Keightley and Keightley

[2010] FamCA 994

FAMILY COURT OF AUSTRALIA

KEIGHTLEY & KEIGHTLEY [2010] FamCA 994

FAMILY LAW – PRACTICE AND PROCEDURE – where there are outstanding children’s and financial issues – various procedural orders made preparing the matter for further consideration – matter adjourned to future hearing

Family Law Act 1975 (Cth)

APPLICANT: Ms Keightley

RESPONDENT: Mr Keightley

FILE NUMBER: ADC 4573 of 2008

DATE DELIVERED: 1 November 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 1 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT:

Orders

1. Further consideration of the mother’s Application in a Case filed on 12 October 2010 and the father’s Response to an Application in a Case filed on 27 October 2010 is adjourned to Friday 17 November 2010 at 9.15 am before the Honourable Justice Dawe.

2. The father’s Amended Initiating Application filed on 10 March 2010 is listed to a First Day Hearing on Friday 10 December 2010 at 10.00 am before the Honourable Justice Dawe in relation to children’s issues and financial issues for a directions hearing in which orders will be made to prepare both matters for final hearing if not resolved prior to that time.

3. Paragraph 4(a) of the Orders of 7 December 2009 is varied to provide that the child P live with the mother each alternate weekend commencing on Friday 12 November 2010 from the conclusion of school (if the Friday is a school day) to the conclusion of school on Monday (if the Monday is a school day) PROVIDED THAT if either the Friday or the Monday are not school days then the alternate weekend commence at 5.00 pm on Friday and conclude at 5.00 pm on the Monday.

4. The question of the place of handover is adjourned to 17 November 2010 at 9.15 am before the Honourable Justice Dawe with both parties to provide the Court with specific details by way of affidavit why they want handover at a particular place and not another place, such affidavit is to be filed and served by 4.00 pm on 12 November 2010.

5. During the period of the adjournment the father is restrained and an injunction is granted restraining him from dealing with any of his interest in real estate including but not limited to E property and M property SAVE AND EXCEPT for providing security for borrowings to make payment by the husband to the wife of any agreed sum by way of interim or partial property settlement.

IT IS NOTED that publication of this judgment under the pseudonym Keightley & Keightley is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4573 of 2008

MS KEIGHTLEY

Applicant

And

MR KEIGHTLEY

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. Dealing with the matters before the Court is very difficult to do other than rely upon the material which is already on file.  The affidavit of the father which is sworn on 21 October refers to the planned trip overseas says:

   “I am not planning on going on an lengthy overseas’ holiday.  [The wife] is aware that it is indeed in order to finalise immigration requirements for my wife to receive her permanent visa.  This is intended to be a short trip in which I have asked [the wife] to allow [the child P] to accompany me so he can experience a different country and better understand the culture his stepmother comes from.  I say [the wife] has refused to allow [P] the experience of this trip.”

2. The information before the Court today from the bar table is apparently, now, that the need to return to Vietnam is to collect the husband’s present wife’s belongings.

3. I am not satisfied that the material before the Court establishes on an appropriate basis the need for P to travel or the best interests of P would be served by leaving the country and travelling to Vietnam particularly when issues concerning the children and financial matters are currently outstanding.  However, I propose to adjourn the question of P’s travel and the other matters presented in the application of the father to another date.  That would enable the father to obtain appropriate representation, which he is now foreshadowing, and the mother to consider the affidavit material which the father has filed, when the mother is appropriately served with the documents. 

4. By that time it may also be possible for the Independent Children’s Lawyer to be represented in this matter. 

5. I understand that the parties are agreeing that a family report be prepared by Ms U.  I doubt that that will be available within that time, but if that were by consent, I would make that order.

6. As it is not by consent I will adjourn further consideration of the person to prepare the family report to the 17 November as well. 

7. In relation to the other issues, I understood that the parties were agreed that neither of them are to use the children as a form of communication with the other.  I will have that noted at this stage and be prepared to put it in a formal order once the Independent Children’s Lawyer has had some input into the drafting. 

8. A First Day Hearing in relation to children’s issues and financial issues will be a directions hearing at which orders will be made to prepare both matters for final hearing, if they are not resolved prior to that time.  I fix the 10 December 2010 at 10.00 am for the First Day Hearing.

9. In relation to the orders concerning removal of P to Vietnam and the other orders sought by the father in his response to an application in a case, they are adjourned to 17 November at 9.15 am due to the father’s alleged lack of mental stability or psychological ability to cope with these proceedings and the questions which I am asking him.

10. He maintains, however, from the bar table that he is well enough to manage day‑to‑day activities.  In due course if his mental health continues to be an issue, particularly in relation to either financial or children’s matters, then the necessary evidence from his treating doctor and specialist will have to be before the Court and subject to cross-examination if necessary.

11. In relation to the issues immediately concerning the child P which the mother is pressing me to make, I understand the basis upon which she seeks the changes are in the affidavit material which is filed, and now the father’s disclosed mental health difficulties.  However, bearing in mind the background to the matter and the orders which have been in place for some time it is not appropriate for me to make an order in these circumstances, it being difficult to determine what is indeed in the best interests of the child P and with whom he lives, bearing in mind the large amount of contested material before the Court.

12. In relation to the handover, however, it would appear that it would reduce the conflict between the parties which would assist P greatly if the difficulties at handover were removed.  For that purpose, bearing in mind P’s age, I see no need to avoid him having to take a small bag with him to school on Fridays and Mondays for the times that he spends with the mother, if indeed that is necessary.  I therefore propose and do order that the orders made in relation to P spending time with the mother in paragraph 4(a) of the order of 7 December 2009, are varied such that P live with the mother each alternate weekend during school term and that the times coincide with the commencement and conclusion of school.

13. As far as I am concerned the question of handover can also be adjourned to 17 November with both parties to provide the Court with specific details by way of an affidavit as to why they want handover at a particular place and not another place.  Such affidavit to be filed and served by 12 November 2010. 

14. In relation to the issues concerning the child P leaving the country, that also has to be adjourned in order for the father to supply the further particulars of the need for him to leave Australia for the purposes of his current wife’s application for residency;  why the father has to leave (not why his present wife might have to leave) and why P should accompany him during school term time to Vietnam (be it for the purposes of his current wife’s application for permanent residency or some other reason). 

15. In relation to the question of the payment by way of an interim property settlement, the husband has indicated that he is proposing that he pay $60,000, by way of final property settlement to the wife.  The wife has not quantified the amount she seeks by way of a 50 per cent property settlement, she says because of the difficulties in ascertaining the exact nature of the liabilities that the husband is claiming should be brought into account.

16. In relation to those matters, the husband indicates that he would have proposed to borrow the sum from his brother, for the purposes of paying the wife. 

17. In relation to the question of an interim property settlement the material before the Court is of such a nature that it makes it difficult to ascertain the basis upon which the Court could make an order for final property settlement.  However, it appears there is sufficient material before the Court, at this stage, to require that the husband be restrained from dealing with his interests in the real estate currently retained by him, without permission of the wife or the Court, because of the difficulties he alleges exist in relation to substantial taxation debts, which may be due to the income tax authorities.

18. By way of an interim order and during the period of the adjournment, the husband is restrained from dealing with any of his interest in real estate including, but not limited to, any interest in the real estate at E, or the real estate at M, save and except for providing security for payment by the husband to the wife, of any agreed sum by way of interim or partial property settlement. 

19. At this stage I do not propose to dismiss the husband’s application for property settlement, nor deal with financial matters on an undefended basis, until such time as the husband has an opportunity to be represented before me because he claims today that he is unable to deal with these matters appropriately.  Therefore that application by the wife is also adjourned to 17 November, at 9.15, before me.

20. I have previously listed both the children’s and financial matters to 10 December, at 10.00 am, before me, by way of a First Day Hearing to prepare both matters for a conclusion. 

21. In relation to the provision of a report concerning the children’s issues, again I will adjourn that for further consideration, hoping for the assistance of the Independent Children’s Lawyer, on 17 November, at 9.15 am. 

22. In relation to the obligations that both parties have, I repeat that both parties have an obligation to provide full and frank disclosure, inspection and copies of requested documents that relate to the financial circumstances of each of the parties and the assets and liabilities and financial resources of each of the parties and that might otherwise relate to the best interests of the children or proposals in relation to the children.  That includes provision of medical services and any schooling decisions to be made.

23. It is of concern that the parties have been litigating for years and are unable to come to any arrangement in relation to some of the more serious matters, such as the payment of the school fees and school uniforms.  Notwithstanding the amount of litigation and the number of reports that have been prepared in the past I adjourn the matters (other than those orders that I have just made) to 17 November at 9.15 am.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 1 November 2010.

Associate: 

Date:  8 November 2010