STRAHAN & STRAHAN (STAY AND VARIOUS INTERIM ORDERS) - [2010] FamCA 708

FAMILY COURT OF AUSTRALIA

STRAHAN & STRAHAN (STAY AND VARIOUS INTERIM ORDERS)

[2010] FamCA 708

FAMILY LAW – JURISDICTION – stay of proceedings – whether a Judge at first instance has jurisdiction to grant a stay of orders pending an appeal from the Full Court to the High Court of Australia – held that it is within the inherent jurisdiction of the court to grant the stay

FAMILY LAW – PRACTICE AND PROCEDURE – stay of proceedings – where the Full Court has dismissed the appeal – application for a stay of orders pending an application for special leave to the High Court – whether there are exceptional circumstances – consideration of the merits of the appeal – not satisfied that exceptional circumstances have been established – application dismissed

FAMILY LAW – CHILDREN – interim orders – with whom a child spends time – where there are allegations that the child has reacted poorly in the past – whether time should be supervised – where the wife proposes family carers supervise the husband’s time – best interests – orders that the child spend time with the father to be in presence of his speech pathologists

FAMILY LAW – CHILDREN – family consultant and expert’s reports – where the wife seeks to appoint a new family consultant and expert to prepare reports – where it was not appropriate to appoint a new family consultant where the report did not favour the wife – consideration of the appropriateness of the proposed experts

FAMILY LAW – COSTS – interim orders – application by the wife seeking $3.8 Million to cover her legal costs up to and including trial – just and equitable – not satisfied that the amounts claimed as reasonable future costs are justifiable – orders that the husband pay the sum of $825,000

FAMILY LAW – INJUNCTION – whether the proposed draft orders of the husband restraining him from dealing with assets leading up to trial are appropriate – just and equitable – orders considered appropriate

Family Law Act 1975 (Cth) ss 60CC, 61C, 61DA, 93A, 94(1), 94(2D), 117(2) & 123(1)(c)
Judiciary Act 1903 ss 79(1) & 80
Family Law Rules 2004 r 1.09, 1.13 & 22.11

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Bond & Caboche v England (1997) SASC 6446
Breen & Breen (1990) 65 ALJR 195
Goode & Goode (2006) FLC 93-286
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681
In Re The Duke Group Ltd: Gerah Imports Pty Ltd v The Duke Group Ltd (in Liq) [1994] HCA 3
Molier v Van Wyk (No. 2) (1981) FLC 91-001
MRR v GR (2010) 263 ALR 368
Re Trade Practices Commission v Manfal Pty Ltd and Others (1990) 99 ALR 783
Stephens and Stephens (Stay Application) (2010) FLC 93-429
Strahan & Strahan (Interim property orders) [2009] FamCAFC 166
Zschokke & Zschokke (1996) FLC 92-693

APPLICANT:

Ms Strahan

RESPONDENT:

Mr Strahan

INDEPENDENT CHILDREN’S LAWYER:

Ann Bills & Associates

FILE NUMBER:

ADF

228

2005

DATE DELIVERED:

13 August 2010

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

23 July 2010; 4 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Holland

SOLICITOR FOR THE APPLICANT:

Pederick Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Bartfeld, QC with Mr Berman

SOLICITOR FOR THE RESPONDENT:

Robinson & Mason

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Bowler

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ann Bills & Associates

Orders

The application filed on 29 June 2010 seeking a stay of the order of 5 November 2009 is dismissed.
S spend time with the husband in the Greater Metropolitan area of Adelaide for an initial period of six [6] months every third weekend of every calendar month on Saturday and Sunday from 11.00 am until 3.00 pm each day on the following conditions:
(a)the husband provide the wife notice of not less than three [3] days if he is unavailable to spend time with the child;
(b)the husband shall collect and return the child from and to the wife’s residence for the purposes of spending time with the child;
(c)the wife and husband forthwith use their best endeavours to seek the commitment of either Mr SH or Mr M to be present at handover and during the time the husband spends with the child;
(d)subject to their availability and willingness to participate either Mr SH or Mr M be present at handovers and during the time the husband spends with the child pursuant to these orders PROVIDED THAT any costs associated with their attendance be met by the husband.
The husband have telephone contact with the child once per week on Saturdays between 3.00 pm and 4.00 pm (Adelaide time) and that the child be at liberty to telephone his father at other times.
If neither Mr SH or Mr M are available at the above mentioned times the husband shall have liberty to apply for further interim orders concerning his time with the child.
If the final judgment concerning parenting orders for the child is not delivered before the six [6] month period expires, both parties shall have liberty to apply for further interim orders concerning the child.
The Independent Children’s Lawyer confer with the solicitors for the wife and solicitors for the husband and thereafter request in writing that Dr C prepare an updated Family Assessment.
Dr C provide to the Court a report relating to the care welfare and development of S born … June 1996 and that such report be released to the parties and the Independent Children’s Lawyer on or before 30 September 2010.
The parties do attend and ensure that the child attends such interviews as Dr C may request.
The Independent Children’s Lawyer confer with the solicitors for the wife and solicitors for the husband and thereafter request in writing that Associate Professor Y prepare a report.
Associate Professor Y provide to the Court a report relating to the future needs of S in particular but not limited to his intellectual functioning and treatment for Autism and that such report be released to the parties and to the Independent Children’s Lawyer on or before 30 September 2010.
The parties attend and ensure that the child attends such interviews as Associate Professor Y may request.
Within twenty-one [21] days from today the husband pay to the wife’s solicitors the sum of EIGHT HUNDRED AND TWENTY FIVE THOUSAND DOLLARS [$825,000.00].
Forthwith upon receipt of the monies the wife’s solicitors do pay the sum of SEVENTY FIVE THOUSAND DOLLARS [$75,000.00] to the Independent Children’s Lawyer on account of the Independent Children’s Lawyer’s costs.
Upon receipt of the monies the balance shall be invested in an interest bearing account to be thereafter used only for solicitor and counsel fees for the proceedings in the Family Court of Australia PROVIDED FURTHER THAT the sum of THREE HUNDRED THOUSAND DOLLARS [$300,000.00] shall be retained for solicitor and counsel fees for the final hearing in this matter.
Paragraph 2 of the order made on 27 July 2007 is discharged.
Until further order the husband be restrained from selling, encumbering or otherwise dealing with the following (except in the ordinary course of business):
(a)the husband’s interests, whether legal or equitable, in any of his interests in the companies and trusts and entities valued by Ms E in her valuation reports dated 16 October 2008 and 28 November 2008;
(b)the husband’s interests in AW and EN entities;
(c)the husband’s interests in any real estate in Hong Kong, Malta, Switzerland, Australia and Austria
without first having given the wife twenty eight [28] days notice in writing of his intention to do so.

IT IS NOTED that publication of this judgment under the pseudonym Strahan & Strahan (Stay and Various Interim Orders) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 228 of 2005

MS STRAHAN

Applicant

And

MR STRAHAN

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant wife Ms Strahan and the respondent husband Mr Strahan have been involved in Family Court proceedings concerning their child S and financial matters for years.
On 31 May 2010 I delivered judgment in relation to certain interim matters, including dismissing the wife’s application for interim property settlement. On that occasion the final trial in the matter was listed to commence on 8 November 2010. Orders were made with a view to the parties resolving some outstanding procedural and interim issues or otherwise preparing those issues for determination. The matter was then listed for 7 July 2010.
At the further hearing on 7 July 2010 further orders were made and in particular outstanding interim issues were adjourned to 23 July 2010 for determination.
On 23 July 2010 certain directions were made in relation to production of documents, but other interim matters adjourned to 4 August 2010.
On 4 August 2010 further argument proceeded on the interim issues. By then fresh applications had been filed by both the wife and the husband. Time did not permit the hearing of all of the interim procedural matters. Some were further adjourned to the 13 August 2010 for mention or hearing if possible.
Included among the orders of 31 May 2010 was an order that the legal representatives for the husband and wife confer and agree upon a letter of instruction to the single expert, Ms E, for her updated valuation of various entities relevant to the property settlement proceedings. The parties did not agree upon the instructions to Ms E. As a result this was one of the matters to be determined by the Court.
On 31 May 2010 the parties were also directed to confer and reach agreement about the completion of assessments in relation to the child’s functioning and also for the preparation of a final Family Assessment Report for the conclusion of the trial concerning parenting orders.
The parties did not reach agreement and this was one of the issues brought back before the Court.
On 31 May 2010 the wife was given leave to file an application in relation to children’s issues concerning the child pending the trial, provided she complied with the time limits set out.
Issues concerning subpoenas also remained to be determined.
The matters which remained to be determined and listed for 23 July 2010 were:
(a)The question of the stay of the parenting orders pending the High Court appeal;
(b)The question of interim orders in relation to the child;
(d)The question of interim Injunctions in relation to the husband dealing with any of his assets;
(e)The question of further orders being made in relation to discovery and disclosure;
(f)Ms E’s instructions for updating her report;
(g)The Independent Children’s Lawyer’s costs;
(h)The provision of expert reports in relation to the child and the identity of those experts;
(i)The issue of further subpoenas by the wife;
(j)The wife’s application for “interim costs” filed 21 July 2010 in which she seeks an order that the husband pay her solicitors $3.8 Million.
(k)The directions to be made to prepare the matter for a final hearing in November 2010.
The parties were also directed to reach agreement about values in relation to certain assets, and if not, to agree upon the single experts to prepare such valuations.
At the hearing on 23 July 2010 some orders were made in relation to the husband producing documents. Some submissions were heard. The remaining issues were adjourned to 4 August 2010.
At the hearing before me on 23 July 2010 the husband was represented by Mr Bartfeld, QC, the wife by Mr Holland and the Independent Children’s Lawyer by Mrs West.
At the hearing before me on 4 August 2010 the husband was represented by Mr Bartfeld, QC with Mr Berman, the wife was represented by Mr Holland and the Independent Children’s Lawyer by Mr Bowler.
When the matter was adjourned on 31 May 2010 there were already on file numerous applications in a case concerning interim orders and procedural orders which had not been finalised. Numerous documents were already on file in relation to those issues. Since 31 May 2010 the Court file has grown from 486 documents to 523 documents. This includes further amended applications in a case filed by the wife (5) and applications and responses by the husband (3).

Application for stay of order in relation to the child

By application in a case filed on 29 June 2010 and listed for hearing before me on 7 July 2010 the wife sought the following order:
“1.That paragraph 1 of the order made by His Honour Justice Strickland on 5 November 2009 be stayed pending further order.
2.That the hearing of this matter be expedited pursuant to rule 5.05(4) and the matter be listed as a matter of urgency.
3.Such further or other order as this Honourable Court deems fit.”
Paragraph 1 of the order of His Honour Justice Strickland of 5 November 2009 provided:
“1.That until further order the husband spend time with the child [S] born […] June 1996 on the following basis:
(a)that the husband be at liberty to attend at [P School] at such day and time as may be agreed between the husband and the Principal of [P School] PROVIDED THAT:
(ii) there be no more than two occasions each week;
(iii)that the husband is not to remove [the child] from the school grounds;
(iv)that the time [the child] spends with the husband be as agreed between the husband and the Principal;
(b)that neither the wife or [the child] be advised of the husband’s proposed attendance at the school.”
The affidavit filed in support of the application indicated that the appeal from the order of Justice Strickland to the Full Court of the Family Court of Australia was unsuccessful and dismissed on 23 April 2010.
The wife’s solicitor’s affidavit referred to the intention to seek special leave to appeal to the High Court of Australia.
The application for the stay was listed before me. As a result of the orders made by the Full Court on another occasion, Justice Strickland was disqualified from hearing the matter further.
The husband opposed the orders sought by the wife.
Following upon a request from me on 7 July 2010 the solicitors for the wife filed a copy of the amended application for special leave to appeal to the High Court of Australia being the amended application for special leave filed in the High Court of Australia on 25 May 2010 and the draft Notice of Appeal filed in the High Court of Australia on 29 June 2010.
On 23 July 2010 I heard submissions from counsel concerning the wife’s application for a stay of the orders of Justice Strickland of November 2009 pending the determination of the High Court of Australia appeal.
The first matter to be determined was the question of the jurisdiction or power of a single Judge of the Family Court of Australia to grant a stay of orders pending the appeal to the High Court of Australia from a decision of the Full Court of the Family Court of Australia.
Counsel for the wife submitted that a single Judge of the Family Court of Australia had jurisdiction and power to hear and grant the stay.
Counsel for the wife relied upon the provisions of section 79 of the Judiciary Act 1903.
Counsel for the husband maintained that any application for a stay should be heard by the Full Court of the Family Court of Australia.
Counsel for the Independent Children’s Lawyer submitted that the order which was sought to be stayed was an order of His Honour Justice Strickland who was unavailable to hear the application for a stay and that therefore a single Judge had jurisdiction and power to hear the stay and, if appropriate, grant the stay.
Counsel for the wife conceded that there is no specific power granted by the Family Law Act or Rules, but maintained that a single Judge had inherent power and that it was a practical solution for a Judge at first instance to hear the application. On behalf of the wife it was also maintained that the application should be granted because it had merit.
It was emphasised by counsel for the wife that if the stay was not granted the appeal may be rendered nugatory and that there was a reasonable argument set out in the appeal documents filed with the High Court of Australia.
Counsel for the husband maintained that it was not desirable for a Judge at first instance to stay an order pending an appeal from the Full Court of the Family Court of Australia. He pointed to the absence of any information indicating that the wife had attempted to apply to the Full Court for a stay. The merits of the application for a stay were questioned by counsel for the husband who emphasised the further application by the wife to discharge the interim order of His Honour Justice Strickland. He contended that there was little merit in the grounds of appeal to the High Court of Australia.

Discussion

The order which the wife now seeks to stay is the order of Justice Strickland of 5 November 2009, which was an interim order in relation to the child S. The order of the Full Court of the Family Court of Australia of 23 April 2010 dismissed the appeal. As a result the stay of the order of Justice Strickland granted by me on 15 December 2009 ceased.
The wife is therefore not seeking to stay any orders of the Full Court, rather she is seeking to stay the order of Justice Strickland of 5 November 2009.
Neither the Family Law Act nor the Family Law Rules deal specifically with any application for a stay of an order made by a Judge at first instance, pending an appeal from the Full Court of the Family Court of Australia to the High Court of Australia. Nor do they deal specifically with an application to the Full Court or any other Court to seek a stay of the orders of the Full Court pending an appeal to the High Court of Australia.
Section 94(1) says:
“Subject to sections 94AAA and 94AA, an appeal lies to a Full Court of the Family Court from:
(a)   decree of the Family Court, constituted otherwise than as a Full Court, exercising original or appellate jurisdiction:
(i)     under this Act; or
(ii)    under any other law;
…”
(In this matter neither sections 94AAA or 94AA are relevant).
Section 93A says:
“(1) The Family Court has jurisdiction with respect to matters arising under this Act or under any other law made by the Parliament in respect of which:
(a)appeals referred to in section 94 are instituted;
…”
Section 94(2D) states:
“(2D) Applications of a procedural nature, including applications:
…
(d)to stay an order of a Full Court of the Family Court made in connection with an appeal under subsection (1) or (1AA);
…
may be heard and determined by a Judge of the Appeal Division or other Judge if there is no Judge of the Appeal Division available, or by a Full Court of the Family Court.”
There is no indication in this matter that the wife made any attempt to list the application for the stay before a Judge of the Appeal Division or by a Full Court of the Family Court. However, the order which is sought to be stayed is not the order of the Full Court (which dismissed the appeal from Justice Strickland’s order) but is an application to stay the order of the Judge at first instance pending the appeal from the Full Court to the High Court of Australia.
Section 123 of the Family Law Act provides in sub-section (1)(c) that the Judges may make Rules of Court providing for or in relation to the practice and procedure to be followed by the Family Court including “providing for and in relation to the time and manner of institution of appeals in and to the Family Court”. The main purpose of the Rules as set out in rule 1.04.
Rule 1.09 provides:
Procedural orders in cases of doubt or difficulty
If the court is satisfied that:
(a)a legislative provision does not provide a practice or procedure; or
(b)a difficulty arises, or doubt exists, in relation to a matter of practice or procedure;
it may make such orders as it considers necessary.

Rule 1.13 provides:
Judicial officer hearing application
Unless a legislative provision states otherwise, if:
(a)these Rules provide that an application or appeal is to be heard by a particular judicial officer or particular class of judicial officer; and
(b) such a person is unavailable;
the application or appeal may be listed before another judicial officer who has jurisdiction to hear the application or appeal.
Chapter 22 sets out numerous Rules which apply to appeals from a Judge at first instance to the Full Court of the Family Court of Australia. Rule 22.11 provides:
Stay
(1)The filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from, unless otherwise provided by a legislative provision.
(2)If an appeal has been started, or a party has applied for leave to appeal against an order, any party may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal or application relates.
(3)An application for a stay must be filed in the Registry in which the order under appeal was made and be heard by the Judge, Federal Magistrate or Magistrate who made the order under appeal.
Note 1 Under subsection 55 (3) of the Act, a divorce order is stayed until after an appeal against it is determined or discontinued.
Note 2An application for a stay may be listed before another judicial officer if the judicial officer who made the order under appeal is unavailable (see rule 1.13).
There are no specific rules dealing with an application to the Full Court of the Family Court of Australia for a stay.
Counsel for the wife relied upon section 79(1) and 80 of the Judiciary Act 1903:
Section 79(1)
79.State or Territory laws to govern where applicable
(1)The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.
…
80.Common law to govern
So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters.
In the decision of Molier v Van Wyk (No 2) (1981) FLC 91-001, Elliot J considered an application before him for a stay of execution of an order for sale of the former matrimonial home pending determination of an application to the High Court for special leave to appeal the decision of the Full Court of the Family Court of Australia. An order for sale of the property had been made by His Honour in his decision at first instance and an order for sale was also made by the Full Court. In his judgment His Honour said:
“I do not consider I have power, sitting as a single judge, to make the order sought. Section 28(3) of the Family Law Act provides that the jurisdiction of the Family Court in an appeal from a Judge shall be exercised by a Full Court. The Full Court in this case has assumed this jurisdiction and it is from the Full Court’s decision that the husband seeks the High Court’s leave to appeal. It is true that a court which makes an order or decree has an inherent power to stay the execution of those orders or decrees, and in this Court there is a general power given by reg. 16, but I consider that by virtue of sec. 28(3) the exercise of such power in the Family Court to stay orders made by a Full Court is part of the jurisdiction specifically limited in its exercise to a Full Court.”
The current matter involves the wife seeking a stay of the order of Justice Strickland, being the Judge at first instance who made the interim order.
Counsel also referred to the decision of Brennan J in the High Court of Australia in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 paragraph 6:
“When an application for special leave to appeal is made to this Court, a jurisdiction to stay may be exercised by the Court below and it is to that Court – the Court in which the matter is pending and which is familiar with the matter – that an application to stay should first be made. …”
Also at paragraph 7, Brennan J said:
“In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court’s discretion. In each case when the Court is satisfied a stay is required to preserve the subject of matter of the litigation, it is relevant to consider – first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the Court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.”
Mr Holland, counsel for the wife, submitted that the “Court below in which the matter is pending” in this instance is a Judge at first instance in the Family Court of Australia because the Full Court has dismissed the appeal and there is no matter pending before it.
Mr Berman, counsel for the husband, relied upon the decision of French J (as he then was) in Re Trade Practices Commission v Manfal Pty Ltd and Others (1990) 99 ALR 783, a decision in December 1990 in which His Honour was determining the threshold question:
“whether or not, sitting as a single Judge and exercising the original jurisdiction of this Court, I can make an order staying the operation of an order of the Full Court”. (Paragraph 4).
His Honour went on to consider the specific provisions of the Federal Court of Australia Act 1976 and the Rules of the Federal Court. At paragraph 6 he said:
“Reference should be also be made to Order 37 r.10 of the Federal Court Rules 1979 which provides “The Court may stay execution of a judgment or order.” And for completeness as this is an application for a stay pending an application for special leave to the High Court, s.77U of the Judiciary Act 1903 should be noted.
“s.77U Stay of proceedings
When an appeal has been instituted, the High Court or the Court or Judge appealed from may order a stay of all or any proceedings under the judgment appealed from.
The latter section is not applicable to the present case which concerns a pending application for special leave to appeal to the High Court.”
At paragraph 7 His Honour said:
“In my opinion, the nature of the appellant jurisdiction exercised by the Court and the specific powers conferred on it in that jurisdiction are inconsistent with the construction of the power conferred by s.23 that would authorise the making of orders by a single Judge interfering with orders made under s.28 by a Full Court. …”
In that paragraph His Honour went on to respectfully disagree with other Judges at first instance.
In the matter of Bond & Caboche v England (1997) SASC 6446 (a decision of His Honour Justice Lander in the Supreme Court of South Australia concerning an application for a stay of proceedings pending the hearing of an application for leave to appeal to the High Court of Australia) the judgment from which leave to appeal to the High Court was sought in that matter was the judgment of the Full Court of the Supreme Court of South Australia which had dismissed the decision of the single Judge of the Supreme Court. His Honour dealt with the stay, but there was no specific reference to the need to apply to the Full Court for such a stay. Part of his judgment is as follows:
“In Re The Duke Group Ltd: Gerah Imports Pty Ltd v The Duke Group Ltd( in Liq) [1994] HCA 3; (1994) 119 ALR 401 Dawson J said at 403:
‘The inherent jurisdiction of this court to order a stay of proceedings pending the determination of an application for the special leave is well established. It is an extraordinary jurisdiction which will only be exercised in exceptional circumstances …’”
At paragraph 79 of the decision of the Full Court of the Family Court of Australia in the matter of Stephens and Stephens (Stay Application) (2010) FLC 93-429 the Full Court said under the heading “Relevant Principles”:
“79.The mere filing of an application for special leave to appeal to the High Court does not operate as a stay of execution of the orders in respect of which leave to appeal is sought. Further, there are no provisions in the Act or the Rules that directly address the question of a stay of orders of the Full Court pending the determination of an application for special leave. Nevertheless, it is well established that when an application for special leave to appeal is made to the High Court, the jurisdiction to grant a stay may be exercised by the court below and it is to that court (that is, the court in which the matter is pending and which is familiar with the matter) that an application to stay should be made: Fauna Holdings Pty Ltd and McGillivray v Mitchell (2000) FLC 93-024; Tate and Tate (No 4) (2003) FLC 93-139. As such, it is not controversial that this Court has the power to grant such a stay.”
That was an appeal from a decision of the Full Court of the Family Court which dismissed the husband’s appeal, but allowed the cross-appeal of the wife and made further orders.
The decision of the Full Court in Stephens and Stephens (Supra) did not however discuss the capacity of a Judge at first instance to hear an application for a stay in a matter in which the Full Court had merely dismissed the applicant’s appeal.
Clearly, it is without doubt that a Full Court of the Family Court of Australia could grant a stay in this matter.
The provisions of the Act and Rules do not specifically provide a single Judge with power, however, rule 1.09 states:
“Procedural orders in cases of doubt or difficulty
If the court is satisfied that:
(a)a legislative provision does not provide a practice or procedure; or
(b)a difficulty arises, or doubt exists, in relation to a matter of practice or procedure;
it may make such orders as it considers necessary.”
That rule deals with procedural matters. If a Judge at first instance did not have power or jurisdiction then such a rule would not create the power or jurisdiction.
The inherent jurisdiction of a Judge at first instance to hear the stay is not inconsistent with the authorities to which the Court has been referred because the Judge at first instance is in this case “the Court before which the matter is pending” and the Court which is familiar with the proceedings.
I conclude that a Judge at first instance has inherent power to hear a stay of an order made in interim proceedings by a Judge at first instance if the Judge who made the interim order is not available. In this instance the orders of Justice Strickland made on 5 November 2009 were made before His Honour was disqualified from hearing the matter further.
It is therefore within my power or jurisdiction to make the orders sought.
It is necessary therefore to consider whether in these particular circumstances such an order should be made.
In the judgment delivered on 15 December 2009 I referred to the principles to be applied when considering a stay pending an appeal from a single Judge to the Full Court.
In particular, in paragraph 29 I referred to the recent Full Court case of Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106, which was an appeal concerning a refusal of a stay of a parenting order made by Chief Federal Magistrate.
Paragraph 18 of that judgment said:
“18. 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) 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) 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.”
The matter before me now however, is an application for a stay pending an application for special leave to appeal to the High Court. In the matter of Stephens and Stephens (Stay Application) (Supra) the Full Court of the Family Court of Australia said at paragraphs 80 and 81:
“80.However, the jurisdiction to grant a stay pending an application for special leave to appeal to the High Court is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted. In Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No. 1] (1986) 161 CLR 681 Brennan J said at 684:
A stay to preserve the subject-matter of litigation pending an application for special leave to appeal is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted. If an order for a stay is made, the respondent is kept out of the benefit of the order of the court in which the matter is pending until the hearing of the application for special leave to appeal. That was the situation to which this court adverted in Marconi's Wireless Telegraph Co. Ltd. v The Commonwealth [No 3] [(1913) 16 CLR 384]. There the Court granted an order staying the operation of one of its own orders pending the hearing of an application to the Privy Council for special leave to appeal. What the court said in that case [at 386] is applicable to this case:
“The Court will not ordinarily grant an application of this kind unless very strong and special grounds are shown. This is a very peculiar case. The conditions are such that, on the one hand, if the stay is granted without more, the whole benefit of the action may be lost to the plaintiffs, while, on the other hand, unless the stay is granted on some fair terms, the defendants’ appeal will be nugatory. It really is a question of the preservation of the rights of the parties without disregard of the balance of convenience.”
81.In Edelsten v Ward [No. 2] (1988) 63 ALJR 346, Brennan J, emphasising the “exceptional” character of the Court’s inherent jurisdiction to preserve the subject matter of litigation pending the making of a special leave application, said at 346:
[This jurisdiction] is one which can only be exercised in extraordinary circumstances. It is as well to emphasise that observation again lest the impression be created that, in the conduct of litigation, the orders of this Court are available to keep matters in status quo until the litigation is finally resolved. That is not the purpose of the inherent jurisdiction. Something quite exceptional must be shown before that jurisdiction is exercised.” (Emphasis added).
The judgment continues emphasising in particular the need to show exceptional circumstances.
One of the factors which are common to consideration of a stay pending appeals to both the Full Court and the High Court of Australia is the need to weigh the risk that an appeal may be rendered nugatory if a stay is not granted. Similarly, in both cases it is suggested that there is a preliminary assessment of the strength of the proposed grounds. Other factors such as the bona fides of the applicant and the competing rights of the parties are also relevant to the exercise of any discretion.
The draft Notice of Appeal prepared on behalf of the wife for the appeal to the High Court of Australia sets out the grounds of appeal as:
“1.The Full Court erred in upholding the orders of Strickland J made on 5 November 2009 on an interim or interlocutory basis in circumstances where the appellant was not afforded a proper opportunity to challenge or test contentious evidence adduced in support of the orders made and which she opposed.
2.The Full Court should have held that Order 1 of the Orders made by Strickland J on 5 November 2009 was not a proper exercise of the judicial power of the Commonwealth.”
In the applicant’s summary of argument it describes the special leave question as follows:
“The special leave question is whether an interim order made by a Judge of the Family Court of Australia (to the effect that a child of the marriage spend time with the father) affecting the rights and obligations of the parties to the marriage, based upon an acceptance of contentious evidence which was neither agreed or subject to testing by cross-examination by the party opposing the order, is a proper exercise of the judicial power of the Commonwealth.”
Paragraphs 29 and 30 of the summary of argument state:
“29.Although the wife’s counsel did not apply to cross-examine Dr [C] (in the face of rule 5.10), at the same time she expressly submitted that it was not appropriate for the Court to make an order of the kind sought on an interlocutory hearing where there had not been a proper testing of the evidence.
30.Rule 5.10 cannot justify departure from the requirements of the proper exercise of judicial power of the Family Court.”
The summary of argument concedes that the question concerning the proper exercise of federal judicial power was not before the Full Court. The submissions seek special leave on the basis that:
“Justices of the Family Court, the legal profession and litigants in that Court may have the benefit of an authoritative determination by this Court of the proper curial process to be followed in the hearing and determination of applications for interim orders in the Family Court affecting the substantive rights and obligations of the parties, included in contested proceedings for parenting orders.” (Paragraph 35).
In addressing the alleged merit of the appeal, counsel for the husband emphasised that the prospects of success were considerably reduced by what was described as a “novelty argument” that the interim orders required the cross-examination of the expert, even when the wife’s counsel did not seek that the expert be cross-examined at the interim hearing.
Whilst the submissions of the wife in relation to the grounds seeking leave to appeal to the High Court could be described as “unusual” or “novel” that is not to say that the appeal lacks any substance.

This is however one factor to be weighed when considering granting the stay.
One of the other factors is the risk that an appeal may be rendered nugatory if a stay is not granted. In this matter if a stay is not granted the interim order of Justice Strickland will continue until a further interim order is made discharging that order or until a final order is made.
The husband would therefore be able to make arrangements to see the child at his school, if he is still attending school at P School. (There was some dispute in the interim hearings in July 2010 about whether the child is now attending P School, it being admitted by the wife that she was having difficulty arranging for the child to attend school).
This is not a matter in which the order sought to be stayed is a transfer of property or the payment of monies. It is an ongoing order by way of interim order pending final decision.
The authorities place emphasis upon a successful litigant being entitled to the benefit of the decision and the requirement of exceptional circumstances. In this particular matter the husband has obtained judgments from a Judge at first instance and the Full Court of the Family Court of Australia which entitle him to spend time with his son in limited circumstances and on special conditions.
The order was an interim order in a matter in which the Court is attempting to list the matter for final hearing to determine when all the evidence has been properly tested what is in the best interests of the child.
Weighing carefully all the necessary criteria I am not satisfied that the wife has established a sufficient basis to override the loss to the husband, nor has she established the necessary exceptional circumstances.
The discretion of the Court should not be exercised to grant the stay.

Interim orders in relation to the child

As well as the application for a stay of the orders concerning the child pending the application for special leave to the High Court, the wife has filed applications in a case seeking specific orders that the child spend time with the father.
Orders made on 17 December 2007 and 14 November 2008 suspended until further order paragraphs 7, 8, 11 and 12 of the final consent orders of 5 March 2007 which provided for the husband to spend time with the child.
In paragraph 1 of the Second Further Further Amended Application in a Case the wife sought the discharge (inter alia) of paragraphs 3 and 4 of the order of 5 March 2007 but at the same time sought orders in paragraphs 5.4 and 5.5 which were very similar. No explanation was given for this.
The wife’s application of 15 June 2010 also sought the discharge of paragraph 5 of the consent order of 5 March 2007 which required her to consult with the husband before taking the child to any new therapist or medical advisor in respect of the child’s Autism treatment.
Paragraphs 14 and 15 relate to the wife removing the child from Australia upon giving certain notice to the husband.
There is insufficient evidence before the Court to justify making these orders on an interim hearing.
Initially, the wife sought orders that would provide for the child to spend time with the husband at X Café on the last Sunday of each month between 11.00 am and 3.00 pm on certain conditions including that one of her brothers be present during the time the husband spent with the child.
In the Second Further Further Amended Application in a Case filed on 15 June 2010 the wife now seeks orders:
“That all prior orders in relation to the child [S] born […] June 1996 be discharged save and except paragraphs 2, 6, 10 and 13 of parenting orders made by consent of the parties 5 March 2007.”
The Second Further Further Amended Application in a Case also sought orders until the final hearing of the matter for the child to spend time with the father:
“… at such times and in such circumstances as agreed between the parties and, in the absence of agreement, at the following times and in the following circumstances:
5.1in Adelaide or its environs; for an initial period of six months every third weekend of every calendar month on Saturday and Sunday from 11am until 1pm each day and after the initial period of six months on each third weekend of each month on Saturdays and Sundays from 11am until 4pm each day. The husband to provide notice to the wife not less than three days notice of his unavailability to spend time with [the child] unless in the case of emergency”
The application contained further detailed conditions and particulars of the proposed arrangements, including that one of the wife’s family, either Mr GC or Mr MC (described as family carers) remain in attendance during the times spent and if they were not available “another carer will attend with [the child] as nominated by the wife”. (See 5.6.2).
The husband opposed the orders sought by the wife. Counsel indicated he wished to maintain the orders of Justice Strickland of 5 November 2009 pending the final hearing. In particular, counsel indicated that the husband opposed the involvement of the mother’s relatives as supervisors of the time he spent with the child. The husband’s counsel emphasised the ongoing involvement of the mother’s relatives in the protracted proceedings before this Court and other Courts.
The wife filed affidavits of herself and the speech pathologists who assist the child at school, setting out their observations of the child and the events which occurred following upon the only occasion when the husband has spent time with the child at school pursuant to the orders of Justice Strickland, being 25 May 2010. (Affidavits of Mr M and Mr SH).
The wife asserts that the child reacted very poorly and was indeed seriously ill after spending time with his father at school on 25 May 2010.
The Independent Children’s Lawyer filed an affidavit on 28 June 2010 to which is annexed letters from the Acting Headmaster of the child’s school, the Chaplain of the school and the child’s Learning Support Teacher, which suggest that the child was happy and smiling in the company of his father on 25 May 2010.
The Acting Headmaster’s letter includes, “the meeting went remarkably well”.
In the affidavit of the husband filed on 30 June 2010 he sets out the history of correspondence between the parties’ solicitors in which there are attempts at making arrangements for the husband to spend time with the child. His affidavit indicates that he did not agree to any arrangements which involved the wife’s relatives supervising his time with the child because of the animosity between the husband and these “family carers”.
The husband says the wife’s application for discharge of the orders for the child to spend time with the husband is vexatious and oppressive because the wife is also seeking special leave in the High Court of Australia. He sought the dismissal of her Second Further Further Amended Application in a Case in relation to the child.
Counsel for the Independent Children’s Lawyer supported the continuation of the existing orders.
In relation to the proposed orders set out in the wife’s Second Further Further Amended Application in a Case, the Independent Children’s Lawyer’s counsel submitted that such an arrangement would only be likely to happen if it had the support of the wife. He did not support the wife’s relatives being the supervisors but proposed that if the time was to take place every third weekend it should be between 11.00 am and 3.00 pm every third weekend on the Saturday and the Sunday in the presence of either speech pathologists, Mr M or Mr SH, both of whom have been working with the child on school days.
The difficulty with this proposal was that neither the husband nor the wife could indicate whether Mr SH or Mr M would be available on weekends. Their normal employment is on week days. They had not been asked about their willingness or availability on Saturdays and Sundays.
Counsel for the Independent Children’s Lawyer submitted that an order providing for the child to spend time with the husband every third weekend on the Saturday and Sunday supervised by either Mr M or Mr SH would give the wife an opportunity to show that she was willing to facilitate the child spending time with his father.
Counsel for the Independent Children’s Lawyer emphasised that it was not the opinion of the Independent Children’s Lawyer that the husband’s time with the child required supervision, but that on an interim basis such an arrangement would alleviate the wife’s concerns.
In these interim proceedings the parties rely on the affidavits and reports filed but (as the Full Court of the Family Court of Australia said in its judgment concerning the appeal from Justice Strickland’s orders) none of the evidence has been tested or sought to be tested. Notwithstanding, the grounds of the wife’s application for special leave to appeal to the High Court of Australia, the wife’s counsel did not seek to call any of the witnesses before the Court to test their evidence.
Again (as the Full Court of the Family Court of Australia said in paragraph 71 of their judgment of 23 April 2010) the reality is that I did not gain the advantage which traditionally flows from seeing and hearing witnesses cross-examined.
One issue to be determined is whether it is in the child’s best interest for one of the wife’s relatives to be present during his father’s time with him or whether it would be in the child’s best interest to spend time with his father in the presence of one of the speech pathologists well known to him and with whom he has established a good relationship.
As indicated in the decision of Goode & Goode (2006) FLC 93-286 and subsequent decisions, the Court is required to consider the evidence before it on interim applications with a view to determining to the best extent possible what is in the child’s best interest.
The primary considerations to be taken into account when determining what is in the child’s best interests are the benefit to him having a meaningful relationship with both of his parents and the need to protect him from harm.
If arrangements can be made to protect the child’s emotional and psychological wellbeing whilst enjoying renewing his relationship with his father, this would be in the child’s best interest.
The wife’s proposal is to re-introduce the husband to the child but on condition that one of her relatives who assist her in caring for the child are present during that time.
One of the other factors under section 60CC to be considered is the willingness of the wife to encourage a relationship between the child and the father. Because of the child’s special needs, it is appropriate at this interim stage of the proceedings to ensure that any initial arrangements can be supported by the wife. The presence of either Mr SH or Mr M would provide the child with the benefit of a person with whom he has a regular, comfortable relationship and may therefore overcome any possible concerns of the wife.
As indicated previously the difficulty with this proposal is the fact that the availability of Mr M or Mr SH is unknown.
The other factors contained in section 60CC are not significant bearing in mind that the wife is offering an arrangement whereby the child regularly spends time with his father.
The final consent order of 5 March 2007 paragraph 2 provided “that [the child] live with the wife and that she be responsible for all decisions in relation to [the child’s] day to day care, welfare and development”.
Section 61DA states:
Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Section 61C states:
Each parent has parental responsibility (subject to court orders)
(1)Each of the parents of a child who is not 18 has parental responsibility for the child.
Note 1: This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D (2) for the effect of a parenting order.
Note 2: This section does not establish a presumption to be applied by the court when making a parenting order. See section 61DA for the presumption that the court does apply when making a parenting order.
Note 3: Under section 63C, the parents of a child may make a parenting plan that deals with the allocation of parental responsibility for the child.
(2)Subsection (1) has effect despite any changes in the nature of the relationships of the child's parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re‑marrying.
(3)Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
Note: Section may affect the attribution of parental responsibility for a child.
It appears therefore that each parent has parental responsibility for S. There is apparently no order providing for equal shared responsibility nor was the Court asked to make such an interim order.
The principle discussed in MRR v GR (2010) 263 ALR 368 may therefore not be directly applicable.
The Court must presume that it is in the best interests of the child for his parents to have equal shared parental responsibility when making any parenting order (see Section 61DA).
Section 61DA (3) states:
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
If the presumption applies in this matter the history of the litigation is sufficient to convince me that it would not be appropriate for the presumption to be applied when making these interim orders.
Considering the history of the matter, the proposals of each of the parties and the Independent Children’s Lawyer it is in the child’s best interest for the order of Justice Strickland of 5 November 2009 to remain in place and at the same time to provide for other arrangements which would enable the child to spend further time with his father in appropriate circumstances.
Further consideration may have to be given to other arrangements if neither Mr M nor Mr SH are available.
The Court has been attempting to list this matter for final hearing for a considerable period of time. Currently the matter is listed for final trial in November 2010. If however, the trial does not proceed at that time, it may be appropriate to reconsider the time that the child spends with his father, particularly after the child and his father have had an opportunity to re-establish their relationship.
On an interim basis it is therefore in the child’s best interest that specific orders be made for him to spend further time with his father, whilst at the same time not discharging paragraph 1 of the order of Justice Strickland of 5 November 2009.
The further interim orders in the child’s best interests are:
(1)S spend time with the husband in the Greater Metropolitan area of Adelaide for an initial period of six months every third weekend of every calendar month on Saturday and Sunday from 11.00 am until 3.00 pm each day on the following conditions:
(a)the husband provide the wife notice of not less than three days if he is unavailable to spend time with the child;
(b)the husband shall collect and return the child from and to the wife’s residence for the purposes of spending time with the child;
(c)the wife and husband forthwith use their best endeavours to seek the commitment of either Mr SH or Mr M to be present at handover and during the time the husband spends with the child
(d)subject to their availability and willingness to participate either Mr SH or Mr M be present at handovers and during the time the husband spends with the child pursuant to these orders PROVIDED THAT any costs associated with their attendance be met by the husband;
(2)The husband have telephone contact with the child once per week on Saturdays between 3.00 pm and 4.00 pm (Adelaide time) and that the child be at liberty to telephone his father at other times.
(3)If neither Mr SH or Mr M are available at the above mentioned times the husband shall have liberty to apply for further interim orders concerning his time with the child.
(4)If the final judgment concerning parenting orders for the child is not delivered before the six month period expires, both parties shall have liberty to apply for further interim orders concerning the child.
The other orders the mother sought in the Second Further Further Amended Application in a Case were either matters which would necessarily be dealt with during the final hearing or matters which are already covered by the obligations in the existing orders.

Family Consultant and expert’s reports in children’s issues.

By Application in a Case filed on 15 July 2010 (document 502), the wife sought inter alia the following orders:
“1.That the appointment of Dr [C] as the single expert witness be discharged.
2. That a Family Consultant who has a comprehensive understanding of and recent experience with Autism prepare a Family Assessment Report pursuant to s 62G of the Family Law Act to address the parties competing claims, with respect to parental responsibility, the residence of [the child] and the time that he is to spend with each of his parents.
3. That the Family Consultant be at liberty to consult with the parties and the child, the child’s treating general practitioner, therapists, family carers, Autism specialists and any other person that they consider relevant to complete the Family Assessment Report.”
At the same time on 15 July 2010 the wife filed an affidavit in which she set out her criticisms and concerns relating to Dr C and his previous reports. In the affidavit she concluded:
“22.I seek the appointment of an experienced Family Consultant who has a comprehensive understanding of and recent experience with Autism to prepare a Family Assessment Report of [the child] as soon as possible.”
Neither in the application nor the affidavit, did the wife or her solicitors provide the names of any such experts or particulars of any qualifications. After the issue was raised by me, the Independent Children’s Lawyer provided an affidavit to which is annexed the Curriculum Vitae of several experts.
The issues to be determined related to the appointment of an appropriate expert to assess, and prepare a report on, the child’s particular individual future needs and intellectual functioning and a further updated Family Assessment if one was to be prepared by someone other than Dr C.

Dr C was appointed as the independent single expert to prepare a Family Assessment Report pursuant to an order of Justice Strickland of 11 August 2008. Dr C was one of the names proposed by the wife at that time.
Dr C visited the child’s home and interviewed the parties at various times in October 2008 and September 2009. He has provided reports of 16 October 2008, 21 January 2009, 9 August 2009 and 16 October 2009.
The affidavit of the wife filed on 15 July 2010 sets out her criticisms of the expert’s reports. She says that she has “completely lost confidence in Dr [C]”.
Both the husband and the Independent Children’s Lawyer appear to accept the necessity of a further Family Assessment Report being prepared for the purposes of the final hearing. The husband opposes the appointment of a new expert and seeks that any further assessment be prepared by Dr C. Counsel for the husband points out that there has been no challenge to the qualifications of Dr C and that it is not appropriate simply to disagree with the conclusions of an expert in order to discharge his appointment.
Counsel for the Independent Children’s Lawyer indicated that the Independent Children’s Lawyer proposed a pragmatic approach on the basis that the appointment of another expert would hopefully encourage the proceedings being brought to an earlier conclusion.
Following upon the enquiries by the Independent Children’s Lawyer various experts were put forward by the Independent Children’s Lawyer. Taking into account the qualifications and availability of the experts those available for consideration were Dr C, Dr … and Associate Professor Y.
In relation to the preparation of further updated Family Assessment Reports the Court notes the qualifications and experience of Dr C together with his knowledge of the family and these proceedings.
It is correct to say that a single expert should not be disqualified because one of the parties is unhappy with the conclusions or the comments made by the single expert. Nothing in the material filed by the wife challenges the independence or expertise of Dr C. Rather she is upset by some of the language he has used and the conclusions which he has reached. This is not a basis upon which it is appropriate to discharge the single expert.
The appointment of another expert would also involve considerable extra cost to the parties and the Independent Children’s Lawyer because it would require fresh consideration of the history of the matter and the child’s background.
Taking all of the factors into account therefore the wife has not established that it is appropriate to discharge the appointment of Dr C. The Court will require an updated Family Assessment Report by Dr C to be prepared for the final hearing.
The Independent Children’s Lawyer and the husband propose that Associate Professor Y prepare a report for the Court in relation to the child’s future needs in relation to his intellectual functioning, in particular as it is related to Autism.
The wife objects to Associate Professor Y being appointed. The wife maintains that she is not independent because of donations made by the CE Trust (one of the Trusts in which the husband and wife have an interest) in 2002 to the Autism Research Unit for whom Associate Professor Y worked at the Flinders University of South Australia.
The wife also asserts that Associate Professor Y’s qualifications appear to relate to Autistic children of a younger age and not older children of S’s age.
The wife proposes that Dr DA prepare a report in relation to the child’s future needs.
Having considered the long and detailed qualifications of Associate Professor Y, in her Curriculum Vitae and the Curriculum Vitae of Dr DA, the Court is satisfied that Associate Professor Y is an appropriately qualified expert to prepare the report. The existence of a donation from the husband and wife’s trust in 2002 does not establish a lack of independence.
Associate Professor Y resides in and works in Adelaide. Dr DA lives and works from Queensland. Cost and convenience support the report being undertaken by Associate Professor Y.

Wife’s application for “interim costs”

The Application in a Case filed by the wife on 21 July 2010 seeks the following orders:
“1.That pursuant to sections 80(1) (h) and 117(2) of the Family Law Act 1975 within fourteen (14) days of the date hereof, the husband pay or cause to be paid to the wife’s solicitors Pederick Lawyers Pty Ltd, to be held in trust on behalf of the wife, the sum of three million eight hundred thousand (3.8M) dollars on account of interim costs of the wife in preparation of prosecuting her claim to the Trial.
2.That the hearing of this matter be expedited pursuant to rule 5.05(4) and the matter be listed to 23 July 2010 at 9.30 am.
3.The husband pay the cost of and incidental to this Application.
4.Such further or other order as this Honourable Court deems just and equitable.”
Counsel for the wife emphasised that the wife’s application was to obtain funds sufficient to pay for her legal costs to prepare for the trial and represent her at the trial.
At the hearing before me on 4 August 2010 counsel for the wife submitted that the wife sought an order that provided for the monies to be held in trust on behalf of the wife’s “interim costs”. However, it appears she sought monies for her solicitor and counsel to prepare the matter for, and to attend upon, final hearing.
After it had been raised at earlier interim hearings that the wife’s supporting material provided no information as to the basis of the amount sought by the wife, the wife’s solicitors filed an affidavit to which was annexed a schedule purporting to support the need for a further $3.8 Million.
The wife also filed an affidavit purporting to explain how she used the previous sums paid by the husband. In particular, the affidavit referred to monies paid by the husband pursuant to the order of Justice Strickland of 24 September 2008 which required the husband to pay the sum of $1 Million, the order of the Full Court of the Family Court of Australia of 14 September 2009 which required the husband to pay the wife another $4 Million and my order of 31 May 2010 which required the husband to pay the wife $325,000.
Counsel for the wife conceded on 4 August 2010 that the costs incurred by the wife included costs which had been incurred in relation to Supreme Court proceedings between the wife and her former solicitors and further proceedings in the AAT involving a Freedom of Information application brought by the wife. The future estimated costs included costs for the other proceedings. Counsel for the wife maintained that these proceedings were “intrinsically involved” with the Family Court proceedings between the parties and could therefore be treated as “something similar to disbursements”.
The schedules to the affidavit were not reliable evidence.
Part of the justification for the total claimed included the proposed charging of $23,375 per day for 23 days of the anticipated final hearing. This was apparently based on two senior counsel, one who would charge $7,500 per day and the other $6,500 per day, $4,000 per day for junior counsel and $3,750 per day for solicitor’s fees for the 23 days. ($21,750 not $23,375).
The summary also included specific calculations for the preparation of documents, proofing of witnesses as well as ongoing claim for solicitors and paralegals/clerks at a cost of $150,000 per month for 5 months.
Counsel for the husband opposed any order for any further payment of monies from the husband to the wife. He submitted in effect that it was an attempt to have my decision of 31 May 2010 re-considered when the wife had appealed the decision of 31 May 2010 to the Full Court of Australia. That appeal is still pending.
The wife was not present before the Court on 4 August 2010. Mr Bartfeld, counsel for the husband drew the Court’s attention to a letter sent to the wife’s solicitors by the husband’s solicitors on 29 July 2010 suggesting that counsel for the husband would be seeking leave to cross-examine the wife in relation to financial issues at the hearing before me.
Mr Bartfeld distinguished this case from other cases where orders had been made in relation to another party’s legal costs which related to cases where the wife had little or no assets. Mr Bartfeld highlighted the fact that the wife had recently received $5 Million but now claimed that she had no funds to pay for her legal representation. Mr Bartfeld referred to the spending as reckless. He highlighted the large amount which remained unexplained.
Counsel for the husband maintained that the estimates by the wife’s solicitors should be seen as unreliable based upon previous estimates the wife’s solicitors had provided to the Court of likely future costs. This criticism needs to be seen in the context of the first affidavit provided by Ms Pederick in relation to explained costs in 2008. This was at a time when the solicitor had only recently been instructed as the solicitor for the wife.
There are however inconsistencies in the amounts which it is claimed the wife required for legal costs for various items. I accept the criticism that these amounts have been increasing without clear explanation.
In the affidavit of the wife’s solicitor filed on 21 July 2010 there is a schedule of estimated costs to a trial hearing. This includes counsel fees for pending appeals and actions in other Courts, which total $510,000.
Under a separate heading of “Other Counsel Fees” is the item “Counsel and two Queens Counsel proofing of witnesses including experts and shadow experts (one week allowed) $100,000”. There is also “General attention and preparation for trial; reading briefs, conferring with solicitors (4 weeks) $537,625”. This is in addition to “Advice on evidence, settling and matters incidental to the preparation of trial affidavit of the wife as to both children’s matters and property and spousal maintenance and child support (QC and Counsel $300,000)”.
In relation to the trial the schedule includes, “Queens Counsel x 2 and Counsel for 23 day trial on children and financial matters at $23,375 per day at 23 days $537,625”.
As previously indicated in paragraph 159 there was no breakdown of the figure of $23,375 per day until I asked counsel for the wife who then indicated that the figure in fact was $21,750 and already included $3,750 per day for the solicitor’s fees.
In summary therefore the information supplied by the wife’s solicitors concerning the expected fees of $3.766 Million was unreliable.
The schedule already included the $75,000 which the Independent Children’s Lawyer sought be paid.
The Court does not accept that it is reasonable for two Queens Counsel to attend to proofing witnesses, settling affidavits and being present in Court together with junior counsel and instructing solicitor.
The trial is set to commence on 8 November 2010. The solicitor’s preparation work would only occupy three months, not five. The wife has already spent an enormous amount of money paying her solicitors to attend to various matters in preparation for the final hearing.
Counsel for the husband highlighted the other assets in the control of the wife, including the home in Adelaide and her Statement of Financial Circumstances which disclosed a recent purchase of another motor vehicle, ownership of a luxury vehicle worth $130,000 and another vehicle worth $600,000.
Before making an order pursuant to section 117 the factors set out in s117(2) require consideration.
It is clear from the husband’s documents that he has substantial funds available to him and that, compared to the wife’s current financial circumstances, (as she alleges) he is in a far superior position.
Various decisions of the Full Court including Strahan & Strahan (Interim Property Orders) [2009] FamCAFC166 and Zschokke & Zschokke (1996) FLC 92-693 confirm that the Court has the power to make an order directing payment by one party to the other to enable the other party to meet the costs of expected litigation. Relevant criteria to be considered include whether the estimate of costs is reasonable and whether the husband has funds available to meet such an order. The High Court of Australia in the matter of Breen & Breen (1990) 65 ALJR 195, dismissed the appeal from the decision of the Full Court. In that case it was claimed that the “wife was impecunious”. The husband had ample means and his financial affairs were complex. The findings of the Court were that it was appropriate to allow the wife to have adequate legal representation and for the husband to provide her with the means of doing so.
It is necessary when considering what is just and equitable to consider the past actions of the wife. Previous indications before this Court (including the Full Court of the Family Court) suggested the wife would use monies provided by the husband to ensure that she was appropriately represented at the final hearing need to be taken into account.
The Court is not satisfied that the amounts claimed as reasonable future costs for the wife are justified.
The wife alleges that she does not have sufficient funds to pay for legal representation and that there is a risk that she will be unrepresented at the final hearing.
The husband, through his counsel, foreshadowed an application to permit him to sell assets if he was ordered to make payment to the wife. The affidavit of the husband filed on 4 August 2010 says in paragraph 9(k):
“I am not in a position to make the payment sought by the wife. I refer to my Financial Statement filed on 24 March 2010 which sets out my financial position at that time. Since then little has changed. The majority of the assets remain the same, however my cash position has deteriorated by some $1,300,000 from the sum of $3,800,000 to the current sum of approximately $2,500,000.”
He then sets out in paragraph 9(l) his current bank account balances with figures being approximations, giving particulars of eight accounts totalling in all $2,529,000.
The husband also submits that the wife has at her disposal several motor vehicles including a vehicle which was valued in 2007 and 2008 at $600,000 (see paragraph 14 of his affidavit).
The husband maintains that he needs the $2.5 Million in his bank accounts to “maintain the current assets”.
The affidavit material before the Court however clearly indicates that the husband has control over a substantial portion of the assets to be taken into account and has the capacity to obtain sufficient funds to meet any order of the Court.
Any order the Court might make to enable the wife to pay her solicitors would be on the basis that such sum would be brought into account in the overall property settlement final orders. If all of the amounts paid by the husband to the wife exceed her entitlement, then such payment could be recovered from assets otherwise in control of the wife, such as the real estate and the vehicle.
One of the amounts which the wife requires is the sum of $75,000 to pay to the Independent Children’s Lawyer.
It is not appropriate to require the wife or the Court to accurately calculate the amount required for future representation. However, taking into account all the material before the Court, and, in particular the considerable sums which the wife says she has already spent on legal costs in this matter, it is just and equitable that the wife receive the sum of $825,000 being $750,000 for her solicitors and counsel fees and $75,000 for the Independent Children’s Lawyer.
Payment of a further sum of $750,000 to the wife’s solicitors would provide significant sums for the preparation of the matter for trial by solicitor and counsel and for the final hearing before the Court, together with any necessary further interim hearings.
Such payment will be made on the basis that this sum will be taken into account in final consideration of the property settlement proceedings. The funds are to be paid into an interest bearing trust account in the name of the wife’s solicitors to be used only for the Family Court of Australia proceedings. At least $300,000 should be set aside for counsel and solicitor to attend the final hearing.

Independent Children Lawyer’s Costs

The Independent Children’s Lawyer followed directions from the Legal Services Commission to require the payment of her anticipated costs of the trial in advance. Each of the parties have been asked to pay $75,000 to the Independent Children’s Lawyer on the account of the expected costs. The husband has paid this amount. The wife claimed that she was unable to find the money to make the payment.
The wife refused to concede that the Independent Children’s Lawyer could use the husband’s funds for her costs before she received any payment from the wife. Counsel for the wife said the wife refused to agree to this arrangement because the wife perceived this would somehow provide the husband with some sort of control over the Independent Children’s Lawyer.
The Court does not accept that there is any basis for any such perception by the wife. Counsel for the wife was unable to provide the Court with an appropriate explanation for her attitude.
The Court has indicated that orders will be made for the husband to provide the wife with monies, including the $75,000 sought by the Independent Children’s Lawyer.

Further injunctions restraining the husband from dealing with assets

Initially the wife filed an Application in a Case seeking orders that the husband be restrained from selling, encumbering or otherwise dealing with any assets held by him personally or on his behalf or for his benefit, other than the assets particularised in the paragraph 2 of the order of Justice Strickland dated 27 July 2007. Following comments from me in open Court, the wife filed an Amended Application in a Case adding (inter alia) the words “save in the ordinary course of business”. Following further comments from the Bench, the wife filed a Further Amended Application in a Case on 2 August 2010 which then read:
“1.That until further Order the husband be restrained and an injunction be granted restraining the husband from ~~save in the ordinary course of business~~ selling, transferring, encumbering, assigning, disposing of, leasing, pledging or entering into any agreement concerning the ownership of, liquidation, or otherwise dealing with any assets held by him personally and/or held on his behalf or for his benefit within companies/trusts and/or by third parties, ~~other than the~~ including those assets particularised in paragraph 2 of the Order of Justice Strickland dated 27 July 2007, SAVE in the ordinary course of business or to meet his reasonable daily living expenses, without the wife’s written consent having been first obtained.”
On 7 July 2010 the husband filed a response to the application in a case seeking that the wife’s application be dismissed and that the wife pay his costs. At the same time he filed an affidavit responding to the wife’s first affidavit in relation to the injunction sought and annexing a letter from the husband’s solicitors to the wife’s solicitors of 30 June 2010 enclosing a draft order to which the husband was prepared to agree. That order provided that until further order the husband would be restrained from selling, encumbering or otherwise dealing with certain assets, except in the ordinary course of business. Those assets included the husband’s interest whether legal or equitable in any of his interests in the companies and trusts and entities valued by Ms E in her valuation reports dated 16 October 2008 and 28 November 2008. It also included the husband’s interest in AW and EN entities as well as “the husband’s interest in any real estate in Hong Kong, Malta, Switzerland, Australia and Austria without first giving the wife twenty-eight [28] days notice in writing of his intention to do so”.
At the hearing before me on 4 August 2010, counsel for the wife was unable to provide the Court with any explanation as to why any possible claim by the wife for final property settlement orders would not be protected by such an order.

The only reference counsel could make was to the possibility of the wife proving that the husband has other assets not yet disclosed by him.
The significant value of the assets to which the husband refers in his proposed order will in any event provide more than sufficient protection for the wife’s possible claim.
The orders therefore proposed by the husband, being the draft orders annexed to document 500 are therefore appropriate, just and equitable.

I certify that the preceding two hundred (200) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate:

Date: 13 August 2010