C and C
[2004] FMCAfam 27
•21 January 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| C & C | [2004] FMCAfam 27 |
| CHILD SUPPORT – PRACTICE & PROCEDURE – Failure to comply with court orders for discovery – new and more comprehensive orders for discovery – where self-executing orders are made – explanation for apparent harshness of orders – assessment of costs thrown away. |
| Applicant: | MC |
| Respondent: | RJC |
| File No: | MLM 5332 of 2003 |
| Delivered on: | 21 January 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 21 January 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Walters |
| Solicitors for the Applicant: | M.K. Steele and Giammario |
| Counsel for the Respondent: | Ms Nikou SC |
| Solicitors for the Respondent: | J.A. Middlemis |
ORDERS
The hearing is adjourned until 7 June 2004 at 10.00am.
Any stay upon payment of child support by the Applicant, including payment of arrears, be removed. The Applicant to make payment of all arrears of child support to the Child Support Agency on or before
1 April 2004, together with current payments.The Applicant is to make, file and serve on or before 2 February 2004 an affidavit of documents setting out a list of all documents within her custody, possession, power or control that detail her financial position between 1 July 2000 and the date of the list, such documents to include but not be limited to:
(a)All statements emanating from any bank, credit union or other financial institution with which she holds, either jointly or alone, either as trustee or beneficiary, including accounts of any non‑public company of which she is an officer or shareholder, any form of account indicating the status of such accounts;
(b)Title particulars of all properties owned, either alone or jointly, as trustee or beneficiary, or by a non-public company of which she is or was an officer or shareholder;
(c)Documents evidencing the purchase sale, charging, renting, (including rent statements, copy receipts and leases or tenancy agreements) of any property held either jointly or alone, either as trustee or beneficiary or by a non-public company of which she is an officer or shareholder;
(d)Share certificates, CHESS holding certificates, dividend advices, stockbrokers' sales and purchase advices in respect of any shares in companies listed on the ASX held by her in the manner adumbrated above;
(e)Insurance policies taken out by her for the protection of her life, or earnings or any property (including movable property) owned by her as adumbrated above;
(f)Tax returns, including all details contained in client copy returns not provided to the ATO; and
(g)Motor vehicle registration particulars.
The Applicant's Affidavit of Documents is to list all documents of the type set out above that have previously been but are no longer in her custody, possession, power or control stating in respect of each:
(i)The date it left her possession;
(ii)The circumstances in which it left her possession; and
(iii)The place to which it left her possession.
Inspection of the documents to take place within seven days of filing of the list.
If the Applicant shall fail to comply with orders 3 and 4 above within the time limited the application is dismissed.
In the event that there is any dispute between the parties as to compliance, they shall have liberty to apply on two days notice.
Applicant to pay the Respondent's costs thrown away assessed in the sum of $4000, such costs to be paid on or before 1 April 2004. If the Applicant shall fail to pay the costs assessed the application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLM 5332 of 2003
| MC |
Applicant
and
| RJC |
Respondent
REASONS FOR JUDGMENT
These proceedings were set down for hearing before me today. They had previously been the subject of a number of orders of this court, including on 28 October 2003 an order for discovery by list.
The application is the mother's. She seeks to depart from the orders of the Child Support Agency and reduce the amount of child support paid by her for the benefit of her 16-year-old daughter who currently resides with the father. The grounds upon which she makes that application are that the father has a greater income than that which he has managed to persuade the Child Support Agency of.
The father then raised a cross-application against the mother stating that the mother had a greater income and assets than she claimed to be in possession of.
The Child Support Agency found the whole matter too complicated and told the parties that they should refer it to a court for a decision. The court is only able to make proper decisions in relation to these matters if all parties are completely open in regard to their financial affairs. It was for no doubt for that reason that orders were made requiring the parties to file lists of documents which were to go to their financial positions.
When I came into court this morning I was met by an application on the part of the father from Ms Nikou SC for an adjournment. The adjournment was requested because the applicant mother had not complied with the order for the production of a list of documents but had attempted to circumvent that requirement by providing odd details of documents relating to her financial affairs. Ms Nikou submitted to me that those documents were not satisfactory and that she would be prejudiced if she was not allowed to have a list of documents of the type that her own client produced, albeit late.
Mr Walters who appeared on behalf of the mother and whose assistance has been gratefully received because, I understand, it may not be being paid for, submitted that his client's failure to comply with orders was not as significant as Ms Nikou had suggested and that Ms Nikou could proceed even in the absence of a list or of documents evidencing such things as sale and disposal of certain properties.
After hearing both parties and after reading the letters, which are contained in exhibit 1 tendered by Ms Nikou, I came to the conclusion that the applicant mother had indeed made a serious failure to provide the father with the type of details of her financial situation that would have been required properly to deal with this case. I was particularly concerned that this is not the first time the matter has been before the court and that the order for a list of documents was made in October and that the matter was before the court on 9 January when, I understand from Ms Nikou, that complaint about the provision of the list was made.
During the course of his submissions Mr Walters told me that his client did not understand what a list of documents was. It is for that reason that I have spelt out in the orders which I made the requirements of such a list, which requirements are not exclusive.
I have also made certain other orders which at first sight may appear to be harsh. These are the orders which I have made dismissing the application if the list of documents is not provided within the time specified, that being approximately two weeks from today. I do not think myself that this is a harsh order given the fact that the list of documents was ordered originally on 28 October 2003. Now that the applicant has the assistance of Mr Walters I believe it can be done within that time. I did ask the parties whether they had any suggested amendments to my draft orders when I read them out. Mr Walters did not make any representations that the time limited by me was too short.
The second order I made, which might be the subject of some criticism, was that the applicant continue to pay the child support and/or the arrears which have accumulated to date. It seems to me that if a case has to be put off for approximately six months because of the inability of the person making the application to comply with orders of this court, then they should not also receive the benefit of having their obligations stayed. The situation at the moment is that the Child Support Agency has assessed the applicant in a particular sum of money, which is not very high, and the child should receive the benefit of those orders until such time as a court has decided to depart from them.
The third order upon which I anticipate some concern is that the applicant is to pay the respondent's costs thrown away which I have assessed in the sum of $4000. Ms Nikou tells me that her brief fee for today was $3500 and there is obviously some solicitor's fees involved as well. I believe that those would be at least $1000 and therefore what I have given is something less than Ms Nikou's fees plus something for the solicitor.
I have also made an order that the costs are to be paid before 1 April 2004 and if they are not so paid the application shall be dismissed. Mr Walters did not make any submissions to me that the time limited thereby was too short. But no doubt it will be argued that the order is too harsh. I do not think this is the case. The applicant seems to me to have flagrantly ignored the orders of this court. It has caused the matter to be adjourned. The matter is to be adjourned to a date when other parties who have not failed to comply with orders could have had their matter heard but will not be able to. There are sufficient delays within this court already without the burden being added to by people who do not comply with court orders.
Those are my reasons for making those orders which I have made. The matter will now be adjourned until 7 June 2004 at 10 am.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM
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