Leone and Cino (No 5) - [2015] FamCA 1221

FAMILY COURT OF AUSTRALIA

LEONE & CINO (NO. 5)

[2015] FamCA 1221

FAMILY LAW – CHILDREN – Application by the wife that the children live with her and spend no time with the husband – application by the wife for sole parental responsibility – where the husband has filed a notice of discontinuance and seeks no parenting orders – where the husband has refused to participate in supervised time and has not spent time with the children for six months – where the wife alleges that the husband has committed family violence – where the husband poses an unacceptable risk of physical and psychological harm to the children – final orders made that the wife have sole parental responsibility, that the children live with the wife and that the children spend no time with the husband.

FAMILY LAW – PROPERTY – Application by the wife that the husband vacate the former matrimonial home for the purposes of selling the real property and to enable the valuation of the personal property of the parties – application by the wife for a warrant for possession of the former matrimonial home pursuant to r 20.54 in the event that the husband fails to vacate the property – where the husband has been in sole possession of the former matrimonial home since separation – where the husband has failed to comply with previous orders for the sale of the former matrimonial home – where no orders for final property settlement can be made until the value of the assets of the parties is ascertained – where the mortgagee has commenced proceedings to enforce its rights under the mortgage secured against the former matrimonial home – orders made that the husband vacate the former matrimonial home and that the wife be appointed as trustee for the sale of the property – orders made that a warrant for possession issue in the event of the husband’s failure to vacate the former matrimonial home and upon the wife filing an affidavit of service of the orders and an affidavit confirming the husband’s failure to comply with such orders.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth): rr 10.11, 20.54

Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

APPLICANT:

Ms Cino

RESPONDENT:

Mr Leone

INDEPENDENT CHILDREN’S LAWYER:

TJ Mulvany & Co

FILE NUMBER:

MLC

3172

2013

DATE DELIVERED:

18 December 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

12 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Harris

SOLICITOR FOR THE APPLICANT:

Lawcorp Lawyers Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Tesoriero

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

TJ Mulvany & Co

THE RESPONDENT:

No appearance

Orders

Parenting

That all previous parenting orders be discharged.
That the wife have sole responsibility for making all decisions regarding the long-term care, welfare and development of the children of the marriage, namely B born … 2009 and…

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 5)

Details

AGLC: Leone and Cino (No 5) [2015] FamCA 1221
Case: [2015] FamCA 1221
Decision Date: 18 December 2015

CaseChat Overview and Summary

In the matter of *Leone and Cino (No 5)*, Johns J of the Family Court of Australia considered applications by the wife concerning the children and the former matrimonial home. The wife sought sole parental responsibility for the children, that they live with her, and spend no time with the husband. She also sought orders for the husband to vacate the former matrimonial home to facilitate its sale, and for a warrant of possession if he failed to do so. The husband had discontinued his parenting applications and ceased contact with the children, with the wife alleging family violence and an unacceptable risk of harm to the children.

The court was required to determine the parenting arrangements for the children, specifically whether to grant the wife sole parental responsibility and order that the children live with her and spend no time with the husband, considering the husband's alleged family violence and erratic behaviour. Additionally, the court needed to address the sale of the former matrimonial home, given the husband's sole possession since separation, his failure to comply with previous sale orders, and the mortgagee's enforcement proceedings. The court also had to consider the practical difficulties and expense of the children spending time with the husband, and the capacity of each parent to provide for the children's needs.

Johns J reasoned that the wife had fulfilled her obligation to maintain the children and that the husband had not always met his child support obligations. The court found that the existing arrangements, where the children had lived with the wife and had no contact with the husband since June 2015, represented no change and should continue, given the husband's erratic and concerning behaviour, including attempts to disrupt court processes, private criminal prosecutions against legal professionals involved, and ceasing contact with the children. The court was satisfied that the wife's concerns about the risk of harm to the children were well-founded and that their best interests were served by continuing the existing arrangements, meaning no orders for the children to spend time or communicate with the husband. Regarding the property, the court noted the husband's failure to comply with previous sale orders and the mortgagee's actions, concluding that no final property settlement could be made until the assets were valued.

Consequently, the court ordered that all previous parenting orders be discharged, that the wife have sole responsibility for the children's long-term care, that the children live with the wife, and that they spend no time with the husband. The court also appointed the wife as trustee for the sale of the former matrimonial home, ordered the husband to vacate within 21 days, and stipulated that a warrant of possession would issue if he failed to comply. The wife was authorised to take all necessary steps to sell the property, including dealing with the mortgagee and preparing the property for sale, with the Registrar appointed to sign documents on behalf of a defaulting party.

Orders

Orders of the court

Parenting

That all previous parenting orders be discharged.

That the wife have sole responsibility for making all decisions regarding the long-term care, welfare and development of the children of the marriage, namely B born … 2009 and C born … 2010.

That the children live with the wife.

That the children or either of them spend no time with the husband.

That the wife be at liberty to provide to any medical practitioner or allied health professional assisting the wife or the children or any of them copies of:-

(a) These orders;

(b) Any reasons for judgment in these proceedings;

(c) The report of Dr K dated 10 April 2014 and the reports of Dr J dated 31 July 2013, 22 June 2015 and 6 November 2015 provided that the wife inform the recipient of the reports that the reports are confidential to these proceedings and such confidentiality is governed by the provisions of the Family Law Act 1975 (Cth).

That the husband and the wife each be and are hereby restrained by themselves their servants or agents from denigrating the other or discussing these proceedings in the presence or hearing of the children or either of them or permitting any other person from so doing.

That all extant parenting applications be otherwise dismissed.

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.

Financial Matters

That the wife be and is hereby appointed as trustee for the sale of the property situate at and known as U Street, Suburb O in the State of Victoria (“the property”).

10.

That the wife in her capacity as trustee for the husband and the wife in respect of the sale of the property is entitled to do any or all of the following for the purpose of affecting the sale of the property on her own behalf and as trustee for the husband pursuant to these orders:-

(a) Instruct any solicitor or conveyancer to undertake the conveyancing of the property including signing any costs agreement and authorising any necessary disbursements for the preparation of a contract for sale;

(b) Instruct a real estate agent of her choosing to conduct a sales and marketing campaign for the property and thereafter the auction of the property including signing any agency agreement or authority for any reasonable disbursement for the sales and marketing campaign, to authorise the auction of the property, to set the reserve price for the property in consultation with the real estate agent, to negotiate with any prospective purchaser at any auction and authorise the acceptance of a sale price, and to authorise such other action as may be required to effect the sale of the property;

(d) Negotiate with the mortgagee, the ANZ Bank, any reasonable terms for the stay of any Supreme Court proceedings for enforcement of the said bank’s rights as mortgagee pending the sale of the property on behalf of herself and the husband;

(e) Sign any contract for the sale of the property;

(f) Sign any memorandum of transfer for the former matrimonial home in favour of a purchaser;

(g) Sign any other document required of the parties in order to give effect to the sale of the property;

(h) Authorise the payment of funds in satisfaction of the mortgage debt secured over the title to the property and any rates and charges with respect to the property upon the settlement of the sale;

(i) Authorise the payment of fees and disbursements to the real estate agent and lawyers or conveyancers engaged with respect to the sale of the property;

(j) Negotiate with any party holding a caveatable interest over the property to effect the removal of the caveat in a timely manner prior to the settlement of the sale of the property;

(k) Authorise the drawing of cheques for the disbursement of the proceeds of the sale of the property pursuant to these orders;

(l) Do any other act or thing necessary in order to effect the sale of the property.

11.

That forthwith the wife do all acts and things and sign all documents necessary to cause the property to be sold.

12.

That within 21 days of the date of these orders the husband do all acts and things as may be required to vacate the property and thereafter the wife be entitled to sole possession of the property for the purposes of conducting the sale of the property pursuant to these orders.

13.

That upon the husband vacating the property pursuant to order 12 hereof the husband be and is hereby restrained by injunction from entering upon or being within 500 metres of the property and from causing any other person acting on his behalf or upon his instruction to enter the property for any purpose until further order.

14.

That the husband be and is hereby restrained by injunction from doing any act or thing which has the effect of devaluing the property or causing damage or destruction to the property or any part of it or its surrounds, or causing or requesting any other person to do any such act or thing so as to devalue, damage or destroy the property.

15.

That in the event that the husband fails to comply with order 12 hereof within 21 days of personal service of a sealed copy of these orders upon him then upon the filing of:-

(a) Affidavit of service confirming personal service of these orders and Reasons for Judgment upon the husband; and

(b) Affidavit of the wife or her lawyer confirming that the husband has failed to provide vacant possession of the property to the wife in compliance with Order 12 of these orders, then

pursuant to Rule 20.54 of the Family Law Rules 2004 (Cth) a warrant of possession of the property issue authorising an enforcement officer to enter upon the property and to give possession of the property to the wife and the enforcement officer shall have the following powers:-

(i) To enter and search the property;

(ii) To seize the property;

(iii) To eject the husband from the property, he being the person who would not be legally entitled to be on the property pursuant to these orders; and

(iv) To take possession of and secure against any interference at the property which is the subject of the warrant of possession.

16.

That upon the wife taking vacant possession of the property she is authorised to:-

(a) Permit any other person to occupy the property for the purposes of effecting maintenance and repairs and to ensure that the property is secure;

(b) Undertake reasonable maintenance and rectification of the property for the purposes of the sale of the property including but not limited to:-

(i) Removing any rubbish;

(ii) Removing any motor vehicles and motor vehicle parts and causing the same to be stored and valued;

(iii) Removing any equipment and tools left by the husband at the property including equipment or tools which the husband uses in his trade and the wife thereafter cause such equipment to be stored and valued;

(iv) Undertaking any necessary repairs to the property for the purpose of preparing the property for sale;

(v) Authorise any other person to attend upon the property for the maintenance, rectification, repair of the property;

(vi) Do any other act or thing reasonably necessary to prepare the property for sale and to maintain it pending settlement of the sale.

17.

That in the event that either party refuses or fails to sign any document required in order to give effect to the sale of the property within 72 hours of such document being provided to that party (“the defaulting party”) then the Registrar of the Family Court of Australia is hereby appointed to sign such document on behalf of the defaulting party pursuant to s 106A of the Family Law Act 1975 (Cth) upon the filing of a written request by the other party and an affidavit in support from that party setting out the particulars of the act of default.

18.

That there be liberty to apply upon short notice to have the matter re-listed before Johns J with respect to the sale or the implementation of these orders.

19.

That on or before 28 January 2016 the Independent Children’s Lawyer (“the ICL”) file and serve any written submission upon which he seeks to rely in support of his applications for:-

(a) Costs; and

(b) Orders permitting him to provide copies of judgments, expert reports and orders produced in these proceedings to any court, tribunal or professional body seized of any complaint or prosecution with respect to the conduct of the lawyers or witnesses in these proceedings

such submission to be endorsed with the fact that it has been served on the other parties.

20.

That on or before 11 February 2016 the husband and the wife file and serve any submissions in response to the ICL’s applications pursuant to order 19 hereof such submissions to be endorsed with the fact that it has been served on the other parties.

21.

That any application made pursuant to orders 18 and 19 hereof be determined by the Trial Judge in Chambers.

22.

That the wife’s Amended Response to Initiating Application filed 10 February 2015 insofar as it relates to property be otherwise adjourned for mention before Johns J on a date to be fixed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Having regard to that unchallenged evidence I am satisfied that the wife has fulfilled her obligation to maintain the children. Further, I am satisfied that at times the husband has not fulfilled his obligations to pay child support as assessed by the Child Support Agency.(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:(i)either of his or her parents; or (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living; The orders sought by the wife are that the children live with her and spend no time with the husband. The children have been living under those circumstances since June 2015. Hence the orders as sought by the wife represent no change to the children’s current circumstances. Since June 2015 the husband has engaged in increasingly erratic and concerning behaviour. That conduct has included:-·a failure to comply with orders of the Court regarding the sale of the home, as detailed later in this judgment;·attempts by the husband to disrupt the Court process particularly during the hearings before me on 28 August 2015 and 7 September 2015 which conduct is referred to in my Reasons for Judgment dated 28 August 2015 and 15 September 2015; ·the husband’s approach and manhandling of the wife’s lawyer on William Street following an attendance at Court on 7 September 2015;[1]·the filing of private criminal prosecutions by him in the Magistrates’ Court of Victoria, alleging the wife’s lawyer, Dr J, Dr K, the ICL and an employee of the ICL had fabricated evidence in these proceedings;[2] ·discontinuing his pending applications before the Court; and ·ceasing to spend time with the children.[1] Wife’s affidavit filed 6 November 2015, paragraph 30.[2] Wife’s affidavit filed 6 November 2015, paragraph 32. The wife’s position is that the children must be protected from the husband’s unpredictable behaviour; it is her position that the children should live in a settled environment, that that environment should be preserved as a safe haven for them and that the children should be protected from any conduct by the husband which might serve to undermine or challenge that position. Having regard to my findings as to the risk of harm the husband poses to the children coupled with my findings as to the husband’s behaviour in the context of these proceedings, I am satisfied that the wife’s concerns are well founded and that the existing arrangements should continue, that is that the children should not spend time nor communicate with the husband.(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis; In circumstances where I am satisfied that it is not in the children’s best interests that there be orders for them to spend time or communicate with the husband this consideration is not relevant.(f)the capacity of:(i)each of the child’s parents; and(ii)any other person (including any grandparent or other relative of the child);to provide for the needs of the child, including emotional and intellectual needs:(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;