Wilson and Wilson (No. 2)

[2009] FamCA 756

FAMILY COURT OF AUSTRALIA

WILSON & WILSON (NO. 2) [2009] FamCA 756

FAMILY LAW – CHILDREN – Parenting orders (interim) – Need to present some evidence that follows the pathway of Part VII of the Act
FAMILY LAW – PROPERTY – Barro order – Need for cogent evidence about costs and for what purpose the funds will be used

Family Law Act 1975 (Cth)

Cowling v Cowling (1998) FLC 92-801
Goode v Goode [2006] FamCA 1346
Harris and Harris (1993) FLC 92-378
Poletti & Poletti (1990) 15 Fam LR 794
Zschokke (1996) FLC 92-693

APPLICANT: Ms Wilson

RESPONDENT: Mr Wilson

FILE NUMBER: MLC 1687 of 2009

DATE DELIVERED: 21 AUGUST 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 21 AUGUST 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR HARVEY

SOLICITOR FOR THE APPLICANT: BAYANI HARVEY LAWYERS

COUNSEL FOR THE RESPONDENT: MR TESTART

SOLICITOR FOR THE RESPONDENT: PLAZA LEGAL

Orders

1. That the application for interim orders filed by the wife on 25 June 2009 and the response thereto of the husband filed 30 June 2009 be dismissed.

2. That should either party seek any order for costs arising out of these orders, they make such application by filing written submissions no later than 4 pm on 4 September 2009 to which the responding party shall have a right of reply to be filed and served no later than 4 pm on 11 September 2009 and such matter be determined by me in chambers.

3. Certify for the attendance of counsel.

4. AND IT IS NOTED THAT all final applications await a conciliation conference on 9 September 2009.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1687  of 2009

MS WILSON

Applicant

And

MR WILSON

Respondent

REASONS FOR JUDGMENT

1. In the duty list on 20 August 2009, I heard the wife’s application for interim orders.

2. The first order pursued was a parenting order. The second order was an order seeking litigation funding or otherwise known as a “Barro Order”.

3. The husband opposed making orders in either case.

4. I propose to make no orders in either case and to dismiss the wife’s application.

5. Notwithstanding there may be all manner of argument about what is right or wrong in cases such as these, they are ultimately determined on the evidence presented.

6. There is some significance in regard to the evidence because this was the second time that the matter had been in the judicial duty list. It was apparently sufficiently urgent to be heard on 30 June 2009 before Young J where his Honour granted financial injunctions. I note that his Honour declined to make parenting orders. I agree with his Honour.

7. The parties married in March 1988. They have children two of whom are under 18 years of age. C was born in November 2003 and M was born in September 1996. Both children live with the wife and have a regular relationship with the husband.

8. The parties separated in November 2007 on the wife’s version of events.

9. A divorce was apparently granted on 14 April 2009.

10. Part of the difficulty in this case seems to have arisen from a lack of attention by the wife to the financial matters and as things have unfolded in recent months, there has been activity about which I expressed concern with the parties’ legal practitioners.

11. It would seem on a best-case view, there is an equity in assets of about $700,000 and on the worst-case scenario, $500,000. There is a house with equity and a self-managed superannuation fund and not much else. Neither party is of retirement age so there is little chance of either of them getting their hands on the superannuation for some time. That leaves the house.

12. I expressed concern during discussion with the practitioners that subpoenae had been issued to financial institutions by the wife before any request had been made to the husband to produce and explain various financial transactions. The onus falls on the husband to make full and frank disclosure but the wife’s practitioner conceded that he had not sought that by way of letter. Counsel for the husband said that there was no argument about the husband being required to produce whatever was required. That is important for two reasons. First, the parties have a conciliation conference coming up shortly. Secondly, the “Barro” order presumably relates to the pursuit of this information and it seems to have been inappropriately dealt with to date which means that costs have been incurred unnecessarily.

13. I deal then first with the parenting orders.

14. The wife sought an order that the children live with the wife “and communicate with the husband at the children’s discretion”. The husband opposed any order being made on the basis that things have proceeded smoothly until now and there is no suggestion that the parties cannot work matters out themselves. The solicitor for the wife said that there may be some disagreement about that. However and importantly, nothing about the state of the parties’ ability to communicate about their children was apparent from the wife’s material.

15. In her affidavit, the wife said that the children were not little and had “indicated” to her that they were uncomfortable staying with the husband and his new partner. She said the children were able to say whether and under what circumstances they will spend time with the husband. I have to say I have some doubts about the philosophy of that. That was all she said up until the time that the matter was before Young J in June.

16. In his affidavit, the husband did not respond to the wife’s assertion.

17. The wife filed and served a second affidavit on 18 August 2009. In that, she referred to the fact that the husband had said he wanted a shared care arrangement and in her view that was not appropriate because it would be unsettling for the children. She set out her belief which was not of probative value. Similarly, she set out her belief about what the children should be allowed to decide having regard to their ages. The only evidence which was relevant was that she said that the children had told her that they did not want to stay with the husband while his partner was there.

18. The husband did not respond to the wife’s second affidavit having regard to the short period of time up until the hearing. Importantly however, his counsel said that there was no problem from the husband’s point of view and that the arrangements were working well.

19. Part VII of the Family Law Act 1975 (Cth) (“the Act”) applies to children. 

20. Section 64B(2) provides that a parenting order may deal with inter alia:

    (a)      the person or persons with whom a child is to live;

    (b)the time a child is to spend with another person or other persons;

    (c)      the allocation of parental responsibility for a child;

21. The objects and principles from which the provisions of Part VII are to be applied are set out in s 60B, which provides:

    (1)      The objects of this Part are to ensure that the best interests of children are met by:

    (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

    (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

    (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

    (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

    (2)      The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

    (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

    (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

    (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

    (d) parents should agree about the future parenting of their children; and

    (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

    Section 60CA deals with the best interests of the child and provides that:

    In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. 

22. In determining what is in a child’s best interests, s 60CC provides that, other than in considering whether to make an order by consent, the Court must consider the following matters in determining what is in the child’s best interests:

    Primary considerations

    (2)      The primary considerations are:

    (a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

    (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

    Additional considerations

    (3)      Additional considerations are:

    (a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

    (b)the nature of the relationship of the child with:

    (i)each of the child’s parents; and       

    (ii)other persons (including any grandparent or other relative of the child);

    (c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

    (d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

    (i)either of his or her parents; or

    (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

    (e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

    (f)       the capacity of:

    (i)       each of the child’s parents; and

    (ii)any other person (including any grandparent or other relative of the child);

    to provide for the needs of the child, including emotional and intellectual needs;

    (g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

    (h) if the child is an Aboriginal child or a Torres Strait Islander child:

    (i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

    (ii)the likely impact any proposed parenting order under this Part will have on that right;

    (i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

    (j) any family violence involving the child or a member of the child’s family;

    (k) any family violence order that applies to the child or a member of the child’s family, if:

    (i)       the order is a final order; or

    (ii)the making of the order was contested by a person;

    (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

    (m) any other fact or circumstance that the court thinks is relevant.

    Section 60CC(4) provides:

    Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:

    (a)      has taken, or failed to take, the opportunity:

    (i)to participate in making decisions about major long-term issues in relation to the child; and

    (ii)to spend time with the child; and

    (iii)to communicate with the child; and

    (b)      has facilitated, or failed to facilitate, the other parent:

    (i)participating in making decisions about major long-term issues in relation to the child; and

    (ii)spending time with the child; and

    (iii)communicating with the child; and

    (c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

    Section 60CC(4A) provides:

    If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

23. Notwithstanding it was the wife’s application, there was no evidence other than that to which I have referred upon which I could possibly make any determination on all of the matters set out in s 60CC to ensure as much as possible that the objects and principles in Part VII were met. Why that evidence was not presented remains a mystery having regard to the earlier hearing before Young J where his Honour felt it inappropriate to make orders.

24. Section 61DA refers to the presumption of equal shared parental responsibility. The wife did not address that issue at all which in turn means that on the evidence, I have no information to make any informed decision about what would follow from the statutory presumption. The husband remained silent on the subject on the basis that he said that all was working well.

25. When a parenting application is presented, the Court must regard the best interests of the child as paramount in deciding what interim parenting order to make.  In Goode v Goode [2006] FamCA 1346, the Full Court examined the problems of interim determinations in the light of Cowling v Cowling (1998) FLC ¶92-801. These considerations were directed largely to the presumption. I do not have the necessary information to determine that dilemma if it is one at all.

26. The Full Court in Goode observed that the best interests of the child are met by stability but that had to be reconsidered in light of the changes to the Act, particularly changes to the objects (s 60B), the inclusion of the presumption of equal shared parental responsibility (s 61DA), and the necessity if the presumption was not rebutted to consider the outcomes of equal time and substantial and significant time. I repeat, I do not have the information to make any such determination here.

27. In this case, I note that the parties separated in 2007 and must conclude unless there is evidence to the contrary that there is a well-settled arrangement. I have not had the advantage of testing any controversial evidence if it exists. At best, I have the wife’s statement that the children have some unhappiness about the husband’s partner. Whether that emanates from the wife or the children, I have no idea.

28. As such, I have no understanding of the views of the children, the capacity of the parents nor the parents’ views about responsibility particularly as it may relate to the introduction of a new partner. The evidence of the wife does not assist me.

29. What I do have is the husband’s counsel saying that there is no need for orders and the parties are working together. Whilst that is not in the evidence, there is no evidence otherwise that would enable me to make any finding in respect of s 60CC(4) and s 60CC(4A). 

30. In those circumstances, I cannot see any basis upon which to make the orders sought by the wife.

31. I turn then to the Barro application.

32. The wife’s evidence was that she had incurred legal fees and that she was unable to meet her costs which have now climbed to almost $20,000. I reiterate my concern about the circumstances under which that has occurred.

33. When I drew to the attention of the solicitor for the wife the fact that I had no evidence of what the Barro money was for, how it would be raised or upon what basis the proceedings were being conducted, he produced an affidavit sworn by him over a luncheon break. That affidavit did not advance the matter further because he made an estimate in it of having to incur $10,000 for solicitor and $5,000 for counsel if the matter proceeded to trial. The information to assist me make any determination was simply lacking.

34. What the wife maintained was that she had the lawyer’s bill and was expecting more in the future. It is also important to note two things here. First, the wife’s grasp of the English language is not good. Secondly (albeit not in the solicitor’s affidavit) the wife has come across things about the husband’s financial dealings which were unfolding over time and that had extended the cost process. However, it was conceded on behalf of the wife that a subpoena pathway had been undertaken rather than pursuing explanations from the husband first.

35. The principles concerning Barro type orders were discussed in Poletti & Poletti (1990) 15 Fam LR 794 where the Full Court of Ellis, Strauss and Butler JJ set out five factors to make such an order under s80 of the Act. They were:

    (a)      A complexity in the financial affairs of the respondent.

    (b)A need for an expert investigation into the financial affairs of the respondent.

    (c)A position of considerable financial strength held by the respondent.

    (d)A capacity on the part of the respondent to meet his own ongoing litigation costs.

    (e)An inability on the part of the applicant to meet her ongoing litigation costs from her own income, assets or financial resources.

36. In Zschokke (1996) FLC 92-693, the Full Court cautioned about simply spending future divisible property money because of what the Court said in Harris and Harris (1993) FLC 92-378 namely that:

    (1)The exercise of the power should be confined to cases where the circumstances presented at that time are compelling;

    (2)It is an exercise of the s. 79 power. Consequently it must be performed within those parameters;

    (3)The power must be exercised conservatively and the Judge must be satisfied that the remaining property will be adequate to meet the legitimate expectations of both parties at the final hearing.

37. It was said that if the order was to be made under s 117(2) then the matters contained in s 117(2A) must be addressed. The Court said that:

    where property settlement proceedings under s 79 are pending, the Court may pursuant to the provisions of s 80(1)(h) (and independently of the power in s 117(2) to make a costs order) require the party who controls most of the assets of the parties to provide the other party with funds to conduct his or her case, with the provision of such funds then being a matter to be taken into account in the final settlement of property between the parties.’

38. If I was to consider this as a costs application under s 117 of the Act, it must be remembered that the fundamental principle is that each party should pay their own costs. The Court can depart from that principle if there are circumstances justifying such a departure and then the Court must look at the matters set out in s 117(2A). I have no such information in the wife’s affidavit material here.

39. Turning then to the issue of making an order under s 80, I engaged counsel and solicitor in considerable dialogue about the issue of complexity. The solicitors for each party have filed documents indicating some uncertainty about the orders pursued. However, in the case of the husband, his counsel indicated that there was no document now that his client needed from the wife. He should therefore be able to set out with particularity what orders he was seeking. The solicitor for the wife conceded that documents had not been requested and as such, he was not in a position to advise his client about her entitlements. That was puzzling having regard to the nature of the property pool but I accept that there is a language barrier and he needed to do some due diligence.

1. On any view however, this case has no complexity on the evidence presented to me. When I refer to complexity, I mean anything other than a pool with a house and superannuation.

2. There was no suggestion in the evidence nor in the submissions that any expert investigation was needed. In reality, this was all about the wife’s solicitor being paid. No indication was in the wife’s material that she had sought litigation funding nor even legal aid. The solicitor who filed the affidavit of his own evidence did not say what the terms of his retainer were nor how much time would be needed to assist the wife to a position where confident advice could be given. That evidence is essential in a case like this.

3. Although the solicitor for the wife submitted that the husband was in a superior financial position to the wife because he had access to a line of credit and also some shares, I reject that. Young J put an injunctive cap on the line of credit. The shares are apparently linked to the line of credit. I have little helpful evidence about that.

4. What was unusual was that I suggested that if each party wanted to dip into the credit facility and then have it paid from their joint resources, they could do so and then jointly pay the interest and credit charges. Counsel for the husband was attracted to that. The solicitor for the wife rejected it on the basis that there was, in his submission, a disparity between the financial positions of the parties. I reject that for the reasons to which I have referred.

5. The husband has had the opportunity to meet his legal costs to date by the sale of a car but it was conceded that that would have to come back into the pool for division.

6. The husband is otherwise only in receipt of income which whilst much greater than the wife, is well covered in terms of its use by the financial statement he has filed.

7. There is no doubt that on the material that the wife presented, she has an inability to meet her ongoing litigation costs from her own income, assets or financial resources. But I do not know whether her practitioner has some arrangement or not under which she will be billed at the end of the case. The evidence was lacking.

8. I am not particularly troubled about what was said in Harris save that I see nothing compelling about the circumstances of this case.

9. Thus, there is no basis for me to make any order.

10. Having regard to the fact that there was considerable discussion about what was an appropriate level of evidence and what sort of orders should be made, I will make provision in the orders for submissions to be made for costs orders.

I certify that the preceding Forty Nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  21 August 2009