Rilak and Tsocas (No 4)

[2015] FamCA 548

FAMILY COURT OF AUSTRALIA

RILAK & TSOCAS (NO 4) [2015] FamCA 548

FAMILY LAW – PRACTICE AND PROCEDURE – Stay – Where the mother sought a stay of an interim order which changed the living arrangements for the parties’ five year old daughter, the child insofar as she spends time with the father – Where the Court accepted that the mother has a bona fide concern – Where it is not appropriate to grant a stay in the circumstances.

FAMILY LAW – CHILDREN – Interim parenting – Best Interests –– Where the child lives primarily with her mother – Where the mother seeks an order that the single expert be removed from the proceedings as an expert witness – Where it was ordered that the Independent Children’s Lawyer (“ICL”) provide copies of qualifications of the single expert in the substantive proceedings – Where the mother made an oral application in relation to the child being referred to an organisation that deals with the victims of child abuse – Where it was ordered that the mother be restrained from referring the child to a specified organisation, without giving the solicitor for the father and the ICL at least 14 days prior written notice of her intention to do so.

FAMILY LAW – PROPERTY – Interim property settlement – Where the mother sought an order that the father pay her $50,000 by way of interim property settlement – Consideration of Strahan & Strahan (2009) FLC 93-414 – Where there is no evidence as to a source of funds from which the payment can be made – Where the mother’s application for interim property settlement is dismissed.

Family Law Act 1975 (Cth) ss 75(2), 79, 117

Aldridge & Keaton [2009] FamCAFC 106
Clemett & Clemett (1981) FLC 91-013
Harris & Harris (1993) FLC 92-378

Strahan & Strahan (2009) FLC 93-414

APPLICANT: Ms Rilak

RESPONDENT: Mr Tsocas

INDEPENDENT CHILDREN’S LAWYER: Mr Baker

FILE NUMBER: SYC 2062 of 2010

DATE DELIVERED: 6 July 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 6 July 2015

REPRESENTATION

APPLICANT: Ms Rilak in person

COUNSEL FOR THE RESPONDENT: Mr Levy

SOLICITOR FOR THE RESPONDENT: Watts McCray Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Falloon

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Peter Baker Solicitor

Orders

1. The application for a stay of the operation of interim parenting orders made on 5 June 2015 contained in the Application in a Case filed by the mother on 26 June 2015 is dismissed.

2. The application by the mother for a payment of $50,000 to her by the father within seven days, is dismissed.

3. Within seven days from this date the Independent Children’s Lawyer shall provide to the mother and to the solicitor for the father a copy of all correspondence between the Independent Children’s Lawyer and the Joint Investigative Response Team related to issues in these proceedings.

4. The Court requested that the Independent Children’s Lawyer obtain and provide to the solicitor for the father and to the mother, a copy of a document evidencing Dr C’s fellowship of the Royal Australian and New Zealand College of Psychiatrists.

5. All outstanding interim applications made by the mother are adjourned to the resumed final trial commencing at 10.00 am on 4 August 2015.

6. The Court noted that neither the father nor the Independent Children’s Lawyer seek to re-open their cross-examination of the single expert, Dr C.

7. In the event that the mother seeks to re-open her cross-examination of Dr C, she is to deposit $1,980 in the trust account of the Independent Children’s Lawyer, Peter Baker Solicitor, not later than the close of business on 27 July 2015, to secure the fees associated with not more than three hours attendance in Court and three hours for travel and reading any updating material associated with that cross-examination at the final trial resuming on 4 August 2015.

8. In the event that any party becomes aware of any matter that would prevent the final hearing resuming on 4 August 2015 or continuing to completion on 7 August 2015, that party is to forthwith apply to restore the proceedings to the list by arrangement with the associate to Justice Loughnan and on short notice to the other parties.

9. Leave is granted for the father to make an oral application for an order restraining the mother from referring the child the child to U Org until further order.

10. Until further order the mother be restrained from referring the child to U Org without giving the solicitor for the father and the Independent Children’s Lawyer at least 14 days prior written notice of her intention to do so.

11. The costs of and incidental to the proceedings today are reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rilak and Tsocas (No 4) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC 2062 of 2010

Ms Rilak

Applicant

And

Mr Tsocas

Respondent

REASONS FOR JUDGMENT

1. These are proceedings for parenting and financial orders.  The final hearing commenced in January of this year, continued in May and is listed to conclude over four days commencing on 4 August 2015. 

2. The matter was listed today in relation to preparation of the matter for the last phase of the trial but two substantive interlocutory matters were pressed today on the application of the mother.  A number of other interlocutory applications by the mother have yet to be determined.  There is an oral application on behalf of the father in relation to the child who is the subject of the parenting proceedings and there were some ancillary issues.

3. One of the matters raised by the mother was an application that the Independent Children’s Lawyer (“ICL”) provide her with copies of the qualifications of the single expert.  In a moment of weakness I indicated that I would order that.  Thinking about it, it is a complete waste of time because the mother did not indicate to me that she would be satisfied by receiving any particular document in relation to the single expert.  Nevertheless, I indicated that I would request that the ICL do what he could to obtain a copy of Dr C’s fellowship of the Royal College of Australian and New Zealand Psychiatrists and having already indicated that I would do that, I will make that request.  As I say, I am far from convinced that providing that document will satisfy the mother in relation to Dr C’s qualifications as an expert.

4. While I am dealing with that, the mother seeks an order that Dr C be removed from the proceedings as an expert witness.  There are a number of problems with that.  Firstly, there is no suggestion in the context of a hearing to resume on 4 August that any other single expert could be qualified to express an opinion in relation to the matters dealt with by Dr C in her written evidence or in her oral evidence and so, in effect, the mother’s application would result in the trial or the resumed hearing of it, being aborted.  She did not make such an application but that would be the consequence of the order she seeks.

5. I have indicated to the mother that I think the best way, at this stage, the mother not having appealed against the decision to appoint Dr C in the first place, nor having made this application at any earlier stage in the proceedings, would be now to make submissions as to the weight that should be given to Dr C’s evidence. 

6. As to the two substantive matters that I heard today, firstly, the mother sought a stay of the order made on 5 June which changed the living arrangements for the child insofar as she has time with the father.  I indicated earlier today that that application was dismissed and that I would give reasons later in the day.  These are those reasons.

7. From a Full Court decision of Aldridge & Keaton [2009] FamCAFC 106 comes a statement about the principles to be applied in dealing with stay applications. In the reasons given in that decision, the Full Court identified the following:

   The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] [1986] HCA 13; (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited [1986] HCA 84; (1986) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:

   ·the onus to establish a proper basis for the stay is on the applicant for the stay.  However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;

   ·a person who has obtained a judgment is entitled to the benefit of that judgment;

   ·a person who has obtained a judgment is entitled to presume the judgment is correct;

   ·the mere filing of an appeal is insufficient to grant a stay;

   ·the bona fides of the applicant;

   ·a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;

   ·a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;

   ·some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;

   ·the desirability of limiting the frequency of any change in a child’s living arrangements;

   ·the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time;  and

   ·the best interests of the child the subject of the proceedings are a significant consideration.

8. In respect of those matters, firstly, I think, as to any controversial matter, I have no reason to doubt the bona fides of the applicant.  As I said in relation to the mother’s earlier application for a stay of the proceedings, whatever might be said about the mother, I have no reason to doubt that she believes in the correctness of her views about matters and, in my view, she has a significant focus on what she understands to be the best interests of her daughter.

9. As to granting a stay on terms that are fair to the parties, the mother offered today – although it was not something specified in her application – that the stay could be granted on conditions.  She proposed that Order number 6, on 5 June would be replaced, as a condition of a stay, with an order providing for the father’s time with the child to be fully supervised at a contact centre.  I think she nominated a E Town Centre.

10. The problem for the mother is that if I was to stay the operation of the orders I made on 5 June, that would revive earlier orders that provided for unsupervised time between the father and the child on a day-only basis.  Not overnight.  I suppose, thinking about it, there would be no reason why there could not be, in effect, a stay of the new orders that operated to interfere with the existing orders, to some extent.  There is a problem with that in terms of natural justice, in that none of that was flagged to the other parties to the proceedings.  No harm is done, of course, because I dismissed the mother’s application.  So I suppose it is not a matter that I need to consider. 

11. Importantly, to some extent the refusal of a stay would render aspects of the mother’s appeal nugatory, certainly for the period between the date the orders were made and the date the appeal is determined. 

12. Relevant to that is the fact that, albeit that there were other proceedings on foot, the mother did not appeal against this decision until three weeks after it was made.  There were three occasions of time between the father and the child before her appeal was lodged.  So if the argument is that the mother’s appeal is rendered nugatory by the failure to grant a stay, the mother’s conduct in not challenging the orders initially and in not seeking a stay immediately, or in not pressing an appeal in relation to those orders when the mother was before the Full Court on 22 June, has allowed arrangements that are inconsistent with the order she seeks on appeal.

13. Nextly, the Court is to consider – have a preliminary view about the strength of the mother’s case.  The mother filed her notice of appeal on 26 June.  The grounds she has identified in that document are that:

    ·The Court made orders in conflict with the best interests of a child;

    ·The Court refused to wait until a Joint Investigation Response Team (“JIRT”), investigation into child abuse was finalised;

    ·The Court refused to wait until a final hearing of an apprehended violence – of apprehended violence proceedings in the Local Court at I Town; and

    ·The Court disregarded new evidence provided to JIRT by the mother on 1 June. 

14. I suppose, by way of summary of those same points, that:

    ·Despite of an ongoing JIRT investigation and the current apprehended domestic violence order in protection of the child against the father – this does not quite make sense – the Court made orders that the child is placed in weekend care for three nights of the father who is suspicious of the alleged sexual abuse of the child.  I think what is meant there is a summary of the earlier points made, and that is the Court’s orders ignored the fact of a JIRT investigation and an Apprehended Violence Order and placed the child with the father overnight despite the mother alleging that the father has been guilty of sexual abuse of the child; 

    ·The father has not been cross-examined, and his evidence has not yet been tested before the Court;

    ·The Court’s expert cross-examination has not been finalised by the mother;

    ·There was evidence in the mother’s affidavits of 2 and 5 June that the Court did not take into account; and

    ·The orders are inconsistent with the Domestic Violence Order and the JIRT investigation and were made before the conclusion of the final trial. 

15. Doing the best I can with those, from the decision in Clemett & Clemett (1981) FLC 91-013 comes the problem of stay of proceedings in parenting cases. The stay application determination is to take into account the best interest of the child, and, of course, the orders that were made that are under challenge were made on the basis of the best interests of the child. The reasons I gave, I think, on 12 June for the orders made on 5 June address the fact that the orders I made are inconsistent with an Apprehended Domestic Violence Order. The reasons identify that there were countervailing risks to the child identified by the single expert in terms of a concern that the child was being exposed to abuse in the mother’s household in the form of a series of interrogations and an exposure to a view prompted by the mother which was not borne out in the evidence before the Court. In fact, the Court did not, as counsel for the father highlighted, make the orders that were recommended by the single expert. The single expert and the father pressed strongly for orders to make a complete change of the child’s living arrangements, and despite that opinion and despite the submissions made on behalf of the father, the Court made different orders. It is true that the father’s cross-examination in the proceedings has not concluded. To some extent that has been a function of the many interlocutory applications that have been brought before the Court, several of them by the mother. Nothing much can be said about that. That is just what happened.

16. Dr C’s cross-examination was concluded.  As I indicated during the course of submissions today, my recollection of what happened was that Dr C was cross-examined on behalf of the mother for several hours, and at the end of a court day the solicitor then acting for the mother indicated that she had no more questions to ask.  I said to her, rather than her making that decision immediately, because some matters had fallen from Dr C in the course of her evidence and the mother’s solicitor had not had a chance to obtain instructions.  I invited the solicitor to consider that matter overnight, whether she had any further questions, and I indicated to the parties that in the event that she had one or two questions to take up then that matter could be taken up on the following morning.

17. As I have indicated in the reasons I have given in relation to the other interlocutory matters, there followed a sequence of events whereby instructions were withdrawn from the mother’s solicitor.  The mother refused my invitation to resume her cross-examination of Dr C and left the courtroom.  In those circumstances Dr C’s evidence was completed, and she was excused.  The mother had every opportunity to address any further issue in addition to the very substantial cross-examination that had been undertaken on her behalf. 

18. I was not taken to any matters in the affidavits of 2 and 5 June that were not taken into account in the decisions I made on those days.  I understand that the appeals that were lodged in relation to my refusal to stay the proceedings, a refusal to disqualify myself in relation to the proceedings and a refusal to restrain the solicitors for the father from continuing to act for him, were all heard and dismissed. 

19. Next, as to the desirability of limiting the frequency of any change in the child living arrangements, obviously, that would favour not interfering with the orders I have made.  As to the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of a stay for a short period of time.  In that regard the mother has given no evidence about the time within which an appeal could be heard.  I understand that there was a discussion with the mother before the Full Court in relation to the mother prosecuting an appeal in relation to the orders of 5 June, and the mother indicated that she was not then in a position to prosecute that appeal.  I understand that the Full Court made arrangements to hear the appeals in relation to recusal, the injunction in respect of the solicitors and a stay.  I am not sure what application the mother has made or what application would be available to her to have the appeal in relation to the orders of 5 June expedited or heard in a short time.

20. Finally I turn to the best interests of the child.

21. Explained in the judgment handed down on 12 June in relation to the orders of 5 June is my assessment of the evidence before the Court and the reason why it was appropriate to make the orders I made.  Those orders can only be made based on findings about what would be in the best interests of a child.  To my observation on the day, each of the parents was much aggrieved as the other about my orders.  The father contended that that the mother’s effective abandonment of the proceedings, the evidence about her conduct in respect of allegations of abuse, should have warranted a change in the residence of the child.  The mother took a very different view.

22. The background, of course, to the case was that by the time that hearing was conducted, there was no time between the father and the child because the mother was not complying with the orders that had been made.  The reason why she was not complying, it was initially said, had nothing to do with child abuse allegations.  It related to her inability to afford to travel from the E Town area to the O Shire.  In those circumstances I was not offered a safe option that met the requirements of the orders already made, securing some time between the child and the father of just leaving the current arrangements in place.  They were not being complied with.

1. A stay is not automatic on an appeal.  In my view, it must be said that the mother has some prospects of success in relation to her application.  These decisions involve discretionary decisions and a Full Court might find that some impermissible information was taken into account; there has been a failure by the Court to make a finding or there has been a finding made that was impermissible, and therefore some other decision should have been made.  However, in my view, while there is a case to be argued on appeal, it is not apparent that the appeal will succeed.

2. I accept that the mother has a bona fide concern, but for the reasons that I have given, in my view, a stay is not appropriate in the circumstances.  Of course, as the mother presumably knows, she would be free to re-agitate the issue of the granting of a stay before the Full Court should she so wish.

3. The next application was an application that the husband pay the wife $50,000.  The mother’s application was contained in an application of 22 May, and the mother sought an order that the father pay $50,000 within 56 days.  She was obliged to amend that application orally before me to seek an order that it be paid within seven days.  Against and over the objections of the father, I said that I would hear that application today.  The mother’s application has been on foot in one form or another since last year.  I am not quite sure why that application has not been pressed and argued before now.  I think the mother said that was a failure by the Court to set the matter down.  I simply do not know.  Obviously, other matters have, assumed greater priority, but the fact is that the application is now being pressed a month before the resumption of the final phase of the trial.  The first thing to say is that the Court is to determine these applications based on the nature of the relief.  I asked the mother a number of times today about the reasons for her application.  She indicated that she wanted to pay some money back into her superannuation fund that had been withdrawn by her under an emergency provision, and she wants to have some funds to secure payment for legal representation in the proceedings.

4. The proceedings now occupy, I think, five boxes of written material.  Any new lawyer coming into the matter would be required to, not only get across and understand the evidence that has been filed, but would be coming into a case after many days of the final trial.  I have real doubts as to whether it is practicable for legal representatives to qualify themselves with the information in time to provide effective advice and representation.  In this regard the mother terminated the instructions of her solicitor when she was before the Court.  There was no suggestion that that was done because she could not afford to pay legal fees, so I am not quite sure what the basis was for that.  I do not think the mother has dealt with it in her affidavit evidence.  There was some indication that her solicitor was going overseas for a period, but I do not think that was a period that related to the August hearing or the May hearing but had something more to do with the June dates. 

5. The next thing to say is that it is not clear that – and this is fundamental –there is a source of funds from which the payment could be made.  The mother was asked about this, and apart from talking about funds that the husband has had access to – and, of course, funds that have been spent do not exist anymore – the mother responded to the effect that he could borrow the money.  He could borrow the money, I think it is asserted, from his mother, and he could borrow the money perhaps on the security of the former matrimonial home.  There is no evidence before the Court that either course is practicable.  There is no evidence that the bank would lend any more money, and there is no evidence that the husband’s mother has any more money.

6. Next, the Court would be extremely unlikely to order that somebody pay money, whether it is by way of interim costs, interim property settlement, injunction, maintenance, by way of borrowing.  That is because if somebody is required to make a borrowing they have to give collateral undertakings in relation to their obligations, and the Court is not in a position to underwrite those collateral agreements.  In a decision Strahan & Strahan (2009) FLC 93-414, , the Full Court dealt with the question of provision of funds for litigation expenses, and the Court identified that the first issue is the head of jurisdiction to make the order. That was the intention, presumably, of counsel for the father in questioning whether the advance could be by way of maintenance or could be by way of costs or could be by way of interim property settlement. The Full Court reminds judges at first instance that that is important because the Court has to know what criteria were applied to the decision.

7. In relation to costs the relevant provision is s 117, and thereby a court makes a decision whether the usual position that parties bear their own costs should be maintained or whether, taking into account matters set out in s 117(2A), one party should be required to contribute to the costs of the other.  It is rare that an order would be made under s 117 in advance of the completion of the proceedings in respect of which the costs were to be paid, and that is because the Court is not to know some of the critical aspects of s 117(2A) such as whether either party has been wholly successful or not, the terms of the orders, the financial circumstances of the parties, whether there have been any offers of settlement and, if so, the terms of the offers and so on. 

8. As to spousal maintenance, as I say, the mother only indicated two requirements for the payment:  One was to put money back into superannuation, and the other was litigation funding.  I am not quite sure under what head of jurisdiction the restitution of money into a superannuation fund would come.  Presumably, that restitution could be made at a later date, rather than having to be made one month before the last stage of the trial.

9. That brings me to property settlement as the head of jurisdiction.  As the decision of Strahan points out, the relevant criteria are those found in s 79, and the important thing to say is that if an order is to be made on an interim basis before there has been a completion of property settlement proceedings, the Court needs to take a conservative approach.  In interlocutory proceedings the Court cannot make all of the findings of fact that would be available on a final determination.  The Court does not have the advantage of the completion of all of the evidence of the lay witnesses.  It does not have the advantage of final submissions in the property settlement case, and since a decision of Harris & Harris (1993) FLC 92-378 the Court has been counselled not to do something on an interlocutory basis that cannot be undone after the final decision is made.

10. What that means in a practical sense is that if there is no dispute that, say, $100,000 will come to one of the parties to proceedings, then it would be unusual for the Court to award more than that sum on an interim basis because if a greater award was made, then the parties are put in a position where there would have to be a repayment of funds in the event that the final determination was in those terms.  So, in other words, if the husband in a case said that the wife was to receive $100,000 and the Court on an interlocutory basis awarded $120,000, the husband would be put to trying to recover $20,000 from the wife.  The almost universal approach of the Court has been that in those circumstances the Court would allow some margin for the issues of costs and change of valuation and so on and award something significantly less than $100,000 on an interlocutory basis.

11. The arguments in the final proceedings before me include an argument that there should be no further adjustment of property between the parties.  Therefore there is no agreed extent to which there will be a payment of settlement of property between the husband and the wife.  The Court has been reminded in several recent decisions that just because there is an application for settlement of property does not mean that an order should be made.  The Court must be satisfied that it is just and equitable to make a settlement of property order in addition to the Court being satisfied as to what just and equitable settlement there would be.  Just because you file an application does not mean that there will be an order.  The circumstances in the case before me have not been the subject of submissions today, but the parties’ relationship was not of substantial duration.  They have the child between them, but the task under s 79 is to identify the pool of assets, and in this case I think the husband has identified that there has been a valuation at about $1.3 million in respect of the property he owns.  It is encumbered as to half a million dollars.  He has other debts, including a debt to his mother of the order of $100,000.  So on the face of it there will be a positive pool of assets.

12. The next step in property proceedings is to assess the respective contributions of the parties.  That will involve a consideration of what the parties brought into the marriage, what contributions they made financially, both directly and indirectly, by way of non-financial contribution directly and indirectly and in each case their contribution to the marriage, particularly their contribution to the family including as parent and homemaker.  A finding is made in property proceedings as to the balance of contribution.  It will be argued in this case that the wife’s contribution was substantially matched by the assets she took from the marriage.  That will be the argument.  It is not possible for me to test that argument today, but that is the argument to be put before the Court.  It will be argued on the husband’s side that he brought into the marriage greater than the assets that now exist.  Now, to the extent that there has been an increase in the value of the home, that is a matter that can be the subject of submissions, and he will argue that he brought into the marriage the business to the extent that it has a value. 

13. There will be arguments to be made in relation to the balance of contributions as parent and homemaker and each of those parties’ claims to have made those contributions.  It would not be unusual for the wife to make a case that her contributions exceeded those of the father, but that is a matter that can only be determined after I have finished hearing the case.  It is not certain on those facts that there will be a distribution of property to the wife.  The fact alone of the husband’s contentions in the case cannot be determinative even of the interim proceedings.  But care needs to be taken before the court ventures into a distribution that may be in excess of the ultimate distribution between the parties. 

14. Each of the parties has a case to argue in respect of property settlement. I cannot say today that there is no force in the mother’s application for a substantial property settlement in excess of $50,000.  However, nor can I say that there is not a case to argue on behalf of the husband that, taking everything into account, there will not be an adjustment to the parties  interests in property. 

15. After the court considers contribution, the court considers adjustments by reason of the matters that are listed in s 79(4)(d), (e), (f) and (g), which incorporates by reference, the menu of factors in s 75(2).  Those adjustments, on any view, are likely to favour the wife as to some matters but, as counsel for the father points out, it is the father’s ultimate application that the child live with him.  The ultimate residence of the child is an important issue, particularly with the child being just five years of age.  Her living arrangements are an important factor in terms of a reason for an adjustment one way or another from the outcome that is warranted by an assessment of contributions alone. 

16. The mother has a number of problems.  It is probably too late for her to effectively organise legal representation for the hearing resuming on 4 August.  The sad fact is that parties are not entitled to legal representation.  It is not compulsory.  That said, I agree with the mother.  She is at a disadvantage in not having legal representation. 

17. Nextly, there is no obvious source of funds from which the payment can be made.  As is said on behalf of the husband, the mother has not indicated that there are no further funds available to her.  She has not said that she has exhausted all of her funds.  There is no evidence that she could not borrow further funds from members of her family.  I cannot make an effective order, in my view, requiring the husband to borrow funds from his mother or from the bank.  In each case, they could simply say no, and that would be the end of the matter.  Usually, an application for interim costs is made when there is an amount of money in a bank, there is an asset that could be sold, or there is an entitlement to money from somewhere else.  None of those things apply here.

18. Lest it be argued, the property cannot be sold in a way that generated funds for the mother that make any sense of her retaining legal representation for a trial that resumes on 4 August.  There is no bank account.  There is no other evidence of the fund of money that could secure or be the subject of an order for payment, so the Court would be put to a bare order that the husband pay $50,000 to the wife.  Courts do not make orders that cannot be complied with, and, as I have said, the Court is required to act, for logical reasons, conservatively in the context of the property claim, and, in this case, that is not possible.

19. There is no common ground as to a further property settlement to be made from the husband to the wife, and therefore there is no safe amount that could be ordered.  For those reasons, the application of the wife for a payment of $50,000 within seven days from today’s date is dismissed.  As to any other interim application made by the wife, I adjourn those applications to the first date of the resumed final day on the fourth day of August, 2015.

20. An oral application has been made today in relation to the child being referred to an organisation that deals with the victims of child abuse.  To some extent, it is not necessary to make any orders because the only indication before the Court is that a referral to the organisation called U Org would need to be made once there had been a conviction or a finding of sexual abuse.  This is an issue, because multiple interviews of a child in relation to issues of sexual abuse or anything else can be abusing.  That was the subject of the evidence of Dr C.  It was the subject of adverse comment to the mother by the New South Wales Police, and it is not a matter of debate.

21. The problem with these proceedings, to some extent, is that the civil law in relation to children sits next to the criminal law and welfare law, which are, by and large, state issue.  There is an uneasy connection, at times, between those areas, and indicated to the mother that I would not dream of interfering with the statutory obligations of JIRT, which is a construct of the state welfare department and the New South Wales Police, or, in the normal course, interfere with the role of the police in investigating crime, and those authorities are subject to some checks and balances, and, by and large, this Court would not interfere.

22. The problem comes to the extent that – and there is no evidence that there is an extent – that the mother would be able to successfully refer the child to U Org.  The mother will not agree to be restrained in relation to it.  She does not assert that she is able to refer a child there directly.  There is no evidence before me that she is likely to be able to do that.

23. There is considerable evidence before the Court about the mother’s interference with the processes of handover of the child under the orders of 5 June.  There is evidence that police officers have asked her to step away and not to interfere.  There is evidence that the child has been distressed, that the child has calmed down when the mother has ceased to interfere, and in those circumstances I am not confident that the mother could resist taking a step such as the one that is concerning the father and the ICL.

24. I think the safest course – and I think I foreshadowed this to the parties – is that the mother be required to give notice if she intends to attempt to make a referral.  That way, at least, without interfering with her rights or the child’s needs and without, in any way, interfering with what the authorities could do, at least there is an opportunity for this Court to hear an application by the parents in relation to such a referral.  It might not arise; it is just a neutral way of keeping the peace, it seems to me.  In that regard, I give leave to the father to make an oral application for an order restraining the mother from referring the child, B, to U Org until further order.

25. There was some discussion this morning about directions for trial.  A draft trial plan has been prepared.  The mother has not, to be fair, had an opportunity to respond to the draft.  I am not sanguine about the parties being able to reach an agreement about a draft.  What I have asked the ICL to do is to finalise the draft, allocating in an equitable way time to the mother in respect of the aspects of the trial yet to be completed.  They are some further cross-examination, I think, of the mother, the completion of the mother’s cross-examination of the father, cross-examination by the mother of the paternal grandmother, and I think there was, perhaps, some evidence the mother wished to ask some questions of Ms H.

26. As to expert evidence, the ICL and the father have completed their cross-examination of Dr C.  I have indicated to the mother that in the event that she seeks to reopen her cross-examination of Dr C, then she would need to secure Dr C’s fees.  They are estimated through the ICL at $1,980, and the mother will be required to place those funds in the trust account of the ICL at least seven days prior to 4 August in the event that she elects to re-commence that cross-examination.  In the event that that is not done, Dr C will not be further cross-examined in the proceedings.

I certify that the preceding forty eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 6 July 2015.

Associate: 

Date:  17 July 2015