FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Vaughan & Vaughan (No 2) [2024] FedCFamC2F 371
File number(s): ADC 5154 of 2022 Judgment of: JUDGE DICKSON Date of judgment: 27 March 2024 Catchwords: FAMILY LAW – CHILDREN – Interim proceedings – Five children aged between 15 and 11 years – Three of the children have special needs –Where the wife seeks to be solely responsible for the engagement of counselling, or therapeutic or psychological treatment for the children – Where the wife seeks injunctions restraining the father from contacting the children’s and the wife’s school carers and medical providers – Where the husband opposes the wife’s application – Consideration of Child Impact Report – Future management.
FAMILY LAW – PROPERTY – Interim proceedings – Where the wife seeks a partial property settlement in order to pay her legal costs – Where the wife seeks for two properties to be sold forthwith – Where the husband opposes the wife’s application but consents to the eventual sale of one of the properties – Issues relating to disclosure – Future management.
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 64B, 68B, 79, 80, 114. Cases cited: Bennett & Bennett [2001] FamCA 462
Candle & Falkner [2021] FedCFamC1A 102
NHC & RCH [2004] FamCA 633
EJK & TSL [2006] FamCA 730
Felice & Felice [2011] FamCA 162
Flanagan & Handcock [2000] FamCA 150
Gabel & Yardley [2008] FamCAFC 162
Goode & Goode (2006) 36 Fam LR 422
Hedlund & Hedland [2021] FedCFamC1A 84
Medlow & Medlow (2016) FLC 93-692
Sresbodan & Stresbodan & Ors [2013] FamCA 480
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466
Trevi & Trevi [2018] FamCAFC 173
Wenz & Archer (2008) 40 Fam LR 212
Division: Division 2 Family Law Number of paragraphs: 120 Date of hearing: 7 March 2024 Place: Adelaide Counsel for the Applicant: Mr Tredrea Solicitor for the Applicant: Camatta Lempens The Respondent: Appearing self-represented Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia ORDERS
ADC 5154 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS VAUGHAN
Applicant
AND: MR VAUGHAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
27 MARCH 2024
UPON NOTING THAT
A.The Court directs that all issues as to valuation any outstanding disclosure will be attended prior to the Conciliation Conference. The parties are hereby advised that costs orders may be made in the event the matter is not able to proceed on the date allocated for this conference in these Orders.
B.Prior to the Conciliation Conference, the lawyer for each represented party must provide to his or her client, and to each other party, a notice indicating whether the party is in receipt of legal aid funding and, if not, providing particulars of:
i.The total costs and disbursements incurred by the party in the proceeding to date;
ii.An estimate of the anticipated costs expected to be incurred in each remaining stage of the proceeding; and
iii.An estimate…
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- Vaughan & Vaughan (No 2) [2024] FedCFamC2F 371
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- [2024] FedCFamC2F 371
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CaseChat Overview and Summary
The court directed that all issues concerning the valuation of assets and disclosure be resolved prior to the conciliation conference, with potential costs orders for non-compliance. Regarding the children's care, the court appointed a paediatrician to oversee the children’s medical needs and granted the husband the right to attend the paediatrician's appointments, provided he covered all associated costs. The court also restrained both parents from contacting the children's psychologists and medical providers outside the court's orders. In terms of property, the court ordered the husband to pay a partial property settlement of $50,000 to the wife’s trust account by 26 June 2024. If the husband failed to comply, the court mandated the sale of one of the properties, with proceeds allocated towards sales costs, mortgage discharge, and the property settlement. The court also outlined specific procedural steps, including the exchange of documents, preparation of financial statements, and attendance at a conciliation conference.
The court dismissed the wife’s application filed on 23 October 2023 and the husband’s response filed on 17 January 2024. The proceedings were adjourned to 7 August 2024 for further directions, including the consideration of a trial listing or transfer to another division of the court. The form of the order was subject to review for minor errors or variations.
Orders
Orders of the court
ADC 5154 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS VAUGHAN
Applicant
AND:
MR VAUGHAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
27 MARCH 2024
UPON NOTING THAT
A. The Court directs that all issues as to valuation any outstanding disclosure will be attended prior to the Conciliation Conference. The parties are hereby advised that costs orders may be made in the event the matter is not able to proceed on the date allocated for this conference in these Orders.
B. Prior to the Conciliation Conference, the lawyer for each represented party must provide to his or her client, and to each other party, a notice indicating whether the party is in receipt of legal aid funding and, if not, providing particulars of:
i. The total costs and disbursements incurred by the party in the proceeding to date;
ii. An estimate of the anticipated costs expected to be incurred in each remaining stage of the proceeding; and
iii. An estimate of the likely duration of the final hearing and the total anticipated costs and disbursements expected to be incurred for the remainder of the proceeding.
C. The Confidential Outline of Case (Dispute Resolution) is a confidential without prejudice document prepared for the purpose of the Conciliation Conference only. It is not to be filed or kept with the Court file after the conclusion of the Conference.
THE COURT ORDERS BY CONSENT THAT:
1. The Wife provide within fourteen (14) days to the Husband, a list of her personal items and effects that she maintains are in the property situate at B Street, Suburb C in the State of South Australia (‘the Suburb C property’) and in the event the Husband is able to locate such personal items and effects and agrees that they belong to the Wife, then together with any further category of items belonging to the children, the Husband shall within fourteen (14) days thereafter provide such items to the Wife via an intermediary to be agreed between the parties in writing.
THE COURT ORDERS THAT:
Property
2. No later than 26 June 2024, the Husband do pay by way of partial property settlement to the Trust Account of Camatta Lempens for and on behalf of the Wife the sum of FIFTY-THOUSAND DOLLARS AND ZERO CENTS ($50,000).
3. In the event that the Husband fails to comply with paragraph 2 herein, the parties do forthwith all such things to place the property situate at B Street, Suburb C in the State of South Australia (‘the said Suburb C property’) on the market for sale by such selling agent as the parties agree in writing or failing agreement, by such selling agent nominated by the Secretary of the Real Estate Institute of South Australia.
4. The parties do follow all reasonable advice provided by the said selling agent including but not limited to the mode of sale, the reserve price (if any) and any repairs or maintenance required.
5. Upon the sale of the said Suburb C property, the proceeds of sale shall be disbursed as follows:
(a) Payment of all sales costs and commissions;
(b) To discharge the mortgage secured over the said Suburb C property;
(c) The payment of FIFTY-THOUSAND DOLLARS AND ZERO CENTS ($50,000) to the Wife in accordance with paragraph 2 herein; and
(d) The balance to be held in the Trust Account of Camatta Lempens for and on behalf of the parties pending further order of the Court or agreement between the parties in writing.
6. In the event that either party fails to execute or sign any document necessary to implement the terms of the within orders, then upon proof by affidavit of such refusal or neglect, a Judicial Registrar of this Honourable Court is hereby authorised pursuant to section 106B of the Family Law Act 1975 (Cth) to sign any such documents necessary to give effect to the terms of the within orders.
7. Within twenty-eight (28) days of the date hereof, each of the parties do file and serve an Affidavit of Documents including but not limited to the documents referred to in Rule 6.06(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
8. No later than 1 June 2024, the parties do jointly instruct a licensed real estate valuer to value the property situate at Lots 1 and 2, D Street, Town E in the State of South Australia (‘the Town E blocks’) with the cost of such valuation to be shared equally between the parties.
9. In the event that the parties are unable to agree the identity of the said licensed valuer pursuant to paragraph 8 herein by 1 May 2024, then the Secretary of the Real Estate Institute of Australia shall be requested to nominate such a valuer to undertake the valuation in paragraph 8 herein and the parties shall co-operate with all requests made by the said valuer to facilitate same.
10. The parties and any lawyers on the record shall personally attend a Conciliation Conference with a Senior Judicial Registrar on 24 July 2024 at 9:00am, such Conciliation Conference to take place in the Adelaide Registry of the Federal Circuit and Family Court of Australia on a face-to-face basis in accordance with Court protocols.
11. The parties and any lawyers on the record shall follow any directions from the Registrar convening the Conference in relation to attendance in person.
12. Unless they obtain an exemption of such fee in accordance with the Family Law (Fees) Regulations 2012 (Cth), the Wife must pay the Conciliation Conference fee no less than fourteen (14) days prior to the Conference and the Husband do reimburse the Wife with one half of such fee within seven (7) days of being provided with evidence of payment of same.
13. Not later than 17 July 2024, each party must:
(a) Ensure that all documents required to be exchanged between parties pursuant to Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) have been exchanged;
(b) Ensure that any private expert report that is relevant to the proceedings has been filed;
(c) Provide to the Court (by email to the Senior Judicial Registrar and to the other party a single collated bundle of documents comprising:
(i) A Confidential Outline of Case (Dispute Resolution)
(ii) A detailed minute of Orders Sought;
(iii) Details of any previous or current family violence orders;
(iv) A copy of any document exchanged between the parties which is directly relevant to an issue remaining in dispute (with relevant passages highlighted);
(v) Particulars of any financial resource;
(vi) A valuation or market appraisal of any real estate or other asset the value of which is in dispute;
(vii) Statements for, and where applicable, valuations of any superannuation interest; and
(viii) Written confirmation that the trustee of any fund that may be the subject of a splitting order has been afforded procedural fairness.
14. No later than 5 July 2024, the Husband do all such things necessary to prepare and finalise the financial statements for the Self-Managed Superannuation Fund (‘SMSF’) for the financial years ending 2019, 2020, 2021, 2022 and 2023.
15. The Husband do meet the costs associated with the preparation of the said SMSF financial statements including the cost of any auditor to be agreed between the parties in writing and with the Wife to pay one half of the said costs by adjustment at final property settlement.
16. The Husband keep the Wife’s solicitors informed of the quantum of costs payable by him arising from the Orders made by a Court in South Australia in relation to the case of ‘[…]’ delivered by a judge in early 2024.
Injunctions
17. Without admission, the parties be restrained by way of injunction from approaching or entering or coming within two hundred (200) meters of the home of the other and from encouraging any other person to do so SAVE AND EXCEPT to comply with any order of the Court or agreed between the parties in writing.
Parenting
18. The Independent Children’s Lawyer has leave to provide a copy of the Child Impact Report dated 4 August 2023 to Dr F, general medical practitioner and any paediatrician or psychologist treating any or all of the said children.
19. The Independent Children’s Lawyer do within fourteen (14) days of the date hereof do all such things to obtain a recommendation from Dr F as to the name of a paediatrician to consult with the children W, X, Y and Z (or such of the children as Dr F considers in need of paediatric assistance) and do thereafter advise the parties in writing of the paediatrician so nominated.
20. The Independent Children’s Lawyer shall write to the said paediatrician at first instance advising of the terms of these orders and shall provide a copy of such correspondence to each of the parties.
21. To give effect to paragraph 10 of the Orders made 21 December 2023, the Wife do:
(a) Facilitate the said children’s attendance upon the paediatrician nominated by the said Dr F and do ensure that the said children attend all such appointments as requested by the said paediatrician;
(b) All such things to ensure that the child X do attend L Organisation and the children Y and Z do attend G Organisation; and
(c) Enrol the children W, X, Y and Z in the H Program at J Centre and do ensure that the said children do complete all sessions as directed by J Centre.
22. The Husband is at liberty to attend upon the said paediatrician for the purpose of providing his input in relation to the said children’s medical needs and obtaining updates as to the said children’s treatment on condition that the Husband shall be solely responsible for his individual appointments.
23. The Husband be restrained and injunctions are hereby granted restraining him from communicating (whether in writing or otherwise) with the said paediatrician or attending upon the offices of the said paediatrician other than to comply with the orders made herein.
24. The Husband be restrained and injunctions are hereby granted restraining him from communicating (whether in writing or otherwise) with the children’s psychologists or attending upon the offices of the said psychologists other than to comply with the orders made herein.
25. This order serves as an authority enabling the said paediatrician to communicate with and obtain information from each of the parties and the Independent Children’s Lawyer at his or her discretion.
26. The Husband is at liberty to obtain information from the said children’s psychologists referred to in paragraph 21(b) herein and this order serves as an authority permitting him to do so provided that the Husband shall be solely responsible for the costs associated with any appointments or communications.
27. The Independent Children’s Lawyer shall obtain, file and serve a Report from each of the children’s treating psychologists prior to the Family Dispute Resolution Conference referred to in paragraph 29 herein.
28. The Wife shall do all such things to ensure that the child W has in his possession his iPad (which is used by W to communicate) for each period of time spending with the Husband at the Children’s Contact Service and each medical appointment attended by the child W and for any appointment with a Family Consultant associated with these proceedings.
29. Upon the said children’s final session with the Husband pursuant to paragraph 1 of the order made on 21 December 2023 and upon the Independent Children’s Lawyer complying with paragraph 3 of the order made on 21 December 2023, the parties and the Independent Children’s Lawyer do attend a Family Dispute Resolution Conference at the Legal Services Commission of South Australia on a date and time to be organised by the Independent Children’s Lawyer for the purposes of discussing future parenting orders for the children.
Procedural
30. No later than fourteen (14) days prior to the adjourned date for hearing, the parties do file and serve an affidavit addressing a proposed Trial Plan including but not limited to:
(a) Any witness to be called on behalf of each party;
(b) A table of assets and liabilities including the value of each item;
(c) Estimated length of Trial;
(d) Any other interlocutory matters that will need to be considered prior to the Trial listing; and
(e) Whether or not section 102NA of the Family Law Act 1975 (Cth) applies.
31. The Wife’s Application in a Proceeding filed 23 October 2023 and the Husband’s Response to an Application in a Proceeding filed 17 January 2024 are hereby dismissed.
32. Proceedings be adjourned to 7 August 2024 at 9:30am for directions and consideration of a Trial listing or transfer of these proceedings to Division 1 of the Federal Circuit and Family Court of Australia, such hearing to take place in open Court on a face-to-face basis in accordance with Court protocols.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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