Mullen & Acken (No 3) (Interim property settlement; Directions for trial)
[2011] FamCA 880
•21 October 2011
FAMILY COURT OF AUSTRALIA
| MULLEN & ACKEN (NO. 3) (Interim property settlement; Directions for trial) | [2011] FamCA 880 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Hearing – Where the wife did not attend Court or file any documents in relation to the husband's application – Where the Court proceeded to hear the application on an undefended basis. FAMILY LAW – CHILDREN – Where the husband sought that passports be issued for the children, in circumstances where the wife would not sign the passport application form. FAMILY LAW – INTERIM PROPERTY SETTLEMENT – Where the husband sought that the former matrimonial home be sold and each of the parties receive $100,000 by way of interim property settlement. |
| Family Law Act 1975 (Cth) Evidence Act 1995 (Cth) |
| Strahan & Strahan (Interim Property Orders) [2009] FamCAFC 166 Hickey and Hickey and A-G for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 |
| APPLICANT: | Ms Mullen |
| RESPONDENT: | Mr Acken |
| INDEPENDENT CHILDREN’S LAWYER: | Mr D Piekarski |
| FILE NUMBER: | MLC | 10068 | of | 2010 |
| DATE DELIVERED: | 21 October 2011 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 17 October 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | No Appearance |
| SOLICITOR FOR THE APPLICANT: |
| COUNSEL FOR THE RESPONDENT: | Mr Mulvany |
| SOLICITOR FOR THE RESPONDENT: | TJ Mulvany & Co |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Boymal |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
ORDERS:
IT BE DECLARED that Pursuant to section 7 and 11 of the Passports Act 1938 (Cth) and the Court being satisfied that it is not practicable to obtain the consent of the respondent wife, Ms Mullen, to enable the children of the relationship S born … September 1998, E born … March 2000 and T born … December 2001 to obtain an Australian Passport to travel out of Australia.
IT IS ORDERED BY THE COURT:
That the husband, Mr Acken, the father of the children S- born … September 1998, E born … March 2000 and T born … December 2001 be and is hereby permitted to apply for Australian Passports to enable the children to leave Australia notwithstanding that the respondent wife, Ms Mullen, the mother of the said children has not signed the passport application form and furthermore the said children be permitted to leave Australia without the permission of the respondent wife.
IT IS REQUESTED, pursuant to Section 8(1)(b) of the Australian Passports Act the Department of Immigration and Citizenship forthwith do all acts and things to issue an Australian Passport in the name of each of the children.
IT IS FURTHER ORDERED:
That the husband be and is hereby at liberty to take the children (or any of them) out of Australia for the purpose of a holiday not exceeding eight (8) weeks’ duration.
That not less than 14 days prior to removing the children (or any of them) from Australia pursuant to the preceding paragraph of this Order, the husband:-
(a)deliver to his solicitor and the independent children’s lawyer, a colour copy of the identification page of each child’s passport and a detailed itinerary showing flight and other transport arrangements, the address of all accommodation and telephone and email details of how he and the children may be contacted for the period during which the children (or any of them) will be absent from Australia; and
(b)provide to the wife by prepaid post a general description of locations (by city or province or town or region) of where the children will be located between specified dates –
and I reserve liberty to the wife to make application to the court that the husband’s solicitor and/or the independent children’s lawyer disclose specific details from the children’s itinerary to her in the event that an emergency arises whilst the children are absent from Australia which, in the opinion of the Court, requires the wife to be able to contact the husband and or any of the children.
That the husband do all acts and things necessary to irrevocably instruct his solicitor to advise my Associate – email … of the date and time of the proposed departure of the children from Australia in order that she may advise the Afterhours Service of the Court to have the matter listed before me immediately in the event that there is any difficulty with the husband’s ability to remove the children (or any of them) from Australia.
That the husband and the wife take all requisite and necessary steps to effect a sale of the former matrimonial home situated and known as B property, (“the former matrimonial home”) by public auction and, if such auction is unsuccessful, thereafter by private sale and by way of implementation of this Order:-
(a)the husband and the wife do all acts and things necessary to retain the services of LJ Hooker Real Estate, …, Director at a commission fee calculated on two per centum of the sale price payable together with an advertising budget;
(b)the wife and the husband do all things necessary to instruct the real estate agent that the reserve price for the sale of the former matrimonial home is $525,000.00, with a settlement date of not less than sixty (60) and not more that one hundred and twenty days (120) following the sale;
(c)the husband and the wife do all acts and things to sign all documents necessary to effect the retention of the said agent, the engagement of an appropriate conveyancer including but not limited to a lawyer and, in the event that the husband and the wife are unable to agree in writing upon a lawyer within 14 days of this Order, the firm of TJ Mulvany & Co, lawyers (the husband’s lawyers) undertake the conveyancing of the former matrimonial home, the completion of all documents necessary to obtain a Discharge of Mortgage and all necessary documents to complete the sale;
(d)in the event or the refusal or failure by the wife to complete any documents which are necessary to effect and complete a sale of the former matrimonial home then, pursuant to Section 106A (2) of the Family law Act 1975, a Registrar of this Registry of the Court be appointed to execute on behalf of the wife or on any documents which are necessary to effect a sale of the former matrimonial home and completion of the sale including but not limited to:
(i) The forms for engagement of the real estate agent;
(ii) The Vendor’s statement required pursuant to Section 32 of the Sale of Land Act 1962;
(iii) The Section 27 Statement;
(iv) The Contract of Sale;
(v) The Transfer of Land;
(vi) Application to the mortgagee to prepare discharge of Mortgage;
(vii) All other documents reasonably required to effect and complete a sale of the former matrimonial home;
And it is sufficient proof of the fact that the wife has failed or neglected to execute a document or do something required of her if a solicitor makes and files an affidavit attesting to that fact which is served on the wife prior to the request being made.
That the wife and husband do all acts and things necessary to cause the proceeds of sale of the former matrimonial home be applied as follows:
(a)Upon release of the deposit monies, all of the fees and outlays of the said agent hereinbefore appointed be paid, the husband be refunded to a maximum five thousand dollars ($5,000.00) for expenses incurred in preparing the former matrimonial home for sale and thereafter the balance be paid equally between the wife and the husband.
(b)On completion of the sale and payment the balance of the proceeds of sale, interest and fees due to the mortgage on the property:-
(i) Unless such expenses have already been paid, the account sales and repair costs referred to in sub-paragraph (a) of this Order;
(ii) The relevant conveyancing fees incurred in the sale of the matrimonial property be paid;
(iii) One hundred thousand dollars ($100,000.00) be paid to each of the husband and the wife and be categorized as an interim property distribution and be paid as follows:-
A.As to the wife, $100,000 into whatever account the wife nominates in writing and if no account is nominated, then the monies remain held on trust on her behalf;
B.As to the husband (for the avoidance of doubt, the $100,000 does not include the $5,000 provided for in paragraph 7(a)):-
1.$70,000 to the husband’s solicitors to be held in trust and applied in payment of legal costs and disbursements as authorised by the husband; and
2.$30,000 to, or at the direction of, the husband;
C.The balance to be held until agreement in writing between the husband and the wife, or an Order of this Court in the joint names of the husband and the wife in the trust account of the husband’s lawyers, TJ Mulvany & Co, in interest bearing deposit at call, and it is requested that by the 14th day of each month, the husband’s lawyers provide copy of same to the wife.
That the distribution of the proceeds of sale pursuant to subparagraph 7(b)(iii) is conditional upon the husband’s superannuation trustee having advised the husband’s solicitors that he/she does not seek to be heard on the issue of splitting the husband’s superannuation interest.
That until further order the wife be restrained from causing permitting or suffering any request to be made of any third person, including but not limited to, any members of her family and Ms P from engaging and/or requesting any third person to be the wife’s agent for the purpose of delivering any letters and/or gifts and/or cards and/or any other form of communication, including telephone communication, to any one or more of the children on behalf of the wife.
That the husband’s costs of and incidental to his application in a case filed 13 September 2011 be reserved.
IT IS DIRECTED that a Registrar of this Registry of the Court send a copy of these reasons to:-
(a)the wife’s parents;
(b)the wife’s friend, Ms P;
(c)the proper officers of the schools at which any of the children attend –
for their own reference and that the husband’s solicitors forthwith provide to my Associate – email …. - the postal addresses to which that correspondence should be sent.
IT IS DIRECTED that these reasons be provided to the family consultant who is preparing the s 62G family report and that she consider inviting the wife’s sister, C Mullen of … (telephone: 03 …) to be interviewed by her for the purpose of her family report assessment.
That otherwise, the matter remains listed for final hearing on 21 November 2011 at 10.00 am.
That the father file and serve an amended response by 4.00 pm on 18 October 2011 in which he seeks a splitting order in relation to his superannuation interest.
That by not later than 12 noon on 28 October, the husband and the wife each file and serve an up to date financial statement.
That the mother file and serve any evidence upon which she seeks to rely at the final hearing by 28 October 2011 NOTING THAT the wife is not at liberty to rely on documents already filed without leave of the Court.
That the husband file and serve any evidence upon which he proposes to rely at the final hearing by 12 noon on 7 November 2011.
That the affidavits to be sworn or affirmed by the husband and wife personally must be not more than 70 pages in length (including annexures) on A4 single sided pages size, in font not smaller than 12 point with lines no more closely spaced than 1.5 space and may not incorporate by reference any earlier or other documents filed in this proceeding.
That the independent children’s lawyer file any updated report by Dr N by 11 November 2011.
That by 15 November 2011 each party be at liberty to deliver to the Court, to my Court Officer, up to 100 A4 pages to be incorporated into a Court Book, noting that the documents will not automatically be admissible.
That any party who seeks to tender or to refer a witness (including himself or herself) to a document at the final hearing must have five (5) clean copies of that document to hand out in Court prior to, or contemporaneously with, the proposed tender or request that the witness have reference to it.
That each party file and serve:-
a)a case outline document about parenting matters, and
b)a case outline about financial matters; and
c)a list of documents to relied upon by that party
as follows:-
i) the mother by 12.00 noon on 14 November 2011;
ii) the father by 12.00 noon on 15 November 2011;
and provide same to the email address ….
That the case outline document about parenting orders summarise the arguments in support of each party’s case including, but not necessarily limited to, the following issues:-
a)Whether the presumption in relation to equal shared parental responsibility is rebutted and, if so, on what basis; and
b)Whether it is the best interests of S born … September 1998, E born … March 2000 and T born … December 2001 to spend equal time with each parent and, if not, why not; and
d)Whether it is the best interests of the children for the parent with whom the children are not primarily resident to be entitled to spend substantial or significant time to spend equal time with the children and, if not, why not; and
e)What parenting orders are sought by that party;
f)Why the parenting orders sought by that party are in the best interests of the children having regard to the primary and additional considerations set out in s60CC(2) and s60CC(3) of the Act.
That the case outline document pertaining to financial matters include the following:-
a)a list of assets divisible between the parties (including any add-backs);
b)a summary of argument including but not limited to the following matters relating to a final alteration of property interests:-
i.the contribution based entitlement claimed, expressed as a percentage of the net value of assets -
1.as at final separation;
2.at the time of trial;
ii.in dot point form the different types of contribution being financial contributions (s79(4)(a)), non-financial contributions (s79(4)(b)) and contributions to the welfare of the family (s79(4)(c)) upon which that party relies to support the contribution based entitlement for which they contend:-
1.during cohabitation;
2.since separation
iii.any other matters relevant to a division of property including any adjustment to the contribution-based claim (if any) expressed as a percentage of the net value of the assets divisible between the parties having regard to the factors in s79(4)(d), (e), (f) and (g);
iv.in dot point form what relevant s75(2) or other factors relied upon by that party for any adjustment;
c)a summary of any matters upon which evidence is adduced from experts and is not agreed, including but not limited to:-
i.the date and outcome of the last conference between experts;
ii.the particular matters upon which there is no agreement between experts;
iii.what the difference there would be to the final outcome in the event that one expert’s view of any particular matter is accepted over the other experts view;
d)a summary of argument in relation to any other financial relief which is sought including child support or spousal maintenance;
e)a minute of the Orders which he / she seeks be made at the final hearing if that is different from the response or application last filed by that party.
That by 12.00 noon on Wednesday 16 November 2011 the independent children’s lawyer provide to each other party to the proceedings and to the email address …:-
a)a chronology of relevant events;
b)a minute of the orders which in the preliminary view of the independent children’s lawyer ought to be made at the final hearing;
c)a list of documents upon which the independent children’s lawyer intends to rely -
and the parents, through their legal practitioners or by themselves, cooperate with the independent children’s lawyer to ensure, to the extent that it is practicable to do so, that the information contained in the chronology is agreed to be accurate.
AND THE COURT NOTES that in the event a party fails or neglects to participate in the proceedings or to file any documents which he/she is required to file, the Court may proceed to determine finally the proceedings or any urgent applications arising therein (including any appropriate ex-parte applications) without further input by the non-participating party and without further notice to them.
IT IS NOTED that publication of this judgment under the pseudonym Mullen & Acken is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 10068 of 2010
| Ms Mullen |
Applicant
And
| Mr Acken |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
This matter is listed today for two reasons.
First, for directions in anticipation of the trial which is listed, before me, to commence on 21 November 2011. Pursuant to directions made by me on 13 July 2011, those directions were also intended to encompass any objections by the husband to the wife’s affidavit material, particularly in the event that the wife sought to rely on any part of her affidavit sworn 24 March 2011. However, the wife has not identified any part of that document as being evidence she seeks to rely upon nor filed any other evidence.
Second, to determine the husband’s application in a case filed 13 September 2011 in which he seeks orders and injunctions in relation to the children and orders to effect the sale of the former matrimonial home and from the net proceeds thereof, to have an interim settlement of property upon himself and the wife.
In the principal proceedings, the wife is the applicant having filed her initiating application on 19 November 2010 and the husband is the respondent having filed his response to initiating application on 16 December 2010. Neither party has filed any amended application or response before today. In the application in a case, the husband is the applicant and the wife is the respondent. In order to avoid confusion, I will refer to the parties to the marriage as husband and wife.
Procedural fairness
Mr Mulvany, solicitor, appears for the husband.
Ms Boymal, of counsel, appears for the independent children’s lawyer who is Mr Damiel Piekarksi of Victoria Legal Aid. Mr Piekarski attends court to instruct Ms Boymal.
There is no appearance by or on behalf of the wife.
This matter was listed for 9 a.m. and intended to be concluded in less than a day. However, at 9 a.m. neither the husband nor the wife was at court. Mr Mulvany informs me that the husband was delayed on public transport. He did not arrive until after 9.30 a.m. There was no explanation for the non-appearance of the wife.
On the last hearing date, 15 September 2011, some confusion about this hearing date was resolved. I had earlier adjourned the matter to today but the relevant order incorrectly referred to “18 October 2011” as the date for this hearing. It was clarified with all parties, including the wife, that the matter was adjourned to today rather than to tomorrow. The discussion to that effect appears at page 5 of the Transcript in Confidence of the hearing on 15 September 2011. I am confident that the wife has the transcript of that discussion because she is the party who ordered the transcript from Auscript Australasia Pty Ltd and paid for it. As is customary, the court was provided with a complimentary copy by virtue of the wife’s order.
Furthermore, arising out the wife’s disruptive conduct in court on 13 July 2011, she is required to participate in the hearing process from another court room. From day to day, the needs of the Registry require that the court room allocated to the wife changes. Last Friday, 14 October, I made an order specifying Court 4B as the court room at which the wife should attend. That Order was transmitted to each party to the proceeding including, of course, the wife. That Order specified today as the hearing date.
In preparation for today’s hearing, I had read the affidavit evidence relied upon by the father. That included evidence of his partner, Ms X, and her description of an incident on 4 October 2011 at which the wife obtained entry, uninvited, into the father’s home and spoke to the children, which she was not entitled to do. Ms X’s evidence is untested in this Court but her report to Victoria Police gave rise to a personal protection order(s) being made under Victorian State legislation against the wife for the benefit of herself and the three children of the parties.
The husband describes his involvement in the incident of 4 October 2011, as follows[1]:-
6.1 At approximately 9.20am I noticed on my mobile phone a missed call from the mother. I returned the call very shortly after 9.23am. The mother informed me that she was on her way to Court and wanted to know what time I would be at Court so she could see the girls. I indicated to the mother that I thought that she had the wrong date as the 5th October had been notified to me by the Court for interviews with Ms [L] and the girls. The mother in the conversation said “it is the 5th October”. I pointed out to her that the day was the 4th October. She asked me the time I was attending with the girls on the next day and declined to give her that time. The mother became abusive towards me and I disconnected the call. Shortly before 10.00am I telephoned my girlfriend [Ms X] to let her know that the mother was in Melbourne and to warn [Ms X] that the mother might attend the former matrimonial home. [Ms X] was minding the two younger children as [S] was at a friend’s place. A little after 10.30am [Ms X] called me indicating that the mother had attended the home, the mother had assaulted [Ms X] and had upset the two younger children. [Ms X] further informed me that she had called the police on 000 and the police had arrived. I immediately left work and arrived home at approximately 12.00 noon.
[1] Husband’s affidavit sworn 13 October 2011 [6.1]
The husband deposed that, later on the morning of 4 October 2011, he received a copy email transmission from the wife to his solicitor, Mr Timothy Mulvany. That document appears as annexure “SVA1” to the husband’s affidavit affirmed 13 October 2011. The husband deposes, at paragraph 6.2 of that affidavit, that the “contents of the email were of grave concern to me as to the welfare of the girls and indeed the welfare of the mother”. The email is dated Tuesday 4 October 2011 at 11.14 a.m. It reads as follows:-
Just to confirm [the husband] is at work. I am on holidays. I went to see my daughters – as not to see them would be to collude the abuse of my daughters by you.
[Ms X] was there. My daughters had no idea about seeing their Mother tomorrow at all. None. Therefore, with the confiscation of my letters – you wish for them to think that their mother is dead – which is sadistic and illegal. Otherwise – why were they deliberately not told?
[…’s] daughter called the Police who have been corrupted by [a Judge] – son of … – brother of …. As I have written and spoken to so many – the children are only there – as [the Judge] would love nothing more than to arrange for me to be put into the back of a divisional van and to have her sadistic ex-husband and children watch this. Because he is a coward. And today is the proof. Police – Guards – Magistrates – Lawyers – and nothing has changed – nothing at all.
Cowards, child abusers, sadists. The Orders have no legal standing whatsoever, and once again are not being followed by the father – therefore – more proof that this is a kidnapping and the appointment with Ms [L] tomorrow is nothing more that the sadistic abuse of their Mother at the Court. The house was filthy.
You will live with this for the rest of your lives. History Departments know (think Jack Mundey and the mysterious disappearance of the woman in that story) – journalists know – Priests know – and hundreds of others know. My daughters will not be sacrificed for nothing – as … wishes to sacrifice his. I have never regretted one moment of my life. Not one. I was the faithful wife – a beautiful Mother – a good employee – a person who believed in justice. A person who believes that to swear or write false Affidavit is an absolute wrong. A person who could never be unkind to a child. Never. Two suicides happened in my life which is the only reason my sadistic ex-husband could control me. But to think that I am a weak person – is wrong.
Those men – the unknown soldiers – did not die for this. They fought against sadists. They were not cowards. They would be ashamed of you all.
“What you do to the least of my children you do to me”.
You damage them willingly as no other girls have been damaged – and if they are killed – you will have murdered them. “And Vincent went round softly speaking his story” and he always will. “Let the Stars Keep on Turning.”
[The wife]
Absent explanation by the mother, I agree that the email raises concerns about the wife’s state of mind. I also have regard to the fact that the wife’s alleged intrusion into the husband’s home, her alleged assault on Ms X and the confrontation with her daughters occurred the day prior to the commencement of the assessment interviews by Ms L, family consultant, for the s62G family report. Having regard to the history of this matter, it was not reasonable or responsible for the wife to assume that she would see the children at her first assessment interview with the family consultant. In any event, the wife did not attend at the Registry to keep her appointment with the family consultant on 5 October 2011. The wife’s failure or refusal to participate in the family report assessment may be viewed as consistent with her refusal to meet with Dr N, psychologist, on 1 September 2011. Dr N is a family therapist appointed for the children. I will, of course await evidence from the wife. However, my preliminary impression is that the wife is only prepared to submit to any social science assessment on her own terms which include her being able to see the children. Having regard to the behaviour of the wife vis a vis the family consultant and the children on 11 July 2011, it is obvious why the girls would not be exposed to the wife early in any assessment process.
Apropos of the wife’s email to Mr Mulvany sent on the morning of 4 October 2011, it was apparently copied to my associate as well as one Mr J, Mr G who is a barrister, the father of Ms X and “…” at Maurice Blackburn, lawyers. Notwithstanding that it was addressed to my associate, it was not received by her or within my Chambers. I did not see it until I read the husband’s affidavit. Correspondence from parties of this nature is initially blocked and diverted elsewhere and, I assume, would have been the subject of some notification by the Registry to the sender and other parties that letters or communications of that nature are inappropriate.
Returning to the events of this morning, the Court endeavoured to contact the wife by her mobile telephone service but it was switched to message. There was no response to any message.
I was sufficiently concerned for the wife’s unexplained failure to appear that I directed a Registrar of the Court to contact the wife’s place of employment, a Community College, to see if she was at work. The school was unable to confirm that the wife was even employed at that campus. Counsel for the independent children’s lawyer was requested by me to contact the wife’s parents who live locally to the wife. I am informed by counsel for the independent children’s lawyer that she spoke to each of the wife’s parents. The wife’s father confirmed having seen the wife last night and it is his understanding that the wife did not intend to attend court today and would notify the court accordingly. The upshot was that the wife’s close family members have no apparent concern for the wife’s immediate welfare.
Interestingly, I was informed by counsel for the independent children’s lawyer that the wife’s father said words to the effect that the wife saw little point in appearing in court if she had to participate from another courtroom. As the wife knows, she is at liberty to make an application to return to the main court at any time. The application is to be in writing and supported by an affidavit which addresses the wife’s conduct on 13 July 2011 and, most particularly, that she assures the court and other parties that there will be no repeat of her disruptive conduct by way of interruptions, interjections and refusal to abide directions of the court.
At the mention on 15 September 2011 and in spite of my order on 13 July 2011, the wife refused to abide the request of the Registry staff to appear from Court 2F until a further specific order was made by me to that effect. That delayed the commencement of the case but, once the wife was present in Court 2F, the matter proceeded relatively smoothly. Consequently, at the conclusion of the mention, I addressed the wife in the following terms:-
HER HONOUR: Okay. Now, in relation to the conduct of the matter in the future, Ms [Mullen], you will be participating from a remote location, like another court room, on the next occasion unless you make an application based on the fact that you won’t interject or interrupt in the proceedings. I note that you have not interjected or interrupted in anything like the manner that you did – you have not, today, interrupted or interjected in anything like the manner that you did on previous occasions, and if you’re prepared to comport yourself like this and behave in this manner, I do not see that there would be a problem with you being in the same court room, but it would involve a conscious decision on your part to remain, or to maintain that behaviour. So if you want to make an application you can do that as part of the affidavit material that you file and serve. Thank you. There being nothing else, I will adjourn the court. Adjourn, please.
I will deal below with the failure of the wife to file any evidence for the hearing today. However, I am satisfied that the wife is well aware that she has an opportunity to be heard today. Furthermore, that whether she appears before me from the same court room as everyone else or another court room from which the audio feed can be muted, is largely in her hands given that she has liberty to apply to alter the current arrangements (but has chosen not to do so).
Finally, I note that Orders made by me in this matter on 13 July, 15 September and 14 October 2011 have all been endorsed with the following notation:-
AND THE COURT NOTES that in the event a party fails or neglects to participate in the proceedings the Court may proceed to determine the proceedings or any urgent applications arising therein (including any appropriate ex-parte applications) without further input by the non-participating party and without further notice to them.
I am satisfied that the wife is aware of the hearing this day and has been accorded procedural fairness in relation to it. The husband and the independent children’s lawyer seek that I deal with the matters which are listed for determination today, on the basis that the orders sought by the husband in his application in a case are not opposed by the wife. I am satisfied that it is appropriate to do so and I will.
Evidence, standard of proof, findings of fact
The relevant test for the Court’s assessment of evidence in this matter is found in s 140 of the Evidence Act 1995 (Cth). Section 140(1) requires the facts in issue to be proved by the party with the persuasive onus on the balance of probabilities.
Lord Nicholls discussed the standard of proof to a balance of probabilities in Re: H & Ors (1996) 1 All ER 1[2] in the context of a wardship application. His Lordship relevantly stated:
Despite their special features, family proceedings remain essentially a form of civil proceedings. Family proceedings often raise various serious issues, but so do other forms of civil proceedings.
The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event is more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury … Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established".
[2] (1996) 1 All ER 1, 16.
I have previously referred to the above observations in earlier reasons delivered in this matter. It is worthwhile for the parties to understand now that these observations on the standard of proof and what is meant by “a balance of probabilities”, are as relevant to assertions and allegations which he/she wishes to make at the final hearing as they are to my determination today.
In these reasons a statement of fact is a finding of fact.
The husband relies on the following evidence:-
a)His affidavit affirmed on 12 September 2011;
b)His affidavit affirmed on 13 October 2011;
c)Affidavit of Ms X (the husband’s partner) sworn 13 October 2011.
The independent children’s lawyer filed an affidavit affirmed by Dr N on 21 September 2011 to which is annexed a report of the same date which is three pages of text and emails from the wife addressed to Dr N or copies to her dated Sunday 7 August 2011, Tuesday 9 August 2011, Wednesday 17 August 2011, Monday 22 August 2011 (to Mr Mulvany as well), Tuesday 23 August 2011 (to Mr Mulvany), Friday 26 August 2011 (to Victoria Legal Aid and to my associate, although not received by her), another on Friday 26 August 2011, Sunday 28 August 2011, Tuesday 30 August 2011, the morning of Wednesday 31 August 2011, the afternoon of Wednesday 31 August 2011, the morning of Thursday 1 September 2011 (to Victoria Legal Aid), the afternoon of Thursday 1 September 2011 (to Victoria Legal Aid), the evening of Thursday 1 September 2011 (to Victoria Legal Aid), the morning of Sunday 4 September 2011 (to Mr Mulvany, Victoria Legal Aid and my associate), the afternoon of Sunday 4 September 2011, Monday 5 September 2011, the morning of Saturday 18 September 2011 (to Victoria Legal Aid, the independent children’s lawyer and Mr Mulvany, the evening of Sunday 18 September 2011 and Monday 19 September 2011. The addressees most frequently copied in or written to were my associate, Victoria legal Aid, the husband and Mr Mulvany.
Insofar as the above correspondence was addressed to Victoria Legal Aid, it was directed to the Managing Director and constituted formal complaints or expressions of dissatisfaction about the independent children’s lawyer, Mr Piekarsky, rather than being correspondence to the independent children’s lawyer in relation to the children.
The father’s application in a case filed on 13 September 2011 was listed for mention on 15 September 2011 because it was stated to be an application for urgent relief and I was due to be away from the Registry for three weeks. The mother attended Court on 15 September 2011 with an affidavit which she had prepared in response to the husband’s affidavit in support of his application in a case. She had earlier sent an unsworn draft of the text to the independent children and the husband’s solicitor, without annexures. I indicated that the wife could have leave to file the document in Court which by that time was affirmed. However, the wife said that she was unable to file and serve it on the day because the annexures, which she held up in a shopping bag, were too voluminous to copy and assemble in one day. She stated that, if she filed the affidavit that she had prepared with all annexures, then she would not have it to copy and serve on other parties. The wife said[3]:-
If I could show it to you – I can’t get it done today. With the annexure and so forth, it’s that big. So I need time to do the four copies, and make sure that it’s all correct and get it filed and so forth. So it’s a big job.
And the wife agreed that the following Wednesday, 21 September 2011 was sufficient time for her to file and serve her affidavit. The following orders were made:-
[3] Transcript in Confidence 15 September 2011, [4].
IT IS ORDERED THAT:
(1) The hearing of the Application in a Case filed on behalf of the husband on 13 September 2011 be adjourned for hearing on 17 October 2011 at 9.00 am (when the matter has otherwise been listed for trial directions) estimated to take not longer than the day.
(2) The wife have leave to file and serve her response to the husband’s application in a case and her evidence in support of that response by 12.00 noon on 21 September 2011.
(3) By not later than 12.00 noon on 29 September 2011 the independent children’s lawyer file and serve any report upon which he seeks to rely from Dr [N], clinical psychologist.
(4) Each other party to the proceeding file and serve any evidence in response to the report of Dr [N] by not later than 12.00 noon on 10 October 2011.
AND IT IS NOTED for case management purposes that the parties and the children have appointments to meet with the family consultant designated to the matter, Ms [L], on 5 October 2011 in Melbourne.
AND IT IS FURTHER NOTED for case management purposes that the matter was previously listed for directions on 17 October 2011 at which time the admissibility of affidavit material will be considered.
The wife has filed no evidence in response to the husband’s application in a case or in response to the evidence of Dr N. The wife did not attend the appointment with the family consultant on 5 October 2011. The husband, by his affidavit affirmed on 13 October sought to respond to some of what the wife had written in the draft text sent to Mr Mulvany before the mention on 15 October, but sought that paragraphs 2 to 19 and 22 to 70 be struck out on the basis that the contents are argumentative, irrelevant, and/or offensive. I have not seen the document. I did not accept Mr Mulvany’s invitation to peruse his copy because neither he nor the independent children’s lawyer have a version which is sworn or affirmed by the wife, there is no indication (by way of filing and serving the document) that she wishes to rely upon it and, in the event that the wife does not now wish to rely on it, it could do her a disservice for me to read it and attribute the contents to her as her evidence or submission.
The upshot is that I have several letters from the wife which are annexed to the affidavits of the husband or Dr N. In some of them, such as the letter of 4 August 2011,[4] the wife makes clear that she opposes the husband’s proposal to sell the home. In particular, in the said letter which was addressed to Mr Mulvany and copied to “Department Head – Victoria Legal Aid”, she writes:-
[4] Husband’s affidavit affirmed 12 September 2011, annexure “SVA3”.
I acknowledge receipt of your letter regarding property matters – received by me today.
I note that you never acknowledge receipt of my letters regarding property matters and all those who are aware of this case have assumed that this is to orchestrate a situation in which your client is entirely unaware of my settlement offers.
My offer remains at a 60/40 property split with the children to reside with me – given:-
1. I am their Mother.
2. My three daughters have made their wishes abundantly clear that they wish to live with me. This would seem rational given that I am their mother and I have not abused them relentlessly on behalf of you for two years.
You cannot sell my home. I do not give you authority to sell my home. If you arrange to sell my home having now received this letter, you would, as you know, be breaking the law. This has not concerned you in the past but I felt it necessary to mention it nonetheless.
Your letter is of course further evidence of the collusion and corruption in this matter as you have once again, in writing, pre-empted the actions of Justice Bennett to the degree that you are confident that Justice Bennett will arrange a further mention in this matter and you appear confident that Justice Bennett would make Orders to force me to commit to selling my home on your terms only and against my wishes.
As you are aware from the documents provided to you prior to the property mediation, the asset has fallen into disrepair due to the actions of your client. Your client is therefore responsible for this and the cost of all repairs and my position in relation to the credit card debt remains as is. I refuse to be responsible for the debt your client incurred in relation to your client’s lengthy affairs and Ms [X’s] mauling of his penis. I also refuse to pay back “loans” to his parents as you demanded.
Your client confirmed this evening that he had advised my daughters that they were to live in a rental property and that they would be forced to live with him and [Ms X] forever. This is a further act of psychological abuse of three children as perpetrated by you and your client and these corrupt proceedings. Your client also confirmed this evening that he will never allow the maternal grandparents of the children to speak to the children and that this was your advice in relation to his “sole parenting rights”.
With regards to property matters generally I refer you to the two years of particularised evidence regarding you and your client’s financial abuse of me and my daughters and your orchestration of our financial abuse could only be described as severe.
I am sure a person of your stature (as an officer of the Court) would be aware that financial abuse such as this is recognised as family violence and clearly the children remain subjected to it – they would be extremely fearful and distressed and psychologically traumatised by this information – they are like no other children in Australia in terms of access to their Mother and now they have been told that they are to live in a flat with their abusive father. This abuse of children has been perpetrated throughout and because of these family law proceedings. They also remain convinced by you and your client that they will not see, or speak to their Mother or their grandparents again and most rational people given the evidence in this matter, consider it highly unlikely that you, the VLA, Justice Bennett and the father will allow the children to read the letters from the Mother. They are children.
My offer remains as it was in the documentation provided to you and Registrar Riddiford that is on the Court file. Please confirm in writing that you have advised your client in writing of my position.
I await your response, and Victoria Legal Aid’s response in relation to your orchestration, over two years, of the emotional and physical abuse of my three daughters that all parties (including Justice Bennett) clearly continue to encourage at the hands of their mentally ill, abusive father.
I have forwarded a copy of your letter and this letter to Justice Bennett’s Associate in order that there is a record that she was advised in relation to property matters.
Yours faithfully
[The wife]
Any concern that I may have had about the privileged nature of the wife’s offer to settle the property dispute, and the inadmissibility of it, is removed by s 131(2)(d) of the Evidence Act 1995. So, whereas I understand from correspondence that the wife was opposed to the sale prior to the husband’s application being issued, there is no response filed pursuant to Rule 9.05 nor any affidavit filed pursuant to Rule 9.06. More importantly, there is no evidence adduced by the wife in opposition to the sale and interim property settlement or the parenting orders and injunctions notwithstanding that she has had more than an adequate opportunity to put on that evidence and respond in the manner required by Rule 9.06, the gist of which also appears as part of the “Important Notices to Respondent/s” at page 4 of the husband’s application in a case with which the wife was served over a month ago.
In conclusion, I regard the husband’s evidence as not contradicted by the wife.
Interim property settlement
The husband seeks that the former matrimonial home at B suburb be sold and that from the proceeds of sale there be refunded to him up to $5,000 by way of reimbursement of expenditure incurred to ready the property for sale, that he and the wife each receive $100,000 by way of interim property settlement and the balance be held in trust pending the determination of the property proceedings on a final basis.
The husband owes Mr Mulvany about $20,000 now and the estimated costs for trial are about $50,000. He alleges, and Mr Mulvany confirms from the bar table, that Mr Mulvany requires payment of the $50,000 or $70,000 or at least reliable security therefore, before his firm will prepare the case for trial and engage counsel from the Victorian Bar to represent the husband. Otherwise, the husband proposes to use the balance of $30,000 to take himself and the children overseas to visit family members and “have a break”.
I construe the husband’s claim as an application pursuant to s 79 and 80(1)(h) of the Family Law Act 1975 (Cth) (‘the Act’) for an interim property order and second, and perhaps by way of a fall back position and as to approximately $70,000, under the costs jurisdiction of the Court in s 117.
In Strahan & Strahan (Interim Property Orders) [2009] FamCAFC 166 the Full Court considered the preconditions and relevant considerations for exercise of the court’s power to make an interim property order. The overarching consideration is the interests of justice and that the result is just and equitable within the meaning of s 79. In real terms, the amount ordered should be capable of re-adjustment at a final hearing, having regard to the court’s preliminary and necessarily limited assessment of the ultimate entitlement of the person seeking the funds. The three stage process was described by the Full Court in the following terms:-
130 In relation to the first stage, in our view, when considering whether to exercise the power under s 79 and s 80(1)(h) of the Act to make an interim property order the “overarching consideration” is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.
131 In Harris at 79,930 the Full Court gave some examples of circumstances where it may be appropriate to exercise the power being “where both parties agree to the disposal of some assets pending the trial” and “[u]rgent situations” to avoid injustice. Another example is where, as in this case, one party requires funds to assist in defraying the costs of litigation without which funds an injustice may be caused.
132 Then turning to the substantive step we adopt what the Full Court said in Harris at 79,930 in relation to the second and third matters which we will now discuss.
134 In relation to the second matter, as the jurisdiction under s 79 of the Act is being exercised the provisions of that section must be considered and applied but with limitations given that it is not the final hearing. There is also no requirement of compelling circumstances in relation to the substantive step.
135 As to the third matter identified at 79,930 by the Full Court in Harris, in discussion before us it was described as the “adjustment issue” or “claw-back issue”. It was submitted by senior counsel for the Wife that it is relevant to consider whether an order would give the applicant “more than they would be indubitably entitled to on a final hearing” or alternatively “would it give them so much that it could not be adjusted on a final hearing?” As we have observed the Full Court in Zschokke at 83,220-221 stressed the importance of consideration of the “adjustment issue” if the power in s 80(1)(h) of the Act is being exercised. We accept the submission and observe that this matter is relevant because the discretion conferred by the power in s 79 is to make such order as the Court considers appropriate provided it is just and equitable to make the order in circumstances where the power will not be exhausted by the interim order. As Bryant CJ and Coleman J observed in Gabel v Yardley at [69] and [72] the interim order must be capable of variation or reversal without resort to s 79A of the Act or appeal. As Finn J said at [126] the interim order must be “capable of alteration at any time prior to, or as part of, the final exercise of the s 79 power”.
137 Once a court proceeds to exercise the power in s 79 of the Act, being in the substantive phase, a court is required to undertake consideration of the matters in s 79(4) including by reference to s 79(4)(e) the matters in s 75(2) so far as they are relevant. However consideration of such matters may be brief and if it is established that “it seems likely to the Court that ... the applicant ... will be likely receive by way of property settlement a sum sufficient to cover the advance, that would seem to be sufficient to enable the order sought to be made”: Zschokke; Polletti and Polletti per Nygh J and Wenz v Archer. As senior counsel for the Wife submitted, “provided scope can be found within the assets of the parties for an order of the size sought ... then that should be the end of the matter”. In other words, in such circumstances the applicant would only be receiving what he or she was entitled to receive when the power was exhausted.
138 The legislation does not prescribe what the Full Court in Zschokke at 83,218 described as “preconditions” and nor would we seek to exhaustively prescribe matters that may be relevant to take into account in the exercise of the discretion under s 80(1)(h) of the Act. As to the three “criteria” identified by the Full Court in Zschokke, we accept that an inability on the part of an applicant for an interim property order to defray the costs of litigation to meet his or her litigation costs would be a relevant matter to take into account at the procedural or first stage. Senior counsel for the Wife submitted that it may be relevant at the substantive or second phase in reviewing the “necessarily limited and impressionistic budget for costs” to ensure that the application is bona fide. We are of the view that it may be that any issue about the bona fides of an application is relevant at the procedural phase in the context of considering if in the interests of justice it is appropriate to make an order before the final hearing.
139 We also emphasise that in order to establish an appropriate case for an interim property settlement order more is required than the mere fact that upon a final hearing the applicant would receive the property being sought (or an amount in excess of the funds being sought) from the other party.
140 As to the other matters being a position of relative financial strength on the part of the respondent to an application and the capacity of the respondent to meet his or her own litigation costs, there is no doubt that the financial circumstances of both parties are relevant at the substantive stage and may also be relevant at the procedural stage. Senior counsel for the Wife submitted that all of the matters discussed by the Full Court in Zschokke are self-evident and we accept that this is so in relation to at least two of the matters being the need for funds and the financial circumstances of both parties.
141 As to the various matters discussed by Brereton J in Paris King Investments which we have discussed above, we do not propose to deal with all of what his Honour said, however we make the following observations about some of the matters. Obviously the applicant should have “at least an arguable case for substantive relief which deserves to be heard”. Further, in determining at the procedural stage whether to exercise the jurisdiction there may need to be evidence of the applicant’s “likely costs of the litigation” given that the need for funds to defray litigation costs and expenses is the circumstance propounded as to why it is appropriate that an order be made. We also accept that “it is not an essential precondition” that the applicant’s legal representatives will not continue to act unless the costs are paid or secured on an ongoing basis.
I will adopt the three stage process referred to in Strahan’s case.
I am satisfied that the husband requires not less than $70,000 to meet his legal costs associated with this proceeding. The wife has had an opportunity to challenge that evidence and has chosen not to do so. The husband seeks up to $100,000, so another $30,000, with which he will go abroad with the children. I am satisfied that the husband’s need for funds is real. In the absence of any contradicting evidence, I accept that he has no other access to funds. Accordingly, I regard it as a genuine application and not a pretext.
There is no issue that the court’s jurisdiction under Section 79 is properly invoked.
a)By the wife’s initiating application filed 19 November 2010, she seeks that the court appoint an agent to handle the sale of the former matrimonial home, that she get 100 percent of the equity in the home, that each party retain their own superannuation, there be a binding child support agreement requiring the husband to pay $650 per week and a spousal maintenance order of $100 per week. The wife has not amended her application.
b)By the husband’s response to initiating application filed 16 December 2010, he seeks an apportionment of all divisible assets including superannuation and real property in the proportion of 60 percent to the wife and 40 percent to himself. He sought a sale of the home by way of an interim order. The husband’s response specifically contemplates a split of his superannuation interest, which was valued at about $480,000 as opposed to the wife’s interest of approximately $19,000, although the response is not drafted or served so as to accord procedural fairness to the relevant (unnamed) superannuation trustee. The husband applied for and obtained leave before me today to file an amended response in which he will seek superannuation splitting order and a division of the superannuation assets and non-superannuation assets in the proportion of 60 percent to himself and 40 percent to the wife in recognition, Mr Mulvany says, that the husband now believes that he will be the primary carer of the children into the foreseeable future.
The wife is 43 years old and employed as a teacher. She resides in northern Victoria. The husband is 45 years old and is employed in the mass media. He has repartnered with Ms X but they do not yet live together as a family unit. The wife’s financial statement sworn on 19 November 2010 discloses her income at $606 per week but that statement related to her income in her previous part-time position in Melbourne. It pre-dated the wife’s move to northern Victoria and her employment as a teacher. The husband’s last filed financial statement, sworn 16 December 2010, discloses an income from his employment at $3,077 per week. Whilst I do not have current income figures for either party, I am confident that the husband is still earning considerably more than the wife.
The husband and wife commenced cohabitation in March 1992 and married on in 1994. They separated on 3 March 2009 after a period of cohabitation approximating 17 years. There are three children of the marriage with whom the wife has no time or communication at present. The father has been the sole carer from the children since April 2011. Between separation and the end of 2010 the wife was the primary carer of the children. Her financial statement from November 2010 discloses an entitlement to child support of $460 per week but that the father was paying $800 per week.
Based on what evidence I have, this is a matter in which the contributions of the parties in their various capacities may ultimately be regarded as equal and certain factors under s 75(2) will require an adjustment. Those factors are likely to include the lesser income earning capacity of the wife and the responsibilities of the parent with whom the children will reside for the ongoing primary care of the children.
Subject to me being satisfied that appropriate adjustments can be made at the final hearing, this matter seems to me to be a matter in which it is appropriate and proper to make an interim property settlement.
The husband’s evidence[5] is that the home was appraised by LJ Hooker to “realise in the vicinity of $500,000 to $550,000”[6] and that it is subject to a mortgage which secures $171,000, leaving an equity of approximately $330,000 to $380,000 less selling and conveyancing expenses and a modest allowance, of not more than $5,000, to ready the property for sale. The husband deposes to his superannuation interest being valued at $481,000, the wife’s various superannuation interests at a total of $19,000 and there being $20,000 of debts which pre-date separation. He deposes that “there is a net property pool for division inclusive of superannuation interests of approximately $835,000.” I was informed by Mr Mulvany that the wife retained the family car at separation and that each party has now acquired a new car. The wife does not call evidence to contradict that of the husband. However, in making an allowance for selling costs and incidental expenses, I make a conservative assumption that the pool of divisible assets (both superannuation and non-superannuation) is more like $800,000.
[5] Husband’s affidavit affirmed 12 September 2011, [3].
[6] Husband’s affidavit affirmed 12 September 2011, annexure “SVA2”.
The husband will forthwith file an amended response to initiating application to seek a splitting order under Part VIIIB of the Act. The husband, through Mr Mulvany, did not oppose any order for interim property settlement being conditional upon the superannuation trustee indicating that it has no objection to a splitting order from which it would then be apparent that there will be no immediate impediment to the court dividing the superannuation interests, on its own initiative or otherwise, rather than just making an adjustment against each party’s entitlement to superannuation. I note from the wife’s financial statement filed at the commencement of the proceedings that the wife has interests in three superannuation funds. Each is modest and non splittable. If the husband’s solicitor advises Registrar Riddiford of this Registry that the response of the husband’s superannuation trustee is that it has no objection to the proposed split of the husband’s superannuation interest, that will not mean that orders will be made in those terms. It merely indicates that, in a machinery sense, the superannuation trustee would be able to implement an order (or similar order) if such an order is ultimately made as part of the final alteration of property interests.
From the pool of all of the assets which are divisible between the parties, the husband seeks that he and the wife each receive $100,000 which I calculate to be about 12.5 percent.
In terms of the non-superannuation asset pool, which is the net proceeds of sale of the house less any other liabilities which are relevant, $100,000 is likely to equate to about 35 percent or 36 percent of that pool. The wife does not appear in the context of this application to submit that superannuation assets should ultimately be divided in any different proportion to the superannuation assets.
I am satisfied that there will be sufficient equity in the remaining assets out of which to make whatever adjustments are necessary at the final hearing. The final hearing is listed to commence on 21 November 2011. It is unlikely that the property will be sold by that time let alone any funds received. However, I am satisfied that the orders sought by the husband do not prejudice either party in the meantime and may well reduce the topics on which evidence will have to be adduced. Furthermore, in the unfortunate event that the final hearing cannot proceed, the parties will still have access to some cash.
I will accede to the husband’s application for the home to be sold and for each party to receive $100,000 from the proceeds of sale.
Interim parenting matters
The husband seeks that passports be issued for the children so that he can take them for a holiday abroad at the end of the year.
The husband also seeks injunctive relief to prevent the wife contacting or communicating with the children through third parties or agents. An interim intervention order[7] obtained on the application of Victoria Police and following the wife’s alleged intrusion into the husband’s home on 4 October 2011, prohibits the wife from contacting or communicating with or from approaching or remaining within 10 metres of each of the children and Ms X. Somewhat curiously, it also prohibits the wife from approaching within 200 metres of the G Police Station which is, presumably, the work address of the informant police officer.
[7] A copy of the intervention order appears as annexure “AERM2” to the affidavit of Antonia Elizabeth Rose Magee sworn 13 October 2011.
The current parenting arrangements are provided for by the interim order which I made on 13 July 2011. The husband has sole parental responsibility for the children, previous orders made on 5 May 2011 by me (for telephone communication) and Federal Magistrate Connolly (for supervised time) are suspended with the effect that the wife has no entitlement to spend time or communicate by telephone with any of the children. The wife is entitled to communicate with the children (or any of them) by sending letters, cards and/or gifts not more frequently than once every 14 days via the independent children’s lawyer (“ICL”) and the ICL has discretion as to whether the letters, cards and/or gifts will be on-forwarded to the children. The wife has complained consistently that her letters have been withheld from the girls but that will, presumably, be the subject of some evidence at the final hearing. The father is required to obtain the support of a psychologist or counsellor, as agreed between himself and the ICL, to support him in his parenting of the children and for therapeutic counselling of the children, In that respect, he selected Dr N and the children or he have attended upon her on 3 or 4 occasions. I am informed by the independent children’s lawyer that Dr N has no concerns whatsoever with the husband’s proposal to take the children on an overseas holiday.
I have considered whether parental responsibility should be shared and whether shared care or substantial or significant time with their non-primary care giver would be in the best interests of the children and whether it would be reasonably practicable. No party suggests that there has been a change in circumstances to warrant any alteration to the husband having sole parental responsibility on an interim basis, as I determined in July 2011. Likewise shared care or substantial or significant time is not in the children’s best interest or practicable. The hearing which is set down to commence shortly, on 21 November 2011, is the opportunity at which these issues will be ventilated in full.
In deciding the issue about the girls’ passports and the husband’s application to take them out of Australia, I have regard to the best interests of the girls as the paramount consideration. In discerning what is in the children’s best interests, s 60CC(2) sets out the primary considerations, and s 60CC(3) sets out the additional considerations.
The first primary consideration is an assessment by the Court of the benefit to the children of having a meaningful relationship with both parents. The second primary consideration is what (if anything) is required to protect the children from physical or psychological harm, and from being subjected to, or exposed to, abuse, neglect or family violence.
The husband proposes to take the children to visit family and to see Europe. The independent children’s lawyer has no concerns that he will retain the children out of Australia or fail to return. Ms X will accompany the husband and children. The husband says that this has been a difficult year and he and the children need a rest. I suspect that the trip will be more of a change and education than a rest and I trust that he has turned his mind to management of any disparate needs of three young girls and his companion.
I am satisfied that the husband’s proposal is genuine. The wife adduces no opposition to it in spite of having been given the opportunity to do so.
Given the narrow operation of the husband’s application, I am not much assisted by the additional considerations set out in s 60CC(3) which usually provide vantage points from which the best interests of the children can be discerned and eventually determined.
I accept that the children have not been advised about the proposed trip by the husband or anyone on his behalf so they will have no views to which I should have regard, including potential disappointment in the event that I did not permit them to travel.
There is currently no face to face time or communication between the wife and children which a holiday would interrupt.
I accept that the children will feel safe and comfortable in the care of the husband whilst they are absent from Australia.
I accept that the husband will facilitate the children (or any of them) to send postcards or things to the wife if they wish to do so but he will not require them to do so.
I have considered whether it would be preferable to postpone my determination of the husband’s application to remove the children from Australia until the final hearing which is listed to commence on 21 November 2011. I find, however, that it is reasonable that the husband be able to make plans now and to take advantage of whatever discounted fares he can attract rather than waiting until the final hearing. If the final hearing is contested (that is, the wife appears), I am likely to reserve my decision which may not be able to be handed down until 2012. It is appropriate that the husband be able to plan for himself and the girls in the meantime.
It is appropriate that a detailed itinerary be lodged with the husband’s solicitor and the independent children’s lawyer (for however long as he remains appointed) at least 14 days prior to departure. It is appropriate that, within the same timeframe, he provide the wife with a general itinerary which does not disclose contact details or specific accommodation. I accept the husband’s evidence[8] that, “virtually every working day, either directly from the mother or through my lawyer, I receive copies of emails and correspondence which the mother has written”. Whereas the husband refers to workings days, I note that six of the letters received by Dr N from the mother (and referred to above) were written on the weekend. I accept that it is reasonable for the husband not to receive constant or, indeed, any communications from the wife when the family is away. Likewise, the mother it not able to contact the children in Australia so she ought not to be able to contact them whilst they are overseas.
[8] Husband’s affidavit affirmed 12 September 2011, [7].
I will make the orders sought by the husband to facilitate the travel he proposes.
The father seeks injunctive relief against the wife causing permitting or suffering the wife to enlist others to communicate with the girls (or any of them) in a manner that she is not entitled to do herself. I accept the husband’s uncontradicted evidence[9] that one Ms P has told the children that she will give them letters from the wife. More recently, that Ms P has invited and facilitated the girls to speak to the wife on her mobile telephone.[10] Whereas the husband’s last affidavit refers to “the restraint sought by me against [Ms P]”,[11] this application seeks an order only against the wife.
[9] Husband’s affidavit affirmed 12 September 2011, [6].
[10] Husband’s affidavit affirmed 13 October 2011, [7].
[11] Husband’s affidavit affirmed 13 October 2011, [7].
I am satisfied that it is contrary to best interests of the girls to have the mother communicating with them through or with the assistance of, third parties. I am satisfied that the injunction in the terms sought by the husband (against the wife) is necessary for the personal protection of the children within the meaning of s 68B(1)(a) of the Act.
I will direct that these reasons be sent by the Registrar of the Court, to the proper officer of the schools at which the children are enrolled as well as to Ms P and the wife’s parents, the latter persons having been identified by the husband as having previously passed communications from the wife to the children. That is not to say that I am satisfied to the requisite standard that they have all done so, but to alert them to the further injunction. I note that, the effect of s 70NAC(b)(ii) of the Act is that a person is taken to have contravened an order even if he/she is not bound by the order but has “aided or abetted a contravention of the order by a person who is bound by it”(emphasis added).
Finally, before leaving my consideration of parenting matters, the husband’s lawyer mentioned that the girls and he maintain contact with a sister of the wife, C Mullen. I consider that it is in the children’s best interests to have the family report writer meet this maternal aunt if she is willing to meet with the family consultant. A copy of reasons should be delivered to the Manager of Child Dispute Services for access by the family consultant.
Trial directions
I consider that the trial directions set out at the commencement of these reasons are appropriate and make them accordingly.
On 13 July 2011 I ordered, inter alia, that:-
19. In the event that the wife proposes to rely on her affidavit sworn on 24 March 2011 at the final hearing she notify the father, via his solicitor, to that effect by not later than 4.00 pm on Friday 7 October 2011 and the father file and serve any objections he has to the admissibility of that document or parts of that document by 12.00 noon on Friday 14 October 2011.
The wife’s affidavit was long and discursive and in many respects irrelevant. As described above, on 15 September 2011 the wife was unable to file the affidavit she had prepared because it was so long that it would require a few days for her to photocopy and assemble.
The wife is a litigant in person. My observation of her is that she is intelligent and capable. However, my experience is that she uses her written evidence as an opportunity to traverse a multitude of irrelevant complaints about the husband, his partner and about the husband’s solicitor, Mr Mulvany. I am satisfied that there is a real danger in this case of the wife seeking to put before the court poorly or unadvisedly drawn evidence which it is too onerous to require the husband or the independent children’s lawyer to have to address.
Procedural fairness requires that the wife (and other parties) be given an opportunity to be heard. It does not require the court or the other parties to wade through documents which are irrelevant or prolix.
It is not my role to advise the wife how to draw her evidence. In a practical sense, I cannot do much about the content of what the wife submits as her evidence. However, I can, and will, control the length. I will limit the length of the wife’s own affidavit to 70 pages, including annexures. These are to be standard pages. If the wife cannot convey what evidence is relevant to her case in 70 pages or less, it is likely that she has strayed into irrelevant and unhelpful content. I will not direct that the Registry reject an affidavit filed by the wife in excess of 70 pages but I indicate that I will not read beyond the first 70 pages nor require the husband and/or independent children’s lawyer to address same. My impression is that an allowance of 70 pages is generous in the extreme. This restriction also applies to the husband. It does not apply to the independent children’s lawyer.
For the avoidance of doubt, neither party to the marriage is at liberty to incorporate by reference or to rely upon other affidavits which he/she has sworn in addition to the 70 pages provided for in my directions.
I will make provision for a court book which, I am confident, will assist in the running of the trial.
I have still not addressed the difference in the evidence which can be adduced in the financial proceedings as opposed to the parenting proceedings.
As I said in my reasons of 13 July 2011, the parenting applications are proceedings to which the Less Adversarial Trial provisions of Division 12A of Part VII of the Act apply. Section 69ZT operates to exclude various divisions and chapters of the Evidence Act which deal with general rules about giving evidence,[12] cross examination,[13] documents, hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character. However, the provisions of the Evidence Act still apply to evidence pertaining to the financial (non-parenting) aspects of the case. There is one legislative pathway for financial matters[14] and another very specific pathway for parenting matters but all evidence is received together. Difficulty can, and does, arise when, with the benefit of hindsight, evidence cannot be neatly categorised as pertaining to one set of proceedings or to the other.
[12] With the exception of ss 26, 30, 36 (s 69ZT(1)(a) of the Act refers).
[13] With the exception of s 41 relating to improper questions.
[14] For instance, see Hickey and Hickey and A-G for the Commonwealth of Australia (Intervener) (2003) FLC 93-143.
Section 69ZT(3) provides that, in exceptional circumstances, and having regard to various matters such as the importance, nature and subject of evidence, probative weight and natural justice, the Court can decide that certain excluded provisions of the Evidence Act should operate in the proceedings. No party has made such an application to date. It would be a pity for the family to incur the cost and inconvenience of two trials. However, I will assess the matter further prior to the commencement of the final hearing on 21 November 2011 when I can see what is sought to be adduced by way of evidence by all parties. All parties should be ready to make submissions in relation to s 69ZT(3) including, if necessary, what constitutes exceptional circumstances in this case.
Conclusion
I am satisfied that the matters in respect of which I have made orders ought to be the subject of interim orders now notwithstanding that the final hearing is only six weeks away.
I am satisfied that the financial orders which are set out at the commencement of these reasons are just and equitable and otherwise proper. The parenting orders and injunction are in the best interests of the children.
I certify that the preceding eighty four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 21 October 2011.
Associate:
Date: 21 October 2011
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