Janzen & Naish
[2024] FedCFamC2F 309
•14 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Janzen & Naish [2024] FedCFamC2F 309
File number(s): CAC 119 of 2021 Judgment of: JUDGE W J NEVILLE Date of judgment: 14 March 2024 Catchwords: FAMILY LAW – PARENTING – the sole child of the relationship has a good and close relationship with both parents – the current parenting arrangements have been for an equal time and shared care arrangement for some time – the almost nine year old child of the relationship advised the Family Consultant and the Independent Children’s Lawyer that he liked and would prefer to maintain the current arrangement – the Mother was a diffident and uncertain witness who seemed not to know or understand what it was she was seeking in either aspect of the trial and in many respects it was in her best interests rather than her son’s that she was seeking a reduction in time with the Father – small adjustment in the spend time with arrangements – there were difficulties with the evidence of both parties.
FAMILY LAW – PROPERTY – there were few factual matters in dispute in a relationship of modest years including that the Husband’s contributions especially at the start of the 8 year relationship were very significantly greater than the Wife – Husband on invalidity pension – issues regarding how to treat pension – ultimately perhaps the biggest issue in the property dispute was the Wife’s (and her highly experienced lawyers) failure to disclose a special costs arrangement whereby the Wife’s employer confirmed that he would pay all of her legal costs provided she moved to the lawyers who represented her at trial – only during the Wife’s re-examination did her Counsel put to the Wife and show her the special costs arrangement, being the first time this had been disclosed – the Wife had affirmed and filed two Financial Statements and four Costs Notices that never disclosed the special costs arrangement with her employer – costs awarded against the Wife’s lawyers in light of the persistent failure to disclose noting especially Murphy J’s emphasis in Penfold v Penfold on ensuring the “integrity of the proceedings” – Applicant Wife’s lawyers referred to relevant law society.
Legislation: Family Law Act 1975 (Cth), Part VII, s. 65DAA, 75(2), 79, 117(2a)(c)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Part 6.1, Part 12.5
Cases cited: AJO & GRO (2005) 33 Fam LR 134
AMS v AIF (1999) 199 CLR 160
Bevan v Bevan (2013) 279 FLR 1; (2013) 49 Fam LR 387
Black & Kellner (1992) 15 Fam LR 343
Bondelmonte v Bondelmonte (2017) 259 CLR 662
Cassidy v Murray (1995) 19 Fam LR 492
Chang v Su (2002) 170 FLR 244; (2002) 29 Fam LR 406
Chapman v Chapman (2015) 51 Fam LR 176
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Collu & Rinaldo [2010] FamCAFC 53
Dickons v Dickons (2014) 50 Fam LR 244
Fields v Smith (2015) FLC 93-638; (2016) 53 Fam LR 1
Fox v Percy (2003) 214 CLR 118
Godfrey & Sanders (2007) 208 FLR 287
Gollings v Scott (2007) 37 Fam LR 440
Hall v Hall (2016) 257 CLR 490
In the Marriage of Kress (1976) 13 ALR 309
In the Marriage of R (2002) 169 FLR 243; 29 Fam LR 230
Knight v FP Special Assets Ltd (1992) 174 CLR 178
M v S (2008) 37 Fam LR 32
Mazorski v Albright (2007) 37 Fam LR 518
McCall v Clark (2009) 41 Fam LR 483
Moose & Moose (2008) FLC 93-375
NHC & RCH (2004) FLC 93-204; (2004) 32 Fam LR 518
Partington v Cade (No.2) (2009) 42 Fam LR 401
Penfold v Penfold (1980) 144 CLR 311
Sigley v Evor (2011) 44 Fam LR 439
Stanford v Stanford (2012) 247 CLR 108
Stephens v Stephens (2011) 44 Fam LR 117
Surridge & Surridge (2017) FLC 93-757
Trevi & Trevi (2018) FLC 93-858
Vontek & Vontek [2017] FamCAFC 28
Weir & Weir (1992) 16 Fam LR 154
Division: Division 2 Family Law Number of paragraphs: 253 Date of last submission/s: 7 March 2024 Date of hearing: 1 – 3 November 2023 Place: City B Counsel for the Applicant Ms S. Abdelraheem Solicitor for the Applicant C Law Firm Counsel for the Respondent Mr G. Howard Solicitor for the Respondent Robinson + McGuinness Family Law Independent Children’s Lawyer Legal Aid
Table of Corrections 16 May 2024 Exhibit RH1 has been substituted for the balance sheet set out at paragraph [202] 16 May 2024 In paragraph [213] the figure ‘65%’ has been replaced with ‘63%’ and the figure ‘35%’ has been replaced with ‘37%’ ORDERS
CAC 119 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS JANZEN
Applicant
AND: MR NAISH
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
14 MARCH 2024
THE COURT ORDERS THAT:
1.Within 14 days, the Independent Children’s Lawyer is requested to provide Chambers with a Minute of Orders, agreed between the parties, which reflects the Court’s findings regarding “time with” arrangements between each of the parents and X (born in 2015) (“the child”), parental responsibility, future mediation of any issues, and all agreed ancillary parenting Orders for the Court to make in Chambers on a final basis.
2.Within 21 days (or earlier) of the date of these Orders, the Husband is to notify the Wife which property he will sell in order to satisfy the amount payable to her from the net proceeds of sale of that elected property.
3.Within 30 days of the date of these Orders, the parties are to provide a consent Minute that reflects the Court’s findings and the procedural course regarding (a) the sale of one of the Husband’s properties (and the mechanics of the sale), and (b) the dollar amount payable to the Wife from the net proceeds of sale in accordance with the “just and equitable” percentages determined by the Court.
4.Within 7 days, a copy of the Costs Agreement between the Wife’s lawyers and the Wife’s special benefactor, which was shown to the Wife in her re-examination, is to be provided to the Husband’s lawyers and to the Court.
5.Within 45 days, the Wife’s lawyers are to pay 70% of the Husband’s costs, either as agreed or taxed.
AND IT IS NOTED THAT the Father has paid legal costs in the order of approximately $180,000; 70% of that sum is $126,000. If the lawyers agree on that sum so as to avoid a taxation, a more specific Order may be made in Chambers.
AND THE COURT NOTES THAT:
A.It is requested that a Registrar of the Federal Circuit and Family Court of Australia forward this judgment to the relevant law society in relation to the conduct of the Mother’s solicitors, specifically in relation to the issue of non-disclosure.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Amended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 16th May 2024
JUDGE W J NEVILLE
Introduction & overview
This was an unusual, and unsurprisingly for the reasons that follow, a rather needless parenting and property case. I make these apparently harsh comments, which are not intended to be so, because, on the one hand, the Applicant Mother was a very diffident, quite unconfident witness who often seemed completely unclear about what it was she was seeking (regarding both parenting and property) and why – although she was adamant that she wanted the only child of the relationship, X (born in 2015), to spend rather less time with his Father than he does at present. When examined more closely, it was really a case where it was more likely to be in the Mother’s best interests, more so than in X’s, for a significant reduction in the child’s time with the Father. To state the obvious, this is not a relevant consideration under Part VII of the Family Law Act 1975 (Cth) (“the Act”).
The Mother’s case generally was further complicated by the very late-breaking news (only during the trial, and only in re-examination) that her employer was, very generously, funding her legal fees. Quite the bonus for the Mother, who otherwise was not really able to explain why she was the beneficiary of such largesse, or why this important fact had not been disclosed earlier – as it should have been. In part, this might also explain why there was invariably a “team” of lawyers from the Mother’s employer. “In for a penny, in for a pound” or some such thing, springs to mind. Certainly, the Mother’s very fortunate situation regarding funding and payment of her “costs” placed her at a very significant advantage over the Father, including this beneficial arrangement not having been disclosed earlier as it should have been. One might have thought that someone from the posse of lawyers at her disposal would have thought to disclose this ongoing benefaction. Why at least one of the many lawyers involved did not make such basic and important disclosure, one of the most fundamental and perennial issues raised by Courts in this jurisdiction, remains a troubling mystery. Maybe some formal education on foundational matters, such as disclosure, might be in order, or even a personal costs Order. In any event, everyone should be so fortunate to have such benevolence showered upon them, especially in family law litigation. Of course, such matters are discussed at a little length later in these reasons, including the no less curious if not remarkable way in which this “disclosure” to the Court (and to the Respondent Husband) finally came out into the open, very late in the day – literally.
The Father has his issues also. I am not being indelicate in saying that the Father presented also as a diffident person, and who had a range of odd mannerisms and behaviours, some of which were canvassed in the evidence. He appeared, at times, to be somewhat dogmatic, but he also reasonably readily made concessions. It is not disputed that, like the Mother, he has a good and close relationship with his son.
Even against this very summary background and these abridged observations, it will be unsurprising to read that the Court was assisted more on the parenting side of things by the Report and oral evidence of the Family Consultant (Ms E; Report dated 27th April 2023, which became Exhibit E1), and the submissions in particular of the experienced Independent Children’s Lawyer (“ICL”), Ms Cruise, even if I did not (and do not) agree with all of them.
Moreover, both parents, in my view plainly, have a range of vulnerabilities, including in their cognitive abilities, and certainly in their co-parenting relationship, the latter being especially unfortunate for X’s sake and that of his parents. Fortunately, in almost all respects, X seems to have survived relatively intact notwithstanding these parental difficulties. As noted below, in my view, there has to be some slight “adjustment”, in a sense, to compensate for the respective parental vulnerabilities. Moreover, of some significance, X stated to the Family Consultant and to the ICL, that he is content and likes the current equal time/shared care arrangement. The ICL thinks that he may have been simply trying to appease both of his parents with such comments. But he made them on more than one occasion. There was no suggestion that he was coerced or pressured in any way in making them or in formulating his views.
A few other preliminary observations are apposite.
First, no expense or time was spared in the formal construction of the case, albeit that the parameters of it were really quite narrow. The Court was generously provided with a combined total of 537 paragraphs, being the total of paragraphs of just the Affidavits of the parents. For all of that, there are basically three options on the parenting side (comments on the property follow soon enough). A simple and remarkable example of the almost mind-numbing detail in the Mother’s trial Affidavit, filed 13th October 2023, was the 40 paragraphs (pars.188 – 228) devoted solely to the child’s Facetime calls! “Alarming” is not the word. What these calls reveal, among other things, however, is an astonishing level of detail, which (it was not disputed) came from a close monitoring of them by either the Mother, or even by her partner, Mr D, who kept records of his monitoring. It seems that only during Mr D’s cross examination did he acknowledge that such monitoring, not to mention record-keeping, literally invaded the privacy of the calls between Father and son. In my view, it was an astonishing intrusion, but which, neither the Mother or her lawyers, saw any “down-side” about either doing it and even less, recording it in an Affidavit for the Court to consider. Insight on all sides – lawyer and client – was patently lacking.
While on Mr D, he confirmed in his evidence that he is not a full-time “live-in” partner of the Mother, and only stays over at her residence 2 or 3 nights each week. No financial matters were provided by Mr D, such as whether he contributes anything to the Mother’s household (I assume that, to some degree he assists in some, albeit undeclared, way such as takeaway meals, some shopping – groceries and the like), or similarly what assets and financial resources he has that might be available to assist the Mother. Accepting his evidence of only a regular 2 or 3 nights at the Mother’s residence, the complete lack of any financial evidence from him left a querulous hole (and obviously not the only one) in the Mother’s case. Again, for completeness, one might have reasonably expected that one of the Mother’s cluster of lawyers and others from her enforced legal advisers, would have ensured this area was properly covered in the material before the Court. Plainly, again, like the Mother’s plentiful but secret, third-party payment costs agreement, nothing was disclosed or addressed in relation to financial matters or contributions from Mr D. Presumably some space for them could have been found in the 300 plus paragraphs of the Wife’s trial Affidavit. Alas not.
For completeness, I should record that the first 274 paragraphs of the Mother’s trial Affidavit related solely to parenting; this left only 63 paragraphs for property matters.
For not a little time, the parenting arrangement has been a shared care/equal time situation. Option one is for this to continue. Option two is the Mother’s rather extreme proposal of significantly reducing the child’s time with the Father to each alternate weekend (although sort of rounded out in written submissions to 4 nights per fortnight).[1] Such a radical change in all of the circumstances, which was not recommended by Ms E, or the ICL, perhaps was more in hope than based on (or in) reality of what is in X’s best interests. Option three, perhaps is a small or modest reduction in X’s time with his Father but which does not realistically impact upon their acknowledged good relationship. This would give the Mother a modest degree of “respite” (my term) from the not insignificant strains on both sides of the parenting divide, but which would not impact (as already stated) upon the Father/son relationship. Regrettably, in my view, X’s best interests were not always, according to the Mother’s less than convincing evidence, front of mind. From her regularly vague comments and responses, it often seemed that the Mother (a) did not have a very clear view about her own views about pretty much everything, and (b) was very much “led” by whatever her lawyers ‘advised” her was best in both aspects of the matter. Further, she seemed regularly to equate her best interests to those of X – hence the emphasis upon the need for some reduction in the child’s time with the Father because she was having difficulty coping in dealing with the Father, primarily at changeover. Such logistical issues (i.e. changeover) are usually readily solved, for example, by it occurring at school, a usually neutral location. Albeit it was a little time ago, I should note that the Father was considered by Dr F, at times, not to have X’s best interests at the forefront of his mind too.[2]
[1] Throughout these reasons, any reference to “alternate weekend” time as proposed by the Mother should be understood this way, namely 4 nights per fortnight.
[2] See Dr F’s Report, dated 6th December 2021, Exhibit F1. This Report was not prepared for the current litigation but rather for the Father’s former employer.
In these respects, I note that in the ICL’s Case Outline, at p.3, after noting that X has “positive and meaningful relationships with each parent”, which are likely to be “beneficial to [X]”, she stated: “The most significant risk issue for [X] is the conflict between his parents and his ongoing exposure to that conflict.” Accepting this view of the “principal issue” on the parenting side of things, which I do (there are other matters, to be sure, considered below), one might reasonably ask why so little attention seems to have been paid to working on very basic matters to reduce the conflict between the adults. It is alarming that, on the evidence provided to the Court, almost exclusive focus has been on the litigation rather than on addressing resolution of the few genuine issues between the parties. Logically and otherwise, a simple reduction of the child’s time with the Father (as sought by the Mother, and to some degree supported by the ICL, but less so by the Family Consultant) is hardly likely to reduce the risk of conflict between the parties! Indeed, there is some prospect that it could actually exacerbate the already frayed contest. A range of self-evident, ameliorating suggestions to reduce conflict are set out later in these reasons. None of them appeared in evidence or submissions. Why the Court has to keep finding such basic solutions in family law litigation remains a regularly curious and unfortunate feature of such enterprises. Perhaps it is almost as simple as a strategy of (obviously a highly generalised comment): “we will pay the lawyers to fight, maybe the other side will become exhausted (or run out of money – although this was never going to be the case for the Mother here), and we can leave it to the Court to suggest how the matter can resolve.”
Moreover, as long ago as late April 2021, the parties reached interim Consent Orders, which were quite detailed. Having reached such detailed agreement so long ago, why more effort (perhaps more concerted effort) was not invested in the matter to reach resolution without such protracted litigation also remains something of a mystery. Some alternative suggestions why the focus was on litigation rather than resolution are made later in these reasons.
In relation to property, I simply note that it was a relationship of approximately only 8 years. The Wife remains in full-time employment. She contends that she earns approximately $85,000 per annum. In her Financial Statement, filed in late 2023, her weekly income is stated to be $1,743. It is simply noted that this calculates to just over $90,000 per year. She is aged 51 years, and therefore is likely to be able to work perhaps (if she wishes) for perhaps 10 – 15 more years, in the course of which she will continue to accumulate superannuation. On the other hand, the Husband receives an invalidity pension, which is his only source of income. His invalidity, which came about from workplace injury, indicates that he has been assessed as being unable to be in paid employment again.
Further to these matters, it is not really contested that (a) the Wife and her new partner conveniently lived in the former marital residence “rent free” for quite some time while the Husband paid the Mortgage (some might regard this as another, albeit a rather, different form of largesse from which the Wife benefitted – not to mention her new partner – presumably a nice relaxed start to their relationship), and (b) the Husband’s invalidity pension the Wife sought to have included in the property pool at its large “family law value”, as opposed to its value to him “in the hand”. This contention by the Wife seemed a rather contrived, adventitious claim, as it seems to me, again much more likely to have been “promoted” by her industrious throng of legal advisors rather than by the Wife herself in view of her obvious lack of understanding of much of what was going on in the trial and even what Orders, in any respect, she was actually seeking.
One thing that was largely (and mercifully) not disputed was that the Husband had, by far, the larger of the initial contributions, which he brought to the relationship based upon a number of properties he owned.
One final matter to note here. Alas, it was clearly another “lawyer-led” claim, this time in relation to “add-backs.” Subject to what is said later in these reasons, the Respondent Husband’s submissions point out the many obvious flaws in the arguments, in the important context and circumstances of this matter, regarding a quite wide range of claimed “add-backs”, not least being that many of those claimed by the Wife do not fit into any of the limited categories recognised by authority. Again subject to what is said later in these reasons, and as a number of more recent authorities highlight (accepting that “add-backs” are a regular issue of contest, including for the Full Court where one can find a reasonably wide range of opinions), it is probably better (and maybe safer – but one can never know) to treat such matters, for example, under s.75(2)(o) to the degree that such matters may, as a matter of justice and equity, be claimed.
In these respects, as a general proposition, I think it is safe to opine that most judges take the respective, final percentage division as sought by parties in property proceedings as the “best possible” outcome. Some might even call the original Orders sought in relation to property as something of an “opening gambit”, or even akin to an “ambit claim”, prior to the actual details being worked out under closer scrutiny. Unsurprisingly, just as there was a wide “range” in the parenting matter, so too the percentage division of property sought by the parties here was also “wide”. This is in circumstances where, with quite some candour and understatement, Counsel for the Wife said in written submissions about her client (at par.36):
The Applicant's cross-examination evidence showed a person with an unsophisticated and rudimentary understanding of financial matters. Her evidence was given in a cooperative and candid manner despite her naivety about certain matters.
The reality was (and doubtless remains) simply that the Wife and Mother followed, with little question and often even less understanding, what her lawyers advised. Such comments are not criticisms but simply statements of fact. Indeed, as explained and highlighted later in these reasons, the Mother’s/Wife’s evidence was somewhat akin to a literary conceit, where descriptions apply, such as “a far-fetched comparison or elaborate figure of speech”, or “a fanciful notion; a fancy; a whim; the faculty of imagination.”[3] In making such comments, I am not, and should not be taken to be, hyper-critical of the Mother. She is who she is, with the naivety and other matters her Counsel described. I am simply trying to highlight the significant gulf between the Mother’s comprehension about all aspects of her case, compared to the matters argued on her behalf, which her lawyers, up to a point, are reasonably entitled to prosecute. Further still, such a gulf between what the Mother comprehended and what she actually sought in legal terms (in the face of realities which often-times were quite different) did, in fact, make the Court’s task much harder than it should have been. It also follows from my assessment of the parties’ evidence (again noting that the Father’s evidence was not without difficulty), on both parenting and property issues, the Father’s evidence and case argued in reliance upon it was both more convincing and regularly much closer to the “mark” (or in others terms, more within the “range”) as to what is in X’s best interests, and what is just and equitable between the parties regarding property distribution.
[3] These definitions are taken from the Shorter Oxford English Dictionary, Vol.1, p.474.
Applicant’s Orders sought
The Applicant’s Orders sought were contained in her Further Amended Application for Final Orders filed 13th October 2023. They were as follows, noting that amended aspects of the Orders including underlined and ‘struck-through’ text has been removed (emphasis in original; footnotes omitted):
Parental responsibility
1.That the Mother have sole parental responsibility for the child, [X], born [in] 2015 ([X]).
School Term
2.That [X] live with the Mother and spend time with the Father each second week from after school (or 5.00pm in the event that [X] does not attend school that day) on Thursday until before school (or 9.00am in the event that [X] does not attend school that day) the following Monday.
School Holidays
3.That Order 2 be suspended during school holiday periods, and [X] spend time with the parties for half of each school holiday period as follows:
3.1 With the Father, for the first half of all Term 1, 2 and 3 school holiday periods commencing in 2023 and each alternate year thereafter and the second half of all Term 1, 2 and 3 school holiday periods commencing in 2024 and each alternate year thereafter;
3.2 With the Mother, for the second half of all Term 1, 2 and 3 school holiday periods commencing in 2023 and each alternate year thereafter and the first half of all Term 1, 2 and 3 school holiday periods commencing in 2024 and each alternate year thereafter;
3.3 During the Term 4 Christmas school holiday period in 2023 and in each alternate year thereafter:
3.3.1With his Mother for the first, second and fifth weeks of the holiday period;
3.3.2With his Father for the third, fourth and sixth weeks of the holiday period;
3.4 During the Term 4 Christmas school holiday period in 2024 and each alternate year thereafter:
3.4.1With his Father for the first, second and fifth weeks of the holiday period;
3.4.2With his Mother for the third fourth and sixth weeks of the holiday period;
3.5 At such further and other times as may be mutually agreed between the parents in writing.
4.That for the purposes of these orders, school holidays be defined as follows:
4.1To commence after school (or 5:00pm in the event that [X] does not attend school that day)
aton the Friday that is or first follows the last day of the school term;4.2 To conclude at 5:00pm on the last Friday before the first day of the following school term;
4.3 The midpoint, at 5:00pm on the middle Friday (if the holiday period has an even number of weeks) or 5:00pm on the middle Tuesday (if the holiday period has an odd number of weeks).
Special Days
5.That notwithstanding anything to the contrary in these orders, and unless otherwise agreed in writing between the parents, [X] spend time with the parties as follows:
5.1With the parent he does not wake up with on his birthday, from the conclusion of school (or 3:00pm) until 6:00pm if the birthday falls on a school day, and if not a school day, from 2:00pm until 6:00pm;
5.2With his Mother from after school [each year] (or 10:00am if [X] does not attend school that day) until before school [the following day] (or 10:00am if [X] does not attend school that day) in each year (for the Mother’s birthday);
5.3With his Mother from after school [each year] (or 10:00am if [X] does not attend school that day) until before school [the following day] (or 10:00am if [X] does not attend school that day) in each year (for [Mr H]’s birthday);
5.4With his Mother from after school [each year] (or 10:00am if [X] does not attend school that day) until before school [the following day] (or 10:00am if [X] does not attend school that day) in each year (for [J]’s birthday);
5.5With his Father from after school [each year] (or 10:00am if [X] does not attend school that day) until before school [the following day] (or 10:00am if [X] does not attend school that day) in each year (for the Father’s birthday);
5.6With the Mother from 5:00pm on the day before Mother's Day until 5:00pm on Mother's Day;
5.7.With the Father from 5:00pm on the day before Father's Day until 5:00pm on Father's Day;
5.8At Easter:
5.8.1In 2023 and each alternate year thereafter, with his Father from after school on the Thursday before Good Friday (or 5:00pm if [X] does not attend school that day) until before school on the Tuesday following Easter Monday (or 9:00am if [X] does not attend school that day);
5.8.2In 2024 and each alternate year thereafter, with his Mother from after school on the Thursday before Good Friday (or 5:00pm if [X] does not attend school that day) until before school on the Tuesday following Easter Monday (or 9:00am if [X] does not attend school that day).
Changeovers
6.That, unless otherwise agreed in writing between the parties;
6.1Changeovers occur at [X]’s school on days that [X] attends there;
6.2On days that [X] is not at school, changeover occur at McDonald’s [Suburb M];
6.3The parents may arrange for another adult person to attend changeover on their behalf;
6.4No more than two people, including one parent, may attend changeover.
FaceTime/Telephone Communication
7.That the Mother facilitate [X] speaking to his Father via FaceTime or similar each Tuesday (provided [X] has not otherwise seen his Father that day) for a period of no more than 15 minutes, with the Mother to initiate the call between 7:00pm and 7:30pm.
8.That the Father facilitate [X] speaking to the Mother via FaceTime or similar each Sunday that [X] is in his care (provided [X] has not otherwise seen his Mother that day) for a period of no more than 15 minutes, with the Father to initiate the call between 7:00pm and 7:30pm.
9.That the parent with whom [X] is living shall facilitate [X] having FaceTime or similar communication with the parent with whom he is not living on Easter Sunday for a period of no more than 15 minutes with the resident parent to initiate the call between 10:00am and 10:30am.
10.That the parent with whom [X] is living shall facilitate [X] having FaceTime or similar communication with the parent with whom he is not living on Christmas Day for a period of no more than 15 minutes with the resident parent to initiate the call between 10:00am and 10:30am.
11.That each parent do all things necessary to ensure that [X] has privacy during his communication with his parents pursuant to Orders 7 and 10 above.
Parents' Communication
12.That the parents shall communicate with each other about matters relating to [X] in writing by way of SMS or email, except in the case of an emergency.
Extracurricular activities
13.That the Father be, and is hereby, restrained by injunction from attending any of [X]’s sporting, extracurricular or social events during [X]’s time with his Mother, except for grand finals or awards nights, without the Mother's written consent.
14.That the Father take all necessary steps to ensure that his mother […] does not attend any of [X]’s sporting, extracurricular or social events during [X]’s time with his Mother, without the Mother's written consent.
15.That each party:
16.1Be restrained by injunction from enrolling [X] in any extracurricular activity that occurs during the time that [X] spends with the other parent. without the written consent of that parent;
16.2Be at liberty to enrol the children in any extracurricular activity that falls only during the time [X] spends with them, without needing to obtain the prior consent of the other parent.
Schooling
16.That [X] remain enrolled at [Suburb N School] and the Father be restrained by injunction from enrolling [X] into any other school without the Mother's written consent.
Restraints
17.That each parent be restrained by injunction from denigrating the other parent and/or their family members and friends to [X] or in the presence of, and shall do all things reasonably necessary to remove the child [X] from any environment in which the other parent and/or their friends or family are being denigrated in the presence of [X].
18.That each parent be restrained by injunction from passing information or messages through [X] to the other parent.
19.That each parent be restrained by injunction from discussing these proceedings and/or their family law dispute with [X].
20.That, for twenty-four (24) hours immediately prior to the commencement of any time spent with [X] and during all time spent, the Father be and is hereby restrained by injunction from consuming or otherwise being under the influence of alcohol.
Information Sharing
21.That both parents authorise by these Orders any school attended by the child [X], to provide to either parent, upon request, any reports, information or photos relating to the child [X], at the requesting parent's cost.
22.That each parent shall notify the other forthwith of any serious illness or injury affecting [X], and each parent be at liberty to contact any medical professional or hospital treating X to obtain information.
23.That the parents authorise by these Orders any of [X]’s General Practitioner or treating medical and/or allied health practitioner/s to provide to either parent with any information or medical reports relating to [X] at that parent's cost (if any).
24.That, except as provided for in Order 14 above, both parents are at liberty to attend, and each shall ensure they do not prevent the other from attending, any school event relating to the [X]’s attendance at the relevant facility/institution, including parent teacher interviews, fetes, assemblies/award ceremonies, and concerts.
PROPERTY ORDERS
Sale of [Suburb P] Property
25.That the Respondent forthwith do all things necessary to affect the sale of the property contained in Certificate of Title [Suburb P] Section […] Block […] on Deposited Plan […] (Volume […] Folio […]) and known as [O Street, Suburb P] in [City B] (the [Suburb P] Property).
26.That, for the purpose of Order 26 herein, and unless otherwise agreed in writing between the parties:
27.1Within 7 days of these Orders, the Respondent do all things necessary to:
27.1.1Sign an agency agreement and do all things necessary to list the [Suburb P] Property for sale with [Mr Q] at [R Company, Suburb P] or such other agent agreed between the parties in writing (the Agent);
27.1.2Sign all documents necessary to engage with [Ms S] at [T Law Firm] or such other conveyancer agreed between the parties in writing (the Conveyancer), including but not limited to signing a Costs Agreement or similar documents and paying any required retainer deposit within 3 days of being requested to do so by the Conveyancer;
27.2The [Suburb P] Property be listed for sale by public auction with the Agent (the [Suburb P] Auction) within 42 days of the Respondent's compliance with Order 27.1 above;
27.3The listing price, sale price, terms of sale, timing and settlement terms shall be determined jointly by the parties and, in the absence of agreement, shall be set by the Agent;
27.4The reserve price for the [Suburb P] Auction be set at $1,200,000;
27.5The Respondent co-operate in every way with the agent in relation to the marketing of the [Suburb P] Property for sale including making the key readily available, allowing inspection of the [Suburb P] property at all times reasonably requested by the agent and ensuring that the former matrimonial home is clean, neat and in good order at the time of inspection by any prospective buyer;
27.6The Respondent do all such acts and things to ensure that the [Suburb P] Property is professionally cleaned and that the house is maintained in a neat and tidy condition including maintaining the lawns and the garden at his sole expense;
27.7The Respondent execute all documents requested by the Agent as auctioneers for the [Suburb P] Auction;
27.8The Respondent execute the contract for sale;
27.9If the [Suburb P] Property is not sold at the auction, within 21 days thereafter, the Respondent shall meet the market price and sell the [Suburb P] Property at the best price then obtainable;
27.10The Respondent is to instruct the Agent and the Conveyancer that the Applicant is to be informed of all matters concerning the sale as if she were a vendor.
27.That, upon the settlement of the sale of the [Suburb P] Property, the Respondent do all things necessary to cause the proceeds of sale of the [Suburb P] Property to be distributed as follows:
28.1 To pay all costs, commissions and expenses of the sale;
28.2 To pay the usual rates adjustments;
28.3To repay to [U Bank] the amount outstanding on loan number […00] in the names of [Ms Janzen] and [Mr Naish] (the [Suburb P] Loan) and any other amount required to discharge mortgage registration number […54] secured over the [Suburb P] Property;
28.4To divide the remaining balance (the [Suburb P] Property net sale proceeds) as follows:
28.4.1To pay to the Applicant such sum as is necessary to affect an equal division of the parties' net assets taking into account all other assets each party is retaining;
28.4.2 To pay the balance then remaining to the Respondent.
28.That, from the date of these Orders:
29.1The Respondent pay, and indemnify the Applicant against, all repayments for the [Suburb P] Loan, as and when they fall due;
29.2The Respondent pay, indemnify, and keep indemnified the Applicant against all rates, utility bills, insurance bills, costs of repairs, levies, land tax and all other outgoings with respect to the [Suburb P] Property;
29.3The parties be restrained by injunction from mortgaging or otherwise offering the [Suburb P] Property for security, unless otherwise agreed between the parties in writing.
[Suburb W] Property
29.From the date of these Orders:
30.1The Respondent pay, indemnify and keep indemnified the Applicant against all rates, utility bills, insurance bills, costs of repairs, levies, land tax and all other outgoings with respect to the property situated at and known as [V Street, Suburb W] in the [City B], being the whole of the property particularly described in Certificate of Title Volume […] Folio […] (the [Suburb W] Property);
30.2The Respondent have the sole right to occupy the [Suburb W] Property;
30.3The Respondent pay all outstanding rates with respect to the [Suburb W] Property and indemnify the Applicant in relation to same;
30.4The Respondent be restrained by injunction from mortgaging or otherwise offering the [Suburb W] Property for security, unless otherwise agreed between the parties in writing.
30.That within 60 days of the date of Orders, and contemporaneously:
31.1The Respondent do all things necessary to return to the Applicant the following items stored at the Respondent’s property in [Suburb Y], NSW:
31.1.1 The chair;
31.1.2 The [bike];
31.1.3 [Shoes];
31.1.5 Books;
31.1.6 Box of toys;
31.1.7 The desk;
31.2The Applicant do all things necessary to return to the Respondent the following items in her possession;
31.2.1 The necklace;
31.2.2 The ring;
31.2.3 The Respondent’s rug.
Superannuation splitting order
31.That pursuant to paragraph 90XT(1 )(b) of the Family Law Act 1975:
32.1The Applicant (or such other person to whom a splittable payment is payable) is entitled to be paid the specified percentage out of the Respondent's interest in [Super Fund 1]
32.2The Respondent's entitlement (or the entitlement of such other person to whom a payment may be made out of the Respondent's interest) in [Super Fund 1], is correspondingly reduced by force of this Order; and
32.3The percentage specified for the purposes of this Order is 43%.
32.That the trustee of the [Super Fund 1] do all things necessary to:
33.1Calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the entitlement awarded to the Applicant in the immediately preceding clause of this Order; and
33.2Pay the entitlement whenever the trustee makes a splittable payment from Respondent’s interest in the [Super Fund 1].
33.That this Order has effect from the operative time and the operative time seven days after the date of service of this Order upon the trustee.
Other Property
34.That, within 7 days of the settlement of the sale of the [Suburb P] Property, the parties do all things necessary to close their joint [U Bank] Offset account ending #[…]81 and cause any balance therein to be transferred to the Respondent.
35.That, except as otherwise provided in these Orders, the Respondent be as against the Applicant, the sole legal and beneficial owner of all items of property in his sole name or held jointly with any other person, excluding the Applicant or, in the absence of legal title, in his possession and/or control, including but not limited to money, motor vehicles, insurances, equities, superannuation entitlements, personal effects, furniture and:
36.1 All funds in any bank account in his sole name;
36.2 The [Suburb W] Property;
36.3 His [Z Bank] Fund Managed Investment;
36.4 His [AA Company], [BB Company] and [CC Company] shares; and
36.5His superannuation entitlements with [Super Fund 1] and [Super Fund 2], save for the super splitting order in the Applicant’s favour.
36.That, except as otherwise provided in these Orders, the Applicant be as against the Respondent, the sole legal and beneficial owner of all items of property in her sole name or held jointly with any other person, excluding the Respondent or, in the absence of legal title, in her possession and/or control, including but not limited to money, motor vehicles, insurances, equities, superannuation entitlements, personal effects, furniture and:
37.1 All funds in any bank account in her sole name;
37.2 Her [Motor Vehicle 1]; and
37.3 Her superannuation entitlements with [Super Fund 3].
37.That, unless otherwise provided for in these Orders, each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders, and any other liability in their respective names.
Miscellaneous
38.That, if either party refuses or neglects to sign within 14 days of a written request to do so any documents necessary to put into effect to all or any of the terms of these Orders, a Registrar of the Federal Circuit and Family Court of Australia is appointed pursuant to the provisions of Section 106A of the Family Law Act 1975 to execute such documents on behalf of the defaulting party to give force and effect to these Orders.
39.That all extant financial and parenting applications are otherwise dismissed.
40.That the Respondent pay the Applicant’s costs of, and incidental to, this Application on an indemnity basis.
Respondent’s Orders sought
The Respondent’s Orders sought were contained in his Amended Response to Final Orders filed on 17th November 2021, and were as follows, noting that amended aspects of the Orders including underlined and ‘struck-through’ text has been removed (emphasis in original, footnotes omitted):
Parenting
1.That the parents have equal shared parental responsibility for the child [X] born [in] 2015.
2.That [X] live with each of his parents in an equal time care arrangement, on a week about basis, with changeovers to occur at the conclusion of school each Friday (or at 5:00pm) if [X] does not attend school that day.
Christmas Holidays
3.Notwithstanding these Orders, and unless otherwise agreed in writing between the parents, [X] shall live with his parents during the Christmas school holiday period at the end of Term 4 as follows:
3.1In 2021 and in each alternate year thereafter:
3.1.1With his mother for the first, second and fifth weeks of the holiday period, with the first week commencing after school (or at 3:00pm) on the Friday that falls in the last week of the school term;
3.1.2With his father for the third, fourth and sixth weeks of the holiday period, with the sixth week concluding on the Friday that falls immediately before [X]’s first day back to school;
3.2 In 2022 and in each alternate year thereafter:
3.2.1With his father for the first, second and fifth weeks of the holiday period, with the first week commencing after school (or at 3:00pm) on the Friday that falls in the last week of the school term;
3.2.2With his mother for the third, fourth and sixth weeks of the holiday period, with the sixth week concluding on the Friday that falls immediately before [X]’s first day back at school.
Easter
4.Notwithstanding these Orders, if the Easter weekend falls on the first weekend of [X]’s school holiday period, changeover occur at the conclusion of school on the Thursday before Easter Sunday (or 5pm if [X] does not attend school that day) instead of the Friday as provided for in Order 2 above.
5.Notwithstanding these Orders, if the Easter weekend falls outside of [X]’s school holiday period:
5.1On the first of such occasion and each alternate occasion thereafter, [X] spend time with his mother from after school on the Thursday prior to Easter Sunday until before school on the Tuesday following Easter Sunday; and
5.2On the second of such occasion and each alternate occasion thereafter, [X] spend time with his father from after school on the Thursday prior to Easter Sunday until before school on the Tuesday following Easter Sunday.
Special Occasions
6.Notwithstanding these Orders, [X] spend time with:
6.1His mother from 5:00pm on the day before Mother’s Day until 5:00pm on Mother’s Day;
6.2His father from 5:00pm on the day before Father’s Day until 5:00pm on Father’s Day;
6.3The parent with whom he is not living, from the conclusion of school (or 3:00 pm) until 6:00pm on [X]’s birthday if the birthday falls on a school day and, if not a school day, from 2:00pm until 6:00pm;
6.4His Father on the birthday of the Paternal Grandmother;
6.5at any other reasonable times that [X] should choose to spend additional time with either parent
Electronic Communication
7.The parent with whom [X] is living shall facilitate [X] speaking to the other parent via FaceTime or similar each Tuesday and Thursday and Sunday between 7:00pm and 7:30pm, for a period of no longer than 30 minutes and that accords with [X]’s wishes, with the non-resident parent to initiate the call.
8.The parent with whom [X] is living shall facilitate [X] having Facetime or similar communication with:
8.1 The mother on [J]’s Birthday;
8.2 The mother on [Mr H]’s birthday;
8.3 The parent with whom he is not living on Christmas Day;
8.4 The parent with whom he is not living on Easter Sunday.
8.5In the event that the scheduled Facetime call cannot reasonably take place; then the parents shall communicate by text and shall use their best endeavours to make an arrangement for an alternative make-up time for the call to take place.
8.6Both parents shall permit and facilitate [X] telephoning or Facetiming the other parent, at a reasonable time if he wishes to do so.
Changeover
9.Unless otherwise agreed in writing between the parents:
9.1If both parents mutually agree in writing the changeover may occur at their respective residences;
9.2Changeovers occur at [X]’s school on days that [X] attends school;
9.3On days that [X] is not at school, changeover over at [a fast food outlet], [DD Street, Suburb EE, City B] at 5:00pm;
9.4The parents may arrange for another adult person to attend changeover on their behalf, and each parent will notify the other of the identity of the other adult prior to the changeover time;
9.5No more that two people, including one parent, may attend changeover.
10.Should either parent relocate from their current residence within the [City B], then changeover shall occur at an agreed location that is approximately half-way between the parent’s residences.
Communication
11.The parents shall communicate with each other in relation to matters relating to [X] in writing by way of SMS or email.
12.In addition to telephoning or Facetiming, the parents shall permit and facilitate [X] to send either an email or SMS to the parent with whom he’s not living, should he desire to do so, at any reasonable time.
13.The parents ensure that all communications between them is polite and courteous, and that they respond to all written communication from the other parent within a reasonable period of time, not exceeding 48 hours.
14.Each parent is restrained from sending messages to the other parent through [X].
15.Each parent is hereby restrained from changing [X]’s school without the other parent’s written consent or an order of this Court.
AND IT IS NOTED: that the parents have agreed to revisit and discuss via email the school that [X] should attend following the finalisation of their property settlement.
16.That this Order shall act as authority to [X]’s school (whichever school that may be), or such other educational facility which [X] attends to provide to both parents all information, reports, assessment results, notices, access to online learning portals and all other communications provided to parents, and that this Order overrides any direction or instruction given by either party to restrict the other parent’s ability to obtain information and documents relation to [X].
17.Each parent shall notify the other forthwith of any serious illness or injury affecting [X], and each parent be at liberty to contact any medical professional or hospital treating [X] to obtain information.
18.That these Orders authorise [X]’s treating health and medical practitioners, including but not limited to Occupational Therapists, General Practitioners and specialists to provide to both parents all information, reports, assessment results, notices and all other communications relating to the children’s health and wellbeing. That this Order overrides any direction or instruction given by the either party to restrict or limit the other parent’s ability to obtain information and documents relating to the children from their treating health and medical professionals.
19.That in the event of a medical emergency occurring in relation to [X], the parent who he lives with shall;
19.1notify the other parent of the emergency following the contacting of emergency service or upon attendance at any emergency medical facility forthwith; and
19.2notify the other parent of the nature of the emergency and the location of the emergency medical facility at which the child is being treated or will be treated; and
19.3communicate to the other parent any such advice, prognosis or treatments for the child provided by any treating practitioner or professional.
Non-denigration
20.That the parents be restrained from denigrating or speaking ill of the other parent to [X] or in his presence or hearing and the parties must use their best endeavours to ensure that no other person does so either.
Notices and Invitations
21.That:
21.1Upon either parent receiving a notice, information or invitation from [X]’s school, that parent shall notify the other party within 24 hours of receiving that notice, information or invitation;
21.2Upon either parent receiving or being notified of [X] receiving an invitation to a birthday party or other such social event, that parent shall notify the other party within 24 hours of receiving that invitation or notification.
Travel
22.That except as otherwise agreed in writing between the parties, if either party wishes to travel with [X] in excess of a 200km radius from [X]’s school, they shall provide the other party not less than 7 days’ notice of their intention to do so and they shall provide the other party with details of the travel including:
22.1The location that is being travelled to;
22.2The method of transportation being utilised;
22.3The names of any other persons accompanying the party and the [X];
22.4 The date upon which the party will return the children to within the 200km radius from of [X]’s school.
23.Pursuant to Section 65Y of the Family Law Act 1975, either party is at liberty to travel with the [X] outside of the Commonwealth of Australia during their time with [X] as per these Orders, or as otherwise agreed in writing, subject to the following:
23.1Provided any travel destination is not marked as “Do No Travel” on the Commonwealth Government Smart Traveller website.
23.2[X] is not to travel outside the Commonwealth of Australia until he reaches 13 years of age;
23.3The travelling party shall provide to the non-travelling party no less than 90 days’ notice of their intention to travel with the children outside the Commonwealth of Australia accompanied with:
23.3.1 A copy of the itinerary together with accommodation details;
23.3.2 A copy of the return airfare ticket for [X];
23.3.3 A copy of a valid travel insurance policy that covers [X];
23.3.4Contact details for the party and [X] while outside the Commonwealth of Australia; and
23.3.5 Details of who will be travelling with [X].
Property
1.That the Net property pool be divided between the Applicant Wife and the Respondent Husband so as to effect a just and equitable division of the net property pool between them.
2.That the Applicant with shall pay for the Respondent Husband’s costs of and incidental to these proceedings
3.That leave be granted to the Respondent Father to further particularise the Final Orders sought at a later date.
The division of property sought by the Respondent was further particularised in his Case Outline filed on 31st October 2023 as follows:
Assessment: Adjustment (if any):
Applicant: 25% Applicant: 2.5-5%
Respondent: 75% Respondent:0%
Overall division sought:
Applicant: 27.5%
Respondent: 72.5%
The Applicant Mother’s Oral Evidence
Oral Evidence of the Applicant Mother
The Mother confirmed her occupation as a professional. She said that her current position in relation to property division is to seek that the assets, other than the Father’s Super Fund 1, be divided equally between them, and that the Suburb P property be sold. She said she knew that the Father owned the Suburb P property at the commencement of the relationship, that he currently lives there, and that it was his current position that he wants to retain it provided he can pay the Mother the sum as ordered by the Court. The Mother agreed that it did not matter whether the Father kept the property, as long as he could ‘buy her out.’ She agreed that she was seeking a splitting order from the Father’s Super Fund 1 superannuation entitlements of 43%, despite knowing that it was his only source of income. She confirmed that she currently has a steady source of income herself, and that the Father has not been in paid employment since the commencement of the relationship.[4] As stated already, and stated regularly below, in my view, the Mother did not really, or realistically, understand the Orders she was seeking, in both parenting and property aspects. Her persistent contention that it was just and equitable to have half of the Husband’s Super Fund 1 pension, his only source of income, was remarkable in all of the circumstances of the matter, not least the relationship being only of 8 years, being in full-time employment herself, and having a new partner, Mr D, whose evidence was rather lacking on the financial front (noted above; discussed further below). His Affidavit evidence in particular sought, above all else, to paint the Father in the worst possible light. Ultimately, it assisted me barely a jot. Indeed, it could fairly be said that the Mother’s case, on both aspects, was heavily over-played – which also, to speak generally, did not assist the Court at all.
[4] T 19
The Mother confirmed that she owned the property in Suburb G at the commencement of the relationship which she had purchased in 2006 for $360,000 with a mortgage attached to it. She had sold the property in late 2013, netting approximately $270,000 after paying off the mortgage and other costs of the sale. She used this as a contribution to the purchase the Suburb Y property. The Mother agreed that the vast majority of her superannuation has accumulated since the start of the relationship. She confirmed that at the start of the relationship, the Father had also owned a property in Darwin which was tenanted at the time to pay its mortgage. This property was sold during the relationship for approximately $560,000, with him netting $200,000 from the sale. The Mother was uncertain about this figure; however, she accepted it. She accepted that this sum also was used for the purchase of the Suburb Y property as well. Further, she confirmed that at the start of the relationship, the Father had also owned the Suburb P and Suburb W properties which are still owned by him. She said that she had seen the valuations obtained for those properties. She confirmed that she had been invited to participate and instruct the valuers as single experts for the purpose of those historical valuations, but she had declined. She agreed, however, that she had seen the historical valuations and accepted that the Suburb W property was worth $378,000 in 2011, and the Suburb P property worth $650,000 in that same year.[5] The failure to participate in the valuations, while not a major issue, was needless, unhelpful and unexplained.
[5] T 19 – 21
The Mother confirmed she received an inheritance of $85,000 in 2009 which was partially used to purchase the car that she currently owns. The rest was used for the benefit of the family. I simply recall that the relationship between the parties was from 2011 until 2019. She was aware that the Father received an inheritance of $320,000 in 2013. She was shown the Father’s U Bank statements of 2013 and accepted the figure. She accepted that an additional sum of $40,000 was advanced to the Father from his father, as well as $96,000 from his father’s superannuation fund upon his death in 2019. She was also aware that the Father was a beneficiary under his father’s estate, and of the current Family Provision Act claims before the Supreme Court, meaning the estate was not yet finalised. Accordingly, it was not certain how much the Father will ultimately receive from his late Father’s estate.[6] Notwithstanding all of these financial matters in the Husband’s favour, nonetheless, she persisted in seeking, after a relationship of 8 years, that the non-superannuation pool be equally divided between the parties and that the Husband’s sole source of income, his invalidity pension, be split. Almost astonishingly, she also lived rent free (noted below) in the former marital residence with her new partner for just over 2 years, while the Husband kept paying the mortgage. Subject to what is said later in these reasons, the Wife’s property claim was, in my respectful view, significantly outside any usual “range” of what might reasonably be considered to be a “just and equitable” settlement of the property dispute. More succinctly, it was well beyond the usual “ambit claim” in family law property litigation.
[6] T 23
At the time of separation, the Mother, Father and children were living in the Suburb P property. The Mother confirmed that she had changed the locks on that property when she returned from Queensland and continued to live there with the children from the date of separation until about late 2022. This was a period of approximately 3 years. The Mother confirmed that both parties had contributed to the mortgage and rates for the Suburb P property, and that she had paid about $720 a fortnight, while the Father paid $500 a fortnight. After separation, the Mother made three payments to the mortgage on Suburb P in early 2020, each of the sum of $720. After early 2020, the Mother confirmed that she ceased contributing to the mortgage or rates. Accordingly, she confirmed that she effectively lived rent free in the Suburb P property from early 2020 until late 2022. The Mother confirmed that she had not asked for the Father’s consent for this. For a period following separation, the Father had been paying rent elsewhere. The Mother said that she had kept putting off paying the mortgage as she had hoped that a settlement of both parenting and property matters could be achieved. She said that she had thought that there might be some sort of accounting in any settlement for the fact that she had been living in the property rent free. She was at last correct on this score, however presumptuous her living gratis in the Suburb P property, including with her new beau, was. The Mother agreed that post separation, the Father had made substantially more contributions to the Suburb P mortgage than she had. The Mother accepted that the loan at the date of separation was $340,000, while the loan now is $350,000.[7]
[7] T 23 – 25
During this period, (subject to what is said later in these reasons) the Mother said that she was paying legal fees, despite not paying any mortgage payments or rent. She accepted that the effect of what she was doing was to prioritise her legal fees over accommodation contributions.[8] This contention, as noted below, was in fact, completely incorrect.
[8] T 26
The Mother confirmed that she was seeking Orders in relation to some monies withdrawn by the Father for legal fees. Her position was that this sum of $9,900 should be added back into the pool of assets.[9]
[9] T 26
The Mother has seen the building report attached to the Father’s Affidavit of the Suburb P property. She said there had been some wear and tear. The Mother said that the significant water damage to the kitchen fittings had occurred while she was with the Father in 2016. She said the damaged bathroom fittings, toilet and walls in the bedroom had all been wear and tear or occurred during the relationship. The Mother confirmed that an outdoors structure built by the Father had been removed, and some bricks in the garden had been dug up and taken away. She disagreed that she had taken everything of value from the property. She said that the Father had come over to get his things two years ago and had the option to take whatever he needed, including the bricks and outdoor structure. However, he did not take them. She said she took the bricks because she had wanted to use them elsewhere, and they were only being used for the base of an outdoor structure. She confirmed that her understanding had been that because the Father had not taken those things, she thought she could take them from the property. Respectfully, this sounded awfully like the old claim of “finders’ keepers …” She disagreed that she had also taken things that were screwed into the property. She agreed that to an extent, the bricks were embedded in the ground. A television had also been taken off the wall, however the Mother said this was to make the property more presentable for the sale.[10] Doubtless the “presentability” of the property was/is very much in the eye of the beholder. The Mother did not say what she did with the removed television.
[10] T 29
The Mother had taken six months maternity leave after the child’s birth, but otherwise worked in full time employment throughout the relationship; that employment is continuing. She was still involved in the care of the children (which included the Mother’s older children from a previous relationship) in the morning and evening. The Father was not working during the relationship; he was involved in the care of the children (obviously primarily) during the day. However, the Father spent no time with the child between late 2019 and the mediation in April 2020. She rejected the suggestion that the Father was the child’s primary carer up until separation. The Mother then confirmed that part of her rationale for not providing any time between the child and the Father was to get a forensic advantage in these proceedings. Her candour was refreshing on this point at least. However, she also said that the Family Violence Order had influenced her decision. She said that the child had been protected on the Temporary Family Violence Order obtained in Queensland.
At mediation in April 2020, the parties had come to an agreement that the child would spend gradually increasing time with the Father until equal time, over a short period. This was the arrangement until February 2021. A prepared “care plan” had reflected the agreement reached, including that the child would attend Suburb N Preschool. The Mother said that she had already enrolled the child in this preschool, thus he was already attending the preschool by April. She said that the agreement had been that the child’s schooling would be discussed after the property settlement was finished. The document in fact read that ‘A decision will be made through mediation as to where [X] will continue his education’. The Mother agreed with this. Accordingly, it was accepted that the child’s schooling was open for discussion. Despite this, she agreed that the Father had tried to raise the issue of schooling in August 2020, while he was living approximately 1 hour away in Suburb W, yet she had shut this down. He had proposed some schools, and the Mother had said that the child would stay at Suburb N School and that it was not open for discussion.[11] On some things at least, the Mother was quite decisive, usually regarding X. She certainly and clearly took steps that advantaged her position and disadvantaged the Father regarding things like schooling.
[11] T 29 – 35
She confirmed that she was seeking sole parental responsibility, however, she said she would agree to consult with the Father about decisions to be made. When asked whether she would actually take into consideration the Father’s view, she said she would. Recent history might not give complete support for such a view. She denied that the schooling scenario demonstrated that she would take control of the decision-making process and exclude the Father. The Mother did not agree that this situation was an example of her being consultative or taking into account the Father’s view. She said she had not agreed with his schooling suggestions due to ‘everything that was happening with the property.’ The Mother accepted that the issue was not simply that she had not agreed with the Father, but that she had then taken it upon herself to make the final decision. She confirmed that she would take into consideration the Father’s thoughts but if she did not agree with them, she would ignore them. She said it would be in the best interests of the child.[12] I would like to believe the Mother, but in general terms, the history of her conduct is that she will do what she wants in relation to X and take steps to achieve her goals.
[12] T 36
Indeed, the Mother confirmed that she withheld the child to ensure that he went to her preferred and chosen school. The child spent no time with the Father between February and April 2021 when Orders were made. In Orders made in February 2021 directed that both parties were to advise the Court of the arrangement for the child’s time with the Father within seven days. The Mother confirmed this did not occur, hence the matter proceeded to an Interim Defended Hearing on 28 April 2021. The Mother said she had not remembered that there were two 3 month periods in which the Father had not spent time with the child. She confirmed, with proper and fair candour, that it had been her decision to prevent the time from occurring. She could not recall the reason why. The Mother said that between December 2019 and April 2020, the lack of time between the Father and child had an impact on her child support payments. The Father had always made these payments; the Mother was uncertain how much it was, but said it was “not that much”. After the implementation of the Parenting Plan in April 2020, the Mother had not advised Child Support about the change in care arrangements, hence, the Father continued to pay the sum that he was previously assessed to pay. This was clearly another instance of the Mother “doing her own thing” regardless of the impact upon the Father. The Father had to approach the Child Support Agency to get them to recalculate the sum. Under the current assessment, the Mother has to pay the Father $17 a week. She said she had not initially paid this amount as she was unaware of the change, but did so once the Agency contacted her. She confirmed that the amount was now deducted from her salary.[13]
[13] T 39
Based on the child’s school report, the Mother confirmed that the child’s reading level might be considered ‘below par.’ She had not considered tutoring, but said that he is getting ‘specialised reading’ from the school. The Mother confirmed that she was aware that the Father remained concerned about Suburb N School. She confirmed he had been involved in the child’s schooling and homework. She further confirmed that she had refused to entertain any suggestion by the Father of the child attending a different school. To state the obvious: hardly a co-operative approach to parenting. The Father had proposed that the child attend a smaller Catholic school, and that he pay for the school fees. She had refused to entertain this idea. She denied that this exemplified a one-sided decision-making process. She further denied that this was the outcome of what had been happening, despite confirming that she had withheld the child from the Father to ensure that she got what she wanted in relation to schooling. She said that it was an interim Order not to move the child out of the school that he was happy in, so she had done so. She said that the child would not understand a school change, and was currently happy with the school. She said that she would be happy to compromise if the Father went back to Suburb W and she remained in Suburb N by finding a school in the middle. She was asked when in the past she had indicated that she would compromise. She said she had done so at the start of the proceedings to her lawyers. A call was made for any documentation in which the Mother indicated a willingness to compromise on the schooling issue.[14] According to Counsel for the Father, the documents produced in response to the “call” did not directly, or relevantly, answer it.[15]
[14] T 39 – 41
[15] See T 85 – 86 regarding the response to the “call”.
The Mother said she had seen correspondence which indicated that the Father had approached the school after the mediation, and the school had demanded that he leave and threatened to contact the police. An apology was issued to the Father from the relevant education authority, which stated that there had been a misunderstanding by the child’s teacher in regard to the care arrangements at the time. She eventually agreed that the reason the school had acted in this way was based on what she had told the school. However, she could not understand why the Father might not be so keen on the school after having had this type of engagement with them. She said that this was three years ago, thus implying that it was not really relevant to present matters before the Court.[16] In my view, this was yet another instance, a very graphic one, where the Mother’s approach was the complete antithesis of co-operative and insightful co‑parenting. In my view, the contention that this incident was three years ago, therefore it is now of limited if any relevance, misses the point. It was another clear instance of the Mother doing what she wanted to ensure either some positive benefit for her parenting relationship with X, or (in this instance) of undermining and prejudicing the Father’s relationship with the child.
[16] T 41 – 43
It was suggested to the Mother that she wanted sole parental responsibility in relation to schooling because she excludes the Father from having any input. She denied that his input had been entirely ignored by her.[17] Given the number of instances where his “input” has been ignored, the Mother’s evidence was hardly credible.
[17] T 48 – 49
Questions moved to matters of health.
The Mother agreed that when the Father had been living in Suburb W, her current GP, who she also takes the child to, was not convenient for him. Accordingly, she confirmed that it would have been reasonable for the Father to take the child to a GP closer to his residence. It was confirmed that now that they were in the same area, the child should be taken to the same GP by both parents. However, the Mother’s current GP will not see the Father. Accordingly, she agreed that there needed to be a separate, neutral but common doctor able to be consulted by both parents in relation to medical matters regarding X.
In mid-2021, the Father was living in Suburb W and took the child to Dr L due to concerns about some respiratory issues. The Mother understood that if she had sole parental responsibility, the Father would not be able to take the child to a doctor. She confirmed that she had deposed that the Father had taken the child to medical appointments without her consent. However, she accepted that she did not need to seek his consent for this. She said she put this complaint in her Affidavit to show that the co-parenting was not working. Despite this, she accepted that it was reasonable for the Father to take the child to the doctor in the circumstances. She said that asthma prescription drugs were provided but no asthma plan was provided. The Mother was shown a document which outlined how and when the drugs were to be administered, yet denied this was a treatment plan. Confusingly, she said there was no formal treatment plan, but then agreed that it in fact was a treatment plan of sorts. Regardless, she did not act on this plan. She said that the child had not appeared to have any asthma symptoms when he was in her care, hence she had attempted to speak to the doctor herself. She went to a GP with the child to get a second opinion a little while later. She confirmed that between this second appointment and her receipt of the treatment plan, she had not followed any of the recommended steps.[18]
[18] T 49 – 54
On the subject of incidents noted by the Mother in her Affidavit to highlight that the co‑parenting relationship was not working, it is important to observe that, on one view of the evidence, the obstruction highlighted came directly from the Mother: e.g. two instances of withholding of the child from the Father; another, separate instance where deliberately wrong information was provided to the school by the Mother that had the effect of again thwarting the Father’s time with the child. In such circumstances, it could be readily argued that to grant the Mother sole parental responsibility would be to reward bad behaviour.
The Mother accepted that it was appropriate and reasonable for the Father to follow the medical advice given to him by the GP, and to inform her of that advice, which he had done. She denied that she ignored the advice. She said she thought the medication was unnecessary. Yet, she accepted that the Father was not deliberately trying to harm the child by providing him with the medication. Indeed, even on her evidence, the Father was simply (and in my view, reasonably) following medical advice. She confirmed that eventually, the child was seen by a paediatrician who said that there was infrequent, intermittent asthma with some exercise induced symptoms. She confirmed that the paediatrician had not said there was no asthma at all, but that there was a history consistent with a certain type of asthma. Despite all of this, she confirmed that her position had been that the Father pursuing an asthma diagnosis was inappropriate. She said that in 2021, she had thought the pursuit of treatment for asthma was outrageous, but not in 2023. However, she still had not seen any asthma symptoms in the child. An additional doctor said that it was possible that the child had asthma in the past but does not have it anymore. Despite this, she also said that if the child experienced a tight chest or asthma symptoms, he should be given some puffers. She confirmed that when he did have asthma symptoms in the past, it had been worth exploring. However, she confirmed (or acknowledged) that if she had had sole parental responsibility, the Father’s concerns about asthma would have been entirely ignored.[19]
[19] T 54 – 60
In the circumstances outlined here, the Father was (and is) always playing against a “loaded deck”, so to speak. By this I simply mean that even when the Father does everything according to responsible parenting practice, such as taking an unwell child to the doctor, and then acts in accordance with that medical advice, the Mother still objects and takes steps to thwart the medical advice provided. And even after a paediatrician confirms some residual form of asthma, the Mother still takes an oppositional stance. None of this assisted her case at all. To speak colloquially, it put increasing levels of lead in her parental saddle bags. Curiously if not unfortunately, the Mother regularly seemed almost oblivious to the damage she was doing to her own case. Put another way, the Mother’s insight was regularly lacking.
The Mother said that there was nothing she would have done differently or better about consultation and decisions for the child. However, she acknowledged that it had not been perfect. She said she had tried her best at the time.[20] If this was her “best”, there are significant issues.
[20] T 61
It was confirmed that the child had been spending equal time with each parent since May 2020, excepting 3 months at the beginning of 2021. She confirmed that, quite obviously, this was now the child’s lived experience, and it would not be surprising that in the Family Report it was recorded that the child found the arrangement congenial and to be welcomed. The Mother said that at the moment, she agreed with this statement. She agreed that the child loves the Father, has a great relationship with the Father and paternal grandmother, and that the only concern that he had was that the parents do not speak with each other. She confirmed that, as recorded in the Family Report, if the Father says hello to the Mother, the Mother does not reciprocate. She agreed that she could not manage basic civility with the Father, even at the Family Report interviews. She said that at the start of their separation, she had been amicable with the Father, yet as things changed over time, his engagement become over the top and ingenuine.[21] Again to state colloquially the obvious: if there are, as confirmed here, issues with basic civility, then truly “Houston, we have a problem.”
[21] T 61 – 63
The Mother accepted that she was unable to make important decisions for the child in fear for repercussion from or undermining the decision by the Father. It was suggested that the Mother had just been taken through a number of decisions where she had ignored the Father’s opinion. She said she had not ignored, but investigated. She said she was trying to co-parent.[22] I need not repeat my already expressed reservations in relation to such statements and the Mother’s significant lack of insight and capacities.
[22] T 64
It was confirmed that Orders had provided that the Mother would collect the child from school and arrange for handover with the Father at 6pm. The Mother had written to the Father on the child’s birthday and asked for him to pick him up from school as it might be too much for him. The Father had responded that it might be simpler to stick with the Orders. She confirmed this was reasonable. The Mother said that she had been threatened by him the night before on FaceTime, and the child was upset. She said it was a really difficult time, and the child had just wanted to know who was picking him up from school. Ultimately, the child had not been picked up from school until half an hour after school concluded due to the confusion. It was suggested to the Mother that the confusion had not been on the Father’s part, but the Mother’s, as the Father had clearly asserted that they should just stick to the Orders.[23]
[23] T 64 - 66
The Mother confirmed that the Father’s position had always been that the parents have equal time with the child. The Father had never proposed to reduce the child’s time with the Mother. She accepted that the vast majority of her complaints in her Affidavit related to FaceTime and extracurricular activities. She confirmed that the Father agreed to FaceTime being once a week for 15 minutes. She confirmed that she would agree to the Father’s proposal that neither of the parents should attend the child’s extracurricular activities when it was not their week with the child. Despite this, she confirmed that until today, she had continued to enjoy FaceTimes with the child of up to 30 minutes each, 3 times per week. She agreed that privacy within these FaceTimes was a necessary and important thing. However, it was suggested to her that there is extensive detail in Mr D’s Affidavit outlining conversations between the Father and the child during their FaceTime calls. She said that Mr D had not made notes of their conversations in a very long time. She conceded that she had been listening, as the child had been very upset on certain occasions. She said that Mr D was not ‘listening in’, but ‘overhearing.’ This distinction was not immediately clear to me. She then agreed it was not appropriate. She said she had never told Mr D to stop, however, he no longer makes journal notes. She said that now the child was in his own room when he made the calls with his Father, however that the door is open hence why it was easy for herself and Mr D to listen. She said the level of monitoring this year was not to the extent of last year, as the child was now holding his own. The Mother agreed there should be an Order for privacy during these calls and accepted that more would need to be done when the child is in her care to ensure privacy. Again, the Mother’s control and lack of insight in relation to the matters just recounted is genuinely troubling.
The ICL’s questions began with the Mother confirming that the child was currently welcoming of, and generally content with, the equal-time arrangement in place. She queried why the Mother had said that the child was happy “for now.” I share the same question. She said that she had wanted more time with the child. She said she had doubts about the arrangement as it currently is. Despite this, she agreed that the child had been open and honest with the Court Child Expert, but she said that she thought that the child was trying to please both parents. She said that if the time arrangements changed, the child might not understand initially. She said perhaps she could explain the change to him, or the ICL could do so, or perhaps some other professional. She said she had spoken to Ms K about this; she confirmed that this was not in any of her evidence. If the child became upset, the Mother said she would seek advice. It was suggested to the Mother that the child may blame her for the change. She agreed that he might have some resentment. She said she had considered this but confirmed that such considerations were not in her evidence.[24] To state the obvious: (a) given the experience (and volume) of her legal team, and (b) her large and minutely crafted trial Affidavit, it was quite unfortunate and unhelpful that such important and relatively basic information about the child (as opposed to the detail regarding the Father), was simply not included or otherwise omitted.
[24] T 74
Given the following undisputed matters, the Wife’s supplementary submissions in relation to “costs” were deficient, misleading and improper:
(a)The Husband plainly disclosed the payment of his legal fees and the source of funds for payment (from his Mother); the Wife did not;
(b)The special costs arrangement only came to light during the Wife’s re-examination. Why this occurred, and what prompted it at that time, was never explained;
(c)Counsel for the Wife confirmed in submissions that there had been lack of disclosure in relation to the Wife’s special costs arrangement, and also confirmed that she did not know the reasons for this;
(d)There had been two false Affidavits filed (as part of the Wife’s two Financial Statements), and four inaccurate Costs Notices, in none of which was there any mention, let alone complete disclosure, of the special costs arrangement on behalf of the Wife between her employer and the Wife’s lawyers;
(e)There was no compliance with Part 6.1 of the Court Rules in relation to disclosure on behalf of the Wife; and
(f)Likewise, there was no compliance with principles of disclosure set out in authorities of long-standing, or compliance with standard professional practice in family law property proceedings.
Further, in the light of the Wife’s Counsel during the trial confirming that there was no disclosure by the Wife (or her lawyers) regarding the special costs arrangement, the contention in the Wife’s supplementary submissions that the Court should simply treat the special costs arrangement with the Wife’s employer in a similar way as the Husband borrowing funds from his Mother, was yet another, unfortunate but nonetheless obviously deliberate, exercise in misleading obfuscation and legerdemain. Indeed, the supplementary submissions are quite inconsistent, in my view improperly so, with what the Wife’s Counsel confirmed at trial. At no stage has the Wife’s lawyers ever simply admitted that they erred (in my view, at a grievous level because the non-disclosure has been so protracted and obviously deliberate, or grossly negligent) in not disclosing the costs arrangement that only they and their client knew about. Given that the Wife’s Counsel openly acknowledged to the Court the lack of disclosure, one would have thought that the Wife’s solicitors would, at some stage, have done the same. The reasons for their indolence (or something potentially worse) in the face of their acknowledged (by Counsel) negligence, can only be guessed. Regrettably, their silence and lack of acknowledgment of obvious fault is, at least, unprofessional as well as disrespectful to the Court, especially in the light of Counsel’s confirmation of the lack of disclosure. No acknowledgement, no plea in mitigation – rien, nothing.
To state the obvious, and accepting the repetition given what has already been set out throughout these reasons, the lawyers must be included in the consideration of any award of costs because (a) of their experience and prominence in family law practice in the national capital and beyond, and (b) they must have done a basic and presumably regular assessment of the capacity of their client to appreciate the Orders sought by her and the evidence to support them. Such is obviously “Litigation 101.” Further, the lawyers were obviously in possession of whatever “agreement” was set up whereby the Wife’s employer (c) negotiated that she would use this firm as her lawyers (and move from her then lawyers), and (d) upon this taking place, her employer would pay her legal fees. It really matters not what the Wife did, or did not, know about the duty to disclose all financial resources. The fact is her lawyers plainly knew (or must be taken to have known) that they had a duty to the Court, and to the other party, to make full, complete, and ongoing financial disclosure. This did not occur, and only came to light very late in the trial. The background, documentation and the like, to this day, regarding this fortuitous arrangement for the Wife, remains opaque, at best.
Having sought comment by way of written submissions regarding compliance (or otherwise) with, among others, the provisions set out in Part 12.5 of the Court Rules, there has plainly been relevant “notice” as required under Rule 12.16. The submissions provided by both parties confirm that the relevant “notice” was given and responses to it filed (set out above).
In all of the circumstances, having regard to the ongoing default of the Wife and her lawyers in particular as set out so repetitiously, if not ad nauseam, in these reasons, in my view it is imperative that the Court make an Order for costs, on the Court’s own motion under rr.12.13(1), 12.15(a), (c) and (d), and r.12.15(3). Other, alternative (or additional) bases for the making of a costs Order are set out below. At the very least, regarding “costs thrown away” as set out in the r.12.15, it is undeniable that the further examination of the Wife following the successful oral Application to re-open her evidence, was one instance of extra costs incurred by the Husband. More significantly is the fact that it is completely unknown what (if any) difference proper disclosure may have made to the conduct and/or conclusion of the litigation and the costs associated with same. For example, it may be (and likely would have been the case) that proper disclosure would have meant different submissions made on behalf of the Husband because of the additional funding/asset the Wife had obtained where he had no such largesse. However, just because something is necessarily speculative, does not mean that it cannot, or should not, be a consideration in the award of costs. Such is the case here.
In addition to what has already been stated (and/or in the alternative), and in the event that it is not appropriate to rely (fully or in part) upon the terms of Part 12.5 of the Rules, I note the following comments by the Full Court in Cassidy v Murray regarding the unquestioned authority of a Court to make costs Orders against a party’s lawyer pursuant to s.117(2) of the Act.[124] In Cassidy v Murray, at 500 – 501, the Full Court firstly referred to the foundational discussion about such an Order and the authority to make it in the High Court decision of Knight v FP Special Assets Ltd.[125]
[124] Cassidy v Murray (1995) 19 Fam LR 492.
[125] Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 188 and 192 (Mason CJ and Deane J); at 203 (Dawson J).
Secondly, at 504, the Full Court set out the basic principles for such an award under s.117(2) of the Act in the following terms:
Whereas some of the cases say that there must be "a serious dereliction of duty" by the solicitor before a costs order can be made against that solicitor, in our view the matters identified by the Master of the Rolls in Ridehalgh v. Horsefield accurately reflect the law, which, in its application to this jurisdiction, can be set out as follows:
1.Pursuant to s.117(2) Family Law Act, the Court has jurisdiction to make an order for costs against a solicitor or a non-party.
2.The court should not make such an order without giving the person to be affected by the order an opportunity to be heard.
3.The Court may make an order for costs against a solicitor without the necessity to establish that the solicitor has been guilty of serious professional misconduct.
4.The solicitor has a duty to the Court to promote the interests of justice whilst at the same time attending to the needs of the solicitor's client.
5.A mistake or error of judgment would not justify an order for costs against a solicitor. However, misconduct, default or negligence, any of which are found by a Court to be of a serious nature, may be sufficient to justify an order.
6.The jurisdiction is compensatory.
For the reasons already given and circumstances earlier explained, the lawyers for both parties were requested to provide written submissions in relation to costs, and by reference to the relevant Rules, specifically regarding whether a personal costs Order might or should be made. Accordingly, both under the Rules, and under s.117(2) of the Act (as per Cassidy v Murray), the parties and the Wife’s lawyers in particular were given the opportunity to be heard. It is apposite to note here that, notwithstanding having provided written submissions regarding costs in response to the Court’s request dated 29th February 2024, on the day prior to delivery of these reasons, the Wife’s lawyers sought a further opportunity to make submissions regarding costs. No authority for seeking an additional opportunity to make submissions was provided. The authorities referred to above do not say that the opportunity to be heard is (or should be) “open-ended”. Both parties here were given the opportunity to be heard. Each of them provided written submissions. There is no basis to provide or to make additional submissions, which also would likely delay the delivery of reasons and the making of Orders. The parties need finality to their litigation. Delay of any kind does not assist them at all. The request for a further opportunity to provide submissions regarding costs must be refused.
Further still, I note the following for completeness.
The statutory and jurisprudential considerations in relation to the making (or not making) orders for costs are well known. Although well known, it is sufficient to note the following from the Full Court decision in Stephens v Stephens.[126] Beginning at [62], the Full Court said (emphasis added):
[126] Stephens v Stephens (2011) 44 Fam LR 117.
[62] Section 117(1) of the Act provides: “[s]ubject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.”
[63] Section 117(2) of the Act provides that if, in proceedings under the Act, the court is of opinion that there are circumstances that justify it in doing so, it may, subject to sub-ss (2A), (4) and (5), and the applicable rules, make such order as to costs, whether by way of interlocutory order or otherwise, as it considers just.
[64] Section 117(2A) of the Act provides that in considering what order (if any) should be made under s 117(2), the court shall have regard to the matters set out in paragraphs (a) to (g). In Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 the Full Court (Kay, Warnick and Boland JJ), referring to s 117(2A), said at 130 [41]:
A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
[65] As to the relationship between s 117(1) and s 117(2) of the Act in Penfold v Penfold (1980) 144 CLR 311, in joint reasons, Stephen, Mason, Aickin and Wilson JJ said at 315:
It is an accurate description of s. 117 (1) to say that it expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to s. 117 (2). As sub-s. (1) is expressed to be subject to sub-s. (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.
Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s. 117 (2) in “a clear case”. (emphasis added)
[66] As to the nature of the hearing of an application pursuant to s 117 of the Act in Penfold their Honours said at 315-16:
Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised (Kent v. Kent [(1970) 92 W.N. (NSW) 503, at p. 505]). Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.
[67] We also observe that in Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 the majority of the High Court (Gaudron, Gummow, Hayne and Callinan JJ, Kirby J dissenting) held that s 117(2) of the Act referred to costs in the conventional sense and thus to the payment by one party to litigation of money by way of a partial indemnity for professional legal fees and expenses actually incurred by another party in the course of the litigation: see Hayne J at 219. An order for costs is made to compensate a party against expense incurred in litigation and is not punitive in nature. Costs are not a penalty or damages: Latoudis v Casey (1990) 170 CLR 534 per Mason CJ at 543 and McHugh J at 567; Ruddock and Ors v Vadarlis and Ors (2001) 188 ALR 143 per Full Court of the Federal Court at [12] and Brott and Joachim (2006) FLC 93-259 per Full Court (Holden, Warnick and Boland JJ) at 80,403-404.
Also in Stephens, the Full Court commented summarily on the award of indemnity costs, relevantly at [73]:
An order for costs may be made on an indemnity basis, subject to a judicial determination capable of being made that there ought to be a departure from the usual basis that costs be payable on the party and party basis. For a discussion of the jurisdiction to order indemnity costs and its exercise see Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248 per Sheppard J at 256-257 and NMFM Property Pty Ltd and Others v Citibank Ltd (No 2) (Court’s “NMFM” Judgment No 11) (2001) 109 FCR 77 per Lindgren J at [53] to [90].
The decision of Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd (noted by the Full Court) is a regularly cited authority for relevant principle regarding the awarding of indemnity costs.[127] In that judgment, his Honour outlined the following principles, at pp.232 – 234, which I set out in full (emphasis added):
It seems to me that the following principles or guidelines can be distilled out of the authorities to which I have referred:-
1. The problem arises in adversary litigation, i.e. litigation as between parties at arm's length. Different considerations apply where parties may be found to be entitled to the payment of their costs out of a fund or assets being administered by or under the control of a trustee, liquidator, receiver or person in a like position, eg. a government agency or statutory authority.
2. The ordinary rule is that, where the Court orders the costs of one party to litigation to be paid by another party, the order is for payment of those costs on the party and party basis. In this Court the provisions of Order 62, rules 12 and 19, and the Second Schedule to the Rules will apply to the taxation. In many cases the result will be that the amount recovered by the successful party under the Order will fall short of (in many cases well short of) a complete indemnity.
3. This has been the settled practice for centuries in England. It is a practice which is entrenched in Australia. Either legislation (perhaps in the form of an amendment to rules of Court) or a decision of an intermediate court of appeal or of the High Court would be required to alter it. No doubt any consideration of whether there should be any change in the practice would require the resolution of the competing considerations mentioned by Devlin LJ in Berry v. British Transport Commission and Handley JA in Cachia v. Hanes on the one hand and by Rogers J in Qantas on the other. The relevant passages from the respective judgments have been earlier referred to.
4. In consequence of the settled practice which exists, the Court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the Court in departing from the usual course. That has been the view of all judges dealing with applications for payment of costs on the indemnity or some other basis whether here or in England. The tests have been variously put. The Court of Appeal in Andrews v. Barnes (39 Ch D at 141) said the Court had a general and discretionary power to award costs as between solicitor and client "as and when the justice of the case might so require." Woodward J in Fountain Selected Meats appears to have adopted what was said by Brandon LJ (as he was) in Preston v. Preston ((1982) 1 All ER at 58) namely, there should be some special or unusual feature in the case to justify the Court in departing from the ordinary practice. Most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of factors which would be capable, if they existed, of warranting a departure from the usual rule. But as French J said (at 8) in Tetijo, "The categories in which the discretion may be exercised are not closed". Davies J expressed (at 6) similar views in Ragata.
5. Notwithstanding the fact that that is so, it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v. Weekes (1989) 92 ALR 131 at 152; evidence of particular misconduct that causes loss of time to the Court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v. Hutchinson (1987) 10 NSWLR 525, Maitland Hospital v. Fisher (No. 2) (1992) 27 NSWLR 721at 724 (Court of Appeal), Crisp v. Keng (Supreme Court of New South Wales, 27 September 1993, unreported, Court of Appeal)and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records). Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis.
6. It remains to say that the existence of particular facts and circumstances capable of warranting the making of an order for payment of costs, for instance, on the indemnity basis, does not mean that judges are necessarily obliged to exercise their discretion to make such an order. The costs are always in the discretion of the trial judge. Provided that discretion is exercised having regard to the applicable principles and the particular circumstances of the instant case its exercise will not be found to have miscarried unless it appears that the order which has been made involves a manifest error or injustice.
[127] Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225.
I need only note two further matters. First, in addition to the statutory framework under s.117 of the Act regarding costs set out by the Full Court in Stephens above, s.117(2A)(c) refers in particular to one broad but multi-faceted area of consideration by a Court regarding a possible award of costs which is of particular relevance here. That sub-section provides that a Court “shall have regard to” … (emphasis added)
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters…
Secondly, while not precisely the situation here, in the general starting point of considerations of costs by the High Court in Penfold v Penfold (noted by the Full Court in Stephens), after agreeing with the plurality on the facts and in the result, Murphy J said (at 318):
Presentation of a false statement of financial circumstances, which puts the other party to the trouble and expense of disproving it, is a circumstance which justifies an order for costs. Courts should regard such circumstances which tend to undermine the integrity of proceedings with great concern, and should do everything in their power to determine who is responsible in order to maintain that integrity.
His Honour’s comment about ensuring “the integrity of proceedings” together with his further comment about the responsibility of a Court to ensure that such integrity is maintained is, in my view, a fundamental matter in the current proceeding. In my view, the award of costs against the Wife’s lawyers, arises in large measure because of the ongoing and repeated failure to disclose facts and circumstances that were pre-eminently in their exclusive domain. It is the exclusivity of their knowledge of the special costs arrangement, and the repeated failure to make it known to the Court and to the Husband when they had six separate opportunities to make full and complete disclosure on behalf of their client, as the Wife was required to do both under the Rules of Court and in accordance with standard practice and principle in property proceedings that warrants the Court making an Order for costs against the Wife’s lawyers.
On the facts of the matter outlined multiple times in these reasons, in my view, there are sound reasons for making an indemnity costs Order against the Wife’s lawyers. However, in my view, on balance, an Order whereby the Wife’s lawyers pay 70% of the Husband’s costs, either as agreed or taxed, is appropriate. On the Husband’s evidence, which was not challenged, he has paid legal costs in the order of approximately $180,000; 70% of that sum is $126,000. If the lawyers agree on that sum so as to avoid a taxation, then I can make that more specific Order in Chambers. It is to be paid within 45 days of the date of these reasons.
For the reasons given, I am compelled also to request the Registrar of the Court in this Registry to provide a copy of these reasons to the relevant law society to consider the conduct of the Wife’s lawyers in this matter.
The final matter to address relates to the supplementary submission regarding a facilitated parenting meeting to assist the parties. Again, unfortunately the Mother’s submissions are quite awry. I say that because the submissions assert the almost complete inability of the parties to agree on anything. In fact, as noted a number of times in these reasons, the parties have agreed on (a) an independent GP for X, (b) a reduction in the Facetime calls between the child and his Father, (c) the use of a parenting App, and (d) on the child’s school. The health and school matters, in general terms, readily come within the terms of major long-term issues.
In all of the circumstances, in the event of any other major long-term issue arising in relation to parenting issues, in the first instance, as a more generalised and relatively standard Order in lieu of the facilitated parenting meeting (perhaps only once and no more than twice per semester), the parties are to attend mediation to seek to resolve such issue(s). Any costs associated with such mediation shall be borne equally by the parties.
I certify that the preceding two hundred and fifty-three (253) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 14 March 2024
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