BERTRAM & BERTRAM

[2015] FamCA 897

FAMILY COURT OF AUSTRALIA

BERTRAM & BERTRAM [2015] FamCA 897

FAMILY LAW – PROPERTY – interim – where the father seeks orders by way of property settlement – where the mother has previously been restrained from entering the property – where the solicitor for the mother is not sufficiently instructed – where the father seeks that the matter be listed as an undefended hearing – where the mother is given a further opportunity to consider her position and engage in the proceedings – where the matter is adjourned – where time is extended for the mother to file responding documents. 

FAMILY LAW – CHILDREN – interim – where the children have previously been delivered up to the care of the father on an interim basis – where the children’s matters are also adjourned.

APPLICANT: Mr Bertram

RESPONDENT: Ms Bertram

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: ADC 291 of 2015

DATE DELIVERED: 23 October 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 23 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dickson

SOLICITOR FOR THE APPLICANT: Ouwens Lawyers

COUNSEL FOR THE RESPONDENT: Ms Matters

SOLICITOR FOR THE RESPONDENT:

Orders

1. This matter be adjourned for further consideration On Friday 18 December 2015 at 9.15am.

2. A copy of my reasons given this day is to be sent to the wife at her service address set out in order 6 of orders made 11 September 2015.

3. Time is extended for the wife to file and serve her response, affidavit and financial circumstances to 4 pm on 27 November 2015. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bertram & Bertram has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2917 of 2015

Mr Bertram

Applicant

And

Ms Bertram

Respondent

EX TEMPORE REASONS FOR JUDGMENT

introduction and background

1. By Initiating Application, Mr Bertram, the applicant husband in the proceedings, seeks orders by way of settlement of property and parenting orders in respect of B born in 2002 and C born in 2004.  The respondent wife is Ms Bertram.  The matter has come before me on a number of occasions, and in respect of substantive orders made, the first was an order made 21 August of 2015, which required the delivery up of the children to the care of the husband, an interim order that the children live with him and spend time with the wife on such terms and conditions as the parties may agree. 

2. A further order was made during the period of the adjournment restraining the wife from entering upon premises and property held generally by the parties.  Importantly, Order 5 required that the wife file and serve a response, supporting affidavit and financial statement on or before 4 pm, Wednesday, 9 September 2015.  The proceedings were then adjourned to Friday, 11 September 2015 for further consideration but principally and significantly to enable the wife as ordered to file the answering documents to enable the court to hear and determine any orders sought by way of interim relief. 

3. The order of 11 September 2015 reflects that the wife was not present, but on that occasion Ms Boylan of the firm of Angela Ferdinandy appeared for the wife.  The proceedings were again further adjourned until today, with an extension of time for the wife to file and serve her response affidavit and financial statement to 16 October 2015.  One of the reasons for the adjournment was that Ms Boylan indicated to the Court that because of an inability to effect appropriate communication with the wife, she sought leave to withdraw from the proceedings.  I made an order to that effect. 

4. The parenting orders were extended at this time until further order, and they remain in force and have continuing effect.  The injunction in respect of restraining the wife from entering upon the Suburb D property continues.  On the matter being called on today, Ms Dickson of counsel appears for the husband who is present.  Ms Matters appears for the wife, but only out of a courtesy to the Court and without sufficient instructions that would enable her to file a notice of address for service or to indicate to the Court that she now is instructed and therefore the solicitor of record. 

5. Nonetheless, Ms Matters’ attendance is of assistance, and the Court is grateful for her courtesy in that regard.  It was demonstrable during the last hearing that there may well be an issue in terms of the preparedness of the wife to engage in the proceedings.  Clearly, that is not the best course.  It is more desirable that parties attend and be involved in the process either personally and/or by legal representation, but the Court cannot compel a person to be involved and engage in the litigation.  If, however, it is the position of the wife that she does not wish to become involved in the proceedings, then it is proper that the Court have regard to the various options available to it in order to bring proceedings to an appropriate and conclusive end. 

6. It is not simply a matter of expediency, but it is noted in this case that whilst there are property issues as between the parties, the most important focus of the Court is in respect of the issues affecting the children.  This Court has often said that one of the matters that exacerbates relationship breakdown is the very litigation that the parties engage in.  It is rare, in my experience, that children would ever benefit from ongoing and protracted proceedings. 

7. It seems to me that there must always be a balance between the interests of the children being served by a resolution of the parenting dispute and a removal of the proceedings from Court and the need to provide each of the parties with procedural fairness so that the issues that they consider are relevant both predominantly in respect of children’s issues but also secondarily in respect of financial matters are properly able to be put before the Court.  As a result of matters raised on the last occasion, it was an option this morning, and indeed Ms Dickson has made an application, that I simply list this matter as an undefended hearing and deal with it as soon as is reasonably practicable. 

8. That may have been an approach that would have found favour but for the attendance of Ms Matters.  In all the circumstances of this case, I consider that it is appropriate to give the wife a further opportunity to consider her position and to engage in the proceedings.  I propose to adjourn the matter for further consideration to a convenient date in the week commencing 14 December 2015.  I propose to settle these reasons and ensure that the Court forwards these reasons to the wife at her email address as provided for in order 6 of orders made 11 September 2015. 

9. In order to set the procedural pathway, it is appropriate to acknowledge an affidavit filed by the husband’s instructing solicitor Ms Owens on 15 October 2015 confirming that the order of 11 September 2015 was forwarded to the wife at her email address, and, importantly, the affidavit acknowledges that the wife provided a reply to the email confirming acknowledgement of the documents having been received.  As a result of that affidavit but also the attendance by Ms Matters, I am confident that the orders that I propose to make today and the reasons for the making of those orders will come to the ready attention of the wife. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 23 October 2015.

Associate:

Date:  23 October 2015