Cornish & Cornish (No. 2)
[2020] FamCA 1090
•14 December 2020
FAMILY COURT OF AUSTRALIA
Cornish & Cornish (No. 2) [2020] FamCA 1090
File number(s): MLC 12589 of 2019 Judgment of: BENNETT J Date of judgment: 14 December 2020 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – where parents have litigated extensively in this court and in the state court – where parties face difficult issues but must observe some proportionality – where is recommended that this matter be considered for the appointment of a judicial case manager
FAMILY LAW – INJUNCTIVE RELIEF – where wife is diagnosed with a serious cancer condition which is no longer in remission – where wife seeks an injunction to prevent the husband from seeking details of her medical condition and prognosis or discussing her shortened life expectancy with any person – where interim injunction granted subject to conditions including the wife authorising her treating oncologist to provide reports each three months as well as on any deterioration of the wife’s condition
FAMILY LAW – PARENTING – where the parties 10 year old daughter has not been informed of downturn in wife’s medical condition and the wife proposes to delay telling the child that she is not in remission until after Christmas where injunction is granted consistent with the wife’s position
FAMILY LAW – FINANCIAL – where husband seeks a variation to spousal support orders – where there is insufficient evidence upon which to be satisfied of a change in circumstances – where husband’s financial circumstances are unclear – where husband’s application refused but liberty granted for husband to apply at the final hearing for spousal maintenance paid the wife henceforth be retained by the wife for her own use and benefit.
FAMILY LAW – COSTS – where husband seeks costs allegedly thrown away by virtue of the wife seeking an urgent sale of real – where court not satisfied that it is proper to make an order
Legislation: Family Law Act 1975 (Cth) Number of paragraphs: 119 Date of hearing: 14 December 2020 Place: Melbourne Counsel for the Applicant: In person Counsel for the Respondent: Mr Salamanca Solicitor for the Respondent: Taussig Cherrie Fildes ORDERS
MLC12589 of 2019 BETWEEN: MR CORNISH
Applicant
AND: MS CORNISH
Respondent
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
14 DECEMBER 2020
THE COURT ORDERS THAT:
Amended Pursuant to Rule 17.02 of the Family Law Rules 2004 – 21 January 2021 (Paragraph 14 of the Order is deleted)1.The husband, by himself, his servants or agents be and is hereby restrained by injunction from:
(a)Discussing with, or disseminating to, any person (including the parties’ child, Z born … 2009 (“Z”)) any information or document in relation to the wife’s health and cancer treatment, save for:
(i)his own legal representative;
(ii)the child’s treating psychologist, Mr H;
(iii)the mediator of the financial aspects of this case;
(iv)the coordinator of any post-separation parenting course undertaken by the husband.
(b)causing subpoenas to be issued to any of the wife’s treating medical practitioners or in relation to the wife’s medical records, diagnosis, prognosis or treatment without first obtaining the leave of a judge of the Family Court of Australia to do so.
2.The wife inform the husband promptly of her having informed Z of her further diagnosis and do so by the Talking Parents app.
3.The wife authorise and direct, and does hereby authorise and direct, her treating oncologist to provide a report at intervals not exceeding every three months and/or upon any sudden deterioration in the wife’s health, such reports to address the wife’s prognosis and treatment in respect to her medical condition.
4.Pursuant to section 68L(2) of the Family Law Act 1975 the interests of the child Z born … 2009 (“the child”) be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such representation and the independent children’s lawyer be appointed in sufficient time to be able to make recommendations about what interim parenting orders would be in the best interest of the child by the next return date and in the meantime to introduce herself/himself to the child’s psychologist, counsellor and the mother’s oncologist.
5.Forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.
6.Within 48 hours of notification of such appointment the solicitor’s for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.
7.The parties be and are hereby restrained from making any complaint to a professional body or association concerning the conduct of any single expert engaged for the purpose of this proceeding, or permitting any other person to do so, without first obtaining leave of the Court. This injunction will remain in full force and effect following completion of the proceedings unless specifically referred to in final orders and specifically discharged.
8.The husband’s oral application for the appointment of a single expert to report on the wife’s medical condition be and is hereby dismissed.
9.The order appointing the single expert valuer be dismissed.
10.The husband’s application for a discharge of the spousal maintenance and other expenses order be dismissed.
11.Pursuant to Rule 15.52 of the Family Law Rules 2004, the wife have leave to file evidence from an appropriately qualified person as to the value of the parties’ interests in B Company (and any associated entity, including but not limited to the J Trust) as at 30 June 2020.
12.There be liberty to the husband to seek at the final hearing for alteration of property interests that spousal maintenance paid by him to the wife and additional payments made by him to the wife on account of the wife and the child henceforth pursuant to paragraph 6 of the order made on 14 January 2020 be characterised as part payment of property settlement.
13.That there be liberty to the wife to issue a subpoena to K Accountants to produce documents.
14.Deleted.
15.The parties do all acts and things necessary to postpone the mediation on financial issues to be convened by the Honourable Peter Young AM QC from January 2021 until after the legal and equitable interest of the parties in property has been agreed or all evidence has been filed in that respect.
16.I reserve the costs of an incidental to this day.
17.My reasons for decision be transcribed and, subject to refinement or expansion by me and editing, be published to the parties in due course.
18.Any party who is represented by lawyers is at liberty to issue an unlimited number of subpoenas to produce documents.
19.My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.
IT IS DIRECTED THAT:
20.The Trust Deed of the L Trust be marked Exhibit “W1” and remain on the Court file.
21.The tax invoice from M Pty Ltd to Mr Cornish dated 17 February 2020 be marked Exhibit “W2” and remain on the court file.
22.The email from Mr N of M Pty Ltd dated 1 July 2020 at 5.19 pm and attached Terms of Call Option Issue documents be marked Exhibit “W3” and remain on the Court file.
23.The B Company Profit & Loss Statement from 1 July 2019 to 30 June 2020 be marked Exhibit “W4” and remain on the Court file.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cornish & Cornish has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
EX TEMPORE (SETTLED FROM TRANSCRIPT)BENNETT J
This matter comes before me in the judicial duty list on the husband’s amended application in a case filed on 14 December 2020 in which he seeks a raft of orders about financial matters. The wife has filed a response to the first iteration of the husband’s interim application in which she sought various other orders of a financial nature. Today, she also makes an urgent oral application for injunctive relief in relation to the husband’s access to and discussions about her medical condition. The wife was diagnosed with cancer some time ago and was treated and was considered to be in remission until last week when she received a further diagnosis indicating she is no longer in remission.
The wife seeks leave to proceed with her urgent oral application partially on the premise that, had the husband been duly served, he would have had an opportunity to frustrate the relief she seeks. A consequence of the wife’s practitioners proceeding as they have with an urgent application has been to focus the limited time available to the parties in the judicial duty list on matters which are important to the wife and, as far as she is concerned, highlight behaviour by the husband which the wife regards as hurtful and casts him in a poor light. In support of the urgent oral application, the wife filed an affidavit which the husband was provided with only this morning. The wife deposes to what she considers to be the husband’s objectionable behaviour in relation to her illness.
The parties have been very litigious since the proceedings were issued on 7 November 2019. There have been eleven court hearings or appearances and nearly as many applications. Access to justice is essential to the rule of law. However, litigation should also be proportionate to matters in issue, the resources of the parties and an equitable allocation of judicial time between all cases with which the court has to deal. I suspect that the frequency of litigation has, at least in part, occurred because the husband is self-represented with the result that there is no costs disincentive in play nor a practitioner to bring a sense of proportionality to bear on the resolution of issues which arise between the parties or to pursue a negotiated outcome. For the wife’s part, her health and prognosis impel her practitioners to act promptly. At the conclusion of these reasons I will describe the history of the litigation in support of my suggestion to the Case Management Judge, Justice Hartnett, and as notice to the next judge to whom this matter is already listed, Justice Williams, that this case should be assessed for allocation to a judge for case management. The parties face a challenging time ahead having regard to the various implications of the wife’s illness on the determination or resolution of parenting and financial matters. A greater sense of proportionality must be introduced to these proceedings or else the parties, perhaps the wife more so than the self-representing husband, will incur legal costs in a sum greater than any benefit to be gained by succeeding with whatever applications he or she prosecutes or defends. Filing another interim application should not be the first recourse when the parties differ over an issue. In short, the parties cannot continue to come to Court on a monthly basis.
These reasons are given orally and ex tempore. When I settle them, I may expand the reasons. I will not expand the rationale behind the reasons. The expansion may take the form of quotes from the affidavit evidence or from argument which time does not permit me to recite in the presence of the parties.
FAMILY
The husband and the wife married on … 2003 and separated on 15 October 2019.
The parties have one child, Z born … 2009.
The husband will turn 47 years old having been born on … 1973. He is a consultant by occupation.
The wife is 47 years old having been born on … 1973. She is a finance professional by occupation. She was diagnosed with cancer in April 2018 and has had surgery and chemotherapy twice. In January 2020, a PET/CT scan confirmed that the wife’s condition was in ‘complete remission’. This was reported to the husband in a report dated 20 April 2020 from the wife’s treating Oncologist, Professor O. On 19 October 2020, a further report was sent to the husband’s lawyers confirming no change in the wife’s condition and that:
[the wife] continues to do very well on Olaparib treatment with her last PET/CT in mid-August of this year showing an ongoing complete response to therapy with no evidence of active malignancy.
I note that Ms Cornish is experiencing quite a lot of stress and anxiety related to the ongoing family court matters, including her ex husband’s repeated requests for details about her medical condition. It would be great if this could all be sorted out as soon as possible.
At [13] to [16] of the wife’s affidavit filed today, she deposes:
13. On 8 December 2020 I received the results of my routine PET/CT scan. The scan revealed that the cancer had returned and is in my …. I have no symptoms and I am not feeling unwell.
14. I commence chemotherapy on Tuesday 15 December 2020 and my treatment plan is to continue the chemotherapy until approximately May 2021 with six cycles of treatment.
15. I will be attending for day appointments only and it is not anticipated that I will have to stay overnight.
16. I will not be able to be engaged in employment during my chemotherapy, in particular in light of the COVID-19 pandemic. In Professor O’s report dated 20 April 2020, she reported that because of my prior treatment history and cancer diagnosis I am at significant risk of developing severe complications from COVID-19.
APPLICATIONS
The matters requiring determination today and to which these reasons are directed, in order, are:
(1)The wife’s urgent injunction application supported by her affidavit filed 14 December 2020;
(2)The husband’s application in a case filed 16 November 2020;
(3)The wife’s application in the form of her response to an application in a case filed 10 December 2020;
(4)The husband’s application to discharge the maintenance provision made, by consent, at the case assessment conference in January 2020.
EVIDENCE
Both the husband and the wife have prepared extensive affidavit material for today in accordance with the joint practice direction to JPD2 of 2020. That Practice Direction enables them to file the text of evidence upon which they will rely on the basis that they will swear up to the truth of the text at the earliest opportunity. Both have sworn up to the various affidavits to which I have been taken today. On behalf of the wife, that is the affidavit of 7 October 2020, 10 December, the affidavit of 11 December 2020. On the husband’s part, that is his affidavit sealed on 16 November 2020 (folio 94) and his affidavit of 13 December 2020. Additionally, each has a case outline document both filed on 14 December 2020.
I have read the evidence. No one sought to cross examine. The parties agreed that they would proceed by way of submissions only. The parenting aspects of this proceeding are covered by the less adversarial trial provisions in Division 12A of Part VII of the Family Law Act 1975 (Cth) (“the Act”). I required evidence from the wife’s treating oncologist which was duly taken by electronic means.
The rules of evidence apply to any determination of financial issues. In due course, the parties should consider whether application should be made under s 67ZT of the Act or, conversely, whether they consent to the provisions of Division 12A applying to the financial proceedings.
INJUNCTIONS ABOUT THE WIFE’S HEALTH
The orders sought by the wife is set out at annexure “R-1” of her affidavit prepared 11 December 2020. There have been various amendments and additions to that application, but, essentially, she seeks that the husband be restrained by himself, his servants or agents from discussing or disseminating to any person information or documents in relation to her health and cancer treatment, save for his own legal representatives. Relevantly, Z does not know that the wife’s condition is no longer in remission and the injunction sought by the wife would preclude the husband from being able to discuss the wife’s health with Z even if she initiated a conversation in that regard.
The wife also sought that the husband be prevented from causing subpoenas to issue directed to the production of information concerning the wife’s health or from her treating medical practitioners without first obtaining leave of a judge of this Court to do so. Sensibly, the wife conceded certain exceptions being a provision authorising and directing the wife’s treating oncologist to provide regular reports at specified intervals and upon any sudden deterioration and a provision that the wife inform the husband promptly of her having informed the parties only child, Z (10 years) of the wife’s further adverse diagnosis. The husband opposes each and every order sought by the wife in that respect.
The husband did not seek an opportunity to respond to the wife’s affidavit of today. He admits the statements attributed to him vis a vis seeking to be informed of matter relevant to the wife’s state of health and prognosis.
I have granted permission to the wife to proceed with her application for injunctive relief and will deal with it as the first dispute to be determined, at least on an interim basis.
Sub-section 68B(1) of the Act provides, inter alia, that the Court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including an injunction for the personal protection of the child, a parent of the child. Sub-section 68B(2) of the Act provides that the Court may otherwise grant an injunction in relation to a child in any case in which it appears to the Court to be just and convenient to do so.
The evidence relied upon by the wife in her affidavit made today was the first notice the husband had of the apparent deterioration in the wife’s health, that she is no longer in remission.
A number of the matters that I am dealing with today are echoes of the matters that were earlier before her Honour Justice Williams. For instance, her Honour dealt with the husband’s application in October for direct access to the wife’s medical records, including access through her health insurer. Of this, her Honour said as follows:[1]
55.Most unfortunately the wife has been diagnosed with cancer although she is now in remission.
56.The husband submitted that he should be able to join the wife’s G health fund to enable him to obtain information about the wife’s treatment and current health requirements. He submitted this information was required to enable him to monitors the wife’s health status and future life expectancy, in circumstances where she had the care of their daughter and when he had not been provided with any current information about her health, other than a letter from her treating oncologist stating that she was in remission.
57.Understandably, that application was vehemently opposed by the wife on the basis that it was an invasion of her privacy and that the husband’s ulterior motive was to undermine her recovery and mental health. Senior Counsel for the wife acknowledged that the wife’s health was relevant to the financial dispute between the parties but the degree to which the husband sought information was not. The parenting orders were made by the Senior Registrar in the context of the wife’s current health status.
[1] Cornish & Cornish [2020] FamCA 962.
The mother sets out in her affidavit a number of examples of what she says is oppressive, insensitive, hurtful conduct by the father in relation to information concerning her health. She says [17]:
Mr Cornish has persistently been abusive towards me in relation to my health, even when I was in remission.
The affidavit bears reading in its entirety and includes references at paragraph 18.1 to the husband saying such things as:
Of course, you want a legacy/all humans do. But you can’t chase it at the eleventh hour. It’s something to think about through life, not at the last minute.
And at paragraph 18.2, the husband allegedly stated on 8 February 2020:
You chose to make the ending terrible for everyone.
The wife clearly interprets the “ending” as her death. The wife takes umbrage at the husband’s references to her reduced life expectancy.
The wife recites that on 29 April 2020 the husband’s then lawyers wrote, amongst other things, about matters to be raised by him with the wife’s oncologist:
On 28 June 2019, Ms Cornish’s treatment was described as ‘non-curative of palliative’ [sic]. Is Ms Cornish’s cancer ultimately terminal? If yes, within what timeframe is this outcome likely?
The wife deposes that on 28 September 2020 the husband wrote to the Honourable Mr Peter Young AM QC who has been retained as a mediator for the parties in the financial litigation:
A Google search shows that the five year survival rates for stage 3C cancer is 23 per cent. In other words, Ms Cornish has a 77 per cent chance of not being alive in April 2023 (two years, six months from today)
A similar letter was also sent to the wife’s lawyers from whence it most likely came to the direct attention of the wife.
What the husband is alleged to have said and done could, on one view, be characterised as pragmatic having regard to the pending financial and parenting proceedings. His enquiries are not irrelevant. However, that is not how the wife appreciates them. She experiences the husband’s communications about her health as making her feel and appear vulnerable and increasing her feelings about the impermanence of life.
When the husband seeks to raise matters of some relevance to the future care of Z, the wife’s mental and emotional orientation and the wife’s ongoing financial needs within the context of s 75(2) of the Act, the wife interprets this as nastiness and vindictive, as displaying callous disregard for her and disregard for the emotional wellbeing of Z who resides primarily in her care. I am satisfied that the wife interprets the husband’s conversations as reflecting a certain amount of triumphant satisfaction in regard to her plight.
I accept that the wife’s perspective is genuine. Having regard to all of the circumstances of the case, I do not ascribe mala fides to the husband but I am satisfied that the wife’s interpretation of his behaviour is not unreasonable.
I heard briefly from the wife’s oncologist, Dr O, who gave evidence electronically. Dr O observed the wife to be stressed and upset about the inquiries of the husband in relation to the wife’s health status. Furthermore, that stress, anxiety and upset is deleterious to the wife’s medical condition.
The wife deposes [38] that:
I understand that Mr Cornish needs to be kept updated in relation to my health for the purposes of these proceedings, however, I find it distressing that I cannot discuss my health in a private and safe space with my treaters in fear that Mr Cornish will subpoena their records. As I start my chemotherapy I want to focus on my wellbeing.
Dr O was unable to say specifically whether the husband having access to her clinical notes would be likely to render the wife being less frank or to disincentivise the wife from divulging matters to medical professionals such as herself. I respect Dr O’s reticence to second guess how the wife will react. I am, however, satisfied that there could be some reticence on the wife’s part to be entirely frank with medical professionals if she understood that her doctors’ comprehensive records, clinical notes and her test results were available to the husband to study, ruminate upon and interpret or have interpreted for him.
I am satisfied that matters which impact negatively on the wife are likely to impact indirectly and negatively on Z. I am particularly concerned that from Z’s perspective this festive season not be dominated by the news of the deterioration in the wife’s health.
In the affidavit filed today, the wife depsoes [40] that:
My daughter Z is aware of my previous diagnosis of cancer, however, in the circumstances where there are only a few weeks until Christmas, I want to tell Z after Christmas.
I am satisfied the wife’s desire not to tell Z until after Christmas should be respected and, to do otherwise, would be inconsistent with Z’s best interests.
It is common ground that, if I make the injunction sought by the wife, it is appropriate that the wife be required to authorise regular reports by Dr O. The husband sought monthly. Mr Salamanca, counsel for the wife, submitted that once every three months was sufficient however, both with a rider that the reports be also upon any sudden deterioration in the mother’s condition. Dr O unambiguous view was that reporting each three months was satisfactory together with a report of any sudden deterioration. The husband pressed Dr O as to why three monthly reports were adequate when he understood that the wife undergoes monthly scans. Dr O said that scans were not taken monthly. She was not specific about what scans, but she was specific when she said three monthly was sufficient to report. I note that there has previously been a history of Dr O providing reports.
The husband’s basis for opposing the relief sought by the wife included that he considers it necessary to speak to various persons about the wife’s physical health from the perspective of his mental health and the child’s mental health in preparing for the worst result being the wife’s demise.
The husband also wants to be able to speak about the wife’s health and her reduced life expectancy with the following persons:
(a)The counsellor at Z’s school, Q School;
(b)Dr P, the school psychologist;
(c)Mr H, a private child psychologist upon whom Z has just commenced to attend;
(d)Dr R, private family report writer;
(e)Dr S who Z is seeing for sleep disturbances;
(f)The Magistrate who presides over the breach of intervention order proceedings at a forthcoming hearing in April 2021.
The wife has no objection to the father being able to talk to Mr H who is Z’s psychologist. The wife does not see the need for the husband to talk to Dr P (school psychologist) about her health because Dr P recommended that Z attend a private psychologist and the parents have implemented that recommendation. Similarly, the wife does not accept that her health should be a matter discussed between the father and the school counsellor. I accept that the wife’s objections to Dr P and the school counsellor are well founded and I will not accede to the husband’s position.
Dr R has not been commissioned to do a further report in this matter and whilst she may be in the future, she has no current role now. I accept that there is no imperative for the husband to undertake discussions with Dr R.
The wife has instructed her counsel that Z is not a protected person under the intervention orders sought by the husband against his brother-in-law. Although, as recently as the 24 November 2020, the husband has sought to have Z included as a protected person but failed in that endeavour.
Accordingly, the wife seeks that the persons to whom the husband can discuss her medical condition would be restricted to the child psychologist, his own psychologist or a psychologist who he consults in some capacity but doesn't see any need for it to go further.
I am satisfied that at this stage of the proceedings and with her recent diagnosis, the wife ought to be protected from intrusive investigations which are more than or in excess of what is reasonable. Z’s best interests are the paramount consideration in parenting orders but not the only consideration. I take into account the wife’s need for privacy and breathing space at this difficult time. At this stage, I do not perceive there to be any tension between the wife’s position and Z’s best interests although I acknowledge that there may come a time in the future when the wife’s interest are not consistent with Z’s best interests.
The wife and those who advise her are cognisant of the wife’s responsibility for full and frank disclosure. It goes without saying that that is just not full and frank disclosure about financial matters but about personal matters, such as health and wellbeing.
It is sufficient if reports are provided by the wife’s treating oncologist to the father at regular intervals which are not more frequent than every three months and upon any sudden decline in the wife’s condition. It is not necessary at this stage that subpoenas issue for production of clinicians’ notes or test results or interpretations.
I take seriously the fact that the husband is able to access a psychologist for himself to guide him with his conduct going forward. It is a difficult time for everyone and I don't underestimate the difficulty for the father. Those who are close by relationship history or by living circumstances to people with a grave and potentially fatal illness can often be the forgotten ones, but often suffer very significantly.
The father started his submissions by saying “it’s all about the child” and that he wants to be able to parent Z and parent better. However, that does not require the father to discuss the wife’s health with all the people he seeks. The need to protect the stability and equilibrium of the mother’s household for Z has priority over the father’s concerns and desire for information at this stage. Z should be protected from disruption at this time.
Hopefully the psychological support which the father says he will obtain for himself will assist him to build empathy. It is probably in an empathetic capacity that he will be able to best serve the needs of his daughter in coming days and years. The father will be a better parent to Z if he can consolidate the quality (not necessarily the quantity) of his relationship with her now and exercise forbearance.
I am satisfied that it is appropriate within the meaning of s 68B(1) to restrain the father more or less in the terms sought by the mother with the qualifications discussed. It is also just and convenient within the meaning of s 68B(2) of the Act.
SINGLE EXPERT WITNESS TO COLLATE INFORMATION ABOUT THE WIFE’S HEALTH
The husband sought that the Court appoint a single expert witness whose function he said would be to sift through all of the primary source material in relation to the wife’s illness for the purpose of providing evidence to the Court. Essentially, a buffer between him and the wife’s clinicians. That is, with respect, a misconceived use of a single expert witness. For a start, single expert witnesses do not have standing to require production of material on subpoena, they do not have inquisitorial powers. They can merely request material be provided. The appointment of an appropriately qualified person (expert) to express opinions on relevant matters does not relieve the parties from verifying the accuracy of the underlying facts on which the expert is to express the opinion. It is reasonable to assume that the husband will continue to press for comprehensive information to be provided, albeit perhaps to the expert rather than to him, but he would be entitled to inspect all such material in the context of testing the single expert’s opinion.
I will not accede to the husband’s application. This determination does not preclude the parties from retaining on a single expert witness in relation to the wife’s prognosis down the track but it is premature to do so now.
INDEPENDENT CHILDREN’S LAWYER
I acknowledge that there has to be some kind of a buffer between the husband and the wife. It is appropriate for me to request an Independent Children's Lawyer and I will proceed to do so. Hopefully, they can coordinate any extra things that need to be done from the point of view of the child.
An Independent Children's Lawyer may be able to broker agreement around a process of family therapy or counselling which, in the right hands would be hugely beneficial for Z. The parties can choose the therapist but, for what it may be worth, I have in mind someone of the skill set and familiarity with court proceedings of Ms T, former Family Consultant in this Registry and now in private practice.
For Z’s benefit, the parents and the wife’s family need to find a way to meet her needs in the midst of dealing with what is for some of them potential loss of enormous magnitude and life-long grief. Of course, the husband, wife and the wife’s family will all act in the genuine belief that he/she/they want what is right for Z and out of a sense of duty to protect Z. However, their judgment is likely to be clouded. Self-justification, by which I mean arguments to justify one’s actions, is plentiful in this case which requires the adults to exercise discretion and restraint in their dealings with one another. How the adults treat each other now, and in the future, could leave lasting scars and entrenched resentment which may preclude them even being able to act cooperatively to secure the best future and most emotionally safe environment for Z. Grievances will be amplified rather than ameliorated with the passage of time. If worst comes to worst, the outcome will be binary. Ultimately, Z will be in one camp or the other. She will be deprived of the benefits that the influence and involvement of all adults in her life could provide. Moreover, the process will be lonely and emotionally damaging for Z in the short, medium and long term and, if it comes to pass, be too much for her to reasonably bear in addition to the loss of her mother.
It is my sincere hope that the Independent Children's Lawyer will give consideration to identifying a practitioner to give the family the high quality bespoke assistance they require and that the adults will genuinely cooperate with that process. They are probably not ready to engage with a practitioner immediately. The wife’s health issues are too dynamic. However, I predict that Z’s future will be compromised if the adults are simply left to their own devices. They are likely to descend into behaviour which will make it impossible for them to subsequently respect, let alone permit, the positive input that the other adult(s) can have in Z’s life. Litigation in this Court or in the state courts may be productive at some levels, it will certainly be distracting. However, litigation is orientated to outcomes and it will not, of itself, provide the emotional scaffolding that the adults and Z require to have in reserve and be able to call upon when necessary.
IMPLEMENTATION OF ORDERS FOR SALE OF REAL PROPERTIES
The husband applies for an order that a Registrar of the Court be empowered to execute all documents in the name of the wife and the wife’s brother “to do all acts and things to give validity and operation to the deeds and/or instruments which will affect the sale of properties as per order 6 of the 22 July 2020 orders”.
Paragraph 6 of the Order made on 22 July 2020 deals with what I understand to be three of the five real properties relevant to these proceedings. It provides for the real properties described below to be sold.
2 U Street V Town is vacant land. It is owned as to one half by a trust, E Pty Ltd, as trustee for the E Trust, which is a vehicle of the husband and the wife, as to 50 per cent, and as to the other 50 per cent, by the wife’s brother Mr W. The land was valued by the single expert witness from X Valuers, on 22 March 2020, at $1.135 million. It has been marketed for sale by an agent Y Pty Ltd of Suburb AA (“Mr Y”), who estimates that the land is saleable at around $800,000 which is significantly less than the evidence of the single expert witness. The Auction is scheduled for … December 2020.
The Orders of 22 July 2020 provides that the reserve price at which the property at 2 U Street, V Town be offered is to be the valuation provided by the single expert witness, that is $1,135,000. I anticipated that the husband’s application would be for an alteration to the reserve price. However, the husband has not spoken to the selling agent and informed me that, absent firsthand information to the contrary, he considers the value of property is in line with the valuation provided single expert witness. In any event, both parties are content for the auction of 2 U Street, V Town to proceed on … December 2020, I suspect, for strategic reasons rather than out of any realistic hope of selling the property and regardless of the expense associated with the auction.
There are two further property which are contiguous and so I will deal with them together. It is the property at BB Street V Town, which is a property on which there stands an eight bedroom house dwelling and a church. The adjoining property is 4 U Street V Town, which is vacant land. The property at BB Street V Town was valued by a single expert witness from X Valuers on 26 March 2020 at $1.34 million and the property at 4 U Street V Town was valued on the same date at $1.36 million; a total of $2.8 million. The properties are owned by E Pty Ltd as trustee for the E Trust which is a vehicle of the husband and wife.
The wife’s affidavit states that the selling agent, Mr Y, has informed her that, realistically, the sale of these two properties together would fetch $1.55 million to $1.7 million; very much less than the expert’s valuation of $2.8 million.
The husband seeks to take over the sale of these properties on behalf of himself and the wife. The wife seeks that the order for sale be suspended. It is submitted by Mr Salamanca on behalf of the wife that the relief sought by the husband is in the nature of an appeal from the Order made on 22 July 2020. The husband submits that the wife is in contravention of the orders which required a sale without delay. It was a sale originally sought by the wife. However, the wife does not want the sale to proceed at this time because, if the value of the property is more in line with what she says the selling agent says, she may seek to retain one or both of the properties as part of her entitlement on a final alteration of property interests. She does not know. At the moment her application for final property relief is not specified.
The wife contends that the properties not be offered for a reserve which is less than the valuation by X Valuers until it is realistic that they could fetch such a price. That is a novel approach. My preliminary view is that, if the properties have been valued at $2.8 million but will only fetch $1.6 million at auction, it is not the sale price that is wrong, it is the valuation that is flawed.
Interestingly, the wife does not seek a revaluation or does not seek another selling agent. Something ought to be done. The parties need to formulate their respective cases rather than returning to court on a half-baked basis and essentially using the Judicial Duty List as a forum for negotiation.
The husband in his material in support pleads for an urgent sale of the properties at BB Street, V Town and 4 U Street, V Town and seeks a sale before the end of 2020. He has left his run too late for an auction between now and Christmas and today recognises that the property will need to be marketed in 2021.
The reason that the husband presses for a sale as soon as possible includes the encumbrance affecting the property which is a $1 million mortgage owing to NAB in respect of which the parties are charged, approximately, $5500 per month on an interest only basis.
The parties were provided with some payment reliefs party of COVID-19 measures, but is now ticking over. Interestingly, neither party seeks to reduce the reserve price for sale or to obtain any re-valuation. The wife says that she may well be able to retain one of the two properties, that would be either BB Street or 4 U Street, V Town, but she also says that they would be worth more if sold together because the dwelling, principally, on BB Street, V Town, also straddles part of 4 U Street, V Town.
My impression is that the wife abandons her application to suspend the order for sale of BB Street, V Town, and 4 U Street, V Town, providing that the properties are not disposed of in a fire sale manner. Practically speaking, that would seem to be a sale by auction in February of 2021. Mr Salamanca invited me to put this particular matter over for consideration by Williams J on 22 January 2021. I will not do that expressly because it is not appropriate that I load up her Honour’s list without consultation with her. Her Honour might have insufficient time to deal with it; however, the parties are aware of the listing and if one of them, at least, gets his or her case into order, it may be that they can advance the position for which he or she contends at that time. Any application and admissible evidence would have to be served on the other party in sufficient time that it can be answered.
Neither party presses the relief they seek providing that I do not acceded to what the other party wants. So I will not make orders empowering the husband to sign any deeds or instruments in the place of the wife or her brother. I am also not suspending the order for sale of the properties.
LITIGATION FUNDING
In the first iteration of the husband’s application in a case, he sought an extra litigation funding order to be satisfied out of the proceeds of sale of three real properties referred to above. He now abandons that application, for an extra litigation funding order, and seeks only the $50,000 which is already provided for in the Order of 22 July 2020, as and when the proceeds of sale of the property are available.
The wife seeks that she be permitted to do all such acts and things necessary and sign all documents to withdraw moneys from an ANZ account to be paid to her lawyers as provided for Order made on 22 July 2020. The husband says this is not contentious that the sum of $68,500 is available to be paid to Taussig Cherrie Fildes and will be paid. There is no apparent reason that it has not been paid to date although the husband says, obliquely, that this is not a matter within his power and control. I will give the husband until close of business tomorrow to facilitate that payment.
Unless the payment is made by close of business on Thursday, 17 December 2020, I hereby authorise a registrar of the Court to sign any such documents as they are necessary to effect the transfer and do so in the place of the husband. The husband has acknowledged that this for him is “no problem”. However, having regard to the amount of work in the Court, it would be preferable if the husband could attend to it without the wife having to have recourse to a Registrar.
COSTS
The husband seeks an order for indemnity costs in the sum of $60,978.16, which he argues were costs incurred by him to oppose orders sought by the wife on 22 July 2020. It is the husband’s case that the wife moved for an immediate sale of the properties and now she was seeking to renege. The husband contends that he wasted $60,978.16 in legal costs and that the wife should reimburse him for that amount.
The primary position is that each party bears his or her own costs unless I am satisfied that there are circumstances which justify a costs order being made. I am not satisfied, at this point in time that a costs order ought to be made. His application is, amongst other things, is premature. The husband may seek costs, including these costs, at the final hearing of the proceedings for final alteration of property interests as between himself and the wife. I do not say that he is assured of success by any means, but it is inappropriate for me to make that order today so I will not do so.
SPOUSAL MAINTENANCE
The husband seeks to set aside paragraph 6 of the Order made on 14 January 2020 on the basis that he is no longer in a financial position to pay spousal maintenance or additional payments, other than those assessed in the ordinary course formulaically via the child support agency.
Relevantly, the Order made on 14 January 2020 provided that:
6. Until further order, the Respondent Husband continue to pay the Applicant Wife the sum of three thousand dollars ($3,000) per month and all of the expenses he currently pays on behalf of the Applicant Wife and the child Z.
Section 83 of the Act provides, inter alia, that a spousal maintenance order may be varied or discharged if there is just cause for doing so.
It appears that the husband did not have financial material before the Court at the time the order was made. In a financial statement sworn by him on 16 March 2020 and filed two days later, the husband put his average weekly income at $3125 and his personal total expenditure at $5647. Accordingly, even on his own material filed two months after the order was made, he could not have had sufficient resources to pay the order made in January, 2020. That goes to the accuracy of the husband’s evidence and is not a sound basis upon which to ask the Court to assess a change in circumstances.
As a general proposition, the wife does not accept the husband’s representations in relation to his financial circumstances. She points, in particular, to conduct of the husband in relation to the valuation of his business. For instance, at paragraph 13 of the wife’s affidavit prepared on 10 December 2020, the wife draws attention to the husband having emailed his accountant about a valuation of the family business stating “is there an accountant or someone you know who will confirm this has negative value?” This is in the context of the appointment of a single expert valuer.
Likewise, the wife does not now accept that the husband has ceased to operate the family business, or that his sole source of income is as he deposes the wage in the sum of approximately $75,000 per annum plus superannuation. In the wife’s affidavit sworn on 3 July 2020, she put an issue that the husband had resurrected or replaced business interests with another entity. She said at paragraphs 109 to 112 as follows:-
109. On 24 June 2020 I discovered that on 14 February 2020 companies CC Pty Ltd (“CC Pty Ltd”) and DD Pty Ltd (“DD Pty Ltd”) were registered. Mr E Cornish is the sole director of both companies.
110. DD Pty Ltd is the sole shareholder of CC Pty Ltd. Mr E Cornish is the sole shareholder of CC Pty Ltd.
111. According to the FF Company website, CC Pty Ltd holds 3,613,365 shares in the company. Shown to me now, annexed hereto and marked “R-16” is a copy of the FF Company Website page.
112. During our relationship and prior to us establishing B Company, Mr Cornish discussed with me naming the business CC Pty Ltd, however I did not like the name as I thought it sounded like a petrol station name.
The husband responded to that at page 19 of his affidavit filed on 16 July 2020, at paragraph 42 in saying:
Mr E Cornish is the sole shareholder and director of those companies. Subject to the limitation of the Corporations Act (that is insofar as they relate to insider trading, etcetera), Mr E Cornish is free to buy and sell securities as he sees fit, and I understand that he has been buying more GG Company shares. However, Mr E Cornish’s finances are his own business and hold no relevance to these proceedings.
It is put by Mr Salamanca that documents produced in compliance with subpoena issued at the behest of the wife show that an entity DD Pty Ltd was established in February 2020. It is the trustee of the L Trust. The wife’s case is that the “L Trust” is named after and a reference to Mr Cornish and Z. The specified beneficiaries of the trust are Mr Cornish (the husband) and Z. There are no additional beneficiaries. The “additional excluded persons” are the wife, Ms Cornish. The mention of Mr E Cornish is as appointor, and the successor to the appointor is the legal personal representative of Mr E Cornish. So, whereas Mr E Cornish may control who is the trustee of the trust, the wife’s case is that it appears for all purposes that the trust was established for the benefit of the husband and their daughter to the exclusion of herself.
Further documents produced on subpoena from M Pty Ltd (which is an accounting firm) record a meeting with the husband on 17 February 2020. The account of fees services, charges and disbursements owing to M Pty Ltd is addressed to the husband and his name appears directly above DD Pty Ltd.
The next set of documents produced in compliance with subpoena are those also from M Pty Ltd which indicate that Mr N of M Pty Ltd was making enquiries that the husband, relevant to DD Pty Ltd.
The documents referred to above will be marked exhibit – exhibits “W1” to “W3” respectively. The wife’s case is generally and in opposing the husband’s application to vary spousal maintenance is that the liquidation of the family business by the husband is phoenix activity designed to conceal assets from the final alteration of property interests and to her detriment.
The husband maintains that Mr E Cornish is then beneficially entitled to DD Pty Ltd and referred to page 17 of his affidavit of the 16th of July 2020 in which he states:
(xi) I confirm that payments have been made from the business to my brother. These payments are made to him by way of remuneration for the work he conducts in the business. My brother, Mr E Cornish, has the same qualifications as I do, and monies paid to him by the business are well below the standard rate paid to people engaged in the work he is conducting for the business. Mr E Cornish is paid sales commission for the capital he raises for the business.
Furthermore, he says that the explanation for himself and Z being beneficiaries of the trust of which the entity is trustee is that his brother, Mr E Cornish, wanted to set up an educational fund for all of his nieces and nephews. Interestingly, however, Z is the only niece or nephew mentioned as a beneficiary. It is difficult to construe the husband Mr Cornish as a beneficiary in those circumstances. There are five in the husband’s sibship. He has five other nieces and nephews apart from Z. It is difficult to understand why those other five young people whose education the husband says Mr E Cornish wanted to provide for were not named as beneficiaries.
At paragraphs 30 to 33 of his affidavit prepared on the 16th of November 2020, the husband states that:
30. I cannot afford to pay spousal maintenance payments from income as my self-employed consultancy business B Company is closing due to ongoing losses.
31.Accordingly, I seek orders that no spousal maintenance or additional child support be paid (other than as assessed by the child support agency).
32.Alternatively, if the court orders that spousal maintenance payments are to continue, these payments should be characterised as partial property settlement pursuant to Section 79 of the Act or any other section as appropriate.
33.My updated Financial Statement shows that I cannot afford any spousal maintenance payments as I have a shortfall of $2,587 per week (see Annexure A-10).
As indicated, the wife does not accept that the husband’s business is at an end or that it is unprofitable. Her counsel referred to the draft 2020 Financial Report for B Company which showed a net operating profit of $740,000 after some consultant contractors’ fees of $92,000. Mr Salamanca could not tell me if any of those moneys were attributable to the husband. But assuming that none of the $92,000 was attributable to the husband, there is still a net operating profit of $740,000.
Thus far, I am not satisfied that the husband has demonstrated a change in circumstances such that the Court should look again at his obligation to support the wife and meet family expenses. The husband seeks that any moneys, if they are continued to be due and payable, be categorised as part property settlement.
On the evidence before me, it would not be proper or just and equitable to alter the husband’s obligations. Instead, I will reserve liberty to the husband to apply at the final hearing of the application for a final alteration of property interests that the spousal maintenance paid by him to the wife from this day forth be characterised as partial property settlement. The onus is on him to make out that case. I have not made an order that makes any payments received from now on subject to characterisation by the trial judge, only to give the husband liberty to apply for that relief.
The husband also seeks relief in relation to extracurricular activities and school fees for Z; however, he has already paid these. Furthermore, he seeks a discharge of paragraph 6 of the order made on 14 January 2020, whereby, until further order, the husband is to:
…continue to pay the applicant wife the sum of $3000 per month and all of the expenses he currently pays on behalf of the applicant wife and the child, Z.
The husband is, in this part, taking exception with the payments that could be characterised as “all of the expenses he currently pays”. He refers to an upgrade to the wife’s motor vehicle, which I understand to be replacement tyres of some $2600. To my mind, there is insufficient material upon which I can dissect the parties’ respective financial situation and I do not take it any further than I did in relation to the husband’s application to discharge the $3000 per month spousal maintenance to the wife. He can seek at a final hearing that the judge characterise part of the additional moneys he has been paying to the wife as part property settlement, but it is up to him to make that application at that time.
VALUATION OF THE FAMILY BUSINESS
The husband says has completely and finally ceased to operate the family business. He is now employed as a finance professional. The husband says, on that basis, there is no need for a valuation of B Company. The wife, on the other hand, seeks that she be able to adduce evidence of the value of B Company. She does not seek to hinder the husband from doing likewise. The husband is not agreeable to the wife obtaining a valuation of her own at her own expense. He says that if a valuation has to be done, it should be done by appropriately qualified person nominated by the president of the Institute of Chartered Accountants in Australia.
The parties previously agreed on a valuer, Mr KK. At paragraphs 7 to 14 of the wife’s affidavit prepared on 12 December 2020, she chronicles various communications between the husband and the valuer, Mr KK, which the wife says culminated in Mr KK resigning as a single expert on 2 December 2020, less than two weeks ago. This part of the wife’s affidavit bears reading in its entirety. It does not reflect particularly well on the husband.
The husband’s material in response does not take issue with any of the matters to which the wife deposed, but raises his own concerns about Mr KK.
I am satisfied that it would invidious position to be the single expert valuer of B Company. Accordingly, I will not accede to the husband’s application to appoint a single expert witness. The wife can adduce evidence herself. If the husband chooses to adduce evidence to challenge that of the wife, he may do so at his own expense and I will order accordingly.
HISTORY OF PROCEEDINGS IN THE CONTEXT OF THE NEED FOR CASE MANAGEMENT
At the commencement of these reasons, I expressed my concern that the litigation between the husband and the wife is getting out of control. Apart from litigation in this Court, the parents have engaged the state courts for domestic violence. The wife has an intervention order against the husband which was varied to remove Z as a protected person. The husband has applied for a personal protection order against the wife’s brother in relation to Z. Proceedings in the state courts are ongoing.
In this Court, the wife filed her initiating application on 7 November 2019. She sought financial orders in an unspecified form. The wife has had two firms of solicitors act for her in these proceedings. She is currently represented by Taussig Cherrie Fildes.
A financial case assessment conference was held on 14 January 2020 with interim orders made by Registrar Mestrovic in respect of disclosure, valuations, the husband being restrained from dealing with any property in relation to his companies and trusts, part property payment by the husband to the wife of $75,000 with $25,000 of that $75,000 to be characterised at trial, maintenance for the wife, collection of personal possessions. Ms TT of Counsel, appeared on behalf of the wife with the husband appearing in person.
From 3 March 2020, the husband was represented by HH Lawyers, solicitors.
The wife filed a contravention application on 12 March 2020 which was adjourned to the Senior Registrar on 14 April 2020.
The husband filed his response to the wife’s initiating application on 18 March 2020. He also filed an application in a case seeking parenting orders.
On 14 April 2020, the then Senior Registrar Field made parenting orders by consent. It was ordered that that the parents have equal shared parental responsibility, the child live with the wife, there be electronic communication with the child each alternate day that the child does not spend time with that parent and the wife provide the husband with all medical practitioners reports. It was otherwise ordered that the wife have leave to withdraw her contravention application and both the husband and wife’s applications in a case be adjourned to 29 April 2020 before the Senior Registrar. Dr NN of Counsel appeared for the husband and Ms TT of Counsel appeared for the wife.
The matter proceeded before the Senior Registrar on 29 April 2020 and the Senior Registrar reserved her decision which was then delivered on 4 May 2020. Senior Registrar Field ordered that a private family report to be prepared by Dr R. The husband’s application was otherwise adjourned to 4 June 2020. Ms LL, solicitor, appeared for the husband and Ms MM, solicitor, for the wife
The report of Dr R is dated 1 June 2020 and was filed on 2 June 2020. Dr R reported that the parents did not have “a strong co-parenting dynamic” having struggled to effectively communicate since separation. Dr R reported a positive relationship between both parents and Z and supports equal shared parental responsibility. Dr R was concerned about Z being exposed to parental conflict and recommended a post-separation parenting program. In terms of the appropriateness of overnight time with the husband, Dr R did not necessarily support the mother’s assertions that it is not appropriate or that the husband posed a significant risk to Z. The wife’s concerns about the husband’s alcohol consumption were not supported by any recent observations of the husband and she was assessed to be vague in her concerns. Dr R considered both the wife and Z’s concerns about the husband prioritising work over time with Z and reported that it is likely that the husband does not understand the impact on Z of the time he spends working when spending time with her. There was also some concern about the husband’s expectations of Z to succeed and perform being out of balance with his ability to actively listen to Z and be attuned to her emotional needs.
Dr R reported that Z presented as a somewhat anxious child whilst also showing a high degree of resilience. Whilst Z expressed a view that she does not want to spend overnight time with the husband, it appeared to be a view expressed in a general sense of fear rather than any clearly identifiable risk. Notwithstanding that the wife was assessed to probably struggle with Z spending overnight time with the husband, Dr R supported the time in a progressive approach allowing Z to spend each alternate Saturday night with the father and progressing to Friday and Saturday night.
On 14 May 2020, the husband became unrepresented when his solicitors, HH Lawyers filed a notice of ceasing to act.
On 1 June 2020, the husband became represented by JJ Lawyers.
On 4 June 2020, the matter returned before the Senior Registrar who discharged all previous parenting orders and made orders which the parties agreed upon. The parents maintained equal shared parental responsibility and that the child live with the wife. Otherwise, Z was to spend each Tuesday after school until 7.30pm and then a progression of time until November which would see Z spend each alternate weekend from Friday afterschool until commencement of school Monday. Orders were also made for holiday time and special occasions, as well as electronic communication as often as appropriate. The parents were ordered to complete a separation program, ensure the child attends upon her treating psychologist Ms P, the husband be restrained from consuming alcohol between 6pm and 9pm when the child is spending overnight time with him and the parents be restrained from removing the child from Victoria. All extant applications were dismissed and the matter placed in in the list of cases awaiting allocation to a judicial docket with priority. Dr NN of Counsel appeared for the husband and Mr PP of Counsel appeared for the wife.
On 3 July 2020, the wife filed an application in a case seeking enforcement of orders relating to maintenance and interim financial orders in relation to maintenance, child support, payment to the wife of $100,000 for legal fees, the sale of properties and use of proceeds of sale, part property payment to the wife of $1.5 million from the sale proceeds, tax liabilities, injunctions on the husband from dealing with property, valuations and costs. On 16 July 2020, the husband filed a response.
On 22 July 2020, Justice Williams adjourned the application to 12 October 2020 and made certain orders by consent. The husband was required to pay his outstanding maintenance in compliance with previous orders, the wife’s application for litigation funding was granted, a s 106A Order, the properties were placed for sale and orders made for valuations. Ms QQ of Counsel appeared for the wife and Mr RR of Counsel for the husband.
On 25 August 2020, the husband became unrepresented with his solicitors JJ Lawyers filing a notice of ceasing to act.
On 9 September 2020, the husband filed an application in a case seeking new valuers be appointed, that he receive $100,000 in litigation funding and $200,000 as partial property settlement, the wife be injuncted from withdrawing more than $500 cash from an ATM without the husband’s approval, and disclosure. This was the first iteration of the husband’s application which is before the Court today.
On 7 October 2020, the wife amended her case application in relation to enforcement of orders relating to maintenance, health insurance, and no longer seeking litigation funding, sale of the properties, injunctions, and valuations. The wife sought orders in relation to subpoenas, injunctions on the husband from contacting the wife, the sale of shares and costs. This application has been before me today.
On 16 November 2020, the husband filed a case application seeking to execute documents on behalf of the wife or otherwise seeking a s 106A order, a reduction in maintenance, orders in relation to extra-curricular activities, part property settlement of $200,000 and $100,000 of litigation funding and indemnity costs of $60,000.
On 19 November 2020, Williams J made orders in relation to the valuations and outstanding tax liabilities and otherwise dismissed all interim applications. Mr SS SC appeared for the wife and the husband appeared in person, still unrepresented.
As indicated at the commencement of these reasons, on 7 December 2020 the husband filed an application which he amended on 14 December 2020. The wife filed a response and affidavit on 10 December 2020 and then made an urgent oral application on the day on 14 December 2020 for injunctive relief against the husband enquiring about or disseminating information about her state of health.
In sum, since proceedings were instituted in November 2019, the parties have been before the Court for a case assessment conference in January 2020 followed by eleven hearings before a judicial officer, including today. The parties have unresolved financial issues. Parenting issues are similarly unresolved including, I gather, the enrolment of Z in secondary school where each parent prefers a school to which the other does not agree.
Proceedings are exhausting for families in emotional and financial terms. I detect that a common theme emerging from Justice Williams’ reasons and my experience of the parties is that many applications are made, generate costs and bother but are then not pursued. When the proceedings come before the Court in a busy list, which has invariably been the case, judges rarely argue with parties electing not to pursue points. However, the proportionality of the how the parties are conducting litigation goes unchecked. In this sense, it appears to me that the parties and their child would benefit from having the proceedings in this Court managed by one judge.
I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 21 January 2020