Lewis and Lewis (No 2)

[2013] FamCA 1097

FAMILY COURT OF AUSTRALIA

LEWIS & LEWIS (NO 2) [2013] FamCA 1097

FAMILY LAW – PARENTING – previous orders discharged – children live with mother – the father and his servants and agents restrained from removing the children outside of the State of Victoria – children’s surnames be changed

APPLICANT: Ms Lewis

RESPONDENT: Mr Lewis

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Mr M. Finn

FILE NUMBER: MLC 11797 of 2012

DATE DELIVERED: 22 November 2013

PLACE DELIVERED: Melbourne

PLACE HEARD:

JUDGMENT OF: Johns J

HEARING DATE:

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Carter

SOLICITOR FOR THE APPLICANT: John V Hayes & Co

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER McKean Park

Orders

1. That all previous parenting orders in relation to the children namely H, born … 2003, J born … 2005, K born … 2005 and L born … 2009 (“the children”) be discharged.

2. That the mother have the sole parental responsibility of the children.

3. That the children live with the mother.

4. That the father be at liberty to send the children cards, letters and gifts on special occasions such as birthdays, Christmas and Easter.

5. That the father be at liberty to send the Children no more than one card or letter each week to be vetted by the mother.

6. That the father and his servants and agents be and are hereby restrained from removing the children outside of the State of Victoria.

7. That the father namely, Mr Lewis born … 1975, and his servants and agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the following children:

   (i)H born … 2003;

   (ii)J born … 2005;

   (iii)K born … 2005; and

   (iv)L born … 2009

   from the Commonwealth of Australia AND IT IS REQUESTED that the Australia Federal Police shall give effect to the preceding Order by placing the names of the children on The Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until further Order.

8. That the mother’s solicitors shall serve by way of prepaid post a sealed copy of these Orders with photographs of the children on the Family Law Squad of the Australian Federal Police in Melbourne.

9. That the mother through her Counsel be granted leave to make an oral application to seek an order that the children’s surnames be changed from “Lewis” to “Rizzo”.

10. That the mother be permitted to do all such acts and things and sign all such documents to ensure that the children be called and known by their surnames “Rizzo”.

11. That the operation of paragraph 10 of these Orders be stayed for a period of 2 months.

12. That the wife’s Initiating Application for property and spousal maintenance filed 21 December 2012 and her amended Initiation Application for property and spousal maintenance filed 15 March 2012 be withdrawn with a right of reinstatement, such application to reinstate to be filed on or before 1 December 2018.

13. That by 26 November 2012 the Independent Children’s Lawyer cause to be served on the husband by way of prepaid post a copy of this Order by forwarding same to M Street, Suburb E in the State of Victoria.

14. That the husband be at liberty to seek to set aside or vary these Orders within 28 days of these Orders being served upon him with such application by him to be accompanied by an affidavit explaining his non-attendance at Court today, and all other matters relevant to any such application.

15. That all extent parenting applications be otherwise dismissed.

16. That pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

17. That pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.

AND THE COURT NOTES:

A.That the Family Consultant, Mr O, recommended that the parties be psychiatrically assessed on a forensic basis and neither party has undertaken such assessment.

B.That the current residential address of the husband and the persons he resides with, and the welfare arrangements if he secured a spend time Order have not been deposed to by the husband or disclosed to the Independent Children’s Lawyer.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lewis & Lewis 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 11797 of 2012

Ms Lewis

Applicant

And

Mr Lewis

Respondent

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

2. Today is the adjourned hearing of both parenting and property proceedings.  This matter has had a long history before the Court.  I note from the Court file that orders were made by Senior Registrar FitzGibbon on 17 January 2013 with respect to spousal maintenance matters.  Orders were made that day requiring the husband to pay periodic spousal maintenance as well as lump sum maintenance.  Those orders have not been complied with. 

3. There have also been maintenance proceedings and proceedings in relation to interim property matters before the Court since that time.  There have, likewise, been interim parenting proceedings.

4. Those proceedings have culminated in, initially, a conciliation conference listed on 8 August 2013.  That day, the husband failed to appear. 

5. As a consequence, the matter was listed for a telephone mention hearing before Registrar Moser on 2 October 2013.  That day, Registrar Moser conducted a telephone mention.  Again there was no appearance by the husband.  As a consequence, Registrar Moser made orders vacating the conciliation conference that had been listed for 4 December 2013.  She made a further order that all extant applications be listed before me on 22 November 2013 for a possible undefended hearing of property issues and for the Judge to consider the proposed minute of consent orders with regard to children’s issues.  There were further orders made for the filing and service by the applicant of an affidavit in support of her application for property orders.  That order has been complied with and exhibits A and B tendered this day confirm service of that affidavit upon the husband.  There were orders made for costs.  That order has not been complied with.

6. Since those orders were made, the husband has filed an affidavit in the proceedings.  It is evident that he is aware that the matter is listed before the Court today.  His affidavit was sworn on 20 November 2013 and filed that day.  That affidavit addresses property matters.

7. What I am asked to do today is to make final orders with respect to parenting issues.  The children the subject of those proposed orders are H, who is aged 10 years, K and J, who are twins aged 8, and L, who is aged 4 years.  

8. The parties have previously attended upon Mr O, Family Consultant, who has prepared a report pursuant to section 11F of the Family Law Act. That report is dated 14 May 2013. For the purposes of the preparation of that report, Mr O interviewed the parties and the children of the relationship were separately interviewed.

9. The matters contained in that report are most concerning.  The older children in particular describe a history which is characterised by family violence.  The child H described to Mr O incidents where he had witnessed his father punch his mother, where his father had pulled his hair, kicked him and lifted him up and, further, H commented that his father had hurt all of the family members.  In describing those instances, H is reported as saying, “he used to hurt me.  He used to hurt all of us.  He even hurt [L].” 

10. Both K and J, who were aged 7 at the time of the interview, also describe instances where they were exposed to family violence. 

11. L, who was 3 at the time of interview, and has a speech impediment, although interviewed, was not, because of his age and maturity, able to provide detailed information to Mr O.  However, even L indicated, when interviewed by Mr O, that in terms of his father, he related to the “not happy” face. 

12. During the course of his interview, the father indicated to Mr O that he would not actively pursue time with the children if they did not wish such time to occur.  The husband denied the allegations of abuse.

13. What has happened subsequent to the preparation of that section 11F report is that the husband has effectively withdrawn from all aspects of involvement in the children’s lives. He has not seen any of the children for a period of more than 12 months. He has not provided financial support for the family. He has not participated in these proceedings. The reality for these children is they live with and are cared for by the wife who is the sole parent who has assumed responsibility for their day-to-day care and welfare.

14. What I am asked to do is to make orders on a final basis that confirm those arrangements.  The wife has been put to significant expense in pursuing both the parenting and property aspects of this matter.  There have been not less than eight Court events where the wife has been required to be represented to pursue her applications before the Court.  On at least two of those occasions, the husband has failed to appear.   He has not appeared before the Court today in the face of an order indicating that the Court may proceed on an undefended basis.  The husband was called at the start of the day, he has failed to answer the call.  It is now 12.20pm and he has still not appeared before the Court.

15. Having regard to the considerations set out in s 60CC of the Family Law Act 1975, I am satisfied that the orders with respect to the children’s care arrangements are appropriate and in their best interests. I am satisfied, in all of the circumstances, that it is appropriate that I make those parenting orders.

16. I am also asked to make an order today that the mother have the ability to change the children’s surnames from Lewis to Rizzo, that being her maiden name which she proposes to use following the parties’ separation.  An oral application has been made for me to make an order in those terms today. 

17. It is evident from the affidavit material filed by the husband on 20 November that the husband is aware of the proposed change of name as evident from paragraph 1 of that affidavit wherein the husband deposes “it has been indicated to me that the applicant would like to change the children’s surname to delete all reference to me as their father.  I strongly object and ask the Court not to agree to an order to that effect.”  Whilst the application was not formally before the Court, the husband was on notice as to the likelihood of such application being made.  Had he been serious in his opposition to such an order being made, one would have anticipated he would appear before the Court today.

18. In support of the application, the counsel for the wife points to the fact that there has been no active involvement by the husband in the children’s lives for a period of more than 12 months, the fact that he has not provided financial support and the fact that he has not participated in these proceedings. 

19. Mr Finn, as the Independent Children’s Lawyer, does not oppose that order.  Indeed, he concedes that, in the circumstances of this case, where the husband has not participated in the children’s lives, that it may well be appropriate that such an order be made.  I am satisfied, having regard to the history that has been provided to me, and having regard to the features of this case as set out in the report of Mr O, that it is appropriate to make such an order.  However, I propose to stay the operation of that order for a period of two months. 

20. The orders that I make will be served on the husband and he will have 28 days in which to make such application as he deems fit, such application to be supported by an affidavit explaining his non-attendance at Court this day.  On the expiration of that time frame, assuming that the husband does not make an application, the wife will be at liberty to make all necessary applications to change the children’s names.

21. I am also asked to make an order with respect to the property and spousal maintenance applications before me.  The history with respect to those applications is also fraught.  It is evident that there have been many orders made with respect to the preparation of the financial applications, the property and maintenance applications.  The history of the orders is a sorry history insofar as the husband’s non-compliance with Court orders is concerned.  

22. On 17 January 2013, Senior Registrar FitzGibbon made orders for lump sum spousal maintenance and urgent interim spousal maintenance.  Those orders have not been complied with. 

23. On 19 March 2013, the matter again came before Senior Registrar FitzGibbon.  He made an interim maintenance order for periodic maintenance.  He also ordered interest on costs that had previously been ordered and he made a costs order that day.  Those orders have not been complied with by the husband. 

24. On 12 April 2013, Macmillan J made orders with respect to disclosure.  Counsel for the wife informs me that those orders have not been complied with. 

25. The state of the evidence as is known to the wife is that, seemingly, the husband is now unemployed, although historically he has worked in paid employment as an accountant in his own business and had some significant income from that employment.  Counsel for the wife described a history whereby the husband has had access to finance, such as he has been able to acquire motor vehicles and motorcycles.  It would seem that he continues to obtain finance, most recently from Macquarie.  The wife is not in a position to pursue her property application at this time because of the husband’s non-compliance with orders in relation to disclosure as well as his obligations under the Family Law Rules with respect to disclosure. 

26. In those circumstances, what the wife seeks today is the opportunity to withdraw her application for final orders in respect of property and spousal maintenance, but to preserve a right of reinstatement so that in the event that new information comes to light, she can reinstate those proceedings and bring them to their conclusion.  Part of her reasoning for making such application is because of her concern as to costs incurred to date and the prospect, at this time, that there may be no advantage to her and no possibility of her recovering her costs expended thus far as well as costs which may be expended pursuing her claim in the future.  Counsel for the wife quite properly concedes that, at this point in time, I am not in a position to make findings as to contributions and s 75(2) factors due to the lack of evidence as to the husband’s current financial position.

27. In the circumstances, I propose to make an order as sought by the wife for the withdrawal of her final application for property and spousal maintenance, which was filed originally on 21 December 2012, and her amended application filed 15 March 2013 with a right of reinstatement and any application to reinstate to be filed by the wife on or before 1 December 2018. 

28. Having regard to all of the above matters, I will make orders in the following terms:

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 22 November 2013.

Associate: 

Date:  22 November 2013