GARVEY & JESS

[2019] FamCA 638

FAMILY COURT OF AUSTRALIA

GARVEY & JESS [2019] FamCA 638

FAMILY LAW – PRACTICE AND PROCEDURE – Application for leave to review Registrar’s exercise of power – Where there is an application by the husband for leave to review Orders of a Registrar for him to produce documents to the wife, including bank statements – Where the application was made out of time – Where the husband has not provided a satisfactory explanation for his failure to seek to review the Order within time and where it will not unfairly prejudice the husband – Where the application is dismissed.

FAMILY LAW – PARENTING – Interim – Where the parties have two children who are currently the subject of interim parenting orders – Where the parties made agreed changes to those Orders through their participation in a Child Dispute Conference – Where an application is made to vary the existing interim parenting Orders made in respect of school holiday periods which were not agreed at this conference – Where Orders are made varying the time the children are to spend with the parties during the June/July and September/October school holiday periods.

Corporations Act 2001 (Cth)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Banks v Banks (2015) FLC 93-637
Gallo v Dawson (1990) 93 ALR 479
Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Garvey

RESPONDENT: Ms Jess

FILE NUMBER: BRC 2175 of 2016

DATE DELIVERED: 9 September 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 29 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr S J Williams of Queen’s Counsel

SOLICITOR FOR THE APPLICANT: Barry Nilsson Lawyers

COUNSEL FOR THE RESPONDENT: Mr Hackett (property aspect)

SOLICITOR FOR THE RESPONDENT: Hirst & Co (property aspect)

RESPONDENT: In person (parenting aspect)

Orders

IT IS ORDERED THAT

1. The Amended Application in a Case filed 24 October 2016 and paragraphs 8 – 11 of the Further Amended Application in a Case filed 30 November 2018 and paragraphs 8 – 11 of the interim orders sought by Mr Garvey in the Further Amended Response to Initiating Application filed 13 February 2017 be dismissed.

2. Within 30 days of the date of this order, Mr Garvey comply with the terms of Orders (12)(f), (13)(f) and (15)(c) of the Orders made by Registrar Stoneham on 21 June 2016.

3. Orders (2) and (4) of the Order dated 9 October 2018 (amended 12 October 2018) be varied such that Ms Jess is to file and serve any Amended Initiating Application within 30 days of Mr Garvey’s compliance with the Order dated 21 June 2016 and Mr Garvey is to file and serve any Amended Response to Ms Jess’s Amended Initiating Application within a further thirty (30) days thereafter.

IT IS ORDERED BY WAY OF INTERIM ORDER THAT

1. Within thirty (30) days of the date of this Order, Mr Garvey pay all of the arrears of rates payable to S Council in respect of the property located at K Street, Suburb L in the State of Queensland.

2. Until such time as final orders in relation to the property settlement aspect of the proceedings have been issued by the Court, Mr Garvey and Ms Jess each be responsible for paying half of the S Council rates, in respect of the property located at K Street, Suburb L in the State of Queensland, as and when they fall due.

IT IS ORDERED BY CONSENT BY WAY OF INTERIM PARENTING ORDER THAT

1. Orders (7)(b)(i) and (ii) of the interim parenting order made on 3 August 2017 are discharged.

2. For the purposes of calculating and identifying the children’s time with each parent during school holiday periods, the school holiday periods are to be as prescribed by M School.

3. For the purposes of changeovers during school holiday time or changeovers that fall on a day that is not a school day:

   (a)the parent who has the children in their care will deliver the children to the other parent’s home; and

   (b)the parent delivering the children will remain in that parent’s car and the other parent will remain inside their home. 

4. The children shall spend time with either parent together.

IT IS FURTHER ORDERED BY WAY OF INTERIM PARENTING ORDER THAT

1. Insofar as it relates to the June/July and September/October school holiday periods, Order (3) of the interim parenting order made on 3 August 2017 is discharged.

2. The children shall spend time with their parents during the June/July school holidays as follows:

   (a)in odd-numbered years: for the first five (5) nights with the father and for the balance of the school holidays with the mother; and

   (b)in even-numbered years; for the for the first five (5) nights with the mother and for the balance of the school holidays with the father.

3. The children shall spend time with their parents during the September/October school holidays as follows:

   (a)in odd-numbered years: for the first five (5) nights with the mother and for the balance of the school holidays with the father; and

   (b)in even-numbered years; for the for the first five (5) nights with the father and for the balance of the school holidays with the mother.

AND IT IS FURTHER ORDERED THAT

1. Pursuant to s 65DA(2) and s 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 to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

IT IS NOTED THAT:

A.The consequence of the discharge of Orders (7)(b)(i) and (ii) of the interim parenting order made on 3 August 2017 is that the children will spend the Easter celebratory days with the parent with whom they are then spending holiday time.

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 Garvey & Jess 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 BRISBANE

FILE NUMBER: BRC 2175 of 2016

Mr Garvey

Applicant

And

Ms Jess  

Respondent

REASONS FOR JUDGMENT

1. Mr Garvey and Ms Jess commenced their relationship in April 2004, commenced cohabitation in mid-2006, married later in 2006 and separated on 28 April 2015 (on Ms Jess’s account) or 15 June 2015 (on Mr Garvey’s account). They have two children: C, who was born in 2007, and D, who was born in 2009.

2. Mr Garvey and Ms Jess entered into a Financial Agreement on 3 August 2006. Previous applications in respect of the same have been considered by Carew J; a subsequent appeal by Ms Jess against the dismissal of one of those applications was dismissed by the Full Court and Ms Jess’s application for the grant of special leave to appeal to the High Court was subsequently refused; additionally, previous interim parenting orders have been made.

3. In broad terms, the consequence of the determinations reached in respect of the earlier application relating to property matters is that the proceedings in which the parties remain engaged involve the enforcement of the terms of the Financial Agreement, including the determination of those assets which are within the “Joint Assets” referred to in the Financial Agreement, and the determination of Ms Jess’s application for: the payment of lump sum spousal maintenance in an amount not yet particularised; an order departing from the administrative assessment of child support payable by Mr Garvey for the children; and as yet unparticularised orders in respect of the way in which, if there is any property of the parties not covered by the terms of the Financial Agreement, the same should be dealt with.

4. The current application for leave to review particularised aspects of the Order made on 21 June 2016, which required Mr Garvey to produce specified documents to Ms Jess, falls to be determined in this context.

Application for leave to review out of time

1. By Amended Application in a Case filed 24 October 2016, Mr Garvey seeks leave to review Orders 12(f), 13(f) and 15(c) of the Orders made by Registrar Stoneham on 21 June 2016.

2. Such orders required that Mr Garvey provide Ms Jess with the following documents:

   a)copies of bank statements for three years, ending on the date on which the application was filed,[1] for any company in which he has an interest (including but not limited to B Pty Ltd and H Pty Ltd); and

   b)copies of bank statements for three years, ending on the date on which the application was filed, for the J Trust or any other Trust in respect of which he has an interest; and

   c)copies of bank statements for three years, ending on the date on which the application was filed, for the B Superannuation Fund.

   [1] Presumably, 19 April 2016.

3. Ms Jess seeks[2] that Mr Garvey’s application for leave to review is dismissed. In the event that her position prevails, she seeks that he is ordered to provide her with all outstanding documents required of him pursuant to the terms of the 21 June 2016 Order within 14 days and that paragraphs 2 and 4 of the Order made on 9 October 2018 be varied to provide that she file any Amended Initiating Application or Amended Response to an Application in a Case within 30 days of Mr Garvey’s compliance with the terms of the 21 June 2016 Order.

   [2] By way of an Application in a Case filed on 12 December 2018.

4. In the event that Mr Garvey is given leave to review the specified orders made on 21 June 2016, Ms Jess proposes that orders in the same terms be made by the Court.

Power and principles

1. Section 37A(9) of the Family Law Act 1975 (Cth) (“the Act”) provides that a party may apply to review a Registrar’s exercise of power. Pursuant to s 37A(10) of the Act, the Court may review the Registrar’s exercise of power and may make such order as it considers appropriate with regard to the matter with regard to which the power was exercised.

2. The applicable rules clearly establish that Mr Garvey had the right to file an application to review the 21 June 2016 Order provided that such application was filed within seven days of the order being made.[3] Despite this requirement, he did not file an application seeking that the order be reviewed until he amended his Application in a Case filed 11 March 2016 on 24 October 2016 (about four months out of time): hence his application for leave to review the specified terms of the 21 June 2016 Order.

   [3] Family Law Rules 2004 (Cth) rr 18.06 and 18.08 and Tables 18.4 and 18.6.

3. It appears that the litigation adverted to in paragraph 2 above explains, at least partially, the delay in the resolution of the application for leave to review the 21 June 2016 Order.

4. I accept that the purpose of any rule enabling a Court to extend time or grant leave to a party to take an action outside of the time otherwise prescribed by the Family Law Rules 2004 (Cth) (“the Rules”) is to ensure that the application of the Rules themselves does not produce injustice. I also accept that, whilst there is no precondition to the exercise of the power to extend time and/or to grant leave to proceed out of the time prescribed for an action by the applicable Rules and that such discretion is unfettered, the favourable exercise of the same is not an automatic event: the discretion to extend time or grant leave to proceed exists for the sole purpose of enabling the Court to do justice between parties and to enable the avoidance of injustice.[4]

   [4] See, for example: Gallo v Dawson (1990) 93 ALR 479, 480.

5. In order to ascertain whether the grant or refusal of the leave sought on Mr Garvey’s behalf would be productive of justice and enable the avoidance of injustice, it is necessary to have some regard to the substantive proceedings between the parties.

6. As noted, these now involve the enforcement of the terms of the Financial Agreement, as well as determination of applications for departure from the administrative assessment of child support and the payment of lump sum spousal maintenance. It is, therefore, necessary, briefly, to have regard to the relevant terms of the Financial Agreement sought to be enforced and the parties’ evidence about the circumstances relevant to the enforcement of the same and to a consideration of the applications for the payment of lump sum spousal maintenance and departure from the administrative assessment of child support.

Broad overview of relevant terms of the Financial Agreement

1. The Financial Agreement provides that, as at its date:

   a)Mr Garvey was the owner of assets and financial resources set out in Schedule 1 to the same; and

   b)Ms Jess was the owner of assets and financial resources as set out in Schedule 2 to the same; and

   c)Mr Garvey and Ms Jess owned the Joint Assets, and were responsible for the liabilities, particularised in Schedule 3 to the same.

2. The Financial Agreement also relevantly provides that, in the event of the breakdown of their marriage:

   a)Mr Garvey would be solely entitled to retain for his sole use and benefit the “Mr Garvey Assets” and shall be solely responsible for and indemnify Ms Jess against any liability encumbering or incurred in acquiring the same;[5] and

   b)Ms Jess would be solely entitled to retain for her sole use and benefit the “Ms Jess Assets” and shall be solely responsible for and indemnify Mr Garvey against any liability encumbering or incurred in acquiring the same;[6] and

   c)the “Joint Assets” shall be equally divided between Mr Garvey and Ms Jess and they shall be equally responsible for and indemnify the other against one half of all liability encumbering or incurred in acquiring the same, save that should one of them predecease the other, the survivor would receive all of the Joint Assets;[7] and

   d)Mr Garvey shall retain the balance of any superannuation benefit held to the credit of his member account in any superannuation fund;[8] and

   e)Ms Jess shall retain the balance of any superannuation benefit held to the credit of her member account in any superannuation fund.[9]

   [5] Clause 4.3.1.

   [6] Clause 4.3.2.

   [7] Clause 4.3.3.

   [8] Clause 4.3.6.1.

   [9] Clause 4.3.6.2.

3. The following relevant terms are defined in in the Financial Agreement:

   a)the term “Mr Garvey Assets” is defined to mean: the assets specified in Schedule 1; any asset which the parties agree in writing is to be treated as a “Mr Garvey Asset” for the purposes of the Agreement; the proceeds of sale of any of the Mr Garvey Assets; any assets owned by B Pty Ltd or an entity which is a “Related Entity”[10] of B Pty Ltd;[11] and

   b)the term “Joint Assets” is defined to mean: the assets specified in Schedule 3; any of the Mr Garvey Assets or the Ms Jess Assets which the parties agree in writing are to be treated as a Joint Asset for the purpose of this Agreement; any assets acquired by either or both of Mr Garvey and Ms Jess after the marriage date (itself defined to be 5 August 2006) other than an asset which the parties agree in writing is to be treated as a Mr Garvey Asset or an Ms Jess Asset[12] (as the case may be) for the purposes of the Agreement.[13]

   [10] Defined in Clause 1.1.7 to have the same meaning as in the Corporations Act 2001 (Cth).

   [11] Clause 1.1.3.

   [12] A term defined in Clause 1.1.4.

   [13] Clause 1.1.6.

4. The assets specified in Schedule 1 to the Financial Agreement (the “Mr Garvey Assets”) are as follows:

   a)a half share in a unit situated at T Street, Suburb M (Lot … on BUP …); and

   b)Mr Garvey’s shares in B Pty Ltd (ACN …); and

   c)the Trust fund known as the J Trust, being a trust of which J Pty Ltd (ACN …) is the trustee; and

   d)B Superannuation Fund.

5. The assets specified in Schedule 3 to the Financial Agreement (the “Joint Assets”) are as follows:

   a)K Street, Suburb L (Lot … on RP …, Parish …, County …); and

   b)the Trust fund known as the N Trust, being a trust constituted by deed dated 18 March 2005 between Mr Q (as settlor) and N Pty Ltd (ACN …) (as trustee); and

   c)personal effects.[14]

   [14] A term defined in Clause 1.1.8 to mean “an interest in any jewellery, clothing, furniture and other articles of personal, domestic, household or garden use or ornament”.

6. It appears that the parties are in dispute about property which falls within the term “Joint Assets”, the existence and quantum of liabilities which may be caught by the operation of the clause which requires them to be equally responsible for and indemnify the other against one half of all liability encumbering or incurred in acquiring the joint assets (in particular, the asserted loan of $603,226.62 by Mr Garvey’s parents which he alleges was applied toward the costs of renovating the K Street property) and whether there is any property in existence which is not captured by the terms of the Financial Agreement.

7. These disputes arise in circumstances where Ms Jess alleges that, during the marriage, she was not a party to decisions about financial matters and that Mr Garvey did not provide her with financial information about his income and the application of the same. Given what she alleges was her resultant lack of knowledge about such matters (including the existence of the alleged loan), she seeks the opportunity to test Mr Garvey’s assertions about the characterisations of property, the existence of liabilities and his income and financial resources by reference to source documents, including those which he is required by the terms of the 21 June 2016 Order to provide to her.

8. In order to appreciate fully the basis on which Ms Jess relies for her contention that, in essence, she will be prejudiced if Mr Garvey is granted leave to review the 21 June 2016 Order and, if such leave is granted, an order in the same or similar terms is not made, it is also necessary to have regard to certain aspects of her evidence – accepting that the same remains a further matter of contest between herself and Mr Garvey.

Some relevant aspects of Ms Jess’s evidence   

1. Ms Jess’s affidavit, filed on 23 December 2016, contains her evidence about a number of conversations she says she and Mr Garvey had which are relevant to the issue of the property dealt within the Schedules to the Financial Agreement and, arguably, her applications for lump sum spousal maintenance and the child support departure application. In particular, she says that:

   a)when she and Mr Garvey first started their relationship, he told her that he owned in a block of units at T Street, Suburb M and that the unit he was then living in was his and that he had just renovated it; she also said that he later told her words to the following effect: “My unit is half in my mother’s name, but it is really all mine. My parents own lots of other units and property in the area”;[15] and

   [15] Affidavit of Ms Jess filed 23 December 2016 at [16].

   b)within a month or two of their relationship commencing, Mr Garvey told her words to the following effect: “I am very successful already and am going to be even more successful. I have to be careful about how I own property because I am in business and as a company director I might be sued. I am right into asset protection and have my own financial planner named Mr O who helps me to minimise tax and protect my assets in case I am sued. I use a variety of legal structures to do this. One of these is my trust the J Trust which I have set up to minimise tax and maximise government opportunities and allow me to take money out of B in a tax effective manner”;[16] and

   [16] Affidavit of Ms Jess filed 23 December 2016 at [19].

   c)before their marriage in 2005, Mr Garvey told her words to the following effect: “I had financial advice and when I set up my company B Pty Ltd, I set it up with my parents as one third shareholders with me as it was the most financially and tax effective structure. It is my company notwithstanding my parent’s shareholdings. I can set things up involving my parents as they will always agree to this and I can move things around into my parent’s name as we are a very close family. I have a great relationship with them and I am an only child and my money stays safe as a result”;[17] and

   [17] Affidavit of Ms Jess filed 23 December 2016 at [20].

   d)during their marriage, Mr Garvey told her words to the effect that: “Mr O, my parents and I have developed a strategy. We each receive an equal dividend but my parents give the money they receive to me. This saves a lot of tax. There is also a superannuation strategy. We make superannuation contributions for my parents from B Pty Ltd at the maximum level and because of their age I can access that money. They give it to me as and when I need it. I minimise my own superannuation contribution as I cannot access it until I retire and I don’t want to wait that long;[18] and

   [18] Affidavit of Ms Jess filed 23 December 2016 at [66].

   e)during the same conversation as that recounted in (d) above, when she asked him where the money was, Mr Garvey told her words to the following effect: “We have lots of money. We are going to be able to retire young and live a fantastic life. I am building it all up for us”;[19] and

   [19] Affidavit of Ms Jess filed 23 December 2016 at [66].

   f)during the same conversation as that recounted in (d) above, when she asked Mr Garvey whether she could be part of the B Superannuation Fund, he told her words to the effect that: “No. There is a maximum of three allowed as it is a self-managed superfund. You cannot be involved”;[20] and

   g)during their marriage, Mr Garvey repeatedly told her words to the effect of: “We are one group. You, me and my parents. Everything is pooled and it does not matter whose name it is in. There are huge benefits for us to have things in my parents’ name and there is no risk. I am an only child and I will receive everything on the death of my parents. That is what [Mr O] and I work on”;[21] and

   h)during their marriage, Mr Garvey repeatedly told her words to the effect of: “Our assets and money are pooled, including with my parent’s money and shared and there is plenty of money for all of us in the pool and that we never need to worry about money and my primary goal is to reduce tax”;[22] and

   i)during their marriage, Mr Garvey told her that he did not know how much he earned and said words to the effect that: “The accountant did all that and I don’t even see it”; and also words to the following effect: “I do not pay myself more as if I paid myself more I would just pay more tax. I am careful to moderate my income to the minimum. I don’t ever want to be audited by the Tax Office”;[23] and

   j)in relation to the K Street property and the renovations to the same:

   i)when she expressed concern over the building cost, Mr Garvey refused to tell her how much the building cost and told her words to the following effect: “Don’t worry about it, we have plenty of money, I will take care of it all”;[24] and

   ii)when, in 2010, she asked him about the costs associated with his plan to renovate the property, Mr Garvey told her words to the following effect: “You worry too much about money. We have paid off the house and now own it debt free. We can easily afford to rebuild. There is millions in the bank in the business and lots of money in the superannuation fund. I want to live in a grand house”;[25] and

   iii)during a discussion in which she voiced her concern about the cost of proposed upgrades and variations, Mr Garvey told her words to the following effect: “Don’t worry there is plenty of cash. This is a cash build. B has plenty of money. It has to go through Mum and Dad’s name and then to us because of the way the shareholdings are. Aren’t we lucky?!”; and

   iv)when she did not know the total cost of the renovations, Mr Garvey told her words to the following effect: “You don’t need to know about that. We have plenty of money and we can afford it”.[26]

   [20] Affidavit of Ms Jess filed 23 December 2016 at [66].

   [21] Affidavit of Ms Jess filed 23 December 2016 at [67].

   [22] Affidavit of Ms Jess filed 23 December 2016 at [109].

   [23] Affidavit of Ms Jess filed 23 December 2016 at [114].

   [24] Affidavit of Ms Jess filed 23 December 2016 at [122].

   [25] Affidavit of Ms Jess filed 23 December 2016 at [129].

   [26] Affidavit of Ms Jess filed 23 December 2016 at [130].

1. In addition to the above, Ms Jess asserts, in essence, that at least once or twice a year Mr Garvey demanded that she sign certain documents, without seeing the contents of the same, on the basis that if she did not they would be fined by the Australian Taxation Office, that she trusted him and that the documents were due that day.[27] She also asserts that he refused to allow her to attend meetings with Mr O (their financial planner), the bank manager and to receive information about their discretionary trust and other investments on bases that included that it was too complex for her to understand, she was too stupid or not smart enough to understand it all and that Mr O handled all “of that” and that he (Mr Garvey) did not even see the information.[28] Ms Jess also alleges, in essence, that Mr Garvey forced her to sign a contract relating to the renovation of the K Street property[29] and, despite now asserting that his parents advanced the amount of $603,226.62 toward the costs of renovating that property, failed to tell her prior to their separation that he had allegedly borrowed money from his parents for the renovation.[30]

   [27] Affidavit of Ms Jess filed 23 December 2016 at [115].

   [28] Affidavit of Ms Jess filed 23 December 2016 at [116].

   [29] Affidavit of Ms Jess filed 23 December 2016 at [122].

   [30] Affidavit of Ms Jess filed 23 December 2016 at [123].

2. Whilst, as already noted, such assertions are contentious and certainly not accepted by Mr Garvey, it seems to me that they establish the overall context within which the submissions made on behalf of Mr Garvey, to the effect that, as the J Trust, B Pty Ltd and the B Superannuation Fund all come within the category of “Mr Garvey’s Assets”, the bank account documents ordered to be provided are not relevant, must be considered. This was one of the substantive arguments advanced by Mr Williams QC on Mr Garvey’s behalf: that is, it was submitted that leave to review out of time should be granted because the documents sought by Ms Jess and the documents the subject of the relevant aspects of the 21 June 2016 Order are not relevant to the contentious issues in the dispute between the parties and, accordingly, to grant the leave sought would be productive of justice and enable the avoidance of injustice as it would enable Mr Garvey the opportunity to be relieved of the obligation to provide documents which he asserts are not relevant.

3. Given Ms Jess’s evidence, I am persuaded that the bank account documents for the J Trust, B Pty Ltd and the B Superannuation Fund are arguably relevant to the determination of at least some of the issues in dispute between the parties and at least some of the relief sought by Ms Jess. Such conclusion disposes of one of the bases on which Mr Williams QC advanced that the interests of justice required the grant of leave to Mr Garvey to review the 21 June 2016 Order. Similarly, I do not accept the submission that the historical bank statements captured by the terms of the 21 June 2016 Order for those entities or the like which are not “available for alteration pursuant to s 79” of the Act are simply irrelevant: I consider that their potential relevance lies in what the contents of the same may establish in terms of Mr Garvey’s actual financial circumstances, where such circumstances are obviously relevant to Ms Jess’s claims for lump sum spousal maintenance orders, orders departing from the administrative assessment of child support, the contention that there may exist property which is not covered by the terms of the Financial Agreement and the quantification of the value or quantum of the property or liabilities which are.

4. Mr Williams QC also submitted that a further matter to be taken into account in determining whether to exercise the discrete in favour of the grant of leave sought by Mr Garvey is the fact that, insofar as N Holdings Pty Ltd ATF N Trust is concerned, Ms Jess can, by virtue of the fact that she and Mr Garvey are both directors and shareholders in the corporate trustee of the same and principals of the trust, obtain the documents which the 21 June 2016 Order compels Mr Garvey to provide to her; it was submitted that the same position pertains to Pine Tree Pty Ltd, as the shareholding in the same is held by N Holdings Pty Ltd. Given Ms Jess’s evidence about her state of knowledge of financial matters during the parties’ marriage, I prefer the submissions made by Mr Hackett in response.

5. Whilst the 21 June 2016 Order for disclosure of three years of bank statements went further than the two year period sought by Ms Jess in her Amended Initiating Application filed 20 May 2016, I do not consider that the Registrar was restricted only to that timeframe. 

6. Whilst it was submitted that complying with the terms of the disclosure as ordered on 21 June 2016 will be particularly onerous for Mr Garvey given the asserted quantum of documents covered by the terms of the 21 June 2016 Order, it seems to me that there may well be a way in which the burden can be minimised – whilst there is no evidence to this effect, I wonder whether it may be possible for Mr Garvey to grant Ms Jess “read-only” access to the relevant bank account? Even if this – or some other method – is not viable, I am not persuaded that the burden of compliance outweighs ensuring that, given the allegations sworn to by Ms Jess, appropriate disclosure is made by Mr Garvey to her.

7. I do not accept the thrust of the submissions made by Mr Williams QC in opposing orders for disclosure relating to the self-managed superannuation fund; whilst I accept that the financial statements for the same have already been disclosed, I do not accept, given Ms Jess’s evidence about Mr Garvey’s asserted comments to her about the way in which funds held within the self-managed superannuation fund were managed, that I could confidently conclude at this time that there is no forensic value to Ms Jess in having the bank account statements produced to her.

8. I generally accept the submissions made by Mr Hackett on behalf of Ms Jess to the effect that she will suffer significant prejudice if Mr Garvey does not produce the documents he is required, by the terms of the 21 June 2016 Order, to produce because her case includes the clear propositions that:

   a)due to the way in which the parties’ finances were managed during the marriage, the extent of and application of Mr Garvey’s income throughout the marriage is unknown to Ms Jess and she seeks to test Mr Garvey’s assertions with respect to his income through the bank accounts of the legal entities in which Mr Garvey has an interest; and

   b)Ms Jess did not agree to any assets or “investments” made during the marriage being deemed to be “Mr Garvey Assets” and accordingly she seeks to test Mr Garvey’s assertions through bank statements as to the property he asserts to be “Joint Assets” for the purpose of enforcing the Financial Agreement; and

   c)she disputes the veracity of Mr Garvey’s assertions regarding loans owing to his parents (who are also shareholders or members of the legal entities in which Mr Garvey has an interest), and seeks to test Mr Garvey’s assertions with respect to those loans through the bank statements for those legal entities.

Conclusion in respect of the application for leave to review aspects of the Order made on 21 June 2016

1. I am not persuaded that Mr Garvey has provided any satisfactory explanation for the failure to seek to review the Order made on 21 June 2016 within the time prescribed by the Rules. I am not persuaded that compliance with the challenged terms of the Order will unfairly prejudice Mr Garvey; in so far as it was submitted that the documents relating to the B Superannuation Fund are not relevant to the proceedings as the terms of the Financial Agreement provide that Mr Garvey is to retain the same, I note Ms Jess’s evidence (as outlined above) of the alleged content of conversations between herself and Mr Garvey during their marriage about the manner in which this Fund was operated for the ostensible benefit of the family unit as it was then constituted.

2. I also accept, for the purpose of determining this application for leave, that Ms Jess’s case is that, during the marriage, she did not know the extent of Mr Garvey’s income nor his application of the same and that, given that her current application involves maintenance, she seeks to test his assertions about his income against the content of the bank accounts of those legal entities in which he has an interest – especially given what she alleges were the contents of conversations between them about the manner in which Mr Garvey approached the management of his financial situation (as summarised above). I also note that part of her case involves challenging, through the contents of the bank statements, those assets which Mr Garvey asserts constitute “Joint Assets” for the purpose of enforcing the terms of the Financial Agreement; she also challenges Mr Garvey about the existence of the alleged loan from his parents and, via access to the bank records, seeks to test his assertions about this issue.

3. For the reasons outlined above, I am not persuaded that granting Mr Garvey leave to review the Order made on 21 June 2016 would be productive of justice and enable the avoidance of injustice in the circumstances of this case and, consequently, I decline to accede to his application for the grant of leave.

4. Had I granted Mr Garvey’s application for leave to review the 21 June 2016 Order and subsequently determined the application which resulted in that order being made, I would have been persuaded, for the reasons which pertain to my determination to decline Mr Garvey’s application for leave to review, to make orders in terms of those made by the Registrar that day.

5. Given my conclusion and in the hope of avoiding further dispute, I consider it just and appropriate to order that, within 30 days of the date of the order, Mr Garvey comply with the terms of Orders 12(f), 13(f) and 15(c) of the Orders made by Registrar Stoneham on 21 June 2016.

The payment of the rates

1. Mr Garvey seeks that Ms Jess be solely responsible for and indemnify him in respect of any arrears of rates payable to S Council for real property situated at K Street, Suburb L and that she continue to pay the rates for this property as and when they fall due until final property settlement orders issue.

2. The K Street property is owned by Mr Garvey and Ms Jess as tenants in common in equal shares. It was the former matrimonial home and Ms Jess and the children continue to live there.

3. It is, I think, uncontroversial that Mr Garvey paid the rates for the K Street property for about 12 months after the parties separated. His evidence is that he subsequently ceased making these payments (in about April 2017) and started to send the rates notices to Ms Jess for her to pay the same. He says he did so after Ms Jess advised him that she intended to cancel the health insurance policy which covered him, an action which he says he regarded as fundamentally changing the underlying premise which had existed in June 2015 when he agreed, by way of interim financial arrangements, to pay the mortgage repayments and the rates and water charges in respect of the K Street property pending resolution of the interim financial arrangements.

4. In seeking that Mr Garvey be ordered to pay all of the rates payable on the property and any outstanding arrears to date (being in the amount of $4,558.15), Counsel for Ms Jess noted that there is no evidence from Mr Garvey to suggest that he cannot afford to pay the rates as and when they fall due; he submitted that, whilst Mr Garvey’s Financial Statement filed on 17 May 2019 asserts that he has a weekly deficiency of $160.61, his included expenses include a total of no less than $155.00 per week for holidays, entertainment and a gym membership/cost of a personal trainer. Counsel for Ms Jess submitted that, in contrast, Ms Jess’s financial situation is such that she has a weekly deficiency of $2,678.00/week; he submitted that, despite having reached an agreement with the Council to pay $50.00 per fortnight to meet her half share of the rates, she is unable to meet outgoings such as contents insurance, internet, or have certain repairs to the property done as a result of her financial circumstances. Counsel for Ms Jess submitted that, whilst she has access to cash at bank of $226,526.00, she has to apply such funds to defraying her legal expenses and to make up her weekly income deficit and that authority did not require her to deplete such reserves in order to establish that she is unable to support herself adequately.

5. Counsel for Mr Garvey submitted that, given the quantum of Ms Jess’s cash at bank and that she continues to live in the K Street property, it is just that she meets the rates expenses which arise from the same.

6. I am not persuaded that it is just that Ms Jess be required to meet the entirety of the rates expenses for the K Street property; similarly, I am not persuaded that it is just that Mr Garvey meet the entirety of the rates expenses for the K Street property. Rather, given that the liability for the payment rates accrues as a consequence of the ownership of real property and that Mr Garvey and Ms Jess chose to own the K Street property in the manner that they do, I consider it just that they contribute equally to the payment of the rates payable in respect of it.

7. As Ms Jess has continued to pay half of the rates levied by S Council to date, I consider it is just that Mr Garvey pay the outstanding arrears and that, thereafter, each of the owners of the property pay half of the rates as and when they fall due until the issue of orders finalising the property settlement aspect of these proceedings.

Application to vary the existing interim parenting orders

1. As already noted, Mr Garvey and Ms Jess have two children together: C, born in 2007 and currently 12 years of age and in Year 7 and D, born in 2009 and currently ten years of age and in Year 4. C currently attends at M school, whilst D attends at P School.

2. On 3 August 2017, Carew J made interim parenting orders. Reference to the order makes it clear that some aspects of the orders made that day were made by consent, whilst others were the result of her Honour’s determination of those orders which she considered to be appropriate and in the children’s best interests at that time.

3. The 3 August 2017 Order provides that, during school terms, the children live with Ms Jess and spend time with Mr Garvey in an alternating week regime as follows:

   a)in week 1: from the conclusion of school on Wednesday until the commencement of school on Friday; and

   b)in week 2: from the conclusion of school on Wednesday until the commencement of school on Monday (or Tuesday if Monday is a public holiday or pupil-free day).

4. After later interim proceedings were commend, the parents participated in a Child Dispute Conference on 22 May 2019. They reached some limited agreement. They have agreed that, in the future, C and D should spend the Easter festive/celebratory days with the parent with whom they are otherwise spending holiday time. This represents a change to the terms of the 3 August 2017 Order, which provides that the children spend from Good Friday until Easter Monday in the care of their mother in odd-numbered years and this time with their father in even-numbered years. This change will remove the requirement for the children to transition between their parents’ homes for these periods and will leave them to spend the festive/celebratory days of the Easter school holiday period with the parent with whom they are otherwise spending holiday time.

5. The children’s parents also agree that, for those changeovers which occur on non-school days, the parent with the children in their care at the conclusion of the time shall deliver the children to the other parent’s home and both parents agree that neither will exit their car or home at such times; they agree that the school holidays be those periods of school holidays prescribed by M School (so as to avoid having to implement different changeover dates for each of the children given that, from January this year, C started to attend at M School instead of P School where D continues to attend) and that both children should always spend their time together with each of their parents.

6. However, there remain a number of issues about which the parents did not agree vis-à-vis the manner in which the children’s holiday time with each of them should occur.

7. The approach to be taken in determining applications for interim parenting orders is well known and requires further elucidation: see Goode & Goode[31] and Banks v Banks.[32]

   [31] (2006) FLC 93-286.

   [32] (2015) FLC 93-637.

The June/July and September/October school holiday periods

1. Mr Garvey initially proposed that the terms of Clause 3 of the interim parenting order made on 3 August 2017 be varied so that, instead of the children spending half of each of these school holiday periods with each of their parents:

   a)in odd-numbered years, they spend all of the June/July school holidays with their mother and all of the September/October school holidays with him; and

   b)in even-numbered years, they spend all of the June/July school holidays with him and all of the September/October school holidays with their mother.

2. However, after being provided with a copy of the Child Dispute Conference Memorandum to the Court dated 22 May 2019,[33] Mr Williams QC outlined that Mr Garvey was content to proceed on the compromise position which he said had been offered by Ms Jess – although reference to the transcript establishes that his reference was to a five/eleven regime being ordered for both the June/July and September/October holidays whereas Ms Jess’s compromise position (as voiced to Ms R, the author of the Memorandum) was that only the June/July holidays be taken in a five/eleven night regime whilst the September/October holidays remain to be taken in the manner provided for by the existing order.

   [33] Exhibit 1.

3. Mr Garvey’s proposal therefore, initially appeared to become that each of the June/July school holidays and the September/October school holidays be divided so that the children spend five nights with one parent and eleven nights with the other during each school holiday, such that the children spend, for example:

   a)in odd-numbered years: five nights with him and 11 nights with their mother during each of the June/July school holidays and the September/October school holidays; and

   b)in even-numbered years: 11 nights with him and five nights with their mother during each of the June/July school holidays and the September/October school holidays.

4. Ms Jess’s initial position was that there should be no change to the manner in which the children spend time with their parents during the June/July and September/October school holidays. However, during the Child Dispute Conference, she outlined that she would compromise by agreeing that the June/July school holidays be taken in a five/eleven night regime; as noted, she maintained that the September/October school holidays remain to be taken as provided for in the existing interim parenting order (that is, equally and in equal-time blocks). Ms Jess confirmed during her oral submissions that this was her position.

5. Once Ms Jess maintained her position in relation to the manner in which the September/October school holidays should continue to be taken, Mr Garvey reverted to the position outlined in paragraph 51.

6. I consider that the manner in which this occurred reinforces Ms R’s conclusions that these parents are unable to communicate effectively and are rarely able to negotiate parenting arrangements.

The Christmas school holidays

1. Mr Garvey proposed that the terms of Clause 5 of the 3 August 2017 interim parenting order (which terms were made by consent) be varied so that, instead of the children continuing to spend week about time (unless otherwise agreed between them) with each of their parents during the Christmas school holidays, the children spend time with him for the first half of the school holidays (being the period prescribed by M School) in odd-numbered years and the second half in even-numbered years and spend time with their mother for the first half of the period in even-numbered years and the second half in odd-numbered years.

1. Ms Jess’s primary position was that there should be no change to the current orders and that the children should continue to spend alternating weeks with each parent during the end of year school holidays. She advanced that this is in the best interests of the children because she contends that they would struggle to be away from her for a three week block of time; she also said that the existing arrangements are more suitable for her from a work perspective. If her primary position did not find favour, she submitted that the children’s time with each parent during the Christmas school holidays occur in four 11 day blocks.

The Christmas festive/celebratory days

1. Mr Garvey initially proposed that the terms of Clauses 7(a)(i) and (ii) of the interim parenting order made on 3 August 2017 (which terms were made by consent) be varied so that, instead of providing that the children spend from 4.00 pm on Christmas Eve until 4.00 pm on Christmas Day with him in odd-numbered years and from 4.00 pm on Christmas Day until 4.00 pm on Boxing Day in even-numbered years (and the reverse with their mother), the orders provide for the children to spend time with their mother from 4.00 pm Christmas Day until 4.00 pm on Boxing Day in odd-numbered years and from 4.00 pm Christmas Day until 4.00 pm on Boxing Day in even-numbered years with him.

2. However, Mr Williams QC informed that, if Mr Garvey was successful in obtaining the orders he sought for the children to spend half of the Christmas school holidays in consecutive week blocks, then he sought the change summarised above but, if he was unsuccessful and the children continued to spend half of that holiday period with each parent (but in alternating week-long blocks) Mr Garvey did not press for there to be any change to the existing interim order in this respect.

3. Ms Jess was somewhat ambivalent about this issue. At one point she appeared to me to submit that she thought it could be unsettling for the children to transfer into the other parent’s care for one day and that it would be better if the same approach is taken as that which has now been agreed to apply to the Easter festive days but also said, in essence, that she did not mind. 

Submissions, discussion and resolution of competing parenting proposals

1. Mr Williams QC submitted that the terms proposed by Mr Garvey would better afford the children the opportunity to engage in extended holidays with each parent. It was submitted that orders in the terms he sought would better enhance the children’s opportunity to travel overseas or interstate and, insofar as the Christmas school holiday aspect of his proposal was concerned, reduce the number of changeovers in which the children would have to participate and free them from the constraints of having to remain in and around the Brisbane environs. As I understood the submissions, it was that less transitions between their parents’ care would better promote stability in the children’s routines and provide them with the opportunity to spend longer block periods of time with each of their parents. It was submitted that longer periods of time would assist the children to settle into the routines maintained in each of their parents’ homes. It was also submitted, albeit inferentially in a sense, that the children are of an age where spending the Christmas holidays with their parents in the manner Mr Garvey proposed would be unlikely to cause them any difficulty.

2. Mr Williams QC also submitted that, whilst Ms Jess outlined that she would be unlikely to be granted leave of three weeks’ duration, her position was only that this was “unlikely” and that there was no evidence to suggest that she would be unable to take her leave in this manner; he also submitted that, if Ms Jess was unable to take a three week block of leave during the Christmas school holidays, she could make appropriate arrangements for the children’s care and had the financial resources to do so. In responding to this submission, Ms Jess submitted that the children had never attended vacation care or even after-school care.

3. Insofar as Ms Jess’s proposal to remove that aspect of the existing order which provides for the children to transition between their parents’ homes during the Christmas festive days/public holidays, it was submitted in writing that Mr Garvey sought to maintain the children spending some time in each of their parents’ care at such times so they could spend time with him and members of their extended paternal and maternal families on these special occasions.

4. Ms Jess, who appeared on her own behalf on the parenting aspect of the applications heard on 29 May 2019, outlined that she took the position that she did because, as the parenting regime by which the children had spent half of each holiday periods with each parent (including in a week-about manner during the Christmas school holidays) had been in place since September 2015, it was something that the children were used to; she also submitted that she was unlikely to be able to obtain approval for a three week block of time in January due to her work requirements and that, whilst she could accrue sufficient flex leave to be able to have every second week away from work during the Christmas school holidays, she could not accumulate sufficient leave to contribute to a three week block of time.

5. As outlined in her written submissions, Ms Jess opposed the children spending all of September/October holiday periods with only one parent as she, in essence, thought that they needed and benefitted from the opportunity to spend quiet, relaxing and bonding time with each of their parents during each school holiday period in order to recharge. She submitted that the children needed to spend regular “down time” with each parent during each of their holidays.

6. Ms Jess also submitted that having time with each parent during each of the school holiday periods enabled the children to maintain their relationships with members of their extended families; she submitted that the weekly changeovers for the Christmas school holidays had previously worked well, that the children settled well and that a three week block of time was too long for the children to spend away from her care. She noted that Mr Garvey’s evidence included that he had taken the children on overseas trips during the time provided for by the existing orders – although Mr Williams QC submitted that this travel had occurred during the longer school holiday periods which applied when both children attended P School.

7. Whilst she said in her written submissions (and orally) that, in attempting to reach an agreement with Mr Garvey, she had offered that the children spend alternating periods of approximately 11/12 days with their parents during the Christmas school holidays, so that they would be able to travel if he wanted to do that but not be away from her for the 21 days that a three week block of time entailed, Ms Jess maintained that the existing week-about arrangement was the one that best met the children’s needs: the weekly parenting regime remained her preference because, from her perspective, the children are used to this arrangement and, consequently, it would be disruptive for them for it to change.

8. Having regard to the evidence relied on by Mr Garvey and Ms Jess (and noting the limitations inherent in the interim process vis-à-vis the ability to make findings of fact) and taking into account the submissions advanced by Mr Williams QC for Mr Garvey and by Ms Jess, I consider that the children’s best interests will be met by affording them the opportunity to spend a longer period of time with one parent than the other during the June/July and September/October school holidays whilst otherwise maintaining the current week-about regime for the Christmas school holidays.

9. In arriving at this decision, I have balanced the likely advantages to the children of having longer blocks of time with a parent, which would enable them to travel away from the Brisbane environs (including overseas) and the fact that these children have to date consistently spent time each week with both of their parents; given this, I am not persuaded at this time that spending 21 consecutive nights away from either parent is now in their best interests.

10. Given that Ms Jess seemed to me to be equivocal in relation to the arrangements for the Christmas festive/celebratory days and Mr Garvey’s position, given the orders I will make, that there be no change to the existing arrangements for these days, I decline to make any change to the same.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 9 September 2019.

Associate:     

Date:              9 September 2019