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
- AGLC
- Kelleher & Anderson [2007] FamCA 137
- Case
- [2007] FamCA 137
- Decision Date
CaseChat Overview and Summary
The court was required to determine a range of issues, including spousal maintenance, children's time arrangements, the return of chattels, disclosure of financial information, injunctive relief, the removal of a caveat, and the appointment of a Family Report writer. A significant aspect of the proceedings involved an application by the wife for the judge to disqualify himself due to apprehended bias.
Justice Carter, as the appointed Judge Manager, considered the evidence and submissions presented. The court applied principles relating to interlocutory injunctions, the duty of disclosure under the Family Law Rules, and the test for apprehended bias. The judge reasoned that the wife had not provided sufficient evidence to support her claims for injunctive relief or the removal of the caveat, and that the husband's financial documentation, while initially lacking in some respects, had been substantially addressed. The application for disqualification was refused, with the judge finding no reasonable apprehension of bias. The court also addressed the wife's claims regarding disclosure, finding no need for further orders beyond the existing obligations under the Rules.
The court made various orders, including dismissing the wife's application for injunctive relief and the return of a piano, granting the husband's application for the removal of a caveat, and appointing a Family Report writer. Orders were also made regarding the children's time with each parent during the Christmas and summer holidays, and interim financial arrangements for the wife pending the determination of her spousal maintenance application. The issue of spousal maintenance itself was adjourned for determination by the Senior Registrar, and further orders regarding children's time were to be fixed after the Family Report was completed. The wife's application for disclosure was dismissed as no further orders were deemed necessary.
Orders
Orders of the court
1.
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
1.
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.
2.
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.
3.
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.
4.
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
5.
In their memoranda or Case Outlines the husband and the wife listed the various issues which were outstanding.
6.
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
7.
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.
8.
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
9.
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.
10.
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.
11.
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.
12.
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.
13.
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.
14.
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.
15.
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.
16.
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.
17.
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.
18.
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.
19.
Accordingly the issues which remained to be considered were:
19.1 the wife’s application for injunctive relief;
19.2 the wife’s application for the return of the piano;
19.3 the wife’s application for disclosure;
19.4 financial arrangements to be made for the wife pending the further hearing of her spousal maintenance application;
19.5 the husband’s application for the removal of a caveat;
19.6 who should be the counsellor to prepare the Family Report; and
19.7 the time the children should spend with their father during the Christmas and holiday periods.
20.
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.
21.
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
22.
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.
23.
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.
24.
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.
25.
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.
26.
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”.
27.
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.
28.
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.”
29.
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.
30.
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.
31.
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.
32.
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 …”
33.
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.
34.
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.
35.
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.
36.
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.
37.
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.
38.
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.
39.
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.
40.
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.”
41.
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.
42.
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.
43.
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.
44.
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.
45.
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.
46.
Finally, it should be noted that a number of documents were tendered and received in evidence as exhibits.
Applications in a Case
47.
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.
48.
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.
49.
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.
50.
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.
51.
It is of course always open to a Judge or other judicial officer to dispense with compliance with the Rules.
52.
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”
53.
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.
54.
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.
55.
Proceedings under the Hague Convention are also, generally speaking, summary in nature and as a general rule cross-examination of deponents is not allowed.
56.
In Panayotides (1997) FLC ¶ 92-733 the Full Court referred, without criticism, to the approach taken by the trial judge (Jordan J).
57.
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. …”
58.
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.”
59.
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.
60.
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.
61.
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.
62.
It is axiomatic that the Court can only consider the evidence that the parties choose to put before the Court.
63.
It should be recorded at the outset that the wife has given very little evidence in her affidavits about a number of important matters.
64.
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.”
65.
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”.
66.
Self-evidently, submissions do not constitute evidence.
Children’s Issues
The Family Report
67.
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.
68.
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.
69.
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.
70.
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.”
71.
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”).
72.
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.
73.
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.
74.
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.
75.
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.
76.
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.
77.
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.”
78.
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.
79.
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 …”
80.
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.
81.
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.
82.
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 …”
83.
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.
84.
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.
85.
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.”
86.
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.
87.
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.
88.
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.
89.
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.”
90.
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.”
91.
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.
92.
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.
93.
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.
94.
In those circumstances I appointed Ms B to prepare the report.
Arrangements for the Children during the Long Summer Vacation
95.
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.
96.
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.”
97.
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.
98.
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.
99.
The foregoing matters summarise the evidence of, and concessions made by, the parties. The written submissions also, and relatively briefly, dealt with this issue.
100.
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.”
101.
I agree.
102.
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.
103.
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.
104.
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.”
105.
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.
106.
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.”
107.
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.
108.
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.
109.
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.
110.
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.
111.
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.
112.
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.
113.
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
114.
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.
115.
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.
116.
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.
117.
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.
118.
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.”
119.
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.
120.
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”)
121.
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.
122.
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.
123.
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.
124.
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.”
125.
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.”
126.
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.
127.
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.
128.
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”).
129.
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.
130.
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.
131.
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
132.
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.
133.
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.
134.
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).
135.
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.
136.
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”).
137.
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.
138.
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.
139.
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.
140.
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.
141.
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.
142.
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.
143.
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”.
144.
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.
145.
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.
146.
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.
147.
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.
148.
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.
149.
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”.
150.
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.
151.
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.
152.
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.)
153.
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.
154.
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.
155.
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
156.
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.
157.
At no stage in that affidavit or thereafter did the wife depose that the husband controlled any of those entities.
158.
In his affidavit filed 26 October 2006 the husband set out the companies in which he was a director and the shares that he held. He went on to state his belief that four of the companies which he had detailed had been incorporated after 21 December 2001 and were trustees of certain named trusts. He deposed that the companies had been incorporated in the normal course of pursuing property development and subdivision of projects.
159.
Reference has already been made to N Pty Ltd. The husband’s evidence was that this company was the trustee company of the Y Family Trust. He acknowledged that he was a director of that company with one share and that there were two other directors, each with one share. He deposed that the Y Family Trust was a family trust established by his parents and set out details of seven unit trusts which were carrying on various individual property development projects. The husband annexed to his affidavit a chart, which he said had been prepared by his accountants and which set out his company directorships, shareholdings and interests in the trust earlier referred to. He then set out details of projects in which certain named trusts were presently engaged. He pointed out:
“By the nature of these projects, they continue over extended periods, some times for many years and are ongoing. As these projects are continued over years, they have an indeterminable realisable value at this stage. Each project is at a different stage and has its own unique factors, both in terms of development and marketability. Each of the projects has very little current equity and there are substantial borrowings.”
160.
The interests of another director, Mr D, were referred to and the husband also detailed other parties who had an interest by way of a shareholding in the company together with their family relationship or other relationship.
161.
The husband then set out by way of eleven annexures (“GK2” to “GK12”), the various assets and liabilities of the companies and trusts to which he had referred in his affidavit.
162.
By affidavit filed 6 November 2006 the wife alleged that the husband had failed to make full and proper disclosure of all the companies of which he was a director and in particular named three companies. These were –
· D3 Pty Ltd
· L Pty Ltd; and
· M Pty Ltd
The wife annexed to her affidavit ASIC company extracts relevant to all three companies. All of the extracts were dated 19 July 2006.
163.
The wife expressed concern about “the behaviour of the husband’s accountants … and the chart prepared by them” which was exhibited to the husband’s affidavit. She expressed concern in particular that one of the companies which had been omitted was a company for which these accountants was the registered agent. She annexed a copy of a letter dated 5 May 2006 from the accountants to the husband and Mr D confirming that this was so (Annexure “A A5”).
164.
The wife also deposed to her belief that the husband was the director of another company, namely U Pty Ltd under a pseudonym.
165.
The wife complained that the husband had not complied with the orders made by Young J on 19 October 2006, as a consequence of which she said that she had not been provided with any information from him relating to the three companies to which I have already referred. She set out the share structure of the above-named companies as detailed in the company searches. The shares in two of those companies were owned by N Pty Ltd and Q Pty Ltd in certain proportions.
166.
The wife had earlier noted her belief that the husband had failed to disclose in his affidavit the existence of the M Trust and she annexed to her affidavit a copy of relevant documents relating to this trust (Annexure “A A4”).
167.
The remaining company to which reference has earlier been made, namely M Pty Ltd, was said to be the trustee for the M Unit Trust, as the wife understood it. The units of that trust, again as the wife understood it, were said to be held as to 150 units by N Pty Ltd and as to 50 units by Q Pty Ltd. The husband was said to own nine shares in M Pty Ltd and other three shares were said to be owned by Mr D. This is corroborated by the company searches annexed to the wife’s affidavit in Annexure “A A2”
168.
The wife deposed that the husband had failed to disclose that he owned or had owned shares in Great Australian Resources, pointing out that in or about June 2006 the husband had provided signed instructions for the sale of those shares. She annexed a copy of the husband’s instructions (Annexure “A A6”).
169.
The wife pointed out that no mention of this had been made in the husband’s Financial Statement filed 26 October 2006. She deposed that she had “not had an opportunity to engage a forensic accountant and to properly analyse the said Financial Statement but it seems to be misleading and inaccurate”. She added that, when the proceedings were before Young J, the husband’s counsel had told his Honour that the husband was paying rental of $750 per week for his residence, however, in his Financial Statement the husband had affirmed that there were no payments being made for a mortgage or rental of his home.
170.
The husband responded to these allegations in his affidavit filed 5 December 2006 as did Mr C in his affidavit filed 4 December 2006. Both acknowledged that the husband had not disclosed his involvement with D3 Pty Ltd; L Pty Ltd; and M Pty Ltd. The husband deposed that the omission was a genuine oversight, and gave an explanation as to how this had come about. His evidence was also that the first-named company no longer traded.
171.
It will be recalled that the wife expressed concern and surprise about Annexure “GK1” to the husband’s affidavit filed 26 October 2006, noting the husband’s evidence that the document had been prepared by his accountant. Mr C responded to this in his own affidavit, saying that the schedule had been prepared by his firm some time ago prior to the incorporation of the omitted companies and for the husband’s use in the Family Court proceedings involving his former wife. According to Mr C the submission of that chart was done without his prior knowledge.
172.
Accordingly, the evidentiary situation is that I have a concession from the husband that he did not reveal the existence of details relating to the three companies. Whether this was deliberate or unintentional cannot be determined at the present time. I also have, and in particular from Mr C, an explanation as to why the three companies were omitted from Annexure “GK1”. On the face of it that explanation is not improbable or inherently incredible, however, as I have already said, final determination of why the three companies were omitted from the original chart and whether or not the husband’s omission was deliberate cannot be determined at this stage and must await the final hearing.
173.
The husband filed an amended Form 13 Financial Statement on 4 December 2006 together with a further affidavit which he had sworn on 1 December 2006. This affidavit is basically explanatory although it does expand on some matters referred to in his earlier material. Annexed to this affidavit was a chart (“GK15”) described as a “Unit Holding Flow Chart” which related to his unit holding company interests and the business operations in which the husband was currently involved. Reference was also made in that affidavit to yet another affidavit of the husband affirmed on 1 December 2006, and, filed 5 December 2006. This last-mentioned affidavit provided further detail in respect of the C property and N Pty Ltd (inter alia) and I have already referred to it in some detail. I also note that in par 40 the husband listed seven companies referred to in the wife’s application which he explained no longer traded. In par 41 the husband explained that in relation to all the other companies and Trustees of Trusts, the ultimate beneficial interests were held by either N Pty Ltd as Trustee of the Y Family Trust or Q Pty Ltd as Trustee of the F Trust. The husband deposed he had no involvement with the latter company. In par 42 the husband provided details in relation to the other companies, setting out the office holders, shareholders and beneficial interests.
174.
The wife did not provide an affidavit in which this was contradicted.
175.
In his affidavit Mr C deposed that he had personally prepared the accounts and tax returns for the husband and for the Y Family Group of entities for approximately 12 years. His evidence was that he also prepared the taxation returns and accounts for the Y Family Trust and that he was familiar with the family business in which the husband had an interest. According to Mr C this business was commenced by the husband’s parents. Mr C deposed that the husband did not control any of the corporate entities in which he had an interest. He explained that since the mid-1980s, the family had undertaken numerous property development ventures throughout Victoria, initially using individual trading company structures, but in more recent years, unit trust structures were utilised for each development undertaken. He pointed out that this meant that it was the trustee of each trust that had the power to make day-to-day decisions for that trust. Further, each unit trust used by the Y Family Group had a corporate trustee and the husband was only one director and shareholder of each trust company, his role being day-to-day manager. He pointed to the importance of understanding that the trustee of each trust could be removed at any time and a new trustee appointed, and accordingly, he said the husband did not control those entities. The trustee could be removed by a decision made by the unit holders of a unit trust or by the appointor in the case of a family or discretionary trust. He explained that the majority unit holder was the Y Family Trust and that Mr Y was the appointor within that Trust Deed. It was therefore the case, according to Mr C’s evidence, that Mr Y the person who held ultimate control of the family group of companies, and indeed under the corporate structure, the husband could be removed from the operation of all projects, should this be the wish of Mr Y.
176.
I pause here to note that a list of documents dated 23 November 2006 was provided to the wife’s solicitors. Inter alia those documents were said to include a Deed of Settlement for the Y Trust dated 27 November 1989 and a Deed of Variation of the Y Unit Trust Deed dated 25 February 1997. The document made provision for inspection by appointment of any of the documents listed in the Schedule (see Exhibit “H&W1”). Another document contained within Exhibit “H&W1” was a letter dated 12 December 2006 from the husband’s solicitors to the wife’s solicitors in which reference was made to pars 13 and 14 of the wife’s Form 2A Response which I have earlier reproduced in full. The husband’s solicitors advised those acting for the wife that the documents referable to the wife’s requirements, so far as they were within the possession or control of the husband, were available for inspection during business hours by appointment at the offices of the husband’s solicitors. The letter concluded by requesting urgent notice to be given if the wife had “any further requirements for production of further similar and relevant financial and/or accompanying material.” It appears that that letter was sent by email to the wife’s solicitors.
177.
The wife did not respond to Mr C’s affidavit, or to that part of the husband’s mother affidavit in which she outlined a brief history of the family business. Accordingly, there is no evidence disputing these matters.
178.
Ms M is the former wife of the husband in these proceedings and she swore or deposed an affidavit which was filed on 5 December 2006. She stated in that affidavit that she had retained independent solicitors to give her advice in respect to the affidavit.
179.
In her affidavit she deposed that during the course of the property settlement process in this Court she engaged the legal services of Isaac Brott, Solicitor. Mr Brott currently represents the wife in the proceedings before me. The evidence of the husband’s former wife was that her own proceedings ran over three and a half years and during that time, on the advice of Mr Brott, she engaged a forensic accountant to investigate the business and financial affairs of the husband, his parents and the activities of his parents’ companies. The process included subpoenae being issued for bank documents, loan documents and contracts; and to Bank Managers, business partners and joint venturers of the companies. She described the investigations as being lengthy and the end result being that there was no evidence that the husband had contributed to property, assets or funds in the relevant companies and further, that the investigations did not disclose that the husband was in control of N Pty Ltd, the Trustee of the Y Trust.
180.
The wife gave no evidence to contradict these matters, but when I drew Mr Levine’s attention to this affidavit he said:
“We don’t accept that affidavit at all. We take a very different view. We take the view that he is in control and that we can approve (sic) it and establish it, and that’s one of the major issues that we have to (sic) trial. (The emphasis is mine.)
181.
As I earlier recorded, the wife has not alleged in any of the affidavits filed on her behalf that the husband controlled any of the corporate entities or the businesses. Notwithstanding this, it was a recurrent theme in Mr Levine’s submissions that the husband was in control.
182.
I have no reason not to accept that Mr Levine and/or those instructing him do have the means to prove that the husband is in control. It must therefore be that the wife’s legal practitioners have taken a conscious decision not to adduce this evidence at this stage. Mr Levine’s submissions, of course, do not constitute evidence.
183.
There is also corroboration of the evidence as to the husband’s lack of control of at least some of the business entities which can be seen in Annexure “A A7” and “A A10” to the wife’s own affidavit filed 6 November 2006. I will return to this later.
184.
I note that the husband and Mr C both responded to the wife’s allegations in respect of U Pty Ltd denying and putting in issue the question of whether the husband could be acting as a director under a pseudonym. This is another matter which will need to be determined at the final hearing. Evidence was also given in response to the wife’s allegation that the husband had failed to disclose in his Financial Statement, shares that he owned or previously owned in a company, Great Australian Resources Ltd. Mr C’s evidence was that records which had been provided to him demonstrated that those shares were not held by the husband but rather N Pty Ltd as Trustee for the Y Trust. The truth or otherwise of the wife’s allegations in this regard will also have to await a final hearing.
185.
Finally I also note that Annexure “CK1” to Mr C’s affidavit is the same document as Annexure “GK15” to the husband’s affidavit filed 4 December 2006. The document provides a flow chart of the unit holdings and corporate summary of the husband’s corporate interests.
186.
The only evidence as to control of the business entities is that which I have already outlined. That evidence is credible and the wife has not provided any evidence to contradict it.
187.
In short, at the present stage of the proceedings there is no evidentiary foundation for Mr Levine’s assertion that the husband holds control of the family group of companies. Any evidence which would establish this, as claimed by Mr Levine, was not put before the Court. Accordingly, and for present purposes, I accept that the husband does not hold control of the business entities.
Injunctive Relief
188.
Section 114(3) of the Act provides:
“A court exercising jurisdiction under this Act in proceedings other than proceedings to which sub-section (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the Court to be just and convenient to do so and either unconditionally or upon such terms and conditions as the Court considers appropriate.”
189.
The authorities make it clear that in an appropriate case an injunction can be granted to restrain a spouse from dealing with his or her property. There are prerequisites to the exercise of this power. There must be an existing or potential claim to an order altering property interests pursuant to s 79 of the Act (Stowe (1981) FLC ¶ 91-027). In that case the Full Court also held that, in order to found an interlocutory injunction to the preservation of property, an objective risk of disposal must be established.
190.
The Court must take into account the balance of convenience and balance of hardship (Sieling (1979) FLC ¶ 90-627).
191.
The Court should not restrain a spouse from ordinary business dealings unless it can be shown there is a real fear that he or she would dissipate funds or unless there is some other good reason for such a restraint (Martiniello (1981) FLC ¶ 91-050).
192.
The approach that the Court should take was considered by the Full Court in Waugh (2000) FLC ¶ 93-052). The Full Court pointed to the importance of bearing in mind that the jurisdiction to grant interlocutory injunctions under the Act was a statutory jurisdiction derived from ss 114(3) and/or 34(1).
193.
Whilst being careful to distinguish differences between proceedings in this Court and proceedings in other jurisdictions, the Full Court also held that it was instructive in the context of that case to have regard to the principles which had been developed in other jurisdictions in relation to the grant or refusal of Mareva injunctions or orders. The discussion commences in par 35. In that discussion the judgment of the High Court in Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 is analysed and reference is made to the separate concurring judgment of Kirby J at pars 121 and 122. His Honour had this to say:
“To secure an asset preservation order in a case such as the present, it will be necessary for the parties seeking it to show, in addition to the conditions ordinary to the grant of relief injunctive in nature that (1) there is a danger that the non-party will dispose of relevant assets of property in its possession or under its control; …
… The grant of such relief is discretionary. They must often be provided with (or withheld) in urgent circumstances where a propensity to shift assets, apparently to defeat a judgment has already been manifested. The plaintiff must establish a real risk of assets being disposed of. No such relief should be contemplated without the provision of an undertaking as to damages.
194.
Waugh was recently considered and explained by a differently constituted Full Court in M and DB [2006] FamCA 1380. It was held that the Full Court in Waugh did not intend to prescribe as a ‘fundamental’ or ‘threshold’ question whether a scheme to defeat judgment exists, which must be answered in the affirmative in a case before an injunction could be granted.
195.
As the applicant for injunctive relief the wife bears the onus of establishing, on the evidence, a real risk of assets being disposed of and also that such disposal may cause her claim to be defeated or prejudiced. It would not be sufficient merely to show that there is a risk of disposal of assets, or the asset pool being diminished, without also establishing that there is a risk that the wife’s claim may be defeated or prejudiced if the injunction is not granted. The wife must establish that the imposition of the injunctions is necessary and goes no further than necessary to prevent the abuse or frustration of the Court’s process in relation to the substantive proceedings.
196.
There is no doubt that in an appropriate case the Court can grant an injunction which will affect persons who are not parties to the proceedings (Sanders (1967) 116 CLR 366; Antonarkis & Anor v Delly (1976) FLC ¶ 90-063; Re Dovey; Ex parte Ross (1979) FLC ¶ 90-616).
197.
The extent to which an injunction may be made against a third party or which affects the rights of a third party has been discussed in a number of cases. In Ascot Investments Pty Limited v Harper (1981) FLC ¶ 91-000 the High Court held that although the Family Court might grant an injunction which was directed to a third party or which would indirectly affect the position of a third party, it could not do so if the effect of that injunction would be to deprive a third party of an existing right, or to impose on a third party a duty which a third party would not otherwise be liable to perform. (See per Gibbs J (as he then was) at 76,061.)
198.
Gibbs J delivered the principal judgment on behalf of the majority of the Full Court and he went on to distinguish the situation when, for example, the third party’s claim was a mere sham. He said at 76,061-2:
“The position is, I think, different if the alleged rights, powers or privileges of the third party are only a sham and have been brought into being, in appearance rather than reality, as a device to assist one party to evade his or her obligations under the Act. Sham transactions may always be disregarded. Similarly, if a company is completely controlled by one party to a marriage, so that in reality an order against the company is an order against the party, the fact that in form the order appears to affect the rights of the company may not necessarily invalidate it.
Except in the case of shams, and companies that are mere puppets of a party to the marriage, the Family Court must take the property of the party to the marriage as it finds it. The Family Court cannot ignore the interests of third parties in the property, nor the existence of conditions or covenants that limit the rights of the party who owns it …”
199.
In Harris and Harris; Re Banaco Pty Ltd (No 2) (1981) FLC ¶ 91-100 the Full Court drew a distinction between cases in which the third party was a stranger to the marriage and one in which there was an association of some kind between the third party and one of the parties to the marriage. Further, it was held, given the order against the third party was interlocutory and not permanent, that the third party could not claim that its rights were defeated or extinguished.
200.
In Re Ross-Jones, Marinovich and Marinovich; Ex parte Green (1984) FLC ¶ 91-555 Gibbs CJ, with whom Mason J agreed, said that the Family Court had no wider power to grant interlocutory injunctions than it has to grant permanent injunctions, and that no distinction could be drawn between the position of third parties who are strangers to the parties or a party to a marriage and those who have some relationship or association with them. Wilson and Dawson JJ also rejected the approach which had been taken that the principles in Ascot Investments did not apply to interlocutory injunctions, given that they only temporarily interfered with the rights of third parties. Gibbs CJ (with whom Mason J agreed) held that the judgments in Harris and Harris; Re Banaco Pty Ltd (No 2) should not be regarded as authoritative.
201.
The position would be different if the third party was a respondent to an application under s 106B of the Act (Collins (1987) FLC ¶ 91-800).
202.
Section 90AF(1) and (2) of the Act empowers the Court to make an order or injunction under s 114 which would bind a third party. There are preconditions to making any such order or granting any such injunction and they are set out in s 90AF(3). The wording of the section makes it clear that all of the conditions set out in that section, if relevant, must be met.
Discussion
203.
The wife’s substantive application is for an order that the husband transfer to her, free of encumbrances, the B property; that there be an equitable division of property between the parties and that she be excused from further particularising the orders sought at this stage.
204.
The cohabitation between these parties was about seven years. Two children were born of the parties’ union. There is a dispute as to contributions. However, regardless as to what may eventually be found as to contributions, the wife would have a claim to an alteration of interests in property pursuant to the factors set out in s 75(2) alone. Accordingly, and notwithstanding Mr Thompson’s submissions, I am satisfied that the wife does have a prima facie claim to a settlement.
205.
The wife’s case in support of the injunctions sought against the husband, both in his personal capacity and in connection with the business entities and trusts was said by Mr Levine to be based on the husband’s sale of the C property and the circumstances surrounding it, his lack of disclosure and there was a further submission that he had failed “to comply with the Rules, given that the husband has been within a very short period of time forced to amend his Form 13 Statement ostensibly.”
206.
It is the case, as I have already noted, that the husband did not include in his financial documentation, details relating to the three companies referred to by the wife. His evidence was that none of those companies was currently the registered proprietor of any land and the wife has not given any evidence disputing that. He also pointed out that these companies were in fact amongst those listed in the wife’s Form 2A Response. Whilst acknowledging that there has been no cross-examination I have to say it would seem to be very stupid for a party to attempt to conceal assets, knowing that the other party is aware of those assets.
207.
I do not understand why Mr Levine raised the question of the amended Form 13 Financial Statement. In my view, having become aware that his earlier documentation was defective, the husband was bound to put before the Court evidence rectifying this, which he did both by way of affidavit and his Financial Statement.
208.
I do not in any way diminish the necessity for full and accurate disclosure. I accept that the omission of the entities from the husband’s documents may well have caused the wife to become suspicious. But I am by no means satisfied that these omissions come even close to establishing that there is a real risk that the wife’s claim may be defeated or prejudiced unless the injunctions are imposed.
209.
I now turn to the question of the C property. At this stage of the proceedings, given the absence of evidence by the wife to contradict the evidence given by the husband as to these issues, the evidence as to the purchase, planned subdivision and sale of this property is as set out in the husband’s affidavit filed 5 December 2006. I have discussed that evidence earlier. I have not forgotten that the wife does not accept the bona fides of the loan from the husband’s mother or that she believes that this is a poorly disguised attempt to reduce the nett equity in this property. However, the wife has not provided any evidentiary foundation for that.
210.
I also note that this property was purchased during marriage and, on the evidence, initial advances were made by the husband’s mother in August and December 2005, which totalled almost $413,900. This was well before the parties separated. The loan agreement itself, on the face of it, says that it was made on 15 March 2006, again before separation.
211.
The husband did not consult the wife about the sale and this would have been both appropriate and probably prudent, in my view. However, there does not seem to have been anything covert about the sale, given that it was advertised by means of a board placed at the property.
212.
It will be recalled that the wife had deposed in her affidavit filed 12 December 2006 that she had no objection to removing her caveat provided that the nett proceeds of sale, after deduction of agent’s commission and selling expenses, and repayment of the mortgage, were placed in her solicitor’s trust account. It is implicit in that, that an injunction was sought against the husband to that effect.
213.
The husband’s mother is a third party who would be affected by such an injunction. She is not a party to these proceedings and, as was conceded by Mr Levine, had no notice of the wife’s application in this regard. The wife has not sought an order directed to the husband’s mother and has not sought that the loan agreement should be set aside.
214.
Mr Levine did not rely on Div 3 of Part VIIIAA. In the circumstances of this case, the condition in s 90AF(3)(c) has not been met, given that the husband’s mother not been accorded procedural fairness in relation to the injunction.
215.
In my view, on the present state of the evidence it could not be said that the rights, powers or privileges of the husband’s mother are only a sham, having been brought into existence in appearance rather than reality, as a device to assist the husband to evade his obligations under the Act. Should the husband not be permitted to comply with his obligations under the loan agreement, then this would operate to the detriment of his mother and would prejudice her rights under the loan agreement. Further, given the circumstances of this case, I do not have the power to order the husband’s mother to remove her caveat, which is noted on the title to this property. The sale of the property would be in jeopardy. Apart from the obvious potential consequences of that, I note that the interest payments for the mortgage to Perpetual Trustees are just over $8,000 per month.
216.
For all of the above reasons I declined to make any order in relation to the balance of proceeds of sale of the C property.
217.
It is convenient to note here that the wife had not offered an undertaking as to damages. I raised this with Mr Levine who responded that it was his understanding that such an undertaking was not normally offered in this Court. I expressed surprise at that proposition, and I note that subsequently in fact, the wife did proffer an undertaking as to damages. Mr Thompson submitted in this regard that the wife would not have sufficient property to satisfy an undertaking for damages were such damages to be assessed against her, and accordingly I could not have confidence in accepting her undertaking.
218.
Undertakings as to damages are quite frequently offered in this Court, not just in financial cases but also in matters involving children. Such an undertaking cannot be compelled, but it will often be a factor to be considered in part of the overall assessment as to where the balance of convenience or justice lies. However, there are differences between litigation conducted under the Family Law Act 1975 and the common law or other civil litigation.
219.
In Blueseas Investments Pty Ltd v Mitchell and McGillivray (1999) FLC ¶ 92-856 the Full Court reviewed the principles associated with the obtaining of undertakings as to damages. It was noted that these principles were principles of equity and derived from civil litigation, however the Full Court went on to say that there was an additional highly relevant matter which distinguished litigation under the Family Law Act 1975 from civil litigation. This was the fact that very often the wealth of the parties was controlled by one, rather than both of them. In turn, this meant that it was not uncommon for one of the parties to have no means of meeting any liability that might be incurred pursuant to an undertaking as to damages. Accordingly:
“… it would be unconscionable to accept a broad principle that the impecuniosity of a party in family law proceedings would be given such weight as to prevent an injunction being granted where all the other requirements of a grant of such injunction are present. Indeed, it may even be doubtful whether the impecuniosity of one of the parties to family law proceedings will usually be a factor militating against a ground of interim or interlocutory injunctions if the other tests of the grant of the same were otherwise satisfied.”
220.
If it were the case that the wife would not have the capacity to meet any damages which were ordered, that alone would not prevent an injunction being granted, provided that all the other requirements have been met. It may be that this would not apply to any undertaking as to damages which might be incurred by the husband’s mother given that she is not a party to the marriage or the proceedings, however, I do not need to determine that.
221.
The wife also seeks to restrain the husband in respect of dealings with the B property as well as two other properties, which are identified only by reference to Lot and Plan numbers. These last-mentioned properties are not sufficiently identified in my view to be the subject of any injunctions.
222.
The B property is registered in the sole name of the husband. In his amended Financial Statement filed 4 December 2006 the husband deposed that it had a value of $1.28 million. Again, according to the Financial Statement this property secures a mortgage of $1.14 million. Overall, however, the husband discloses in his Financial Statement total property of $3.093 million (rounded) and liabilities of $3.952 million. As can be seen, there is therefore an overall deficit. That is not to say, as Mr Thompson submitted, that the sale proceeds of the C property are the only assets within the pool. Further, the wife’s claim could be met, for example, by an order that the husband discharge the mortgage either in part or in full, or alternatively, pay the instalments on it.
223.
The wife relies on the same matters asserted in relation to the order sought regarding the disposition of the balance of proceeds of sale of the C property.
224.
On the current state of the evidence I am far from satisfied that any such injunction is warranted. Further, as will be seen, the wife will have the protection of an undertaking proffered on behalf of the husband.
225.
The husband proffered an undertaking to the Court when the matter was before Mushin J on 9 November 2006. The undertaking is repeated in par 4 of his Honour’s orders and is in the following terms:
“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].”
226.
When the proceedings were before me Mr Thompson obtained instructions that the undertaking the husband had given to Mushin J in par 4(a) – (h) should continue until further order. It is obvious that sub-par (i) was no longer relevant. Mr Thompson told me that his client would agree to have that undertaking continue prior to Mr Levine commencing his submissions.
227.
I now turn to the wife’s application for injunctions in connection with the business entities and trusts.
228.
The wife’s case rested on the same foundation as was asserted in relation to the injunctions sought against the husband in his personal capacity as owner of the B property and the C property.
229.
I will not repeat what I have earlier said about the sale of the [C] property and the omissions from the husband’s financial documentation, save to say that my findings in regard to those matters apply with equal force here.
230.
But there are additional factors which reinforce the husband’s case.
231.
The approach that the wife has taken in seeking the injunctions set out in par 7 of her Form 2A Response is wide ranging and sweeping. Little, if any, attention has been given to the necessity for the injunctions actually sought.
232.
Not only are the injunctions sought in respect of all the companies and trusts, they are also sought without regard to the question of control.
233.
It must be recalled that the wife did not allege in any of her affidavits that the husband had control over any of the entities, nor did she provide any evidence to contradict the evidence which was placed before the Court in relation to the control of those entities. The current state of the evidence is that the husband is not in control.
234.
I note that the husband listed seven companies which were referred to in the wife’s application, which he explained no longer traded. He explained that all the other companies were trustees of trusts where the ultimate beneficial interests were held by either N Pty Ltd as Trustee of the Y Trust or Q Pty Ltd as Trustee of the F Trust. He deposed that he had no involvement with Q Pty Ltd. He also provided details in relation to the other companies, setting out the office holders, shareholders and beneficial interests in those companies. (See par 40, 41 and 42 of the husband’s affidavit filed 5 December 2006.)
235.
Further, a firm of solicitors, AB Legal, corresponded with the wife’s solicitors, inter alia, on 20 and 27 October 2006 (see Annexure “A A7” and Annexure “A A10” to the wife’s affidavit filed 6 November 2006).
236.
The correspondence refers to caveats lodged by Mr Brott on behalf of the wife over a number of items of real estate. AB Legal advised Mr Brott that the firm acted on behalf of A Pty Ltd, V Pty Ltd, Z Pty Ltd, R Pty Ltd, and X Pty Ltd. In the correspondence AB Legal also set out the office holders, shareholders and beneficial interests in all of those companies as well as N Pty Ltd and Q Pty Ltd. Those entities were among those referred to in the wife’s application. The information corroborates the husband’s evidence.
237.
Notwithstanding this information, provided to the wife’s solicitors from a separate firm of solicitors to those acting for the husband in these proceedings, the wife maintained her claim. There was no attempt made by those acting for the wife to frame any of the injunctive relief sought in a more narrow way, nor was there any attempt to take a more minimalist approach, for example, that notice should be given before any action was taken.
238.
The broad brush approach that has been adopted, of itself could well mean that the injunctions sought in par 7 are too wide and it also raises the question of whether the injunctions are necessary and if so, go no further than is necessary.
239.
In any event, the husband has proffered an undertaking that he would give the wife’s solicitor seven days’ prior notice in writing of any intention to do any of the acts set out in par 7(a) – (g). That undertaking would protect the wife’s interests in so far as they need protection, given the lack of evidence by the wife contradicting the evidence as to control. Further, the provision of seven days’ written notice of intention to do any of the acts sought to be restrained would not significantly impact on the husband’s business activities.
240.
However, the injunctions sought in par 7(h), if granted, would restrain the husband from ordinary business dealings without the written permission of the wife.
241.
In this regard the wife seeks that the husband be restrained, without her written permission, from causing or permitting any real property that is owned by a number of named entities from being disposed of, transferred, sold, encumbered, or otherwise dealt with.
242.
On the evidence the husband does not have the power to “cause” any of the transactions sought to be restrained. As to “permitting” any of the transactions which the wife seeks to restrain, the question needs really to be asked as to what the husband could do to prevent any such transaction. Moreover, in my view, the injunction is far too wide in that it seeks to restrain “dealings” with the land owned by the various entities.
243.
It must be recalled that it is common ground that the husband is a property developer. As Mr C has pointed out, all current development projects are undertaken through individual unit trust structures and each unit trust used by the Y Family Group has a corporate trustee. The husband is but one director and shareholder of each trust company and his role is day-to-day manager. It is obvious that his management is subject to the control by, and interests of, the corporate trustees, and ultimately Mr Y. Some of the development projects involve Q Pty Ltd as Trustee of the F Trust. On the evidence the husband has no involvement with Q Pty Ltd, whose directors and shareholders are TD and GD. It is clear from the document annexed to Mr C’s affidavit as well as the husband’s affidavit filed 4 December 2006, which sets out a flow chart of the unit holdings and corporate summary of the husband’s corporate interests that the projects are at different stages, so far as development is concerned. The husband’s day-to-day management of various projects would have to be regarded as “dealing” with the land in question and if he were to be enjoined against so doing without the written permission of the wife, the effect would be as seen, that the husband would be restrained from ordinary business dealings. It is also the case the developments themselves could well be put at risk, and certainly the rights of the other developers would be affected if the injunction is imposed upon the husband.
Conclusion as to Application for Injunctive Relief
244.
Mr Thompson raised the question of the width of some of the injunctive relief sought by the wife, as well as pointing to the lack of evidence to support the granting of such injunctions. He also pointed to the fact that some of the injunctive relief impinged upon the rights of third parties, who had not been given notice of the proceedings. As has been seen, I accepted those submissions had considerable merit.
245.
Unfortunately, it is not uncommon in this Court for a disenchanted spouse to rearrange his or her affairs in order to frustrate the claims of the other spouse. As Brennan J observed in Jackson v Sterling Industries Limited (1987) 162 CLR 612, the schemes which may be devised for divesting a person or company of assets are legion. However, the Court should have placed before it evidence which would justify the imposition of injunctions. It is not for the Court to speculate. In my view, the wife has not put forward such appropriate evidence, nor has she established, in particular, that the injunctions go no further than is necessary to safeguard her entitlements. It should be readily apparent from my discussion of the injunctions sought by the wife that some are too wide and that there is no evidence to support the balance of the orders sought by the wife, in the manner framed in the application.
246.
Having applied the relevant legal principles and having considered the evidence and the submissions, I concluded that the wife’s application for injunctive relief should be dismissed.
Disclosure
247.
In pars 13 and 14 of her Form 2A Response filed 2 October 2006 the wife sought extensive disclosure of certain documents. She made no mention in her first affidavit, filed on the same day, of this part of her application. She did not, for example, depose that without appropriate disclosure of these documents she was unable to prepare her case for interim financial support.
248.
There was correspondence between the parties’ respective solicitors about this issue and Exhibit “H&W1” comprises a series of letters and other documents relating to that correspondence.
249.
It should be recalled that the husband’s initiating application sought orders in relation to children’s issues together with the delivery up by the wife to the husband of all personal property in her possession or control, including but not limited to certain named items. His solicitors apparently took the view that he was not seeking an order for alteration of interests in property and accordingly he did not file a Form 13 Financial Statement.
250.
The wife did raise issues of alterations of interests in property as well as issues of spousal maintenance.
251.
In his written submissions Mr Levine noted that the wife was applying for orders for discovery pursuant to r 13.01 and r 13.04 of the Family Law Rules and pursuant to the orders of Young J dated 19 October 2006. Reference is made to par 8 of his Honour’s Reasons for Judgment. In par 7 his Honour had noted that the husband’s Financial Statement had not yet been filed and foreshadowed an order that it should be filed within seven days. The extract from his Honour’s Reasons referred to by Mr Levine and quoted in par 13 of his written submissions of 12 December 2006 referred to his Honour’s requirement that the Financial Statement would cover “all of the corporate entities, financial accounts and statements and give a totally fair, complete and fully informed position of the husband and all related entities.” Mr Levine said that the husband had not complied with his obligations pursuant to these orders and accordingly the Court should order that he make “full and proper discovery”.
252.
I have already detailed and will not repeat the undoubted fact that the husband’s financial documentation was lacking in certain respects.
253.
In his oral submissions Mr Levine touched on this matter again and also referred me to certain of the rules relating to disclosure. He then raised what he described as “the general duties of disclosure in relation to a maintenance application” set out in r 4.15.
254.
Rule 4.15 is in the following terms:
“RULE 4.15 EVIDENCE TO BE PROVIDED
4.15 Each party to a Maintenance Application must bring the following documents to the court on the first court date and the hearing date:
(a) a copy of the party’s taxation return for the most recent financial year;
(b) the party’s taxation assessment for the most recent financial year;
(c) the party’s bank records for the period of 12 months ending on the date when the Maintenance Application was filed;
(f) any other document relevant to determining the income, needs and financial resources of the party.
Note 1 Documents that may need to be produced under paragraph (f) include documents setting out the details mentioned in rule 13.04.
Note 2 For variation of a maintenance order, see subsection 66S(3) and section 83 of the Act.”
255.
Mr Levine told me that these documents had been sought by two letters both in similar terms which were subsequently clarified to be dated 18 October 2006 and 11 December 2006. Both letters form part of Exhibit “H&W1”.
256.
The first letter was sent by facsimile on the day prior to the first return date. The wife’s solicitors reminded those acting for the husband that they had not been served with the husband’s Financial Statement and asked for this to be rectified. They then went on to say:
“… The response to the Application in a Case filed by our client seeks inter alia, orders that your client provide interim spousal maintenance. We place you on notice that the Family Law Rules requires (sic) your client provide (sic) to provide the following documents on 19 October 2006:
(a) a copy of your client’s taxation return for the most recent financial year;
(b) a copy of your client’s bank records for the last twelve months;
(c) a copy of the business Activity Statements for the previous twelve months for each business that your client owns or controls;
(d) all other documents that are relevant to determining the income and financial resources of your client including all invoices for any recent purchases made by your client for his girlfriend, which we are instructed includes a new car.” (The emphasis is mine.)
257.
That notification was in accordance with the evidence required to be provided pursuant to r 4.15 save perhaps for the part to which I have given emphasis.
258.
As I have said the letter of 11 December 2006 was in similar terms however there was no reference to the Financial Statement, and understandably so.
259.
Mr Levine told me that there had not, to his knowledge, been compliance with the request. He did direct my attention to a letter dated 12 December 2006 responding to the first of the wife’s solicitor’s letters which advised that the documents were being sought from the husband and his financial advisers.
260.
In response Mr Thompson drew my attention to a List of Documents dated 23 November 2006. He pointed out that the husband’s Financial Statement filed 20 October 2006 had annexed to it a large number of documents, pointing out that it included Financial Statements and Tax Returns for the various entities.
261.
Mr Thompson also told me that his client had brought with him to the hearing relevant documents in the event that there was to be a maintenance hearing and in addition drew my attention to a letter dated 12 December 2006 sent by the husband’s solicitor to the wife’s solicitor in which specific reference was made to pars 13 and 14 of the wife’s Form 2A Response. The letter went on to say:
“… we advise that documents referable to your client’s requirements (so far as these are within our client’s possession or control) are available for inspection at the office of Rickards Legal, […], during business hours Monday to Friday, on prior appointment.
If your client has any further requirements for production of further similar and relevant financial and/or company material, please give us urgent notice.”
262.
It can be seen that Mr Levine has raised two separate issues. The first relates to compliance with r 4.15 which, as seen, sets out the documents which each party to a maintenance application must bring to court on the first court date and the hearing date. This was the only matter raised in the correspondence by the wife’s solicitors and according to Mr Levine’s submission the husband had not complied with the request and, presumably with r 4.15. On the other hand, Mr Thompson informed me that the husband had brought with him documents in the event that there was to be a maintenance hearing and pointed to the husband’s Financial Statement and the many documents which were annexed to it. The thrust of his submission was that the husband had complied with his obligations pursuant to r 4.15.
263.
Whether or not the husband had complied is a matter which cannot be determined at this stage and given that the maintenance application was adjourned, in any event, need not be determined.
264.
I therefore now turn to the application for disclosure as set out in the wife’s Form 2A Response.
Disclosure under the Family Law Rules 2004
265.
The Family Law Rules 2004 introduced a major reform in the concept of discovery, following the lead of the United Kingdom and Queensland. It was intended to bring about a fundamental shift in the attitude to this important area of litigation (see the Explanatory Statement).
266.
The Explanatory Statement (“ES”) explains that Ch 13 of the Family Law Rules codified the concept of the duty of disclosure, required parties to certify that they were aware of the duty and had complied with it and confirmed that there were significant consequences for failure to comply. It required parties to concentrate on the disclosure relevant only to the issues in dispute, in order to keep in mind the aim of proportionality and the need to focus on those issues in dispute. It was further noted that the “litigation tool” of complete disclosure was an expensive process and was therefore timed to commence only after the Final Resolution event. At that stage the parties should be in a position to know what issues need to be proven and should therefore be able to concentrate on obtaining disclosure relevant to those issues.
267.
The ES noted an important difference between the revised Rules and the earlier Rules. The Court’s expectation would be that parties would not go on a “fishing expedition” or apply for a general order, but would direct their mind to the higher standard and consider what is directly relevant to the disputed issues.
268.
The Rules require that parties in financial cases exchange significant documentation in the resolution phase. Moreover, the Registrar has the discretion to order that certain specified documents be provided if he or she is satisfied that this is necessary to enable the parties to resolve the case at the Conciliation Conference.
269.
Disclosure is a continuing obligation, however, there are several stages of a financial case at which specific disclosure obligations arise. These stages are:
· At the Pre-Action Procedure Stage;
· At the time a Form 1 Application for Final Orders or a Form 1A Response is filed;
· Prior to the first court event;
· Prior to the Conciliation Conference
· After the Resolution Event;
· At the time of the Pre-Trial Conference.
270.
Rule 1.05 requires parties to follow pre-action procedures before filing an application, although the rule provides for some limited cases where it would not be appropriate for this to be insisted upon. The parties are required to make a genuine effort to resolve the dispute before starting a case by participating in primary dispute resolution, such as negotiation; by exchanging a notice of Intention to Claim and exploring options for settlement by correspondence; and complying as far as practicable with the duty of disclosure. The procedures are set out in Schedule 1. In financial cases, in broad terms, the parties must exchange certain documents. These are:
· A schedule of assets, income and liabilities;
· A list of documents in each party’s possession or control that are relevant to the dispute;
· A copy of any document requested by the other party from the list.
271.
I was not informed as to whether there had been compliance with the pre-action procedure. There was certainly correspondence annexed to the wife’s affidavit which dealt with children’s issues as well as her requests for payment of certain accounts.
272.
Rule 12.02 sets out the requirement for the parties to exchange certain documents prior to the first court date in a property case. This needs to be done at least two days beforehand. I have not been made aware as to whether the parties did exchange copies of those documents.
273.
Part 13.1 deals with the general duty of disclosure and applies in all cases. Rule 13.01 sets out this general duty of disclosure and r 13.02 sets out the duty of disclosure required by parties to a financial case.
274.
Rule 13.04 requires a full and frank disclosure of a party’s financial circumstances. As the ES notes this rule was formerly O 17. r 3 (FLR 1984) and it has been extended significantly to ensure that it is contemporary, relevant and useful in relation to complicated financial structures as well as less complicated arrangements.
275.
Provision is made in Part 13.2 for the duty of disclosure in respect to documents. Division 13.2.1 applies to all cases. Division 13.2.2 applies to disclosure of documents in certain cases. Those cases are applications for divorce, nullity, validity, maintenance only, child support only, Applications in a Case, Contravention and Contempt Applications and small claims. Division 13.2.3 applies to disclosure of documents that apply to all applications for final orders except (in broad terms) the cases referred to in Div 13.2.2. As I have already recorded r 4.15 sets out the documents which both parties are to bring for the first court date and the hearing of maintenance applications.
276.
The general duty of disclosure is set out in r 13.07. As is noted in the ES this rule imposes a duty on a party to disclose documents in the possession or control of the party that are “directly relevant” to an issue. The intention was to oblige parties and lawyers to focus attention at an early stage upon the real issues in dispute and the documentary evidence that goes directly to those issues.
277.
Rule 13.08 provides:
“RULE 13.08 INSPECTION OF DOCUMENTS
13.08(1) A party may, by written notice, require another party to provide a copy of, or produce for inspection, a document referred to:
(a) in a document filed or served by a party on another party or independent children's lawyer; or
(b) in correspondence prepared and sent by or to another party or independent children's lawyer.
History
13.08(2) A party required to provide a copy of a document must provide the copy within 21 days after receiving the written notice.”
278.
I am not aware as to whether or not such notice was given by the solicitors for the wife to the solicitors for the husband. However, in my view, this rule would not apply in circumstances where, at any stage, a party or solicitor could simply send a letter referring to a document or documents and then be entitled to rely on the rule to enforce disclosure or inspection. This would have the effect of circumventing and rendering nugatory the carefully planned disclosure process which the Rules have set up for various stages of proceedings and for certain and different types of cases. If my interpretation is wrong, I would decline in any event to exercise my discretion for the same reasons I have noted above. In my view this rule could be utilised for example, where a party contended in an affidavit or in correspondence that an asset had been inherited or purchased prior to a relationship. The Will or contract could be called for.
279.
That is not to say that parties might not elect to be more fulsome in the provision of documents than that which is strictly required by the Rules. But it also does not mean that a party is entitled to ignore the limitations imposed under the Rules as to disclosure at various stages and to issue an application such as the present one at the stage when it was in fact issued.
280.
The proceedings which came before me involved an Application in a Case and a maintenance application, and as such come within Div 13.2.2. The relevant rules are rr 13.17 and 13.18. As seen, r 4.15 also applies, however, this requires documentation to be brought to Court.
281.
Pursuant to r 13.18 a party may seek certain limited orders about disclosure, namely that another party deliver a copy of a document; and/or that another party produce a document for inspection by another party.
282.
The other significant applications which came before me are the competing applications of the husband and the wife for final orders. As such, r 13.19-r 13.21 are applicable. As is explained in the ES the process in general terms, is that after the Final Resolution event, a party may request the other party to provide a List of Documents (i.e. not an Affidavit of Documents); the other party must, within 21 days, provide a list of documents to which the duty of disclosure relates; the first party can seek copies of the documents and these must be provided within 14 days; if there are too many documents, inspection can be arranged and the copies required can be indicated at that time; if an objection is taken to disclosure or if there is non-compliance, a party can apply for an order.
283.
The ES goes on to say that the effect of those provisions is that the expensive litigation tool of disclosure is limited to the determination phase. As far as I am aware, a Conciliation Conference has not been appointed for this case. The ES goes on to note that there is a discretion to order that certain specified documents be provided prior to a Conciliation Conference, if the Registrar is satisfied that this is necessary to enable the parties to resolve the case at the conference, noting that this, coupled with the various rules that require significant exchange of documents in financial cases, should enable parties to be fully prepared and apprised of relevant effect for the resolution phase.
284.
It has not been suggested to me that provision of any of the documents are necessary to enable the parties to resolve the case at a Conciliation Conference.
Conclusion
285.
It will be recalled that the husband through his solicitors, provided a List of Documents dated 23 November 2006, and offered inspection of those documents. The solicitors also pointed out on 12 December 2006, and with specific reference to pars 13 and 14 of the wife’s Form 2A Response that documents referable to her requirements were available for inspection at their office, so far as those documents were within the husband’s possession or control. Relevantly, the request was made that if the wife had any further requirements for the production of further similar and relevant financial and/or company material then urgent notice should be given.
286.
I have not been advised as to whether inspection has taken place or as to whether copies of the various documents were requested.
287.
Both parties, of course, remain bound to produce at the hearing of the wife’s spousal maintenance application the documents (where relevant) referred to in r 4.15.
288.
Criticisms of the former discovery regime included the costs and delays associated with discovery; the use of discovery as a tactical weapon; the use of discovery as a “fishing expedition”; and the “over-discovery” that sometimes arose. Disclosure is expensive and that is why its usage is limited, and in my view, it should be strictly controlled. There has not been a Conciliation Conference and it has not been submitted to me that the documents are necessary to enable the husband and the wife to compromise their differences at that conference, whenever it may be appointed.
289.
In all of those circumstances it is my view that the only documents which should be provided (if they have not already been so provided) are those referred to in r 12.02. It should be noted that both parties are required to exchange the documents, as far as practicable, and this should have been done at least two days before the first court date.
290.
To my mind, no order is required to give effect to this.
Interim Financial Arrangements Pending the Hearing of the Wife’s Spousal Maintenance Application
291.
In his written submissions Mr Thompson had foreshadowed that it would be sought to cross-examine the wife. I had made it clear that I was prepared to deal with the question of spousal maintenance on the papers but pointed out that if the matter was not heard it would be because of the request to cross-examine. I indicated that I was not unsympathetic to the wishes of either counsel to cross-examine and pointed out further that if Mr Thompson, as a responsible member of counsel, put to me that it was necessary for the purpose of his clients’ case, then an application to cross-examine would be granted. I went on to say that equally obviously, arrangements would have to be either put in place or continued until the matter returned to court. As will be recalled the matter was stood down for discussion between counsel on a number of issues, one of which was as to interim arrangements for the provision of funds for the wife pending any adjournment of her maintenance application.
292.
One of the options that was discussed was that the Senior Registrar could hear the application for maintenance as a discrete issue and when the matter came back to Court after discussion I was able to inform counsel that the Senior Registrar had available a full day to hear the matter on 24 January 2007. However, Mr Thompson then told me that in the course of their discussions he and Mr Levine had agreed that the parties should have a private mediation and proposed that this mediation should be held before the hearing of interim issues. The proposal was that mediation would take place in late February or March.
293.
The husband’s affidavit filed 5 December 2006 had put in issue the wife’s alleged level of expenditure as well as the husband’s capacity to pay and in his written submissions he had raised the issue of the wife’s capacity to work (inter alia).
294.
The husband’s proposal was that payments he made or caused to be paid from moneys advanced by his mother and the loan account with N Pty Ltd, which equated to $2,886 per week, should continue and in addition he proposed payment to the wife of $480 per week. The husband had complained that a motor vehicle which was provided for the wife’s use had been badly maintained and accordingly he was not prepared to pay for costs of the vehicle if the wife was negligent in the upkeep and maintenance of it or deliberately caused damage to it.
295.
Mr Thompson submitted that this proposal should be embodied in an interim order pending further hearing of the spousal maintenance application.
296.
Mr Levine submitted that the quantum of interim spousal maintenance would need to be an arbitrary assessment given that the parties’ respective cases were not going to be considered in any great detail. He then submitted that this arbitrary figure should be backdated to 1 December 2006. This was said to be because Mushin J’s orders were predicated on there being a directions hearing in that week in which directions for spousal maintenance would be given. As I said at the time, that did not emerge from his Honour’s orders. In any event, as I pointed out to Mr Levine, if it had been intended that there be a directions hearing at an earlier date, that would not mean that there would be a hearing of the spousal maintenance claim or the other matters which were the subject of the competing applications. No authority was put forward in support of Mr Levine’s claim for a retrospective order.
297.
Mr Levine submitted that the figure of $480 was insufficient for various reasons. In particular, he submitted that it was likely to be a substantial period of time before the spousal maintenance claim was heard. Whilst I agreed with this I pointed out the parties proposed to go to mediation before any determination of that matter. Mr Levine then told me that his instructions were that the spousal maintenance hearing should take place in January. He eventually conceded it had been agreed that there would be private mediation to take place in late February or March which should precede the further hearing of the maintenance application. He went on to say however that, given the urgency of the spousal maintenance and potential delay, his instructions were that there should be an earlier hearing.
298.
Mr Levine made further submissions in support of his application, which he eventually quantified, namely the husband should pay the sum of $1800 per week, and continue to make the other payments which the husband was causing to be paid.
299.
It will be recalled that Young J had made an order (inter alia) for the husband to pay the wife the sum of $3,500. He did not apportion that as maintenance, saying it was not to be taken and divided by the number of days or weeks between the time the matter was before him and the adjourned hearing date. When the matter was before Mushin J on 9 November 2006, his Honour made a similar order and on the same basis, namely in accordance with the ex tempore Reasons for Judgment given by Young J on 19 October 2006.
300.
Given the substantial dispute between the husband and the wife on many issues concerning the quantum of spousal maintenance which were not able to be determined when the matter was before me, I took the pragmatic (but not arbitrary) decision also to make an order for the payment of $3,500 and at Mr Levine’s suggestion and with Mr Thompson’s consent clarified this by way of a notation to the orders, that the payment of the lump sum was not to be apportioned as maintenance for the same reasons that Young J had set out in his Reasons for Judgment given 19 October 2006.
Application for Disqualification
301.
When this hearing commenced I made it clear that counsel were to have until no later than lunchtime to speak to their written submissions. I had in mind that I could consider the matter and to hopefully give judgment in the afternoon. I pointed out that I had had the significant opportunity to consider the submissions in detail, given that a case which I was due to have heard on the preceding day did not in fact proceed. I also informed counsel that I had some preliminary thoughts as to some aspects of the various claims and I thought it might be helpful if I went through those, however, provided I could be assured that submissions would be finished by no later than one o’clock I would provide some time and indeed would welcome the parties taking some time to consider certain questions. Mr Thompson and Mr Levine both agreed that it would be helpful if I told them what my present inclination was in respect to some of the matters which fell for decision. I then did so. Subsequently, and after discussion between counsel, the submissions commenced.
302.
Mr Thompson spoke to his written submissions and in doing so was conscious of the need to allow Mr Levine to have sufficient time to speak to his submissions, whilst complying with my direction that submissions should be finished by 1pm.
303.
During the course of Mr Levine’s submissions, his instructing solicitor came and went from the Court on a number of occasions, seemingly to provide Mr Levine with information relating to a person or persons who would be suitable to prepare the Family Report. Mr Levine as a consequence at times interrupted the flow of his submissions to provide me the most recent information that had been obtained in this regard. At one stage I told him that I did not want him to be interrupted during the course of his submissions because he could not concentrate and nor could I when I heard other people speaking in Court. Mr Levine at that stage had been making some further submissions in respect to the issue of interim spousal maintenance, saying that a reasonable amount was far in excess of $480 per week, and that a “more appropriate sum” should be allocated for the interim period. I asked him what that figure was. Mr Levine responded by asking if he could “have a minute” with his instructing solicitor, as I thought to obtain instructions as to quantum. However, Mr Levine told me that his instructions were very clear and he was making an application that I should disqualify myself:
“On the basis that your Honour has taken a certain view of both Mr Brott and I, that your Honour has treated Mr Thompson with far more deference and courtesy and that your Honour is not interested in listening to my submissions.”
304.
I responded:
“Mr Levine, I just asked you to tell me, please …”
305.
At that stage Mr Brott, who had been seated opposite Mr Levine at the Bar table as his instructing solicitor, sprang from his seat, interrupting me and addressing the Court. The following exchanges then took place:
“Mr Brott: No, you were asking in a demeaning manner.
Her Honour: Mr Brott.
Mr Brott: I appear on behalf of myself and my client. The manner in which you are treating …
Her Honour: Adjourn the court.
Mr Levine: No, you can’t. The wife needs some spousal maintenance, just – it’s outrageous.
Her Honour: Adjourn the court. I have a judgment to give at 2:00 or 2.15. This case will resume after I have given that judgment.”
306.
Subsequently, Mr Levine clarified that the nature of the disqualification was apprehended bias, and not actual bias.
Relevant Legal Principles
307.
In Johnson v Johnson (2000) 201 CLR 488, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ discussed the grounds upon which a judge should accede to a disqualification application such as this commencing at par 10.
308.
At par 11 their Honours had this to say:
“… the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias … is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.”
309.
At par 12 their Honours went on to say:
“… At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is ‘a professional judge whose training, tradition and oath or affirmation require [the Judge] to discard the irrelevant, the immaterial and the prejudicial’ (Vakauta v Kelly (1989) 167 CLR 568).”
310.
Thereafter their Honours said at par 13:
“Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases, to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate pre-judgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute whilst evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issues, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.” (Footnotes omitted.)
311.
In Johnson, Callinan J referred with obvious agreement to the judgment of Mason J (as he then was) in Re JRL; Ex parte CJL (1986) 161 CLR 342. Mason J had said at 352:
“It needs to be said loudly and clearly that the ground for disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provided an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way.”
312.
Later, having referred to a number of authorities his Honour had this to say:
“Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking a disqualification of a judge they will have their case tried by someone thought to be more likely to decide the case in their favour.”
313.
In Johnson, Kirby J referred to this latter statement as a “salutary warning” saying that it warned judicial officers in Australia:
“… not to accede too readily to suggestions of an appearance of bias, lest parties be encouraged to seek such disqualification without justification. Applications of that kind might sometimes be made in the hope in securing an adjudicator more sympathetic to a party’s cause. Or they might be made because of the strategic advantage that may thereby be secured, especially the interruption of lengthy proceedings and the delays consequent upon obtaining a fresh start in a busy court or tribunal.” (Footnotes omitted.)
314.
In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Gleeson CJ, McHugh, Gummow and Hayne JJ had this to say:
“Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judge. If one party to a case objects to a particular judge sitting, or to continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.”
315.
In the course of a submission that it was relevant to the perception of a third party sitting at the back of the court room to know the context of the case, Mr Levine told me that he was instructed that there was “a Federal Court decision called Australian Airlines and Ors” which was on point. When I asked what was the full name of the case, Mr Levine told me that it was Australian Airlines v Aussie Airlines. Given that he did not have the case with him, I asked him to email the citation to my Associate, and he agreed to do so. No such information has been provided, I am sure, inadvertently.
316.
My own researches lead me to believe that Mr Levine was probably referring to the decision of Merkel J in Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd and Anor (1996) 65 FCR 215. Whilst there is some general discussion about the law relating to apprehended bias, the case concerned disqualification by association. As such it has little relevance to the present case. Furthermore, it preceded the decision of the High Court in Johnson. That is not to say that I do not have the greatest of respect for his Honour’s decision and his eloquent Reasons for Judgment.
The Fictional Observer
317.
I have already referred to the fictional observer in the sense used by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson.
318.
In the same case, whilst stating that the attributes of the fictitious bystander have been variously stated, Kirby J had this to say at par 53:
“53. … Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances … The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious. (Citations omitted.)
319.
At par 80 of Johnson, Callinan J noted that it was important to keep in mind:
“… that the notional, fair-minded observer is a rational person not unacquainted with the legal process, the oath or affirmation that Judges have taken and judicial obligations generally, and in broad terms what has occurred and may occur in the case before and after the challenged conduct.”
320.
Hereafter, when I use the term “the fictional observer”, it should be understood that I am using it in the sense used in the authorities referred to and relied upon by the members of the High Court in Johnson.
Grounds
321.
When Mr Levine first made his oral application that I should disqualify myself, he submitted that there were three bases. They were firstly that I had taken “a certain view” of both Mr Levine and his instructing solicitor; secondly, that I had treated counsel for the husband with far more deference and courtesy than I had treated Mr Levine; and thirdly, that I was not interested in listening to Mr Levine’s submissions. The matters later raised by Mr Levine can largely be dealt with within those areas.
The Contention that I took “A Certain View” of Counsel and his Instructing Solicitor
322.
Mr Levine submitted that my behaviour in another case in which he appeared on instructions from Mr Brott was very similar to my behaviour in the present case. He said that I “actually spoke” to his client; that I activity and totally discouraged her from proceeding or continuing to retain him and Mr Brott; that I, to use his word, “rubbished” his submission in front of his client; and that I so undermined his credibility and that of his instructing solicitor that she terminated her instructions.
323.
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.
324.
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.
325.
To my mind Mr Levine’s contention is misconceived.
326.
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.”
327.
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.
328.
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
329.
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.
330.
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.
331.
It is convenient to note here that much the same happened when Mr Thompson drew my attention to Ascot Investments Pty Ltd v Harper.
332.
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.
333.
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.
334.
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.
335.
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.
336.
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 …”
337.
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.
338.
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.
339.
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.
340.
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.
341.
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.)
342.
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.
343.
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.
344.
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
345.
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.
346.
Having checked the transcript it is quite clear that I did not make the statement attributed to me by Mr Levine.
347.
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.”
348.
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.”
349.
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.”
350.
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.
351.
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.
352.
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.”
353.
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.
354.
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?”
355.
There then followed the discussion about it being the wife’s opinion that the children should accompany the husband.
356.
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.
357.
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.
358.
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.”
359.
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
360.
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.”
361.
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.
362.
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
363.
Unless there has been compliance in the last day or two with the relevant orders, the following matters remain outstanding:
363.1 The 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).
363.2 The 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).
364.
These matters must be immediately dealt with.
Final Observations
365.
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.
366.
It is not necessary to repeat the orders which I made on 15 December 2006 however for ease of reference I will summarise them.
366.1 I granted the husband’s application and appointed [Ms B] as the single expert in this case as to children’s issues.
366.2 I 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.
366.3 I refused the wife’s application for the return of the piano.
366.4 I granted the husband’s application that the wife remove the caveat lodged over the property at [C].
366.5 I 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.
366.6 I 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.
366.7 I 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.
366.8 I dismissed the wife’s application that I be disqualified from further hearing this matter.
366.9 With 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.
367.
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
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.