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

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.
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.
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.
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.
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.
Robinson Gill Lawyers be excused from any further attendance.
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.
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.
The father file and serve a response and affidavit in support with respect to parenting on or before 5 March 2019.
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.
Pursuant to s.68L(2) of the Family Law…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Melvin and Melvin (No.2)

Details

AGLC: Melvin and Melvin (No.2) [2019] FCCA 365
Case: [2019] FCCA 365
Decision Date: 5 February 2019

CaseChat Overview and Summary

In *Melvin and Melvin (No.2)*, Judge Harland considered the distribution of funds arising from the sale of a property and related legal costs. The dispute involved the mother and father, with the court tasked with determining how a payment of $149,000, to be made by the mother to the father, should be allocated. This allocation was to take into account prior orders regarding property division and legal fees.

The court was required to determine the priority of payments from the $149,000 sum. Specifically, it needed to decide how to address the mother's entitlement to a portion of the funds, the outstanding legal costs owed to Robinson Gill Lawyers, and the remaining balance due to the father. Additionally, the court considered applications for further costs and the provision of legal documents to the Victoria Police. The proceedings also involved parenting matters, including the suspension of the father's time with the children and the independent representation of the children.

Judge Harland ordered that the $149,000 be distributed in a specific order of priority. First, the mother was to receive $6,442.28 plus her costs of $3,361, totalling $9,803.28. Second, Robinson Gill Lawyers were to be paid their outstanding sum of $47,738.75, plus $1,500 for costs associated with an enforcement application. The remaining balance was to be paid to the father. The court also ordered that Robinson Gill Lawyers provide a withdrawal of caveat at settlement, with the father to bear the cost of this withdrawal, to be deducted from the balance owing to him. Leave was granted for the mother to file an application for further costs, with submissions to be exchanged between the parties. The father's time with the children was suspended until further order, and the children were to be independently represented, with specific directions given to the independent children's lawyer. Leave was also granted for the applicant and her legal representatives to provide an affidavit to the Victoria Police for viewing.

Orders

Orders of the court

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

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.

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.

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.

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.

Robinson Gill Lawyers be excused from any further attendance.

That pursuant to section 121 of the Family Law Act 1975 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.

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.

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 http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/rules-and-legislation/practice-directions/2017/022017.

11.

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

12.

Pursuant to s.68L(2) of the Family Law Act 1975, 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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.