Lecardi and Lecardi

[2012] FamCA 527

FAMILY COURT OF AUSTRALIA

LECARDI & LECARDI [2012] FamCA 527

FAMILY LAW – PRACTICE AND PROCEDURE - Interim orders – Husband fails to file material

Family Law Act 1975 (Cth)

APPLICANT: Ms Lecardi

RESPONDENT: Mr Lecardi

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 2788 of 2012

DATE DELIVERED: 26 June 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 26 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Strum

SOLICITOR FOR THE APPLICANT: Caroline Counsel Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Mellas

SOLICITOR FOR THE RESPONDENT: Logie-Smith Lanyon

Orders

1. That until further order, the Applicant have sole parental responsibility for the child V born … May 2011.

2.        That until further order the child live with the Applicant Mother.

1. That until further order, the child not spend any time with the husband unless agreed between the parties in writing.

2. That the real property known as and situate at … O Street, Town G in the State of Victoria more particularly described in Certificate of Title Volume … Folio … ("the Town G property”) be sold forthwith altogether out of court and the proceeds be applied as follows;

   (a)First, to pay all reasonable costs and disbursements of and incidental to the sale;

   (b)Secondly, to discharge the registered mortgage to the Commonwealth Bank of Australia;

   (c)Thirdly, to pay the sum of $50,000 to the Applicant on account of lump sum spousal maintenance;

   (d)Fourthly, to pay the sum of $50,000 to the Applicant's solicitors on account of security for costs for the Applicant's legal costs and disbursements and/or by way of interim property settlement (the characterisation of same to be reserved for the Trial Judge);

   (e)Fifthly, to pay the costs of withdrawal of the caveat lodged on behalf Applicant;

   (f)Sixthly, the balance of sale proceeds be held by the Applicant's solicitors on trust in an interest bearing account on behalf of the Applicant and Respondent pending final orders or agreement between the parties.

3. That subject to paragraphs 8 and 9 hereof, the Respondent do all such acts and things to transfer to the Applicant all of his right title and interest in the real property known as and situate at … R Street, Suburb C being the land described in Certificate of Title Volume … Folio … ("the Suburb C property") and it be sold and the proceeds be applied as follows;

   (a)First, to pay all reasonable costs and disbursements of and incidental to the sale;

   (b)Secondly, to discharge the registered mortgage to the Commonwealth Bank of Australia;

   (c)Thirdly, the balance of the sale proceeds be held by the Applicant's solicitors on trust in an interest bearing account on behalf of the Applicant and Respondent pending final orders or agreement between the parties.

4. That the Applicant be solely entitled to appoint a Real Estate Agent of her choosing and to engage such Agent on such terms and conditions as she sees fit in relation to the sale of the real properties.

5. That the Respondent do all such acts and things and sign all such documents to authorise the Applicant to facilitate the sale of the real properties.

6. In default of the parties or either of them doing all acts and things and executing all such documents as are necessary to give effect to these Orders, a Registrar of the Family Court of Australia at Melbourne be appointed pursuant to s 106A to execute all such documents in the name of the party in default and to do all such acts and things necessary to give validity and operation to the said Orders.

7. That in the event that the sale of the Suburb C property triggers a capital gains tax event, the Applicant do all such acts necessary to instruct S Accountants to calculate the capital gains tax applicable in relation to the sale of the Suburb C property and the Applicant provide all such documents as may be required to make such calculation.

8. That from the proceeds of sale of the Suburb C property, the Applicant do all such things to deposit such sum as may be estimated by S Accountants into an interest bearing account in her sole name until such time as her relevant Tax Return has been filed and the capital gains tax arising from the sale of the Suburb C property has been assessed. Any interest derived on the account is to be compounded with the principal sum. In the event that the principal and interest exceeds the capital gains tax liability, the Applicant retain such sum for her sole use and benefit. In the event that there is a shortfall the Applicant be liable to pay such shortfall.

11.      That the Applicant otherwise indemnify and keep indemnified the Respondent in respect of any capital gains tax incurred on the sale of the Suburb C property.

1. That pending the sale of the Suburb C and Town G properties, the Applicant be entitled to sole use and occupation of the real properties and during such right of occupation, if the Applicant pays any outgoings, she be reimbursed from the proceeds of the sale of the real properties.

2. That the husband pay the costs of the wife fixed in the sum of $4250 such sum be paid out of the proceeds of the sale referred to in these orders and the adjustment of such costs be made against the husband’s share in the ultimate property division proceedings.

3. 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 Lecardi & Lecardi 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 2777 of 2012

Ms Lecardi

Applicant

And

Mr Lecardi

Respondent

REASONS FOR JUDGMENT

1. This is an application in the judicial duty list filed on 29 March 2012 by Ms Lecardi, to whom I shall refer as the wife, that seeks orders against Mr Lecardi, to whom I shall refer as the husband.  The application was listed initially on 28 May 2012 and on that occasion it came before Registrar Field.  Both parties appeared represented by lawyers.  Procedural orders were made adjourning the matter to the list today having regard to the nature of the interim orders that were sought.  On that occasion the Registrar allowed the husband to appear despite not having filed any material.

2. I am not entirely sure when the husband was served with the wife’s documentation but in any event, the Registrar made an order that the husband file and serve by 18 June, the relevant documents that would have enabled not only him to participate in the proceedings, but also the wife and the court to know what his position was.  Correspondence has been tendered to me today to indicate that the husband could not meet the deadline, but the wife seemed happy for an extension of time.  Despite the extension of time documents were still not filed.

3. The letter was tendered to me this morning indicating that the reason why that has not been done is because the husband’s accountant was in some sort of training program and unable to assist in the completion of a financial statement.  The letter does not say, but counsel advises me, that there are also issues about the money provided by the husband’s mother which might go to issues of contribution.  I have rejected an application by the husband for an adjournment on the basis that he had ample time prior to 28 May to get his house in order.  The Registrar made it clear on 28 May that the Court needed the documents, as did the wife and still nothing has happened.

4. It is not appropriate that the court simply allow things to wander in circumstances where I have an application which includes spousal maintenance and parenting orders of a very young child.  I appreciate that there are very emotional issues attached to this case, including the fact that the husband has been charged with some serious criminal offences and faces a committal hearing at the end of August, which I am told he will contest.  He is currently on very strict bail conditions and there is an intervention order which requires the husband to keep away from the wife and the child.

5. My task today is to deal only with the interim orders and to rely upon the evidence before me.  The interim orders sought are in two parts:  the first relates to parenting issues associated with V (“the child”), who is just 13 months of age, and the second part relates to trying to get into order some of the parties’ financial circumstances so that a Court can sort out the division of their property on a final basis as soon as practicable.  Dealing with the parenting issues first, the husband remains silent about the child’s future.

6. I am only asked to make interim orders and therefore they can be revisited at a trial in the future.  In addition, there are very strict conditions which would preclude the husband from being anywhere near the child at this particular point in time.  In addition he is not permitted to be anywhere near the wife.  In those circumstances it seems that the only person who is making the decisions about the child is the wife.  To make an order on an interim basis for anything other than that the wife have sole parental responsibility would be pointless.

7. An order should be made for the wife to have the daily responsibilities for caring for the child.  Section 61DA requires the Court to start with the presumption that parents should share the responsibilities for making decisions about their children, but subsection (4) provides that if the Court is determining interim issues then the issue about the future can wait, and the only issue that the Court needs to concern itself with is the immediate problem.  I propose in those circumstances to make an order that the wife have sole parental responsibility.

8. All of the evidence that I have read suggests that the wife is caring appropriately for the child and the only gap in this child’s life is the relationship that she is going to have with her father.  That is an issue that can be sorted out once the criminal charges are all resolved or the Court gets an opportunity to hear the matter on a final basis.  I propose therefore to make orders in terms of paragraph 1 and 2 of the wife’s application.  In a minute that was handed to me this morning the wife goes one step further and seeks a specific injunctive order that the husband not have time with the child other than by agreement in writing.  Having regard to the matters that I have just mentioned, that seems a reasonable order and I propose to make it in those terms.

9. I turn then to the property orders. The wife seeks effectively two categories of orders. One relates to her maintenance and the other relates to a litigation funding order. The only way I can determine the matter today is on the evidence before me. The evidence shows that the wife is caring for the young child and that she has an immediate need. She is being supported by the taxpayers of Australia and the Act requires that I ignore any pension. I am satisfied that the wife could not support herself without maintenance because of her care of the child. The only question is whether the husband has the capacity to provide that support. I do not know because I do not have any material from him.

10. What I do have is evidence that there are two real properties in this case, one of which seems to have an equity of some hundreds of thousands of dollars and the other one about which I know very little other than around the time of separation it was purchased in the husband’s name alone using a line of credit provided by the Commonwealth Bank, which is secured against the main home property.  A bank statement tendered today shows record of that account over a space of the last 12 months.

11. A large sum of money was taken out of the redraw facility which increased it from $197,000 to $331,000 in June 2011.  I am told by counsel for the husband that that money went in to purchase the Suburb C property.  What is otherwise evident from that document is the tracking of the various payments that the bank has taken, all of which show that the mortgage is not being met.  On that basis the indebtedness to the bank is rising.  The bank has no reason to force a sale because it is within its limits.  The bank statement shows that there is another $235,000 available so that the bank does not have any concerns with its security position nor that the equity is prejudiced.

12. That situation cannot continue having regard to the fact that the wife has no funds in which to support herself and I have evidence before me that she needs something to provide to her lawyers.  I have an affidavit from the lawyer indicating their terms of engagement and they need to be paid.  The figure sought by the wife is $50,000 for those solicitors to be used as security for her legal costs and disbursements and/or by way of property settlement. 

13. In this case it is appropriate to make an order.  Then the only other question is what should the order be.  There is evidence before me of contribution.  I have a statement from the bar table that the husband will allege that his mother made a contribution.  Just exactly what all that means and how it impacts on a woman with a very young child remains to be seen.  I am also cognisant of the fact that the husband is facing serious criminal charges and he may very well be convicted, in which case one would presume that there is a serious sentence of imprisonment facing him.

14. On the other hand he may very well be acquitted of these charges, in which case I have no idea what his employment prospects are in the future.  It seems that the business that was supporting the family during the marriage related to a wholesale business but that seems to have been sold and the wife is as yet unaware of what happened to the money.  It seems in the circumstances that the only orders I can make are those set out in paragraphs 3 and 4.  I have seriously considered the problem that the husband may want to keep the Suburb C property.  I have no evidence to indicate that he can or that he should.

15. In those circumstances it seems the circumstances are appropriate to make an order in terms of paragraph 3 and 4.  Because of the nature of the application and the background of the parties, which includes the fact that there is allegations of very serious family violence here culminating in a property being burnt that belonged to the wife’s parents and on which I make no finding at all, it seems it is impossible to expect the parties to communicate about the ordered sale of the two properties.

16. The wife seeks that she be entitled to appoint the real estate agent of her choosing and it’s appropriate that the husband be provided with whatever information about the outcome of those sales. I do not propose to allow him to be involved in the consultation processes because of the fact that it seems to me that he has had his opportunity and failed to comply with the orders. To the extent that it is necessary for a document to be signed and he declines to do so then pursuant to s 106A of the Family Law Act 1975 (Cth) (“the Act”) the Registrar can sign a document in his name.

ORDER DELIVERED

RECORDED   :   NOT TRANSCRIBED

1. Section 117 of the Act provides that each party shall bear their own costs unless there are circumstances to justify a departure from that principle, and if the Court is contemplating a departure then it must contemplate the matters set out in s 117(2A). In this case, having regard to the fact that the husband has had ample time and not addressed the issues that really needed to be sorted out, there are justifiable circumstances for making an order for costs.

2. It is correct that I do not know his entire financial circumstances, but it is also clear that he is going to be arguing that he has an entitlement in capital terms even if he is currently unemployed. It would be hard for me at the moment to find that he is impecunious. One of the other issues in s 117(2A) relates to the question of complying with directions and orders for filing of material and I think it is fair to say that the husband is the master of his own problem in that respect.

3. In relation to being wholly unsuccessful I could not think of a better example of a case where someone does not provide information and then expects the Court to simply gloss over the problem.  This is a case where the wife is out of pocket because of the costs and the quantum sought is not disputed.  I want to make clear that costs are not a punishment, costs are intended to compensate the party who has had to take the steps by virtue of the inability or the refusal of the other party to assist in resolving litigation.

4. This is a case which quite clearly cries out for resolution.  It is not difficult, and the husband’s lack of response has made it difficult for the wife to do anything other than proceed on the basis that she has.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 26 June 2012.

Associate: 

Date:  11 July 2012