Leone and Cino (No 4)
[2015] FamCA 795
•25 September 2015
FAMILY COURT OF AUSTRALIA
| LEONE & CINO (NO 4) | [2015] FamCA 795 |
FAMILY LAW – PROCEDURAL – Adjournments – where the husband seeks an adjournment of interim proceedings – adjournment opposed by the wife – where the husband failed to attend the hearing – historical conduct of husband and procedural matters considered – where the husband submits he is unfit to participate in proceedings – where the husband has filed documents responding to the wife’s application – husband’s application for adjournment dismissed.
| FAMILY LAW – CHILDREN – Supervision – where the husband’s time is currently supervised – where wife seeks the husband’s time with the children be supervised by professional supervisors – where husband has demonstrated behaviour that would pose a risk to the children – where the current supervisors do not acknowledge any possible risk to the children posed by husband’s behaviour – wife’s application supported by the Independent Children’s Lawyers– interim orders made that the husband’s time be professionally supervised. |
FAMILY LAW – PROPERTY – Sale of property – where the husband has been residing in the former matrimonial home since separation – where the husband has ceased paying the mortgage – where the wife seeks the sale of the former matrimonial home – where mortgagee has issued proceedings in the Supreme Court of Victoria – where there is no proposal to remedy the arrears and/or recommence making mortgage repayments – interim orders made for the sale of the former matrimonial home.
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Brown v Brown [2004] FamCA 1067 Cowling v Cowling [1998] FamCA 19 Goode & Goode [2006] FamCA 1346 Marvel & Marvel [2010] FAMCAFC State of Queensland v J L Holdings (1997) 189 CLR 146 Tate v Tate (2000) FLC 93-047 |
| APPLICANT: | Mr Leone |
| RESPONDENT: | Ms Cino |
| INDEPENDENT CHILDREN’S LAWYER: | TJ Mulvany & Co |
| FILE NUMBER: | MLC | 3172 | of | 2013 |
| DATE DELIVERED: | 25 September 2015 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Macmillan J |
| HEARING DATE: | 18 September 2015 |
REPRESENTATION
| THE APPLICANT: | No appearance |
| COUNSEL FOR THE RESPONDENT: | Ms Harris |
| SOLICITOR FOR THE RESPONDENT: | Lawcorp Lawyers Pty Ltd |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Beckett |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | TJ Mulvany & Co |
Orders
IT IS ORDERED UNTIL FURTHER ORDER THAT
Parenting orders
Paragraphs 1.1 and 1.2 of the orders of this Court made on 17 December 2013 be and are hereby suspended.
The husband spend time with the children on one Saturday or Sunday per calendar month at times to be nominated by Ms S of S Community Services after consultation with the husband and the wife and if practicable for up to six hours commencing no earlier than 10.00 am and concluding no later than 4.00 pm or as may be otherwise agreed. All time the children spend with the husband to be supervised by Ms S or such other supervisor as may be agreed upon in writing by the husband, the wife and the Independent Children’s Lawyer and the costs of such supervision to be paid by the husband.
Financial matters
The parties forthwith do all things and sign all documents necessary to cause the property situate at U Street, Suburb O in the State of Victoria (“the property”) to be sold by public auction in the following manner:-
(a) list the property for sale with such real estate agent as the parties agree upon (“the agent”) and in this regard the wife shall provide to the husband the names of three real estate agents and the husband nominate one of those agents by advising the wife’s solicitor by email within 48 hours of the email being sent to the husband and in the event that the husband does not nominate an agent within 48 hours then the wife shall nominate one of those agents and her nomination shall be the agent for sale;
(b) the reserve price be mutually agreed upon by the parties or, in the absence of agreement, as nominated by the agent;
(c) the parties each cooperate in every way with the agent including (without limiting the generality of the foregoing):
(i)making keys available to the agent;
(ii)allowing inspection of the property at all reasonable times requested by the agent;
(iii)doing or saying nothing to hinder or prevent a sale being effected;
(iv)ensuring the property including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers;
(v)attending the auction and negotiating with the highest bidder in the event that the property does not reach the reserve amount;
(vi)signing all documents requested by the agent in relation to the listing for sale of the property except a contract or agreement for sale which has not been authorised by the wife's solicitor;
(d) the husband shall within seven days from the date of these orders, undertake all work necessary on the property and grounds to ensure that the property is in a condition suitable for inspection by prospective purchasers including removing any motor vehicles, motor parts or accessories which are not adequately housed within the garage area and thereafter to permit the wife’s nominee to inspect the property and surrounding grounds;
(e) the parties instruct the wife’s solicitors to prepare a contract for the sale of land and thereafter the parties shall execute the contract for sale in the form prepared by the wife’s solicitor at a sale price agreed upon by the parties or, in the absence of agreement, at the price recommended by the agent;
(f) the wife’s solicitor have the primary conduct of the sale on behalf of both parties; and
(g) the parties shall attend upon the auction and provide all necessary instructions to the agent on the day of auction, to negotiate with the highest bidder if the reserve price is not reached and execute the sale contract when the house is sold.
On settlement of the sale of the property, the proceeds of sale be distributed in the following manner and priority:
(a) all costs and expenses of sale;
(b) the amounts required to discharge the mortgage including any arrears and fees incurred due to the mortgagee taking action to enforce their rights under mortgage;
(c) any amount required to cause any caveat registered on the property to be removed on settlement, excluding any caveat lodged by the Independent Children’s Lawyer;
(d) the balance then remaining to be invested by TJ Mulvany & Co in a controlled monies account pending further order of the Court.
At or prior to settlement the Independent Children’s Lawyer deliver a withdrawal of any caveat lodged over the property to the solicitor for the wife.
In the event that any party refuses or neglects to sign any document necessary for the implementation of these orders within 72 hours of such document being provided to that party (“the defaulting party”) a Registrar of the Family Court of Australia is hereby appointed to sign any such document on behalf of the defaulting party pursuant to s 106A of the Family Law Act 1975 (Cth) upon the filing of an affidavit by the non-defaulting party setting out the particulars of the default.
The parties have liberty to apply on short notice with respect to the implementation of the orders for sale.
IT IS FURTHER ORDERED THAT
A copy of this order and the reasons for judgment be sent to the husband by email at the email address provided to the Court.
As soon as practicable the wife cause a sealed copy of this order together with the reasons for judgment to be forwarded by pre-paid post to the husband at U Street, Suburb O.
The husband have liberty to apply to relist the matter for mention before Macmillan J on or before 4.00 pm on Monday 5 October 2015 conditional upon the husband filing and serving upon all other parties the following:
(a) an affidavit deposing as to:
(i)his reasons for failing to appear or make himself available by telephone at the hearing on 18 September 2015; and
(ii)his proposals with respect to the payment of the mortgage arrears and security for the payment of the mortgage on an ongoing basis; and
(b) an affidavit sworn by Dr D setting out in detail the basis of his diagnosis and his opinion that the husband would be unfit to appear and represent himself in court proceedings from 14 September 2015 until 11 October 2015 and confirming his availability for cross-examination if required by the wife or the Independent Children’s Lawyer.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Leone & Cino (No 4) 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: MLC3172 of 2013
| Mr Leone |
Applicant
And
| Ms Cino |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
On 8 September 2015 the wife filed an application in a case in which she sought both the variation of paragraph 1.2 of the orders made 17 December 2013 and in lieu thereof an order that the time the husband spends with the children of the marriage be supervised by Ms S of S Community Services and an order for the sale of the property at U Street, Suburb O in the State of Victoria (“the former matrimonial home”).
That application was listed for telephone mention by Bennett J at 3.30 pm on 9 September 2015. The husband was notified by email of the listing of the matter however although three attempts were made to contact him by telephone he could not be contacted and hence did not appear by telephone or otherwise that day. At the telephone mention of the matter that day Bennett J listed the application for hearing in the discrete Judicial Duty List at 10.00 am on 18 September 2015. Her Honour further ordered that in anticipation of that hearing the husband file and serve any amended application or response and/or affidavit material or proofs of evidence in response to the wife’s evidence by not later than 12 noon on 15 September 2015 and noted that “… in the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.”
For the purposes of the application for variation of the parenting orders her Honour ordered that the Independent Children’s Lawyer (“ICL”) publish to the parties any preliminary view as to those orders by 4.00 pm on 16 September 2015 and file and serve any evidence relied upon.
Bennett J also directed that a copy of her order be sent by email to the husband at the email address he had provided to the Court and a text message be sent to his mobile service advising him that orders had been made in Court that day. In accordance with her Honour’s direction her associate forwarded an email to the husband, the wife’s solicitors Lawcorp Lawyers and TJ Mulvany & Co the ICL, attaching a copy of her Honour’s order, confirming that the matter was listed for hearing in the Judicial Duty List on 18 September 2015 and asking that the parties note the terms of the orders with respect to the filing of material.
Although there was no affidavit of service filed on behalf of the wife I was advised by counsel for the wife that the wife’s application in a case filed 8 September 2015 and her affidavit in support of that application had been served upon the husband by email on 9 September 2015. Although the husband did not comply with Bennett J’s orders for the filing of documents by 15 September 2015 on 17 September 2015 he filed an application in a case seeking the following orders:
1. Adjourn the application listed for hearing on 18 September 2015 for the end of October 2015.
2. No orders as to costs.
3. the mothers (sic) lawyer to produce full discovery of all letters and document’s between the children (sic) lawyers and the mothers (sic)lawyers: within 7 days of the order.
4, the children (sic) lawyer to produce full discovery of all letters and document’s between the mothers (sic) lawyers and the children (sic) lawyers: within 7 days of the order.
5. The husband to respond to all documents filed by the children (sic) lawyer and the mothers (sic) lawyer 14 days after the both lawyers filed their documents and serve same on me so that makes it 21 days from the order made.
6. or alternative dismiss this whole application for an abuse of process, the (order)
7. Any orders that this court makes in relation to this email herewith.
8. That the court to make the orders and to provide me transcripts and the hearings to this application and also to proved (sic) me written reasons to this application.
…
The husband also filed an affidavit on 17 September 2015. No objection was taken to that affidavit albeit it was filed out of time and does not comply with the Family Law Rules 2004 (Cth) (“the Rules”) and in fact counsel for the wife sought to rely upon the affidavit in support of the wife’s case. The husband annexed to that affidavit copies of his correspondence to the Court in relation to the hearing.
In all of the circumstances I am satisfied that the husband was served with a copy of the order made by Bennett J on 9 September 2015 and was aware of the hearing in the Judicial Duty List on 18 September 2015. I am also satisfied having regard to the correspondence passing between the husband and the Court, the solicitors for the wife and the ICL and the affidavit filed by the husband, that he was served with both the wife’s application in a case and her affidavit filed 8 September 2015.
Notwithstanding that the husband had filed an application in a case and an affidavit in support of that application seeking an adjournment he was not represented and did not appear at the hearing before me on 18 September 2015. The matter was initially stood down at the request of counsel for the wife to enable Mr Beckett who appeared on behalf of the ICL to attempt to contact the husband by telephone. Mr Beckett informed the Court that he had telephoned the husband’s mobile telephone on three or four occasions. On the first two or three occasions the phone rang before eventually diverting to voicemail and on the last occasion his call went straight to voicemail. Mr Beckett also left a message for the husband asking him to telephone the ICL’s office however no call was received prior to the conclusion of the hearing before me.
The husband in this case was on notice that if he did not attend or was not represented at the hearing or did not file his documents in accordance with the requirement of Bennett J’s order made 9 September 2015 that the matter might proceed without him having any input. The matter is somewhat unusual in that although the husband did not appear and was not represented he has participated in the proceedings and has filed documents in that sense having had some input to the proceedings. This was an interim hearing which proceeded by way of submission and there was no reason why the husband could not have appeared by telephone however despite several calls being made to his mobile telephone number and a message being left asking him to call the ICL’s office the husband neither answered those calls nor contacted the ICL’s office.
Background
I do not propose to set out in detail the history of the parties’ relationship as that has been done by other judges on previous occasions. Some of the more recent procedural history is however relevant both for the purposes of whether the Court should grant the husband’s application for an adjournment, notwithstanding his failure to appear to make that application, or whether as submitted by counsel for the wife the matter should proceed in his absence and also with respect to the orders the wife seeks in her application in a case filed 8 September 2015.
These proceedings commenced in 2013 and have been, to say the least, protracted. Although the matter has been listed for final hearing on more than one occasion that hearing presently awaits the outcome of the husband’s appeal which will, subject to the husband complying with the directions, be listed for hearing in the October 2015 sittings of the Full Court.
The matter was allocated to the trial docket of Johns J in November 2014 and listed for a first day of hearing on 17 February 2015. On that date Johns J made orders listing the matter for a final hearing before her commencing on 25 May 2015 and for reasons which are not relevant for the purposes of my determination the matter could not proceed as listed on 25 May 2015. As such that date was vacated and the matter was listed for final hearing on 17 August 2015. Her Honour said in her reasons for judgment delivered on 28 August 2015 as follows:
7. In the week prior to the listed trial date, emails were received in my chambers from the father requesting an adjournment of the listed trial date due to his ill health. There was no consent by all parties to the vacating of the trial date. Accordingly, I listed the matter for a mention hearing before me on 13 August 2015. That day, there were appearances by the Independent Children’s Lawyer (“the ICL”) and counsel appearing for the respondent wife. There was no appearance by the husband at that mention hearing.
8. The matter was stood down so that the ICL could communicate or attempt to communicate with the husband by telephone. The ICL was able to speak with a friend of the husband that morning and ascertained that the husband was in attendance at hospital due to his ill health. Fortuitously for the parties, I had another matter listed for trial some three weeks later which resolved that day, so I was in a position to adjourn these proceedings to a trial date commencing on 7 September 2015.
9. On 14 August 2015, I made orders vacating the original trial date listing of 17 August. An order was made listing all extant applications for trial on 7 September 2015. I also made an order that the husband file and serve an affidavit which set out his reasons for non-appearance before me at the mention hearing and, further, to provide evidence of his attendance upon medical practitioners that day. That order was made in circumstances where there was no direct communication between the husband and the Court and where the Court was relying upon communication between the ICL and a person who was said to be a friend of the husband.
The husband did not file and serve an affidavit setting out the reasons for his non-appearance before Johns J on 14 August 2015 however on 7 September 2015 he appeared and sought to rely upon an affidavit sworn that day to which he had annexed a medical certificate and a patient treatment report both dated 6 September 2015. The medical certificate which was signed by Dr V of the Australian Locum Medical Service Pty Ltd said as follows:
This is to certify that [Mr Leone] is suffering from medical condition (anxiety & panic attack) and will be fit/unfit to resume work on/until from 7/9/15-9/9/15
The Patient Treatment Report included the following information:
Patient Medical Condition
Anxiety (Nervousness) - Child Custody Issues, Insomnia, Unable to Access Daughters
…
Presenting Symptoms, Relevant PHX & Current Medications
06/09/2015 07:34 PM + 10:00 Feeling Very Anxious, Sweating And SOB, Occasional Feeling Of Impending Death, Going Through A Hard Time Because of Legal Family Issues, Unable To Sleep, Low Mood, Unemployed At This Stage Of Medical Reasons, Taking Diazepam Tablets As Required, NKA
Examination Findings
06/09/2015 07:34 PM + 10:00 Looks Anxious, Pale, Sweaty, Afebrile, BP 120/70, Pulse 90, RR 22, Low Affect, No Delusions, No Visual Or Auditory Hallucinations, Normal Thinking, Not Suicidal.
Diagnosis/ Impression
06/09/2015 07:34 PM + 10:00 Likely Anxiety / Panic Attack Psychological
Management Plan & Medications Prescribed
06/09/2015 07:34 PM + 10:00 Advised Counselling, Diazepam Tablets Prn As Planed (sic), Medical Certificate For 3/7.
Review
06/09/2015 07:34 PM + 10:00 Own GP 2-3/7
Notwithstanding that medical certificate and that the husband said he was at Court under duress and under a lot of stress the matter did proceed with the husband representing himself with the assistance of a McKenzie Friend.
The husband annexed to his affidavit filed on 17 September 2015 a further medical certificate marked Exhibit (3) and what appeared to be the same Patient Treatment Report prepared by Dr V on 6 September 2015 subject to an amendment made by Dr V to the presenting symptoms on 11 September 2015 marked Exhibit (4). That amendment was as follows:
the Patient Does Not Get The Occasional Feeling Of Impending Death Which I Had Mis-InterpretIt (sic), He Occasionally Gets Anxious And Frustrated, Unable To Concentrate Because He is Missing His Children And Also Because Of The Court Procedures.
The further medical certificate which was signed by Dr D and dated 14 September 2015 was as follows:
[Mr Leone] is suffering from mental and physical exhaustion causing lack of concentration and an inability to make and articulate any submissions and decisions to the court. He feels that quality time with his family will assist him greatly.
He will be unfit to appear or represent himself in court proceedings or duties from 14/09/2015 to 11/10/205 inclusive.
The medical certificate dated 14 September 2015 was emailed to the solicitors for the wife by the husband on 15 September 2015 following which the solicitor for the wife sent an email to both the husband and the ICL advising that the wife did not consent to the adjournment of the hearing on 18 September 2015 and putting the husband on notice that to the extent that he intended to rely upon the medical certificate of Dr D in support of his application for an adjournment that Dr D be available for the purposes of cross-examination.
Rule 1.04 of the Rules provides as follows:
The main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.
Rule 11.02(1) of the Rules provides that if “…a step is taken after the time specified for taking the step by these Rules, the Regulations or a procedural order, the step is of no effect”.
Whilst not limiting the powers of the Court to manage the conduct of proceedings r 11.02(2) of the Rules provides that if a party does not comply with the Rules, the Regulations or a procedural order the Court may:
(a)dismiss all or part of the case;
(b)set aside a step taken or an order made;
(c)determine the case as if it were undefended;
(d)make any of the orders mentioned in rule 11.01;
(e)order costs;
(f)prohibit the party from taking a further step in the case until the occurrence of a specified event; or
(g)make any other order the court considers necessary, having regard to the main purpose of these Rules (see rule 1.04).
O’Ryan J in Brown v Brown [2004] FamCA 1067 referring to the Rules said at [156] as follows:
What is very clear from the case law and the provisions of the 2004 Rules is that it is fundamental that the rules of Court and/or procedural orders must be obeyed and the Court should not be reticent about exercising the powers in r 11.02(2) in appropriate cases. In my view, it is not necessary that the circumstances be “exceptional”. No litigant, whether legally represented or not, should harbour any doubt that manipulation of the Court's processes, through disregard of and deliberate non-compliance with its orders and directions will attract other than the strongest measures from the Court.
However as the Full Court said in Tate v Tate (2000) FLC 93-047 as follows:
99. In attempting to match the limited resources of the court to the demands of increasing lists, the principles of case management are assuming greater prominence. Never an end in themselves, they are and must always remain subject to and never prevail over the attainment of justice as “the paramount consideration”: Queensland v JL Holdings Pty Ltd (above). But justice in matters such as this is due to each party to litigation (see the comments of Kirby J in Allesch v Maunz(2000) 173 ALR 648 ; 26 Fam LR 237 at [38]–[40]…
…
108. Where, as here, non-compliance with the orders and directions of the court will, in the opinion of the trial judge, defeat the attainment of justice, then suitable remedies must be found…
As Kirby J said in State of Queensland v J L Holdings (1997) 189 CLR 146 at [7] as follows:
While taking all of the considerations relevant to the circumstances of the case into account, the judge must always be careful to retain that flexibility which is the hallmark of justice. New considerations for the exercise of judicial discretion in such cases have been identified in recent years. But the abiding judicial duty remains the same. A judge who ignores the modern imperatives of the efficient conduct of litigation may unconsciously work an injustice on one of the parties, or litigants generally, and on the public. But a judge who applies case management rules too rigidly may ignore the fallible world in which legal disputes arise and in which they must be resolved.
In this case it is not simply a matter of the husband either failing to comply with Bennett J’s orders or case management guidelines. As counsel for the wife submitted the husband cannot have it both ways. He cannot on the one hand assert as he has done that he is unfit to participate in the proceedings, not appearing either in person or by telephone, whilst on the other hand filing an application in a case and an affidavit which purports to respond to the wife’s affidavit in support of her application in a case. Whilst not appropriate for an affidavit either in the body of that affidavit or the annexures to it the husband has made what are in effect submissions in response to the wife’s application in a case as well as in support of his application for an adjournment. But then having done so he chooses not to appear at the hearing.
Counsel for the wife further submitted that not only was the husband able to file an application in a case and his affidavit in support of that application during the period of time which according to the further medical certificate he was “…unfit to appear or represent himself in court proceedings or duties” he has also corresponded by email both with Bennett J’s Associate and the ICL and on 14 September 2015 send a lengthy email to Dr J who has prepared a number of family reports in relation to this matter. It is also clear from the husband’s affidavit filed 17 September 2015 that during the same period he has provided to his psychologist Dr H a copy of the wife’s affidavit filed 8 September 2015 and sought his comments with respect to the contents of that affidavit annexing to his affidavit (marked Exhibit (6)) a letter from Dr H dated 16 September 2015.
In my view the further medical certificate upon which he relies does not adequately explain why the husband could not appear in circumstances where although he is described as suffering from mental and physical exhaustion causing lack of concentration and an inability to make and articulate any submissions and decisions to the Court, he has participated in all aspects of the proceedings except appearing at the hearing on 18 September 2015, including filing an application in a case and an affidavit in support of that application.
The orders the wife seeks have a significant degree of urgency. The husband was on notice that if he did not attend or was not represented at the hearing or did not otherwise comply with Bennett J’s orders that the matter might proceed in his absence. I am satisfied that the husband would understand his need to participate in the proceedings and he has previously done so not withstanding similar medical evidence which he said demonstrated that he was not medically fit to do so. The orders made by Bennett J on 9 September 2015 make that clear. I am also satisfied that even if he had not sought to appear by telephone that he would have understood that it was likely, given the history of these proceedings that an attempt would be made to contact him by telephone during the hearing.
I am satisfied that having regard to the husband’s conduct of the proceedings since August 2015 to which I have referred and all of the circumstances of this application that the husband’s failure to appear at the hearing on 18 September 2015 is on the balance of probabilities a deliberate attempt on his part to delay the determination of the wife’s application in a case filed 8 September 2015. I must weigh up the prejudice to both parties of, on the husband’s part proceeding with the application and on the wife’s part acceding to the husband’s request for an adjournment. In my view the prejudice to the wife and children both with respect to the parenting orders she seeks and the sale of the former matrimonial home in the event that the matter does not proceed far outweighs the prejudice to the husband in circumstances where he is not only aware of the proceedings and has chosen to participate in those proceedings but has failed to appear at the hearing. The likely prejudice to the wife and the children will be elaborated upon in my reasons with respect to the orders the wife seeks. On that basis I do not propose to accede to the husband’s request for an adjournment.
Orders for Supervision
There are two children of the marriage B who is six years of age and C who has just turned five years of age (“the children”). Pursuant to an interim order made by consent on 7 August 2013 the husband and the wife exercise equal shared parental responsibility for the children who live with the wife.
Paragraph 1.1 of the orders made by consent on 17 December 2013 provides that until further order the husband spend six hours each alternate weekend on a Saturday or a Sunday, with the day and time to be notified by the husband weekly in advance, such day and time primarily to accommodate the supervision of that time but to commence at 10.00 am and cease at 4.00 pm or as otherwise agreed. Paragraph 1.2 of that order, which the wife seeks to suspend, provides as follows:
All such time shall be supervised by any one or more of [Mr P] …, the paternal grandfather, [Mr Q Leone] and /or the father’s sister [Ms R Leone] or such other person or persons as the Independent Children’s Lawyer shall approve it being noted that the paternal grandfather and paternal aunt were interviewed by the Independent Children’s Lawyer and subsequently approved on the 3rd December 2013.
The wife in her application in a case filed 8 September 2015 seeks orders suspending paragraph 1.2 of the orders made 17 December 2013 and that in lieu thereof the husband’s time with the children be supervised at the husband’s expense by Ms S from S Community Services.
Although the ambit of the dispute is very limited the order sought by the wife is a parenting order and in those circumstances the Court must follow the statutory framework of the Family Law Act 1975 (Cth) (“the Family Law Act”) set out by the Full Court in Goode & Goode [2006] FamCA 1346 (“Goode”). When making a parenting order the Court must regard the best interests of the child as the paramount consideration (s 60CA of the Family Law Act). In determining what is in that child’s best interests the Court must consider the primary and additional considerations in s 60CC of the Family Law Act. Whilst the Family Law Act does not require the Court to consider these matters in any particular order the Court must when considering the primary considerations give greater weight to the need to protect the child from physical or psychological harm or from being subjected or exposed to abuse, neglect or family violence. The analysis of these considerations in determining the best interests of the child must be consistent with the objectives of the Family Law Act and the principles underlying those objectives.
The application before me today whilst being an application to substitute supervision of the husband’s time by either a friend or family members with a professional supervisor will also have the effect of reducing the children’s time with the husband to one occasion each month as a result of the limited availability of the proposed supervisor.
The Full Court in Goode at [68] referring to the decision of Cowling v Cowling [1998] FamCA 19said as follows:
In our view some of the comments of the Full Court in [18] are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The court also looks to the less contentious matters, such as the agreed facts and issues not in dispute….
This case, as is often the case when interim orders are sought, was conducted on the basis of the affidavits filed by the parties, letters and emails sent by the husband, submissions based upon that evidence and by reference to Johns J’s reasons for judgment delivered on 28 August 2015 and 13 September 2015. Significantly in my view as the evidence has not been tested counsel for the wife relied primarily in support of her case upon the husband’s affidavit filed 17 September 2015 and his conduct as evidenced by the emails he has sent which were either annexed to that affidavit or tendered by counsel and his conduct during or in relation to the recent hearings. Although she also referred to the evidence of Dr J, I note that the husband’s case is that Dr J’s evidence is flawed and that another expert should be appointed to prepare a family report. The wife also sought to rely upon the evidence of Dr K however similarly conceded that his evidence was also the subject of challenge by the husband.
The wife submitted in support of her case that the medical evidence upon which the husband himself relies raises concerns about his level of anxiety and distress. She further submitted that that together with the affidavit material the husband relies upon the emails sent to the Court and Dr J and his conduct generally, including the criminal charges he purports to have laid in the Magistrates’ Court at Melbourne against Dr J, Dr K, the wife’s solicitor, the ICL, Mr Beckett and Johns J, demonstrate an inability to control his behaviour and a lack of perspective about the wife and his views about the wife, the Court and these proceedings generally. Counsel referred in particular to the husband’s email to Dr J dated 14 September 2015 and his letter addressed to the Associate of Bennett J dated 16 September 2015. Even allowing for the fact that the husband is representing himself and may not understand what is and is not appropriate behaviour towards officers of the Court or employees of the Court, this particular email is totally inappropriate. It is aggressive and somewhat threatening, as is his email to Dr J, and in my view demonstrates a lack of control of his emotions as submitted by counsel for the wife.
I have also had regard to John J’s observations of the husband’s behaviour at the hearing before her on 7 September 2015 set out in her reasons for judgment delivered on 13 September 2015. In my view the husband’s behaviour on that occasion suggested not only a lack of respect for the Court but a lack of capacity not only to contain his emotions but also a lack of capacity to discern what might or might not be appropriate behaviour.
The wife’s case is in essence that if the husband cannot control his behaviour in the context of these proceedings it follows that there is an unacceptable risk that the husband will be unable to hide his level of anxiety and distress from the children or appropriately contain his behaviour so as to not involve the children in the dispute between he and the wife. In my view it is neither surprising nor unreasonable that the wife should hold such concerns given the husband’s behaviour.
Whilst the children’s time with the husband is currently supervised it is the wife’s case that those supervisors do not acknowledge that the husband’s behaviour might pose any risk to the children. To the contrary in the affidavit sworn by Mr Q Leone, the husband’s father, on 24 March 2015 he deposed that regardless of what had happened he had never heard the husband say anything against the wife and had never seen any sign of frustration when the husband is with the children. Ms R Leone, the husband’s sister, in her affidavit sworn on 24 March 2015 deposed that the husband did not need to be supervised. Mr P in his affidavit sworn 24 March 2015 similarly did not depose to any concerns about the husband’s behaviour.
As submitted by the ICL there is no evidence addressing any of the more recent issues that have arisen with respect to the husband’s behaviour. The husband also annexed to his affidavit filed 17 September 2015 (marked Exhibit (2)) a statutory declaration signed by Mr P on 14 September 2015. Although Mr P purports to respond to allegations contained in the wife’s affidavit with respect to what she says she has been told by the children he also goes on to eschew any possibility of the husband presenting any risk to the children. This in my view does not adequately address the issues with respect to the husband’s more recent behaviour.
The ICL has filed an affidavit setting out his views and upon which his submissions are based. Those views are set out in a letter addressed to the husband and the wife dated 16 September 2015 annexed to his affidavit sworn the same date. The ICL expressed his concern about the following matters:
·the husband’s demeanour and attitude leading up to and at the hearing before Johns J on 7 September 2015;
·the husband’s health issues as evidenced by the medical certificate provided to the Court in anticipation of the hearing on 7 September 2015; and
·that neither of the two nominated family supervisors have been present with the husband at Court on the last three hearings nor has he received any communication from those supervisors that they are available and prepared to provide ongoing supervision.
The ICL opined that in his view the wife as primary caregiver was “...entitled to be subjectively concerned as to the immediate safety and welfare of the girls”. He also commended the wife for not seeking to suspend the husband’s time with the children.
The ICL outlined in his letter to the parties that he had contacted Ms S from S Community Services, whom he said, having read her affidavit filed 12 August 2015 for the purpose of the final hearing, the children are familiar with, and that she had indicated that she would be prepared to facilitate and supervise the children’s time with the husband once each calendar month until further order at times to be agreed by her in consultation with the husband and the wife and at the expense of the husband provided that the husband prepaid for each spend time occasion.
The ICL submitted that notwithstanding Ms S could only supervise the children’s time with the husband on one occasion each month, whereas the current orders provide for time on a fortnightly basis, he supported the wife’s case that it was in the children’s best interests that their time with the husband be supervised, at least in the interim, by an independent and professional supervisor.
In Marvel & Marvel [2010] FAMCAFC 101 the Full Court said at [120] as follows:
As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children…
In my view this is a case in which the Court should take a conservative approach. I am satisfied based upon the way the husband has conducted himself that there is what appears to be an escalating level of anxiety and lack of containment and that there is a real concern that the husband will either be unwilling or unable to contain his behaviour in the presence of the children. In all of the circumstances I am satisfied, having regard to the need to protect the children from being exposed to the husband’s views about the wife being embroiled in these proceedings and his dispute with the wife, that the time he spends with the children should be supervised by Ms S as proposed by the wife and supported by the ICL. This is notwithstanding that at least in the interim it will reduce the time the children are able to spend with the husband.
It is also the case, even in interim proceedings, that where the Court is being asked to make a parenting order it must consider whether or not the presumption of equal shared parental responsibility applies and if it does whether it is in the child’s best interests and reasonably practical to spend equal or substantial time with each of his or her parents. In this case the parties have already consented to an order that they should exercise equal shared parental responsibility and hence the Court is required to consider, albeit the dispute is of limited ambit, whether or not the children should spend equal or substantial time with the husband. However in this case the parties have also previously consented to an order that the husband spend six hours each fortnight with the husband and that the time they spend with the husband be supervised time. In those circumstances I am satisfied, having regard to the parenting order that I am being asked to make and the orders to which the parties previously consented that it would not be in the children’s best interests or reasonably practical for the children to spend either equal or substantial time with the husband at this time.
Sale of the Former Matrimonial Home
The husband and the wife separated in September 2012. The wife vacated the former matrimonial home with the children at that time and the husband has since then and continues to occupy the property to her exclusion.
The wife deposes in her affidavit filed 8 September 2015 at [21] that on or about 4 September 2015 she was served with a Writ issued in the Supreme Court of Victoria on 29 July 2015 by the Australia and New Zealand Banking Group (“ANZ”), seeking possession of the property and payment in full of the mortgage in the sum of $470,789.84 together with interest on that sum at the rate of 4.58 per cent per annum. The wife’s evidence is that there are arrears owing in the sum of $22,462.01.
Counsel for the wife relied upon a letter sent by the husband to the wife’s solicitors dated 13 October 2014 in support of her submission that the husband was aware of his obligation to meet the mortgage payments. In that letter the husband said as follows:
With respect, a number of the assertions made in your letter are inaccurate and wrong. In particular, it is not the case that:
1.I have failed to satisfy my obligations to make mortgage repayments in relation to the property located at [U Street, Suburb O, Victoria] (the “Property”).
2.I have sought indefinite suspension of mortgage repayments in relation to the Property on the basis of financial hardship.
Accordingly, your client’s concerns as to my ongoing capacity to meet my financial obligations are without basis.
Although the husband in his email to Bennett J’s Associate dated 15 September 2015 says that he has not been served with the Writ that Writ is in any event annexed to the wife’s affidavit filed 8 September 2015. In that email the husband asserts that the matter must be heard in the Supreme Court of Victoria “...for the determination of the own ship (sic) of the property for which I did and still own the property fully for which I paid all monies at the time of purchase and paid all the loan repayments at all the times.” The husband does not address directly the wife’s evidence as to the arrears and it would appear that he misunderstands the nature of the relief sought by the ANZ. The husband also makes no proposal or suggestion other than disputing the ownership of the property as to how any arrears of mortgage might be satisfied in order to avoid the sale of the property by ANZ.
This is not a case in which action is threatened by the mortgagee. Rather it is a case in which the mortgagee has already issued proceedings in order to exercise its rights. The wife’s case is that the parties should immediately place the property on the market for sale rather than face the risks of a mortgagee’s auction. Whilst the ANZ cannot simply sell the property at any price, the wife’s position is in all the circumstances understandable.
The parties in this case are the joint proprietors of the former matrimonial home. The property was valued on 25 March 2015 at $905,000 by Mr W of X Valuers, who was appointed as the single expert to value the property for the purposes of the final hearing. Accordingly there is equity of some $434,000, not allowing for the costs of sale or any other liabilities there may be such as rates that may not have been paid by the husband. Caveats have also been lodged by the husband’s previous solicitors to secure their respective costs. The wife concedes by virtue of the orders she seeks those costs will need to be paid to enable the caveats to be withdrawn for the purposes of settlement of the sale. The wife in her application in a case also notes that the ICL has also lodged a caveat over the property in respect of the husband’s unpaid contribution to the ICL’s legal fees and the proposed an order for payment of the those fees at settlement. On the basis that his interests were protected by the investment of the net proceeds of sale pending further order the ICL did not pursue and order for the payment of his fees at settlement of the sale. That being the case an order needs to be made requiring the ICL to deliver a withdrawal of the caveat he has lodged to the wife’s solicitor in anticipation of settlement of the sale and I propose to order accordingly. I am also satisfied given that concession by the ICL that the net proceeds of sale of the property should only be released on the basis of an order.
According to the parties respective financial statements filed in the proceedings the equity in the former matrimonial home is the only asset of substance apart from the parties’ respective superannuation entitlements, their respective motor vehicles and the husband’s business which was included in his financial statement filed 25 March 2015 at $12,000.
The husband’s in his financial statement deposes that the mortgage payments are $685.00 per week. If the husband is not making the mortgage payments the equity is being further diminished with the passage of time and will continue to do so until the property is sold and the mortgage repaid and interest is accruing. The husband in his affidavit filed 17 September 2015 does not depose to the contrary save and except to the extent that in his email to Bennett J’s Associate dated 15 September 2015 he asserted that he “..paid all the loan repayments at all the times.” That is clearly not consistent with the particulars of the claim made by ANZ.
Although the husband in his email to Bennett J’s Associate suggests that this Court does not have jurisdiction to make the orders sought by the wife for the sale of the property that is clearly not the case. This Court has the jurisdiction and the power pursuant to s 114(1) of the Family Law Act to make the orders the wife seeks. Pursuant to s 114(1) of the Family Law Act the Court has the power, in proceedings between the parties to a marriage, to make such order or injunction, as it considers proper, in circumstances arising out of the marriage with respect to the matter to which the proceedings relate, including with respect to the property of the parties to the marriage. The application in this case is an application by the wife for an order or injunction with respect to property she and the husband own and arising out of the marital relationship. That proceedings have been instituted by the ANZ in the Supreme Court of Victoria does not alter this Court’s jurisdiction or power to make the orders the wife seeks.
I am satisfied that, in circumstances where the parties only substantial asset is on the balance of probabilities diminishing in value and a Writ has been issued by ANZ to take possession and effect a sale of the property, it is in the best interests of both the husband and the wife to proceed with an orderly sale of the property rather than have the property sold at the behest of ANZ. I propose to make the orders sought by the wife save and except as proposed by the ICL and adopted by the wife I propose to make an order that the proceeds of trust be held by TJ Mulvany & Co as the ICL, on behalf of the husband and the wife and rather than the wife’s solicitor as proposed by the ICL and adopted by the wife.
Although the matter proceeded in the husband’s absence, albeit not without some input from him by way of his affidavit filed 17 September 2015 to which I have had regard, I propose to give the husband liberty to apply on certain conditions to relist the matter for consideration of either the variation or discharge of these orders. However, I am not satisfied on the balance of probabilities that the husband was not fit to attend the hearing if not in person at least by telephone and in those circumstances I propose to grant him liberty to apply subject to him filing an affidavit explaining his failure to attend the hearing before me and his proposals and any steps he has taken to regularise the mortgage repayments on the property together with an affidavit sworn by Dr D setting out in detail the basis of his diagnosis and his opinion that the husband would be “...unfit to appear or represent himself in court proceedings or duties from 14/09/2015 to 11/10/2015 inclusive” and confirming his availability for cross-examination if required by the wife or the ICL.
Although I am hopeful that the husband will comply with these orders I have also made provision for the parties to have liberty to apply on short notice with respect to the implementation of the orders for the sale of the property.
I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 25 September 2015.
Associate:
Date: 25 September 2015
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