Darcy and Darcy (No. 3)

[2007] FamCA 414

FAMILY COURT OF AUSTRALIA

DARCY & DARCY (NO. 3) [2007] FamCA 414

FAMILY LAW - PARENTING – Magellan - Interim - trial directions

Family Law Act 1975 (Cth)

HUSBAND: MR DARCY

WIFE: MRS DARCY

INDEPENDENT CHILDREN’S LAWYER: INDEPENDENT CHILDREN'S LAWYER

FILE NUMBER: MLF 3110 of 2005

DATE DELIVERED: 30 March, 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 30 March, 2007

REPRESENTATION

COUNSEL FOR THE HUSBAND: Mr Holmes

SOLICITOR FOR THE HUSBAND: Auditore Specialist Family lawyers

COUNSEL FOR THE WIFE: Ms Pender

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr Crabtree

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Donald S Lampe

Orders

1. That in addition to the times specified in paragraph (1) of the orders made herein on 31 January, 2007 the father spend time with the children of the marriage A born in February, 2000  and  T born in January, 2004 on the following occasions :

   (a)on Good Friday 2007 between 11:00 am. and 3:00 pm.;

   (b)on Easter Sunday 2007 between 11:00 am. and 3:00 pm.;

   (c)on the paternal grandfather’s birthday on 22 May, 2007 between 4:00 pm. and 7:00 pm.; 

   (d)on the paternal great-grandmother’s birthday on 9 July, 2007 between 4:00 pm. and 7:00 pm.;  and

   (e)at other times as are agreed;

   PROVIDED THAT  these times be subject to the availability of supervision as provided in paragraph (1)(a) of the orders made on 31 January, 2007.

1. That the parties and, if represented their lawyers, attend a pre-trial conference on 27 June, 2007 at 10:30 am. 

1. That the applicant file and serve any amended application for final orders by 26 April, 2007.

1. That the respondent file and serve any amended response by 4 May, 2007. 

1. That any subpoena for production of documents to be issued by any party be lodged by 26 April, 2007 and inspection of documents produced pursuant to subpoena be completed at least seven days before the pre-trial conference.

1. That each party must file and serve by 13 June, 2007 affidavits setting out :

   (a)his or her evidence in chief;  and

   (b)the evidence in chief of each lay witness the party proposes to call at the trial or notice of refusal pursuant to Rule 15.07(2) of the Family Law Rules 2004.

1. That the independent children’s lawyer file and serve by 13 June, 2007 affidavits of expert witnesses.

1. That each party provide a list of documents in accordance with Rule 13.22 by 27 April, 2007 and indicate where and when the documents under Rule 13.20(4) may be inspected if they have not previously been provided.

1. That if a party seeks answers to specific questions, he or she file and serve the specific questions by 4 May, 2007 and the party to whom the question is directed file and serve specific answers by 18 May, 2007. 

1. That the parties instruct W Valuers as a single expert witness to provide a valuation of the real property situate at B (“the [B] property”) and such valuation be filed by 27 April, 2007. 

1. That within fourteen days the parties confer for the purpose of drafting a joint letter of instructions (complying with Rule 15.54) to W Valuers and each party has permission to provide additional written instructions to W Valuers provided such instructions comply with Rule 15.54 and a copy is immediately provided to the other party.

1. That save to allow the valuer access to the B property, neither party be in attendance at the time W Valuers attend the B property for the purpose of preparing the valuation. 

1. That within fourteen days hereof the parties instruct Mr F or such other expert as is agreed to provide a report as to the valuation of the husband’s business        and in order to give force and effect to this order :

   (a)the parties must co-operate and confer for the purpose of agreeing on the person to be appointed as the single expert witness, if it is not to be Mr F;

   (b)within fourteen days hereof the parties confer for the purpose of drafting a joint letter of instructions (complying with Rule 15.54) to the expert;  

   (c)each party has permission to provide additional written instructions to the expert provided such instructions comply with Rule 15.54 and a copy is immediately provided to the other party;  and

   (d)the husband must file the report of the single expert witness by 26 April, 2007. 

1. That subject to any agreement to the contrary the costs of the two single expert witnesses appointed pursuant to this order be borne in the first instance by the husband and, subject to any other order by the trial judge, he be entitled to be reimbursed one-half of each such valuation on determination of the competing applications for final property orders. 

1. That within seven days hereof the husband file and serve the undertaking required pursuant to paragraph (20) of the orders made herein on 31 January, 2007. 

1. That the husband and wife forthwith do all acts and things and sign all necessary documents to effect the sale of the following properties :

   (a)P property (“the [P]”);  and

   (b)T property (“the [T] property”).

1. That by way of consequential arrangements that should be made for the purpose of effecting the sales :

   (a)the listing prices shall be as agreed between the parties and if there is no agreement they will be as advised by a valuer (who is also a practising real estate agent) appointed :

   (i)in relation to the P property, by the President of the Queensland Division of the Australian Property Institute;  and

   (ii)in relation to the T property, by the President of the Victorian Division of the Australian Property Institute;

(b)the properties shall be listed for sale by private treaty within twenty-one days hereof by an agent agreed to by the parties and if there is no agreement, with the agent nominated to advise the value pursuant to the preceding sub-paragraph;  and

(c)in the event a property has not been sold within four months of this date, the husband and wife shall make all such arrangements and do all such acts and sign all such documents to procure a sale by public auction of the unsold property without reserve, such auction to take place within a further period of one month by an agent to be agreed and failing agreement to be nominated by the wife. 

1. That upon completion of the sale of the real properties the proceeds of the sale shall be applied as follows :

   (a)first, to pay all costs, commissions and expenses of the sale and to pay any council and water rates and maintenance levies outstanding in respect of the sold property; 

   (b)second, to discharge the mortgage or mortgages affecting the sold property;

   (c)third, to pay to the wife the sum of $30,000 less a sum equivalent to any amount then due and owing on the mortgage over the B property which is in excess of the sum due and owing on that mortgage this day;

   (d)fourth, to pay to the husband the sum of $30,000 less a sum equivalent to any amount due and owing on the mortgages over the P and T properties at settlement of their respective sales which is in excess of sums due and owing on those mortgages this day;

   (e)fifth, the balance then remaining to be held in trust by the solicitor for the husband in an interest bearing account in the name of both parties, and be disbursed only with the consent in writing of both parties or pursuant to court order.

1. That until settlement of the sale of the P and T properties :

   (a)the parties hold their respective interests in those properties upon trust pursuant to these orders;  and

   (b)neither party encumber either of those properties without the consent in writing of the other party;  and

   (c)the husband pay all instalments pursuant to the mortgage or mortgages over the said properties and all rates and taxes and like apportionable outgoings as they fall due.

1. That until further order the wife has the sole right to occupy the B property and during such period of occupation :

   (a)the wife pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the property as they fall due;

   (b)the parties hold their respective interests in the property upon trust pursuant to these orders;  and

   (c)neither party encumber the property without the consent in writing of the other party. 

1. That in the event a party refuses or neglects to comply with a provision of these orders :

   (a)the Registrar of the Family Court of Australia in Melbourne is hereby appointed to execute all deeds and documents in the name of the defaulting party and do all acts and things necessary to give validity and operation to these orders;  and

   (b)the party in default is ordered to pay any and all foreseeable damages to the other party caused by his or her default;  and

   (c)the party in default is ordered to pay all reasonable costs incurred by the other party for the purpose of enforcing this order and proving his or her damages.

1. That the Department of Human Services be provided with a copy of the following documents as soon as practicable :

   (a)Dr K’s reports (to be provided by the independent children’s lawyer);  and

   (b)Ms R’s report or reports (to be provided by the husband.

1. That all extant interim applications be otherwise dismissed.

1. That each party file a compliance certificate in accordance with the approved form by 13 June, 2007 and such certificate may be filed by facsimile to fax number … .

1. That each party file and serve an undertaking as to disclosure by 13 June, 2007. 

1. That in the event a party fails to comply with the directions made this day for the filing of affidavits or other documents, the pre-trial conference date not be vacated.

1. That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

2. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel and a solicitor appearing as counsel.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF  3110  of 2005

MR DARCY

Husband

And

MRS DARCY

Wife

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. At this stage I deal only with the applications relating to the parties’ children, A and T, aged seven and three.  These were referred to the Magellan list as the mother alleges that the father has sexually abused A.    

1. When the matter was last before me I heard submissions about the father’s contact with the children.  The father's primary position was that his contact with the children should not be supervised.  Having regard to the evidence then before the Court, I ordered supervision by Dial An Angel.  That agency was put forward by the father, he, no doubt, making a realistic assessment of what was necessary to ensure he saw his children.  His preference, then, (in the event the court found supervision necessary) was family supervision. 

1. Since then, an employee of Dial an Angel, Ms S, has supervised the father’s time with A and T, paid by the father. 

1. One of the benefits of independent supervision (despite its limitations, in terms of cost and time) is that the court can consider the evidence of the independent supervisor, which can offer valuable insights into the relationship between a parent and a child.  Ms S has sworn an affidavit.  She is a social worker and has now spent some time supervising the father’s time with the children.  She noted that both children clamour for his attention, but that A has been demonstrating some disturbing and aggressive behaviour.  She has been “acting out”.  It is of concern that, when A became rude and verbally abusive for no apparent reason, and was asked by Ms S why she was behaving like that, A replied that it was because she has been told to act like that.   

1. The father seeks to dispense with the professional supervision and that his time with the children be supervised by his father or his brother.  He also seeks longer periods of time with the children.  The mother does not agree, pointing out that the father’s family refuse to admit the possibility that the father has abused A, as alleged. 

1. I appreciate the dilemma family members face in these circumstances and am not critical of them for supporting the father.  All of us make judgments based on our own experience of people, and – on that basis – the father’s family cannot accept the possibility that he has behaved as alleged.  Their experience of him may be validated in the trial;  it may not.  That will be determined in due course.

1. In the earlier hearing I set out the reasons I proposed to order independent supervision, rather than supervision by members of the father’s family.  I am not satisfied anything has occurred which warrants a different course.  I point out that professional supervision has the effect of protecting the father (if, as he alleges, he is innocent of the abuse) against other false allegations.  At trial it will be much more useful to have Ms S’s evidence of contact periods than that of a family member, who is open to challenge about subjectivity. 

1. That said, I am mindful of the limits of such professional supervision.  While there will still be few more months of supervised contact, I propose to make every effort to list the trial for hearing.  This is a case in which the allegations are very clear and the evidence very divergent;  the Court’s findings of fact will have long-term ramifications. 

1. I will make the trial notice directions now;  there will be no need to return on another date.  The parties are to attend a pre-trial conference on 27 June at 10.30 am.  The applicant is to file and serve any amended application by 26 April;  the respondent to file and serve any amended response by 4 May.  Subpoenas must be lodged by 26 May and inspection of documents completed at least seven days before the pre-trial conference.  Affidavits must be filed by 13 June;  that includes any affidavits filed by the independent children's lawyer.  Compliance certificates must be filed by 13 June and undertakings as to disclosure by the same date.  The pretrial conference will take place on 27 June, in anticipation of a trial during the sittings which commence on 16 July. 

1. All outstanding interim applications will be dismissed.  I remind the parties of the importance of complying with trial directions and avoiding unnecessary interim applications;  both can result in loss of a trial date.  In my judgment this case needs a trial fast, having regard to the evidence of A's behaviour.

I certify that the preceding
10 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the          day of           2007.

…………………………………………
Associate.

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