Baine and Baine

[2012] FamCA 1026

FAMILY COURT OF AUSTRALIA

BAINE & BAINE [2012] FamCA 1026

FAMILY LAW – INJUNCTION – application by the father seeking discharge of orders requiring payment by him – where the husband says that he is no longer able to make payment due to changes in his financial circumstances – where the husband has failed to make full and frank disclosure – where the Court did not consider itself in a position to discharge previous orders due to a lack of information before it – where the Court considered it necessary to adjourn the application to enable the self-represented husband to comply with his obligations for discovery – orders that the injunction be continued.

FAMILY LAW – CHILDREN – application by the mother seeking orders that the father provide the child’s telephone number to the mother – best interests – where the Court took into account the age of the child – where the Court considered it inappropriate to make such an order – application dismissed.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Ms Baine

RESPONDENT: Mr Baine

FILE NUMBER: ADC 721 of 2012

DATE DELIVERED: 5 December 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 5 December 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Robinson

SOLICITOR FOR THE APPLICANT: Martin Robinson Lawyers

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: In person

Orders

BY CONSENT IT IS ORDERED THAT

1. Until further order the husband is restrained and an injunction is granted restraining him from accessing, withdrawing, moving or altering in any way any benefit or entitlement he may have in any superannuation fund or plan.

IT IS FURTHER ORDERED THAT

1. Further consideration of the Application in a Case filed by the husband on 26 September 2012 is adjourned to 22 February 2013 at 9.15 am before the Honourable Justice Dawe.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Baine & Baine (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

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FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 721 of 2012

Ms Baine

Applicant

And

Mr Baine

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. I have before me today application by the husband seeking a discharge of orders made on 31 August 2012 requiring the husband to make certain payments.  The reasons I gave on 31 August 2012 have been provided to the parties.  The application is now brought by the husband.  He says that the business that he was previously operating is now not operating.  There are significant issues raised in the affidavits of the parties as to the business now being operated by the husband’s father.  The husband asserts that he is not employed at the present time;  that he has offered to do work as a consultant;  that he is contemplating bankruptcy and that he is going to apply for Centrelink benefits.

2. The matters concerning the finances of the parties are the subject of considerable dispute.  In particular there are disputes about the whereabouts of funds in relation to the disposal of various assets as referred to in the wife’s material filed in opposition to the application made by the husband.

3. Having taken into account all of the material before the Court at the present time, the issue of the discharge of the order of August 2012 (for the husband to make payments to the wife by way of spouse maintenance) raises many questions still to be answered. 

4. In particular, the issue of full and frank discovery.  At the moment it would appear from the information I have been given today, that the husband has failed to comply appropriately to the order that I have made in relation to provision of all appropriate documents and information, including the MYOB information and the bank account records and details concerning the disposal of various assets.

5. Because of the difficulty in obtaining the accurate evidence which would enable the Court to make a decision, I am not in a position at this stage to discharge the order that was made on 31 August 2012. 

6. If the husband were represented I would dismiss his application.  Because, however, he is unrepresented and the difficulties which both the Court and the wife face because he is unrepresented, it is necessary to adjourn the application to enable the husband to complete the full discovery and for inspection to take place to enable the Court then to be presented with accurate evidence upon which it can make a decision.

7. I therefore regret that the matter will need to be adjourned.  I am told that there will be a time on 22 February at 9.15 am before me.

8. I have already made the orders, and the rules of the Court already provide for, the full and frank discovery and disclosure of all relevant documents and information.  The husband is under directions to comply with that immediately.

9. In relation to the children’s issues, the significant factors that have to be taken into account in this matter are the Court’s consideration of the benefit of both of the children having a meaningful relationship with each of the parents.  It appears most regrettably from the Family Consultant’s Memorandum which was prepared after the interviews of 3 December 2012, that there is serious emotional harm being caused to the children by the intractable conflict between the parents and the children.

10. In relation to the application being made today that I make an order that the father provide B’s telephone number to the mother, one of the most significant factors to be taken into account in relation to section 60CC is the wishes of the child, the maturity of the child and other similar factors to be taken into account.

11. B is about to turn 18 in February next year.  There is no direct information concerning the wishes of the children.  However, it would appear from the Family Consultant’s report that the intractable conflict between the parents has been passed on such that it now has created serious conflict between the parents and the children.

12. The difficulty the Court has in deciding this matter on an interim basis is the inability to test the claims of each of the parties as to who, if any, is more responsible.  I stress the word more responsible, for the difficulties that the children are now facing.

13. Taking into account, however, that B is 17, nearly 18, I consider it inappropriate to make an order that the father deliver up the mobile telephone number for B, as it is indicated to the Court, albeit hearsay, that he does not wish his mother to have his mobile telephone number.

14. The mobile phone number which has been provided is the father’s number.  I understand from comments from the bar table that an email address is available. 

15. This is a matter where it appears that the parents are unable to fulfil their duties in relation to both of the children, but the Court is into in a position at this stage to make a final determination, if any is possible, to overcome the difficulties that have been created for the children.

16. I therefore decline to make any order in relation to the delivery up of the mobile telephone number for B.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 5 December 2012.

Associate: 

Date:  10 December 2012