Gallard and Gallard

[2019] FamCA 789

FAMILY COURT OF AUSTRALIA

GALLARD & GALLARD [2019] FamCA 789

FAMILY LAW – GRANDPARENTS AND JURISDICTION – CHILD MAINTENANCE – where father deceased and wife and paternal grandparents agree that paternal grandparents will pay periodic payments including school fees at elite private school – court finds that there is no jurisdiction to order paternal grandparents to pay child maintenance.

Family Law Act 1975 (Cth)

Love & Henderson & Separate Representative [1995] FamCA 160
Wagstaff & Wagstaff [1990] FamCA 56

APPLICANT: Mr Gallard

RESPONDENT: Ms Gallard

FILE NUMBER: MLC 6695 of 2018

DATE DELIVERED: 29 October 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 16 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Clancy & Triado

Orders

1. The oral application of the paternal grandparents for orders to be made, by consent, in the terms of Exhibit “A” be and is hereby dismissed. 

2. I reserve to the wife and/or the paternal grandparents liberty to make a further oral application on 13 November 2019, or any other date to which these proceedings are next adjourned, for orders in other terms to be made by consent.

3. The wife and the paternal grandparents may have these proceedings adjourned administratively by the solicitors for the paternal grandparents making contact directly with my Associate, …, on behalf of the wife and the paternal grandparents and requesting a later suitable date.

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 Gallard & Gallard 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 6695 of 2018

MR GALLARD

Applicant

And

MS GALLARD

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter comes to me having been referred by the Registrar who originally had the matter listed before her this morning.  The wife and the parents of the deceased husband have reached an agreement which is embodied in minutes of orders that they now seek be made by consent dated 11 October 2019 (5 pages).  I mark the minute Exhibit “A” and direct that they remain on the court file, noting that I have endorsed the front of the document as “Orders NOT made by the Court”.

2. I raised the preliminary issue of the Court’s jurisdiction and power to order in this proceeding that the paternal grandparents pay maintenance for their grandchildren.  I heard submission and said that I would reserve my decision.  I excused the parties from attending Court when my decision is handed down.  These are my reasons for decision.

3. I have decided that this Court does not have jurisdiction to order that the paternal grandparents pay child maintenance for their grandchildren as a standalone obligation under the child maintenance provisions of the Family Law Act 1975 (Cth) (“the FLA”) even if the paternal grandparents are parties to the proceedings. However, their entitlement to spend time with the children can be made conditional upon the grandparents providing the periodic financial and educational support for the children that they have commendably agreed to provide.

4. For case management purposes, the matter is adjourned to 13 November 2019 in the Judicial Duty List at 10.00 am.

Background and parties

1. There were proceedings between the wife and the husband, Mr Gallard, in relation to parenting matters and an alteration of property interests.  The children are X, who is nine years old, and Y, who is six years old.  The boys are in the care of the mother.  There was a case assessment conference in September 2018, and shortly thereafter, Mr Gallard passed away as the result of a drug overdose.

2. Consequent upon the husband’s passing:

   ·The former matrimonial home at B Street, Suburb C passed to the wife by way of survivorship so that she is now the sole owner of that property.  The wife and children continue to reside in the former family home.

   ·There was an insurance policy for the benefit of the wife which may or may not be paid due to the nature of [Mr Gallard] death.

   ·There was a superannuation interest subject to a binding death benefit clause in favour of the wife, and the wife has received the proceeds of that interest. 

3. Otherwise, it is said that the estate of [Mr Gallard] does not contain anything of value.

4. In terms of the proceedings before this Court, upon [Mr Gallard] passing, the Family Law Rules 2004 (Cth) (“the Rules”) provide that if a party dies, the other party or the legal personal representative must ask the Court for procedural orders in relation to the future conduct of the case (r 6.15(2) of the Rules). Rule 6.15(3) provides that the Court may order that the legal personal representative of the deceased person be substituted for the deceased person as a party.

5. Probate has not been applied for.  There is no legal personal representative for the husband.  The paternal grandfather Mr D Gallard was named as an executor in the husband’s will, but the will is not without some technical difficulties.  There is, in any event, nothing to pass pursuant to the will.  It is not considered that probate will be applied for and there have been no letters of administration applied for or granted by the Supreme Court of Victoria.  Accordingly, if financial proceedings are to continue, there would need to be a legal personal representative identified and substituted for the husband in these proceedings.

6. I do not doubt the merits of the arrangement which the wife and the paternal grandparents want to enter into. 

7. The paternal grandparents are Ms E and Mr D Gallard, and are represented by the husband’s former solicitors Clancy & Triado.  The paternal grandparents operate a manufacturing business. Today, Mr Staindl, solicitor, appears on their behalf and they attend court.

8. Ms Gallard appears on her own behalf.  She has previously retained lawyers.  She has some assets but does not consider that she wants to retain lawyers on an ongoing basis.  I have spoken briefly to the parties about pro bono legal representation.  It occurs to me that firms who are doing federal government work are required to run pro bono schemes.  That probably excludes many of the specialist family law firms, but there are some larger law firms with family law departments which are likely to run pro bono assistance programs.

The minutes of orders which the wife and paternal grandparents seek be made by the court

1. In summary, what the minutes of proposed orders seek to do is as follows:-

   (1)By paragraph 1, to grant leave to the paternal grandparents to intervene in the proceedings;

   (2)By paragraph 2, 3, 10, 11, 12, 13, to make orders, which appear to be financial orders, in pursuance of an alteration of property interests;

   (3)By paragraph 4, 7, 8 and 9, to make financial provision for the children or provision for the children in kind;

   (4)By paragraphs 5 and 6, to make orders pursuant to which the paternal grandparents would be able to spend time with the children.

2. Mr Staindl indicates that the parties can dispense with the parts of the minutes relating to alteration of property interests by implementing those terms before an order is made in the terms of the balance of the minutes (if it ever is made).

3. It is the proposed orders in relation to the provision by the paternal grandparents, in their own right, for the boys with which these reasons are concerned.  The proposed provisions are as follows, the paternal grandparents are referred to as “Intervenors”:

   1.That pursuant to section 92(1), Ms E Gallard and Mr D Gallard be granted leave to intervene in the proceedings (“the Intervenors”).

   […]

   4.        That Mr D Gallard pay or cause to be paid:

   (a) To the wife’s nominated bank account the sum of $500 (or such greater sum as paid by [Mr D Gallard ]) per week per child for each of X born in 2010 and Y born in 2013 (the boys) as child maintenance, such payments to be adjusted for any upward movements in the Consumer Price Index for Melbourne on 1 July each year commencing on 1 July 2020, with such payments to commence 7 days from the making of these orders and shall continue until each child attains the age of 18 years or completes their secondary schooling, whichever is the later. In the event that Mr D Gallard predeceases the termination of such payments that he make such provision in his Will or such arrangements as are necessary for the payments to continue as ordered.

   (b) The private, medical and hospital, family health cover with F Company or other such fund as the wife shall determine for the boys to age 21 years (including Ms Gallard) at the level enjoyed by them prior to their cover lapsing.

   (c)The current orthodontic expenses for Y with D Dentists for $1,831.00 (already paid).

   (d)the sum of $5,000 per annum commencing 2020 to the wife’s nominated bank account from which the wife can draw funds to pay the children’s government school fees, books and uniforms, extra-curricular activities, sports, and tutoring costs, until each of the children complete their secondary school education.  Should the boys or either of them cease schooling at a government school and take up schooling at a private school which the Intervenors pay for then the provisions of this subparagraph lapses. 

   And the Intervenors are at liberty to arrange all or any payments in order

   4 hereof through a Child Maintenance Trust or as otherwise advised. 

   […]

   7. That insofar as face to face time is continuing, the Intervenors shall make every effort and use their best endeavours to assist X and Y to gain entry to H School at the year 7 level entry, and if so attending, then to meet the school fees of their attendance at H School and pay for all books and all uniforms (summer, winter, sports) and extracurricular activities required to be undertaken by the boys as part of their attendance at H School, together with any extra tuition fees (or tutoring required, but those only as agreed between the wife and the Intervenors) noting this order shall not compel the Intervenors to meet the cost of any overseas school excursions for the boys.

   8. The obligation created by order 7:

   (a)Survives the Intervenors and the Intervenors shall establish a trust or such other vehicle as advised to continue to meet the payments past their retirement or death;

   (b)Shall continue even in the event of the boys temporarily not spending time with the Intervenors due to the boys’ age and wishes or sporting or social commitments – save that Felicity shall do all in her power to recommend, encourage and facilitate these events;

   (c)Shall continue in the event of the Intervenors voluntarily reducing or ceasing face to face time with the boys.

   (d)The parties be restrained from denigrating the other/s in the presence of the boys and shall comport themselves with dignity and restrain when in each other’s presence.

   9. That insofar as the Intervenors continue in their business of manufacturing clothing and underwear items or until 2030, whichever first occurs, they will provide the wife twenty pairs of socks or underwear a year for each boy, and twenty pieces of clothing or underwear for the wife.  The wife shall advise the Intervenors of relevant sizing of the boys and herself from time to time. 

Submissions on jurisdiction and power

1. Mr Staindl addressed me on the Court’s jurisdiction to make financial provision by way of a child maintenance order or otherwise, for the boys which is payable by somebody other than a parent or step-parent.  I permitted Mr Staindl to address me notwithstanding that his clients are not parties to the proceedings.  They have an address for service.  Mr Staindl’s submissions go to whether, and in what capacity, his clients can become parties to these proceedings for the purpose of seeking and being bound by orders of the Court and what orders the Court has jurisdiction to make.  

2. The wife is ad idem with Mr Staindl as to jurisdiction and adopts his arguments in that regard.

3. Child maintenance orders are dealt with in Division 7 of Part 7 of the FLA. Subdivision C deals with applying for and making child maintenance orders, and Division E deals with other aspects of the court’s powers in relation to child maintenance orders.

4. Section 66B of the FLA provides that the principal object of the Division is to ensure that children receive a proper level of financial support from their parents. Particular objects of this Division include ensuring that children have their proper needs met from reasonable and adequate shares of the income, earning capacity, property and financial resources of both their parents and that the parents share equitably in the support of their children.

5. Upon the husband’s death, his liability for child support ceased.  The issue is whether or not this Court has jurisdiction to make orders against the paternal grandparents which impose upon them an obligation to maintain X and Y.

6. Relevantly, s.66G of the FLA provides that in proceedings for a child maintenance order, the Court may make such child maintenance order as it thinks proper.

7. Section 66C of the FLA provides that the parents of a child have, subject to Division 7, the primary duty to maintain the child. Section 66C(2) of the FLA provides that the duty of a parent to maintain a child is not of lower priority than the duty of the parent to maintain any other child of any other person, and has priority over all commitments of the parent other than commitments necessary to enable the parent to support himself or herself or another child. The duty of a parent to maintain a child is not affected by the duty of any other person to maintain the child or the entitlement of the child or any other person to an income tested pension or benefit.

8. Section 66D of the FLA provides that step-parents may, by an order made under section 66M of the FLA, have a duty to maintain the child. Therefore, when s. 66C(2) is read with s 66D of the FLA, it is clear that a parent’s duty to maintain their own child is not of lower priority that their duty to maintain a stepchild in respect of whom an order has been made under s.66M

9. Section 66F of the FLA provides that a child maintenance order in relation to a child may be applied for by either or both of the child’s parents, the child, the grandparent of a child, or any other person concerned with the care, welfare or development of the child. There is no provision corresponding to s.66F which specifies against whom an application for child maintenance can be made.

10. Having regard to the foregoing provisions, I expressed my preliminary view that the power of the Court to order child maintenance is limited to making orders against the parents of the child and a step-parent of the child if an order is made in that regard under s.66M. However, Mr Staindl contends that the FLA envisages a duty to maintain a child being cast upon a “party to proceedings” regardless of whether they are a parent or step-parent. I will summarise Mr Staindl’s submissions.

11. Section 66H of the FLA provides that in proceedings for the making of a child maintenance order in relation to a child the court must consider the financial support necessary to maintain the child and to determine the financial contribution or respective financial contributions towards the financial support necessary for the maintenance of the child that should be made by a party or by parties to the proceedings.

12. Section 66K of the FLA provides that when determining the financial contribution or respective financial contributions towards the financial support necessary for the maintenance of a child that should be made by a party or by parties to the proceedings the court must take into account various matters.  None of which are particular to parents and all of which pertain to a party or parties.  Mr Staindl’s contention is that the court has both jurisdiction and power to make the orders sought. 

13. Section 65C of the FLA provides that a parenting order in relation to a child may be applied for by either or both of the child’s parents, the child, a grandparent of the child or any other person concerned with the care, welfare or development of the child. A parenting order is defined in Section 64B(1) as an order including an interim order, dealing with a matter mentioned in 64B(2) of the FLA which includes “maintenance of a child” (s.64B(2)(f) of the FLA).

14. Section 65C appears in Division 6 of Part 7 of the FLA and is headed “Parenting orders other than child maintenance orders”. Mr Staindl’s contends that, even if the paternal grandparents cannot be made a parties to the proceedings under s.65C, for the purpose of having a child maintenance order made against them, they can be made parties under s.65C for the purpose of, say, spend time orders and would then be parties to the proceedings nonetheless.

15. Notably, the minutes of orders sought to join the paternal grandparents as intervenors under s.92(1) of the FLA which provides that any person may apply for leave to intervene in proceedings (other than divorce or nullity proceedings) and the Court may allow them to intervene. Section 92(3) of the FLA provides that, where a person intervenes by leave of the Court, subject to further order of the Court, that person is deemed to be a party to the proceedings with all the rights, duties and liabilities of a party.

16. In summary, Mr Staindl’s contends that the reference to “party or parties” in s.66H and s. 66K expands what appears to be the class of people who have a duty to maintain a child according to s.66C and s.66D, being, primarily parents and, subject to an order under s.66M, a step parent to include persons who are neither parents nor eligible step parents. He does not accept that the reference to “party or parties” in s.66H & s.66K was merely an expression to incorporate reference to step parents in respect of whom an order had been made under s.66M.

Discussion

1. Jurisdiction in relation to matters arising under part VII is conferred on the Family Court by s. 69H(1)which provides that “Jurisdiction is conferred on the Family Court in relation to matters arising under this Part.”

2. A person does not have a duty to maintain another person in the absence of a statutory duty, a contract or a duty arising at common law which requires him or her to do so.  Furthermore, this Court is a statutory Court which has accrued and associated jurisdiction but it does not, per se, have inherent jurisdiction. Mr Staindl has confined the source of jurisdiction to statute, to wit the FLA. I agree that if jurisdiction is to be found, it must be found in the FLA.

3. The statutory obligation to maintain children is set out in two places.  It is set out in:

   ·Division 7 of Part VII of the FLA; and

   ·the Child Support (Assessment) Act 1989 (Cth).

   The provisions of Division 7 of Part VII of the FLA apply to all children other than those described in s. 66BA of the FLA, namely children in respect of whom an application could be properly made at the time under the Child Support (Assessment) Act 1989 for administrative assessment of child support regardless of whether such an application has in fact been made.

4. When the husband died, X and Y ceased to be children in respect of whom an application could be made for child support and became children in respect of whom child maintenance could be sought under Division 7 of Part VII of the FLA.

1. The child maintenance provisions in the FLA outlines the priority of the duty to maintain children. The primary duty falls on the parents, and step-parents have a secondary duty which only arises when the Court declares that it is appropriate for a step parent to be the subject of an order.

2. In my view, the reference to the “parties” upon which Mr Staindl relies can only be to parties who are legitimate parties to the parenting proceedings.  The plural is used because it is conceivable that an applicant for child maintenance might bring proceedings against a parent and step-parent and then you have a multiplicity of parties to whom reference is made.

3. If, contrary to my view, all that is necessary to give rise to a liability to maintain a child of whom a person is not a parent or step parent, is for a person to become a party to the proceedings, the following possibilities emerge:

   a)An Independent Children’s Lawyer, who is a party, could face a maintenance order by virtue of that fact;

   b)A stranger could be sued for maintenance and for so long as he remains a party, could be made to pay child maintenance;

   c)In proceedings for property and child maintenance a third party who is joined in the proceedings for the usual reason becomes liable to pay maintenance merely because they are a party.

4. The correct interpretation of the sections that refer to the obligation of “the parties” must be to parties who have a primary or secondary obligation to maintain a child.

5. The identification of parents as persons with the primary duty to maintain their child merely recognises that the primary duty to maintain a child is ahead of any other duty that parent may have.

6. Support for proposition that maintenance can be sought only from parents or step parents is found indirectly in s.66X of the FLA. This is a restorative provision where maintenance has been paid pursuant to an order of the Court, in the form of periodic payments or a transfer of property, and “a court has determined that the maintenance provider is not a parent or a step-parent of the child” (s.66X(1)(c)). Section 66X(2) provides that only in exceptional circumstances can the Court order repayment of the child maintenance in a sum less than the amount actually paid. Notably, maintenance providers are confined to parents and step parents. Maintenance providers do not include grandparents even though one would expect that, if a grandparent could be ordered to pay child maintenance, that liability should similarly fall away and the maintenance paid would be recoverable if the child is not actually the grandchild. Most significantly, the entitlement to payment of funds paid or property transferred is based on the Court being satisfied that the payer is not a parent or step parent of the child.

7. The arrangement reached between the mother and the grandparents is practical and sensible.  The agreement was reached after a conciliation process and thoughtful negotiation.  The grandparents retained lawyers who, through Mr Staindl, have put every conceivable argument before the Court.  The grandparents are acting commendably but it remains that the Court cannot exercise jurisdiction which it does not have, even if the parties consent.

8. A solution may be to have the grandparents apply to spend time with the children, as is envisaged by s.65C(ba) of the FLA, and make the exercise of that time conditional upon the grandparents paying or causing to be paid what the minutes reflect they have agreed to pay. The minute of order sought already provides that payment of money and conferral of benefits by the grandparents for the children is conditional upon the grandparents continuing to see the children. This would merely expand the condition to make it mutual. The problem remains that, in the event of a breakdown of the relationship between the wife and the paternal grandparents, the spend time order could be sought to be varied so that financial benefit is not a condition of the grandparents spending time with X and Y. However, there would still be no jurisdiction in this Court to make a stand alone order that the grandparents maintain the boys.

9. In the matter of Love & Henderson & Separate Representative [1995] FamCA 160, Kay J held that the power to make an order in relation to the welfare of the child under s 64 of the FLA (now repealed) extended to ordering a mother to pay for air travel associated with the father’s access to children as well as $500 to assist the father with expenses he would incur for the children during three weeks of access to which he was entitled, notwithstanding that there was no relevant jurisdiction to order the mother to pay child maintenance or child support. It was the father’s case that he would not exercise access to the children, then aged 11 and 8 years, unless the mother provided financial support.

10. Kay J observed:

    “[U]nder s 64, in proceedings in relation to the access to a child, I may make such order as I consider proper and I must regard the welfare of the child as the paramount consideration. In my view this is the dominant section. It gives me almost unbridled powers to make orders which will promote the welfare of the child. Where the legislation does not otherwise allow for provision of financial support to an access parent, in my view, I can come back to the broad powers contained in section 64 to find the necessary power[…].

    Clearly the provision of financial support to enable access to take place could be categorised as a provision for maintenance for the child.  At the same time, it can also be categorised as an access order being an order necessary to facilitate access.  It may also be characterised as an order that the welfare of the child.  As I’ve indicated the legislation does not provide any mechanism whereby this result can be achieved stop I doubt that the Leeds legislature has turned its mind to this issue I have not previously come across a case where a parent has expressly declined the opportunity for access for economic reasons.

    One can readily envisage situations where there is a very wealthy father, with custody of a child, and the mother an extremely difficult financial circumstances who wishes to have access to the child.  The child wishes to have access to her.  Even though the mother cannot bring any child support application, one would have thought in the circumstances of the welfare of the child requires there to be access, the court must be empowered to put the conditions into existence, which would allow the access to take place, just as it is empowered to order that the children be flown to a certain place, or that other arrangements be made for the provision for the children during the access (e.g. delivery of special toys, pets, bicycles etc).

    Mr Love, as I have indicated, has a difficult, or an unusual personality.  His terms are that unless provision is made for sums financial support in the forthcoming access period, these children will not have access to him.  Their already fragile relationship with him will be significantly diminished.

    In the circumstances, I conclude that I have the power and I will exercise it.  I must say, however, that I consider this to be a one-off situation” 

11. I am satisfied that I could, if asked, make an order that X and Y spend time with the paternal grandparents conditional on the paternal grandparents doing what they have already agreed that they will do.  I would not be making a child maintenance order.  It would be a parenting order which ensures continuity and certainty in the boys’ relationships consequent upon the sad loss of their father.  In terms of education, such a parenting order would provide the boys with benefits and experiences that they might not otherwise be able to enjoy.  The exercise of my discretion to make such order would be informed in no small part by the fact that the wife and the paternal grandparents had come to that agreement themselves and would be seeking orders by consent.

12. Turning briefly to the property aspect of the proceedings.  Unless someone is substituted for the husband in the property aspect of the proceedings, those proceedings will be at an end.  That seems not to present a problem because, I understand, that most of what the grandparents and the wife have agreed can be implemented without orders of the Court.  They include, but are not limited to, the wife being at liberty to collect the husband’s clothes, shoes and personal possessions within a certain time, failing which the paternal grandparents made dispose of such items as they see fit and payment by the paternal grandparents of funeral debts, repatriation costs and wake expenses.  One provision that does trouble me, however, is paragraph 14 of the minutes which provides that:

    The Intervenors shall and do hereby gift to the boys equally the alleged debt of $693,000 to Ms E Gallard noting that such gift is to assist in the provision of housing for the boys but in no way create any obligation by the wife to repay the Intervenors.

13. I am informed from the bar table that characterisation of any such moneys as a loan that was repayable by the husband and/or the wife to the grandmother has been consistently denied by the wife.  No admission by the wife or finding by the Court has been made to the contrary.  I don’t know when the monies were said to have been paid but recovery might even be statute barred.

14. The paternal grandparents seek to maintain the clause, and apparently the wife does not object, as an asset protection mechanism for the wife in the event that she enters a new relationship.  The wife is not represented in this proceeding and it is not for me to advise her or the grandparents.  However, what may be an ‘asset protection mechanism’ against a new partner of the wife would primarily be a cause of action by X and Y against the wife.  Clause 14 specifies the paternal grandparents do not contemplate being repaid.  However, if the paternal grandparents gift the right to seek to recover a debt to the boys, the paternal grandparents would not be entitled to any repayment.

15. I have reservations about the wife acknowledging that the boys have some interest in the family home unless she genuinely accepts that they have such an interest (which I understand is not the case).  I have reservations about setting the boys’ interests against the interests of their mother unless it is genuinely considered that the boys have an interest of value.  I note that the decision of the Full Court of this court in Wagstaff & Wagstaff [1990] FamCA 56 involved a mother and her new husband who were held to be accountable to the wife’s children for use of the children’s funds.

16. In Wagstaff, the wife and her new husband had purchased a property in Berowra in their joint names using funds which, in part, were proceeds of a financial settlement between the wife and her previous husband and the father of her two children, a daughter aged 19 years and a son aged 15 years at the time of the appeal. Under the settlement between the wife and the children’s father, the wife held one half of a property at Queanbeyen on trust for the children with a right to sell the Queanbeyen property and to reinvest the children’s entitlement in real property or authorised trust investments. There was a deed of trust to that effect. The wife sold the Queenbeyan property and purchased the Berowra property in the joint names of herself and her new husband. The wife’s second marriage broke down. The children’s father intervened in the Part VIII proceedings between the wife and her second husband seeking orders under s 78 of the FLA to protect the children's interest in Berowra property. No orders were sought pursuant to the Court’s accrued jurisdiction but, presumably, could have been. The Full Court, comprising Strauss, Baker and McCall JJ, determined the children's entitlement by declaring their equitable interest in the net proceeds of sale of the Berowra property in the same proportion as the their trust funds bore to the acquisition of that property (a hefty 88 per cent).

17. Clause 14 is one of a number of points in this case on which the wife would benefit from legal advice.

Conclusion

1. I conclude that I do not have jurisdiction to make child maintenance orders against the paternal grandparents, or either of them.  Accordingly, the oral application of the paternal grandparents for orders in the terms of exhibit “A” is dismissed.

2. I will consider on the adjourned date, 13 November 2019, any further application that the wife and the paternal grandparents make for orders by consent.  If the wife and the paternal grandparents seek a further adjournment, they may do so by the solicitors for the paternal grandparents contacting my Associate on behalf the wife and the paternal grandparents and securing a later date.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 29 October 2019.

Associate:

Date:  29 October 2019