Salmon and Howard & Anor

[2013] FamCA 1151

FAMILY COURT OF AUSTRALIA

SALMON & HOWARD AND ANOR [2013] FamCA 1151

FAMILY LAW – PRACTICE AND PROCEDURE – Leave to intervene – oral application made by wife’s former solicitors for monies to be held in trust for payment of their outstanding legal fees.

FAMILY LAW – ORDERS – Final parenting orders by consent – final property orders by consent – commercial reality.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Mr Salmon

RESPONDENT: Ms Howard

INTERVENER: O Pty Ltd

FILE NUMBER: MLC 1990 of 2011

DATE DELIVERED: 13 May 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 13 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dickson

SOLICITOR FOR THE APPLICANT: Berry Family Law

COUNSEL FOR THE RESPONDENT: Mr Stavris

SOLICITOR FOR THE RESPONDENT: James Harris Lawyers

COUNSEL FOR THE INTERVENER Mr Treby

SOLICITOR FOR THE INTERVENER O Pty Ltd

ORDERS

BY CONSENT IT IS ORDERED

Parenting Orders

1. That the two children of the marriage namely B born … 2007 and C born … 2008 live with the wife.

2. That the parties have the joint parental responsibility for the children.

3. When the children are with the husband, the husband to have the sole responsibility for their care, welfare and development.

4. That the husband spend time with and communicate with the said children as follows:-

   a.Each alternate weekend from the conclusion of school or kindergarten on Friday until the commencement of school or kindergarten on Monday;

   b.Each Wednesday from the conclusion of school or kindergarten until the commencement of school or kindergarten on Thursday morning, and if not a school day from 9.00 a.m. on Wednesday to 9.00 a.m. on Thursday each week;

   c.In the 2013/2014 Christmas holidays (and each alternate year):-

   i.From 6.00 p.m. Christmas Eve to 6.00 p.m. Christmas Day; and

   ii.For the second half of the holiday period commencing 6.00 p.m. on the middle day of the holidays;

   d.In 2014/2015 and each alternate year for the first half of all long summer school holidays commencing from the conclusion of school or kindergarten at the commencement of the holidays until 6.00 p.m. on the mid point of the school holidays (such time to be suspended from 6.00 p.m. Christmas Eve to 6.00 p.m. Christmas Day);

   e.Half of the school term holidays, with the husband to have the first half of same and the wife to have the second half of same and the reverse in alternate years;

   f.If the children are spending time with the husband on mother’s day the husband’s time with the children be suspended and he shall return the children to the wife’s care from 9.00 a.m. on mother’s day until 6.00 p.m.;

   g.The children spend time with the father on father’s day if they are not already in his care, from 9.00 a.m. until 6.00 p.m.;

   h.That there be such other arrangements between the parties as the parties may mutually agree upon in relation to the children’s birthdays and special occasions;

   i.That both parties each keep the other informed as to the children’s health and wellbeing;

   j.That the passports of the children be held by the Court until further Order of the Court;

   k.The parties have the joint responsibility for medical decisions concerning the children;

   l.Each party to have the children on alternate Palm Sundays with the parent who has the Australian Easter not having the preceding Palm Sunday and vice versa;

   m.Each party should have alternate Easter Sundays (Orthodox);

   n.Changeover for the purposes of these Orders take place at the children’s respective school or kindergarten and if not a school or kindergarten day, changeover occur at the Coburg Library;

5. When the children are living with one of the parents, the other parent may telephone the children once a week at a reasonable time.

6. Each party keep the other parent informed of any change, from time to time, of his or her residential address, landline telephone number and mobile telephone number.

7. Each party each keep the other informed of any injury or illness suffered by B or C whilst in the other parent’s care, and keep the other parent informed of any medical treatment undertaken by B and/or C whilst in the other parent’s care and notify the other parent of any medication taken by B or C.

8. The wife ensure that the husband receives all details of the schooling/kindergarten progress of the children including, but not limited to, their reports, photographs and newsletters (if any).

9. The husband be permitted to attend all schooling/kindergarten events of the children and be permitted to attend all parent/teacher meetings.

10. Each parent be restrained from denigrating the other parent in the hearing or presence of the children.

11. Pursuant to Section 65DA (2) and Section 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the fact sheet attached hereto and these particulars are included in these orders

NOTATION

A.Each of the parties will take the children to Church on Easter Sunday and Palm Sunday if

the children are with them on those days.

Property Orders

1. The proceeds of sale of the former matrimonial home be forthwith distributed as follows:-

   a.   $60,000.00 to the wife’s Solicitors, James Harris Lawyers;

   b.   The balance to the husband’s Solicitors, Berry Family Law.

2. The husband do all things and sign all documents to transfer to the wife the motor vehicle registered in the name of N Pty. Ltd.

3. The wife’s:-

   c.   Spousal maintenance application; and

   d.   Claim for damages pursuant to her Statement of Claim filed 24 October 2012

   be and are hereby dismissed.

4. All previous Orders reserving costs be and are hereby discharged.

5. Unless otherwise specified in these Orders:-

   e.Each party retain all assets in their respective possession as at the date of these Orders;

   f.Each party retain their respective superannuation entitlements;

   g.Each party be solely liable for any liability attaching to any property being retained by that party pursuant to these Orders.

6. All applications are otherwise dismissed.

7. Certify for Counsel.

NOTATION

A.The parties intend these Orders shall as far as practicable finally determine their financial relationship and avoid further proceedings between them.

IT IS ORDERED BY THE COURT THAT

1. The requirement pursuant to Rule 6.05 of the Family Law Rules 2004 (Cth) be dispensed with and O Pty Ltd be granted leave to intervene in these proceedings.

2. The sum of $20,000.00 (“the funds”) be held in trust by James Harris Lawyers until agreement in writing between the wife and O Pty Ltd or order of a court of competent jurisdiction for payment of the funds provided.

3. All extant applications be otherwise dismissed and the matter removed from the list of pending cases.

IT IS DIRECTED THAT

All subpoenaed and exhibited documents be returned on the usual basis to the person producing same.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Salmon & Howard and Anor 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 MELBOURNE

FILE NUMBER: MLC 1990 of 2011

Mr Salmon

Applicant

And

Ms Howard

Respondent

REASONS

1. Today is the final hearing which involves both parenting and financial issues.  I have this morning made orders by consent finalising the children’s issues.  I have before me now a Minute of proposed consent orders in relation to the financial issues. 

2. The wife initiated these proceedings in the Federal Magistrates Court, as it then was, and the matter was listed for final hearing in that Court, but when the mother indicated, amongst other things, that she intended to seek damages against the husband the matter was transferred to this Court.  The matter has had what I would describe as a somewhat chequered history in this Court, with numerous hearings and applications for the matter to proceed on an undefended basis, and the wife’s compliance with orders with respect to the management of the file has been to date far from satisfactory.  However, the matter is now listed for final hearing before me today and to the credit of the parties they have reached a final agreement. 

3. It was put to me before the luncheon adjournment that the wife had not consented to the financial orders but would do so if I were to determine that those orders were just and equitable.  It is important to distinguish   how the court would determine what is just and equitable, following a hearing of all the evidence, and how it might reach that same conclusion based upon consent orders signed by the parties and which they both ask that the court make.

4. Parties consent to orders for all kinds of reasons, and there is often what is described as a “commercial reality” to the orders that the Court is asked to make.  That commercial reality is clear in this case, where there is a pool of approximately $105,000.00 and some superannuation entitlements.  It is complicated by the wife’s claim for damages and, in the light of the way in which she put her case which was that she should receive 100 per cent of that pool of assets of $105,000, it is hard to see where any damages which she sought or were ultimately ordered to be paid, might in those circumstances be met.

5. It is also further complicated by the fact that there have been a number of orders reserving the husband’s costs.  The claim made by the husband is for costs of some $30,000 with respect to those reserved costs.  It is also clear from the letter provided to the Court by the husband’s solicitors, and from the information contained in the wife’s outline of case document, that the parties’ costs will essentially exhaust any monies that they would receive by way of property settlement.  The reality of the situation is that there is very little benefit to either party in pursuing their claims, other than to satisfy those orders for costs. It is on that basis that I propose to make the orders sought by the husband and wife.

6. The matter is further complicated by the fact that costs are sought by the wife’s previous solicitor O Pty Ltd. The firm ceased acting for the wife in or about February 2012.  The firm sought to recover its costs, which are said to be $15,293.89, and judgment was entered in its favour on 8 January 2013.  That judgment was then set aside on the application of the wife on 18 March 2013.  There is a pre-hearing of the matter on 30 May 2013 in the Magistrates Court of Victoria at Suburb P.  The wife disputes those costs, however it is submitted on her behalf that they are included in the amount of $55,000, which she is said to owe by way of costs.

7. There was no formal application by the wife’s previous solicitors or affidavit in support of their application for  leave to intervene in these proceedings seeking orders restraining the wife from dealing with $20,000 of the her entitlements to property settlement pursuant to the orders I make by consent.  However, I am satisfied in all of the circumstances that it is appropriate that I dispense with the requirement for that application and allow an oral application for leave to intervene in these proceedings.  It is clear that the wife is aware of the claim for costs.  She of course has sought to set aside that judgment, and now disputes those costs.  It is not disputed that there were some discussions last week in relation to the costs that are sought to be paid and orders to protect the payment of those costs.

8. It was submitted by the wife’s current solicitors that an order in the terms sought by the intervener would in fact give priority to the costs sought by that firm to the detriment of the wife’s current solicitors. However, in circumstances where that amount is included in the sum of $55,000, and where the wife is to receive a payment of $60,000 pursuant to the consent orders that I am being asked to make to finalise the financial issues today, that would not appear to be the case.  The amount sought to be preserved is the sum of $20,000 and in the event that the wife is successful in her application and is not required to pay all of those costs, then obviously that money will be either available for her to meet the other costs that she owes or for her own benefit.

9. In all of the circumstances, I am satisfied that it is appropriate to make the orders sought by the wife’s previous solicitors and that if I did not make that order there is the potential that it’s claim might be defeated.

10. I am also satisfied that the orders by way of final property settlement are, in all of the circumstances, just and equitable.  I understand that there are competing arguments about competing contributions.  The husband has made initial contributions.  I note there were arguments with respect to monies that might have been wasted and properties that might be owned overseas.  However, for the purposes of today, the parties were essentially left to divide the sum of $105,000 and the orders sought are, in my view, not only practicable but just and equitable.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 13 May 2013.

Associate:     

Date:  22 July 2013