HERBERT & HERBERT

FAMILY COURT OF AUSTRALIA

HERBERT & HERBERT

[2018] FamCA 690

FAMILY LAW – CONTRAVENTION – Where the mother was found to have contravened interim orders without reasonable excuse by not providing the children with weekend time and holiday time with the father – Where the father was found to have contravened interim orders without reasonable excuse by discussing adult issues with the children and not disclosing documents.

FAMILY LAW – PARENTING – INTERIM – Where the mother sought orders for the children to spend no time with the father – Where the father sought orders for the children to live with him and spend supervised time with the mother – Order that the children live with the father and spend no time nor communicate with the mother until further order – Order that the father have sole parental responsibility for the children until further order.

FAMILY LAW – PROPERTY – INTERIM – Where the wife sought further disclosure – Directions made regarding disclosure required by specified entities subject to subpoenas.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Taxation Administration Act 1953 (Cth)

Weir and Weir (1993) FLC 92-338

APPLICANT:

Mr Herbert

RESPONDENT:

Ms Herbert

INDEPENDENT CHILDREN’S LAWYER:

Lyrene Wiid

FILE NUMBER:

BRC

4902

2017

DATE DELIVERED:

7 September 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

28 & 30 August 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Rosen

Rosen Lawyers

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Andrew

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Wiid

Lyrene Wiid Lawyer & Migration Agent

Orders (already made 28 August 2018)

IT IS DECLARED

That on 27 and 28 April 2018 the mother contravened paragraph 3 of the Orders of Registrar Spink made 20 March 2018 without reasonable excuse, by not providing the children for weekend time with the father.
That on 30 June 2018 the mother contravened paragraph 4 of the Orders of Registrar Spink made 20 March 2018 without reasonable excuse, by not providing the children for holiday time with the father.
That on 12 May and 21 July 2018 the father contravened paragraph 13 of the Orders of Registrar Spink made 20 March 2018 without reasonable excuse, by discussing adult issues with the children.
That in February and June 2018 the father contravened paragraph 12 of the Orders of Registrar Coutts made 5 October 2017 without reasonable excuse, by not disclosing documents.

IT IS ORDERED

That the mother shall cause the children, X born … 2003 and Y born … 2009, to attend at the Child Dispute Services section of the Brisbane Registry at Level 3, at no later than 8.50 am on Wednesday, 29 August 2018 and she shall follow all instructions given to her by the Regional Coordinator of Child Dispute Services, Ms F, and any family consultant to whom Ms F delegates the responsibility of preparing a s 11F report for this court, particularly one in which the family consultant enquires into and reports to the Court on the current views of the children in respect of spending time with their father.
That the Independent Children’s Lawyer (“the ICL”) shall be responsible for ensuring that the family consultant who is to do the s 11F report is provided with a copy of:
(a)Dr G’s report;
(b)Ms H’s report;
(c)the affidavit sworn by Dr J;
(d)the Notice of Risk of Abuse; and
(e)Exhibits 1, 2 and 3 tendered in court today.
That neither parent shall provide any further information to the family consultant unless such information is requested of that parent by the family consultant.
That an injunction issue restraining the mother from discussing any aspect of these proceedings with the children prior to delivering them to Child Dispute Services on 29 August 2018, including talking to them about why they are required to attend at that place.
That the matter be adjourned for further hearing before his Honour Justice Forrest at 10.30 am on Thursday, 30 August 2018.

Orders (7 September 2018)

IT IS ORDERED, UNTIL FURTHER ORDER

That Orders 1, 3, 4, 5, 6, 7, 8, 9 and 10 of the Orders of the Court made by Registrar Spink on 20 March 2018 be varied so that the children, X born … 2003 and Y born … 2009, (“the boys”) live with the father from after school on Friday, 7 September 2018 and not spend any time with the mother, nor communicate with her, unless with the father’s agreement.
That the father shall have sole parental responsibility for making any decisions about the boys’ education (both current and future), the boys’ religious and cultural upbringing, and the boys’ health.
That the father shall not change either of the boys’ names without the written agreement of the mother.
That the father shall not change the boys’ living arrangements, once they are living with him, so as to make it significantly more difficult for the boys to spend time with the mother in the event that orders are made at some time in the not too distant future for them to spend time with her.
That the father shall collect both of the boys from their schools after school on Friday, 7 September 2018, or from the mother’s home if either of the boys has not attended school this day or is not at school when the father goes to collect them.
That the mother shall not attend at either of the boys’ schools this afternoon and shall, until further order, remain away from the boys’ schools and not go within 500 metres of either school.
That the mother shall not return any communication she receives from either of the boys or both of them until further order.
That the father shall, at his cost, start attending upon family therapy with the boys as soon as practicably possible (but no later than two weeks from the date hereof) with a family therapist approved in advance by the Independent Children’s Lawyer. Such attendance by the father with the boys shall then take place on a weekly basis thereafter until the therapist, the ICL and the father all agree that less frequent visits are appropriate. Such family therapy shall continue until further order or agreement reached between the father, the therapist and the ICL, whichever is the earlier. The family therapist is to be provided by the ICL with the reports of Ms H, Dr G, and Mr K as well as these written reasons for judgment.
That the mother shall attend upon a different family therapist, psychologist or psychiatrist (not one she has previously attended upon and not the same one the father and boys are attending) chosen by her, but approved in advance by the ICL, for therapy to address her attitudes to the children spending time in the care of their father. She shall commence that as soon as it can be put in place and she shall continue with that therapy for as long as it is considered necessary by her and the therapist. The family therapist, psychologist or psychiatrist the mother is to attend shall be provided by the ICL with the reports of Ms H, Dr G, and Mr K as well as these written reasons for judgement.
That any out of pocket expense incurred by the mother in attending upon the therapist in compliance with paragraph (9) hereof (limited to the professional fees of the therapist) after any of the cost is covered by Medicare as part of a Mental Health Plan prescribed by the mother’s general medical practitioner, is to be reimbursed by drawings from the parties’ money currently held in trust by the independent firm of solicitors. It is to be reimbursed to the mother by that firm upon the presentation to them of an invoice and receipt from the said therapist by the mother. That independent firm of solicitors shall be provided with a copy of these Orders, but not the reasons, to make them aware of the mother’s entitlement to such reimbursement.
That the father shall not provide a copy of Dr G’s report to the principals of the schools attended by the boys but he is authorised to show those two principals that part of these Orders that provides for the boys to live with him and for him to have sole parental responsibility for their education until further order, as well as that part of these Orders that restrains the mother from going to the boys’ schools until further order, so that they are aware of the determination by this Court of these issues.
That paragraphs (2), (12) and (13) of Registrar Spink’s orders of 20 March 2018 still apply.
That paragraph (5) of the Orders made by Justice Forrest on 7 December 2017 be varied by substituting the account number 10363496 for the account number 10145894 that appears in that paragraph. Paragraphs (5) and (6) of those orders otherwise still apply with that variation. The father is permitted to show officers of the Commonwealth Bank this Order and paragraphs (5) and (6) of the Orders of 7 December 2017 to satisfy them of the determination by this Court on these issues.
That in respect of subpoenas the mother caused to be issued out of the Court on 26 July 2018, directed at the following entities:
(a)The Trustee for Herbert Family Trust ABN …;
(b)E Pty Ltd – ABN ... and/or Mr Herbert;
(c)The Trustee for M Trust and the Trustee for Herbert Family Trust – ABN ...;
(d)Herbert Group Superannuation Fund – ABN ... and/or Mr Herbert;
the following applies:
(i)To the extent that each recipient named in the first three subpoenas just listed is a separate entity for which financial statements and income tax returns were prepared, those entities shall produce the following documents:
(a)any such financial statements and income tax returns that were prepared for them for the financial years 2014, 2015, 2016, 2017 and 2018 that are in their possession, custody or control;
(b)any documents meeting the description “asset register” for the financial years 2014, 2015, 2016, 2017 and 2018 that are in their possession, custody or control;
(c)any documents meeting the description “payroll report” for each of the financial years 2014, 2015, 2016, 2017 and 2018 that are in their possession, custody or control;
(d)any bank statements for any bank accounts held by those entities for each of the financial years 2014, 2015, 2016, 2017 and 2018 that are in their possession, custody or control;
(e)any trust deed in their possession, custody or control;
(f)any documents meeting the description “accounts payable and receivable ledgers” for the financial years 2014, 2015, 2016, 2017 and 2018 that are in their possession, custody or control;
(g)any documents meeting the description “loan ledgers” for the financial years 2014, 2015, 2016, 2017 and 2018 that are in their possession, custody or control;
(h)any documents meeting the description “full general ledger from accounting software” for the financial years 2014, 2015, 2016, 2017 and 2018 that are in their possession, custody or control;
(ii)the Herbert Group Superannuation Fund shall produce the following documents:
(a)Financial Statements (including profit and loss statement and balance sheet) and income tax returns for the financial years 2014, 2015, 2016 and 2017 and 2018 (when completed if not already);
(b)The trust deed for the fund;
(c)Bank statements for any bank accounts held by the fund for the financial years 2014 to current date;
(d)A list of the fund’s current assets and their value;
(e)Documents relating to any life insurance policies attached to the fund;
(f)Any minutes of trustee’s resolutions or determinations made since 1 July 2014 to current date still in the possession of the trustee of the fund;
(g)Any auditor’s report for any of the financial years 2014, 2015, 2016 and 2017 and 2018.
That all other extant applications for interim orders not dealt with in these Orders are dismissed.
That the proceedings be listed before Justice Forrest at 10.00 am on Tuesday, 16 October 2018 at which the Court shall consider any fresh evidence filed by that date and hear submissions as to whether there should be any further interim parenting orders made and at which further directions progressing the matter to an expedited final hearing, including possibly listing the matter for a trial on dates to be determined, will be considered.

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 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

This matter came before me for the hearing of competing contravention applications on Tuesday, 28 August 2018. Some other interim applications were also listed before me for mention. I heard and determined those as well.
There are ongoing parenting and property adjustment and spousal maintenance proceedings in the Court commenced by the parties in early 2017. I made interim orders in respect of property, spousal maintenance, disclosure and interim litigations costs funding in early December, last year. At that time, the three children of the parties were living with their mother and seeing their father by agreement, though, as I said in my judgment at that time, that was not without difficulty.
On 20 March, this year, Registrar Spink made interim parenting orders after a contested hearing before him at which the father was represented by experienced counsel and the mother appeared without representation. She did that despite my December orders having provided her with $150,000 of their capital to be used for litigation funding, approximately $64,000 of which was for fees already owing by her.
The Registrar had the benefit of a family report prepared by an experienced family report writing social worker. In that report, the social worker had recommended that the parties’ eldest daughter (who will be 18 in October this year) continue to live with the mother and spend time with the father in accordance with her wishes. The social worker recommended that the two boys, currently 14 years old and nine years old, continue to live with the mother and spend alternate weekends with the father. She recommended that take place by the father collecting the boys from their schools on the Friday and have them until 2:00 pm on the Sundays, but with the 14 year old to be permitted to stay at home with his mother on Friday nights if he chooses to, and to be collected on Saturday mornings by his father. She also recommended that the boys spend half of the school holidays with their father if he is personally available to care for the children during that time. The social worker, I consider, placed a great deal of weight on the children’s views when determining these recommendations.
In addition, the social worker recommended that the mother attend regularly upon an experienced psychologist with a view to obtaining emotional support, with that psychologist being provided with access to the family report. She also recommended that consideration be given to the mother undertaking a psychiatric assessment to ascertain whether she requires specialist treatment.
At the hearing before the Registrar the mother told the Court that she supported the idea of the children seeing their father. The Registrar made parenting orders reflecting the fact that he had seriously considered and accepted most of the recommendations of the social worker. He also appointed an Independent Children’s Lawyer (“the ICL”) to represent the children’s best interests in the ongoing proceedings.
The boys spent time with the father for the first time after the Registrar’s orders were made for the first week of the Easter school holidays, from Good Friday on 30 March until Friday, 6 April. There is no dispute that during the time that the boys were with the father, the mother called the police and asked for them to go to the father’s house to do a welfare check on the boys. She asserted that this was after she had received text messages from the 14 year old complaining about the way their father was treating them. She did not put any such text messages into evidence though she said that she retained them. She asserted that she had promised her son that she would not put them before the Court. It was made clear to her how significant these text messages might be in the presentation of her case. She did not change her position over the course of the hearing. In these circumstances, I am satisfied that either there were no such text messages from her son or, if there were, they would not have assisted the mother’s case.
However, it is not disputed that police officers attended the father’s home and checked on the boys’ welfare. It is also not disputed that the police officers left the boys in their father’s care after they left the home.
On Friday, 6 April, the father said the eldest boy asked him in the afternoon if he could drop them back to the mother’s home earlier than the agreed handover time of 5:00 pm (when handover was to take place at a local fast food restaurant). He said that he told the boy that would be alright if it was alright with his mother. The mother said the boy rang her and asked her if it was alright if the boys came home a little earlier than planned. She said that she told the boy that would be alright but that she was just out from home and would not be home for about half an hour. She said that the boys were dropped home at about 4:30 pm and that she was at home when they were dropped off.
The factual circumstances just referred to in the previous paragraph were the basis for the mother alleging the father had contravened the primary orders without reasonable excuse. She alleged that he had contravened by not returning the boys to her at the fast food restaurant. I dismissed that allegation. He had a reasonable excuse for dropping them to the mother’s home.
The next time the boys were to spend time with the father was the school term weekend of 27 to 29 April. They did not attend. The mother’s failure to ensure that the youngest boy went with the father on the Friday of that weekend after school and her failure to deliver the older boy to the father at the handover location at 9:00 am on the Saturday of that weekend were the basis of two contravention allegations the father made against the mother.
The mother admitted that she had contravened the primary order on both of those occasions but she claimed she had a reasonable excuse for doing so. The basis of her claim of reasonable excuse was that the boys did not want to go and that she retained them, considering it was necessary for their health and safety, believing that the father would abuse them if she sent them.
I found that the mother contravened the primary order on both of those occasions without reasonable excuse. I rejected her claim of reasonable excuse for the contraventions.
On the evidence, I was satisfied of the following matters:
(i)That the mother did not write to the father’s solicitor or to the father by email, text or at all, advising of her intention not to send the boys for contact that weekend or at any time thereafter (though she asserted, without corroborative evidence, that she did);
(ii)That the mother made no application to this Court to suspend the Orders providing for the boys to spend time with the father, nor any application to review the Registrar’s decision.
(iii)That the mother turned up at the youngest boy’s school on that Friday afternoon to collect the boy and to ensure that the father did not collect him from school;
(iv)That the father turned up at the youngest boy’s school on that Friday afternoon ready to collect the boy and unaware that the mother was not intending to permit him to take the boy;
(v)That the father saw the boy and approached him to see if the boy was going to be coming with him for the weekend;
(vi)That the boy had a paper wasps’ nest in a jar that he had taken to class that day for show and tell and the father expressed a desire to see it;
(vii)That the father observed the boy to be happy to see him and expressed his intention to take the boy home with him for the weekend;
(viii)That the mother intervened and angrily informed the father that the boy would not be going home with him and then physically escorted the boy away from the father, to her car and took him home; and
(ix)That the mother and the father exchanged unpleasant comments with each other in the boy’s presence.

I was not persuaded by any evidence before the Court that the father had abused the child, physically or emotionally or in any other way, either that day or on the previous visit. The mother did not discharge the onus of proof that was on her to satisfy the Court that she had a reasonable excuse for contravening the primary order. She was obliged by the primary order to ensure that the youngest boy went with his father that afternoon. She did not ensure that happened. Her attendance at the school that afternoon and her deliberate actions thwarted that. She did not have a reasonable excuse for doing that.
As for the failure to deliver the older boy to the father the next morning, again the mother failed to satisfy me that she had a reasonable excuse for not delivering him. The father attended at the designated handover point at 9:00 am and waited for fifteen minutes. The mother did not arrive with the older boy. Again, she did not persuade me that the father had abused the older child, physically or emotionally or in any other way. I did not accept that she had a reasonable excuse for not taking him.
The third contravention complained of by the father took place when the mother did not deliver the boys for the first half of the June/July school holidays on Saturday, 30 June. Again, she just did not turn up with them at the designated handover point where the father attended and waited for fifteen minutes before leaving. I did not accept that the mother had a reasonable excuse for not taking the boys.
The boys have had very little contact with their father since 6 April, this year.
For the father, it was submitted that the appropriate consequence for the mother’s contraventions would be to vary the primary order using the power to do so conferred by s 70NBA and to order that the boys live with the father.
Relevantly, I also found that the father had contravened the primary parenting order that obliged him not to discuss adult issues with the children and not to denigrate their mother to them, as the mother alleged in two other contravention allegations. The father admitted that he had said certain things to the youngest boy on one occasion and to the girl on another occasion that contravened that order of restraint. He asserted he had reasonable excuse for doing so. I did not accept his claim of reasonable excuse.
When the mother made oral submissions at the end of the contravention hearing, she said, initially, that she did not care what consequences the Court imposed upon the father for his contraventions. Then she said that she would leave it in the hands of the Court to determine.

The s 11F Report

The ICL, who appeared at the Contravention hearing but took no active part in the determination of the contravention matters, also made submissions at the end of the hearing. I quickly determined to have the boys see a Family Consultant the next day and made orders for them to be brought in to Child Dispute Services for their current views to be assessed. I ordered that the Family Consultant who was to see them be provided with: a report the ICL had commissioned and obtained from a psychiatrist who had seen both parents; the family report prepared by the social worker; and also an affidavit that the mother had relied upon that had been sworn by her general medical practitioner.
I adjourned the matter for further hearing on Thursday, 30 August 2018 and directed that the Family Consultant who was to see the boys on Wednesday, 29 August make himself available to be cross-examined by the solicitor for the father, counsel for the ICL and the mother herself. On that day, the Family Consultant was in the witness box for almost two hours and gave some very thoughtful and useful evidence.
The Family Consultant wrote in his short written report that when he interviewed the 14 year old boy he found him to be, remarkably, more reserved, and at times non-responsive, to specific questions about why he does not wish to spend time with his father. He found that at odds with his assessment of his capacities otherwise. He went on to express the opinion that the boy was “struggling with the awful task of trying to put forward a view to me that perhaps was not always congruent with his actual thoughts.” In his oral evidence, the Family Consultant agreed with the proposition that what he was effectively saying was that the boy did not seem to really believe what he, himself, was saying. Significantly, the boy was recorded as having said that going over to his father’s place had stopped in “about May” as the boy said he “just didn’t like going over there anymore.”
The boy’s response to the question as to why he thought he stopped spending time with his father was, firstly, to express his negative feelings about the daughter of his father’s new partner, but then he also added that the father was “saying abusive things to my mum”, some of which he said he saw being said, but others of which he said his mother told him about. He denied that his father had hurt him physically.
When the boy was asked about how he would feel if the Court decided it would be best for the two boys to spend time with their father, he replied that he “may not want to go” and that he did not think his mother would care as she had told him he can see his father if he wants to.
On the contrary, I was quite satisfied that the mother did care greatly about whether the boys spent time with their father, in particular, that she was not happy for them to spend time with him. This may very well have been one of the things that the elder boy said, that the Family Consultant thought the boy himself did not believe.
As for his conversation with the nine year old boy, the Family Consultant expressed the opinion that “some of [the boy’s] comments contained references to views and information that [he] found difficult to think [the boy] would have formed or established himself.” The Family Consultant outlined several matters reported to him by the boy that were negative of the father that the boy apparently learned or heard from his mother. The boy told the Family Consultant, for example, that his mother had shown him her bank account statements to support an assertion that the father had “stole all her money” and also that she had told him that the father had picked her up by the throat once, something the boy had clearly not seen himself.
The Family Consultant reported that the boy had said he was scared of his father and did not want his father to hurt him, but when asked how he might feel if the Court determined that he spends time with his father, the boy is reported to have replied “I don’t know. Maybe I’d feel like frightened at what he might do”. However, the boy is reported to have confirmed that his father had never actually hurt him.
In his concluding remarks, the Family Consultant opined that whilst the boys exhibited a moderate level of resistance to spending time with the father, he did not consider that resistance to be high. He did not think that either boy presented with strident or unremitting rejection of the father.
In his oral evidence, the Family Consultant expressed his concern about the mother “leaking information” to the children in a way that suggests she has “relaxed boundaries” and brings into question her capacity to keep separate from the children whatever feelings she has. He said there are some characteristics of an enmeshed relationship such as the blurring of boundaries and reversing of roles, e.g. the eldest boy staying home from school because he is worried about his mother, but he was not able to express a more definite opinion about that on the data available to him.
The Family Consultant expressed the opinion that if the Court decides that the time for therapeutic intervention has expired then it is probably the time for “structural change”, which I understood to be a reversal of the principal caring roles in this parenting.

Some other relevant evidence

The ICL tendered copies of records obtained from the eldest boy’s school. Those records showed the boy had missed quite a lot of school, most particularly over a three week period in May this year. The school records reflected that the boy was reported to be unwell. The mother said that he was unwell and not wanting to go to school. However, the evidence of the mother’s GP, who had seen the boy at around that time, was that in her opinion the boy was refusing to go to school as he was nervous and fearful for his mother, worried that something might happen to her during the day whilst he was at school and that this anxiety was driven by his concern for his mother and his desire to care for her.
The mother also told the Court that on a day during the week before the hearing the boy had not gone to school again and that she had taken him with her to the Brisbane Magistrates Court where a family violence protection order proceeding between the mother and the father was being mentioned. She told the Court that she did not consider that she had a choice as she had no one else to leave him with and could not leave him at home on his own. She clearly did not see the inappropriateness of further involving the 14 year old in the dispute between his parents by taking him with her to the Court that day.
I also asked the mother prior to the luncheon adjournment on Tuesday, 28 August whether she could give some thought over the lunch break to whether or not she would abide by the orders if I determined to leave them in place with an admonition for her to comply and ensure the boys went to see their father. When Court resumed after more than an hour’s break, the mother was asked what her answer to that question was. She began a very long answer by asserting that if the boys continued to say they did not want to go she would not send them. She went on to say many other things, but also asserted that someone from the Department of Child Safety had told her that if she sent the boys to spend time with the father they would be removed from her care. She adduced no evidence supporting or corroborating that assertion. I do not accept the mother’s proposition that the Department would necessarily intervene if the boys went to their father. Worryingly, the mother ultimately said that the boys would go to their father “over [her] dead body”.
The report of Dr G, psychiatrist, obtained by the ICL in June/July this year, was also adduced into evidence. Dr G expressed the opinion that the mother “has developed a syndrome of chronic psychiatric dysfunction” presenting with a “chronic syndrome of anxiety which appears to have arisen in 2013 and which has fluctuated without management since that time.” The Doctor said that the mother needs referral for urgent psychiatric assessment and management to reduce her levels of subjective distress and to stabilise her functioning. He also said that it would be wise for her to review his report with her GP.
The mother had certainly discussed Dr G’s report with her GP and she relied upon an affidavit of her GP that she had drafted for the GP but which the GP swore. The GP said that the mother had been a patient of hers for over 20 years. She expressed the opinion that the mother has not suffered from any mental illnesses in that time. When she gave oral evidence, she did confirm though that the mother does demonstrate some obsessive traits and that she does tend to be very dramatic about things. Those opinions resonated with me, though without cross-examination of Dr G I am not in a position to determine that I accept his expert opinion as conclusive.

Submissions

When I heard submissions, counsel for the ICL made strong submissions that the Court should vary the Registrar’s interim orders and make orders that have the boys live with their father. He submitted that they should not see or contact their mother for two months and that after that period, their time with her should be supervised for short periods for a while before reverting to unsupervised time. He submitted that the mother should also be restrained from responding to any contact from the boys and also from attending at their schools.
The ICL’s submissions were based on the premise that leaving the boys with the mother presents an unacceptable risk to the emotional well-being of the boys, in that their relationship with their father is being destroyed, they are being dragged into the adult dispute and their educational outcomes are being compromised.
The solicitor for the father supported the submissions of counsel for the ICL, and asserted the father was ready, willing and able to have the boys in his full-time care. The mother was very histrionic in the presentation of her oral submissions, clearly realising that moving the two boys from her care was now an option seriously being considered by the Court. At one point she said, rather incredibly, that for the father to take the children would make her life easy in that she would not have to deal with all of “this in the background”. She began to cry and lost complete control of herself only to regain her apparent composure as quickly as she had lost it. Her lack of self-restraint was a consistent troubling feature of her presentation to the Court.
I apprehended the mother’s real position to be that she could not readily contemplate the prospect of the boys going to live with the father and that she rejected it entirely as being in their interests. That said, at no stage did I gain an impression that she would readily facilitate regular time between the boys and their father or that she thought there would be any benefit for the boys in spending any time with their father.
In short, the mother gave me no confidence that leaving the primary orders in place and exhorting her to abide by them from now on would result in the boys recommencing regular time with their father or re-enliven their relationship with him.

Some late evidence

Without leave even being sought or granted, the father’s solicitor filed another affidavit by the father on Monday, 3 September, whilst my decision was reserved. It was less than two pages long. When I was informed that the mother had communicated with the Court advising of her intention to file another affidavit in response, I directed that she be told that she could file another one of no more than three pages provided it was filed by Wednesday, 5 September. She did file one, though it was much longer than three pages long when the exhibits were included and it ranged outside of the matters raised by the father in his affidavit.
The father deposed to the eldest boy texting him on Saturday night, the eve of Father’s Day, telling him he wanted to spend Father’s Day with him. The father said that he messaged the boy back and said that he would pick the two boys up at 9:00 am on the Sunday at the fast-food restaurant. The father said that the boy responded saying that the youngest boy was not going to be coming over as he was “too busy playing on his Xbox”. The eldest boy said he would ride his bike over to the father’s place. He also told the father that his sister would drive over to see him.
The father said that the eldest boy rode his bike over to the father’s home on the Sunday morning and stayed all day until 5:00 pm before riding home. He said that their daughter drove herself over to his place in the morning at around 9:00 am and stayed for a couple of hours before going home. The youngest boy did not attend at all and was not brought over.
The mother’s affidavit essentially confirmed all of that, as well as asserting that the nine year old boy did not want to go. Although the mother said she had told him he needs to go and see his father, she did not explain if she made any effort to actually get him to go. The mother, in her affidavit, again alluded in a rather vague and unexplained fashion to the fact that the eldest boy did not go to school on Monday, 3 September.
I am satisfied that the eldest boy’s actions on Sunday demonstrate that he is willing to spend time with his father. I am not satisfied that the younger boy’s absence demonstrates that he is not willing to spend time with his father. The mother clearly acquiesced in not delivering him to his father when he apparently expressed a view to her that he wanted to stay at home.

My Determination

Section 70NBA of the Act clearly confers discretion on the Court to vary a primary parenting order in the circumstances that present in this case, namely where the mother has been found to have committed a contravention of the primary order. Of course, in exercising the discretion, the best interests of the children are the paramount consideration pursuant to s 60CA. Additionally, if the contraventions are found to be of the more serious type (such as where the person who contravened the order has behaved in a way that showed a serious disregard for her obligations under the primary order) the court must take certain other considerations, if they are relevant, into account (s 70NBA(2)).
I am quite satisfied that the mother’s contraventions, particularly given the ongoing nature of her unwillingness and incapacity to ensure the two boys (most particularly the nine year old) spend regular time with their father, demonstrate a serious disregard for her obligations under the primary order. This is the first time the mother has been found to have contravened an order and the order she contravened was not a compensatory order. Additionally, Registrar Spink’s Orders of 20 March 2018, did not provide for the mother to attend a post-separation parenting program. These are matters that must be taken into account in considering what orders, if any, the Court should now make and I do.
In making a parenting order, which includes a variation of an existing parenting order, I have to have regard to s 61DA of the Act also. That section requires the Court to apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for the child. There are a number of consequences that follow the making of an equal shared parental responsibility order in respect of children. Firstly, the Court is then required to consider whether an order providing for the child to spend equal time with each parent is in the child’s best interests and whether it is reasonably practicable, which requires a number of other matters to be considered such as how far the parents live apart from each other. If the Court is not satisfied of both of those matters, it is required to consider whether making an order providing for the children to spend substantial and significant time (which is defined in the Act) with each parent is in the child’s best interests and whether that is reasonably practicable, considering the same set of things that go to making that consideration.
If the Court does make an equal shared parental responsibility order, s 65DAC obliges the parents who share that, when making a decision about a major long-term issue in relation to the child (that is also defined in the Act), to consult the other person in relation to the decision to be made, to make a genuine effort to come to a joint decision about that issue and to actually make the decision about the issue jointly.
Section 61DA(2) provides though, that the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in family violence. Section 61DA(4) also provides that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.
In this case, it is agreed that an incident happened between the parents in front of the boys in mid-2017 that became unseemly and has resulted in much subsequent turmoil between the parents. The children were at the father’s home for the weekend. The mother determined that she would go to the father’s home to collect them early on the Sunday afternoon, whilst the father had the understanding that he would deliver them to the mother later that afternoon. The father was in the front garden of his home and the mother arrived in her car in the driveway. The mother contacted the children from her car by her mobile telephone and they came out and got into the car. The father was unhappy with the mother’s unilateral action. He approached the car and tried to open the driver’s door to talk with the mother. She clung on to the inside door handle and tried to resist him opening the door. She then grabbed her mobile phone, attempting to video the father. He saw that and grabbed the phone from her hand and then threw it down inside the car. The mother managed to shut the door and the father, still holding a spray bottle of weed killer in his hand, then sprayed the window of the driver’s door with the spray before turning to go inside the garage, only to be followed in by the mother. She then left, taking the children, and called the police when she got back to her home. They attended and spoke with her and examined her phone and her car.

The mother has sought protection orders against the father based on that incident. The Court heard that she has been unsuccessful in a few of those applications in different Magistrates Courts in Brisbane. It is understood that she is attempting to obtain a protection order in further proceedings pending in the Brisbane Magistrates Court in which the father is also seeking to obtain his own order that effectively restrains the mother from continuing to apply for a protection order.
In the circumstances, I am not prepared at this interim hearing to say that I am satisfied that the presumption is rebutted because a parent has engaged in family violence, although I concede that during the hearing I said something contrary to that without understanding the true factual dispute about that incident. On review, I did not have enough evidence before me to decide that. However, I am well and truly satisfied that it would not be in the best interests of these children for the parents to have equal shared responsibility for the children, particularly given the obligations that would then be imposed upon the parents by s 65DAC. The mother’s animosity towards the father is palpable. She told the Court many times that she does not and will not speak with the father. The father’s animosity towards the mother was also on display during the hearing when he, too, could not restrain himself from belittling her from the witness box. On an interim basis, I have no expectation that they could respectfully communicate with each other on important decisions about long-term issues affecting the children.
I will, though, not leave in place the default position provided for by s 61C of the Act that provides each parent with parental responsibility for the children, to be exercised either jointly or severally. I will make an interim order that one parent has sole parental responsibility for the decisions about major-long term issues pertaining to the children’s health, education and religious upbringing. This will exclude decisions about the children’s names and living arrangements that would make it significantly more difficult for the children to see the other parent.
I will exclude the parents’ daughter from the conferral of such sole parental responsibility. She is almost 18 years of age and from that time on will have responsibility for herself as a young adult person. Parental responsibility for her will no longer apply from the time of her 18th birthday.
I am satisfied that sole parental responsibility as discussed is appropriately conferred on the parent with whom the two boys are, by order, principally living. Accordingly, it is that determination that will be determinative of the conferral of parental responsibility as well.
Section 60CC (1) of the Act mandates that I consider the matters set out in ss (2) and (3) of s 60CC. Two considerations described as “the primary considerations” are “the benefit to the child of having a meaningful relationship with both of the child’s parents” and “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”. There is then a long but not exhaustive list of “additional considerations”. Authority provides that although I am required to consider all of these, I am not obliged to include discussion of all of them in my reasons.
Satisfied that the father has not caused these boys physical harm and that there is not an unacceptable risk of him causing them physical harm when they are in his care, whilst being equally satisfied that the mother is causing them psychological harm each day they remain in her care without her commitment or capacity to ensure that they maintain an ongoing meaningful relationship with their father or that they, particularly the eldest boy, continue to attend school on a daily basis, I am determined to make parenting orders that provide for the mother to surrender the boys to the care of their father for the time being. I am satisfied, as accords with the expert opinion of the Family Consultant, that therapeutic intervention with respect to the mother is not the immediate answer. I do not consider that any such intervention, if it could work at all, would be able to be put in place quickly enough, or that it would bring about results quickly enough, for it to be considered as the most appropriate response to the present circumstances facing these children. I could not see it delivering the appropriate outcomes fast enough for the immediate emotional needs of these boys to be addressed as they need to be. I will still make orders that provide for the mother to get assistance though.
I will make an interim parenting order that provides for the boys to transition to their father’s care after school this afternoon and to remain living with him until further order. I will make not make any order for the boys to spend time with their mother and I will make orders that restrain the mother from having any contact with them. The father will be given sole parental responsibility for the boys in the terms I have already discussed until further order and the mother will be restrained from going to or near either of the boys’ schools until further order.
I will make orders for the father to start attending upon some family therapy with the boys with a family therapist approved of in advance by the ICL and paid for by him. That should be put in place as quickly as possible, with the first session to be within two weeks of my orders and then to take place weekly thereafter until the therapist, the ICL and the father all agree that less frequent visits are appropriate. It shall continue until further order or agreement is reached between the father, the therapist and the ICL, whichever is the earlier event. The family therapist is to be provided with the reports of Ms H, Dr G, and Mr K and these written reasons for judgment.
I will order the mother to attend upon a different family therapist, psychologist or psychiatrist (not one she has previously attended upon) chosen by her, but approved by the ICL, for therapy to address her attitudes to the children spending time in the care of their father. She should commence that as soon as it can be put in place and she should continue with that therapy as long as it is considered necessary by her and the therapist. I will make orders that any out of pocket expense associated with that therapy, after any of the cost of it is met by Medicare as part of a Mental Health Plan prescribed by the mother’s GP, are to be met by drawings from the parties’ money currently held in trust by the independent firm of solicitors. I will order that firm shall be provided with a copy of my orders only and that they shall reimburse the mother from that money held in trust upon the presentation to them of an invoice and receipt from the said therapist by the mother.
I have considered the fact that my orders will separate the boys from their sister, at least for a period of time. She has almost finished Year 12. She has a driver’s licence and a car. She is almost an adult. She can go and visit her father and brothers any time she wants that she can fit in around her current school schedule. She will likely have more time to be able to do that when her school year finishes. Separation from her is not, in my judgment, determinative of this matter.
I am satisfied that the matter requires expedition and judge management to trial. Accordingly, I will take it from the pending cases list and into my docket. I will list it for a further mention in around four weeks’ time and at that time I expect to list it for a trial in the not too distant future and to make trial directions. I will also hear submissions that day from the parties in respect of whether there should be any changes to the interim parenting orders. I will be particularly interested in understanding how the children have coped with the change and what their views are about continuing to live with their father. I will also be particularly interested in understanding what arrangements the father proposes for the boys’ care during the September-October school holidays. I will also be interested in knowing if the mother is accessing therapeutic treatment. I will hear submissions as to whether the boys should continue to live with the father and/or whether the moratorium on them spending time with and communicating with their mother should continue.
The father sought an order permitting him to provide Dr G’s report to the principals of the boys’ schools. I will not give him that permission. I do not consider it necessary, in the boys’ best interests, for that to be published to the schools. The father will be authorised to show the principals of the two schools the interim parenting orders that I make and that will be the limit of what he can show them. As long as the principals are aware of the formal change in care, parental responsibility and the restraint on the mother, that is all I consider they need to know of this matter.
The father also sought the Court’s approval to be able to use Dr G’s report in the Magistrate’s Court protection order proceedings that are pending. In my judgment, the prohibition on publication of such document contained in s 121(1) of the Act does not apply to the report of Dr G being sought to be adduced into evidence in the Magistrate’s Court proceedings, as it falls within the exception provided for in s 121(9)(a). Accordingly, I see no reason why the father cannot seek to put that report before a Magistrate in protection order proceedings. Whether the Magistrate permits that is a matter for the Magistrate, in my respectful judgment.
As for the consequences to be imposed on the father for his contraventions, I consider it appropriate simply to be imposing the requirement for him and the boys to attend family therapy together at his expense. I note that he has already completed a Triple P Parenting Course earlier this year. It is to be hoped that he now understands he is not to discuss adult issues with the boys or to denigrate their mother.
The father had another application that I heard as well. He seeks an order from the Court varying one of the Orders I made last year that dealt with his operation of a business bank account. Paragraphs (5) and (6) of my Orders were as follows:
(5)That the husband forthwith deposit into the Commonwealth Bank of Australia account number BSB … No. #94 in the name of [D Pty Ltd] (“the business bank account”) any funds he still holds in other accounts that he withdrew from that account or that are funds received as receipts of the business, [D Pty Ltd], and from this day, until further order, he shall deposit all receipts of the business, [D Pty Ltd], into that business bank account and transact business transactions only using that business bank account.
(6)That, until further order, only the husband shall transact on the business bank account, withdrawing funds from it to pay creditors and accounts only in the ordinary course of business or to pay his weekly salary or drawings, with any withdrawals made from that business bank account other than in the ordinary course of business or to pay his salary or drawings only to be made with the prior written approval of the wife and otherwise the wife shall not transact at all on that business bank account.
The father’s case was that I had mistakenly put in an account number in paragraph (5) that was the number of an old business account when the business was operated by the father and another man in partnership. It had been closed down some time before my Order was made and is not the account that the Orders should have applied to. Instead, the father asserted that the appropriate account number is No. #96.
At the hearing, the mother opposed the change. She had opposed the change since the father first proposed it be done by application of the “slip rule” soon after I made those Orders. The mother asserted that the father and his solicitor were lying about this and were actively engaged in trying to deceive the Court so as to be able to defraud the mother of her just and equitable entitlements. I asked the mother to carefully take me through her evidence that might persuade me that she was correct.
Despite her valiant and painstaking efforts, the mother was unable to persuade me that she was right about this. Indeed, she maintained one factual assertion that the father had taken and used $74,000 from an account in September last year, contrary to signing authority held by the bank, and that the mother had caused the bank to accept its mistake and put its own funds of $74,000 back into the account.
The father disputed that. I directed him to file an affidavit the next day deposing to the circumstances he said occurred and attaching documentary evidence supporting that. He did do that. His evidence, including the documentary evidence, convinced me that the mother was simply wrong about this matter. She was correctly stating that the father had managed to transfer $74,000 from an account unilaterally when the bank had a “two to sign” authority provided by the former couple. The father acknowledged that. However, the evidence established that when the bank was appraised of its error, they simply reversed the transfer and the $74,000 the father had transferred into another account was transferred back into the account from which it had originally been transferred. It has apparently been frozen in that account ever since. That is the account that the father wants inserted in paragraph (5) of last years’ order.
I am satisfied that the father’s position on this issue is the correct one. I went back and read through the material that was filed and relied upon before last years’ hearing and satisfied myself that somehow the number that was in the order sought by the mother, which was the number I inserted in the order I made, was incorrect and that the number of the relevant account is the one the father now seeks to have inserted, namely #96. I reject the mother’s assertions that the father is lying and seeking to deceive by the order he now seeks. I am satisfied that she is completely misguided about that. I will make the order the father seeks, but leave in place the same conditions as were otherwise included in paragraphs (5) and (6) of last December’s Orders. I will permit him to show a sealed copy of the Orders to the Commonwealth Bank officers he deals with so that the account may be used in accordance with the Court’s orders.
The father also sought an order that subpoenas addressed to the following third parties be set aside:
(a)The Trustee for Herbert Family Trust ABN …;
(b)E Pty Ltd – ABN ... and/or Mr Herbert;
(c)The Trustee for M Trust and the Trustee for Herbert Family Trust – ABN ...;
(d)Herbert Group Superannuation Fund – ABN ... and/or Mr Herbert.
In supporting affidavit evidence, the father says that he was served with the subpoenas on 1 August 2018 and says that the documents sought in those are “identical”. He also says “substantial disclosure has already been made” and he sets out a list of the documents he has already disclosed. It is two and a half pages long and includes Tax Returns and Notices of Assessment for the three financial years from 2015 to 2017 for the business. It includes credit card statements and bank account statements for numerous accounts. It includes the Tax Return and financial statements for the Herbert Group Super Fund for the 2017 financial year and many other documents.
Certainly a reading of the first three subpoenas listed above shows that the documents sought to be produced by each entity listed are totally identical. The documents sought to be produced from the “possession, custody or control” of each entity are as follows:
1. a copy of this subpoena
2.Financial Statements and income tax returns from 2009 to 2018 for the entities involved in the business for each financial year
3.All Items listed below from 2009 to 2018
4.Asset Register for each year
5.Payroll report for each year showing gross wages and superannuation for each employee.
6.Changes to the pattern of distribution of funds and taxable income during the past nine year period.
7.identify funds that have been paid to other parties (e.g.: superannuation funds, companies, entitles, trusts)
8.Identify any other transactions of a peculiar nature.
9.all companies, superfunds and trusts associated with this entity.
10.Bank statements for all business and personal bank accounts
11.Management accounts (profit & loss) and balance sheets
12.Accounts payable and receivable ledges
13.Loan ledgers; and
14.full general ledger from accounting software as at the last day of every calender month from 2009 to 2018.
15.[E Pty Ltd] trust deed and any other trust deeds associated with this entity
16.Work in progress
17.Details of the sale of the business from the [D] partnership to [E Pty Ltd].
(Errors as per original)
It is strange indeed that the mother has shown no discernment in respect of the documents sought from each entity. The father asserts in his affidavit that, as a matter of law, the entities are only required by the ATO to keep records for the preceding five years. I accept, as a general proposition, that is correct. If the entities have not retained copies, they cannot be produced under the subpoena. If they have, then they could be produced.
The father also asserts that the mother is “fishing” with these subpoenas, just hoping to find something of relevance. He asserts that the subpoenas are oppressive and that compliance would incur unnecessary expense and using the subpoenas against the entities is an abuse of process by the mother. I do not accept all of those submissions are necessarily correct or that, consequently, the mother should not be entitled to see the documents. They might assist her and any advisers she has to come to a conclusion about the matters she has concerns about, sooner rather than later.
Looking at the list of items 1 to 17 in the paragraph above, I immediately consider items number 6, 7, 8, 9, 16 and 17 to be not properly worded to secure production of any documents and I shall strike those out of the three subpoenas they are in.
To the extent that each third party named in the first three subpoenas is a separate entity for which financial statements and income tax returns were prepared, I am satisfied that those can and should be produced under the subpoenas for at least the past five financial years for which any such documents were prepared if they remain in the entities possession, custody or control. I make the same determination with respect to any document meeting the description “Asset Register” for the financial years 2014, 2015, 2016, 2017 and 2018. If there is a document that meets the description “Payroll report” for each of those years, I also require any such document to be produced.
Of course, bank statements for any bank accounts held by those entities for the same five years should also be produced, in my determination.
I consider “Management accounts (profit and loss) and balance sheets” to be the same as “Financial Statements” already included.
If each entity possesses a document or documents meeting the description “accounts payable and receivable ledgers” for the financial years 2014 – 2018, I require those to be produced. If each entity possesses a document or documents meeting the description “loan ledgers” for any of those same financial years, I require those to be produced. Similarly, if each entity possesses a document or documents meeting the description “full general ledger from accounting software” for each month in those same five financial years, I require those to be produced, even if in electronic format.

If the entity is a trust, and it has a trust deed (as it should), I require the trust deed to be produced.
Should the entity incur any costs in producing any of these documents to the Court, apart from in respect of the father’s time in undertaking the task of getting the documents together, then such costs should be calculated and an application for those costs to be paid by the mother may be made. It will be considered by the court, if it is, though not necessarily granted.
As for the subpoena directed to the Herbert Group Superannuation Fund, the list of documents sought to be produced is also lengthy. It is as follows:
1. a copy of this subpoena
2.Financial Statements and income tax returns from 2009 to 2018 for the entities, shares involved in the superfund for each financial year.
3.All Items listed below from 2009 to 2018
4.Asset Register for each year
5.Superannuation fund Trust Deed
6.Copies of permanent records of members
7.Corporate Trustee of the Superannuation Fund
8.Any other records (consent to act)
9.bank statements from 2009 to 2018
10.Changes to the pattern of distribution of funds and taxable income during the past nine year period.
11.All life insurance policies attached to the fund
12.identify funds that have been paid to other parties (e.g.: superannuation funds, companies, entities, trusts)
13.Identify any other transactions of peculiar nature.
14.all companies, superfunds and trusts associated with this entity.
15.trial balances
16.detailed general ledger printouts
17.trustee minutes
18.invoices for all expenditure
19.Divident slips
20.confiramtion of share holdings
21.income tax returns
22.management accounts (profit & loss) and balance sheets
23.Accounts payable and receivable ledges
24.Loan ledgers; and
25.full general ledger from account software as at the last day of every calender month from 2009 to 2018.
26.[Herbert] Group Superannuation Fund and any other trust deeds associated with this entity
27.Work in progress
28.Consent to act minutes and consent to act as trustees for the superannuation fund or as directors fo the corporate trustee ( where applicable) One for each of the trustees/directors and it must be signed
29.Ethical clearance letter from pervious auditors
30.Signed financials (from pervious accounting firm)
(Errors as per original)
I consider many of the items listed above to reflect the mother’s lack of understanding about the workings and administration of a self-managed superannuation fund. I will require the fund, through its trustee (I presume the father is a trustee or a director of the fund’s corporate trustee if there is one) to produce the following documents, to the extent that they have not already been disclosed to the mother:
(a)Financial Statements (including profit and loss statement and balance sheet) and income tax returns for the financial years 2014, 2015, 2016 and 2017 and 2018 (when completed if not already);
(b)       The trust deed for the fund;
(c)Bank statements for any bank accounts held by the fund for the financial years 2014 to current date;
(d)       A list of the fund’s current assets and their value;
(e)       Documents relating to any life insurance policies attached to the fund;
(f)Any minutes of trustee’s resolutions or determinations made since 1 July 2014 still in the possession of the trustee of the fund; and
(g)       Any auditor’s report for any of the financial years 2014 to 2018.
The father conceded during the contravention hearing that he had failed to disclose documents to the mother that he was required to. He said that he had done that on a “tit for tat” basis and because he did not think the mother had the capacity to understand them. I found him to have contravened an order to provide specific, ongoing disclosure.
I will not impose any particular consequence on him this time for the contravention, but the father, and his solicitor, should not underestimate the Court’s expectation that disclosure obligations as set out in the Rules are to be met fully and frankly and that specific disclosure orders made by the Court are to be complied with. The Court is entitled to act robustly when it is satisfied that one or more of the parties has failed to make full disclosure of his or her financial affairs or has deliberately not disclosed significantly relevant financial matters. Authority supports the principle that once it has been established that there has been a deliberate non-disclosure, the Court should not be unduly cautious about making findings in favour of the innocent party.[1] The father would do well to keep that in mind as the trial approaches.
1.See, for example, Weir and Weir (1993) FLC 92-338 at 79,593 where the Full Court said “[t]o do otherwise might be thought to provide a charter for fraud in proceedings of this nature [property adjustment proceedings]”.

Some matters raised by the Mother

The mother also sought an order that the Court “subpoena the Australian Taxation Office for all records that [the father] won’t and hasn’t disclose to gain financial records (sic)”. The Court cannot do that. There are legislative provisions[2] that prevent the tax office from complying with a subpoena to produce any tax payer’s tax information in any non-tax law dispute.
[2].Taxation Administration Act 1953 (Cth) Schedule 1 Division 355
The mother also sought an order that the balance of the money held by the independent firm of solicitors for the parties in that firm’s trust account be paid to the mother by way of spousal maintenance. At 30 June 2018, there was $104,478.06 held, but the mother’s application specifically sought the sum of $101,178.06, so I presume that is all that is left in that firm’s trust account.
Having determined to take this matter into my docket and to manage it towards an expedited hearing of the competing final applications, I am not inclined to make the order the mother seeks at this point in time. It could be that the property of the parties or either of them is limited to the family trust’s interest in the business that the father continues to operate, the parties’ interests in their self-managed superannuation fund, the remaining cash and not much more. The parenting orders I am going to make on an interim basis will change the parties’ lives considerably, including in respect of their financial circumstances, their availability to work, and, potentially, where they live (given they are both living in rental accommodation at the moment). Just how much change there will be is yet to be determined. I am concerned about the mother’s capacity to support herself, but consider that if I was to make orders that she have all of the remaining money in trust that she will simply spend it very quickly and that it would not maintain her for very long at all. Getting the matter resolved on a final basis is now a priority, so that the parties can be put in a position where they can at least try to get on with their lives. In the meantime, I will dismiss the mother’s application for an order that sees her receive all of the remaining money in trust on an interim basis. I may well be persuaded to entertain a further application by her at some stage in the future to be paid a much smaller periodic amount of spousal maintenance, either by the father from any surplus income he may have, or from the money held in trust, if her circumstances prove necessitous and the trial cannot be heard as quickly as I envisage.
The mother seeks some other orders in paragraphs (5), (9), (12) and (13) of the Amended Application in a Case filed on 13 August 2018, that I consider are also misguided and without merit. I will not make those orders.
She seeks one other interim order in respect of the balance of the money that was paid into the trust account of one of the firms of solicitors who previously acted for her pursuant to my interim litigation costs funding order of December last year. She seeks an order that she be paid that money to be used for litigation funding.
The evidence she gave about the matter in an affidavit filed in support of the said Amended Application in a Case is woefully insufficient to support any such order. From the bar table, the mother told the Court that there was about $20,000 left in the particular firm’s trust account. Still, that is not good enough to support the Court making the order the mother seeks.
The Court would need to know the precise balance of the funds still held in that firm’s trust account for the mother and whether the mother still owes that firm any costs that have still to be deducted from the balance held. The Court would also need to know that there is another firm that will be representing the mother if she has access to funds for her litigation costs funding.
The mother asked the Court to recommend a firm of solicitors to her. With respect to the mother, it would not be appropriate for the Court to do that. Suffice to say that the mother should contact the Queensland Law Society seeking a referral to an accredited specialist family lawyer, or she should contact one of the many community legal centres seeking such a referral. As I said during the hearing, I consider that if the mother were to have competent legal representation, the financial matters, at least, might have a reasonable prospect of being able to be resolved at a mediation. Of course, that is a matter now for the parties to consider and arrange themselves if they can.
I make the orders set out at the commencement of these written reasons.

I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 7 September 2018.

Associate:

Date: 7 September 2018

[2018] FamCA 690

7 September 2018

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Family Law

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