Narkis and Narkis
[2017] FamCA 52
•9 February 2017
FAMILY COURT OF AUSTRALIA
| NARKIS & NARKIS | [2017] FamCA 52 |
| FAMILY LAW – INTERLOCUTORY HEARING – applicant self-represented seeks discovery, distribution of funds to obtain legal representation – where the evidence to support such orders is not provided. FAMILY LAW – SUBPOENAE – objection by applicant to release of her (and the respondent’s) police records in a parenting matter – where no basis for assertion of oppression. FAMILY LAW – OBJECTION – by mental health clinic of treatment of the children – where the objection is based on statutory grounds and concern for the applicant as well as the child - Objection overruled. |
| Family Law Act 1975 (Cth) |
Mental Health Act 2014 (Vic)
| Hatton v Attorney-General Commonwealth of Australia (2000) FLC 93,038 |
| APPLICANT: | Ms Narkis |
| RESPONDENT: | Mr Narkis |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLC | 210 | of | 2014 |
| DATE DELIVERED: | 9 February 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 2 February 2017 |
REPRESENTATION
| THE APPLICANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Mr Salamanca |
| SOLICITOR FOR THE RESPONDENT: | Cantwell Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Trapski |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Trapski Family Law |
Orders
That the amended response of the wife filed 19 December 2016 is dismissed.
That the objection by the proper officer of the TT Hospital to the subpoena issued by the court on 13 January 2017 is dismissed and all information there provided is released for inspection but not copying.
That the objection filed 25 January 2017 to the subpoena issued by the court to Victoria Police on 13 January 2017 is dismissed and any information produced under such subpoena be released for inspection and copying.
That the costs of the Independent Children’s Lawyer fixed in the sum of $552 are reserved to the trial.
That the costs of the respondent husband are reserved to the trial and the husband has leave to file such further material as he is so advised in relation to costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Narkis & Narkis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 210 of 2014
| Ms Narkis |
Applicant
And
| Mr Narkis |
Respondent
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
These reasons relate to interlocutory proceedings heard on 2 February 2017 between Ms Narkis (“the applicant”) and Mr Narkis (“the respondent”). The applicant represents herself and the respondent has lawyers. That in itself, is a bone of contention for the applicant.
The property and parenting proceedings are listed for a final hearing before me on 27 February 2017. That hearing date was fixed late last year but because there were then apparent outstanding interlocutory issues, I adjourned everything that was outstanding to 10.00am on 2 February 2017. That adjournment order was in the context of the applicant’s complaint that the court had not been prepared to hear issues she raised before other judges over the previous year or so. As my reasons that were published on 2 December indicated, I found that complaint unsubstantiated.
The applicant raised again her apparent unanswered complaint made to the administration of the court about the release of her private details. As I understand it, she says that a subpoena containing those details was incorrectly released and despite having written asking for an investigation, it has never happened. I have previously asked the administration of the court to sort out the matter but the applicant says that she has heard nothing. I propose to have these reasons drawn to the attention of the Registry Manager and I express my concern that the applicant has had no response. The applicant’s complaint however has nothing to do with the matters before me save as to where I shall mention them below.
The context of this hearing needs some explanation. On 2 December 2016, there were many documents and papers in the court’s file and I did the best to isolate the issues then required of me for determination. Loosely said, they related to discovery and the preliminary release of money to the applicant for litigation purposes. As I earlier mentioned, she complains that she is without representation in a case where she asserts that the property (at least of the respondent), is worth many millions of dollars. In my previous reasons in December I said:
[8].I turn back then to the specific application of the wife. She seeks 22 orders. In canvassing them sequentially, it became obvious that the evidence, such as it is, does not support the orders in most cases. The wife said she had done another affidavit overnight which would justify the making of some of these proposed orders. Without having to rule on whether that affidavit should be allowed to be read into the evidence, the wife asked me to adjourn her application to enable her to put a proper application before the Court along with comprehensive supporting evidence. Even subsequent to that discussion, there has been dialogue about wanting certain orders today and there are three in particular that I shall deal with.
[9].In passing, the wife complains that she is wasting her time and is not being fairly treated. I reject that. Reference to the transcript will indicate the laborious nature I have followed of endeavouring to identify the issues in dispute, the contemplation of the relevant power to be exercised in relation to proposed orders and the various requests to be directed to the appropriate evidence.
The latter complaint was repeated again in this hearing but more stridently. To be clear, the only new document before the court for the purposes of this hearing was the applicant’s “Amended Response” filed 19 December 2016. Whilst I may have been remiss in not formally ordering a timetable to be followed for the applicant to file affidavit material in support of her application, there can be no doubt that the applicant is an experienced litigant and knows what is required. Albeit she has not practiced as a legal practitioner, she has qualifications in law.
No affidavit material was filed with the applicant’s amended response but to indicate that she does understand the process, she told the court that she had that very material with her to support the orders she was pursuing. She asserts that the respondent’s “perjury” and “lies” will be seen in that documentation. Unfortunately, those documents had not been filed nor, more importantly, served upon the respondent. His counsel, understandably, objected to them. The applicant asserted that there were two main reasons why the material had not been filed. First, she had been overseas with her daughter and secondly, material was still coming in to her possession.
The applicant arrived late for court and the proceedings had actually begun in her absence. She explained her lateness due to it being her daughter’s first day at school. The material she proposed to hand to the court would not have been seen by anyone until after 10.00am.
It must also be noted that the applicant has appealed two of the orders that I made on 2 December 2016. Order 4 required her to provide access to one of the properties of the parties and whilst the applicant does not seem to be troubled about the valuation, Order 4 was directed to providing access to that property for valuation purposes. I raise that subject because one of the issues before me, and dealt with in these reasons, is the distribution of funds to enable her to have legal representation. There are difficulties in the court making those types of orders where it does not know what the assets are and more particularly, what values they have. Here, the lack of cooperation by the applicant compounds that difficulty.
The second order which is the subject of the appeal is an order that required her to produce an inventory of assets and liabilities of the estate of a relative including a copy of relevant correspondence. For the reasons just articulated in relation to the real property, the same problem arises. I do not know what access to funds, if any, the applicant has.
In respect of those December orders, whilst a Notice of Appeal has been filed and is apparently listed for the next sittings of the court in Melbourne, no stay application has been made nor, as I understand it, has any request been made for an expedition of the appeal.
The paucity of the material to enable the court to determine the matters on the previous applications might normally have resulted in their dismissal but being concerned with the expressed pleas for assistance from the applicant, I adjourned those that had not been dealt with to 2 February 2017. The applicant’s material is not couched in legal language but I have endeavoured to cover all of the relief sought in the reasons below.
I have already noted the absence of material supporting the amended response. The applicant asserted that she had been overseas since December 2016 and two months have gone by since the December hearing. The applicant says no material had been filed because the respondent had not taken his daughter for any of the holiday period and she felt that all of the responsibility fell to her. That led to an assertion that she had no time to do the documents. I find that unusual as an explanation having regard to the age of the child. She is a teenager. In addition, the applicant asserted that she could not have sent documents electronically. She described where she was as a third world country. I find that too, implausible.
Thus, I reject any complaint by the applicant that she has been limited by the court or its processes in respect of access to justice. In the December hearing I said the following:
[11].Notwithstanding the tight timetable and the closeness of the final hearing, the wife must be given an opportunity to get her house in order. As such, her adjournment should be granted, but more importantly, she needs to amend her application to provide not only precise interlocutory orders that are within the power of the Court, but also evidence to support such orders.
[12]The wife also opposes the orders sought in the husband’s response but when one examines some of the proposed orders, there is no point in them being adjourned, as the evidence is before the Court and despite opposition from the wife, that evidence is supportive of the orders being made now because of the closeness of the final hearing.
I now deal sequentially with the issues as best I can discern them. The only evidence that I can rely upon is that which was previously filed. That material should not normally be used because it relates to a different proceeding but as the applicant is without legal representation, I have gone back over it. It has been responded to and in most cases, the applicant’s assertions denied. I am not in a position to test the evidence and therefore unable to make findings of fact but in any event, many of the matters have no obvious foundation.
In addition to the applicant’s pursuit of orders, there were two other issues before the court that needed resolution. They related to objections to subpoenae. One subpoena was issued to Victoria Police and the other to the TT Hospital and I intend to deal with those now.
The subpoena to Victoria Police
On 13 January 2017, at the request of the Independent Children’s Lawyer, a subpoena was issued to Victoria Police to produce records disclosing “pending charges, family violence reports, intervention orders” and “criminal history records” of the applicant and the respondent from 1 December 2014. There is significance in the underlined date. The Independent Children’s Lawyer told me that this is not a new issue and Johns J had previously heard and determined a similar objection and ruled against the applicant.
The objection was filed on 25 January 2017 and maintains the grounds were “confidentiality, oppression, relevance, abuse of process and privilege”.
The respondent did not wish to be heard on the subject.
The Independent Children’s Lawyer wants the information which, on its face, appears innocuous but must be seen to be relevant to matters set out in s 60CC(2)(b) and s 60CC(3)(j) and (k) if nothing else.
On the face of the subpoena there must be apparent relevance in the documents.
The applicant asserted that there had been a “wholesale dumping” of her confidential privilege information in the past and this would “cause delays” in the trial. She said she had “no confidence” in the “system” and if orders were made, it would not end the process and she would appeal. That emotive language does not address the real issue in this case. There is no evidence before me in affidavit form to indicate that the subpoena is oppressive. There is no evidence to indicate that the release of that information to the Independent Children’s Lawyer would breach the applicant’s confidentiality. The applicant indicated that she wanted to see the material before it was released to decide what course of action she should take but as I observed at the time, she would well know what was in the material because she had the contact with Victoria Police (if there was any at all) in the first place. This obfuscation by the applicant is odd because, if it does relate to family violence, I would have thought it relevant to her argument on the parenting case.
Before dealing with the outcome of the objection, I turn to the second subpoena to which the applicant had not objected in writing, but she told me that she did so. I have treated her oral objection as a substitute for a written document.
This subpoena was also issued on 13 January 2017 but to the TT Hospital. It sought:
All file notes including but not limited to records of attendances, treatment notes and correspondence and all other documents relating to (the child) including but not limited to those documents related to the attendances at (the hospital’s) psychiatric services unit.
An objection was filed on 19 January 2017 from the head of the TT Hospital Child and Youth Mental Health Service. The letter accompanying the formal objection raised two issues. The first was that the hospital was mindful of its statutory and professional obligations to maintain patient confidentiality and pointed to the Mental Health Act 2014 (Vic) which prohibits the hospital from disclosing the documents unless compelled to do so by law. The second and more pertinent point was that the hospital said it was mindful of the potential adverse mental health consequences that might be caused by the inspection of the documents bearing in mind that the child involved is 14 years of age and had been a client of the hospital during the 2013/2014 year. The letter went on to say that the child, as well as the applicant, was seen on six occasions during that period but the father was not. The letter then reads:
(The child’s) file contains sensitive and personal information about (the child and her mother) including detail about conflict between (the parents). As a medical practitioner specialising in Child and Youth Mental Health, I have concerns that if the attached documents are released in the context of a Family Court dispute that it could lead to worsening mental health issues for (the child) by increasing the family conflict.
The applicant relied upon the same grounds of “oppression, relevance, confidentiality, abuse of process and privilege” and the same argument. She added however that “Magistrate Goldsbrough” was so concerned about her daughter (presumably in intervention order proceedings in the Magistrates’ Court at Melbourne) that the learned magistrate had appointed a specific lawyer to act for the child. It would be unfortunate if the two courts were not acting to protect the interests of the child by ignoring what is happening in the other’s court. The applicant produced no records to show why Magistrate Goldsbrough so ordered (if that has occurred) but this court is charged with the responsibility under Commonwealth law of making orders it deems to be in the best interests of the child. The jurisdiction of this court to make such orders could be removed if the relevant State welfare department stepped in and instigated proceedings for the protection of the child under State law. No such action has been taken. This court has an application for the determination of a parenting dispute which, as I understand it, sees the respondent requesting that the child live with him. As such, absent some evidence that the respondent is acting maliciously or inappropriately in those proceedings, I would not be able to find that there is an abuse of process by his application. No such assertion has been made by the Independent Children’s Lawyer whose charge is to propose and pursue orders for the best interests of the child.
Chapter 15 of the Family Law Rules 2004 sets out the objection process. The onus of proof of establishing relevance lies with the person who issued the subpoena (Hatton v Attorney-General Commonwealth of Australia (2000) FLC 93,038). Both of these subpoenae were issued by the Independent Children’s Lawyer. I am satisfied they may contain information relevant to the proceedings because there is a live parenting dispute and I have already mentioned two s 60CC considerations. But it is also asserted by the respondent in this case that the mental health of the applicant is an issue. The question of whether the applicant is capable of caring for the child is apparently an issue. If the child has mental health issues, the court has to consider whether or not the parent proposing a change of residence has the capacity to deal with those sorts of difficulties. So too, and particularly relevant in this case having regard to the hospital’s observation that the release of the information may worsen the child’s health by increasing the family conflict, is the court’s charter to end conflictual proceedings between the parents and make orders that would protect the child. Albeit there is little evidence available for me to determine the matters beyond a peripheral basis, the Independent Children’s Lawyer has satisfied me that there is apparent relevance in that material.
The process of determining the objection requires the court to ensure compliance has occurred, decide what use the documents have (and are to be put) and the third step relates to the admission into evidence of those documents. (See National Employers Mutual General Association Limited v Waind and Hill [1978] 1 NSWLR 372 at 381). The third step in this particular case is not relevant because it may be that after an inspection of the documentation, a decision is made for it not to be admitted.
This is a parenting case and accordingly, the strict processes of the admission of evidence are not relevant (s 69ZT of the Family Law Act 1975 (Cth) (“the Act”)). It is the responsibility of a judge conducting a parenting trial to protect a child from harm as well as conduct the proceedings by way of investigating what issues are to be determined and those that are not (s 69ZQ). I am very conscious in this case of the principles in s 69ZN of the Act, the first of which is to consider the needs of the child and the impact of the conduct of the proceedings on that child. That is relevant here because of the warning of the hospital. The hospital’s charter is different from that of the court. The court’s function is to determine what orders best met a child’s future needs in the context of a highly conflictual family. The court cannot do that without proper evidence.
It is also important to observe that material produced under subpoenae cannot be disseminated beyond the realms of the court proceedings; to do otherwise would be contemptuous of the court. Nothing I have heard would indicate that there was a prospect of that in this case. I make that observation in the context of the applicant’s constant accusation that her confidentiality and privilege has been violated by the court but as I understand her complaint, in each case the only person who had access to any such material was a party to the litigation or that party’s agent and the relevant court staff all of whom have been made very much aware as part of their duties, of the need for confidentiality. For example, the Act prohibits a family counsellor from disclosing communications made during family counselling so to the extent that any such material was canvassed with a party during counselling, that material could not be used for any other purpose other than mandatory reporting.
There is no claim for public interest immunity in this case and no-one appeared on behalf of the hospital or Victoria Police to so claim. The applicant’s observation about that was that Victoria Police had obviously not had their legal advisors examine the situation before releasing the documents to the court but I reject that having regard to the fact that even so, as I earlier observed, there would be nothing in that material about which the applicant would not have been aware. In those circumstances, there is no basis upon which I could find that there is a need to protect the confidentiality of the child let alone the applicant. Nothing that I can see supports an assertion of abuse of process. The Independent Children’s Lawyer brought the subpoena before the court for the purposes of fulfilling her responsibilities which are clearly set out in the Act.
Finally, the applicant asserts oppression. It is important in every parenting case that the court has access to all possible information that may assist it to determine the matter so that an order can be made in the best interests of a child. As I earlier observed, Division 12A of the Act requires the court to determine what evidence is to be called to promote that outcome. Nothing I have seen indicates that the Independent Children’s Lawyer is acting oppressively.
Both objections are therefore dismissed.
I turn then to the remaining issues. The amended response now covers all of the matters that were otherwise not dealt with in the December proceedings. Those need to be dealt with sequentially.
The first is that the applicant seeks leave to file amended material. Formal objection was taken by the respondent but after discussion, I agreed to the applicant having an extension of time to 15 February 2017. She wanted until 21 February but in my view, having regard to the need for the respondent to reply to any such material, that was too late. As the applicant indicated to me that she had all of the material ready to file in her hands, albeit there was still material coming in, I saw no reason why she should have the time she wanted particularly bearing in mind that she had had two months to contemplate what was needed to be said. Even if she had the responsibility for a 14 year old child over that holiday period, she indicated to me that the child has now returned to school which should give her sufficient time to prepare her own material.
On the basis that the material is filed that late, it will not give the respondent sufficient time to reply as had previously been contemplated so I have agreed that any such reply can be on a viva voce basis. Whilst that prejudices the applicant to some degree, she is the cause of the problem and can hardly complain.
The second order sought relates to the substantive proceeding itself. Previously she had not set out with any precision what orders she was seeking and she has now done so. Whilst the way it is currently pleaded is not satisfactory because it does not indicate how those respective orders would be implemented by the alteration of what property interests, at least the respondent is on notice as to the nature of the order she now seeks.
The third order had three components and I shall endeavour to describe them.
In her affidavit filed 25 November 2016, the applicant makes a number of assertions including the following:
· The respondent has repeatedly instructed his solicitors with false or misleading information or not disclosed information regarding AA Pty Ltd;
· The respondent’s representations and disclosure regarding finances show a blatant and contumacious disobedience of the court rules and regulations and orders (pointing to the example of Danee Investments P/L and a failure to disclose “Asian business activities”);
· The failure by the respondent to disclose an “City D” property purchased in about 2008 by AA Pty Ltd; the internet apparently discloses that that property is available for rent at nearly $8000 per month.
In an affidavit filed on 2 December 2016, the applicant described the evidence of the respondent as a “snow job”. She asserted that he had failed to disclose his current business “in which he has been involved in capital raising $57 million and of which he is a director”. She attached to the affidavit a series of documents to corroborate that assertion but I am unable to discern what the interest to which she refers means or how the various documents are to be interpreted.
In addition to those matters, the affidavit asserted that in about 2011, the respondent was one of three beneficiaries in an intellectual property sale of around $3 million which related to “[WW], [VV] and [UU] Bank”. Attached to her affidavit purporting to corroborate that assertion was correspondence requesting disclosure to which the respondent’s lawyers wrote on 24 November 2016 that the request was late such that the timeline she sought for disclosure was impracticable and unreasonable. The letter went on to say that the respondent instructed the solicitors that he did not have any interests anywhere in Asia. It said that the various companies which were referred to in the earlier annexure were “both technically insolvent” and were likely to be liquidated and wound up. The letter went on in that vein.
There can be no doubt that the applicant has made numerous requests for disclosure but it is hard to follow her chain of reasoning by the inclusion of the various documents that she attaches to the affidavits. She refers to websites which were the subject of the correspondence but to which the respondent replied that he had either no interest or alternatively the entity had no value. Reference was made to meetings that the respondent had attended with an accountant and a bank but all those seemed to relate to the period of time when the parties were living together. That period of time included 2008.
The affidavit goes on to say that the applicant was “heavily involved” in AA P/L and she had (and still has) access to the bank accounts. She referred to the bank accounts showing that the respondent is running loans with another company called X P/L “through the [AA] P/L beach house account”. Attached to the affidavit and apparently to corroborate that assertion (JN5) was an email dated 2007 which seemed to be something to do with the booking of accommodation and where money was to be paid into a specific Westpac Bank account. If as I read the applicant’s affidavit, she has access to those bank accounts, I remain unsure as to what it is that she wants disclosed.
Returning to the application, it is difficult for me to make any determination on the facts as asserted and certainly so with the absence of the material that should have been filed prior to the commencement of the hearing on 2 February. It will be recalled that I specifically adjourned all of these sorts of applications to 2 February to enable these issues to be undertaken.
Whilst there is clearly a serious question to be tried here, the applicant has not established that she will suffer irreparable injury unless the injunction is granted and having regard to the vague nature of the assertions, it would not be appropriate to make an order and in those circumstances I could not find it was proper to do so.
The second item of the third order relates to expenses for legal costs. What the applicant seeks is that whatever has been spent by the respondent, be also paid to her. That would not indicate in this case that even if the payment was made, she would have the capacity to engage legal practitioners and I do not have evidence as to what the respondent has spent. Any adjustment can therefore be made at trial.
Whilst it is possible for a court to make an order for costs be equalised, there is no evidence here that would enable me to make such an order.
The third of the three orders relates to what might be described as a valuation dispute. The applicant seeks an order that the court “ascribes a value of A$50 million to the intellectual property assets” of the parties and then goes on to talk about licenced agreements, trademarks and patents. The court does not have the power to make such an order without evidence. Whilst the parties could reach agreement, from the material that I have read, that seems unlikely. In those circumstances, if the applicant is asserting that that is the value, she will have the responsibility of establishing it.
The fourth order sought is that a variety of people be “ordered” to attend the court for the purposes of giving evidence at the final hearing. One of those people is the respondent. The applicant believes that he will not attend and subject himself to cross-examination. Mr Salamanca of counsel confirmed from the bar table that not only had the respondent filed his affidavit material for trial but had also every intention of being here to subject himself to cross-examination. There is no basis therefore for me to make such an order. As I observed at the time, should he fail to attend, he will have no evidence to support the orders that he proposes.
The applicant then went on to seek the attendance of a variety of people and included in that application a request that service of some of the proposed court orders be by way of substituted service on either the person’s last known address where they were previously served with subpoenae or alternatively on the respondent’s lawyers. There is no evidence to indicate the relevance of those subpoenae and whilst I have indicated to the applicant that she has permission to issue such subpoenae as she can show to a registrar may be relevant, the court would note in that exercise, there are many assertions in this case but linking those assertions with relevance is a difficult problem. Because the applicant is unrepresented, I would not be prepared to allow her to cross-examine her own witnesses and she would need to explain why affidavit evidence could not be provided. Clearly if these people are hostile to the applicant’s cause, she can establish the need for them to be appropriately subpoenaed but that exercise would require her first to ask whether they were prepared to give evidence by affidavit and if not, what the relevance of their evidence is. At this stage, there is no basis for me to make the order in No 4.
The fifth order sought is the same as those that I have just mentioned relating to service. I do not propose to address it further.
The sixth order sought was that the father pay the mother’s legal expenses.
Section 117 of the Act provides that in proceedings under the Act, each party shall bear their own costs unless there are circumstances that indicate it is just to depart from that principle and if the court is so contemplating such a departure, it must consider the matters set out in s 117(2A) of the Act. This is a case in which assertions are made by the applicant that discovery is not being undertaken by the respondent but also that he has perjured himself in his statements to the court in relation to his financial position. I have the affidavit of the respondent which had been previously filed for the purposes of the last hearing and his position appears to be that apart from denying any wrong doing, he has provided everything that he has in his possession. Whether the applicant likes it or not, unfortunately, she needs to establish by formal proof that which she asserts. There is no evidence to justify an order in this case for costs.
The seventh order relates to parenting matters including that the previous parenting orders for spending time and travel be revoked and similar orders associated where the child should continue to live. This trial is only a few weeks away and the child has returned to school. There is no basis for the assertion leaving aside the question of whether there is any evidence that would justify such an order. I refuse to make that order.
The same paragraph of the proposed orders seeks that the respondent have contact with the child at his financial expense but again, all of those matters are substantive issues for trial. Similarly, an order is sought in relation to education fees and health-related fees but there is a jurisdictional problem associated with child support not addressed by the applicant and those matters too can be properly dealt with in the materials that she is required to file and serve by 15 February 2017.
The eighth handwritten order seeks that the respondent provide various codes and keys to three properties. I do not understand the basis of that mandatory injunctive type of order. The absence of evidence indicates that it should not be made about some just cause. No urgency was indicated as to why that was necessary and as I understand it, those properties are the subject of the proceedings. Accordingly, I decline to make that order.
Counsel for the respondent sought an order that his costs be paid. He said that his fees were $4200 and the solicitor sought $880. It is evident that each of those fees is beyond the scale to the Family Law Rules and look remarkably like an indemnity cost basis. Absent the formal requirements of the Rules being fulfilled, I would not be in a position to assess the costs properly and make any order. It is a live issue however and on that basis, I reserved those costs to the trial and allowed the father leave to file any such material as he was required to pursue that application.
The Independent Children’s Lawyer sought an order for costs of $552 (presumably the legal aid scale). That matter too should remain a live issue for the purposes of the trial for the same reasons as set out above.
Accordingly, the orders of the court are those set out at the commencement of these reasons.
I certify that the preceding Fifty Eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 9 February 2017.
Associate:
Date: 9 February 2017
2
0
1