior financial position to that of the wife.
The wife’s conduct, in issuing subpoenas which were judged to be too wide, is a relevant consideration.
However, more relevant is the fact that the objection was upheld and therefore the wife was wholly unsuccessful.
Further, I was directed to offers of settlement made by the third parties in an effort to provide the information that the wife sought and to avoid the necessity of the objections being determined.
On 8 March 2021, solicitors instructed by the third parties sent a letter to the wife’s solicitors enclosing several pages of redacted bank statements and offering to provide redacted copies of other documents including the tax returns of EPL in so far as those documents related to transactions involving the husband. On that basis, the solicitors sought agreement that the wife would withdraw the subpoena to the NAB.
The wife did not agree and pressed the subpoena in its entirety.
Both the wife and the third parties sought costs.
On 7 April 2021, the registrar made directions in relation to the filing of costs submissions. The third parties’ submissions in relation to costs were filed on 23 April 2021.
The third parties wrote to the wife’s solicitors on 15 April 2021, offering to resolve the issue on the basis that each party pay their own costs.
On 16 April 2021, the wife’s solicitors wrote to the third parties’ solicitors stating that they did not agree and “We intend to file an application to review the registrar’s decision out of time in respect of the ruling about the NAB subpoena”.
On 11 May 2021, a registrar directed that the wife file any review and listed the matter for mention on 8 June 2021.
On 2 June 2021, the registrar ordered that, in the event that by 8 June 2021, the wife had not filed an application to review the substantive decision, then the registrar would proceed to determine the costs applications. The wife was ordered to pay the costs of the third parties.
I do not accept the submission on behalf of the wife that, because at a later time, further subpoenas were issued, to which no objection was taken, there should be no order for costs in relation to the subject subpoenas.
Having regard to all the relevant matters mandated for consideration, it is appropriate that the wife pay the costs of the third parties.
Senior counsel for the third parties sought costs in the event that the review was unsuccessful, as it has been. There was no objection to the quantum of costs sought and it was conceded that, if the application were unsuccessful, costs would follow the event.
The wife will pay the costs of the third parties in the sum of $7,652. No submissions were made as to the time for payment. I propose to allow the wife three months to pay.
In relation to the husband’s costs, I accept that the husband’s income is greater than that of the wife but, as has been explained earlier in these reasons, his disposable income is not. However, I also accept that the husband receives assistance from his father, albeit, it is asserted, on the basis that funds advanced will be repaid.
Again, the wife caused to be issued a subpoena which was determined to be too wide.
The Court upheld the husband’s objection to the subpoena and thus the wife was wholly unsuccessful.
No offers of settlement were brought to my attention.
As in relation to the subpoena to the third parties, I do not accept as relevant the fact that later, better drawn subpoenas, elicited the evidence the wife sought.
Having regard to all of those matters, it is appropriate that the wife pay the husband’s costs of the objection.
PARENTING
In this portion of the reasons, the parents will be referred to as “the father” and “the mother”.
The orders currently in force were made when X was just three years old. He will be
four years old in early 2022 and there is no prospect of there being a final parenting hearing before that time.
X has been spending overnight time with the father since those orders were made on
15 March 2021.
This is not a matter where it is accepted that X will remain in the primary care of the mother and the task is to determine what time he will spend with his father. In these proceedings, there is a contest as to where and with which parent X will live.
I accept that the relationship between the parents is conflictual and that X is stressed by the antagonism which he experiences from both of them.
However, I am also conscious of evidence of the single expert psychiatrist, Dr L who met with X, the parents and other significant adults in July 2020 and prepared a report dated
10 October 2020. Dr L has not been cross-examined and his conclusions and recommendations will no doubt be the subject of vigorous challenge. His observations, particularly of X with each parent, are unlikely to be subject to such a challenge.
I also note that Dr L’s observations of the mother’s behaviour are somewhat corroborative of the father’s evidence as to her occasionally volatile interactions.
Dr L reported that in interview with him, and in the presence of X, the mother “unprompted” was critical of the father. He reported that the mother, with X present, told him that the father had verbally, emotionally and financially abused her and that she listed instances of that abuse. She also was critical of the paternal grandmother.
Dr L described in detail his observations of X with each parent. He observed that X exhibited some “clingy” behaviour but less so with his father than his mother. Dr L observed that there was more insecurity evident in X’s relationship with his mother than with his father. Dr L noted that the father demonstrated an attunement to X and a capacity to interact with X at his level and in an attentive way.
He observed the mother’s approach to be, at times, confrontational and disruptive and “reflects the striking volatility that I observed”. Dr L also expressed his concern about the volatility of the relationship between the mother and the maternal grandmother which was evident in their lack of restraint on an occasion when X was talking to his father using WhatsApp.
Dr L stated:
It seems clear both from what I observed during my assessment and from what
[the mother] and [the maternal grandmother] told me that the [maternal grandparents’] household can be very volatile, with quite frequent, loud altercations between the adults which include verbally abusive language.I accept that the mother has now moved from her parents’ home and lives in a rented premises with X, but Dr L’s observations provide some corroboration for the father’s evidence in relation to the behaviour of the mother and the maternal grandmother.
There is no doubt that the present level of communication between the parents is extremely poor and that X is distressed on changeovers, and after spending time with each parent, I infer because he is conscious of the level of acrimony which exists. I am not in a position, on the available evidence, to determine whether one parent is more responsible for that situation than the other.
The complaints made in the outline of case that was relied upon in the mother’s case are indicative of the conflict between the parents.
In support of her contention that the time X spends with the father should not be increased, she raises the following:
·The father doesn’t tell her what food he gives X when X is in his care.
·The father enrolled X in Kickaroos (soccer) without telling her.
·The father has refused to allow the mother to come to the soccer games when X is in his care.
·The father takes X to extra swimming lessons in addition to the ones organised by the mother.
·The father refuses to engage with the mother when she raises issues with him during X’s Facetime calls with the father.
·X is unsettled after spending overnight time with the father.
It is a matter of concern that the mother seeks out opportunities to interact with the father when X is present, in circumstances where it is clear that X is conscious of the hostility between his parents and is affected by it.
The father, for his part, reports that X is unsettled when he comes into his father’s care. No doubt each of them is correct. It would be surprising if a child of X’s age, whose parents separated when he was less than two years old and who did not start spending overnight time with his father for over a year, were not distressed when he passes between his parents and that distress is likely to be exacerbated by the hostility between the parents.
It is not in dispute that X’s interests are best served by his having a meaningful relationship with both of his parents.
I am conscious of the views expressed by Dr L about the effect of the mother’s volatility and psychological fragility on her parenting skills but those are matters which will be considered at the substantive hearing. I accept, however, that it is necessary to protect X from psychological harm which arises from being exposed to the hostility between his parents.
Each parent has identified weaknesses in the other’s capability and Dr L’s evidence in relation to the parenting capacity of each of them will be significant in the substantive determination. However, other than acknowledging that the capacity of each of the parents to parent is a real issue here, that issue cannot be resolved.
Given X’s age, his views have not been canvassed.
When Dr L conducted interviews in July 2020, X was not spending overnight time with the father but nevertheless Dr L reports on the positive nature of their interaction. It is to be expected that X’s relationship with his father will have strengthened due to their spending increased time together.
Otherwise, detailed analysis of the nature of the relationships between X and each of his parents will be a matter for the substantive hearing.
It is not appropriate that X should have any significant separation from either of his parents at this time of his life but neither is it appropriate that his relationship with his father should not be enabled to progress.
The parents’ respective parenting capacities are also a matter which will be explored in the substantive hearing. At the present time, although each is critical of the other’s parenting style, the evidence does not suggest that either parent is not sufficiently able to care for X.
I do not accept that it is appropriate, as the mother submitted, to restrict X’s time with his father to the present arrangements and to require the father to make yet another application at a later time.
It is preferable to make an order now that will govern X’s time with the father into the foreseeable future or, at least, until he starts school when it will be necessary to revisit his parenting arrangements.
I do not, however, propose to make the orders sought by the father which, in my view, are unnecessarily complicated and will be confusing for X.
I propose to make orders that will provide for X to spend overnight time with his father which will include weekends from Friday night until Sunday evening and for X to spend a regular overnight with his father each week, with changeovers occurring, where possible from day care and otherwise at McDonalds at Suburb U.
The evidence does not disclose on what days and for what hours the mother works but it is agreed that X attends day care on Monday, Tuesday and Friday between 8.30 am and
3.00 pm. Since the father’s proposal is to spend time with X from midday on Monday and Friday, I am prepared to assume that his work place is sufficiently flexible to accommodate his being able to collect X from day care at 3.00 pm and return him to day care at 8.30 am.
The father also seeks a suite of orders relating to special occasions, included AFL Grand Final Day and religious holidays. No submissions were addressed to those issues and it is not necessary to deal with them at this time.
No submissions were directed to the father’s application for orders relating to non-denigration, particularly at changeovers but, having regard to the evidence of both parties about hostility at changeovers, it is appropriate to make those orders. Similarly, I will make the orders sought by the father in relation to access to information, day care and medical treatment.
I certify that the preceding one hundred and twenty-two (122) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 23 November 2021
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