Gavin and Garden (No. 2)

[2007] FamCA 1271

FAMILY COURT OF AUSTRALIA

GAVIN & GARDEN (NO. 2) [2007] FamCA 1271

FAMILY LAW - PROPERTY – Application to set aside orders

APPLICANT: mr gavin

RESPONDENT: ms garden

FILE NUMBER: BRF 3025 of 2003

DATE DELIVERED: 18 October 2007

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 17 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Applicant appears on his own behalf

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Respondent appears on her own behalf

SOLICITOR FOR THE RESPONDENT:

Orders

1. The Order for property settlement of  5 May 2004 be set aside.

2. The matter be listed in the Registrar’s Directions Hearing list at 9.00am on 13 December 2007.

3. Until further order the Applicant and the Respondent must not without leave of a court having jurisdiction under the Family Law Act institute proceedings under the Act for property settlement.

4. Any application for leave in this Court is in the first instance to be listed before a Judge in chambers without appearances and unless otherwise ordered is not to be served upon any other party.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice BELL delivered this day will for all publication and reporting purposes be referred to as Gavin & Garden

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 3025 of 2003

MR GAVIN

Applicant

And

MS GARDEN

Respondent

REASONS FOR JUDGMENT

1. This is an application on the part of Mr Gavin for certain orders as set out in his originating application.  The respondent is Ms Garden.

2. This application was shortened, if I may put it that way, by the orders of Carmody J wherein on 17 September 2007 he made orders, certain notations and there was a list of agreed facts prepared.  From those lists of agreed facts the following is not in dispute:  That the parties were married for 11 years or thereabouts from December 1992 to August 2003; two children, being V born in November 1993, and J born in June 1996.  That on 5 May 2004 a consent order was made before O'Reilly J in which the property, totalling $313,579, was divided between the parties, 66.7 per cent, or $209,305 to the wife with the balance of $104,274 or 33 per cent to the husband by consent order.

3. O'Reilly J made certain statements during the trial indicating her view that 70 per cent of the net property value should go to the resident parent.  The wife received an amount of $214,766 being the market value of the A property of $405,000 less 190,000 mortgage in exchange for a cash payment of $15,000 to the husband.

4. The husband retained assets in his ownership or possession as follows; a motor vehicle value of $4000; three superannuation policies $53,000; cash of bank of more than $13,500.  The property orders were fully effected in 2004.

5. Parenting orders were made on 5 May 2004 providing for the children to reside with the mother, have contact with the father Thursday to Saturday in one week and Thursday to Sunday in the other week and one half of all school holidays with parents to share parental responsibility.

6. Interim orders were made by myself in February 2005 ordering that the child, J, be with the mother for six days and the father eight, and the child, V, be with the father for 10 and the mother for four days each fortnight.  However, both children were spending six days with the mother and eight days with the father each fortnight under this order. 

7. Since 2005 the children have resided with the father and had no contact with the mother from approximately 22 August 2005 to 8 May 2007 for reasons which are not agreed.

8. Under varied parenting orders made by Jordan J on 28 June 2007 the mother has had alternate weekend contact from Friday after school to before school on Monday and one half of the school holidays with the father having sole parental responsibility for the children.

9. The orders that were made by Carmody J as set out in the first page, (para 2) inter alia was that the application to set aside final property orders be listed for a trial for one day on 17 October; that the husband be permitted to rely upon his application to set aside property orders and his affidavit of financial statement filed on 10 September 2007 and the paragraphs not ruled out of his affidavit filed 18 June 2007; the wife be permitted to rely upon her response to the application to set aside property orders, her financial statements and the paragraphs not ruled out of her affidavit on 17 August 2007; the husband be permitted to file one further affidavit but only as to matters in reply to the remaining paragraphs to the wife's affidavit in-chief; that the matter be referred to the Registrar for compliance check and the making of further directions or procedural orders; the husband provide the wife a copy of his affidavit filed 18 June.

10. It is noted that the issues for trial were whether, since the making of the order circumstances of an exceptional nature relating to the care, welfare and development of the children of the marriage have arisen and; whether the final property orders made by consent between the parties by the Honourable O'Reilly J should be varied or set aside, and another order substituted pursuant to s.79A(1)(d).  That order of Carmody J's was made on 17 September 2007.  Notwithstanding the clearness of the order, the respondent mother objected and indicated that the whole proceedings were unfair because she was not entitled to refer to other affidavits which had been filed in this Court before the order of 17 September and two affidavits subsequent thereto.

11. My initial reaction was to indicate that the order was clear and unequivocal and consequently I could not go before it.  However, acting in the spirit of fairness, which was emphasised by the respondent mother, I allowed her to rely upon the other affidavit. 

12. The history of this matter is comparatively brief in that there was a dispute about property and parenting which was resolved after a period of three days and, prima facie, on the face of it, it appeared to be a proper and reasonable result.  Comparatively shortly thereafter the children came to live with the father and have remained with him since, and such living with the father has been confirmed by the order of Jordan J as recently as June.

13. For a considerable period the mother did not spend any time with the children or the children spend time with her.  She, in a most ineffectual form of cross-examination in this Court, endeavoured to put all the blame upon the father for the children not having contact with her.  I am more than satisfied that she is the author of her own misfortune and that she herself for some peculiar reason or other decided not to see the children and I refer to and incorporate the family report prepared by one Ms J which is exhibited to the affidavit of the applicant husband.

14. Her conduct towards the children has, as far as I am concerned, been dreadful.  As it appears from that report she has written letters to the children indicating that their father's insides, or words to that effect, will putrefy, that his karma will come and get him.  She has acted, as far as I am concerned, in a most detrimental manner to encouraging the children to have that natural love and affection towards a parent which one expects.  They have remained away from her.

15. Jordan J saw fit to allow them to spend time with their mother for extensive periods, in my opinion, notwithstanding that Ms J in an alternative to her original alternative was that there should be no spending time with the mother whatsoever.  After seeing the mother and hearing her I accept that.  As I have said before, she is the author of her own misfortune and where the evidence between the father and the mother disagree I clearly accept the evidence of the father.

16. The facts are these:  The children have moved across.  The husband is living in I think a two bedroom unit comparatively restricted.  The mother is living in a house at A which was the only large asset of the parties.  As I have said, as far as I am concerned looking at the settlement, it appeared to me to be fair and reasonable. 

17. I have to consider those matters which I am required to do in relation to s.79A.  First of all I think I have to find that the circumstances are of such an exceptional nature which relate to the welfare of the child of the marriage and that the applicant will suffer hardship if the Court does not vary the order or set aside the order.  It appears to be a priority.  There are two things for me to determine, is the mere, if I might use that word advisedly, moving of the children from the father to the mother a matter of an exceptional nature.

18. It has been held in Y & Y that in fact it was.  It has been held in that case written by O'Ryan J in 1999 that it is and in this case there can be no suggestion that it was unexpected.  The parties had, notwithstanding their extreme disagreements with each other, agreed for the children to remain with the mother and the father was to have contact with them.  The children did not stay and that order has been vitiated by their, in effect, voting with their feet, and I once again refer to Ms J’s report.  That is, as far as I am concerned, and I think there is general support for that proposition in the cases to which I have referred – Y & Y is unreported, appeal number NA4 of 1995 was delivered on 22 September 1995 and that matter of O'Ryan J's was C & C delivered on 7 September 1999.  Both of those cases support what I consider to be an exceptional circumstance and that is that the children have moved.

19. Is there hardship?  Of course there is hardship.  The children were living in a very comfortable home in the A area.  They are now living in circumstances which are comparatively restricted and that in itself is sufficient hardship and I am satisfied that it is hardship.  Consequently I am clearly of the opinion that the order should be set aside.

20. The next question for me to determine, and this is an exceptionally difficult question, is whether I should proceed with the application for property settlement today or no.  I hesitate because of the following reasons which are self evident.  The value of the property was agreed to by the parties as far back as 2004, I think the earlier part of 2004, at $405,000.  I can take judicial notice of the fact that the value of real estate has increased enormously since that time and I can, with particularity, refer to A as being one of the suburbs which has increased enormously as well.  I do not have any valuation as to that property and consequently I am loathe to embark upon a determination in so far as property is concerned without some valuation of that and up to date evidence of the applicant father's superannuation.  I do have some evidence from the mother.

    RECORDED  :  NOT TRANSCRIBED

21. Regrettably I will have to adjourn the application to the trial list in order for the parties to prepare documents to place before the Court in relation to a property settlement.  I dislike that but I cannot at this stage accept that $405,000 is the valuation of a property which was valued at least three and a half years ago in the A area.  It could be doubled.  I don't know.  I order accordingly.  The application for a property settlement will be transferred to the list of the Registrar.

22. There are other matters which are set out in the original application but I feel somewhat bound by the order of Carmody J.  However, there is the question of so-called vexatious litigants.  I have not set out in full the number of times that these parties, both of them, have come before this Court.  I think it would weigh more heavily against the mother than the father.  I will emphasise the matters which are contained in Ms J's report, and in fact she suggests that an order should be made against both of them to stop them coming back to the Court, to let the children settle down.  Since there is an application before me for declaring the mother a vexatious litigant, I think the jurisdiction of this Court has been excited and I will declare both of them vexatious litigants, and that means they cannot institute any action other than the ones which are in existence at this stage without leave of a Judge.  Yes, transfer the application to the Registrar.

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell

Associate: 

Date:  29 October 2007