Leone and Cino (No 4) - [2015] FamCA 795

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Leone and Cino (No 4)

Details

AGLC: Leone and Cino (No 4) [2015] FamCA 795
Case: [2015] FamCA 795
Decision Date: 25 September 2015

CaseChat Overview and Summary

In the matter of *Leone and Cino (No 4)*, Macmillan J of the Family Court of Australia made orders concerning parenting and financial matters between the husband and wife. The dispute involved the suspension of existing parenting orders, the terms of supervised time between the husband and the children, and the sale of a property located at U Street, Suburb O, Victoria.

The court was required to determine the specific arrangements for the husband's future contact with the children, including the duration, frequency, and supervision of such contact. Additionally, the court needed to establish a comprehensive process for the sale of the parties' property, including the appointment of an agent, the setting of a reserve price, the responsibilities of each party in preparing and marketing the property, and the distribution of the sale proceeds. The court also addressed the potential for default in signing necessary documents and the procedure for relisting the matter.

Macmillan J ordered the suspension of previous parenting orders and stipulated that the husband would spend time with the children on one weekend per month, supervised by a nominated professional, with costs borne by the husband. Regarding the property, the court mandated its sale by public auction, detailing the process for agent selection, property preparation, and negotiation. The proceeds were to be applied first to sale costs, then to discharge the mortgage and any associated arrears, followed by the removal of caveats (excluding that of the Independent Children's Lawyer), with the balance to be held in a controlled monies account pending further order. The court also appointed a Registrar to sign documents on behalf of a defaulting party and granted liberty to apply regarding the sale implementation. The husband was given liberty to relist the matter on condition of filing specific affidavits concerning his absence from a prior hearing and proposals for mortgage arrears and his fitness to participate in proceedings.

Orders

Orders of the court

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;

(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.

10.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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