Kneed & Ross

[2007] FamCA 1132

FAMILY COURT OF AUSTRALIA

KNEED & ROSS [2007] FamCA 1132

FAMILY LAW – CHILDREN – With whom a child lives – Orders

FAMILY LAW – PROPERTY – Settlement in relation to marriage

Family Law Act 1975 (Cth)

APPLICANT: Ms Kneed

RESPONDENT: Mr Ross

INDEPENDENT CHILDREN’S LAWYER: Carne Reidy Herd, Solicitors

FILE NUMBER: BRF 12912 of 1998

DATE DELIVERED: 30 July 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 30 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Carmody of Counsel

SOLICITORS FOR THE APPLICANT: Emerson Family Law, Solicitors

SOLICITORS FOR THE RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Blond of Counsel

SOLICITORS FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Carne Reidy Herd, Solicitors

Orders

Children’s Issues

1. That the child, H born …April 1996, live with the Mother.

2. That the Mother have sole parental responsibility for the child.

3. That there be no Order as to time between the Father and the child.

4. Subject to the terms of paragraph 11 hereof all Contravention Applications filed by the Father be dismissed and all previous Orders relating to children’s issues be discharged.

5. Pursuant to Section 65DA(2) and Section 62B of the Family Law Act 1975, 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.

Property Issues

1. From the amount held on behalf of the parties in McCarthy Durie Ryan & Neil’s trust account, the Wife is to receive $2,464.00 in full and final settlement of paragraph 5 of the Judicial Registrar’s Order of 31 August 2006.

2. From the amount held on behalf of the parties in McCarthy Durie Ryan & Neil’s trust account, $14,661.36 be paid forthwith to Emerson Family Law, such amount to include the costs awarded by the Judicial Registrar’s Order of 31 August 2006 as referred to in paragraph 6 above.

3. From the amount held on behalf of the parties in McCarthy Durie Ryan & Neil’s trust account, the amount of $172,841.87 be released to the Wife (to be paid to her solicitor Susan Green forthwith) in full and final settlement of the Wife’s claims for property settlement.

4. The Wife to be solely responsible for storage fees in the amount of $2,062.50.

5. Subject to the Wife, within twenty-eight (28) days, filing and serving submissions seeking costs other than those costs awarded by the Judicial Registrar on 31 August 2006 and the costs awarded by the Court on today’s date, the balance of funds in McCarthy Durie Ryan & Neil’s trust account are to be frozen.  In the event no further claim for costs is made within the period of twenty-eight (28) days the balance of moneys are to be released to the Husband subject to any dispute relating to a claim for costs by the Husband’s former solicitor, Dianne Edwards.

General Orders

1. The Father be at liberty to apply to have these Orders set aside or varied within twenty-eight (28) days of the date of this Order or such further time as the Court may permit subject to the Father filing with any such application a report from a registered Australian Medical Practitioner confirming:

   a.details of the diagnosis of the terminal illness that the Father says he is suffering from; and

   b.that the Father is seeking medical treatment for the terminal illness overseas and the nature of such treatment.

   Upon receipt of the material in 11(a) and (b) of this Order, then the Independent Children’s Lawyer is to seek to have the matter re-listed.

2. In the event the Father does not proceed with the application foreshadowed in paragraph 11 hereof the Independent Children’s Lawyer is discharged.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 12912 of 1998

MS KNEED  

Applicant

And

MR ROSS

Respondent

And
INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The parties to this matter have been litigating in this jurisdiction for just over three years.  At last it was set down for a two day trial commencing today.  The mother and the independent children's lawyer are both legally represented by counsel.  The mother has travelled up from Northern New South Wales for the purpose of today's proceeding.  The father is not present on today's date. 

2. The reason for the father's non appearance is to be found in a series of e-mails with Court staff.  As I understand it, the first e-mail is by the Father to the Enquiry section of the Family Law Courts on 8 July at 12.45:

   “Hello there.  I presented at the Brisbane Registry on 3 July to file a notice of discontinuance.  I'm not too sure if the officer understood what I wanted to do in relation to this matter but otherwise the officer was extremely helpful. 

   This matter on which the file number is above has now been proceeding for a number of years now on which there has been a number of orders put in place and these orders has continuously been breached by [the Mother].  I recently have (sic) diagnosed with a terminal illness which I have one change (sic) to seek the relevant medical attention into this matter on which I must travel overseas.  I am travelling in two weeks time and I expect to be overseas for an unspecified time on which I will be operated on and allowed time to recover.  Hopefully this procedure will be successful. 

   Taking all the above issues into consideration, in particular my ill health, I do not wish to proceed with any issue at this point in time.”

   and gives a post office box in the T region.  That is his new address for service.  There was a response to that in terms of:

   “If you wish to discontinue this matter you are required to file a notice of discontinuance.”

3. He replied to N on 9 July 2007 at 15.13:

   “I've already filed a notice of discontinuance which was filed on 3 July 2007.  Can you please check the file and advise accordingly.”

   Thereafter there are a whole series of e-mails.  The first one as I can detect is on 11 July at 12.58 he says, "Hello [N]" - that's the person in the Court staff at the Enquiry section:

   “This clearly shows how stupid these forms and the rules of the Court is as I do not want to continue with this matter.  In addition to this, I will not be here on 30 June –”

   presumably he means July:

   “- due to a medical reason, therefore it seems pointless for this matter to proceed.  I entrust that you will not –”

   I presume he means "note":

   “- the file of the absence and as I have now advised the Court in due course I cannot be held responsible for wasting the Court's time.  What is the point of filing a discontinuance when this matter is still proceeding?  A stupid idea if you ask me.  I'll write to the Attorney-General outlining this stupidness.  Secondly, what application has the other party filed?  I'm not aware of any and it certainly hasn't been served on me.”

4. So it goes on.  The Court staff, I am satisfied, did to the best of their ability by an e-mail on 15.18 o'clock on 11 July send out provisions from the form 10 and the various provisions in the rules and invited him to search the Court file.  He replied at 16.01 on 11 July:

   “Hello, [J], it's quite clear that you did not read my last communication correctly.  I'll make it clear again for you and I'll add this to my letter of complaint to the Minister for Justice –”

   and then goes on to reiterate he certainly will not be attending today as he will be overseas seeking urgent medical treatment.  He is not sure what application the other party has brought before me as they have not been served on him.  I note the fact that this matter has had consent orders in property settlement.  He's sought to reopen the consent orders.  The matter has been through a conciliation conference and the usual, endless procession of Court events prior to getting to this stage.

5. I propose to proceed on the basis that the father's absence from today is not justified.  Out of an excess of caution I will build into any orders, providing he can satisfy the Court he has been diagnosed with a terminal illness, then I will certainly consider reopening the matter if he wants to.  The view that I take is he would have to have been diagnosed by someone in Australia prior to taking himself off overseas.  Now, whether he has gone to a conventional medical source overseas or some alternative medical source really is not of great significance.  What I want is proof from an Australian medical practitioner that he is suffering the condition he claims, then the matter can be revisited. 

6. Dr C assessed the parties.  There is nothing particular of note in his assessment report of the mother.  At page 9 of his report in the second paragraph he ventures the opinion:

   “I think this man has significant narcissistic traits in his personality.  It is interesting to note that despite being given ample opportunities by different interviewers everything remains other people’s fault and [the father] is unwilling and perhaps unable to accept any of the responsibility being sheeted home to himself.  His explanations of the difficulties are glib and, in my view, self serving.  There would appear to be a substantiated history of domestic violence that he has directed towards his wife and whilst he was quick to point out that the domestic violence was mutual, it would seem that she suffered disproportionately. 

   I note that to date he has had only telephone contact with his daughter and should the Court order face to face contact then I think it would be important that this proceeds slowly in a supervised manner over an extended period of time.  I would not recommend an early resumption of unsupervised contact and in my view the concerns of [the father] need to be considered in this regard. ”

7. That report is dated 1 December 2004 and it is annexed to an affidavit filed 29 April 2005.  Ms V, I believe, has filed a total of five reports in this matter.  The latest report was filed on 23 November 2006.  On page 10 under the heading of "Summary Assessment and Conclusions" she says at  paragraph 53:

   “At this stage I continue to hold the view that visits need to be supervised.”

   54:“There will be a longer term decision needed to be made pertaining to how long the contact centre can remain available.  The Court will then need to consider whether visits can move to being unsupervised or whether unsupervised face to face as it would be out of the question.  In my opinion this will only be clear when the parents give evidence at a final hearing. ”

8. The recommendation she makes is that the current arrangements remain in place until a final hearing.  I have had regard to the material filed by the father.  In particular I place on the record an affidavit of the father filed on 31 August 2006; an affidavit of his mother filed 4 October 2006; financial statement filed 4 October 2006 and a detailed affidavit of 4 October 2006. 

9. I will point out that the order that I will be making about allowing the door to be reopened is that if the husband has a terminal illness as claimed, I can well understand his wish to give his own health priority.  If this be the case, and he wishes to still be heard, I propose to put in place an order allowing him to make an application to re-open today's hearing.  There was no dissent from the Bar table on that proposal.  The only qualification is the husband has to adduce evidence of the veracity of what he says.  If he is not suffering a terminal illness I see no reason why he should be allowed to:

   (a) mislead the Court and;

   (b) absent himself from the hearing and still expect at some future point in time to have his position reconsidered.  However that is a matter for another day.

10. I am being asked to make orders, the effect of which is there be no order as to the time to be spent between the father and the child.  This also effectively means there will be no order in relation to communication by telephone.  At the present time the father has an arrangement for a two hour supervised contact visit once a month.  There is an affidavit from the solicitors to the effect that he has exercised contact four times this year.  However, he currently makes two phone calls a week.

11. There is evidence from the mother, and I believe from her partner and from her father to the effect that these phone calls are very stressful and debilitating to the child.  It appears that the father is always suspected of putting pressure on the child to reveal her whereabouts and things of that nature.

12. I am conscious of the terms of the amendments introduced by the Federal Parliament on 1 July last year.  I am conscious of the importance of issues of parental responsibility but where the father for the first seven months of this year has seen the child for a total of eight hours, where he has had phone communication that has made the child considerably stressed, the view that I have formed is that it is appropriate to make an order that the mother have sole parental responsibility.  That is sought in the draft orders and I will be making an order in those terms.

13. The further order proposed by the mother's legal representatives and supported by the independent children's lawyer is that there be no order as to time between the father and the child.  As I have said, the father may have a terminal illness or he may not.  If he does have he will receive the utmost consideration from the Court.  If he has not, he will find that it is not a wise course to deliberately mislead a Court as to the reasons for his non attendance.

14. The mother says she will facilitate communication between father and daughter by phone and by supervised contact visits as arranged but the child is agitated by pressure of phone calls and, as I have said, this is evidence not only from the mother but also other witnesses.  I have confidence that the mother would be as good as her word.  I do not believe, looking at the reports and the evidence generally, that she would deliberately sabotage communication between father and daughter.  She simply wants to create an environment that makes her daughter safe and secure.

15. I will make orders as sought by the independent children's lawyer and by the mother's lawyers to the effect that there will be no order to operate.  That does not mean to say he cannot see his child, he has just got to see her on terms as laid down by the mother.  It is a situation that is often put into effect by different guise when parties make orders that a parent spend time with the child as agreed.  Obviously if they cannot agree as to time and place then no communication is possible.

16. The reality is, if the father wishes to press for orders there is an obligation on him to attend at Court to make submissions why the Court should put in place the orders he seeks.  It doesn't mean to say the mother will automatically get orders by default, but the orders that I propose to put in place are as follows:

    ORDER DELIVERED

    I will just reiterate the orders:

    ORDERS DELIVERED

17. I turn to consider the issues of property settlement.

    RECORDED:  NOT TRANSCRIBED

    Property settlement orders were made by consent on 5 January 2005 by Dittman R.  The orders provided for the sale of two properties the parties owned, one in the M area and one in the D area.  The operative provision as to the distribution of funds is par 1.4 and that paragraph reads that:

    “The funds held in the trust account of a solicitor be distributed as follows:

    1.4.1.  a proportion to the wife to effect the distribution of assets equivalent to 53.5 per cent of the total assets. 

    1.4.2  a proportion to the husband to effect the distribution of assets equivalent to 46.5 per cent of the total assets.

    1.4.3  the husband acknowledges that he's retained in his possession assets worth $98,280;

    1.4.4  the wife acknowledges that she has retained in her possession assets worth $16,249. ”

18. There was a degree of confusion as to whether the wife's entitlement on today's date is to 53.5 per cent of the moneys in trust or whether it is 53.5 per cent of the moneys in the trust account added to $98,280 and $16,249.  I have formed the view that the latter interpretation is correct.  In this regard I have regard to the husband's own application filed on 4 October 2006.  He is seeking to re-agitate or re-litigate property issues after property settlement but the formula he adopts is that his share is the value of the property retained by the husband as specified in O.1.4.3 plus the value of the property retained by the wife.  That is what he wanted re-calculated.  Plus the net proceeds of sale of both properties times 46.5 per cent. 

19. That interpretation also appears to be supported by an affidavit of Ms Khushal who was the then solicitor for the wife, in particular paragraphs 5, 6, 7, 8 and 9.  I have done the calculations accordingly.  The view that I have taken is effectively I am functus officio.  It means I do not have the power any more to interfere with consent orders of the parties made two and a half years ago.  There are mechanisms for setting aside orders but, quite properly, they are fairly difficult to effect.  One is to bring a section 79A application and to rely on the terms of section 79A which are notoriously difficult to establish.  The other one is to have appealed, either within time or out of time, the terms of the order, albeit it is a consent order.

20. The wife does not seek to set aside the orders made on 5 January 2005.  The husband is not here to prosecute any such claim.  The view that I take is the Court has no power to interfere with those orders.  However, there is one relatively minor matter that has arisen since that time and since there is money in a trust account which is about to be paid out, it is appropriate that that matter be dealt with, and I will treat it as an oral application by counsel for the wife, and it relates to the sum of $2062.50 for storage fees.  It seems to arise from a comedy of errors but the wife sent along PA Removalists to the family home to collect her property.  In the course of doing so they took some property belonging, by agreement, to the husband.  The wife has stored the property in Northern New South Wales.

21. As I understand it, part of the account relates to a period prior to the wife removing her property from storage, but at the time she did so she wrote to the husband and said, "Look, here's your property, it's down here, come and collect it."  The husband hasn’t done so.  Various letters were sent.  It would seem to be that to an extent there is fault on both sides.  I am not being critical in that regard.  Really the fault stems from the mistake from PA Removalists but the wife has to accept some responsibility because she did not have the items returned to the husband so he has got to take some responsibility for not having done so, so I have ordered that sum to be paid by the wife and in calculating the entitlements here, I have added a sum of $2062.  When calculating 53 and a half per cent of the wife's entitlement I, first of all, deducted the $2062 from the amount in the trust account, worked out the entitlement of the parties, re-added the wife's $2062.  She has to be responsible for that account and there will be an order accordingly.  It really does not need an order.  She is the one who signed the agreement with the storage facility people, she has got the responsibility for the account.

22. The property settlement issues really were resolved but, as I have noted, on 4 October the husband filed seeking to alter the agreed amount that the wife had received.  He also sought to litigate children's issues in terms of where, having regard to the reports to hand at that point in time, had absolutely no prospect of success.

1. In these circumstances the wife seeks costs.  The calculations are set out in  annexure A which has been produced, and sets out a whole series of costs.  Apparently the wife's costs, through various solicitors, have been very significant indeed.  The wife entered into a contract for the sale of one of the properties.  The husband refused to sign a contract at that price.  The wife had to bring an application which was heard by the Judicial Registrar.  On 31 August 2005 she made orders, the effect of which the sale was to go ahead at that contract price.  She ordered the husband to pay the wife's costs as agreed or to be taxed.  Unfortunately they have not been agreed or taxed, but I am told the amount is now $2464.

2. The wife does not wish to delay the matter further by proceeding to taxation.  The view that I take is that I cannot interfere with the order of the Judicial Registrar as to her having ordered costs, but I draw a long bow and to avoid the parties having to come back to Court with further expense I believe it is appropriate to make an order when disbursing moneys from the trust account.

   ORDER DELIVERED

3. The wife, additionally, at this point in time seeks costs totalling $14,661.36 which includes the costs awarded on 31 August, and they relate to the costs incurred by counsel and the Brisbane agents for the wife's solicitors for acting on her behalf since 6 October 2006.  I have considered the submissions.  I am prepared to make a separate order that from the amount held in the solicitors' trust account, the sum of $14,661.36, be paid to Emerson Family Law, such amount to include the costs awarded by the Judicial Registrar on 31 August 2005;

4. I have received an assurance that there was no costs agreement in relation to those costs.  They were charged out at scale and, although I am awarding the costs on a solicitor/client basis, I believe in the circumstances that is an appropriate basis for doing so. 

5. The calculations which I make are as follows, and these are respectfully draft calculations.  I am willing to be corrected on them.  I have done them in something of a hurry.

   Amount in trust  $237,119.25

   Less storage fees account                  $    2,062.50

   Balance   $235,056.75

   Add amount received by husband as per paragraph 1.4.3   $   98,290.00

   Add amount   $   16,249.00

   acknowledged by the wife as what she retained on separation, 1.4.4 of Dittman R's order

   Total   $349,585.75.

   The wife's entitlement at 53.5 per cent is $187,028.37.  The wife has received $16,249.  The balance owing then to her is $170,779.37.

6. Now, in addition the wife needs to receive $2062.50 from the trust account so she can pay the storage fees.  So if you add that to the previous amount of $170,779.37 her all up entitlement is $172,841.87.  The mother is to be responsible for the storage fees.  The balance I calculate is approximately $64,000.  There is a lien claimed by the solicitors on behalf of Worrells for the husband's legal fees of about $18,000, as I understand it.  That is a matter for the husband to deal with. 

7. There may also be a claim by the wife foreshadowed for her other costs.  In other words, I have limited the costs order to the costs of 31 August 2005 and the costs of and incidental to the proceedings on a solicitor and client base, from 4 October 2006.  If the wife wishes to pursue a claim for other costs then she is to do so by filing submissions seeking an order for costs within 28 days of today's date.  The view that I take is that I will freeze the husband's entitlement, limited as it is to $64,000, probably less $18,000.  If the wife files such submissions the moneys are continued to be frozen pending the determination of the Court.  In the event that no further submissions for costs are made, the moneys are to be released to the husband less any deductions on account of his costs to his previous solicitors.

   ORDERS DELIVERED

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate

Date:  30 July