Kelleher & Anderson
[2007] FamCA 137
•1 March 2007
FAMILY COURT OF AUSTRALIA
| KELLEHER & ANDERSON | [2007] FamCA 137 |
| FAMILY LAW - Interim applications - Nature of hearings “on the papers” - Limited children’s issues - Appointment of single expert to prepare Family Report - Removal of caveat - Injunctive relief – Disclosure - Application that judge be disqualified. |
| Family Law Act 1975 (Cth) |
Reserved Judgment
| Applicant: | Mr Kelleher |
| Respondent: | Ms Anderson |
| File Number: | MLF | 2734 | of | 2006 |
| Date Delivered: | 1 March 2007 |
| Place Delivered: | Melbourne |
| Judgment of: | Carter J |
| Hearing Date: | 15 December 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr G Thompson |
| Solicitor for the applicant: | Rickards Legal, |
| Counsel for the Respondent: | Mr Levine |
| Solicitor for the Respondent: | Issac Brott & Co, |
Orders
That pars 13, 14 and 15 of the wife’s Form 2A Response filed 2 October 2006 be dismissed and removed from the list of matters awaiting determination.
The Court Notes
Orders in this matter were also made on 15 December 2006.
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLF 2734 of 2006
| Mr Kelleher |
Applicant
and
| Ms Anderson |
Respondent
REASONS FOR JUDGMENT
Proceedings are pending in this Court between Mr Kelleher (“the husband”) and Ms Anderson (“the wife”). The proceedings involve interlocutory and final applications dealing with financial and children’s issues.
On 9 November 2006 Mushin J determined that the proceedings should be managed by a Judge and appointed me as Judge Manager. Word of my appointment did not reach me for some days. The practice is that the Judge Manager holds a Directions Hearing as soon as practicable after appointment. I was due to commence a two-week circuit on Monday, 20 November 2006 and my Associate communicated this to the solicitors for both parties at my request. The practitioners were also advised that, upon my return from circuit, arrangements would be made for the Directions Hearing. My first day back in the Registry from circuit was Monday, 4 December 2006.
In order to assist in a timely resolution of the interlocutory issues I had also sought from the practitioners, information as to the outstanding interim applications and relevant documents.
Upon my return from circuit I listed the matter for mention on 8 December 2006. I heard submissions by the parties’ respective counsel and set out a timetable for filing and serving written submissions which could be amplified by oral argument on the adjourned hearing day which was fixed for 15 December 2006. Some of the outstanding interlocutory matters were pressing and this was the only conceivable way the matter could be accommodated in a timely fashion.
Issues
In their memoranda or Case Outlines the husband and the wife listed the various issues which were outstanding.
From the wife’s perspective they were:
·Periodic spousal maintenance
·Injunctive relief
·Sole use and occupation of the former matrimonial home
·Return of chattels
·Disclosure
·A Form 18 Contravention Application
In this last-mentioned application the wife had alleged that the husband had failed to comply with the timetable for filing of documents set out by Mushin J on 9 November 2006. It had been given a return date of 21 December 2006 and in the circumstances set out in my Reasons for Judgment of 8 December 2006, remained listed for that date.
The outstanding issues from the husband’s perspective were:
·Children’s issues, including time to be spent during the Christmas period and on one evening each week
·Return of chattels
·Removal of a caveat
·Extension of time
It is convenient to note here that the extension of time sought by the husband related to the filing of documents required to be filed pursuant to the orders of Mushin J which I have already mentioned. When the matter was before me on 8 December 2006 counsel on behalf of the wife did not oppose the husband being granted leave to rely on documents which had been filed, notwithstanding that they were filed after the date specified in his Honour’s orders, however, did not agree to the extension of time which the husband had sought and wished to continue with the contravention application.
On 8 December 2006, by consent, the wife was granted leave to file a further affidavit in response to the husband’s material, provided that it was filed by 12 noon on Tuesday, 12 December 2006. That affidavit was duly filed. In the affidavit the wife made certain proposals in respect to the periods of time the children should spend with the husband during the Christmas period. However, she also effectively brought a new application in that she sought to reduce the time during weekend periods the children spend with their father pursuant to earlier interim orders made by Young J on 9 October 2006.
It should also be noted here that one of the orders I made on 8 December 2006 was that no further affidavits were to be filed prior to the adjourned hearing date, save for the wife’s affidavit to which reference has already been made. Notwithstanding that order, an affidavit was sworn by the husband’s solicitor and filed on 12 December 2006. When the matter commenced on 15 December 2006 I advised that I would not take that affidavit into account for the purposes of the hearing unless the wife agreed to this course of action. She did not.
The issues which I have already noted were subsequently narrowed, as will be seen. At the commencement of the hearing on 15 December 2006, Mr Levine, who appeared on behalf of the wife advised me that counsel wished to discuss certain matters. Having had the benefit of the parties’ respective written submissions I advised counsel of my preliminary view as to some aspects of the parties’ respective applications. During the course of this discussion I turned to the extension of time sought by the husband to file his material which had not been filed in accordance with the timetable set down by Justice Mushin, which in turn had led to the filing by the wife of the Form 18 Application I have already mentioned. Mr Levine informed me that the wife had decided not to proceed with this application and confirmed that a Notice of Discontinuance would be filed. In those circumstances, the husband’s application for an extension of time no longer needed to be considered.
The question of chattels was also discussed. Eventually there was general agreement as to how the parties’ respective applications in that regard would be dealt with, however, a distinction was drawn between the items sought by the husband and some of the items sought by the wife, which latter could be conveniently described as children’s chattels. Subsequently, it was further agreed that the children’s toys and certain other items, excluding a piano, would also be made available for collection and orders were later made by consent dealing with the question of chattels, other than the piano.
The interlocutory children’s issues included the question of the appointment of a suitably qualified person to prepare a Family Report, as well as the issue of the apportionment of the time the children should spend with each parent. Effectively, the husband sought to increase this time and the wife sought to decrease it. The parties were also in dispute over the periods of time which the children should spend with their respective parents during the Christmas school holidays. After the matter had been stood down for discussion, I was informed that the only children’s issues which were to be determined at this stage were the time that the children should spend with their father over the Christmas period and school holidays, together with the issue of who should be appointed to prepare the Family Report.
There was discussion about the issue of spousal maintenance. I indicated that I was prepared to deal with this issue on the papers but was not prepared to allow cross-examination. This had been foreshadowed in the written submissions filed on behalf of the husband. On my enquiry, Mr Thompson, who appeared on behalf of the husband, confirmed that cross-examination of the wife was sought. He told me that cross-examination would probably take two to three hours. Mr Levine confirmed that if the wife was to be cross-examined, he would also wish to cross-examine the husband. There was insufficient time for this to take place. I pointed out that if the matter was not dealt with on the papers certain arrangements would have to be made on an interim basis, and given my other commitments the hearing would probably not be for some months. The option of referring the question of spousal maintenance for determination by the Senior Registrar as a discrete issue was then raised and discussed. I had explained that if the maintenance application had to be adjourned to enable a date to be arranged which would accommodate time for cross-examination, arrangements would have to be put in place or continued for payments during the intervening period. I determined to afford counsel the opportunity to discuss questions of chattels; the issue of who should be appointed to prepare the Family Report; the arrangements to be made for the children to spend time with the husband over the intervening period; and interim arrangements for the provision of funds for the wife pending any adjournment of her maintenance application. I also made it clear that I would deal with what appeared to be other pressing issues such as the injunctive relief sought by the wife and the husband’s application for the removal of a caveat.
It will be recalled that the wife had sought an order for sole use and occupation of the former matrimonial home. There were pending contested proceedings in the State Magistrates Court for an Intervention Order which were to be next dealt with in June 2007. The husband was, on an interim basis, restrained from attending the former matrimonial home. Given this I did not regard this matter as pressing. Later, having heard further submissions I made orders dealing with this issue and at Mr Levine’s suggestion dismissed the wife’s application for sole use and occupation with a right of reinstatement after the determination of the proceedings in the State Magistrates Court.
When the matter resumed Mr Thompson advised me that some issues had been narrowed and some matters had been agreed. The only remaining issue as to chattels concerned the wife’s application for the return of the piano.
Mr Thompson confirmed that both counsel sought to cross-examine on the question of spousal maintenance. By that stage I had obtained information as to the Senior Registrar’s availability and was able to advise that the matter could be heard on 24 January 2007. I was then advised that it had been agreed that the parties would engage in private mediation on all issues, both interim and final issues and that it was proposed that the mediation would be in late February or March 2007. It was sought that this mediation should take place prior to any determination by the Senior Registrar of spousal maintenance or any other issues which might be transferred to him.
Accordingly the issues which remained to be considered were:
19.1the wife’s application for injunctive relief;
19.2the wife’s application for the return of the piano;
19.3the wife’s application for disclosure;
19.4financial arrangements to be made for the wife pending the further hearing of her spousal maintenance application;
19.5the husband’s application for the removal of a caveat;
19.6who should be the counsellor to prepare the Family Report; and
19.7the time the children should spend with their father during the Christmas and holiday periods.
During the course of the hearing an application was made on behalf of the wife that I should disqualify myself from further hearing the proceedings. That application was refused. The circumstances giving rise to the application and my reasons for refusal will be dealt with later in these Reasons for Judgment.
At the conclusion of the hearing I made orders in respect of all those issues, save for the application for disclosure. These are my Reasons for the orders I made (together with the determination of the question of disclosure).
Background
The husband is 53 and the wife is 35. They were married in September 1999 and did not cohabit before that time. According to the wife the parties separated on 23 June 2006 and according to the husband separation occurred on or about 29 July 2006. It is not necessary in the circumstances of the present applications to determine which of these dates is correct.
The husband had been previously married and has three children who, at the time of the hearing were aged 11, 17 and 19 and who live with his former wife, Ms M.
The husband and the wife in these proceedings have two children. The son is six and the daughter has just turned four. The children live predominantly with the wife and spend time with the husband each weekend between 9am Saturday and 12 noon on Sunday, pursuant to interim orders made by Young J on 9 October 2006.
The proceedings commenced when the husband filed applications by way of Forms 1 and 2 on 18 September 2006. In broad terms he sought the delivery up of certain personal property, and pending delivery of the same, injunctive relief restraining the wife personally and by others, from selling, disposing, encumbering or otherwise dealing with the property. He also sought that the children live with and spend time with their parents on a shared equal-time basis or for times or periods to be agreed between the parties or alternatively as might be determined by the Court. He swore an affidavit in support of that application which was also filed on 18 September 2006. He did not file a Financial Statement. It was later explained to me that this was because the orders he sought were not orders seeking alterations of interests in property, rather were they orders seeking injunctive relief.
On 2 October 2006 the wife filed responses by way of Forms 1A and 2A. In her Form 1A Response the wife sought to have sole parental responsibility for both children, and further that the children live with her. It was sought that the time “that the husband spends with the children (to) be as agreed with the wife” and that the husband be in substantial attendance during such periods. The wife also sought orders relating to alteration of interests in property, together with periodic and/or capitalised spousal maintenance. The precise orders sought were not given. This is not a criticism of the wife. She sought to be excused from further particularising the orders which she sought until “after the husband discloses his financial position and until there is discovery, inspection of documents and valuation of assets”.
In her Form 2A Response the wife also sought orders in relation to the children which were almost identical to the orders which I have already detailed.
In addition, the wife sought the following orders:
“…
5.The husband pay or cause to be paid for the spousal maintenance of the wife the following amounts:
a)The mortgage payments rates, taxes, insurance and all other expenses of the property situated at and known as [B] in the State of Victoria;
b)The lease payments for the motor vehicle of the wife;
c)The utility bills including landline and mobile phones, internet, water, gas and electricity for the property situated at and known as [B] in the State of Victoria;
d)The educational expenses of the children including all tuition, kindergarten and school fees and books;
e)The health insurance expenses of the wife and the children and all medical and dental expenses thereof;
f)The sum of $1,800 per week net of taxation to a bank account nominated by the Wife.
6.That until further order the husband be restrained by way of injunction and an injunction be granted restraining the husband from alienating, disposing, transferring, selling or encumbering the following properties:
a)[B];
b)[C];
c)Lot […] of Plan […] and
d)Lot […] of Plan […].
7.That until further order, the Husband be restrained by way of injunction and that an injunction be granted enjoining the husband without the written permission of the wife from:
a)Resigning from any office held by the husband and any directorships held by the husband;
b)Causing or permitting any shares to be issued;
c)Causing or permitting any further (sic) alternative office bearers to be appointed;
d)Resigning from any powers of appointment in (sic) which the husband has under the trust deed of a trust;
e)Causing or permitting the husband or the wife from being removed as a beneficiary of a trust;
f)Causing or permitting any existing trustee or appointer (sic) to be removed from a trust;
g)Causing or permitting a further trustee or appointer (sic) to be appointed as a further or alternative trustee or appointer (sic);
h)Causing or permitting any real property that is owned (sic) from being disposed of, transferred, sold, encumbered or otherwise dealt with in relation to the following companies, trusts and entities;
a)[A] Pty Ltd;
b)[R] Pty Ltd;
c)[D1] Pty Ltd;
d)[D2] Pty Ltd;
e)[V] Pty Ltd;
f)[E] Pty Ltd;
g)[J] Pty Ltd;
h)M Pty Ltd;
i)[N] Pty Ltd;
j)[X] Pty Ltd;
k)[D3] Pty Ltd;
l)[K] Pty Ltd;
m)[L] (sic) Pty Ltd;
n)[S] Pty Ltd;
o)[U] Pty. Ltd.;
p)[T] Pty Ltd;
q)[Z] Pty Ltd and
r)[W] Pty Ltd.
8.That the wife have, to the exclusion of the husband, the sole use and occupation of the property situated at and known as [B], in the State of Victoria.
9.That the husband be restrained by an injunction and an injunction be granted restraining him from attending the property situated at and known as [B] in the State of Victoria.
10.That the husband deliver to the wife the following property of the marriage:
a)the piano for the son to play;
b)trampoline for the children;
c)the prams;
d)the Manchester;
e)the children’s toys
11.That the husband be restrained by way of an injunction from denigrating the wife in the presence of the children or permitting the children to remain in the presence of or the hearing of any person denigrating the wife.
12.That the husband be restrained from harassing, molesting, threatening and intimidating the wife and that the husband be restrained from causing another person to engage in conduct be restrained or prohibited by this order.
13.That within 14 days, the husband provide disclosure of the following documents for the last three most recent financial years:
a)Personal taxation returns and assessments;
b)Bank records for the period commencing 1 January 2003 to date;
c)Business activity statements;
d)Any other documents relevant for determining the income, expenses, assets, liabilities and financial resources of the husband;
e)Documents about any superannuation interest including
i)Completed superannuation form for the superannuation interest;
ii)If there is a self managed fund:
a)a copy of the trust deed;
b)Three most (sic) financial statements for the fund;
c)The value of the superannuation interest including the basis on which the value has been calculated and any documents calculating the value.
f)The financial statements, books of account, company register and share transfer, income tax returns, business activity statements, bank statements, contracts of sale, settlement statement, employee and wage records, and any other documents relevant for determining the income, expenses, assets and liabilities for the following companies:
a)[A] Pty Ltd;
b)[R] Pty Ltd;
c)[D1] Pty Ltd;
d)[D2] Pty Ltd;
e)[V] Pty Ltd;
f)[E] Pty Ltd;
g)[J] Pty Ltd;
h)M Pty Ltd;
i)[N] Pty Ltd;
j)[X] Pty Ltd;
k)[D3] Pty Ltd;
l)[K] Pty Ltd;
m)[L] (sic) Pty Ltd;
n)[S] Pty Ltd;
o)[U] Pty. Ltd.;
p)[T] Pty Ltd;
q)[Z] Pty Ltd and
r)[W] Pty Ltd.
14.Details of any entities that (sic) the husband and wife may have an interest including trusts, companies, and partnerships and copies of their financial documents, company returns and constitution with any amendments thereto.
15.That the husband permit the wife and her legal representatives to inspect all discovered documents within a further 7 days after discovery.
16.That the husband file and serve a form 13 financial statement within 7 days.
17.That an independent psychologist be appointed for the preparation of a Family Report.
18.The wife have leave to sell the Rolex watch and a Raymond Weil watch in her possession.
19.That the application of the husband be dismissed.”
In support of her application the wife filed a Form 13 Financial Statement and affidavit on 2 October 2006. She filed a further affidavit on 18 October 1006, the day prior to the first return of the competing applications. On 19 October 2006 the matter came before Young J, whose Reasons for Judgment are on the Court file.
Young J adjourned all applications to the Judicial Duty List on 9 November 2006. Amongst other orders, he required the husband to make file and serve a Form 13 Financial Statement within seven days. Interim orders were made in relation to the time the children should spend with their father. It is clear from par 19 of Young J’s Reasons for Judgment that the arrangements he prescribed were intended to apply until the adjourned hearing date.
Further interim orders were made by his Honour requiring the husband to pay or cause to be paid, mortgages and other outgoings and utilities and other expenses in relation to the property in which the wife and children live; lease payments for the wife’s motor vehicle; education expenses for the children, including tuition, kindergarten and school fees and books; health insurance expenses of the wife and children and all medical and dental expenses; a dental account for the son in the sum of $1,250, “the timetable for such payment” to be adjourned to the adjourned hearing date; and the sum of $3,500 to the wife’s nominated bank account or otherwise by cheque to her on or before 4pm Tuesday, 24 October 2006.
In par 27 of his Reasons for Judgment Young J said:
“I do not apportion that as maintenance. It is not to be taken and divided by the number of days or weeks between now and the adjourned hearing date. I am not calculating any weekly maintenance sum …”
It can be seen from Young J’s Reasons for Judgment that an affidavit had been sworn by the husband, however, objection was taken to it being filed on the day that the matter was before his Honour. In the event, his Honour did not permit the affidavit to be filed and it was subsequently filed in accordance with his orders on the following day.
It also appears that there was a dispute as to when the wife’s documents had been served on the husband. Young J was not able to determine that dispute and nor am I. His Honour did note however whether there had been a delay of some or many days in service of the documents, it should not have happened. He also noted that it had led to inadequacies in preparation and filing of other documents.
In dealing with the husband’s Form 13 Financial Statement his Honour was informed that this document was in preparation but had not been filed. He made, as can be seen, a specific order that it be filed within seven days. He was at pains to point out that he expected the document to be complete and comprehensive. He noted that it was to cover all of the corporate entities, financial accounts and statements and give a totally, fair, complete and fully informed financial position of the husband and all related entities.
His Honour heard submissions in relation to the property at C (“the [C] property”). He noted his understanding that there was an equity of $100,000 or thereabouts in that property, explaining that this was not a finding but a matter of information provided by the husband’s counsel. He also observed that the property was for sale by private treaty with an established firm of Real Estate Agents. He recorded that the wife was agreeable for the property sale to proceed “provided that it (was) totally at arm’s length and on a fair and proper sales process with all of the nett available proceeds of sale held in an interest-bearing account upon settlement.” His Honour declined to make any orders in respect of that property, noting that he did not have the time available to do so and more particularly did not know the detail of the mortgages or collateral security secured against the property.
On 26 October 2006 the husband filed an affidavit setting out details of directorships, shareholdings and interests in trusts (inter alia). A significant number of documents were exhibited to that affidavit and the index describes the nature of the various exhibits, which is in part, at least, cross-referenced to the supplementary affidavit to which I have just referred.
On 6 November 2006, the wife filed a further affidavit in response to the affidavits of the husband filed 20 October 2006 and 26 October 2006. In that affidavit (inter alia) the wife alleged that the husband had failed to comply with his obligations pursuant to the orders made by Young J on 19 October 2006 relating to the matters to be contained in his Form 13 Financial Statement.
As I have already recorded, the proceedings came before Mushin J on 9 November 2006 and orders were made on that day. The Court file does not include a transcript of the proceedings before his Honour nor Reasons for Judgment for the making of those orders. There is however on the Court file a document headed “Draft Minutes of Proposed Orders Submitted by the Husband” which appears to have formed the basis for some, at least, of his Honour’s orders.
Mushin J made the following orders:
“1. That within 14 days the husband file and serve:
(a) An Amended Form 13 Financial Statement;
(b) Any Affidavits including any amended affidavit.
2.That until the further hearing of the wife’s spousal maintenance application the husband pay or cause to be paid the following:
(a)Registration and reasonable costs of servicing for the said vehicle;
(b)Reasonable cost of sporting activities for the children;
(c)A lump sum of $3,500 to be paid into a bank account nominated by the wife. The payment to be made on 23 November 2006. The payment is made on the same basis and in accord with the extempore reasons for judgment of Justice Young of 19 October 2006;
(d)Otherwise paragraph 8 of the orders made on 19 October 2006 remain in full force and effect.
3.That the wife cause the accounts for the items referred to in paragraph 2 to be sent directly to the husband’s business address at [Y] and the husband pay the accounts in a timely manner and forthwith give the wife notice of payment;
4.The husband undertakes that until the hearing of the wife’s application for injunctive relief he will give the wife’s solicitor Isaac Brott & Co, 7 days prior notice in writing of any intention to do any of the following:
(a)Resign from any office held by him and any directorships held by him;
(b)Causing or permitting any shares to be issued;
(c)Causing or permitting any further alternative office bearers to be appointed;
(d)Resigning from any powers of appointment in which the husband has under a trust deed of a trust;
(e)Causing or permitting the husband or wife to be removed as a beneficiary of a trust;
(f)Causing or permitting any existing trustee or appointor to be removed from a trust;
(g)Causing or permitting a further trustee or appointor to be appointed as a further or alternative trustee or appointor;
(h)Causing or permitting any real property that is owned by him from being disposed of, transferred, sold, encumbered or otherwise dealt with;
(i)The settlement of the sale of [C].
5.That Justice Carter be appointed as Judge Manager of these proceedings.
6.That all applications be referred to Justice Carter for the holding of a directions hearing as soon as practicable.
7.That all questions of costs be reserved.
8.Reserve general liberty to apply.
9.Certify for counsel.”
I have already referred to some of the matters which followed the orders which were made by Mushin J and I dealt in some detail with these events in my Reasons for Judgment given 8 December 2006, and in particular, in pars 3, 4, 5, 6, 10, 11, 12 and 13.
The husband’s written submissions were filed on 12 December 2006 and I was provided with a copy on the same day, this copy having been forwarded to my Associate by email.
I also received on 12 December 2006 a copy of the wife’s submissions, the same having been sent to my Associate by email. On 14 December 2006 I received a copy of the wife’s submissions in reply to the husband’s submissions. The original documents had not been filed as at the date of the hearing, and the wife’s practitioners were subsequently requested to rectify this.
The parties’ memoranda or Case Summaries identified the relevant applications and affidavits then applicable and in the written submissions filed on behalf of the husband, the relevant Court documents from the husband’s perspective were also detailed. Given the circumstances of this case and the submissions that were made during the hearing, I have read all the affidavits filed on behalf of both parties, but, as previously recorded I did not permit reliance to be placed on the affidavit of the husband’s solicitor filed 12 December 2006.
Both parties relied on their written submissions which were amplified and in some occasions clarified. Those submissions will remain on the file as part of the Court record and will be referred to where necessary.
Finally, it should be noted that a number of documents were tendered and received in evidence as exhibits.
Applications in a Case
The Family Law Rules provide that a party filing a Form 2 Application or Form 2A Response must file an affidavit setting out the facts relied upon in support of the orders sought.
Section 75 of the Evidence Act 1995 (Cth) enables the Court to admit a statement, even if it is hearsay, provided that the deponent makes the statement on the basis of information and belief and gives the source and ground of the information.
Rule 5.10 limits the hearing of an interim procedural application to no longer than two hours and allows cross-examination only in exceptional circumstances.
In this Registry arrangements are sometimes made for cases likely to take more than two hours to be heard in discrete lists on certain days.
It is of course always open to a Judge or other judicial officer to dispense with compliance with the Rules.
In the present case, in the exercise of my discretion, I determined it was appropriate to permit cross-examination in respect of the spousal maintenance application which was transferred to the Senior Registrar. Otherwise the applications were all dealt with “on the papers”.
Dealing with Applications “On the Papers”
Where affidavits contain irreconcilable and disputed matters of fact, a final determination of those disputed facts usually cannot, and should not, be made until after viva voce evidence and, in particular, until after cross-examination.
Interim parenting proceedings provide an example of this procedure. In Cowling (1998) FLC ¶ 92-801, the Full Court provided assistance to trial judges in dealing with interim applications, although this case must now be looked at in light of the amendments to the Family Law Act 1975 (“the Act”) following the commencement of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) and the recent decision of the Full Court in Goode (2006) FamCA 1346.
Proceedings under the Hague Convention are also, generally speaking, summary in nature and as a general rule cross-examination of deponents is not allowed.
In Panayotides (1997) FLC ¶ 92-733 the Full Court referred, without criticism, to the approach taken by the trial judge (Jordan J).
Jordan J had said:
“The first thing to observe is that there is much conflict in the evidence. These are summary proceedings and issues must be determined on the papers. This often presents the Court with difficulties. It would generally be inappropriate to absolutely reject the sworn testimony of a deponent (see, Re F (1992) 1 FLR 548). As was submitted by counsel for the Central Authority I simply must do the best I can. I look to the versions of each of the parties. I find the common ground, and I note the areas of conflict. I can look to the inherent probability. Of course, when one is talking about the intent of parties, where this is a matter of some conjecture, one looks to the conduct of the parties, and any documentary of corroborative evidence which may help to determine that issue. …”
Jordan J’s reference to Re F is a reference to the judgment of Butler-Sloss LJ who had said:
“If a judge is faced with irreconcilable affidavit evidence and no oral evidence is available or, as in this case, there was no application to call it, how does the judge resolve the disputed evidence? It may turn out not to be crucial to the decision, thus not requiring a determination. If the issue has to be faced on disputed non-oral evidence, the judge has to look to see if there is independent extraneous evidence in support of one side. That evidence has, in my judgment, to be compelling before the judge is entitled to reject the sworn testimony of a deponent. Alternatively, the evidence contained within the affidavit may in itself be inherently improbable and therefore so unreliable that the judge is entitled to reject it. If, however, there are no grounds for rejecting the written evidence on either side, the applicant will have failed to establish his case.”
In the present case an interim determination of a number of issues needed to be made in circumstances where I did not have the opportunity of seeing and hearing the witnesses giving their evidence and being cross-examined. Accordingly, credibility cannot be assessed in the same manner which will occur at trial.
Even though Panayotides and Re F dealt with disputed affidavit evidence in Convention cases, the approach taken by Jordan J and Butler-Sloss LJ provide guidance upon which I can draw in the present case.
To my mind it is not sufficient for a deponent or counsel merely to say, for example, that he or she disagrees with, or disputes, particular evidence. The very least one would expect would be evidence of the reason or basis for the disagreement. In other words, there needs to be an evidentiary foundation for it, or at least sufficient evidence to support an inference, otherwise the statement will be mere assertion. Alternatively, the deponent will not have met the forensic onus of establishing his or her case or refuting that of the other party.
It is axiomatic that the Court can only consider the evidence that the parties choose to put before the Court.
It should be recorded at the outset that the wife has given very little evidence in her affidavits about a number of important matters.
Some of her affidavits respond to affidavits filed by the husband, and other witnesses and the wife has prefaced her evidence by saying:
“… I do not intend to address every matter deposed to by the husband and a failure to address a matter should not be taken to mean that I either admit or impliedly acquiesce to the truth of it.”
In some of her affidavits the wife specifically denies matters alleged in affidavits to which she is responding. However, in many instances she did not address, deny or contradict affidavit evidence. In those instances unless, for example, inferences can be drawn from the evidence, in my view, the evidence is not “irreconcilable” or “disputed”.
Self-evidently, submissions do not constitute evidence.
Children’s Issues
The Family Report
Both parties had sought an order that a Family Report be prepared, but they were unable to agree as to who should be appointed to prepare the report.
It is clear on the evidence that there had been discussion between the parties’ respective solicitors. Exhibit “H2” comprised a letter dated 4 December 2006 from the husband’s solicitors to the wife’s solicitors, which had apparently been sent by facsimile as well as a response to that letter from the wife’s solicitors dated 5 December 2006, again apparently sent by facsimile.
In the letter from the husband’s solicitor reference is made to an earlier letter of 1 December 2006 which was not before me. The letter goes on to note that enquiries were being made of a Ms B, Family Counsellor, as to available single and joint appointments before Christmas for the husband and the wife and the children. A schedule of fees and Ms B’s curriculum vitae had been exhibited to the husband’s affidavit sworn 1 December 2006 filed 5 December 2006 and reference was made in the letter from the husband’s solicitors to appointments which had been suggested for the parties and their children, as well as what was said to be the comparatively modest fees charged by Ms B. A request was made that instructions be sought from the wife as to the suitability of the proposed appointments, which if suitable, would then be confirmed with Ms B.
The solicitors for the wife responded, as I have already recorded. Omitting formal parts the letter reads:
“By way of reply note:
1.We do not accept your endeavour to unilaterally appoint [Ms B] to conduct the Family Report;
2.We have repetitively suggested that you provide three (x3) names and our client will choose one of those three (3).
We await your adoption of the above procedure which is fair and equitable for all.”
In the affidavit which was filed 5 December 2006, the husband referred to the question of the Family Report, saying that Ms B was available to prepare the Report. As earlier noted he annexed a copy of her curriculum vitae and scale of fees (see Annexure “GK1”).
The wife responded in par 10 of her affidavit filed 12 December 2006. The effect of her evidence was that there was no urgency about obtaining a Report; she believed she should have input into choosing the reporter; neither she nor her solicitor had any knowledge of Ms B; and it was suggested that the husband provide a list of three counsellors to enable her to have an input into the choice of the counsellor or that alternatively, Mr P be appointed. The wife did not provide any evidence as to Mr P’s qualifications and experience; his availability to prepare a Report; nor the fees that would be charged.
During preliminary discussions Mr Levine repeated that there was no urgency in relation to the preparation of the Report. I responded that in my view, whilst the matter was not urgent, the question of the time that the children should spend with their father was in dispute, not just during the Christmas period, but on an overall basis. The matter was, as I said, one which needed to be addressed reasonably quickly. I pointed out that it was clear from Young J’s orders dealing with the question of the amount of time that the children should spend with their father, that these orders were intended to operate only until the adjourned hearing date which was then to be 9 November 2006. It will be recalled that by the time the matter came before me a further month had passed. The husband’s substantive application was to increase the time that he spent with the children, however, the wife’s response in her affidavit filed 12 December 2006 was to the effect that this time should be reduced.
Further, as Mr Thompson pointed out in his written submissions, there were many factual disputes between the husband and the wife. Some of those matters were set out in par 5 of his submissions. The dispute between the parties is also evident from the matters raised in the written submissions filed on behalf of the wife in par 10.
It was clear to me that the Court would be assisted by the preparation of a Family Report, particularly as to the disputed nature of the relationship between the husband and the children, and accordingly steps should be taken for the preparation of such a report in a timely fashion.
The parties were given the opportunity to attempt to resolve the question of who should be appointed to prepare the report but were not able to do so. Given my view that the appointment needed to be made in a timely manner, the proposal of the wife for the husband to provide a list of three persons from whom she could select one to prepare the report, was not feasible and the issue needed to be determined on the evidence.
It is convenient to note here that towards the end of par 2 of the written submissions dated 14 December 2006, Mr Levine wrote:
“… She does oppose the unilateral attempt by the husband to select a Family Report writer that he believes will be more favourable to him. On 9 November 2006 the Honourable Justice Mushin rejected the submissions of counsel for the husband for an order that [Ms B] prepare a Family Report on the basis that the wife should have some input in the selection of the Family Report writer.”
I note that the alleged motivation for the appointment attributed to the husband was not the subject of any evidence. Further during the course of his oral submissions, Mr Levine told me that the wife was not “comfortable” with Ms B, explaining that she knew that there had been extensive correspondence and discussions between the husband’s solicitors and Ms B.
I enquired of Mr Levine:
“Are you suggesting that somebody has – to use the vernacular – attempted to nobble her?”
I also note that Mr Levine responded:
“No, I wouldn’t suggest that …”
I also had no evidence as to what was said by Mushin J in respect of the desirability of the wife having input into the selection of a counsellor. This aspect was not referred to in the wife’s affidavit or in the correspondence to which I was referred. I did not have a transcript of the proceedings before Mushin J, but in any event for the reasons already stated the decision needed to be made.
Mr Levine continued to oppose the appointment of Ms B. I enquired why the wife was not “comfortable” with Ms B pointing out to Mr Levine that she was the only person about whom I had any evidence. I asked him whether the wife challenged Ms B’s qualifications and I had to repeat this question several times before I got a direct response. Mr Levine told me that the wife did not challenge Ms B’s qualifications and went on to say that the wife challenged Ms B’s expertise. This was on the basis that her legal practitioners had no knowledge of Ms B. This was certainly a matter to which the wife had deposed in her affidavit filed 12 December 2006. Mr Levine went to say in his oral submissions that Mushin J had said, when the proceedings were before him, that he too had no knowledge of Ms B. Again, no reference to this was made in the wife’s affidavit. There was no transcript of the events of that day. Whilst I have no reason to doubt what Mr Levine told me, again there was no evidence that this had influenced the wife in any way. In any event, in my view, far more than this would be needed before the expertise of a professional witness could be successfully challenged.
It was noted at a relatively early stage of these proceedings that the only evidence I had as to a counsellor was that relating to Ms B. Mr Levine submitted to me that I could decide who should be appointed, given that I had experience of a number of counsellors in this Court. As I said to Mr Levine at the time, I did not know however what the fees might be, nor was I aware of what their availability was. Mr P, as seen, had been suggested by the wife in her affidavit as being an appropriate person to be appointed. Whilst I have had experience of Mr P in this Court, and some understanding as a result of the fees he charged from time to time, I certainly had no information or evidence as to his fees or availability. He had been the only person suggested by the wife at that stage, however during the course of the morning, and whilst making submissions about other issues, Mr Levine told me that he had received instructions in relation to three counsellors. One was Mr P and Mr Levine told me that his fees would be approximately $2,500 and further that an appointment was available on 14 March 2007, some three months after this hearing. The next person Mr Levine mentioned was one Mr H. I told Mr Levine that I had not heard of Mr H. Mr Levine told me that Mr H was a Family Report writer. When I asked what Mr H’s qualifications were, Mr Levine told me that Mr H worked at the offices of Mr P. When I pointed out that this did not provide even information (let alone evidence) about his qualifications, Mr Levine responded:
“We’ll find out, your Honour. He is a person who works in the offices of [Mr P]. He is put forward to present …”
Again, I attempted to have Mr Levine understand that this did not provide information about Mr H’s qualifications, giving an example in an attempt to demonstrate this point.
Mr Levine told me that Mr H’s costs would be approximately $2,500 and that he would be available on 22 January 2007, so that only a short delay would be necessary.
The other person named by Mr Levine was one Mr F, who was described as a clinical psychologist. Mr Levine told me that Mr F’s fees would be $1500 and that he would be available in the week after the hearing. I pointed out that I did not know what Mr F’s experience was, to which Mr Levine responded:
“We don’t have his detailed resume here, your Honour.”
I attempted to make it clear to Mr Levine that I was not talking about a detailed resume and that I had not even any basic information as to his experience, whether he had worked in the family law area or anything of that nature. I pointed out that I had heard of Mr P because he appeared in the Family Court and as a consequence I knew what his qualifications were. I repeated that I did not know what the qualifications or experience of the other two persons were. I repeated to Mr Levine that what he was telling me was information, based on his instructions, but not evidence. Mr Levine conceded that this was correct but repeated that I should not accede to the application to appoint Ms B.
Quite some time later, and presumably after further enquiries had been made, Mr Levine was able to inform me of his instructions in relation to Mr I’s qualifications and experience and the time it would take him to prepare a report. Similar information was provided as to how long Mr P would take to prepare his report. Mr Levine also provided information based on his instructions as to Mr F’s qualifications. Later Mr Levine put forward the name of another person willing to prepare a Family Report, providing details of her fees, qualifications and experience.
Towards the end of the hearing I summarised the situation by pointing out that I knew from experience in the Court about Mr P and Ms B. Further, that Ms B was the only person about whom I had evidence. I knew nothing, other than what I had been told from the Bar table about any other proposed counsellors. I suggested that it appeared to my mind that realistically I would have to choose between Ms B and Mr P.
Mr Thompson confirmed that this was acceptable, however, Mr Levine did not agree. His submission was that I “shouldn’t even entertain Ms B. It is done in a situation where it is to be imposed upon the wife, the wife has sought at all times to be reasonable, and to have three names, and to have some input into the decision. She is entitled to some input.”
Mr Levine subsequently told me that I had some experience of other counsellors as well as those who had been discussed. I pointed out that none of these had been mentioned, to which Mr Levine responded:
“We are quite content for your Honour to select one that your Honour has experience of.”
That choice appeared to me, at best, illogical, given that if I chose a counsellor of whom I had experience, neither the wife nor the husband would be able to have any “input” into the selection process.
Mr Thompson’s final submission on this point was that the matter needed to be decided on the evidence and the evidence which was before the Court was that which had been put forward about Ms B. The evidence about Mr P was only that of his name. Mr Thompson accepted his qualifications however pointed out that he had no knowledge of his fees and the Court had no evidence about it. The other matter adverted to by Mr Thompson was that nothing could be done before March 2007.
I accepted Mr Thompson’s submission that the matter needed to be decided on the evidence and that the only evidence before the Court was that put forward on behalf of the husband. Another factor was what appeared to be the delay which would be occasioned if Mr P were to be appointed, albeit that that was not a matter of evidence.
In those circumstances I appointed Ms B to prepare the report.
Arrangements for the Children during the Long Summer Vacation
Both parties agreed that the children should spend some time with the husband during the long summer vacation, however, disagreed as to how this should be apportioned. The husband sought to have the children from 22 – 28 December 2006, but on the basis that Christmas Day would be shared, with the children being with the wife from 9:00am Christmas Day to 3:00pm on that day. He also sought that the children should be with him from 6 – 12 January 2007. It was his evidence that he would be spending time with the three children of his earlier marriage. In his affidavit filed 5 December 2006 he expressed his wish that the children from both his marriages should grow up loving and caring for each other.
For her part, in her affidavit filed 12 December 2006, the wife proposed that the children should be with their father from 4:00pm to 8:00pm on Christmas Day. She further deposed that she did not object to the husband having some additional, but limited holiday contact with the children, from 28 December 2006 to 6 January 2007. She expressed her belief that the husband would be on holidays during this period, and noted that it would be beneficial for the children to have a “proper holiday”. It was her case that an order should be made that the husband spend this period of time with the children and that the children should accompany him on his holidays. This would enable the children “hopefully (to) spend some quality time with the husband.”
In her affidavit the wife went on to allege that the children have had a poor relationship with the husband and that it was her belief that it was not in their best interests “to expose them to a dramatic and increased period of time with the husband”. Whilst she deposed that the children were “gradually becoming accustomed to spending some time with the husband”, she went on to say that it was apparent to her that the children were not stimulated nor did they truly enjoy the time that they spent with the husband.
It was agreed as between the parties that the order for weekend contact would be suspended for two periods during the long summer vacation to enable the wife to have the opportunity, should she so desire, to go away on holidays with the children.
The foregoing matters summarise the evidence of, and concessions made by, the parties. The written submissions also, and relatively briefly, dealt with this issue.
When he spoke to his submissions, Mr Thompson said:
“The best submission I can put forward in the husband’s favour for those proposals on the evidence is that the wife does agree that the husband should have some holiday times. That seems to be an acceptance of his capacity to look after the children and that they would benefit from it.”
I agree.
Mr Levine expanded upon his written submissions when he spoke to them highlighting that the children had not spent a great deal of time with their father. He conceded that I could not determine the reasons for this at this stage of the proceedings given the parties’ respective conflicting evidence. He went on to say that the wife’s concern was to ensure that there was “substantial attendance” during the period of time in question, noting that the husband intended that his three older children would also be present during the relevant periods. It was submitted that it was the wife’s concern and that it was preferable that the periods should be at a time when the husband could give all his attention to the parties’ children, rather than have it “diverted” by looking after the other children. I note that the husband had deposed in his affidavit that these children were aged 11, 17 and 19.
I enquired of Mr Levine as to whether I would not have to balance the benefit to the children of having undivided time with their father against the benefit to the children of spending time with their half-siblings. Mr Levine conceded that this could be taken into account but reminded me that there would be other times at weekends during the holidays in which this could occur.
Mr Levine further submitted that the arrangements put forward by the husband seemed to be focussed more around the husband’s convenience than what was best for the children, saying that the husband was seeking “to change the holiday contact in order to accommodate himself and his desire to have interstate holidays.” I did not quite understand how Mr Levine was putting this, and upon my enquiry Mr Levine reminded me that the wife had expressed in her affidavit the view that she was “aware” that he was going interstate in the period from the 28th or 29th December to 6 January. In fact, the wife had not said that. She had said that she believed that the husband would be going on holidays in that period but made no mention of those holidays being taken interstate. Mr Levine went on to say that:
“It seems to be that there is a Flight Centre booking for the husband for an amount of $1,550.”
Mr Levine acknowledged that this matter was not contained in the wife’s affidavit. There was then some further discussion, after which I asked Mr Levine effectively what would follow, if it were assumed for the moment that the husband did have arrangements to go away for some period of time. Mr Levine responded by saying that the wife’s view would be in that case, that the children should accompany the husband. He referred to what the wife had said in her affidavit as to her belief that it would be for the benefit of the children to accompany the husband on holidays. His alternative submission was that the children’s “contact” for the holiday period was being arranged around the husband’s holiday commitments, which did not demonstrate a great commitment to the children by the husband.
The following exchange then took place:
“Her Honour: No, but it does perhaps reflect the realities of life of people who are in employment.
Mr Levine: In employment from 29 December to 5 January? I would have thought that during that period most people would be on holidays.
Her Honour: What I’m, attempt (sic) to make – for what it is worth – is that people make arrangements for holidays if they are working. It’s not as if they can make arrangements to go away at any time like those who are not in the paid workforce can. I don’t see anything sinister, unusual or even necessarily wrong about somebody arranging holidays during holiday periods and having to fit things in, but anyway, you go on.
Mr Levine: It’s my submission that the children’s best interests should come first and it is quite clear that throughout the evidence the husband has always placed his own interests first.
Her Honour: That is not a conclusion which I can reach at this stage of the proceedings.”
Whilst I agree with Mr Thompson’s submission that the decision I had to make was essentially a pragmatic one, nonetheless I must regard the best interests of these children as the paramount consideration. I have regard to the Objects of Part VII and the underlying principles. Given the truncated nature of this hearing and the limited nature of the issue which I am called upon to decide, I do not propose to discuss the Objects and principles in any detail, save to note that s 60B(2)(b) speaks of the rights of children to spend time on a regular basis with, and communicate on a regular basis with, not just their parents but other people who are significant to their care, welfare and development such as grandparents and other relatives. To my mind, the husband’s older children fall within this class.
I do not propose to apply the presumption of equal shared parental responsibility referred to in s 61DA. I note that pursuant to s 61DA(3), the presumption applies when the Court is making an interim order, unless the Court considers it would not be appropriate in the circumstances. This was such a case in my view, given the limited nature of the issue which I was called upon to decide and the stage that these proceedings had reached.
In his written submissions Mr Thompson made reference to the provisions of s 60CC(2) and (3) of the Act in the context of the husband’s proposals but did not expand upon that reference.
I have considered the matters set out in s 60CC, including the primary and additional considerations. However, they have little application to the decision which I am called to make on this limited issue.
Whilst I acknowledge that there are likely to be periods of time when all of the husband’s children could be together at weekends during the long summer vacation, which would be to the benefit of the children the subject of the present proceedings, it is also in my view, to the benefit of these children to have longer periods of time with their half siblings. It is safe to infer from the wife’s concession that the children should have some holiday time with their father, that she concedes the husband’s capacity to look after the children (at least for the period of time mentioned) and further that the children would benefit from being with their father. I have taken into account the mother’s preference for the children to have time with their father uninterrupted by his caring for the older children. Given the ages of those children it is improbable in my view, that their needs would intrude to any large extent, but in any event, that consideration is outweighed in my view, by the benefits to be gained by the children of having the opportunity to spend during the holidays, a longer period of time with their half siblings than is normally open to them.
I did not accede to the entirety of the proposals put forward by the husband. It was better for the children, in my view, to interrupt the first period of time which the husband sought to spend with them by a slightly longer period of time to be spent with the wife, namely from Christmas Eve until 3:00pm on Christmas Day. This had the effect of dividing and marginally reducing the time that the children would be with their father for the first period but also gave to the children a more meaningful and to my mind, more satisfactory period of time with their mother, leading up to and for part of Christmas Day.
There was no evidence from which I could determine or safely infer the husband’s motivation in seeking the second period of time, namely from 6 – 12 January 2007, rather than any other period of time. For my part I formed the view that the children should have about a week with their mother between the two other periods when they would be with their father. This was because of their age and with particular reference to the daughter, and also on the basis that it does not appear to me on the evidence that the children have spent periods of a week or thereabouts with their father since their parents separated. In those circumstances I regarded the week that the children would spend with their mother as something of a “buffer” and in their best interests.
The Piano
In the wife’s Form 2A filed 2 October 2006 she sought an order that the husband deliver to her certain “property of the marriage” including what was described as “the piano for [the son] to play”. She made reference to this in par 35 of the affidavit that was filed on her behalf on the same day saying that this was one of a number of items of property that she would like to have returned to her. The piano was identified as Item (p) in the list of chattels referred to by the wife in this paragraph.
The husband responded to this affidavit in his own affidavit filed 20 October 2006. He said in par 35 of that affidavit that (inter alia) “Item (P) was owned by his mother.” The context of this paragraph of the husband’s affidavit makes it clear that he is responding to the wife’s request for the piano.
In turn, the wife caused an affidavit to be filed on 6 November 2006 responding to the husband’s affidavit. She did not deny the husband’s evidence as to the ownership of the piano.
As I have already noted the parties were able to agree on the return of certain chattels to the wife. During his viva voce submissions Mr Thompson reiterated that it was the husband’s case that the piano belonged to his mother.
When Mr Levine came to address this matter in his viva voce submissions I reminded him that Mr Thompson had said the piano was not owned by the husband. Mr Levine responded:
“But he has never deposed to that, and it is our – well, it is our submission that in fact he paid for the piano and the wife is in a position to know he actually paid for the piano, so she disputes that. It was never put in an affidavit from the husband anything to the contrary.”
As can be seen Mr Levine was clearly wrong in his submission that the husband had not deposed that he did not own the piano. Further, whilst I have no reason to disbelieve that Mr Levine accurately reported his instructions that the wife knew the husband had paid for the piano, she has put forward no evidence of this whatsoever.
Accordingly, given the present state of the evidence, no order was made for the return of the piano.
The Caveat over [C] (“the [C] Property”)
The wife’s solicitor lodged a caveat over this property on 13 October 2006. The wife was the caveator and she claimed an equitable estate or interest in fee simple, the grounds for her claim being said to be that the registered proprietor held the property “pursuant to a constructive trust or trusts” for her. (See Exhibit “H1”.) The husband is the sole registered proprietor of this property and he sought that the wife remove this caveat.
The matter had urgency given that the C property had been sold pursuant to a Contract Note dated 19 October 2006 and settlement was due to occur on 16 February 2007. It will be convenient to deal with the events surrounding the sale elsewhere in these Reasons for Judgment.
The C property secures an interest-only mortgage to Perpetual Trustees Victoria Limited. The loan was $1.184 million (see Annexure “GK5” to husband’s affidavit filed 5 December 2006). The husband’s evidence was that his mother, assisted him with the acquisition of C property, utilising a loan account which he has with N Pty Ltd. This matter will be referred to in more detail later.
In par 14 of the wife’s affidavit filed 12 December 2006, the wife deposed that she had no objection to removing her caveat “on the condition that the proceeds of sale, less the agent’s commission and other selling expenses of $38,000 and the mortgage to Perpetual Trustees Victoria of $1,725,000 (plus any early repayment fee) are deducted are (sic) place (sic) in my solicitor’s trust account. I do not accept the bona fides of the loan from the husband’s mother and I believe that it is a poorly disguised attempt to reduce the nett equity of the matrimonial asset.”
In his written submissions dated 14 December 2006, Mr Levine reiterated that the wife disputed the bona fides of the alleged loan between the husband and his mother, saying that it was “not at arms’ length” and was the subject of a dispute between the parties which could not be resolved without cross-examination and discovery. He further submitted that the “alleged loan should not be the subject of any orders for payment but should be placed in a solicitor’s trust account until payment.”
Whilst no specific order to this effect had been sought by the wife, it was to my mind appropriate to deal with it in the context of the injunctive relief sought by the wife and accordingly I will return to this in due course. I will restrict this part of my Reasons for Judgment to the question of whether or not the wife’s caveat should be removed.
As I have already recorded the wife claims in the caveat lodged over the C property that the husband holds the property pursuant to a constructive trust or trusts for her. That is not the basis of the wife’s claim in this Court nor does she plead or provide any evidence to support such a claim.
The wife’s substantive application in this Court is for an alteration of the parties’ interests in property pursuant to s 79 of the Family Law Act 1975 (“the Act”).
It has been held for many years now that a caveat does not lie to protect the possibility that an order may be made. In other words, the mere fact that a claim pursuant to s 79 of the Act is being pursued does not of itself provide a caveatable interest. (See Re Weeks’ Caveat (1971) QWN4; Van Dyke (1976) FLC ¶ 91-139; Ioppolo (1978) 4 FamLR 124; and the appeal in Ioppolo referred to in (1979) 5 FamLR note 27.
During the course of Mr Thompson’s submissions I informed him that, subject to anything raised by Mr Levine about the removal of the caveat itself, as distinct from what might happen to the proceeds of sale, I did not need to hear any submissions from him. I went on to explain briefly my reasons for that, to assist Mr Levine in understanding my thoughts at the time. Put shortly, it was my view that the wife did not have a caveatable interest. When Mr Levine addressed the question of the caveat he said that there was no objection to the caveat being removed and there were no submissions being made in that regard, however, continued to maintain that the removal should be on various conditions.
In those circumstances I granted the husband’s application that the wife should remove the caveat and made orders to that effect.
The C Property
It is common ground that the husband is a property developer. The wife referred to this in par 7 of her affidavit filed 2 October 2006 and went on to give a history of a number of his business dealings, in some of which she said she had participated. It is also common ground that settlement of the purchase of the C property was in or about December 2005.
The parties did not live there for very long and moved to live in the wife’s parents’ property very shortly thereafter. It is convenient to note here that it is also common ground that in or about January 2006 the husband rented and obtained an option to purchase a property at B (“the [B]) property”). The wife continues to live in the B property.
In par 13 of the wife’s affidavit filed 2 October 2006 she said that she was unaware of the total financial dealings of the husband. However, she went on to say that she was “aware that there are a large number of properties, shares and other assets that constitute the assets of the marriage.” She stated her belief that these assets included the B property and the C property (inter alia).
The husband responded to this in par 13 of his affidavit filed 20 October 2006. It was his evidence that the only properties which he personally owned were the B property and the C property. He went on to explain that the C property had been purchased as an investment and had been funded by a company N Pty Ltd as Trustee of the Y Trust. It was his evidence that the intention was to subdivide that property however an application to do this had been rejected by VCAT. As will be seen, he expanded upon this in a subsequent affidavit.
The husband’s evidence was that his mother had lent to him an amount of $598,979 (rounded). That sum comprised an initial advance for the deposit made on 14 August 2005, together with moneys paid at settlement of the purchase on 2 December 2005, which advances totalled $413,890 (rounded). There were further advances for the purpose of paying mortgage payments, costs associated with attempts to subdivide the property and other property expenses which totalled just over $185,000. The husband annexed to his affidavit filed 5 December 2006, a summary of moneys which had been advanced (see Annexure “GK6”) as well as a copy letter from the Real Estate Agents confirming that the deposit for the property was paid by N Pty Ltd (see Annexure “GK7”).
Annexure “GK8” to the husband’s affidavit was a copy of the loan agreement between his mother as lender, and himself as borrower. The loan agreement on its face specifies that the agreement was made on 15 March 2006 and that a total sum of $413,890.62 had been advanced. This sum was referred to as the “Principal Sum” and it was expressed to include, where the context admitted, the amount specified or so much of it as was from time to time outstanding, together with any additional moneys or advances which the lender from time to time paid or advanced to, or on behalf of the borrower, including but not limited to interest. The recitals also provided that the borrower had agreed to give certain securities to secure the payment of the principal sum and these were caveats on the C property and the B property.
The principal sum was due for repayment, together with any interest applied, by way of a lump sum payment on 1 February 2007 or relevantly to the present applications, from any sale of the property. Interest was payable on the principal sum, or any part which was outstanding, at the rate of seven per cent per annum, to be computed from the dates of the advances and to accrue and be payable on the due date, namely 1 February 2007.
The husband estimated that almost $599,000 would be payable to his mother from the proceeds of sale of the C property. When the other moneys payable at settlement were taken into account, a loss of approximately $96,000 would result from the sale of this property.
The husband’s mother caused a caveat to be lodged over the C property, which was registered on 19 October 2006, the date of her claim being 15 May 2006 (see Annexure “GK2” to the husband’s affidavit filed 5 December 2006). She also swore or affirmed an affidavit on 1 December 2006 which was filed on 4 December 2006. The husband’s mother briefly described the history of the family business in that affidavit. She deposed that over and above the husband’s salary and company benefits, payments were made to Ms M the husband’s former wife, the wife in these proceedings, and children’s expenses were also paid, all of which payments she approved “via the loan account in [N] Pty Ltd”. She also explained that payments additional to the husband’s salary and employment package, such as phone and car, were paid from her loan account in the Family Trust and that the family accountant recorded such payments. Further, payments for property such as the [C] property were made by way of loan and were required to be repaid upon sale or refinance of such property.
Mr C swore or affirmed an affidavit which was filed on 4 December 2006. Mr C is an accountant and I will refer to his affidavit in more detail subsequently. For present purposes it is sufficient to note that Mr C was instructed by the husband to review a number of documents including the loan made by his mother to the husband for the purchase of the C property. Mr C also deposed that the husband did not control any of the corporate entities in which he held an interest, and in respect of drawings for the loan account of N Pty Ltd, the husband did not control moneys withdrawn and his capacity to do so was dependent on the consent and authority of his mother.
Commencing at par 16 of his affidavit filed 5 December 2006, the husband expanded upon his evidence about the purchase of the C property. He reiterated that the reason for the purchase was for subdivision and resale. A Planning Application was made to the local council which was refused. The husband then applied for a review of the decision at VCAT and engaged witnesses to give evidence on his behalf. The application was contested and the hearing ran over three days. One of the objectors called evidence in opposition. In or about August 2006 VCAT handed down their decision refusing the review. Having obtained further legal advice about an appeal, the husband deposed that he had decided that it “was all becoming too expensive” and decided to sell the property. Real Estate Agents, were engaged and it would seem from Annexure “GK7” that these agents were engaged in late September or early October 2006. This Annexure also provided some corroboration for the husband’s evidence as to the purpose of the purchase of the property, together with his evidence as to the application for subdivision.
As I have already recorded it is clear from Young J’s Reasons for Judgment given 19 October 2006 that the matter of the sale of the C property was raised in the hearing before him. During the proceedings before me, Mr Levine told me without objection from Mr Thompson, that the wife had seen an advertising sign on the property and accordingly believed the property was for sale, however, she had not been informed of this by the husband. There is also a mention in par 14 of her affidavit filed 6 November 2006 about her belief that this property had been sold, given that there was a “sold sticker on the advertising board”.
Young J also noted in par 13 of his Reasons for Judgment that it was his understanding, on the basis of submissions made by counsel who appeared on behalf of the husband, that there was an equity of $100,000 or thereabouts in the C property. As he recorded, that was not made as a finding.
In par 14 Young J said that he did not propose to make orders in respect of this property at that stage. He highlighted that he did not know the detail of the mortgages or collateral security secured against the property and would require to have more detail about such matters. His Honour declined to injunct the sale but invited the parties to prepare Minutes to be submitted on the adjourned hearing date in relation to the sale and the security of the nett proceeds of sale of that property.
The husband’s evidence was that he met with the agents at about 5:30pm after the matter had been before Young J and received advice that there had been an offer of $1.7 million. He discussed that offer with his mother and with a Mr D. Thereafter a counter offer was put of $1.725 million.
Annexure “GK4” to the husband’s affidavit filed 5 December 2006 is the relevant contract note. It indicates the offer by the purchaser of $1.725 million on 19 October 2006 which would lapse at midnight on 20 October 2006. As is also made clear from that document, the husband accepted the offer on 19 October 2006.
Mr Levine addressed me about this, complaining that the wife was not made aware of the situation and was not given any input into the decision. The wife also complained of this in her affidavit material. Mr Levine pointed out that the husband had had the time to inform other people of the offer, the implication being that he could also have spoken to the wife about it. I pointed out to Mr Levine that, on the husband’s evidence the time was very limited. I went on to say that, as a matter of courtesy and perhaps prudence, it might have been a good idea to keep the wife informed, however, it appeared that things had moved very quickly.
In his written submissions dated 14 December 2006, Mr Levine referred to what he described as the “representation” of counsel for the husband that there was a nett equity of $100,000 or thereabouts in the property, saying that it had “now been disregarded and it is conveniently asserted that there is no nett equity and thus no funds available in the interim for the wife”.
As I have said earlier, Young J made no finding on this point, although, as Mr Levine correctly pointed out, and as I have already recorded, he did refer to it in par 13 of his Reasons. Further, as I have also already observed, his Honour observed that he did not have any details of the mortgages and collateral security affecting the C property.
The fact that counsel’s estimate of the nett equity was incorrect does not establish that it was “disregarded” as submitted. It simply demonstrates that counsel’s estimate was incorrect. I cannot draw an adverse inference from this.
During the course of his submissions about the moneys said by the husband to have been advanced by his mother, Mr Levine told me that it would be inappropriate for me to make any findings to this effect. He told me that this was challenged. The following interchange then took place:
“HER HONOUR: Well, where is the evidence challenging it?
MR LEVINE: We are challenging it, your Honour. Your Honour cannot simply take a document and state that it is correct without giving us the benefit of cross‑examination. If we ‑ ‑ ‑
HER HONOUR: That is as may be, but unless I have evidence from which I could perhaps infer or deduce that there is some ground for challenging it, it is not enough, is it, in the face of clear, concise and inherently credible evidence to say, "We don't accept it." That is not enough.
MR LEVINE: Of course it is enough. We only have to establish our case, and we can do so through cross‑examination. We don't accept her affidavit materials. We don't believe that it is correct. We are entitled to challenge her affidavit. We are entitled to cross‑examine it. We will be ‑ ‑ ‑
HER HONOUR: Yes, of course you are entitled to. In an interlocutory proceeding when we are dealing with a matter involving the removal of the caveat, you need to provide the court more than just a bare assertion that you don't accept.
MR LEVINE: How can we provide any more than a bare assertion without discovering, without having the benefit of cross‑examination, and without even having the benefit of bank statements? We are in no position at this stage to actually prove to your Honour that it is incorrect. We state that it is a live issue, there should be no determination on that issue, and we are opposing any finding being made. That is a reasonable submission for us to make. We also submit that the matter should be placed in a trust account, in which case there can be a proper hearing to determine whether or not the loan is advanced. We don't accept the loan. We are not obliged to accept the loan. We don't accept basically anything that is deposed to in their affidavit material, and we have evidence that we will advance and use for cross‑examination.” (The emphasis is mine.)
The part of Mr Levine’s submission to which I have given emphasis appears to be at odds with the earlier part of the submission that the wife’s lawyers were not in a position to prove that the evidence was incorrect. However, I have no reason not to accept that Mr Levine and/or those instructing him do have evidence which will refute the loan to which I have referred. If that is the case it must follow that the wife’s legal practitioners have taken a conscious decision not to adduce this evidence at this stage. Mr Levine’s submissions, self-evidently, do not constitute evidence.
I am therefore left with mere assertions from the wife that she does not accept that the husband’s mother has advanced funds to the husband. There is no evidentiary basis for the assertions made by or on behalf of the wife.
Save as I have already noted the wife did not address, deny or contradict the evidence about the acquisition and sale of this property, how it was funded, or any of the evidence as to the husband’s intention to subdivide the property and the subsequent difficulties he had with VCAT. The evidence of Mr C to which I have earlier referred corroborates the evidence of the husband and his mother, as does the letter from the Real Estate Agent. The evidence in no measure could be described as inherently improbable. To all intents and purposes there is an evidentiary vacuum in the wife’s case about these matters.
The Husband’s Business Activities
I have already referred to the wife’s first affidavit which was filed on 2 October 2006. As well as listing certain items of real estate which the wife deposed were included “in the assets of the marriage” the wife went on to specify in this list of assets some 18 corporate entities. She seeks injunctive relief against the husband in connection with those named companies, trusts and entities.
I pause here to say that certain matters raised by Mr Levine cannot be left uncorrected. As it happens I had had occasion to read the transcript of the earlier case shortly prior to this case commencing. I had needed to do so because it had been annexed to an affidavit which was being relied upon in yet another case which I was due to hear. I can categorically say that Mr Levine is absolutely wrong in his contention that I spoke directly to his client. Nor was that client encouraged or discouraged in any way by me. My concern was as to the financial implications inherent in the case. I certainly raised those concerns. I do not propose otherwise to refer to the events of that day other than to note that Mr Levine’s instructor has a copy of the relevant transcript and further, the transcript itself forms part of the Court record.
When I asked how my alleged behaviour in the earlier case had relevance to the present case Mr Levine contended that it demonstrated a pattern of conduct in relation to cases in which both he and his instructing solicitor were acting. He made no attempt to link this with what the fictional observer of the present case may have witnessed. The fact that Mr Levine’s submissions in another case did, or did not, find favour with me is totally irrelevant to the present application and cannot be relied upon for an inference that there would be a reasonable apprehension that I would approach, or had approached, the issues in this case impartially or without prejudice.
To my mind Mr Levine’s contention is misconceived.
Mr Levine also made submissions about another case with which I had some dealings in which he said I had made findings of credit against Mr Brott. He said:
“I am instructed that also is relevant because it deals with your perception of Mr Brott and his conduct.”
The case in question involved (inter alia) the validity of a Costs Agreement and the issue arose of whether and if so, when, Mr Brott had signed that Costs Agreement. I made a finding as to what was the relevant time for the Agreement to be signed, noting that Mr Brott relied on that agreement to justify charges which were above the scale fees. It is the case that I discussed some contradictory evidence given by Mr Brott and I also noted that given certain circumstances which I discussed, it would be an inference open to me that the Costs Agreement had not been executed by Mr Brott until a time later than the one which I found to be the relevant time. However I went on to say that I did not have to draw such an inference because it was Mr Brott who wished to rely on the Agreement. I found that he had not in all the circumstances of the case satisfied me to the requisite standard that the Agreement was signed by him at the time I found to be relevant. I did not, as submitted by Mr Levine, make any adverse finding as to Mr Brott’s credit. Reasons for Judgment were published in the case in question.
However, even if I had made adverse findings against Mr Brott in that case, it could not be said that it would give rise to an apprehension of bias in the sense discussed in the authorities and for the reasons I have already set out in this section.
The Contention that I Treated Counsel for the Husband more Deferentially and Courteously than I did Counsel for the Wife
Mr Levine contended that during the course of these proceedings I treated him quite differently from opposing counsel. I asked for some examples of this. Mr Levine’s first example was that I did not permit him to read out passages from court decisions.
I can only assume that this was a reference to submissions Mr Levine made about Waugh. He offered to hand up a copy of this case to me but as I pointed out I had it on the Bench. I also pointed out that I had read it many times and was aware of what it said. He drew my attention to par 31 and the distinction that the Full Court drew between Mareva injunctions and proceedings in this Court. I had already brought this to his attention. He then drew my attention to par 53 and read out the first few lines. It is correct that I did not have him read out loud the whole of the paragraph, finding it quicker to read it for myself. Mr Levine then proceeded to make submissions based on par 53 and afterwards turned to par 55 which he elected not to read out loud and made submissions in respect of that paragraph.
It is convenient to note here that much the same happened when Mr Thompson drew my attention to Ascot Investments Pty Ltd v Harper.
The situation was simply one where I found it much more convenient to read the relevant cases or passages for myself than to hear them read out loud. In my view, this ground is also misconceived. The significant matter is that Mr Levine was not precluded from arguing the effect that he contended the various passages had.
Mr Levine contended that he was not permitted to run the case as he saw fit, saying that whenever he made submissions he was either cut off or I was dismissive.
At times I did interrupt Mr Levine and at times Mr Levine interrupted me. My interruptions occurred in circumstances where, for example, I sought to have Mr Levine cross-reference submissions to evidence in the affidavits and to clarify his submissions. There was certainly one occasion when I interrupted Mr Levine on five or six occasions or thereabouts when his answers to my question were non-responsive. That question was whether the wife challenged Ms B’s qualifications.
Throughout this case I did not sit by, “as inscrutable as the Sphinx”. I had the benefit of written submissions and counsel had been told that they were to speak to those submissions. There was a dialogue between the Bench and Bar Table and perhaps at times, a debate. My purpose was that described in Vakauta v Kelly by Brennan, Deane and Gaudron JJ to utilise this dialogue to assist in the identification of real issues and real problems in the case.
In Johnson Kirby J observed at par 46:
“2. … unless the adjudicator exposes the trend of his or her thinking, a party may be effectively denied justice because that party does not adduce evidence or present argument that could have settled the adjudicator’s undisclosed concerns. A frank dialogue will commonly be conducive to the avoidance of oversight and the repair of misapprehensions. Uninformed members of the public are doubtless sometimes surprised by the robust exchanges which take place in Court, especially between a judge and experienced lawyers. But judges and other adjudicators and lawyers know that such dialogue can have great value.
…
4. The adversary system depends on vigorous interaction not only between the parties and their representatives but also between the adjudicator and those persons. Where the parties are represented by trained lawyers, the latter can be taken to be aware of (and presumed, if necessary, to have explained to their clients) the character and purpose of tentative opinions that guide the direction of the trial and encourage its proper focus …”
Mr Thompson, as had been directed, spoke to his submissions. His oral submissions were cogent and succinct and highlighted matters which he had outlined in some detail in his written submissions. There were times when I sought clarification from Mr Thompson and there was one occasion in particular when I made it clear to Mr Thompson that particular submissions (whether the wife had a prima facie case to a property settlement) did not find favour with me.
Whereas Mr Thompson’s submissions were based on the evidence before the Court, many of Mr Levine’s submissions were not. I have referred to this sufficiently already when I dealt with the lack of evidence put forward by the wife in support of her own case or in refuting that of the husband. On quite a number of occasions throughout his submissions, in this and in some other areas, I had to ask Mr Levine where I could find evidence in the affidavits to support his submissions. To that extent I was obliged to treat Mr Levine differently from the way I treated Mr Thompson.
There were other occasions when Mr Levine, I am sure inadvertently, misrepresented what the evidence was. He told me, for example, that I had “numerous affidavits” from the husband in which he deposed, amongst other things, to having control of financial resources. I interrupted Mr Levine, pointing out that the husband had said no such thing.
Mr Levine also told me that I was dismissive of all or most of his submissions. He said:
“Nearly every submission I made in relation to the sale of [C], your Honour was dismissive of any submission I made on that basis.”
I do not accept this submission. Certainly there was robust discussion about many of the matters that he raised.
Mr Levine went on to say:
“But your Honour’s view of statements in affidavits of the husband in relation to matters that you knew were in issue – for example, when he stated that he did not control the moneys, and your Honour was well aware that that was a matter which was in contest before your Honour. But your Honour stated quite clearly that you were willing to accept those matters and in fact perhaps your Honour was even willing to accede to making certain findings on those matters even though the evidence had not been tested …” (The emphasis is mine.)
Mr Levine confirmed that it was his submission that I had said that I was willing to accept the husband’s evidence that he was not in control.
Mr Levine is incorrect. At no stage during the hearing did I say that I was willing to accept those matters. I did ask on a number of occasions as to where there was evidence challenging such matters, pointing out that unless there was an evidentiary foundation for such challenge, or at least sufficient evidence to support an inference being drawn, the Court would be left with merely a bare assertion.
The fictional observer could not possibly believe that I made the statements attributed to me by Mr Levine, which I have earlier recorded, because I did not do so. Nor would the fictional observer reasonably apprehend or infer from what was said in conjunction with these matters that I might not bring an impartial and unprejudiced mind to the determination of the matters which were before me.
Other Contentions
Mr Levine told me that I made a number of comments which his client felt were quite distressing. He said that I was dismissive of the wife’s contributions as a mother and caregiver and that I had said, in relation to the husband “why shouldn’t he have a holiday? He works”. I told Mr Levine that I did not recall having said that and he responded by saying that he had a “vivid recollection” and that his client was particularly distressed at this. I explained to Mr Levine what my recollection was. The matter arose during submissions about the period of time the children should spend with the husband during the holiday season and in the context of Mr Levine’s submission that the husband was prioritising his holiday arrangements over and above the children’s interests.
Having checked the transcript it is quite clear that I did not make the statement attributed to me by Mr Levine.
It was Mr Levine’s submission that the wife’s view was the children should accompany the husband on his holidays, saying that:
“… what’s occurred is that the children’s contact for the holiday period is being arranged around the husband’s holiday commitments, which does not demonstrate a great commitment to the children by the husband.”
The following exchange then took place:
“HER HONOUR: No, but it does perhaps reflect the realities of life of people who are in employment.
MR LEVINE: In employment from 29 December to 5 January? I would have thought that during that period most people would be on holidays.
HER HONOUR: What I am attempt (sic) to make – for what it’s worth – is that people make arrangements for holidays if they are working. It is not as if they can make arrangements to go away at any time like whose who are not in the paid workforce can. I don’t see anything sinister, unusual or even necessarily wrong about somebody arranging holidays during holiday periods and having to fit things in, but anyway, you go on.”
Mr Levine told me that his client had been quite distressed by that comment saying:
“MR LEVINE: Because she takes the view that it seems to denigrate her. In the spousal maintenance claim there is no provision for her or her children to have a holiday and she is quite concerned that your Honour’s view is that perhaps she is less deserving of a holiday because she is not working.
HER HONOUR: Right.
MR LEVINE: Because she takes the view, I think quite understandably, that her contribution as a homemaker and looking after the children are quite relevant and important and certainly as important as working. So she takes a view that she has been impliedly denigrated by those comments.
HER HONOUR: Yes, thank you.”
I have no reason to doubt Mr Levine’s statement that the wife found these matters distressing. This is regrettable. However, the question is not how the wife viewed the matter, rather is it what would the fictional observer have thought about it. As Kirby J observed in Johnson “a reasonable member of the public is neither complacent nor unduly sensitive or suspicious”. I did not say what Mr Levine “vividly” recalled. To my mind the fictional observer would not have reached the same conclusion as the wife.
Mr Levine then went on to remind me that the comments were made in the context of there being an application for spousal maintenance and accordingly, comments and statements that I made in relation to certain matters were relevant. The contribution of the wife as a homemaker was relevant. Whilst what he said appeared to be a little repetitious he told me he was trying to develop his submission a little more fully and he proceeded.
He then went on to say:
“It’s obviously relevant for a spousal maintenance claim, the spending of the husband, and if your Honour takes in that application, that there’s nothing wrong with a husband to spend money on holidays and in relation – as I recall - there was also a submission made by me in relation to a $15,500 holiday of the husband which your Honour made very clear was of no importance or relevance to your Honour.”
I told Mr Levine that my recollection was that I asked him where did this matter appear in the evidence. Mr Levine responded by saying that he pointed it out and that I made it very clear that I did not regard it as being at all important.
In the course of his submissions Mr Levine had told me that there was a Flight Centre booking for the husband for an amount of $1550 (not $15,500) and he confirmed on my enquiry that this was not in the wife’s affidavit material. I pointed out to him that he had objected during Mr Thompson’s submissions, and understandably so, that Mr Thompson was becoming a witness in his case. There then followed discussion about the document which Mr Levine said he was relying upon and his submission as to how this should be dealt with. Mr Levine told me that it was important for me to take the matter into account, saying that the wife had deposed to something in her affidavit. The fact of the matter was that she had deposed to a belief that she had but had not set out the basis upon which she formed that belief. Given that this matter was not going to be able to be resolved in the circumstances, I then put to Mr Levine, hypothetically:
“Let’s suppose for the moment that this is correct and that the husband does have arrangements to go away for whatever period of time it is. So what?”
There then followed the discussion about it being the wife’s opinion that the children should accompany the husband.
It was not a question of whether this matter was important or otherwise: the reality was that Mr Levine was “giving evidence from the Bar Table”. What was important to my mind was what followed from all of this. That was ascertained as I have already noted.
Mr Levine also informed me that I had shrugged my shoulders when he submitted that the wife had to look after two children, in the context of her capacity for work being accordingly limited. As I told him, I did not recall this taking place. He did not bring my attention to it at the time and there could be any number of reasons why I shrugged my shoulders, assuming that I did.
Mr Levine’s final submission was in relation to a person who was put forward as being a possible report writer. The following exchange took place:
“MR LEVINE: … when I submitted a name from a person in the office of [Mr P], your Honour’s reaction was he could just work in the office. My instructions are that was quite dismissive on the …
HER HONOUR: Mr Levine, I didn’t say that at all. You said he worked in the office. You said he worked in the office and I pointed out that secretaries work in offices of their principals but that doesn’t mean that they can perform the role of the principals, or words to that effect.
MR LEVINE: Your Honour, we would never have suggested a person who wasn’t qualified to undertake the task.
HER HONOUR: I would hope not, but I was just pointing out to you – in the context of the enquiry of what were the qualifications, expertise and experience of these people that you are putting forward – that it wasn’t enough to say that he worked in [Mr P’s] office. You go on.
MR LEVINE: You equated him to a secretary, your Honour.”
The circumstances of this matter were as I have just set out. Nobody hearing what was said could possibly have concluded that I was equating the gentleman in question to a secretary. Rather was I pointing out that the fact that he worked in Mr P’s office, or anyone else’s office for that matter, did not provide any information as to the person’s qualifications, expertise and experience.
Conclusion as to Application for Disqualification
I have already discussed in some detail the relevant legal principles and matters relied upon in support of this application. It is appropriate, however, also to refer again to Ebner where Gleeson CJ, McHugh, Gummow and Hayne JJ said:
“[7]The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of a departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote) not probability. …
[8]The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an ‘interest’ in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.”
Ebner (and the other appeal which was heard at the same time by the High Court) raised the question of whether a judge is disqualified from hearing a matter by reason of his or her interest in shares in a listed public company when that company is party to proceedings before him or her or has a direct financial interest in its outcome, and as such could be distinguished from the present case. Nevertheless, the relevant principles as stated in Johnson and the earlier cases which were also cited in Johnson were reaffirmed. Further, and of particular relevance to a number of the submissions made on behalf of the wife which I have identified above, the “second step” referred to in Ebner has not been taken. In other words, no cogent, rational or logical connection between my behaviour and comments and “the feared deviation from the course of deciding the case on its merits” was established.
Whether the grounds relied upon are looked at separately or cumulatively, in my view, there was no proper basis for concluding that I might not bring an impartial and unprejudiced mind to the resolution of the issues I was required to determine, and accordingly I declined the wife’s application to disqualify myself.
Outstanding Matters
Unless there has been compliance in the last day or two with the relevant orders, the following matters remain outstanding:
363.1The wife’s submissions dated 12 December and 14 December 2006 have not been filed (see pars 1 and 2 of the orders 8 December 2006).
363.2The wife has not filed the affidavit in relation to certain of the husband’s personal property (see par 3(b) of the orders 15 December 2006).
These matters must be immediately dealt with.
Final Observations
At the conclusion of the hearing on 15 December 2006, I made orders in respect of all issues save for the question of disclosure. This last-mentioned matter has now been determined but, as already recorded, it is not necessary in my view to make a formal order for disclosure, given the parties on-going obligation to comply with the relevant Rules.
It is not necessary to repeat the orders which I made on 15 December 2006 however for ease of reference I will summarise them.
366.1I granted the husband’s application and appointed [Ms B] as the single expert in this case as to children’s issues.
366.2I made orders relating to the amount of time that the children should spend with the husband at Christmas and during the long summer vacation which were different from the orders sought by both parties, but not dissimilar to the orders sought by the husband.
366.3I refused the wife’s application for the return of the piano.
366.4I granted the husband’s application that the wife remove the caveat lodged over the property at [C].
366.5I refused the wife’s application in respect of the disposition of the proceeds of sale of the property at [C] and dismissed all of her applications seeking injunctive relief.
366.6I determined the issue of the application by the wife seeking disclosure, finding it unnecessary to make any orders in this regard, save that I will need otherwise to dismiss this part of the application.
366.7I made orders in relation to the interim financial arrangements necessary to be made pending the determination of the wife’s application for spousal maintenance. Those orders were not in accordance with the application of either party.
366.8I dismissed the wife’s application that I be disqualified from further hearing this matter.
366.9With the consent of the husband given through his counsel, I continued the undertaking which the husband had given to Mushin J on 9 November 2006 in par 4(a)-(h), noting that par 4(i) was no longer relevant.
It should be noted that the issue of spousal maintenance awaits determination by the Senior Registrar and further, that the question of increased or decreased periods of time that the children spend with the husband has been adjourned to a date to be fixed after completion of the Family Report and by arrangement with my Associate.
I certify that the preceding three hundred and sixty-seven (367) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carter
Associate:
Date: 1 March 2007
IT IS NOTED that this judgment for all publication and reporting purposes be referred to as KELLEHER & ANDERSON
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