TADEUSZ & TODD

[2018] FamCA 422

FAMILY COURT OF AUSTRALIA

TADEUSZ & TODD [2018] FamCA 422

FAMILY LAW – CHILDREN – wife seeks to be able to travel internationally with child for one week of school holidays – opposed by the husband on the basis that it may cause upheaval – no security risk issues – order made.  Application by the husband for adjournment of that proposed order on the basis of natural justice to enable him to file material – application for adjournment of that proceeding declined on the basis that it would be futile in relation to the proposed orders.

FAMILY LAW – PROPERTY – where there is a dispute between the parties about who controls the sale of a property in the name of the wife alone but it is agreed that certain renovations be done first – where the property is the subject in favour of the wife of an exclusive occupancy order but also there are intervention orders precluding the husband from attending – where the wife should have sole conduct of the sale subject to providing the husband regular information.

FAMILY LAW – PROPERTY – where the wife opposes the husband’s application for immediate division of assets – where the wife’s position is that she needs the money for the purposes of renovation and various living expenses – where the husband says that he has already spent $50,000 of the partial property settlement on legal fees and living expenses and has no money – where there is not sufficient evidence for the court to be satisfied that it would just and equitable to make the order – order declined.

FAMILY LAW – PROPERTY – discovery – where the parties seem to acknowledge there are absolute obligations but require specific orders – where some orders are made but others are declined on the basis of the agreement that they will be fulfilled.

Family Law Act 1975 (Cth)

Strahan and Strahan (interim property orders) [2009] FamCAFC 166

APPLICANT: Mr Tadeusz

RESPONDENT: Ms Todd

FILE NUMBER: MLC 1947 of 2018

DATE DELIVERED: 13 June 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 6 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hall

SOLICITOR FOR THE APPLICANT: Gadens Lawyers

COUNSEL FOR THE RESPONDENT: Mr Thompson

SOLICITOR FOR THE RESPONDENT: Melbourne Family Lawyers

Orders

1. That pursuant to s 65Y of the Family Law Act 1975 (Cth), the child X born … 2007 is permitted to travel internationally to New Zealand for the July 2018 school holidays and for that purpose, to the extent that the husband is currently the holder, the child’s passport be released forthwith to the wife for that purpose.

2. That each party be at liberty to enrol the child in a school of their choice but on the understanding that the school is advised that the enrolment is an expression of interest and upon an offer for a placement being made, the offer will only be accepted if both parties reach agreement and failing joint agreement, be subject to order of the court.

3. That by way of disclosure, by 22 June 2018, the wife provide to the husband the documents referred to in paragraph (3) in the husband’s proposed minute and each party otherwise comply with their obligations for disclosure as required by the Family Law Rules 2004.

4. That the property at B Street, Suburb C be placed on the market for sale on the following terms and conditions.  The wife shall have the sole conduct of the sale but she is to report through the relevant solicitors the following on a monthly basis:

   (i)The renovation works completed to that date;

   (ii)The costs of the works incurred and paid; and

   (iii)The source of funds used to pay for the works.

5. That the parties agree upon the terms and conditions of the sale and failing agreement by order of the court.

6. That upon the completion of the sale of the Suburb C property, the proceeds be applied as follows:

   (a)       First, to pay the costs, commissions and expenses of the sale;

   (b)       Secondly, to discharge the mortgage encumbering the said property;

   (c)Thirdly, in payment to each party of the sum of $250,000 by way of partial property settlement; and

   (d)Fourthly, the balance to be held in an interest-bearing trust account on behalf of the husband and the wife by the solicitors for the husband pending further order of the court or agreement of the parties.

7. That the interim orders of the husband contained in his application in a case filed 9 May 2018 and the response thereto filed by the wife on 1 June 2018 are otherwise dismissed.

8. That in the event that either party seeks costs arising out of these orders, any written submission be filed by no later than 4.00pm on 20 June 2018 and any reply thereto be filed and served by no later than 14 days later and any such application be determined on the papers and submissions in chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tadeusz & Todd has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1947  of 2018

Mr Tadeusz

Applicant

And

Ms Todd

Respondent

REASONS FOR JUDGMENT

1. These are controversial proceedings arising out of the marriage between Mr Tadeusz (“the husband”) and Ms Todd (“the wife”).  The matter was listed in the Judicial Duty List on 6 June 2018 and after hearing brief arguments from both parties, I reserved judgment and indicated I would give orders as quickly as possible.  These are the reasons explaining the relevant orders. 

2. The husband’s application was filed by way of application in a case on 9 May 2018.  He proposed a raft of orders including partial distribution of property, sale of shares, the undertaking of renovations on the parties’ former home at Suburb C, the Suburb C home sale and the like.  In support of his application, the husband relied upon two affidavits and a financial statement.  He also relied upon an affidavit of his solicitor to indicate that the firm was not prepared to act without some security for payment of their legal costs and the nature of those costs. 

3. Counsel for the husband produced a minute of proposed orders and that is the document from which I am working because both parties urged the same type of orders.

4. The wife sought additional orders when she filed a response on 1 June 2018.  Apart from opposing the orders sought by the husband, she proposed that the court deal with parenting issues including that she be permitted to travel with the parties’ child the child (aged 11) to New Zealand during the school holidays.  The drafting of the order was perhaps infelicitously undertaken because it did not say which school holidays but counsel for the wife indicated that it was the July school holidays.  There is a specific problem with that because the husband sought an adjournment of the application to 31 July being the next available Judicial Duty List date and if that order was made, the wife would miss the relevant holidays.  The husband’s position was that she could always go in the September holidays.

5. There is a second issue that the wife raised concerning her desire to have sole parental responsibility in respect of educational issues and that the parties do whatever is necessary to enrol the child at a private college named in the application.  In respect of both the travel to New Zealand and the school, the husband opposed the making of the orders because he had not had an opportunity to respond by providing evidence as the documents were only served on the Friday prior to the Wednesday when the matter was heard. 

6. I consider that the husband’s application to adjourn the parenting proceedings is futile because even if he did present evidence as he apparently desires to do, it would not advance the issue much at all.  I pressed the husband’s counsel to explain to me what the evidence would be and why there would be opposition to the international travel and, at its highest, it was suggested that there had already been an upheaval in the child’s life and there may be more if the expert who is currently preparing a report indicates that there should be a normal relationship between father and child and as such, there were more pressing issues.  When I pressed further, counsel for the husband indicated that there may also be questions about the wife’s alcohol consumption and the fact that the husband would pursue orders for the wife to be in substantial attendance.  In my view, even if that evidence was before the court, it would do little to assist the court in circumstances where the wife has been the primary person responsible for the child’s care just by virtue of the unfortunate circumstances that everyone finds themselves in and there has been no specific injunctive order sought of that nature to date.

7. According to counsel for the wife and as indicated in her material, she has New Zealand cultural roots (apparently so does the husband) and therefore the child is entitled to the benefit of that exposure.  The wife asserts that the child’s grandfather, who is of considerable age, is now beginning to or indeed already does, suffer dementia and she desires to take the child to see him before it is too late.  As I observed at the time, such an order sounds more like a benefit to the grandfather and/or the wife rather than the child. 

8. International travel is a fact of life these days and children who can have that benefit should be permitted to do so particularly where there is no indication that it prejudices the time that the other parent has.  As I understand the evidence, the husband currently sees the child under a supervised arrangement and there is little doubt that the holiday arrangement can be manoeuvred around that commitment.  In addition, there seems to be no reason why the court would be concerned about the wife returning with the child.  Counsel for the husband observed that the wife currently has an application before the court for international relocation of the child to New Zealand but it would be unlikely in my view that the wife would prejudice that application by going to New Zealand and refusing to return.

9. It is unnecessary for me to deal with the authorities all of which point to the question of the assessment of risk in circumstances where it is well known that New Zealand is a signatory to the Hague Convention.  In my view, this is not a case in which the court should be concerned about any “upheaval” to the child nor should it be distracted by an assertion that there are “more pressing issues”.  When the wife sought the husband’s permission to go to New Zealand, his response was obtuse.  Although he made it clear that he would not consent, he said that he was seeking legal advice about the matter.  None of those matters seem to me to be child-focussed and in the circumstances, I see no reason that would give rise to a risk of the child’s non-return and thus, why the child should not have the benefit that all other children who are lucky enough to be able to travel internationally should have.  I propose to make an order that the child have permission to travel internationally in the company of the wife.

10. The school enrolment issue is equally simple.  It is not suggested that the wife should have the sole responsibility for making the decision as to where the child attends school but rather that each party should be at liberty to enrol her and when the appropriate time comes and an offer is made, the determination of whether or not that school is the appropriate one can be made.  Until such time as the court orders otherwise, parents have the responsibility for making decisions about the future education of their children.  The dispute about the New Zealand travel gives me little confidence that there will be agreement between the parties which is child-focused.  In those circumstances, I consider it is appropriate for the child to be enrolled at least at this stage where the wife wants her to attend and to the extent the parties cannot agree on that or any other school in the future, if an offer is made, the court will have to determine the question of parental responsibility rather than the question of attendance at a particular school.  In the circumstances, orders should be made.

11. I turn then to the contentious issues as between the parties concerning financial matters.  It is significant to start in this case with the fact that on 1 March 2018, the parties attended represented by legal practitioners before Senior Registrar Field and at which time, consent orders were made.  Those consent orders included provisions that the husband be paid $50,000 “to be categorised” by the court.  That sought of order was also proposed by counsel for the husband and whilst I have no doubt such orders are often made, I question what power there is for the court to simply shrug its shoulders and say the problem of the exercise of the proper power can be determined at some stage in the future.  When I pressed counsel in this case for what power was proposed to be exercised here, he eventually said that it was a partial property settlement.  Counsel for the wife observed that the husband has already had $50,000 however, the order which the parties drew in March 2018 did not describe that as a partial property settlement but rather that it be characterised in the future.  This is a good example of where the court is left confused as to exactly what the parties are doing.

12. The same orders in March provided that the wife was to have the sole use and occupation of the property at B Street, Suburb C.  It is now common ground that that property is to be sold.  The parties cannot agree on the completion of the renovations of that property, who is to have the conduct of the sale, nor what is to happen to the proceeds save that both agree that a distribution of $250,000 can be made to each of them at that particular time.

13. The parties also dispute issues of discovery and I shall turn to those in a moment but it is also relevant that in the March orders, each of the parties was required within seven days to serve upon the other a list of documents that they wished to see.  Obviously, that has not satisfied the wife and the parties are back before the court again.

14. In addition to those orders, it seems (at least from the wife’s perspective) there is some relevance in an intervention order made by a magistrates’ court on 30 April 2018 which extends to servants and agents of the husband restraining him from attending at the home. The wife already has exclusive occupancy under the March orders (presupposing that order is not invalid by virtue of the subsequent intervention order) but it seems that both parties agree that there are mutual orders. Whatever is the case however, when the intervention order was tendered, it became clear that it makes provision for orders under the Family Law Act to override or at least extend, the capacity of the parties to do things that are otherwise caught by the intervention order.

15. Further by way of background, but only going to the issue of credibility, counsel for the wife pointed to the fact that the husband has a drug usage problem.  That is denied by the husband.  However, counsel for the wife produced a drug analysis document indicating that the results showed that the husband had tested positive for cocaine.  It seems that the test was done on hair follicles.  The relevance of this is that the husband swore in his affidavit prior to the drug analysis being available to the wife that he had not used cocaine since December.  From the wife’s perspective, the drug analysis document shows that the husband lied in his affidavit.  From the husband’s perspective, he says that what he told the court in the affidavit is true and that the drug analysis shows that the hair follicle test goes back as far as December and can be explained by what he took in December.  Looking at the analysis document, it seems to me that both versions are open as it is not clear.  In my view, I would not be prepared to make findings in relation to other matters based upon the credit issue urged by the wife.

16. I turn then to the contentious issues.

17. The husband seeks an order that from the Commonwealth Bank offset account, the sum of $15,000 be paid and that the wife sell 4061 Wesfarmer shares registered in her name and that the proceeds be divided.  This order was opposed by the wife.  As I have earlier indicated, it was finally conceded by counsel for the husband that this was proposed as a partial property settlement order.  It is said by the husband that he has no reserves and has spent the $50,000 that he received from the March orders on legal fees and living costs leaving him bereft of funds.  That is a problem for him if he desires the retention of lawyers.

18. There is no application for spousal maintenance before the court and as I observed at the time, this dispute is about capital.  Counsel for the husband pointed to a list of assets which he says totals more than $3 million in equity which is to be divided between the parties.  It is common ground however that the home is in the name of the wife alone.  It is not clear to me why that is the case.  To compound matters, the husband does not set out in his initiating application what orders he seeks.  Counsel for the husband inquired whether the court was concerned about the capacity to recover funds in any final property settlement and whilst that is an issue in circumstances where the husband unashamedly says that he is going to spend the money on living expenses, that is not the case here.  The property which seems to be the most valuable may be divided but I do not know on what basis.  The evidence that would found a property application is contentious and unclear and I am unable to make findings about it.  All of those matters go to the question of whether or not the court out to exercise its discretion in making property orders which as the Full Court in Strahan and Strahan (interim property orders) [2009] FamCAFC 166 said, whilst there is no doubt that s 79 is generally seen as a once only provision, there is no reason why in specific circumstances, interim orders could not be made. In my view, this is not a case where I should guess that the husband is entitled to a share in the Commonwealth Bank offset account or indeed the Wesfarmer shares.

19. The wife’s position was that she earns $120,000 gross per year and pays the mortgage expenses associated with the home in Suburb C.  She has $160,000 not only in shares but also in cash but by the time the renovations are taken into account and mortgage payments are made to protect the asset interest, there is little left.  The husband is currently have supervised time with a paid supervisor at $190 per fortnight but that too is being paid by the wife.  There are currently counselling expenses of $19,000 per annum but subject to a rebate for which the wife is also responsible.  The wife’s position is that to use her counsel’s words “she is strapped” and it was his submission that in the circumstances it was not practical to give the husband half of that money.  In all of the circumstances with such a contentious dispute but otherwise an agreement that upon the sale of the home, $250,000 can be paid to the husband, I see no reason why the proposed orders for the shares and the offset account are necessary.  I decline to make those orders.

20. The husband proposed orders about providing documentation to his solicitors by the wife in respect of the sale of any shares and as disclosure is not only absolute but ongoing, I see no reason why that order should not be made.  All parties are well aware of the rules of the court.

1. It was common ground that the disclosure set out by the husband should be made but with an extension of time for 15 June 2018.  In my view, having regard to the fact that that concession was made at the bar table, it is unnecessary for me to make the order.  However, if it turns out that those documents are not provided by 22 June 2018, enforcement by way of specific order should follow. 

2. The husband then sought an order that the wife provide a response to his queries contained in letters dated 4 May 2018.  As those too were not contentious, I would expect that that could be organised between the lawyers without further requirement of the court and in particular the making of orders.

3. The husband then sought an order that the wife “account for the expenditure” of her funds in a Commonwealth Bank account between February 2018 and June 2018.  Whilst the rules clearly provide that the court can make orders about information as distinct from just the provision of documents, the complaint by the wife was that such an order meant that she would have to go through every entry and explain where the money went.  Counsel for the husband said that he was prepared to limit that to a particular sum but in my view, the discovery should be undertaken first and if the husband requires explanations for specific sums, he can make formal request for those items.

4. The husband then sought an order that a single expert be appointed to report on what work is required to be done at B Street such that the property can then be sold.  There is no dispute from the wife that the property should be sold but she objects to the appointment of an assessor on the basis that the work needed to be done is known and she indeed is getting on with it.  There is an agent already agreed between the parties in Suburb C and they were content for that agent to have some control over how the mode of sale and marketing campaign was to be undertaken.  I see no reason in the circumstances why the court should be dragged into a dispute about the appointment of a single expert at this stage particularly in relation to renovations.  There is not sufficient evidence to satisfy me that the court needs to descend to the detail of having an expert tell the parties what their selling agent can presumably already do.  I decline to make that order.

5. The husband then sought an order that the property be placed on the market for sale and the only orders that the wife disputed was the role of the selling agent and that she have sole conduct of the sale.  I declined to make an order which would delegate the responsibilities for listing details, fixing reserve price, working out the mode of sale and the marketing campaign but if the parties cannot agree, they can make application to the court.  In respect of the conduct of the sale, counsel for the wife pointed to the fact that there was already an order for exclusive occupancy, the wife was the sole registered proprietor and then there was the intervention order.  It is not clear to me what role the husband would be expected to play apart from the fact that he will have a say in that sale process and in the event of a dispute, as I have already observed, the matter can come back to court.  In the circumstances, I see no reason why the wife should not have sole responsibility for the conduct of the sale and in the event of a problem the court will decide that issue in the future. 

6. The parties then anticipated what might happen in the event of such a sale.  The husband sought an order that they join in seeking the early release of the sales deposit and then those proceeds be divided equally and given to their respective family law solicitors.  The wife opposed that order.  I am conscious that there are legal considerations involved about which the evidence is unclear and in the circumstances where there is an agreement that each party receive $250,000 upon the settlement of the sale, I see no reason why monies should be released early despite the husband’s assertion that he has already spent the money that he had and is bereft of funds at the moment.  To the extent that he needs money to live on, that can be done by way of spousal maintenance if he considers that is an appropriate application to make.  I see no reason to make an order that the court force the parties to do something by way of mandatory injunction about which there may be controversy.

7. Finally, the parties agreed on who should be the solicitor to conduct the conveyancing.  By arrangement with that solicitor, funds can be released early if they reach agreement.  If they do not, it seems logical that they have to wait.  Otherwise there is agreement between the parties about what is to happen to the proceeds of sale including the fact that each of them will take $250,000 by way of partial property settlement.  The balance of funds will thereafter be held by solicitors for the husband pending further order of the court. 

8. The husband finally sought an order that the wife’s response be adjourned to 31 July 2018.  As I have already dealt with those matters, I see no reason why there is a need for that particular part of the proposal of the husband to be made.  If there is already an allocated date and/or there are parenting issues pending, they can be dealt with in the senior registrar’s list by arrangement between the solicitors and that registrar.

9. To be abundantly clear, the wife is willing to have the husband’s expert (if so appointed) to inspect the Suburb C property and she agrees to provide copies of whatever contracts there are in relation to the renovations.  I do not understand why the court is being required to make that order having regard to the fact that it is common sense.  If the wife does not give that written authority bearing in mind the intervention order, the husband can come back to court and seek that order and no doubt she would be at risk of costs.

10. The wife also sought an order that the husband withdraw his caveat encumbering the Suburb C property.  No doubt as the parties have already agreed on a common conveyancing lawyer, that ought not be problem.  I do not see any reason why that order should be made at all.  Again however, in the event that the husband for reasons best known to him declines to make such an order, the matter can come back to court.

11. Finally, the wife agreed to report to the husband through his solicitors on a monthly basis as to the completion of the various renovations, the costs of those works and what has been paid and the source of funds that she has used.  That was an order sought by the wife against herself.  I see no reason for that order to be made at all on the basis that it is part of the discovery process that as I have already said is ongoing.  I decline to make that order. 

12. Accordingly, I make the orders as otherwise pronounced.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 13 June 2018.

Associate: 

Date:  13 June 2018