Murgatroyd and Murgatroyd

[2019] FamCA 881

FAMILY COURT OF AUSTRALIA

MURGATROYD & MURGATROYD [2019] FamCA 881

FAMILY COURT – INTERIM – Where the father seeks a number of Orders in the lead up to the parenting trial in this matter – Where all parties, including the father, consented to the parenting and property proceedings being separated – Where, among other Orders, the father seeks to have both proceedings re-joined and either adjourned pending the outcome of proceedings in Germany or for both to proceed on the commencement date of the parenting proceedings on the evidence currently available to the Court – Where the length of time this matter has been before the Court and the need to finalise the parenting matters for the children’s sakes are determinative in deciding it is appropriate for the parenting proceedings to proceed as listed – Where it is not appropriate to hear the property proceedings on the current evidence, as there is a significant factual dispute and it would be unjust and inequitable to do so while proceedings in a Germany Court are ongoing.

Family Law Act 1975 (Cth)

APPLICANT: Mr Murgatroyd

RESPONDENT: Ms Murgatroyd

INDEPENDENT CHILDREN’S LAWYER: Elizabeth Fairon

FILE NUMBER: MLC 12634 of 2016

DATE DELIVERED: 30 May 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 30 May 2019

REPRESENTATION

THE APPLICANT: Self-represented

THE RESPONDENT: Self-represented

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Fairon

Life Law Solutions

Orders

1. That leave be given to the applicant father to cause a subpoena to issue out of the Court directed to Legal Aid Queensland to produce copies of any and all applications the mother has made for a grant of legal aid in these proceedings and any correspondence relating to any such applications, with such subpoena to be returnable on Thursday, 13 June 2019.

2. That by close of business tomorrow, Friday, 31 May 2019, the applicant father shall file and serve the Independent Children’s Lawyer and the respondent mother with a list of documents he asserts have not been produced pursuant to subpoena to date by a certain person and certain organisations with the list to set out as headings the name of the person and then the names of the organisations he includes in paragraph 4 of his Application in a Case filed on 21 May 2019 and then, under each such heading to set out, numbered so they can be read and dealt with seriatim, the documents he asserts that the person and organisations have in their possession, custody or control that have not been produced pursuant to subpoena.

3. The Independent Children’s Lawyer shall then use her best endeavours to cause the named person and organisations to produce any such documents that they have in their possession, custody or control to be produced to the Court, as if under subpoena, as soon as is possible, with the Independent Children’s Lawyer reporting in writing to the applicant father and the respondent mother as to the outcome of such efforts as soon as possible, thereafter.

4. That the applicant father’s application to have the parenting orders and property adjustment proceedings joined again and heard at the same time in the one trial, the current trial of the parenting orders proceedings that is listed to commence on Tuesday, 18 June 2019 to be vacated and consequential directions made, is dismissed.

5. That the applicant father’s alternative application to have the property adjustment proceedings re-joined with the parenting orders proceedings and heard in the trial of those matters that is listed to commence on Tuesday, 18 June 2019 with the evidence that is currently available to the parties and to the Court, is dismissed.

6. That the father has leave to file a contravention application and/or a contempt application but neither shall be listed to be heard before or at the same time as the parenting orders proceedings are being heard at trial, with the listing for hearing of any such application filed being a matter to be determined by his Honour Justice Forrest if and when any such applications are filed.

7. That each of the applicant father and respondent mother shall file and serve their affidavits of evidence in chief upon which each intends to rely at the parenting proceedings trial commencing on Tuesday, 18 June 2019 as soon as they possibly can, but by no later than close of business on Monday, 10 June 2019.

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 Murgatroyd & Murgatroyd 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 BRISBANE

FILE NUMBER: MLC 12634 of 2016

Mr Murgatroyd

Applicant

And

Ms Murgatroyd

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. The parties in these proceedings are the Applicant, Mr Murgatroyd, and the Respondent, Ms Murgatroyd, as well as an Independent Children’s Lawyer (‘ICL’), Ms Elizabeth Fairon, a solicitor who was appointed at some stage since the proceedings were commenced in late 2016. 

2. The proceedings are indeed about property adjustment Orders and also about parenting Orders. The parenting Orders proceedings concern the four children of the mother and the father; namely, W, who is 13, X, who is 11, Y, who is 9 and Z, who is 6. The parents formed the relationship that produced those children sometime in or around 1999/2000. They married in 2002 and they separated in mid-2015, according to the father, and in or around January 2016, according to the mother. 

3. The father is Australian and the mother is from Germany. I do not know when she first came to Australia at this particular point in time. Up until July of 2015, or at least for some time leading up to that date, they lived in what I will call the former family home, in the suburb of Suburb L. 

4. In July 2015, there was an agreement reached between the two of them for the mother to take the four children with her back to her homeland of Germany to stay there for a six month period. The mother stayed in Germany with the children upon the expiration of that six months. She did so without the father’s permission. There is a factual dispute between them as to what her actual intention was when the two parents agreed for her to take the children for that six month period. The father says that the mother always intended staying with the children in Germany beyond the six months, even when she left Australia and took them for an agreed six months. That position of course includes with it the assertion that the mother misled or deliberately tricked him into giving his consent for her to take the children for six months, never intending to bring them back.

5. The mother says that that is not correct and that she actually only determined to stay in Germany when the father made it clear to her that he was not going to join her and the children there for Christmas that year before returning to Australia, as she says had been the agreement. In any event, the determination of this factual dispute is not a matter that needs to be determined, at least in the immediate determination of what is before me today.

6. Within months of the mother staying with the children in Germany, at the start of 2016, the father caused an application to be progressed through the Central Authorities, as they are called, of the two relevant countries, namely Australia and Germany. Pursuant to the Hague Civil Child Abduction Convention (as I might just colloquially call it), an application proceeded in the appropriate Germany Court for a return order to be made ordering the children to be returned to Australia. In August of 2016, a Germany Court in City P, in the Region J, ordered the children to be returned to Australia by January 2017. It also ordered the father to make the former family home available to the mother and children upon their arrival. I understand that the mother may have even appealed unsuccessfully the first instance determination of the Germany Court. In any event, the family returned to Australia sometime in the early part of 2017. 

7. In the meantime, proceedings had been commenced in this Court in Australia effectively by the Mother from Germany by way of representations made through the Hague Network Judges to achieve an actual Order made by this Court that reflected the Order made by the Germany Court. The parents have been in dispute ever since about parenting and property division.

8. The mother and the four children have been living in the former family home at Suburb L since and the father is living in a rented small apartment in Suburb H that he moved into sometime after the return to Australia of the mother and the four children. His living circumstances have, as I understand things, contributed to the difficulties that he has faced in having all four of the children spend time in his overnight care in the time that has elapsed since then. 

9. The matter was in this Court’s list awaiting movement towards trial for some time. On 21 September last year, 2018, it eventually came before me for a trial management event. On that particular day, I made trial management directions that included the listing of the trial for a hearing of four days commencing on 25 February this year, 2019. Both the property adjustment and parenting Orders proceedings were listed to be heard and determined in those four days. Unfortunately before that date, because of administrative reasons pertaining to my docket and diary, I had to vacate those hearing dates. When I did that, I listed the matter for hearing again over four days commencing on 18 June 2019 and notified the parties. 

10. After the parties were notified, the matter was listed for further directions at the request of the ICL. Certain things were discussed and happened on that particular day. The father made it clear to me on that day that he wanted to file an Application in a Case in which he was going to be seeking a number of further interim Orders in respect of the preparation of the property and parenting proceedings. I determined that he could file such an application, I gave him a time for it to be filed by with any supporting evidence and listed it for hearing on 3 May 2019. 

11. When he filed the Application in a Case it was brought to my attention in my Chambers on an administrative basis. His Application in a Case included over 100 orders that he actually sought. I determined, having regard to the rules about hearing interim applications within a two hour timeslot and given the fact that the matter was listed for trial in June, to restrict and limit the number of orders that I would give the father leave to proceed with in that Application in a Case.  That was returned to him, and he was able to file it and serve it on the mother and the ICL. 

12. On 3 May, much came to light about matters relevant to the property division proceedings. Indeed, on that day, I made some 19 further Orders in respect of the management and interim direction and preparation of the matter for trial. Very significantly, I made further Orders that day that separated the property and parenting proceedings. I determined that day that it was appropriate to separate them as there were certain matters impacting quite significantly on the readiness of the property adjustment proceedings to go to trial.

13. Before I just turn to those, I observe that on that day, 3 May, each of the parties, including the ICL, all agreed that the separation of the property proceedings and the parenting proceedings was appropriate, as was the continuation of the parenting proceedings going to trial on the four days commencing Tuesday, 18 June. Indeed, if I can just digress to include in these reasons some of the factual matters pertaining to the determination to separate the trial proceedings.

14. There is a great deal of contention or dispute between the parties, that is the husband and the wife as I might refer to them as in respect of their property adjustment proceedings, particularly in respect of the wife’s interests or otherwise in property in Region J, Germany. The wife has her own mother living in what I understand is her former family home in a town in the Region J, down south somewhere towards the borders between Region J, Germany and Country K and Country U, though I am not exactly sure of the precise location of which of those other country borders is the closest. The wife also has siblings who live in Germany. I know she has one brother at least, and a sister, maybe two sisters, none of them of course live in the same home as their mother, but they are in Germany as I understand it.

15. The concerns around the wife’s interest in property arise in these circumstances. The wife’s father, who I understand lived in the same former family home with the wife’s mother, passed away some years ago, perhaps if I can recall correctly as long ago as 2013. I am not sure whether the wife accepts it or not, but the husband contends that the wife inherited on the death of her father an interest in this particular real property in Germany, jointly with her mother and with her siblings. In my trial management directions Orders made on 21 September, I made a number of Orders that effectively set up a process by which the parties were to obtain a single expert evidence report pertaining to the value of that real property in Region J. 

16. When the matter came before me again in March and May of this year, it became clear that the wife had not taken the steps to obtain the valuation. What she was then asserting was that sometime late last year, an actual copy of the last Will and Testament of her late father, which they did not know previously existed, was found, which indeed left the property to her mother in totality and not to her and her siblings in respect of any share. To be fair, I understand that the previous position was one based on intestacy, that is, the non-existence of a Will when the father died. 

17. It became clear that the wife’s position was one where she thought she need not comply with the order for valuation of the property because on the finding of the Will and the changed circumstances alleged to be presented by that Will, she actually did not have an interest in this particular property. However, it also became clear that the husband has taken particular interest in these changed circumstances and does not accept the honesty of the wife, and perhaps her mother, in respect of the assertion that a Will was lately found at the end of last year that changed the circumstances. Indeed, I understand his position to be that there has been a conspiracy to defraud here between at least the wife and her mother, if not others, through the preparation or forgery of a Will and presenting it as an actual Will signed by her father before he died. 

18. My understanding of the factual circumstances that then transpired is that the husband made contact with and representations to a Court in the Germany Court system about his views in respect of this and the circumstances pertaining to it which has caused the Germany Court to open an enquiry, or an investigation as it may be called having regard to their inquisitive system as opposed to our adversarial system, to determine the validity of the Will that was found. It seems agreed between the parties or at least understood with respect to what the wife tells the Court, that the Germany Court has referred the Will to a forensic document and/or handwriting expert who has sought and obtained multiple examples of actual handwriting of the wife’s father to compare and contrast with the signature of her father purported to be his signature on this latest Will and that that is currently in the process of being examined and considered, and today I hear the mother has been informed it could yet take a further nine months. 

19. When that came to light on 3 May, it was clear to me that until that issue was determined by the Germany Courts which will determine ultimately (a) whether the wife has got an interest in that property or not; and (b) the extent, if any, of her involvement in a conspiracy to defraud, the property adjustment proceedings in this Court should not proceed to trial. Simply put, the wife’s interests in property are, fairly significantly, as yet unclear and the trial in this matter in respect of property proceedings ought not continue and that was the position agreed by all the parties until it is at least clear and not as unclear as it currently is with those proceedings yet to be determined. 

20. One of the other aspects of the application that the father was wanting heard and determined on 3 May was a determination of the question of him having leave to file and commence proceedings against the mother for contravention of previous Orders and also alleging contempt of the Court in an application that would be filed pursuant to s 112AP of the Family Law Act 1975 (Cth), in which an assertion is made that an Order has been contravened in circumstances that demonstrate a flagrant challenge to the authority of the Court by the alleged contemnor. I determined not to give the father the right to do that prior to or in conjunction with the trial that was to be heard on 18 June. Again, as recently as 21 May 2019, last week, less than one month before the commencement of the trial that was listed, the father has filed another Application in a Case. I listed that for hearing today and that is what I am now determining.

21. In that Application in a Case supported by a relatively short affidavit, he has sought a total of seven orders. They are as follows:

    (1)That leave be given to the Applicant father to cause a subpoena to issue out of the Court directed at Legal Aid Queensland;

    (2)That leave be given to the Applicant father to prepare and lodge an Application Contravention without encumbrance and that this matter be heard expeditiously by the Courts prior to any trial proceeding;

    (3)That leave be given to the Applicant father to prepare and lodge an Application Contempt without encumbrance and that this matter be heard expeditiously by the Courts prior to any trial proceeding;

    (4)That the Independent Childrens Lawyer (ICL) Elizabeth Lee Fairon, be required to obtain from the subpoenaed persons all letters, reports, correspondence referenced in the subpoenaed documents but not included in the documents lodged with the courts including the subpoenaed documents from;

    -      Dr Q,

    -      Suburb T Medical Centre

    -      Suburb T Medical Centre

    -      Queensland Children’s Hospital / S Hospital / Queensland Health / R Family Centre

    (5)That to restore procedural fairness to the case the Family and Property matters be recombined and heard at the same Trial with the Property matters proceeding the Parenting matters

    (6)That the Parenting and Property matters in this case be restored to the list forthwith for further Interim Orders, Procedural Directions and to await the legal outcomes of various ongoing matters that have significant bearing on the outcome of this Property and parenting matters in this case.

    (7)That if the Court refuses to return the case to the list then the Parenting and Property matters in this case be heard in the same Trial with the Property matters proceeding the Parenting matters with the evidence currently available to the parties and to the Court

    (As per the original)

22. I heard the father who, throughout the time the proceedings have been before me over the last 10 months, remains without legal representation. I heard the mother who appeared and has also appeared each time the matter has been before me without legal representation.  I heard the ICL, Ms Fairon, who appeared without counsel. 

1. The first order the father sought was that leave be given to him to cause a subpoena to issue to the Legal Aid Office. Although that was opposed by the mother, after some discussion with her, I considered that the opposition was not very strong opposition and after some further discussion and the hearing of the father, the mother and the ICL, it seemed to me that that was a relatively easy matter to decide and I told the parties the nature of the Order that I would be prepared to make, which I will at the conclusion of these reasons.   

2. If I can next go to the order that was sought in the application that is listed in paragraph 4. In that application, the father, after some discussion, made it clear that what is meant to be conveyed to the Court through his application and his evidence, is that some documents should have been produced under subpoena by the particular named recipients of subpoenas in these proceedings to date, four of which he effectively gives the names of, one being a doctor and the other three being organisations. He is seeking an order that actually results in those documents that may be in the possession and custody or control of those named persons that were not produced pursuant to the subpoenas and should have been, to actually be produced by that person and those organisations and made available for him to inspect before the commencement of the trial. Some discussion was had between myself, the father and the ICL and, as I understood the outcome of that discussion, resulted in an appropriate formula to be converted into an Order that should see the concerns of the father satisfied in the near future. I have drawn a couple of paragraphs of Orders that I intend to make that I understand in my view meet that outcome appropriately. 

3. The remaining orders that he seeks can be divided effectively into two categories.  The first one being that he wants to see the property proceedings “recombined”, is his word, or “re-joined” is what I would say, to the parenting proceedings so that those matters can be heard and determined all at the same trial. In seeking that order though, he argues that they cannot be heard and determined in the trial on the dates of the four days that are currently listed to commence on 18 June.  He effectively seeks a rejoinder of the property and parenting proceedings, for those trial dates to be vacated, and for the matters to simply go back into the list and be relisted at some future date for consequential directions to be made managing the proceedings toward a future trial where they are heard all together. 

4. The husband sought an alternative order if he is unsuccessful in getting the first that I have just mentioned. He seeks an order that the property proceedings be re-joined with the parenting proceedings and again listed for hearing in the same four days that the parenting proceedings are currently listed for, namely from 18 June. However, he wants the proceedings to be heard and determined on what he says in his order is “the evidence currently available to the parties and to the Court”. By that, I understand it to mean without regard for what the ultimate outcome of the proceedings in the Germany Court, instigated by him, actually is.

5. In the second part of the remaining category of orders. he again seeks leave to commence contravention proceedings and contempt proceedings against the mother and most importantly, he wants those proceedings to be listed and heard prior to the listing and hearing of the parenting and property proceedings. I shall come back to those. 

6. The father submits in support of his application for the rejoinder of the property and parenting matters and the vacation of the trial dates, that he simply cannot have a fair trial in the parenting proceedings if they proceed alone without the matters pertaining to the property proceedings being heard and determined at the same time. Essentially as I understood his submissions, he places great stead on the fact that his view is that the parenting proceedings involve numerous disputed matters of fact between the parties where he says one thing about the matter of fact and the mother says a contrasting and completely different thing about the matter of fact, which he describes as “he says - she says”, where ultimately one of them, is the essence of his submission, must be telling the truth and one of them must be telling lies. Of course, he asserts that it is the mother who is telling lies in respect of all the significant matters of disputed fact. 

7. He follows that first part of his submission with a submission that ultimately the determination of those factual disputes in his favour will depend on findings of the credibility of both parties, and that his position is that matters pertaining to the contravention and contempt proceedings, and property proceedings, that are not particularly related to the parenting proceedings will, when heard and determined, significantly impact in a negative sense on the mother’s credibility such as to make it easier for the Court to determine that she is the one who is lying about the significant matters of fact in the parenting proceedings. He makes a submission that it would be unfair to commence the parenting proceedings trial without first determining, in what he submits quite confidently would be in an adverse manner, the credibility issues pertaining to the mother so that she is discredited already when we head into the parenting case. He says if that is not the course followed by the Court, then he suffers an injustice or a great prejudice and that ought not to be allowed to happen.

8. At the same time, he submits he is also prejudiced by not hearing and determining the property proceedings at the same time as the parenting proceedings because of his desire to get back into the family home and because he believes that will all be achieved in the property proceedings in a such a way that makes it easier for him to achieve the parenting orders that he seeks, namely, an equal shared care, 50/50, equal time arrangement with the mother.

9. The mother opposes these applications of the father. The ICL did not oppose them nor support them. When asked her position, she, to her credit, pointed to the fact that in the report of Mr C, the Family Report Writer, he had discussed, in a relevant sense, the issue of the father’s living arrangements and the father’s proposals in respect thereto would certainly have some bearing in the parenting proceedings.

10. Indeed, in paragraph 162 on pages 89 and 90 of the Annexures to Mr C’s affidavit that was filed on 5 February 2019, which are his two Family Reports that have been prepared in the proceedings to date, Mr C in his evaluation does talk about, under the descriptor “There are disadvantages…”, the living in a week-about arrangement proposal of the father. He lists five potential disadvantages, one of which is that the father’s longer term living arrangements are unknown and untested, as is his capacity to care for the children for longer periods of time.

11. I have given, over the last couple of hours since I finished hearing the submissions of the parties, these matters a great deal of careful consideration.

12. Ultimately, after having done that, I have determined, based on principally the length of time this matter has been before the Court since it was commenced in 2016, the length of time these parents have been in dispute about their parenting, the need to finalise for the children’s sake the dispute about their parenting as quickly as possible, and all of the evidence I have read in this matter so far since it has been before me since 21 September and the experience I have had seeing and hearing the parties in that time, that I am led to the view that there is a serious degree of conflict between the parents in this case that one could only describe as disturbing high conflict that is likely to be impacting negatively on the children, and it is not appropriate to adjourn off the parenting proceedings that are listed for hearing, and have been listed for hearing now for some months, commencing on 18 June.

13. I am not persuaded that, in all the circumstances, the interests of justice require the property proceedings and the parenting proceedings to be again joined and heard in one set of proceedings that might not now be heard for perhaps another nine months, having heard the evidence about the possible length of time it might take the Germany Court to conclude its investigation. In parenting proceedings of course, the paramount consideration is the wellbeing of the children who are the subject of the case and in my view, that paramount consideration is best met by getting this matter to trial, and hearing and determining it as soon as possible.

14. I am not persuaded by the submissions made by the father or any of the evidence presented in his affidavit that there would be a miscarriage of justice or a gross injustice done to him by not (a) putting the parenting and property trial proceedings back together; or (b) letting him proceed with contravention and/or contempt proceedings prior to the hearing of parenting proceedings. I am fortified in that view by some of the things that were said by him in answer to questions I asked this morning during discussion between bench and bar table. I particularly asked the father if he could tell me of particular parenting Orders that he claimed the mother had contravened which might indeed persuade me that it was important to hear those contravention proceedings before the hearing and determination of the parenting proceedings. He fairly quickly and readily conceded I have to say, to his credit, that most of the dispute about alleged contraventions and/or contempt relate to property matters or matters pertaining to property and he could not, and did not, take me to any particular aspects of the parenting where he was able to persuade me that contravention proceedings needed to be heard and determined before proceedings with the parenting Orders or where the parenting proceedings could be heard without the property proceedings being heard and determined alongside them.

15. I also discussed with the father and pointed out to him that he will, during the course of a trial of contested parenting Orders proceedings, be entitled to cross-examine the mother in respect of matters that go to her credibility, including by producing documents to her that he will assert discredit her or discredit her evidence and that he will be able to do that at the trial, even if those matters and those documents are more appropriately relevant to the determination of property proceedings. Nevertheless, he was not able to persuade me that notwithstanding that being available to him, that justice still would not be able to be done.

16. I intend to reject and dismiss his application for the matters that he had, on 3 May, agreed to separate being re-joined. I reject and dismiss his application to vacate the parenting trial that is currently listed for 18 June and intend to continue to hear that on that date and for those four days if that is how long it takes.

17. I also reject and dismiss his application framed in the alternative to re-join the property proceedings and list it to be heard at the same time over those four days, relying only on the evidence that is currently available.

18. Unfortunately for the father really, and for the mother as well, the property adjustment powers of the Court require the Court to make adjustment Orders in respect of “the property of the parties… or either of them”. That is the wording of the part of s 79 that confers jurisdiction on the Court to make property adjustment Orders in respect of that property that the Court ultimately determines is “just and equitable”.

19. Knowing now as I do that there is a significant factual dispute about whether or not the wife has an interest of some value in a piece of valuable real property in Region J, Germany, I consider it would be unjust and inequitable to proceed to a property trial where that matter remains unclear and undecided whilst proceedings go on in Germany, instigated by the husband, to determine her interest one way or another. I am not persuaded that the alternative course of bringing the property proceedings back on in the same trial commencing in 18 June, is appropriate. 

20. Finally, I reject and dismiss the application to hear contravention and contempt proceedings before the parenting matters are heard and determined in the trial currently listed on 18 June. That is not to say that I will not consider the listing of such applications by the father if and when he files such applications, but I certainly will not be in a position to list and hear them before the trial that is currently listed on 18 June. I am not persuaded or convinced that determination of un-particularised, unspecified contravention and contempt applications prior to that hearing are vital to the interests of justice to be heard and determined before that time. 

21. Having given all those reasons, I make the following orders.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 30 May 2019.

Associate:

Date:  26 November 2019