LEVINSKI & LEVINSKI

[2017] FamCA 369

FAMILY COURT OF AUSTRALIA

LEVINSKI & LEVINSKI [2017] FamCA 369

FAMILY LAW – PARENTING – Interim – Best interests – Where there are two children – Where one child has a disability – Where the father has assaulted the child – Where the father spends time with the children on a supervised basis – Orders made that the children live with the mother and spend an increased amount of supervised time with the father.

FAMILY LAW – PROPERTY – Interim – Where the fathers seeks the sale of a property that the mother seeks to retain on a final basis – Where the proceedings involve disputes as to property that cannot be determined at an interim level – Application dismissed save for payments from a line of credit.

FAMILY LAW – CHILD SUPPORT DEPARTURE – Interim – Where it is not appropriate for the Court to entertain the application in circumstances where the parties’ financial circumstances are unclear and other necessary findings cannot be made – Application dismissed.

FAMILY LAW – PRACTICE AND PROCUDURE – Expedition – Application to expedite the final proceedings – Where all parties support the application – Order made to expedite final proceedings.

Family Law Act 1975 (Cth) ss 60CC, 79

APPLICANT: Mr Levinski

RESPONDENT: Ms Levinski

INDEPENDENT CHILDREN’S LAWYER: Ms Huda

FILE NUMBER: SYC 6474 of 2015

DATE DELIVERED: 7 April 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 7 April 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schonell SC

SOLICITOR FOR THE APPLICANT: Barkus Doolan

COUNSEL FOR THE RESPONDENT: Mr Campton SC

SOLICITOR FOR THE RESPONDENT: York Law

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. In addition to the payments authorised from the line of credit secured on the former matrimonial home at Suburb B pursuant to orders made on 25 January 2016 and any relevant subsequent orders, the parties shall do all things and sign all documents necessary to cause the following additional payments from the line of credit:

   (a)The sum of $5,207.20 to the mother referable to expenses she incurred for the Suburb B property falling under provisions of Order 5(b) of the orders of 25 January 2016;

   (b)The payment to C School at Suburb D of the school fees owing for E for the 2017 school year; and

   (c)The payment to Mr F for his fees for valuation work done after 12 March 2017.

2. All current parenting orders are varied until further order, as the parties may agree in writing and in accordance with paragraphs 6-13 inclusive of the Amended Response to an Application in a Case filed on behalf of the mother on 6 April 2017, and paragraphs 8 and 11 of the orders proposed on behalf of the Independent Children’s Lawyer in her Case Outline document (Exhibit 5 dated 7 April 2017) as set out hereunder:

   Amended Response to an Application in a Case filed on behalf of the mother

   1.      That the children of the marriage G, born … 2003 (“G” and E (“E”) born … 2005 live with the Mother.

   2.      That the Children spend time with the Father on a supervised basis as follows:-

   (a)Each Wednesday from 5.00 pm until 8.00 pm;

   (b)Father’s Day from 10.00 am to 2.00 pm;

   (c)On the children’s birthday as follows:-

   (i)If the child’s birthday falls on a school day then from 5.00pm to 7.00pm;

   (ii)If the child’s birthday falls on a weekend, then from 10.00am to 2.00pm;

   (d)deleted

   (e)Each alternate weekend from 10.00 am to 5.00 pm on each of Saturday and Sunday;

   (f)On Easter Sunday OR Easter Monday in 2017 from 10.00 am to 5.00 pm.

   3.      That the Mother be permitted to take the children or either of them outside the Commonwealth of Australia on holiday or to allow the children to spend time with their maternal grandparents on the basis that:-

   (a)the Mother give the Father 28 days notice in writing of her intention to do so, except in the case of an emergency;

   (b)the Mother provide the Father with makeup time within 3 weeks of the children’s return form holiday;

   (c)the Father’s time as provided for in Order 6 *2 is suspended.

   4.      That the Father be restrained by injunction from initiating any discussion with the children or either of them about:

   (a)Any allegations made in these proceedings;

   (b)About the issues that arose in October 2015;

   (c)About the child E spending unsupervised and/or overnight time with him

   And that he be do all acts and things and ensure that no third party initiates any discussion with the children or either of them about these proceedings and the matters raised herein.

   5.      That the Father be restrained by injunction from denigrating the Mother or her family in the presence of or hearing of the children and further that he ensure that no third party denigrates the Mother or her family in the presence of or hearing of the children or either of them. 

   6.      That the Mother keep the Father informed of the children’s health.

   7.      That the Mother authorise the children’s schools to provide the Father with information about the children’s progress, copies of school reports, copies of school photos and any other information referrable to the children’s progress at school. 

   8.      That the Father’s time as provided for in Order 6 *2 be supervised at all times by L Group.  

   Exhibit 5:

   8       For the purposes of communicating information between the parties the mother and the father shall communicate by telephone matters of an urgent nature but otherwise communicate by email about day to day matters including arrangements for each party to spend time with the children;

   …

   11     Each party is restrained from using the children to make, confirm or negotiate parenting arrangements with the other parent.

3. Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

4. The Court noted that the solicitors for the father will accept service of subpoenas to Ms H and to Ms I. By consent the subpoena to Ms I will be complied with within 14 days and the subpoena to Ms H, by 12 May 2017.

5. All outstanding interim applications are otherwise dismissed.

6. The costs of the parties are reserved.

*7.The father is to disclose documents comprising the assets of his late mother’s estate within 14 days from 7 April 2017.

*8.The proceedings be expedited.

* Amended pursuant to Reg 17.02 of the Family Law Rules 2004 (Cth) on 15 May 2017.

Note:  The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Levinski & Levinski has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC6474 of 2015

Mr Levinski

Applicant

And

Ms Levinski

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These reasons were give ex tempore and have been corrected. In some instances reasons were given during the course of the hearing and other reasons were given at the end of the hearing.

2. These are interlocutory proceedings.  The parties were before the Court on 30 November 2016.  The matter was put over as a special fixture on a procedure provided for interlocutory cases that are likely to take more than two hours and that are therefore outside the duty list rules.  That said, the parties did reach an agreement on that day in relation to some parenting orders and financial matters. 

3. The mother is 48 years of age.  She was born in New Zealand.  The father is 55.  They started living together in 1997, were married in 1999 and separated in June of 2015.  On separation, the mother remained in the former matrimonial home at Suburb B.  The parties have two children.  G was born in 2003 and E, in 2005.  G is in Year eight at J School at Suburb K.  He suffered injury as a result of a mishap at his birth.  He suffers from cerebral palsy and a number of other debilitating conditions.  But for a Cochlear Implant he would be deaf.  E is in Year six at C School at Suburb D. 

4. Proceedings were taken as a result of what happened to G and an award was made in the sum of $6 million.  A trust has been established which is administered separately from the parties.  Among other things, $450,000 was contributed by the trust to the alteration of the Suburb B property for the benefit of G and a carer’s allowance is paid to the mother for the purposes of her care of him. 

5. Among the orders made on 30 November 2016, it was ordered that the children live with the mother, that there be supervised time with the father each Wednesday from 5.00 pm to 8.00 pm and on alternate Sundays, 10.00 am until 3.00 pm.  Supervision was to be provided by an agency called L Group. 

6. There are a number of issues that the parties wanted to agitate today.  In relation to the parenting dispute, the father seeks a program of increasing time with both children, and the mother proposes a few extra hours on a daytime-only basis, with that time to continue to be supervised. 

7. The father assaulted G on 17 October 2015. The father was charged, he pleaded guilty and was placed on a good behaviour bond. I think that the father might have been fined, but in any event the matter was dealt with under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). That provision allows for offences to be found without a conviction being recorded. It is really the consequences of that incident that have led to the current parenting arrangements. The evidence is that since separation but prior to that assault, there had been overnight time between the father and the children on a fairly usual basis.

8. The parties saw a Family Consultant.  The Family Consultant had read some material and assisted by interviewing the parties and the children, made some observations in relation to what should happen.  The Family Consultant tried to build on concessions that were made, particularly by the mother, about there being a loving relationship between the father and the children; what seemed to be a level of agreement about the suitability of a paternal aunt as a supervisor; and the contemplation of more time between the father and the children.  That advice found its way into a memorandum from the consultant. 

9. The children are represented and their representative advocates a progression of the duration of time with the father, albeit still supervised. 

10. I indicated to the parties before lunch that I was not going to go beyond what was agreed.  It transpires that that amounts to something of significance.  The mother had proposed an extra two hours on a Sunday whereby instead of finishing at 3.00 pm the time would extend to 5.00 pm.  She also agrees to further time on the same weekend as the alternate Sundays, being time between the same hours (10.00 am and 5.00 pm) on the Saturday and for time on some special days. 

11. In brief, it is usually not possible for interim proceedings to achieve the same outcome as final proceedings.  In interim proceedings, there is no possibility of identifying the truth about various issues, nor of making necessary findings of fact about issues, even on the balance of probabilities. 

12. All I have are a number of assertions.  It is not sufficient to say that all was well at some time in the past and therefore a prior regime should resume.  Firstly, there was an assault on a child.  That may have been out of character; it may have been provoked; it may have been understandable; and it may never happen again.  Nevertheless there was an assault.  Secondly, it is not agreed that all was well prior to the assault.  The mother says that there were incidents of violence prior to that.  That may be true or it may not be true.  It is dangerous to make decisions about children if you do not have all of the facts.

13. Learned senior counsel for the father berated me before lunch about giving some status or priority to what the mother wanted, and as I explained to him, a position arrived at between parents by agreement or concession is the gold standard outcome in family law in Australia.  If the parents can agree about something, well and good.  Parents do amazing things with their children that a Court would never contemplate.  If the parents agree, provided it does not sound like witchcraft or child abuse, the Court would normally implement that agreement because it is the parents who will implement the arrangements.  These parents know everything about G and E.  They know everything about each other.  If the mother is sanguine about a particular arrangement, that is perfect.  That is the best outcome.  At this stage, the parents cannot agree about everything.  Presumably, at some time in the past they did agree.  We would hope and expect that the parents will again get to a point where they are able to agree about parenting arrangements.  It is more likely than not that they will ultimately agree.  They will need to do that because these parents have been set a challenge that will not conclude when their children are 18.  They have been set a terribly difficult parenting task.  They will need to improve their cooperative parenting if these children are going to get the best out of their relationship with them. 

14. The Family Consultant does not purport to make recommendations as to what should happen on an indefinite basis.  She was not possessed of the information that would enable her to make recommendations about what would happen on a final basis.  As has been said in the course of submissions, her conclusions may well be challenged.  She might be challenged about her observations. 

15. In making decisions in the best interests of a child, the Court is required to have reference to the legislation.  Ideally there would be agreed facts to support a decision on an interim basis about the impact of those criteria.  It is not possible to do much of that today.

16. Section 60CC of the Family Law Act 1975 (Cth) (“the Act”) contains a menu of things, which starts with the priority given to a relationship between parent and child and about safety. As between those considerations, safety is more important than the relationship between parent and child. Then there is a long menu of things, starting with the wishes of the children and the weight those wishes should be given because of their maturity and other things. The Family Consultant opined “[E] doesn’t want to have overnight time with her father”. However, in the next sentence she recorded that “If she ([E]) knew some other people in the household, she would have overnight time”.

17. The criterion in s 60CC of the Act relates to the views expressed by the child. What does she want? Well, arguably, what she wants is not to have overnight time with her father. According to the memorandum (that cannot be tested at this stage) she would agree to have overnight time if someone else stayed overnight with her. Who knows what is behind all of that.

18. The problems of dealing with these issues on an interim basis have led to courts being conservative in circumstances such as this.  That can be frustrating, as I said to the parents earlier today.  We ask them to be patient at this time.  I know that is one of the hardest things one can do, but no harm will come to the children if such an approach is taken.  There is no suggestion of any harm coming to them.  Provided the children are bonded and securely attached to their parents, all will be well.  The agreed evidence suggests that the children love their parents.  In fact, in E’s case, she is probably taking up some responsibility for her parents.  She is worried about her father being sad and is worried about what he wants.  We need to sack her from her job of taking responsibility for her parents, and we need her back being an 11 year old child worrying about what she watches on TV. 

19. I will make orders that are qualified by “unless the parents otherwise agree”.  The chances are they will agree to some changes to the orders, at least one would hope so.  It is madness and difficult to manage a family on the basis of the rigidity of Court orders.  Let us hope that the mother feels more confident, and that she and the father can reach an agreement.  There is no doubt that it is artificial to have a complete stranger supervising a parent’s time with children.  It sounds like L Group have done a good job with their supervision of the father’s time but with the best will in the world, supervised time is odd and artificial and it limits what you can do.  There is no doubt about that.

20. Therefore it would be good to get back to a more relaxed environment if that is in the best interests of the children.  If the parents can decide to do that, well and good.  If not, somebody here might have to decide what is to happen, but they will do that with more information than I have today.  There will be an expert’s report.  There is a job of work in that exercise in these proceedings because there are medical issues to be factored in.  There may also be some mental health issues to be factored in.  Each of the parents, through their counsel, have raised those issues today. 

21. It was not an unremarkable thing that has triggered this problem.  A criminal assault of parent on child is unusual.  It is not natural and it is a betrayal of the natural order of things.  Children look to their parents for support and comfort, not for assault.  Therefore it is understandable that the assault has derailed the parties to some extent.  It may be necessary to search for a reason for the incident.  It might be that it was a complete aberration.  The mother is concerned that it might not have been an isolated incident.  However, the father has taken some steps to address the issue.  It would be very frustrating if there is no problem, to try and prove a negative.  However if the father does have a problem, then there is a significant body of work to be done to make sure that it does not happen again.  Of course, here, one child is not progressing with his age cohort.  He may not be able to raise his concerns in a timely way or at all, so that the problem can be addressed quickly.  G is particularly vulnerable. 

22. I am going to make orders that have now been proposed on behalf of the mother, and they are the orders set out in her Amended Response, but adding instead of 7(e), each alternate weekend from 10.00 am to 5.00 pm on each of the Saturday and Sunday. 

23. There are number of financial-related matters that have agitated the parties.  The father proposes that a property in New Zealand be sold, and that there be a distribution of the proceeds.  The law is nice and clear about that.  I am not to take a step on an interim basis that cannot be undone on a final basis.  There are some obvious exceptions to that, but they do not apply here.  If the sale was going to prevent something worse happening, such as might occur with a mortgage default, the Court might act.  In order to avoid a mortgagee sale the Court may well order the sale of a property.  The reason for this is obvious.  Although it has been accepted that s 79 orders can be made in different parts, there is a coherent exercise of power under s 79, and the task there is to make a just and equitable distribution of property.  If something is done on an interim basis, without the ability to make findings of fact on disputed issues and so on, the whole exercise of power could be jeopardised.  In this instance, the mother says, “I want to retain that property.”  It was said on behalf of the father, “It’s not feasible for her to retain that property.”  It is said on behalf of the mother, “Yes, it might be.”  I cannot resolve that dispute today. 

1. In some cases, it might be found to be not just and equitable to change any interests in property, but I do not think that applies here.  The steps in the exercise of power under s 79 are to identify the assets and their value, to make assessments about contributions and to decide what proportion division would be appropriate based on that.  Then, by reference to the non-contribution aspects of s 79(4), the Court is to decide whether there should be an adjustment to the contribution based division, all working towards a just and equitable division of property. 

2. Here there is a draft balance sheet which identifies some disputes between the parties.  The value of the former matrimonial home at Suburb B is put at $1.8 million or $2.6 million.  There are issues about the value of the father’s business.  I cannot resolve those disputes now.  In terms of financial resources, there is an undistributed interest in an estate to come to the father.  That would be relevant to the exercise of power under s 79. 

3. The father says that the mother will not be able to retain both the Suburb B property and the New Zealand property, because he brought in $1 million to the marriage.  “Not so”, says the mother.  She contends that three or four years beforehand, the father probably had something less than $100,000, based on what he disclosed to a court in connection with the property settlement with his first wife.  It that position was confirmed there would is an issue about how the father accumulated $1 million on a base of $100,000 only four years earlier.  There are questions to be asked about that and I cannot make a finding about those things today.

4. There are other potential complications in the case.  There is the issue here of, in effect, balancing what would be a massive s 75(2) adjustment based on G’s situation because by reference to the fact that he has assets of his own.  So there is that complication.  There is a little issue about an undisaggregated proportion of the Suburb B property belonging to an estate.  For those reasons and others, I cannot say with any degree of confidence that it is not possible that the mother would retain the New Zealand property on the final property settlement. 

5. The father wants both properties sold.  If he succeeds in that argument, it might be that the mother would prefer to retain the New Zealand property and to have the Suburb B property sold.

6. As is said on behalf of the mother, the father has not accounted for all other possible sources of funds to meet his immediate needs.  He has the joint ownership of other assets.  He has had access to other funds.  He has the estate interest coming to him.  He has not exhausted his other options but he wants something sold that the mother wants to retain.  It is not the case that the need for funds to pay lawyers is an overarching priority.  It is a good thing that parties are legally represented.  That helps the Court.  That helps the parties and ultimately the lawyers will be paid.  However, the payment of lawyers in a timely way is not the central focus of s 79 proceedings.

7. It is the modern practice that lawyers do not wait until the end of the proceedings for their payment.  That too has benefits in that the parties know what they are up for on the way through the litigation.  They do not wait until the end of the case and get a horrible shock.  All of that is good.  The lawyers will eventually be paid.  All other things being equal, it would be proper that they be paid as the work is done.  However there are ways of dealing with that.  Lawyers can secure their costs or make other arrangements.  The importance of the lawyers being paid cannot override the restrictions on the Court in relation to what it can do on an interim basis. 

8. Other things are agreed.  The father wants some inroads made into the line of credit for the payment of legal fees.  Both parties want the line of credit called in aid for some purposes.  That was provided for under the orders made earlier in these proceedings.  The line of credit has about $70,000 available on it.  It is being applied to the recurrent mortgage payments and rates on the Suburb B property. 

9. It is agreed that E’s school fees for 2017 be paid out of the line of credit.  I think I was told that is about $2,500.  It is agreed that the mother be reimbursed in relation to expenses that she has met in relation to the Suburb B property that fall due under the orders, 25 January 2016.  Under those orders she is entitled to this payment.  That involves $5,207.20.  It is agreed that the fees for Mr F, who is the Single Expert in the proceedings, as to work that he is yet to complete which may cost $16,000 or $22,000, will be paid out of the line of credit.  The father would go further and say that approximately $11,000 owing by the parties for Mr F’s fees for past work should also come out of the line of the credit.  The mother does not agree to that.  As I understand it, that is because, under an earlier order, in the first instance those fees were to be met by the father.  Therefore only the fees for new work will come out of the line of credit.

10. As to other issues: service will be accepted by the father’s solicitors in relation to subpoenas addressed to a Mr I and to the father’s sister.  There will be compliance on behalf of Mr I within 14 days and on behalf of the father’s sister by the 12th day of May 2017.  It is agreed that the father will provide through his solicitors to the solicitors for the mother, documents in relation to the estate of the paternal grandmother within 14 days from today’s date. 

11. There is an application for interim child support departure.  Child support is generally dealt with administratively.  There is a provision of the Child Support (Assessment) Act 1989 (Cth) (s 116) which says that notwithstanding the general provision that the parties deal with these matters through the Child Support Agency, internal review and ultimately through the Administrative Appeals Tribunal, the parents can or a parent can apply to a Court. If the parents are parties to an application pending in a Court such as this Court and the Court is satisfied that it would be in the interests of the liable parent and the carer to consider whether an order should be made for departure in the special circumstances of the case, the Court can hear the application.

12. The problem is that the Assessment Act is a labyrinthine piece of legislation.  No doubt the legislature had in mind, that if there were related financial proceedings on foot and the Court was able to get to the bottom of issues about the finances of the parties, then it might be convenient for the parents and in their interests while that was happening to deal with the issue of the balance of child support to be born between the parents and between the parents and the taxpayer.  Unfortunately, I am not able to make any findings, or any significant findings here.  The parties are at issue on a number of fronts.  The father has made arrangements to step back in terms of his work responsibilities and therefore, his income in reduced.  There are some issues about his income that are not quite clear.  Not all of his benefits are paid in by way of salary.  There is some suggestion that rent is paid and some other things.  That is only a recent thing. 

13. The criterion in relation to this, if you get past “in the special circumstances of the case there being a ground” within a menu of grounds that I will not go into.  Thereafter the Court is to decide what is just and equitable between the parties.  That includes considering the income earning capacity, property and financial resources of a parent.  There is often a real issue about the earning capacity rather than the actual income.  That may be a consideration here.  And there are umpteen provisions in relation to this issue.  The provisions go to (g), subparagraph (iii), in relation to what is just and equitable.  Once that is addressed there are related considerations in relation to what is otherwise proper, dealing with the situation between the parties and the taxpayer.

14. All manner of findings are required.  This is a Court of law.  The administrative scheme does not have all of the restrictions imposed on a Court, such as the requirements for admissible evidence.  It can act on other records.  Enquiries can be made and facts established directly.  None of those things are available to the Court.  So it is rarely the case that an application for interim child support departure is entertained.  It might be, in a particular circumstance, there is a real mischief being done; some financial imposition underway in a Court considering interim spousal maintenance and it is put to making assessments about particular things that would be relevant to this issue.  Findings may be possible at some level about something that helps address the criteria.  But that is not this matter.

15. Perhaps if there had been continual reviews and adjustments at the administrative level for reasons other than things that might occur in the normal course, in other words, if a payer or payee might be abusing the system, it might be that the Courts would be the better forum to deal with the ultimate obligation of child support.  However, the scheme is that the assessment of child support is best done administratively and through the merit review systems.  That is the front door for the child support dispute.  Because I cannot make necessary findings, how do I know, for the purposes of s 116, that it would be in the best interests of the parents make entertain the application?  I am not going to entertain an application for interim child support departure in these circumstances.

16. There is an application to expedite the proceedings.  It is made or joined in by all parties, perhaps for different reasons.  There are reasons for expediting this matter, and I will give it a level of expedition.  What I was invited to do was to take the matter into my own docket and make arrangements to list it for final hearing.  The parties might be relieved to know that I will not do that.  As I said to the parties earlier today, we have a situation this registry where we are not getting through our work.  I am the case management judge.  We have a pool of 350 cases that have finished their formal efforts at settlement and have yet to be allocated to a judge.  The current delays probably mean that matters are waiting for more than three years, perhaps, three and a half years from the time when they have completed initial preparation and settlement attempts, to judicial determination.  The average is about 17 months because some matters settle fairly quickly.  The Court is not getting through its work in a timely way.  More than 30 of the matters waiting in the pool for allocation to a judge have already been expedited.  Among those cases are circumstances of real prejudice to children and parents. 

17. For this family, there has been an observable deterioration in the parenting circumstances since the parties saw the Family Consultant.  That is a worry.  G is nonverbal and is not able to report the level of stress he is under.  E has expressed real concerns about being made responsible for things.  Apart from the fact that she was present at the time of the assault, she has felt that she is in the middle of the conflict.  That is not to say that everything will be perfect at the end of the case, but at least that source of aggravation and stress would be removed. 

18. On the financial side of the case there is a threshold point looming, because the mother’s household is subsidised by the line of credit and that line of credit is being rapidly exhausted.  The parties have been unable to co-operate in relation to some financial matters.  Therefore I cannot be sanguine that if the line of credit is exhausted, they would be able to identify a sensible way forward.  They would have a number of ways of dealing with that problem but they might not be able to agree on one.  That would mean ongoing pressure and uncertainty for the family. 

19. I will add this matter to the expedited cases that are awaiting allocation to a judge.  We have seven trial judges in this registry and in the normal course matters are drawn into judge’s dockets at a steady rate. 

20. The irony of the situation in the Sydney Registry is that interlocutory matters are preventing the Court from getting through its work.  Every judge day we can recover from interlocutory hearings is a day we can put into trials.  In some instances, no doubt, there is a catch 22.  Parties feel the need to bring interlocutory proceedings because the final proceedings are delayed and they have an urgent problem or a problem that cannot wait for years.  I accept that. 

21. However, something has to give, and that is likely to be the Court cutting down on the resources applied to interim proceedings.  That might mean an arbitrary reduction in the number of pages that can be included in supporting affidavits.  It might be simply cutting off the resource, having less judge time available for duty lists.  This matter did not fit within the duty list rules (reading, hearing and determination in less than two hours) and so it sat in another pool of cases containing interlocutory disputes said to require more than two hours to hear.  I had a matter that resolved during a 10 day trial and had this week to work on judgments.  I was then available and took this matter among others from the duty list pool.  If I had not done that, this matter would have waited longer.

22. These proceedings have added to the overall delays.  There are more documents relied on today than are relied on for most final trials.  I have not been taken to most of them, so you might argue they were not needed.  Some solicitors firms are overrepresented in interlocutory cases involving voluminous material.  It cannot be necessary, because it does not happen in other registries at anything like the rate we experience in Sydney.  It does not happen when other firms act in complicated proceedings.  Unless the good folk of Sydney have some genetic predisposition that necessitates complicated interlocutory litigation, then the fault is likely to lie with the lawyers and the judges. 

23. Some of my colleagues are a bit tougher about the rules than I am.  That is one possible avenue to improve things.  The problem from the judges’ point of view is that, without looking at it, we cannot exclude the possibility that much or all of the filed material is important.  Judges rely on the profession to only present matters that warrant interlocutory relief and to support the applications with only the necessary evidence.  Some of the matters we see are overblown or include issues, like some raised today, that cannot be determined or cannot succeed, on an interim basis.

24. As to the parties here, they have spent something like $200,000 each and they have yet to prepare for a final trial.  All of the legal costs come out of the family wealth.  None of it is written off to tax or otherwise defrayed.  The taxpayer funds the Court and the parties fund the rest.  I appreciate that there are complicated parenting issues.  However, in the property proceedings, if the parties have a pool of assets of the order of $3 million and they spend a large part of $600,000 on the decision as to how it should be divided, the costs are disproportionately high.  The parties should agree to a private mediation or arbitration, and hopefully resolve issues in that way.  Given the way these parties are litigating the financial proceedings, the Court does not offer a way of resolving those proceedings at a sensible cost.

I certify that the preceding forty seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 7 April 2017.

Associate: 

Date:  30 May 2017