Lllewellyn-Reilly and Reilly

[2017] FamCA 322

FAMILY COURT OF AUSTRALIA

LLLEWELLYN-REILLY & REILLY [2017] FamCA 322

FAMILY LAW – PROPERTY – leave granted for the wife to institute property proceedings out of time pursuant to section 44(3)

FAMILY LAW – CHILDREN – wife restrained from leaving the children unsupervised in the company of the wife’s father

FAMILY LAW – CHILD SUPPORT – departure order

Family Law Act 1975 (Cth) s 44(3)
Child Support (Assessment) Act 1989(Cth) ss 117, 124, 141

APPLICANT: Ms Llewellyn-Reilly

RESPONDENT: Mr Reilly

FILE NUMBER: MLC 7857 of 2015

DATE DELIVERED: 4 April 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 4 April 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Davis

SOLICITOR FOR THE APPLICANT: Marsdalls & Dent

COUNSEL FOR THE RESPONDENT: Mr Staindl

SOLICITOR FOR THE RESPONDENT: Clancy & Triado

Orders

BY CONSENT IT IS ORDERED

1. That the Wife have leave to institute property proceedings out of time pursuant to Section 44(3).

2. That the Wife or her nominee be restrained from leaving the children B, C and D unsupervised in the company of the Wife’s father Mr Llewellyn at any time.

3. Pursuant to Sections 117, 124 and 141 of the Child Support Assessment Act 1989, the Husband pay or cause to be paid:

   (a)the periodic amount be varied to $2,694 per month ($898 per child per week) and such amount be credited as 100 per cent of the Husband’s periodic child support liability;

   (b)health insurance premiums for the children at the current level noting that the Husband intends to include the children on his current health care cover;

   (c)all gap dental and orthodontic costs in relation to the children;

   (d)the costs associated with the child B’s counselling;

   (e)the costs associated with the child B and the child C’s mobile phone plan;

   (f)all costs associated with the children B, C and D’s attendance at their respective schools including but not limited to all compulsory and agreed non-compulsory school fees and levies, books and stationery, school and sport uniforms, school excursion expenses and agreed sport and agreed extra-curricular activity costs;

   (g)the costs associated with the child C’s tutoring.

4. Pursuant to Section 114 of the Act the Husband:

   (a)pay or cause to be paid and indemnify the Wife against all payments pursuant to the lease for the European motor vehicle in the Wife’s possession together with the costs of registering and insuring the said vehicle; and

   (b)be restrained by injunction from dealing with property belonging to him, any company of which he is a director or any trust of which he is trustee save in the ordinary course of business (it being noted that there is an existing agreement to transfer to Mr E a 15 per cent share of the business known as F Pty Ltd trading as Company G).

5. Within 7 days, the Husband authorise and direct his accountants and financial advisors to provide to the Wife copies of any document(s) requested by her which the Husband would be entitled to request and forthwith thereafter notify the Wife of his compliance with this order.

6. If the Husband engages new or other accountants or financial advisors he forthwith notify the Wife and provide to the new accountant or financial advisor an authority and direction in accordance with order 5 hereof.

7. Within 21 days of a written request by either party for copies of documents or information, the other provide to the requesting party documents so requested or explain by way of correspondence why he/she is unable to do so, or has a reason for not doing so.

8. If the parties have not agreed the value of the Husband’s business interests within 60 days of the date of these orders then:

   (a)the parties do all acts and things and sign all documents necessary to appoint a single expert to prepare a report as to the value of the Husband’s business interests;

   (b)in the event that the parties cannot agree who should be appointed as the single expert, the parties do all acts and things and sign all documents necessary to request the Board Chair of the Institute of Chartered Accountants for the time being or his or her nominee to select a single expert on the basis of submissions by the parties detailing:

   (i)        one nominated single expert;

   (ii)      the curriculum vitae of that expert;

   (iii)     a letter from that expert confirming he or she consents to the appointment; and

   (iv)      the fee proposal of each expert for preparing a report and attending court to give evidence if required; and

   (c)the single expert’s costs be shared equally by the parties.

9. If a party does not comply with orders 5 to 7 hereof then the other party have leave to issue subpoenas seeking the documents requested in accordance with order 5 to 7 hereof.

BY THE COURT IT IS ORDERED

1. That all extant interim applications be otherwise dismissed.

2. That the requirement that the parties attend a conciliation conference be dispensed with on the basis that the parties have this day confirmed their intention to engage in a private mediation.

3. That all extant applications be placed in the list of cases awaiting allocation to a judicial docket.

AND THE COURT NOTES

A.The parties intend to participate in a full day mediation with an experienced mediator in respect to property matters.  The costs of the mediation are to be borne equally by the parties.

B.The Husband has agreed to make the payments in paragraph 3 of these orders without any concession that he has the capacity to make such payments on an ongoing basis.

C.If 15 per cent of the business is transferred to Mr E it is without prejudice to the Wife’s claim to a property settlement in relation to the business.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7857 of 2015

Ms Llewellyn- Reilly

Applicant

And

Mr Reilly

Respondent

REASONS FOR JUDGMENT

1. In the matter of Llewellyn-Reilly & Reilly, having heard submissions from counsel representing each of the parties, I am satisfied that it is appropriate that leave be granted to the wife to institute property proceedings out of time pursuant to s 44(3) of the Family Law Act 1975 (Cth) and I make an order in those terms.

2. Otherwise, I am asked to make orders by consent, including orders with respect to child support, in particular, I am asked to make an order pursuant to s 117 of the Child Support (Assessment) Act 1989 (Cth) for a departure from the child support assessment.

3. I have heard submissions and have been directed to parts of the affidavit material which indicate that the children that are subject of the application have special needs, including special medical needs and that they require additional expenditure and that at this time, the father is predominantly meeting those expenses.  It is submitted that the high costs associated with the particular special needs of the children is established as a ground for departure.

4. I am satisfied having heard those submissions that there is a ground for departure.  I am satisfied that it would be just and equitable and otherwise, proper to make orders as sought by the parties with respect to child support.  Accordingly, I make orders in the terms of the consent order that is signed by the parties.  The minute will be marked with the letter A.  It will remain on the court file and I direct that the solicitors for the applicant engross and file those orders at court within seven days.

5. In addition I make orders by consent that all extant interim applications be otherwise dismissed; that the requirement that the parties attend a conciliation conference be dispensed with on the basis that the parties have this day confirmed their intention to engage in a private mediation; and finally, that all extant applications be placed in a list of cases awaiting allocation to a judicial docket.

6. The parties need to understand that having obtained an order dispensing with the requirement for a conciliation conference, they have, effectively, jumped a long queue.  If they seek further interim relief, that is likely to delay the progress of the matter.  Accordingly, they need to focus their energies on the mediation and try to avoid, if at all possible, bringing any further interim applications before the Court because the consequence of that will be to delay the progress of the matter towards a final hearing. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 4 April 2017.

Associate: 

Date:  4 April 2017