Fisher and Fisher (No 3)

[2011] FamCA 781

FAMILY COURT OF AUSTRALIA

FISHER & FISHER (NO 3) [2011] FamCA 781

FAMILY LAW – Application to vary terms of rental of property order – Lease extended from 6 months to 12 months – Husband to remain excluded from attending at property – Spousal maintenance payments – Use of rental monies – Further Magistrates Court criminal proceedings and family violence issues – Case management orders

APPLICANT: Mr Fisher

RESPONDENT: Ms Fisher

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Ms MacGregor

FILE NUMBER: DGC 2147 of 2010

DATE DELIVERED: 4 October 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 4 October 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	Ms Gurpinar
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER	MacGregor Solicitors

ORDERS

IT IS ORDERED:

1. THAT paragraph 4 of the Orders pronounced 18 August 2011 be amended by deleting the reference to the rental term and further option term of six months and substituting therefore a term of a twelve month period for the lease of that property.

2. THAT forthwith the Independent Children’s Lawyer make, file and serve an affidavit annexing the recently obtained report from the D Contact Centre and N Children’s Foundation.

3. THAT any Application for an update to be undertaken by the Family Consultant Mr M of his earlier issues and report is to be held over pending hearing and resolution of all outstanding criminal and family violence issues now scheduled for hearing on a two day defended basis in the Melbourne Magistrates Court commencing 19 December 2011.

4. THAT all extant applications be otherwise adjourned for further mention and case management directions before Young J on Wednesday 1 February 2012 at 10.00 a.m.

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

IT IS NOTED

A.THAT if the rear unit of the subject property is to be rented then the parties must discuss and come to an arrangement for all furniture, the husband’s personal possessions now located therein and each of the aquariums.

B.THAT the wife will commence her post separation parenting course in November of this year.

IT IS NOTED that publication of this judgment under the pseudonym Fisher & Fisher is approved 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 has been before me on numerous occasions.  Mr Fisher again appears in person.  Mr Lennon represents the interests of the applicant wife and Ms Gurpinar, solicitor, represents the Independent Children’s Lawyer, Ms MacGregor. 

2. I had previously made orders on 18 August 2011 and I delivered an ex tempore judgment on that day.  I have carefully reread those reasons.  For the hearing of the matter today the husband has filed a substantial affidavit on 29 September, with many exhibits thereto.  On the same day the wife’s solicitor filed on her behalf an affidavit, though neither affidavit replies to the other, and it was somewhat by coincidence that they were filed contemporaneously.

3. The Independent Children’s Lawyer has now obtained reports from both D Contact Centre and from N Children’s Foundation.  Each of those documents are within seven days to be filed, pursuant to an affidavit of the responsible officer with this court and served upon both the parties.  There are a number of discrete issues, and I intend to deal with them in their turn. 

4. I ordered last time that the wife have the sole conduct of leasing the rear unit at the Centre Road, Bentleigh property.  Hodges Real Estate agents, were appointed and a rental term of six months with an option for six months was fixed, pursuant to paragraph 4 of my orders that day.

5. In her affidavit the wife and also the appointed real estate agent have said that in the current rental market it is not possible to lease a unit for six months.  Tenants require greater certainty and security.  It is said 12 months is the better term and that would secure applicants.  The wife therefore requests a variation to those orders.  That is opposed by the husband, who fundamentally intends, subject to the outcome of the significant Magistrates Court hearing on outstanding criminal charges and family violence intervention extension applications, to return to that unit to live at some future date.  I have previously prevented that resumption of occupation.

6. I have read the husband’s past and current material and the difficulties in his living arrangements with his family, his need to be self-supported, his need to obtain a bond and money to rent proper accommodation for himself, and thereafter to enjoy a better and developing relationship with his children.  All matters considered, there are some financial necessities from the rental of the rear unit, including the previous order that I have made, for the payment of past ordered costs, any arrears of spousal maintenance, and the payment of the Westpac mortgage debt.  Any surplus is to be held in an interest-bearing account for the parties.  On balance, and all matters considered, I will amend my order to provide for a 12-month lease.  That does seem financially prudent and appropriate in the circumstances of this case, particularly given also the husband’s concern as to the payments due from his net monthly income.

7. The next issue raised was that the wife is yet to commence a post separation course.  I am satisfied from the document produce to the court and marked as exhibit “W1” that she has enrolled, the intake procedures are completed, and from November starts as a participant in that course.  The Court should be updated upon her successful completion of the course and better understanding of issues raised in discussion therein. 

8. The next issue touches upon the husband’s developing relationship with his children.  I have had some brief development of that issue by the solicitor for the children, and otherwise I have seen the various previous orders of this court where D Contact Centre was to be involved and facilitate both the supervised circumstances and time and the venue.

9. I have heard that there is now a better relationship developing between the husband and the child.  That is promising.  D Contact Centre have responded to correspondence from the Independent Children’s Lawyer that they are no longer able to offer the services of supervision, and generally, are suggesting that this family can make other arrangements.  Those other arrangements would include the N Children’s Foundation, but that is a paid service of $60 or thereabouts, and the husband asserts it is way beyond his financial capacity, and would terminate his relationship on a regular and developing basis with all of the children.  On the evidence before me I can make no finding on those issues. 

10. Nevertheless what I have asked the independent children’s lawyer to undertake, as a matter of urgency, is to correspond with D Contact Centre and to use their best endeavours to obtain an extension of the D Contact Centre services offered, until Christmas Eve.  I do not make any order to require the requirement for D Contact Centre to so provide services.  Clearly it is a matter within their discretion and management of their own resources.  But I strongly suggest in this case that such a decision would be in the best interests of all children.  Otherwise and without any formal order for the continuation of time to be spent with the children the father will either take up the N Children’s Foundation offer on a permanent or somewhat less regular basis, or otherwise the parties will need to find some other adult person agreeable to supervise and to provide services.

11. There is an overwhelming need for the children to continue to spend time and develop their fractured past relationship with their father and better improve time with him.  That clearly is in their best interests. 

12. An issue has been raised about the remaining personal possessions, furniture, and contents of the rear unit, and also the fish in each of the aquarium tanks therein.  Some of the fish have died; the husband asserts the wife’s neglect.  I cannot find neglect; it might just be the unfortunate circumstance of inappropriate supervision, or a natural death.  I make no comment and the fish should not play any significant role in this case, which is focused on the parents, the children, the emotional issues, the financial wellbeing, and all of the criminal matters that remain unresolved.

13. When a tenant enters the property, and if the property is let upon an unfurnished basis, then arrangements must be made for the husband to collect all items of furniture and store them either at the neighbouring property of the very friendly Mr and Mrs K, or otherwise elsewhere at his parents’, or in storage, or where the wife may positively suggest.  I make no orders in that regard.

14. Finally the issue of maintenance is clear.  There is an order for spousal maintenance.  It is to be paid from the husband’s income and that is always the requirement for spousal maintenance.  If it proves excessive, then it is a matter that can be reviewed, preferably by a Federal Magistrate.

15. The orders for the rent are clear and concise.  Rental moneys from the rear unit will be used to pay the outgoings identified in paragraph 27 of my previous reasons for judgment, and as to spousal maintenance, it is only any arrears of spousal maintenance.  It is not intended by that order that the husband simply stop paying spousal maintenance so that it can be paid from the rental of the unit.  That is not the intention.  The husband must pay spousal maintenance and that paragraph in the previous reasons for judgment was expressed to provide an immediate repayment of what had accumulated by way of arrears.  I carefully stress that scenario so as to leave open any financial issue being brought before the court by way of repayment of spousal maintenance if the husband elects to discontinue his personal obligations on an ongoing basis.

16. I record the husband’s concern that he does not earn sufficient money, or otherwise that his earnings should provide himself with proper accommodation, rental, and a lifestyle that is reasonable, given his input and hard work.  He alleges that is not possible because of the excessive payments made to children and wife.  That may or may not be the case and I carefully make no finding on any submission at this stage.  I merely enforce the current orders and do not depart there from.  It may be that all financial matters considered, and at a time next year, there may have to be some reconsideration in another Court. 

17. I will have those brief reasons delivered ex tempore, transcribed, placed upon the court file, and made available to all parties. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young delivered on 4 October 2011.

Associate: 

Date:  4 October 2011