Abbott and Stephenson

[2007] FamCA 36

FAMILY COURT OF AUSTRALIA

ABBOTT & STEPHENSON [2007] FamCA 36

FAMILY LAW - DISCLOSURE

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Ms Abbott

RESPONDENT: Mr Stephenson

FILE NUMBER: DGF 997 of 2006

DATE DELIVERED: 22 January 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Carter J

HEARING DATE: 22 January 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms M Baczynski

SOLICITOR FOR THE APPLICANT: Stidson & Williams Weblaw

COUNSEL FOR THE RESPONDENT: Mr I N Brewer

SOLICITOR FOR THE RESPONDENT: Victoria Legal Aid

Orders

1. On or before 31 January 2007, the husband and the wife both file a further Form 13 Financial Statement or affidavit making full compliance with r 13.04 of the Family Law Rules.

2. Until further order, the children N, born in September 1998, and C, born in March 2001, spend time with the husband from after school each Thursday until 7 pm on the following Sunday, and in order to facilitate this, the husband collect the children from school each Thursday and return them to the wife's residence at 7 pm each Sunday.

3. Until the children resume school on 31 January 2007, the orders made by Young J on 28 December 2006 in pars 1 and 2 continue.

4. Until further order, the children spend all other times with the wife.

5. That pursuant to s 68L(2) of the Family Law Act 1975 the children N born on the September 1998 and C born on March 2001, be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation.

6. That forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

7. That within 48 hours of notification of such appointment the solicitors for the respective parties provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

8. I reserve the question of the preparation of a Family Report until after the Independent Children's Lawyer has had the opportunity to consider whether or not such an order should be made.

9. I otherwise adjourn all extant applications to the Judicial Duty List on a date to be fixed and advised to the parties and, if practicable, in the week commencing 19 February 2007.

10. Save as aforesaid, neither the husband nor the wife file any further affidavits without leave of the Court.

11. I further direct that my Reasons for Judgment be transcribed and placed on the Court file and be made available to the legal practitioners for the husband, the wife and, in the fullness of time, the Independent Children's Lawyer.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 997 of 2006

Ms Abbott

Applicant

and

Mr Stephenson

Respondent

REASONS FOR JUDGMENT

1. Firstly, so far as the question of disclosure is concerned, I draw to the parties' and their practitioners' attention the provisions of the Rules and in particular the Explanatory Statement which accompanied the Rules.  The point of the substantial reform to the Rules relating to what was once known as discovery is detailed in the Explanatory Statement.  Briefly, the concept of a duty of disclosure was in effect codified.  Relevantly, the amendments require the parties to concentrate on the disclosure which is relevant to the issues in dispute, to keep in mind the aim of proportionality and the need to focus on the issues which are dispute.

2. The so-called litigation tool of complete disclosure is an expensive process and it is timed to commence only after the final resolution event.  By that stage the parties should be in a position to know what issues need to be proven and should therefore be able to concentrate on obtaining disclosure relevant to those issues.  Disclosure is a continuing obligation but there are several stages of a financial case at which specific obligations arise.  Those stages are:  at the pre-action procedure stage;  at the time a Form 1 application or Form 1A response is filed;  prior to the first court event, prior to the Conciliation Conference;  after the final resolution event;  and at the time of the Pre-Trial Conference.

3. Rule 1.05 requires the parties to follow pre-action procedures, although there can be limited circumstances in cases where that is not appropriate.  I refer not only to the requirement that the parties make a genuine attempt to resolve the dispute but also to the procedures which are set out in Schedule 1.  In financial cases the parties are required to exchange certain documents.  Those are:  a schedule of assets, income and liabilities;  a list of documents in each party's possession or control that are relevant to the dispute;  a copy of any document requested by the other party from the list.  Generally I would refer the parties and their solicitors to Schedule 1.1 clause 4(2).

4. Prior to the first court event which took place on 28 December, the parties should have, as far as practicable, exchanged copies of the documents which are specified in r 12.02.  That appears not to have been done.

5. Turning to r 13.04, this requires a full and frank disclosure of a party's financial circumstances. The rule was formerly O 17 r 3 in the Family Law Rules 1984 and it has been extended significantly to ensure that it is contemporary, relevant and useful in relation to complicated financial structures as well as less complicated arrangements. Again that is clear from reading the Explanatory Statement.

6. Both the husband and the wife have filed Financial Statements. They do not by any measure comply with their obligations under the Rules. I propose to make an order that they file a further Financial Statement, or affidavit if they prefer, which will make full compliance with r 13.04.

7. I do not propose to make other orders as sought by the wife in the written proposals.  As far as that is concerned, the procedure set out under the Rules should be followed.  I have no reason to think that it will not be.  I say that particularly because the matter commenced very recently.  The timing was such that the first return date was 28 December, which is not a time when all of the legal fraternity are available to give attention to matters such as this, and indeed the second return, which is today, is still at a time which is before the ceremonial commencement of the legal year.  It seems to me that the matter has proceeded to a certain extent too swiftly.

8. So far as the children are concerned, I do propose to make an order for an Independent Children’s Lawyer.  It seems to me very clear that the parties are, at least currently, embroiled in what one could describe as an intractable dispute.  Their focus has been on matters which would either discredit or challenge the other party’s character or capacity to care for children.  Their focus should be on promoting the best interests of the children, and that is not achieved simply by saying that that is the foremost thing that they have in their mind.  Positive reinforcement of that principle needs to be given by way of example and deed.

9. I do not propose at this stage to make an order for a Family Report.  I think it may well be necessary in the fullness of time, but I prefer to wait until the Independent Children's Lawyer has had the opportunity to consider whether or not such an order should be made.

10. The question of the proportion of time that the children should spend with each parent needs to be addressed.   When the matter was before Young J on 28 December, the wife was in the middle of or approaching what must be one of the busiest times of the year for her business.  I suspect it still is a very busy time of the year and will continue to be so until probably the end of summer.    Nonetheless, her evidence is that she has made arrangements such that she will be working less often in the business than she has in the past, and she makes herself available accordingly to be with the children, and particularly after they go back to school.

11. As Young J set out in his Reasons for Judgment, there is much contention between the parties as to the amount of time that the father in particular spent with the children during the marriage or prior to separation.  There are allegations which touch upon extended families and allegations in relation to the husband's current living circumstances where, on the wife's assertion, too many people live or reside, at least on a temporary basis.  His Honour was satisfied, and I see no reason to disagree, that of more recent times - that is, dealing with the period leading up to when the matter was before him - the husband had had an average of three nights a week or thereabouts with the children.

12. The orders that his Honour made, on the basis that the matter would come back to Court as it has today, gave the children the opportunity to be with their father from 9.30 am on Thursday until 8 pm on Sunday.  That was done in the practical circumstances of the wife's necessary employment, as his Honour said in par 12 of his Reasons for Judgment.  It is now different in the sense that the children are shortly to start school, and that raises different circumstances.  It is one thing to have children living in something less than an established routine during school holidays but it is less satisfactory when school has resumed.

13. His Honour said in his Reasons that the orders he made were not intended to be taken as a precedent for orders which might be more appropriate for the balance of the school year, and I too am making the orders which I make with that very much in mind.  The arrangements I propose are not in accordance with what either party seeks but they are closer to the orders sought by the husband than they are to the orders sought by the wife.

14. The wife's proposal is that the children spend alternate Saturdays and alternate Sundays with the husband and each Wednesday from after school until 6 pm.  The husband's proposal is that the children should spend time with him from 8 am each Thursday through to 8 pm on the following Sunday.

15. I have given some thought, and I was rather tempted, to make an order that the children be returned directly to school on the Monday, but on reflection I think that there would inevitably be difficulties with possessions, clothing, school books and the like, so I will not do that.  That leads me to the view that the children should return to the wife on the Sunday evening - 7 pm in my view is the appropriate time.  That will enable them to do whatever last-minute things need to be done in preparation for school on the following day whilst at the same time enabling them to have the opportunity to spend significant periods of time on that day with the husband.  That is not the only day, however, that they will be spending with their father.

16. The orders which best suit the parties' respective situations and above all which in my view best reflect the best interests of the children for the next six weeks or thereabouts - maybe not that long - are for the children to come to their father each Thursday from school and be returned the following Sunday at 7 pm.  In order to facilitate that, I will require the husband to collect the children from school on the Thursday and return them to the wife's residence on the Sunday.  The adjournment will need to be fixed to enable sufficient time for an Independent Children's Lawyer to be appointed and I have taken that into account.  The orders are made for these Reasons.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carter

Associate:     

Date:              2 February 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as Abbott & Stephenson