LEWIS & LEWIS

[2013] FamCA 583

FAMILY COURT OF AUSTRALIA

LEWIS & LEWIS [2013] FamCA 583

FAMILY LAW – CHILDREN – Interim orders – order for a s 11F report
FAMILY LAW – PROPERTY – Interim orders – consent – order for the sale of property – father to provide vacant possession – father to provide full and frank disclosure

Family Law Act 1975 (Cth)

APPLICANT: Ms Lewis

RESPONDENT: Mr Lewis

FILE NUMBER: MLC 11797 of 2012

DATE DELIVERED: 12 April 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 12 April 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Carter

SOLICITOR FOR THE APPLICANT: John V Hayes & Co

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: N/A

IT IS ORDERED THAT

1. Pursuant to s.11F of the Family Law Act 1975 the parties to the proceedings shall attend appointments with a Family Consultant on 30 April 2013 at the following times:

   a.the applicant wife at 9:15 am; and

   b.the respondent husband at 11:00 am

IT IS ORDERED BY CONSENT THAT

1. Within 7 days the husband sign all such documents and things and take all such action as may be necessary to:

   a.Transfer to the wife on trust for sale the property at B Street, Suburb C, Western Australia (“the Suburb C property”);

   b.Transfer to the wife the SUV 1 motor vehicle registration … to her at his expense;

   c.To sell the two motor vehicles in his possession (being the sedan and the SUV 2) and apply the proceeds to discharge the encumbrances thereon, and the balance, if any, to be held on trust by the wife’s solicitors pending further order.

2. In the event that the husband fails to fully comply with paragraph 2 hereof, then pursuant to s 106A of the Family Law Act 1975 a Registrar of this Court shall execute any necessary documents to give effect to paragraph 2 hereof, on his behalf.

3. The wife forthwith upon the transfer to her of the property at B Street, Suburb C, Western Australia list the property for sale and the proceeds be applied as follows:

   a.Firstly, to pay costs and commissions of the transfer to the wife on trust for sale and the sale of the Suburb C property;

   b.Secondly, to discharge the mortgage encumbering the property;

   c.Thirdly, to discharge the debt encumbering the wife’s motor vehicle SUV 1 registration …; and

IT IS FURTHER ORDERED THAT

d.Lastly, the balance to be held on trust by the wife’s solicitors, pending further order.

1. The husband, within 7 days provide:

   a.Full accounting including providing source documents as to how he expended/applied the $27,000 he received in February 2013 as referred to in his evidence given on 19 March 2013; and

   b.All documents regarding the sale of the property at D Street, Suburb E and the application of the proceeds of same.

2. On or before 4 pm on 3 May 2013 the husband provide vacant possession of the Suburb C property to the wife.

3. The husband forthwith provide an authority to the wife to obtain information from and negotiate with Macquarie Bank with respect to the transfer to the wife of the SUV 1.

4. All extant applications be otherwise adjourned for hearing in the Senior Registrar’s Duty List at 10:00 am on 14 May 2013.

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

BACKGROUND  

1. On the 12 April 2013 I made orders in relation to interim financial matters, which were largely by consent, and orders for the preparation of a s 11F assessment. I otherwise adjourned the matter to the Senior Registrar’s Duty List at 10.00 am on 14 May 2013. Having made those orders, I reserved my reasons which are as follows.

2. The parties have four children. The eldest child is 10 years of age, they have seven year old twins and the youngest child is almost four years of age. The parties separated in June 2012 and the children have lived with the mother since separation. 

3. The father in his amended Response to the mother’s Initiating Application filed 22 February 2013 sought interim orders, including an order for the preparation of a report on the views of the children and any other matters that the Court might consider desirable, and that the children live with him each alternate week. In the course of his submissions he made it clear to me that although he did agree that a report should be prepared, he also wanted to spend some time, albeit not necessarily week and week-about, with the children pending the preparation of that report. It was clear from his submissions that he would accept any time I might be prepared to order. It was submitted on behalf of the mother that I should make an order for the preparation of a s 11F assessment and should not make any orders for the children to spend time with the father pending the preparation of that assessment.

4. The father has not seen the eldest child since August 2012 and has not spent any time with any of the other children since 3 December 2012. The mother alleges that both the eldest and youngest children have refused to spend time with the father. There are in this case very serious allegations made by both parties, which include allegations of family violence witnessed by and on occasions involving the children, both parties have obtained intervention orders against the other, there are allegations of alcohol abuse and mental health issues including the mother’s allegations of threats by the father to kill himself and what she says is his failure to provide appropriate physical care for the children. It is submitted on behalf of the mother that the father’s conduct with respect to financial matters and in particular his failure to provide support for the mother and the children is itself of concern, whether that is because of a deliberate decision on his part, which would arguably be contrary to the children’s best interests, or because of, as he says, health issues.  

5. These are interim proceedings and the evidence has not been tested. In those circumstances I am not in a position to make any findings with respect to the competing allegations favourable or otherwise to either party. The father submits that as the parties make allegations against each other, and in the absence of findings against him, there is no reason why the children should not spend time with him and, for that matter, spend any more time with the mother than with him. It is his case that he has always been involved in the children’s lives and it is not in their best interests to not spend time with him.

6. The difficulty I have with the father’s case is that it focuses more upon balancing the rights of the parties rather than focussing upon what is in the best interests of the children. The allegations the parties make against each other are extremely serious and if true are likely to have a significant impact upon the welfare of the children and any determination of what may be in their best interests. However, the children have lived with the mother since separation and the father had not made any application with respect to the children until the mother commenced her proceedings. At the very least, this suggests that he was prepared to allow the children to continue residing with the mother notwithstanding any concerns he may have had about her behaviour or the children’s welfare in her care. This gives me some comfort that, notwithstanding the allegations the father has made about the mother’s behaviour, the children will not be at risk in the mother’s care pending the completion of the s 11F assessment and the further hearing.

7. I am satisfied that given the seriousness of the allegations and the possible risk those allegations may present to the children’s welfare it would be premature to make orders for the children to spend any time with the father pending the preparation of a s 11F assessment. The events of the past few months with respect to the father’s life are a significant cause for concern, and the Court would benefit from an assessment of the issues, the parties themselves and the children before making orders. However, given that the children are not spending any time with the father it is important that the matter be dealt with as soon as possible, and it is on that basis that I have made the orders for the parties to attend appointments with a family consultant and adjourned the matter for further hearing in the Senior Registrar’s Duty List on 14 May 2013. The matter was listed for hearing in the Judicial Duty List because the wife was seeking an order for the sale of a property. That matter has now been dealt with and there is therefore no reason why the matter cannot be dealt with by the Senior Registrar.

8. These proceedings were commenced on 21 December 2012 when the mother filed an Initiating Application seeking both interim and final orders. The mother sought interim orders for spousal maintenance, rental arrears relating to the property in which she and the children of the marriage were then residing, the payment of all utilities, the children’s school fees and associated education expenses, the transfer to her of the vehicle in her possession, orders restraining the father from disposing of any income and that the father provide disclosure of his financial documents and those of any associated entity.

9. The matter was listed for hearing on the first occasion on 17 January 2013. Time was abridged with respect to the application for spousal maintenance and the payment of rental arrears. The father had filed a Response to the mother’s application, an affidavit and a statement of financial circumstances, was represented but was not present in court, and counsel appearing on his behalf applied to have the matter adjourned. The father was on holidays in Country F at the time and as the father had had notice of the hearing and because of the urgency of the mother’s application that application was refused.

10. On that date, Senior Registrar Fitzgibbon made orders including that the father pay the mother the sum of $7,141.80 lump sum spousal maintenance, urgent interim spousal maintenance of $1,000.00 per week and that he pay punctually the lease payments for the vehicle used by the mother. The father in his Financial Statement filed 15 January 2013 deposed to earnings of $5,000.00 per week gross.

11. The father did not comply with those orders and the mother then filed an application for enforcement. On 5 February 2013 orders were made by consent for the sale of shares and a motorcycle. The orders provided that the proceeds of sale of the shares be used for the payment of rental arrears and any rental due with respect to the property occupied by the mother, with any balance remaining to be retained by the mother subject to categorisation at trial. The orders further provided that the proceeds of sale of the motorcycle be applied to the payment of the amounts in Schedule “A” to the orders made 17 January 2013 which was the basis of the calculation of the sum of $7,149.00 lump sum maintenance. The father was ordered to pay the mother’s costs fixed in the sum of $2,800.00 and the matter was otherwise adjourned for further hearing to 19 March 2013.

12. I was advised by counsel for the mother that the shares ordered to be sold had been sold for $6,600.00 and applied to the rental arrears and the motor cycle had been sold for $11,000.00 and the proceeds applied in part to the payment of rent, to pay a Telstra account, and the balance to the payment of the amounts set out in Schedule “A” to the orders of 17 January 2013.

13. The father was no longer represented when the matter came before Senior Registrar Fitzgibbon again on 19 March 2013.  The father had not filed any further material nor had he provided full and frank disclosure, notwithstanding what he said were significant changes in circumstances.  In the course of cross-examination it became clear that shortly after the orders were made on 5 February 2013 the father received around $27,000.00 from various sources. The father did not use any of those funds to meet his obligations pursuant to the previous orders and, according to him, those funds have been fully expended.

14. On 19 March 2013 Senior Registrar Fitzgibbon made orders including an order reducing the spousal maintenance payable by the father to the mother from $1,000.00 per week to $670.00 per week and ordered that the father pay the wife’s costs of that hearing, that the mother have liberty to apply to enforce or secure payment of monies ordered for her benefit, and the matter was otherwise adjourned to the Judicial Duty List before me as the mother had foreshadowed an application for the sale of a property at B Street, Suburb C in Western Australia, in order to reduce the father’s indebtedness and giving him the ability to comply with the various orders made in her favour.

15. The hearing before me is the third hearing since Senior Registrar Fitzgibbon made his orders on 17 January 2013. Since that first hearing the father has gone, after working as a professional for some 20 years, from being a partner in a professional practice G Pty Ltd, to being an employee of that practice, working five days a week and then reduced to three days a week and finally it is his case that he is now for medical reasons unemployed, although that claim is not supported by any medical evidence.  Whether this is a deliberate attempt on his part to avoid his obligations to the mother pursuant to the orders, he is genuinely not well enough to work or there is some other reason, the father has not complied with the orders made by Senior Registrar Fitzgibbon.

16. Counsel for the mother prepared a minute of orders sought by the mother. The father indicated his consent to all but a few aspects of the orders sought by the mother. The mother sought an order that the balance of the proceeds of sale of the Suburb C property, after payment of the costs of that sale, the discharge of the mortgage, and the payment of the debt encumbering the SUV 1 motor vehicle, be held on trust by her solicitors pending further order. It was the husband’s case that any balance should be applied to the performance of the orders made by Senior Registrar Fitzgibbon, in that the father pay the mother’s costs as there was no other source of funds from which those costs might be paid. This was opposed by the mother on the basis that such an order would result in her paying her own costs. I agree with the wife’s submission. Whilst ultimately she may not recover her costs, the mother should not have to forego what might ultimately be part of her entitlement to property settlement to satisfy the father’s obligation to pay costs, particularly in light of his failure to meet his obligations pursuant to the orders, notwithstanding that in February of this year he received the sum of $27,000.00 and in circumstances where the proceeds of the sale of assets have already been applied to meet those obligations. On that basis, I have made orders in accordance with the minute of orders sought by the mother.

17. The second matter in dispute was the timeframe for the father to provide vacant possession of the Suburb C property to the mother for the purposes of sale. The property is occupied by the father’s father who has, according to the father, lived in the property since the father acquired it in 2001. The father submitted that his father, who is in receipt of disability payments, would require at least three to four weeks to find alternative accommodation. It was the mother’s case that in the face of threats by the mortgagee to sell the property, the father’s father would not be taken by surprise by the proposed sale or the need for him to obtain alternative accommodation, and in those circumstances, the father should be given at most two weeks to provide vacant possession. In all of the circumstances I consider a period of three weeks to be an appropriate amount of time for the father’s father to obtain alternative accommodation and I have given the father three weeks to provide vacant possession of the property to the mother for the purposes of the proposed sale. 

18. I have also made orders, as proposed by the mother, requiring the father to account for the sum of $27,000.00 he received in February 2013 and to provide the mother with documents regarding the sale of the property at D Street, Suburb E, notwithstanding that he says that the documentation is in the mother’s possession. I am satisfied that it is appropriate to require the father to provide the mother with any documents that may be in his possession.

19. Finally, I have made an order that the father provide the mother with an authority addressed to Macquarie Bank to enable her to obtain information and negotiate with the bank with respect to the transfer to her of the SUV 1 pursuant to the orders. The father did not oppose this order and I note that he has signed that authority.  

20. I otherwise make orders in accordance with the minute of orders proposed by the mother.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 12 April 2013

Associate:

Date:  9 August 2013