Freedom Law

Disclosures lead to risk findings 

Disclosures lead to risk findings

  1. From the period commencing about September 2016 until a disclosure was made, the mother says, under oath on 8 November 2016, tensions further increased between these parties. On an interim basis, I do not propose to make any findings about that period save to observe that the mother had, as is clear from the medical records tendered today, been concerned about the child’s health. The medical notes of a consultation with Dr G on 31 May 2016, and subsequently on 21 October 2016 (being about a month after the last unsupervised visit with the father) reflect nothing more than a concerned mother getting appropriate medical attention for her daughter.
  2. The mother in her Affidavit says that the child made some disclosures to her. The particularisation of those disclosures, said to have been made on five different occasions, is somewhat vague in her current material. I accept that it would be necessary, and will be, considering the extent of her good and quality legal representation, better articulated in any trial material. It is important always to not only look at the words the child utters but to see the context for those words. What questions preceded the disclosure? What was the context of other things going on in the child’s life at that stage?
  3. There is very little of that context provided in the mother’s current Affidavit. However, the Court would not be critical of any parent who hears something which concerns them about abuse, be it sexual or physical, being hyper-vigilant and seeking to have the matter further investigated. The mother did so. No disclosures were made in a police interview. I have not seen that interview, which I presume was either taped or recorded in some way. The mother sought some form of medical support to possibly exclude sexual abuse, rather than to necessarily find that it occurred, but in any event the medical reports did not do either.
  4. The sad reality is that because of these disclosures that the mother swears to have been made to her, and her concerns about the child being at risk, the father’s time with the child came to an end. There were no orders that could be enforced and the father brought an application for specific orders in June 2017 in the Federal Circuit Court of Australia. After the mother, before Judge Howard on 7 August 2017, raised very serious areas of risk in her Affidavit filed on 4 August 2017, his Honour made orders which transferred the matter to this Court, quite properly, in the likelihood that it would be a Magellan case. His Honour ordered on an interim basis, that an Independent Children’s Lawyer be appointed, ordered that the child live with the mother, and at order 2 made an order that the child spend no time with the father.

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Queensland / New South Wales / Victoria

Adoption approved for 14 year old girl and step-father

Adoption approved for 14 year old girl and step-father

  1. The child B was born in 2004. She is now 14 years of age. Her mother is Ms Harvey and her father is Mr Igin. The mother and her new partner Mr Harvey commenced cohabitation not long after final separation, but in October 2007. At that stage, of course, the child was but three and a half years of age. The evidence from the mother and her partner Mr Harvey identify that the child has been brought up in the household with an understanding that she has a biological father, but that in many ways and in every way Mr Harvey has acted as a key father figure in her life. This arises from the fact that although the mother and the biological father were married in 2000, they separated in December 2004. At that stage, the child was about nine months of age.
  2. The biological father has not caused an appearance to be made today. The mother says that the relationship was shaped by domestic violence. She obtained a Domestic Violence Order initially in November 2005. Subsequently, proceedings were commenced by the father in the then Federal Magistrates Court of Australia in 2005. Final orders were made by that Court on 2 March 2007. Those orders provided that the child, the child, would live with the mother; that the mother would be responsible for the day to day care, welfare and development of the child; that the father communicate and spend time with the child as agreed between the mother and father to include by telephone each Wednesday; the Independent Children’s Lawyer was discharged and the order, having been made in the absence of the father in 2007, gave to the father a limited opportunity to seek to discharge the order on notice. He has not done so.
  3. Since then the child has, I am satisfied, been cared for, nurtured, loved and has developed in the household of the mother and her partner Mr Harvey. The mother says, and I accept, that the child’s surname was changed to “Harvey” with the consent of the biological father, although, it seems, on the basis that there be no further pursuit of the biological father for child support. I am told this morning that the child has an Australian passport as a result of the consent of the biological father at the time.
  4. Both Mr Harvey and the mother inform the Court that the child has not spent any physical time with the father since February 2007, now over 11 years ago. Intermittent telephone time has occurred.
  5. With this history, I turn my mind to the law. Section 60G of the Family Law Act 1975 (“the Act”) provides that.

(1) Subject to subsection (2), the Family Court, the Supreme Court of the Northern Territory or the Family Court of a State may grant leave for proceedings to be commenced for the adoption of a child by a prescribed adopting parent.

(2) In proceedings for leave under subsection (1), the court must consider whether granting leave would be in the child’s best interests, having regard to the effect of paragraph 60F(4)(a), or paragraph 60HA(3)(a), and of sections 61E and 65J.

  1. I am satisfied it is in the best interests of the child that leave be granted to Mr Harvey as a prescribed adopting parent so defined to seek through the requirements of s.92 of the Adoption Act 2009 (Qld) the right to be the adoptive father of the child. The child is within the age span required by the legislation. Although I am satisfied the biological father has notice of these proceedings, he has not attended today. That does not mean, of course, that when the adoption proceedings are commenced, as they will be, and when he is again given an opportunity to be heard on those proceedings, he may not choose to appear then, but that is a matter for the State authorities to deal with under State Law.
  2. For all those reasons, I make an order granting leave pursuant to s.60G of the Act to the Applicant, Mr Harvey, to make an application pursuant to the Adoption Act 2009 (Qld) for the adoption of the child B born in 2004.
  3. The mother’s initial application seeks an order that the child be permitted to travel overseas. In fact, it is the mother’s amended Application seeking a variation to the previous final parenting orders that there be a specific issue order allowing Ms Harvey to make all travel decisions for B.
  4. The mother was born in Country C and her family live in Country C. Earlier Affidavits identify a desire to be in Country C for a celebration of the 50th celebration of the maternal grandparents’ marriage. Circumstances have now arisen which have delayed that trip and so as to provide flexibility, the mother seeks an order that would facilitate her ability to travel outside of Australia.
  5. Furthermore, it seems, on the mother’s evidence, that the authorities in Country C now require a document called a “parental consent affidavit” which identifies that where a child is travelling with only one parent, the other parent has consented to travelling in or out of Country C. The mother says this is to try and deal with concerns relating to child trafficking. I am not aware of what the laws of Country C will make of an order which under Australian law would give the mother, as I believe in the child’s best interests, complete authority to make travel arrangements for the child.
  6. The simplest way to deal with that is, in my view, and consistent with the best interests of the child, bearing in mind the history already indicated, will be to provide to the mother an order for sole parental responsibility. That was not part of the initial consent orders made in March 2007. Accordingly, I will make an order that the mother, Ms Harvey, the biological mother of the child, have sole parental responsibility for the child, the child Harding, including but not limited to the ability to make all travel arrangements for the child, including into and out of Country C.

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Queensland / New South Wales / Victoria

BRISBANE CASE MANAGEMENT INITIATIVE

BRISBANE CASE MANAGEMENT INITIATIVE

Brisbane Federal Circuit Court is conducting a trial of a new way of managing cases in its
Brisbane registry from 4 June 2018.

The pilot will limit case management to a discrete number of judges who will have
responsibility for managing applications as they progress towards resolution. The
remaining judges will focus on hearing and determining matters that are listed for final
hearing.

WHY IS THIS PILOT NEEDED?

The Court is conscious that it must explore ways
of deploying its present resources to maximise
the opportunity for cases to be resolved in a
timely way.

The pending number of final order applications
in the Court has grown in past five years; the
percentage of pending cases over 12 months
old has increased; and the median time for trial
has increased to 15.2 months.

The Court is considering a range of options to
manage its workload and these options focus
on facilitating earlier resolution of matters and
the timely disposition of those for which a trial is
required.

WHAT WILL THIS PILOT ACHIEVE?

It is anticipated that concentrating case
management of matters to a limited number of
judges will have the following benefits:
• greater consistency by consolidating the
management of cases to a limited number
of judges
• reduced timelines by identifying matters that
can be settled earlier in the life of the case
• improved outcomes by using additional
forms of alternative dispute resolution
• improved efficiency by ensuring resources
such as Family Consultants are used
consistently and effectively
• reduced impact to litigants by lessening the
time at court, and the number of visits to
court
• better information for stakeholders, and
• reduced impact of the introduction of digital
changes in family law.

WHEN WILL IT HAPPEN?

The pilot will commence on 4 June 2018 and
run until 31 December 2018.

WHAT WILL CHANGE?

There will be minimal changes to filing and
other Brisbane registry-based procedures during the
pilot.

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Brisbane / Sunshine Coast / Gold Coast / North Queensland

Vacant possession and control of sale given to Wife

Vacant possession and control of sale given to Wife

  1. As opined by Watts J in Moroni & Moroni [2014] FamCA 664:

The notion of a “level playing field” is one which almost axiomatically is in the interests of justice and an important matter to consider when deciding whether it would be appropriate to make an interim property order.

  1. The husband has occupied the prime matrimonial asset to the exclusion of the wife now for almost three years. The wife has had to rent a home for herself and the parties’ child at significant cost to her from her available capital referred to above. She has reasonably accounted for her expenditure of other funds available to her.
  2. The husband has no plan to resolve the impasse as to the Suburb C property, indeed he asserts a multitude of issues that may impact on the sale of the property and leave him as the only viable owner.
  3. In reality the market will set the sale price and hence the value of the property.
  4. In the circumstances as discussed above, it is appropriate and in the interests of justice that the Suburb C property be sold and that the wife have the carriage of that sale particularly due to the husband’s lack of action in rectifying issues with the property in the past. The husband will be required to give vacant possession promptly with the wife having sole use and occupation pending sale.
  5. By reason of a consideration of contributions and other factors above, it is appropriate that both parties receive $200,000.00 from the proceeds of sale and from the sum payable to the husband the wife be paid her outstanding costs and interest with the balance invested in a controlled monies account pending further order.

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Queensland/New South Wales/Victoria

Interim property settlement principles

Interim property settlement principles

  1. The principles as to applications for interim property provision are well settled, (Strahan & Strahan [2009] FamCAFC 166) and require a two-step process.
  2. Firstly, there must be circumstances enlivening the power to make an interim order. The test is not limited to “compelling circumstances” but whether it would be “appropriate” to make an interim order, with the “overarching consideration” being the interests of justice.
  3. In Strahan (supra), the Full Court said:
    1. In relation to the first stage, in our view, when considering whether to exercise the power under s 79 and s 80(1) (h) of the Act to make an interim property order the “overarching consideration” is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.
  4. Secondly, the Court is to have regard to relevant matters in s 79 of the Family Law Act 1975 (Cth).
  5. It needs to be kept in mind that the final outcome of property settlement should not be compromised by an interim property order. In Harris & Harris [1993] FamCA 49(1993) FLC 92-378 the Full Court stated that either the remaining property needs to be adequate to meet the legitimate expectations of both parties at the final hearing or the order that is contemplated needs to be capable of being reversed or adjusted if it is subsequently considered necessary to do so. (Emphasis added)
  6. It is important to have regard to an overall caution. In Harris (supra), the Full Court said:

As a generality, the interests of the parties and the Court are better served by there being one final hearing of s 79proceedings.

  1. In Strahan (supra), the Full Court said at [132]:

… regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.

  1. It is now well settled that in property cases the Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then determine whether it is just and equitable to make a property settlement order. Such a consideration should not be guided by an assumption that the parties’ rights to, or interests in, property are, or should be, different from those that then exist. The question is whether those rights and interests should be altered.
  2. There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4). The Court needs to conclude that it would be unjust or unfair to leave property rights intact.
  3. In many cases this requirement is readily satisfied where the parties are no longer in a marital or de facto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.

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Queensland/New South Wales/Victoria

Maternal grandparents application to have a relationship with child fails

Maternal grandparents application to have a relationship with child fails

Family Report

  1. The Family Reporter recorded a number of concerns expressed by the parents about the maternal grandparents. They were of the view that the child has no meaningful relationship with the maternal grandparents, doubted whether the maternal grandparents would prioritise the child’s best interests, considered that the child would be distressed at the prospect of spending time with the maternal grandparents, were concerned that the maternal grandparents would take the child to her birth mother’s grave site and were concerned that the maternal grandparents would involve them in further litigation. They complained to the Family Report writer that the maternal grandparents were not prepared to visit Asia.
  2. Importantly, the Family Report writer considered that the child had been embroiled in the dispute. When observed with the grandparents she referred to the grandparents as “those people”, and “bad people”. She told the Family Report writer that her parents did not like the maternal grandparents and that the maternal grandparents had got the father into trouble with the judge. When observed with the maternal grandparents she was resistant to verbal interaction with them. The child explained to the Family Reporter that her parents talk about Court all the time and that she never wanted to see the maternal grandparents again.
  3. According to the Family Report writer the views expressed by the child had been influenced by the conflict between the mother and father with the maternal grandparents. She did not think that those views were necessarily genuine but rather revealed the impact of the conflict upon the child. The fact that the child is caught in the middle of this conflict was thought to be detrimental to her development. Although the relationship between the child and the maternal grandparents was not sufficient for this to cause her “emotional dilemma and loyalty bind” the conflicts meant that “it may not be in her best interest to maintain relationships with her grandparents”.
  4. The particular concern of the Family Reporter was that the parents “have contributed to the child’s distress”. They have not protected the child from the adult conflict and appear to have directly exposed her to their negative feelings about “the grandparents”. She thought they were unlikely to support the relationship “where they believe there is no benefit, a possible risk”. The problem for the child, she thought, came from the father’s and mother’s “narrative of Ms Leary’s behaviour”.
  5. The consequence of the nature of the relationship between the parents and the maternal grandparents, where the Family Reporter thought that the father and the maternal grandparents blamed each other in relation to the death of the birth mother, meant that “the child will increasingly be placed in a position where she feels she must actively reject her grandparents… This would not be psychologically healthy for the child”. During the hearing of the matter the maternal grandfather said that he blamed the father for the birth mother’s death.
  6. However, the consequences of being completely cut off from the biological family could “be quite damaging to her development” as she “could benefit from maintaining relationships with her maternal grandparents”. These connections would give her connections to her family, to her birth mother and to her Chinese and New Zealand heritage that she gained from her birth mother.
  7. On balance, the Family Consultant thought not only was overnight time not appropriate in the foreseeable future for the child but that due to the conflict and attitude of the parents it was better for there to be no orders in place, rather than orders supporting the time.
  8. If the parents are not supportive of the child spending time with the grandparents, there is likely to be conflict and the parents are either unwilling or unable to shield the child from that conflict. There is a risk that the parents will not comply unless the visits are on their terms. The child is vulnerable to that conflict and it is likely to lead to stress for her. In turn, the child may then feel forced to spend time with the grandparents. In the circumstances where the child is beginning to reject the grandparents, there is a risk of increased rejection in the absence of support from the parents.
  9. The presence of orders was thought by her to likely add to further resentment on the part of the parents, undermining the possibility of relationship between the child and the paternal grandparents. Conversely, she thought the absence of orders may facilitate better relations and a better prospect for the child to have a relationship with the maternal grandparents.
  10. As opposed to this, the risk of no time with the grandparents is a risk of loss of connection to the maternal family, to the child’s cultural background and with her deceased birth mother. Connection with the family may allow the child to ask questions about her birth mother. The significance of those connections is more prominent in teenage years and into adulthood. The loss of such may be connected to acting out, rebellion and mental health issues.
  11. In consequence she recommended:
    1. That [the child] live with her parents, [Mr Wilton] and [Ms Niet], and that [Mr Wilton] and [Ms Niet] have the ability to decide where they live, including the option of relocating to [Asia].
    2. That there be no orders made regarding [the child] spending time or communicating with [Ms Leary] and [Mr Leary].
    3. That [Mr Wilton] and [Ms Niet] facilitate [the child] communicating with and spending time with her maternal grandparents, in the absence of Court Orders. It is recommended that [the child] communicate with her maternal grandparents once per month and spend time with them twice per year. It is recommended that this time take place once per year in the city in which [the child] lives and once per year in Sydney, Australia.

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Queensland/New South Wales/Victoria

 

Impecunious litigant fails to avoid a costs order

Impecunious litigant fails to avoid a costs order

  1. The application for costs falls to be determined according to the provisions of s 117(2A) of the Family Law Act 1975 (Cth). In the event that it is determined that the husband should pay the Applicants’ costs, the law in relation to indemnity costs will be considered separately. The relevant part of the section is set out below:

(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:

(a) the financial circumstances of each of the parties to the proceedings;

(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;

(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

(g) such other matters as the court considers relevant.

  1. The Applicants and the husband have made written submissions.

The financial circumstances of the parties

  1. There is no evidence before the Court of the present financial circumstances of the Applicants except that they have received almost $5,000,000 from the sale of H Street; they have funded the wife’s legal expenses by lending her in excess of $1,300,000 and they have lent the wife $1,500,000 to purchase a house for $1,300,000.
  2. By operation of the orders made in the substantive proceedings, the husband will receive immediately approximately $48,000 by way of property settlement together with his share of the proceeds of sale of a property at B Street, Suburb C which may exceed some $700,000 after payment of costs, capital gains tax, adult child maintenance, payment to the wife by way of property settlement and payment to solicitors on account of Supreme Court costs.

The conduct of the proceedings

  1. I accept the submission on behalf of the husband that the involvement of the Applicants in the proceedings, prior to 21 March 2016, was at the instigation of the wife. However, after that date, it was the husband who sought orders contrary to the interests of the Applicants.
  2. I do not accept the submission made on behalf of the husband that, had the wife agreed to the husband receiving funds by way of interim property settlement, his claim could have been prosecuted in a more timely way.
  3. On 24 August 2016, an order was made pursuant to which the husband received $200,000 in addition to the $50,000 he had already received from the proceeds of H Street. He spent the whole of that amount within a short period without making proper provision for his ongoing legal expenses.
  4. The husband did not comply with the orders of 24 August 2016 as to the filing of a Statement of Claim within 28 days.
  5. The husband’s application to adjourn the hearing on 2 November 2016 was wholly unsuccessful.
  6. The matter could not proceed on 7 November 2016 because the husband had not filed his affidavit material as he had been directed to do.
  7. When, after the appeal period had passed, the Applicants invited the husband to consent to the release of their funds, he did not respond and yet another appearance was required by the Applicants to secure an order for the release of their funds. Had the husband agreed, the legal costs incurred by the Applicants from 14 December 2016 until 10 April 2017 could have been avoided.

Whether any party has been wholly unsuccessful

  1. The husband was wholly unsuccessful.

Offers of settlement

  1. Senior Counsel for the Applicants submitted that an offer of settlement made by them on 7 October 2016 is relevant. The Applicants offered to settle on the basis that:
    • They be declared to be entitled to 50 per cent of the proceeds of H Street;
    • That they not be liable for any part of the costs of the purchasers in the Supreme Court;
    • That the husband pay their costs of $120,000.
  2. Except in relation to the quantification of costs, that offer did no more than restate the Applicants’ position and suggested no compromise on their part.
  3. There was, however, a relevant offer made by the Applicants on 7 October 2016 which was to invest the proceeds of H Street in a term deposit in order to maximise interest. The evidence does not assist me to know what interest rate was being earned in the controlled monies account so I am unable to find that more interest could have been earned in a term deposit.

Any other relevant matter

  1. The Applicants submit that they were kept out of the use of their substantial funds from 21 March 2016 until 10 April 2017. There is no evidence of any particular investment that they were prevented from making but I accept that being prevented from making commercial use of almost $5,000,000 is a significant matter.
  2. On behalf of the husband it is submitted that, as demonstrated by the fact that on two occasions, orders were made for interim property settlement, the Court would accept that the husband was under a financial disability. I do not consider this to be a relevant factor. In Lenova & Lenova (Costs) [2011] FamCAFC 141, the Full Court said:
    1. That consideration must, of course, be balanced against a litigant having a limited capacity to meet a costs order, as well as any other relevant considerations. But, a limited financial capacity to meet an order can not be determinative; if it were, a party would always be able to plead impecuniosity as a means of avoiding a costs order in circumstances where pursuit of the litigation has continued in the face of a reasonable offer to cease that litigation and the incurring of its attendant costs.
  3. Nor do I consider that the matters of complaint about the conduct of the wife which are raised in the husband’s submissions are relevant to this determination.
  4. All of these factors lead me to the conclusion that the husband should pay the Applicants’ costs incurred between 21 March 2016 until 10 April 2017.

INDEMNITY COSTS

  1. The Full Court considered the law in relation to indemnity costs in Prantage & Prantage [2013] FamCAFC 105;(2013) 49 Fam LR 197 (“Prantage”)The majority set out the principles to be applied, confirming that the principles enunciated by Sheppard J in ColgatePalmolive Co v Cussons Pty Limited [1993] FCA 536(1993) 118 ALR 248 (“Colgate-Palmolive”) should continue to be applied in the Family Court of Australia.
  2. In Colgate-Palmolive Sheppard J set out the following principles or guidelines relating to the award of indemnity costs in the following passage, at 256-257:

In consequence of the settled practice which exists, the court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the court in departing from the usual course. That has been the view of all judges dealing with applications for payment of costs on the indemnity or some other basis whether here or in England. The tests have been variously put. The Court of Appeal in Andrews v Barnes (39 Ch D at 141) said the court had a general and discretionary power to award costs as between solicitor and client “as and when the justice of the case might so require”. Woodward J in Fountain Selected Meatsappears to have adopted what was said by Brandon LJ (as he was) in Preston v Preston ([1982] 1 All ER at 58) namely, there should be some special or unusual feature in the case to justify the court in departing from the ordinary practice. Most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of factors which would be capable, if they existed, of warranting a departure from the usual rule. But as French J said (at 8) in Tetijo: “the categories in which the discretion may be exercised are not closed”. Davies J expressed (at 6) similar views in Ragata.

Notwithstanding the fact that that is so, it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J inFountain and also by Gummow J in Thors v Weekes [1989] FCA 540(1989) 92 ALR 131 at 152 evidence of particular misconduct that causes loss of time to the court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata)or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal); Crisp v Kent (SC(NSW)(CA), 27 Sept 1993, unreported) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records). Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis.

It remains to say that the existence of particular facts and circumstances capable of warranting the making of an order for payment of costs, for instance, on the indemnity basis, does not mean that judges are necessarily obliged to exercise their discretion to make such an order. The costs are always in the discretion of the trial judge. Provided that discretion is exercised having regard to the applicable principles and the particular circumstances of the instant case its exercise will not be found to have miscarried unless it appears that the order which has been made involves a manifest error or injustice.

  1. In Prantage, the Full Court referred to the requisite circumstances as “exceptional”.
  2. In the present case, the husband maintained an argument against the interests of the Applicant that failed.
  3. Such a course of action, while it is time-wasting and financially wasteful, is not exceptional.
  4. Costs will be paid on a party and party basis.

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Queensland/New South Wales/Victoria

Payment of Mediator’s Cancellation Fee

Payment of the Mediator’s Cancellation Fee

  1. By Orders made by consent on 17 August 2017, the parties were to attend mediation prior to 15 December 2017.
  2. The parties agreed to attend mediation with a particular mediator on 7 December 2017 and that was confirmed on 25 October 2017. The wife’s solicitors wrote to the husband’s solicitors on 2 November 2017, informing that some time would be required by the wife to consider the documents that the husband was still to disclose prior to the mediation.
  3. The wife deposed to the receipt by her solicitors of further disclosure from the husband on 9 November 2017, which she said was incomplete. The wife’s solicitors wrote to the husband’s solicitors on 14 November 2017 and told them that the wife was not in a position to meaningfully engage in mediation on 7 December 2017 whilst the husband remained in breach of his disclosure obligations. The wife’s solicitors proposed postponing the mediation until a date in January 2018 and sought the husband’s agreement to approach the mediator in that respect.
  4. The wife said in evidence that the husband’s solicitors had told her solicitors on 16 November 2017 that the remaining disclosure could be provided by the husband in the week commencing Monday, 20 November 2017. The husband did not deny or dispute that evidence of the wife in his affidavit evidence.
  5. Further, the wife said in evidence that she instructed her solicitors to inform the husband’s solicitors that she “would remain prepared” to attend mediation on 7 December 2017, provided her solicitors were provided with certain documents by Tuesday, 21 November 2017. The list of documents she said she required relevantly included the 2017 Financial Statements and Taxation Returns for the B Superannuation Fund, C Unit Trust and the H Unit Trust. The husband accepted that the wife’s solicitors did inform his solicitors of her instructions on 16 November 2017.
  6. As at the date of swearing her affidavit that was filed on 20 December 2017, the wife asserted her solicitors had not received a response to that communication, nor the documents requested. That has not been disputed either.
  7. The wife said that her solicitors informed the mediator on 22 November 2017 that she was not in a position to be able to participate meaningfully in the mediation on 7 December 2017 and asked the mediator to send any cancellation fee to the husband’s solicitors.
  8. The wife said that on the same day, the husband’s solicitors communicated the husband’s refusal to pay all of any cancellation fee as he considered the matter still capable of mediation. Indeed, the husband, in his affidavit evidence, concedes that it was his position that they could still participate in the mediation.
  9. The wife’s solicitors received an invoice from the mediator on 5 December 2017 for the sum of $1,182.50 being half of the total cancellation fee.
  10. Though, I do not know whether the wife has paid the amount invoiced to her solicitors by the mediator for her share of the cancellation fee, the wife maintains that an order should be made that the husband pay that amount.
  11. I consider the amount an outlay incurred by the wife as part of her legal costs and outlays in these proceedings and, as such, that the Court’s power to order the husband to pay it is found in the provisions of s 117 of the Family Law Act (“the Act”).
  12. Of course, that section provides that generally each party to proceedings under the Act shall bear his or her own costs. That is, however, subject to the Court ordering otherwise where it is satisfied the circumstances justify it in doing so. If it the Court is so satisfied, it may make a costs order in terms considered just. Satisfaction in respect of those matters is to be informed by the matters set out in s 117(2A) of the Act. Included in the list of matters in s 117(2A) of the Act, the Court shall have regard to is “the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to … discovery … production of documents and similar matters.”
  13. As I have already observed earlier in these reasons, I do not consider the husband excused from his obligation to disclose relevant documents, or the particular documents requested to be disclosed by the wife prior to mediation taking place, of the three named entities for the reasons advanced to the wife’s solicitors in correspondence sent to them by his solicitors and repeated by him in his affidavit evidence filed in this application. Furthermore, the wife’s evidence that the husband’s solicitors informed her solicitors that the documents could be provided in the week commencing 20 November 2017 was not disputed, as I have already observed. Neither was the wife’s evidence that they were not provided in that week despite that assurance.
  14. I do not consider it unreasonable for the wife to have determined that she would not attend mediation in those circumstances. Mediation of a property settlement dispute in circumstances where one of the parties is unaware of significant facts that would put her or him in a position of being able to be properly advised of her rights, potential entitlements and obligations could only seriously disadvantage that party and make it far less likely for a resolution of the dispute to be achieved, let alone a resolution that would be adjudged to be just and equitable.
  15. I consider that the circumstances justify a costs order being made and that a just costs order would be one that obliges the husband to pay the wife within fourteen days the amount of $1,182.50 being her half of the cancellation fee charged by the mediator. I will so order.

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Queensland/New South Wales/Victoria

Litigation lending – do you need help with access to justice?

Litigation lending – Litigation funding – Access to Justice

Litigation lending – Do you need financial assistance to afford legal representation in your case?

Freedom Law offers litigation lending to clients and non-clients who don’t have the upfront financial resources to pay legal costs such as lawyer’s fees, barrister’s fees and outlays such as court filing fees.

Many people face the prospect of having to represent themselves or to abandon their dispute when they don’t have the financial resources to pay the legal costs involved.

Litigation lending improves the prospects of cases winning by funding legal representation. It creates a level playing field between litigants to a dispute.

Lending for legal disputes isn’t limited to litigation (or cases). The lending can be applied to non-court based resolutions such as negotiation, mediation, arbitration and collaborative law.

Unlike many other providers, Freedom Law offers litigation lending for family law disputes as well as other areas of legal disputes.

Family law lending is particularly important in order to ensure that parenting arrangements are in the best interests of children, and property settlements are just and equitable between the parties to a relationship or marriage.

Applying is easy – simply contact Freedom Law (info@freedomlaw.com.au or 1300 365 108) for an application form. Results of applications are notified within 14 days.

Freedom Law are here to help – just ask us how.

Brisbane / Gold Coast / Sunshine Coast / Townsville

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Overseas travel denied despite illness

Overseas travel denied despite illness

  1. The mother’s counsel conceded that the Affidavit filed 16 January 2018 in support of the Application in a Case removing the child from the Family Law Watch List and the mother then being at liberty to remove the child from the Commonwealth of Australia is wholly inadequate.
  2. By reference to the affidavit, the only relevant paragraph is as follows:-

5. My mother is aged and unwell.

  1. I am concerned that if I do not obtain an Order to take [the child] to [Country D] to see her grandmother on this occasion, she may not see her grandmother again.
  2. I wish to also take [the child] to see her extended family in [Country D] so that we can reunite as a family with my aged mother.
  3. The mother’s counsel submitted that whilst not contained in the affidavit, she would be able to provide a security sum of $20,000 noting that the sum previously provided was $50,000.
  4. The earlier order enabling the mother to remove the child from the Commonwealth of Australia was ultimately an order by consent.
  5. Whilst it is clearly the case that the mother returned to the jurisdiction, matters have now progressed to a more heightened state of litigation. The allegations made by each of the parties are now the subject of extensive affidavit material and they are in direct conflict with each other. The nature of the allegations made by the mother are such that she does not consider there should be any time spent between the child and the father other than in the most limited of circumstances. For his part, the father considers that the mother will do all that she can to ensure that he does not have a relationship with the child. He considers that given the mother’s circumstances and her financial resources in Country D, she may well decide that it is easier to remain in Country D rather than to return to Australia.
  6. The mother does not set out anything in her affidavit which would enable the Court to decide that the obvious risk of her remaining with the child out of the jurisdiction can be ameliorated or diminished by reference to the mother’s ties in Australia.
  7. Moreover, there are outstanding allegations that the mother holds property overseas of uncertain value. The mother has not filed any affidavit material which speaks of her financial circumstances either here or overseas.
  8. Whilst it may be entirely possible that the mother does not present as a flight risk in terms of the removal of the child from the jurisdiction, that is a different consideration to whether the affidavit in support of the application is completely barren of any assistance.
  9. By reference to the mother’s affidavit, it appears to be a recitation of the various allegations that the mother makes against the father, rather than providing evidence to support the mother’s application for the child to travel overseas.
  10. During the course of the submissions, the mother was given leave to rely upon an affidavit filed 16 February 2018.
  11. The following appears at paragraph 10:-

Without my ability to prevent it the hospital enquired of [the child] what had happened as my language is not good. I have difficulty processing English and am much less than fluent in English. The hospital were not understanding me therefore they turned to [the child] who is bilingual and I was powerless to prevent this as assistance in language was immediately required and the hospital chose to employ [the child] in this regard…

  1. An issue was raised by the mother as to her ability to comprehend the English language and in particular her affidavit material.
  2. It appears that her affidavit was prepared by her solicitor and the affidavit may well have been read back to the mother before she affixed her signature.
  3. During the course of the proceedings the mother has required (and properly so) the assistance of an interpreter skilled in Country D.
  4. There may well be an issue as to the extent to which the mother is properly able to adopt the matters raised in her affidavit material in support of her application.
  5. I do not consider that the mother’s application can succeed in the absence of any evidence to support the orders for the removal of the child from the Commonwealth of Australia.
  6. There was a submission by the mother’s counsel that the application should be adjourned to enable a more comprehensive affidavit to be prepared. I decline that application. This matter has consumed significant Court time and the issues that are likely to be relevant to the Court’s consideration for a party to travel overseas with a child are well known.

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Brisbane/Gold Coast/ Sunshine Coast/North Queensland