Merritt and Richards and Ors

[2015] FamCA 852

FAMILY COURT OF AUSTRALIA

MERRITT & RICHARDS AND ORS [2015] FamCA 852

FAMILY LAW – Enforcement of interim property sales orders to enable matter to be ready for final hearing.

Family Law Act 1975 (Cth)

APPLICANT: Ms Merritt

RESPONDENT: Mr Richards

2^ND RESPONDENT: B Holdings

3^RD RESPONDENT: Mr Moore

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGC 78 of 2014

DATE DELIVERED: 6 October 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 6 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Phelan

SOLICITOR FOR THE APPLICANT: Meier Denison Guymer Pty Ltd

THE RESPONDENT: In Person

COUNSEL FOR THE 2ND RESPONDENT:	No Appearance
THE 3RD RESPONDENT:	In Person

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr McCormack,

McCormack & Co Solicitors

Orders

1. To the extent practicable, the mother before 21 days of this date, serve upon the first respondent the documents in her position and control as may be described in the attachment to the email from the father to the mother’s solicitor dated 14 August 2014.

2. That the solicitor for the mother forthwith engross the attached minutes.

3. That there orders in terms of the attached minute which are orders of the Court.

4. That the reasons this day be transcribed and be made available to the parties.

5. ALL APPLICATIONS ARE ADJOURNED AND FIXED FOR FINAL HEARING before the Honourable Justice Cronin at 10.00am on 1 February 2016 subject to any part heard case as a three day case.

6. The evidence in chief of all witnesses shall be given by affidavit.

   TIMETABLE:

7. By 4 pm on 15 January 2016 the applicant mother file and serve upon all other parties:

   (a)an amended application setting out with precision the orders to be sought;

   (b)all affidavits of evidence to be relied upon; and

   (c)a financial statement.

8. The applicant pay all required court fees by 4 pm on 15 January 2016.

9. By 4 pm on 25 January 2016 the respondent father and the respondent third party Mr Moore file and serve upon all other parties:

   (a)an amended response setting out with precision the orders to be sought;

   (b)all affidavits of evidence to be relied upon; and

   (c)a financial statement.

10. By 4 pm on 29 January 2016 the Independent Children’s Lawyer file and serve upon all other parties, any affidavits relied upon.

11. Without leave of the Court, any affidavit filed beyond the timetable set out in these orders may not be relied upon.

    SUBPOENAE

12. All parties have leave to issue subpoenae for the production of documents. If a party is represented by a legal practitioner, the registrar shall, upon the certification of the legal practitioner, be satisfied as to relevance.

13. By 4 pm on 29 January 2016 all parties file electronically to … a case outline in one document setting out:

    (a)the outline of the issues in dispute;

    (b)the list of the affidavits to be read;

    (c)a concise set of orders to be sought;

    (d)the list of objections to evidence requiring a ruling;

    (e)a list of assets and liabilities.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Merritt & Richards and Ors 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: DGC 78 of 2014

Ms Merritt

Applicant

And

Mr Richards

Respondent

And

B Holdings

2^nd Respondent

And

Mr Moore

3^rd Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. In this case directions hearing, the applications were transferred by the Federal Circuit Court.  There is some confusion and frustration on the part of all parties.  Orders have been made for the sale of various items, both real and personal and there is still a dispute as to the implementation of those orders.  It is common ground that the orders have not been complied with.

2. Mr Richards says that he intends now to appeal against those orders and he is at liberty to do so, bearing in mind that he will need leave to do so, because apart from them being of an interlocutory in nature, they were made as long ago as August 2014 and May 2015.  That being the case he is out of time.  That is not to say that a Full Court might not take a different view to that which was taken by Judge Small.

3. For this case to get to trial, it is important that all of the necessary machinery provisions are put in place.  The proposals in terms of the minutes by counsel for the applicant (relating to the enforcement of the orders of Judge Small) have been given to both Mr Richards and to the third respondent, Mr Moore.  Whilst both indicated they could not read the writing, I have read to them what was written.  Despite my best endeavours to get some sort of commitment as to how the orders would be implemented, I was unsuccessful.

4. The proposed orders are sensible.  Two of the orders seek that in the event that the parties who are required to fulfil the orders of Judge Small do not comply with the machinery provisions to sign documents, the Registrar of the Court can be authorised to sign in that person’s behalf.  The only rider that I would add to that is that if an affidavit is filed by the applicant through her solicitor indicating the basis of the neglect or refusal to sign, the registrar need make no further inquiry.

5. There are plenty of opportunities for this matter to be sorted out.  I do not say the money here is not significant to the parties.  But by the time all of the costs are taken into account, not to mention the litigation costs, there will be very little money left.  The best course of action here is to ensure the implementation of the orders of Judge Small and set the trial down.

6. In the proceedings there seems to be some unresolved parenting disputes as well.  The independent children’s lawyer has indicated that whilst the father’s clear application for orders would seem to be of the normal type that a parent might seek, there is a certain illogical approach by him, bearing in mind the geographical problem between the two parents.  In addition, there is apparently some evidence that was provided to the Federal Circuit Court indicating that absent some professional work on the relationship between the father and the children, the experts would not support an order for contact between them.

7. That expert evidence is now before the Court and the case should be determined so that these children can get on with their lives.  Although in the more recent orders, a company, B Holdings Proprietary Limited was not named on the order, it should clearly be a party to the proceedings having been joined by an interim order on 27 January 2015.  That order is also not subject to any appeal. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 6 October 2015.

Associate: 

Date:  12 October 2015