Riemann & Riemann (No 2)

[2016] FamCA 1067

FAMILY COURT OF AUSTRALIA

RIEMANN & RIEMANN (NO. 2) [2016] FamCA 1067

FAMILY LAW – PRACTICE AND PROCEDURE – Where the final hearing has been adjourned on the application of the husband – Where the parties are unable to agree as to directions to progress the parenting and property proceedings – Where there is an upcoming interim hearing in relation to outstanding parenting issues – Orders made.

Family Law Act 1975 (Cth) ss 60D(1), 97(3)
Family Law Rules 2004 (Cth) rr 1.04, 1.06, 1.07, 1.08, 13.20, 19.10

APPLICANT: Mr Riemann

RESPONDENT: Ms Riemann

INDEPENDENT CHILDREN’S LAWYER: Mr O'Dowd

FILE NUMBER: SYC 5764 of 2014

DATE DELIVERED: 12 December 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 8 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O'Ryan QC

SOLICITOR FOR THE APPLICANT: Broun Abrahams Burreket

COUNSEL FOR THE RESPONDENT: Mr Sweeney

SOLICITOR FOR THE RESPONDENT: Lander and Rogers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Sydney Central Family Law

Orders pending further order

Property

1. Within seven (7) days of the date of these Orders, the wife is to do all acts and things necessary to sign and return to the husband's legal representatives the draft 2015 financial accounts and tax return for the Riemann Superannuation Fund which were provided to the wife under letter dated 18 July 2016 from Broun Abrahams Burreket to Lander & Rogers, subject to any amendment advised by her appointed accountant.

2. In the event that the husband is not prepared to accept the amendments proposed by the wife, then the husband is to advise the wife’s legal representatives in writing of same within fourteen (14) days.

3. The wife do all acts and things necessary to sign and return to the husband’s legal representatives within fourteen (14) days of receipt of same by her legal representatives all documents requiring her signature that relate to:

   (a)        the parties’ term deposit with the National Australia Bank which represents the net proceeds of sale of the former matrimonial home at Suburb M;

   (b)        the District Court Proceedings … that are to be signed by the wife in her capacity as second defendant in those proceedings, noting the wife is represented by Lander & Rogers in respect to those proceedings and the husband is represented by Gil Baron & Associates and that the husband and wife have a common interest in their capacity as first and second defendant in those proceedings;

   (c)       the 2016 Riemann Superannuation Fund financial accounts and tax returns.

4. In the event that the wife objects to signing any documents provided to her pursuant to Order (3) she is to notify the husband within seven (7) days of the receipt of such documents that she objects to signing those documents and the basis of such objection.

Disclosure

1. In the event that either party seeks further disclosure from the other, then within fourteen (14) days of the date of these Orders that party shall serve on the other party’s legal representative a request, in writing, in which the party nominates the specified document(s) or class of documents that he or she seeks to be disclosed.

2. The party receiving the request for further disclosure pursuant to Order (5) above must, within twenty-one (21) days after receiving notice, serve on the requesting party a list of documents identifying:

   (a)       The document(s) in that party’s possession that are within the class of documents sought by the other party;

   (b)       The document(s) no longer in the disclosing party’s possession or control with a brief statement about the circumstances in which the document(s) left the party’s possession or control; and

   (c)       The document(s) for which privilege from production is claimed.

3. Within fourteen (14) days of receiving the list of documents referred to in Order (6) above, the requesting party must, in writing, ask the disclosing party to:

   (a)       Produce the document(s) for inspection; or

   (b)       Provide a copy of the document(s).

4. The disclosing party must within fourteen (14) days after receiving a notice under Order (7), give the requesting party, at the requesting party’s expense, the copies requested, other than copies of document(s):

   (a)       In relation to which privilege from production is claimed; or

   (b)       That are no longer in the disclosing party’s possession or control.

5. In the event of a party taking issue with the adequacy and/or accuracy of the list of documents provided pursuant to Order (6), that party must within fourteen (14) days of receiving the list of documents, make an application pursuant to rule 13.22 of the Family Law Rules 2004 (Cth) or such other application as they may deem appropriate.

Valuation

1. The husband is to provide to the legal representatives for the wife within fourteen (14) days of receipt of same by him or his legal representatives, copies of:

   (a)       The management accounts for each of the entities valued by the single expert, Mr P, (“the valued entities”) for each of the quarters in respect to the period from 1 July 2015;

   (b)        The draft balance sheet for each of the valued entities for the financial year ended 30 June 2016;

   (c)       Financial accounts for the valued entities for the financial year ended 30 June 2016.

2. Within twenty-one (21) days of the date of receipt of the draft balance sheets referred to in Order (10)(b), the wife is to notify the husband in writing of any real estate values or other investments referred to by Mr P in his single expert report dated 11 October 2016 that the wife takes issue with including the basis upon which she takes issue with Mr P’s valuations

Listing

1. The matter is listed on 15 February 2017 at 9.30 am for mention and at which time the Court will consider the possible appointment of a single expert or experts to value the property and/or other investments in respect to which the parties remain in dispute.

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 Riemann & Riemann (No. 2) 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 5764 of 2014

Mr Riemann

Applicant

And

Ms Riemann

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 25 October 2016, on the application of the husband, I vacated final hearing dates relating to the parties’ competing applications for parenting orders, which had been set down for five days commencing on 31 October 2016. Those dates were vacated as a result of an opinion expressed by the Single Expert, Dr E, in his updated report dated 24 September 2016, wherein he recommended that the schedule in place for the husband to spend time with the children be suspended “probably until towards the end of first term 2017”.  Also of relevance were Dr E’s concerns that “unresolved financial issues” are interfering with a “settled outcome of parenting issues”.

2. As a result of the vacation of the hearing dates, I made a further order listing the matter on 8 November 2016 “in order for the Court to consider such procedural or other orders that the parties submit should be made in respect to the progress of parenting and financial matters”.

Orders sought

The husband

1. The orders sought by the husband were as follows:

   Parenting proceedings

   1. It be noted that the Husband and the Wife agree that:

   (a) the children should have a meaningful relationship with the Husband; and

   (b) the children should have contact, and spend time, with the Husband.

   2. Within seven days of the date of these orders the Wife serve on the Husband and the Independent Children’s Lawyer a written response to the following questions:

   (a) Does the Wife accept the recommendation of Dr [E] that she should live in an area other than the Eastern suburbs of Sydney?

   (b) Does the Wife intend to act upon the recommendation of Dr [E] that she should live in an area other than the Eastern suburbs of Sydney?

   (c) If the Wife intends to act upon the recommendation of Dr [E] that she should live in an area other than the Eastern suburbs of Sydney:

   (i) in what area does she intend to live? 

   (ii) when does she intend to move?

   (d) Does the Wife accept the recommendation of Dr [E] that the children should attend a school other than [Q School]?

   (e) Does the Wife intend to act upon the recommendation of [Dr E] that the children should attend a school other than [Q School]?

   (f) If the Wife intends to act upon the recommendation of [Dr E] that the children should attend a school other than [Q School]?

   (iii) what school does she propose for each child? 

   (iv) when does she intend each child should commence to attend a different school?

   3. Within seven days of the date of these orders the parties do all acts and things necessary to authorise in writing the release of the passports for [B], [C] and [D] (the children’s passports) presently held in the offices of Uther Webster Evans to Lander & Rogers, Sydney office and thereafter the children’s passport be held by Landers & Rogers pending further order of the Court, or the written agreement of the parties, to release the children’s passports or any one of the passports.

   4. The children continue to attend [F Psychology] for therapeutic sessions subject to the following:

   (a) the therapeutic process is to address the children’s relationship with the Husband and such other issues as may be determined as necessary by the treating therapist/s in writing from time to time; and

   (b) the ongoing treatment is to specifically promote:

   (i) the children having a meaningful relationship with the Husband; and

   (ii) the children having contact with the Husband and spending time, with the Husband.

   5. It be noted that the Wife acknowledges and agrees that the children having a meaningful relationship with the Husband and having contact with the Husband, and spending time with the Husband, is in the best interests of each of the children and is to be the focus of the ongoing therapy sessions with [F Psychology].

   6. It be noted that for the purpose of Order 5 herein the children attend therapy sessions with [F Psychology] as follows:

   (a) The child [B] to attend on Dr [H] as recommended by Dr [H];

   (b) The child [C] to attend on Dr [R] as recommended by Dr [R];

   (c) The child [D] to attend on a therapist recommended by [Dr G] in the event that she considers it necessary from time to time and that such therapist is a therapist other than Dr [H] or Dr [R].

   and in the event that any of the children’s current therapists referred to herein leave the [F Psychology] practice then the child/ren continue to consult their current therapist at such other practice as they consult from and in the event the current therapist/s or any one of them are no longer consulting in the Sydney metropolitan area then the child/ren are to consult another therapist at [F Psychology] save that the child/ren should each have an individual therapist so as to maintain therapeutic independence. 

   7. The Husband consult with Dr [G] at [F Psychology] on a monthly basis or as advised by Dr [G] for the purpose of addressing the issues raised in Dr [E’s] report.

   8. It be noted that, as recommended by Dr [E], the times at which the Husband is to attend at [F Psychology] are not to be at times when the Wife and the children or any one of them are also attending at [F Psychology].

   9. The Husband do all acts and things to authorise Dr [G] to communicate with [Ms J] if Dr [G] considers such communication would be of assistance to her.

   10. Subject to Dr [E’s] recommendation in writing that it is not counterproductive to the period of recommended suspension the Husband be permitted to write cards or letters to the children on a fortnightly or monthly basis and that such letters be provided by the Husband to Dr [G] to enable the individual therapists to determine if and when it is appropriate to provide such communication to the children.

   11. To facilitate the preceding order the Independent Children’s Lawyer forthwith, and at least within three days from the date of these orders, request a written opinion from Dr [E].

   12. The Independent Children’s Lawyer forthwith secure appointment dates for the children and the Husband and the Wife to attend Dr [E] as soon as practicable after the completion of the New South Wales gazetted school Term 1, 2017.

   13. The legal representatives and the parties have leave to inspect the notes and documents produced by [F Psychology] pursuant to the subpoena issued at the request of the Independent Children’s Lawyer on 9 September 2016.

   Financial proceedings

   14. Within seven days of the date of these orders the Wife do all acts and things necessary to sign and return to the Husband’s legal representatives the draft 2015 financial accounts and tax return for the [Riemann] Superannuation Fund provided to the Wife under cover of a letter dated 18 July 2016 from Broun Abrahams Burreket to Lander & Rogers. 

   15. The Wife do all acts and things necessary to sign and return to the Husband’s legal representatives within 14 days of receipt of same by her legal representatives all documents requiring her signature that relate to:

   (a) the parties’ term deposit with the National Australia Bank which represents the net proceeds of sale of the former matrimonial home at [Suburb M];

   (b) the District Court Proceedings … that necessarily are to be signed by the Wife in her capacity as Second Defendant, noting the Wife is represented by Lander & Rogers in respect to those proceedings and the Husband is represented by Gil Baron & Associates and that the Husband and Wife have a common interest in their capacity as First and Second Defendant in those proceedings;

   (c) the 2016 [Riemann] Superannuation Fund financial accounts and tax returns.

   16. In the event that the Wife seeks further disclosure of documents by the Husband then within 14 days of the date of these orders the Wife serve on the Husband’s legal representatives a request in writing in which she nominates with precision the specified documents or class of documents in respect of which she seeks disclosure.

   17. The Husband within 21 days of receiving the written request referred to in the preceding paragraph serve on the Wife’s legal representatives a written response to the request.

   18. Within seven days of receipt by the Wife’s legal representatives of the Husband’s written response referred to in the preceding paragraph the Wife file and serve on the Husband’s legal representatives an application, together with an affidavit in support, as to any extant issue of disclosure arising from the Husband’s written response referred to in the preceding paragraph and should the Wife fail to make such an application then without further order of the Court the proceedings shall move forward on the assumption that disclosure has been completed.

   19. In the event the Wife files an application pursuant to order 18 it shall be listed in the first instance, on short notice, by arrangement with the Associate to Justice McClelland in order that directions may be made to facilitate the matters in dispute being determined as expeditiously as practicable.

   20. Within seven days of the date of these orders the Wife notify the Husband in writing of any real estate values referred to by [Mr P] in his single expert report dated 11 October 2016 that the Wife takes issue with and provide a comprehensive list of the real estate the Wife contends should be valued.

   21. Within 21 days of the date of these orders the Wife file and serve on the Husband’s legal representatives an application seeking the appointment of a single expert real property valuer and an affidavit in support of the application setting out the basis on which the Wife refutes the independent valuation/s provided by the Husband and/or [T] Pty Ltd including an estimated cost from each proposed valuer to undertake a valuation of any real property the Wife asserts is to be the subject of a further valuation. 

   22. Each of the Husband and the Wife file and serve by 4 pm on 20 January 2017 an affidavit setting out his/her evidence in chief in relation to the financial proceedings.

   23. Each of the Husband and the Wife file and serve by 4 pm on 20 January 2017 an affidavit setting out the evidence in chief of each lay witness that each party seeks to rely on at the hearing of the applications for final orders in the financial proceedings.

   24. The Wife file and serve by 4 pm on an application, and an affidavit in support of the application, seeking permission to adduce evidence from another expert witness on the same issues dealt with in the report of Mr P dated 11 October 2016.

   25. In the event the parties are able within two months to finalise any potential valuation issues and disclosure issues then it be noted the parties may attend a private mediation and in the event the parties are able to agree to attend a private mediation the need for a conciliation conference pursuant to section 79(9) of the Family Law Act 1975 (Cth) be dispensed with.

   26. The matter be relisted for a compliance check on the first available date after 1 February 2017 before Justice McClelland.

The wife

1. The orders sought by the wife in respect to the parenting proceedings were as follows:

   1. That paragraph 4 of the orders made on 25 October 2016 be discharged.

   2. That the Husband forthwith do all things and sign all such documents as may be required to cause the children of the marriage, [B] born … 2002, [C] born … 2005 and [D] born … 2007 (the children) to be removed from enrolment at [Q School] and to instead be enrolled at [U] School to commence in Term 1 in 2017.

   3. That paragraph 14 of the orders made by consent on 30 June 2015 be discharged.

   4. That the Husband forthwith do all things and sign all such documents as may be required to instruct Uther Webster Evans to release the passports of [B], [C] and [D] into the custody of the Wife, pending further order.

2. The orders sought by the wife in respect to the property proceedings were as follows:

   1. Within seven days of the date of these orders the Wife do all acts and things necessary to sign and return to the Husband's legal representatives the draft 2015 financial accounts and tax return for the [Riemann] Superannuation Fund provided to the Wife under cover of a letter dated 18 July 2016 from Broun Abrahams Burreket to Lander & Rogers subject to any amendment advised by her appointed accountant.

   2. That in the event that the Husband is not prepared to accept the amendments proposed then the husband advise the wife’s solicitors in writing within 14 days.

   3. Within 30 days the Husband provide to the legal representatives of Wife any and all documents he seeks that the Wife sign that relate to:

   (a) the parties' term deposit with the National Australia Bank which represents the net proceeds of sale of the former matrimonial home at [Suburb M];

   (b) the District Court Proceedings … that necessarily are to be signed by the Wife in her capacity as Second Defendant, noting the Wife is represented by Lander & Rogers in respect to those proceedings and the Husband is represented by Gil Baron & Associates and that the Husband and Wife have a common interest in their capacity as First and Second Defendant in those proceedings;

   (c) the 2016 [Riemann] Superannuation Fund financial accounts and tax returns.

   4. The Husband otherwise provide to the Wife’s legal representatives within 14 days of receipt any other documents he seeks that the Wife sign in respect to paragraph 3 (b) hereof

   5. In the event that the Wife objects to signing any documents provided to her under paragraphs 3 and 4 hereof she shall notify the Husband within 14 days of the receipt of such documents that she objects to signing those documents and the basis of such objection.

   6. That within 30 days the Wife serve on the legal representatives of husband a written list of any and all documents or class of documents that she seeks that the Husband make discovery of in these proceedings.

   7. The Husband within 21 days of receiving the written request referred to in the preceding paragraph make discovery of the document sought under paragraph 6 that are not the subject to a claim of privilege.

   8. Within 14 days the Husband cause to be forward to the legal representatives of the Wife copies of;

   (a) the management accounts for each of the entities valued by the single expert, [Mr P], (the valued entities) for each of the quarters of the financial year ended 30 June 2016.

   (b) Draft balance sheets for each of the valued entities for the financial year ended 30 June 2016

   9. No later than the 14th day following each quarter of the current financial year or within 7 days of the preparation of same (whichever date first occurs) the Husband cause to be forwarded to the legal representatives of the Wife management accounts for each of the valued entities.

   10. No later than 1 May 2017 the Husband forward to the legal representatives of the wife copies of the finalised financial accounts for the valued entities.

   11. Within 30 days of the date of receipt of the draft balance sheets referred to in paragraph 8 (b) hereof the Wife notify the Husband in writing of any real estate values or other investment referred to by [Mr P] in his single expert report dated 11 October 2016 that the Wife takes issue with and which she seeks to have valued by a single expert valuer.

   12. In the event that a dispute arises in respect to;

   (i) the amendment required under paragraph 2 hereof;

   (ii) the signing of documents under paragraph 5 hereof

   (i)any documents for which privilege is claimed under paragraph 7 hereof; or

   (ii)the appointment of a single expert valuer under paragraph 11 hereof;

   each party have liberty to apply to the Associate to Justice McClelland in order to have the dispute determined as expeditiously as practicable.

   13. The matter be otherwise relisted for a compliance check on the first available date after 1 April 2017 before Justice McClelland.

   14. That 7 days prior to the compliance check, the Husband notify the Wife and [Mr P] of any updated information which could be reasonably expected to impact upon [Mr P's] valuation report.

Consideration

1. Section 97(3) of the Family Law Act 1975 (Cth) (“the Act”) relevantly provides:

   In proceedings under the Act, the court shall proceed without undue formality and shall endeavour to ensure that the proceedings are not protracted.

2. Rule 1.04 of the Family Law Rules 2004 (Cth) (“the Rules”) provides:

   The main purpose of the Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.

3. Further, r 1.06 provides that the Court “must apply”[1] the Rules “to promote the main purpose, and actively manage each case”. Rule 1.06 then sets out ten case management strategies that can be applied in achieving that main purpose. Those strategies are:

   [1] Emphasis added.

   (a)  encouraging and helping parties to consider and use a dispute resolution method rather than having the case resolved by trial;

   (b)  having regard to unresolved risks or other concerns about the welfare of a child involved;

   (c)  identifying the issues in dispute early in the case and separating and disposing of any issues that do not need full investigation and trial;

   (d)  at an early stage, identifying and matching types of cases to the most appropriate case management procedure;

   (e)  setting realistic timetables, and monitoring and controlling the progress of each case;

   (f) ensuring that parties and their lawyers comply with these Rules, any practice directions and procedural orders;

   (g)  considering whether the likely benefits of taking a step justify the cost of that step;

   (h)  dealing with as many aspects of the case as possible on the same occasion;

   (i)  minimising the need for parties and their lawyers to attend court by, if appropriate, relying on documents; and

   (j)  having regard to any barriers to a party's understanding of anything relevant to the case.

4. Rule 1.07 provides:

   To achieve the main purpose, the court applies these Rules in a way that:

   (a)  deals with each case fairly, justly and in a timely manner;

   (b)  encourages parties to negotiate a settlement, if appropriate;

   (c)  is proportionate to the issues in a case and their complexity, and the likely costs of the case;

   (d)  promotes the saving of costs;

   (e)  gives an appropriate share of the court's resources to a case, taking into account the needs of other cases; and

   (f)  promotes family relationships after resolution of the dispute, where possible.

5. Also of relevance is r 1.08(1) which provides that each party has a responsibility to promote and achieve the main purpose of the Rules including:

   (a)  ensuring that any orders sought are reasonable in the circumstances of the case and that the court has the power to make those orders;

   (b)  complying with the duty of disclosure (see rule 13.01);

   (c)  ensuring readiness for court events;

   (d)  providing realistic estimates of the length of hearings or trials;

   (e)  complying with time limits;

   (f)  giving notice, as soon as practicable, of an intention to apply for an adjournment or cancellation of a court event;

   (g)  assisting the just, timely and cost-effective disposal of cases;

   (h)  identifying the issues genuinely in dispute in a case;

   (i)  being satisfied that there is a reasonable basis for alleging, denying or not admitting a fact;

   (j)  limiting evidence, including cross-examination, to that which is relevant and necessary;

   (k)  being aware of, and abiding by, the requirements of any practice direction or guideline published by the court; and

   (l) complying with these Rules and any orders.

6. Further, r 1.08(2) provides that a lawyer for a party has “a responsibility to comply, as far as possible, with subrule (1)”.

7. Chapter 13 of the Rules sets out detailed obligations on the parties to provide full and ongoing disclosure of all information relevant to the case to the other parties and the Court.

8. Clause 6(4) of Schedule 1 to the Rules provides:

   (4)  If a client wishes not to disclose a fact or document that is relevant to the case, a lawyer has an obligation to take the appropriate action, that is, to cease to act for the client. 

9. The responsibility on lawyers to comply with the Rules, including those to which I have referred, is reinforced by r 19.10 which relevantly provides:

   Costs orders against lawyers

   (1)  A person may apply for an order under subrule (2) against a lawyer for costs thrown away during a case, for a reason including:

   (a) the lawyer's failure to comply with these Rules or an order;

   (b)  the lawyer's failure to comply with a pre-action procedure;

   (c)  the lawyer's improper or unreasonable conduct; and

   (d)  undue delay or default by the lawyer.

   (2)  The court may make an order, including an order that the lawyer:

   (a)  not charge the client for work specified in the order;

   (b)  repay money that the client has already paid towards those costs;

   (c)  repay to the client any costs that the client has been ordered to pay to another party;

   (d)  pay the costs of a party; or

   (e)  repay another person's costs found to be incurred or wasted.

10. Legal practitioners also have particular obligations in respect to the children whose best interests are being considered by the Court. This is reflected in s 60D(1) of the Act which provides:

    Adviser's obligations in relation to best interests of the child

    (1)  If an adviser gives advice or assistance to a person about matters concerning a child and this Part, the adviser must:

    (a)  inform the person that the person should regard the best interests of the child as the paramount consideration; and

    (b)  encourage the person to act on the basis that the child's best interests are best met:

    (i)  by the child having a meaningful relationship with both of the child's parents; and

    (ii)  by the child being protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

    (iii)  in applying the considerations set out in subparagraphs (i) and (ii)--by giving greater weight to the consideration set out in subparagraph (ii).

11. In a speech delivered on 9 September 2014 entitled “Judicial Case Management and the Problem of Costs”,[2] Chief Justice Allsop of the Federal Court of Australia discussed the purpose and challenges of judicial case management. His Honour also discussed the role of lawyers in that context. His Honour suggested that a number of fundamental propositions “need to be grasped and applied on a daily basis” by lawyers and the judiciary. Those were said by his Honour to be:

    a)         The profession is primarily responsible for the skilful conduct of cases.

    b)        The lawyer is a fiduciary to be held in the highest punctilio of an honour. If there is a choice to undertake a cheaper more efficient way to operate, the fiduciary duty is engaged.

    c)        Courts should organise their structures to facilitate efficient and skilful lawyers, and to impede or prevent process-based costs that are unnecessary.

    d)        Disputes in society are inevitable. It is a social and constitutional imperative to make reasonably available to process of court adjudication.

    e)        The basal considerations are trust, skill and service in and of, the profession, and the judiciary.

    [2] [2014] FedJSchol 16.

12. In considering the issues in this matter in the context of the legislative provisions to which I have referred, I intend to apply those propositions in the consideration of the orders proposed by each of the parties. Most specifically, the challenge is to provide for orders that ensure that the parties are in a position to proceed with the final hearing of the parenting proceedings which have been listed for four days commencing on 13 June 2017 and the property proceedings which are to commence immediately thereafter.

13. At the same time, however, the Court should avoid making orders that result in the parties unnecessarily incurring costs, particularly in circumstances where both parties have expressed a desire for the proceedings to be resolved through mediation.

Parenting proceedings

1. As mentioned, the final hearing which was to commence on 31 October 2016 was vacated on the application of the husband. No findings were made regarding the parties’ competing allegations nor was the adjournment of the final hearing conditional on the wife agreeing to take a particular course of action. I will deal with the orders proposed by the husband in that context.

2. The husband’s proposed Order 1 seeks that notations be made by the Court which record that the wife agrees that the children should have a meaningful relationship with the husband and that the children should have contact and spend time with him.  The wife is entitled to make submissions in respect to her position on these matters at final hearing in the context of updated expert evidence. It is not appropriate to confine her by a notation being made at this stage of the proceedings.

3. The husband’s proposed Order 2 directs the wife to provide a written response to him and to the Independent Children’s Lawyer (“the ICL”) as to certain questions regarding the wife’s intentions in respect to the school that she proposes the children attend and where she intends to live. These matters were referred to in the updated report of Dr E in the context of the children’s attitude to the husband potentially being influenced by the environment in which they live and the school that they attend. Specifically, Dr E noted that the children belong to a close knit community and this may result in the children being exposed to gossip and inappropriate comments, including through electronic means, and potentially bullying.

4. I agree with the ICL that the questions set out in the husband’s proposed Order 2 have substantially been addressed in the affidavit of the wife filed on 10 November 2016. The husband is, of course, entitled to seek to clarify the contents of the wife’s affidavit. Whether that request is or is not responded to in good faith by the wife may be a relevant consideration for the Court at final hearing. The circumstances are not such, however, that a response to those questions should be mandated by an order of the Court.

5. It is noted that, on 8 November 2016, I made orders in terms of the husband’s proposed Order 3.

6. Proposed Orders 4, 5, 6, 7, 8 and 9 relate to the children and the parties participating in therapy sessions through F Psychology. In my Reasons for Judgment delivered 8 April 2016, I accepted the submissions made on behalf of the husband and the ICL that it would be inappropriate for the Court to make orders in respect to the children attending therapy. The husband has not presented sufficient evidence to satisfy me that his and the Independent Children’s Lawyer’s submissions at that time were misguided or misplaced. Further, I note that the matter has been listed for interim hearing on 21 December 2016 for the purpose of considering interim parenting issues, including concerns expressed by F Psychology in respect to the parties, as opposed to their legal representatives, having access to documents produced by them under subpoena. In particular, F Psychology has objected to the parties having access to the documents for reasons that include:

   The documents requested are sensitive personal health records, the disclosure of which could pose a serious threat to the psychological well-being of the individual, which may include harm to physical or mental health.

7. In those circumstances, the question as to whether or not the Court makes an order enabling the parties to have access to the relevant documents produced by F Psychology may impact upon whether F Psychology is willing and able to provide ongoing therapeutic services to the children and/or the parties.

8. Further, those proposed orders are of concern insofar as:

   ·Proposed Order 4 seeks to mandate particular therapeutic services.

   ·Proposed Orders 6 and 8 unreasonably seeks, by way of a notation, to interfere with the professional services provided by F Psychology in circumstances where there is no material before the Court to indicate that the therapeutic services they are providing to the children, or the manner in which they are providing those services, are inappropriate.

   ·Proposed Order 7 seeks an order requiring the husband to consult with Dr G “for the purpose of addressing the issues raised in Dr [E’s] report”. The husband is of course entitled to seek such assistance. It is unnecessary to mandate that he takes that course of action. Moreover, it is inappropriate to require Dr G to provide specific therapy in circumstances where she has not been provided with the opportunity to consider whether such therapy is necessary or appropriate or potentially conflicts with existing services that F Psychology are providing to the children.

   ·Proposed Order 5 seeks a notation in similar terms to that in proposed Order 1 and for similar reasons is, at this stage in the proceedings, inappropriate.

   ·It is difficult to understand the purpose of proposed Order 9 in circumstances where, if the husband decides to engage the services of Dr G, he is entitled to authorise Dr G to communicate with such person or persons as he and/or Dr G consider to be appropriate. It is unnecessary to make an order to that effect.

9. Orders 10 and 11of the husband’s proposed orders relate to the husband communicating, in writing, with the children until such time as the husband’s suspension of time with the children concludes.

10. I note that, by consent, on 25 October 2016 the Court suspended orders made on 30 July 2015, 14 September 2015, Orders 3 and 5 made on 22 October 2015 and orders made on 8 April 2016. Those orders related to the husband spending time with the children. Accordingly, no orders are in place that would prevent the husband from communicating with the children in writing. I note that the orders proposed by the husband seek a mechanism whereby the written opinion of Dr E would be obtained in respect to whether it would be appropriate for the husband to communicate with the children. In circumstances where the final hearing was vacated on the basis that orders providing for the children to spend time with the husband have been suspended, I am of the view that it would be inappropriate to make interim parenting orders in the context where these proceedings had been listed:

    …in order for the Court to consider such procedural or other orders that the parties submit should be made in respect to the progress of parenting and financial matters.

    (Emphasis added)

11. In the event that the husband wishes to formalise his application for interim parenting orders by way of filing an Application in a Case, it would not be unreasonable for the wife’s response to be dependent upon the nature and circumstances of the communication that the husband proposes to have with the children. In that context, it may be that the wife would see a card to be sent on one of the children’s birthdays or another significant commemorative event in a different context to a detailed letter that may potentially traverse relationship issues between the parties and/or with the children.

12. I note that Order 1 of the orders proposed by the wife seeks the discharge of an order made on 25 October 2016 regarding the school that the children attend. If it is opposed, that application will be dealt with on 21 December 2016 as will proposed Order 2.

13. The wife’s proposed Orders 3 and 4 relate to an application for the children’s passports to be released to the wife. That application will also be considered on 21 December 2016.

Property proceedings

1. Order 14, as proposed by the husband, is in similar terms to Order 1 proposed by the wife, save insofar as the wife proposes making her signature and return of the draft financial accounts and tax returns for the Riemann Superannuation Fund “subject to any amendment advised by her appointed accountant”.

2. It is entirely reasonable for the husband to seek the return of the draft 2015 financial accounts and tax returns in circumstances where they have been in the wife’s possession for approximately four months. Nevertheless, the wife should not be compelled to sign any draft accounts and taxation returns in circumstances where she genuinely believes that they may be inaccurate or incomplete. On that basis, I propose to make the Orders 1 and 2 as sought by the wife instead of Order 14 proposed by the husband.

3. Order 15 proposed by the husband seeks an outcome that is similar to that proposed in Orders 3, 4 and 5 of the orders proposed by the wife. The difference between the parties appears to relate to the fact that certain of the documents referred to in the proposed orders have not yet been prepared. It was on that basis that husband proposed that the documents be returned to the husband’s legal representatives within fourteen days of receipt of those documents by the wife’s legal representatives.

4. It is reasonable, in my view, for the husband to seek the return of documents within that period of time and I will, accordingly, make an order in accordance with the husband’s proposed Order 15. However, I will make it subject to the wife being provided with an opportunity to object to the documents sought to be signed by her.

5. I therefore propose inserting an additional order in terms of Order 5 of the wife’s proposed orders. save insofar as the period of fourteen days will be reduced to seven days.

6. The husband’s proposed orders 16, 17, 18 and 19 relate to further disclosure of documents.

7. Part 13 of the Rules sets out a detailed regime in respect to the duty of disclosure of documents. Both parties acknowledge that duty to be ongoing throughout the entirety of the proceedings.

8. Rule 13.20 is entitled “Disclosure by service of a list of documents”. Sub-rule (1) and (2) relevantly provide:

   (1)  After a case has been allocated to a first day before the Judge, a party (the requesting party) may, by written notice, ask another party (the disclosing party) to give the requesting party a list of documents to which the duty of disclosure applies.

   (2)  The disclosing party must, within 21 days after receiving the notice, serve on the requesting party a list of documents identifying:

   (a)  the documents to which the duty of disclosure applies;

   (b)  the documents no longer in the disclosing party's possession or control to which the duty would otherwise apply (with a brief statement about the circumstances in which the documents left the party's possession or control); and

   (c)  the documents for which privilege from production is claimed.

9. It appeared to be an agreed position that the listing of the property proceedings before me on 8 November 2016 was to effectively be regarded as “a first day before the Judge”. On that basis, r 13.20 would apply. I note that there has, however, already been extensive disclosure between the parties and, in those circumstances, rather than putting the parties to the expense of repeating that which has already occurred, it is reasonable to require them to narrow the documents that they each seek from each other by referring to a document or class of documents.

10. Accordingly, I propose that, in place of the husband’s proposed orders 16, 17, 18 and 19, I will make orders that more closely aligned with the requirements of the Rules to which I have referred.

11. Orders 20 and 21 of the orders proposed by the husband and Orders 8, 9, 10 and 11 of the orders proposed by the wife deal with the valuation of the parties’ property as set out in an expert valuation report prepared by Mr P & Co Pty Ltd dated 11 October 2016. The orders sought by the husband seek to progress the property proceedings by requiring the wife to identify where she takes issue with the valuation report and specifically, by providing the husband with details as to whether the wife disputes the valuation and if so, on what basis. The orders also require the wife to identify the real estate that the wife believes should be independently valued.

12. The wife, on the other hand, contends that undertaking that exercise is premature until such time as an updated valuation report can be prepared that is based on the entities’ financial records for the financial year ended 30 June 2016.

1. I recognise that the husband is, in good faith, seeking to progress the property proceedings and avoid a situation where the valuation report is challenged to such an extent that the report is of little or no utility to the parties or to the Court.

2. On the other hand, senior counsel for the wife raised a legitimate issue as to whether it is appropriate for the parties to incur the further expense of undertaking steps to value the real estate or entities until such time as the updated financial records are available.

3. On that basis, instead of Orders 20 and 21 as proposed by the husband, I will make orders that require the husband to provide updated financial disclosure relevant to the valuations to the wife and then to provide the wife with an opportunity to advise the husband if she disputes the valuations and on what basis. In the event of disagreement between the parties, consideration may be given, at the mention to be listed for 15 February 2017, to the possible appointment of another valuer to value the property and/or other investments in respect to which the parties remain in dispute.

4. I also note that, in the husband’s proposed Order 18, the husband has sought orders effectively ending disclosure in the event of the wife fails to utilise the mechanisms provided in these Rules and/or in these Orders to seek the further disclosure of documents that the wife believes are relevant to these property proceedings. Again, that is a reasonable position for the husband to take. However, a more appropriate time to consider whether such an order is to be made will be at the mention on 15 February 2017.

5. I therefore make Orders in accordance with those set out at the commencement of these Reasons for Judgment.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 12 December 2016.

Associate: 

Date:  12 December 2016