Fisher and Fisher

[2011] FamCA 613

FAMILY COURT OF AUSTRALIA

FISHER & FISHER [2011] FamCA 613

FAMILY LAW – PROPERTY – Interim hearing – Rental of unit on home property – Adjournment

APPLICANT: Ms Fisher

RESPONDENT: Mr Fisher

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGC 2147 of 2010

DATE DELIVERED: 27 July 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 27 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lennon

SOLICITOR FOR THE APPLICANT: Lennon Mazzeo Lawyers

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

ORDERS

IT IS ORDERED

1. THAT the wife’s Application in a Case filed 26 May 2011 (primarily paragraph 3 thereof) be adjourned for further hearing as a Judicial Duty List matter before Young J on 18 August 2011 at 10.30 a.m.

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

3. THAT if either the husband or wife intend to file any further affidavit(s) then they are to be filed and served on or before Monday 15 August 2011.

4. THAT all questions of costs of each of the husband and wife of and incidental to the appearance at Court this day be reserved hearing date.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 2147 of 2010

Mr Fisher

Applicant

And

Ms Fisher

Respondent

REASONS FOR JUDGMENT

1. The matter of Fisher is listed before me and has been transferred from Cronin J’s Duty List.  The husband appears in person.  The wife, as applicant, is represented by Mr Lennon, solicitor.  The Independent Children’s Lawyer is not present at Court and was not requested to be here this day as they are primarily financial and injunctive matters before the Court.  Mr Lennon has provided a general background to the complex financial and children’s issues before the Court.  The wife’s application in a case was filed 26 May 2011 and the only matter that was requested to be heard this day was the rental of the rear unit at B Street, Suburb C.  That unit is currently vacant.

2. The wife lives in the front unit of that property with the four children of the marriage whose ages are 13, 12, 10 and 6 years respectively.  The husband presently lives with his parents.  The husband has advised the Court that for family reasons it is very difficult for him to remain living with his parents and that he needs to find other accommodation.  All of his furniture and specific personal possessions are remaining in the rear unit of the B Street property. 

3. The current orders of the Court restrict the husband to spending time of two hours a fortnight with the children at the D Contact Centre on a supervised basis.  The 12 year old daughter, E, presently does not agree with and has not attended at those supervised visits with her brothers and sister.  It may be that the Independent Children’s Lawyer would want to make submissions if it be known that the husband’s application is to return to live in the rear unit on the subject property where the wife and children reside. 

4. I am also advised that there are outstanding criminal proceedings pending against the husband.  I have not seen the charges.  They relate to alleged sexual assaults by him upon the wife.  The husband has said to the Court that they will be vigorously defended.  There is also a current family violence intervention order made in the Magistrates Court on 25 October 2010 but which expires on 13 September 2011 unless extended or varied.  The wife’s solicitor has strongly asserted in Court that he has instructions to apply for an extension of that order and will be so doing.  The fact of the matter is that currently no extension has been sought. 

5. In the alternative the wife’s solicitor has raised an injunctive order of this Court restraining the husband from returning to the subject property.  I do not comment upon that as those matters are not yet issued and may or may not occur depending upon the wife’s instructions or the outcome of the intervention proceedings.  The financial circumstances of the wife are before the Court.  There is an issue whether this application for the rental of the rear unit was also before the Court last year and dismissed.  If it was, that outcome is not binding upon me.  The husband asserts that arising from the previous proceedings he now pays $200 spousal maintenance to his wife each week and that was in lieu of the external rental of that rear unit.  Again I make no finding on those issues.

6. The husband volunteered to the Court that he pays monthly and regularly his current child support assessment and that because of his job as a manager with F Ltd his income over the past year has increased and when he files his tax returns in the very short future there will be an ongoing increase in child support.  Again, I await the updated assessment.  The wife filed an affidavit in support of her application together with a further affidavit of her solicitor.  I am generally aware of her financial circumstances both as to income and liabilities and in particular I have read paragraphs 5 and 6 of her affidavit.

7. Legal fees are already substantial and will continue to increase but I accept that the wife needs competent legal representation, she having recently changed solicitors.  Part of the substantial debt involves the payment out of the prior solicitor’s account and Company G who had advanced moneys at a rate of 16 per cent to the wife.  That debt is now discharged and consolidated with a current debt to her present firm of solicitors.  Again I make no comment upon or finding as to those liabilities or their appropriateness or otherwise.

8. The simple overview of this matter is the property being the rear unit in B Street, Suburb C should not remain vacant.  It must either be rented on the commercial market or alternatively the husband’s application succeeds and that he returns thereto and be reunited with all of his furniture and personal possessions.  That latter course, however, has a number of very significant issues of and related to past conduct, outstanding criminal charges, a current intervention order and I am now also advised that there is civil litigation presently being conducted in the County Court of and related to the alleged assaults and physical violence.  That matter is next before the County Court in August of this year.  Again I make no comment whatsoever or findings upon any of those criminal or civil issues.

9. On what I have read and having listened to the parties in this brief ex tempore hearing on the basis of the Judicial Duty List I am strongly inclined to require the property to be rented out.  It is common sense that it earns a commercial rent.  However what I intend to do is to pause that decision and to adjourn the matter and list it before me at 10.30 a.m. on 18 August 2011.  In the meantime it would be helpful and I give both parties the opportunity to file a brief affidavit outlining in summary form the reasons why this rear unit should or should not be rented.  It would be helpful if there was a concise summary in the wife’s affidavit of criminal charges outstanding of which she has knowledge or other criminal proceedings in any other court. 

10. Likewise the husband may choose to put the circumstances of his difficult relationship with his parents and his unsatisfactory accommodation in their home and why he should return to the rear unit.  In the meantime I accept the suggestion of the wife’s solicitor that inquiries can be made of a potential rental income and tenants can be sought but no lease can be entered into at this stage pending 18 August and the hearing on that day.  I record also the matters raised by Mr Lennon in that the rental could either be paid to the wife or partially paid to the wife or otherwise invested in a joint interest bearing account to offset debt and liability of the parties.  Again that is a matter to be determined on the adjourned hearing date.

11. I emphasise on that day it may be that I am involved in a defended proceeding and the matter will have limited time but I will give it such sufficient as to make a decision and to finalise this matter.  A copy of these orders should be served upon the Independent Children’s Lawyer and they should be at liberty to attend Court on that day and Mr Lennon should take the opportunity to discuss these ex tempore reasons with them and in any event I will have the reasons typed, placed upon the court file and sent to all parties. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young delivered on 27 July 2011.

Associate:     

Date:              27 July 2011