Porter and Porter & Ors

Case •

[2020] FamCA 553

•

25 June 2020

FAMILY COURT OF AUSTRALIA

PORTER & PORTER AND ORS [2020] FamCA 553

FAMILY LAW – PRACTICE AND PROCEDURE – Reopening – Where the wife filed two applications to reopen the case to adduce further evidence and issue subpoenas to pursue further inquiries – Where much of the material that the wife sought to rely upon was or could have been available to the wife prior to and during the final hearing – Where some non-controversial and materially relevant evidence was allowed – Where otherwise the further evidence which the wife sought to lead was not so material that the interests of justice required its admission; or where the further evidence if accepted would most probably affect the result of the case – Where making orders in accordance with the wife’s applications was likely to extensively prolong the litigation and prejudice would ensue to the other parties by reason of the late admission of the further evidence that the wife sought to adduce – The wife’s applications to reopen the case dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife made a request for a referral to the Law Society of New South Wales – Where the wife made an application that the trustees destroy “the Third Report to Creditors” – Where the wife asserted there was a breach of s 121 of the Family Law Act 1975 – Where it was not appropriate to reopen the case to entertain this request and application – The application is dismissed.

FAMILY LAW – PROPERTY – Interim Financial – Where the husband made an application for interim financial relief – Where new final property settlement orders are being made – Where any such applications made by the husband need to be reconsidered in light of the determination of financial applications – The husband’s interim application is dismissed.

Family Law Act 1975 (Cth)
Reid v Brett [2005] VSC 18
APPLICANT: Ms Porter
RESPONDENT: Mr Porter
2nd RESPONDENTS: P Pty Ltd
3rd RESPONDENTS: Q Pty Ltd
4th RESPONDENTS: R Pty Ltd
5th RESPONDENT: Mr Dunst & Mr Simons as Trustees in Bankrupt Estate of Mr Porter
6th RESPONDENTS: Ms O
7th RESPONDENTS: S Pty Ltd
FILE NUMBER: SYC 4014 of 2012
DATE DELIVERED: 25 June 2020
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Watts J
HEARING DATE: 14 October 2019; 22 May 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person
SOLICITOR FOR THE RESPONDENT: Litigant in person
SOLICITOR FOR 5TH RESPONDENTS Litigants in person
SOLICITOR FOR 6TH RESPONDENT: Litigant in person

Orders

  1. The wife’s Amended Application in a Case filed 11 October 2019 be dismissed (except for the purposes of admitting certain evidence referred to in these reasons).

  2. The wife’s Application in a Case filed 15 May 2020 be dismissed (except for the purposes of admitting certain evidence referred to in these reasons).

  3. The husband’s Application in a Case filed 18 May 2020 be dismissed.

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 Porter & Porter and Ors 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 SYDNEY

FILE NUMBER: SYC 4014 of 2012

Ms Porter

Applicant

And

Mr Porter

1st Respondent

And

P Pty Ltd

2nd Respondent

And

Q Pty Ltd

3rd Respondent

And

R Pty Ltd

4th Respondent

And

Mr Dunst & Mr Simons as Trustees in Bankrupt Estate of Mr Porter 

5th Respondent

And

Ms O 

6th Respondent

And

S Pty Ltd

7th Respondent

REASONS FOR JUDGMENT

WIFE’S FIRST APPLICATION TO REOPEN THE CASE

Introduction

  1. On 7 August 2019 the wife filed an Application to reopen the case. On 11 October 2019 the wife filed an Amended Application to reopen the case. The wife filed three affidavits in support of her application to reopen on 7 August 2019, 11 October 2019 and 11 November 2019.

  2. The wife’s application to reopen is not only to lead evidence in the affidavits that she has filed but also to issue a significant number of further subpoenas.

  3. The trustees, the husband and Ms O opposed the reopening of the case. Each has filed affidavits in support of their opposition to the wife’s application. The affidavits of the husband and Ms O contain further evidence which they would seek to adduce but ONLY in the event that the wife’s application to reopen the case is successful. Otherwise they do not want the opportunity to lead that evidence. The evidence which the husband seeks to lead, if the hearing is reopened, is about:

    ·His involvement with his professional body in 2019

    ·Assertions about his current state of health

    ·Information about his current work patterns

  4. The wife raised the issue as to what happened to the proposed sale of a property at PP Street. Ms O wished to inform the court that the sale of a property at PP Street, in respect of which an exchange of contract was imminently expected as at the date of hearing, had not proceeded. As will be seen below, on the wife’s second application to reopen the case, evidence was given that PP Street had been sold.  

Material relied upon

  1. The material filed by the parties is set out in Schedule 1.

  2. The wife’s application to reopen the case was developed by the wife in a cascading way as the wife continued to attempt to examine financial transactions with which the husband had some connection.

  3. The hearing took place on the papers with oral submissions being given on 14 October 2019 and 18 November 2019.

Wife’s affidavit filed 7 August 2019

  1. The affidavit filed 7 August 2019 was 18 pages with 194 pages (unpaginated) annexures.

  2. In this affidavit the wife summarised the further evidence that she wished to adduce as follows:

(14)(a)

Documents relating to a payment by RR Lawyers of $450,000 attributed towards legal fees

(b)

Investigation by NSW Police into RR Lawyers with respect of fraudulent transactions associated with their trust account

(c)

A payment said to be made to the husband by RR Lawyers of $100,000 on 11 December 2015

(d)

Evidence that PP Street, Suburb G had not sold

(e)

Unexplained transfers amounting to $491,000 said to have been paid to WW Bank

(f)

Re-examining contributions of Ms O made to the acquisition of QQ Street, Suburb G in the amount of $222,755.81 on 8 January 2016

(g)

A document which the wife believes was fabricated by the National Australia Bank and RR Lawyers

(h)

The husband’s involvement with the professional body

Wife’s affidavit filed 11 October 2019

  1. The affidavit of 11 October 2019 was 33 pages. The annexures to that affidavit were unpaginated in an accompanying ring binder which contained unindexed and unpaginated pages. The wife was unable to say how many pages there were but I estimate there to be well in excess of 300 pages. In this affidavit the wife sets out 15 new topics in respect of which she wished to either lead further evidence or explore further by issuing further subpoenas.

  2. The wife had discovered material on iPads given to the children by the husband which the children had brought into the wife’s home.

  3. The further evidence related to:

    ·The wife’s discovery of different online accounts and/or user names and passwords including three EF Pty Ltd accounts controlled by the husband (one of which was in the husband’s mother’s name) (16 a, b, c, d, e, f, g, h, i, j, k)

    ·The wife’s capacity to work as being “even further diminished” due to ongoing deterioration with the eldest child’s behaviour (16(l))

    ·The husband’s claim that he was admitted to psychiatric care (16(m))

    ·Poor school attendance of the children when they are in their father’s care (16(n))

    ·Further information about results from the husband’s involvement with his professional body (16(o))

Wife’s affidavit filed 11 November 2019

  1. The affidavit of 11 November 2019, together with annexures (which were paginated) was 342 pages in length. The affidavit of 11 November 2019, responds to affidavits that were filed by the husband and by Ms O addressing issues raised by the wife in her first two affidavits. This affidavit canvasses both new and old matters including:

    ·The husband’s access to significant funds in the first year of his bankruptcy

    ·The conduct of the trustees

    ·The RR Lawyers preference payment

    ·The husband’s EF Pty Ltd accounts

    ·The husband’s mother’s bank accounts

    ·The husband’s bank accounts

    ·Whether or not the trustees have identified the whole of the assets that should vest in the trustees

    ·The Queensland business

    ·The trustees misleading the court in relation to certain creditors

    ·Ms O’s silence in relation to certain monies that had gone through the RR Lawyers trust accounts

    ·Non-disclosure in relation to loans of BH Company

    ·Questions in respect of monies paid to Mr TT of counsel

    ·The state of the NSW Police investigation against RR Lawyers

    ·Information relating to the wife’s accessing of the eldest child’s iPad

    ·“The fraudulent email” by RR Lawyers

    ·The husband’s current financial circumstances

    ·The role of UU Pty Ltd

    ·The liquidation of VV Pty Ltd (in liquidation)

    ·Matters going to prejudice  

  2. So in summary, the wife wishes to lead further evidence about the following topics:

    ·Asserted irregularities in transactions in the trust and general accounts of RR Lawyers

    ·Monies paid by the husband to the WW Bank in 2017

    ·The husband’s maintenance of his lifestyle during his bankruptcy

    ·The husband’s possible reopening of a facility with XX Pty Ltd

    ·The fees of Mr TT, a barrister who has advised and appeared for various of the respondents in these proceedings

    ·The wife’s current earning capacity

  3. The wife provided an outline of case document for 18 November 2019. In paragraph 16, the wife records that on 14 October 2019 she outlined as the two main concerns, the amount of $450,000 that she asserted RR Lawyers had taken in legal fees which were not supported by the documents and secondly, the husband using his Visa card account and EF Pty Ltd accounts to access the ANZ business bank account (xx…84).

  4. At paragraph 17 of the wife’s outline of case, the wife identifies as additional issues which form the basis of her application to reopen, the following:

    ·The asset pool has not been accurately identified because assets have been concealed

    ·Documents have been re-engineered by the husband and RR Lawyers to give the illusion that the husband has complied with his obligations of full and frank disclosure

    ·The husband and Ms O deliberately withheld disclosure of UU Pty Ltd

Legal principles

  1. In Reid v Brett [2005] VSC 18 (8 February 2005) Habersberger J said:

    2011.The criteria governing the exercise of the discretionary power to re-open a case to admit further evidence where the hearing has concluded but judgment has not been delivered have been said to be as follows:

    (a)the further evidence is so material that the interests of justice require its admission;

    (b)the further evidence, if accepted, would most probably affect the result of the case;

    (c)the further evidence could not by reasonable diligence have been discovered earlier; and

    (d)no prejudice would ensue to the other party by reason of the late admission of the further evidence.[1]

    …

Issues in respect of which the wife seeks to reopen the case

[1] Re: Australasian Meat Industry Employees’ Union (WA Branch); Ex parte Ferguson (1986) 67 ALR 491 at 493-494 per Toohey J, citing Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88 and Murray v Figge (1974) ALR 612

Asserted irregularities in transactions in the trust account of RR Lawyers

  1. At the final hearing the wife, amongst other applications, had made applications in her Reply filed 5 March 2019 against a number of third parties, one of which was RR Lawyers (as well as the Commissioner of Taxation, YY Group and ZZ Group). She had given none of these third parties notice of the proceedings and the wife was informed she could not proceed with those parts of her application as part of the final hearing.

  2. At the heart of the part of the wife’s application which assert irregularities in the trust account of RR Lawyers, are documents that were produced by RR Lawyers pursuant to an order that I made on 26 February 2019 (before the final hearing recommenced on 11 March 2019) for the production of those documents.

  3. The order dated 26 February 2019 was in the following terms:

    1.Within 7 days the principal of RR Lawyers deliver to the Exhibits Section of the Court:

    1.1.Copies of all invoices that were raised or any other document that would evidence a liability by Mr Porter to the firm for the costs and disbursements referred to in office account receipt number …107 dated 9 November 2017 in the sum of $450,000;

    1.2.all records in relation to matter numbers 216204 and 215415 (including trust account and office account statements);

    1.3.All trust account and general account records in relation to any dealings that also involve Ms O or any entity in which she was a office bearer or shareholder or in respect of which she provided the instructions to act from 1 July 2017 onwards.

    1.4.In the event that RR Lawyers wish to claim legal professional privilege in relation to any information on any of those documents, they are to redact that information from those documents; they are to put an unredacted copy of those documents in a sealed envelope addressed for a judge’s eyes only so that they might be inspected by a judge if that becomes necessary. 

  4. It is not in doubt that the documents in respect of which the wife now relies were available to the wife prior to the recommencement of the hearing on 11 March 2019. The wife says the documents from RR Lawyers were produced about four days before 11 March 2019 but that she had over 2,000 pages of material that she had to look at. She complains in her affidavit that she inspected documents initially produced by RR Lawyers but further documents were produced by RR Lawyers subsequently on the following day that she didn’t realise were there, although even in her own evidence she was told that further documents were coming.

  5. The wife gives reasons as to why she was not in a position to fully analyse those documents in the time frame that she had. Those reasons included:

    a)Getting ready for the hearing generally

    b)Preparing cross examination

    c)Being an unrepresented litigant

    d)Having care for B, who has special needs, and the other two children as well

  6. The wife was listed as a creditor in the husband’s bankrupt estate (in respect of arrears of child support). She received a copy of the trustees’ second report dated 20 April 2018 which is annexed to the trustees’ affidavit of 22 January 2019. The wife was aware, at least by that date, that the husband and Ms O asserted:

    ·That Ms O had lent the husband $699,133 to provide working capital to his business and make a payment in reduction of legal expenses (section 5.11 trustees’ second report)

    ·The source of the loan was Ms O’s share in the proceeds of the sale of the home she shared with the husband at AB Street, Suburb F (pages 29 – 30 of the trustees’ second report)

    ·That at least $632,106 plus $210,000 less selling commission had been paid to RR Lawyers upon the sale of that property on 17 October 2017 (pages 29 – 30 of the trustees’ second report)

  7. The wife refers to Exhibit A5 to her affidavit of 7 August 2019 which is an office account receipt for the disposition of an amount of $450,000 which had been paid into the trust account of RR Lawyers. That receipt indicates that that amount of money was allocated for the payment of costs and disbursements across 26 matters (it may have been slightly fewer than that number of matters given that a number of the payments were made in respect of costs and disbursements on the same matter).

  8. The wife was concerned that when reference was made to the trust account ledgers in respect of some of those matters, these payments were not recorded. In that regard she refers to documents at exhibit A 6 in respect of the trust account records for matter number …204; exhibit A 7, matter number …316; exhibit A 8, matter number …001; exhibit A 9, matter number …113; exhibit A 10, matter number ...166; exhibit A 11, matter number …170; exhibit A 12, matter number …315; exhibit A 13, matter number …510.

  9. As discussed with the wife during submissions, her concerns about the lack of reference to these payments on exhibits A 6 to A 13 inclusive was misplaced. Exhibits A 6 to A 13 are the trust account ledgers for these respective matters. The $450,000 was only ever transferred into one trust account ledger and disbursed from that trust account ledger to the office ledgers of the various matters. It is unremarkable that there is no entry on the trust account ledgers for those matters in respect of the payments of these costs and disbursements.

  10. Evidence in respect of the original source from which the amount of $450,000 was transferred to RR Lawyers was available during the concluded hearing. There was no basis for any dispute that the source of these funds was Ms O’s share of the proceeds of the sale of the property at AB Street, Suburb F. Ms O held title to that property as a joint owner and had made contributions to its acquisition and conservation.

  11. The wife now effectively wishes to reopen the hearing to pursue an inquiry in relation to that potential clawback of funds into the husband’s bankrupt estate but in circumstances where there is no doubt that the source of these funds came from Ms O’s interest in the Suburb F property and where the unchallenged evidence at trial was that Ms O had lent these funds to the husband for the specific purpose of the husband discharging liabilities.

  12. The wife also submitted that she wished to buttress her claim that the payment to RR Lawyers was a “deliberate strategy to avoid enforcement of consent orders” and that monies were being warehoused by RR Lawyers on behalf of the husband and/or Ms O.

  13. Included in the material the wife had gathered from the husband’s iPad, was a screen shot she had taken of an email sent by Mr BC (the parties’ then office manager) dated 15 December 2017, referred to at paragraph 28 of the wife’s second affidavit (exhibit A 2), sent to “me” (who I infer was the husband), Ms O (who I infer is Ms O) and Ms SS (who I am asked to infer was Ms SS, the principle at RR Lawyers). The email is in the following terms:

    Hi there,

    Im afraid we will need to dip into our reserves over xmas to meet payroll over the next few weeks.

    With the xmas slowdown and the garnisheeing of income we are under extreme pressure to meet our basic financial obligations.

    I fee [sic] I will need access to $80k to ensure we meet payroll to 21 Dec and for January. While I acknowledge that we have a reduced payroll over xmas, we will still need enough financial support to ensure we get through. I appreciate this is a big ask, and I don’t propose to use the whole of the amount. I would rather have the funds available so we can all can relax a bit over xmas. This will need to be approved and transferred next week.

  1. The wife relies upon this email to suggest that RR Lawyers were at least holding $80,000 in reserve funds on behalf of the husband and/or Ms O and that as a consequence, the wife asserts, that the husband was not insolvent as at the date of his bankruptcy.

  2. It was made clear in the trustees’ second report in April 2018 that monies were indeed provided to RR Lawyers from Ms O’s share of the proceeds of the sale of Suburb F “to provide working capital to his business”. There is nothing new in that revelation. Nor does the existence of the availability of these funds cast any doubt on the trustees’ initial assessment that as at the date of the husband’s bankruptcy, he was “hopelessly insolvent” given the extent of his creditors at that date.

  3. The wife’s assertion that the trustee has failed to recover the $450,000 as a preference payment can be dealt with on the evidence that had been presented at the final hearing.

  4. I shall allow the evidence that RR Lawyers held some funds from the husband that had been lent to him by Ms O which were subsequently returned to assist in the cash flow of the business.

  5. The next matter the wife cites as an irregularity in the accounts of RR Lawyers is an amount of $337,845 that is put back into the same trust account into which the $450,000 was originally paid. It is not controversial that those monies came from the sale of two properties. The wife however says that the timing of the receipt of those monies into the trust account is suspicious because it coincided with her originally raising issues in respect of RR Lawyers’ involvement in the handling of funds from the proceeds of sale of Suburb F. It is the wife’s case theory that the $337,000 is a payment back into the trust account of part of the $450,000 that went out. The wife conceded that the timing is purely circumstantial and that she had no evidence that placing these monies into this trust account had anything to do with the original amount of $450,000 leaving that trust account.

  6. The wife’s stated aim is to gather sufficient evidence with a view to joining RR Lawyers as parties to the proceedings and making a claim against RR Lawyers for lost funds arising from their involvement in manipulating the flow of funds in this matter. The wife also makes the submission that RR Lawyers is currently being investigated by the police in respect of trust account transactions relating to Ms T and Mr U. I have no specific information about what action the police are taking, if any, or how police involvement might be relevant to anything I have to decide.

  7. As part of the wife’s case theory that RR Lawyers had been involved in a conspiracy against her, the wife draws attention to Exhibit A 28 to her first affidavit of 7 August 2019 and seeks to assert that this was an email engineered by RR Lawyers.

  8. This document is an email from Ms CD who is a branch manager at the National Australia Bank. It is written to Ms DE, a lawyer at RR Lawyers who was acting for the husband at the time. The text of the email is:

    Hi Ms DE, hope you’re well.

    Please see attachment.

    No accounts held for Mr Porter.

    Kind regards

    Ms CD

  9. This email was attached to an affidavit that was filed by the husband on 28 February 2019. The wife points to A 29 which is a bank statement from NAB in the husband’s name for the period 22 April 2017 to 21 July 2017 which indicates an opening and closing balance of $3.08 credit. The wife draws from these two documents the inference that Ms CD’s original email has been fabricated by RR Lawyers given that they attached it to an affidavit of the husband. That is a very serious allegation to make based on that evidence. I would draw no such inference.

  10. This hearing originally commenced on 31 January 2018. It was adjourned because the husband announced on that day that he had become bankrupt on this own petition. The hearing recommenced before me on 11 – 14 March 2019. The wife had a significant amount of time to issue subpoenas to or seek orders against RR Lawyers to explore information that was contained in the trustees’ second report in April 2018. Whilst the wife obtained the order for production from RR Lawyers on 26 February 2019 and had made some attempts prior to that to obtain information without court process, it was open to the wife to more proactively seek the compulsion of further information from RR Lawyers between April 2018 and February 2019. Having regard to the volume of material that was already being relied upon, by the time of the recommencement of the final hearing in March 2019, that hearing was completed on material presented in evidence from material that had been gathered and inspected as at that time.

  11. I am unable to conclude that the documents the wife wishes to tender and the further inquiries the wife wishes to explore in respect of matters associated with RR Lawyers are so material that the interest of justice require their admission or that they would most probably affect the outcome.

Payments made to an ANZ account in 2017

  1. On 14 March 2019, which was the final day of the concluded hearing, the wife, when cross examining the trustee, asked him, in connection with monies going to the WW Bank, about an ANZ account to which she said payments of $15,000 per week were being made by the husband. The trustee indicated that he had assumed that this was an account in the name of P Pty Ltd but he had not seen any statements from that account. The trustee also said that he could see in the WW Bank accounts that funds had been deposited against various loan accounts but from the WW Bank statements he could not identify where those funds came from.

  2. The wife at that point on the final day indicated that she wished to be able to subpoena the ANZ account but I indicated to the wife that I would need to decide the case upon the evidence which I then had.

  3. The wife’s Amended Application in a Case filed 11 October 2019 seeks, amongst others, the following order:

    7.  Within 14 days the first respondent and/or the fifth respondent (the trustee in bankruptcy) do all acts and things to produce to the court copies of all bank account statements for any account held with the WW Bank to account for the application and distribution of an amount of $491,000.

  4. As indicated, the trustee gave oral evidence during the hearing that he did not have the ANZ accounts nor could he access them.

  5. Both the wife and the trustee, in their respective evidence relating to the wife’s application to reopen the case, assert that I made a request on 14 March 2019 for a reconciliation of the WW Bank payments. As best I remember, that was a misunderstanding by them, as the only reconciliation that I had requested was one that related to the distribution of the proceeds of the sale of 2/100 FG Street, Suburb GH. The trustee in fact did provide that reconciliation on 18 March 2019. He also, on his own motion, provided a partial reconciliation of the WW Bank payments which the wife now wishes to further explore. The email provided to my chambers by the trustees on 18 March 2019, which is annexed to the wife’s affidavit of 7 August 2019 (A38) is as follows:

    Please find attached a further reconciliation of the WW Bank (WW Bank) loan accounts for the months of August, September and October. We thought it is best to also look at the WW Bank payments to establish where the funds paid from Mr Porter’s Westpac account made it to WW Bank.

    We believe that this may assist the parties and His Honour to clarify and have comfort that the funds did go to WW Bank. Furthermore, the ANZ account is a WW Bank account that [sic] it is unable to obtain a statement because it seems as though other non-Porter entities use this account to repay WW Bank and there is no window to this account. Please refer to annexure “Z” of the WW Bank payments reconciliation.

    We have also provided a withdrawal summary, in respect to monies paid to WW Bank, from the Westpac Account …42 (Known as Mr Porter VV Group/The HJ Pty Ltd) and brief explanation of the flow of monies.

    Should you need further explanation on the attached please contact our office on [telephone number given]

  6. Attached to this email was a document which indicated that there was a flow of funds from a Westpac bank account in the husband’s name to a “WW Bank’s client ANZ Account” and onto various WW Bank loan facility accounts. The trustee had the husband’s Westpac bank account. The trustee also had the WW Bank loan facility accounts. The trustee did not have access to the WW Bank’s client ANZ account as it was used by other entities other than the husband and it was a locked account. Nonetheless, the trustee carried out a reconciliation of monies moving out of the husband’s Westpac account (which on their face bore a destination of “WW Bank”) and monies paid by way of bank credits into the WW Bank loan facility accounts. The reconciliation is for the limited time period of August to October 2017 and is in the following terms:

Date

Westpac

WW Bank

August 2017

$68,000

$64,559

September 2017

$68,000

$52,435

October 2017

$60,000

$56,964

  1. The records that the trustee has annexed to this reconciliation which are outside the three month period where a reconciliation has been undertaken show other cash deposits received into the WW Bank.   

  2. By way of background, the circumstances in which the husband owed money to the WW Bank are described at page 17 and following of the trustees’ second report of April 2018. As at 31 January 2018, the husband owed the WW Bank $930,000 and also was the guarantor of facilities with various corporate entities to the WW Bank for about $3.6 million. The WW Bank had lodged a proof of debt in the husband’s bankruptcy of $1,226,072.

  3. The Trustees accordingly have asserted that they are confident that these payments from the husband’s Westpac account substantially found their way via the ANZ account into the WW Bank.

  4. The wife provides evidence about this issue she now seeks to pursue at paragraphs 116 to 127 of her affidavit filed 7 August 2019.

  5. In that evidence the wife says that in June 2019, the wife conducted an ASIC search of JK Pty Ltd (in liquidation). She has cited a publicly available liquidator’s report by the liquidator of that company. The wife at exhibit A 39 has attached page 7 of the liquidator’s report, the date of which is not provided, which contains the following paragraph under the heading “unexplained transfers”:

    In my previous report the creditors, identified a number of transactions totalling $491,527.98 which initially appeared to be preferential in nature that required further explanation. Following the receipt of the majority of the company’s books and records I was able to conduct extensive investigations into the disbursement of these funds and was able to attribute these payments to payroll expenses to the various employees, as such my investigations have been finalised in this regard.

  6. The wife asserts in her affidavit that the amount mentioned in the liquidator’s report is “the same amount as the unexplained monies His Honour has directed Mr Simons to provide a reconciliation in respect of”. Firstly, as indicated, my recollection is that I did not seek any such reconciliation. Secondly, the wife has provided no evidence that the amounts going out of the husband’s Westpac account, in some unspecified period, totalled $491,527.98.

  7. At paragraph 21 of the trustees’ written submissions dated 14 October 2019, the trustees say:

    At paragraph 191 of her affidavit the applicant states that she became aware of a liquidator’s report on 25 June 2019. The applicant is operating under the misapprehension that the monies discussed by the Liquidator are the same monies that are the subject of the reconciliation provided 18 March 2019”

  8. The wife has not established on the evidence that there is any such connection.

  9. The wife speculated that these payments may be connected to undisclosed property that the husband may have in Queensland. She has produced no evidence to support that case theory. The only evidence of property in Queensland in that held via units in the N Trust and the Trustees have indicated the wife can take those units. On the other hand, there was evidence at the hearing, that the husband, or entities with which he was associated, owed significant amounts to the WW Bank.

  10. The wife also complains in her application to reopen the case, that the WW Bank were not fully compliant with subpoenas that she had issued before the hearing but this issue was not pursued by the wife prior to the hearing

  11. In relation to what may or may not have happened with the ANZ account, on the evidence presented, reopening the case to pursue that line of inquiry is not so material the interest of justice would require that course. It is unlikely on the evidence that a further pursuit of that issue would affect the result of the case. In addition, there is some argument that the wife with reasonable diligence could have subpoenaed the ANZ before the hearing. I deal with the issue of prejudice in my conclusion.

Accounts operated by the husband during his bankruptcy as a result of information that the wife has been able to find on the iPad in her children’s possession

  1. Part of what the wife wishes to lead in evidence are documents and/or evidence from lines of inquiries flowing from the wife after the conclusion of the hearing, assessing iPads belonging or formerly belonging to the husband. The eldest child (who has Down Syndrome), was presenting difficulties when being transported to and from school by somebody providing that service and the husband had provided the iPad strictly to use during those journeys in order to occupy B. B smuggled this iPad into his mother’s home and it was in those circumstances the wife had access to it. The second iPad was used by D and had formerly been the husband’s iPad.

  2. The wife is asserting that the husband had access to various sources of income and monies and maintained a lifestyle during his bankruptcy using the access that he had to those funds.

  3. The wife in her affidavit of 10 October sets out the basis upon which she wishes to issue new subpoenas to EF Pty Ltd (A 11), Commonwealth Bank (A 31), CH Bank (A 32), CJ Bank/CK Bank (A 33), CL Bank (A 34), Westpac (A 35), Ms KL Porter (Mr Porter’s mother) (A 36), Mr BC (the director of UU Pty Ltd and the husband’s current employer) (A 37), LM Pty Ltd (A 38), Professional body (in relation to the husband’s recent interaction) (A 39).

  4. As part of the availability of monies to the husband during his bankruptcy, the wife points to expenditure that the husband made on gambling accounts and in relation to payment on bikes around Christmas time.

  5. The wife, if allowed to, wished to further explore whether the husband had used non-disclosed accounts to attempt to live during the period of his bankruptcy. The wife particularly pointed to the use of an account in his daughter’s name and the fact that through that account the office manager had paid a deposit on a property at Suburb G. 

  6. Ms O and the husband filed affidavits explaining how all transactions on documents that the wife has seen are just ordinary everyday transactions but ultimately they did not seek to rely upon this evidence and opposed the wife being able to reopen the hearing.

  7. During the hearing the wife asserted that the husband and Ms O continued their relationship and that the association with Mr BC was not as it was presented. 

  8. Much of the further evidence but more substantially the further inquiries which the wife sought to undertake, was to demonstrate that the husband has enjoyed a lifestyle during his bankruptcy which is higher than should have been available to him as a result of the sources of income which he was receiving. She asserts that he was receiving benefits with the assistance of third parties (his mother, Ms O and Mr BC) and through undisclosed accounts (some using his mother’s name). On the basis of the information that has been presented by the wife, none of it would lead me to conclude that any further evidence was so material that the interest of justice required its admission or if accepted, would most probably affect the result of the case.

Alleged discrepancies in the documents from the husband’s disciplinary body

  1. The husband had filed material about what had happened between his disciplinary body and himself and information about him working as a professional more generally.  

  2. The wife drew attention to the fact that there had been alterations made to attachment 1 to that document and that attachment 2 is not referred to in the body of the letter. It was common ground that the first alteration altered whatever was the year referred to the correct year of 2019 (the correct date being 24 June 2019). The wife however is very suspicious about the fact that a previous condition that everybody agrees was imposed on 11 February 2017 has also been altered to 2019. The wife suspected that the husband had not disclosed disciplinary proceedings that had happened on 11 February 2019. She did however agree that it would have been hugely coincidental if there were two disciplinary proceedings on 11 February in 2017 and in 2019. I draw no sinister inference from the alterations on annexure D. The husband’s affidavit, apart from wanting to adduce evidence of his temporary suspension from practice between 24 June 2019 and 13 September 2019, also gave some evidence about his health problems since final submissions. He wanted to give evidence of reduced work hours under the condition of his disciplinary board that have required him now to work 30 hours a week. He however, in the hearing of the first application to reopen, indicated that his salary hasn’t changed. He is now back at work and on a salary of $250,000 a year paid to him by Mr BC’s UU Pty Ltd. Both the husband and Ms O wanted to give evidence that VV Pty Ltd ceased trading in July 2019 and went into voluntary liquidation in August 2019. Currently the husband wants to give evidence that he is working at Unit 2 MN Street, Suburb G. Ms O wanted to tell me in her affidavit that her current employment is at NP Company “as an independent contractor”. None of that evidence however will be before me unless the case is reopened. None of this evidence in its current form would affect the outcome of the case from the wife’s point of view and the husband opposes the case being reopened so that it can be led.

BH Company

  1. The wife raised an issue about loans with BH Company. The material that she had inspected on subpoena showed those loans expiring but she suspects that they were renewed in Ms O’s name. The wife asserts that this evidence goes to lack of full and frank disclosure. She didn’t know what these loans were or what they related to. Again, without more, I am unable to say that any further evidence on this topic would be so material that the interest of justice would require its admission or that if accepted, it would most probably affect the result of the case.

Mr TT’s fees

  1. Mr TT is the barrister who appeared for Ms O and associated entities.

  2. The wife draws attention to A 43 which is a trust account ledger from RR Lawyers showing a payment to Mr TT of $24,490 on 1 June 2018.

  3. The wife then points to an email (A 45) from Mr PQ, the practice manager at RR Lawyers, to Ms O on 5 March 2019. In that email there is an entry of payments to Mr TT from the sale of AB Street, Suburb F of the following amounts:

    10.1.18          $4,004

    26.3.18        $23,793

    21.9.18        $27,500

  4. The wife says there is an inconsistency but on inspection I don’t think that is so. The payment in June comes from monies from the sale of QQ Street, Suburb G. One document shows payment to Mr TT in January, March and September 2018; the other a payment to him in June 2018. The documents show different payments. They are not inconsistent.

  5. This evidence could not affect the result.

The wife’s current earning capacity

  1. The wife wants to also reopen the case to give me the evidence about her current earning capacity. That evidence is contained at paragraphs 148 to 186 of her second affidavit and centres around the increasing difficulties she says she is having with B who suffers from Down Syndrome. The husband opposes the reopening in relation to capacity.

  1. The wife has given detailed evidence about the burdens B’s behaviour places upon her and how that impinges upon her earning capacity. Again, the new information that the wife wishes to adduce is not so material that the interests of justice requires its admission and is not of a nature that, if accepted, it would most probably affect the result of the case.  

Conclusion about the first application to reopen

  1. No new subpoenas were authorised since judgment was reserved in this matter. I consequently infer that the vast majority of the material that the wife now relies upon in her application for leave to reopen was available to her at the time of the hearing as a result of subpoenas already issued at that time or as a result of documents that had been provided to her by way of disclosure during the preparation of the proceedings before the final hearing. The wife has access to some new information that she found by searching iPads in the children’s possession that had been provided to them by their father.

  2. The effect of the wife’s application is to seek to put into evidence approaching 1,000 pages of material, the vast bulk of which was available to her at the time of the first hearing.

  3. In addition, her application now is to have leave to issue subpoenas to 11 financial institutions, the husband’s mother, Mr BC and the Professional Body. In the end justice must be served by taking an overview of the utility of granting the wife’s application. It seems clear that in the event that the application is granted then there will be significant delays while the wife attempts to satisfy herself as to every minute transaction with which the husband has had some connection.   

  4. I conclude that no useful purpose would be served by attempting to do a forensic tracing exercise through voluminous financial records in the hope to find something of significance that would make a difference to the possible ultimate outcome in the case.

  5. The wife has not demonstrated during her first application to reopen that there is any issue of such significance that is to likely alter the result that would be achieved on the evidence already presented at the concluded final hearing.   

  6. Consequent upon earlier discussion, I conclude that even if the evidence that the wife has provided (and any further evidence the wife might garner as a result of the new subpoenas that she has indicated that she wishes to issue) was admitted and accepted, it most probably would not affect the overall result of the case. The trustees (and the husband’s creditors) and Ms O in particular, but to some extent also the husband, shall be prejudiced by a reopening of the hearing because it is likely that it will lead to a new round of extensive litigation in which the wife will attempt to satisfy herself in respect of new material in particular detail. Most importantly however, none of the evidence that he wife now wishes to adduce is so material that the interests of justice would require its admission.

  7. Accordingly I shall dismiss the wife’s application to reopen the case, except in order to admit the evidence that about $80,000 was probably paid to JK Pty Ltd from a trust account with RR Lawyers in the husband’s name, over the Christmas 2018/2019 period, to assist with the cash flow of the business. In those circumstances, the husband and Ms O do not seek to lead further evidence.

WIFE’S SECOND APPLICATION TO REOPEN THE CASE

  1. On 15 May 2020 the wife filed a further Application in a Case. That application sought a number of orders, including:

    2.3  That the matter be referred to the Law Society of New South Wales for investigation in relation to an alleged forgery of the signature of Ms CD, Branch Manager, National Australia Bank Limited and for an investigation in relation to a possible re-engineering of an email from Ms CD, Branch Manager, National Australia Bank Limited (paragraphs 2 and 3);

    4.  The applicant wife be given leave to issue subpoenas to:

    ·       EF Pty Ltd,

    ·       The husband’s mother;

    ·       National Australia Bank;

    ·       Mr BC;

    ·       UU Pty Ltd;

    ·       ANZ Bank;

    ·       All other persons or entities the wife had previously sought leave to issue subpoenas to in her Application in a Case to seek leave to reopen the proceedings filed 7 August 2020

    (paragraph 4);

    6.7  The husband provide documentary evidence showing:

    ·       How he paid for a trip to Queensland in December 2019;

    ·       How he paid for a treadmill that retails for $4,999.99;

    ·       How he paid for a trip to a luxury resort on the weekend of the 21 March 2020

    (paragraphs 6 and 7);

    8.  An order Ms O pay the amount of $76,966.49 into the controlled monies account (the application asserts that these monies were deduced from the sale of PP Street in breach of an order of 1 February 2018) (paragraph 8);

    9.  Ms O and/or RR Lawyers pay an amount of $29,700 to the controlled monies account from the proceeds of the Suburb GH property (the order asserts a breach of the order of 1 February 2018) (paragraph 9);

    10.  An order that the wife receive $2,000 per week from the controlled monies account until further order (paragraph 10);

    11.  An order that the Child Support Agency be ordered to release payments made to it in respect of monies owing to the wife forthwith (paragraph 11);

    12.  The husband bring arrears of $64,576.43 up to date forthwith (paragraph 12);   

    13.  The trustees destroy “the Third Report to Creditors” and it be reissued to rectify errors and removing the level of detail in relation to the family law proceedings (paragraph 13);  

    14.  The hearing be reopened to admit into evidence the Third Report to Creditors (paragraph 14);

    15.  The husband or Ms O or Mr BC be ordered to provide evidence as to how rent is paid on the apartment rented by the husband’s mother at Suburb M from 14 March 2019 to date (paragraph 15).

  2. The Application in a Case was accompanied by an affidavit sworn by the wife on 24 April 2020.

PP Street, Suburb G

  1. Commencing at paragraph 10 of the affidavit, the wife gives evidence that the property at PP Street was sold by way of exchange of contracts on 18 November 2019 and settlement of the sale took place in March 2020. The fact that PP Street was sold and how the proceeds were distributed including what was paid into the controlled monies account, was not in dispute and it was agreed I would have regard to those facts in the final hearing. The first mortgagee in respect of that property was the WW Bank and an amount was paid to the WW Bank on settlement of $782,310.56 to discharge the first mortgage on the property. At the time of settlement, an additional amount of $76,966.49 was paid to the WW Bank to discharge a separate loan in respect of the fit out of the property referred to as a loan facility. The wife alleges that that was a breach of order 9 of the orders of 1 February 2018 which required the proceeds of the sale of the PP Street property to be placed into the controlled monies account after the payment of all mortgages registered over the property. The wife complains at paragraph 15 that Ms O did not seek the court’s permission for the payment of this loan to WW Bank.  Whether or not it was a breach of the order would depend on whether or not the mortgage of the WW Bank was an all monies mortgage and there was a requirement to discharge the separate loan to WW Bank in order to get a discharge of the mortgage that WW Bank had on the PP Street property. On its face the WW Bank required the payment of this additional mortgage to discharge the PP Street debt.

  2. In paragraphs 18 and following, the wife refers to an earlier application by Ms O in November 2018 relating to payments to the WW Bank and complains that this additional loan was not referred to in those applications. However, during the final hearing it was made clear that monies were owed in relation to equipment. The fact it was not previously disclosed or highlighted does not mean that the WW Bank were not owed the money that they received on settlement.

  3. Although the wife’s application only seeks an order for Ms O to repay these monies, at paragraph 25 of her affidavit the wife also seeks that Ms SS repay these monies in the alternative. There is no application that Ms SS be joined as a party to this application.

  4. The wife has not established any basis upon which Ms O or Ms SS (if she was made a party) should be required to repay monies paid to WW Bank in respect to a debt WW Bank were owed.

Repayment from monies from the sale of FG Street

  1. The next topic commences at paragraph 29 of her affidavit where the wife refers to a breach of order 10 made 6 December 2018 in relation to the sale of the FG Street, Suburb GH property. The basis of this claim is at A3. This is a trust statement relating to the proceeds of the sale of the Suburb GH property which the wife says shows an amount of $29,700 “for a payment allegedly relating to the property located at QQ Street, Suburb G (the QQ Street property).” The payee was QR Pty Limited. The wife says she has been asking for the return of these monies and has never received any response. She now wants Ms O or Ms SS to pay the money back to the controlled monies account.

  2. This information was almost certainly available to the wife at the hearing. Whether or not there may have been a breach of an order that money be placed in the controlled monies account, the payment is seemingly for a debt to a company which I infer had provided finance connected with QQ Street and further inquiry in relation to this payment is not so material that it is likely that the interest of justice require the case to be reopened to examine the payment.

Arrears of spousal maintenance and child support

  1. Paragraph 33 and following the wife discusses this issue.

  2. At paragraph 34 she says that at the time she filed her first application to reopen on 11 October 2019, the arrears in respect of the order for the payment of $2,000 per week was $58,147 and since then she has been owed three further weekly payments of $2,000 ($6,000) bringing the arrears she asserts to $64,147.

  3. At paragraph 38 she provides a copy of an email from the husband where he wrote on 10 April 2020, “Unfortunately there is no money, I’m not working and business is dead”.

  4. Order 9, 26 April 2018 stays collections under the Third Party Debt Notice which at the same time made an order for the collection of an amount of $2,000 per week. The wife details amounts she said were outstanding at that time under the binding child support agreement and the spousal maintenance order and at paragraph 40 she asserts that collectively she is owed $147,185.

  5. At paragraph 41 the wife says she received a $4,000 payment from the husband’s mother on 12 March 2020 (but refers to the husband concealing monies in his mother’s account).

  6. At paragraph 43 the wife refers to tendering bank statements belonging to the husband’s mother on 12 March 2019 showing monies coming into the husband’s mother’s account from ST Business (exhibit 59).

  7. At paragraph 47 the wife says that she received some $2,000 payments per week directly from Mr BC personally and directly from UU Pty Ltd. On the basis of those payments she now wishes to interrogate Mr BC’s personal financial position and that of his company.

  8. At paragraph 49 the wife asserts that the husband recently went to a resort in Queensland for five nights on 30 March 2020.

  9. The wife at A6 exhibits a “picture of [the husband’s] new treadmill” and evidence that it retails for about $5,000 (there is no indication as to how the wife came by that photograph which is seemingly taken from the interior of the husband’s residence).

  10. At paragraph 52 and following the wife gives evidence that a friend sent her photographs of the husband attending a luxury resort in NSW on 21 March 2020 with Ms O as his companion.

  11. At paragraph 56 she refers to a notice from the Agency indicating arrears at $67,576 (she exhibits A9).

  12. Paragraph 59 indicates that the husband asserted at some point to the Child Support Agency that the ongoing payments of $2,000 per week were in some way aimed at reducing the pre-26 April 2018 debt.

  13. I shall have general regard to some of this information although it is somewhat confusing and contradictory.

  14. Paragraph 64 relates to order 11 as sought seeking an order directed to the Child Support Agency that they pay her any monies that they are holding. There is no evidence that they are holding any monies that have not been paid to the wife.

  15. Paragraph 65 indicates the wife has been paying school fees, strata fees and council fees since the husband’s bankruptcy.

  16. The wife received an interim property settlement order in the sum of $200,000. At paragraph 70 the wife sets out how she has used $178,770 of those funds, although $64,147 relates to “loss of $2,000 per week”, whatever that might mean. I note she has paid $4,639 on obtaining court transcripts. The first two items are B’s school fees $7,980 and D’s school fees $40,668.

  17. At paragraph 71 she says she spent money on the children’s medical and dental expenses, short getaways, a 10th birthday party for D with 31 invited friends and that her grandmother and aunty paid for a trip to Asia for the three of them in May 2019, “to celebrate the end of the family law proceedings”. I shall allow the additional evidence from the wife referred to in the last two paragraphs.  

The husband moving to L Street, Suburb M

  1. The apartment at L Street, Suburb M is rented by the husband’s mother. The wife seeks to provide me with evidence of a transcript of cross examination by Ms Christie of the husband before Senior Registrar Campbell on 25 August 2017. She then goes on to set out questions she asked of the husband, Ms O and Mr BC in relation to the $1,000 per week payment to the husband’s mother.

  2. At paragraph 77 she discloses a liquidator was appointed for VV Pty Ltd on or around 4 September 2019. She however complains that the mother continues to occupy the Suburb M apartment notwithstanding that that company went into liquidation, the husband has not earning any income because of the global pandemic causing elective surgeries to be cancelled and the husband being suspended from medicine in 2019 during which time the wife received no money and the husband advising her on 10 April 2020 that he will not be receiving any more money. The wife therefore wants to interrogate how the Suburb M apartment is still being paid for.

  3. At paragraph 79 she says the husband told her on 19 April 2020 he will be moving to the Suburb M apartment.

  4. At paragraph 81 she sets out that she wants the husband, Ms O and Mr BC provide documentary evidence forthwith as to how rent has been paid on the Suburb M apartment since 14 March 2019 and whatever monies have been paid to Ms KL Porter since that date to enable her to pay rent or for whatever reasons whatsoever (this is order 15 as sought in the application).

  5. In paragraph 82 she says she is going to also serve Mr BC in his capacity as director of UU Pty Ltd and suggests she is going to ask Ms O the same questions in relation to VV Pty Ltd Pty Ltd (which is now in liquidation).

  6. At paragraph 100 the undated creditors’ list in the Third Creditor’s Report which does not include a $200,000 debt to which Ms KL Porter submitted a proof of debt. The wife says that she relies on this fact to support her application for the inquiry as to what monies have been paid to the husband’s mother.

  7. The L Street property was being rented by the husband’s mother at the time of the hearing. I have evidence of monies being paid to the husband’s mother by Ms O. The wife did not previously seek to examine in detail the arrangements in relation to the rental of this property. Further evidence about this topic is not so material that the interests of justice require its admission nor would it most probably affect the result.

Application that matters be referred to the Legal Services Commission

  1. Orders 2 and 3 sought in the Application in a Case seek referral to the Law Society of NSW in relation to an email which the wife says was likely re-engineered. It is an email that purports to be from Ms CD of the Suburb TU branch of the National Australia Bank. This revisits the wife’s application to reopen on 7 August 2019 under the heading “The likely re-engineering of an email from Ms CD”. By making this application, the wife effectively creates an opportunity to reagitate this issue.

  2. At paragraphs 88 to 90 the wife describes a circumstance where she was able to meet with Ms CD and obtain her signature on a document called “Certificate of balance”. At paragraph 91 the wife gives lay opinion that the signature on the document that she says came from Ms CD does not resemble the signature on two letters which are attached to this affidavit (A13) which the wife says were attached to an affidavit sworn by the husband on 28 February 2019.

  3. At paragraph 92 she confirms that she wants the orders in 2 and 3 in the Application in a Case. At paragraph 93 she wants to be able to serve this Application in a Case and supporting affidavit on Ms DE “so that she can be heard in relation to this issue”.

  4. Pausing there, the application does not actually seek any order against Ms DE directly.

  5. All of this is very much a side issue. It is not suggested that this inquiry would affect the outcome of the substantive applications and on that basis, I shall not entertain such an application as part of the wife’s application to reopen her case.

The trustees’ Third Report to Creditors

  1. The trustees’ Third Report to Creditors was issued to creditors on 17 December 2019. On 22 May 2020 this report was made an exhibit in the proceedings. The wife annexes it at A15. She alleges there is information in the report that falls within the scope of s 121 and the trustees have breached it and it identifies the wife in a public document and “contains unreasonable and unnecessary details relating to these family law proceedings”.

  2. The wife seeks I make an order that the trustees ask the creditors to destroy copies of the third report and rectify erroneous comments made in the report and refrain from issuing any further documents and/or reports without the leave of the court or any other order that this Honourable Court thinks fit.

  3. At paragraphs 97 and 98 the wife asserts that the third report to creditors breaches order 14 that I made on 7 February 2019 and order 2 I made on 26 February 2019:

    Order 14, 7.2.19 – All parties are restrained from using any documents that are photocopied from the court file or documents produced under subpoena for any purpose other than in connection with the current proceedings or any appeal from the orders made at the conclusion of the hearing.

    Order 2, 26.2.19 - Unless leave is otherwise granted, all parties are restrained in these proceedings from using or showing any document that they have as a result of these proceedings, whether by affidavit or material produced under subpoena or otherwise, and not to use for any other purpose than purposes related to these proceedings or seeking legal advice.

  4. The trustees confirmed they had only provided copies of the Third Creditor’s Report to the creditors and that it had not been published more widely. Putting aside the question of whether or not the issuing of a creditor’s report to creditors is a dissemination to a section of the public, any proceedings for an offence against s 121 cannot be commenced except by, or with the written consent of, the Director of Public Prosecutions (s 121(8) of the Act).

  5. So, the wife’s complaints in relation to the report are:

    ·Paragraph 101, that the report denigrates her by referring to her actions as unreasonable

    ·Paragraph 102, at page 6, erroneously claiming that she has applied for an increase in the spousal maintenance and child maintenance which [the husband] is required to pay

    ·That at page 10 the report erroneously describes the main thrust of her first application to reopen was that the husband has concealed assets and income in an effort to thwart her ability to seek an increase in spousal and child maintenance

    ·Paragraph 104, that the report was factually incorrect on page 9, “for example” that I issued a subpoena to [the husband’s] mother – which she said she did not (but by this application she now seeks)

  1. The Third Creditor’s Report is in evidence before me and I note the comments the wife makes about it. Otherwise I will dismiss the wife’s application in relation to the report.

Husband’s Application in a Case filed 18 May 2020

  1. The application by the husband filed on 18 May 2020 seeks the following relief:

    a)Orders addressing arrears of spousal maintenance and child support during periods where the husband asserts he was unable to work;

    b)Variation or suspension of the spousal maintenance order until the husband is back in paid employment, registered and medically fit;

    c)An order seeking some type of accounting in relation to arrears;

    d)Payment from the controlled monies account of:

    ·$8,800 arrears on his current residence at VW Street, Suburb G   $8,800

    ·$10,000 bond on a new property in the eastern suburbs $10,000

    ·$8,000 for the purchase of a new motor vehicle      $8,000

    $26,800

  2. I intend to dismiss that application on the basis that I will today set aside the previous property settlement order, make a new final property settlement order, discharge previous arrears, maintain the existing order for spousal maintenance and make new orders for child support on the basis of the evidence that was before me at the final property hearing. Any new application filed by the husband to alter those orders would need to be dealt with by a new judge having regard to the final orders made this day and any change to circumstances upon which the husband sought to rely.

I certify that the preceding one hundred and twenty-eight (128) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 25 June 2020.

Associate: 

Date:  25.6.2020

SCHEDULE 1

Wife

  1. Wife’s Application filed 7 August 2019

  2. Wife’s Amended Application in a Case filed 11 October 2019

  3. Wife’s affidavit filed 7 August 2019

  4. Wife’s affidavit filed 11 October 2019

  5. Wife’s affidavit filed 11 November 2019

  6. Outline of Case Document (Exhibit 73). This document was provided after the wife had concluded her submissions when the application had been adjourned part heard. This document purports to further rely upon affidavits filed by the wife sworn 21 February 2019 (the wife’s trial affidavit) but also affidavits sworn 20 December 2017 and 12 April 2018 which were not part of the evidence at the hearing.

The husband’s Trustee in Bankruptcy

  1. Trustee’s affidavit filed 1 November 2019

  2. Trustee’s submissions dated 14 October 2019

Husband

  1. Husband’s affidavit filed 7 August 2019

  2. Husband’s affidavit filed 4 November 2019 plus annexure sent 6 November 2019

Ms O

  1. Ms O’s affidavit filed 9 October 2019

  2. Ms O’s affidavit filed 4 November 2019


Key Legal Topics

Areas of Law

  • Family Law

  • Civil Procedure

Legal Concepts

  • Appeal

  • Procedural Fairness

  • Remedies

  • Res Judicata

  • Standing

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Reid v Brett [2005] VSC 18