LENARD & ROGERS

[2017] FamCA 657

FAMILY COURT OF AUSTRALIA

LENARD & ROGERS [2017] FamCA 657

FAMILY LAW – CHILDREN – Where there is no appearance by the wife – Where previous orders to attempt therapeutic intervention to improve the children’s relationship with their father have not been implemented – Where final orders provided for the children to live with their father but the children have not seen their father for about 18 months – Where orders are made discharging the final orders so that the children live with their mother but still spend half school holidays with their father albeit in a different pattern to the previous orders.

FAMILY LAW – PROPERTY – Where final orders provided for a 55/45 division of funds in favour of the wife – Where the husband obtained a costs order against the wife – Where monies are directed to be paid to the husband before the division of funds held in trust.

APPLICANT: Ms Lenard

RESPONDENT: Mr Rogers

INDEPENDENT CHILDREN’S LAWYER: Mr Ng

FILE NUMBER: SYC 1585 of 2010

DATE DELIVERED: 16 August 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 16 August 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: No appearance

SOLICITOR FOR THE RESPONDENT: Litigant in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Adams Partners

Orders

IT IS ORDERED THAT:

1. Pending further order if the wife makes an application in 28 days of service of these orders upon her but otherwise by final order:

   1.1.Orders 2, 3, 4, and 5 made 16 July 2012 be discharged;

   1.2.I note that orders 1, 6, 7 and 8 made 16 July 2012 still apply;

   1.3.The children otherwise live with their mother;

   1.4.The children spend time with their father during the first half of terms 1, 2 and 3 school holidays and second half of term 4 school holidays.

2. The wife may, within a period of 28 days of service of these orders upon her, file and serve an application to have the matter relisted to review those orders that I have made on a pending further order basis. If she does not do that the orders would become final orders.

3. The principal at B Estate Agents distribute monies held in trust in the names of Mr Rogers and Ms Lenard in the following manner:

   3.1.Pay to Mr Rogers the sum of $18,000

   3.2.Pay 55 per cent of the balance to Ms Lenard

   3.3.Pay 45 per cent of the balance to Mr Rogers

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lenard & Rogers has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1585  of 2010

Ms Lenard

Applicant

And

Mr Rogers

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter was relisted before me today at the request of the new Independent Children's Lawyer, Mr Ng. The wife, by way of an email forwarded to her email address on 25 July 2017 was informed that the matter was listed at 9.15am today. It is now 9.45am. The wife has been called on two occasions and has not appeared.

2. On 25 July 2016 I made orders on the basis that the parents agreed that they would attempt therapeutic intervention which may involve both the parents being involved in discussions with the therapist about strategies to improve the children’s relationship with their father. A year later that intervention has not been implemented. It appears from the affidavit the husband filed on 11 August 2017 that it got as far as the Director of Child Dispute Services nominating Ms C of D Group as the therapeutic counsellor but so far as I can tell neither the parties nor the Independent Children's Lawyer were able to implement any arrangements for the therapeutic counselling that was sought.

3. The husband has not seen the children now for about 18 months. E is now almost 14 and F is 12.

4. Currently the orders of 16 July 2012 provide for the children to live with the husband. The Full Court confirmed those orders. The husband has told me today that he has reached the view that the current orders are not of any utility in so far as they provide the children live with him during school time. The husband is a school teacher. He has indicated that he would like the orders varied so that they live with their mother and spend half school holidays with him. The current orders made 16 July 2012 already provide for this but the husband seeks it in different configuration. I am satisfied that what is requested by the husband is in the children’s best interests and an order will be made as requested by the husband that the children spend time with him the first half of terms 1, 2 and 3 school holidays and second half of term 4 school holidays.

5. In relation to financial matters, the wife told me on 25 July 2016 that she did not receive $23,000 by way of bank cheque from the husband. The husband’s affidavit filed 11 August 2017 provides evidence that that statement by the wife was not correct and in fact she did receive two cheques that totalled $23,480.

6. There remains $40,000 in the B Trust Account. The orders made by Justice Rees on 16 July 2012 and specifically orders 13(c) and (d) provide for a 55/45 division of those funds in favour of the wife. However, the husband obtained a costs order against the wife as a result of the Full Court proceedings and on 27 November 2014 Registrar Chayna made an order by consent that $18,000 from the B Trust Account be paid to the husband before the division of monies in trust and the parties do everything necessary to authorise B to divide the monies in that way. I accept the husband’s evidence that the wife has failed to implement that order. I shall make a further order directed to the trustee of the monies.

I certify that the preceding nine (9) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 16 August 2017.

Associate: 

Date:  23.8.2017