Short & Trevillian (No. 2)

[2007] FamCA 661

FAMILY COURT OF AUSTRALIA

SHORT & TREVILLIAN  (NO. 2) [2007] FamCA 661

FAMILY LAW – INJUNCTION - application for injunction in relation to bank account - no evidence - application dismissed

FAMILY LAW – COSTS - application by wife for costs and reimbursement of costs paid to Independent Children’s Lawyer - application listed for hearing

APPLICANT: Ms Short

RESPONDENT: Mr Trevillian

FILE NUMBER: ADF 1855 of 2003

DATE DELIVERED: 10 May 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 10 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Berman

SOLICITOR FOR THE APPLICANT: Angela Ferdinandy

COUNSEL FOR THE RESPONDENT: Mr Martin

SOLICITOR FOR THE RESPONDENT: Howe Martin and Associates

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Strickland delivered this day will for all publication and reporting purposes be referred to as Trevillian & Short.

Orders

1. That the Form 2 Application filed by the wife on 27 April 2007 be dismissed.

2. That paragraphs 1 and 2 of the Amended Form 2 Application filed by the wife on 8 May 2007 be dismissed.

3. That further consideration of paragraphs 3, 4 and 5 of the Amended Form 2 Application filed by the wife on 8 May 2007 be adjourned to 10:00am on 21 May 2007.

4. That the Form 2 Application filed by the wife on 17 April 2007 be listed for hearing at 10:00am on 21 May 2007 with a time estimate of ½ a day.

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1855 of 2003

MS SHORT

Applicant

And

MR TREVILLIAN

Respondent

REASONS FOR JUDGMENT

1. It seems there may be a number of applications before me today and perhaps I will deal with them in this order. 

2. Firstly, there is a Form 2 Application filed by the wife on 8 May 2007 in which the wife seeks an order by way of injunction and orders in relation to a Bank SA account.

3. I am told that agreement has been reached in relation to the latter issue and no order is required in relation to, or consequent upon, that agreement, but out of an abundance of caution I am being asked to adjourn that part of that application to the next hearing date, and I am prepared to do that.

4. In relation to the injunction, though, Mr Martin, who appears for the husband, says his client opposes that application but he has not had time to file any responding documents.

5. I will not go into any lengthy reasons, but for my part there is no evidence before me which could justify and require that injunction being made today.  There is nothing in the affidavit filed by the wife in support of the Form 2 Application which provides any basis for that injunction.  Mr Berman, in his submissions, has indicated that the basis of it relates to matters that arose previously in this case, wherein the husband - and I dealt with this in my judgment - transferred a bank account from his name into the name of a corporate entity - and I found he did this - to avoid payment of spousal maintenance and costs, but that is a separate issue as far as I am concerned.

6. Mr Martin has also rightly referred me to the fact that the wife had previously sought a similar order by way of security for future payment of child support, and I dealt with that in my judgment and dismissed that application. 

7. Be that as it may, the long and the short of it is there is no evidence before me today which would justify that injunction and Mr Berman candidly said, from the bar table, that he has no evidence to put to me to suggest that the husband is about to, or is proposing to, transfer, assign, dispose, encumber or deal with the property which is sought to be the subject of the injunction.  Thus I do not propose to take that any further.  Whether the situation changes and whether there is further evidence that is put before me which resurrects that issue, that is a matter for the future. 

8. Next, in relation to the Form 2 Application filed by the wife on 17 April 2007, that is an application wherein the wife seeks orders for costs and also the reimbursement of costs paid to the Independent Children’s Lawyer.

9. In relation to the first matter, that flows from my reasons for judgment and the orders that I made finalising the matter of property settlement recently.  That application now needs to be set down for hearing because as I understand it it is opposed by the husband. 

10. In relation to the second issue, namely the question of reimbursement of costs paid to the Independent Children’s Lawyer, unfortunately that has a confused history to it.  On 14 November 2006 the Independent Children's Lawyer filed a Form 2 Application seeking payment, by the husband, of a portion of the Independent Children's Lawyer's costs.  As I understand it, at that time the wife had paid the amount that was sought from her but the husband had not.  The husband responded to that application in a Form 2A Response filed on 15 November 2006 and the wife responded to it by way of a Form 2A Response filed on 9 February 2007.  Ultimately, the application filed by the Independent Children's Lawyer was discontinued and that occurred by notice of discontinuance filed on 10 April 2007.  However, that still left the respective Form 2A Responses filed by the parties, insofar as they sought orders against each other in those responses.

11. For the husband's part, he was seeking an order that the wife reimburse to him an amount of money that he had paid Dr B who was an expert instructed by the Independent Children's Lawyer in relation to the children's issues in this case.

12. For the wife's part, she was seeking an order for reimbursement of the amount that she had paid to the Independent Children's Lawyer.  There is an issue now as to whether in fact those two Form 2A Responses have been dismissed.  Unfortunately I cannot confirm that today.  I need to check my notes and bench book, and, if that does not reveal anything, obtain the relevant transcripts.  For the moment I am proceeding on the basis that they are not dismissed.

13. How that all fits in with the wife's application of 17 April 2007 is that the wife, in that application, in effect repeats the orders that she sought in her Form 2A Response; namely, reimbursement of the moneys she had paid to the Independent Children's Lawyer.  However, Mr Berman has indicated today that his client will not be proceeding to seek that order.  Indeed, what his client now seeks in that regard is an order for costs in relation to the proceedings instituted by the Independent Children's Lawyer, wherein he sought costs from the husband.

14. Mr Martin does not require, and nor do I, a formal amendment to the Form 2 Application, but Mr Berman's instructing solicitor will need to advise Mr Martin of the amount sought by way of costs.  In that light that can be seen as something separate, and now different, to what the wife sought in her Form 2A Response and obviously what the wife sought in her Form 2 Application filed on 17 April 2007.

15. It seems then, subject to clarifying whether the husband's Form 2A Response has been dismissed, there is now this amended application that the wife makes and also the wife's application for costs of and incidental to those proceedings.  Thus, I propose to allow half a day for those matters to be disposed of, but it may be that less time is required.

16. I note that that adjourned hearing date is a date that Mr Berman is available but Mr Martin needs to check his counsel's availability, and it may be that that date needs to be changed administratively and that will obviously be attended to in due course.

1. In relation to the issue of the dismissal or otherwise of the respective Form 2A Responses that I have referred to, I will advise the solicitors, through my associate, of what we say the position is in time for them to consider that on the adjourned hearing date.

I certify that the preceding
17 numbered paragraphs are
a true copy of the reasons herein of the
Honourable Justice Strickland.
The 10^th day of May 2007.

……………………………………….
Associate