Chadbourne & Chadbourne
[2021] FCCA 378
•2 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Chadbourne & Chadbourne [2021] FCCA 378
File number(s): NCC 438 of 2021 Judgment of: JUDGE COSTIGAN Date of judgment: 2 March 2021 Catchwords: FAMILY LAW - interim property proceedings – orders with respect to the conduct of the parties’ business – joint expert valuation – wife’s application for exclusive occupation of the former matrimonial home – husband’s application for parenting orders Legislation: Family Law Act 1975 (Cth) s 114 (1)(f)
Federal Circuit Court Rules 2001 (Cth) r 15.11
Corporations Act 2001 (Cth) s 290(1)
Cases cited: Allesch v Maunz (2000) 203 CLR 172
Davis & Davis (1976) FLC 90-062
G and T (2004) FLC 93-176
MG & JGG [2004] FMCAfam 300
In the marriage of Harris (1980) 5 Fam LR 852
O’Dea & O’Dea (1980) FLC 90-896
Sieling v Sieling (1979) FLC 90-627
Sharpe v Grobel [2017] NSWSC 1065
Number of paragraphs: 61 Date of last submission/s: 24 February 2021 Date of hearing: 24 February 2021 Place: Newcastle Solicitor for the Applicant: Powe & White Family Lawyers Counsel for the Respondent: Mr Duane Solicitor for the Respondent: Rankin Ellison Lawyers ORDERS
NCC 438 of 2021 BETWEEN: MS CHADBOURNE
ApplicantAND: MR CHADBOURNE
Respondent
ORDER MADE BY:
JUDGE COSTIGAN
DATE OF ORDER:
2 MARCH 2021
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1.Within 72 hours the Husband must transfer all funds relating to B Group held in his personal accounts to the primary cheque account for B Group being D Company Cheque Account number ...07 (“the primary cheque account”).
2.The Wife is restrained by injunction from operating, withdrawing or otherwise dealing with the bank accounts of the company B Group Pty Ltd (“B Group”) including causing any amount to be deducted by Paypal from those accounts.
3.The Husband forthwith do all acts necessary to cause B Group to sell the Mini-Excavator and plant trailer for the best price reasonable obtainable and pay the proceeds into the primary cheque account.
4.The Husband is restrained by injunction and/or restrained from permitting any agent or employee on his behalf from:
4.1Causing B Group to sell, transfer, dispose or otherwise divest itself of any other assets of the company outside of the Mini-Excavator without giving the wife 28 days’ notice in writing of his intention to cause the company to sell the asset, the proposed method of sale, estimated sale price and application of the funds.
4.2Giving any direction or authority to any customer or debtor of B Group to pay any amount due to the company to any account other than the primary cheque account.
5.These Orders are sufficient authority for the Wife to:
5.1Have ‘view’ access to any and all accounts operated by the husband in relation to B Group;
5.2Have full access to all records held by the Australian Taxation Office in relation to B Group;
5.3Receive all information held by B Group with any accountant and/or bookkeeper who works on behalf of the said company; and
5.4Have ‘view’ access to any business software package operated by the business for example MYOB and Xero.
6.The parties shall do all acts and things necessary to instruct Mr E from F Partners to value the company and for this purpose:
6.1Pursuant to rule 15.09 of the Federal Circuit Court Rules(2001), the said value will be the Court Expert for the purposes of valuing the company;
6.2Within seven (7) days of date of these Order, the solicitor for the wife shall prepare a joint letter of instruction and within 14 days hereof, the husband or his solicitor is to sign and send the said letter to the valuer; and
6.3The parties are to do all acts and things necessary to provide to the valuer any and all information requested by them to enable the valuation to be prepared.
7.That all costs associated with obtaining the valuation are to be borne equally by the parties.
8.Pursuant to section 11F of the Family Law Act 1975 the parties attend a child dispute conference with a family consultant in this Registry on 19 May 2021 at times to be advised AND the parties are advised that if a person fails to comply with this order or any instruction the consultant gives to the person the consultant must report the failure to the court AND the Applicant and Respondent are to do all things necessary to facilitate their attendance promptly at the commencement of the conference.
9.The matter is adjourned to 9 June 2021 at 10.00am for an interim hearing before Senior Registrar Crawford in the Federal Circuit Court sittings.
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 under the pseudonym Chadbourne & Chadbourne is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE COSTIGAN
INTRODUCTION
These are interim proceedings between the applicant wife Ms Chadbourne (‘the wife’) and respondent husband Mr Chadbourne (‘the husband’) in relation to the conduct of the business B Group Pty Ltd which is an asset of the marriage, the valuation of that asset by a jointly appointed single expert, exclusive occupancy of the former matrimonial home at Town G (‘the Town G property’) and the parties’ time with their two children.
BACKGROUND
The wife is 32 years of age and employed as an public servant at Employer L in Town M. She currently resides at the home of her mother and step-father and pays board of $200 per week.
The husband is 37 year of age. He and the wife are directors and shareholders of the company B Group Pty Ltd (‘the business’). The husband currently resides in the Town G property from where machinery and equipment for the business is stored. He is the sole registered proprietor of the Town G property.
The parties commenced cohabitation in 2011. They married in 2014 and separated in mid-January 2021. There are two children of the marriage, X aged 3 and Y aged 16 months. The children have remained in the care of the wife and have not spent any time with the husband since 17 January 2020.
The wife’s evidence is that the parties separated around the 16 and 17 January 2021 and she alleges that the husband locked her out of the Town G property on 18 January 2021.[1] Since that time she has returned to the Town G property on several occasions to collect personal chattels belonging to her and the children.
[1] Affidavit of Wife filed 15 February 2021 at [37]
The Town G property was purchased by the husband in late 2011 and registered in his sole name. The husband says that the reason for this was ‘Ms Chadbourne and I had only been living together for about 9 months, I was contributing all of the deposit and the loan was in my name.’[2]
[2] Husband’s affidavit filed 23 February 2021 at [14]
The wife commenced these proceedings within a month of separation seeking short listing of her application and property orders only. In his response the husband raised parenting issues. At the interim hearing on 24 February 2021 the wife was directed to file in reply by 4pm on 31 March 2021 in relation to parenting. The parties have not attended mediation.
The first return date of the wife’s initiating application came before me in a duty list on 24 February 2021. The wife pressed her interim application for exclusive occupancy and the husband his application for time with the children.
EVIDENCE
The wife relied upon the following documents:
(a)Initiating application filed 15 February 2021;
(b)Affidavit filed 15 February 2021;
(c)Financial Statement filed 15 February 2021;
(d)Proposed Minute of Order (Exhibit A); and
(e)Photographs of the former matrimonial home (Exhibit B).
The husband relied upon the following documents:
(a)Response filed 23 February 2021;
(b)Affidavit filed 23 February 2021;
(c)Financial Statement filed 23 February 2021;
(d)Notice of Risk filed 23 February 2021;
(e)Section 60I certificate filed 24 February 2021;
(f)Minute of Interim Orders (Exhibit C);
(g)Case Outline (Exhibit D);
(h)Husband’s Tax Returns for financial years 2019 and 2020 (Exhibit E); and
(i)Company Tax Returns for financial years 2019 and 2020 (Exhibit F).
WIFE'S APPLICATION - SOLE OCCUPANCY
The wife seeks the following interim orders:
7. As and from the making of these Orders and pending further Order:
(a) The wife shall have exclusive occupation of the land at Town G in the State of New South Wales to the extent that such land covers the fenced area containing the main residence (‘the main residence’), and
(b) The husband shall have exclusive use, between 6am and 6pm on a Monday to Saturday each week, of the land at Town G in the State of New South Wales to the extent that such land covers the fenced area containing vacant land which is used to store excavators and machinery on same (the “storage area”), provided that the husband does not linger on or in the storage area for any longer than what is necessary for the purposes of storing or retrieving the machinery or excavators which may be from time to time located there.
(c) The wife shall have exclusive use and operate of the present vehicle which is in her possession which is otherwise registered to the company recorded below.
The wife argues that she should have sole occupancy of the Town G property because: –
(a)The two children live primarily with her and she currently resides with her parents at their home.
(b)She seeks to retain the Town G property in the final property settlement. It is not clear at this early stage of the proceedings whether this is a realistic or viable option.
(c)The husband has alternative accommodation with his parents in Suburb H. It is a two bedroom property and no-one else lives there.
(d)In any event, the husband has an income stream from the business (cashflow she says of $240,000) which he could apply to rental accommodation for himself.
(e)The husband is unable to operate the business from the Town G property despite having done so for several years, because of the zoning laws which do not permit those activities.
(f)In the alternative, the Town G property is an acreage and the husband would be able to continue to access the machinery and equipment that are stored in sheds located on the property but some distance away from the residence. These sheds have a separate access road to the residence and the husband could have exclusive use during the daylight hours. There would be no prejudice or detriment to the husband as he could continue to store his machinery and equipment and the parties would not need to come into contact with each other.
THE HUSBAND'S ARGUMENT - SOLE OCCUPATION
The husband seeks dismissal of the wife’s application and argues:
(a)He is the sole registered proprietor of the property.
(b)He is meeting the outgoings on the Town G property from the business. The business itself is meeting a number of other expenses including the running costs of the wife’s motor vehicle.
(c)He continues to run the business from the Town G property which involves office facilities and parking and storage areas for machinery and equipment. He denies that the business is in breach of any Local Government regulations and says that the property is zoned RU2 because the earthmoving equipment and heavy vehicles are ‘simply stored on the property.’ [3]
(d)He has no alternative available accommodation for himself and the children who he wishes to stay with him including overnights. His parents live in Suburb H which is a considerable distance from the Town G property. If he was required to find rental accommodation for himself (and the children) then he would not be able to continue to meet the mortgage and overdraft repayments.
(e)The Town G property is on an acreage with livestock that need to be managed. The wife describes it as a hobby farm with only 5 cows though the husband refers in his affidavit to a problem with wild dogs killing sheep on the property.[4] The wife refers to her profession as a public servant and says she is competent to manage the livestock and farm maintenance.
(f)The orders proposed by the wife which see the parties sharing the Town G property with her and the children living in the residence and the husband having access to the sheds in order to run the business, brings with it an increased risk that the parties will come into regular contact with each other and the children’s exposure to conflict in their home.
[3] Husband’s affidavit filed 23 February 2021 at [64]
[4] Husband’s affidavit filed 23 February 2021 at [44]
THE LAW
The power of the Court to grant an injunction relating to the use and occupancy of the former matrimonial home is found in section 114 (1)(f) of the Family Law Act 1975 (Cth) and such an order can be made if it is considered ‘proper’ to do so.
In Sieling v Sieling (1979) FLC 90-627 the Full Court said:
The power to grant injunctions is, of course, a discretionary power, not to be exercised lightly. The Court must balance the hardship to each party of granting or refusing an order, and frame its order in such a way as to impose no further restriction than is necessary to achieve the protection of the applicant’s interest. It will not lightly interfere with the rights of an owner of property on the basis of a vague or uncertain claim. There must be circumstances arising out of the marital relationship which make it necessary to restrain, temporarily, a spouse from using his or her property rights to the detriment of the other party.
In Davis & Davis (1976) FLC 90-062 (at 75309) the Full Court said that the relevant considerations include:
...the means and needs of the parties, the needs of the children, hardship to either party or to the children and, where relevant, conduct of one party which may justify the other party in leaving the home or in asking for the expulsion from the home of the first party.
Ryan FM (as her Honour was then known) in MG & JGG [2004] FMCAfam 300 at [18] summarises the matters relevant in considering an order for sole occupancy and went on to say:
Depending on the circumstances of the family, different factors will attract different weight. There is therefore no onus on an applicant for an order for exclusive occupation to demonstrate irrational or awful behaviour by the party who it is sought to exclude. The court will examine the entire families’ circumstances and determine, whether on the facts of the particular case an order is warranted. Essentially, the court must ensure that any order is proper and that in each case it delivers individual justice.
A Court should issue an injunction which gives the spouse exclusive occupation or exclusive use of the matrimonial home only with caution[5] particularly at an interim stage and pending resolution of competing claims in respect of that property.
[5] O’Dea & O’Dea (1980) FLC 90-896
The fact that the title to the former matrimonial home is in the husband’s name is of little or no weight (Ngyh J In the marriage of Harris (1980) 5 Fam LR 852).
MEANS AND NEEDS OF THE PARTIES
The wife says that her average, weekly income before expenses is $1,135 comprised of her salary and Centrelink benefits. She makes reference to working on a fulltime and part-time basis as a public servant since 2012. If she were working full-time her weekly salary would presumably be higher than disclosed, but she does not say how many days a week she works. The husband has yet to be assessed for child support and the wife says she has received no payments from him. She discloses savings of $350, a share portfolio valued at $30,500 and superannuation of around $50,000.
In her Financial Statement the wife deposes to weekly personal expenditure totalling $1,845 including board of $200, credit card repayments of $250 (though she discloses no credit card debt) and other unspecified expenditure of $1,195. She discloses a HECS debt of $13,261 and CGT liability of $3,000.
The wife and children currently reside with the maternal grandparents. She says that she and the two children are sharing one bedroom and the accommodation is ‘cramped’.
In his Financial Statement the husband discloses that the weekly income is nil though in his affidavit he says that since 21 January 2021 he has been drawing $1,000 per week from the business, as well as $100 per week to service the overdraft and $500 per week from the business cheque account to pay the mortgage. He deposes ‘these amounts are not received as income but are a return of capital to me’.[6] He discloses assets of $1,254,464 comprising the Town G property $1,200,000, savings of $900, a Motor Vehicle 1 $25,000 and a Motor Vehicle 2 $15,000, household contents of $5,000, ski boat $2,000, two motorcycles $2,000, trailer $500, tools $4,000 and superannuation of around $90,000.
[6] Husband’s affidavit filed 23 February 2021 at [87]
In his Financial Statement the husband deposes to weekly personal expenditure of $762 which includes mortgage payments of $500, rates of $62 and other unspecified expenditure of $100. He discloses a mortgage liability in respect of the Town G property of $505,671, overdraft of $18,762 and credit card debt of $4,000.
In the financial year ending June 2020 the husband’s taxable income was $12,426 and for the year ending June 2019 it was $4,578.[7]
[7] Exhibit E
In the financial year ending June 2020 the company suffered a net loss of $8,810 and in 2020 a net loss of $39,757. The company’s profit and loss statement for the period 1 July 2020 to 28 February 2021 shows a gross profit of $346,298.84, other income of $27,631.58 and operating expenses of $493,974.89 leaving a net loss of $120,044.47. The statement also indicates that the husband has the benefit of the business meeting numerous personal expenses including his motor vehicle expenses. The father says that he has identified a number of problems associated with the period the mother undertook the bookkeeping work for the business including underpayment or failure to pay superannuation payments. This may have consequences for the business and for the parties personally in their capacity as directors.
HARDSHIP OF THE PARTIES
Both parties say that they have relied on extended family members for financial assistance.
The husband says that the business expanded very rapidly and was financed with borrowings. With COVID 19 and heavy and persistent rain over the latter part of 2020 which saw a downturn in work, the business has struggled to service its debts. The negative cash flow was an enormous source of stress for this family and no doubt was a contributing factor to the marital breakdown. Following separation the husband says he became concerned that the business was insolvent, lacking the capacity to pay suppliers, employees and creditors.
Neither party behaved particularly well in the days following separation as they sought to restrict the other party’s access to bank accounts; they transferred monies from joint or business accounts into accounts solely operated by them and increased credit card or fuel card spending.
CONDUCT OF THE PARTIES
There are cross allegations of family violence. There are also charge matters before the Local Court involving the paternal grandfather and maternal step-grandfather. The wife in particular has made numerous and damning allegations regarding the husband’s behaviour alleging family violence, alcohol abuse and unaddressed mental health issues. The father denies.
On an interim basis, I am unable to make any findings on these disputed issues.
If the husband is correct and the wife returned to the Town G property on numerous occasions to remove items, sometimes with police sometimes without but often without notice, I view such actions as provocative. I note the wife’s evidence for example when she entered the property via the bathroom window on 5 February 2021.
The Court can conclude from the affidavit material that a sharing of the Town G property in the way suggested by the wife, would not in the best interests of the children for the following reasons:-
(a)The parties have little or no communication and little or no trust.
(b)The wife says she and her step-father were assaulted by the husband’s father who also drove at her mother at ‘high speed’. She says that the husband has said he will never be civil to her again.
(c)The children should not be exposed to conflict between the parties which is likely to occur if they both live or work at the property.
(d)The order sought by the wife in which she proposes that the father not ‘linger in or near the storage area’ in my view is fraught with difficulties particularly with respect to its enforcement. The word ‘linger’ may be thought to have a perjorative connotation.
NEEDS AND HARDSHIP OF THE CHILDREN
There are two children of the marriage: X born in 2017 aged 3 years and 3 months and Y born in 2019 aged 16 months. The parties have been separated for a very short period but the wife is currently refusing to permit the husband to spend any time with the children.
The wife says :
(a)The children do not have the space at her parent’s home that they enjoyed at the Town G property. She provides limited information about her current accommodation other than she and the children are using one bedroom. The husband says it is a three bedroom, two bathroom property on an acreage.
(b)That given the husband’s behaviour and the conflict in the home prior to separation it was unreasonable to expect the mother and children to continue residing in the home and where she felt unsafe.
The wife has not facilitated time between the husband and the children since 15 January 2021. They have been in the sole care of the mother and living with the maternal grandparents for well over a month. I cannot be satisfied that the children would be returning to a familiar and comforting environment given their ages and the level of conflict described by the wife prior to separation.
CONCLUSION
There is a dispute as to the circumstances in which the wife left the Town G property. The wife says the husband locked her out but subsequently sent her an email saying she and the children could return. The husband says the wife told him she was going to stay with her parents for a few days and returned to the property on several occasions to collect items for her and the children. This is not a matter that can be determined at an interim hearing where the evidence cannot be tested by cross-examination. There was an incident on 9 February 2021 involving the parties and their entourage. The husband provides no detail in his affidavit of what occurred on that date. The wife portrays herself and her step-father as the innocent victims of an unprovoked attack by the father and the paternal grandfather. According to the wife, the paternal grandfather was arrested and charged with two counts of common assault.
Whilst findings of fact cannot be made at an interim hearing as to the various allegations made against each other, it is clear that the parties and their family are in high conflict. This conflict requires the party living in the home to have exclusive occupation of the entire property so as to minimise further conflict.
I accept the wife would like to live independently of her parents and close to the school where she works and the children’s daycare. I find, however, she is not without resources. She has a share portfolio and a reliable income from her employment as a public servant. The wife has not established financial hardship, or demonstrated incapacity to fund a rental property if her application to remain in the home is unsuccessful.
I accept that the husband needs a base from which to operate his business and store his equipment and machinery. He says that the main customers of the business are based in the Town J area. He draws $1,000 per week from the business and other expenses which are applied to the mortgage and maintenance of the Town G property. The wife seeks orders that the husband or rather the business continue to meet the outgoings on the Town G property which would leave little money to pay for separate accommodation particularly accommodation large enough for the children to stay if his parenting application was successful. If he were to live with his parents it would involve not inconsiderable travel from his parent’s residence in Suburb H to the Town G property.
The Town G property is located on an acreage with some livestock. The wife says she is competent to manage the farm by reason of her professional qualifications. However, she provides no evidence of undertaking these activities during the relationship and which must have fallen to the husband since the wife left the property. It would in my view be very difficult for the wife to attend to maintenance issues for the farm, care for the livestock, care for two young children and continue her employment as a public servant.
Upon balancing all the necessary considerations in this matter, I have come to the conclusion that the wife’s application for exclusive occupancy of the Town G property should be dismissed.
DEALINGS WITH THE COMPANY BUSINESS
The parties agree that the Court has the power to grant the restraints sought by each of the parties and indeed they have, with the assistance of their legal representatives reached agreement on a broad range of issues.[8] Those that remain can be summarised as follows:
[8] For example in the course of submissions it was agreed that Mr E from F Partners be appointed to value the company.
(a)Whether the husband should be restrained from dealing with the assets of the company (save for the Mini-Excavator):
(i)without the written consent of the wife as sought by the wife; or
(ii)upon 28 days written notice as sought by the husband.
(b)Whether the wife should receive all information held by the company with any accountant or bookkeeper retained by the company as sought by the wife or whether such information should be provided at the wife’s expense as sought by the husband.
(c)Whether the fees of the single expert instructed to value the company should be:
(i)borne by the company and any shortfall by the husband, as sought by the wife; or
(ii)paid by the wife in the first instance as sought by the husband.
Turning firstly to the restraint sought by each of the parties with respect to dealings with company assets. I accept that in determining such an issue, I must consider whether there is a serious issue to be tried between the parties, assess the balance of convenience and determined whether the restraints are reasonably necessary.[9]
[9] G and T (2004) FLC 93-176
The husband continues to operate the business. The wife has raised concerns about the husband dealing with property without her consent and gives evidence in her affidavit about the husband advertising various items of machinery and equipment for sale. The husband says that when he became concerned about the viability of the business he listed the company assets for sale. Subsequently, he says his parents offered to provide some capital and he set up two further companies – one to hold the assets that his parents would own and one through which he would trade. Counsel for the husband says that the husband then changed solicitor and obtained appropriate legal advice and did not proceed with the asset transfer, understanding it may be perceived by the Court as an attempt to divest himself of the control of the assets.
The assets held by the company are of significance albeit that they are also subject to finance. The wife points to evidence which suggests that the husband has taken steps in relation to the available assets to dispose of and thereby endanger the wife’s application for property orders.
The husband submits that the purchase and sale of machinery and equipment is an integral part of the business and any restraint could interfere with these operations.
As I have previously observed, it is clear that there is very little trust left between the parties and until such time as the property settlement between the parties is finalised, it is important for the wife to be satisfied that her interest in the business is properly protected.
On balance, I am satisfied that it is appropriate to make the order sought by the wife. It will allow the wife to protect her interests and be kept informed about the business. The provision of 28 days’ notice does not prevent dealings occurring but would enable the wife to make application to the Court if appropriate.
Secondly, with respect to the wife’s access to information held by the company accountant or bookkeeper, the court notes that a director is entitled at common law to access the books and records of the company ‘as a necessary incident of the office of director, in order that they may properly perform their duties.’ [10] Section 290(1) of the Corporations Act 2001 (Cth) provides that directors have a right of access to the financial records of a company.
[10] Sharpe v Grobel [2017] NSWSC 1065 Brereton J at [21]
The wife may no longer be the company bookkeeper but she remains a director. I would have thought that the wife is entitled to the same access to information as that of the husband.
Thirdly, in respect to the fees of the single expert. There was no issue between the parties that it was necessary to appoint a single expert to value the company. The issue between them was how the single expert would to be paid.
The wife says they should be paid by the business while the husband says it should be paid by the wife as she has a share portfolio which can be liquidated and the monies applied to the single expert fees. The wife says that the business has sufficient cashflow to meet the costs. Based on the company’s financial records I cannot be confident that it is the case, though counsel for the husband said the fees were likely to be in the region of $3,000 to $6,000.
I note that rule 15.11 of the Federal Circuit Court Rules stipulates:
“Unless the Court otherwise directs, the parties are jointly liable to pay the reasonable remuneration and expenses of the court expert for preparing a report.”
I see no reason to depart from the general rule. It may be possible for the fees associated with obtaining the single expert report to be drawn down from the current mortgage over the Town G property, or perhaps from the overdraft facility with K Credit Union. In any event, the order that will be made will be for the parties to equally bear the costs.
PARENTING ISSUES
The husband seeks interim parenting orders for him to spend time with the two children each Sunday between 9am and 5pm and Facetime each Monday, Wednesday and Friday.
The wife opposes the making of any interim orders in circumstances where the husband has only raised the parenting issues in his response filed 23 February 2021, the day prior to the hearing. Her legal representative submits that it would be highly prejudicial to the wife if orders were made when she has had no opportunity to file in reply and place relevant material before the Court. In her affidavit material the wife has made allegations against the father in respect of family violence (including access to firearms), alcohol abuse and mental health problems. These allegations are raised in the context of the property proceedings.
In Allesch v Maunz (2000) 203 CLR 172 Kirby J said that:
35. It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice”. It is a rule of natural justice or “procedural fairness”…
36. … It is inherent in the proper conduct of judicial proceedings in a court of law.
Given the ages of the children, it is concerning that they have not spent any time with the father for over a month. This represents a significant period of time in their young lives. Certainly in situations of urgency the Court may, in the interests of a child and justice, proceed in an abridged fashion but I am not satisfied that this is such a matter.
The wife should have the opportunity to file in reply and she has taken a direction to file by 31 March 2021. Noting the age of the children and the cross-allegations I am of the view that the Court would be assisted by the parties being assessed by a Family Consultant in a section 11F Child Dispute Conference. The next available appointment is on 19 May 2021.
I will then list the matter for interim hearing in relation to parenting issues before the Senior Registrar on 9 June 2021.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Costigan. Dated: 2 March 2021
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