GADE & JABBAR (No.8)

[2017] FCCA 870

FEDERAL CIRCUIT COURT OF AUSTRALIA

GADE & JABBAR (No.8) [2017] FCCA 870

Catchwords:
FAMILY LAW – Property – Application for interim property orders.

PARENTING – Whether an order suspending an existing order that the wife spend time with the children continue until further order.

Legislation:

Family Law Act 1975

Applicant: MR GADE

Respondent: MS JABBAR

File Number: NCC 2265 of 2015

Judgment of: Judge Terry

Hearing date: 20 April 2017

Date of Last Submission: 20 April 2017

Delivered at: Newcastle

Delivered on: 20 April 2017

REPRESENTATION

Counsel for the Applicant: Mr Weightman

Solicitors for the Applicant: NLS Law

The Respondent: In Person

Solicitor for the Independent Children’s Lawyer: Legal Aid NSW Newcastle

ORDERS

Property

1. Within seven (7) days of the Orders the wife shall pay the mortgage arrears owing on the property at Property A (“the Property A property”) and thereafter shall pay all mortgage payments in respect of the Property A property as and when they fall due.

2. In the event that the wife fails to comply with Order 1, within fourteen (14) days of such failure, the wife shall vacate the Property A property and leave the property in a neat and tidy condition.

3. In the event of the wife failing to comply with Order 2 above then pursuant to Rule 25B.62 if the Federal Circuit Court Rules 2001 a warrant for possession shall issue to the Federal Marshall authorising him or her to enter the property at Property A in the State of New South Wales, and then to give possession of the real property to the husband.

4. In the event of the wife failing to comply with Order 1 the husband shall be appointed as trustee for the sale of the property known as and situated at Property A in the State of New South Wales.

5. In his capacity as trustee on the sale of the Property A property, the husband is hereby authorised to do the following:

   (a)Cause any necessary cleaning, rubbish and/or contents removal, yard work, repairs and maintenance to be undertaken to the Property A property as may be recommended by a Real Estate Agent or property valuer in order to maximise the sale price of the property;

   (b)Remove and dispose of any and all items left by the respondent at the Property A property as the husband sees fit.

6. Any costs for work associated with Order 5(a) and 5(b) shall be reimbursed to the husband from the net sale proceeds and taken out of the wife’s share of final property orders made by this court.

7. Upon the sale of the property the proceeds of sale shall be applied as follows:

   (a)To pay the reasonable expenses of the sale including agent’s commission, legal costs and disbursements.

   (b)To pay rate adjustments (other than those amounts otherwise payable by the wife pursuant to these Orders).

   (c)To pay all monies required to discharge the mortgage to the (omitted) Bank secured on the property.

   (d)The balance to be held in the trust account of NLS Law pending final disposition of the property proceedings or pending further order of the court.

8. The husband’s costs of today are reserved.

Parenting

1. Until further order all orders concerning the mother spending time with the children are suspended.

2. The matter is adjourned to 9.30am on 10 May 2017 for further consideration.

3. The contravention application filed on 9 March 2017 is adjourned to 12.00pm on 25 May 2017 before a Registrar.

IT IS NOTED that publication of this judgment under the pseudonym Gade & Jabbar (No.8) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 2265 of 2015

MR GADE

Applicant

And

MS JABBAR

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Property

1. I have to make a decision which I find it distasteful to make, because I really dislike the prospect of having to order someone to leave their home. The situation for the wife has not been easy since I made some interim parenting orders in August 2015. She has found it very difficult to accept those orders and although she does not seem to appreciate it, I do feel considerable sympathy for her. 

2. However, the court made orders by consent in December 2015, that the wife have sole occupancy of the Property A property and that she pay the mortgage and as I said, I would include in these settled reasons the chain of reasoning that I outlined earlier about why it may well be appropriate to deal with the husband’s application today.

   The husband raised with the court on occasions throughout 2016 that the Property B property wasn’t being rented and I have a recollection of Ms Jabbar saying to me that she would not talk to Mr Gade about that so there was no way to resolve it and that’s why ultimately the matter came before me in December and I made the orders that Mr Gade have control of the Property B property so that he could rent it out and get money for it because there was no prospect of the parties cooperating in doing that but that he would also be responsible for the shortfall of the mortgage so there was a sting in the tail with that. I also made the order again if you like, but again with the acquiescence of the wife that she have sole occupancy and pay the mortgage on the Property A property.

   The issue of the wife being responsible for the Property A property has been something that has been the subject of orders for well over 12 months. Yet the mortgage was in arrears in December, I made some orders about the wife paying the arrears and paying the mortgage (and) she hasn’t done that as I understand it. The matter is now back before me again because the wife’s failure to pay the mortgage is now affecting the husband’s ability to obtain loans. The wife is not standing up here saying to me that she wants another chance to make the payments, she is saying to me (that) she wants a chance to file documents but her position appears to be that she isn’t going to comply with any order about paying the Property A mortgage unless I make an order that some money be transferred to her by the husband to compensate her for payments she has made for Property B. I’m also told by the wife from the bar table that there is a capacity for her to pay for the Property A mortgage, she is not a high income earner but she indicated that other people could assist her if she needed money.

   There have been orders of long standing for the wife to pay the mortgage originally by consent in December 2015, she has chosen to stop paying it, no information has been put before me to suggest that if she chose to make arrangements to pay the mortgage that couldn’t happen and I’m now left in an almost impossible situation where the wife is ignoring court orders (and) failing to file a response when she is ordered to file one (and) it is having an economic and financial consequence for the husband …….

3. Since I outlined my thoughts as set out above I have had some further information tendered to me about the financial situation in respect of the Property A property.

4. Documents have been tendered which establish that the wife has not paid the Property A mortgage since August 2016. Documents have been tendered which establish that the mortgage stood at $371,000.00 in March 2016 and now stands at $379,000.00 and the mortgage will continue to increase if somebody does not make the payments.

5. The failure by the wife to make the payments is having an impact on the husband’s credit rating and documents have been tendered confirming that.

6. The husband set out in his affidavit that he was unable to get a personal loan because of the existence of the debt. A document has been tendered which confirms that he has been barred from using his (omitted) credit card for six months because of the existence of the debt and the debt that is standing against his name – and is currently in possession of (omitted) Bank Collections I might add – is not the arrears on the mortgage but the entire mortgage balance which is now due and payable in full.

7. I feel that I have no option but to take some action in relation to the property matter today. 

8. I would have been prepared to give the wife a short further time to file some material if two conditions had been met.  One is that the time was short, but the wife wants weeks to reply. The other is that I had some hope that the wife would put forward a reasonable proposal in the matter, but she made it very clear over and over and over again during submissions that her proposal is going to be that she will only pay the mortgage on the Property A property if the husband pays to her the amount she paid on the Property B mortgage between when Property B ceased to be rented out and when she ceased paying the mortgage in August or September 2016.

9. In my view therefore there is no point me even considering giving the wife some extra time to put on some documents because it is not going to change the matters I need to consider.

10. It is a serious matter to make an order which might result in someone being put out of their home and it makes me very sad to have to consider making that order. I do not want to make that order and if the wife was willing in any way to cooperate with the court, I would not make it. But she is not willing to cooperate in any way. She has given me some information about her income from the bar table and informed me that members of the community could help her pay the mortgage if she chose to ask them to do so and the issue of whether the wife is put out of her home or not is in her own hands. It is not in my hands.

11. The parties took out a joint mortgage. They undertook to the bank to repay it. The wife has had sole occupancy of the Property A property since separation in August 2015 and she agreed in December 2015 that she would pay the mortgage. She has not complied with that order. The husband has been agitating since late last year for me to do something about the issue of the mounting arrears.

12. I made an order in March 2017 that the husband file a document setting out the orders he sought to deal with the issue. I made an order that the wife file a response. The husband complied with that order and filed an amended application in a case on 27 March 2017 and he is relying on that today. 

13. The wife did not comply with the order to file a response and for reasons I have given earlier, I consider it would be futile to adjourn the matter and give her time to do so because she has already told me what response I am going to get.

14. The matter is in the wife’s own hands but I feel that I have no option but to make orders sought by the husband.

15. I am going to make an order in terms of order 1 sought in the amended application in a case filed on 27 March 2017 which requires the wife to pay the mortgage arrears within seven days. I am going to make an order that if she fails to do that she will have to vacate the Property A property.

16. I am asked to make an order that a warrant of possession issue if the wife does not vacate the property. I consider that I have no option but to do that. If I do not do it out of some sort of squeamishness and concern for the wife then all that will mean is that the husband will be forced to come back to court and incur further legal costs to pursue a warrant for possession. Given the plethora of applications in this matter including appeals against numerous orders, the plethora of applications in a case filed by the wife and the number of court events that have been required, it would be fundamentally unfair to require the husband to come back to this court to seek a warrant of possession if the wife fails to vacate the property. He may be a high income earner but he has calls on his income and high income earner or not he should not be required to endlessly come back to court and incur legal costs in doing so.

17. I will appoint the husband trustee for sale of the property. It is abundantly clear to me that there is no point making what I would call a usual sale order that would require the parties to cooperate in selecting an agent, agreeing on a selling price and organising for the property to be sold. That would be utterly futile and would simply mean that at some point the husband would have to come back to court and make an application to be appointed trustee for sale. 

18. Trustees have responsibilities to obtain the best possible price for properties, so the wife will be protected by that in relation to the husband exercising those powers. Also, hopefully, the husband would want to preserve as much money as possible for himself, which will be another incentive to him to get the best possible price for the property.

19. In relation to order 7, I am going to make sub-orders 1 and 2, and it is as recommended by the agent so the husband can only do that work if the agent says that it is necessary for him to do it, and if he does it, the money should be reimbursed to him out of the net proceeds of sale.  But we also need an additional order, I think, that upon sale of the property, the proceeds of sale shall be paid as follows: first, to meet the costs, commissions and expenses of sale and to pay any rates adjustments; second, to pay the amount outstanding on the mortgage registered over the property in favour of (omitted) Bank; and third, the balance to be held in the trust account of NLS Law pending final disposition of the property proceedings or any further order of the court.

20. The wife objects vigorously to NLS Law holding the money but they are solicitors and the solicitors have practising certificates. They have heavy obligations in relation to the operation of their trust account.  If they breach those obligations then their practising certificates can be lost, and not only that, there is a fund which can reimburse money to people if solicitors breach trust account laws. There is no warrant for not ordering that the money be held in the trust account of NLS Law pending the final disposition of the property matter.

21. I am not going to vary the order that I have made for the seven days. It will stand and I am going to make an additional order that the wife thereafter pay the mortgage payments as they fall due. 

22. The reason I am prepared to make that order is that as much as I do not want the wife to lose her home, there have been so many court applications in this case, so much time lost for people having to attend to court matters, so much cost incurred in the court matters, that in my view I need to make orders as far as I can which will mean that people do not have to come back to court. 

23. I will make an order reserving the husband’s costs of and incidental to the property application.  

Parenting

1. I have to decide whether to continue an order I made in late March suspending the orders in relation to the wife spending time with the children.

2. If I do not continue that order the only thing that will happen is that there will be one further visit between the wife and the children at (omitted) on 29 April. After that (omitted) will not provide a service, so even if I refuse to continue the suspension, the only thing that will follow is one visit and then there will be no further visits at (omitted).

3. I have previously indicated that I am more than happy to list this matter for a priority expedited hearing in the week commencing 7 August and even if I do not make those orders for trial today, and it is getting very late, at some point in the not too distant future I will make trial directions and everyone is on notice that it is my intention that the trial should occur in that week.

4. If I continue the suspension it will mean that the wife will not spend any time with the children until the trial and the issue can be further considered when all the evidence is available to be tested. 

5. It is a serious thing to make an order preventing a parent spending time with children. It is not something that the Court ever does lightly and any decision I make about the children has to be a decision made taking their best interests into account.

6. Children benefit from having a relationship with both of their parents. Parents are different. They have different things to offer children and, in a broad general sense children benefit from spending time with each of their parents. However the Court has to protect the children from harm as provided for in s. 60CC (2) (b) of the Family Law Act and there are broader considerations as well.

7. Children can suffer harm if parents lack parenting capacity, if parents lack the capacity to provide for the children’s emotional needs. It is not simply a matter of trying to wrestle a case into the straight jacket of s.60CC(2)(b). I have to consider the whole issue from a broader perspective.

8. X and Y had a relationship with their mother up until I made some orders on 31 August 2015 and after I made those orders they continued to see her supervised, first at (omitted) and then at (omitted) Children's Contact Centre. My recollection of the notes from (omitted) and from the early (omitted) visits coincide with what Ms Presker mentioned. There is not a record there of many problems during those visits.

9. There is, from my recollection, and I think I mentioned it in my June judgment, a mention of the wife either asking the children or inviting a response from the children about where they wanted to live, and I commented in my June judgment that when that occurred X would pipe up saying she wanted to live with the wife and Y would then chip in and say, “I want to live with dad.”  Those couple of little issues arose in those early visits but by and large those visits went well and there were no concerns that I can recollect, at least no major concerns, raised in those notes.

10. Today the records which came in under a very recently issued subpoena which required (omitted) to produce documents by 12 April 2017 have been tendered, and they indicate that between September 2016 and the present time a number of issues have arisen in respect of the wife’s time with the children at (omitted).

11. It is true as the wife points out that at the beginning of the visits the children are happy to see her, but there are concerns raised in the notes about a number of events which have occurred and on a number of occasions (omitted) has been concerned about things they believe the wife has said to the children.

12. It was (omitted)’s view that the wife said something to X prior to the interviews with Dr K, and there are some other references in the notes to a concern raised about the wife saying inappropriate things to the children. 

13. I have to make a difficult decision today about whether I should make an order that the wife spend one additional period of time with the children because that is all that is available at (omitted).

14. When the matter was first mentioned I indicated that I was considering doing that, but the father’s Counsel and the Independent Children’s Lawyer submit to me that I should not do that. They submit that the evidence I have raises a concern that the children may be at risk of some emotional harm if they see the wife at (omitted) on 29 April 2017 and that I cannot exclude the risk that the wife may say something inappropriate and unsettling to the children.

15. That risk is heightened by the fact that the wife now has full knowledge of the report of Dr K and by the fact that I have made some orders today about the property matter which the wife may find – or is certain to find - difficult to accent. 

16. (omitted) notes suggest, because the issue is untested, but the (omitted) notes suggest that there may have been some inappropriate issues raised by the wife with the children at the visits between September 2016 and the present time.

17. Dr K had concerns about things that the wife may or may not say to the children and the emotional impact on the children of that occurring.

1. I accept that the information in the (omitted) notes is untested. The wife may at trial go into the witness box and give a different version of events. I may find for a variety of reasons that I cannot place weight on what is in the notes. I also accept, as I have repeatedly accepted, that Dr K’s report is untested.  But the only evidence I have before me is untested evidence.

2. That is frequently the difficulty the Court faces in interim proceedings, and the Court cannot refuse to act protectively of children because it is unable to test evidence or because it is possible that, when evidence is tested, it will be found that weight cannot be placed on it.

3. In my view it is necessary for me to continue the suspension of the orders and not take the risk that something inappropriate and emotionally upsetting and possibly emotionally damaging may be said to the children at a session on 29 April.

4. The children had a relationship with their mother up until the orders were made on 31 August 2015. They continued to see her until quite recently. They are not going to lose their relationship with her if they do not see her for the next four months.

5. If the Court determines after a final hearing that it is appropriate that time be resumed then the children are not going to lack any ability to resume that relationship and as I observed during submissions this is not a case where there is compelling evidence at the moment that I should be concerned that if the children do not see the wife for the next four months and are exclusively in the care of their father that there is going to be denigration or undermining behaviour which will cause them to lose their relationship with the wife or have difficulty picking it up again.

6. On balance I consider that it is in the best interests of the children that I continue the suspension of the time and I am going to make an order that until further order all orders concerning the children spending time with the wife are suspended.

I certify that the preceding forty seven (47) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date:     2 May 2017