Meadows & Meadows (No 3)
[2019] FamCA 644
•21 August 2019
FAMILY COURT OF AUSTRALIA
| MEADOWS & MEADOWS (NO. 3) | [2019] FamCA 644 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Review of a Registrar’s decision – Where the applicant sought a review of the decision to reject her Application in a Case for filing – Where the Application sought to vary and stay final parenting orders – Where the orders sought were largely beyond the scope of enforcement or machinery orders – Where it was not appropriate to consider a stay as the applicant had not decided to file an Appeal – Application dismissed – Parties referred to the Chambers of the primary judge in relation to machinery issues. |
| Family Law Act 1975 (Cth) ss 43, 69ZN Family Law Rules 2004(Cth) rr 1.04, 1.06, 1.09, 1.10, 1.12, 2.01, 5.12, 5.13, 21.01, 21.02 |
| APPLICANT: | Ms Meadows |
| RESPONDENT: | Mr Meadows |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Wilkins |
| FILE NUMBER: | PAC | 3509 | of | 2013 |
| DATE DELIVERED: | 21 August 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan J |
| HEARING DATE: | 21 August 2019 |
REPRESENTATION
| APPLICANT MOTHER: | Ms Meadows in person |
| RESPONDENT FATHER: | Mr Meadows in person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | P A Wilkins & Associates |
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Meadows & Meadows has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: PAC3509 of 2013
| Ms Meadows |
Applicant
And
| Mr Meadows |
Respondent
REASONS FOR JUDGMENT
In proceedings heard by me earlier today I made the following orders and notations.
1.The proceedings are referred to the chambers of Justice Baumann for the consideration of the machinery provisions necessary to give effect to the final parenting orders made on 30 July 2019.
2.The Court Noted that the Suburb MM Contact Centre specified for handover of the child B in order 5 of the orders is not available for the purposes of the handovers pursuant to order 4(b), (c) or (d).
3.In relation to those machinery issues each of the parents is permitted to rely on evidence already filed or filed within 14 days of the date of this order. However, evidence is to be contained within one affidavit from each deponent.
4.Any proposed amended machinery orders should be set out in or attached to the affidavit referred to in order 3 or set out in a Minute of Order and provided to the Court and the other parties within 14 days.
5.Any directions as to the hearing of the application to vary machinery orders will be provided to the parents and the Independent Children’s Lawyer from the chambers of Justice Baumann.
6.The Court Noted that the mother has foreshadowed that she will seek orders to the following effect:
(1)That Order 5 made on 30 July 2019 be varied to provide:
(5)That to facilitate the time in Order 4 above, changeover shall occur outside:
(i) J Town Police Station located at TT Street J Town NSW ; contact telephone number: …; OR
(ii)SS Town Police Station located at VV Street SS Town NSW; contact telephone number: …
(2)That Order 6 made on 30 July 2019 be vacated.
7.The Application in a Case filed 14 August 2019 is dismissed.
On 14 August 2019 Ms Meadows filed an Application in a Case (“the Review Application”) seeking to review the decision of a Registrar to reject an Application in a Case filed 8 August 2019 for filing. The application for review was listed on 21 August 2019.
The review of a Registrar’s decision proceeds by hearing de novo.
On 30 July 2019, the following orders were made by Baumann J.
Parenting
(1)That all previous parenting orders be discharged.
(2)That the father have sole parental responsibility for the child, B born in 2011 (“the child”) and in exercising his sole parental responsibility in relation to any major long-term decisions, before the father makes the decision, he shall:
(a)notify the mother in writing of his intended decision;
(b)allow the mother fourteen (14) days to provide to the father in writing her opinion of such intended decision;
(c)consider the mother’s opinion before making his final decision; and
(d)then advise the mother of his final decision.
(3)That the child live with the father.
(4)That the child shall spend time with the mother as may be agreed in writing between the parents, but at least as follows:
(a)Commencing from the date of these Orders, for a period of three (3) calendar months, each second Saturday from 10.00am until 2.00pm;
(b)For a period of three (3) calendar months thereafter, each second Saturday from 10.00am until 4.00pm;
(c)Thereafter, each second Saturday from 10.00am until 6.00pm; and
(d)On Mother’s Day from 10.00am until 6.00pm.
(5)That to facilitate the time in Order 4 above, changeover shall occur at Suburb MM Contact Centre (“the Centre”) and the Centre’s costs shall be shared equally by the parents and paid on demand by the Centre.
(6)That within seven (7) days of the date of these Orders, the parents are to make contact with the Centre and make arrangements with the Centre personnel to undertake all the Centre’s requirements to become eligible to be able to use the Centre.
(7)That the father have leave to provide a copy of these parenting Orders to:
(a)any school upon which the child attends;
(b)any medical practitioner upon which the child attends; and
(c)the Centre.
(8)That the child shall communicate with the mother by telephone as agreed between the parents but failing agreement on at least between the hours of 6.30pm and 7.30pm each Wednesday and each non-contact Saturday.
(9)That the mother’s telephone conversations with the child, as provided for in Order 8 hereof shall be supervised by the father, or his nominee, for the next three (3) months only and are not to be lengthy. The father may terminate the call at the conclusion of fifteen (15) minutes of time or at any time he concludes the mother’s conversation with the child has become inappropriate.
(10)That each parent be and is hereby restrained from:
(a)denigrating the other parent, the other parent’s household or extended family, or the child’s school, in the presence or hearing of the child, nor cause, permit or allow any third person to do so;
(b)providing or showing any documents filed in these proceedings (including the family report dated 3 April 2018) to the child, or permitting or causing others to do so; and
(c)discussing with the child these proceedings or permitting or causing others to do so.
(11)That the mother and father shall keep each other advised at all times of their residential address and telephone contact numbers and details of all persons living at the house when the child is in their care and notify the other of any change within seven (7) days of such change.
(12)That the father shall do all things necessary to authorise the child’s schools to provide to the mother on a regular basis copies of school reports, newsletters, and other information regarding the child’s school activities.
(13)That the mother and father shall be at liberty to attend the child’s school for parent/teach interviews, school assemblies, school carnivals, extra-curricular activities and any other event parents are normally invited.
(14)That the mother and father keep each other informed of any medical emergency that may involve the child or any medical treatment that the child may receive whilst the child is in the care of that parent.
(15)That in the event of the child suffering a medical emergency requiring medical attention while spending time or living with either parent:
(a)the other parent is to be notified as soon as practicable;
(b)the other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable; and
(c)the medical practitioner or facility is to be advised that both parents have access to the child’s medical records and information retained by them on request.
(16)That the father shall keep the mother informed and provide details and an authority to the child’s general practitioner and any other medical specialist including counsellor or psychologist the child may attend upon from time to time so that the mother shall be permitted to contact any medical practitioner/specialist/counsellor to discuss the child’s condition or treatment, if any, and these Orders shall be sufficient authority for each party to do so.
(17)That any order restraining the removal or attempted removal of the child from the Commonwealth of Australia be discharged, and the child’s name be removed from the Airport Watch List.
(18)That after 30 July 2020, provided these Orders have been complied with, the mother and the father should engage in a form of community-based family dispute resolution and genuinely discuss extending the time the child spends with the mother to include overnight time and part of school holidays as well as other special event time.
Property
(19)That the husband shall pay the wife the sum of $200,000 (“the settlement sum”) within sixty (60) days of the date of this Oder and the husband shall retain as his exclusive property free of claims by the wife, the former matrimonial home at O Street, Suburb P (“the home”), with the husband indemnifying the wife from all claims, demands and actions arising from the home including the Bank PP mortgage.
(20)That:
(a)the Court allocates, as required by s 90MT(4) of the Family Law Act 1975, a base amount of $45,000 to the Applicant wife, Ms Meadows out of the Respondent husband’s, Mr Meadows interest in the WW Superannuation Fund (“the Fund”);
(b)in accordance with s 90MT(1)(a) of the Family Law Act 1975, the Trustee of the Fund:
(i)creates an entitlement on the part of the wife to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount specified in Order 20; and
(ii)makes a corresponding reduction in the entitlement to the husband, or such other person to whom a splittable payment may be made, would have had in the fund, but for these Orders.
(c)this Order has effect from the operative time and the operative time is four (4) business days after the date of service of a copy of the sealed Orders on the Trustee of the WW Superannuation Fund.
(21)That the operation of Order 20 be stayed until such time as the husband files an Affidavit deposing to:
(a)service of a copy of these Orders on the trustee of the WW Superannuation Fund; and
(b)the response, if any, received from the Trustee.
(22)That in the event that the Affidavit deposes that no response was received from the Trustee within twenty-eight (28) days of service of the Orders, or that the Trustee consents to the terms of the Orders, the stay imposed by Order 21 hereof is automatically discharged upon the filing of the Affidavit, without further order.
(23)That unless otherwise dealt with in this Order:
(a)the wife shall retain as her sole and exclusive property free from claims by the husband:
(i)her jewellery;
(ii)her household contents;
(iii)her superannuation entitlements; and
(iv)any bank accounts and other personal property in her possession, power and control at the date of this Order.
(b)the husband shall retain as his sole and exclusive property free from claims by the wife:
(i)his motor bike;
(ii)his motor vehicle 1;
(iii)his household contents, tools and trailer;
(iv)his remaining superannuation entitlements (after the splitting order at Order 20 takes effect);
(v)any bank accounts and other personal property in his possession, power and control at the date of this Order; and
(vi)his shareholding and other entitlements in L Pty Ltd (save for the Motor Vehicle 3).
(24)That the husband shall, within sixty (60) days of the date of this Order, sign all necessary documents as the sole director of L Pty Ltd to transfer and assign the company’s right, title and interest in the Motor Vehicle 3 (formerly registered …) to the wife.
(25)That if the husband is unable or unwilling to pay to the wife the settlement sum prescribed by Order 19 above, then:
(a)the home shall be sold by public auction and listed for that purpose by the husband, within ninety (90) days of the date of this Order, with a registered real estate agent agreed by the parties, and failing agreement as nominated by the President of the Real Estate Institute of New South Wales;
(b)the reserve price of the auction shall be no less than $620,000 unless agreed to by both parties but may be higher;
(c)the husband, for the purposes of the said auction, shall be required to accept an offer of $620,000 or higher;
(d)upon the settlement of any contract for sale of the home, the proceeds of sale shall be distributed as follows:
(i)payment of all real estate agent commission and marketing expenses;
(ii)payment of proper legal costs associated only to the husband’s sale of the home and proper adjustments on sale for rates and Government levies;
(iii)discharge of the secured Bank PP mortgage liability;
(iv)the balance (“nett sale proceeds”) to be distributed between the parties as set out in the next order.
(26)That the nett proceeds of sale are to be distributed between the parties so as to achieve an overall division of the nett non-superannuation interests found to exist and identified at paragraph 83 of the Reasons for Judgment, in the proportions of 45% to the wife and 55% to the husband.
(27)That pending the payment by the husband under Order 19 above, or the sale of the home under Order 25 above, the husband shall be entitled to remain in exclusive occupation of the home subject to him:
(a)continuing to pay the interest only payments on the Bank PP mortgage;
(b)continuing to pay rates, insurance and Government levies on the home as and when they fall due; and
(c)continuing to maintain the home.
(28)That each party shall be responsible solely for any credit card liabilities, personal loans and other debts and liabilities not otherwise dealt with in these Orders, as may be in their name at the date of this Order and shall indemnify the other party from any claims in respect of such labilities, and without affecting the generality of this Order. The wife shall specifically be solely responsible for her HECS debt.
(29)That the parties shall liberty to apply or any orders to enforce the provisions of this Order.
In the Review Application, the mother described the orders sought in the rejected application as follows:
1.Leave to serve without notice.
2.Leave for myself, the Applicant, to be heard in this application in a case by Telephone on ******* due to my financial circumstances which are set out in my affidavit, if the matter is unable to be heard on the papers.
3.That the mother seeks an Urgent stay on Order 6 of the Orders of 30 July 2019 until the hearing of this application in which case she seeks further order that Order 6 be dismissed as per Order 4 below.
4.That further order be made for the purposes of enforcement of Order 4 of the orders of 30 July 2019 being as set out below:
That further order be made to Order 5 as per Order 29 of the orders of 30 July 2019 of Justice Baumann being that:
(a)To facilitate handover of the child, B (d.o.b. … 2011) for the time to be spent with the Mother Ms Meadows (d.o.b. … 1981) this shall occur (outside of):
(i) J Town Police Station located at TT Street J Town NSW; contact telephone number: ******; if failing that, an alternative option being as follows:
(ii)To facilitate handover of the child, B (d.o.b. … 2011) for the time to be spent with the Mother Ms Meadows (d.o.b. …1981) this shall occur at SS Town Police Station located at VV Street SS Town NSW; contact telephone number: ******
However, the Review Application went on to set out amended orders to be sought in the rejected application in the following terms:
The Following Amendments/Orders are sought within and for the Purposes of hearing and orders in the Review of the Registrars Decision:
1.Leave to serve without notice.
2.That an earlier date be fixed for hearing this application in a case in accordance with Family Law Rules 2004 5.05(4)a and 4(b)
3.That as per the Family Law Rules 2004 1.04, 1.09, 1.06b, 1.10 2(b), 1.12 3(a), 1.12 3(b) 1.12 3(d), 1.12 3(e), 2.01, 21.01, 21.02 1(b), 5.12, 5.13 and Section 69ZN, Section 43 1(c), Section 43 1(ca), Section 43 1(d) of the Family Law Act 1975 that this Review of the Registrar’s decision be heard.
4.That the mother for the purposes of hearing be allowed to attend by Telephone on 0421 ******* due to her regional NSW locality and financial circumstances as set out in her affidavits with her application namely affidavit affirmed 6 August 2019 and supporting that affidavit her affidavit of 8 August 2019.
5.The mother seeks an urgent stay on Order 6 of the Orders of 30 July 2019.
6.That further order be made for the purposes of enforcement of Order 4 of the orders of 30 July 2019 being as set out below:
That further order be made to Order 5 as per Order 29 of the orders of 30 July 2019 of Justice Baumann being that:
(a)To facilitate handover the child, B (d.o.b. … 2011) for time to be spent with the Mother Ms Meadows (d.o.b. … 1981) this shall occur (outside of):
(i) J Town Police Station located at TT Street J Town NSW ; contact telephone number: ******;
(ii)SS Town Police Station located at VV Street SS Town NSW ; contact telephone number: ******
7.That a stay on Order 6 of the Orders of 30 July 2019 be made.
8.That for the purposes of hearing this application the mother be permitted to rely on a consolidated affidavit of which includes the relevant information from the originally submitted affidavits with the Application in a Case dated 8 August 2019 namely affidavits affirmed by the mother on 6 August 2019 and 8 August 2019, the consolidated affidavit is attached and dated (blank)
9.That an order be made for make up time for contact time that was missed between Mother and child on 10 August 2019 to occur on the next available weekend in which the mother would otherwise not have contact with the child.
The hearing
On 21 August 2019, the mother attended by telephone and the father and the Independent Children’s Lawyer (“ICL”) attended in person. The ICL said that although he considered that his appointment was terminated by the final orders of 30 July 2019, as an aspect of the issues to be raised by the mother related to leave granted to the parties in paragraph 29 of the final orders, he considered that it was appropriate to attend.
Prior to the commencement of the hearing, I indicated to the parties the limited circumstances in which there could be further parenting proceedings after the making of final orders. The mother provided written submissions and she, the father and the ICL made oral submissions.
During the hearing, the mother interrupted me and the other parties on several occasions. After each of the parties had made submissions but before the mother was able to respond as she wished, I terminated her telephone connection with the courtroom. I terminated the connection after a further interruption by the mother, after giving the mother warnings, and after telling the parties that orders would be made shortly and that oral reasons would be settled and published.
Discussion
The issue before the Court is whether the mother should be permitted to file an Application in a Case seeking the alternate orders she proposed in paragraphs 1 to 9 of that application. Once final parenting orders are made, there is only limited scope for parenting issues to again be addressed. If there is an appeal, then a stay may be sought on some aspect of the orders. An application may be made to enforce the orders. An application can be made to vary machinery orders. Otherwise, any change to the orders would require a significant change of the circumstances of a child or the parties since the orders were made. In that event, fresh proceedings would be required, commenced by the filing of an Initiating Application.
I will turn to the orders sought by the mother or the orders that she proposed to seek. Firstly, she sought an order:
1.Leave to serve without notice.
This order is meaningless. Service is notice. Putting aside for the moment the involvement of the ICL, if the mother intended that the application be heard without notice to the father, then it would be bound to fail. No reason is offered for such an approach and it would represent an impermissible denial of natural justice for no purpose.
2.That an earlier date be fixed for hearing this application in a case, in accordance with the Family Law Rules 2004 5.05(4)a and 4(b).
Those rules provide as follows:
Rule 5.05
Fixing a date for hearing or case assessment conference
…
(4) The Registry Manager may fix an earlier date for the hearing of an Application in a Case, or an Initiating Application (Family Law) in which application is made for interim, procedural, ancillary or other incidental orders, if a Registrar is satisfied that:
(a) the reason for the urgency is significant and credible; and
(b) there is a harm that will be avoided, remedied or mitigated by hearing this application earlier.
This is an order that could be considered on its merits once there is a proper application before the Court.
3.That as per the Family Law Rules 2004 1.04, 1.09, 1.06b, 1.10 2(b), 1.12 3(a), 1.12 3(b) 1.12 3(d), 1.12 3(e), 2.01, 21.01, 21.02 1(b), 5.12, 5.13 and Section 69ZN, Section 43 1(c), Section 43 1(ca), Section 43 1(d) of the Family Law Act 1975 that this Review of the Registrar’s decision be heard.
I do not understand the import of this application.
This is apparently an order sought about the hearing of the review rather than of the substantive application. I have heard the review and nothing more needs to be said.
4.That the mother for the purposes of hearing be allowed to attend by Telephone on ******* due to her regional NSW locality and financial circumstances as set out in her affidavits with her application namely affidavit affirmed 6 August 2019 and supporting that affidavit her affidavit of 8 August 2019.
It is not clear whether this order is sought in relation to the hearing of the review application, the substantive application or both. For the hearing of the review application the mother was permitted to attend by telephone. As to the substantive application, this would be a matter for the judge hearing that application, if it is filed. However, it would be usual for such permission to be given in relation to an interlocutory hearing.
5.The mother seeks an urgent stay on Order 6 of the Orders of 30 July 2019.
This application is unlikely to succeed unless and until a change is made to the handover venue. The mother has yet to decide whether she will appeal and therefore the stay cannot be in aid of an appeal. On occasions stays are granted on an undertaking to file an appeal but as the mother makes clear in her affidavit, she has yet to decide whether to appeal or not. It appears that even without a stay, the mother has ignored the order in any event. The mother identifies no prejudice in complying with the order. The order simply requires each of the parents to meet the formal entry requirements of the centre. The mother identifies no reason for not complying with that order. The mother is apparently in breach of order 4 and yet she has sought no stay of that order.
6.That further order be made for the purposes of enforcement of Order 4 of the orders of 30 July 2019 being as set out below:
That further order be made to Order 5 as per Order 29 of the orders of 30 July 2019 of Justice Baumann being that:
(a)To facilitate handover the child, B (d.o.b. … 2011) for time to be spent with the Mother Ms Meadows (d.o.b. … 1981) this shall occur (outside of):
(i) J Town Police Station located at TT Street J Town NSW ; contact telephone number: ******;
(ii)SS Town Police Station located at VV Street SS Town NSW ; contact telephone number: ******
I assume that this is the substance of the mother’s application. She seeks a variation of the orders of 30 July 2019, to change the handover arrangements for her time with the B. The application cannot be one of enforcement because on her own evidence, she is in breach of the existing order. Enforcement of orders is discretionary and in the case of parenting orders, must promote the best interests of the child.
Order 29 made on 30 July 2019 gave the parties leave to apply and such a provision would allow a party to bring the matter back in relation to a necessary correction of a clerical or drafting error in the orders (e.g. r 17.02 of the Family Law Rules 2004). The essence of the mother’s application is that she cannot attend at the Suburb MM Contact Centre which is the venue for handover specified at paragraph 5 of the orders. It will be her case that she cannot afford to travel to and from that centre. The mother has a number of ancillary objections, including:
·that the orders do not specify the address of the centre and she cannot find that address or the telephone details;
·that her financial circumstances have changed since the hearing, in that she has lost her paid employment;
·that it is unreasonable that she has to travel so far to collect and return the child when the father is better able to do that travel.
There will be a dispute about some of those matters. As to the first of the dot points, I do not accept that the mother cannot find the address of the centre. As to the mother’s financial circumstances it will be the father’s case that under the property orders included in the final orders of 30 July 2019 he is ready and willing to pay $200,000 to the mother as soon as she withdraws a caveat placed on the title of a property. That would seem to put relief from the mother’s asserted financial difficulty within her own control. As to the respective impost on the parents of the arrangement itself, in his reasons for judgment Baumann J discussed at some length the reasons for his decision to order that the mother’s time be unsupervised. The father had sought that the mother’s time be supervised and the fact of that decision might explain the reason for the handover itself to be supervised. In any event, that is a matter properly left to the trial judge.
There is no doubt a problem with the handover provisions of the orders. That problem arises because the hours of operation of the specified centre will not facilitate paragraphs (4)(b), (c) or (d) of the orders. However the problem does not arise immediately as those provisions do not commence until after three months from 30 July 2019. I accept that the problem nevertheless will need to be addressed. Further, I am confident that the parents will not be able to resolve those issues by agreement and therefore, even if there is no other relevant issue, there is a machinery issue to be addressed by the trial judge in respect of the conflict between orders 4 and 5.
7. That a stay on Order 6 of the Orders of 30 July 2019 be made.
This repeats paragraph 5.
8.That for the purposes of hearing this application the mother be permitted to rely on a consolidated affidavit of which includes the relevant information from the originally submitted affidavits with the Application in a Case dated 8 August 2019 namely affidavits affirmed by the mother on 6 August 2019 and 8 August 2019, the consolidated affidavit is attached and dated (blank).
In order to facilitate the issues arising from the orders being addressed efficiently to his Honour, I will Order that each of the parents provide the evidence on which they seek to rely, to his Honour’s chambers within 14 days. That is to be in the form of one affidavit from each deponent. It is a matter for the parties if they would like to rely on an earlier filed affidavit.
9.That an order be made for make up time for contact time that was missed between Mother and child on 10 August 2019 to occur on the next available weekend in which the mother would otherwise not have contact with the child.
This is an order expressed as a consequence of an enforcement order. Given that the mother has not complied with the current order there may be an impediment to such an order being granted but that will be a matter for the trial judge.
I discussed with the father and the ICL whether I might refer the issues about the handover arrangements to Baumann J rather than waiting for an appropriate formal application and on balance that is the appropriate course. In the event that Baumann J would prefer some course, directions will issue from his Honour’s chambers. I have taken the liberty of rephrasing the operative words of the mother’s application filed 14 August 2019. In the event that I have not accurately represented what she now seeks, or if she changes the orders she seeks, she should set that out in a Minute of Order attached to the affidavit to be relied on by her or which is otherwise provided to the chambers of Baumann J.
Conclusion
In my view the mother’s application was correctly rejected for filing and the foreshadowed application should also be rejected.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 21 August 2019.
Associate:
Date: 11 September 2019
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