Merrill & Burt
[2015] FamCA 159
•13 March 2015
FAMILY COURT OF AUSTRALIA
| MERRILL & BURT | [2015] FamCA 159 |
| FAMILY LAW – PROCESS AND PROCEDURE – inspection of documents – urgent application for spousal maintenance – subpoenas – all outstanding applications adjourned |
| Evidence Act1995 (Cth) Family Law Act 1975 (Cth) |
| Baker v Campbell(1983) 153 CLR 52 Chapman and Chapman (1979) FLC 90-671 Feinster & Feinster and Anor [2006] FamCA 232 Goldy & Goldy(No 2)[2011] FamCA 418 Hatton v Attorney-General of the Commonwealth of Australia [2000] FamCA 892; (2000) FLC 93-038 Hutchings & Clarke[1993] FamCA 22; (1993) FLC 92-373 Mann v. Carnell [1999] HCA 66; (1999) 201 CLR 1 National Employers Mutual General Association Ltd v Waind & Hill(1978) 1 NSWLR 372 R v Bell ex parte Lees [1980] HCA 26; (1980) 146 CLR 141 R v Young[1999] NSWCCA 166; (1999) 46 NSWLR 681 Redman and Redman (1987) FLC 91-805 Sankey & Whitlam[1978] HCA 43; (1978) 142 CLR 1 Spotless Group Ltd & Ors v Premier Building & Consulting Group Pty Ltd [2006] VSCA 20 Williamson and Williamson (1978) FLC 90-575 Zarrow v Australian Securities Commission(1992) 34 FCR 427 |
| APPLICANT: | Ms Merrill |
| RESPONDENT: | Mr Burt |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLC | 9912 | of | 2013 |
| DATE DELIVERED: | 13 March 2015 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 12 March 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Mawson Qc With Mr Weil |
| SOLICITOR FOR THE APPLICANT: | Kennedy Partners |
| COUNSEL FOR THE RESPONDENT: | Mr Efron |
| SOLICITOR FOR THE RESPONDENT: | Efron & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Eidelsen |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
Orders
That the objection by Ms Merrill to the release and inspection of the documents produced by Dr H is upheld.
That the subpoena to Dr H is set aside.
All documents produced by Dr H are to be forthwith returned to him.
The oral application by Mr Burt for urgent spousal maintenance is dismissed.
That all outstanding applications (other than the objection to the subpoena to Dr I) are adjourned to the Judicial Duty List at 10.00am on 5 May 2015.
For the purposes of the return date, Mr Burt file and serve any further material (including any amended application for orders) that he intends to rely upon by no later than 4.00pm on 30 March 2015.
That Ms Merrill file and serve any material in reply to that filed by Mr Burt by no later than 4.00pm on Monday 20 April 2015.
That the Independent Children’s Lawyer is excused from attending at the next hearing (but the parties are to serve upon the Independent Children’s Lawyer any material in the foregoing paragraphs).
That in the same time periods referred to, each party file and serve on the other an affidavit setting out the documents referred to in the respective applications to date in which that party indicates that they no longer have that particular document in their power, possession or control and if not within that parties’ power, possession or control, why not.
That the application for the determination of the objection to the subpoena addressed to Dr I be fixed on a date to be requested by Mr Burt after giving Dr I and her legal practitioners 30 days notice of his intention to proceed but otherwise, any documents produced by Dr I remain within the Registry and not be released for inspection.
That should any party seek costs arising out of these orders, such application be made by written submission and filed and served by no later than 13 April 2015 with such submission being endorsed with the fact that it has been so served on the other party and any recipient of such submission have until 27 April 2015 to file and serve any response and such response be endorsed with the fact that it has been so served on the other party and upon receipt of any such application for costs, it or they be determined in chambers.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Merrill & Burt 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 9912 of 2013
| Ms Merrill |
Applicant
And
| Mr Burt |
Respondent
REASONS FOR JUDGMENT
At the beginning of the hearing on 12 March 2013 between Ms Merrill (the applicant) and Mr Burt (the respondent), a variety of issues were in dispute. Some of these had been outstanding before and indeed, had been the subject of orders and reasons for judgment. The substantive parenting and property proceedings have been before this Court for over a year.
At the end of the hearing day before me, some of those issues just mentioned were adjourned for reasons which each party saw differently. From the respondent’s perspective, he did not have enough evidence before the Court to proceed and after considerable discussion, asked that he be given an opportunity to “fix up” things. His solicitor’s explanation was that he had been rushed by the Court and the applicant and he had no money to afford counsel. I do not accept that this was rushed by the Court bearing in mind it was always his application.
From the applicant’s perspective, the pursuit of orders by the respondent had been supported by a voluminous affidavit served at a few minutes after the 10 am starting time. She desired an opportunity to respond. It therefore suited the applicant to have the matter of the financial issues adjourned as well.
Although the adjournment request of the applicant was flagged at the commencement of the hearing, several of the issues were not only ventilated but also argued during the day. At the end of the hearing day, the solicitor for the respondent asked that no determination be made in respect of those matters and that those matters be fully heard again when his client had filed comprehensive material. I therefore do not consider the matter part heard.
The issues that were therefore adjourned were paragraph 2 of the applicant’s response (to an application in a case) filed 23 December 2014 and all of the items in the response (seeking interim orders) of the respondent filed at the hearing on 12 March 2015 save for items 4, 5 and 6 which I shall determine below with orders.
The respondent had also served a notice to produce upon the solicitors for the applicant and upon the call being made for the production of those documents, a variety was handed to the solicitor for the respondent. It was then maintained that what had been produced was not an answer to the call. That issue needs a determination if unresolved by the return date but it can only be determined with proper evidence as to what has or has not been provided. It is timely to observe that both parties argued (and had in a previous hearing argued) that discovery obligations had not been complied with by the other.
There was a somewhat reluctant agreement that the solution was for each to file an affidavit (as distinct from an affidavit of documents) for the next hearing as to what had been provided. As the items sought were quite specific, explanation will need to be given why those which had not been so provided, had not. I will make those orders.
To ensure this matter proceeds as best the Court can accommodate it on the next occasion, I have set out a timetable taking into account two things. First, there is Easter intervening. Secondly, the solicitor for the respondent accused the “other side” of adopting an “ambush” approach when coming to court and to avoid that happening next time (bearing in mind that is exactly what the respondent did at this hearing to the applicant), I have allowed ample time. As this case has had significant court resources and I am unavailable in the time frame the respondent anticipated, the only sensible place to put this case was in the Judicial Duty List and as the parties have been there before, they will have to jostle for court time as best they can.
The issues
The two issues requiring determination were:
· the objection of the applicant to the release and inspection of documents produced under subpoena by Dr H; and
· an oral application by the respondent for urgent spousal maintenance in the form of a lump sum of $10,000 to be put towards medical treatment expenses.
I also record that this urgent maintenance application was made late in the day by the respondent but initially in the form of a payment to enable him to purchase a car He had sought formal orders for the provision of money to enable the purchase of a car (in the sum of $100,000) and that issue that resulted in agreement (but not as to the $100,000). The parties then had a dispute as to whether this agreement should be in the form of an order. The very fact that there was a dispute indicates that there was no “agreement” but when I indicated I would determine that issue as well, consensus was reached that (whatever it was that was agreed) a car of some sorts would be provided to the respondent.
The substantive proceedings
The substantive proceedings have been complicated and difficult. There are both parenting and property issues at play. In respect of parenting matters, two children are now adults. The two younger children are divided in that the 16 year old lives with the applicant and the 14 year old with the respondent. whilst the parenting issues are disputed, no application for interim orders was made. Thus, absent an application for a priority hearing which I had suggested to the parties on a previous occasion should be made, one must presume that the arrangements, whilst not ideal, are working. Counsel for the Independent Children’s Lawyer said that his instructor was not intending to seek interim orders. Be that as it may, the parenting matters are controversial because the children apparently do not see each other and the respondent accused the applicant of orchestrating division between them. Other colourful language will be seen in the transcript.
During the day, counsel for the Independent Children’s Lawyer announced that the respondent had threatened and insulted him and had persisted in speaking directly to him (in that fashion) notwithstanding being represented in the proceedings by his solicitor. I gave the customary warning about behaviour but counsel indicated that he did not intend to take the matter further that day. Later, after taking instructions from the respondent, his solicitor announced that he denied the allegation of having made any threats and insisted that counsel for the Independent Children’s Lawyer withdraw the allegation. Counsel declined to do so and said he stood by his statement. No doubt these matters are sensitive and unpleasant but the respondent is a former practising lawyer of many years’ experience and regardless of what he said, he should not have been persisting in speaking to the Independent Children’s Lawyer after being told to desist.
In respect of the matters in paragraph 9 above and about which these reasons are the determination, the respondent sought that costs be reserved for the day, a position not accepted by the applicant. I agree with the applicant. In my view, it would not be appropriate to hand a “reserved costs dispute” to another judge having regard to the discrete nature of the matters I am now determining. Accordingly, I shall make provision for written submissions.
I turn then to the two issues.
The subpoena objection
On 21 November 2014, the solicitor for the respondent requested the registrar issue a subpoena to Dr H. The covering letter gave an unusual reason for the request and it is not my task to review the registrar’s decision. Knowing what has now occurred, it might have been something that could have been questioned. Needless to say, the subpoena was issued.
The subpoena sought the file of the doctor relating to attendances on the applicant.
On 9 December 2014, the applicant filed an objection. The doctor did not object but advised the applicant of having received legal advice about the requirement to comply. That was good advice.
The objection set out six grounds but they can be condensed into three things:
·The materials of Dr H contain information which is the subject to legal professional privilege as the applicant had discussed her proceedings with the doctor;
·The materials were not relevant to the proceedings; and
·The materials were protected by public interest immunity.
Mr Mawson QC whose submissions were supported by Mr Eidelson of counsel for the Independent Children’s Lawyer, said that Registrar Field had ordered the respondent in December 2014 to file an affidavit as to the grounds he was relying upon to say the materials were relevant but he had not done so. Relevance was therefore disputed.
In respect of the factual foundation for the protection of the confidentiality, it was submitted that in 2013, the applicant and the respondent had signed an agreement with the doctor that, as part of their therapy, everything would remain confidential to the extent that neither would subpoena the files or the doctor in any court proceedings. Furthermore, at a hearing before the Senior Registrar, the applicant agreed to continue to attend upon the doctor and (as submitted by the Independent Children’s Lawyer) she only did so, on the basis of the protection she thought she was getting as a result of the earlier written agreement. There is some substance to that because the doctor wrote to the applicant expressing his concern about the risk of her not attending if the therapy was subject to exposure by the Court. This latter point was raised as the public interest immunity question.
It was not submitted that the doctor was a counsellor within the meaning of any of the provisions of s 10 of the Family Law Act 1975 (Cth) (“the Act”).
The respondent’s submission on the objection
The solicitor for the respondent submitted that:
·The original contractual arrangement was for “couples counselling” but upon that counselling being terminated and the doctor refusing to the deal with the respondent, any confidentiality arrangement had to be seen to have come to an end;
·To the extent that there was a conflict between Public Interest Immunity and the welfare of a child, the latter held sway;
·To the extent that the doctor was treating the applicant, whatever that was about was subject to scrutiny because there was a children’s issue at stake;
·Details of what medication the applicant was taking had been requested from her but refused to the respondent;
·As far as any substantive relief was sought, the evidence to be led by the respondent would show problems with school attendances, fighting by the applicant with the children, a refusal to organise a specific program sought by the respondent for the adult child with a disability, the applicant’s keeping the children from one another and, her irresponsible behaviour.
It must immediately be said that notwithstanding the order of the registrar in December about filing affidavit material to refute the objection, it had not been provided and the matters immediately just mentioned were not supported by any document. To make matters more difficult for the respondent, even if there was some substance to the assertions, there was no indication as to the link with the parenting application. That became clear when I pressed the solicitor to indicate what parenting relief the respondent was seeking in respect of the 16 year old. His response was equivocal but along the lines of contact rather than that child come to live with him. In an environment where the respondent asserted that his case against the applicant was that her parenting capacity was in issue, it is hard to see how any of these assertions could be connected. It is acknowledged there is a 14 year old boy involved but as I understood the arguments, that child is not happy about seeing his mother. The connection therefore about the materials sought to be inspected and that child was unclear. Mention was also made of the 18 year old daughter. How the Court had control of that child in a parenting sense was also unclear but it is still a matter the respondent apparently wants to pursue. I conclude that because of his affidavit evidence and the submissions made on his behalf.
This matter must be determined according to law not on some scatter gun approach. The respondent’s case was clearly made more difficult because of the absence of affidavit material in circumstances where he had the opportunity to provide it. I must also mention at this point that the respondent’s solicitor consistently observed that he was not in a position to argue the public interest immunity issue particularly against counsel (and senior counsel at that) but I reject that. Apart from the fact that he had plenty of time to prepare the argument, he put the only matters that he could on what instructions he had.
Relevance
In National Employers Mutual General Association Ltd v Waind & Hill(1978) 1 NSWLR 372 at 381 Moffit P set out the now well-known test. It is also well-known that documents can only be required under a subpoena if the other litigant who otherwise has them or can produce them, refuses or neglects to do so. It was asserted that was the case here in respect of the applicant’s medication but there is no evidence of that. Again, it would have been helpful if the order of Registrar Field had been followed.
The doctor had complied with the subpoena. The next step therefore was for the Court to decide the preliminary use to which the documents could be put including whether or not permission should be given for their inspection. The third step was the admission into evidence and the use to which the document is then put in the proceedings.
In respect of the second step, guidance can be found in Hatton v Attorney-General of the Commonwealth of Australia [2000] FamCA 892; (2000) FLC 93-038 where the Full Court gave examples of when it is proper to set aside a subpoena. Whilst a number of the examples might be said to be relevant here, the ones argued were relevance and “fishing”.
I find that there is nothing in the respondent’s material that would enable me to find apparent relevance in his favour. I find that because:
·There is no extant interim application and certainly not one that would invoke concern about making immediate parenting orders. Despite the respondent’s expressed assertions, at its highest, he claimed the matters went to parenting capacity yet they sounded far more like the issue of parenting responsibility but even there, he must show the relevance to an issue in dispute;
·The current final orders sought by the respondent failed to seek parenting relief but I accept that was an oversight. Even so, the proposed parenting orders are of such limited issue that their connection with the health of the mother was unclear;
·The fact that the respondent was endeavouring to find out what was being “treated” indicates that he does not know what it is that he wants to argue; that is “fishing”;
·This was an invasion into the privacy of the applicant in circumstances where there was an agreement that whatever was said would be confidential; to argue the converse now because the “couples counselling” is over can hardly, of itself, change the nature of the therapy or whatever it is that the applicant is now seeing the doctor about;
·The absence of any material in affidavit form that could not only be tested objectively but also be responded to by the applicant, makes it difficult to find relevance exists at all.
Thus, on the issue of relevance alone, I would uphold the objection of the applicant. But even if that was not correct, the applicant pointed to the second issue of Public Interest Immunity.
Public interest immunity
The second step mentioned in Hatton (supra) is the question of the use to which documents produced under subpoena can be put. To some extent, this overlaps with relevance but here, it is submitted by the applicant and the Independent Children’s Lawyer that there should not be a permission given for inspection on the public interest immunity point. The authorities are not decisive.
In Sankey & Whitlam[1978] HCA 43; (1978) 142 CLR 1 at [39] Gibbs ACJ said of two broad categories of public interest immunity, an objection could be made to the production of a document if it would be against the public interest to disclose its contents or because it belonged to a class of documents which in the public interest ought not be produced.
The Court has the discretion to examine the documents and see whether they support a claim for public interest immunity (Zarrow v Australian Securities Commission(1992) 34 FCR 427 at [435]) but the respondent did not request that occur. Having regard to the annexure the affidavit of the applicant setting out the views of the doctor, it was unnecessary that I do that. The doctor expressed concern for the health of the applicant by the exposure of his work with her.
Examples can be shown where common law privileges have been overridden by the welfare principle such as in Hutchings & Clarke[1993] FamCA 22; (1993) FLC 92-373 and R v Bell ex parte Lees [1980] HCA 26; (1980) 146 CLR 141. The Independent Children’s Lawyer submitted that the protection of the mother’s health was in the best interests of the children here but in any event, the difficulty for the respondent is the absence of evidence that would suggest that, in balancing the respondent’s rights to know and litigate as he desires against the welfare principle, the latter should override his interest. The respondent presented no evidence that would enable a balancing to be considered apart from the assertions to which I referred above. There is also no evidence that these children are at risk such as to require the invasion of the mother’s privacy.
In this Court, there have been cases where Public Interest Immunity has been considered. In Goldy & Goldy(No 2)[2011] FamCA 418 in which a party sought to subpoena the “Kids Help Line”, Dawe J after considering considered Public Interest Immunity, upheld an objection to a subpoena. Her Honour said the Court should be very wary about issuing subpoenae to an organisation which relies upon its confidentiality for its very existence. Her Honour found that the benefit of the services provided by Kids Help Line to the children and young people who use that service was significant. Of course, that case revolved around a public interest generally but the parallel here is that the very therapy into which the respondent wishes to delve, is based upon a confidential relationship now.
In Feinster & Feinster and Anor [2006] FamCA 232, Watts J held that Public Interest Immunity differed from privilege because it operated for the benefit of the public interest in general and did not protect private relationships. That was about the issue of a subpoena seeking production of the issuer’s own medical records. The health service objected to the subpoena on the grounds of public interest immunity, abuse of process, relevance and s 130 of the Evidence Act1995 (Cth). His Honour considered cases involving involuntary medical treatment of prisoners (a recognised class of public interest immunity) but also those involving involuntary mental health patients because they were all matters relating to the public benefit. He considered that the ordinary psychiatrist/patient relationship did not attract public interest immunity because the benefit had to be for the public.
Generally, if the public is expected to have confidence in a therapeutic regime where trust in the therapist is apparently essential, the interest of the public could be damaged by courts then refusing to protect those programs reliant on confidences in the light of the profession’s assurances. If it was to be suggested that Public Interest Immunity applied because there was a contractual arrangement of confidentiality between the applicant and the treating professional, I have doubts about whether that falls within the recognised categories. The essence of the immunity is in the interest of the public.
If the public benefitted by having children cared for by a parent who was being assisted by therapy, the details of which would not otherwise be protected, the public interest might be seen to exist.
In R v Young[1999] NSWCCA 166; (1999) 46 NSWLR 681 Spigelman CJ observed that the “categories” were not closed and went on to discuss the role of the courts. His Honour said:
The recognition of a new category of privilege requires the formulation of public policy by the courts, within the confines of the proper role of the courts. It is only appropriate for the courts to recognise a category of public policy which is capable of precise statement, and which reflects so widely held an opinion, that the court's reasoning can be described in terms of “recognition” rather than “creation”.
The general public interest in confidence in therapeutic relationships may not be a recognised category, but the specific interest in protecting the best interests of children – in this case, by maintaining the confidence of a therapeutic relationship which improves the mother’s ability to parent the children – may be a category capable of ‘recognition’.
I consider each matter has to be taken on its merits and in respect of children’s matters such as this, there has to be a balancing of the conflictual principles of public benefit and child’s best interests. In discussion, I raised the issue of where the therapist had to draw the line about protecting the confidences if the child was at risk of harm but in this case, the mandatory reporting conditions relating to the protection of children cover that situation. Mandatory reporting provisions reconcile two public interests that occasionally come into conflict: safeguarding vulnerable members of the public, and maintaining trust and confidence in therapeutic relationships. The ‘best interests’ principle applied by this Court under the Act reflects the former and is the legal standard which ensures its prioritisation in parenting cases. The Act consistently places the child or children’s best interests at the forefront of any decision regarding parenting such that the courts may well have recognised, to echo Spigelman J’s words, the reconciliation of these two principles through which a confidential therapeutic relationship may be protected. There is no evidence here that these children are at risk such that their best interests would be served by breaking the confidentiality of the therapeutic relationship.
Legal Professional Privilege
In respect of the additional question of legal professional privilege that arose as a result of the applicant’s discussion (which seems to have been confirmed by the letter attached to her affidavit from the doctor) about her case, the respondent did not address the point. Mr Mawson for the applicant, pointed to Spotless Group Ltd & Ors v Premier Building & Consulting Group Pty Ltd [2006] VSCA 20, a decision of the Victorian Court of Appeal. That was case about the provision of advice which was subject to legal professional privilege to a third party, in that case, a financier. The relevant question was whether by passing on the advice to the third parties, the respondent had waived the privilege. The communication to the financiers was confidential. The Court held that no waiver had occurred.
The applicant had her conversations with the doctor in confidence believing that anything she said was protected from scrutiny. To discuss her legal advice, if that was what she was doing, was not inconsistent with the maintenance of the privilege (see Mann v. Carnell [1999] HCA 66; (1999) 201 CLR 1)
Although a point not argued, principles within the Act relating to how evidence is used must not be forgotten even though this is a procedural issue outside of Part VII of the Act. Section 69ZN sets out mandatory principles as to how proceedings are to be conducted one of which is the requirement to consider the impact that the conduct of the proceedings may have on the child. The interlocutory pursuit of evidence unabated not only delays the finalisation of the parenting proceedings but may have an impact on the child because of the termination by the applicant of what is said to be therapeutic counselling. It was a sufficiently important process for the Court to order in December 2014 that the applicant should continue to undertake it. The principles about the conduct of the proceedings must give rise to the question of what is to be gained by the respondent pursuing the issue. It is not apparent from anything I heard that there is any utility in releasing this information.
There are also clearly questions of whether various provisions of the Evidence Act 1995 (Cth) (such as ss 131, 135 and 136) can be used to determine this dispute but again, no-one raised those issues and I consider it unnecessary to go beyond what I have set out above.
Urgent spousal maintenance
The second issue is the claim for urgent spousal maintenance. This order was not sought in the application filed on the day of the hearing. Indeed, it was not made until just before 5 pm. Late in the afternoon, the solicitor for the respondent sought an order (based on the urgent spousal maintenance provisions) for money to enable the respondent to have a motor car. Because no notice of that had been given, I stood the matter down and as indicated earlier, a compromise was reached. Having got to that position, the solicitor then announced that the respondent wanted money which he said amounted to $10,000 for medical treatment. That was opposed by the applicant’s counsel on no other basis than there was no material to enable the applicant to understand what the claim was about. Unfortunately, I have to agree but having regard to the nature of urgent spousal maintenance claims, I propose to consider it.
No details were given about this medical treatment other than the assertion from the solicitor that the respondent had that day a problem with “blood in his urine”. No details of when any medical diagnosis was given or of any proposed or suggested treatment. Where the $10,000 figure came from was also unknown. It is again timely to note that the respondent had filed his amending response and two supporting affidavits on the day of the hearing (albeit as his solicitor constantly reminded the Court, they had been prepared under extreme pressure) which contained many paragraphs and a voluminous bundle of annexures. This sort of claim should have been apparent well before 4 pm.
To the extent that any evidence could be said to be found in the respondent’s affidavit to support a maintenance or urgent maintenance application and particularly in relation to medical matters, the following of his evidence might be said to be relevant:
·For “health reasons” the respondent was not “capable” of working to earn an income;
·The Court’s order for $600 per week (6 August 2014) was wholly inadequate;
·Weekly expenses were approximately $3,100;
·There were no funds to pay doctors and specialists “nor to occasionally purchase medication when required” and to attend a required “physio”; and
·J Medical Imaging accounts and that of Mr K have not been paid by the applicant;
Apart from the statement about his urgent health needs in the courtroom, the evidence was unusually silent on the subject.
At various paragraphs (7-12, 15, 20-27) the respondent set out the history of his medical problems after losing his right to practise as a lawyer. He was very ill and in pain. He was hospitalised. One major source of that problem was diagnosed as a hernia and in an endeavour to resolve that, the respondent went to many specialists. Ironically, that was ultimately largely resolved by the purchase of a $59 compression bandage. The respondent acknowledged the possibility of recurrence of pain. It is difficult to therefore understand what this need for urgent medical treatment is about. It is not clear to me what the applicant’s attitude is to the payment of medical treatment because she had not been given adequate time to respond to the affidavit material or indeed to the oral application.
The respondent itemised his personal expenses at $1,842.77. The figure of $3,100 mentioned above came from adding his personal expenses to the estimated costs for the parties’ son. As this was a spousal maintenance claim, even one which was said to be urgent, I have been conscious of avoiding the blurring of the boundary between maintenance and child support. I am unaware of the child support situation. Whilst the respondent complained bitterly about the applicant’s control of finances under the heading in his affidavit of “Consequences of Financial Oppression” and spent many paragraphs under the heading “Maintenance of Children”, the fundamental issues required to be established in Subdivision B of Division 2 of Part VIIIAB were not addressed. But even the absence of those specific matters and the reference to ss 80 and 114 can be ignored if the facts set out in the affidavit match the relief sought in the application. I have considerable difficulty here.
In respect of the respondent’s expenses, whilst accepting that the standard of living of the parties has to be considered and particularly where one party is not only said to have all of the assets but also enjoying an affluent lifestyle, on an urgent application and specifically for medical expenses, it is still hard to take into account holidays at $330 per week, dog food and “meds” at $80 and the like. The $600 payment has apparently been made since August so if all of these expenses were being met, the capital debt would be expected to be high. I am unaware of what that is. The respondent vociferously argued that an assurance had been given to the Court that accounts he incurred would all be met. That seems to be denied by the applicant and there is certainly nothing in the order to that effect. Section 90SE provides the power for the Court to make a maintenance order. In this case, there was no jurisdictional question raised about the existence of a de facto relationship or its duration.
Section 90SE provides that the Court may make such maintenance order as it considers proper but the exercise of that power is governed by s 90SF. It will be important in due course to consider those matters and in particular, whether the respondent can adequately support himself without maintenance but in this case, the respondent relied upon s 90SG. That provision permits the Court, where there is an extant proceeding for maintenance, to make an order for the payment of a sum (periodic or otherwise) if it appears that the person seeking the money is in immediate need of financial assistance and it is not practicable in the circumstances to determine immediately what order, if any, should be made. It is to those provisions that the Court must turn notwithstanding that none of this was addressed by the respondent.
The distinction between the general applications and indeed the power of the Court concerning maintenance orders under s 90SE and 90SF and s 90SG lies in the hearing procedure. Under the former provisions, an applicant would be expected to provide expansive evidence to satisfy those provisions and a respondent should be given the opportunity to test it.
In an urgent application such as this, the Court is not expected to do more than conduct a summary hearing without the evidence being tested. But having said that, the primary threshold issues still have to be met. That is, where the Court is satisfied that the applicant for the urgent maintenance order meets the requirements of s 90SF(1)(b) along with the jurisdictional requirements which are not an issue here and the Court is satisfied about the responding party’s capacity, there is a basis to put in place a temporary maintenance measure.
Most of the authorities of this Court relate to the provisions concerning married parties. The language of s 72 and s 90SF, although drafted differently, clearly has the same meaning. Thus the authorities should be relied upon.
In Williamson and Williamson (1978) FLC 90-575, the Full Court described the urgent procedure as a “rather pragmatic basis without any real hearing on the merits”. Even pragmatism here would be difficult to satisfy because of the lateness of the application, the paucity of evidence and the absence of any indication why the medical treatment justified an urgent payment of $10,000 (as distinct from some other payment).
In Chapman and Chapman (1979) FLC 90-671, the Full Court described the procedures as “somewhat ad hoc” which provided a court with a wide discretion not otherwise fettered by the evidentiary requirements of a normal spousal maintenance application. Even so, there is still a need to establish the fundamentals of s 74 ( relating to a marriage relationship) and because of the timing of the oral application, that could not be addressed by the applicant’s counsel and was certainly not addressed by the respondent’s solicitor.
In Redman and Redman (1987) FLC 91-805 the Full Court said that although s 74 applied, the very fact that the order was intended to be limited in time meant that different considerations applied; that is, anything that needed to be undone could be so later undone without the strict requirements of a variation under s 83 (the modification or variation provisions) being fulfilled. It is that latter distinction that makes a final order different from a temporary order but that again is different from an urgent order under s 77.
Because the application was for a discrete sum and purpose, the financial statement of both parties which reflects their respective lifestyles was unhelpful. What was necessary was some evidence about medical treatment and its cost. Obviously, to use the urgency provisions, the Court has to be satisfied that there is not sufficient time to enable consideration of all of the formal evidentiary requirements because of the medical urgency. None of that was present here.
The very first test of spousal maintenance is the question of the need based upon an inadequacy to support oneself without it. That was certainly the respondent’s assertion but the mere fact that he had all of these other expenses and obligations such as the unpaid medical bills, the vet, the absence of transport and the broken light bulb do not assist me.
The respondent’s application must therefore fail for want of any evidence that would justify a conclusion that he is in immediate need of financial assistance for medical treatment.
I certify that the preceding Sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 13 March 2015.
Associate:
Date: 13 March 2015
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