AVA and Zamir

[2010] FamCA 1004

FAMILY COURT OF AUSTRALIA

AVA & ZAMIR [2010] FamCA 1004

FAMILY LAW – PROCEDURE – Case management

APPLICANT: Ms Ava

RESPONDENT: Mr Zamir

INDEPENDENT CHILDREN’S LAWYER: Mr Wilson

FILE NUMBER: BRC 10293 of 2008

DATE DELIVERED: 26 October 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 26 October 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Jordan Djundja

FOR THE RESPONDENT: The Respondent appeared on his own behalf

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Wilson of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: TLG Lawyers of Brisbane

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The Order of 6 May 2010 continue in force and effect.

AND IT IS ORDERED:

1. The solicitor for the Mother have leave to withdraw the Notice of Ceasing to Act filed on 20 October 2010.

2. The all parties have leave to inspect documents produced under subpoena.

3. The matter be adjourned to 10.00am on 28 February 2011 for trial for three days.

4. The Independent Children’s Lawyer is requested to arrange for Ms B to interview the children E born … October 2002 and C born … October 2004 with the father after the father has spent time with the children on three occasions pursuant to Order 6 of the Order of 6 May 2010.

5. The parties and the Independent Children’s Lawyer have leave to re-list the matter on the giving of 24 hours’ notice to the Court and to the other parties.

6. The parties must file and serve all documents on which they intend to rely at trial by 4.00pm on Friday, 11 February 2011.

7. Each party must lodge in the Court by (2 clear days prior to trial) a document containing the following:

   (a)A minute of orders sought by that party.

   (b)A brief and concise statement of the material facts asserted by the party in support of the orders sought.

   (c)A proposed minute of order in the event the other party’s case is made out.

   (d)A list of the affidavits each party proposes to rely upon at trial.

8. Should either party attempt to file any document/s on the first day of trial such documents may be rejected and the party attempting to file such document/s may not be at liberty to call evidence.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10293 of 2008

MS AVA

Applicant

and

MR ZAMIR

Respondent

REASONS FOR JUDGMENT

1. This matter was set down some time considerable time ago for five days. It was unfortunately unable to be heard on the initial dates and was reassigned to yesterday, 25 October a week later.  Various orders have been made requiring the parties to file documents in this court, particularly in relation to the last set of documents, the last tranche, it seems to be the in-word, but also to get valuations done. 

2. I refer to the order of 22 April.  They have not been done.  22 March that I refer to, once again, Principal Registrar Filippello, I refer to orders 5, etcetera.

3. Valuations – there were professional practices, not necessarily having to be valued but documents that were to be forwarded to the mother.  I don’t know if that’s been done because I haven’t been told.  If in fact the wife wanted a valuation, she was to require one.  I don’t know whether that’s been done or not.  There was to be a joint valuer appointed for the property situated at F, Queensland.  I don’t know whether that’s been done or not.  

4. There is no evidence before me either as to the value of the property of Zamir Services nor, inter alia, of the F property.  This question of property was raised by a response filed by the primary applicant, wherein he seeks that the properties – if my memory serves me correctly and I will now look at the document, which was filed in Parramatta on 16 April 2009 – the properties of the parties have been distributed between as follows, 65 per cent to the wife and 35 per cent to the husband.  And that was filed by mother as I said, on 16 April 2009.

5. Nothing has been put before me on behalf of the wife in relation to property settlement and only partially in relation to the husband – has put something before me.  His basic complaint is the loss of a BMW from the car park opposite this Court.  These parties have shown an arrogant disregard, no respect for the orders of this Court.  They have not complied at all. 

6. Neither has the independent children’s lawyer, but I am able at this time after having read the material, there may be a reason and explanation for their not having complied.  And I have already criticised, and perhaps through a lack of courtesy, not informing me of the difficulties under which they were labouring.  Though I was informed by Wilson of counsel for the independent children’s lawyer, the letter dated 18 October was forwarded indicating the difficulties under which they were labouring.  And at the time, after having looked at the material, I can understand – they didn’t know what was going on either.

7. It has been blatantly put before me by the applicant husband that, in fact, he’s on his own, he did not know what to do.  All the material upon which he relies was filed some considerable time prior to the cut-off date, which was 19 October, and he has done nothing to comply with that order.  Equally, the mother has done nothing to comply with the orders.

8. After having expressed my displeasure at the arrogant and disrespectful attitude of the parties towards this court, I was forced to read the material because I am concerned about the welfare of the children.  Each of the parties have, of course, once again, plaintively said that it is important for the best interests of the children that this Court embark upon a hearing, in which I have been inadequately informed of pretty well everything.

9. I have read the material.  I have read the reports of Mr P and Ms B of last year and of this year.  It is fallen from the file that the children are being alienated he has a fear to that effect.  If in fact, the order of Principal Registrar Filippello would have been complied with, that hurdle would have been overcome.  If in fact, he would have attended Ms B for her second report to enable her to see the relationship between the children and himself, it may have been changed.  Because he will note, if he reads the first report, that the children indicated a disapproval of him before they saw him.  When they saw him, they changed.  Ms B commented upon that. 

10. He did not give Ms B, who is very experienced in this field, the opportunity of seeing the children with him on the second occasion.  And that date was – the Court has been hamstrung time and time again by the arrogant disregard of these parties towards the authority of the Court.  And I do not feel persuaded to hear the matter.  Though, as I have said, because of the concern that this Court and myself, in particular, have for the welfare of children, I looked into this.  It appears to me that the children at this stage, notwithstanding the concern expressed, not only by the applicant father or Ms B, that there may be pressure upon the children, there being, I think to use her words, “told to say,” what they say to her.  The children do not appear at risk. 

11. I must take into consideration that the children’s welfare comes first, that they have a right to know their parents.  Parents do not have any rights in relation to them, they only have duties.  They have a right to know their parents.  That right prima facie – Mr Jordan, I say prima facie, I have not heard your case in full – is being interfered with.  It appears that there may be very weak excuses for not complying with the order.  And I make it quite clear that you will comply with the order, Mr Jordan, at her risk if she doesn’t. 

12. Equally, of course, the father – he complains bitterly about the fact that he was not given contact with his children pursuant to the excellent order of the Principal Registrar – he did nothing.  He didn’t make any application to the Court for enforcement, he didn’t make any application for the execution of the warrant which is set out therein, he did not make any application for recovery orders.  Does he expect the Court to rush off and do it for him?  No.  He did nothing.  He has done nothing up until last week when it appears that he sprang fully clothed out of the foam of life and decided to proceed with the matter. 

13. As appears from the letter of the independent children’s lawyer since about May, June – that she’s had no contact with him at all and didn’t know what was going on.  Neither did the Court.  I think it’s absolutely appalling and I am not going to put up with it.  The matter can be adjourned.  Having decided the children are not at risk, I am going to order that the order of Registrar Filippello – Principal Registrar continue in force and effect and it better be complied with, Mr Jordan.  And you better exercise your rights to have it complied with. if it’s not.

RECORDED:   NOT TRANSCRIBED

1. I will be requiring, Mr Jordan, that these children be somehow be produced to Ms B so that she may observe the children in contact with the father, as a result thereof, a note that Ms Filippello order is to the effect, something like he just said, that they have to be in his possession for a period of time.  That will be up to independent children’s lawyer to organise that.

2. Now, I am going to make one final order.  All documents, to be relied on in this trial, are to be filed 10 days prior to the first day of hearing.  That on that date there must be a list of documents, a draft order, and summary of argument which will be filed. 

3. That is 10 days, which is different to my normal order, because I want to know about it so I can read it beforehand.  And I make it quite clear that if any document is attempted to be put before the Court on the first day of hearing, which is not included in that list of documents, it will be rejected, unless for very good cause to the opposite.

4. Should either of the parties – I would assume the independent children’s lawyer will – not comply with that order they will not be at liberty to call any evidence.  No evidence at all.  They may put a negative case, but not a positive case.  They may cross-examine, they cannot call evidence, in accordance with that document which has not been filed.

RECORDED:   NOT TRANSCRIBED

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 26 October 2010.

Associate: 

Date: