Worth and Worth (No 3)

[2016] FamCA 1120

FAMILY COURT OF AUSTRALIA

WORTH & WORTH (NO. 3) [2016] FamCA 1120

FAMILY LAW – EVIDENCE – Admissibility - Whether allegations of fact made in the mother’s affidavit should be struck out – Whether the affidavits of the mother’s brother and friend should be struck out - Where specific findings of fact made by a Magistrate in proceedings concerning allegations of domestic violence – Where the Magistrate determined the father had not committed acts of domestic violence.

FAMILY LAW – PROPERTY – Interim – Whether the father should be permitted to access $175,000 held in trust – Where the father wishes to use the funds to return from the UK for the purpose of securing employment  - Where the father adduced little evidence to assist the Court in its determination.

Family Law Act 1975 (Cth) ss 69ZX, 79, 80(1)(h)
Family Law Rules 2004 (Cth) 19.04

Strahan & Strahan (Interim property orders) [2009] FamCAFC 166

APPLICANT: Mr Worth

RESPONDENT: Ms Worth

INDEPENDENT CHILDREN’S LAWYER: Janelle Osborne

FILE NUMBER: BRC 1771 of 2014

DATE DELIVERED: 22 December 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 14 December 2016

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr George

SOLICITOR FOR THE RESPONDENT: Rosen Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Osborne

Legal Aid Queensland

Orders

1. That the father, Mr Worth, is given leave to put the transcript of proceedings in File no … in the Magistrates Court … that resulted in the Judgment of the Magistrate delivered on … 2014, into evidence in these proceedings, such leave being conditioned upon his putting the entire transcript of the proceedings into evidence and not just parts of it.

2. That the following parts of the affidavit of evidence-in-chief of the mother, Ms Worth, filed in these proceedings on 1 July 2015, be struck out:

1	All of last two sentences
3	All of the paragraph and the annexures
4	Whole of the paragraph
5	The last part of the third sentence after the word “handcuffs,”
10	Whole of paragraph
11	The first sentence
11	The first part of the second sentence  up to and including the words “not mentally stable where”
11	From the sentence on the 9th last line of the paragraph commencing “I spoke to the Psychologist..” to the end of the paragraph
12	Whole of the paragraph
13	Whole of the paragraph
15	Whole of the paragraph
16	Whole of the paragraph
17	All of the 2nd last sentence
18	Whole of the paragraph
19	The words on the first line “symptoms of the STEC infection”
20	All of the last sentence
21	All of the 2nd last sentence
25	Whole of the paragraph
27	All of the last sentence
28	Whole of the paragraph
29	From the 6th last line commencing with the words “I rang .” to the end of the paragraph
30	All of the paragraph save for the first sentence
33	All of the second sentence
33	From the words in the 3rd last line of the paragraph “as well as …” to the end of the paragraph
34	The words “presumably on the computer”
37	All of the 3rd sentence
42	All of the paragraph after the words “Dr S...”
43	Whole of the paragraph
47	Whole of the paragraph
48	Whole of the paragraph
57	Whole of the paragraph
68	All of the paragraph after the words “Suburb G”
73	The words “and tried to reason with him”
88	All of the last sentence of the paragraph
102 -119	All of the paragraphs
129	Whole of the paragraph

1. That the affidavits of evidence-in-chief in these proceedings of Mr B filed 8 July 2015 and Mr C filed 30 June 2015 be struck out.

2. That each of the mother and the father shall depose in the final updating affidavits of evidence-in-chief that each will file before the trial in these proceedings, to the total amount that he or she has spent on legal costs and outlays in the Magistrates Court family violence proceedings and in these proceedings in this Court and each should also depose in detail to the source of such funds.

3. That all other applications for orders contained in the father’s Application in a Case bearing date stamp 28 October 2016 are dismissed.

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 Worth & Worth (No. 3) 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 BRISBANE

FILE NUMBER: BRC 1771 of 2014

Mr Worth

Applicant

And

Ms Worth

Respondent

REASONS FOR JUDGMENT

1. Parenting orders and property adjustment proceedings between this former married couple have been listed for trial over eight days before me commencing on 20 March, 2017.

2. On 14 December, 2016, I heard an Application in a Case filed in the matter by Mr Worth. Mr Worth was unrepresented that day. The mother was represented by experienced counsel. The Independent Children’s Lawyer (“the ICL”) also appeared.

3. After working through Mr Worth’s application with him, it became clear that he was seeking orders in respect of the following matters:

   (i)He was seeking leave to be able to adduce into evidence for the trial the entire transcript of proceedings in the Magistrates Court between him and the mother pursuant to the Domestic and Family Violence Protection Act 2012 (Qld) that had taken place over three days in 2014.

   (ii)He was seeking to have paragraphs 1 – 119 of the affidavit of evidence in chief of the mother filed in the proceedings by the mother on 1 July 2015 struck out.

   (iii)He was seeking to have affidavits of Mr B filed 8 July 2015 and Mr C filed 30 June 2015 filed in these proceedings struck out.

   (iv)He was seeking a declaration that the filing of the affidavits just referred to was an abuse of process and an order that the mother’s solicitor pay the father’s costs of responding to those affidavits and this Application in a Case on an indemnity basis.

   (v)He was seeking an order that the mother be estopped from “filing allegations” of domestic violence by the father during her marriage to him.

   (vi)He was seeking an order that the mother inform the children’s treating health professionals, schools and social carers that there was no domestic violence perpetrated by the father on the mother or children over the period of her marriage to the father and in default, the ICL inform those people in lieu of the mother.

   (vii)He was seeking an order that the mother’s solicitor, Mr Warren Rosen, discloses the fees he has charged the mother and the source of the funds she has used to pay him.

   (viii)He was seeking an interim property settlement of $175,000 so that he could move back to Australia from the United Kingdom where he is currently living.

   (ix)He was seeking interim orders that the children live with him in the UK pending the trial in March, 2017.

   (x)He was seeking to have the Form 4 Notice of Risk of Child Abuse filed by the mother in the proceedings removed from the Court file.

4. I informed the father that I would not be determining on the interim application the question of whether the filing of the mother’s affidavit and the affidavits of Mr B and Mr C amounted to an abuse of process as that matter was more appropriately considered after all of the evidence is considered at the trial.  I also told him that I would not be entertaining an application for the wife’s solicitor to pay the father’s costs when such application was not brought against that solicitor on notice. The father then conceded that as he has been acting for himself that the costs application was not worth pressing.

5. I also told the father that I would not be making an order that the mother is “estopped from filing allegations of domestic violence by the father”. I considered that order too broad and I was quite satisfied that it should not be made on an interim basis on a hearing undertaken just on the papers.

6. I also told the father that I would not consider making the order that the mother inform the children’s treating health professionals and schools that there was no domestic violence perpetrated by the father on the mother or children during the marriage but rather that it was more appropriate to be considered at the trial and determined as part of the final determination of parenting orders after I have gained a broader understanding of the interrelationship of all of the issues.

7. I also quickly told the father that I would not be considering making orders on an interim basis that the children go to live with him in the UK when the eight day final parenting orders trial is listed for March, 2017. My preliminary knowledge of the case and its difficulties informed me that was just not appropriate on an interim basis on the papers.

8. I also told the father that I would not be striking out the mother’s Form 4 Notice of Risk of Child Abuse. I told the father it was a procedural document, alerting the Court at the earliest possible time to the fact that the party filing it considered there was a risk of child abuse to the children thus putting the Court on notice that the allegations would need to be considered in the determination of the proper parenting orders. There is, in my view, no basis for striking it out.

The Mother’s Initial Argument

1. Counsel for the mother argued that Mr Worth’s Application in a Case should be summarily dismissed. He pointed out that the father was relying not only on his affidavit filed on 28 November, 2016, but also numerous other affidavits and documents referred to in his affidavit and he referred to the Rule that only one affidavit is to be relied upon in support of an Application in a Case. He also submitted that it was quite difficult to actually distil what it was the father was actually seeking by way of orders.

2. Whilst there was some merit in those submissions for the mother, I nevertheless determined to hear the father’s application. As I have said, the actual orders the father is seeking were relatively easy to distil from his Application in a Case and the content of his principal affidavit filed in support. I was satisfied that the mother, particularly being represented by the experienced solicitor and counsel that she was, would have appreciated what it was she was on notice to answer. I was prepared to consider the application, notwithstanding the father’s reliance on many affidavits previously filed. I was quite satisfied, that the central issue surrounding the particular allegations of family violence that were the subject of the Magistrates Court proceedings was not one on which the mother and her legal representatives were taken by surprise. The interests of justice in this matter and my regard for broader case management requirements convinced me not to adjourn the matter for hearing on another day and saw no reason to summarily dismiss the father’s application.

The Father’s Case

1. The father put into evidence the judgment of the Magistrate, delivered in domestic violence proceedings between the father and the mother in June 2014. He submitted that extensive findings of fact were made by the Magistrate in those proceedings in respect of specific incidents of domestic violence that the mother alleged had occurred between him and the mother. In short, a reading of the Magistrate’s judgment reveals that her Honour had rejected the mother’s evidence and accepted the father’s evidence and determined that the father had not perpetrated domestic violence against the mother as she specifically alleged. The Magistrate essentially found that the mother had made up the allegations and had effectively conspired with her brother, Mr B, and her friend, Mr C, to falsely accuse the father of domestic violence to gain practical advantage in their dispute and to gain tactical advantage in the Court proceedings that were commenced pursuant to the Family Law Act 1975 (Cth).

2. The father’s relatively simple submission was that the mother had merely repeated the same factual allegations in her affidavit evidence filed in these parenting proceedings and that, consequently, the transcript of the proceedings in the Magistrates Court should be admitted into evidence in the parenting proceedings to put her evidence about family violence in proper perspective. He also submitted that the allegations of fact made by the mother and her two witnesses, Mr B and Mr C, should be struck out as the factual matters the subject of those allegations had already been determined by a judicial officer in proceedings between the same two parties and should not have to be determined again.

3. As for the issue of leave to put the transcript into evidence for the trial, counsel for the mother submitted it is not relevant to the matters in issue. Having read the affidavit of evidence in chief of the mother filed in these proceedings on 1 July 2015 and the Reasons for Judgment of the Magistrate in the family violence order proceedings, I respectfully reject that submission. I consider it important that the transcript of those Magistrates Court proceedings is adduced in evidence, where the mother has repeated many allegations in sworn evidence in this Court that were decided in such a strong fashion against her by the Magistrate. I consider the matters traversed in those proceedings will be of relevance to a number of aspects to be considered when determining the appropriate parenting orders to make, having regard to the best interests of these children. I am able to receive that transcript into evidence pursuant to s 69ZX of the Family Law Act. I will give the father leave to adduce the transcript, conditioned on him putting the entire transcript for all of the proceedings in the Magistrates Court into evidence.

4. Having read the Reasons for Judgment of the Magistrate and the affidavit of evidence in chief of the mother filed 1 July 2015, I am not minded to simply strike out all of the paragraphs from 1 through to 119 of the mother’s affidavit. However, I do accept that much of the content of the affidavit is inadmissible for a number of reasons, including my acceptance of the fact that many of the factual matters asserted by the mother in those paragraphs have been subject to findings of the Magistrate. I am empowered to adopt any “finding, decision or judgment” of the Magistrates Court pursuant to s 69ZX of the Family Law Act and in this matter I consider it entirely appropriate to do so.

5. The Magistrate heard evidence in the matter over three days, including cross-examination by the father by the mother’s solicitor and cross-examination of the mother and her witnesses by the father. The Magistrate gave very detailed reasons in support of her decision, particularly in respect of her credibility findings in respect of each of the witnesses. She clearly set out what she found happened and did not happen on each of the occasions the mother alleged the father was violent towards her.

6. In addition, counsel for the mother made no submissions that this Court should not adopt or accept the Magistrate’s findings on these issues. In fact, to his credit, counsel conceded that it would be wrong for the mother to continue to try to assert that the events happened in the way she deposed to them happening where the Magistrate had clearly rejected her evidence and found against her on those matters. 

7. I will order that the following parts of the affidavit of evidence in chief of the mother filed 1 July 2015 are struck out. I set out in summary form in the following table my reasons for striking out each part.   

Paragraph Number	Part	Reason
1	All of last two sentences	Speculation/assumption/opinion/ hearsay
3	All of the paragraph and the annexures	Issue determined by the Magistrate – dealt with in the Judgment of the Magistrate
4	Whole of the paragraph	Issue determined by the Magistrate – dealt with in the Judgment of the Magistrate
5	The last part of the third sentence after the word “handcuffs,”	Speculation
10	Whole of paragraph	Self-serving/opinion/hearsay
11	The first sentence	Self-serving
11	The first part of the second sentence  up to and including the words “not mentally stable where”	Self-serving/comment
11	From the sentence on the 9th last line of the paragraph commencing “I spoke to the Psychologist...” to the end of the paragraph	Hearsay and self-serving comment
12	Whole of the paragraph	Self-serving and irrelevant
13	Whole of the paragraph	Self-serving/ hearsay/irrelevant
15	Whole of the paragraph	Self-serving and irrelevant
16	Whole of the paragraph	Self-serving and irrelevant
17	All of the 2nd last sentence	Self-serving/comment
18	Whole of the paragraph	Self-serving/hearsay
19	The words on the first line “symptoms of the STEC infection”	Unqualified opinion
20	All of the last sentence	Self-serving/irrelevant
21	All of the 2nd last sentence	Speculative/prejudicial value outweighs probative value
25	Whole of the paragraph	Self-serving/irrelevant
27	All of the last sentence	Self-serving/irrelevant
28	Whole of the paragraph	Self-serving/irrelevant/hearsay
29	From the 6th last line commencing with the words “I rang .” to the end of the paragraph	Self-serving/irrelevant/hearsay
30	All of the paragraph save for the first sentence	Comment/opinion
33	All of the second sentence	Comment/self-serving
33	From the words in the 3rd last line of the paragraph “as well as …” to the end of the paragraph	Comment/self-serving
34	The words “presumably on the computer”	Speculative
37	All of the 3rd sentence	Reference to something that is clearly hearsay
42	All of the paragraph after the words “Dr S...”	Hearsay
43	Whole of the paragraph	Hearsay/self-serving/matters determined by Magistrate
47	Whole of the paragraph	Issues determined by Magistrate
48	Whole of the paragraph	Issues determined by Magistrate
57	Whole of the paragraph	Hearsay/self-serving
68	All of the paragraph after the words “Suburb G”	Self-serving
73	The words “and tried to reason with him”	Self-serving/opinion
88	All of the last sentence of the paragraph	Argumentative
102 -119	All of the paragraphs	All matters decided by the Magistrate.

1. Although the father did not apply to have paragraph 129 of the mother’s affidavit struck out, I will also order that be struck out, along with the email that is referred to and annexed as SLW 19 to the affidavit. The evidence contains hearsay attributed to the mother’s solicitor and opinion evidence expressed by the mother on matters she has no direct knowledge of. I do not consider that evidence about a disagreement between the mother’s solicitor and the father will help me determine parenting orders in this case and I will not let that be adduced.

2. I have also read the affidavit of Mr C filed 30 June 2015 and the affidavit of Mr B filed 8 July 2015. They depose to events particular to one particular day that were the subject of the Magistrates Court proceedings and the Magistrate’s judgment that I have also read. The Magistrate referred to their evidence, both written and oral, and categorically rejected their versions of the events they deposed to. I will strike both of those affidavits out in their entirety in these proceedings.

1. As for the application for the mother’s solicitor to disclose the fees that he has charged the mother and the source of the funds she has used to pay him, I was not persuaded that the obligations imposed upon the solicitor by the Family Law Rules, particularly Part 19.2 of those Rules, are not sufficient obligation upon the mother’s solicitor to disclose the costs he has charged. I made it clear during the hearing that I expect the obligations of Rule 19.04(2), (3) and (5) to be complied with before and at the commencement of the trial. That is sufficient obligation imposed directly on the mother’s solicitor.

2. Having said that, having regard to the fact that the parties are in dispute about property adjustment orders, I am also satisfied that each of the mother and the father should depose in the final updating affidavits of evidence-in-chief that each is still to file before the trial, to the total amount that he or she has spent on legal fees and outlays in the Magistrates Court family violence proceedings and in the proceedings in this Court and each should also depose in detail to the source of such funds. Counsel for the mother informed the Court that the mother would comply with such an order. The father will have to as well.

3. Finally, the father made application for an interim payment of $175,000 from money held in trust. The money in trust is what is left of the proceeds of sale of the mother’s and the father’s former family home. The father made it clear that he does not seek that payment in order to fund legal representation for the trial. He said he wants it so that he can afford to return from the UK where he is currently living to live in Australia in circumstances where he asserts he cannot currently secure employment here.

4. The father made no reference to authority, principles or statutory provisions in support of this part of the application, save for referring to one Full Court decision in which the notional add-back of amounts spent on legal fees was discussed. He did not refer to Strahan & Strahan (Interim property orders) [2009] FamCAFC 166, perhaps the seminal Full Court authority on interim distribution of property. In that case the Full Court confirmed that the Court has the power to make interim property orders in advance of final orders. See s 79 and s 80(1)(h) of the Family Law Act.

5. The Full Court in the Strahan case made it clear that the determination of such an application involves the first step of determining whether the circumstances require the exercise of the power and the second step of actually exercising the power. When first considering whether to make an interim property order, as was said in Strahan, the “overarching consideration” is the interests of justice. Having regard to the fact that the usual order pursuant to s 79 is “a once and for all” order made after a final hearing, it must be determined to be appropriate to exercise the power. If it is, then the power must be exercised pursuant to the provisions of s 79, with some consideration given to the matters required to be considered pursuant to that section, circumscribed by the fact that it is not a final hearing, and with respect for the fact that any orders made settling property on a party need to be within the bounds of what that party would clearly achieve in the final outcome or at least capable of reversal in the final proceedings if that is necessary to do justice and equity on a final basis.

6. The difficulty for the Court in this case arises out of the fact that the father adduced little evidence at all that would enable the Court to work through the second step of the process just identified with any degree of comfort or confidence that justice could be done with an interim payment to the father. Further, with respect to the father, he made no useful submissions on the point that would assist the Court to make a just and equitable interim distribution of capital that would be (a) within the bounds of the father’s likely entitlement to property at the conclusion of the final hearing and/or (b) able to be reversed or “clawed back” in the event that such a step became necessary in order to do justice and equity between the mother and a father on a final basis.

7. Accordingly, the father’s application for interim property distribution will also be dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 22 December 2016.

Associate: 

Date:  22 December 2016