MUNAYALLAN & SCOTT

[2018] FamCA 115

FAMILY COURT OF AUSTRALIA

MUNAYALLAN & SCOTT [2018] FamCA 115

FAMILY LAW – PROPERTY – Where the wife seeks orders for the division of property – Where there are proceedings in the New South Wales Supreme Court in relation to one of the properties – Where a conciliation conference is not appropriate – Where the Court is reluctant to take too many steps in relation to property prior to the outcome of proceedings in another Court as there may be no assets to be divided – Where no order is made in relation to property.

FAMILY LAW – CHILDREN – Where there are competing proposals in relation to parental responsibility and time spent with each parent – Where there may be a level of cooperation between the parties – Where it is ordered that a family report be prepared.

Family Law Act 1975 (Cth) ss 60CC, 106B
Family Law Regulations 1984 (Cth) reg 7

APPLICANT: Ms Munayallan

RESPONDENT: Mr Scott

INDEPENDENT CHILDREN’S LAWYER: Rowley & Associates

FILE NUMBER: SYC 59 of 2010

DATE DELIVERED: 15 January 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 15 January 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Remington & Co

RESPONDENT: Mr Scott in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Rowley

Orders

1. A family report be ordered directed particularly to:

   1.1the wishes of the children,

   1.2the question of family violence,

   1.3the question of parental responsibility, and

   1.4the question of whether the current equal time arrangement is meeting the needs of the children adequately and if not what arrangement would meet the needs of the children;

   together with such that the other matters in s 60CC of the Family Law Act 1975 (Cth) that the family report writer considers appropriate and that are raised with that report writer by the parties.

2. The Court Notes that Mr B provided a memorandum in the proceedings and there may be an efficiency, if he was available to prepare the report, if he was to do so.

3. The father provide any passports in the name of the children, current or expired, to the registry manager within seven days from today’s date.

4. As soon as practicable after the date of the interviews with the family report writer are known the Independent Children’s Lawyer cause the proceedings be restored to the list for consideration of making trial directions if not in relation to all outstanding proceedings, in relation to the parenting proceedings.

5. Any third party against whom orders may be sought or in respective of whom orders sought in these proceedings may affect their rights or interests be served with that process or amended process within 28 days from today’s date.

6. Leave is granted to any of the parties to restore the proceedings to the list on giving seven days’ notice to the Court and to each other.

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 Munayallan & Scott 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:  SYC59 of 2010

Ms Munayallan

Applicant

And

Mr Scott

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to two children, C and D who are 10 and eight years of age, respectively.

2. The mother and father are 44 and 47 years of age respectively.  They started living together on the mother’s case in 2006 and on the father’s case 2009.  The parties were married in 2010 and they separated for the last time on 14 February 2014.  Proceedings were commenced in the Federal Circuit Court of Australia by the father in October 2010.  The proceedings were transferred to this Court on 31 August 2016.

3. The father brought a property at Suburb E in 2005.  He says that he borrowed money from a company in order to complete that purchase.  On 29 October 2014 he contracted to sell the property.  He reneged on that contract.  There have been proceedings in the New South Wales Supreme Court and an order has been made for specific performance of that contract.

4. In July 2015, allegedly in breach of an order of the Federal Circuit Court, the father purported to transfer the Suburb E property to a company associated with his brother.  The Federal Circuit Court injunction was granted on 25 June 2015.  As has been indicated in the course of submissions, the New South Wales Supreme Court found that that transfer was fraudulent and has ordered that the contract for sale be completed.  I am told that there may be an outstanding appeal to the Court of Appeal in relation to that order.

5. There is another property at F Street.  It is the husband’s case overall that there is no matrimonial pool or no significant net matrimonial pool of assets.  He contends that albeit the company is associated with his family, the beneficial ownership of the F Street property is held by a company of which his mother is a director.  He contends that because of mortgages, albeit unregistered mortgages, there is no equity in the Suburb E property.  Those matters are still before the New South Wales Supreme Court. 

6. I was considering ordering that there be a conciliation conference in the matter but on those facts it will be impossible for the parties to negotiate.  There is nothing to negotiate about.

7. On the parenting side, orders were made in the Federal Circuit Court on 24 October 2014 for a week about arrangement.  The mother seeks sole parental responsibility, that the children live with her and that they live with the father on a day only basis, on Monday evenings and each alternate Saturday from 10.00 am till 2.00 pm.  The father’s formal application is for equal shared parental responsibility, that the children live with him and spend time with the mother on alternate weekends Friday to Sunday and each Tuesday overnight to Wednesday and half the school holidays.  He appears on his own account and says to me today that he is not entirely sure about the extent to which he wants any change in the orders.

8. I gather from what he said today that things are not so bad.  He says that at times there is no communication between him and the mother but as recently as a week or so ago the mother asked him to drive her and the children to the airport.  It is his case that there is a level of cooperation between the parents.

9. I gather that the mother’s case is different.  She is not present today and I understand that she is on holiday.  Her case will be that the current living arrangements are not meeting the needs of children.  A similar concern will be expressed on behalf of the children.  Where there is relevant litigation in another Court and its resolution is imminent, I am reluctant to take too many steps on the property side of the case because there may be no assets to be divided.

10. Hopefully the proceedings in the New South Wales Supreme Court will resolve the question of whether there is any equity in the Suburb E property. If not, that will crystallise things nicely and that would leave the only significant asset being the F Street property which is in the name of a company. That company has been served in the past with documents because it has been previously restrained in these proceedings. The mother’s solicitor is not sure that they have been served with the application filed under s 106B of the Family Law Act 1975 (Cth) to set aside the transfer of the property to that company.

11. If there is no equity in the Suburb E property there are no relevant proceedings before this Court until the owner of the F Street property is joined.  I gather that the parties have no other assets.

12. There is a family report from Dr G from 2015 and that needs to be updated. Dr G provided that report under reg 7 of the Family Law Regulations 1984 under an arrangement provided by the Federal Circuit Court. For reasons that do not bear any real scrutiny, it is my understanding that this Court does not have access to a budget for reg 7 appointments. Therefore, unless the parents can fund an updated report from Dr G, there will be no update. I have not been told about the likely cost but I imagine it would be some thousands of dollars. The father’s case is that he does not have money and that in the past in these proceedings he has been granted legal aid. That in turn suggests that the legal aid authorities were satisfied that he did not have any money.

13. There is no offer from the mother through her solicitor, Mr H, for her to contribute to such a report. Therefore I order that a family report be prepared in these proceedings, directed particularly to the wishes of the children, the question of family violence, the question of parental responsibility and the question of whether the current equal time arrangement is adequately meeting the needs of the children and, if not, what arrangement would meet the needs of the children in a better way, together with such of the other matters in s 60CC of the Family Law Act 1975 (Cth) that the family report writer considers appropriate and that are raised with that family report writer by the parties.

14. I note that a Mr B earlier provided a memorandum in the proceedings and there may be an efficiency, if he was available, to him preparing the report.  An order has previously been made that the father surrender the children’s passports to the registry manager.  He has not done that, he says, because they have expired. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 15 January 2018.

Associate: 

Date:  30 January 2018