HENLEY & GARRETT and GARRETT & HENLEY
[2010] FMCAfam 314
•31 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HENLEY & GARRETT and GARRETT & HENLEY | [2010] FMCAfam 314 |
| FAMILY LAW – Parenting – enforcement of orders – change of parenting orders sought by respondent – respondent brings enforcement of spousal maintenance and child support orders – application for receiver. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 80, 117 Federal Magistrates Court Rules 2001, rr.1.03, 1.05, 16.05, 25B.02 Family Law Rules 2004, rr.20.06, 20.46, 20.47 Child Support (Assessment) Act 1989, s.117 |
| Ex parte Farmer’s Fertilisers Corp Ltd (1916) 16 SR (NSW) 645 Rice & Asplund (1979) FLC 90-725 Penfold v Penfold (1980) 144 CLR 311 Oliver & Oliver [2010] FMCAfam 220 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 |
| Applicant: | MR HENLEY |
| Respondent: | MS GARRETT |
| File Number: | BRC 88 of 2008 |
| Judgment of: | Coates FM |
| Hearing date: | 2 March 2010 |
| Date of Last Submission: | 25 March 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 31 March 2010 |
REPRESENTATION
| Solicitors for the Applicant: | Self Represented |
| Counsel for the Respondent: | Ms Anderson |
| Solicitors for the Respondent: | Anthony Black Family Law |
| Applicant: | MS GARRETT |
| Respondent: | MR HENLEY |
| File Number: | BRC 88 of 2008 |
| Judgment of: | Coates FM |
| Hearing date: | 2 March 2010 |
| Date of Last Submission: | 25 March 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 31 March 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Anderson |
| Solicitors for the Applicant: | Anthony Black Family Law |
| Solicitors for the Respondent: | Self Represented |
ORDERS
That pursuant to Rule 20.46(1) of the Family Law Rules, Mr S and
Ms M be appointed as Joint Receivers (“the Receivers”) of the income and property of Mr Henley (hereinafter referred to as “the husband”) so as to give effect to Orders 1, 2 and 5 of the Orders of Federal Magistrate Coates made 22 September 2009, together with any Orders for costs payable by the Husband.
That pursuant to Rule 20.47(3) of the Family Law Rules the Receivers are authorised to do (in the Receiver’s names or otherwise) anything that the husband may do.
That pursuant to Rule 20.47(4) of the Family Law Rules the Receivers’ powers operate to the exclusion of the powers of the Husband during the receivership in relation to compliance with Orders 1, 2 and 5 of the Orders of Federal Magistrate Coates made 22 September 2009.
That the Receivers’ remuneration be paid from the estate of the husband and such remuneration be calculated in accordance with the standard rates effective from time to time of [K] Chartered Accountants (Qld).
That there be no security given by the Receivers.
That the husband co-operate with the Receivers and shall:-
(a)Provide such documents, financial records, bank statements / books, tax records and any other financial document as required by the Receivers within twenty-four (24) hours of request by the Receivers;
(b)Provide full details to the Receivers within twenty-four (24) hours of request of the names and address of any employer or entity controlled by the husband which has received remuneration within the last seven (7) years;
(c)Provide any other information sought by the Receivers which relate to income or property of the husband.
That the Receivers shall submit accounts to the following parties on a monthly basis:-
(a)Ms Garrett;
(b)Mr Henley.
That the wife have liberty upon giving fourteen (14) days written notice to apply, including an Application that the husband’s passport be lodged with this Honourable Court until the husband’s obligations created by Orders 1, 2 and 5 of the Orders made 22 September 2009 are complied with.
That the Orders made by consent in the Family Court at Brisbane on
8 July 2004 relating to the child [Z] born [in] 1996 are discharged.
That the child [Z] live with the mother, Ms Garrett.
That the mother have sole parental responsibility for the child.
That upon the mother’s enrolment of the child [Z] at [S] School, the mother and father share equally the costs of school fees.
Upon enrolment, the mother is to inform the father in writing of such enrolment and to supply him with a copy of each account for fees when received.
That the child [Z] spend time with the father at such times as agreed between parties and after consultation with the child.
That the husband shall pay the wife’s costs of and incidental to the proceedings commenced by the wife’s Application on 4 January 2008 up and until orders were made on 22 September 2009 fixed in the sum of $43,012.46.
That the husband shall pay the wife’s costs of and incidental to the enforcement and parenting proceedings up to and including 31 March 2010 fixed in the sum of $7,260.00.
IT IS NOTED that publication of this judgment under the pseudonym Henley & Garrett and Garrett & Henley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 88 of 2008
| MR HENLEY |
Applicant
And
| MS GARRETT |
Respondent
AND
| MS GARRETT |
Applicant
And
| MR HENLEY |
Respondent
REASONS FOR JUDGMENT
This matter deals with a dispute which has continued for ten years since consent orders for both children and property were reached by the parties in 2001.
The dispute currently centres on:
a) Enforcement against the husband for un-met spousal maintenance and children’s expenses; and
b) The parenting orders are now subject of an enforcement application by the husband and a change by the wife.
As the applications concern both parenting and property matters, I will simply, for consistency, refer to the husband and the wife rather than the father or mother, although I will use the correct nomenclature in the orders. I will also refer to previous orders made 21 March 2001 as the 2001 orders and the orders made 22 September 2009 as the 2009 orders. Although not referred to by the parties, relevant parenting orders were made 8 July 2004 and I will refer to those as the 2004 orders.
THE APPLICATIONS
There are two applications before the court.
The first was filed by the husband on 16 November 2009.
In summary, the husband seeks:
a)to enforce the parenting orders made in 2001;
b)an order that the wife pay what he describes as costs of $39,500.00, for a trial in 2009;
c)amendments to monetary orders I made in the 2009 orders, which possibly changes the effect of those orders; and
d)a new order which would be a substitution for those amounts I ordered paid to the wife in the 2009 orders.
The second application, that of the wife, was filed 5 February 2010. It seeks:
a)By way of enforcement, receivers be appointed to the husband’s income and property pursuant to r.20.46 of the Family Law Rules, in order that the wife receive payment under the 2009 orders;
b)to discharge the parenting orders made in 2001, substituting new orders whereby the children live with the her and she have sole parental responsibility;
c)that upon the wife’s enrolment of the youngest child at [S] School, the husband pay half the school fees; and
d)costs of the trial resulting in the 2009 orders in the sum of $43,012.46, as well as costs for this application in the sum of $7,260.00.
PROCEDURE OF HEARING THIS MATTER
This matter required procedural consideration as to directions for the change in parenting orders sought by the wife.
The matter was complicated further because the husband represented himself.
His self-representation follows a pattern in related proceedings in recent years, although in earlier times he has been represented.
The husband stated on numerous occasions that he cannot afford legal representation and that he did not necessarily understand what he was required to do in the presentation of his case.
I did not accept that in the trial leading to the 2009 orders and as this matter proceeded, I could not accept the claim of little understanding of what he sought and what the wife sought.
The husband’s education has allowed him to have a career [in the aviation industry], having been employed by major companies such as [omitted]. He had a good command of spoken English. He also had a good command of figures when dealing with his financial claims.
While those attributes of education and command of language and figures do not prove his capability of understanding the legal proceedings, I found it necessary in the trial which led to the 2009 orders to make findings about the husband’s lack of veracity, which not only affected the orders I then made, but cast doubt on many of the things he stated, including a lack of understanding of the case.
However, but for the issue that he was not represented, I have to put aside those findings to determine both his and the wife’s applications afresh, giving the husband that assistance necessary in order to understand his case and position. From his submissions I was satisfied that he understood his case and position despite claims to the contrary.
It appeared to be logical to hear the husband’s application first, except for his last order whereby he sought a new order substituting payments for the amount he owed to the wife under the 2009 orders.
THE HUSBAND’S APPLICATION
The husband’s application lists ten draft orders which he seeks.
At the hearing he advised that he would not go ahead with those orders sought at paragraphs 3, 4, 5 and 7 listed in his application and I have ruled through those orders on the application document in blue ink.
By his draft order 1, he sought enforcement of the parenting component of the Family Court orders made 21 March 2001.
He did not attach the order to his material.
That he did not affix the orders he wanted enforced can be put aside under this Court’s rules in order to assist the resolution of the matter, see r.1.03 of the Federal Magistrates Court Rules 2001 (“the FMC Rules”). In other words I am not prepared to dismiss that part of the husband’s application because of a failure to attach the orders he wants enforced to his material, see r.25B.02.
The 2001 orders were for the children [X], born [in] 1992, [Y] born [in] 1994 and [Z] born [in] 1996, to live with the wife and spend every second weekend with the husband and one afternoon in the next week with him, as well as half of the school holiday period. There was equal shared parental responsibility.
But on 8 July 2004, Dittman R made an order by consent discharging the parenting orders made 21 March 2001.
The 2004 orders made adjustment to the time the children spent with the husband according to his roster.
The wife made the same mistake, seeking to the discharge the 2001 parenting orders.
I am satisfied that if the parties realised their mistake, they would have referred to the 2004 parenting orders in their respective cases, since the 2001 orders were discharged.
What is important is the evidence relied on and the submissions.
Before going further, it is obvious from the birthdates of the children that there could be no enforcement or change for [X], now 18 years.
The husband gives very little evidence in support of his enforcement application.
His evidence is that he has been denied time with the children over the past four years.
Contrary to the wife’s claim, he states that she has alienated the children.
He states that the wife provided no evidence that the boys did not want to have contact with him.
It is at least four years since the boys spent time with the husband.
He gives no explanation of what he has done to have them spend time with him or how the wife then denied the children the time or alienated them. The Court file shows a failed parenting contravention application by the husband with regard to the 2004 orders, but the wife was found not to have contravened the orders.
The husband attached a short letter from psychologist Mr W.
Mr W appears regularly as an expert in family law proceedings but it appears that his advice to the husband came about, not because of that expertise, but because a psychologist the husband saw had a conflict of interest and referred the matter to Mr W.
Importantly, the husband orally submitted that he intends having Mr W set out a plan to reunite the children and himself.
As far as I could discern, no notice of this crucial aspect of his case had been given to the wife to prepare the children.
But Mr W’s report makes no reference to children’s issues.
He states that the husband is showing signs of anxiety and depression as a result of his obligation to comply with my (monetary) orders made in September 2009, but there is no reference to the parenting concerns of the husband.
I could not see any reference to the husband even discussing his parenting concerns.
The husband gave the impression that he had spoken to Mr W about these issues, but that is not reflected in Mr W’s report. Enforcement is a different issue from reuniting with his children, although reunification plans may be required if he was successful in obtaining an order for enforcement, given the long break since he last saw the children.
The husband’s evidence does not meet the rules in relation to enforcement, that is, he was to state in his affidavit “the facts necessary to enable the Court to make the orders sought in the application”- see r.25B.02(2)(a). The stating of evidence is a fundamental issue. I cannot take this matter any further. I will refer again to the Mr W report because of relevance to another issue.
On the evidence provided, the husband has no prospect of success in this matter and I will dismiss the application.
The second order the husband seeks is that the wife pay him costs of $39,500.00.
It appears from his evidence and his submissions that this is a general claim for money, not necessarily costs as understood in legal proceedings described as the “remuneration and disbursements incurred in relation to legal work” as put in Ex parte Farmer’s Fertilisers Corp Ltd (1916) 16 SR (NSW) 645, referred to in Butterworth’s Australian Dictionary 1997. Such costs and disbursements are recognised in the Family Law Act 1975 and the FMC Rules.
The claim is not specific, but it appears to cover monies lost or not earned including the loss of his employment with [T], caused by the 2009 proceedings.
This is an appropriate time to deal with the husband’s claim that he was dismissed from [T].
At paragraph 11 of his affidavit filed 16 November 2009 he states he was sacked from [T], because of the stress and disruption of the Court proceedings. He repeated this claim in submissions.
He produced a reference from [T], dated 29 September 2009, stating, “To Whom it May Concern, This letter confirms that Mr Henley was employed with [T] Australia Pty Ltd, from 5th of November 2007 through to the 22nd of May 2009. During that period, Mr Henley’s salary consisted of a base salary of $112,000.00 plus $73.00 per scheduled block hour of [occupation omitted]. As Mr Henley did not complete 3 years of service with [T] he was not entitled to receive any part of the [occupation omitted] Retention Bonus of $30,000.00”.
Whatever else that reference states, it is not a dismissal notice. The husband stated orally that there was no dismissal notice because if there was, he would never be able to work [in the aviation industry] again and the reference he produced was standard practice when dismissed within the [aviation] industry.
Four significant issues are raised by the husband’s claim of being terminated.
Firstly, he produced no expert evidence to corroborate the claim that such references were standard practice within the [aviation] industry when a dismissal occurs, as opposed to some other type of correspondence indicating a termination of employment.
Secondly, a dismissal may give rise to very significant industrial relations or legal “defences” and may of course, given that the husband claimed the court proceedings or their effects resulted in the dismissal, form a claim he could pursue. He did not even give evidence of just how the company went about sacking him.
Thirdly, he stated he was terminated in May 2009, yet the document is dated September 2009, there being no explanation as to why there is a document, said to be the only document relating to a dismissal, supplied to him months after the termination.
Fourthly, his three affidavits filed for this matter state in their first sentence that the husband is unemployed. He swore to that effect and this has other ramifications for his case.
His affidavit filed 16 November 2009 states:“...my employment with [T] was terminated in May 2009. I have been made redundant or terminated three times in the past eight years…” He does not state that he was reemployed by [S] within at least two months of ceasing his [T] employment. His new employment only came to light because the wife’s solicitors identified in exhibit six of the husband’s affidavit filed 16 November 2009, produced for other purposes, that he had been receiving superannuation payments from [a business] called [S], since July 2009.
He did not produce income advices relating to employment with [S] and this lack of disclosure reflects his lack of disclosure of income in the trial leading to the September 2009 orders.
He then admitted being employed by [S] in oral evidence.
I went over at length in the reasons for the 2009 orders the issues relating to the duty to disclose in financial matters and part of this is a financial matter. Decisions on financial matters are not to be conducted on an ambush basis. He is crying poor yet although admitting he works for [S], no evidence exists of his income from that [business].
In the 2009 trial, once the full extent of lack of veracity became apparent, it coloured all of the 2009 proceedings, including claims that he was not represented and did not fully comprehend proceedings.
While the attributes of education and command of language and figures do not prove his capability of understanding the legal proceedings, I found it necessary in the trial which led to the 2009 orders to make findings about the husband’s lack of veracity, which did have an effect on the findings and orders I made.
The property orders or changes he now seeks are directly related to the 2009 orders, and because of that, so does the issue of his truthfulness. He must have anticipated that his veracity again would come into question and on that basis, he must be meticulously careful about being truthful.
Counsel for the wife anticipated this, because one of her first submissions went to the identification of the superannuation payments from [S], being made at a time the husband was claiming to be unemployed. The husband did not do himself any favours and lack of veracity is nothing to do with not being represented.
The absolute requirement to fully disclose is the essential duty for his case now.
That he made dubious claims or produced no documentary evidence was similar to his lack of disclosure in the trial of the matters which culminated in the orders of 2009, wherein I made findings, including:
a) His failure to produce evidence of being excluded by [A]’s administrators from receiving redundancy payments during the administration of [A];
b) His lack of disclosure about income generally and about income from [business omitted];
c) His evidence contradicting his wife Ms S about the state of his marriage;
d)
His damaging evidence that real estate he purchased at
Property B with Ms S was for her sole use and he was merely guarantor, producing a hastily written document purporting to be a note whereby he would have no claim on the property. The note did not appear to contain the elements of a contract or a deed and appeared to have been made up for the trial; and
e) Payments he made on a BMW motor vehicle contradicting his claims that he did not own the vehicle.
That I made such findings should and must have been a clear signal to the husband that any further doubt about his evidence may enliven reliance on my previous findings about his veracity and character.
The principle the courts operate on is extremely simple and that is that parties must be full and frank at all times. That principle is applied regularly in this court as against its officers being lawyers and it has no less important application against self-represented people.
That does not mean that the husband does not get a fair hearing it merely puts him on notice to be scrupulously careful about what he states and what is produced in support of his applications and his response to the wife’s application.
That brings me back to the report the husband attached from the psychologist Mr W which stated that the husband was in a quandary as to whether he will or whether he can sign a contract with his current employer, because of restrictions imposed on his ability to hold a passport under the 2009 orders. Mr W goes on to say that without a passport he cannot work in his usual profession.
Mr W obviously had not seen the orders that I made or the reasons for judgment because I did not make an order for the husband’s passport to be seized and I clearly stated that I would be very slow to make such an order which would possibly deprive him of his livelihood. Further, it appears Mr W was told by the husband he was employed, despite the husband swearing here to the fact he was unemployed.
The inference is that the husband has not been fully frank with Mr W about the effects of the orders I made in 2009.
He had also previously lied to Spelleken FM.
I do not think I can rely on anything the husband says.
Returning now to the costs he seeks in the sum of $39,500.00. Firstly, not only has there not been full disclosure of facts, without evidence of costs incurred, the husband has no prospect of success in this matter and I will dismiss the application.
Further, counsel for the wife submitted, and I accept, that if the husband has some type of civil claim against the wife, then it is not within the provisions of the Act.
The next order he seeks is a change to order 2(a) of my orders made in September 2009, by an amendment.
Order 2(a) stated:
“ that within twenty-eight (28) days of the date of this order, the husband is to pay the wife:-
a sum of $60,000.00 being school fees paid by the applicant to [B] School from the school years from the second half of 2006 to the end of 2008”.
He wants the order to operate from the beginning of 2007, not mid-2006.
The husband said he did not know the effect of order 2(a) in the long term. If he does not know the effect, what is the issue in changing it? Given his lack of candour, I suspect the husband does know the effect of the order and if he is not prepared to tell me then I do not have that before me to consider. The effect is otherwise simple, he is to pay school fees from mid-2006.
The husband said that I should change this because he always maintained that he wanted orders that he pay those fees from 2007.
Counsel for the wife took me to my judgment paragraphs 105 and 106, where I gave reasons for making the order, being:
“105. The husband was paying school fees and his child support assessments took that into account. The husband stopped paying school fees in 2006. He claimed that was at the end of 2006 and the wife claimed it was half way through the year. Again it was an issue of not producing relevant documents and failing to cross-examine the wife, putting his case to her.
106. The wife asked for orders that the husband pay $60,000.00 for school fees for the second half of 2006 through to the end of 2008. The husband did not challenge the figure”.
Curiously, in his affidavit dated 16 November 2009 the husband produced a letter from [B] School dated 4 June 2008. It states that fees were paid in full to July 2006. There was no such document showing fees were paid to the 2007 school year and it is a newly produced document going to the support of the wife’s original claims and my findings. My reasons were stated. I will dismiss that application.
The next order he seeks is an order for 4(a) to be amended by addition to read “fixed at $200,000.00, whilst he is employed [in the aviation industry] and contracted by [business omitted]”.
During submissions the husband also extended the order he sought to apply to paragraph 4(b).
Order 4 stated: “That pursuant to s.117 of the Child Support (Assessment) Act 1989 there be a departure from the administrative assessment of child support payable by Mr Henley to Ms Garrett for the children [X] born [in] 1992, [Y] born [in] 1994 and [Z] born [in] 1996 as follows:-
a)For the period of 1 January 2008 to 31 December 2008 the adjusted taxable income amount for Mr Henley be fixed at $200,000.00;
b)That thereafter for each 12 month period commencing 1 January the adjusted taxable income amount of $200,00.00 fixed by (a) above be increased in accordance with variations in the consumer price index All Groups for Brisbane”
The husband’s case was that apart from not earning the income that he used to earn, it should only be an order in place as amended with the words he sought. His statement of not earning income he used to earn is intriguing in itself, because during the 2009 trial he insisted that his earnings had been very small since his loss of employment when [A] collapsed.
He also stated that he had never seen an employment contract which made allowances for increases in the consumer price index. Whether he has seen such contracts or not is irrelevant, because it is the orders I have to deal with, not a contract.
Counsel for the wife submitted that the husband was very cleverly playing with words.
She said if he is contracted [in the aviation industry] his wording may create a very technical but perhaps legally sound argument that the order did not anticipate the child support payments if he could show he was on contract work and not employed, the difference being in entitlements.
Counsel also submitted that it was very clear in my reasons that I made a decision considering his capacity to earn money, one of the considerations under the Child Support (Assessment) Act 1989.
I accept that submission.
As to all those draft orders counsel for the wife submitted that in one sense the husband is asking for amendments, perhaps under the slip rule or in another sense re-litigating the decisions made and none of that process was open to him.
I agree.
I am going to dismiss each of those discreet applications, because he has not provided enough evidence to support his contentions or does not produce evidence showing a reasonable case, or is just not truthful. He has no reasonable prospect of success.
WIFE’S APPLICATION
I will now deal with the sole parental responsibility and live with orders sought by the wife for the children.
She wants to enrol the youngest son [Z] in [S] School, although his brothers both went to [B] School (“[B] School”).
The wife, like the husband, referred to the 2001 orders.
Those orders do not exist, being discharged in 2004. However, there are orders in existence which give the parents shared equal parental responsibility and I suspect both parties have simply forgotten what orders are in place.
In order to resolve the issue without relying on technicality as allowed under r.1.03 of the FMC Rules, I will take it that what both parties seek in relation to parenting pertain to the 2004 orders. Neither party is disadvantaged by relying on the orders actually in force.
The parenting and schooling issues are trial issues.
Justice demands that directions be given so the parties have the opportunity to respond, unless I form the view on the evidence that it is apparent that the matter can be dealt with otherwise. The parental responsibility issue is connected with schooling.
The wife gives reasons for wanting to send the child to [S] School being that the child does not believe he will fare well at [B] School given a group of boys who bullied him now attend [B] School and that he is not doing well at [K] School where he is currently enrolled.
I will say that both the husband and the wife agree for different reasons that [K] School is not a suitable school.
The husband’s case is that he now wants the child to attend [N] State School, not [S] School.
The only way the child can attend [S] School, according to school policy, is if either both parents sign enrolment forms or the wife is given sole parental responsibility to sign enrolment forms.
The husband questions the wife’s motives and claims she has produced no evidence that the child would be unhappy at [B] School and that she made no enquiry about [N] State School, his choice of school. She admitted making no enquiry of [N] State School.
The husband’s submissions questioning the wife’s motives and statements about the child being unhappy at [B] School are irrelevant, intended to hide the facts established by his own correspondence to the wife.
In an email message to the wife dated 31 January 2010, which is attached to his affidavit filed by leave on 2 March 2010 at the hearing, he states: “…Moving forward and most importantly for the sake of [Z], I would urge you to consider the following:
·Accept my $100,800 offer of full settlement
·I will then agree to [S] School
·I will then agree to pay child support and school fees as per the orders”
Although I will deal with this offer of $100,800.00 shortly, it refers to settlement of the money orders I made against the husband in the 2009 orders and is basically reflected in the order he seeks in draft order 10 of his application.
But in reference to the parenting orders sought by the wife, her counsel submitted that there was no real impediment to the child going to
[S] School, it was simply a question in the husband’s mind of whether the wife will accept a compromise payment from the husband in settlement of the 2009 orders.
Although the offer is totally unacceptable to the wife, it does appear to be the only issue stopping the husband from signing the enrolment forms for [S] School.
Counsel for the wife referred to this as a bargaining chip, a description the husband objected to and continued making objection to the use of that term.
My view is counsel for the wife was being diplomatic, because given the circumstances, I would use the term legal term of extortion, called blackmail in daily language. He seeks a benefit in order to overcome other duties imposed on him by orders of the Court.
On the husband’s own offer, he would quite happily allow the child to go to [S] School if the wife accepted something less than her entitlement in the 2009 orders.
That there is this blackmail, maintenance of equal shared parental responsibility at a price, is the basis of the wife’s claim for sole parental responsibility, so that she can take care of all that enrolment process for the child at [S] School.
I also have to give consideration as to whether there has been a significant change which would justify a change in parenting orders, see Rice & Asplund (1979) FLC 90-725, which on the husband’s email, is very clear - parental responsibility will be shared but only if the wife gives the husband a benefit by changing the 2009 orders.
As this is a parenting order being sought the Act clearly sets out what I must consider.
Section 60CA states that in making any parenting order the best interest of the child is the paramount consideration.
Section 60CC(2) refers to the benefit of the child having a meaningful relationship with both parents and the need to protect the child from abuse, neglect or family violence.
The note under that section states that making these considerations the primary considerations is consistent with the objects of the Act stated in s.60B.
The objects of the Act at s.60B are restated in the s.60CC(2) primary considerations, but as well, the best interests are met by ensuring that children receive adequate and proper parenting to help them achieve their full potential and ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
The principles underlying the object are that children have a right to know and be cared for by both parents, they have a right to spend time on a regular basis with and communicate on a regular basis with both parents and that parents jointly share duties and responsibilities concerning care, welfare and development of their children and parents should agree about the future parenting of their children and if there is a cultural issue that has to be considered.
The Act also sets out the s.60CC(3) and s.60CC(4) additional considerations as well as applying the presumption of equal shared parental responsibility in s.61DA and then a consideration of the living arrangements under s.65DAA of the Act.
Now I return to the issue of whether it is appropriate on such a small amount of evidence to make the decision now instead of setting the matter for trial after giving directions and allowing for more material to be filed.
Firstly, time is of the essence.
[S] School is holding a position open for the child until the beginning of school after the Easter holidays. I could not on my diary schedule a trial of the matter by then.
The husband indicated that he intended to stay unrepresented and I formed the view that:
a) Given the circumstances where the child has not had much time with the husband for four years; and
b) Given that he gave no evidence other than submissions of any real plan to seek Mr W’s help in reuniting with the children; and
c) Given that he had never indicated such to the wife; and
d) Given the nature and character of his offer, being some type of extortion,
I conclude that nothing would change and that he would not be able to present a case differently from what he presented now, except that it would cost the wife more time money and effort. This matter has been ongoing for ten years. The children are at an age where they can contact the husband but they choose not to do so.
But also of the utmost importance, the husband does not object to
[S] School except he wishes to use coercion to force the wife into accepting a deal far less than she would receive in monetary terms under the 2009 orders.
It is clear that the children do not have the benefit of a meaningful relationship with both parents and it is clear that the amount of disputation has caused that.
The views of the youngest child are clearly stated in an SMS text message attached to the husband’s material. It is a message of distress over schooling.
He is old enough to express that and although the husband makes general claims of alienation, there is no evidence other than claims.
That short note is also a good indication of the nature of the relationship between the child and the husband.
The husband’s case is that the wife has not facilitated and encouraged a close relationship but given the fact that she has had to seek the 2009 orders, mainly money orders to do with support of the children, it would appear to me that it is the husband who should be giving evidence of his willingness and ability. He keeps saying the wife alienates the children from him but he gives no evidence of his encouragement for their relationship with him or that he is in a position where the relationship would be encouraged.
The note would also I think indicate that the effect of any change in the child’s circumstances with his wife would at least be beneficial to him.
The husband states he is now resident at his parent’s property at [suburb omitted], but that really did not become an issue as to the practical difficulty and expense of the children spending time with him.
The capacity of the parents to provide for the needs of the children including emotional and intellectual needs is important here. The wife was questioned about her ability to pay school fees. She said that her house value had increased and she would draw down from the mortgage as she has done before. The husband’s case was that he pays child support, but cannot meet other payments. In fact, that he did not pursue orders 3, 4, 5 and 7 of his application was because they related to child support which he has a duty to pay anyway.
There is no cultural issue which I am told that I need to consider.
The attitude to the child and to the responsibilities of parenthood are perhaps magnified in this case where the wife is attempting to provide a level of schooling which the husband is against unless his terms are accepted.
The husband asked the wife why she did not pick [N] State School and the wife clearly answered that it had always been the husband’s wish that the children attend a private school and then she said he began oscillating between different schools, there being [M] School, [B] School, [N] State School and [S] School.
I also accept that when together the couple had planned to send their children to private schools.
Family violence does not come into this matter and whether it be preferable to make the order least likely to result in further proceedings as opposed to other orders I am considering deeply, because I also have to consider whether it is appropriate to decide a parenting question as a chamber application.
Under the orders of 2001 and 2004 both parents have equal shared parental responsibility.
I think it is the case that what is being shown here is that the husband has failed to take the opportunities open to him after the orders were made in 2001 and 2004, to participate in the making of decisions about long term issues for the children and to spend time with them and to communicate with them and that was apparent in the evidence which led to the 2009 orders, because although parenting issues and financial issues are separate issues, finances and the raising of children are closely related. Because of disagreement, he has failed to exercise his parental responsibility jointly with the wife.
The Act applies the presumption of equal shared parental responsibility. Such does not apply when there has been family violence. That is not the case here but if there is relevant evidence available the presumption can be rebutted.
Schooling is an exercise of parental responsibility and the child needs a decision about schooling.
The amount of disputation over this issue leads to the conclusion that the history and the immediate need for a schooling decision is enough to rebut the presumption of equal shared parental responsibility.
Further, there can be no equal shared parental responsibility on the husband’s terms, which would see him sign the enrolment forms for
[S] School only if the wife accepts less money than she is entitled to under the 2009 orders. It is extortion and so I will make an order that there ought to be sole parental responsibility.
Since the husband did not in his enforcement application put before me the efforts that he had made in relation to having the children spend time with him, I am of the view he has no real case.
Perhaps it is the case that he is the person who cut off the contact which seems to be the wife’s evidence.
I am also of the view that the husband’s response has no reasonable prospect of success, placing great weight on his note that the child could attend at [S] School as long as a deal was accepted, in terms of his draft order 10.
I am satisfied that the child’s best interests overrides the need for the husband to otherwise litigate or continue to litigate the issue to maintain equal shared parental responsibility in the circumstances of that note and his draft order 10. Given the child’s age, he could not be sheltered from continued litigation and his schooling will be affected in the meantime.
I considered whether the wife brought the application is about changing schools late, in order to deny the husband adequate time to prepare a case. As school fees have been an issue for years, and as the husband was otherwise expected to meet half of the fees for the child to attend [B] School like his brothers, I cannot find that the wife deliberately delayed bringing the application in order to hinder the husband’s case.
The husband presented no evidence which indicated that he would have even a slight chance of successfully running a case in opposition to the orders sought.
I will make an order for sole parental responsibility for the wife, which will allow her to sign the enrolment forms.
The wife asks for the same orders for the middle child [Y], but given that there is no reason apparent, I do not need to disturb current orders. To all intents and purposes she is exercising that sole responsibility which she in fact seeks and I had no evidence that she is having difficulty in any way in exercising such.
In the lead up to the trial resulting in the 2009 orders, both parents did reach consent orders to share equally future school fees.
While the husband raises the issue now that the agreement did not include private school fees, in fact it did include private school fees because the hearing was all about private school fees and the evidence was that the husband had previously taken the wife to court in order to send the children to [B] School.
The husband does not fundamentally object to the child attending
[S] School and he states in the email he will pay the fees. Further, it was said in evidence the fees are less than [B] School, a matter not challenged by the husband.
APPOINTMENT OF RECIEVER
The wife asks for the appointment of a receiver pursuant to r.20.46 of the Family Law Rules 2004. This power may be exercised by the Court pursuant to r.1.05 of the FMC Rules and s.80 of the Act, allowing for both the appointment of trustees or to make any order necessary to do justice in the proceeding.
The application is not common but is anticipated for cases including where a party is entitled to receive money under orders and the other party not only does everything possible to avoid paying, but also fails to disclose financial matters.
Counsel for the wife submitted that unless the orders are made, the wife would have no confidence in what the husband says he earns and no confidence at all of receiving any money.
The husband claimed that the wife wants to bankrupt him but the clear submission of counsel for the wife was that such would not be in the interests of the parties and the appointment of a receiver will not bankrupt the husband, it merely ensures his compliance with monetary orders over a period of time.
The husband complained about the fees of a receiver. I accept that there will be fees for a receiver but given all of the evidence and the findings as to veracity his complaint that he will be paying fees for a receiver is not valid.
It was submitted that the duty of a receiver, being an officer of the court, was to ensure all those payments the husband had to make under orders, were made. While the appointment of a receiver is a serious matter for the person’s estate who goes into receivership, if that is the manner in which compliance can be obtained when there has been no compliance, then so be it.
The husband gave a table in his affidavit filed 16 November 2009 of all his current costs.
Apart from the issues of his lack of disclosure about income, the self-prepared table recorded he was indebted to the Westpac Bank.
He said the debt was for $735,000.00 for the mortgage on the house in which he holds registered title with the wife.
He said his indebtedness arose because of the 2009 orders.
That ignores the fact that his name is on the title and my previous reasons concerning the ownership of the house. I rejected his evidence that he was only a mere guarantor for Ms S, particularly when both gave contradictory evidence about their relationship, Ms S accepting that they were married and the husband attempting to state they were separated.
He is now stating that the court order forced him into that debt which apparently he would not have but for my reasons and decision.
That is a dishonest submission. The husband and Ms S not only own the house together, she is also his manager in relation to [business omitted] contracts.
The husband said the house was also for sale but he gave no evidence of his intention to sell. He is now allegedly living at his parents place and he produced a copy of electoral enrolment at that address, but that does not prove that he is living there, given conflicting evidence on his residential address arising in the 2009 trial.
The evidence at trial was that he lived in a caravan park yet it emerged that he was spending a lot of time in Queensland and at the Property B house.
Rule 20.46 requires compliance with its requirements.
The first requirement is that the applicant’s affidavit must comply with rule 20.06, in that to it has attached the orders sought to be enforced, sets out the facts, basic matters such as the payee’s name and address, that the payee is entitled to enforce the obligation and the payer is aware of the obligation, conditions to be fulfilled, details of any dispute over the money owed and the total amount owed. The affidavit complies with this requirement, the money owed under the orders being $117,050.00. The orders were made for payment of spousal maintenance, school fees, child support departure and interest. The husband did not challenge these issues and again I repeat my earlier finding, he was very quick to calculate figures in this matter.
The second requirement is that the name and address of the proposed receiver is stated. The proposed receivers are Mr S and Ms M. Mr S is a partner with the firm [K]. It is the firm’s practice is for joint appointments, and the rule does not disqualify on that basis.
The third requirement is detail of the receiver’s fees. These are attached to the wife’s affidavit giving hourly rates for fees.
The fourth requirement is consent by the receiver. This is attached to the wife’s affidavit.
Rule 20.47 is the next step in the process, which sets out considerations to be taken into account.
The first step is having regard to the amount of the debt. It is a large debt, $117,050.00, payable to the wife under the 2009 orders. It accumulated for the reasons given in making the orders and can be summed up as the husband’s refusal to pay both spousal maintenance and school fees for his children.
The second step is the likely amount to be obtained by the receiver. Given my findings in relation to the 2009 orders and here that the husband is untruthful, that he has never disclosed his total financial status, that he had lied and that he has the capacity to earn $200,000.00 a year, I would expect the whole of the amount to be recoverable.
The third step is considering the probable cost of the receiver. The receiver’s fees are set out on an hourly basis. Given the husband’s previous position of failing to disclose his financial affairs, I would expect some resistance from him but in the end, he can control the costs, which he will pay, by cooperating fully.
I will allow the receiver to charge the hourly rates referred to in the wife’s affidavit.
The power is that sought by the wife, to allow the receiver to do anything the husband can do, that is, pay the wife pursuant to the 2009 orders, to receive relevant information from the husband upon request for him to provide such and then to submit monthly accounts to the husband and wife.
There is to be no order for security given by the receiver.
The wife does not ask for an order that the receiver do anything she may do, nor for an order to the exclusion of the payer’s power.
This application has been forced by the husband, who has not paid the wife monies he was ordered to pay in the 2009 orders. He issued proceedings first, seeking enforcement, without evidence, of old parenting orders and to change the 2009 orders which would in effect relieve him of paying the wife the money he owes her. He claimed he was unemployed, but did not realise that documents he filed for his purposes of defeating the 2009 orders revealed he was employed. He has made no attempt, as far as I could see, to make any payment. I think his application was pre-emptive, a last opportunity to avoid his obligations under the 2009 orders, knowing the wife would make an application for enforcement. The husband’s submissions against the appointment of a receiver confirm that he does not want his finances scrutinised or interfered with. I can see no adequate reason to accept his case given all of the evidence. The orders have been made and the Court expects them to be complied with. I will make the order for the receiver.
THE HUSBAND’S OFFER TO SETTLE
This is the appropriate time to deal with the husband’s draft order 10 in his application.
It states he wants an order: “That the [E] investment, [Mr Henley] superannuation, $4,000.00 cash payment and the $15,000.00 payment made in 2002 ($103,000.00 total) be included as payment of the orders made September 2009”.
On the face of the draft order, it can be seen that the husband wants his alleged past payments taken into account, which would much reduce the amount he then had to pay to the wife to about $14,000.00.
I will take each of the components of the alleged payments separately.
As to the [E] tree investment: I have made findings that it did not appear to exist at the time of trial, there being very little documentary evidence produced by the husband. There is no ground I can see to include it as part of the wife’s payment because she rejects the offer and I have no power to amend the orders I made.
As to the [Mr Henley] superannuation funds: My judgment and reasons did not consider a transfer of superannuation as I was not considering a property settlement. There was evidence from the husband about what he called superannuation payments to the wife, but not, apparently, this superannuation and I did not understand this superannuation to be in existence when I made the 2009 orders. If I am mistaken, apart from there being no reliable evidence of what is in his total superannuation funds, the case before me has never been about alteration of property interests whereby an intangible asset such as superannuation could be transferred to the wife. The wife rejects this attempt to settle proceedings in this manner and I cannot see a power I have to amend the 2009 orders.
As to an alleged $4,000.00 payment to the wife: There has been no $4,000.00 cash payment as referred to in the draft order. There has been an alleged offer the husband said was rejected, stating the wife’s solicitor would not talk to him.
As a simple proposition, I would accept that if he made out a bank cheque payable to the wife as part payment of the 2009 orders then such would be accepted. Such has never been done. Even during this hearing he said words to the effect that “first thing tomorrow morning I will make another offer”. I ascertained that such an offer would consist of correspondence, not currency. For the same reasons, I cannot make such an order as I have no power, other than by consent, to amend the orders I made.
As to a $15,000.00 payment made in 2002: In the reasons given for the 2009 orders, I made findings on the alleged taking by the wife of $15,000.00 from a joint superannuation scheme. I could not determine what the husband was talking about. He also claimed that he borrowed $15,000.00 to repair damage to the marital home caused by the wife. If that is what he is referring to then I could not determine that issue on his evidence, then, or now. Like many claims, there is not enough evidence given to support orders he is seeking.
As to the total offer amounting to $103,000.00, the husband wants this deducted from the amounts he owes the wife under the 2009 orders. That would leave him to pay about $14,000.00 and as can be seen, the [E] investment scheme, the superannuation and some alleged previous payment of $15,000.00 would not give her much in the way of cash, which the order envisages.
I have no power to set aside my earlier orders and substitute the orders or add to them as the husband seeks, unless he could bring them within r.16.05 of the FMC Rules, being that they were made in the absence of the party, or they were obtained by fraud, or they were interlocutory, or they were for an injunction of the appointment of a receiver, or they did not reflect the intention of the court or there was consent.
None of those reasons can be applied here.
The husband has little or no prospect of success in this application which would effectively discharge part of the 2009 orders and replace them with this draft order 10.
I will dismiss his draft order 10.
COSTS
The wife, as applicant, seeks a cost order for the trial culminating in the orders made in September 2009, as well as costs orders for this part of the proceeding.
I reserved costs on 22 September 2009 after handing down the substantive orders upon which the wife based this enforcement application.
The wife seeks costs of the trial in the sum of $43,012.46, as well as costs for this application in the sum of $7,260.00.
The costs of the substantive proceedings are set out according to the schedule attached to the wife’s affidavit filed 5 February 2010.
The husband opposes such costs.
The intent of the costs section of the Act is that parties bear their own costs, unless there are circumstances justifying a costs order, which can only be made subject to ss.117 (2A), (4) and (5), see Penfold v Penfold (1980) 144 CLR 311. Sub-sections (4) and (5) are not applicable in this matter.
Section 117 (2A) provides:
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
It is not stated, but the application for costs of the trial appear to be that costs be paid on an indemnity basis.
The financial circumstances of each of the parties is that the wife was not employed at the time of the trial and is not employed now, having the care and control of the three growing children. She had not been in the workforce for many years.
The expenditure of money on school fees, apart from child support, has been mostly obtained by drawing down on her mortgage.
The trial was caused and orders made because of disputes over the husband’s payment of support and school fees and his failure to disclose substantial income and financial facts.
His position for this proceeding was similar and I have made findings about his lack of truthfulness.
At the time of trial I determined he had capacity to earn up to $200,000.00 a year [in the aviation industry] and from appearing as the front person for the [business omitted] company. I cannot determine what is his real financial position now because, again, I have made findings about his lack of truthfulness.
The wife’s lack of income was apparent at trial in that she was represented by legal aid. I was not made aware of whether that continued for her enforcement application.
The husband was self-represented.
The conduct of the husband can be understood in the adverse findings against him and the manner in which he has conducted proceedings, at times directing abuse and wild allegations against the wife as well as against her legal representatives at both trial and for this proceeding, which, given their proper behaviour, was unfounded.
Part of the trial with regard to spousal maintenance and these proceedings were necessitated by the husband’s failure to comply with previous orders.
The husband has been wholly unsuccessful in this proceeding.
The husband referred to offers made to the wife in terms of his draft order 10 addressed in these reasons.
There was nothing in the evidence to indicate that his offer was genuine, especially since he appeared to have at least $4,000.00 cash which could have been offered by way of bank cheque as part discharge of the orders.
Further, the offer he makes would, in reality, see him liable to only pay the wife about $14,000.00, an offer she rejects and which I have trouble accepting as a genuine offer. It is a genuine offer in the sense that the husband would like it accepted, but it is not a genuine attempt to compromise the debt owed under orders made whereby the wife would receive a reasonably substantial amount of money which she has expended, mainly in supporting the three children.
The issue of indemnity costs was addressed by Wilson FM in Oliver & Oliver [2010] FMCAfam 220 from paragraph 22, where he referred to Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, where Sheppard J stated:
“24. It seems to me that the following principles or guidelines can be distilled out of the authorities to which I have referred:
1. The problem arises in adversary litigation, i.e. litigation as between parties at arm’s length. Different considerations apply where parties may be found to be entitled to the payment of their costs out of a fund or assets being administered by or under the control of a trustee, liquidator, receiver or person in a like position, eg. a government agency or statutory authority.
2. The ordinary rule is that, where the Court orders the costs of one party to litigation to be paid by another party, the order is for payment of those costs on the party and party basis. In this Court the provisions of Order 62, rules 12 and 19, and the Second Schedule to the Rules will apply to the taxation. In many cases the result will be that the amount recovered by the successful party under the Order will fall short of (in many cases well short of) a complete indemnity.
3. This has been the settled practice for centuries in England. It is a practice which is entrenched in Australia. Either legislation (perhaps in the form of an amendment to rules of Court) or a decision of an intermediate court of appeal or of the High Court would be required to alter it. No doubt any consideration of whether there should be any change in the practice would require the resolution of the competing considerations mentioned by Devlin LJ in Berry v. British Transport Commission and Handley JA in Cachia v. Hanes on the one hand and by Rogers J in Qantas on the other. The relevant passages from the respective judgments have been earlier referred to.
4. In consequence of the settled practice which exists, the Court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the Court in departing from the usual course. That has been the view of all judges dealing with applications for payment of costs on the indemnity or some other basis whether here or in England. The tests have been variously put. The Court of Appeal in Andrews v. Barnes (39 Ch D at 141) said the Court had a general and discretionary power to award costs as between solicitor and client “as and when the justice of the case might so require.” Woodward J in Fountain Selected Meats appears to have adopted what was said by Brandon LJ (as he was) in Preston v. Preston ((1982) 1 All ER at 58) namely, there should be some special or unusual feature in the case to justify the Court in departing from the ordinary practice. Most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of factors which would be capable, if they existed, of warranting a departure from the usual rule. But as French J said (at 8) in Tetijo, “The categories in which the discretion may be exercised are not closed”. Davies J expressed (at 6) similar views in Ragata.
5. Notwithstanding the fact that that is so, it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v. Weekes (1989) 92 ALR 131 at 152; evidence of particular misconduct that causes loss of time to the Court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v. Hutchinson (1978) 10 NSWLR 525, Maitland Hospital v. Fisher (No. 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal), Crisp v. Keng (Supreme Court of New South Wales, 27 September 1993, unreported, Court of Appeal) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records). Other categories of cases are to be found in the reports. Yet others to arise in the future will be different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis.
6. It remains to say that the existence of particular facts and circumstances capable of warranting the making of an order for payment of costs, for instance, on the indemnity basis, does not mean that judges are necessarily obliged to exercise their discretion to make such an order. The costs are always in the discretion of the trial judge. Provided that discretion is exercised having regard to the applicable principles and the particular circumstances of the instant case its exercise will not be found to have miscarried unless it appears that the order which has been made involves a manifest error or injustice.”
It could be held and I think it is so that the husband’s application was calculated to bring the matter back to court before the wife filed an application for enforcement of the orders I made in 2009.
It is in some respects vexatious, as much of the evidence he gave was inadmissible because he was merely quibbling with the reasons I gave, seeking to introduce what may be new evidence relating to the 2009 orders or abusive of the wife and her solicitors.
It can also be seen to be vexatious in that he asks that his draft order 10 become part of the September 2009 orders, which would leave a small sum of outstanding.
I do not dismiss his application on that basis, because it shows his character.
His conduct has been to deny everything from his earnings to the status of his marriage and joint ownership of a house with his wife.
His conduct can be seen in a complaint that I made some orders without him being present on 22 September 2009.
I had told the husband, as I told the wife’s solicitors at the end of the trial, that I would have both parties contacted to let them know when judgment would be handed down. It is in the transcript.
I referred to this issue, at paragraph 158 of my reasons supporting the 2009 orders, stating there:
“Finally, my associate advised both parties that judgment would be handed down on 18 September 2009. The husband was advised by the leaving of two voice messages left on his telephone answer service. The husband did not reply or appear. On 18 September I asked for and received a further submission in relation to the order for the school fees to be paid from 2009, which was a consent order. The solicitor for the wife stated I should identify that the consent was for private school fees, a submission I agree with because that was, as I understood the case, the husband’s agreement. Further the solicitor gave a formula for the calculation of such fees, to enable the Child Support Agency to collect such fees. The husband did not address the issue of whether the fees should be collected by the Child Support Agency, however, to avoid future disputes and because the husband agreed to pay the fees, I do not see that he is prejudiced by such an order. At all times I understood the husband’s case to be that he would agree to pay half of the school fees based on his income as identified in the taxation returns. But he admitted during cross-examination that the returns did not reflect his true income, one of the matters I identified as showing his evidence to be unreliable”.
During this matter the husband said my associate would have heard a redirection message to a new telephone number.
There is a file note on the file from my associate stating voice messages were left for the husband on 16 September and 17 September 2009, on two telephone numbers, including [number omitted].
An attached memo states the husband telephoned my associate on
22 September, 2009, leaving a message to contact him on [number omitted]. The call was received, according to the note, at 4.45pm. I delivered the judgment on the morning of 22 September 2009.
As can be seen, the number left by the husband is the same number he previously supplied and the one my associate telephoned. As he did not leave a new telephone number on 22 September, I do not see how there could have been a message on 16 and 17 September redirecting the call to a new number. I note the [number omitted] is the same number he still has for the Court to contact him. It appears the husband lied.
This and the husband’s behaviour in not disclosing his financial status is an indispensible consideration for indemnity costs in this matter.
But so is the “offer” he made to settle the matter and allow the child to attend [S] School school, in an attempt to gain the benefit of not paying the wife much at all under the 2009 orders. That he said he would allow for the schooling and follow the orders if the offer was accepted is the act I regard as extortion.
The wife’s affidavit states various amounts taken from the schedule of costs and becomes costs on an indemnity basis in that every possible cost seems to have been claimed. That is permissible in the circumstances.
The costs of the enforcement application was estimated at about $10,000.00 but the submission was that the costs were $7,260.00.
I will make the costs orders sought.
Two other matters need to be addressed.
Firstly I am aware that the husband has made child support payments, as he kept stating. He has also disputed the amounts he should pay but that is a separate issue.
Secondly, I will also make an order, as sought, allowing the matter to come back to court for consideration of withholding the husband’s passport should the payments not be forthcoming. I stated in the reasons for judgment in the 2009 orders that I would be very slow to make such an order because it may deprive him of income earning capacity in that it would prevent him from [occupation omitted]. Again, while I will allow that matter to come back, I am not sure of my powers to make such an order although I understand the purpose would be to force payment. I suppose when people are imprisoned for breaching orders it immediately deprives them of an income and so there may be a power available, but it is a matter which can be determined at a later date if need be.
I certify that the preceding two hundred and forty-four (244) paragraphs are a true copy of the reasons for judgment of Coates FM
Deputy Associate: A Somerville
Date: 31 March 2010
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