Debster and Silver

[2011] FamCA 916

FAMILY COURT OF AUSTRALIA

DEBSTER & SILVER [2011] FamCA 916

FAMILY LAW – Parenting orders – Procedural

Family Law Act 1975 (Cth)

APPLICANT: Ms Debster

RESPONDENT: Mr Silver

FILE NUMBER: MLC 7139 of 2009

DATE DELIVERED: 31 October 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 31 October 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Smallwood

SOLICITOR FOR THE APPLICANT: Robinson Gill

COUNSEL FOR THE RESPONDENT: Mr Hoult

SOLICITOR FOR THE RESPONDENT: Berry Family Law

Orders

IT IS ORDERED

1. That all extant applications for final orders are listed for a FIRST DAY OF HEARING before the Honourable Justice Cronin at 2.15pm on 5 December 2011.

2. That the parties and if represented, their legal practitioners, attend the first day of hearing.

3. That notwithstanding applications/responses have already been filed:

   a)by 4 pm on 25 November 2011, the Applicant file and serve on all other parties, an amended application setting out with precision the orders to be sought at trial; and

   b)by 4 pm on 2 December 2011, the Respondent(s) file and serve on all other parties, an amended response setting out with precision the orders to be sought at trial.

4. That each of the husband and wife only file and serve their respective affidavits of evidence in chief supporting the applications referred to in paragraph 3 hereof by the dates referred to in paragraph 3 hereof.

5. That pursuant to Section 68L(2) the Family Law Act 1975 the children B born … 1999, C born … 2001 and D born … 2006 be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation.

6. That forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

7. That within 48 hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon

8. To the extent that the Independent Children’s Lawyer has a firm position as to intended proposed orders, the Independent Children’s Lawyer advise each party of those proposal and on the return date, present to the Court a copy of those orders.

9. If discovery and disclosure has not been completed, each party by 4 pm on 1 July 2011 provide to the other party a list of all documents required for inspection and within 7 days thereafter, subject to any objection on the grounds of privilege, such documents be made available for and be inspected by the other party(ies).

10. To the extent that any party wishes to participate in any form of negotiation or mediation prior to the final hearing, arrangements be made prior to the first day of hearing.

11. That at the first day of hearing, each party represented by a lawyer have available to them and present to the Court, a statement setting out the costs incurred to that date, what amounts have been paid, from what source payments have been paid and what costs are expected to be incurred until the completion of the final hearing.

12. That until further order, the husband forthwith direct to the estate agents managing the rental of the premises at E Street, Suburb F to pay into the St George mortgage account BSB … account ...

13. That the application filed 7 September 2011 and that filed 26 October 2011 and the response filed 26 October 2011 are all dismissed.

14. That the reasons this day be transcribed.

15. That the costs of all parties of this day are reserved.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

AND THE COURT NOTES:
If a party does not comply with paragraph 3 of these orders, the other party who has so complied may make an application to proceed on an undefended basis on the return date.

RECORDED  :  NOT TRANSCRIBED

1. I will direct the reasons be transcribed.

RECORDED  :  NOT TRANSCRIBED

1. I certify.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 7139 of 2009

Ms Debster

Applicant

And

Mr Silver

Respondent

REASONS FOR JUDGMENT

1. This is a matter in the judicial duty list which has got more twists and turns than I think I have seen for a long time.  The background is relatively simple.  The parties had a marriage of some 13 years, ending in 2009, and are 41 years of age and 39 years of age respectively.  There are three children of their relationship:  B, who is 12;  C, who is still nine;  and D, who is still five.

2. Those three children live with their father in Country G, pursuant to two things.  First, there is an order of the Country G Magistrates Court, which was made on 14 December 2010, under which the children were to reside with their father, and I note that that was a consent order.  The second is that the husband is a current employee of a company in Country G and therefore the children reside with him as a matter of course.  The orders, however, do have some unusual language in them and that apparently has caused some difficulty in terms of the wife’s contact time, but I am told that that is agreed now, so that at least for the forthcoming school holidays these children will be coming to Australia to spend time with her.

3. The two substantive issues today are the fact that there is still a live application for parenting orders.  That application was filed on 13 August 2009 and it contained an application that I deal with interim parenting orders.  But on 8 December 2009, I declined to do so because there was a pending Country G parenting dispute.  I dismissed the interim dispute but left the substantive parenting application alive.  That must, however, be seen to have come to an end by virtue of the consent orders.  So to the extent that there is still a live parenting dispute, the parties will have to set out, and more importantly the wife, initially, what exactly the orders are that she is seeking.  It seems to me, as we have found in discussion today, that it is more likely that it is an application to vary the Country G orders.

4. There is no dispute from the husband’s perspective that there is jurisdiction for the Court to deal with the application.  It is more a question of whether it ought to exercise its discretion in that particular way.  The husband’s position is simple and clear.  He says the children reside with him in Country G and that is where they should stay.  That issue can be sorted out by the question that I will determine in early December as to the nature of the parenting trial.  I will take the unusual course here of ordering that the parties file their trial affidavit material before the hearing so that at least I will have the positions of the husband and wife, not only in the respective applications but also the material upon which they intend to rely to support those orders.

5. It will then be a question of whether I can feel comfortable about making orders not only for the parenting issue to go to a substantive trial but also whether there ought to be a family report prepared.  The children will be in Australia for some time, so that to the extent that an order is made, it can be carried out.  I am not saying, at this stage, that I will definitely make a family report order in December, but rather the question that will then need to be argued is whether or not the Court ought to exercise its discretion to reopen the parenting issues and if so then it would be important for the family report to be prepared.

6. Similarly, I am at least prepared at this stage to make an order for the appointment of an independent children’s lawyer because that person might very well articulate on the December day that they would oppose the application proceeding any further.  That is a matter that no doubt someone else can turn their mind to. 

7. I propose, therefore, to fix the first day of hearing, particularly having regard in this case to the fact that the proceedings have been alive for over two years now, which is outside of my preferred guidelines, and to the extent that I am able to use the resources, I will fix a trial date from December into either February or March of 2012.

8. The second issue relates to financial matters.  The husband, despite refusing to agree to the parenting matter being determined in Australia, wants the property determined here and says that the logic behind that is that all of the property is here. 

9. There is a current dispute because the former matrimonial home has tenants in it and the rental is being paid to the husband and he, in his financial statement which was sworn on 13 October 2011 in Country G, says that he was paying the mortgage or at least that is the interpretation I have concluded from his document.

10. That seems to be inconsistent with the correspondence received by the wife from the bank demanding payment and alleging that there are arrears.  No doubt the discovery process will sought all of that out.  In his financial statement, the husband describes himself as a chief executive officer who earns just under $1000 a week by way of salary but he also receives housing and telephone allowance on top of that.

11. By way of expenses, leaving aside the mortgage, he pays rent, tax and the equivalent of the Australian superannuation contribution.  Apart from that, he says that he has some financial obligations for credit cards and I propose to ignore those at this stage because they are voluntary commitments in circumstances where there are substantially lower minimum payments available.  He then sets out in the financial statement that he has living expenses for the children and he totals those for himself and the children at $1414 per week. 

12. I have noted in those expenses that there are substantial amounts of money that are open to dispute.  For example there are expenses of $30 a week for gardening and lawn mowing, cleaning at $50 per week, repairs, dry-cleaning, books, magazines, gifts, hair dressing, insurance and pet care, not to mention a security guard for $30.  If all of those are taken into account, they are presumably not paid on a weekly basis.  That being the case, it seems to me that the husband is in a stronger position than the wife, who is currently awaiting the birth of a baby and has no independent income.  In the interim position the rental should be going into the mortgage and I propose to make that order.

RECORDED  :  NOT TRANSCRIBED

ORDERS DELIVERED

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 31 October 2011.

Associate: 

Date:  31 October 2011