Cavour & Cavour (No 2)

[2018] FamCA 1094

FAMILY COURT OF AUSTRALIA

CAVOUR & CAVOUR (NO. 2) [2018] FamCA 1094

FAMILY LAW – PRACTICE AND PROCEDURE – where it is alleged the husband has been the victim of two assaults – where the husband has not attended Court – extension of time granted for the husband to file trial material – the husband to provide to the wife CCTV footage in relation to an alleged assault on him.

FAMILY LAW – PROPERTY – the husband to provide information to the wife in relation to a sale of a property in Queensland.

FAMILY LAW – PARENTING – the husband to advise the wife if he proposed that the children will sleep at a place other than his house.

Family Law Act 1975 (Cth)

APPLICANT: Ms Cavour

RESPONDENT: Mr Cavour

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: BRC 9228 of 2010

DATE DELIVERED: 8 June 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 8 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wilson

SOLICITOR FOR THE APPLICANT: Berger Kordos Lawyers

COUNSEL FOR THE RESPONDENT: Mr Marchetti

SOLICITOR FOR THE RESPONDENT: Clark Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Boymal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

By Consent it is Ordered

1. That the Husband and Wife sign and do all things necessary to cause the release of the monies currently held on trust by K Lawyers to the Wife and that such sum be categorised as a partial property settlement to the Wife.

By The Court

1. That the ICL file and serve a report by Mr J on or before 20 July 2018 and the cost of the report be borne equally by the Husband and the Wife.

2. That time be extended so that:

   (a)       The Husband’s trial material is filed and served by 25 June 2018;

   (b)       The Wife’s material in reply is filed and served by 6 July 2018; and

   (c)The ICL’s material (other than Mr J’s report) is filed and served by 13 July 2018.

3. That until further order the Husband advise the Wife by email or SMS text message if he proposes that the children B and C will sleep at a place other than the home at L Street, Suburb M such advice to be given before the children sleep and to include details of where they will sleep.

4. That within 21 days of this day the Husband provide to the Wife’s solicitors:

   (a)A copy of the settlement statement for the sale of N Street, Suburb O; and

   (b)A copy of the National Australia Bank statement that reflects the $282,306 paid to the National Australia Bank in reduction and partial discharge of the mortgage at the settlement of the sale of the Suburb O property.

5. That within 21 days the Husband provide to the Wife’s solicitors copies of the film or other recording from his CCTV system at the property of L Street, Suburb M in relation to the assault that the Husband claims occurred on or about 23 April 2018 and the aftermath of the claimed assault as described in the Husband’s statement to Victoria Police given at about 4:00pm on 24 April 2018.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: BRC 9228 of 2010

Ms Cavour

Applicant

And

Mr Cavour

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter came before the Court today upon an Application in a Case originally filed, subsequently amended by an Amended Application in a Case filed 5 June 2018 in which the wife sought orders with respect to both interim parenting and interim property.  The interim property matters have now been resolved largely by consent insofar as there is consent to a release of funds held on trust for the parties to the wife, those funds to be characterised as partial property settlement. 

2. It is alleged that the husband has recently been the victim of an assault which is said to have occurred in June 2018.  This is the second assault that is said to have been perpetrated against him, the first alleged to have occurred in April 2018.  As a result of those events the husband has not provided instructions to his lawyers with respect to the other issues that are before the Court today.  Those issues upon which I am asked to rule relate to extensions of time to enable trial documents to be filed in anticipation of the listed final hearing on 6 August 2018. 

3. Counsel representing the husband did not make any submission against the making of such orders.  Indeed, it would seem that orders in those terms are to the husband’s advantage insofar as they provide him with additional time to file his trial affidavit material.  Having regard to the situation that presents with respect to the alleged assaults on the husband it would seem sensible and appropriate that orders be made in the terms of paragraph 2 and 3 of the proposed minute. 

Provision of the children’s whereabouts to the wife

1. Order 4 of the proposed orders relates to a provision of information to the wife in respect of the children’s whereabouts, given the recent alleged assaults on the husband.  The principal issue in dispute between the parties relates to parenting arrangements for their two children, B and C who are aged 13 and 14 years.  Currently they live with the husband and are spending no time with the wife.  The husband says he is incapacitated as a result of the assaults.  Therefore, there is uncertainty as to where the children have been living in the aftermath of those events. 

2. The orders proposed will ensure that the wife is informed and will continue to be informed as to the children’s care arrangements until these matters can be fully explored in the trial setting.  Again I am satisfied that orders in the terms of paragraph 4 are appropriate and in the children’s best interests. 

Disclosure

1. Paragraphs 5 and 6 of the proposed orders relate to matters of disclosure.  Paragraph 5 deals with disclosure of information and documents regarding the sale of properties held by the parties in Queensland which were sold in 2016. 

2. It is conceded by counsel for the husband that the wife’s lawyers have been seeking information in relation to those transactions since about October 2017.  The information sought particularly relates to a settlement statement in relation to the sale of a property and, further, a statement from the National Australia Bank regarding a discharge or a partial discharge of a mortgage secured against that property.  Given that it is common ground that the husband had the conduct of the sale of that property, the proposed order that he provide those documents within 21 days seems eminently reasonable and appropriate. 

3. The husband has had notice of the request for that information now for a period of about eight months.  It is well within his power and control to go directly to the National Australia Bank to seek the relevant bank statements and other documentary evidence regarding the sale.  It is likely that the bank may have a copy of the settlement statement, given their interest in the sale of that property.  Therefore, I am satisfied that it is appropriate that that order be made to ensure that the property aspects of the case are able to proceed on the listed trial date. 

Provision of CCTV footage to the wife

1. The last order relates to the provision of CCTV footage in relation to what occurred at the husband’s home at the time or after the alleged assault which occurred in April 2018.  There is significant distrust between the husband and the wife as to those matters.  The wife does not admit that the assault actually occurred.  The husband, through his material, seems to be inferring that either the wife or her associates may be responsible for the assault. 

2. Certainly they are inferences that may be drawn from the tone of correspondence passing between the practitioners in relation to those matters.  In addition, I am told today that the children of the relationship attended upon Mr J, psychologist, on 4 June 2018, the day following the second of the alleged assaults.  Mr J reports the view of both children is that the mother is responsible for those assaults and he states they are fearful of the mother.  It may well be that the CCTV footage is able to shed some light as to the alleged assault which is clearly an important factual issue for the determination of these matters. 

3. It is evident from material filed on behalf of the husband or relied upon by him that there is CCTV footage or CCTV camera technology at his home and, in particular, I was referred to the affidavit of the children’s psychologist, Ms P, being an affidavit filed 11 May 2017.  Annexed to that affidavit at YS-1 is a report of Ms P. 

4. Under the heading of Other Relevant Information there is information relevant to the treatment of the husband and it is there stated that:

   Security around his house has improved. Cameras have been installed and this has had a significant impact on the client’s sense of safety in the home.  Since cameras have been installed the client and his two daughters have been able to return to their home after a period of living with a relative. 

5. In addition to that statement counsel for the mother relied upon a brief of evidence prepared in relation to alleged breaches of intervention order.  As part of that brief there was a statement made by the husband who was the informant.  It there says, and I quote “There are CCTV cameras installed at the Mr Cavour’s address that captured the event”. There is further reference to two occasions when reliance was placed on CCTV footage from the husband’s home which is said to have captured footage of the wife’s car passing his address.  Those occasions are alleged to have been on 1 October 2017 and 2 October 2017. 

6. Having regard to that material it is, it would seem, evident that there is such CCTV camera technology at the husband’s residence and in those circumstances I am satisfied that an order in the terms of paragraph 6 of the minute is appropriate.  Therefore, I will make orders in the terms of the minute prepared.  That minute will be marked with the letter A; it will remain on the court file. 

7. I direct that the applicant’s solicitors engross and file the minute at court within seven days.  Otherwise I will dismiss paragraphs 2, 3, 4, 5 and 6 of the Amended Application in a Case filed 5 June 2018.  Paragraph 1 of that application will be consolidated and heard with all extant applications for final orders which are listed for hearing before me on 6 August 2018. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 8 June 2018.

Associate: 

Date:  8 June 2018