MACVEAN & MANTON

[2020] FamCA 561

FAMILY COURT OF AUSTRALIA

MACVEAN & MANTON [2020] FamCA 561

FAMILY LAW – PRACTICE AND PROCEDURE – proportionality and costs.

FAMILY LAW – PRACTICE AND PROCEDURE – need for judicial oversight or case management.

Family Law Rules 2004 (Cth)

APPLICANT: Mr Macvean

RESPONDENT: Ms Manton

INDEPENDENT CHILDREN’S LAWYER: Ms M Lonergan

FILE NUMBER: MLC 13788 of 2019

DATE DELIVERED: 30 June 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 30 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Nehmy

SOLICITOR FOR THE APPLICANT: Nicholes Family Lawyers

COUNSEL FOR THE RESPONDENT: Dr Parker

SOLICITOR FOR THE RESPONDENT: Sayer Jones

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Excused

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Orders

BY CONSENT IT IS ORDERED THAT:

1. The husband forthwith make available for collection on behalf of the wife from the office of his solicitors;

   (a)       All and any spare key[s] to the Motor Vehicle 1 currently in the possession of wife;

   (b)       All and any swipe cards to the property at or incidental to B Street, Suburb C in the State of Victoria (“the property”) in which the wife currently resides; and

   (c)       All and any spare key[s] to the property.

IT IS FURTHER ORDERED THAT:

1. Paragraph 3 of the wife’s Application in a Case filed 29 April 2020 be consolidated with the applications listed before the Senior Registrar on 20 August 2020 to be dealt with as a spousal maintenance matter.

IT IS DIRECTED:

1. The undated response from the Department of Health and Human Services pursuant to sections 67Z and 67ZA of the Family Law Act 1975 be marked Exhibit “C1” and remain on the Court file.

2. The costs notification provided to the Court dated 23 June 2020 from Nicholes Family Lawyers for the wife be marked Exhibit “W1” and remain on the Court file;

3. The costs notification provided to the Court dated 30 June 2020 from Sayer Jones for the husband be marked Exhibit “H1” and remain on the Court file.

IT IS FURTHER ORDERED THAT:

1. The Independent Children's Lawyer ensure that the reports of Mr D and Dr F are sent to the Court at least 2 clear working days prior to the next hearing before the Senior Registrar.

2. The hearing before me on 21 July 2020 in the Judicial Duty List be and is hereby vacated.

3. My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.

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 Macvean & Manton 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 MELBOURNE

FILE NUMBER: MLC 13788 of 2019

MR MACVEAN

Applicant

And

MS MANTON

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. This matter is listed before me for case management purposes in anticipation of a hearing before me in the Judicial Duty list on 21 July 2020.  The application which was adjourned into the Judicial Duty list by Senior Registrar Field on 30 April 2020 are paragraphs 2 and 3 of the wife’s Application in a Case filed 29 April 2020.  In that application, the wife seeks inter alia that the husband return to her the spare keys to the motor vehicle which she currently drives (which is owned by the husband’s company), security passes for the garage to the property in which she and the children live, and a security pass and spare house key that was previously in the possession of the wife’s housekeeper.  The focus of the case management mention was for the parties to justify why a hearing would be necessary to resolve the issue of keys and security passes being withheld. 

2. On 22 June 2020, my chambers wrote to the practitioners for the parties appointing the mention. The letter is self-explanatory and, omitting formal and irrelevant parts, reads as follows:

   I confirm that this matter is listed before Justice Bennett in the Judicial Duty List on 21 July 2020 for determination as a discrete issue paragraphs 2 and 3 of the wife’s Application in a Case filed on 29 April 2020.

   Her Honour notes that since the Application Initiating Proceedings was filed on 4 December 2019 The matter has been before Senior Registrar Field on 16 January 2020, 6 February 2020 and 7 April 2020 and before Hon. Justice Johns on 10 March 2020. Before the listing in the Judicial Duty List on 21 July, the matter is again before Registrar Field on 30 June 2020.  By Joint Practice Direction 1 of 2020, the Chief Justice published the Statement of Core Principles which includes “The overarching purpose to be achieved is to ensure the just, safe, efficient and timely resolution of matters at a cost to the parties that is reasonable and proportionate in all the circumstances of the case, having regard to the significant impact of family law disputes on children and families.” Her Honour has requested that I list this matter for mention before her Honour on 30 June 2020 at 9:00 a.m. to immediately precede the listing before the Senior Registrar. This is for you to explain the proportionality and necessity of  further hearing before her Honour on 21 July 2020. Her Honour understands that the Senior Registrar’s jurisdiction in relation to interim inunctions is limited but the parties need to understand the cost consequences of returning to Court almost every month.

   I have listed the matter for mention on 21 July 2020 at 9:00 a.m. to be conducted on the Court’s Microsoft Teams platform. Please note that the husband and wife are required to be present with counsel who is retained to appear at the hearing before Senior Registrar Field at 10:00 a.m. that day. Justice Bennett does not require the independent children’s lawyer to attend but they may do so if they wish. Please ensure that your clients have received the compulsory Costs Notifications up to 30 June 2020 and send a copy to Chambers to email … not later than 4:00 p.m. next Monday 29 June 2020.

   If the issue of keys, security passes and car lease payments is resolved by agreement before 30 June, 2020 and the parties want orders made reflecting the agreement before the mention and without the need for an appearance, please send in the minute and I will see if her Honour will make that Order in Chambers (and the mention and JDL listing will be vacated).

3. Yesterday, the solicitors for the parties obtained an administrative adjournment of the hearing before the Senior Registrar to 20 August 2020.  The wife’s solicitors  indicated by correspondence sent to my Chambers yesterday and again this morning, that the wife would abandon her application listed to the Judicial Duty List, because of the likely costs of running such an application outweighed the benefit and asked that today’s mention be vacated.  The mention was not vacated.

4. Today, Mr Nehmy of Counsel appears for the husband.  Dr Parker, of Counsel, appears for the wife.  The Independent Children’s Lawyer was excused from attending.  As it turns out, the wife did still want the husband to hand over the security passes and the spare keys to the home in which she resides and the car of which she has use. 

5. Happily, Mr Nehmy and Dr Parker were able to resolve the keys and security pass issue after a brief discussion.  The items will be available for collection on behalf of the wife from the offices of the husband’s solicitors. 

6. That leaves only the lease payments on the Motor Vehicle 1 outstanding. The parties seek that aspect be transferred to the Senior Registrar’s list where it can be dealt with as a spousal maintenance matter on 20 August 2020 when the matter next listed in the Senior Registrar’s duty list for parenting proceedings. 

7. Apart from proceedings initiated on 4 December 2019 in this Court, an intervention order was made on application by the Victoria Police against the husband.  It was obtained on 25 November 2019, commenced by a safety notice. The matters pending in this Court are financial for a final alteration of property interests and parenting arrangements in relation to the boys, X aged six years, and Y who is four years old.

8. As noted to the parties, these proceedings have been before the Court on an almost monthly basis since they were filed last December.

   a)16 January 2020: before the Senior Registrar when Mr Nehmy appeared for the husband and Mr Dixon SC appeared for the wife.

   b)6 February 2020: before the Senior Registrar when Mr Strum QC with Mr Nehmy appeared for the husband and Mr Dixon SC appeared for the wife.  

   c)2 March 2020: before Her Honour Johns J when Mr Strum QC appeared for the husband and Mr Dickson QC appeared for the wife.

   d)7 April 2020: before the Senior Registrar when Mr Strum QC with Mr Nehmy appeared for the husband, Mr Dickson QC appeared for the wife and Mr Eidelson appeared for the Independent Children’s Lawyer.

   e)30 April 2020: when Mr Strum QC with Mr Nehmy appeared for the husband, Mr Dickson QC appeared for the wife and Mr Eidelson appeared for the Independent Children’s Lawyer and Senior Registrar Field adjourned the wife’s discrete applications about car keys, security passes and lease payments to 30 June 2020.

   Going forward, the matter was then made returnable before the Senior Registrar again today on 30 June 2020 and then before me on 21 July 2020 - but those dates have now been vacated in favour of one listing before the Senior Registrar on 20 August 2020. 

9. Parties must have access to the court when needed but the court, and parties, rely on the legal practitioners to temper the clients’ right to access to justice with considerations of costs, being both the financial and the emotional costs, associated with proceedings.  Court hearings are always stressful, not only for parties but for children, as the Independent Children's Lawyer will well realise.  Retaining the services of senior legal practitioners should facilitate the parties to progress matters whilst staying out of court, rather than making an application to the court being their first response.

10. The parties, through their practitioners, were required to provide compulsory costs notifications for today in the form required by the Family Law Rules 2004.  They have done so and they are marked as exhibits “H1” and “W1” respectively. 

11. My concern about the high level of costs that have been incurred, has been heightened by the costs notifications provided by the solicitors to the parties in anticipation of today.  Noting that these proceedings have been on foot since December 2019, the husband has been billed for costs and disbursements to date in the sum of $327,834.47.  There is unbilled work in progress of some $4,000.  Within those disbursements and costs, there are costs referrable to the intervention order and police matters of $10,875 and experts reports of $10,050.  This equates to an average of about $47,500 per month in legal bills for the husband.  The costs notification for the husband is Exhibit “H1”.

12. The wife changed solicitors from L Lawyers to Nicholes Family Lawyers, apparently, on 5 May 2020.  The costs incurred by her new solicitors Nicholes Family Lawyers, for the period 5 May to 23 June 2020, appear to be in the vicinity of $117,000 for that seven-week period, an average per month outlay for legal costs which exceeds that of the husband.  It is not apparent what costs were paid to the wife’s former solicitors.

13. The wife’s costs and disbursements for the listing before the Senior Registrar today, were estimated by her solicitors in the costs notification as including:

    a)Senior Counsel’s fees to appear in the duty list before the Senior Registrar today were to be $19,800 (being one day of appearance and one day of preparation for Mr North SC);

    b)Fees for junior counsel, Dr Parker, are estimated at $2,200 per day;

    c)The costs for the instructing solicitor, Ms Nicholes, to attend to instruct for six hours at $743 per hour would have totalled $4,455 for the day;

    d)Solicitor’s preparation for hearing was estimated at approximately $18,000. 

14. The wife’s costs for the hearing in the judicial duty list before me on 21 July 2020, which has now been vacated, were estimated at $42,184.80 inclusive of an instructing solicitor and senior counsel with one day’s preparation. 

15. The Court encourages alternative dispute resolution and, in that respect, I note that the wife has been provided with an estimate of costs to attend a one day mediation.  Those costs are detailed at paragraph 4 of the costs notification [Exhibit “W1”].  The costs for the mediation are estimated to be $71,371 on the basis that a mediator will charge $8000 and the wife will be required to pay one half of those fees.

16. The husband is a business manager.  The wife is a medical professional.  Neither counsel appearing today could put a figure to the estimated net assets of the parties. 

17. There is an undated Section 67Z, 67ZA response on the filed form DHHS [Exhibit “C1”] which indicates a high degree of family violence.

18. It appears that the husband and wife are both vulnerable personalities.

19. The husband was assessed by Ms E of G Consultants, her report is dated 3 April 2020 and is on the court file.

20. Amongst other things, in relation to the husband, Ms E opined:

    [47]Mr Macvean presents in the high average range of intellectual functioning.

    [51]Mr Macvean presents with personality difficulties including narcissistic traits, but he does not meet the criteria for diagnosis of personality disorder. He exhibited extreme defensiveness such that he likely minimised his health and mental health difficulties and lacked critical self-awareness.

21. The Ms E psychological report has been critiqued by Dr H, J Pty Ltd, of Perth.  Dr H report is dated 29 April 2020.

22. The wife’s treating psychiatrist, Dr K, prepared a report dated 20 December 2019 which is annexed to an affidavit by him filed 15 January 2020 and filed by the wife.  Amongst other things, Dr K wrote on page two of his assessment report:

    My initial assessment of Ms Manton was that she suffered from anxiety and depression.  The anxiety was in the form of an underlying obsessive-compulsive personality style – with traits of perfectionism, being overly conscientious, needing to feel in control, indecisiveness and an intolerance to stress. She also had features of a generalised anxiety disorder (GAD) characterised by excessive worry with associated physical symptoms (palpitations, sweating, pain). Her depression was longstanding and mainly at a low level, consistent with dysthymic disorder.

    My diagnostic assessment of Ms Manton has changed little over the years. She had chronic GAD.  Her depression is probably better character depressive personality style rather than dysthymia. This is a milder form of depression not requiring medication or more intensive treatment. She has an enduring negative self-concept, she struggles to feel joy and happiness, she is critical of herself, prone to worry and self-blame.

23. I understand that the family has now been assessed by Mr D who has published a report dated 9 June 2020.  Dr F is about to publish his psychiatric assessment of both parents which will be considered by Mr D before the next hearing before the Senior Registrar on 20 August 2020.

24. The Independent Children's Lawyer should ensure that all reports have reached the court file for consideration by the Senior Registrar at least two clear working days before the hearing. 

25. The Senior Registrar will be in an optimal position on 20 August 2020 to assess whether the court should provide some oversight for these proceedings.  Respectfully, one course he may consider is a referral to the Case Management Judge for the appointment of a Judge manager or early allocation of this matter to a judicial docket so that the parties know that, henceforth, all applications will be returnable before the Judge who will finally dispose of the matter.  On one hand, the parties may appear to jump the queue, on the other hand it might be an economical use of judicial resources having regard to the amount of duty list places these proceedings have required to date and, if left uncontained, may require in the future. 

26. The legal practitioners should provide the Senior Registrar with a copy of their costs notification to their client not later than the day prior to the hearing on 20 August 2020.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 30 June 2020.

Associate: 

Date:  13 July 2020