Denning and Denning

[2009] FamCA 324

FAMILY COURT OF AUSTRALIA

DENNING & DENNING [2009] FamCA 324

FAMILY LAW – PRACTICE AND PROCEDURE – Case management

Family Law Act 1975 (Cth)

APPLICANT: MR DENNING

RESPONDENT: MS DENNING

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 463 of 2008

DATE DELIVERED: 14 APRIL 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 14 APRIL 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS VOHRA

SOLICITOR FOR THE APPLICANT: MAEVE O'BRIEN & ASSOCIATES

COUNSEL FOR THE RESPONDENT: MR BUCHECKER

SOLICITOR FOR THE RESPONDENT: F BUTERA & CO

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MR DUNSTAN

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: BOWLEN DUNSTAN & ASSOCIATES PTY LTD

Orders

IT IS ORDERED:

1. THAT all extant applications be listed for case management before Young J (and not as a continuation of a Less Adversarial Hearing) at 10.00 a.m. on 7 September 2009.

2. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

BY CONSENT IT IS ORDERED:

1. THAT the wife attend upon a Psychiatrist as nominated by the Independent Children’s Lawyer for assessment and report, and in particular as to the wife’s capacity to effectively parent the child … born … March 2000 (“the child”).

2. THAT the cost of the assessment and report be paid initially from the proceeds of sale of the R2 property currently held in trust, with the question as to whom is liable for those costs to be determined by the Trial Judge.

3. THAT the wife and the husband attend a Post Separation Parenting Course as nominated by the Independent Children's Lawyer as soon as practicable.

4. THAT the parties, as soon as practicable, take all steps necessary for the child to attend counselling as nominated by the Independent Children’s Lawyer to address those issues detailed in the Child and Parent Issues Assessment prepared by Mr A, Family Consultant, dated 1 April 2009 (“the Assessment”).

5. THAT the Independent Children’s Lawyer have leave to provide to the appointed Counsellor for the child a copy of the assessment.

6. THAT the parties share the costs of the counselling for the child.

7. THAT the appointed Psychiatrist have leave to inspect all subpoenaed documents and the Independent Children’s Lawyer have leave to:

   (a)photocopy the wife’s medical records and forward them to the appointed Psychiatrist;

   (b)liaise with the wife’s treating practitioners.

8. THAT pursuant to Section 62G(2) of the Family Law Act 1975 the parties, and if necessary the child, attend Mr A, Family Consultant, for the purposes of a Family Report, such report to be released by 17 July 2009.

9. THAT the Independent Children's Lawyer obtain as soon as practicable a report from the wife’s treating Medical Practitioner, Dr K outlining:

   (a)the current medication taken by the wife;

   (b)the history of the wife’s medication;

   (c)the effect of the medication on the pain experienced by the wife and her ability to effectively parent the child;

   (d)the effect of the wife’s chronic pain on her daily and long-term physical and psychological functioning and if possible to consider the effect on her capacity to care for and parent the child.

10. THAT the costs of the report pursuant to paragraph 9 be paid in terms as provided in paragraph 2 hereof.

11. THAT pursuant to Sections 65DA(2) and 62B 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 those particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 463 of 2008

MR DENNING

Applicant

And

MS DENNING

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The matter of Denning comes before me as a first day less adversarial hearing.  Ms Vohra of counsel appears for the applicant husband, Mr Buchecker of counsel appears for the respondent wife and Mr Dunstan has been appointed as the independent children's lawyer.

2. The child of this marriage is a daughter, born in March 2000 and now nine years of age.  The current children's orders were pronounced by her Honour Brown J on 12 March 2008 and the child spends time with the husband on alternate weekends from Friday to Monday inclusive and on a Thursday evening in the alternate week.

3. The parties have both filed applications before the court.  The husband, in broad summary, seeks a reverse of the current orders so that instead of spending four nights or thereabouts in a fortnight he would spend 10 and the wife enjoy the time that he currently has with the child. 

4. The wife of course wholly disputes any change in the current arrangement, though in her current application (paragraph 9) she seeks effectively an order for sole parental responsibility.  Those matters will no doubt be contested should that application remain in its current form.

5. The wife has a bipolar disorder and is having treatment and medication for that condition, but also for her chronic pain.  I will have orders in children's issues pronounced to appoint a psychiatrist to prepare an independent report upon the mother's current condition, having liaised with her current treating doctor and others as may be considered appropriate. 

6. The mother has, through the Epworth Hospital, a pain management program and the treating psychiatrist, Dr N, will be invited to follow up details thereof and ultimately give assistance to the court on not only the mother's condition and her management thereof but her ability to care for and manage and promote the best interests of the child in her current health circumstances.

7. It is appropriate that the costs of this particular ongoing psychiatric assessment, as it is being entered in to primarily to promote the best interests of the child, is paid from the current investment account where some $81,000 approximately was deposited to the benefit of the parties from the sale of a property at R2. 

8. Mr A, family consultant, has prepared a very helpful issues paper which I have read and which made certain recommendations.  With the approval of the independent children's lawyer, I will enact certain of those recommendations today, and in that regard minutes of orders have been prepared by Mr Dunstan in light of the recommendations of Mr A and with the knowledge and understanding of counsel for both parties. 

9. The earliest that the family report prepared pursuant to section 62G(2) can and will be available to the court is about late August of this year. The mother's report and conference with Dr N is in late July of this year, and, for those reasons, and of necessity, I will return the matter for mention before me at 10 am on 7 September 2009. I underline that I have a four‑day defended matter commencing that day, and this matter will therefore be effectively a mention and case management and not a recommencement of any defended hearing. In that regard, I leave it to the parties as to whether they have their solicitors appear or engage counsel.

10. Hand in hand with the various child and parenting issues, these parties are in dispute as to property and financial matters.  Potentially there are issues of some detail and likely complexity on the property and financial side and therefore as part of the section 79 proceedings. 

11. The parties or the husband developed three units, 1/46, 2/46 and 3/46 in R.  They have now all been sold.  Seemingly, there is a dispute as to the actual cost of construction of the unit and other moneys paid to the husband or others by or at his direction.  The wife looks to engage an accountant to recreate the payment schedule and cost of building, and that is likely to be a somewhat difficult issue.  Whatever report is obtained from her accountant, it must then be shown to the husband's solicitors and for them to gather their evidence in response thereto. 

12. A further issue in relation to that unit development is that there were separate mortgages in favour of a financial institution.  Now that the units have sold, that institution is claiming three separate mortgage break fees each of approximately $30,000.  Litigation is likely, and that is a matter where it is in the interests of the husband and wife to minimise outgoings and payment of the break fee and where there should be some cooperation.  Only time will tell.

13. Proceeds of sale of R2 property are not in trust.  There are current orders of the court operating as to fixed disbursements for reimbursement therefrom and there are matters in dispute today, and I will stand the matter down for the parties to further discuss and try and limit those disputes. 

14. Otherwise, there are two properties.  A property at R1 is valued by the wife at $500,000 and by the husband at $800,000.  That current market valuation difference is ludicrous and an actual valuation of the property must be known.  The mortgages on the property are to Adelaide Bank and total almost $500,000.  

15. The other property is a holiday home at C.  Its value is said to range between $378,000 (from the wife) and $700,000 from the husband.  Again that valuation must be known.  It is also mortgaged to the Bank of Adelaide, and that mortgage is approximately $330,000.  The limited income from the C property and holiday rentals does not meet all outgoings.  The husband wants to sell the C property.  The wife currently reflects on that issue, but does not agree.  I will not make that determination today.  What is needed is a good measure of commonsense from the parties to try and ultimately maximise their assets. 

16. Ms Vohra had pressed for sale of both properties, C and R1, but in the current circumstances and given the evidence that the wife seeks to obtain and the orders she seeks and the fact that she lives in R, I would be unlikely to entertain successfully an application for sale of that property.  C property, however, as a holiday home, is a very different issue and it may be that after the return date that will have to be looked at as an interim issue.  I urge commonsense on the parties and for them to try and modify their outgoing financial commitments and losses.

17. Otherwise, there is a single balance sheet produced on behalf of the husband, which is a helpful document identifying other limited personal chattels and assets and liabilities, including a Platinum credit card account with Citibank of some $63,000. 

18. This property is far from prepared on the financial aspects and much work needs to be urgently attended to by solicitors and accountants, no doubt at some real cost to the parties.  I will reconsider the financial circumstances and the section 79 proceeding when the matter is mentioned to me on 7 September. 

19. I propose to make children's orders in this matter and then stand the matter down and the parties can negotiate, consider and reflect upon the financial issues later on this afternoon. 

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: