Hartnett and Sampson (No. 8)

[2007] FamCA 1076

FAMILY COURT OF AUSTRALIA

HARTNETT & SAMPSON (NO 8) [2007] FamCA 1076

FAMILY LAW – SPOUSAL MAINTENANCE - Interim - Payment of money to enable compliance with parenting orders

Family Law Act 1975 (Cth)

APPLICANT: Ms Sampson

RESPONDENT: Mr Hartnett

INDEPENDENT CHILDREN’S LAWYER: Ms Karagiannis

FILE NUMBER: SYF 3827 of 2004

DATE DELIVERED: 30 August 2007

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 30 August 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr M Paul, Paul & Paul Lawyers

APPEARANCE FOR THE RESPONDENT: Husband in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Karagiannis, Legal Aid Commission of New South Wales

Orders

1. That the application for orders in terms of Exhibit 2 is dismissed.

1. That leave is given to the parties to approach the List Manager for a hearing estimated hearing time one day before a Judge or Judicial Registrar as soon as practicable in relation to interim spousal maintenance and interim child support departure.

1. That the proceedings in relation to appointment of an agent for sale of a property estimated hearing time one hour are adjourned to the call-over of the Judicial Registrar's Duty List at 9:30 am on 18 September 2007.

1. That for the purposes only of an anticipated contravention of the orders made on 7 June 2007 by the wife the following orders are made:

4.1In the event that the wife does not advise the husband by email by 4:00 pm today that she will comply with the orders of 7 June 2007 in relation to the parties’ children spending time with the husband which is to commence on 31 August 2007 the wife shall provide the children to the husband at Avalon Airport or such other place as the parties may agree at any time nominated by the husband by email to the wife sent not later than 8:00 pm today and the time to be a time between 12:00 noon on Friday 31 August 2007 and 6:00 pm on Sunday, 2 September 2007.

4.2That the Court notes that range of times is provided in the event that there is a breach of the Court orders notified to the husband and he is unable to travel to Avalon Airport on Friday or Saturday.

4.3That in the event that the husband collects the children from the wife in Geelong pursuant to order 4.1 he shall return the children to her at Avalon Airport or at such other location upon which the parties may agree not later than 12:00 noon on Wednesday, 5 September 2007.

4.4It is noted in that regard the wife today, through her solicitor offered to agree to an arrangement whereby she would collect the children from the husband in Sydney.

4.5In the event that the wife does not advise the husband by email by 4:00 pm on 5 September 2007 that she will comply with the orders of 7 June 2007 in relation to the children spending time with the husband in Sydney pending determination of the appeal in respect of the orders of 21 March 2007 then unless the Court otherwise orders or the parties otherwise agree then the wife shall provide the children to the husband at such times, dates and places as the husband nominates in writing to her sent by email at least 7 days before any occasion the children are to spend time with him.

4.6The Court notes that the intention of that order is that the husband will nominate times and provide the children with the opportunity for the children to spend the amount of time with him in Sydney that would have been spent if the orders of 7 June 2007 had been complied with. 

4.7The Court notes that it is the intention of these orders to facilitate the time between the husband and the children in the event that the wife is in breach of the orders of 7 June 2007 and that they are not intended to relieve her of her obligation to comply with the letter of the orders of 7 June 2007.

1. That leave is given to the parties on giving 48 hours notice to the Court and by arrangement with the Independent Children's Lawyer to restore the proceedings to the list in relation to the issue of compliance with the orders of 7 June 2007 on 18 September 2007 or some other date that may be suitable to the parties and to the Independent Children's Lawyer.

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

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Judicial Registrar Loughnan delivered this day will for all publication and reporting purposes be referred to as Hartnett & Sampson

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3827 of 2004

Ms Sampson

Applicant

And

Mr Hartnett

Respondent

REASONS FOR JUDGMENT

1. These are proceedings for various financial orders and I think the character of the proceedings is said to be spousal maintenance, urgent, interim and final, and child support departure, if there is such a creature, on an interim basis and final.  The matter comes before the Court urgently by arrangement with my Associate on the application of the wife to have an aspect of the matter determined prior to this Friday.  That is because there are orders of the Court which themselves are the terms and conditions of a stay granted in respect of a parenting order that called for children to be transported from Geelong to Sydney at a certain frequency.  Those orders provide that the wife is to be responsible for the costs of that happening. 

2. The wife's case is that she cannot afford those payments and she has brought the matter before the Court saying she wants to be able to comply with the order, that she has tried to compromise the issue with the husband on various bases and she has not been able to.  She provided some alternatives and options, but essentially she is concerned that she will not be able to comply with the order for the upcoming weekends. 

3. The particular order that I am asked to make today is contained in a minute of order sought by the applicant wife to the effect that:

the father is to be responsible for the costs associated with the delivery of the children to and from Sydney for contact to take place commencing 31 August 2007 and for that purpose the father is to pay for the mother's and the children's return flights as follows:  Avalon Airport to Sydney Friday, 31 August departing Avalon Airport 5.25 pm, and Sydney to Avalon Airport Tuesday, 4 September departing Sydney at 5.15 pm, together with return flights for the wife from Sydney to Avalon Airport as soon as practicable after the arrival from Avalon Airport on the Friday and for a further flight from Avalon Airport to Sydney for the wife such as will permit the wife to arrive in Sydney in time to collect the children at the conclusion of contact, such flights to be as nominated by the wife as soon as practicable after making of the orders. 

1. That is the order sought, but very clearly the solicitor for the wife has argued the case on the basis of s.77 which is a provision that provides for urgent maintenance.  The authorities have identified that as a form of relief under the general head of spousal maintenance, which is a right that applies between people who have been married, where one of them is unable to adequately support themselves from their own resources, the other can be called upon to provide support to the extent of that person's capacity.  That is the relief of spousal maintenance. 

2. In relation to urgent maintenance, the authorities have it that it is what it sounds like; an urgent remedy, not an interim remedy.  It is something to keep the wolf from the door until there can be a hearing on the merits of the issue.  Traditionally the courts accepted that it is a very truncated process, as Mr Paul said today, and usually the orders do not last for very long. 

3. Here the question of interim spousal maintenance was determined in the substantive proceedings by an order which I think was an order to last for six months:

   11.The husband is to pay to the wife on or before one month from this date the sum of $12,000 by way of lump sum spousal maintenance for the period six months from the date of these orders. 

4. Those orders were made on 21 March 2007.  On its fact that order was intended by the trial Judge to last until the 21st of next month. However, that would not be the end of the matter.  There is power under s.83 for an order to be made by way of variation of an order for maintenance.  There is no reason why that could not apply to an order for lump sum maintenance.  But there is a very clear onus that is placed on an applicant in those circumstances to demonstrate a change of circumstances. So firstly, the order that I am asked to make literally contradicts the order that was made as a term of the stay granted in respect of the parenting orders made on 21 March.  I know that because in her reasons for judgment her Honour Moore J says, among other things, that:

   At the same time the Full Court made an order remitting to me as the trial Judge the "terms and conditions" on which o.17 is being stayed.

5. Order 17 was the order, in summary, that required the wife to cause two children to be relocated to the Sydney area.  Her Honour, as she sets out in her reasons, set about that task.  The orders, as I say, that have been made include an order the wife is to be responsible for the costs associated with the delivery of the children to and from Sydney for those visits.

6. The order that I am asked to make today is in direct contradiction of the term of the stay. 

7. Now, there is a nice argument available, I accept, to deal with that situation, for example, Mr Paul could have recast this application to say pursuant to s.77 the husband pay to the wife an amount equivalent to the amount that she would be responsible for, and so on.  That might be seen as something that was not usurping the role of the trial Judge. 

8. By convention, a stay is invariably determined either by the Full Court considering an appeal against the order, by the Judge who granted the original order or in circumstances where that Judge is not available, by another Judge.  There is no suggestion of that here, there is no evidence of any approach to her Honour about a variation of the terms and conditions of the stay.  Mr Paul says there would be an objection to her Honour hearing the matter, I gather, on the basis of bias. I do not know that there would be a disqualification in those circumstances.  I think probably the proper approach would be to have that issue determined and then if aggrieved about it, have it dealt with by somebody else; but I do not know.

9. Just assuming for the moment that another device would have been available, that is to say, an order could have been made to a similar effect under s.77,  looking at the merits of the wife’s claim - there are some real problems with this.  What has happened, as I understand it, is that her Honour made that financial provision expressly for the purposes of assisting the wife to comply with an order to relocate, to enable her to give effect to o.17 of 21 March 2007.  As her Honour noted in June, that payment was not applied for that purpose.  The evidence is at no time did the wife relocate to Sydney. So her Honour clearly intended that those funds were available to assist with compliance with the orders that were the terms of the stay. 

10. The evidence is that those funds were also applied for another purpose -  paying fees associated with the wife’s appeal, including the cost of purchase of transcript needed for the preparation of the appeal books.  That is not a purpose for which the money was ordered to be paid.  It is not a purpose which the wife could have assumed was intended under the terms of any judgment of this Court.  In those circumstances the wife has made an election about how she would apply moneys earmarked for a particular purpose. In those circumstances there is no reason why the husband should be responsible for the payment sought.

11. There are a number of background facts that go to the financial disaster that is attended upon the parties' property settlement.  I understand that there is a property in Sydney yet to be sold and is not yet clear whether, there will be  any net proceeds of that sale. 

12. The wife's case is that she has something in the order of $900,000 in debts.  The gist of it, I am told is that unless the property achieves a certain figure she will have a significant shortfall. If it achieves a higher figure, then it may be that there will be no net proceeds and so on. 

13. Further, I cannot be satisfied on the basis of material today that the wife has exhausted all of the opportunities she has to raise funds.  There are questions to be raised.  She asserts that she does not have any further borrowing capacity.  She has received significant subsidies, she says.  She says that she owes members of a family I think of the order of $100,000.  She pays rent to something called the Sampson Consulting Pty Ltd.  I do not know whether that is an entity related to her or related to somebody known to her.   I am told, not only does she owe her current lawyers an amount of the order of $200,000, she owes a previous solicitor something in excess of that. I am told today that her solicitor has advanced moneys on the wife’s behalf by way of disbursements.

14. I asked Mr Paul today whether he had been or anticipated being paid for his work in these proceedings today and his answer was, "I do not think so." I take it then that he is rendering accounts. That would make sense of the fact that the wife's evidence has changed as to how much she owes her solicitors. But Mr Paul is not sanguine about being able to recover on those accounts. I raised the issue because I was concerned about the question of proportionality. Here we are dealing with a claim for some hundreds of dollars. I understand that the wife says that she need $800 a trip for the occasions when the children need to be brought up to Sydney. Here we have proceedings in a Superior Court over a very modest claim.

15. I appreciate there are other proceedings on foot and they are matters for another day.  As to the proceedings overall, I have worked in this jurisdiction for many years and I do not recall learning of such a disproportionate expenditure of legal costs compared to the matters at issue. In settling parenting arrangements and dividing a substantial pool of assets the assets have been entirely consumed. This is a scandal as far as the public must be concerned in terms of the commitment of public and private cost.  It is not for me to say who is responsible for that, but it is terrible. 

16. There are a number of assertions in the wife's affidavit about her reaching the limit of her financial capacity.  The husband makes some assertions about her having discretionary travel at the generosity of her mother or someone else.  I cannot be satisfied on the wife's material that she was motivated to exhaust every avenue to meet her obligation pursuant to the orders of 7 June.

17. I am not willing to interfere the terms of a stay. In my view, (a) if the terms of the stay are to be varied, that it is a matter for the trial Judge and if that is not the case, to the extent that there may have been an opportunity to cast to seek a similar order under s.77, in my view, the wife does not make a case today. I cannot be satisfied, with the background of this case that the wife has made every effort to comply with the orders.  Therefore, the application today for orders in terms of the minute, which I will make exhibit 2, is dismissed.

18. I spoke to the husband in relation to the possibilities going forward.  Notwithstanding the problems in the matter, I cannot assume that the wife will not redouble her efforts now and seek to make arrangements.  She has spoken today through Mr Paul, about an order that would accommodate some adjustment back, an order that could be characterised as an advance against interim spousal maintenance or final spousal maintenance orders  or a credit against a child support departure order or even an adjustment in the event that there is a surplus from the sale of the property proceedings.  If she is happy to deal with it on that basis, then there may be other sources of funding available to her.  We know she has resorted to them in the past.

19. In relation to the substantive matter, we do not know when the Full Court is going to deliver its decision.  I think probably it is not sensible for the reasons I have discussed with the parties that we make arrangements for a final hearing in relation to child support and spousal maintenance because it may be that there is something in the parenting appeal that has a bearing on that.  Therefore, it is a matter of looking to providing a hearing for the remaining interim issues.  These proceedings are never short so I think if we set aside a day for the interim proceedings – I do not know when that might be, but I give leave to the parties to approach the contested list clerk for a hearing, estimated hearing time one day, as soon as practicable before a Judge or Judicial Registrar. 

20. There is a remaining issue in relation to the consequences of the anticipated breach by the wife of the orders made on 7 June 2007.  This is a process that I have been reluctant to embark on for the reasons I gave earlier. I do not feel as though I am in a position to change the terms and conditions of the stay.  However, in the best interests of the children, it seems to me that I should make provision for the children to spend time with their father in the event that the wife does not comply with the orders.  In making orders I in no way intend that the wife be relieved of her obligation to comply with the letter of the orders made on 7 June 2007.  If she intends to be in breach of those orders or is in fact in breach of those orders, then she will be accountable in relation to that issue.  But, as I say, the history of the matter suggests that it may be that the children would miss out on the time with their father unless I make some orders today.  

21. There are a number of variables.  At the moment the husband hopes he will be able to spend some time with the children.  At the moment he hopes that he will be able to facilitate that by air.  He made a proposal in relation to a certain arrangement and at or before the time when that proposal was accepted on behalf of the wife with a variation, that proposal has been withdrawn.  What I propose to do is to make an order which will in effect be an order until further order, but I note that the matter is back in court before my colleague on 18 September.  It is a matter for the parties on giving proper notice to each other and to Ms Karagiannis, subject to her availability, whether on that date or some other date they wish to agitate this issue. 

22. So the orders that I make are for the purposes only of an anticipated contravention by the wife of the orders made on 7 June 2007.

I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Acting Associate:     

Date: