Mannerwell and Mannerwell

[2010] FamCA 922

FAMILY COURT OF AUSTRALIA

MANNERWELL & MANNERWELL [2010] FamCA 922

FAMILY LAW – PROPERTY – Orders for sale
FAMILY LAW – CHILDREN – Interim – With whom a child spends time

Family Law Act 1975 (Cth)

APPLICANT: Ms Mannerwell

RESPONDENT: Mr Mannerwell

FILE NUMBER: MLC 8597 of 2010

DATE DELIVERED: 12 OCTOBER 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: CRONIN J

HEARING DATE: 12 OCTOBER 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR TESTART

SOLICITOR FOR THE APPLICANT: DAVID STAGG TONKIN & COMPANY

COUNSEL FOR THE RESPONDENT: IN PERSON

SOLICITOR FOR THE RESPONDENT:

Orders

1. That BY CONSENT there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

2. That the solicitor for the wife engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

3. That all outstanding interim applications be dismissed.

4. That the wife’s costs of this day be reserved.

5. 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.

IT IS NOTED that publication of this judgment under the pseudonym Mannerwell & Mannerwell is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8597  of 2010

MS MANNERWELL

Applicant

And

MR MANNERWELL

Respondent

REASONS FOR JUDGMENT

1. On Tuesday 12 October 2010, I made interim parenting orders and urgent property protection orders on an application brought by Ms Mannerwell (“the wife”) concerning a dispute with her husband Mr Mannerwell (“the husband”).

2. The wife filed her application on 13 September 2010 and it was served on the husband the following day.  For reasons which are not entirely clear, the husband then left for a holiday in Bali.  On 11 October 2010, the husband’s lawyers wrote to the lawyers for the wife indicating a variety of proposals for resolution of the dispute but indicating that they did not intend to appear for the husband.  To make matters more difficult, no material was filed by the husband other than a Financial Statement which was in handwritten form. 

3. The primary reason why the matter was before the Court related to the question of the urgent sale of an almost completed home which is the subject of a mortgage in circumstances where the mortgagee is pressing for either payment of arrears or the sale of the property.

4. The husband conceded that he had not filed any material but wanted to have a say as to what should happen.  He suggested that the wife’s father who is a builder should complete the property and then it could be sold in an orderly way.  From the bar table, the husband expressed some cynicism about whether the wife’s father might buy the property and deal with it in some way to his disadvantage.  I pointed out to him that any orders of an interim nature would be the subject of review at the final hearing. 

5. The husband’s position also was that he wanted to spend some time with the children of the marriage who he said were the subject of an agreement with the wife.  I pointed out to him that he had no material to enable me to properly determine a parenting dispute but I was prepared to make orders in terms of what the wife was proposing having regard to the fact that it was not entirely inconsistent with what he was seeking.

6. I was hearing the matter in a very busy Duty List and did not have time to give any formal reasons but I propose to do that now.

7. The parties were married in 2004.  They separated on 26 March 2009.  There are two children K born in August 2006 and R born in January 2009.  The children are obviously very young.

8. The parties have been building a home at D.  All of the money to build the home on that vacant land was obtained by a mortgage loan from the ANZ Bank.

9. There have been considerable problems of late about the payment of that mortgage and the husband described himself as a disability pensioner.  He has no savings and is not in a position to continue to make the payments on the mortgage.  The husband conceded that he was aware that the bank was making moves to foreclose.

10. The husband thought there was about a month to go before the house could be finished and then there could be an orderly sale but at the same time conceded that he did not have the money to undertake any of the necessary tasks.  By the contrary, he was expecting the wife’s father to undertake that.

11. The wife said that she could not pay the arrears which currently stand at $5,527.22 and on that basis, there was no alternative other than to sell. 

12. Section 114 of the Family Law Act1975 provides an injunctive power which enables a court to make orders including for the protection of property.  It seems to me that if I do not take that step in this case, there is a realistic possibility that both parties will lose substantially by the loss of the equity in the home.  The husband had no proposal other than effectively to put off the inevitable and the wife was urging that I protect the asset in the best way that the Court can.  In those circumstances, the order for the sale seemed appropriate.

13. The wife also sought the opportunity to have the sole conduct of the sale and that was something that the husband opposed notwithstanding that he did not have any material before the Court.  The affidavit of the wife sets out a tragic history of dispute between the parties including the husband being admitted for psychiatric care as late as December 2009. That admission arose in circumstances in which the husband acted in a violent way involving the presence of the child K.  On 20 April 2010, the police attended the home and assisted the wife to obtain an Intervention Order which included the two children who were named.  This occurred after a physical assault.  The children were present at that as well.

14. It is clear that there cannot be any reasonable dialogue between the husband and the wife and with the absence of any regular lawyers acting on behalf of the husband, I have no confidence that he would be in a position to organise the sale of the home in an orderly way.

15. In those circumstances, I made orders giving the wife the conduct of the sale on the basis that she provided the husband with necessary information. 

16. In respect of the parenting matters, the details that I have just set out indicate quite clearly there is a considerable problem between the parties in terms of communication and there would appear to be little dispute about family violence.  Despite that, the wife proposed without objection from the husband that the parents have equal shared parental responsibility for the children.  It was suggested by the wife that the children live with her and spend time with the husband for approximately three hours on each Saturday and Sunday and otherwise by telephone on Tuesday and Thursday.  As I said earlier, the husband did not have any material put before the Court which would have enabled me to make any realistic decision about the welfare of the children otherwise.

17. What is clear however is that the husband was not seeking that the children live with him. 

18. Having agreed to an order for equal shared parental responsibility, the provisions of section 65DAA apply.  I am quite satisfied on what little evidence I have, and an order for equal sharing of time in addition to not being sought by the husband would be inappropriate for these children having regard to the violent disposition of the husband and his mental health status.  Whilst the husband indicated that he was on medication, I have no indication of the nature and type of treatment he is receiving.

19. Having rejected the question of a simple order for sharing of time, I am obliged to consider whether it is reasonably practicable to make such an order in any event.  In my view, it is clearly not having regard to the fact that there was no material upon which I could decide how the husband would share any time let alone half of the time with these children.

20. The same points must be made in respect of the alternative to equal time and that relates to significant and substantial time.  On the material, there is not sufficient evidence that would satisfy me that the children’s best interests would be served by there being an order for substantial and significant time or that it would be reasonably practicable to endeavour to make such an order having regard to the state of the parties’ relationship and the evidence that I had.

21. Section 60CA requires that in determining what order should be made of a parenting nature, the children’s best interests must be considered as the paramount consideration. 

22. I have very little information to determine attitude to parenting or parenting responsibility.  As I earlier said, the children are very young and therefore vulnerable.  They are entitled to share in the lives of their parents and in particular, to have the benefit of a meaningful relationship with both parents.  As to the nature of the relationship with their father, the evidence does not assist me.

23. In my view, the orders proposed by the wife that at least enable the husband to have a limited time with these young children are the best option open at this point in time.  Accordingly those orders were made.

I certify that the preceding twenty three
(23) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice
Cronin delivered on 12 October 2010.

Associate: ……………………………………………………………

Date:  …………………………………………………………………