Dunn & Dunn
[2021] FamCA 123
•17 March 2021
FAMILY COURT OF AUSTRALIA
Dunn & Dunn [2021] FamCA 123
File number(s): ADC 5380 of 2020 Judgment of: BERMAN J Date of judgment: 17 March 2021 Catchwords: FAMILY LAW – CHILDREN – Best interests of child –With whom a child spends time with – Where the applicant seeks that the respondent’s time be reduced – Where the respondent seeks that his time with the children be extended – Where the applicant considers the children remain traumatised from their previous retention by the respondent – Where the respondent considers any distress is due to the applicant removing them from the former matrimonial home – Where there are allegations of family violence – Where a family assessment is yet to be conducted – Where a cautious approach is to continue the current interim arrangements.
FAMILY LAW – INJUNCTIONS – Personal protection – Preservation of property – Where the parties agree to a range of mutual injunctions for their personal protection – Where the applicant seeks that the respondent be restrained from dealing with the interest of the parties in certain properties – Where a third party holds mortgages over some of the properties – Orders.
FAMILY LAW – SPOUSAL MAINTENANCE – Interim – Where the applicant seeks the respondent pay her spousal maintenance – Where the respondent is currently paying the applicant an amount per week but the applicant seeks a higher amount – Where the applicant was terminated from her employment due to COVID-19 and is in receipt of government benefits – Where the respondent considers the gateway requirement is satisfied and is prepared to continue the current arrangement – Where a reasonable compromise of the applicant’s total expenditure would still be greater than the current amount being received – Orders.
FAMILY LAW –PROPERTY – Interim – Litigation funding –Where the applicant seeks a lump sum payment for current and future legal fees – Where no agreed balance sheet has been provided by the parties – Where no attempt has been made to consider the extent of the anticipated legal fees – Where more evidence is required for the Court to consider making an order – Application adjourned.
Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2), s 117
Family Law Rules 2004 (Cth) Pt 19.5
Cases cited: Brown & Brown (2007) FLC 93-316
Chester v Chester (1995) FLC 92-612
Deiter & Deiter [2011] FamCAFC 82
Hall & Hall (2016) 257 CLR 490
Marvel & Marvel (2010) 43 Fam LR 348
Number of paragraphs: 104 Date of hearing: 19 February 2021 Place: Adelaide Counsel for the Applicant: Ms Lewis Solicitor for the Applicant: Resolve Divorce Lawyers Counsel for the Respondent: Mr Jordan Solicitor for the Respondent: Jordan & Fowler Family Lawyers ORDERS
ADC 5380 of 2020 BETWEEN: MS DUNN
ApplicantAND: MR DUNN
Respondent
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
17 MARCH 2021
THE COURT ORDERS:
1.That paragraphs 1 to 5 inclusive of the applicant’s interim orders sought on 5 November 2020 be dismissed.
2.That the parties be restrained and an injunction granted restraining each of them from:-
(a)Communicating with the other party, other than by text message with such communications to be limited to five (5) communications per day;
(b)Texting each other on any topic other than matters relating to the collection or drop off of the children or matters relating to their care and welfare;
(c)Engaging or attempting to engage each other in conversation at any handover of the children;
(d)Denigrating the other in front of the children;
(e)Asking questions of the children that may go to the conduct and activity of each of the parties;
(f)Assaulting, molesting or harassing each other at handovers (or at any other time);
(g)Attending at or within 100 meters of each other’s residence.
3.That the respondent be restrained and an injunction be granted restraining him from:-
(a)Transferring, assigning, mortgaging, encumbering or in any way dealing with the respondent’s interests in the following assets:-
(i)B Street, D Town;
(ii)F Street, G Town; and
(iii)H Street, Suburb J.
4.That by way of interim spousal maintenance the respondent pay to the applicant the sum of ONE THOUSAND FIVE HUNDRED DOLLARS ($1,500) per week into the applicant’s nominated bank account with such payments to be made on the Friday of each week.
5.That the applicant’s application for litigation funding be listed for hearing on a date to be fixed in consultation with the solicitors for the parties.
6.That within twenty one (21) days the parties file and serve a document setting out the assets and liabilities of the parties which identifies areas of agreement and disagreement.
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 Dunn & Dunn has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
By Initiating Application filed 5 November 2020, Ms Dunn (“the applicant”) seeks final and interim orders as to the future parenting arrangements for X born in 2015 and Y born in 2018 (collectively referred to as “the children”) and for settlement of property and spousal maintenance.
By Response to Initiating Application filed 4 January 2021, Mr Dunn (“the respondent”) opposes the final and interim orders sought by the applicant.
By orders made 23 December 2020, it was ordered until further order:-
1.That the parties have equal parental responsibility for [the children].
2.That the children live with the wife.
3.That the children spend time with the husband as follows:-
a. each Wednesday from the conclusion of school (or if no school then 2.00pm) until 6.30pm UPON NOTING that the husband will collect Y from the wife as may be agreed or in default of agreement from the wife immediately prior to the conclusion of school (or if no school then 2.00pm) on Wednesday;
b. each alternate weekend from the conclusion of school on Friday (or if no school then 2.00pm) to Sunday at 5.00pm;
c. …
4.That unless otherwise agreed handover shall occur at McDonald’s Restaurant, K Street, Suburb L.
5.That the parties are restrained and an injunction be granted restraining each of them from:-
a.communicating with each other, other than by text message to be limited to five (5) communications by each of them per day;
b.denigrating each other in the presence of the children;
c.attending at or within 100 meters of each of their separate residences or places of employment.
6.…
7.…
The interim orders sought by the applicant would seek to restrict the time the children spend with the respondent to the following:-
3.1 each alternate Sunday from 10.00 am until 5.00 pm;
3.2each Wednesday from the conclusion of school until 6.30 pm UPON NOTING that the respondent will collect Y from the applicant immediately prior to the conclusion of school Wednesday.[1]
[1] Initiating Application filed 5 November 2020, page 12.
For his part, the respondent seeks that his time with the children be extended to the following:-
(a)each Wednesday from 2.00pm (if on a school day from the conclusion of school in the case of X) until 9.00am (if on a school day at the commencement of school in the case of X) on the following Thursday; and
(b)in each alternate week from 12.00pm (if on a school day from the conclusion of school in the case of X) on Friday until 5.00pm on the following Sunday;
(c) …
(d)from 2.00pm on Easter Sunday 4/4/21 until 6.00pm on Easter Monday 5/4/21.
(e) during the April 2021 school holidays:-
(i)From 2.00pm on last day of school term Friday 9/4/21 until 5.00pm on Tuesday 12/4/21; and
(ii)From 2.00pm on Friday 16/4/21 until 5.00pm on Tuesday 19/4/21.[2]
[2] Response to Initiating Application filed 4 January 2021, page 12.
The respondent opposes the balance of the interim financial orders as sought by the applicant save that the parties are agreed that orders can be made in terms of paragraph 6 of the applicant’s interim orders provided that the injunctive relief applies to both parties.
BACKGROUND
The parties commenced cohabitation in 2013 and were married in 2013. They separated in December 2019 with the applicant leaving the former matrimonial home on 3 February 2020.
At the date of the issuing of proceedings the applicant was unemployed and in receipt of a government benefit or allowance supplemented by a further payment of the respondent in the sum of $1,000 per week. The applicant had been previously employed, however, with the advent of COVID-19 she was made redundant.
The respondent is a professional of longstanding. He is the proprietor of his own business trading under the name of M Pty Ltd.
It is uncontroversial that at present the applicant relies on the respondent for financial support.
Following separation the parties attempted to negotiate their differences in respect of the parenting arrangements for the children by attending mediation. The parties are not agreed as to the history of care for the children.
The respondent considers that the current parenting arrangements were as a result of the unilateral decision of the applicant and in circumstances where he was concerned he might be prevented from seeing the children at all, he agreed. The applicant denies the respondent’s assertion and says that she agreed to the arrangements against her better judgement.
Moreover, the parties are not agreed as to how well the children are coping with the current arrangements.
The respondent considers that whilst he remained in fulltime work, he nonetheless spent as much time as was possible with the children. The applicant does not agree and refers to her concern that the respondent was interested in X but less so with Y.
The applicant remains concerned that the respondent is not able to compartmentalise the conflict with the applicant and instead has involved the children in repeated questioning as to the activities of the applicant.
On 10 November 2020 the applicant sought an undertaking from the respondent that he would abide by the terms of the agreement reached at mediation on 10 September 2020. The undertaking was signed and whilst there is disagreement as to the parenting arrangements at the time, the respondent complains that the applicant was not committed to the mediation outcome and that his time with the children was significantly restricted.
The children came into the care of the respondent on 18 December 2020.
The agreement was that the children would be returned to the applicant’s care on 20 December 2020. The applicant sought to establish a time for the children’s return, however, the respondent sought to negotiate a different return time and date.
The respondent took the children to the home of his mother and step-father. At around 9.00 pm the applicant attended at the respondent’s parent’s home and demanded that the respondent deliver the children up to her.
There was an aggressive and volatile exchange between the parties which ultimately resulted in two police officers attending who attempted to resolve the differences between the parties.
The incident at the respondent’s parent’s home was distressing to both parties and traumatic for the children.
Whilst the parties agree that the incident on 20 December 2020 was unedifying, they are not agreed as to the extent that the children remain affected by their observations of the parties in high conflict. Whilst the applicant considers that the reduction in the time the children currently spend with the respondent is justified by their ongoing fear that he will not return them to the applicant, the respondent argues that the children have expressed a clear wish to remain with him for longer periods than the applicant is prepared to promote.
The parties considered that a family assessment and subsequent report may well assist in identifying parenting issues that may enable either the parties to reach agreement, or if not, assist the Court in determining interim orders.
On 15 January 2021 the parties agreed to jointly engage Ms S of T Psychology for the purpose of preparing a family report.
The interim applications were adjourned for further argument to 19 February 2021. Unfortunately, the parties were advised that there would be a significant delay in the preparation of a family report and certainly not in time for the adjourned hearing date.
On 19 February 2021 a family report was ordered pursuant to s 62G(2) of the Family Law Act 1975 (Cth) (“the Act”) with the report to be completed by 10 June 2021 in anticipation of the adjourned date on 16 June 2021.
Accordingly, it is reasonable to confine the dispute between the parties to the interim arrangements during the period of the adjournment.
INTERIM PARENTING
In Marvel & Marvel (2010) 43 Fam LR 348 the Full Court considered the manner in which interim parenting proceedings should be considered where there is contested evidence as follows:-
[120]As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing: section 61DB.
[121] …
[122]In SS v AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
[88] In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at [100] their Honours amplified their comments and said:-
[100] The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Where the contested facts relate to an assessment of risk, a greater level of caution should be exercised, however, in Deiter & Deiter [2011] FamCAFC 82 the Full Court said at [61]:-
In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
THE LAW
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Pt VII of the Act namely:-
(1)The objects of this Part are to ensure that the best interests of children are being met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring the children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interest):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that the Court must have regard to the best interests of the child as the paramount consideration.
Section 60CC of the Act sets out the primary and additional considerations that the Court must take into account in determining what is in the best interests of a child.
The primary considerations as outlined in s 60CC(2) of the Act are:-
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the primary considerations as set out in s 60CC(2), the Court is to give greater weight to the considerations set out in sub-paragraph (b).
The applicant does not seek that the respondent’s time with the children be supervised but rather that there be no overnight component.
It is significant to the applicant’s assessment of the current presentation of the children that they remain traumatised following the respondent’s retention of the children, only returning them to the applicant’s care on 23 December 2020 after a period of five nights.
The applicant observes that Y continues to experience acute separation anxiety and struggles to fall asleep without the applicant’s continued presence.
X was observed to be unsettled following her return to the applicant’s care and she is now becoming resistant to spending time with the respondent.
The distress and anxiety occasioned to the children may well be exacerbated by the ongoing tension between the parties.
As discussed, the parties are not able to agree to the extent to which the respondent was engaged and involved with the children during the period of the relationship. Poor communication and a distinct level of hostility between the parties is likely to fuel any distress and anxiety experienced by the children.
The respondent considers that any distress experienced by the children is likely to be a result of the unilateral action of the applicant in removing the children from the former matrimonial home.
The respondent does not accept that Y exhibits behaviour consistent with separation anxiety from being separated from the mother and he considers that the children display happiness in his care and are resistant to transitioning back to the applicant.
The applicant filed a Notice of Child Abuse, Family Violence or Risk alleging that the respondent engaged in family violence being physical, emotional and financial as to the applicant and perpetrated psychological abuse in respect of the children. The applicant considered that her safety could be protected by putting in place relatively extensive personal protection injunctions.
The parties agree that it is important for the children to maintain a meaningful relationship with each of the parties. The applicant contends that the children are at risk arising from the allegations that the respondent did not have a close emotional attachment with the children during the course of the relationship and seeks to spend time with the children for the ulterior motive of being able to gain information as to the applicant’s actions.
It is not open to the Court at this stage to make a finding that the children would be adversely affected by spending time with the respondent.
The parties did reach an agreement at mediation and whilst the subject of contest as to the circumstances surrounding the concluded agreement, it nonetheless represented, at least in part, an indication of the extent to which the children spending time with the respondent was considered in their best interests.
I am not able to determine the extent to which the incident on 20 December 2020 may have traumatised the children other than to accept that from the perspective of each of the parties, it was likely to have been distressing for the children.
I have given careful consideration to the primary and additional considerations pursuant to s 60CC of the Act. I place weight on the current interim arrangements that have been ongoing now for some months.
I consider that a cautious approach would be to continue the current interim arrangements rather than seek the further diminution of the respondent’s time with the children as sought by the applicant, but also to reject his proposal which would represent an extension of time.
It is likely that the Court will be assisted by the family report as ordered.
INJUNCTIONS
The parties have agreed to wide ranging mutual injunctions which would provide for their separate personal protection.
I do not consider that I have jurisdiction to make an order of restraint in favour of third parties unless there is some close connection.
I propose to make orders in terms of paragraph 6 of the interim orders sought by the applicant redrafted to include the respondent.
SPOUSAL MAINTENANCE
By way of urgent or interim spousal maintenance the applicant seeks that the respondent pay to her the sum of $2,000 per week. The respondent offers $1,000 in addition to any government benefit or allowance and any income that she may receive from paid employment.
The respondent’s position is straightforward namely, that if the applicant establishes that she has a need in excess of $1,000 per week then he does not have the financial ability to pay more than his offer.
In the recent case of Hall & Hall (2016) 257 CLR 490 the High Court set out the appropriate approach in considering an application for interim spousal maintenance as follows:-
3.…The gateway to the operation of Pt VIII in relation to spousal maintenance is in s 72(1). That subsection provides that “[a] party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately … having regard to any relevant matter referred to in [s] 75(2)”.
4.The liability of a party to a marriage to maintain the other party that is imposed by s 72(1) is crystallised by the making of an order under s 74(1). That subsection provides that, “[i]n proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part”.
5.A court exercising the power conferred by s 74(1) is obliged by s 75(1) to take into account the matters referred to in s 75(2) and only those matters (s 75(1)). Those matters are presented as a comprehensive checklist. They include what s 75(2)(b) refers to as “the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment”. They also include, by virtue of s 75(2)(o), “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”.
As noted in Hall & Hall (supra), an applicant seeking orders for spousal maintenance carries the evidentiary burden as set out in s 140 of the Evidence Act 1995 (Cth).
The applicant has a capacity for employment and was in paid employment until her job was terminated in April 2020 due to COVID-19. She is in receipt of government benefits of approximately $1,400 per fortnight. The respondent does not agree with the applicant’s assertion that following the termination of her employment the respondent agreed to increase the weekly payment to her to $2,000.
The applicant now considers that the breakdown of the relationship requires her to focus on the children in order to minimise their distress arising from the separation of the parties.
The respondent questions the steps taken by the applicant to seek gainful employment and queries whether she is currently employed.
The conflict between the parties is such that the respondent challenges the applicant’s claim that she lacks confidence in seeking paid employment by reference to the applicant’s social media accounts and profile. It is regrettable that there is now almost a total absence of respect by each of the parties towards the other.
Notwithstanding the respondent’s misgivings as to the applicant’s capacity to re-engage in paid employment, he concedes that the gateway requirement is satisfied and is prepared to continue the current arrangement which is the payment of $1,000 per week. There is no explanation by the respondent as to the source of the funds other than it comes from the cash flow of the respondent’s business. It is assumed that any money paid to the applicant would not be a business expense and therefore likely to be reflected as a debit to the respondent’s loan account.
The issues to determine are therefore:-
(1)To what extent is the applicant unable to support herself as a result of having the care of children under the age of 18 years?;
(2)What are the applicant’s reasonable needs?;and
(3)What capacity does the respondent have to meet an order if it was to be made?
In Brown & Brown (2007) FLC 93-316 at [161] the Full Court summarised the principles to be applied as follows:-
•The word “adequately” is not to be determined according to any fixed or absolute standard;
•The idea that “adequate” means a subsistence level has been firmly rejected;
•Where possible both spouses should continue to live after separation at the level which they previously enjoyed if this is reasonable, although the parties standard of living may have to be lower if financial resources are insufficient to maintain that standard;
•In some circumstances it may be reasonable for the parties to live at a higher standard than previously enjoyed;
•It is not necessary for an applicant for maintenance to use up all capital in order to satisfy the requirements that he/she is unable to support himself/herself adequately;
•However, an applicant is not entitled to live at a level of considerable luxury or comfort merely because the other party is very wealthy.
The applicant sets out her financial circumstances in a Financial Statement filed 5 November 2020. Her total income including a Centrelink Family Allowance is in the sum of $1,100.
I am not told whether the Centrelink benefit is an entitlement which can be categorised as an income tested pension, allowance or benefit and if so then s 75(3) requires that I disregard that benefit when determining the applicant’s income.
The applicant describes the current payment made by the respondent as maintenance/child support for the benefit of the applicant and the children. The applicant has not filed an application seeking an assessment of child support and I assume that it is the preference of the parties not to do so.
On that basis I consider that I should include the expenses relating to the children.
The applicant sets out her fixed expenditure including rent, home and car insurance, private health insurance, car registration and credit card expenditure in the sum of $1,059.
The total of the applicant’s discretionary expenditure including children’s expenses are in the sum of $1,840. Accordingly, the applicant’s total expenditure is $2,899.
The applicant has credit card expenditure which she estimates to be in the sum of $220 per week in respect of outstanding credit card liabilities totalling $18,000. I am not told whether the payment sought by the applicant is the minimum payment or whether it represents ongoing expenditure.
The respondent challenges the applicant’s expenditure and contends that her expenditure is both unnecessary and extravagant.
At paragraph 21.6 of his affidavit filed 17 February 2021, the respondent challenges a number of Part N expenses, in particular in relation to the applicant’s personal grooming, gym membership and the employment contractors to undertake childminding, gardening and house cleaning. The total of the applicant’s expenditure for selected items is $38,000. The respondent does not contend that there should be no expense associated with the identified items of expenditure in paragraphs 21.6.1 to 21.6.9 inclusive, but rather, that the amounts are excessive.
The applicant counters the respondent’s assertion by highlighting what she considers is his lavish lifestyle, and in particular the following items of expenditure as appear in M Pty Ltd financial statements for the financial years ending 30 June 2019:-
(1)$19,871 on entertainment;
(2)$29,805 on general expenses;
(3)$615 on marketing;
(4)$43,875 on recreational activities;
(5)$40,595 on subscriptions;
(6)$4,115 on international travel; and
(7)$22,071 on national travel.
In particular, the applicant focuses on the respondent’s pastime in regards to his involvement with his recreational activity.
The applicant highlights that M Pty Ltd spent $57,800 on recreational expenses in 2018 and $50,931 in 2019.
The applicant considers that whilst the expenditure on the respondent’s hobby is brought to account as a marketing expense and therefore tax deductible, nonetheless it underpins her argument that the parties enjoyed a high standard of living.
The respondent acknowledges that he has had a long involvement in the recreational activity and contends that whilst the parties were together each of them enjoyed both the active and the social activities associated with the activity.
The financial circumstances of the parties is further compounded by the acknowledgement that other than the former matrimonial home situate at Suburb N, Suburb P (“the Suburb N property”), it is likely that the pool of property available for division between the parties is modest.
Whilst not a matter that is capable of determination on an interim basis, the likely focus of the proceedings for property settlement will be as to whether the respondent’s father, who is the registered proprietor of the Suburb N property and holds the legal interest, holds the property beneficially for the respondent.
At present, the respondent’s father has neither been served nor joined to the proceedings although it is likely that the applicant’s case would directly affect the third party interest in that if the applicant is successful in her claim, the Suburb N property would need to be sold.
I have not been presented with evidence that supports the items of expenditure as set out in Part N of the applicant’s financial statement, however, even if I applied an arbitrary notional reduction of 50 per cent in respect of the items of expenditure as highlighted by the respondent, this would only have the effect of reducing the total expenditure by $365 per week.
The respondent’s total income is in the sum of $3,670 with total personal expenditure including fixed and discretionary items totalling $3,326. That expenditure includes the current payment of $1,000 to the applicant.
Doing the best that I can I consider that a reasonable compromise in respect of the applicant’s total expenditure would nonetheless still be greater than the money currently paid by the respondent.
Whilst I appreciate that the recreational activity has been a significant feature in the social and financial fabric of the family prior to separation and continues to be a significant interest of the respondent post-separation, nonetheless given the difficult circumstances of the parties the respondent may need to cut his cloth to suit the financial requirements of the family.
I propose to increase the weekly payment to the applicant by $500 noting that this equates to an annualised figure of $26,000 which is approximately one half of the respondent’s total recreational expenditure.
LITIGATION FUNDING
The power to make an order for costs on an interim or final basis is set out in s 117 of the Act. This section provides that each party to proceedings under the Act should bear his or her own costs other than if the Court is of the opinion that there are circumstances that would justify the Court making an order as to costs.
The applicant seeks a lump sum payment on account of current and future legal costs in the sum of $60,000.
The applicant is still indebted to her former solicitors in the sum of $28,038.80 and given the status of the litigation, the applicant’s future legal fees are likely to equal and/or exceed the sum as sought following the payment of outstanding fees and charges to the applicant’s former solicitors.
Before an order can be made the Court must be satisfied as to the following:-
(1)That the application is genuine;
(2)That the circumstances which identify the power are apparent; and
(3)To weigh the identified need against the benefit of having only one exercise of a s 79 or s 117 power.
In the decision of Chester v Chester (1995) FLC 92-612 Moss J considered that the Family Court had the power to make an order of the type as sought regardless of how the order was characterised, but that it was important that the wife (or her present solicitors) attempt to assess the merits of her claim or its monetary ambit.
There has been no attempt made to consider the extent of the applicant’s anticipated legal fees.
I have regard to Part 19.5 of the Family Law Rules 2004 (Cth) that provides assistance as to the method of calculation of costs.
The respondent concedes that it is reasonable for both parties to have legal representation.
The complexity of the issues as between the parties is exacerbated by the likely involvement of the respondent’s father as a third party in respect of the status of the Suburb N property.
I have not been provided with an agreed balance sheet setting out the assets and liabilities of the parties. I consider that such an exercise should be a precursor to an application for either partial settlement of property or litigation funding.
The identification of the asset pool is made more complicated by the applicant seeking an injunction restraining the respondent from encumbering or in otherwise dealing with the interests that the parties have in the following properties:-
(1)B Street, D Town (“the B Street property”);
(2)Suburb N, Suburb P (“the Suburb N property”);
(3)F Street, G Town (“the F Street property”);
(4)H Street, Suburb J (“the Suburb J property”).
Of particular concern to the applicant is the involvement of Mr Q who now holds a mortgage on the Suburb N, B Street, R Town and Suburb J properties.
The respondent asserts that Mr Q was prepared to offer more favourable finance terms and accordingly nothing more occurred than a refinance of the outstanding total liability by Mr Q.
The applicant has misgivings as to the character of Mr Q and alleges that he is a member of or has connections with a criminal organisation.
The connection between the respondent and Mr Q is unclear, although it may be that Mr Q has been a longstanding client of the respondent.
In that regard, I note that the respondent has provided extensive discovery to the applicant including documents that go to the refinancing of the various properties.
Whilst I propose to make orders of injunction restraining further dealings with the properties other than the Suburb N property, I consider it premature to make an order for litigation funding. There is no point in making an order that cannot be enforced. Whilst I am sympathetic to the need that both parties should be represented, in particular where the respondent is a professional, more is required before an order can be made. I will adjourn the applicant’s application for litigation funding to a date to be fixed noting that more evidence is required before the Court would be in a position to consider a lump sum order and the method and manner by which such an order could be enforced.
I make orders as appear at the commencement of these reasons.
I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 17 March 2021
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Procedural Fairness
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