Galvin and Galvin

[2012] FamCA 670

FAMILY COURT OF AUSTRALIA

GALVIN & GALVIN [2012] FamCA 670

FAMILY LAW – CHILDREN – Parenting Orders in absence of wife with review clause – Wife failed to attend.

Family Law Act 1975 (Cth)

APPLICANT: Ms Galvin

RESPONDENT: Mr Galvin

FILE NUMBER: MLC 479 of 2009

DATE DELIVERED: 6 August 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 6 August 2012

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAYWER:

Ms Conlan

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

1. That the property proceedings between the parties are adjourned to 9.00 am on 18 October 2012 for an undefended hearing if the wife does not file and serve the material required by these orders by 28 September 2012.

2. That forthwith, the applicant shall be the husband and the wife shall be the respondent.

3. That the husband file and serve an amended application and any affidavit upon which he intends to rely by 4.00 pm on 21 September 2012.

4. That the wife file and serve an amended response and any affidavit material upon which he intends to rely by 28 September 2012.

5. That pursuant to s 106A of the Family Law Act 1975 (Cth), the Registrar is empowered to sign any necessary document to give effect to the settlement of the sale of the real property at P (“the former matrimonial home”) and for the purposes of that sale, the Registrar shall be satisfied of the necessity to sign such document upon the receipt of an affidavit by a solicitor indicating that there has been a failure to comply with the requirements of any order to give effect to the sale.

6. That the former matrimonial home be sold and the proceeds of sale be applied as follows:

   (a)    to discharge any costs, commissions and expenses associated with the sale;

   (b)    to discharge any mortgage encumbering the property;

   (c)    to pay all outstanding tradespeople who have undertaken work in respect of the property including the repair of the window which is the wife’s responsibility pursuant to previous orders; and

   (d)    that the net balance thereafter be divided equally between the parties.

7. That the solicitor handling the conveyancing shall have the right to distribute the proceeds according to these orders.

8. That there be orders in accordance with the minutes of proposed orders relating to parenting proceedings marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

9. That the Independent Children’s Lawyer engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

10. That pursuant to s.65DA(2) and s.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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Galvin & Galvin 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: MLC 479 of 2009

Ms Galvin

Applicant

And

Mr Galvin

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This is the return date of the parties’ respective substantive applications.  The husband has attended in person, and there has been no appearance by the wife.  Ms Conlan of counsel appears on behalf of the Independent Children’s Lawyer.  This matter was before me on 30 April this year, and I adjourned all extant applications for final orders to a first day of hearing on 6 August, which is today.  I made various orders for the filing of material, and I note that none of that has been done.  At the hearing in April, both parties were represented.

2. On 15 May 2012, a notice of ceasing to act was filed by Kennedy Partners on behalf of the wife and gave her address at Property N, together with an email address.  The husband has handed to me today his mobile telephone, showing an email that he saw on 3 August, which was last Friday, indicating that the wife is now living on K Road, but with the same email address. 

3. This dispute is about both property and parenting matters.  C was born in November 2005 (“the child”) and is therefore not yet seven years of age.  The major disputes seemed to be about the contact between the child and the husband.

4. The Independent Children’s Lawyer had discussions with both parties last Friday and the wife gave indications of attending today.  I note that she did not personally attend on 30 April 2012, and the husband doubts whether she will come. 

5. The proposals of the Independent Children’s Lawyer are uncontroversial.  The husband agrees to them.  I do not know what the wife’s position is, but it is hard to imagine why she would have any opposition to them.

6. Just in case she has, I propose to give her until 15 August to file an affidavit setting out why she has not attended today.  If she disputes the orders, then they can be reviewed, and, if necessary, I will discharge them, but she otherwise has to set out quite clearly what orders she is proposing to seek in respect of the child. 

7. It is trite to say that Victoria Legal Aid is funding the Independent Children’s Lawyer, and I do not propose to allow the community’s resources to be further wasted, in circumstances where it is quite clear that the wife was aware of the hearing today and has chosen not to attend.  If she has a plausible explanation, no doubt it will appear in the affidavit to which I have referred. 

8. Reading the background of the material, including not only a number of appearances since 2009, but also the various social science material, the orders relating to the child are very sensible.  On that basis, and subject to the wife filing an affidavit seeking to set aside these orders by 15 August, I propose to make them as final orders.  In the event that there is no affidavit filed, then the parenting orders I am now making will stand as final orders, and any application by either parties for parenting orders will otherwise be dismissed.

9. That then leaves the property issue.  The husband attended today with an affidavit and a financial statement, neither of which had been filed, and neither had been served.  It is conceivable that the wife took the view that she did not need to attend today because nothing would happen because the husband has not filed anything.  However, it is quite clear from her text message that she is aware of the impending sale of the former matrimonial home at P.  It would appear that she has signed a contract for its sale, and she is not living there anyway.

10. In the text message, she refers to the fact that she is content for the solicitor who is handling the conveyancing to deal with the problem, and all she wants is for 50 per cent of the net proceeds to be paid into a bank account.  Just what is the net proceeds remains somewhat contentious. 

11. The husband has given me evidence today to say that there are outstanding accounts to tradespeople who have done work on the property, and they need to be paid.  In addition, there is a broken window that is, as yet, unrepaired which needs to be fixed for the purposes of the settlement.  I see no reason why those costs should not be paid out of the net proceeds, which are expected to be something in the vicinity of $80,000.

12. The wife has agreed to a distribution of the net proceeds.  If that is all that there is between the parties, then this hearing will not take very long later in the year.  There are other assets, including motor cars, but they all seem to be the subject of leases.  On any view there will be a shortfall and that is a matter that the husband will need to sort out between now and 18 October when I propose to bring the matter back.

13. There is also his business, which is a consultancy business, in partnership with some other person.  It is conducted by a corporate entity.  He will need to address the question of what its balance sheet shows, if anything at all. 

14. The husband said in evidence that he had some concerns about whether the wife would comply with the necessary documentation being executed for the purposes of the sale of the formal matrimonial home. As a precaution, having regard to his fear and the absence of the wife today, I propose to make an order under section 106A of the Family Law Act to enable a registrar to sign any necessary document in the name of the wife, in the event that she refuses, upon the reasonable request of the solicitor handling the conveyancing to so sign. That will obviate the necessity for the matter to come back prior to the settlement of the sale. To the extent that the text message from last Friday indicates cooperation, hopefully that will continue.

15. Even if there is a sizeable shortfall in the assets, the matters must be put to rest.  There is undoubtedly confusion in the mind of the husband as to what is to happen, and the wife really needs to cooperate.

16. I will make an order that the husband become the applicant in the proceedings, which will substitute him for the wife, and that he is to file and serve an amended application and any affidavit relating to the property proceedings that he intends to rely on by 21 September.  The wife is to file an amended response and any affidavit material she intends to rely upon by 28 September.  If she fails to comply with that order, then on the return date, which I will fix as 9.00 am on 18 October, then the case can proceed on an undefended basis.

17. I have warned the husband, however, that dealing with the matter on an undefended basis does not mean that he will simply get what he wants.  He has to prove each of the issues, and, to that extent, he needs to get some advice about how the affidavit should be structured and what orders he should be seeking.  I propose to have these reasons published, but also to order that the Independent Children’s Lawyer serve upon the wife not only at the email address, but by post also to the address, which now transpires is Property S.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 6 August 2012.

Associate: 

Date:  14 August 2012