Batey-Elton and Elton

[2007] FamCA 1024

FAMILY COURT OF AUSTRALIA

BATEY-ELTON & ELTON (NO. 3) [2007] FamCA 1024

FAMILY LAW – Costs application – Hogan order – amended orders sought – grounds made out – application successful

APPLICANT: MS BATEY-ELTON

RESPONDENT: MR ELTON

INTERVENER: THE TRUSTEE IN BANKRUPTCY

FILE NUMBER: TVF 2250 of 2004

DATE DELIVERED: 4 September 2007

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: The Honourable Justice Jordan

HEARING DATE: 4 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Baston

SOLICITOR FOR THE RESPONDENT: Mr Madsen

SOLICITOR FOR THE INTERVENER: Mr Rodgers, Rodgers Barnes & Green

COUNSEL  COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Mr McGregor

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Forest Glen Lawyers

Orders

1. That the applicant Husband within twenty-one (21) days provide the respondent Wife’s nominated solicitors with an irrevocable bank guarantee by the National Australia Bank for a sum of $30,000.00 which may be drawn upon by those solicitors upon the following trusts:

(a)    To be applied solely for the purposes of providing to the respondent Wife legal professional services in relation to these proceedings; and

(b)    At the completion of these proceedings, the Wife’s solicitors to formally advise the bank that any undrawn funds otherwise available under the guarantee will not be called upon and the guarantee is thus discharged.

1. That the Wife file particulars of her claim pursuant to section 79A on or before 8 September 2007.

1. That the Husband file an affidavit of evidence-in-chief on or before 10 October 2007 and, to the extent that the Husband has not complied with paragraphs 2A, 2B, 3A, 3B and 5A of the Orders of the Court made on 13 December 2006, that he do so on or before 10 October 2007.

1. That the Wife file and serve her affidavit of evidence-in-chief on or before 9 November 2007.

1. That each of the parties file a further affidavit on or before 9 November 2007 setting out the following:

   (i)A list of assets with the value contended for and a list of liabilities -

   (a)     as at 10 September 2004;

   (b)    as at 9 November 2007.

   (ii)A calculation as to the percentage distribution each party contends was effected by the orders of 10 September 2004.

1. That the matter be listed for a Pre-Trial Conference at 9.00 am on 23 November 2007 on Level 3 of the Family Court of Australia, Brisbane Registry.

IT IS FURTHER ORDERED BY CONSENT UNTIL FURTHER ORDER

1. That the Father cause the children to attend on Ms P for counselling for one-and-a-half hour sessions on Monday, 1 October 2007, Tuesday, 2 October 2007, Thursday, 4 October 2007 and Friday, 5 October 2007, and on Monday, 17 December 2007, Tuesday, 18 December 2007, Thursday, 20 December 2007 and Friday, 21 December 2007, and on Monday, 21 January 2008, Tuesday, 22 January 2008, Thursday, 24 January 2008 and Friday, 25 January 2008.

1. That the Mother attend counselling with the children on the same dates.

1. That prior to any counselling, the Mother attend intake counselling by Ms P.

1. That the Mother spend time with the children for outings on such terms and conditions on the dates of the counselling as may be recommended by Ms P in writing.

1. That the Father pay the costs of the counsellor.

1. That the Father attend any intake counselling with Ms P prior to the Mother spending time with the children.

1. That Mr B not spend time with, or communicate with, the children.

1. That Ms P communicate with the Independent Children’s Lawyer about the outcomes of the counselling and that those outcomes can be disclosed to the parties, but the counselling otherwise to remain confidential.

IT IS FURTHER ORDERED

1. That pursuant to s65DA(2) and s62B, 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 these particulars are included in these orders.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Jordan delivered this day will for all publication and reporting purposes be referred to as BATEY-ELTON & ELTON.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: TVF2250 of 2004

MS BATEY-ELTON

Applicant

And

MR ELTON

Respondent

And

THE TRUSTEE IN BANKRUPTCY

Intervener

REASONS FOR JUDGMENT

EX TEMPORE

1. This aspect of the case has continued to bedevil the parties and the Court and presents entirely unique challenges in the management of the proceedings.  I have made reference to the combination of exceptional factors in a number of previous judgments.

2. There was previously a so-called Hogan application heard by me, I understand, in May of this year.  I refer to and affirm the judgment and its findings were delivered in July.  The judgment is a reflection of my view of the matter and of the state of the evidence, as I interpreted it.  On that occasion, I made a number of key findings, including the finding that the wife had established to my satisfaction a prima facie case, that is, an arguable case for relief under s 79A.  In the material filed in support of her costs application, she had met most of the criteria for such an application.  In this case, there was the added layer of the previous determination by a trial Judge based on medical evidence that the wife was unable to represent herself.  She has been unable to secure legal representation.  She does not have access to legal aid and her bankruptcy now stands in the way of obtaining funds sufficient to retain solicitors.

3. The wife and the Court have been blessed, as it were, by the generous intervention of the Bar Association in this case through the guise of Mr Baston, who has appeared on a number of occasions, provided assistance and indicated that, if necessary, he would continue to represent the wife in the trial proper on a pro bono basis.  It is appreciated that that, in itself, is an extraordinary commitment and it cannot be expected of him that he would also carry the heavy burden ordinarily carried by a solicitor.  Indeed, as he said, there are, perhaps, some ethical and professional issues about his capacity to do so, in any event.

4. On the last occasion when the costs matter was before me, it was argued on the basis that the husband should make a payment to the wife on account of her future legal expenses in the usual way.  That application was resisted largely on the grounds of the final pre-condition to such an order being satisfied, that is, that there was a reasonable capacity on the part of the husband to make such a payment.

5. The submissions made on behalf of the wife at that time made particular reference to a line of credit of some $600,000.  It was argued by the husband that there was insufficient evidence for the Court to be satisfied that those funds, or some part of them, might be available for this purpose.

6. The application filed on this occasion adopts a different course and seeks from the husband a bank guarantee sufficient to enable the wife to obtain access to some funds. 

7. Mr Madsen is the solicitor for the husband and he appears today.  Mr Page of counsel ordinarily appears, as he did last week.  When this matter was stood over to today's date, I indicated that I would determine this aspect of the matter, amongst other things.  Mr Page indicated, not unreasonably, that he was required to appear in Sydney and that, in those circumstances, Mr Madsen would appear on behalf of the husband.

8. Mr Madsen seeks the indulgence of the Court in the form of standing this aspect of the case over for a week to enable Mr Page to prepare some written submissions.  I take that request into account but, for a number of reasons, I do not feel disposed to grant that indulgence.  Firstly, as I disclosed to the parties last week, unfortunately, my personal circumstances are such that I would be unable to hear and determine that application in a week's time.  The reality is that I will be indisposed, possibly, for a number of months, but certainly unable to determine that matter for a very long period of time, and that is not in anyone's best interests.

9. Secondly, I am satisfied that Mr Madsen this morning adequately and eloquently identified the matters that should be taken into account on behalf of the husband in resisting this application.  Mr Madsen is an experienced legal practitioner with an extensive knowledge and understanding of this complex matter and as I say he well-identified matters that needed to be taken into account and, in those circumstances, I am satisfied that the husband has been adequately heard.

10. This aspect of the case has always been a difficult balancing act.  In terms of the wife's earlier application, the Court, as it were, ticked six of the seven boxes that might be necessary to provide her with some financial assistance to obtain justice and be reasonably heard.  This option of a bank guarantee was not argued on that occasion, and it is in the context of the husband arguing as part of his case that the line of credit was not available that, in the end, the wife's previous application stumbled at the last hurdle.  I am satisfied that this new application and proposed order addresses some of the earlier difficulties in a way which swings the balance in favour of making the orders sought by the wife.

11. Further, in granting this application, I take into account that, in real terms, the amount of funding sought to be guaranteed under these arrangements by the wife is a comparatively modest sum of money. 

12. I make this order fully mindful of the fact that there is some potential prejudice to the husband as outlined by Mr Madsen in that, if the wife is entirely unsuccessful and if the prosecution of the bankruptcy proceedings leaves her out of funds, the husband may be exposed to the risk of not being able to recover all, or even any part, of the $30,000 if it is called upon by the bank to discharge the guarantee.  That is clearly a risk and potential prejudice for the husband. 

13. However, whilst I must take into account the husband’s interests, I must also take into account the interests of the wife and the broader interests of taking all reasonable steps one can to ensure that justice is done.  I am satisfied that the absence of any such indirect or direct contribution by the husband would result in the wife being severely prejudiced and, as I have identified on previous occasions, the impasse created by the unique set of circumstances in this case is such that she may, effectively, be denied access to justice. 

14. I take into account that the wife has, on her evidence, established a prima facie case and there is, therefore, at least the prospect that she will be successful in the substantive application and, in that event, the husband's exposure to the extent of $30,000 would be well and truly covered by any adjustment to the varied property settlement orders.

15. As between the parties, on the face of the evidence as it stands, the husband is better able to sustain the potential loss of $30,000 than is the wife, in terms of the potential losses, real and legal, she would be exposed to if she is unable to even argue a case which may bear substantial fruit.

    ORDERS DELIVERED

    RECORDED  :  NOT TRANSCRIBED

16. I am referring back to my directions of 11 July.  I understand from the last mention that there may well remain some issue between the parties with the wife asserting that the husband has not yet complied fully with paragraphs 2A, 2B, 3A, 3B and 5A of the orders of O'Reilly J on 13 December 2006, which in turn became paragraph 2 of my orders of 11 July 2007.

17. What I might do, Mr Madsen, is give you a further, say, three weeks, although I note you have said previously the affidavit is all but complete, but if I take you out to 29 September and make a direction in identical terms to paragraph 2 of 11 July.  Obviously, if your client has already complied with those requirements, it imposes no extra burden upon him.  If he has not, he can address it between now and then.

18. So the paragraph will read:

    "That the husband file an affidavit of evidence-in-chief on or before

    
    

    29 September and, to the extent that the husband has not complied with paragraphs 2A, B and whatever, he do so on or before 29 September."

19. So I will incorporate both into that order.

    ORDERS DELIVERED

20. So I will leave that in the hands of a Registrar.

    RECORDED  :  NOT TRANSCRIBED

21. So 10 October.  I will adjust that paragraph accordingly.

    RECORDED  :  NOT TRANSCRIBED

22. I am happy with 21 days, Mr Madsen.

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding twenty one (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date: