Herbert and Herbert (No. 2)

[2019] FamCA 79

FAMILY COURT OF AUSTRALIA

HERBERT & HERBERT (NO. 2) [2019] FamCA 79

FAMILY LAW – CHILDREN – PARENTING – Interim – Where the mother is currently restrained from seeing or contacting the two male children of the marriage – Where the mother seeks interim parenting orders varying the current regime to return them to her care in the lead up to the trial and for them to spend time with the father on weekends and school holidays – Where the mother did not provide adequate evidence to support the orders she seeks – Where the application is dismissed.

FAMILY LAW – CHILDREN – Independent Children’s Lawyer – Where the mother is seeking that the Independent Children’s Lawyer be discharged – Where the mother did not adequately show that the Independent Children’s Lawyer is not discharging her duties independently and professionally – Where the application is dismissed.

FAMILY LAW – CHILDREN – Interim – Where the father and the two male children of the marriage are seeing a psychologist for family therapy – Where the mother seeks to restrain the psychologist from providing family therapy to them as she alleges there is a “conflict of interest” – Where the evidence provided by the mother does not justify restraining the psychologist from seeing the father and the two male children of the marriage – Where the application is dismissed.

Family Law Rules 2004 (Cth)

APPLICANT: Mr Herbert

RESPONDENT: Ms Herbert

INDEPENDENT CHILDREN’S LAWYER: Lyrene Wiid

FILE NUMBER: BRC 4902 of 2017

DATE DELIVERED: 22 February 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 18 February 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr George

SOLICITOR FOR THE APPLICANT: Rosen Lawyers

THE RESPONDENT: Self-Represented

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Lyrene Wiid
Lyrene Wiid Lawyer & Migration Agent

Orders

1. That the mother’s application for the Independent Children’s Lawyer to be discharged, is dismissed.

2. That the mother’s application for an order restraining the psychologist, Ms R, from continuing to provide family therapy to the father and the two male children of the marriage, is dismissed.

3. That the mother’s application for orders varying the existing interim parenting orders, is dismissed.

4. That the matter be listed for trial before his Honour Justice Forrest over five days commencing at 10.00 am on Monday, 29 July 2019.

5. That the respondent mother’s Contravention Applications filed 24 January 2019 and 13 February 2019 be listed for hearing as part of the trial listed to commence on 29 July 2019.

6. That the father and the mother shall attend interviews with Ms H as directed by the Independent Children’s Lawyer, on a date to be advised and they shall ensure that the children (including the adult daughter if she wishes to attend) also attend upon Ms H, as directed, for the purposes of the preparation of an updated family report for filing in these proceedings by the Independent Children’s Lawyer for the assistance of the Court.

7. That the costs of the updated family report and Ms H’s attendance to give evidence at the trial shall be paid from the funds currently held on trust for the father and the mother with S Lawyers.

8. The Independent Children’s Lawyer shall cause the updated family report, as soon as it is prepared by Ms H, to be exhibited to an affidavit and filed and served on the father and the mother.

9. The Independent Children’s Lawyer shall cause a written report to be prepared by Ms R as to the progress of the family therapy with the father and the two male children of the marriage, exhibited to an affidavit and filed and served on the father and the mother on or before Friday, 28 June 2019.

10. That the father shall pay, in the first instance, any costs associated with the provision of the report by Ms R and the attendance of Ms R at the trial to give evidence and be cross-examined about the content of her report, with the question of whether or not the mother shall contribute to those costs to be a matter for determination by the Trial Judge.

11. That the Independent Children’s Lawyer shall make arrangements for the family report writer, Ms H, to attend in person at the trial to give evidence and be cross-examined, not at the beginning of the trial but rather at the end of the mother’s case, after the single expert accountant, Mr T, has given his evidence and after the psychologist, Ms R, has given her evidence and, to be clear, Ms H shall be entitled to sit through any of the oral evidence of the applicant, the respondent and their other witnesses, as well as Ms R, as she may at her discretion and in consultation with the Independent Children’s Lawyer determine is appropriate in the matter.   

12. That the husband shall cause the valuation report of Mr T, the single expert accounting witness, to be exhibited to an affidavit and filed in the proceedings on or before Friday, 28 June 2019.

13. That unless the wife (or solicitors representing her) actually informs the husband’s solicitor in writing on or before Friday, 12 July 2019 that the wife does not want to cross-examine Mr T, the husband’s solicitor shall make arrangements for Mr T to attend in person at the conclusion of the respondent wife’s case at the trial (before the commencement of the ICL’s case) and to make himself available for cross-examination by the wife or her legal representative.

14. That the husband shall pay, in the first instance, any costs associated with the attendance of Mr T at the trial to give evidence and be cross-examined about the content of his report, with the question of whether or not the wife shall contribute to those costs to be a matter for determination by the Trial Judge.

15. That leave is granted to the husband to otherwise make, file and serve one affidavit of his own evidence in chief and one affidavit of evidence in chief of his current partner on or before Friday, 12 July 2019.

16. That leave is granted to the wife to otherwise make, file and serve one affidavit of her own evidence in chief and one affidavit from each of the following people:

    ·Ms U Herbert (in the event that the wife is still intent on relying on her evidence);

    ·The psychologist, Mr V;

    ·Mr P, the husband’s former business partner;

    ·The psychiatrist, Dr N;

    ·The General Medical Practitioner, Dr J;

    ·Ms Z, a former employee of the husband’s business;

    on or before Friday, 12 July 2019.

17. That except as otherwise provided by these Orders, the parties shall not file any further affidavits, and may not rely upon any past affidavit, without the leave of the Court.

18. That the Independent Children’s Lawyer is given leave to read and rely upon a report of the psychiatrist, Dr G, already filed in these proceedings.

19. That the applicant father and the respondent mother shall each inform the Independent Children’s Lawyer in writing on or before Friday, 28 June 2019 if they require Dr G to attend in person at the trial and to make himself available to be cross-examined and if the Independent Children’s Lawyer does not receive such written notice on or before that date, she shall be at liberty to inform Dr G that he is not required to attend and make himself available for cross-examination in the matter and if Dr G is required for cross-examination at the trial, the question of who ultimately bears responsibility for any costs incurred by the Independent Children’s Lawyer in having him attend the trial will be a matter for the Trial Judge’s determination.

20. That the Independent Children’s Lawyer has leave to cause any further subpoenas to issue from the Court as she considers necessary and she shall prepare an indexed and paginated bundle of documents which are to be tendered into evidence from the documents produced under subpoena, and to file a copy of that bundle with the Court, and provide one copy of that bundle to each of the father and the mother, no later than 7 days prior to the commencement of the trial.

21. That on or before Friday, 12 July 2019, the husband and the wife shall make, file and serve a Case Outline Document containing:

    (i)A list of the filed documents that they read and rely upon as evidence in their case;

    (ii)Each of the Orders that they ask the Court to make at the conclusion of the trial be it parenting, property adjustment, spousal maintenance or pursuant to any other cause of action;

    (iii)A summary of argument as to why those orders should be made by the Court.

22. That on or before Friday, 19 July 2019, the Independent Children’s Lawyer shall file and serve a Case Outline Document containing a minute of the Orders that the Independent Children’s Lawyer asks the Court to make at the conclusion of the trial and a summary of argument as to why those Orders should be made.

23. That the father’s costs and the Independent Children’s Lawyer’s costs of and incidental to the hearing on 18 February 2019 be reserved.

IT IS NOTED:

(A)The wife was previously given leave to file an Application in Case seeking an order that she be allowed to adduce into evidence a report or evidence from another (adversarial) expert witness on the issue of the valuation of the husband’s business. It was the Court’s intention that such application, if it was going to be filed, be heard on Monday, 18 February 2019. The wife did not file such an Application in a Case but has still indicated her desire to do so.

On Monday, 18 February 2019, the wife was informed that no further direction or orders would be made about that issue at this point in time and that it was now a matter for her and anyone who may advise her as to how to proceed with that issue and it was made clear to her that there is no guarantee that any such application would be successful, if and when such application is made. Indeed the provisions of r 15.49 of the Family Law Rules 2004 (Cth) were specifically brought to the wife’s attention.

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 Herbert & Herbert (No. 2) 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 4902 of 2017

Mr Herbert

Applicant

And

Ms Herbert

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. On Monday, 18 February 2019, this matter came back before me pursuant to previous directions that it be listed on that day to consider whether it should be listed for trial in the near future. I had also given the Respondent wife the opportunity to file an Application in a Case for an order that she have leave to adduce adversarial expert accounting valuation evidence in the trial that she had foreshadowed. Further, I had previously indicated that I would consider any further evidence filed in respect of the interim parenting arrangements with a view to determining if there should be any further change to those arrangements.

2. At the mention of the matter on Monday, 18 February, counsel appeared for the Applicant husband and submitted that the matter should be listed for trial. The Independent Children’s Lawyer (“ICL”) also appeared and made submissions that the matter should be listed for trial. The wife appeared, once again without legal representation. She did not argue against listing the competing applications of the parties for a trial as soon as possible. In fact, she supported that course. However, since the matter was last before the Court, the wife had filed numerous applications and supporting affidavits. Indeed, she had even tried to file one at around 8.00 pm on Friday, 15 February 2019, that she filed by leave on the afternoon of the hearing.

3. In that latest application she was seeking a swathe of orders on an interim basis. Those included a variation of the interim parenting orders by putting the two children, X, aged 15, and Y, aged nine, back into her full-time care, giving her sole parental responsibility for them and providing for them to spend weekends and parts of school holidays with their father. This application once again sought an order that the ICL be discharged and another one appointed in her place. At the hearing, the mother also made it clear that she was applying for an order restraining the father from taking the children to the psychologist, Ms R, because the mother asserted that there was a “conflict of interest” in Ms R providing family therapy to the father and the boys.

4. Applications filed earlier included two Contravention Applications, applications for spousal maintenance, adult child support, further interim litigation funding and a miscellany of other things.

5. I heard the oral submissions of the mother over a considerable period of time on Monday afternoon and I heard her in particular on the issue of moving the boys back with her, the question of the ICL’s position in the matter and the question of Ms R’s position in the matter as the provider of family therapy for the father and the boys.

6. At the end of the afternoon, I reserved my decision. I now make the orders set out at the commencement of these written reasons in respect of listing and readying the matter for trial.

7. The evidence the mother relied upon did not persuade me that the boys’ best interests at this point in time demand that they be moved again and be put back with their mother pending trial. Indeed, last year, on 7 September, I determined it was in the boys’ best interests to be moved from their mother’s full-time care to their father’s full-time care after having found that if they remained in their mother’s care they would probably be denied an ongoing relationship with their father. At that time, they had not spent much time with their father since much earlier in the year and I was satisfied that most of the responsibility for this fell at the feet of the mother. In addition, there was evidence that the eldest boy had missed weeks and weeks of school whilst in the mother’s care and I was satisfied that the mother did not act responsibly or appropriately in respect of this issue. The decision to move the boys to their father’s care was one the ICL urged upon the Court at that time, as well.

8. Later, in December, I varied my September Order that prevented the boys from spending time with the mother and provided for them to be able to spend time with the mother on weekends. The matter came back before me again on an urgent basis in early January this year after the boys were not being returned to their father’s care immediately after those weekends with their mother and the eldest boy was said to be moving at his own determination between his parents’ homes. Once again, I made Orders that both boys live with their father and that the mother be restrained from having any contact with them. That has been in place since early January.

9. On Monday this week, the ICL tendered into evidence letters she had obtained from the boys’ schools and one from Ms R who has been seeing the boys for family therapy. The ICL again submitted that I should make no change at all to the existing Orders. This was also supported by the opinion of Ms R.

10. With respect to the mother, she revisited many of the factual matters that she has been raising with the Court over the last seven or eight months and did not put any evidence before the Court that persuaded me to again change the boys’ living arrangements. I am satisfied that these two boys need respite from the instability and turmoil their parents’ unresolved conflict is bringing them. For the moment, they will stay living with their father and not spend any time with their mother. The evidence still supports a finding that at least in the father’s care both boys are attending school as required.

11. The mother raised nothing that persuaded me to discharge the ICL. I observe that it is not the first time in the last six months that the mother has asked me to discharge the ICL and, as was the case previously, the mother adduces no evidence that persuades me that the ICL is not discharging her duties independently and professionally. That an ICL is not acting in a way that accords with a parent’s expectations is not sufficient reason to discharge an ICL.

12. The mother pointed to the fact that Ms R revealed that she had once worked for a psychology practice that had an office in the same building as the father’s business as proof of a “conflict of interest”. Despite the fact that Ms R said that she did not know the father and had never met him before family therapy started last year, the mother asserted that they “shared the same lunch room” when working in the same building. The mother also confirmed to the Court that she was asserting that Ms R was lying to the Court about that.

13. None of that persuaded me that Ms R should not continue in her current family therapy role in this case. I informed the mother that I would not restrain Ms R from acting but that would not stop the mother from challenging Ms R in cross-examination at the trial of the matter if she wished to try to discredit her.

14. Having considered the content of the alleged contraventions founding the mother’s two recently filed Contravention Applications, I considered it appropriate not to hear them separately before the trial but to list them for hearing as part of the one final trial. I told the mother that is what I would do. She made no convincing argument for a different course.

15. As for the balance of her interim applications, I told the mother that I would also not be listing any of them for separate and distinct hearings before the trial but told her that if she pressed applications for spousal maintenance and/or adult child maintenance (as included in one of her applications filed) she would have to pursue those as part of the relief she sought in the trial.

16. The wife was previously given leave to file an Application in Case seeking an order that she be allowed to adduce into evidence a report or evidence from another (adversarial) expert witness on the issue of the valuation of the husband’s business. It was the Court’s intention that such application, if it was going to be filed, be heard on Monday, 18 February 2019. The wife did not file such an Application in a Case but has continued to indicate to the Court her desire to do so.

17. On Monday, 18 February 2019, the wife was informed that no further directions or orders would be made about that issue at this point in time and that it was now a matter for her and anyone who may advise her as to how to proceed with that issue and it was made clear to her that there is no guarantee that any such application would be successful, if and when such application is made. Indeed the provisions of r 15.49 of the Family Law Rules 2004 (Cth) were specifically brought to the wife’s attention.

18. She was informed that she would need to have a report from the proposed adversarial expert before the Court would even consider whether she should be granted leave to adduce it into evidence and be able to rely upon it. The wife was clearly informed that it is a matter for her to consider and pursue, perhaps with further legal advice sought by her to assist and that the Court would no longer delay having the final trial whilst she determined how she was going to deal with this matter.

19. Another order the wife was seeking on an interim basis was an injunction restraining the husband from causing the trustee of the family trust to distribute trust income to the wife in circumstances where she does not actually receive the money but is left with a tax liability to the Australia Taxation Office. She said that has happened in the past. The Court was told by the husband’s counsel, on instructions, that the 2018 financial statements for the trust have not been done yet and that the husband will not cause the trustee to distribute trust income to the wife before the trial is completed. On the strength of that assurance, I informed the wife that I did not intend to make an order as she sought.

1. Finally, as for the question of further interim litigation costs funding for the wife, the wife was unable to persuade me that I should make orders that provide for more money to be paid out of the money that is held on trust for the husband and wife to her for use in securing legal representation. Last year, there was in excess of $400,000 held by independent solicitors on trust for the husband and wife, being the remaining proceeds of sale of their former matrimonial home. As a result of Orders I made last year giving the wife some lump sum spousal maintenance and providing interim litigation costs funding, that amount is now reduced to approximately $99,000. The wife has had about $250,000 of that. The husband has had in excess of $85,000, I understand.

2. As I told the wife during the hearing, I am reluctant to make any further distributions out of the remaining money held on trust as I am not satisfied, on the evidence that is before me, that any further distributions will ensure that the wife is represented at the trial of the matter that I am listing for late July this year. It appears that all of the money she has previously received has been expended and even with that she is again without legal representation. I am currently of the view that the remaining funds are best preserved to be considered along with the business run by the husband and the parties’ interests in their self-managed superannuation fund as the only likely property interests to be adjusted as between them.

3. I also informed the wife that she should approach the Queensland Law Society and seek assistance with her representation for the trial by a firm of family law solicitors who might be prepared to represent her on a deferred payment basis (that is, awaiting the outcome of the property adjustment proceedings to be paid), if none of the firms that she has already had relationships with are prepared to represent her on that basis.

4. Having been told by the legal representatives for the husband that the single expert accountant has valued the business at $700,000 and that the parties’ superannuation interests total around $500,000 and knowing that there remains close to $100,000 held in trust, I estimate the value of the property and superannuation interests of the husband and the wife will be at least around $1.3 million. By way of further consideration, the wife asserts that the business is really worth more than $700,000 and that she already has a third party interested in purchasing it. Given the factual history of the matter, the length of the marriage and my initial views on contributions assessment, I am quite satisfied that the wife will receive sufficient property adjustment in the form of a cash payment from the husband to retain the business or a share of the sale proceeds of the business, plus a superannuation interest to satisfy solicitors who would act for her on a deferred payment basis.

5. Indeed, with a competent firm of specialist family lawyers advising and representing the wife, there is room for optimism that the matter could resolve without going to trial. 

6. I make the orders set out at the commencement of these written reasons.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 22 February 2019.

Associate: 

Date:  22 February 2019