Fisher and Fisher (No 2)

[2011] FamCA 656

FAMILY COURT OF AUSTRALIA

FISHER & FISHER (NO 2) [2011] FamCA 656

FAMILY LAW – Financial And Parenting Dispute – Husband Facing Substantial Criminal Charges – Existing family violence order – Application by husband to return to live in rear unit when wife and children occupy adjoining unit – Application refused – Rear unit to be rented and income applied to the family outgoings – Costs – Adjournment of further proceedings part-heard

Family Law Act 1975 (Cth)

APPLICANT: Mr Fisher

RESPONDENT: Ms Fisher

INDEPENDENT CHILDREN’S LAWYER: Ms McGregor

FILE NUMBER: DGC 2147 OF 2010

DATE DELIVERED: 18 August 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 18 August 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Lennon

SOLICITOR FOR THE RESPONDENT: Lennon Mazzeo Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: MacGregor Solicitors

ORDERS

IT IS ORDERED

1. THAT the wife forthwith enrol in and undertake and complete an appropriate parenting course and file a Certificate of completion with this Court.

2. THAT as soon as practicable a transcript of the reasons for judgment delivered by his Honour Justice Cronin on 3 May 2011 be transcribed, placed upon the Court file and made available to all parties.

3. THAT my extempore reasons for judgment delivered this day be transcribed, be placed upon the Court file and be made available to all parties.

4. THAT the wife have sole conduct of the leasing of the jointly owned property at B Street, Suburb C, the rear unit thereof, and in conjunction with G Real Estate, Suburb C, lease the property to third parties (not associated with either of the husband or wife) for an initial rental term of six (6) months and with an option of six (6) months at the best rental sum obtainable and subject to all usual terms and conditions of occupancy.

5. THAT to facilitate the leasing of the jointly owned rear unit property the husband sign all documents and do all acts and things and give co-operation with the appointed real estate agents and the wife or otherwise and pursuant to s 106A of the Family Law Act 1975 a Registrar of this Court be empowered to sign all documents and do all acts and things in the name of the husband so as to facilitate the outcome of the rental of the property and the disbursement of monies therefrom as recorded in paragraph 6 of these orders.

6. THAT the rental income, net of all commission and expenses of the appointed real estate agents be otherwise applied as follows:

   (a)first in reduction of the outstanding sum owing pursuant to the costs orders of Cronin J dated 3 May 2011;

   (b)secondly in reduction of any arrears of spousal maintenance currently owing;

   (c)thirdly in payment of any outstanding spousal maintenance payments;

   (d)fourthly in reduction of any arrears of the H Bank mortgage due and applicable upon that property;

   (e)otherwise any balance be held in an interest bearing account in the names of the husband and wife pending further order of the Court.

7. THAT the wife’s costs of this day be fixed in the sum of $900 and the payment thereof be adjourned to the adjourned hearing date.

8. THAT the question of all costs reserved in favour of the husband pursuant to the orders dated 27 July 2011 be discharged.

9. THAT the wife’s costs of and incidental to the hearing before me on 27 July 2011 be fixed in the sum of $900 but the payment thereof be reserved to the adjourned hearing date.

10. THAT otherwise the orders sought on an interim basis by the wife in her Application in a Case filed 26 May 2011 be dismissed.

11. THAT the orders sought by the husband in his Response to the wife’s Application in a Case, such document being filed 21 July 2011 be dismissed.

12. THAT the orders sought by the husband in his Response to the wife’s Application in a Case filed 12 August 2011 be otherwise dismissed.

13. THAT otherwise all extant applications be adjourned for case management and further directions before Young J at 11.00 a.m. on Tuesday 4 October 2011.

14. THAT liberty be reserved to each of the parties to apply upon written and proper documentation filed as to any substantial issue that may arise from the leasing of the rear unit at B Street, Suburb C.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Solicitor appearing as Counsel for the wife.

IT IS NOTED

A.THAT the husband has raised the issue of insurance on B Street, Suburb C (the rear unit) and it is anticipated, but not ordered, that he will continue to make those payments on a monthly basis and if he does not do so he must give prior written notice to the wife as the intention is the property at all times be and remain insured.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 2147 of 2010

Mr Fisher

Applicant

And

Ms Fisher

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The matter of Fisher is relisted before me following the adjourned proceedings from 27 July 2011.  Mr Lennon, solicitor, again appears for the wife, and the husband appears in person.  The Independent Children’s Lawyer is not represented at Court, and she has communicated to the parties that she is not funded to appear on matters of and related to property and financial issues, and when the specific children’s issues are not before the Court.  Her most recent letter in that regard is dated 11 August 2011 and is exhibit “CF6” to the recent affidavit of the wife filed 15 August 2011.

2. I record only that Ms McGregor needs to be given proper notice and requested to attend when children’s issues are primarily the focus of the parties and thus of the Court.  I delivered ex tempore reasons for judgment on the previous occasion, which I have re-read, and which form the background to the matters before me today.  On that prior occasion, I reserved costs of the husband and wife of that hearing on 27 July, and otherwise adjourned proceedings to this day.  The matter has proceeded by way of submissions and commenced at 10 am and has occupied a full and complete two and a half hours without interruption.

3. These reasons are ex tempore and are delivered without my rising from the bench.  I do not intend the reasons to be specifically detailed, but they will cover the matters and facts upon which I have heard submissions today and will support the orders that are just and proper to be pronounced.  As a background to the hearing today I again record the Application in a Case that the wife filed on 26 May and which was before me on the last occasion.  What was then sought was the sale of the property at B Street, Suburb C, and the discharge of the H Bank mortgage thereon.

4. My recollection on that previous occasion was that the solicitor appearing for the wife elected not to proceed with that Application at that time.  The husband had then filed a response on 21 July 2011 seeking the dismissal of the wife’s proceedings.  Pursuant to my orders those proceedings were not reserved but specifically adjourned to the hearing this day as a duty list and not as a defended matter.  I have re-read the affidavits then filed by each of the husband and wife in support of those previous applications. 

5. I have also taken the opportunity to reread the orders of Cronin J of 3 May 2011.  At that time his Honour dismissed the Contravention Application and the further Application in a Case filed by the husband on 28 April 2011.  His reasons for judgment were to be transcribed, but both parties have advised me today that they are yet to receive the copy of those reasons for judgment.  I will direct that those reasons be transcribed, placed upon the Court file, and made available to all parties, including the Independent Children’s Lawyer. 

6. I also observe that on that occasion his Honour ordered the husband to pay the wife’s costs, fixed in the sum of $2,500, and the costs of the Independent Children’s Lawyer, fixed in the sum of $650.  From submissions made to me this day by Mr Lennon, it is clear that those payments have not been made, in whole or in part.  From my earlier order on 27 July 2011, I reserved the questions of costs of the husband and wife, but did not fix those costs for that day, and those matters specifically are before me today.

7. The husband has filed a further Response on 12 August 2011 and I have carefully read that document and asked many questions of the husband in regards thereto.  The husband today sought:

   ·permission to live in the rear property at B Street, Suburb C, and for the keys to be provided to him immediately;

   ·a cessation of spousal maintenance payments;

   ·a discharge of the current children’s supervision orders;

   ·a psychiatric report to be prepared upon the wife as to her current state of mental health;

   ·the wife to undergo immediately a parent separation course as the husband has recently completed.

8. The husband has filed a comprehensive affidavit dated 12 August 2011 and numerous exhibits thereto.  I have read and evaluated that document.  I have asked questions of the husband thereof.  The affidavit is not paginated and I will ask the husband, before he leaves the Court today, to complete the page by page numbering thereof.  I have struck out the final paragraph on page 3.  I have also struck out a paragraph on page 6 thereof and otherwise have struck out and require to be deleted the annexure of two pages identifying previous settlement negotiations. 

9. I will have my court officer provide that document in Court only to the husband at the conclusion of the proceedings for the numbers to be affixed to each page and, in the presence of the solicitor for the wife, for the two page exhibit of settlement negotiations to be removed therefrom.  The husband has also filed a Financial Statement purportedly setting out his income and expenses currently.  The wife has filed an affidavit on 15 August 2011 which likewise I have read, evaluated, and asked questions of Mr Lennon in regards to the matters deposed to therein.

10. There are certain matters that became apparent today, of and related to other Court appearances in the immediate future, to which one or both of these parties will attend.  There are criminal charges outstanding against the husband.  For some reason the statement of those charges and the documents served upon the husband have not been disclosed by him to this Court.  They are identified by the wife in paragraph 10 of her most recently filed affidavit and the husband today acknowledged that there are current charges, to which he has said he will plead not guilty, and which include obstructing or preventing the course of justice, attempted abduction, assault and rape.

11. Those matters are now listed before the Melbourne Magistrates Court at what I understand to be a form of pre-committal hearing on 2 September of this year.  That is in a few weeks.  On the issue of outstanding Family Violence Intervention orders, the current order remains valid and operates until 13 September of this year.  There was to be on 15 August a hearing as to the discharge or extension of that order.  Somehow and for some reason beyond the need of investigation of this Court, there was an issue as to the venue, which one party initially thought to be the Melbourne Magistrates Court and the husband knew to be the Moorabbin Magistrates Court.  A new date was then fixed.

12. Ultimately the husband was correct.  The matter was to be heard in the Moorabbin Magistrates Court, and I understand that now, by direction of that Court, the matter has been stood over for a directions hearing in the Melbourne Magistrates Court on 5 September of this year.  As the Intervention Order does not expire until the following week, 13 September of this year, there is clearly an opportunity for the wife to apply to the Court on that directions day for an extension of the order.  I make no comment or observation upon whether a Magistrate would or would not grant that extension and extend the current order for any other period.

13. What I am concerned about is that, as of today when I am pronouncing interim orders, the intervention order remains alive and valid.  The further matter that arose by way of submissions this day is that the husband has now been charged with six breaches of that Intervention Order.  That document is exhibit “H3” in the proceedings.  Again, I make no comment upon the accuracy or otherwise of the allegations and charges and they are now returnable in the Moorabbin Court at Melbourne on 29 September 2011. 

14. The complainant is Senior Constable J.  Somewhat curiously, the charges relate to alleged breaches which occurred long ago, and specifically on 13 September, 16 September, and 26 September of last year.  For the purposes of the matters before me, I observe only that they are yet another range of criminal proceedings in the Magistrates Court which are alive and which require the attention of the parties.  The further matter to which my attention has been directed is that the wife has brought proceedings in the County Court of Victoria, in the Damages and Compensation List, for financial payment and an award of damages against the husband as a result of the alleged sexual assaults and other particulars detailed within the Writ filed 19 May 2011.

15. That document is annexed to the wife’s affidavit filed on Monday of this week and is exhibit “CF1”.  There is other correspondence annexed to the wife’s affidavit, but the summary seems to be that, in default, a judgment was issued in favour of the wife and against the husband on those proceedings.  The husband, with his limited legal background, has explained that he obtained legal aid and was advised not to file any Defence, lest it prejudice his criminal defence and any counter-claims.  The husband had no understanding that a default judgment would be entered by way of his non-appearance.

16. He has now filed an Application to Set Aside that default judgment and those matters are likewise the subject of further hearing and a required determination by the County Court. 

17. I have therefore set out the criminal background by way of future hearings to occur in the month of September because it provides a convenient overview of the complex legal, physical, and emotional circumstances and perhaps also financial circumstances confronting this couple. 

18. I otherwise am aware that the children’s issues remain somewhat alive and that the husband is having supervised time spent with at least three of the children at the D Contact Centre.  There perhaps is a reality that this service will only be offered on a continuing short term basis, but I make no further comment and I have no timetable before me in that regard.  The husband has undertaken a Post Separation Parenting Course and has exhibited the Certificate of Attendance as a second exhibit to his affidavit.  I accept his submission that it would be appropriate for the wife also to undertake and complete a like separation course, though not necessarily at the same venue.  I require the wife to immediately enrol, undertake, and complete a course and provide to the Court a Certificate of completion of that course.

19. Hopefully, it will bring a further and better understanding to her of all of the issues in the case, though I do not make that comment in a critical manner.  One of the aspects of this case that I merely observe is that there is continuing email contact between the parties, some of which are exhibited to their various affidavits.  That perhaps is somewhat unusual in the context of all of the alleged physical assaults and other alleged criminal behaviour, but I make no further comment on that matter.

20. The particular issue before me that I will determine today is the sale or renting of the rear unit at B Street, Suburb C.  The husband conveniently provided a plan of the two units on site.  That is exhibit “H1” in the proceedings.  I will keep this document on the Court file.  It shows the design and layout of both units and it is apparent that if the parties are to keep to their own land, then the entry to unit 2, either by car or by foot, is down the common driveway.  The husband has, as exhibit “H2”, presented a letter dated 23 November 2010 from the next door neighbours, Mr and Mrs K.

21. That letter at that time evidenced the fact that those neighbours were “happy to have him walk down our driveway and access his rear yard via our back yard”.  Whether that position remains the same in view of the recent events, and whether those neighbours know of the alleged criminal charges outstanding, and whether they would offer that generous position if they knew of the criminal hearings and allegations, I make no further comment.  Ultimately, their consent is merely one factor that I balance in the determination of what is the appropriate order and outcome of the rear unit.

22. The parties in their affidavits have considered in detail the issues of rental of that unit, of an appropriate real estate agent and of the financial implications of renting.  The essence of the husband’s case is that he should live in that property.  He says that he can no longer live in his parents’ home and I have carefully read his affidavit on pages 1 and 2 in that regard.  He records the position of his parents who otherwise are denied time with their grandchildren by his presence in their home.

23. I have also considered his financial position, both in his financial statement and in paragraph 2 of his affidavit.  On page 4 of the husband’s affidavit, he sets out a rental example, where he identified available income to the family, the lease income, and the expenses on the home.  There is also provided a six month rental example.  The expenses include the H Bank mortgage which, for the first time, the husband has advised the Court, he has temporarily suspended the payment of and otherwise issues of payment of outgoings, costs of moving the fish from the tanks they are in, furniture removal, and the like.

24. I have further read carefully paragraph 3 thereof.  I have also had the opportunity to read the wife’s material in that regard and her annexures thereto.  This property will likely rental for a sum of about $500 - $540 a week, give or take a few dollars.  In paragraph 13, the wife says her estimate of rental as advised by real estate agents is between $450 a week and $620 a week.  Both the husband and wife formerly had some involvement in real estate and, in particular, the wife’s curriculum vitae is annexed to her affidavit identifying her past employment with G Real Estate.

25. The husband advised the Court that he also formerly worked for that real estate agency.  It is proposed that they are one of a number of agents who could rent this unit.  The husband insists that if it is to be rented, which he opposed, it is to be by a local Suburb C-based real estate agent and not a Suburb L-based real estate agent.  In all of the circumstances, and given the previous employment of the parties, and that neither has an opposition to G Real Estate, if they are to be the agent, then in preference to the various other agents, I will direct that only G Real Estate be engaged by the wife to rent the rear unit.

26. It follows from that that I have concluded the proper outcome is for the unit to be rented to third parties not connected with the husband and wife and who will pay a commercial and proper rental.  The tenancy is to be for six months with an option of six months.  An appropriate bond is to be lodged.  The usual terms and conditions of any tenancy are to be observed by the wife and the husband is to be kept informed in writing by the agent as appointed of the regularity of payment by the tenant and of their suitability and their reasonable and proper upkeep of that unit.

1. Given that the unit’s currently vacant, I will permit the wife to immediately move to rent the property on the basis specified.  The rental income received is to be paid net of all expenses properly incurred by the real estate agent, including commission, to the wife and to be applied as follows:

   ·first in reduction of the costs orders made by Cronin J on 3 May 2011;

   ·secondly in reduction of any continuing arrears of spousal maintenance;

   ·thirdly in reduction of any arrears of the H Bank mortgage, though that remains the sole and ordered responsibility of the husband;

   ·fourthly, any balance to be invested in an interest bearing account in the names of the husband and wife pending further order.

2. There will likely be issues arise as to the fish, the aquarium tanks, and also the husband’s furniture and possessions in the property.  I do not intend to make specific orders in that regard.  The obligation upon the wife would be through her solicitor to co-operate with the husband so he may instruct others to remove same, or otherwise they go into storage and are to be paid for from the rental income of the unit.  The preferred option is the husband organises to take, remove and store or uses the furniture.  The furniture should not remain in the unit when tenants are occupying that unit.

3. Because of the Intervention Order currently existing until 13 September 2011, the husband does not have access to that unit to remove his furniture.  It may be that by prior arrangement and with the wife and children absent, there could be a structured attendance by the husband to sort, select, and remove the furniture, but I do not intend to make that order.  Common sense will have to apply, and that is not a level of detail that I will entertain.  I will otherwise reserve liberty to both parties to apply on written documentation filed for any significant issue that arises out of the rental of that rear unit, but I do not want these parties back in Court on that issue. 

4. These parties have enough Court events and the costs are escalating significantly.  Hopefully, some level of common sense can and will apply.  I will not, at this stage, order a psychiatric examination of the wife.  I do not discount that on a future day on other material filed and for reasons particularly related to the children that application can be restored, but currently it is inappropriate and does not sit with the earlier orders of Cronin J or the Senior Registrar or the many judicial officers before whom this matter has previously been heard and determined.

5. The question of the costs of the parties of and incidental to past applications and this application now remains a live issue before the Court. The Court is empowered by s 117 of the Family Law Act 1975 (Cth) to, in its discretion, award costs in circumstances that are just so to do. The primary principle is that each party to litigation pays their own costs. That outcome however is subject to a determination made by the Court that, in all of the circumstances, it is just that an award of costs can be made in favour of a party.

6. Sub-section 2A of that section identifies the various factors to be considered by the Court in making any award of costs on a basis that is just and I have had particular regard to the following sub-paragraphs thereof:

   (a), (c), (d), and (e)

   Additionally I have regard to all of the previous alleged criminal and anti-social conduct that has been disclosed in this case and primarily the existence of the Family Intervention Order which remains alive as at the day of this hearing.  I have also witnessed the manner in which the parties have conducted themselves in the Court hearing before me and the particular submissions made and orders sought.

7. What does remain outstanding is the conduct and outcome of the various further Court proceedings in the Magistrates Court in the month of September and before this matter returns for further hearing before me.  On balance it is important that I am aware of the outcome of those proceedings and thus I will fix the wife’s costs of this day in the sum of $900 but reserve the payment thereof for determination by me on the adjourned hearing date.  On what I have heard and observed I most likely will order the payment of costs in favour of the wife.  On that further date I intend to deal with all other questions of reserved costs.

8. I intend, somewhat reluctantly, to adjourn all applications before me to 11.00 a.m. on 3 October of this year.  That is a date after all scheduled Court events in the Magistrates Court.  I then may be in a position to better understand the continuation or otherwise of any intervention order and/or the committal charges, and when that final committal hearing may occur so as to structure any children’s orders, or the enforcement of children’s orders, that are outstanding.

9. I will have these reasons for judgment transcribed, placed upon the Court file, and made available to the parties.  As I earlier indicated, I will have the associate to Cronin J follow up the whereabouts of the transcript of orders and reasons for judgment from 3 May 2011. 

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young delivered on 18 August 2011.

Associate:     

Date:              18 August 2011