Bonner and Bonner

[2010] FamCA 928

FAMILY COURT OF AUSTRALIA

BONNER & BONNER [2010] FamCA 928

FAMILY LAW – INTERIM – Spouse maintenance – Children

Family Law Act 1975 (Cth)

APPLICANT: Ms Bonner

RESPONDENT: Mr Bonner

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 1166 of 2010

DATE DELIVERED: 13 OCTOBER 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: CRONIN J

HEARING DATE: 13 OCTOBER 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS FIELDING

SOLICITOR FOR THE APPLICANT: LEWIS HOLDWAY LAWYERS

COUNSEL FOR THE RESPONDENT: MR APELBAUM

SOLICITOR FOR THE RESPONDENT: STYNES DIXON LAWYERS

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MR BULT

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: DAVID STAGG TONKIN & CO

Orders

IT IS ORDERED

1. That the following applications are adjourned for determination by the Senior Registrar in the list at 9.45am on 17 December 2010:

   (a)any outstanding spousal maintenance application by the wife and any application by the husband for any existing order under s 77 of the Family Law Act 1975 (Cth) to be discharged; and

   (b)any interim parenting orders including but not limited to, any application:

   (i)by the husband to restrain the wife from taking the children to any particular church; and

   (ii)by the husband concerning a variation of the existing contact times between he and the three children of the marriage.

2. That the proceeds of the sale of the former matrimonial home at M be applied as follows:

   (a)     first, to pay all selling agent’s costs and commissions together with any outstanding rates and other apportionable outgoings;

   (b)    secondly, to pay conveyancing costs up to $1500 including GST;

   (c)    thirdly, to discharge the mortgage registered to Permanent Custodian Ltd AD …;

   (d)    fourthly, to discharge the mortgage registered to Australian and New Zealand Banking Group Pty Ltd Registration AF… relating to the property at H;

   (e)    fifthly, to pay to the ANZ Bank, the sum of $17,425.31 for the overdraft of Bonner Holdings Pty Ltd relating to that company’s overdraft;

   (f)     sixthly, to pay to the wife $5500 being arrears of maintenance up to and including 13 October 2010; and

   (g)    seventhly, to pay the balance thereafter into a controlled monies account to be held in the joint names of the parties by the solicitors for the wife until further order and as otherwise set out in the orders that follow.

3. That until further order, the payments of spousal maintenance under paragraph 1 of the orders made on 3 August 2010 be paid by the solicitors for the wife to her from the controlled account to satisfy the obligation of the husband under the said order if he has not paid it each week personally on time.

4. That the wife provide to the husband and make disclosure of, all bank records in her possession and comply with Chapter 13 of the Family Law Rules 2004.

5. That from the balance of the said controlled monies account, the sum necessary to satisfy the fees of Mr P be quarantined and upon request for payment by Mr P, the solicitors for the wife pay out the necessary sum to satisfy his account.

6. That the parties and the children of the marriage attend upon and at the direction of, Mr P for the purposes of the preparation of a family report as a matter of urgency.

7. That the husband have leave to issue any subpoenae to the Commonwealth Bank of Australia concerning accounts that may be held by or on behalf of the wife.

8. That by 4.00pm on 20 October 2010, the wife provide a list of all documents she requires disclosed by the husband and within a further 14 days thereafter, subject to any objection on the grounds of privilege, the husband make disclosure of such documents for inspection by the wife.

9. That the wife be and is hereby restrained from allowing the children of the marriage to be left alone in the care of her father, the maternal grandfather.

IT IS NOTED that publication of this judgment under the pseudonym Bonner & Bonner is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1166 of 2010

MS BONNER

Applicant

And

MR BONNER

Respondent

REASONS FOR JUDGMENT

1. In a very busy Duty List on 13 October 2010, a variety of disputes had to be determined on an interim basis.  The parties required that I give reasons for the orders that I made.  These are those reasons.

2. The applicant in the proceedings is Ms Bonner (“the wife”) and the respondent is Mr Bonner (“the husband”).  Mr Bult is the Independent Children’s Lawyer. 

3. The proceedings have wandered through the court system with varying degrees of difficulty.  The wife has complained of the lack of involvement of the husband.  The husband’s solicitor observed that there were times when he was instructed not to act and he therefore filed a notice that he was no longer acting.  To compound those problems, the husband has recently spent time in prison and is now currently on bail.

4. The disputes between the parties relate to both financial and parenting issues.  The parenting issues have a number of facets.  The parties agreed previously to use the services of psychologist Mr P but apparently that did not eventuate because no money was provided for Mr P.  As will now be apparent, there will be funds available and with the agreement of the parties and the urging of the Independent Children’s Lawyer, I propose to make orders for a report to be prepared and for the matter to then return to the Senior Registrar’s List in December.  If Mr P is unavailable, the Independent Children’s Lawyer will try and obtain some other expert.  Whilst the parties talked about trying to assist them to work out what to do, I have made clear that my concern is more for the expert to provide the Court with advice and evidence upon which to make decisions.  It was the husband’s position that the Court should appoint a Family Consultant for the making of a Family Report but as the parties are nowhere near ready for trial, I was not prepared to allocate the already limited resources.

5. Some of the dispute between the parties in relation to parenting issues includes the husband’s complaint of the involvement of the children by the wife in a Christian Church.  Another relates to the involvement of the children with their paternal grandfather who, even the wife seems to acknowledge, is a cause of concern because of his behaviour towards the wife as a young child.

6. The existing orders relating to parenting issues provide that the husband spend time with the children every weekend from the conclusion of school on the Friday until 9.30 a.m. on the Sunday.  Although the husband complained about that being not sufficient time, no application was made to vary the orders.  The husband’s solicitor said that his client was more concerned about the issues to which I have just referred. 

7. The Independent Children’s Lawyer described the matter as difficult and complex.  Be that as it may, the parties by law have equal shared parental responsibility for the children R who is 15 years, N and J who are twins aged 12 years.  There is clearly no love lost between the parties let alone any communication.

8. Having regard to the extant orders which were not challenged by the husband, I saw no basis to vary the existing arrangements. 

9. The husband’s response to the wife’s application in a case was filed on 12 October 2010.  In that, he sought an order that the wife “ensure” that the children were not left in the care of the maternal grandfather to whom I have earlier referred.  After discussion, as all parties seemed to express concern about the children being left alone with the maternal grandfather and for the protection of those children, I have made an order which was not opposed by the wife restraining her from allowing her father to be in control of or alone with those children.

10. The other parenting issues have been dealt with as I have set out above.

11. The financial issues from the parties’ perspectives appear very complicated.  For the purposes of their respective applications and these reasons, the matters can be divided into two parts.  The first relates to an extant order of the Senior Registrar for spousal maintenance and the second relates to property matters generally. 

12. Dealing with the second of those two matters first, the matrimonial home has been sold.  It appears to be owned by a corporate structure as the Trustee of a Trust but there was no dispute about the issue of control.  The wife’s application in a case filed 10 September 2010 sought a variety of orders along the lines that upon the sale of the home, a variety of payments be made which includes to creditors.  Without complaint by the husband, some of those were agreed.  Orders will be made in those agreed terms.

13. What was in dispute was that after the payment of those sums, there will be approximately $30,000 left.  The objection of the husband was to the wife being paid any money out of that sum.  The wife claimed initially a sum of $9,234 for what was described as “unpaid spousal maintenance”.  In minutes that were handed to the Court, the wife increased that sum to $11,234 because of the effluxion of time. 

14. The husband’s argument about any amount let alone the sums referred to was simple.  His solicitor argued that the wife was not entitled to those funds because even if there was an extant spousal maintenance order, the wife had “dipped” into various accounts and his obligations were therefore relieved. 

15. The spousal maintenance obligation arose because on 3 August 2010, Senior Registrar FitzGibbon ordered that the husband pay to the wife for her “urgent maintenance” $500 per week calculated as and from 3 August 2010 and such funds to be paid to the wife into a bank account nominated by her. The Senior Registrar’s reasons for judgment are on the file. It is quite clear that he was exercising the power under s 77 of the Family Law Act 1975 specifically to make urgent maintenance orders. The powers to make that order are extremely wide. They are intended to cover an urgent situation. I have previously given judgments in which I have indicated that whilst urgent maintenance is intended to cover immediate needs, the question of the lifestyle of the parties must be taken into account as well as their urgent needs.

16. The husband’s argument in this case however was that the Senior Registrar adjourned the proceedings to 6 September 2010 on which date, there was no appearance for or on behalf of the husband.  He pointed to the fact that no order was made relating to the spousal maintenance and therefore submitted that the order of 3 August 2010 expired.  I reject that argument.  The Senior Registrar’s order of 3 August 2010 was “until further order” and that must mean “until a further order is made relating to the same issue”.  Despite the fact that it was urgent spousal maintenance, the absence of the husband on the return date of 6 September 2010 clearly entitled the wife to presume that the order was ongoing.  The order of 3 August 2010 had no sundown clause.  It was not suggested in the reasons for judgment of the Senior Registrar, but certainly clear on the face of the order, that the Senior Registrar was simply covering for a precise period until the matter could be more fully litigated.  It was apparent that there was an extant application for spousal maintenance on foot.  Accordingly, I am satisfied that the Senior Registrar’s order began on 3 August 2010 and continues. 

17. In the husband’s response to the wife’s application in a case, he sought an order that the spousal maintenance orders be “dismissed”.  It can hardly be therefore said that he did not think that the order made on 3 August 2010 was extant when he filed the application on 12 October 2010. 

18. At the hearing on 13 October 2010, it became clear that the issue between the parties about spousal maintenance was hotly contested.  There was no prospect that the case could be determined “on the papers” as each party wanted to cross examine the other.  For that reason, I have adjourned the matter back to the Senior Registrar for that determination in December subject to his time capacity.

19. The confirmation of the existence of the order then gave rise to two interesting applications.  The first by the husband was that he did not have any arrears because the wife had used accounts including money to pay basketball expenses and singing lessons of the children.  That argument had no merit.  It would be clear on the evidence of both parties that the wife was using funds to pay children’s expenses which would otherwise be declared as child support.  Spousal maintenance is not designed to cover child support obligations.  It is determined by and referrable to, the expenses and needs of the wife.  Even if it could be argued that the husband should be entitled to say that the wife had been satisfied by monies she had drawn, those funds were clearly capital and drawn from what on any view, was joint resources.  The order made by the Senior Registrar on 3 August 2010 was a personal obligation against the husband.  One can hardly expect the wife to be paying her own spousal maintenance from her own resources.

20. Accordingly, I am satisfied that there have been accrued arrears since 3 August 2010 because the husband has not made any payments.  Up until this day therefore, the debt is $5,500.

21. The second interesting argument was raised by the wife. She said that she had sought maintenance in February 2010 and there was a notation on the orders that the husband would make various payments but he failed to do so. Her argument was that the Senior Registrar said that he was unable to back date the spousal maintenance order and thought that that might give rise to this Court being able to do it in a Judicial Duty List. The Senior Registrar, on what I can see, was dealing with the issue of urgent spousal maintenance under s 77 of the Family Law Act. The wife did not litigate her application for spousal maintenance and has not done so since. It is not so much a matter of whether she is entitled to maintenance from early 2010 but rather whether she should have funds made available to her from a capital source to at least cover her immediate needs as were contemplated by the Senior Registrar on 3 August 2010. Insofar as she seeks to have the spousal maintenance back dated to February if the matter is litigated before the Senior Registrar in December 2010, he will no doubt determine that matter according to law. If in fact it becomes apparent that there was a spousal maintenance obligation from February 2010 onwards, that is also a matter that can be litigated at trial when the Court contemplates the division of property using the powers and s 79 and s 75(2) of the Act.

22. Accordingly I find there is no basis for me to say that the arrears exceed $5,500 as at today. 

23. That in turn leads on to the question of the ongoing maintenance of the wife.  The clear indications by the instructions that the husband gave his solicitor to put the proposal that there was no such obligation indicates that the wife can have no confidence that she will receive the funds on an ongoing basis into the future and certainly up until the Senior Registrar can look at the matter in December.  That in turn must mean that the Court would then be faced with a further application for enforcement of orders.  There was an argument put that there was no enforcement application before the Court because there was no contravention application.  As I pointed out, that argument had no merit either because the enforcement application of a money order is not done by a contravention application. 

24. I have no confidence on what I have heard that the husband will pay the maintenance and albeit that the payment into the foreseeable future will have to come out of the capital, that issue can be adjusted at trial.

25. There is every reason in this case therefore to allow the wife’s ongoing maintenance to be paid at the rate of $500 per week in the event that the husband does not make the payment of his personal obligations on a weekly basis.  The wife’s solicitors who will be the holders of the controlled funds account have authority to release the funds on a weekly basis to the wife accordingly to the orders that I propose to make.

26. Those funds will not last forever.  What is critical however is that the Court has the capacity to hear the children’s interim arrangements later in the year including the contentious issues to which I have earlier referred and that it has the expert evidence of someone like Mr P.  Accordingly, I propose to order that the funds necessary for that appointment which I note were previously recorded in an earlier order of the Court be paid from the controlled funds account and that that sum be quarantined to the extent that if the wife’s payments of $500 per week otherwise exhaust that fund, the money is to be used first to pay Mr P or such psychologist as the parties agree.  Insofar as those balance of funds are exhausted by the spousal maintenance, the wife will have to make an application for alternative remedies.

27. The parties then litigated about the question of discovery.  Each accuses the other of not making a proper disclosure.  The husband said that he had made demands for the wife to provide banks statements and all that was provided was two pages.  The wife explained that she had only opened an account for the purposes of the maintenance but she conceded she had other documents relating to joint accounts and had not provided those on the basis that the husband had those documents.  Be that as it may, it is appropriate for the wife to disclose all documents in her possession regardless of whether she thought the husband had access to them.  The matter became heated and unpleasant when it became clear that the wife also has access to a trust fund of a relative and the solicitor for the wife indicated that copies of those accounts have been sent to the legal practitioners for the husband already.

28. The wife too complained that the husband had not provided all of the necessary documents that she wanted to see.

29. Rule 13.07 of the Family Law Rules 2004 is dedicated to the issue of disclosure. The parties would do well to look carefully at Rule 13.07 which requires as a duty, the disclosure of each document that is or has been in the possession, or under the control, of the party disclosing the document and which is relevant to an issue in the case. There can be no equivocation about that issue. Objection to production of documents is simply set out in Rule 13.13. The consequence of a non-disclosure makes it clear that a party is not able to offer the document at a trial without consent and may be guilty of contempt for not disclosing documents and ordered to pay costs. The Court also has power under the Rule to stay or dismiss all or part of the party’s case if there is a failure to make proper disclosure.

30. This Court treats disclosure seriously.  The authorities have made that clear for many years.  The Rules encapsulate all of the authorities over those years.

31. For the wife to simply say that she wants documents in circumstances where the husband has been accused of not being co-operative in relation to disclosure does not assist the matter any more than the reverse in respect of the husband’s complaint about the wife.  I therefore propose to order that the wife provide to the husband’s solicitor a list of what documents she wants to inspect.  The husband has no confidence that the wife has made proper disclosure and in those circumstances making a further order for disclosure seems pointless.  I have therefore given the husband leave to issue a subpoena to the Commonwealth Bank.  No doubt that will make the position clear.

32. Finally, if it is trite to say that these parties cannot afford to litigate.  There is a significant dispute about what property they have and each is of very modest means.  If when the Senior Registrar examines the financial position on the basis that the parties have made comprehensive disclosure, it is apparent that the dispute is not significant, consideration should be given to a transfer of the proceedings to the Federal Magistrates Court of Australia.  I say that having regard to the fact that to the parties’ shame, there have now been approximately fifteen court appearances in 2010 alone.  That is nothing short of disgraceful.

I certify that the preceding thirty two
(32) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice
Cronin delivered on 14 October 2010.

Associate: ……………………………………………………………

Date:  …………………………………………………………………