Melvin and Melvin (No.2)

[2019] FCCA 365

FEDERAL CIRCUIT COURT OF AUSTRALIA

MELVIN & MELVIN (No.2) [2019] FCCA 365

Catchwords:
FAMILY LAW – Enforcement of final property orders – parenting – suspension of father’s time – risk issues.

Cases cited:

Melvin & Melvin [2018] FCCA 1847

Applicant: MS MELVIN

Respondent: MR MELVIN

File Number: MLC 6111 of 2016

Judgment of: Judge Harland

Hearing date: 5 February 2019

Date of Last Submission: 5 February 2019

Delivered at: Melbourne

Delivered on: 5 February 2019

REPRESENTATION

Solicitors for the Applicant: Ms Ebejer of Ebejer and Associates

The Respondent: In person

ORDERS

1. Within 45 days of the transfer of the property located at Property A, in the State of Victoria, occurring pursuant to orders made on 10 July 2018, the payment of $149,000 that the mother is to pay to the father in accordance with order 1(a) of the orders dated 10 July 2018 be distributed in the following manner and priority:

   (a)Payment of $6,442.28 and plus the mother’s costs of $3,361 (total sum $9,803.28) to the mother;

   (b)Payment of the balance owing to Robinson Gill Lawyers in the sum of $47,738.75 plus the sum of $1,500 being the costs of appearance and preparing the affidavit for the enforcement application; and

   (c)The remaining balance to the father.

2. Contemporaneously with receiving their cheque in accordance with order 1(b) above, Robinson Gill Lawyers provide a withdrawal of caveat at settlement with the father to be solely responsible for the cost of the withdrawal of caveat and these funds be deducted from the balance owing to the Husband.

3. The mother be granted leave to file and serve an application for costs as was provided in the final property orders dated 10 July 2018 and file written submissions with respect to further costs sought on or before 26 February 2019.

4. The father file and serve written submissions in reply to the wife’s written submissions pursuant to order 3 herein on or before 19 March 2019.

5. Thereafter, Judge Harland will determine the issue of further costs in Chambers unless either party writes to Chambers requesting that the issue be dealt with in Court.

6. Robinson Gill Lawyers be excused from any further attendance.

7. That pursuant to section 121 of the Family Law Act1975 the applicant and her legal representatives have leave to provide a copy of the affidavit of Timothy John Robinson sworn 4 February 2019 to the Victoria Police for the purpose of viewing annexure TJR-6.

8. The mother’s initiating application with respect to parenting is adjourned to the Duty List before Her Honour Judge Bender on 25 March 2019 at 9:45am.

9. The father file and serve a response and affidavit in support with respect to parenting on or before 5 March 2019.

10. All parties are to note and comply with Practice Direction No.2 of 2017 Interim Family Law Proceedings (from 1 January 2018) at >

    The father’s time with the children [X] born … 2011 and [Y] born … 2014 (“the children”) be suspended until further order.

11. Pursuant to s.68L(2) of the Family Law Act1975, the children be independently represented AND IT IS REQUESTED that Victoria Legal Aid reappoint DANDENONG FAMILY LAWYERS and:

    (a)forthwith upon appointment by Victoria Legal Aid or otherwise, the independent children’s lawyer file a Notice of Address for Service;

    (b)within 48 hours of notification of such appointment the solicitors for the respective parents (or, if unrepresented, then the parent himself or herself) provide to the independent  children’s lawyer copies of all relevant documents relied upon;

    (c)the independent children’s lawyer fulfil the requirements set out in ‘Guidelines for the Independent Children’s Lawyer’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.; and

    (d)the independent children’s lawyer prepare a minute of the orders he or she will recommend be made as final orders.

IT IS NOTED that publication of this judgment under the pseudonym Melvin & Melvin (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6111 of 2016

MS MELVIN

Applicant

And

MR MELVIN

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This matter was listed on an urgent basis before me today with respect to two issues.  The first is with respect to enforcement of the financial orders.  I refer to the primary reasons for decision handed down on 10 July 2018[1], in particular [11] to [27], which refer to the procedural history of the matter leading up to that hearing and non-compliance with interim orders.  The final orders included an order which provided for the wife to pay the husband a sum of $149,000 and to refinance the Property A property, which she would then retain. 

   [1] Melvin & Melvin [2018] FCCA 1847

3. With respect to the enforcement application, the wife relies on the affidavit that she filed on 17 January 2019 with respect those enforcement issues. In that affidavit she sets out her attempts to secure the husband’s cooperation with the implementation of those orders.  Mr Robinson from Robinson Gill Family Lawyers attended today.  Initially the wife was seeking that he be joined to the proceedings for the purposes of resolving the issue of the caveat that is secured over the property with respect to its costs. 

4. I granted leave to Mr Robinson to file an affidavit in Court which sets out the issues with respect to the settlement and the dispute between Robinson Gill and the husband with respect to legal fees.  Mr Robinson annexes a letter from the Victorian Legal Services Commissioner, dated 9 November 2018, which refers to not being able to resolve the dispute and advising the husband of his rights to apply to the Victorian Civil and Administrative Tribunal within 60 days of that decision and also of his right to seek a costs assessment from the Supreme Court of Victoria.  The husband said that he sought to have that issue resolved prior to agreeing to implement the settlement. 

5. The dispute that the husband has with his former lawyers is a matter between him and those lawyers and has nothing to do with the wife and her lawyers.  It is clear from the annexures to the affidavits of the wife and Mr Robinson that attempts were made to address the husband’s concerns and still enable the settlement to go ahead.  The wife’s case is that she now has to apply for refinance as the approval period has expired. 

6. It was also necessary for the wife to apply to a registrar of this court to sign the discharge of the mortgage as the husband refused to do so.  There are no further documents that require the husband’s signature, but the husband does need to advise of a bank account of where he would like to be paid his share of the proceeds of settlement. If he fails to do that, then the wife’s solicitor seeks an order that they be paid into the Unclaimed Money Register with the Victoria Office of State Revenue. It is clearly in Mr Melvin’s interest to provide account details so that he can receive his settlement entitlement. 

7. The wife’s solicitor has handed up a minute of order which seeks costs be deducted from the $149,000 owing to the husband pursuant to the orders, being the sum of $6,442.28, with respect to the applications to the registrar and the additional costs with respect to attempts to implement the settlement. I will make that order. She also seeks costs of today in the sum of $4,000.  I will also make an order for the wife’s costs of the enforcement application before the Court today in accordance with the scale, which is the sum of $3,361. 

8. I will make an order paying the amount owed to Robinson Gill Lawyers.  That is in the sum of $47,738.75 plus an amount of $1500, being the costs that Mr Robinson incurred in preparing the affidavit for today’s appearance and attending Court.  This does not prejudice the husband from pursuing his assessment of costs of the $47,000 and seeking that that amount be reviewed. 

9. I will make the order the wife is also seeking with respect to leave to be permitted to file written submissions with respect to the reserved cost from the trial.  She is out of time for that application as the orders provided for that to occur within 28 days.  She seeks to be able to pursue those in light of having to come back to Court on the enforcement applications, as she says that initially she did not have the funds to pursue those amounts. 

10. I propose to give the wife 21 days to file submissions with respect to further costs sought and I will give the husband 21 days thereafter to respond to those submissions.   I will thereafter determine the costs matter in chambers. 

11. There is also an application for parenting orders returnable today.  With respect to the parenting matter, the wife has filed a separate affidavit addressing those issues, which raise serious concerns about the children’s welfare, including [Y] receiving severe sunburn on Christmas Day, and also raising serious concerns about an incident on Christmas Day.

12. The wife also refers to an email that the husband sent to the wife on 3 January 2019 which raises some concerns about the husband’s lack of insight and attitude towards his daughter.  The husband has not had the opportunity to put on material in response to the parenting issues.  He says it is another example of the wife seeking to exercise control.  The allegations that are made are serious and cannot be ignored.  I also refer to annexure TJR6 of the affidavit of Mr Robinson, filed today, which also is concerning, and that matter has been referred to the Marshal of this court.  

13. I will appoint an Independent Children’s Lawyer (“ICL”) in this matter and I will request that the previous ICL be reappointed. 

14. As I have made several credit findings about the parties in the property judgment, it is appropriate that the parenting matters go before another judge.  I will transfer the parenting matter to Her Honour Judge Bender and list it Her Honour’s duty list on 25 March 2019 at 9:45am.

15. I will suspend the husband’s time with the children until the matter returns before Her Honour Judge Bender.

16. I will order that the husband file and serve his response and affidavit within 28 days with respect to the parenting issues.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  18 February 2019