Mertz & Mertz
[2024] FedCFamC1F 704
•23 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Mertz & Mertz [2024] FedCFamC1F 704
File number(s): ADC 2893 of 2023 Judgment of: BERMAN J Date of judgment: 23 October 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the parties are engaged in protracted and highly vexatious litigation – Where the wife seeks various orders in relation to disclosure, injunctions and the release of documents pursuant to the Harman undertaking – Where the husband agrees to the release of documents – Where the Court makes various orders in relation to disclosure in accordance with the Rules – Consideration of injunctions sought by the wife – Where the wife seeks the husband be restrained from enabling the children to use an e-scooter – Consideration of relevant state law and regulations – Orders made. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 6.03, 6.17, 6.25, 7.04
Motor Vehicles Act 1959 (SA)
Road Traffic Act 1961 (SA)
Road Traffic (Miscellaneous) Regulations 2014 (SA) r 64A
Road Traffic (Road Rules-Ancillary and Miscellaneous) provisions) Regulations 2014 (SA)
Cases cited: Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hearne v Street [2008] 235 CLR 125
Holpitt Pty Ltd v Varimu Pty Ltd & Ors [1991] FCA
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
Mertz & Mertz (No 2) [2024] FedCFamC2F 53
Mertz & Mertz (No 3) [2024] FedCFamC2F 716
Quick v Stoland Pty Ltd [1998] FCA 1200
Sapphire (SA) Pty Ltd (trading as River City Grain) V Barry Smith Grains Pty Ltd (in liq) [2011] NSWSC 1451
Division: Division 1 First Instance Number of paragraphs: 133 Date of hearing: 8 October 2024 Place: Adelaide Counsel for the Applicant: Mr AA Solicitor for the Applicant: R Lawyers Counsel for the Respondent: Ms U Solicitor for the Respondent: T Lawyers Counsel for the Independent Children's Lawyer: Mr BB Solicitor for the Independent Children's Lawyer: V Lawyers ORDERS
ADC 2893 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MERTZ
Applicant
AND: MS MERTZ
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
23 OCTOBER 2024
THE COURT ORDERS THAT:
1.Within twenty-eight (28) days of these orders, Mr Mertz (“the husband”) produce the documents as set out in paragraph 13 of the Amended Application in a Proceeding filed 2 October 2024 except as to subparagraphs 13.12, 13.16 and 13.22.
2.Within twenty-eight (28) days, the husband discover and, if requested, produce documents related to the engagement of a person or persons to care for the children or any of them.
3.The parties be restrained and an injunction granted restraining each of them from:
(a)Changing X and Y’s school without prior written consent of the other party;
(b)Cancelling any of the children’s registration with any secondary school; and
(c)Approaching or actively seeking to communicate with a child or children not in their present care.
4.The husband be restrained and injunction granted restraining him from allowing each of the children to ride an e-scooter in circumstances that are not permitted by the relevant provisions of the Motor Vehicles Act 1959 (SA) and the Road Traffic Act 1961 (SA).
5.Paragraphs 5 and 6 of the Amended Application in a Proceeding filed 9 September 2024 be dismissed.
THE COURT FURTHER ORDERS BY CONSENT THAT:
6.The children spend time with the parties for Christmas as follows:
(a)In 2024 and each alternate year thereafter, with the wife from 1.00 pm on Christmas Eve until 1.00 pm on Christmas Day and with the husband from 1.00 pm on Christmas Day until 1.00 pm on Boxing Day; and
(b)In 2025 and each alternate year thereafter, with the husband from 1.00 pm on Christmas Eve until 1.00m on Christmas Day and with the wife from 1.00 pm on Christmas Day until 1.00 pm on Boxing Day.
7.The children spend time with the parties for Easter periods (irrespective of whether Easter shall fall during a school holiday period) as follows:
(a)In 2025 and each alternate year thereafter, with the wife from the conclusion of school on Easter Thursday (or 3.30 pm if a non-school day) until 10.00 am on Easter Sunday and with the husband on 10.00 am on Easter Sunday until 4.00 pm on Easter Monday; and
(b)In 2025 and each alternate year thereafter, with the husband from the conclusion of school on Easter Thursday (or 3.30 pm if a non-school day) until 10.00 am on Easter Sunday and with the wife on 10.00 am on Easter Sunday until 4.00 pm on Easter Monday.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mertz & Mertz has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
Mr Mertz (“the husband”) and Ms Mertz (“the wife”) remain mired in ongoing litigation reflecting an inability to reach agreement as to the future parenting arrangements for Z born 2012, X born 2015 and Y born 2016 (collectively “the children”).
The parties also remain unable to resolve settlement of property.
It is a relevant observation that the proceedings were commenced by the husband on 29 June 2023 and that since that date, the Court file reflects 120 separate documents comprising numerous interlocutory proceedings involving significant judicial intervention as reflected in the decisions of Judge Mansfield in Mertz & Mertz(No 2) [2024] FedCFamC2F 53 and more recently by Judge Brown in Mertz & Mertz (No 3) [2024] FedCFamC2F 716.
Whilst accurate only as of May 2024, the costs incurred to that date by the wife total $326,455 with the potential for further estimated costs $149,199 to $239,889. In addition, the estimate of expert fees are between $9,500 to $12,600. The wife’s solicitors estimate the total fees to the conclusion of final hearing including counsel and expert fees could be between $485,155 to $578,949.
Whilst more modest, the husband’s fees as at 27 May 2024 are in the sum of $186,445 with further counsel fees of $5,500. In addition, he has WIP in the sum of approximately $37,000 and disbursements of $5,500 that remain unbilled. It is anticipated that if the matter remains unresolved, the future estimated legal costs could be between $60,000 to $100,000 plus GST together with counsel fees between $28,000 and $45,000.
Since May 2024, the further activity on the file has been extensive. It is a reasonable observation that the total fees of the parties if the issues in dispute need judicial determination will likely exceed $1,000,000.
The extent of the parties’ fees must be considered against the assessment of the property of the parties as set out in the wife’s affidavit filed 26 May 2024 in the balance sheet marked “[MSS]‑1” is a total of $4,000,040 with superannuation of the parties totalling $750,000.
Whilst the reference to the wife’s schedule of assets at this stage can only be taken as a guide, it raises the real possibility that the property of the parties may be diminished by almost 25 per cent in order to pay their legal fees, costs and disbursements.
I do not suggest that the extent of the legal fees to be incurred should necessarily dictate or determine that the parties should compromise significant and genuine concerns that they have in respect of the future parenting arrangements for the children. The parties must however remain vigilant that their inability to agree is a child focussed position and not clouded by their palpable dislike and mistrust of each other as observed and exemplified in the following extract from the Family Assessment Report prepared by Ms C and dated 18 December 2023:
312.Of final note to the writer was the ongoing distrust between the parties and the significant parental conflict that had ensued. From the writer's perspective, this conflict was distracting [the husband] and [the wife] from prioritising their children's care and had caused [the children] to be frequently exposed to their parents’ relationship dysfunction. It was the view of the writer that should this conflict continue, [the children] would be at risk of developing significant emotional and psychological difficulties and could lead to poor long-term outcomes. As such, the writer would strongly encourage both parties to find a way to work together to parent their children appropriately. Should either parent continue to engage in an overtly conflictual manner, then the writer would question that parent’s capacity to focus on the children’s needs and their care may need to be reviewed.
It is a trite observation that the nature of the continuing dispute would suggest that the parties have not adequately reflected on Ms C’s observations.
The wife seeks orders as set out in the Amended Application in a Proceeding filed 9 September 2024 and the Amended Application in a Proceeding filed 2 October 2024.
The husband seeks parenting orders as set out in his Response to Application in a Proceeding filed 27 September 2024. The scope of the orders sought by the husband is expanded by a raft of orders sought in a draft Minute of Order included in the husband’s Case Summary document.
Pursuant to orders made 18 January 2024, an Independent Children’s Lawyer (“ICL”) was appointed to separately represent the interests of the children. Counsel for the ICL submitted a draft Minute of Order that sets out orders which would better regulate the handover arrangements between the parties but in particular, concerning their attendance at school or the children’s extra-curricular activities together with injunctive orders that are intended to remove the children, as much as is possible, from the ongoing conflict of the parties.
BACKGROUND
The parties commenced a relationship in 2006, were married in 2011 and separated under the same roof in September 2022. It is conceded that the wife vacated the former matrimonial home situate at CC Street, Suburb F (“the [Suburb F] property”) in or about early 2023. Whilst the husband continues to remain in the Suburb F property, the wife and initially the three children took up residence in an investment property held by the parties at DD Street, Suburb Q (“the [Suburb Q] property”).
The parties should be considered as high functioning. The husband works in media and the wife is a professional. At present, it appears that the husband is engaged in full‑time employment and subject to the vagaries of his ongoing employment contracts, he is able to command a significant salary.
Consistent with her stated preference to supervise and attend to the needs of X and Y, the wife is employed on a part-time basis. Whilst not requiring an early determination, the husband contends that the wife has the ability to resume a higher level of employment even if she remains as the primary caregiver to the children or, should the Court make orders that would place primary care of the three children with him, then there is no reason why the wife should not resume full-time employment.
It is likely that up until the time of separation, the parties adopted what might be considered a “traditional” role to the parenting of the children. Given the history of the husband’s career and employment it is a reasonable assessment that he fulfilled the role of the breadwinner whereas the wife provided primary care to the children.
In late 2023 an incident occurred between Z and the wife which resulted in him deciding to live with the husband. Consequent of the recommendation in the Family Assessment Report of Ms C that Z remains living with the husband and spend time with the wife, the parties have engaged in ongoing conflict as to the parenting arrangements for Z.
By orders made 18 January 2024, Z is to live with the husband and spend time with the wife in accordance with his wishes. The arrangements for Y and X are that they are to live with the wife and spend time with the husband as follows:
(1)Each alternate Thursday from the conclusion of school (or 3:00pm if a non-school day) until the commencement of school Friday (or 3:00pm if a non-school day).
(2)Each alternate Friday from the conclusion of school (or 3:00pm if a non-school day) until the commencement of school the following Monday (or 3:00pm if a non-school day.
(3)At such other times as agreed between the parties and confirmed in writing.
It could not be said that the interim orders have satisfied the parties or have quelled the dispute.
The parenting issues have been enlivened by orders sought in the husband’s Response to an Application in a Proceeding filed 27 September 2024 wherein he seeks that the operative orders of orders made 18 January 2024 be discharged and the following orders be made:
(1)That until further order, X and Y live with the father.
(2)That X and Y spend time with the mother as the Court deems appropriate.
Y and X spend time with the husband and Z pursuant to the orders dated 18 January 2024. At present, Z spends no time with the wife. There is an intense focus by the wife as to the circumstances in which Z appears to be unable or unwilling to re-establish a relationship with his mother and it is her contention that his refusal to engage with her is as a direct result of either the overt conduct of the husband seeking to rupture the relationship that Z should have with her or, in the absence of active engagement, refuses to take any steps to promote the re‑establishment of a relationship.
It is a tragic observation that the children and in particular, Z, have been engaged in extensive therapeutic assessment and intervention concerning their ability to transition between the parties. There is the real spectre that the level of well-meaning but potentially misguided therapeutic attention may have exacerbated the children’s distress and hardened the opposition of Z to resuming even a civil relationship with the wife.
A final aspect of the conflict between the parties arises from the wife’s private application for an Intervention Order in the Magistrate’s Court which commenced in late 2024. Those proceedings have been on foot since late 2023. The best estimate of the wife’s senior counsel is that notwithstanding that the proceedings have been listed for one day, it will likely run for four days. Counsel for the husband submitted that the presiding Magistrate has advised the parties that following the first day of hearing, the proceedings will be adjourned part-heard. It is a reasonable assessment that the Intervention Order proceedings will be drawn out and are unlikely to reduce the current level of mistrust that exists between the parties.
A curious aspect of the Intervention Order proceedings is that there is scant information that has been tendered into evidence that would set out the particulars of the wife’s application. What is known is that one of the grounds relies upon a proposition that alleges the husband has embarked upon a campaign to alienate Z from the wife and that this can be considered as behaviour consistent with coercive control.
Much of the parties’ focus has been consumed by the Magistrates Court proceedings. For his part, the husband considers that the Intervention Order proceedings have been brought by the wife to damage his reputation whereas the wife considers that the husband’s behaviour towards her may satisfy the test of family violence.
Orders were made on 8 October 2024 relevant to the current interlocutory proceedings.
THE WIFE’S APPLICATION IN A PROCEEDING FILED 9 SEPTEMBER 2024
The wife seeks orders that the parties and their legal advisers be relieved of the Implied Undertaking consistent with the principle as espoused in Harman v Secretary of State for the Home Department [1983] 1 AC 280 (“Harman”) with respect to documents filed or material produced as described in paragraph 2 of the Amended Application in a Proceeding the scope of which is expanded to 74 documents as set out in a draft Minute of Order tendered by the wife’s senior counsel.
The purpose of seeking leave from the Implied Undertaking is to enable the use of the documents to assist the wife in the prosecution of her private application for a final Intervention Order seeking that she be a protected person as against the husband. It is common ground that the husband opposes the making of any Intervention Order.
The intention of the wife seeking the be relieved from the Implied Undertaking was raised in her Application in a Proceeding filed 9 April 2024. It appears that the application was adjourned pending the determination of other interim proceedings in particular, whether the wife’s Application in a Proceeding filed 15 April 2024 seeking that the husband be restrained from instructing his current solicitors was heard and determined.
By reference to the wife’s affidavit filed 9 September 2024, she alleges that:
16.The husband has acted in a manner which constitutes coercive family violence and I have deposed to those facts in my various affidavits. The husband has responded to those allegations. Those matters are directly relevant to the issues before the Magistrates Court proceedings.
17.I have also put evidence before the Court as to the behaviour of the husband, which provided him notice of my complaint on the topic, however he has continued to behave in the same way, which is relevant to those proceedings. For example, I have identified how the husband has limited my access to our joint finances.
The wife has not presented the particulars of the basis for her Intervention Order application and by reference to her affidavit, it appears that the documents sought to be utilised by the wife do not go to supporting the allegations made but rather seek to pre-empt a perceived understanding of the husband’s defence and to rely upon certain documents to establish inconsistencies in his defence.
Whilst not clear, at least one component appears to involve the parenting dispute between the parties.
Again, without having the advantage of the intervention order application particulars, the apparent reliance by the husband and the intended response of the wife arising from the Family Assessment Report of Ms C highlights the extent to which the parties lack insight as to the potential for the ongoing litigation to adversely impact the children.
The reference to “Implied Undertaking” arises out of the decision in Harman. The nature of the Implied Undertaking was the subject of comment by the High Court in Hearne v Street [2008] HCA 36 (“Hearne”) as follows:
96.Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits…
(footnotes omitted)
In Sapphire (SA) Pty Ltd (trading as River City Grain) V Barry Smith Grains Pty Ltd (in liq) [2011] NSWSC 1451(“Sapphire”), the court said:
188.… an implied undertaking would therefore be likely to apply to the material put before the Tribunal from the other arbitration proceedings at least if the statutory declaration had been made under some form of compulsory process or in an equivalent situation (such as by reason of a direction of the tribunal in that other arbitration) … A statutory declaration or affidavit made simply for the purposes of evidence in a hearing without such compulsion would not necessarily attract the undertaking.
(citations omitted)
The foundation to the decisions in Hearne and Sapphire is as to whether the document under consideration has an element of compulsion as to its existence.
It is an integral part of the Court process in proceedings that evidence for the purposes of interim proceedings and in chief for a final hearing will be given by affidavit. Orders have been made in these proceedings by way of general directions and trial management that affidavit evidence for witnesses upon which a party intends to rely must be filed in accordance with those directions.
The documents for which leave is sought is set out in the orders dated 8 October 2024 at paragraphs 2.1 to 2.74 inclusive. Whilst not being required to consider each document separately, I am satisfied that at least some of the documents nominated would attract the Harman or Implied Undertaking.
An application for leave to be released from the Implied Undertaking must be made. The test to be satisfied is whether there is any injustice caused to a party providing the document and that special circumstances should exist.
Burchett J discussed this requirement in Holpitt Pty Ltd v Varimu Pty Ltd & Ors [1991] FCA 354 wherein he commented that:
6.…. In those circumstances, it is easy to understand why it may have been thought the reasons required to be cogent and persuasive.
His Honour went on to say that:
6.… As far as the expression "special circumstances" is concerned, it is an expression which is liable to be misunderstood unless care is taken to ask and answer the question, special in relation to what? "Special" is one of those words which derive almost all their meaning from the context… If all that is required is that, among the great number of cases in the court in which documents have been discovered, this one must evince some special feature which affords a reason for releasing or modifying the undertaking, there will be no difficulty. Circumstances in which there is a legitimate reason why documents discovered in one proceeding should be made available in another will, viewed in this way, be rare. In the ordinary course, the ordinary rule should apply, there being no special circumstance to suggest otherwise.
The unusual feature in this case is that the husband does not oppose the use by the wife of the nominated documents. It is a reasonable consideration that the consent by the husband is tantamount to an acceptance that special circumstances exist.
But for the husband’s consent, I would not have found that special circumstances exist given that the wife failed to provide sufficient evidence of the Intervention Order proceedings to enable the Court to determine the context against which the relevance of the documents can be considered.
Even the most cursory consideration of the extent of the documents sought would suggest that they would be of limited utility if not entirely irrelevant.
Given the husband’s consent and his intended reliance on the Family Assessment Report of Ms C, there can be no prejudice occasioned to the husband by the giving of leave.
Reunification therapy
Consequent upon paragraph 21 of orders made 18 January 2024, the parties jointly instructed Ms FF of GG Psychology to engage with Z for the purpose of individual counselling and “reunification therapy” in circumstances where the parties considered the intended process would provide support to Z in re-establishing a relationship with the wife. Ms FF prepared a short Psychological Report dated 31 May 2024. Following six therapeutic sessions the following opinion and recommendations are of some assistance:
7.Following these discussions, in which [Z] consistently expressed his current thoughts and feelings about his relationship with his mother and provided explanations for his strongly held negative perspective, a pathway for reunification with [the wife] was not considered possible at this time. It was hypothesised that any attempts to compel [Z] to do so would likely result in him feeling that his views were not heard or respected, heighten his distress, result in him actively rejecting [the wife] again (e.g., by refusing to attend, running away), and possibly thwart any chance of repair of his relationship with his mother in the future.
8.With regards to [Z’s] psychological wellbeing, it was thought important that [Z] be provided with ongoing individual therapeutic support. While [Z] had expressed that he wanted to stop having to talk to professionals, it was noted that his experience to date of doing so had primarily been in contexts tasked with providing information and recommendations back to the Court amidst the significant conflict surrounding his family situation. It was considered that [Z] may therefore benefit from having the opportunity to form a new therapeutic relationship in which this dynamic was not the case from the outset, and that the focus of therapy could shift to monitoring his mental health and helping him to develop strategies, as needed.
It is apparent from the report of Z’s expressed concerns as to ongoing therapeutic involvement and assessment, that care should be exercised before well meaning but potentially damaging orders are made that might exacerbate his distress.
It is intended by the parties, at least at this stage, that there will be some reliance placed upon the observations and evidence of Ms FF arising from her unsuccessful involvement with the parties and Z.
It may well be that Ms FF’s involvement is such that Part 7.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) (“the Family Law Rules”) does not apply. Having said that, it is useful to consider the provisions of r 7.04 which requires the Court to consider that if expert evidence is to be given by an expert witness, then r 7.04(2)(d) requires consideration of “whether the issue falls within a substantially established area of knowledge”.
In Quick v Stoland Pty Ltd [1998] FCA 1200 at [374] Branson J observed that:
In the circumstances of most cases, however, a bare expression of opinion is likely to be incapable of affecting the assessment of the probability of the existence of any fact in issue in the proceedings.
Simply put, failure to demonstrate the validity of the scientific knowledge or specialised area may result in a finding that the opinion does not meet the test of relevance.
In Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, Heydon JA stated that:
85.… the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded.
The orders of 18 January 2024, which laid the foundation for the “reunification therapy” being undertaken, was made upon the advice or submission of either the parties and/or the ICL that Ms D was an appropriately qualified person to undertake the exercise. There is no evidence that the concept of “reunification therapy” is a recognised or established area of knowledge and further, if it is, there is no evidence that either Ms D or Ms FF have demonstrated the necessary expertise to undertake the role.
The situation is made more acute by the concern that the intended therapeutic intervention may result in a child being placed at risk of psychological harm and as appears evident in Z’s presentation, there is a significant risk that it will only further entrench his opposition to resuming a meaningful relationship with the wife.
If the process is to be undertaken, then what is required is the proposed therapist should be appropriately acquainted with the relevant aspects of the proceedings such that an initial opinion can be provided as to whether there is any utility in the therapeutic intervention being undertaken at all.
Whilst it was not made clear whether either of the parties were intending to seek a resumption of therapy with Ms FF, I propose to dismiss paragraph 5 of the Amended Application in a Proceeding filed 9 September 2024.
Co-parenting counselling
Paragraph 24 of orders made 18 January 2024 provided for the parties to participate in co‑parent counselling with Ms E.
The parties apparently engaged with Ms E and whilst it appears that the process was unsuccessful in reconciling the parties’ differences, there was some surprise on the part of the wife when advised by the husband’s counsel that he had withdrawn from co-parent counselling in July 2024 and had no present intention to resume with the process.
In the absence of a joint agreement and approach by the parties to resume counselling, I do not consider that there is any present utility in an order being made that would force either the continued attendance by the parties on co-parent counselling or that they be compelled to do so in the future.
The further difficulty that is apparent in the current circumstances is that the process, if undertaken, would likely be the subject of a request or application being made for a report to be prepared by the therapist.
It is difficult to conceive how co-parent counselling could achieve its full potential with each of the parties having an understanding that if the process is unsuccessful then a report may be sought. Whilst the issue of co-parent counselling was not pressed once the husband’s position to disengage from the process was made known, the further consideration would be that public interest immunity may well apply as a proper objection to the preparation and subsequent tendering of a report. The parties engagement in private Intervention Order proceedings would also be considered as the antithesis of co-parenting counselling.
As such, I propose to dismiss paragraph 6 of the Amended Application in a Proceeding filed 8 September 2024 (“the adjourned date”).
THE WIFE’S AMENDED APPLICATION IN A PROCEEDING FILED 2 OCTOBER 2024
Parenting
Agreement was reached that the proposed parenting orders sought by the husband in his Response to Application in a Proceeding filed 27 September 2024 and the proposed parenting orders as sought by the wife in the Amended Application in a Proceeding is adjourned for hearing to 8 November 2024.
It is noted that the parties appear to have reached agreement that Z will be enrolled and attend at Suburb HH High School for the 2025 academic year. X and Y will remain at Suburb HH Primary School in 2025.
There are however still some issues that require resolution in particular, the attendance by each of the parties at the children’s school to affect the drop off and collection of the children at the beginning and the conclusion of the school day.
Property
The parties are also unable to reach agreement as to the treatment of funds held in Commonwealth Bank Offset Account ending #...97 (the “[DD Street] offset account”) that the wife seeks to offset the Commonwealth Bank Home Loan in full to the account ending #...02 (the “[DD Street] Loan Account”). Injunctions are also sought that would affect the ability of each of the parties from drawing down or depleting the Commonwealth Bank Rent Account ending #...97, Commonwealth Bank Suburb F Offset Account ending #...62 and Commonwealth Bank Everyday Offset Account ending #...82.
Whilst the wife now seeks an order different to that which is proposed in paragraphs 11 and 12 of the Amended Application in a Proceeding, namely that funds in the DD Street offset account be used to discharge the outstanding liability save and accept for the ability to redraw as may be agreed or ordered, no agreement has been reached between the parties and accordingly, those matters have been adjourned to the adjourned date.
Disclosure
The wife seeks a range of documents particularised in paragraph 13 of the Amended Application in a Proceeding filed 2 October 2024. A concession made by the husband is such that objection is taken only to the following documents only:
13.12Evidence of the equity held in the [Suburb EE] property as at the date of cohabitation.
…
13.16A letter from the husband’s employer in respect of the husband’s assertions as to the events that took place that resulted in the husband’s pay for the pay cycle ending 14 January 2023 to be withheld from the parties joint account.
…
13.22Any and all documents related to the husband’s engagement of third party carers inclusive of evidence of his payment for third party carers.
The request for evidence of “the equity held in the [Suburb EE] property” is not a request for discovery or for the production of documents but rather, the wife seeks that the husband provide information in circumstances where he is not required to do so.
Rule 6.03 provides for the duty of disclosure of documents in the following terms:
The duty of disclosure applies to each document that:
(a) is or has been in the possession, or under the control, of the party disclosing the document; and
(b) is relevant to an issue in the proceeding.
Whilst it may have been intended that the use of the word “evidence” was meant to refer to documents, even in those circumstances, unless documents existed as to the valuation of the Suburb EE property as at the date of cohabitation, an unintended consequence is that the wife seeks that the husband bring into existence evidence of value.
It may be that the husband intends to bring to account the value of his interest in the Suburb EE property as a contribution factor, the obligation would then fall to him to establish his case before there is any requirement of the wife to raise an issue.
The parties are reminded of the consequences of non-disclosure as follows:
Rule 6.17 Consequences of non-disclosure
If a party does not disclose a document as required by these Rules:
(a) the party:
(i)must not offer the document, or present evidence of its contents, at a hearing or trial without the other party’s consent or the court’s permission; and
(ii)may be guilty of contempt for not disclosing the document; and
(iii) may be ordered to pay costs; and
(b) the court may stay or dismiss all or part of the party’s case.
The wife also seeks a letter from the husband’s employer in respect of his assertions as to the events that took place concerning a pay period ending 14 January 2023.
If a document exists, then there is a clear obligation on the husband to discover and if necessary, produce documents in his possession.
It is apparent that at least at this stage of the proceedings, the wife properly foreshadows that the hiatus in the husband’s pay is an issue.
As presently drafted, it appears that the wife is seeking that the husband approach his employer to cause a letter to be provided that answer her concerns. If that is the position, then the request is impermissible. If, however, a letter or other explanatory documents exist either in the husband’s possession or in circumstances where they are able to be retrieved readily from a third party then there would be a clear obligation on the husband to discover and produce those documents.
Whilst it may not satisfy the wife’s concerns, Part 6.4 of the Rules provide for the disclosure of employment information set out in r 6.25.
The wife seeks all documents that relate to the husband’s engagement of third-party carers presumably engaged by him to supervise the children when he is not able to do so.
The care arrangements for the children is a live issue in the proceedings. Documents that relate to the engagement of third-party carers are likely to be relevant however, the further request for “evidence of [the husband’s] payment for third party carers” is at this stage irrelevant if what is sought is evidence from the husband rather than the production of documents.
The wife seeks an order that the husband produce the nominated documents within 14 days. It is reasonable that the husband be given 28 days to make discovery and produce documents as requested.
I propose to make an order in terms of paragraph 13 of the Amended Application in a Proceeding however it will not include the documents as sought in paragraph 13.12, 13.16 and 13.22. I will make a separate order that the husband produce documents that relate to his engagement of third-party carers.
Orders sought by the husband
The husband annexes a proposed Minute of Order to his Case Summary document. It is difficult to identify the evidence that is to be relied upon however, agreement has been reached between the parties as to paragraph 13 of the proposed orders in the following terms:
13.That the parties be restrained and an injunction granted restraining each of them:
(a)Changing the (sic) [X’s] and [Y’s] school without the prior written consent of the other party;
(b)Cancelling any of the children’s registration with any secondary school.
As discussed, the handover arrangements involving the attendance of each of the parties at the children’s school or extra-curricular activities has been ongoing and problematic.
The husband proposes the following orders:
8. That handovers at [Suburb HH] Primary School take place as follows:
(a)The [wife] collect the children from outside the [northern] entrance; and
(b)The [husband] collect the children from outside the [southern] entrance.
The husband also seeks various injunctions in relation to the parties’ attending in the vicinity of the other parents proposed school pick up location as set out above.
For reasons that are not easily understood, the ICL seeks an order that handovers at Suburb HH Primary School take place with the husband collecting the children from outside the northern entrance and the wife collecting the children from outside the southern entrance.
The husband seeks to attend the southern entrance because he contends that it is the main entrance to the school and as such the ingress and egress of children is supervised, or at the least observed, by school staff members and that there may be CCTV. The gravamen of the husband’s preferred collection point is a contention that the parties are not able to be in the same area and he considers the wife is likely to behave in an angry and aggressive fashion.
In addition, the ICL seeks that the parties be restrained from:
(a)Entering the grounds of any school attended by the children for any reason (including but not limited to collecting bags or delivering lunches or other items) except in a medical emergency with prior arrangement with the school; and
(b)Attending in the vicinity of the other parent’s pick-up location.
The orders sought by the ICL go further than those as sought by the parties.
It is an unfortunate reflection on the parties’ lack of insight that they are not able to regulate their behaviour so as to minimise the extent to which the children are brought into the parties’ conflict.
To some extent, the issue will be resolved when Z commences attending High School in 2025. What seems to promote the husband’s angst is the opportunity for the wife to approach and/or engage with Z when she attends at the school in relation to X and Y.
I also note that at least in part, the concern as to the parties’ inability to control their behaviour was the catalyst for orders made by Judge Mansfield on 18 January 2024 as set out in orders 15 and 16. I do not propose to interfere with those orders.
The notion that orders need to be made so that the parties pick up the children from separate school entrances is the very antithesis of what might be considered as responsible parenting.
I propose to make orders that would restrain each of the parties from approaching or communicating with a child or children who is not in their care at the time.
The parties are however agreed and as such provided the Court with a proposed order, that each of them can attend at Z’s graduation ceremony providing that each of them sit on separate sides of the auditorium.
Disclosure
Paragraph 44 of the husband’s draft Minute of Order seeks the urgent discovery of eight categories of documents.
It appears that at one point the wife had instructed Ms J to provide her with legal representation, presumably in relation to the application for intervention orders. As a result of a conflict, it is suggested that Ms J returned the Court documents provided to her by leaving them on the ground in the car park of the McDonalds Restaurant located at Suburb JJ in early 2024.
The extent to which the Court documents that had been provided to Ms J and then subsequently returned in the manner as described does not relate to an issue in the proceedings other than as the background to the trial date of 17 April 2024 being vacated.
The Court is assisted by the presentation of evidence that enables a proper consideration of s 60CA and s 60CC of the Family Law Act 1975 (Cth) (“the Act”) in order to determine what is in the child’s best interests. At this stage, I am not able to determine the forensic utility of the treatment of the Court documents provided to Ms J or the nature of the retainer agreement between Ms J and the wife’s solicitors. The relevance of the topic may become apparent, but that position has not yet been reached.
Similarly, the submissions of the husband’s counsel were not persuasive as to the relevance to the proceedings of documents that relate to the payment by the wife of $2,000 to KK Psychology on 28 March 2024 and the transaction history (by way of a certified copy) in respect of the CBA account #17 for the period 1 October 2024 until 8 October 2024.
It is suggested that a discrepancy or disconnect between the payment made to KK Psychology and the transaction details as recorded on the CBA bank statement may well go to an issue of credit in respect of the wife.
No assistance was provided that would enable me to determine the relevance of the documents to an issue in the proceedings.
The husband also seeks a copy of transaction details pertaining to the transfer of $3,000 from the wife’s CBA account ending #...17 to her solicitor’s trust account. If there is relevance to the documents sought, it has not been adequately identified. In any event, solicitors for each of the parties have an obligation to provide a Cost Notice which sets out fees incurred and to the extent that there has been payment made, the source from which those funds are derived.
At this stage, even if there is some forensic purpose to the documents sought, there is unlikely to be prejudice caused to the husband if an order is not made at this stage of the proceedings.
The husband also seeks “a list of the transactions from the wife’s CBA Master Card” described as “kids expenses for 3 substantial amounts [in mid] 2024”.
Again, the difficulty is that the husband does not seek documents but rather that the wife provide evidence as to how the three separate amounts were incurred. I do not know the basis of the husband’s concern and whilst the topic may well be relevant, the husband is able to only request documents and not further evidence. To the extent that there are documents other than the CBA Mastercard statements which I assume have been provided, there is a clear obligation on the wife to provide them.
Injunctions
The ICL provided the Court with a proposed Minute of Order and seeks the following injunctions:
(1)Interrogating the children about the other party or his/her household.
(2)Saying anything to the children that would cause them to be fearful of the other party.
(3)Encouraging or condoning the children to leave the other parent’s care during the children’s time with that parent.
Each of the parties seeks various injunctions however, in orders of 18 January 2024 significant orders of restraint were put in place.
The ICL seeks to supplement those orders and whilst the orders sought properly reflect the concern of the ICL that the children have been placed at the centre of the conflict by the parties, an order of restraint should be put in place not out of an abundance of caution but in order to address a genuine concern. Moreover, there is no utility in an injunction being made if by reference to its terms, it is unenforceable.
When considered in that light, I have significant misgivings as to the enforceability of the orders sought by the ICL even though the intent is readily understood.
Use of e-scooter by the children
The wife seeks an order restraining the husband from allowing the children, but in particular Z, to ride an e-scooter. The concern of the wife is long standing, and it is apparent that the wife’s opposition to the husband facilitating the children to ride an e-scooter has been the source of much angst and litigation.
The wife’s opposition appears to have two components. The first is that she considers it dangerous for the children to ride an e-scooter and highlights injuries sustained by X on a weekend in late 2023 from an alleged collision with X riding an e-scooter into a motor vehicle.
The second basis for opposition is that the wife alleges that it is contrary to current legislation taking into account the age of the children and the lack of a licence. It appears from the information annexed to the wife’s affidavit filed 9 September 2024 that an e-scooter is to be considered a “motorised wheeled recreational device” and therefore cannot be used on roads or road related areas such as footpaths, bike/pedestrian tracks or vehicle parking areas unless operated by a licenced driver.
There may also be a further requirement that an e-scooter may need to meet certain safety standards.
The extent to which the children or each of them are permitted to use the husband’s e-scooter on a road or parking area is unknown.
The wife annexes a photograph which she says depicts Z riding an e-scooter inside a shopping centre.
For his part, the husband considers that the wife is hypervigilant as to the use by the children of an e-scooter and that her concerns are unnecessary. He describes the children as active and robust and sets out that they engage in activities which have from time to time resulted in the children receiving bumps, bruises and scrapes. The husband denies that he would risk the safety of the children or that he is putting Z at risk by letting him ride the e-scooter.
No evidence has been presented that riding an e-scooter is inherently dangerous taking into account the age of the rider. I accept that it is motorised as opposed to a bicycle which is not. Even so, I am not permitted to bring to account judicial knowledge or any personal view.
I also accept in the absence of evidence to the contrary, that neither of the parties but in respect of this issue, the husband, would intentionally place the children at risk.
At present, there are not the uniform laws and regulations with respect to the use of private and public e-scooters.
Annexures ‘[MSM]-14’ and ‘[MSM]-15’ of the wife’s affidavit refers to the South Australian State Laws and Regulations which permit the use of public e-scooters under trial conditions in the Adelaide city region. The provisions are as set out on the “My Licence” website and the private for hire e-scooters upon account registration. Those rules or regulations provide that the rider must be at least 18 years old and must not ride in a bike lane, on a road where the speed limit is greater than 50 kilometres per hour and in any event must not exceed 15 kilometres per hour.
However, the e-scooter in question is privately owned by the husband. Presently, neither the Motor Vehicles Act 1959 (SA) or the Road Traffic Act 1961 (SA) provide for the use or prohibition of e-scooters in circumstances where the device does not fall within any definition of the current legislation.
The Statues Amendment (personal mobility devices) Bill 2022 was introduced to the House of Assembly and read for the first time on 8 February 2023. Subject to further amendment or unlikely opposition, the Amendment Bill is intended to come into effect at the commencement of 2025 and will amend the Motor Vehicles Act and the Road Traffic Act. The Bill provides for the inclusion of an e-scooter in the interpretation section and further defines a motorised scooter as a “personal mobility device”. The Bill would enable a personal mobility device to be driven on roads without registration and insurance and further that providing the rider is 16 years of age or over then, the personal mobility device may be ridden without a licence or learners permit being held.
The difficulty is that at present, an e-scooter falls within the definition of an “electric personal transporter” (“EPT”) pursuant to regulation 64A of the Road Traffic (Miscellaneous) Regulations 2014 (SA). EPT’s are not currently permitted to be used on public infrastructure unless with the approval of the Minister.
No evidence was presented as to the husband’s e-scooter specifications and therefore the Court is not able to determine whether the e-scooter in question falls within the definition of an EPT.
In the event that the husband’s e-scooter was considered to be an EPT then in accordance with the regulations (Road Traffic (Road Rules- Ancillary and Miscellaneous) provisions) Regulations 2014 (SA)) which provide that a person in control of an EPT must not cause or permit a person under the age of 12 years to ride or be carried on the EPT.
Without attempting to be comprehensive of the current circumstances, it would appear that until the proposed amending legislation comes into operation likely at the commencement of 2025, in certain limited circumstances given his age, Z may be able to ride the husband’s e‑scooter in a public place subject to certain conditions, whereas X and Y would not be able to do so.
Regard must also be had for the specific requirements as may be determined by the registered owner of premises for example, store management would be able to prohibit the use of an e‑scooter within their stores. Similar restrictions and prohibitions may apply to shopping centres, car parks and other areas.
The wife’s concerns can be appropriately addressed by restraining the husband from allowing each of the children to ride an e-scooter in circumstances where it is prohibited by the relevant legislation.
To the extent that there may be other circumstances where riding an e-scooter does not contravene the relevant legislation, there is an absence of evidence to support the blanket order sought by the wife.
I make orders as appear at the commencement of these reasons.
I certify that the preceding one hundred and thirty-three (133) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 23 October 2024
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