Walford & Walford (No. 3)

[2007] FamCA 1616

FAMILY COURT OF AUSTRALIA

WALFORD & WALFORD (NO. 3) [2007] FamCA 1616

FAMILY LAW – PROPERTY – CHILDREN – Orders made by consent in bitterly contested proceedings where it was alleged husband failed to make full and frank disclosure – Orders made as to costs – Child support departure proceeding adjourned to date to be fixed

Family Law Act 1975 (Cth)
Child Support Act 1989 (Cth)  

Oriolo & Oriolo (1985) FLC 91-653
Briese & Briese (1986) FLC 91-713

APPLICANT: Mrs Walford

RESPONDENT: Mr Walford

FILE NUMBER: MLF 6901 of 2002

DATE DELIVERED: 21 December 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 17-21 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Mort

SOLICITOR FOR THE APPLICANT: Wightons Lawyers

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Arnold

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

PROPERTY ORDERS

1. THAT the property Orders dated 9 October 2002 made in the Magistrates Court be discharged.

2. THAT the husband shall pay to the Accounts Manager, X School (‘the school’) on or before 11 January 2008 the current arrears of school fees, costs and other monies due in respect of the child, a daughter, born … August 1997 (“the sum”) which payment can be evidenced by a formal receipt from the Principal of the School for payment of all outstanding fees owing as at 1 December, 2007 together with such further sum to cover the school fees, tuition fees and other school imposed levies for the 2008 school year, such further sum to be paid within 30 days of the commencement of Term 1 or such other time as nominated in writing by the school principal.

3. THAT the husband otherwise be liable for and indemnify the wife in respect of all fees currently due to X Primary School due and payable as at 1 December, 2007

4. THAT the husband deliver to the wife’s Solicitors, at his expense, by 12.00 noon on Friday, 11 January, 2008 the coins and foreign currency comprising 200 English Pound £20 notes set out in Schedule “A” hereof and otherwise transfer to the wife all his right, title and interest therein and for this purpose the husband shall attend at the Commonwealth Bank of Australia, G in the presence of a representative of the wife’s Solicitors to deliver the said coins and for this purpose, the restraining Order specified in paragraph 1. of the Orders dated 5 February, 2004 of the Magistrates’ Court of Victoria be suspended but at all other times to remain in full force and effect pending further Order of this Court.

5. THAT the husband shall pay to the Child Support Agency the sum of $16,000.00 (by bank cheque) within fourteen days following determination of the further Child Support proceedings which sum shall be applied to discharge the husband’s child support arrears, fines and penalties and the husband shall produce to the wife or her legal representatives the original receipt by the Registrar of the Child Support Agency evidencing payment of such sum immediately thereafter.

6. THAT the husband, as Director of C Pty Limited, within 14 days from the date of these Orders, do all such acts and sign all such documents required to transfer to the Wife, at the wife’s expense, all the right, title and interest (in total) of C Pty Limited in the R1 Pty Limited 1999 Project.

7. THAT the husband shall deliver to the wife or her legal representatives by 12.00 noon on 3 January, 2008 the coin currently held on trust for the child being the … Florin (referred to as Item 43 in the husband’s Financial Statement filed 3 October, 2006).

8. THAT the husband, personally and as Director of C Pty. Ltd., within fourteen (14) days do all such acts and sign all such documents to transfer to the wife, at the wife’s expense, all of his right, title and interest in together with the right title and interest of C Pty. Ltd. in coins referred to in Paragraphs 4 and 7 hereof.

9. THAT in the event that the husband fails or otherwise refuses to execute any document, authority or transfer to the wife to enable compliance with these Orders, within seven (7) days of the date the Registrar of the Family Court of Australia shall be authorised to execute such document, authority or transfer on behalf of the husband pursuant to Section 106A of the Family Law Act 1975.

10. THAT the Court allocate, as required by s.90MT(4) of the Family Law Act 1975, a base amount of 100% of the fund balance to the wife out of the husband’s interest in the Westpac Lifetime Superannuation Service.

11. THAT pursuant to paragraph 90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable out of the interest of the husbands interest in the Westpac Lifetime Superannuation Service, the Trustee shall:-

    (a)pay to the wife or her legal personal representative, the entitlements calculated in accordance with paragraph 6. of the Family Law (Superannuation) Regulations 2001; and

    (b)make a corresponding reduction in the entitlement the husband would have had in the Westpac Lifetime Superannuation Service before the Order.

12. THAT Order 11. has effect from the operative time.

13. THAT the operative time for these Orders is four days after service of a sealed copy of the Orders upon the Trustee of Westpac Lifetime Superannuation Service.

14. THAT the Trustee of Westpac Lifetime Superannuation Service shall do all such acts and things and sign all such documents as may be necessary so that, in accordance with the obligations set out in the Family Law Act 1975, and Family Law (Superannuation) Regulations 2001, the Trustee can calculate the entitlement of, and make payment to, the wife in accordance with Order 2. of these Orders.

15. THAT unless otherwise specified in these orders and except for the purposes of        enforcing the payment of any money due under these or any subsequent orders:

    (a)each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at this date. 

    (b)each party hereby retain any superannuation benefits belonging to or earned by that party for their respective sole use and benefit.

    (c)all insurance policies to become the sole property of the owner named therein.

    (d)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;

    (e)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

    16.THAT each party bear their own costs in respect of any applications brought pursuant to Section 79A of the Family Law Act 1975 (as amended).

16. THAT all extant Applications filed in respect of the wife’s Section 79A Application otherwise be dismissed AND THAT the said proceedings be removed from the Active Pending Cases List.

CHILDREN’S ORDERS

1. THAT all previous parenting Orders be and are hereby discharged save that the Watchlist Orders set out in paragraphs 10. and 11. of the Orders made on 11 March, 2003 shall remain in full force and effect.

2. THAT each parent retain equal shared parental responsibility for making major decisions affecting the long term care, welfare and development of the child of the marriage a daughter born the … August, 1997 (“the child”).

3. THAT the child live with the husband as follows:-

   20.1in each alternative week from 3.30 p.m. on Thursday until the conclusion of school on Tuesday (or in the event of a non-school day at 5.00 p.m.) commencing 7 February, 2008;

   20.2for one half of the school term holidays commencing from the conclusion of school until 8.00 p.m. on the middle Saturday (provided that the child has been living with the husband in the week immediately preceding the school vacation period) AND OTHERWISE from 8.00 p.m. on the middle Saturday until the commencement of the school term;

   20.3    For Christmas:-

   20.3.1for 2007 from 12.00 noon Christmas Eve until 3.00 p.m. on Christmas Day and in each alternative year thereafter;

   20.3.2for 2008 from 3.00 p.m. Christmas Day until 12.00 noon on Boxing Day and each alternative year thereafter.

   20.4    For the long summer vacation period as follows:-

   20.4.1for 2007/8 for the second half of such vacation period and each alternative year thereafter to commence at 8.00 p.m. on 10 January until 5.00 p.m. on the last day of the holiday period;

   20.4.2for 2008/9 for the first half of such vacation period and each alternative year thereafter to conclude at 8.00 p.m. on 10 January.

   20.5in the event that Easter falls outside of a school vacation period, in 2008 and each alternative Easter holiday period from after school Wednesday until commencement of school the following Tuesday (and on each other occasion, the child shall otherwise live with the wife.

   20.6for Father’s Day from the conclusion of school  on the Friday preceding Father’s Day until the commencement of school on the following Monday;

   20.7    for the child’s birthday and the husband’s birthday as follows:-

   20.7.1in the event such occasion or occasions fall on a school day from 3.30 p.m. until 7.00 p.m.;

   20.7.2in the event such occasion or occasions fall on a non-school day from 10.00 a.m. until 2.00 p.m.

   20.8As otherwise agreed between the parties.

4. THAT for the purpose of paragraph 20. hereof:-

   21.1The times that the child lives with the husband be suspended as follows:-

   21.1.1from the conclusion of school on the Friday preceding Mother’s Day until the commencement of school on the following Monday;

   21.1.2for the child’s birthday and the wife’s birthday as follows:-

   21.1.2.1on a school day from the conclusion of school (or

   3.30 p.m.) until 7.00 p.m.;

   21.1.2.2on a non-school day from 10.00 a.m. until 2.00

   p.m.;

   21.1.3For Christmas as follows:-

   21.1.3.1for 2007 from 3.00 p.m. Christmas Day until the

   8.00 p.m. on 10 January and each alternative year

   thereafter;

   21.1.3.2for 2008 from 12.00 noon of Christmas Eve until

   3.00 p.m. on Christmas Day.

   21.2Unless otherwise set out herein, the child shall live with the wife at all other times.

   21.3For the purpose of changeovers:-

   21.3.1Save where changeovers occur at school, the husband shall be responsible for collecting the child from outside of the T Police Station or, if agreed between the parties, the wife’s residence at the commencement of his period of time with the child and the wife shall be responsible for collecting the child from outside of the G Police Station or, if agreed between the parties, the husband’s premises at the commencement of his period of time with the child.

   21.4The alternative week cycle pursuant to paragraph 20.1 hereof shall be suspended:-

   21.4.1 during all school term holiday periods; and otherwise

   21.4.2from 12.00 noon on Christmas Eve (the commencement of the long summer vacation) until 9.00 a.m. on the first day of term when the school resumes

   and resume in accordance with the usual fortnightly cycle as if the said holiday period had not intervened.

5. THAT unless otherwise agreed, the parent with whom the child is residing shall permit the child to communicate with the other parent with whom she is not living each week by telephone with that party to call each Monday and Wednesday between 7 p.m. and 7.30 p.m. and facilitated by the other parent at any other reasonable time requested by the child.

6. THAT the husband and wife shall authorise the Principal of any school that the child attends to provide to the other parent copies of any school notices, newsletters, reports or photographs at his or her request and at their respective expense and each parent shall be permitted to attend any school functions ordinarily attended by parents.

7. THAT each parent keep the other informed of any significant illness, hospitalisation or accident suffered by the child when she is in their respective care as soon as practicable and further advise the other of the name and telephone number of each relevant treating practitioner or life professional, giving such treating medical practitioner or like professional authority to discuss the illness or accident, treatment and prognosis with the other parent.

8. THAT the husband and wife notify the other of his or her preferred secondary school for the child 6 months in advance.

9. THAT the Independent Children’s Lawyer appointed pursuant to Orders of this Honourable Court made the 17 March, 2006 be discharged.

10. THAT all extant applications for parenting orders be otherwise dismissed and removed from the Active Pending Cases List.

11. Certify for Counsel

12. THAT pursuant to s 65DA(2) and s62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

AND IT IS NOTED

A.THAT the husband denies any allegations made by the wife that he has any interest (legal or equitable) whatsoever in any overseas bank accounts, overseas superannuation funds or interest or real property interest overseas or in Australia.

B.ANY payment or payments made by the husband pursuant to paragraphs 1 and 2 hereof have been agreed by the husband not be taken into account by the Child Support Agency as a non-agency payment to be credited against any child support liability.

SCHEDULE “A”

1. 3 Small half pennys and 7 pennys

   Description -

   … Elizabeth II Perth Copper Proof Set of 11 (with one missing)

   (Price Tag $7,100.00)

2. Plastic Bag containing 200 x 20 English Pound Notes.

MINUTES OF CONSENT ORDERS

21 DECEMBER 2007

IT IS ORDERED BY THE COURT

1. THAT the husband pay to the wife’s Solicitors, within 21 days of the date of these Orders, the sum of $440.00 being costs ordered on 26 June, 2004.

2. THAT the wife’s costs in respect of the Application listed 10 December, 2007 be fixed in the sum of $1,540.00 and that the husband pay to the wife’s Solicitors the said sum within 21 days of the date of these Orders.

IT IS FURTHER ORDERED BY CONSENT

1. THAT within 14 days the husband provide to the wife’s Solicitors the following:-

   3.1all papers, documents and receipts in his possession, power or control evidencing claimed losses in respect of the following investments:-

   3.1.1R1 Pty Ltd;

   3.1.2   N Vineyard;

   3.1.3 R2 Pty Ltd,

   as referred to in the Walford Discretionary Trust Financial Statements and Income Tax Returns for the financial year ended 30 June 2007 (“the 2007 Financial Statements”).

   3.2      all invoices, documents, papers, receipts and cheque details as to:

   3.2.1   the payment of sub-contractor’s expenses; and

   3.2.2   the payment of travel and accommodation

   referred to in the 2007 Financial Statements more particularly described in the Profit and Loss Statement for the year ended 30 June 2007.

   3.3all invoices, documents, papers, receipts and cheque details and particulars as to payments made from the C Pty. Ltd. Westpac Banking Corporation Account No. … as follows:-

   3.3.1   to Mr G on:-

   3.3.1.1  21 October 2005 for $13,500.00;

   3.3.1.2  22 June, 2006 for $14,825.60;

   3.3.1.3  24 November 2006 for $9,507.00;

   3.3.1.4  28 November 2006 for $4,028.50.

   3.3.2   to M Walford on:-

   3.3.2.1                      29 December 2003 for $50,000.00;

   3.3.2.2                      22 July 2005 for $4,700.00;

   3.3.2.3                      28 July 2005 for $19,050.00;

   3.3.2.4           23 June 2006 for $20,000.00;

   3.3.2.5           1 May 2007 for $22,000.00.

   3.3.3   to V Pty Ltd on:-

   3.3.3.1           31 January 2004 for $30,929.80;

   3.3.3.2           4 February 2004 for $19,855.00;

   3.3.3.3           22 January 2005 for $25,000.00;

   3.3.3.4                      17 June 2006 for $16,665.00.

   3.3.4   to “[PC]” on 24 February 2006 for $8,405.00;

   3.3.5   To GI on 23 May 2007 for $12,345.00;

   3.3.6   to JP Pty Limited on:-

   3.3.6.1                      1 December 2004 for $11,200.00;

   3.3.6.2           25 August 2005 for $1,000.00;

   3.3.6.3           20 March 2006 for $6,820.00;

   3.3.6.4           4 April 2006 for $13,244.00;

   3.3.6.5           24 November 2004 for $21,120.00;

   3.3.6.6           30 August 2007 for $4,125.00;

   3.3.6.7           7 September 2007 for $9,900.00;

   3.3.6.8  20 September 2007 for $14,300.00.

   3.4all Employment Contracts in relation to any income derived by the husband from J & J and H & P from 1 July, 2006 to date.

2. THAT the wife have leave to file and serve forthwith an Application in a Case with Orders sought in respect of a Departure Order as against the current Child Support Assessment.

3. THAT all extant Applications for child support be adjourned to a date to be advised as a matter of priority and on short notice.

4. THAT all questions of costs reserved.

5. THAT liberty to apply to mention any matter to Guest J upon reasonable notice.

6. CERTIFY for Counsel.

7. THAT the wife’s costs in respect of the hearing on 17 December 2007 and 21 December, 2007 be fixed at $6,160.00 and otherwise reserved.

IT IS NOTED that publication of this judgment under the pseudonym Walford & Walford is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 6901  of 2002

MRS WALFORD  

Applicant

And

MR WALFORD  

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This matter comes before me in the Standard Track List of defended cases and comprises an Application brought by the wife pursuant to provisions of section 79A of the Family Law Act1975 (Cth). She sought to vary property orders that were made on 9 October 2002, asserting a miscarriage of justice on the basis of fraud and duress. Those proceedings were opposed by the husband. There were further child welfare proceedings before the court concerning the child, who was born in August 1997.

2. Previous orders have been made by this court dealing with those child welfare matters.  Following various reports prepared by a Ms M, in her latest report and more current one, she sought to place before the court two “options” which included as a primary option supporting a continuation of the previous orders made by the court. That option was strongly recommended by Mr Arnold who appears on behalf of the Independent Children's Lawyer. Furthermore it was a form of order that was supported by Mr Mort, who appears on behalf of the wife. On the other hand, the husband sought a week about sharing arrangement. 

3. Additional proceedings before me concerned a Child Support application brought by the husband and filed in December 2003. This was opposed by the wife who, in response, sought a departure order from the child support assessment. 

4. They are all bitterly contested proceedings before the court and raise serious issues. It appears to me, having had a preliminary discussion with Mr Mort and the husband, the papers have the potential to be referred elsewhere, depending upon the evidence given at any contested final hearing.  However, the parties have wisely, in my view and exhibiting good general common sense, adjusted the child welfare and property proceedings despite the rather impoverished circumstances in which they have each found themselves.

5. The wife's legal costs to date, certainly to the commencement of the trial, has been estimated at $90,000. If I recall correctly at a previous hearing, the husband said that he had incurred legal fees of some $70,000. He has from time to time appeared on his own account and continues to appear as a litigant in person before me. 

6. The effect of the child welfare orders is essentially to fine tune a number of various matters in dispute between the parties to give final definition to their rights, duties and obligations. The orders concerning the proceedings pursuant to section 79A of the Act assists in rectifying a situation that occurred, on the material as alleged by the wife by ordering certain additional property to be transferred to her of a reasonably modest value. Certainly not of a sum that would recompense her by any measure in respect of the legal fees expended in pursuit of her rights. It appears to me that given the totality of the legal costs incurred by both the husband and the wife, the whole of the proceedings have been very much to their economic detriment.

1. By way of short background, the wife was born in March 1968 and is 39 years of age. The husband was born in December 1968 and is shortly to celebrate his 39th birthday too. The parties commenced cohabitation in July 1989 and married in December 1995. Their daughter was born in August 1997.  Following quite serious and unhappy differences between them, they separated on 14 April 2002. On 9 October 2002 they entered into a Child Support Agreement which provided for the husband to pay to the wife $200 per week for the support and maintenance of the child. On that day, Form 12A Consent Property Orders were also entered into. It was with that genesis that the parties have continued to litigate in this court which has been very much to their financial disadvantage.

2. The one issue remaining is that of child support and I would trust that between now and the adjourned date, serious reflection will be given by the husband to his position. As I understand the various proposals of the parties, it is the wife's proposal to seek a child support assessment in her favour equivalent to some $200 per week. On the other hand, the husband proposes a payment of $65 per week. I note pursuant to the Minute of Consent Orders, which I have marked Exhibit “B”, the husband will pay arrears of school fees of the X Primary School and pay all school fees, tuition fees and other school imposed levies for the 2008 school year. Wherever the child may go to school in the year 2009 is yet to be determined by the parties. Hopefully they can come to some dignified and reasonable agreement. 

3. My confidence levels in that being achieved however are modest indeed as the parties have locked themselves in serious dispute for many years now and I rather suspect from what I have heard thus far and from what I have read in the material filed by them, that all that has been deposed to may not necessarily be the fact. There are obligations on judges of this court to be satisfied that property orders are just and equitable, notwithstanding that the orders are to be made by consent. Such is the mandate imposed upon a judge of this court pursuant to section 79(2) of the Act. In address to me yesterday, Mr Mort surveyed the various discussions between the parties following his near completed opening of the proceedings, which involved the parties having dialogue also with Mr B, the wife's partner. The invitation to do so was made by the husband directly to the wife and I congratulate the parties on having the ability to entertain that level of communication. That is one positive forward step in their journey towards the forthcoming years. 

4. In his helpful outline to me, Mr Mort submitted that, broadly speaking, "the parties have in discussion arrived at a very dignified, sensible settlement" and entered into an arrangement “within an acceptable range”. I agree with his comment. These matters are often, given the associated difficulty, resolved in a pragmatic way endeavouring to import into the discussions a commercial exercise that enables them to be free of any further litigation in this court. 

5. It seems to me that is precisely what the parties have done. I have no doubt at all that both the husband and the wife will leave this court somewhat disenchanted with the Consent Orders thus far. However, they are made by consent and it is determined by the parties as a result of their discussions within the environment that brought them to court. Given the whole of the circumstances, I see no reason not to approve the orders. 

6. Similarly, the child welfare orders achieve an agreement (save for child support) that will ordain the future rights, duties and obligations of each of the parties towards their daughter. I might point out that these orders are lengthy and ought be seen by the parties as defining the limits within which they will act in the event of dispute. They must take into account that such orders cannot be a complete panacea for them, for there may come a time when the child is with one of them that a commitment requires her to be with the other parent. I would expect there to be helpful dialogue about such an event and that there be invoked elements of discretion and good will. That is my expectation.

7. Finally, an application has been made by Mr Mort seeking costs for 17 December 2007 and this day. I regard the costs claimed by the instructing solicitor, Ms Friday, of $880 on each of those days and counsel's fee of $2200 to be modest and I have no problem with the quantum of both those costs which appear to me to be appropriate in the circumstances. The total therefore is $6160. 

8. Mr Mort also seeks that the costs that were ordered on 26 June 2004 fixed in the sum of $440 arising from the husband's failure to attend a Conciliation Conference, together with other costs ordered, fixed and reserved by Mushin J on 10 December 2007. On that day, his Honour was obliged to order the husband sign an authority in circumstances where he had originally failed to do so. Counsel's fees on that day were $1100 and solicitor's fees were $440, being a total of $1540 in all. 

9. There were compelling arguments advanced by Mr Mort for payment of the costs covering both Monday and Friday of this week. They included the background to the matter, including the fact that the wife's costs to Monday of this week, were an estimated $90,000.  He also relied upon the fact that the husband has paid no child support, although I see that the husband has included in his recent Financial Statement that he makes payments for the benefit of the child in the sum of $24 a week.

10. It seems to me that there is quite a degree of conflict about the husband's ability to pay what I regard as appropriate child support within the provisions, intent and purpose of the Child Support (Assessment) Act 1989 and from what I have heard thus far, it is the submission of Mr Mort that the husband has “manipulated” his financial affairs so as to minimise his financial commitment towards his daughter. However, that is going to be the central thrust of the proceedings concerning a dispute between the parties as to what each proposes in respect of child maintenance.

11. Fundamental to parental obligations is the duty to provide adequately for children. I do not take lightly, if it proves to be a fact, manipulation or adjustment of “real income” in terms of the actual funds that flow into the family coffers being adjusted through various commercial means so as to reduce the net receivable income. It invokes a “smoke and mirrors” situation which can affect a child support assessment. That may transpire not to be the case at hand before me, but as opened by Mr Mort, it is going to be central to the argument.  If the wife succeeds in her argument, there may well be a substantial adjustment to the child support obligations the husband has to meet.  I will wait to see how that transpires. 

12. With that aside, it is plain to me from just looking at the taxation returns of the husband and those of the Walford Discretionary Trust, that he has utilised the provisions of the Trust to provide moneys to his brother by way of a distribution to “a beneficiary” and received, it appears, a return of those funds at a subsequent date. It seems to me that, in those circumstances, it may be incumbent on the husband to call his brother as a witness to support the disposition, if it is not so. However, I will simply wait and see. 

13. There are other allegations made, for example, arising from the husband's financial statements, including his own and those of C Pty Ltd and the Walford Discretionary Trust concerning the payment of subcontractor's expenses, which for the financial year ended 30 June 2007 totalled approximately $87,000.  However, the parties have agreed that within 14 days of this date the husband will provide to the wife's practitioners all invoices, documents, papers, receipts and cheque details as to the payment of those expenses and payment of travel and accommodation expenses detailed in the returns for the financial year ended 30 June 2007. I will see how that transpires. There are further and other matters to be attended to in the Minute of Proposed Orders that I have received and are marked Exhibit “C”. 

14. One of the grounds for seeking costs is, as I said, that Mr Mort refers to the issue of the husband’s failure to pay reasonable and adequate child support, asserting that he manipulates his financial circumstances in such a manner as to reduce his personal income, which has an obvious flow down effect upon the assessment to the made by the Child Support Agency. He also relied upon the fact that the costs ordered on 26 June 2004, now some three and a half years ago, have not yet been paid.  I propose to order that they be paid within 14 days.

15. Furthermore, Mr Mort now seeks payment of the costs ordered, fixed and reserved on 10 December 2007 by Mushin J be paid in the sum of $1,504. As I said, those costs arose from enforcement proceedings given the husband’s failure to provide adequate discovery and sign an authority. It appears to me from what I have read that he stubbornly refused to do so and it was only upon the directions made by his Honour, and properly so in my view, that the husband then on that day signed the authority. It was in those circumstances that payment of costs were reserved. I regard counsel's fees and the solicitor's costs of that day as being extremely modest.  

16. The further argument that was relied upon by Mr Mort concerned the non‑disclosure of the financial material by the husband, particularly relating to matters that were relevant to child support. He said that the wife had alleged serious non-disclosure on the part of the husband and it was only on the Monday morning at the commencement of the proceedings that the husband produced, after having accessed the same through an Internet cafe, various bank statements and otherwise financial statements that had earlier been requested. That caused the matter to be stood down and time was wasted. I have earlier delivered a judgment in relation to those events. In the circumstances, given the dispute between the parties, I ordered each party to prepare an affidavit detailing their version of the husband's alleged failure to comply adequately with disclosure. 

17. Accounts appear to differ in some degree but, as Mr Mort pointed out, when one takes into account certain activities by a named person, it seems to me that the husband's assertion of the facts may well toll a hollow ring. I simply do not know at this stage and a dispute has now been erected in this court that I must solve.  As I said, I propose to order costs for Monday and Friday of this week fixed in the sum of $6160. However, given the denial by the husband that in effect those matters asserted by Ms Friday are correct, I am left to hear the evidence of them both in this court as an issue for my determination. That is regrettable in the circumstances and I would have expected more. However that is the way the cards have been dealt and I will deal with them when they are before me. I make no bones about this. 

18. Early in the proceedings I referred the husband, for his edification, to what the Full Court had to day in Oriolo & Oriolo (1985) FLC 91-653 and particularly at page 80-256 when the court approved what Smithers J had to say in Briese & Briese, which was at that time unreported as at 27 June 1985. It has subsequently been reported in (1986) FLC 91-713. I made it clear to the husband that there was a need for each party to understand the financial position of the other party. That lay at the very heart of cases concerning the issues that I was to determine. What Smithers J said was:

    “Unless each party adopts a positive approach in this regard, delays will ensue with consequent escalation of legal, accounting and other expenses.  Always assuming that a party has the strength to continue to struggle for information and understanding.”

19. It was by reason of the various submissions made by each of the parties on the opening of the proceedings that I required the two affidavits.  They now appear, on the husband’s version, to be in sharp contest. I will decide that issue and any issues of costs arising from it.

20. I make it clear to the parties that I resume work here on 2 January 2008. If there are any breaches of the orders to be made by consent and set out in Exhibit “C”, notification can be given to my Associate and I will attend to the matter before court business at 9.30 am on any required morning that I have time to do so.

I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate 

Date:  22 January 2008