ERINGTON & ERINGTON

FAMILY COURT OF AUSTRALIA

ERINGTON & ERINGTON

[2017] FamCA 637

FAMILY LAW – PROPERTY – Where the matter was set down for final hearing but the indebtedness of the husband has made the entitlement to property unclear with actions pending from lenders and Australian Taxation Office – where the wife disputes the indebtedness but has filed vague evidence – where there are four properties which the parties agree have to be sold and it is likely that they will be subsumed by debt –final hearing about property converted to interlocutory hearing about asset liquidation.

FAMILY LAW – CHILDREN – where there is a modest dispute about the husband’s time with the one child of the marriage – where there was no reason for that to be adjourned regardless of the property matter – where the wife does not stay to participate – matter proceeds in wife’s absence.

FAMILY LAW – CHILD SUPPORT – Where wife brings a claim without supporting evidence.

FAMILY LAW – SPOUSAL MAINTENANCE – Where wife seeks annual lump sum payable monthly but provides no evidence that would enable an order to be made.

FAMILY LAW – LITIGATION FUNDING – Where wife again seeks litigation funding as she is unrepresented – no new evidence enables such an order to be made.

Bankruptcy Act 1966 (Cth)

Family Law Act 1975 (Cth)

U v U (2002) FLC 93-112

APPLICANT:

Mr Erington

RESPONDENT:

Ms Erington

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

9064

2015

DATE DELIVERED:

24 August 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

16 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Smallwood

SOLICITOR FOR THE APPLICANT:

Lander And Rogers

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Hebblewhite

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

The parents have equal shared parental responsibility for G (the child) born … 2005.
The child shall live with the wife save for the times set out in paragraph (3).
the child shall spend time with the husband as follows:
(a)On a fortnightly basis from the conclusion of school on Thursday until the commencement of school on the following Tuesday during term time commencing on Thursday 31 August 2017;
(b)For one half of all school term holidays by agreement and in default of agreement, for the first half;
(c)For one half of the long summer holidays by agreement and in default of agreement, from the conclusion of school on the last day of term until 5 pm on the day which is the midway point of the holidays excluding the period from 12 noon on 24 December until 12 noon on 26 December;
(d)From 12 noon on 24 December 2017 until 12 noon on 25 December 2017 and for a similar period in each alternate year thereafter;
(e)From 12 noon on 25 December 2018 until 12 noon on 26 December 2018 and for a similar period in each alternate year thereafter; and
(f)For such other periods as the parties agree.
Changeover shall occur at the child’s school. Changeovers on occasions outside of school times shall occur at a contact centre in default of agreement as to the appropriate place and further, failing agreement as to which contact centre, the Court appoints W Contact Centre.
The parents have liberty to present a more comprehensive parenting plan document to the registry for filing with these orders.
That pursuant to s 65Y(2) of the Family Law Act 1975, each party has permission to take the child from the Commonwealth of Australia and to travel with her internationally for periods when she is designated to be in that parent’s care under these orders.
For the purposes of any international travel, the wife shall retain the child’s passport and provide it to the husband upon him presenting to her an itinerary and evidence of return airline tickets.
Subject to any application(s) for costs, the order for the appointment of the Independent Children’s Lawyer is discharged.
That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) 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 those particulars are included in these orders.
That for the purposes of paragraph 11 of these orders, the husband, Mr Erington is appointed as the trustee for sale for each of the real properties there listed, unless the wife forthwith reaches agreement with the husband in writing otherwise.
Each of the parties forthwith place the following real properties on the market for sale:
(a)       X Street, Suburb Y;
(b)       AA Street, Suburb BB;
(c)       CC Street, Suburb DD;
(d)       EE Street, Suburb FF.
Forthwith, the husband, as trustee for sale of the real properties, may appoint estate agents and conveyancers and, for the purposes of giving effect to the sales, do all other acts and sign all other documents necessary.
To give effect to paragraphs 11 and 12, if the wife refuses or declines to sign any necessary document to give effect to the sale, then pursuant to s 106A of the Family Law Act 1975 (Cth), the husband may sign such document in the name of the wife to give effect to the sale.
By injunction and pursuant to the provisions of s 114 of the Family Law Act 1975 (Cth), the wife is required to vacate the real property at AA Street, Suburb BB by no later than 6 October 2017.
Pending the wife’s obligation to vacate the Suburb BB property, she shall permit the appointed agent access to the property for the purposes of:
(a)An inspection to enable the listing of the property for sale; and
(b)Showing prospective buyers through the property if the agent so reasonably requests.
Upon the settlement of the sale of each of the real properties referred to in paragraph 11 (and each sale as it settles) the proceeds of sale shall be applied as follows:
(a)To meet the costs and expenses of the sales including any legal costs associated with those sales;
(b)To discharge the mortgage and other obligations thereunder to National Australia Bank Ltd;
(c)To discharge the mortgage and other obligations thereunder to Australia and New Zealand Banking Group Ltd; and
(d)To pay the balance of the proceeds (if any) into a trust account in the joint names of the parties pending further order.
That paragraphs 15 to 26 of the husband’s further amended application initiating proceedings filed 12 May 2017and paragraphs 1 to 3 of the wife’s response filed 30 May 2017 be adjourned to a date to be fixed after the sale of the real properties referred to in these orders for final hearing to be relisted at the request of either party.
That both parties have liberty to apply on short notice in respect of paragraphs 10 to 15 of these orders.
By Consent of Ms GG, any caveats lodged by her over the real properties of the parties shall forthwith be withdrawn and there be no order as to costs as against her.
There be general liberty to apply in respect of property matters.
That all extant property applications are otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Erington & Erington has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9064 of 2015

Mr Erington

Applicant

And

Ms Erington

Respondent

REASONS FOR JUDGMENT

Mr Erington (“the husband”) and Ms Erington (“the wife”) require the court to resolve both parenting and property issues.
The litigation between the parties has been difficult to contain with each making allegations of lack of candour about disclosure of documents as well as honesty.
To understand the context of the orders that commence these reasons, it is necessary to traverse the background.

The Background

The husband is a businessman who operates through a series of entities.
The wife operates a business and what the husband also asserts is a second business and in respect of the former, it is said that it is conducted through a corporate entity. For her part however, the wife describes herself as a “stay at home mother”.
Until their separation, there was a synergy between the parties’ business activities. Each now has no trust in the truthfulness of the other and asserts that proper discovery of documents and information has not been undertaken. It is the wife’s case that the husband orchestrated the exclusion of her from the business arrangements; the husband describes what could only be a significant decline in the financial position of the business. From the husband’s perspective, he has made discovery but then accuses the wife of failing to produce documents. As indicated, the husband asserts that the wife conducts a business which the wife makes no mention of in her affidavit material. I am not in a position to determine that matter nor do I need to do so immediately. I am only proposing to make interim property orders as on the evidence, there appears to be little or no property to which s 79 of the Family Law Act 1975 (Cth) (“the Act”) applies.
The child of the parties’ relationship is G who is now 11 years old. She is the focus of the parties’ parenting dispute. Her interests were subject to the advocacy of an Independent Children’s Lawyer. No reason was advanced why that issue should not be finalised.
The husband and the wife married in 1997 at which time, the wife had a daughter who is now an adult. That daughter had been a member of the household throughout the marriage. The parties married but that came to an end somewhere between 2010 and 2012 from the wife’s perspective, and in 2014, from the husband’s perspective. The circumstances of the ending of that relationship are not relevant to this determination.

Court hearings and representation

Since 2015, the parties have litigated in this court. At times, the wife was represented by lawyers but in the more recent hearings, she has represented herself. It seems that there has been about 12 hearings in the space of two years. The wife argued that she had no resources to fund lawyers and indeed, as part of what the court is currently determining, she has an extant litigation funding.
It is also unnecessary for the purposes of the present orders to detail much about the interlocutory hearings save for those to which I turn.
On 20 December 2016, I set a directions hearing for 1 February 2017 for the purposes of listing the dispute for trial in either April or May of 2017. That specific intention was made clear in the court’s order.
At the February 2017 hearing, it was abundantly clear that there were interlocutory issues outstanding that needed a resolution for the matter to be able to proceed to a final trial even though the proceedings by that stage were two years old. Accordingly, I set 24 March 2017 for those issues to be heard.
On 24 March 2017 I dealt with some subpoena issues and, as there were objections to the release of various documents supplied under subpoena, I had to set another hearing for 1 June 2017. I also directed that the June hearing be used to set trial directions for what was originally intended to be a final hearing.
By way of disclosure and discovery, I ordered the wife to provide to the husband a list of documents she wanted to inspect and for him to provide them within 21 days thereafter. Each of the husband and wife was ordered to file amended documents to set out with precision what final orders they were seeking.
In respect of the proposed court orders, the husband filed an amended application on 12 May 2017. It sought a raft of orders.
In respect of parenting matters, the husband sought that the parties have equal shared parental responsibility for the child but that the child live with the wife. He sought that the child spend time with him during school term from after school on Thursday until the commencement of school on Monday in the first of two weeks and in the second, from Thursday after school until the commencement of school on Friday morning save for certain circumstances that are no longer relevant. He then sought an order for a sharing of the school holidays on an equal basis including the long summer holidays and then a variety of special days.
The husband sought a variety of orders relating to the entitlement of both parents to attend school events, certain sporting events, and the exchange of information. In relation to travel, the husband sought a specific order that each of the parties be at liberty to travel outside of Victoria when the child was in their care. It is not clear why that order is necessary. In respect of international travel, he sought an order that each be at liberty to take the child overseas if a full itinerary and proof of return airfares was provided.
In respect of property orders, the husband sought the sale of real properties and that the wife be restrained from making any claim or proving any indebtedness in relation to an arrangement that the husband was proposing under Part X of the Bankruptcy Act 1966 (Cth). He then proposed that the wife retain her interest in a property at EE Street, Suburb FF and she retain a variety of things such as the motor car in her possession and various chattels. He sought a specific order that she retain (in other words that there be no alteration of any interest in) the business known as HH Pty Ltd.
In return, he sought that he retain the various corporate entities that he had been operating.
In respect of the property orders he proposed, much will now depend upon what approach the husband’s creditors take as to whether there is anything left to divide.
The wife filed an amended response on 30 May 2017 and in the same way, her proposed orders can be summarised.
She sought orders that she be excused from particularising what she wanted by final property settlement until disclosure had been completed. She sought an order that the husband resign from his employment and that his “false statement” be referred to the “Department of Public Prosecutions”.
It will be self-evident that the wife does not have a clear proposal for the alteration of property interests and the order relating to the husband resigning from his employment could only be seen as an injunctive order rather than one that alters interests. It will also be self-evident that the course she embarked upon was entirely dependent upon discovery. As at this present hearing, from the perspective of the wife, discovery was still incomplete. The husband denies that is the case.
In relation to parenting orders, the wife sought that she have sole parental responsibility for the child and she agreed with the husband that the child should live with her. She sought that the husband spend time with the child from after school on Friday until the commencement of school on Monday morning in each alternate week. The dispute between the parents in relation to the husband’s time with the child is modest.
She sought orders that the husband facilitate the child’s various activities and that otherwise holidays be shared. I shall return to the more difficult question of what all of that means when I deal with the parenting issue below.
Finally, the wife sought that the husband pay child support in the amount of $2000 per week. It seems that there is a child support assessment in this case but as no details were provided, it is impossible for the court to exercise any jurisdiction in that area nor understand what it was that gave rise to the application.
The wife also sought a spousal maintenance order be fixed in the sum of $100,000 per year and that claim has been repeated in the interim orders she sought for the purposes of the present determination.
As the final determination of the financial issues was clearly not in a position to proceed, those various proposed final orders will be dealt with on a future date. However, because there was a parenting dispute, and because it seemed modest by comparison to the financial dispute, that proceeded.

The hearing on 1 June 2017

On 1 June 2017, a subpoena issued by the wife to S Pty Ltd including the payment of their costs was resolved and as the wife had an application before the court seeking a variety of orders, I reserved judgment and delivered reasons on 8 June 2017.
Importantly, I set the parties’ respective applications down for final hearing on 14 August 2017 including the property matters and required each of them to file their trial evidence by affidavit. In the husband’s case, he was to file by 4 August and the wife, by 8 August. The husband complied but the wife did not.

The background to the financial dispute

Until August 2017, the wife represented herself. A mention hearing was fixed for 9 August 2017 because the wife had not filed any material. At that hearing, the wife was represented by a solicitor Mr II. The hearing fleshed out that there were three important issues outstanding. The first was that the final property issues could not proceed because there were creditors hovering who could bring the proceedings to an end including by bankrupting the husband. Although the wife seems to dispute the indebtedness and the urgency, for the reasons that follow, that is not an immediate concern. One significant creditor is the Australian Taxation Office. It has a judgment debt against the husband of over $700,000 and I am satisfied that the Commissioner is pressing for a resolution. The husband is endeavouring to stave off bankruptcy and indeed seems to concede that he has been stalling his creditors. But, the Commissioner will move to end that jockeying by the end of August 2017 unless there is a resolution. Thus, clarification of indebtedness and payment is critical.
At the hearing on 9 August, it was agreed by both solicitors that the best approach for the hearing on 16 August was as an interlocutory hearing but that the parenting matter could proceed on a final basis. A Court-appointed Independent Children’s Lawyer agreed. However, even that approach required attention from the wife by the provision of some evidence bearing in mind that the only evidence before the court was that of the husband.
The husband’s position was that the ultimate evidence would show that there was no equity in assets (as distinct from the existence of assets themselves) but that there was nothing to divide. Thus, it was put that orders of an interlocutory nature for the sale of real property would clarify the dispute and that any property thereafter could be dealt with at a further final hearing.
As it now transpires, the wife’s then unclear position was clarified because she ultimately agreed to the relevant sales of all of the real properties but the dispute lay in implementing orders.
The second of the three issues, but critical to the first, was for the wife to have legal representation. The wife’s solicitor wanted an opportunity to seek litigation funding and I indicated that such an issue could be heard at the same time as the first issue because it too was of an interlocutory nature. However, the wife had to file proper material to do so. I was conscious that she had previously been unsuccessful in such an application as can be seen from the reasons published on 8 June 2017 at a time when she was without legal representation.
The third of the issues related to the parenting question about the child. Underlying the wife’s position about the child was a statement that there was little point in increasing the husband’s time when he could not carry out the obligations that he already then had. The wife does not suggest there was not a good relationship between the husband and the child nor that he was not spending time with her. The husband’s position was to deny the wife’s assertion and it would now seem on the evidence, at least during the present winter snow season, the husband has had a major role in getting the child to those activities and that the times have been beyond what had been ordered.

There could be no argument that on 9 August 2017, the parties knew that the three issues were to be determined with the third issue to be dealt with on a final basis. Indeed, as an indication of all of that, the order showed that the otherwise final trial date fixed for 16 August 2017 was vacated.
On the day prior to the hearing of 16 August, the wife’s solicitor filed a Notice of Ceasing to Act and the wife again appeared unrepresented. She expressed surprise that her solicitor had taken the course that he did but she acknowledged that she could not fund his costs.

The hearing on 16 August

The hearing began with counsel for the Independent Children’s Lawyer stating that the parenting issue was close to resolution but proposals needed to be read, considered and discussed. The day ended with the wife leaving the courtroom stating she could not participate any longer. That was unfortunate because counsel for the Independent Children’s Lawyer submitted that the parties were very close to a resolution on the parenting issue and he seemed confident that it could be concluded. The wife could not be drawn into remaining and neither the husband nor the Independent Children’s Lawyer suggested there was any other course than to proceed in the wife’s absence. As I had no indication as to whether she would return or how she would participate, and as the hearing had reached the stage it had, it was appropriate to conclude that. By that point, the hearing in relation to the financial matters earlier mentioned had already been concluded.
To make clear, I have read the wife’s affidavit and the response she filed in May 2017 which to some extent was altered by her application filed on the morning of 16 August. She had provided an unsealed and unfiled copy to the solicitors earlier in the morning.
In respect of parenting matters, the wife’s application read:
Parenting arrangements for (the child) remain pursuant to current court orders made (1 September 2016).
Thus, combined with her affidavit and what the Independent Children’s Lawyer said, the court was aware of the wife’s position.
In the circumstances, I took the view that the parenting matters needed a resolution. In my view, there was sufficient information before the court to make a proper determination.

The morning of 16 August

As the hearing began, the wife said she had prepared an application in a case and an affidavit as had been foreshadowed on 9 August 2017 albeit one would have expected the documents to be filed much earlier because that had been a subject of discussion about the tight timeframes. The affidavit unfortunately was a jumble of papers. The annexures were either out of order, wrongly identified or missing. The affidavit itself was signed by the person before whom the wife was said to have sworn it but she had not signed any of the pages including the jurat. However, it was common ground that at least one copy in the hands of the husband was fully signed and accordingly, I treated the document as the wife’s evidence.
The wife explained having rushed the collation of pages and I gave her an opportunity to rectify any logistical problems. However, at the end of the day, when she left the courtroom, she simply left the affidavit on the bar table. I have therefore done the best I could with the material she provided and I make reference to it below.
The husband sought a sale of real property and, so did the wife. There was unusual agreement that all four properties be sold. Thus, identifying the dispute shows that there are only two matters to be determined:
(a)whether the property should be auctioned or whether purposed contracts provided by the wife which contain set values, should be used (notwithstanding the settlement dates had both passed). If the husband’s position about auctions should be the case, his argument was that the most efficacious way of the orders being implemented was him to be appointed as the trustee for sale. The wife opposed that but when ultimately pressed, said that she would prefer that she was in that position; and
(b)what should be done with the wife’s applications for “spousal and child maintenance” and litigation funding.
Another order that the wife sought was that she be appointed Manager of two companies that the husband uses to trade in his business. These issues can be dealt with at the final trial even though the wife’s position seemed to be that if she had such control, she could support herself. Her argument did not cover issues about the power of the court to make such an order, what the order actually meant, and whether the investor or investors in the business or indeed the co-owners of the business (if that is what they are) would need to be consulted. The wife’s premise was that she could run the business so the court should make the order. I do not consider it would be proper or just and convenient (using the language of s 114(1) and s 114(3) of the Act) to make such orders without contemplating the views of the third parties.
On the same theme, the husband sought orders for the removal of caveats lodged on behalf of a Ms GG who has lent the wife significant sums of money and for which, the wife has executed a charge over two real properties.
Counsel appeared for Ms GG and agreed that orders could be made that Ms GG withdraw the caveats on the basis that there would be no order for costs. Counsel for the husband agreed with that approach. That agreement does not mean that Ms GG cannot renew her claim for recovery of her money against the wife at a later time.
The affidavits upon which the parties relied for at least the interlocutory financial issues were not able to be tested by cross-examination. Indeed, there was little need to do so in respect of the wife’s pursuit of litigation funding and maintenance because each of those can be dealt with on the material she provided.

The husband’s evidence

Before dealing with what the husband said, it is important to note that on 1 June 2017, the husband filed an affidavit by Mr R who is a partner in the legal firm of JJ Lawyers. Mr R deposed to having responsibility for the “commercial, insolvency and restructuring advice” required by the entities that had previously conducted the husband’s business. He said that he had negotiated with the solicitors for the ANZ Bank but he also said that he was aware that the Australian Taxation Office had sought $748,299.51 from the husband. He had negotiated with the Commissioner to explore the possibility of a commercial settlement and whilst his approach was rebuffed, he said the Commissioner had indicated that the Taxation Office might be open to cooperating with a proposal under Part X of the Bankruptcy Act by which unsecured creditors would be treated equally. Mr R opined that the determination of the husband’s application was required at the earliest opportunity because of the pressing nature of the creditors and the opportunity to reach some agreement. I have no reason to reject the evidence of Mr R.
The husband’s evidence was that the financial years 2014 and 2015 showed the business performing poorly and he set out the losses that were incurred in those years. In addition, he said that there were significant debts in the bailment facilities which financed floor plans as well as the usual commitments associated with a business. The wife has a very different view of the bailment arrangement.
The husband’s unchallenged evidence is that the security for the floorplan facilities as well as the commercial real property borrowings required personal guarantees from him as well as security over the assets of the relevant companies and trusts. He said that the personal guarantee and indemnity to the ANZ Bank was given in December 2013. That is almost four years ago.
The husband deposed that the ANZ Bank required a second mortgage over the real properties. The title search to at least one of those properties confirms that the ANZ Bank has such a mortgage. The wife was not included in respect of any personal guarantee either in her own right or as a director.
The Suburb BB property which was registered in the joint names of the parties did fall under the eye of the ANZ Bank who required a limited personal guarantee from the wife and she gave it.
By 2015, the net was closing from the ANZ Bank. According to the husband, the ANZ Bank agreed to refrain from exercising its rights under the facilities to enable him to refinance the business loan arrangements. That required the sale of the former matrimonial home and the court heard and determined another controversy.
By 2016, the ANZ Bank was serving demands on the trading entities. That too brought about more litigation.
To the extent that it is said that none of the financial issues have been independently scrutinised, the court was provided with evidence by the husband that Mr K of KK Accountants was appointed by both parties to provide an independent assessment to the court in March 2016. That was undertaken. At the hearing in 2016, the wife was represented by senior counsel who had the benefit of Mr K’s report. Orders then were made. A restructuring of the businesses was then implemented and although the position of the wife is confusing, there is no reason for me to doubt the husband’s description of what then occurred. After the assignment of leases, the wife and the husband acquired a 49 per cent interest in the same business that they had previously held an 85 per cent interest albeit in a different structure.
The debt position apparently did not improve. The ANZ Bank then served a further demand and a default notice. The ANZ Bank loan facilities at that stage were over $9 million and a demand for immediate payment was made because of the default.
In November 2016, the Taxation Commissioner issued proceedings. The Commissioner sought to recover against the husband personally because he was a director of the former entity but also in control of the trustee of the family trust.
There is no reason for me to doubt that with the creditors circling and Mr R advising the husband, the Part X arrangement is the only prospect open to the husband to avoid bankruptcy. The wife argues the contrary but there is no cogent evidence to support such an assertion.
The values of the various properties seem not to be disputed but the indebtedness is quite alarming having regard to the nature of what the parties appear to own. There is no evidence as to the value of the entities. It seems that these are the entities that the wife seeks to have orders made that would give her management control.
The three properties at Suburb Y, CC Street, Suburb DD and Suburb BB are all encumbered and it is argued by the husband there is little prospect of any equity arising from their sales. Even if something happens to create such an equity, it would have to be significant to meet the shortfall arising from the ANZ Bank claim let alone the Tax Office.
Before dealing with the question of who should be appointed as the trustee for sale, it is important to consider the evidence of the wife. Bearing in mind that this affidavit was handed to the court as a jumble of papers, I have endeavoured to draw statements therefrom.
The wife said that in December 2012, the Suburb F property which relates to one of the business enterprises was acquired for $5.578 million and there were improvements undertaken for $3.8 million. Early in the following year, the Suburb E premises were acquired for $1.297 million. Later in 2013, what was then owned at Suburb BB was sold for $900,000 and the proceeds injected into the business accounts.
Shortly after that time, on the husband’s version, the relationship with the wife came to an end. The wife maintained that her entitlements from the business were terminated and she then contacted the ANZ Bank and withdrew her name from the joint account causing it to be closed. She contacted the Fair Work Commission who presumably rejected any involvement on the basis that they saw it as a family law matter. It would be hard to envisage the wife as an employee when she was very much a party to the commercial arrangements.
At [47] of her affidavit, the wife said that she had been provided with contradicting affidavits and material from the husband. I do not know what that means but she said that a “mushroom effect” was “orchestrated” all of which was said to be “mapped out” by his extensive legal and accounting team. Even if that was so, the only evidence I have particularly from Mr R is that the position is dire. The wife went on to say:
This family court proceeding was presented to the court by the Husband in a way to deflect the courts attention from the true facts by overshadowing the real issues by the threat of Receivers and liquidators. The Husbands threats of Receivers has been his main tool to obtain Orders in his favour.
Whilst that emotive statement may ultimately prove to be correct, nothing I have read through any of the documents has indicated there is a foundation for such an assertion. For example, attached to her affidavit was what appears to be a PowerPoint presentation but I am not sure what conclusion can be drawn from it. Whether it was fanciful, boastful or just completely untrue, the reality seems to be that the creditors are pressing. If the wife establishes that this is all a ruse, not only will she have been defrauded but also the court would have been misled as would have been the main creditors to whom I have already referred. I appreciate very much that it is the wife who maintains that she has not been provided with adequate discovery but I am perplexed to understand what it is that could now be provided that will resolve the problem she maintains exists.
Over various paragraphs in her affidavit, the wife set out the various court hearings and even if she is correct that they were a deliberate attempt to defeat any claim that she made, there is still no evidence as to what happened to all of this money that she said existed. I point specifically to the unchallenged evidence that Mr K of KK Accountants did a report which was provided to the solicitors for the wife. The court can only operate on the evidence that it is provided.
It seems to be suggested at [51] of the wife’s affidavit that the ANZ Bank money is owed by a Mr I rather than the husband. He is not a party to the proceedings and during the discussion in this hearing, I indicated that if the wife was suggesting that Mr I was somehow or other the beneficiary of assets whilst the husband was the recipient of huge debts, she could make the necessary application to set those transactions aside if she could establish that they were undertaken to defeat her claim. At the moment, all the court has is assertions.
In her affidavit, the wife also makes reference to a person by the name of Mr H whom she described as a “personal guarantor” for $4.8 million. She said Mr H was released from the guarantee and reference is made to a settlement deed. She said she had made numerous requests of disclosure to the husband but she had no idea where the proceeds of the “good will” were deposited. It is not clear to me what she means by the proceeds of “good will”. Goodwill is normally reflected as an asset in the balance sheet so her statement is confusing. Mr K should have addressed that issue.
The wife makes reference in her affidavit to monies lent to her by Ms GG and her own mother. I have no doubt she has received substantial assistance from these people but just how that fits amongst the creditors, is for another day. Those people are not parties to the proceedings.
In respect of the indebtedness claim by the husband, the wife at [68] said this:
The Husband claims financial dire straights (sic) which will be proven 100% otherwise in trial.
To give support for what she asserted, the wife attached a letter from the husband regarding an overseas holiday but just whose money that was and whether he was somehow evading creditors, I am unable to discern from the wife’s affidavit. She obviously has in mind some evidence that will show the contrary position to that portrayed by the husband. As I am not determining the issue of a final property settlement today, that matter can no doubt wait for trial.
In respect of the debt claimed by the husband as being due to the Australian Taxation Office, the wife said that she had attended a meeting with LL Accountants whom she described as acting on behalf of the Taxation Commissioner regarding her own claim as a creditor. Just where her claim fits in, I am unable to say. She said that LL Accountants have stated in a letter she attached to her affidavit that the husband’s claims were untrue. I do not read the letter that way.
Thus, the evidence of the wife does little to assist me in trying to work out just what the total indebtedness position is but it does not deny the existence of the indebtedness. If indeed the wife is correct that the husband has portrayed a position which is untrue, no doubt that can be reviewed in any final property settlement.

The husband’s concern about the sales of the properties

The values of the various properties seem not to be very much disputed and in any event, the wife concedes they should be sold. In so far as the husband sought to be responsible for the efficacious sale, he pointed to:
·    The wife had previously lodged a caveat and when the sale of the former matrimonial home occurred, the husband had to force the position through court orders to have that removed. He said she endeavoured to negotiate a part payment of a claim for property settlement and that ultimately MacMillan J made orders by consent for the caveat to be withdrawn;
·    A similar problem occurred requiring a hearing in November 2015 because notwithstanding the orders made in September 2015, the caveat withdrawal was not provided;
·    Further proceedings were heard by Thornton J to facilitate the settlement of the sale of the former matrimonial home and then there were orders requiring the wife to deliver up a motor vehicle but on the condition that she received another motor vehicle in replacement;
·    There were further proceedings in December 2015 after the wife attended the businesses and caused what the husband described as a disruption to his business. Whether there was a disruption or her conduct was unnecessary, the parties were back in court and ultimately obtained an agreement which resulted in a consent order for what was to happen to the balance of the proceeds of the sale of the home and the prestige motor car, but that was on the basis that the husband continued to use the wife’s business to undertake work for his businesses;
·    Notwithstanding the order for the delivery up of the prestige car, the wife failed to deliver it;
·    In December 2015, the wife took some stock from the husband’s business and orders were required for the return of that stock and some was returned incomplete;
·    Orders were made that the wife not attend at the business premises;
·    In August 2016, the parties were before Johns J who required the wife to remove a caveat over real properties to enable the settlement that I have earlier referred to with Mr I to proceed.
The history of this litigation is complex and much of what seems to have happened has been the wife taking matters into her own hands. Whilst she has accused the court of doing nothing about some of these problems, the court can only deal with the evidence it is provided.
There is now an agreement that the Suburb BB property is to be sold but I agree with the husband that it is difficult to see the wife being cooperative in respect of any sale as she uses that property as her residence. In my view, it is appropriate for her to have an opportunity to find alternative accommodation and six weeks should be sufficient for that to occur. That is particularly so where at least one of the properties that she owns and which the husband did not initially intend to be included in the sales, appears to be vacant. The wife says that that property can be sold and the proceeds will be caught by the indebtedness of the parties. If there is money left over, that can be held on trust pending the final determination of the dispute.

As the evidence of Mr R suggests that the husband has some prospect of a resolution of all of the problems through a Part X application, it seems logical that he should be given an opportunity to undertake that for two reasons. First, there is a prospect that the indebtedness although disputed by the wife, may be reduced or dealt with in a more orderly fashion through such an arrangement. Indeed, creditors may be paid. The second is that such an arrangement would allow the husband to continue to trade and therefore for the purposes of a property settlement, it may be that he has access to property that can be divided between the parties later in the year.
I have little confidence that the wife will not take the matters into her own hand as she has done in the past for the reasons I have set out. Leaving the court as she did gives me little confidence that she will participate and cooperate in an ordered sale of properties that she has agreed need to be sold. The husband will be appointed under the orders I now make as a trustee for sale so all of his actions will be subject to scrutiny. The Sword of Damocles is hovering over his head.
Accordingly, I see no choice other than to permit the husband to have control of the sales and to direct that the wife vacate the Suburb BB property in six weeks from now during which time, to the extent that an agent needs access to the property for the purposes of any proposed sale, the wife is required to cooperate.
The husband sought a number of orders in his proposed orders dated 15 August 2017. They need to be addressed sequentially.
A number of caveats have been lodged. To the extent that they have been lodged by or on behalf of Ms GG, those were resolved by agreement as earlier indicated.
If there are other caveats lodged by or on behalf of the wife, those matters will have to be dealt with under the liberty to apply clause I shall provide. The wife can no longer have any basis for retaining a claim for some form of legal or equitable interest in the properties to be sold.
The husband also sought an order that the wife deliver up vacant possession of the Suburb BB property. The wife seemed to resist that on the basis that she would have to move somewhere else with the child. But that was going to happen anyway under the sales. To the extent that she anticipated that she would have some control over the sale of Suburb BB and/or negotiate a private arrangement with a purchaser from whom should could rent back, the balance of convenience favours the husband having regard to the pressure being applied to the husband from the secured creditors.
The husband initially sought that the wife vacate within 14 days of him signing the relevant sale authorities engaging agents. In my view, the urgency is not that great having regard to the probable settlement times. That said, if there is active interest and an agent has prospective buyers, I will require the wife to make the property available for inspection pending her vacating.
The husband also sought an order that the wife be restrained from
making any claim upon or proving any indebtedness or seeking any dividend from the Husband’s Part X arrangement.
Whilst this specific application may be premature because it is not clear when the husband will have the opportunity to enter such an arrangement, the question of the Court’s power to restrict a legitimate claimant is doubtful.
An agreement within Part X of the Bankruptcy Act 1966 (Cth) is called a personal insolvency agreement. S 187 of that Act provides that a provable debt:
(s)hall be read as a reference to a debt or liability that would have been a provable debt in the debtor's bankruptcy if the debtor had become a bankrupt on the day on which he or she executed the personal insolvency agreement.
“Provable debt” is defined as a debt or liability under the Bankruptcy Act which is provable in bankruptcy.
Section 82 of the Bankruptcy Act identifies those debts which are provable. They relevantly include (and here for ease of convenience, I paraphrase):
·all debts and liabilities to which a bankrupt was subject at the date of the bankruptcy;
The same provision sets out debts which are not provable are those demands in the nature of unliquidated damages arising otherwise than by reason of a contract, promise or breach of trust (my emphasis)
The word “liability” is also defined by the section.
It is difficult to know what the husband anticipates of the wife. Her affidavit does not give much of an indication but her application for interim orders seeks:
[2]Paragraph 8 of orders made on 4 November 2015 for the husband to forthwith cause payment to [V] Pty Ltd of all outstanding invoices owed by [B] Pty Ltd and [C] Pty Ltd.
Paragraph 8 of the orders however does not assist the wife. It required the husband to cause the relevant debtor company to pay the invoices rendered to it by V Pty. Ltd. Absent some personal guarantee which is not apparent and would seem unlikely, as the husband was required to cause the company to do something, the debt is not a provable debt within the meaning of s 82 of the Bankruptcy Act.
I have made reference and underlined the interim order sought by the wife because I am leaving open the possibility that her claim for a property settlement does have substance. However, it is hard to understand how she could bring a claim against the husband on the basis pleaded. To the extent that she has a claim to property, she can bring that in this Court if she can establish there is property to divide.
The wife also sought an interim order ([8]) that she be paid $180,000 as “compensation offered and agreed by the husband for the loss of income generated by [V] Pty Ltd”. This claim too could not apparently be made against the husband as a provable debt in bankruptcy and therefore, it is difficult to see where it fits with his approach to a personal insolvency agreement.
All of this leads back to the question of the power of the Court to make an injunction of the nature sought by the husband. The power could only lie in s 114 of the Act.
Section 114 (1) permits the court to make such order as it considers proper with respect to the matter to which the property proceedings relate. The power includes the possibility of making an order “in relation to” property “of a party”. Here, the property which the wife seems to be endeavouring to attach belongs to a corporate entity. My understanding of the evidence of the husband which the wife disputes is that the relevant entity is either not trading or has been placed in receivership or liquidated.
Section 114 (3) provides that when the court is exercising jurisdiction outside of s 114(1), it may grant an injunction “in any case in which it appears to the court to be just and convenient to do so”.
Specific power is granted to the court by s 114(6) if a party to a marriage is a debtor subject to a personal insolvency agreement, on the application of the other party to the marriage, to grant an injunction under subsection (3) to restrain the trustee of the agreement from disposing of property subject to the agreement. Here, the husband is not such a debtor at the moment so the provision does not apply but the inclusion of the provision indicates the legislature contemplated the need for the court to control trustees who effectively took the place of a party to a marriage involved in proceedings in this court. The exercise of the power could only arise after the husband took the relevant step and in circumstances where the wife considered she had been prejudiced by action of a trustee. The logic behind such a provision must be to prevent (as unnecessary) the wife taking the step that the husband seems to fear in seeking the injunction he has.
Thus, I am not satisfied that there is a provable debt such as require the court to exercise its protective powers here. As such, it would not be proper to make an order under s 114(3). If the problem otherwise mentioned arises, the wife can make the appropriate application.

Parenting matters

Despite the numerous hearings since the parties’ litigation commenced in September 2015, there have been few parenting orders and all of those have arisen from agreement between the parties. The issue of parental responsibility does not appear to have been addressed.
On 4 November 2015, Thornton J made orders at the request of the parties that provided for the husband’s time with the child. There was obviously some uncertainty between the parties about what should be the future arrangement because they also agreed that they would attend upon psychologist Mr U for the preparation of “a Family Report”.
The contact order was then discharged two months later and replaced with an arrangement that the parties again organised by consent. It provided that the husband spend time with the child from after school on Friday until the commencement of school on Monday morning in each alternate week. That continued throughout 2016 other than two important extensions occurred. First, the parties agreed on the sharing equally of the school holidays and secondly, some specific time in a snow resort during September 2016. Those arrangements were agreed between the parties.

The proposed orders

I have already set out at [24] the orders the wife sought. It was most unfortunate that for whatever reason, the wife did not stay to resolve what counsel for the Independent Children’s Lawyer described as resolvable.

The position of the Independent Children’s Lawyer

A long list of unnumbered paragraphs in a proposed order was provided by the Independent Children’s Lawyer. Essentially, it began with the parties having equal shared parental responsibility, the child living with the wife and the child spending time with the husband from Thursday through to Monday. There were then proposed orders in relation to sporting events, school holidays and then special occasions.
The bulk of the orders proposed by the Independent Children’s Lawyer were more of the nature of matters that related to the sharing of information and making compromises such as each parent attending events. There were two issues outside of that that need addressing. The first is that an order was sought that each parent be able to travel outside of the Commonwealth during periods when the child was in their respective care. Secondly, an order was sought by the Independent Children’s Lawyer that each parent be restrained from denigrating, belittling, criticising or abusing the other parent in the presence of hearing of the child or permitting any other person to do so.
Because of the absence of the wife, those two issues also need attention as they could only be made on the basis of evidence if there was no consent from the husband.

The husband’s position

Largely, the husband agreed with the Independent Children’s Lawyer save that he wanted five nights per fortnight from Thursday through to the Tuesday in a block period and for this arrangement to commence on Thursday 24 August 2017.

The evidence

Relevantly, the husband said that he had not had any communication with the wife since April 2016 when she obtained an intervention order. He then set out how that order came about and made reference to the fact that although the child was initially included in the order, on appeal to the County Court in October 2016, she was removed.
The final order was made with the husband’s consent although without admissions and when I turn to the evidence of the wife, it will be seen that because of the absence of evidence that would satisfy s 60CC(3)(k), or at least any evidence of substance, inferences cannot be drawn insofar as they may affect a parenting order.
The Department of Health and Human Services (Victoria) were involved with this family and in September 2016, reported that there were no child protection concerns relating to the child. The husband also referred to a report dated 18 December 2015 from psychologist Mr U who noted there was a strong bond between the husband and the child.
The husband acknowledged the closeness of the relationship between the wife and the child. Unfortunately, it would appear that the conflict between the husband and the wife has often occurred in front of the child. For example, at the child’s school in 2016 when the husband collected her, an unseemly incident occurred that the husband inferred arose out of the parties’ financial dispute but in the presence of the child and school staff. He described the wife “was highly agitated and screamed” demanding that the staff call the police because of the intervention order. It does not take much imagination to understand that the child, then aged 10 years, was anxious.
There does not seem to be any dispute that the husband has cared for the child during holiday periods nor is there any suggestion that the husband cannot meet her emotional and physical needs. He set out in his affidavit the facilities he has available for the child and his intentions in relation to renting accommodation as the property he currently lives in will be sold.

The wife’s evidence

In her affidavit, the wife made reference to an incident reported by the child in 2010 that resulted in the child attending the NN Centre.
The wife annexed to her affidavit some “notes” from the MM Hospital, NN Centre from that period. It seems that the concern related to the fact that the child was said to have witnessed sexual acts between adults but the social worker recommended that the family sit down together to discuss the issues. In hindsight, that was a forlorn hope.
By May 2012 and after five sessions with the child, the NN Centre wrote that the child had little memory of why she had begun counselling there and even when a leading question was put to her, the child denied that was the purpose of her visit. The writer turned to the question of the nature of the relationship between the child and the husband and the child was complimentary of what occurred at her father’s home.
To the extent that the evidence was provided by the wife, it clearly indicates that the child has no adverse recollection of whatever occurred in the first place. The relevance therefore of all of those matters is unclear but would indicate that seven years after the event, the wife still sees them as important. Absent some other evidence, they can have no bearing on the determination. It is important to also observe that the husband denied having done the things that were apparently originally suggested he did. Six years on, the matter has no relevance.
There was little if any other information of assistance from the wife.

Findings

On the limited evidence, it is difficult to know what, if any, finding could be made about family violence in this case. The husband explained the circumstances under which the intervention order was made and there seems to be no accusations of impropriety against him since that time. The intervention order arose out of a dispute over one of the party’s properties. The husband gave a plausible explanation as to why he was there but in any event, as I have indicated, the wife produced no evidence that gave this court an opportunity to draw inferences around the foundation for the intervention order.
It was the husband’s evidence about the conduct of the wife at the school that might also be seen to fit within the definition of family violence in s 4 of the Act. However, no finding was urged by the husband against the wife.
In the circumstances, I am not satisfied to the requisite standard that there has been family violence in this case.
The evidence in relation to the nature of the respective parent’s responsibility as a parent is not challenged save that the wife accuses the husband of orchestrating her removal from the home but that argument has little merit when she conceded herself that the property had to be sold. Whilst she produced what purported to be contracts of sale for those properties signed by potential purchasers, the settlement dates had passed and no evidence was brought to show that those purchases were still available. In the circumstances, I do not find that the husband acts irresponsibly as a parent.
The parents’ capacities to provide for the daily needs of the child who enjoys the relationship she has with both parents is not in issue or if it is, the wife did not say so. It is not suggested by either party that the child does not benefit from that relationship with each parent because each promoted that the child should spend some time including block periods of holiday time. It was also apparent from the husband’s evidence, and not denied by the wife, the child has spent extra periods of time over the snow season with the husband on the ski fields.
All that evidence indicates the husband is a responsible parent and he makes no criticism of the wife in respect of her meeting the child’s needs.
One significant dispute between the parties relates to child maintenance.
In her final orders, the wife proposed:
That the husband pay child support in the amount of $2000 per week.
As I earlier mentioned, no details of the child support assessment were provided. This however, is not the first time this matter has been before the court. In her previous interlocutory application which I heard on 1 June 2017 and gave reasons for dismissing her application on 8 June 2017, I said:
[60]I have already mentioned the absence of evidence about spousal maintenance. In respect of child maintenance, the wife submitted that the Act provided that if the husband had not been forthcoming in respect of financial issues, it could make an order of some magnitude.
[61]The parties disagree (and there is no evidence by the wife) as to whether or not there is a child support assessment in existence. I am perplexed that one says there is and the other says there is not but particularly so when the husband is the one saying it exists. The wife’s evidence does not assist me and this is a critical issue because it goes to both jurisdiction and power.
[62]If such an assessment exists, the wife’s remedy lies in the departure provisions of the relevant child support legislation.
[63]Being unable to work out what the correct status is, I am inclined to the view that the wife needs to establish that jurisdiction and she has not done so.
[64]If there is no assessment, one must wonder why there has been no such application. In addition, if that is the case, why an application has not now been made and the relevant provisions relied upon for the purposes of any pending assessment.
[65]In my view, either way, the evidence would not enable me to establish the relevant needs of the child save that the wife’s financial statement suggested she required $1800 per week. But that assertion included “children’s activities” of $500 per week, telephone and other expenses. In circumstances where the wife says she has none of these benefits at the moment, some evidence would be required to show how those amounts were calculated. As I am setting the matter down for trial, there is no point in me adjourning that issue to another interim hearing where I suspect the evidence will be as difficult to follow as it is here. That claim cannot succeed both because of jurisdiction but also evidence.
I see no reason to depart from what I there said having regard to the absence of evidence particularly in circumstances where the wife had some weeks to obtain legal advice.

Legal issues

Part VII of the Act has its emphasis in and on “best interests” principles. The Court can only deal with the evidence the parties bring forth.
In deciding whether to make a particular parenting order, the Court must regard the child’s best interests as the paramount consideration (S 60CA); that is, whilst parents’ interests are important and should be considered, if there is a clash of interests, the child’s interests are paramount.
Section 60B of the Act sets out the legislative objects in passing the Act are to ensure that the best interests of children are met by:
a.ensuring that they 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;
b.protecting them from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
c.ensuring they 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.

The objects are a guide and nothing more. Here, I have set out the only findings I can make on the limited evidence available. Both parties were given an opportunity to file such material as they saw fit and each knew that the hearing was to be a final one. Thus, I do not intend to repeat the various considerations and the findings that could be made on them. Suffice to say, those details can be found earlier in these reasons.
Section 61DA requires the court to apply a presumption of equal shared parental responsibility when making a parenting order. That presumption is rebutted if the court is satisfied that there has been family violence or may not apply it if it would not be in the best interests of the child for the court to do so.
I have already dealt with the family violence issue. Even if that finding was found not to be open just on the basis of the intervention order, I doubt that I could ignore the presumption on a best interests’ principle basis. That is so even in circumstances where the husband acknowledges that he has had no communication with the wife since the intervention order.
Section 60CC(2) focuses on the benefit to a child of having a meaningful relationship with both parents whilst at the same time protecting the child from harm. Nothing here indicates that there is any clash between s 60CC(2)(a) and (b). It is important therefore that orders are made to ensure that the child has the benefit of a meaningful relationship with both parents. The husband’s position meets that criterion. I am not sure what the wife’s position is.
The parties have managed to continue to work out weekend times outside of the formal orders particularly in relation to the snow season. There is no suggestion that there is problem about school attendances or continuation of enrolment of the child at the private school. On health issues, there is no evidence that either party would prejudice the child by ignoring a problem. If the 2010 incident is a guide, the husband attended the NN Centre.
Equal shared parental responsibility has its focus on major long- term matters concerning the child. There is no evidence of problems on a day to day basis such as bed times, haircuts, holiday travel and the like. If the focus of determining whether the best interests of the child are for her parents to have equal shared parental responsibility for those major issues, the only inference I can draw is that whilst not ideal, the parties have stumbled along and life for the child has continued.
There is therefore no discernible basis for me to make a finding that equal shared parental responsibility should not be ordered. That was certainly the position of the Independent Children’s Lawyer.
The application of the presumption means that the court is obliged to consider the matters in s 65DAA of the Act. That too does not require much attention here as neither party seeks orders of the nature of equal time. However, the husband seeks what could only be described as substantial and significant time (s 65DAA (2)) because he seeks a block time of Thursday to Tuesday. Not only would that enable him to be involved in non-weekend time but also for him to be involved in a daily routine which would involve schooling and health problems.
The wife’s position as best I can discern it was that there was no need to extend time because the husband could not take it. He denies that.
The Independent Children’s Lawyer sought four nights out of 14 but added that she would not be “troubled” if it was extended to five out of 14. I have taken that as a concession that the Independent Children’s Lawyer considers that the husband can meet such things as routine and special activities as well as responsibilities. That concession is consistent with the husband’s evidence and the wife was silent on the subject.
There is no evidence of the child’s views but then again, nothing the wife has said indicates she would not be happy with such an extended arrangement. The husband pointed to the observations of Mr U from 2015 and the wife has not said otherwise. Section 60CD sets out how a child’s views are to be expressed. The Court is informed by the expressed position of the Independent Children’s Lawyer that she does not oppose the extended time.
I find that the husband can meet the daily needs of the child as would fit the definition in s 60CC(3)(f). I have already dealt with other factors earlier.
One significant factor is found in s 60CC(3)(d) which addresses the impact of any orders on the child including separation from a parent. Such as it is, the evidence indicates that the child enjoys being with her father and nothing has been said to indicate opposition or separation anxiety to such an arrangement.
The Court is often faced with the dilemma of making orders in the knowledge that as children grow and change, so will their needs for parent support and relationships. In the child’s case, there is a small window of opportunity to get her to settle into a sharing routine before she decides what she will do for her own future. Because of the uncertainties in her life to date which seem to have begun in 2010 along with watching her parents litigating constantly throughout the last 5 years, these orders should be seen as final until she attains her majority. the child deserves better than to be embroiled in this dispute and watching her parents’ bitter arguments which seem predominantly about money. the child deserves to spend the rest of her childhood removed from that. Accordingly, these orders seem to be the best I can arrange such as to be least likely to lead to further proceedings.

What orders should be made?

The orders proposed by the Independent Children’s Lawyer were set out over three pages. In my view, that unnecessarily complicates things. These parties have a child who is nearly 12 years of age. They will have to start considering her educational, sporting and social engagements and requirements. They will have to find a compromised way of communicating even with another year ahead with an intervention order.
The “core” orders are not controversial from the perspective of the Independent Children’s Lawyer but what she was no doubt endeavouring to do was give the parties a “checklist” they could use to decide what to do if a problem came up. I am very conscious of what was said by Gummow and Callinan JJ in U v U (2002) FLC 93-112:
[70]There is, in our opinion, an air of artificiality about the appellant's argument …... No doubt there will be cases, perhaps many cases, in which a court can and should adopt, with few changes or additions, the arrangements proposed by one of the parties for the future of the child or children whose welfare is paramount, in preference to the other. As was said in AMS v AIF:
"It will generally not be possible for a trial judge to construct a framework and environment for the upbringing of a child. What happens in practice is that those competing for the care and custody of a child will present proposals to the Court to advance the welfare of the child. Judges frequently will be able to mould or adopt such proposals in making orders but rarely will they be able to invent or construct substantially different arrangements for children from those proposed by the parties."
(footnote omitted)
There will, however also be cases, and not a few of them we suspect, in which it will simply not be possible for a judge to adopt exclusively or perhaps even substantially, a proposal of either party. In such a case the final order will evolve out of the evidence as it emerges, and submissions as they are developed.
Making orders with conditions about what happens when the child is participating in sporting events or training fits into the category of endeavouring to construct a framework for the child’s upbringing. So too, birthday celebrations fit into that category. If parents have no respect for the relationship of their child with the other parent, they will deliberately not go out of their way to ensure that the special occasion is fostered. But that can set the tone for a “tit for tat” approach. The same applies to Mothers’ Day and Fathers’ Day. One wonders how much children of the child’s age really worry about the importance of those days to them. Once acknowledged, their lives move on to other more child-interesting things; it is the parents who perceive the importance of the day or event because it makes them feel good.
Another issue raised by the proposed orders was the changeover point between the parties. On the basis of the orders I intend to make, collection for most occasions and return will be through the school gate. That will obviate the necessity for the parties to not see each other and also avoid the unpleasant experience that the child had at her school as described by the husband. Thus, the problem area arises for non-school changeovers. The Independent Children’s Lawyer proposed that it be the “security entrance” of the premises of the maternal grandmother. I suspect, although it was not said, there is some significance in the “security entrance”. If there is a risk that the parties do not reach a compromise, the order should be that they go to the court-approved venue of a contact centre. That would be embarrassing and unfortunate for the child but who could then be blamed for that other than her parents who cannot contain themselves such as to organise a different and more civilised venue. That will be reflected in my orders.
The Independent Children’s Lawyer suggested that an order be made that each parent “ensure” that the child attend her “usual extra-curricular activity” providing that both parents “consent in writing to such enrolment”. In my view there are two considerations here. First, there is the inference that a parent might be bloody-minded enough not to ensure the child attends things she enjoys or which are for her benefit. The second is that such a condition only applies if both parents consent to such an activity. In my view, to make such an order would be the court interfering in the “upbringing of” a child. If the parents are so keen to ensure that such a dilemma does not arise, they can prepare a checklist or parenting plan any time they wish.
A further order suggested was that each parent “must promptly inform the other of any serious illness or injury” of the child. If the parents acknowledged, as they do here, that the other parent means something to the child, why would such an obligation have to be in a court order? Leaving aside common courtesy, the child is a child loved by both parents. She is feted on snow fields because she is apparently a potential elite athlete. She attends an expensive private school in circumstances where the parents argue about their own impecuniosity including where the Taxpayers of Australia through the Australian Taxation Office have sued the husband for unpaid taxation obligations. Where is the focus on the needs of the child?
The proposed orders continued to include reference to both parents being “permitted” to attend various events. The same logic to that above must be applied. Even if a school, musical or sporting organisation has problems working out whether one parent can attend or not, one might have expected the parents to have acknowledged that it would be good for the child to feel the pride (perhaps even excitement) of having her parents watching her achieve even if she was a bit sheepish that they might misbehave towards each other.
Another suggestion was that the parents enrol in a Parenting Orders Program run through an organisation that the Court was told has a significant role in guiding and advising parents about how to handle specific difficulties they have not so much with their child but with each other. There is no doubt the court can order parties to attend t(s 65LA) but after years of conflict much of which has embroiled the child, what benefit would she obtain? If the parties do not consider they should jointly approach such an organisation to learn how to be child focused for the child, why would the Court consider there is any prospect of something good coming out of it? Significantly, s 65LA(2) provides that in deciding whether to make such an order, the court must regard the best interests of the child as the paramount consideration. After all of this litigation, I could not see how the child’s interests might be even considered let alone improved. This concept is a matter for the parents to decide whether they think they have caused enough problems for their child (for example the school handover embarrassment or the intervention order excluding the husband from being near the wife).
For the reasons just set out, my view is that the Court should not intervene apart from fixing the relevant parameters of the time each parents should be responsible for the child. Issues such as birthdays and Fathers’/Mothers’ days and the like can be issues for the parties to decide insofar as they see the relationship of the other parent with the child as important.

Non-denigration

As there is an intervention order in existence which raises questions of jurisdiction (s 114AB), I decline to make orders. Even if there is jurisdiction, the parties more conveniently and easily deal with the State system of orders and seem more comfortable to have the State intervening in their lives.

Spousal maintenance

In her final orders, the wife proposed that the husband pay her $100,000 per year.
In June 2017, the wife had sought a spousal maintenance order of $150,000 per annum. That application failed on the basis of lack of evidence. Unfortunately, the same problem now arises.
The power of the court to make an order can be seen in the following provisions of the Act:
[72(1)]  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 whether:
(a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b)by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c)for any other adequate reason;
[74(1)]  In 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.
…
[75(1)]  In exercising jurisdiction under section 74, the court shall take into account only the matters referred to in [s 75(2)].
There is no evidence other than assertion that the wife is unable to support herself adequately without maintenance. There is an assertion not denied by the wife that she has an interest in a café. The wife was running a business under a corporate structure apparently relying upon the husband’s (or the parties’ businesses). There is evidence that the wife was conducting an allied business. The wife produces no evidence as to the attempts she has made to obtain employment.
It will be seen that under s 72(1) set out above, the husband only has an obligation (or in this case, something to answer) if the wife shows that she is unable to adequately support herself without maintenance. Not only is there no evidence here, the wife does not set the foundation for one of the three criteria for which the court should accept her reason for being unable to adequately support herself (as set out in s 72(1)).
I appreciate the wife’s frustration about the absence of legal representation but it is not sufficient to simply make an assertion and then expect the court to trawl through her affidavit with its disconnected various annexures to see whether the power is enlivened.
There is no evidence here to call upon the husband to show whether or not he could afford to pay maintenance.
The application for spousal maintenance must fail.

I certify that the preceding One Hundred and Sixty-Six (166) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 24 August 2017.

Associate:

Date: 24 August 2017

[2017] FamCA 637

24 August 2017

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