Leone and Cino (No 5)

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 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”).
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;
(c)Sign any request to discharge the mortgage registered over the property and give authority to discharge the same;
(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.
That forthwith the wife do all acts and things and sign all documents necessary to cause the property to be sold.
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.
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.
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.
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.
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.
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 Act1975 (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.
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.
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.
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.
That any application made pursuant to orders 18 and 19 hereof be determined by the Trial Judge in Chambers.
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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Leone & Cino 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 3172 of 2013

Ms Cino

Applicant

And

Mr Leone

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

On 12 November 2015 the wife’s application for final orders with respect to both parenting and financial matters was listed for hearing before me.
There was no appearance on behalf of the husband at that hearing, he having filed a Notice of Discontinuance on 13 October 2015. That Notice of Discontinuance sought to discontinue the whole of the husband’s Initiating Application filed on 23 April 2013.
In addition to filing the Notice of Discontinuance, on 13 October 2015 the husband also filed an affidavit affirmed that day. The husband deposed in that affidavit as follows:-
1.I [first name] of the family [Leone] being a sovereign and free man under God, am hereby writing this letter to formally remind and reconfirm to the court of my oral and written withdrawal of my participation in this matter on the 28th August 2015 Therefore anything prior to, on, or after that date with relation to these proceedings is null and void.
2.This affidavit is further confirmation that I do not consent to participate in these proceedings.
3.I am not under any contract that binds me to the Municipal Corporation which identifies itself as the Federal Court and the Family Law Courts.
4.I do not consent to any application or request for me to attend court or participate in proceedings, and any attempt to drag me into court or bind me into proceedings will initiate a claim for damages under common law, against any party who has initiated or made that application or request on, of, or against me.
5.I am not bound by any valid social contract to any of the parties or Municipal Corporation which obligates me to participate in their masquerades, such as and including these purported court proceedings.
6.Any contracts that I was fraudulently induced into entering or forced into entering, by any parties, or Municipal Corporations, such as the Federal Court, Family Law Court or Magistrates Court etc, are hereby declared to be void, invalid and of no lawful effect, because I was not provided full disclosure of the actual relevant details of the contract, or the details of the party purporting to contract with me.
7.On the 28th August 2015 I formally advised the Court that I discontinued these proceedings and a notice of discontinuance has been filed on this day with the court.
The husband has elected not to participate in these proceedings; indeed, it would appear from his affidavit that he does not accept the jurisdiction of this Court.
Notwithstanding the documents filed on behalf of the husband, at the commencement of the hearing I was informed by counsel appearing for the wife and the Independent Children’s Lawyer (“the ICL”) that an associate of the husband attended Court that morning and served upon them further correspondence purportedly from the husband. That correspondence was tendered on behalf of the wife and is Exhibit A1. Exhibit A1 is a letter from the husband addressed to me, my associate, the ICL, the wife’s solicitor and an employee solicitor of the offices of the ICL.
That letter confirms the filing by the husband of the Notice of Discontinuance on 13 October 2015. The letter then sets out the relevant provisions of r 10.11 of the Family Law Rules 2004 (Cth) (“the Rules”) regarding discontinuing a case, asserting that:-
… as no application for costs has been made by any of the parties, as of 28 days after the Notice of Discontinuance was filed with the Court and served on all the parties… then the matter is thereby terminated, and all applications in that case are closed indefinitely as of the expiry of the 28 day period ending at close of Court business on the 10^th day of November 2015.
The letter then notes as follows:-
I understand that the matter is listed for hearing on 12^th and 13^th November 2015, for defended hearing before Justice Johns, however as the case has been Discontinued on the 13^th day of October 2015, by the Applicant, there is no need for the Defended hearing to proceed; and so the hearing dates of the 12^th and 13^th of November must be vacated indefinitely.
Any basis for a contested hearing has been dissolved.
The assertions contained in that correspondence are misconceived. Although the letter recites r 10.11(3) of the Rules it appears to ignore the import of that provision. Rule 10.11(3) provides as follows:-
Discontinuance of a case by a party does not discontinue any other party’s case.
The wife has before the Court her Amended Response to Initiating Application filed 10 February 2015 in which she seeks final orders with respect to both parenting matters and financial matters. The wife now seeks to proceed with the hearing of those applications. The discontinuance by the husband of his Initiating Application does not preclude the wife from seeking final orders in respect of those issues.
I am satisfied, having regard to the husband’s actions in filing his Notice of Discontinuance and affidavit on 13 October 2015 that the husband is aware of the current proceedings and the hearing listed before me. That view is bolstered having regard to the content of the letter served on counsel for the wife and the ICL on the day of the hearing. I am satisfied that the husband is aware of the hearing and that he has elected not participate in the hearing.
The wife seeks to have her applications heard and determined. The refusal of the husband to participate in the proceedings is not a bar to the wife’s application proceeding. Indeed it would visit a substantial injustice upon her if she were prevented from prosecuting her claims. The husband was called at the commencement of the hearing. He did not appear in answer to that call. Accordingly, the hearing proceeded in his absence.

Material Relied Upon and Orders Sought by the Wife

The wife, who was originally the respondent in the proceedings but by virtue of the husband’s discontinuance is now the applicant, relied upon the following material:-
·outline of case document filed 10 November 2015;
·documents identified in paragraphs 4.0 to 7.0 inclusive of the wife’s case outline document; and
·affidavit of Ms Z filed 11 November 2015.
At the commencement of the hearing the wife sought orders in the terms of Annexure CC8 to the wife’s affidavit filed 6 November 2015. In summary, those orders are that:-
·the wife have sole parental responsibility for the children;
·the children live with the wife;
·there be no order as to the children or either of them spending time with the husband;
·pursuant to s 102QB(2) of the Family Law Act 1975 (Cth) (“the Act”), until 1 January 2019 the husband be prohibited from instituting any proceedings seeking parenting orders without first obtaining the leave of this Court;
·the wife be appointed the trustee for sale of the former matrimonial home and be entitled to legally do any or all of specified acts for the purpose of effecting the sale of the former matrimonial home;
·the wife forthwith cause the former matrimonial home to be sold;
·upon settlement of the sale of the former matrimonial home, the husband’s tools and motor vehicles the net proceeds of sale be distributed in the proportions of 80 per cent to the wife and the balance to the husband;
·the husband vacate the former matrimonial home by 4.00 pm on the day 14 days after the date of the making of these orders and thereafter the wife be entitled to possession of the property for the purposes of conducting the sale of the same pursuant to these orders;
·following the vacation of the former matrimonial home by the husband the husband be restrained by injunction from entering upon or being within a 500 metre radius of the boundary of the former matrimonial home and is further restrained by injunction from causing any other person acting on his instruction to enter upon the property for any purpose without the written permission of the wife of further order of the Court;
·in the event that the husband has not vacated the former matrimonial home by the time specified in these orders, pursuant to rr 20.54(1) and (2) of the Rules a warrant of possession of the former matrimonial home shall be issued authorising an enforcement officer to enter upon the former matrimonial home and to give possession of that property to the wife and the enforcement officer shall have the following powers:-
(a)to enter and search the said property;
(b)to seize the said property;
(c)to eject the husband from the property; and
(d)to take possession of and secure against any interference the said property which is the subject of the warrant of possession;
·once the wife is in possession of the former matrimonial home she is authorised to do the following:-
(a)permit any other person to occupy the former matrimonial home for the purposes of effecting maintenance and repairs and/or to ensure that the property is secure;
(b)undertake the reasonable maintenance and rectification of the property for the purpose of presenting the property for sale;
(c)authorise any person to attend upon the property for any reason;’
(d)cause any photographs to be taken of the property, its interior and surrounds; and
(e)cause any photographs to be taken of the property.
·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”) then in that event a Registrar of the Court is hereby appointed to sign any such document on behalf of the defaulting party pursuant to s 106A of the Act upon the filing of a written request and affidavit in support from the non-defaulting party setting out the particulars of the act of default;
·the husband pay the wife’s costs of and incidental to these proceedings;
·the wife have liberty to relist this matter before Johns J at short notice for the purpose of implementing these orders.

During the course of discussion between counsel for the wife and the Bench, it was conceded on behalf of the wife that she was unable to state with precision the extent of the financial interests of the parties or their value. It was conceded on behalf of the wife that until such time as she has access to the former matrimonial home where the husband’s motor vehicle collection, tools and equipment are stored, she was unable to identify the parties’ interests. In those circumstances the wife sought to press her application for vacant possession of the property so as to enable the orderly sale of the property to proceed and that otherwise the balance of her application for property orders be adjourned until such time as the sale price of that property was known and the wife was better placed to identify the nature and value of the parties’ interests.
Accordingly, the wife seeks to proceed with paragraphs 13, 14, 18-22, 24, and 26 of her application for property orders.
The wife also seeks parenting orders on a final basis in the terms of her case outline document. The wife does not press her application for a vexatious proceedings order against the husband. Accordingly, that part of her application will be dismissed.

Material Relied Upon and Orders Sought by The Independent Children’s Lawyer

The ICL relied upon the following material:-
·outline of case document filed 9 November 2015;
·affidavit of Dr J filed 7 July 2015;
·affidavit of Dr K filed 24 July 2015;
·affidavit of Ms S filed 12 August 2015; and
·addendum to the report of Dr J dated 6 November 2015 (Exhibit A2).
The ICL seeks orders in the terms of Part D of his case outline. In summary, those orders are that:-
·the wife have sole parental responsibility for the children;
·the wife inform the husband by pre-paid post of any major decisions made by the wife in relation to the education, health and/or allied health issues of the children provided that the wife at her discretion may not include details which would lead to the disclosure of the whereabouts from time-to-time of the wife or the children;
·the children live with the wife;
·save with the prior written consent of the wife the children spend no time nor communicate with the husband;
·the wife be at liberty to provide to any medical practitioner or allied health professional assisting the husband or the wife or the children copies of:-
·these orders;
·any Reasons for Judgment;
·copies of reports of Dr K and Dr J.

Background

The husband is aged 42 years. He is a qualified tradesman. The husband currently resides in the former matrimonial home at U Street, Suburb O (“U Street”).
The wife is aged 31 years. She is engaged in home duties and she also has casual employment as a clerk. The wife lives with the children in rental accommodation.
The parties were married in 2007 and separated on 5 September 2012. The parties were divorced on 25 July 2014.
There are two children of the marriage, B, who is aged six years and five months and C, who is aged five years and two months.
The parties have also had proceedings in the Magistrates’ Court of Victoria as a result of the wife’s application for intervention orders against the husband, and charges arising from the husband’s alleged breach of intervention orders made against him. A final intervention order was made against the husband in favour of the wife in October 2014. That intervention orders expires on 28 October 2019.

Chronology to the Proceedings

The chronology of these proceedings has been canvassed extensively in previous judgments. An abridged chronology of the proceedings is as follows.
On 23 April 2013, the husband filed an Initiating Application seeking parenting orders. The wife filed a response to Initiating Application in June 2013 seeking both parenting and property orders.
On 22 May 2013 at the first hearing of the husband’s application, orders were made for the appointment of the ICL. Orders were made by consent that day for the husband to spend time with the children on a supervised daytime basis.
Further interim orders were made by consent on 17 December 2013 that provided for the husband to spend six hours each alternate weekend on a Saturday or Sunday with the children, such time to be supervised by Mr P, the paternal grandfather and/or the husband’s sister or such other person as approved by the ICL.
The matter was listed in my docket in late-2014.
On the first day of hearing before me on 17 February 2015 I made directions listing the matter for final hearing. That trial was listed to commence on 25 May 2015.
At a mention hearing before me on 23 April 2015 application was made to vacate the listed trial date due to delays in the completion of the report of the Family Consultant. As a result of that application I made orders vacating the trial date and listing the matter for final hearing before me to commence on 17 August 2015. I also made orders extending the time for compliance with orders regarding the filing of the Family Report and other affidavit material.
On 13 August 2015, the matter was listed for an urgent mention as a result of the husband sending emails to my associate requesting an adjournment of the final hearing for four weeks due to his health issues. Notwithstanding that the matter was listed for mention at the behest of the husband, he did not appear at that mention hearing. On 12 August 2015 the husband forwarded an email to my associate which listed a range of complaints but with respect to the adjournment issue stated as follows:-
I cannot attend court due to the seriousness of my health condition please read the two independent doctors [sic] report it clearly states my condition specifically it says I have a fever and other condition.
…
Please adjourn the hearing for 4 weeks or over until such time my heath [sic] gets better and my doctors give me the clearance of my health conditions.
Despite attempts by the ICL to telephone the husband whilst the matter was stood down on 13 August 2015, I was informed by the ICL that he was unable to communicate directly with the husband.
On 14 August 2015 I made orders vacating the final hearing date and adjourned all extant applications for final hearing before me on 7 September 2015. I also made orders requiring the husband to file and serve an affidavit explaining his non-appearance at the mention date before me on 13 August 2015. I otherwise listed the matter for mention before me on 28 August 2015 to ensure that the matter was ready for final hearing.
At the mention hearing on 28 August 2015 the husband made an oral application seeking orders that:-
·I disqualify myself from hearing the matter on the grounds of bias;
·The ICL be prohibited from relying upon the evidence of Dr J and Dr K;
·A further Family Report be prepared by a Family Consultant other than Dr J and that there be a further psychiatric assessment of the parties.
Upon hearing submissions from all parties with respect to the husband’s oral applications I dismissed each of those applications. I also made orders with respect to the payment of the ICL’s costs for the trial, he having been engaged by the parties on a private basis.
On 4 September 2015, the husband filed a Notice of Appeal in which he sought to discharge the orders made by me on 28 August 2015. The grounds of appeal relied upon by the husband were stated as follows:-
The orders as made by Justice Johns on the 28^th August 2015, in this matter are Oppressive, Unjust, Discriminatory, and a Denial of Natural Justice against the Applicant, and also they are an Obstruction and a Perversion of Justice in these proceedings, because they seek to restrict the evidence in the proceedings to outdated and innacurate [sic] material that is, incomplete, discriminatory, incompetent and to the detriment of the applicant and a fair trial.
On 7 September 2015 the husband was granted leave to file an Application in a Case in which he sought inter alia a stay of the proceedings pending a determination of his appeal. That application was opposed by the wife and the ICL. On 15 September 2015 I made orders staying the hearing of the parties’ competing applications for final orders, such stay to be conditional upon the husband doing all acts and things as may be required to prosecute his Notice of Appeal dated 4 September 2015 expeditiously.
The husband’s appeal was listed to the October 2015 Full Court sittings. However, due to the husband’s failure to file his appeal books in accordance with the Rules, the husband’s appeal was struck out.
On 8 September 2015 the wife filed an Application in a Case seeking that the orders for the husband’s time with the children be varied to provide that that time occur under supervision by S Family Services and that U Street be sold. The application for the sale of U Street was made as a result of the wife being served on 4 September 2015 with a writ issued in the Supreme Court of Victoria on 29 July 2015 by the Australian and New Zealand Banking Group Ltd (“the ANZ Bank”) seeking possession of that 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. At the time of that application the wife’s evidence was that the arrears owing on the mortgage were in the sum of $22,462.01.
That application was listed for telephone mention by Bennett J on 9 September 2015. The husband did not appear by telephone or otherwise on that day. At the telephone mention Bennett J listed the application for hearing in the discrete Judicial Duty List on 18 September 2015.
The husband filed an Application in a Case and an affidavit in support on 17 September 2015, seeking inter alia that the wife’s Application in a Case be adjourned until the end of October 2015. The husband did not appear in person or telephone on the day of the discrete Judicial Duty List on 18 September 2015. Following submissions from counsel for the wife and the ICL, Macmillan J reserved judgment with respect to those issues.
On 25 September 2015, her Honour delivered judgment in respect of the wife’s application in a case and made orders, in summary, that the husband’s time with the children be supervised by S Family Services and that U Street be sold. Macmillan J also made orders that the husband have liberty to apply to relist the matter for mention before her Honour on or before 4.00 pm on 5 October 2015 conditional upon the husband filing and serving upon all other parties:-
(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.
Although the husband sought to file an Application in a Case on 4 October 2015, due to his failure to file an affidavit in compliance with the orders of Macmillan J that application was rejected by the Court.
The orders with respect to the sale of U Street provide as follows:-
(3)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.
(4)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.
(5)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.
(6)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.
(7)The parties have liberty to apply on short notice with respect to the implementation of the orders for sale.
On 13 October 2015 the husband filed a Notice of Discontinuance with respect to his Initiating Application. On that same day the wife’s solicitors requested that the matter be listed for mention before me. The matter was subsequently listed for mention before me on 22 October 2015. At that mention date, both counsel for the wife and ICL made submissions that the matter be listed for final hearing before me on an undefended basis. The husband did not appear on that day.
On 22 October 2015, I made orders as follows:-
(1)That all extant applications be listed for final hearing before me as a two-day matter to commence on 12 November 2015.
(2)That on or before 4.00 pm on 6 November 2015 the wife file and serve any further amended Response to Initiating Application and affidavits upon which she seeks to rely.
(3)That the Independent Children's Lawyer (“the ICL”) have leave to file and serve any further affidavits upon which he seeks to rely including an affidavit of Dr [J], annexing any addendum to her previously filed affidavits.
(4)That the wife and the ICL file and serve any further Outline of Case upon which they seek to rely by 4.00pm on 10 November 2015.
(5)That there be leave for Dr [J] to give her evidence via telephone link at the final hearing.
(6)That the ICL cause a copy of this order to be served upon the husband by email and pre-paid post to [U] Street, [Suburb O] and file an affidavit of service confirming compliance with this order.
The matter ultimately proceeded as an undefended hearing on 12 November 2015.

Parenting Matters

The Relevant Legal Principles

Section 60B(1) of the Act sets out the objects of Part VII of the Act. Those objects are to ensure the best interests of children are met by:-
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):-
·children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
·children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·parents should agree about the future parenting of their children; and
·children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The wife seeks parenting orders as defined pursuant to s 64B of the Act. That is, she seeks orders with respect to with whom the children are to live and spend time and the allocation of parental responsibility.
In determining a particular parenting order, the best interests of the child is the paramount consideration (s 60CA). Section 60CC(2) and (3) set out the primary and additional considerations the court must consider in determining what is in the child’s best interests. I will return to those considerations in detail below.
There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA). The presumption relates to the allocation of parental responsibility. It does not relate to the time the child spends with each parent. Where there are reasonable grounds to believe that a parent of a child has engaged in abuse of the child, or family violence the presumption does not apply (s 61DA(2). Further the presumption may be rebutted if the court is satisfied that it would not be in the child’s best interests for the parents to have equal shared parental responsibility for the child (s 61DA(4)). For the reasons set out below, I am satisfied that the presumption is rebutted and that it is not in the children’s best interests that the parents have equal shared parental responsibility.

If a parenting order provides for equal shared parental responsibility the court must consider whether it is in the children’s best interests and reasonably practicable for the children to spend equal time with each parent (s 65DAA(1)) or substantial and significant time with each parent (s 65DAA(2)). Given that I am satisfied that the presumption is rebutted and it is not in the children’s best interests that the parents have equal shared parental responsibility, the provisions of s 65DAA do not apply to this case.
Findings are made on the balance of probabilities having regard to the evidence. Without limiting the matters that the Court may take into account, s 140(2) of the Evidence Act 1995 (Cth) provides that in applying that standard of proof, the Court must take into account the following:-
·the nature of the cause of action or defence; and
·the nature of the subject matter of the proceeding; and
·the gravity of the matters alleged.
In determining the matter I have had regard to the evidence and had the benefit of observing the appearance and the demeanour of the wife. I have carefully considered the matter and in making findings to the requisite standard I have had regard to all of the evidence, the nature of the proceedings, the seriousness of the allegations and the consequences that flow from my findings.

The Issues

The issues for determination are as follows:-
·whether the children have been exposed to family violence and the need to protect them from exposure to the same;
·the allocation of parental responsibility;
·with whom the children live and what time if any should be spent with the other parent;
·whether the children spend time with the husband; and if so
·whether the husband’s time with the children should be supervised.
The issues can most conveniently be discussed within the s 60CC considerations. I will first consider the primary considerations under s 60CC(2).
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
It is conceded by the wife that the children have an established relationship with the husband and that the children enjoy the husband’s company. The caveat on that concession is that that enjoyment is subject to the husband maintaining a contained and appropriate disposition when with the children.
It is alleged on behalf of the wife that historically the husband has been unable to regulate his behaviour. As a result, the children have been exposed to abuse and family violence. The wife asserts that the children are aware of the dispute between their parents and as such the benefit to the children of having a meaningful relationship with their father in those circumstances is compromised.
The question of what is a meaningful relationship was considered by Brown J in the decision if Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518. Her Honour concluded at paragraph 26 of that judgment that a meaningful involvement is “one which is important, significant and valuable to the child”. Ordinarily it is in a child’s best interests to have a meaningful relationship with both parents, one that is important, significant and valuable as defined by her Honour.
In McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 the Full Court considered the interpretation of s 60CC(2)(a) and concluded that:-
119. … the preferred interpretation of the benefit to a child of having a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents...
…
122. In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
(Original emphasis)
The children have lived with the wife since separation. Their time spent with the husband has been subject to supervision. However, due to the husband’s refusal to participate in supervised time, the husband has had no time with the children since 28 June 2015.
Further, the husband has no current application in relation to the children; at this point in time, the husband does not seek parenting orders, whether to spend time or communicate with the children. In the circumstances, I am satisfied that there is little benefit to the children in attempting to craft orders for them to spend time or communicate with the husband when he does not seek that time and the Court could have no confidence he will avail himself of any opportunity to spend time with the children pursuant to such orders.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
The proceedings commenced upon the husband’s Initiating Application filed 23 April 2013. Accordingly, the provisions of s 60CC(2A) apply. The Court is required to give greater weight to the considerations set out in s 60CC(2)(b) of the Act.
At the heart of the wife’s application are her allegations that the husband has been violent and abusive throughout their relationship. The wife alleges that the children have been exposed to the husband’s violent and intimidating behaviour.
In her affidavit filed 21 April 2015 the wife deposes as to the history of family violence experienced by her prior to separation. She deposes to a history of the husband regularly losing his temper with her, yelling and screaming at her and then apologising for his aberrant behaviour. The wife deposes as to the husband’s criticisms of her, including that he would yell at her for not maintaining the home to his exacting standards.
At paragraph 10 of that affidavit the wife deposes that the children were present at times when the husband lost his temper and displayed aggression towards her. The wife deposes as to the children’s response to the husband’s behaviour as follows:-
… They would cling to my legs, crying and screaming when [the husband] yelled at me. [The husband] did not stop yelling or screaming at me if the children were upset. Some of the first sentences [the children] spoke were words to the effect of: “Daddy hurt mummy. Don’t cry mummy.”
At paragraph 12 of that affidavit the wife deposes as to an event in early 2011 when the family was travelling in the car. The wife deposes that on that occasion the husband became angry with her and pulled the rear-vision mirror off the windscreen of the car, cracking the windscreen. The damage to the windscreen angered the husband further and he responded by throwing the mirror into the footwell of the passenger seat causing a cut to the wife’s leg. The wife deposes that the children were screaming and crying throughout that incident.
At paragraph 14 of that affidavit the wife deposes to an incident in August 2012 when the husband became angry in the kitchen of the former matrimonial home and punched a hole in the wall in frustration. That incident occurred in the older child ’s presence.
At paragraph 18 of that affidavit the wife deposes as to the threats made by the husband to her. The wife deposes that those threats were made regularly and included words such as:-
·“if you leave me I will hunt you down and kill you”;
·“if you try to leave I will take the kids and you will never see them again”; and
·“if you ever think of leaving me I will hunt you down and find you and you will never see your children again. I will kill you”.
The wife deposes that the husband did at times acknowledge his violent behaviour towards her. In September 2012 the husband consulted with a psychologist, Ms Y. The husband provided to the wife an email received by him from Ms Y dated 6 September 2012. That email referred to a consultation of Ms Y with the husband that day. The second paragraph of that email noted as follows:-
… You presented because you felt very distressed at your marriage problems, which I understand have a lot to do with your controlling and difficult (your own words) behaviour towards your wife. As a woman and a professional, I would never condone any type of violance [sic] towards women and as I mentioned to you several times there is no excuse for bad behaviour. However, I was impressed that you so clearly took full responsibility for your actions, did not blame your wife and further more were looking for ways in which you could better yourself.
The wife also deposed that in November 2012 she received a letter from a Community Health Service regarding the husband’s attendance on that service for assistance “to try to stop his use of violent and/or controlling behaviour”.
The wife also deposes as to her exposure to family violence at the hands of the husband after the parties’ separation. She deposes as to difficulties with changeovers for the children, an event in December 2012 where she alleges the husband grabbed her by the shoulder and pulled her away from his car; an event in February 2013 when the husband yelled and swore at her during a changeover and an occasion in March 2013 when the husband grabbed the door of the wife’s car and would not release it to enable her to leave with the children.
At paragraph 29 of her affidavit, the wife deposes as to the circumstances of a changeover effected on 14 April 2013. The wife deposes that the parties had agreed to changeover occurring at her home that day. Notwithstanding that agreement, she deposes that the husband sought to change the venue for changeover and refused to tell her of his location with the children. When the husband eventually arrived at the wife’s home he brought the older child, who was crying, inside. The wife deposes that the husband then came to the front door holding the younger child and would not let her go, saying words to the effect of “I’m not letting her go until I see [B] again”. The wife deposes that both children were crying hysterically, that the husband started yelling and banging on the front door and the glass panels around the front door for a period of approximately 30 minutes. As a result the police were called.
Following that incident on 15 April 2013 the wife applied for a Family Violence Intervention Order and an ex-parte interim order was granted. The husband consented to an intervention order without admissions on a final basis on 13 November 2013.
Following that order being made the husband, in breach of the order, posted photos and messages regarding the children and the Family Court proceedings on his Facebook page. As a consequence on 3 April 2014 following charges in relation to six alleged breaches of the intervention order, the husband admitted the breaches and accepted a diversion plan.
On 10 October 2014 the wife applied for an extension to the intervention order to have the children listed on the order. That application was resolved on 28 October 2014 upon the husband giving an undertaking to the Court that he would not commit family violence.
The wife’s evidence in relation to the allegations of family violence is unchallenged. The wife’s evidence as to the husband’s conduct during the marriage and after separation provides a detailed and compelling account of conduct by the husband that is threatening and abusive and designed to engender fear in the wife. The wife’s evidence is that the children have also been exposed to that conduct. I accept that evidence.
The parties have attended Dr J for observation and assessment. Dr J is a psychologist in private practice who has prepared two Family Reports in the proceedings. She has had the opportunity to observe the parties across two assessments in June 2013 culminating in her report dated 31 July 2013 (“the first report”) and in April and May 2015 culminating in her report dated 22 June 2015 (“the second report”). Both reports are annexed to Dr J’s affidavit filed 7 July 2015.
In the second report, Dr J notes at page 13 that the older child is attending counselling with a psychologist for treatment of symptoms related to post-traumatic stress disorder. Dr J notes the wife’s concerns regarding the violent themes exhibited in the child’s play and that the child suffers nightmares before and after visits with the husband. Dr J also reports of the older child’s disclosures of her memories of violent behaviour by the husband towards the wife. Dr J notes in her report that the child stated to her, her recollection of the husband yelling at the wife, that the husband does not like the wife and that the child exhibited protective behaviour towards the wife.
Dr J reports similar observations of disclosures by the younger child. At page 14 of the second report Dr J notes:-
When I asked [C] about what she does not like about seeing her father, she said “a long time ago he screamed at mummy while she was driving. Mummy said stop and he kept talking and he wouldn’t stop”. She said “he doesn’t like mummy”.
(Original emphasis)
Dr J conducted psychometric testing of both the husband and the wife. In the second report, Dr J concluded that she found the wife to be a person who is genuinely very fearful of the husband.
Further, Dr J observed the husband to have difficulty containing himself when he knew that the wife was nearby. Indeed during the assessment of the husband for the second report Dr J reports of the husband’s demands that he should be seen with the wife and that when refused that request he became agitated to the point where Dr J doubted her own capacity to contain the husband. As a result of Dr J’s concerns with respect to the husband’s behaviour, the interviews and observations of the wife with the children were suspended to a later date.
In the conclusions of the second report, Dr J observes the husband’s presentation to be very concerning. She notes that the information provided by him was unreliable and that his emotions were barely contained. At page 18 of the second report Dr J notes that the husband presented as:-
… difficult to contain and although he came to the assessment clearly with the intention to convince that he does not have anger management problems, he could not manage his emotions and became more agitated particularly when he became aware of [the wife’s] close proximity… [the husband] presented very much as having obsessive and hostile thoughts towards [the wife]. His behaviour was barely controlled and he was determined to confront her. He had no thought for the children’s experiences.
It is my opinion that [the wife’s] concerns about [the husband] are likely to be well-founded.
[The husband] appears to have aspects of his personality that are warm, dynamic and charming, but he also appears to have considerable difficulty with impulse control and an egocentric approach. My assessment of him found that he continues to hold a high level of hostility towards [the wife] and takes a possessive approach to her and the children.
As a result of those observations Dr J’s view was that she could not recommend that the children spend unsupervised time with the husband.
Whilst previously, the husband has denied allegations of violent and abusive behaviour, the evidence of the wife as to being subjected to threats, verbal and physical abuse at the hands of the husband is unchallenged; so too is her evidence that the children have been exposed to that behaviour by the husband. That evidence, coupled with the unchallenged observations of the husband’s behaviour by Dr J support the view that the husband does pose a risk of harm to the children; there is a history of family violence prior to the parties’ separation and the conduct of the husband since that time, even in the presence of the Family Report writer indicates that the husband continues to have difficulty in containing his aggression.
Having regard to that evidence, I am satisfied on the balance of probabilities that the husband, due to his inability to contain his threatening, abusive and violent behaviour poses an unacceptable risk of harm to the children and that the children should be protected from that behaviour.
I must now consider the additional considerations pursuant to s 60CC(3).
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The older child, B, is aged almost six and a half years and the younger child, C, is aged five years. Having regard to the children’s young ages I am satisfied that little weight can attach to their expressed views.
That the children have an enjoyable time when with the husband is not in issue. The central issue for determination is whether the children can safely enjoy that time with the husband and whether orders facilitating such time are appropriate in the circumstances of this case.
(b)the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
The children enjoy a warm and loving relationship with the wife who has been their primary carer since birth. Dr J reports that both children share a loving and affectionate relationship with the wife. The older child is reported to state that she likes her mother hugging and kissing her and that she could not think of anything that she did not like about spending time with the wife. Similarly, the younger child reported to Dr J that she liked everything about the wife.
During observation of the children with the wife, Dr J reports at page 15 of the second report that the wife was:-
… warm and affectionate towards the children and they showed familiarity and comfort in her care. [The wife] was very gentle, patiently assisted the children, delighted in their personalities and carefully managed both children.
Dr J’s observations of the children with the husband were also positive. He was observed to be warm and loving and displayed a natural style of parenting with the children. The husband was engaged in their play and managed both children easily. Both children were observed to be eager to play with the husband.
I am satisfied, having regard to the observations of Dr J, that the children enjoy a loving and positive relationship with both parents.
However sadly, from the children’s perspective, the husband’s inability to contain his emotions and manage his behaviour has impacted on his opportunity to spend time with the children. Since the time of the observations by Dr J, the husband has elected to withdraw from the children’s lives preferring to spend no time with the children rather than avail himself of the opportunity of supervised time with them.
The evidence of the contact supervisor, Ms S, who swore an affidavit filed 12 August 2015 regarding five occasions upon which she supervised the husband’s time, indicates that the children also enjoy a comfortable and relaxed relationship with members of the extended paternal family and with the husband’s partner and her children. I accept that evidence.
(c)the extent to which each of the child’s parent has taken, or failed to take, the opportunity:
(i)To participate in making decisions about major long-term issues in relation to the child; and
(ii)To spend time with the child; and
(iii)To communicate with the child

The husband has failed to spend time with the children since late-June 2015, notwithstanding orders permitting him to spend supervised time with them.
Pursuant to the orders of 25 September 2015 the husband was permitted to spend time with the children on a monthly basis, that time to be supervised by Ms S who has previously provided supervision for the family. The unchallenged evidence of the wife, as contained in her affidavit filed 6 November 2015, is that notwithstanding those orders the husband has not sought any time with the children since those orders were made.
The husband has discontinued his application to spend time with the children and has effectively withdrawn from their lives.
The responsibility for providing for all aspects of the children’s long-term and day-to-day care has fallen to the wife. Upon separation the wife was primarily responsible for the children’s physical, emotional and intellectual care and well-being and since 28 June 2015 she has been solely responsible for all aspects of the children’s care without support or assistance from the husband.
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child
The wife is engaged in part-time employment and otherwise is reliant upon government benefits to support the children. In her financial statement filed 21 April 2015 the wife deposes that the husband is required to pay the sum of $50 per week for the support of the children. In her affidavit filed 21 April 2015 the wife deposes at paragraph 69 that the child support received from the husband varies from $160 to $270 per month. She deposes that due to the variability in that child support she is dependent upon assistance from her mother who provides her with cash from time-to-time.
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;
The wife has had the primary care of the children since separation. She has been solely responsible for providing for their physical, emotional and intellectual needs since late June 2015.
In the second report of Dr J, the children are observed to be well-dressed and appear to have a high level of physical care. Dr J also observed the children to be confident, social and happy little girls.
Accordingly, I am satisfied that the wife has demonstrated a strong commitment to her role in parenting the children and there is no challenge to her capacity to meet all of their physical and emotional needs.
As noted earlier, there are significant concerns as to the capacity of the husband to regulate and moderate his behaviour towards the wife and in the presence of the children. The content of the affidavit filed by the husband on 13 October 2015 indicates that he has focussed his energies on challenges and criticism of the Court system rather than the needs of the children; indeed it would appear that he has lost sight of the children’s needs, instead channelling his energies upon his attack of the Court system.
Dr J’s assessment of the husband is set out at page 18 of the second report. She stated:-
Unless [the husband] seeks out some therapy that challenges his behaviour and thinking and genuinely commits to changes in his behaviour, it is difficult to envisage at this point in time how and when the children might be considered safe in his care.
Dr J reiterated those views in her supplementary report (Exhibit A2).
The parties were psychiatrically assessed by Dr K, consultant psychiatrist. Dr K’s report dated 10 April 2014 is annexed to his affidavit filed 24 July 2015. Dr K’s conclusions as to the husband are set out at pages 12 - 13 of his report as follows:-
Given [the husband’s] apparent lack of insight into his angry mood states, potential for aggressive behaviours and reports of threatening comments, I would recommend he be required to complete an Anger Management program and Men’s Behaviour Change program. [The husband] does not present as mentally ill; rather the problems detailed represent aspects of his personality profile. [The husband] clearly wants to be an involved parent in the children’s lives. He needs to learnt [sic] and gain insight into the detrimental impact on a child being exposed to angry parents. He also needs to better be able to self-regulate, as it can be reasonably expected that the children will regularly test his frustration tolerance.
At page 13 of that report Dr K summarises his observations of the wife as follows:-
[The wife] appears to have been traumatised by [the husband] with an associated elevation in anxiety well beyond her baseline level. [The wife] could foreseeably benefit from therapy to address elements of her personality difficulties…
The evidence of Dr J and Dr K was not challenged. Dr K’s observations of the husband’s difficulties in regulating his behaviour are consistent with those of Dr J and the wife. As these proceedings have progressed towards final hearing, the focus of the husband’s energies has been towards challenging the court system and the lawyers and experts acting in the proceedings, rather than addressing the issues identified by the wife and the expert witnesses; at this point in time, in circumstances where there is no evidence before me that the husband is seeking to adopt the recommendations of Dr J and Dr K, I have significant concerns as to the husband’s parenting capacity. I am satisfied, having regard to that evidence, that the husband has limited ability to self-regulate his behaviour and that this adversely impacts upon his capacity to parent the children.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
To the extent that these matters are relevant they are referred to earlier in the judgment.
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
This consideration is not relevant to the matter.
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
I have addressed the issues with respect to family violence earlier in this judgment.
Having regard to the unchallenged evidence of the wife and Dr J, I am satisfied that the wife and the children have been subjected to family violence by the husband.
The wife is a protected person pursuant to a Family Violence Intervention Order made on 27 October 2014 in the Magistrates' Court of Victoria. That order expires on 28 October 2019. Further, the husband has admitted breaches of an earlier intervention order and entered into a diversion program as a consequence of those admissions.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
There is no question as to the desirability of orders finalising proceedings between the husband and the wife. The children have been the subject of litigation between their parents since they were aged three and two respectively. It is likely that they cannot recall a time in their lives when their parents have not been locked in litigation.
The impact of the conflict between the husband and the wife upon the children is significant. At age six, the older child is attending counselling with a psychologist for treatment of symptoms of post-traumatic stress disorder; this is a tragic by-product of the conflict to which she has been exposed.
The evidence of Dr J and Dr K indicates that the husband has significant difficulties in containing and regulating his behaviour. The wife annexes to her affidavit filed 21 April 2015 correspondence received by her from the husband dated 6 September 2012 and 31 October 2012 (annexures A and B to that affidavit) which would suggest that the husband has sought, at least at that time, counselling in respect of that behaviour. Sadly, from the children’s perspective, it would appear that the husband has not continued with such counselling intervention; the husband’s behaviour since June 2015 supports the view that he continues to be unable to regulate his behaviour, whether in the company of the wife, with professionals such as Dr J or indeed in a Court setting.
Until such time as the husband addresses in a meaningful way the issues identified by Dr J and Dr K, it is difficult to envisage a circumstance where the children could spend time with him.
(m)any other fact or circumstance that the court thinks is relevant.
There are no other relevant facts or circumstances.

Conclusion

The first matter to be determined is the allocation of parental responsibility. The wife seeks an order that she have sole parental responsibility for the children. That application is supported by the ICL. Initially, the ICL sought an additional requirement that the wife inform the husband of any proposed major decisions affecting the children. However, upon hearing the evidence of Dr J, the ICL did not press that issue.
The wife opposes a requirement that she inform the husband of any proposed decisions.
Dr J was cross-examined in relation to her views with respect to the competing proposals of the wife and the ICL. Dr J provided a supplementary report in relation to the material filed since her previous report. That short report is dated 6 November 2015 and is Exhibit A2.
Dr J noted in that report that:-
… [The husband’s] behaviour and correspondence over recent weeks are consistent with my assessments and observations of him as having little emotional control. His behaviour does not reassure about his capacity to manage himself appropriately and his increasingly bizarre allegations and actions are not in accord with someone who is simply distressed and stressed by the family law process.
I remain greatly concerned about [the wife’s] personal safety.
I would also hold very strong concerns for the physical and emotional safety of the children if they were to see their father on an unsupervised basis.
During cross-examination Dr J was asked to express a view as to whether or not there should be a requirement that the wife inform the husband of any proposed decisions concerning the children’s care, welfare and development. Dr J’s response to that proposal was that she would be worried by such a requirement as it would likely increase the wife’s levels of anxiety and potentially inflame the husband. Further, Dr J considered that any heightened anxiety in the wife would likely impact on her ability to care for the children. Dr J agreed that it would be impossible to protect the children from the wife’s adverse psychological reaction if required to communicate with the husband regarding such matters. I accept that evidence.
Given my findings as to the children’s exposure to abuse and family violence by the husband, the husband’s inability to regulate his behaviour as observed by Dr J, and the potential impact of that behaviour upon the wife, I am satisfied that it is contrary to the children’s best interests to order that the husband and the wife have equal shared parental responsibility; I am satisfied that the presumption in favour of equal shared parental responsibility is rebutted.
The wife’s role as primary caregiver to the children should be protected and preserved; orders enabling her to make decisions regarding the children without interference or pressure from the husband will shield the children from the potential impact of the husband’s behaviour upon the wife. Accordingly, I will make orders that the wife have sole parental responsibility for making decisions regarding the long term care, welfare and development of the children.
I am also satisfied that it is in the children’s best interests that orders be made confirming their existing arrangements, that is that they continue to live with the wife.
Initially, the ICL sought an order that the children spend no time nor communicate with the husband unless with the prior written consent of the wife. Again that proposal was put to Dr J during cross-examination. Dr J agreed with the proposition that an order in those terms would likely expose the wife to pressure by the husband. Dr J’s view was that an order in those terms would not invite a reasonable or rational approach by the husband and that his response would likely be to undertake a campaign to pressure her. Dr J’s assessment was based on her own experience of the husband, having been subject to private prosecution and correspondence from him in the aftermath of the production of the second report. Dr J confirmed that it was her view that the husband’s response in engaging in such conduct was indicative of his lack of insight as to the impact of his behaviours on others. I accept that evidence.
Upon that evidence being given, the position of the ICL shifted and he adopted the positon of the wife.
In circumstances where the husband has spent no time with the children since late June 2015, makes no application to spend time or communicate with the children, and I have grave concerns as to the husband’s ability to regulate and contain his behaviour when with the children, I am satisfied having regard to the evidence of the wife and Dr J, that it is in the children’s best interests that there be an order that the husband spend no time nor communicate with them.
The wife also seeks an order that the husband and the wife be restrained by injunction from denigrating the other or discussing the proceedings in the presence or hearing of the children. I am satisfied in the circumstance of this case that an order in those terms is in the children’s best interests.

financial matters

As noted earlier, the wife did not seek to press her application for final property orders given her difficulties in identifying and valuing the parties’ assets.
However, the wife did seek orders in the terms of paragraphs 13, 14, 18-22, 24 and 26 of her application. Those orders relate to the arrangements for the sale of the property at U Street, Suburb O (U Street). The wife seeks that she be appointed trustee for the sale of U Street and further that the husband vacate the property to enable the sale to proceed. The wife seeks injunctions against the husband restraining him from entering the property or from doing any act or thing which has the effect of devaluing or damaging the property. The wife also seeks that a warrant issue pursuant to r 20.54 of the Act authorising an enforcement office to enter the U Street property to give possession of the property to the wife.
The orders for sale of the property were those made by Macmillan J on 25 September 2015 (“the orders for sale”). The orders for sale were made in the absence of the husband due to his failure to appear. The husband was given liberty pursuant to paragraph 10 of the orders for sale to apply to re-list the matter subject to him filing an affidavit deposing as to his reasons for his failure to appear at the hearing and his proposals with respect to payment of mortgage arrears (which were then outstanding) and security for the payment of such mortgage on an on-going basis; the husband did not comply with that order. Accordingly, the orders for sale stand.
In her affidavit filed 6 November 2015 the wife deposes as to her efforts to effect the sale of U Street in accordance with the orders for sale. At paragraph 4 of that affidavit she deposes that on 1 October 2015 her solicitors wrote to the husband nominating three real estate agents to conduct the sale. That letter is annexure CC-2 of that affidavit. At paragraph 5 of the affidavit, the wife deposes that the husband did not respond to that letter.
In the absence of any response by the husband to the wife’s letter nominating three agents, on 13 October 2015 the wife nominated XX Real Estate to conduct the sale in accordance with the provisions of paragraph 3(a) of the orders for sale.
At paragraph 7 of her affidavit, the wife deposes that on 6 October 2015 her solicitor received a notice from the Supreme Court of Victoria listing proceedings issued by the mortgagee, ANZ Bank, on 26 October 2015. Those proceedings relate to enforcement of the mortgagee’s rights under the mortgage secured against the title to U Street.

The wife deposes that the directions hearing listed on 26 October 2015 was adjourned to 23 November 2015 as a result of the husband’s failure to appear and due to the husband having made a complaint to the Financial Ombudsman Service.
The agent engaged on behalf of the wife, Mr A of XX Real Estate Agents, attempted to contact the husband on 14 October 2015. The wife deposes at paragraph 11 of her affidavit that the husband’s response to that approach was to inform the agent that the property was not for sale and that he was not bound by any orders compelling the sale of U Street. As a consequence of that communication, on 16 October 2015 the wife’s solicitors wrote to the husband confirming that the wife has appointed Mr A of XX Real Estate to act in relation to the sale of U Street and further requesting confirmation by the husband that he will comply with the orders for sale. The husband was given notice that in the event that he does not provide confirmation of his intention to comply with the orders, the wife “will be forced to make the necessary application to the court for the property to be seized”.[3] The husband did not respond to that letter.
[3] Wife’s affidavit filed 6 November 2015, annexure CC-5.
The arrears under the mortgage to the ANZ Bank in respect of U Street were $22,462.01 as at 4 September 2015. The wife is not in a position to discharge the arrears under the mortgage.
The U Street property is the most significant asset of the parties. The husband has had sole occupation of that property since 5 September 2012. The wife has not accessed the property since 7 February 2013 when she returned to collect chattels. The wife deposes at paragraph 16 of her affidavit that at that time, the property was poorly maintained.
The husband has been conducting his trade business from U Street. Accordingly, the wife anticipates that there will need to be significant repair work and cleaning undertaken to the property before it can be sold.
In circumstances where the husband is refusing to comply with the orders for sale, the wife seeks orders which will ensure the orderly sale of U Street without disruption or interference by the husband. I am satisfied having regard to the history of the wife’s efforts to enlist the husband to participate in the sale, as detailed above, and the husband’s refusal to engage in that process, that it is appropriate that orders be made in those terms.
The husband has communicated to the Court that he does not concede the Court’s jurisdiction in these matters. He has also communicated to the wife’s appointed selling agent that the property is not for sale and that he is not bound by the orders for sale. The husband has failed to comply with Court orders; he has not nominated a selling agent nor has he co-operated with the appointed selling agent in accordance with order 3 of the orders for sale. The husband has not met the mortgage payments with respect to U Street and there are significant arrears accruing which have resulted in proceedings issuing in the Supreme Court of Victoria on behalf of the mortgagee.
Having regard to those circumstances I am satisfied that it is necessary that orders be made removing from the husband all responsibility for the orderly conduct of the sale. I am satisfied that it is appropriate that orders be made in the terms sought by the wife appointing her as trustee for the sale of the property. Further, I am satisfied that it is appropriate that there be orders requiring the husband to provide vacant possession of the property to the wife and that he be restrained from the property pending further order.
Given the husband’s position regarding the orders for sale as stated to the selling agent and his attitude to these proceedings, as set out in his affidavit filed 13 October 2015 the wife’s concern that the husband will not co-operate with the orders for sale is well-founded. Accordingly, I am satisfied that it is necessary to require the husband to provide vacant possession of U Street to ensure that the sale can proceed in an orderly fashion and without disruption. Although the wife seeks the husband vacate the property in 14 days, I am satisfied that the husband should have a period of 21 days to vacate the property.
The wife also seeks an order pursuant to r 20.54 of the Rules which would enable a seizure of the property. Rule 20.54 provides as follows:-
(1)An order for the possession of real property may be enforced by a warrant for possession only if the respondent has had at least 7 days notice of the order to be enforced before the warrant is issued.
(2)A court may issue a warrant for possession authorising an enforcement officer to enter the real property described in the warrant and give possession of the real property to the person entitled to possession.
(3)If a person other than the respondent occupies land under a lease or written tenancy agreement, a warrant for possession may be issued only if the court gives permission.
It is evident from r 20.54(1) that an order for possession of real property may only be enforced by a warrant of possession if the respondent has had at least seven days’ notice of the order to be enforced before the warrant is issued. The husband has not yet been provided with such notice. Accordingly, I will not order a warrant for possession of real property to issue at this time.
However, in the event that the husband fails to give vacant possession of the property as provided by these orders and remains non-compliant with that order for a period of more than seven days, upon the filing of an affidavit of the wife detailing the circumstances of the husband’s non-compliance an order will issue for the possession of the property. There can be no benefit to the parties if further costs are expended upon an application seeking a warrant in circumstances where the husband has failed to comply with the orders of Macmillan J dated 25 September 2015 and upon the production of evidence that the husband is non-compliant with these orders.

Other Matters

The ICL is privately funded. Until 7 September 2015 the parties shared the costs of the ICL on an equal basis. At the conclusion of the hearing before me the ICL sought orders that as and from 7 September 2015 costs be apportioned on the basis of 75 per cent by the husband and 25 per cent by the wife.
The husband has had no notice of that application, it not forming part of the orders sought in the Case Outline filed on behalf of the ICL. Accordingly, I will order that the ICL file written submissions as to orders sought with respect to costs and provide each of the parties with the opportunity to provide written submissions in response to that application. I propose to determine that application in Chambers upon the basis of those written submissions.
The ICL has been the subject of a professional complaint made by the husband to the Legal Ombudsman. The ICL, Dr J and Dr K are also defendants to a private prosecution filed by the husband in the Magistrates’ Court of Victoria regarding their conduct in these proceedings. At the conclusion of the hearing the ICL sought an order that he be permitted to provide a copy of judgments, the Family Reports of Dr J and the report of Dr K to the Legal Ombudsman, or any other court or professional body dealing with any complaint or prosecution filed by the husband with respect to the conduct of the ICL, counsel briefed on behalf of the ICL or any of the expert witnesses engaged by the ICL in these proceedings.
The restriction on publication of Court proceedings as provided in s 121 of the Act does not apply to or in relation to the communication of any pleading, transcript of evidence or other document to a body that is responsible for disciplining members of the legal profession in a State or Territory. It also does not apply to the communication to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with those proceedings (s 121(9)). Hence, in the event that the husband presses his private prosecution in the Magistrates' Court of Victoria, in relation to the conduct of the ICL and the expert witnesses in these proceedings, it is my view that there would be no restriction on the documents being produced to the Court in the context of such proceedings.
However, in the event of other complaints to professional bodies associated with the expert witnesses, it would be necessary to obtain an order of the Court permitting the production of such documents. Given the husband has had no notice of the orders sought by the ICL with respect to production of documents, I will make orders that the ICL file written submissions with respect to that application and the other parties provide submissions in response. I will determine that application in Chambers on the basis of those submissions.
Accordingly, the orders I make are as follows:-

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”).
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;
(c)Sign any request to discharge the mortgage registered over the property and give authority to discharge the same;
(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.
That forthwith the wife do all acts and things and sign all documents necessary to cause the property to be sold.
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.
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.
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.
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.
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.
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 Act1975 (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.
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.
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.
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.
That any application made pursuant to orders 18 and 19 hereof be determined by the Trial Judge in Chambers.
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.

I certify that the preceding one hundred and sixty-two (162) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 18 December 2015.

Associate:

Date: 18 December 2015

[2015] FamCA 1221

18 December 2015

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Remedies

Injunction

Costs

Procedural Fairness

Jurisdiction

Res Judicata