Darcy and Darcy

[2007] FamCA 90

FAMILY COURT OF AUSTRALIA

DARCY & DARCY [2007] FamCA 90

FAMILY LAW - PARENTING – Magellan – Interim – Supervised time
FAMILY LAW - PROPERTY – Disclosure – Interim
FAMILY LAW - PROCEDURAL – Litigation funding

Family Law Act 1975 (Cth)

HUSBAND: Mr Darcy

WIFE: Mrs Darcy

INDEPENDENT CHILDREN’S LAWYER: Independent Children's Lawyer

FILE NUMBER: MLF 3110 of 2005

DATE DELIVERED: 31 January, 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 31 January, 2007

REPRESENTATION

COUNSEL FOR THE HUSBAND: Mr Forster

SOLICITOR FOR THE APPLICANT: Auditore Specialist Family Lawyers

COUNSEL FOR THE WIFE: Ms Pender

SOLICITOR FOR THE RESPONDENT: Emily Pender

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr Casement

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Donald S. Lampe

Orders

1. That until further order the father spend time with the children A born in February, 2000 and T born in January, 2004 between 10:00 am. and 2:00 pm. on each Saturday, commencing on 3 February, 2007 on the following conditions :

   (a)that contact be supervised by a person nominated and employed by Dial-An-Angel and the supervisor be present for the whole of the time the children spend with the father, including changeovers; 

   (b)that until further order and without prejudice to any right to seek reimbursement from the mother, the husband pay the costs of supervision and, in the event a report of the supervisor is filed in these proceedings, the costs of that report;

   (c)that in the event the supervisor is unable to supervise between 10:00 am. and 2:00 pm., another period of four hours be fixed on a Saturday or Sunday, approved by the independent children’s lawyer;  and

   (d)that changeovers take place in the car park outside the local Police Station and the husband’s parents not attend changeovers.

1. That the application for parenting orders be referred to the Magellan list.

1. That the further hearing of all extant applications be adjourned before the Honourable Justice Brown and the Magellan registrar at 10:00 am. on 30 March, 2007. 

1. That within 48 hours hereof the wife file and serve a form 4 Notice of Abuse relating to the allegations contained in paragraphs 21, 22 and 31 of her affidavit filed 19 January, 2007 and all other relevant allegations.

1. That pursuant to s.91B of the Family Law Act 1975 the Department of Human Services Victoria be requested to intervene in these proceedings.

1. That the Department of Human Services be requested to prepare a report as to the mother’s allegations contained in her form 4 to be filed pursuant to these orders and that such report be filed at this Court no later than 23 March, 2007.

1. That the Registrar of the Melbourne Registry of the Family Court arrange for a subpoena to issue to the Department of Human Services for production of the relevant file by 4:00 pm. 23 March, 2007.

1. That until further order the parties, the Family Court Mediation Manager and Dr K be at liberty to inspect the Department of Human Services file, save for any confidential documents.

1. That paragraph (4) of the orders made herein on 22 January, 2007 be discharged.

1. That as soon as practicable after receipt of the Department of Human Services’ report, the parties do all things reasonably necessary for Dr K to prepare an updated family report  PROVIDED THAT  prior to Dr K  seeing the parties or children :

   (a)the independent children’s lawyer provide a copy of the reasons for judgment delivered this day and the Department of Human Services’ report to Dr K;  and

   (b)if Dr K has not then perused the DHS file, the independent children’s lawyer have leave to copy the DHS file and provide the copies to Dr K.

1. That the report of Dr K dated 13 December, 2005 be indexed on the court file.

1. That as soon as practicable each of the parties do all things necessary to apply to use the contact supervision service conducted by Relationships Australia in N, including completion of all necessary documents and attendance for any intake interview, as advised by the independent children’s lawyer. 

1. That until further order each of the parties be and are hereby restrained from assaulting or harassing the other and from denigrating the other in the presence or hearing of the children. 

Financial Orders
IT IS FURTHER ORDERED BY CONSENT

1. Without concession by the husband of the necessity for the order, pending further order the husband be and is hereby restrained from doing any act or thing or signing any document or giving any direction that will have the effect of :

   (a)alienating or assigning or disposing of any financial interest or resource currently in the ownership and/or control of either of the parties;  and

   (b)mortgaging or otherwise further encumbering any property currently in the ownership or control of either of the parties;

   save with the consent in writing of the wife or, so long as the wife is represented, the wife’s legal practitioner. 

IT IS FURTHER ORDERED

1. That within 21 days hereof the husband pay into his solicitor’s trust account, a sum sufficient to pay for the single expert witness valuations ordered by Registrar Sikiotis on 22 November, 2006, and subject to any order to the contrary by the trial judge, he be reimbursed one-half of such sum from the amount due to the wife pursuant to final property orders made herein in the future. 

1. That within 21 days hereof the husband file and serve a further financial statement. 

1. That paragraph 3 of the wife’s application filed 19 January, 2007 be otherwise adjourned to 30 March, 2007 and :

   (a)the wife have leave to file and serve any further affidavit or affidavits on which she intends to rely in that application by 9 March, 2007;  and

   (b)the husband have leave to file and serve any affidavits in response by 23 March, 2007. 

1. That within 21 days hereof the wife provide to the husband’s solicitors all statements in respect of each bank account in her name or in respect of which she had an interest for the period 1 March, 2005 to 31 August, 2005  PROVIDED THAT  if she asserts that these documents have previously been provided by her, she confirm that to the husband’s solicitors within the 21 day period.

1. That within 21 days hereof the husband provide to the wife such of the following documents as have not previously been provided by him and, in the event he alleges a document has been previously provided, he advise the wife in respect of each such document the date on which it was previously provided : 

   (a)Copies of the last three bank statements or statements from any financial institution in respect of accounts in the name/names of the husband or to which he has been a signatory from 1 July 2004 to date.

(b)(i)      A list of all credit cards and charge cards in the name of the husband or to which he is a signatory;  and

(ii)the last three account statements for all credit and charge cards the husband has had or to which he is a signatory from 1 July 2004 to date. 

(c)Copies of all relevant documents (including but not limited to deeds of title, transfers, mortgages, and conveyancing documents) in regard to any interest of the husband in real properties which have been purchased, transferred, acquired  or sold by the husband since 1 July 2004 to date.

(d)Copies of the last three bank statements for all loan or mortgage accounts from a bank, credit union or other financial institution in the name of the husband or to which he has been a signatory from 1 July 2004 to date.

(e)Documents in relation to all rental income received by or on behalf of the husband (including but not limited to lease/tenancy agreements, accounts, receipts, bank account statements and correspondence with agents) in respect of any real property held by the husband or in respect of which he has had a beneficial interest from 1 July 2004 to date.

(f)Copies of all insurance policies in respect of goods or chattels (including policies in respect of vehicles or boats) owned, purchased, sold by or leased from the husband from 1 July 2004 to date.

(g)Copies of all licenses relating to vehicles or boats owned, purchased or sold by, or leased from the husband from 1 July 2004 to date.

(h)Copies of all wages slips, tax assessment notices and/or group certificates and other records relating to the employment of the husband since 1 July 2004 to date.

(i)All notices of assessment, group certificates and tax returns for the husband from 1 July 2004 to date.

(j)Any passport issued to the husband since 1 July 2004.

(k)Copies of all share certificates and/or transfers in respect of shares held in the husband’s name or in respect of which he has a beneficial interest from 1 July 2004 to date.

(l)A list of all companies and entities in which the husband has had any beneficial interest from 1 July 2004 to date, together with the balance sheets and profit and loss accounts and tax returns for each of those companies and entities from 1 July 2004 to date, including but not limited to M Lawyers and B Tours.

1. That no less than seven days prior to the adjourned date each of the parties file and serve an undertaking as to financial disclosure. 

1. That the wife have leave to file an amended response within 21 days.

1. That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

2. That the reasons for judgment in respect of the applications for parenting orders and the application for financial orders be transcribed and that copies be made available to the parties.

1. That the preparation of these orders be expedited forthwith.

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel and a solicitor appearing as counsel.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF  3110  of 2005

Mr Darcy

Husband

And

Mrs Darcy

Wife

REASONS FOR JUDGMENT

1. This is a difficult matter.  The litigation between the parties has some history, applications for final orders having been filed in October 2005.  It now seems that the application for financial orders moved slowly.  Trial notice directions were made, but were not complied with.  Last week, in the defaulter’s list, Mushin J removed all applications from the trial notice list, vacated a number of potential dates and listed the case before me today.  He noted that consideration should be given to whether the child and property proceedings should be split, and the child proceedings referred to the Magellan list of cases.  It seems clear the financial applications are not ready to proceed at the moment.

1. When trial notice directions were made it was on the basis that financial applications only were to be determined.  The evidence of the husband’s solicitor is that when he inspected the court file on 4 December he realised that final orders in relation to children’s issues had not been made.  He then commenced negotiations with the wife.  It is in that context that certain allegations about the children arose and the evidence of those allegations is what prompted Mushin J to consider the potential to refer the parenting applications to the Magellan list.

1. The parties have two children:  A, born in February, 2000, and T, born in January, 2004.  The husband had regular contact with the children until December, which continued after negotiations between the husband’s solicitor and the wife (then acting for herself) commenced.  It was against a background of discussions as to what time the children should spend with the husband over the Christmas period that the solicitor for the husband received a fax from the wife in which she alleged that A had made disclosures to her of sexual abuse by the husband.

1. The document is annexure 1 to Mr Forster’s affidavit.  It is an articulate and well-structured letter to him, signed by the wife.  In it she alleged that over the two months A had spent time with her father, she had told her several things of concern.  One was the allegation, referred to in other material before the Court, of being picked up by her father, believing she was going to be given a ride on her father’s shoulders, but instead, her father putting his head between her legs and smelling between her legs. 

1. The letter alleged that A reported that her father had said that if she told anyone, something bad would happen to her mother and to T.  It alleged she told her mother on 10 December that when she was sitting on the couch, her father touched her between her legs.  Notwithstanding the nature of those allegations, the wife wrote that she would allow contact to continue only on condition it was supervised by the husband’s parents.  Her rationale (stated in the letter) was that she understood from A that A felt safe when her paternal grandparents were in the house. 

1. That letter, with its clear assertion of disclosures of abuse made prior to and on 10 December, must be seen in the context of the ongoing discussions between the solicitor and the wife, which continued to 19 December.  Those negotiations were about contact and its continuation.  In those circumstances, it is hardly surprising that the husband and those who support him are highly sceptical of the allegations and view them as raised for a strategic and improper purpose. 

1. It is submitted on behalf of the wife that she felt unable to produce evidence of these allegations during the discussions with the husband’s solicitor.  She was unrepresented.  She had contacted bodies such as a sexual assault organisation, but was told the evidence was equivocal.  Only after she obtained legal advice did she write the letter on 20 December, although she made no mention of the legal advice in the letter, and one might wonder at aspects of the advice.  All of that will be assessed in due course, and no doubt much cross-examination may go to her state of mind then.

1. The husband has had no contact with the children since December 2006.  The wife’s position at 20 December was clearly stated;  she would accept (indeed suggested) the husband’s parents as supervisors.  That is not her position now. 

1. A number of things have happened since 20 December.  It is clear, from Dr K’s report, that there was earlier DHS involvement with this family;  it is vitally important that the file be produced.  There has been DHS involvement after these allegations were made.  A took part in a VATE interview on New Year’s Day.  To date, the Court has no evidence from DHS or police.

1. The parties and children were to attend an appointment with Dr K tomorrow, as he was to prepare an updated family report.  For reasons discussed with counsel earlier, I do not propose that occur.  I make it clear that my decision has nothing to do with the reason advanced by the wife, which was alleged concern about contaminating A evidence.  A has been interviewed by police.  But for Dr K’s report to be useful it is vital he have access to the DHS report which will be provided to the Court pursuant to orders I make today, and have access to the DHS file.

1. Having now had an opportunity to read Dr K’s report of 13 December, 2005, I am convinced this is a sensible course.  In that report he noted that the children’s relationship with their father was sound but the wife’s reluctance to separate from the children, and her reluctance to have them spend time with their father, was exacerbating A’s separation anxiety and could require some professional assistance.

1. His expert opinion was that the relationship between A and her mother was “over-involved”;  there was a degree of overprotection and possible inclusion of the child in parental conflict.  He proposed a number of steps to move the wife and children beyond that point;  he recommended the wife cease breast feeding T and ensure that A slept in her own bed, rather than with the wife. 

1. That report was prepared a little over a year ago, and a year prior to these allegations being made.  I am aware that circumstances can change, sometimes dramatically.  But the report points up the potential complexity of the case and the issues with which the family have been grappling for some time.

1. The legislation relating to children rests on twin pillars.  They are the importance of protecting children from violence and abuse, and the importance of ensuring children have as meaningful a relationship as possible with both parents, consistent with their best interests.

1. In an interim application such as this the Court must do the best it can to assess any objective evidence and balance the risks alleged against the potential damage to the children’s relationship with their father if all contact ceases.  Very often the balance results in orders which one or other parent finds unfair and harsh.  The Court’s obligation is to focus on the best interests of the children involved.  To the extent necessary, parents’ wishes and desires have to give way to that.

1. It is for that reason, and that reason only, that I propose to make orders for supervised contact.  The case will come back before me on 30 March.  At that time the Court can consider all the evidence then available.  That is a Magellan mention list and it will be one of probably ten cases in the list that day. 

1. Consideration has been given to using the services of Dial An Angel to find a supervisor until such time as a place becomes available for the family at the N Contact Centre.  Orders will require the parties to complete the intake procedures for N. If at a subsequent hearing the Court considers supervision there to be appropriate, the parties will not face a long delay. 

1. The wife’s position (put through her counsel) is that she would not support any form of contact, including supervised contact.  However, having regard to all the evidence, I am satisfied the children’s best interests can be safeguarded by supervision.  Perhaps surprisingly, given the allegations made, it has been submitted that if there is to be any contact at all, both children should go.  That is, it is no part of the wife’s case today that T should attend alone.  She seeks that neither child spend any time with their father.  But if she is unsuccessful in that application, she seeks that both children attend, supervised.  Her counsel advised that the wife thought T too young to go alone. 

1. I must say I find that submission unusual.  T is still a little boy, but many three-year-olds spend time with their fathers alone, and the time is to be supervised.  A logical inference seems to be that the wife is more concerned about T’s vulnerability (due to age) then A’s fear of or response to her father (due to alleged sexual abuse).  Whatever her rationale, the wife’s endorsement of both attending is a matter on which I place some weight.  I make it clear that is not her primary position;  her primary position is that there be no contact.

1. I do not propose to make an order that T spend 24 hours with his father at this stage.  My obligation is to focus on the children’s best interests.  The order will provide for four hours weekly with the children, supervised.  There will be a supervisor present, but the order will not preclude other people being in attendance, including members of the husband’s family.

Financial applications

1. The parties’ application for financial orders have been complicated by the applications in relation to their children, particularly by the recent allegations and by a significant difference, the wife would say, in their standards of living since separation.  I am asked to determine those parts of the form 2 application filed by the wife on 19 January, 2007 in which she sought injunctive relief, that the husband pay her $30,000 within 30 days to be used for the payment of legal fees in the proceedings, disclosure by way of an affidavit of documents and full financial discovery.

1. The parties have agreed that an injunction be made in the terms of paragraph 2 of the wife’s application, without the husband conceding the necessity for it.  I will certainly grant the wife leave to file an amended response. 

1. Trial notice directions were given in this matter on 15 September, it being thought then that it was purely a financial case.  The directions required the parties to file and swear their affidavits of evidence-in-chief and further financial statements by 29 November, 2006.  Orders provided for single expert valuations of a number of assets.

1. The wife did file an updated financial statement, albeit nearly two months late, on 22 January.  That is the only trial document filed by either party.  In those circumstances it is hardly surprising that when the matter came before Mushin J in the defaulter’s list on 22 January, he removed all the applications from the trial notice list.  Between the date of trial notice directions and Mushin J’s order the matter came before Registrar Sikiotis on 22 November, who made orders appointing named single experts to value named assets.  Although the trial notice orders provided that the costs of any valuation reports be shared, Registrar Sikiotis’ order was silent on that point.  She may have assumed, reasonably, that the trial notice orders would apply.

1. The wife lives on Centrelink benefits, some very small amounts from paid employment, and exceedingly modest child support, having regard to the ages of her two children.  The husband’s financial position is more complicated.  Despite the order of 15 September, 2006, the husband filed no updated financial statement.  The only one filed was sworn in December 2005.  In his affidavit prepared for this hearing, he does provide some financial evidence.  That this is not comprehensive is amply demonstrated by some of the questions I have asked his counsel, in respect of which he had to obtain instructions.  It is partial and directed to an end. 

1. Having regard to the assets in which he has a interest, the legal practice he conducts, the ebb and flow of cash to support a number of mortgages, his travel to Italy and his capacity to pay the not inconsiderable costs of private supervision, one might draw an inference that he has had available more cash than is conceded and enough to apply some to recreational expenses.  It is not possible to draw an inference from funds moving into and out of accounts (which include a trust account) as to a party’s financial circumstances.  However, I do understand the wife’s scepticism about the husband’s alleged financial position, having regard to the disparity she observes between the life he leads and the life she must lead on her modest income. 

1. In her application for litigation funding, the wife sought $30,000.  Today her counsel has sought $50,000.  As I understand it – and I am simplifying – it is put that she owes $23,000 to her parents for legal fees paid to her former solicitor, that she has paid $5,000 to her current counsel, provided by that counsel’s brother (who is a friend) and that she anticipates the necessity for considerable legal work, of at least 20 hours at an hourly rate of $250 an hour.  I accept it is probable that legal fees of a couple of thousand dollars have accrued between filing her application and this date. 

1. The legal work that she refers to is described in paragraph 17 of her affidavit.  It refers to settling affidavits, appearances, evidence, inspection of subpoenaed documents, notices to produce, correspondence and further subpoenae.  It does not relate to valuations of businesses, those matters being dealt with by the earlier valuation orders.  There is no evidence of her lawyer before the Court.

1. In my view, the evidence before me today would not allow me to make an order for litigation funding.  As I said to the wife’s counsel in discussion, it may be difficult to persuade me that money should be provided by the husband now to enable the wife to reimburse two lenders (parents and a friend) who are not pressing for that to be done.  Further litigation funding is different and, on occasions, essential if justice is to be done.  I will adjourn that aspect of the wife’s application to 30 March.  The husband is to file and serve a fresh and detailed form 13 prior to that date. 

1. In order to push this case towards trial, I propose to order that the husband pay the cost of the valuations ordered on 22 November, 2006 and, subject to any order to the contrary by the trial judge, be reimbursed one half of those sums from any entitlement of the wife in the proceedings. 

1. It is very hard to make head or tail of the allegations of non-disclosure.  A notice to produce has been filed and it appears that the husband has not produced all necessary documents. It is not an answer to a notice to produce to say : “they have subpoenaed some of these documents, so they can find them”.  Similarly, if the wife has provided all documents requested, an order that requires their provision will be fulfilled if she states they have been provided. 

1. In my view, this case is nowhere near ready for trial.  Both parties have failed to comply with directions.  It may be that the children’s aspect will be severed after the next hearing.  The wife may be eligible for legal aid as the matter is in the Magellan list but that legal aid will not extend to financial matters.

I certify  that the preceding
32 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown.

Dated the           day of            2007.

…………………………………………
Associate

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as DARCY & DARCY