Francis and Francis

[2007] FamCA 135

FAMILY COURT OF AUSTRALIA

FRANCIS & FRANCIS [2007] FamCA 135

FAMILY LAW - CHILDREN - With whom a child shall live - Best interests of a child
FAMILY LAW - EVIDENCE - Expert evidence
FAMILY LAW - PRACTICE AND PROCEDURE - Judicial Registrar - Review of enforcement order

APPLICANT: Mr Francis

RESPONDENT: Mrs Francis

FILE NUMBER: SYF 3032 of 1997

DATE DELIVERED: 2 March 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Justice Lawrie

HEARING DATES: 30 November 2004;  1, 2, 3, 6, 7 and 8 December 2004;  14 February 2005;  22, 23, 24, 25, 26, 29, 30 and 31 August 2005;  1 September 2005;  and 7, 8 and 9 November 2005

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Knox

SOLICITOR FOR THE APPLICANT: Mr Longworth

COUNSEL FOR THE RESPONDENT: Mr Connor

SOLICITOR FOR THE RESPONDENT: Mr Samuel

INDEPENDENT CHILDREN’S LAWYER: Ms Karagiannis

Orders

1. Order 1 of 22 March 2002 continue.

2. Orders 2 to 7 of 22 May 2002 are discharged.

3. The father post to the mother photocopies of all written reports received from the children’s school AND shall also do all acts and things necessary to authorise the school to forward copies of the children’s school reports to the mother and the father and/or mother may publish this order to the children’s schools.

4. The father shall forthwith notify the wife in the event of one of the said children becoming ill or having an accident which in either case results in that child’s admission to hospital as an inpatient and in such event the husband shall notify the wife of the hospital to which the child has been admitted.

5. The father shall forthwith notify the wife in the event of any other emergency concerning either of the children.

6. All other applications in relation to the children are dismissed.

7. Pursuant to Section 65DA(2) and Section 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 these particulars are included in these Orders.

8. That the review of the decision of Judicial Registrar Johnston of 8 August 2002 be upheld.

9. That the husband repay to the wife the sum of $153,061.08.

10. That the exhibits may be returned upon the usual undertakings.

11. That all material produced in response to subpoenas is to be returned to the party who produced it.

12. That the matter be removed from the pending cases list.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF3032 of 1997

Mr Francis

Applicant

And

Mrs Francis

Respondent

REASONS FOR JUDGMENT

1. The unhappy history of these parties is set out at length in the judgments of Justice Cohen of 22 March 2002 and of the Full Court of 31 October 2003.  This case had two aspects:  there was an application filed by the wife on

   
   

   15 August 2002 for a review of a Judicial Registrar’s decision in relation to enforcement of a property order;  and there was an application filed by the husband to vary orders made in relation to the two children of the marriage.

2. The litigation which has followed the breakdown of their marriage has been ruinous for the parties, both emotionally and financially.  The relationship between the parties has become worse and worse and the situation has been worsened by the pressure of ongoing litigation.

3. The litigation has traversed in detail unhappy events in the parties’ lives, dwelt on every negative aspect of their history, and exposed the depth of the hostility between the parties to the court and to outsiders whose lives have impinged on those of the parties who have as a result become involved as witnesses.

4. The members of the profession representing the parties have become aligned with their clients.  This is not unique to this case.  Long running cases assume a life of their own where it becomes increasingly difficult to step back and be objective.  The litigation becomes an end in itself.  In some cases the temperature of litigation can be controlled by the profession exercising appropriate professional detachment.  If that detachment is lost, the profession can wittingly or unwittingly become a cause of the escalation of the conflict.  The defence of a client who it is felt may have been harshly treated can evoke a strength of expression which can lead to equally strong reactions.

1. The parties have been engaged on this battlefield for years.  They, and everyone engaged, have battle fatigue.  But the ones who have suffered most have been the children, who have been caught in the middle and who have had the shrapnel from both sides falling on them.

2. The litigation canvassed the behaviour of both parents, each seeking to portray the opposition in the worst possible light, as if it might be possible for one party to demonstrate that it was really the fault of the other that this situation had come about.  Both sides demonised the opposition to some extent.  There is no possible winner in this activity and of course the children, who are a blend of these two people, cannot have their self esteem enhanced by being exposed to the most negative aspects of their parents.  Everything negative one parent has said about the other has been indirectly an assault on the children.

3. The litigation has been particularly cruel for the mother.  She does not have ongoing contact with the children.  She has been portrayed as someone with mental instability.  Harsh things were said about her in the first judgment.  Her blood family have taken sides with the father, and are antipathetic to her.  She has been financially devastated by the consequences of the break up of her marriage.  She has clearly felt that the course of the proceedings has led to a lack of fairness, particularly by the court’s refusal accede to her application to, as it were, get a “second opinion” on the situation from a fresh psychiatric expert who had not already given an opinion on the matter.

4. The delay in hearing the review of the Judicial Registrar’s decision on the enforcement matter was contrary to the requirements that decisions made by delegated authority must be promptly reviewed.  It is not unreasonable for a litigant who has had the experiences with the system that the mother has had to feel that the cards are stacked against her.

5. Her brother and sister gave evidence for the husband.  Her sister’s demeanour in the witness box gave the impression that the wife’s desperately unhappy  situation gave her pleasure.  They do not appear to have been given accurate information about the situation, believing for example that it was the mother who had brought the matter back to court when in fact it was the application of the husband made very soon after the outcome of the first litigation.

6. The solicitor handling the wife’s mother’s estate has not been as courteous  to her as to the husband.  The pastor whom she turned to for spiritual comfort took it upon himself to volunteer an affidavit for the husband.  The pastor’s wife showed more respect for the confidentiality that one would expect from someone in that situation.  Had the pastor been subpoenaed he would have had to give evidence, but he had no consideration for the mother despite the special relationship he had assumed with her as a pastor.  There are certainly examples of behaviour when she has had less than proper treatment and her feeling that she has been hard done by is not unreasonable on the evidence before me.

7. The wife did not present during the lengthy and often unpleasant time that I was able to observe her as being as the father’s side portrayed her.  In the circumstances I thought she was in fact self-controlled.  The husband did strike me as being very controlled and presenting as a passive victim of the wife, although at one time during cross examination a more aggressive personality consistent with the mother’s description of him was displayed.  The evidence of his behaviour in the local soccer circle presents a man with a character quite different from the “mild mannered” persona which was being portrayed in the witness box for most of the time.

8. The boys whom the couple produced seem to be exceptionally nice boys.  They are in a hellish position.

9. Like all children of separated parents they have had to tread a difficult path, anxious to please both their parents whom I have no doubt they both love.  It is a particularly difficult situation for children who are aware that their parents are at each other’s throats.  They are veterans of this campaign.

10. Looking at the situation from their point of view their most pressing need is peace and privacy.  Some litigants lose sight of the fact that what is important is not who wins the battle, not who wins the war, but who wins the peace.  These children will make the judgments of the parties that are really important, and they will make it as eyewitnesses to events.  The literature of children who have been through these ordeals often involves the children searching out the parent whom they were unable to see when they are old enough to be independent.

11. The children are thankfully well aware of the fact that their mother is desperate to see them, and cannot be in any doubt that they have a mother who loves them deeply.

12. What amelioration of this dreadful situation can be achieved by this litigation whatever the outcome?  The reality is that the parties are unlikely to change.  They are mature adults.  Their personalities are set.  Their position is entrenched.  They are too embittered and exhausted to forgive, regardless of their religious affiliations, and too scarred to forget.

13. The Act makes it clear that the children’s welfare is the paramount consideration.  The parties have been through one full blown dispute over the children and are all too well aware of the way in which the law approaches the matter.  The father’s history suggests that he would not accept and adapt to a decision which did not suit him.  He entered into consent orders but said he was really overborne.  After the hearing and the appeal it took only a short time before he had brought the matter back to court with the present situation.  If this decision is not to his liking I would expect that there would be further litigation.  It will prolong the agony for the children, produce more shrapnel, and entrench the bitterness still further.

14. An outcome which may be “unfair” to one of the adults, may yet be in the best interests of the children.

15. Regardless of the question of who has been “wrong” and who has been “right” in the decisions that they have made as parents of the children, who has been “nice” or “nasty” in their motivation for their actions, and how their actions may be slotted under the myriad headings of the sections in the Act dealing with parenting, at the end of the day the court’s task must be to devise the least worst situation for these children for the rest of their adolescence.  That situation should protect them from any direct observation of conflict between their parents, and protects them from psychological pressure from their parents to take sides against their other parent.

16. I have no doubt that they have been under a great deal of psychological pressure from the husband and more subtly from the actions of the wife’s family, to take the husband’s side.

17. It is in my view extremely unfortunate that the expert who prepared the reports has a practice of having the children who are the subject of the dispute being present when she takes a history of that dispute from the parent they are living with.  I agree with the mother’s belief that the children could very well, and indeed I think most likely, have got the impression by being included in that first interview that they were “expected” to behave in certain ways.

18. These children are very much aware of the court process, they are represented.  The selection of the same expert, in the face of the mother’s opposition, may well have been seen by them as a signal that the outcome was going to be the same as in the earlier litigation.  That the boys elected not to be observed with the mother after this process is hardly surprising.  That they were distressed at making that election is hardly surprising.  Their expressed wishes are made in circumstances which put them under duress.

19. I found the expert’s report completely unhelpful in those circumstances.  I would not see it as appropriate for the expert to be further involved in this matter, either in the selection of a counsellor for the boys or for her reports to be used as a history by any counsellor who might work with the boys.

20. Unfortunately I think any programme of contact to have the boys regularly see their mother whilst they are living with him and dependent on him, is doomed.  The father has no respect for the children’s rights to see their mother.  They would be interrogated, subtly or otherwise, and be visited with displeasure if they saw their mother.  Is the answer then to change the residence of the children?  I think that they would suffer more from the pressure that they would be under from the father if that eventuated, than they are currently under.  By the time the appeal (which would inevitably follow) was dealt with, the elder boy would be eighteen and the younger boy at an age where the court would be unwilling to make an order which would put his life in turmoil.

21. I accept the mother’s evidence about the children being happy to see her when it has happened when the father has been unaware of it.  In the situation in which the children find themselves I have no doubt that they are well aware that expressing a wish to see their mother would be attended by unpleasant consequences.  I have no doubt that they will be cross examined by their father as to the outcome of any contact or any opportunity for contact which might be structured such as was discussed during the course of the hearing.

22. I have no doubt that he would ignore any order prohibiting him from discussing the proceedings or discussing what took place at any ordered counselling.  I also think that the mother would ignore such an order if the situation was reversed.  Given the situation that the children find themselves I believe that it is in their best interests that the orders in relation to contact made on 22 March 2002 be discharged.  Unfortunately I am satisfied that the toxic interaction between the parents has made it impossible for these to be implemented without great distress to the children.

23. Order 1 of 22 March 2002 will therefore continue.

24. Orders 2-7 of 22 May 2002 are discharged.

25. It is appropriate that the children’s progress in their schooling should be known to both their parents and accordingly an order will be made:

    That the father post to the mother photocopies of all written reports received from the children’s school AND shall also do all acts and things necessary to authorise the school to forward copies of the children’s school reports to the mother and the father and/or mother may publish this order to the children’s schools.

26. It is important that if there is any crisis such as a medical or other emergency that the children be able to have their mother present.  Accordingly order 8 of 22 May will be amended by deleting “each party shall forthwith notify the other” and inserting “the father shall forthwith notify the wife” so that the order will read:

    That the father shall forthwith notify the wife in the event of one of the said children becoming ill or having an accident which in either case results in that child’s admission to hospital as an inpatient and in such event the husband shall notify the wife of the hospital to which the child has been admitted.

27. A further order will be made:

    “That the father shall forthwith notify the wife in the event of any other emergency concerning either of the children.

28. I make no other orders in relation to the children, and all other applications in relation to the children are dismissed.

Application for Review of Judicial Registrar’s enforcement order of 8 August 2002

1. The order made by the Judicial Registrar of which the review was sought was made after an application for enforcement which was filed by the father on

   
   

   2 August 2002.

2. Section 105 of the act makes it clear that enforcement is a matter of discretion as it provides:

   “Subject to this Part, to the regulations and to the applicable Rules of the Court, all decrees made under this Act may be enforced by any court having jurisdiction under this Act.” (emphasis supplied)

3. Because it is discretionary, it is not an automatic response.  The case of Ramsey and Ramsey pointed out that a Judge is required to exercise their discretion, not simply make an automatic order for enforcement, as the judge appeared to do in that case (which was on the point of whether the trial judge should have permitted cross examination of the evidence and received evidence of relevant events between the parties subsequent to the property order[1]).

   [1]  Ramsey and Ramsey(1983) FLC 91.301

4. In this case, property orders were made by Justice Cohen on 22 March 2002.  The relevant orders for this matter were:

   “10.That the wife shall within one month pay to the husband the sum of $118,172.00.

   11.That in the event that the wife fails to make the payment provided for in Order 10 she shall within three months from the date of these orders do all things necessary to sell and shall sell all her right title and interest at law and in equity in the premises at and known as [C], New South Wales and from the proceeds of sale after payment of the costs of and associated with that sale:

   (a)     firstly retain for herself $281,217.00,

   (b)     secondly pay 47.5% of the remainder to the husband, and

   (c)     retain the balance for herself.”

   The orders were discussed in the appeal which led to the Full Court’s decision and reasons of 31 October 2003.

1. Ground 22 of the wife’s amended Notice of Appeal stated:

   “22.That his Honour erred law [sic] and in fact in making Order 11 in that:

   1.In the event of the appellant mother’s default, “tied” the respondent’s percentage financial outcome to the overall assets of the parties, but at the same time did not so ‘tie’ the appellant mother’s percentage financial outcome to the same overall assets and to this extent was punitive in nature;

   2.His Honour failed to take into account, in such Order, the mortgage and or any further charge therein by further borrowings of the appellant mother between the date of the hearing and the date of Judgment or default.”

2. For the reasons set out in the Full Court’s judgment from paragraph 200, this appeal was dismissed.

3. As indicated the final orders were made by Justice Cohen on 22 March 22.

4. On 19 April 2002 the wife deposited $118,172 with her solicitors.  On the same day the mother lodged an appeal against the Decision of Justice Cohen.

5. On 20 June the mother made an application for a stay of the orders.  In her affidavit of 18 June 2002 in support of the application the wife said “I acknowledge my husband is entitled to a division of the property however the payment of $118,162.00 as per Order 10 of his Honour Justice Cohen’s judgment of 22 March 2002 in light of the appeal is too much.  I am prepared to comply with the other Order of his Honour Justice Cohen and to pay to the Respondent the sum of $50,000 within 7 days.  I have instructed my bank manager to draw that amount to be transferred to him immediately.”  The father did receive $50,000 from the mother on 20 June.  It was deposited to the trust account of his solicitor on 28 June 2002.

6. On 3 July the mother wrote a cheque for the balance of $70,675.82 and withdrew her stay application.  On 22 July the mother’s solicitor sent a letter to the father enclosing the cheque for $70,675.82 by registered post.  In the normal course of events that would have been received on a date before the husband brought his application for enforcement (ie on 2 August 2002).  The husband did not appear to have a direct recollection of when it was received, but was reconstructing events.

1. In his affidavit of 9 November 2002 the father said that he had received it on

   
   

   8 August 2002, but in his affidavit of 25 November 2005 the husband said,

   
   

   “I now realise I did not give the sum of $70,675.82 directly to [his solicitors].  I believe now that I deposited it firstly into my own bank account and then drew a cheque to [my solicitors] for $65,000.”  A copy of his bank statement (which he had lost) was provided later which showed the cheque for $70,675.82 was in fact deposited on 9 August 2002 into the husband’s bank account and mingled with his own money.  The $65,000 payment to his solicitors from his bank account was entered in their Office Cash Receipts Book on 23 August 2002.

2. On 2 August the father filed an application for enforcement of the 22 March 2002 orders.  He said that he was not aware of the $70,675.82 having been sent to him.

3. On 8 August 2002 the matter came before Judicial Registrar Johnston who said “It is quite clear in my view, that the wife did not comply with paragraph 10 of the orders and in my view, there is no power in the Court to start varying those orders or varying the scheme of things.  Accordingly, in my respectful view, what now happens is that paragraph 11 well and truly operates.  The dispute between the parties is to be resolved in accordance with the requirements of that paragraph.”[2]

   [2]  Paragraph 6 Reasons for judgment, JR Johnston 8 August 2002

4. In the Judicial Registrar’s reasons he recorded that “It is quite clear that the wife did not pay the husband the sum of $118,172 within the required month[3], but it was submitted by her learned legal representative that in any event, she has paid that amount now and that in circumstances where she has paid that amount, she ought to be entitled to have the fruits of the litigation in the form of the orders as set out in paragraph 10 and as is set out in paragraphs 9, 12, 13 and so on.  On the other side of this current litigation, it is submitted on behalf of the husband that the wife has not complied with the court orders and that now paragraph 11 of the Orders ought to become operative or at least there ou[gh]t to be a sale of the C property and ultimately payment out of the proceeds of sale of 47.5 per cent of the net proceeds of sale to the husband in accordance with the requirements under the orders.”[4]

   [3]  Emphasis supplied

   [4]  Ibid Paragraphs 4 and 5

5. No order was made however that the husband was to refund to the wife all the monies which he had received from her and spent as would have been necessary for compliance with Order 11.  The next day he deposited the cheque for $70,675.82 into his personal account although he had just asked for (and received) an order that the provisions of paragraph 11 (which provided for the payment only from the proceeds of sale) go into effect.

6. It is an element in this matter that history shows there had been a significant rise in the value of the property between the date of the judgment of Justice Cohen (March 2002) when the property was valued at $530,000, and the eventual sale of the house (August 2004) $750,000.

7. The application for the review of the enforcement order was filed a week later.  The review should have taken place promptly to comply with the Court’s own protocols, however this did not take place.  The enforcement order was stayed on 27 November 2002 to await the outcome of the appeal.  By that time the husband had had, and spent all of the money which the wife was required to pay by the order.  The husband had paid the solicitor after the review application had been filed.

8. The outcome of the appeal having been delivered on 31 October 2003, the review was still not heard, but on 3 November 2004 was set to be heard with the parenting application.  At the hearing of the parenting application it was strenuously argued by the husband that there should not in fact be any hearing of the application for a review at all.

9. A review proceeds as a hearing de novo.

10. Because of the discretionary nature of enforcement I do not find that it is sufficient for the court to say that when a part of an order is not complied with “Accordingly … what … happens is that [the default provision] … well and truly operates”.  That is the automatic response which is inconsistent with consideration of a discretionary matter which was disapproved of in Ramsey.

11. This case can be distinguished from Bray and Bray (1988) FLC ¶91-968 and Slapp and Slapp (1989) FLC ¶92-022, because of the husband’s acceptance of, and use of the $50,000 which was paid by the wife, and the acceptance and use of the $70,675.82 which he at the very least banked the day after the enforcement order was made and whilst the review process (necessary for an order made under delegated powers) remained on foot and  before the sale of the house took place.

12. In Bray and Bray, the orders provided for a payment by the wife to the husband of $51,680 within three months, upon which the husband was to transfer his interest in the jointly owned house to the wife, or failing that, a sale and division in certain proportions.  There was no appeal against the orders.

13. No payment of any description had been made by the wife by the time of her application for the wording of the order to be changed from “within three months of this date” to “within such period of time as this Honourable Court deems meet.”

14. In Slapp and Slapp there was a jointly owned house and the husband was ordered to pay the wife a fixed sum by a certain date, on payment of that sum the wife was to transfer her interest in the house to the husband.  Failing payment there was to be a sale and division in proportions.  There was no appeal against the orders.  The payment was not made by the due date, but consent orders were made for an extension.  The husband applied for a further extension.

15. In both Bray and Slapp the court was therefore being asked to amend the orders which had been made.  In the present case the house was in the wife’s sole name.  The matter did not come before the court because she had sought a variation of the orders, they were proceedings brought by the husband for enforcement.  There had been a part payment within time which had not been quarantined, and which was spent by the husband and not refunded by him when he sought to enforce the default provision.  The balance had been sent before the husband brought his application for enforcement.  It had been banked and spent before the time expired for the filing of a review.

16. The wording of Order 11:

    That in the event that the wife fails to make the payment provided for in Order 10 she shall within three months from the date of these orders do all things necessary to sell and shall sell all her right title and interest at law and in equity in the premises at and known as [C], New South Wales and from the proceeds of sale[5] after payment of the costs of and associated with that sale :

    (a)  firstly retain for herself $281,217.00,

    (b)  secondly pay 47.5% of the remainder to the husband, and

    (c)  retain the balance for herself.

    contemplates that the husband will be paid his percentage from the proceeds of the sale of the house, not that he will “have his cake and eat it too” by retaining any funds which have been paid, and in this particular case, paying his solicitor significant sums with most of them, whilst he enjoyed the prospect of getting further funds further down the track whilst the wife alone paid all the outgoings on the house.

    [5]  Emphasis supplied

17. I am satisfied that the review should be upheld.

18. In the exercise of my discretion, in view of the circumstances and in particular husband’s election to retain the funds paid and use them for his own benefit, not refund them and await the sale of the property for the payment of his award, I would not require the wife to sell and provide the husband with a proportion of the home.

19. At the settlement of the sale of the house no funds should have been paid to the husband, he having already received $120,675.82 by 8 August 2002 and clearly having elected to retain and spend it.  The husband should therefore refund to the wife the sum of $153,061.08 which had been paid to him from the proceeds of sale of the house on 14 August 2004.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Lawrie.

Associate: 

Date:  2 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as FRANCIS & FRANCIS