MURGATROYD & MURGATROYD

[2019] FamCA 287

FAMILY COURT OF AUSTRALIA

MURGATROYD & MURGATROYD [2019] FamCA 287

FAMILY LAW – PRACTICE AND PROCEDURE – Interim – Where the Applicant sought to file an Application in a Case seeking many orders in the lead up to the trial in the matter – Where the orders able to be sought was limited – Where, amongst other orders made, the parenting and property proceedings are split, but otherwise the parenting proceedings are to proceed as listed.

Family Law Rules 2004 (Cth)

APPLICANT: Mr Murgatroyd

RESPONDENT: Ms Murgatroyd

INDEPENDENT CHILDREN’S LAWYER: Elizabeth Fairon

FILE NUMBER: MLC 12634 of 2016

DATE DELIVERED: 9 May 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 3 May 2019

REPRESENTATION

THE APPLICANT: Self-Represented

THE RESPONDENT: Self-Represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Dodd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Fairon
Life Law Solutions

Orders

1. That the Applicant father has leave to make and file a Notice of Child Abuse, Family Violence or Risk of Family Violence if he considers that appropriate.

2. That the Independent Children’s Lawyer (“the ICL”) provide to the Applicant father and the Respondent mother by Friday, 17 May 2019 copies of all her letters of instruction to the psychiatrist, Dr B, and to the family report writer, Mr C, whenever sent to them, that related to the provision by each of them of reports that have been filed in these parenting orders proceedings by the ICL.

3. That the ICL shall provide to the Applicant father and the Respondent mother by Friday, 17 May 2019, details of all fees that have been paid to each of Dr B and Mr C for the provision by each of them of reports that have been filed in these parenting orders proceedings by the ICL.

4. That leave be given to the Applicant father to cause a subpoena to issue out of the Court directed at the psychiatrist, Dr B, requiring him to produce the following documents:

   (i)Copies of all draft, interim and final medico-legal reports prepared by him in these proceedings;

   (ii)A copy of all electronic recordings made by him of any of the parties in these proceedings;

   (iii)Copies of all session notes, interview notes, file notes, and memoranda made by him in the course of preparing his report filed in these proceedings;

   (iv)Copies of all written material that was “perused” by each of the parties in the course of his preparing his report filed in these proceedings;

   (v)Copies of all correspondence between him and the ICL, including emails and any letters of instructions received from the ICL in respect to the preparation of his report filed in these proceedings;

   (vi)Copies of all consent forms signed by the parties in these proceedings in connection with the preparation of his report filed in these proceedings.

5. That leave be given to the Applicant father to cause a subpoena to issue out of the Court directed at the social worker, Mr C, requiring him to produce the following documents:

   (i)Copies of all draft, interim and final reports prepared by him in these proceedings;

   (ii)Copies of all electronic recordings made of any of the parties in the course of preparing any family report in these proceedings;

   (iii)Copies of all session notes, interview notes, file notes, and memoranda in respect to the preparation of any family report in these proceedings;

   (iv)Copies of all correspondence between him and the ICL, including emails and any letters of instruction received from the ICL in respect to the preparation of his reports filed in these proceedings.

6. That the Applicant father shall inform both Dr B and Mr C in writing at the same time as the subpoenas referred to in the previous paragraphs are served upon them that he will be meeting their reasonable costs of complying with the subpoenas and that each of them should provide an invoice as to such costs directed to the Applicant father with the documents that are produced to the Court so that the Court may consider making an order that the Applicant father pay such costs.

7. That leave be given to the Applicant father to cause a subpoena to issue out of the Court directed at the Department of Immigration and Border Protection for the release of information as to the visa type under which each child and the Respondent mother entered Australia on or about 7 January 2017, the current visa status of each child and the Respondent mother and the date upon which any said visas expired and/or was renewed.

8. That except in respect of the D School, the Respondent mother shall take all steps necessary to cause the Applicant father to be provided with complete, unredacted, legible certified copies of all school enrolment forms that she has submitted or amended in respect of each of the children, either in Country F or in Australia and she shall authorise any such schools to forward such copies direct to the Applicant father at his email address that she shall provide to those schools.

9. That the property adjustment proceedings as between the Applicant husband and the Respondent wife currently listed for hearing with the parenting orders proceedings from 18 to 21 June 2019 be adjourned to a date to be fixed leaving the parenting orders proceedings to be heard from 18 to 21 June 2019.

10. That each of the Applicant husband and the Respondent wife shall file and serve their affidavit of evidence in chief to be relied on at the parenting orders trial on or before Friday, 24 May 2019.

11. That on or before Monday, 10 June 2019 each of the Applicant father and the Respondent mother shall file and serve a draft of the orders each will be asking the Court to make in the parenting orders proceedings, including, should they consider it appropriate, the orders they will ask the Court to make in the event that:

    (a)The children are not permitted to be taken to live in Country F by the mother; or

    (b)The children are permitted to be taken to live in Country F by the Respondent mother.

12. That on or before Monday, 10 June 2019 the ICL shall file and serve a Case Outline document in which she sets out a chronology and a list of the affidavits of evidence upon which she intends to rely.

13. That on or before Wednesday, 12 June 2019 the ICL shall prepare an indexed and paginated bundle of documents which are to be tendered into evidence from the documents produced on subpoena and shall file a copy of that bundle with the court and provide one copy of that bundle to each of the parties.

14. That the Respondent wife shall inform the Court and the Applicant husband forthwith in writing as soon as the proceedings currently before the Court in Country F in respect of the validity of a will of the Respondent wife’s late father and the issue of a fresh “Certificate of Inheritance” are determined, and she shall, in these proceedings, file and serve a certified copy of the determination of the Court in Country F.

15. That the exchange rates to be used to convert foreign currencies into Australian dollars shall be those rates published by the Australian Government’s Australian Taxation Office and the rates to be applied at the trial of the property adjustment proceedings will be those exchange rates published on the internet website of the Australian Taxation Office on the first day of the property adjustment proceedings when the trial commences with the parties to be at liberty to use the exchange rates published by the Australian Taxation Office that are available to them at the time they prepare their affidavits of evidence in chief for the property adjustment proceedings trial.

16. That the Respondent wife disclose to the Applicant husband within one calendar month of the date of these Orders the following:

    (i)Copies of all documents filed in the Court in Country F in the application for a “Certificate of Inheritance” or an amended “Certificate of Inheritance” in respect of her late father’s estate;

    (ii)Copies of all documents that the Respondent wife has signed as a member or the Treasurer of the “Community of Heirs” in respect of her late father’s estate;

    (iii)A certified copy of the original “Certificate of Inheritance” of …2013 reference no. …13 Town G Court registered in 2013, certified copies of any subsequent amendments to this document, and a certified copy of the more recently issued “Certificate of Inheritance”;

    (iv)A high resolution, coloured PDF copy of the document that is said to be the more recently discovered joint will of her parents;

    (v)Copies of any documents required to be disclosed by her that have not already been disclosed, such as documents relating to her entitlements to a Country F pension or pensions, either current or in retirement, documents evidencing income received from any source, documents evidencing any financial gifts from her mother or any of her siblings, statements on any bank account she has or has an interest in anywhere in the world for the period commencing 1 January 2015 to date, any bank accounts in any of the parties’ children’s names upon which the Respondent wife has a right of withdrawal of the funds;

    (vi)Copies of any tax returns or exemption applications lodged by the Respondent wife in Australia or Country F since 1 January 2015.

17. That within one calendar month of the date hereof, the Respondent wife shall file and serve an affidavit in which she deposes to the full extent of her knowledge about the recent discovery of the purported will of her late father, including as to the identity of the person who discovered the document and any person who witnessed the discovery, the date and time of discovery and the location of the discovery, as well as her knowledge as to the “chain of custody” of the document up to the date hereof. 

18. That in the event that the Respondent wife has not obtained and provided  the Applicant husband with an expert real property valuation of the property constituted by the three adjoining blocks of land upon which the home of her mother is situated in Region J, Country F by the time the Court in Country F has finalised the proceedings currently before it pertaining to the validity of the will of the Respondent wife’s late father and the issue of the “Certificate of Inheritance”, the issue of whether a valuation of the said property is still to be obtained shall be determined prior to the listing for trial of the property adjustment proceedings between the parties.

19. The making of orders pertaining to the filing by the parties of updated Financial Statements and updated Balance Sheets shall be considered at the time of the listing for trial of the property adjustment proceedings between the parties.

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

REASONS FOR JUDGMENT

1. On 21 September 2018 I made trial management directions in this matter and listed the parenting orders and property adjustment proceedings for trial over four days commencing on 25 February 2019.

2. Due to unforeseen circumstances pertaining to my judicial calendar earlier this year, the trial had to be administratively adjourned and the parties were notified that the trial was listed for hearing over four days commencing on 18 June 2019.

3. The matter was then listed at the request of the Independent Children’s Lawyer (“the ICL”) for further mention. That took place on 15 March 2019. The mother and the father are each unrepresented and appeared that day without lawyers.

4. That day, the father asked for leave to file an Application in a Case in which he was going to ask the Court for further interim orders in the parenting orders and property adjustment proceedings. I gave him leave to do that and listed the hearing of that application for Friday, 3 May 2019.

5. Subsequently, the father’s Application in a Case was filed and brought to my attention. It contained 15 pages of orders sought, totalling 105 separate orders sought in total. I considered the Application in a Case and the affidavit the father filed supporting the application and determined to give him leave to proceed with his application for 38 of the 105 orders that he was seeking. I was conscious of the fact that the trial was listed for 18 June. I was also conscious of the fact that interim applications are, by the Family Law Rules 2004 (Cth), to be heard and determined in two hours. I considered most of the other orders sought to not be appropriately sought as interim orders less than two months from the commencement of the trial in the proceedings. Others, I considered to be inappropriate in any event and many I considered completely unsupported by evidence contained in the affidavit that was filed in support.

6. After the mother was served with the Application in a Case, she filed her own response in which she, too, sought some interim orders.

7. The hearing took a whole day of the Court’s time. The father and the mother appeared without legal representation. The ICL was represented by counsel.

8. I have determined to make the Orders that are set out at the commencement of these written reasons. I will limit the reasons I now set out to those that I consider necessary to be given. Some of the orders sought by the parties were either not opposed or were not pressed on the day.

9. In the parenting proceedings, the father asked for leave to make and file a Notice of Child Abuse, Family Violence or Risk of Family Violence. I will give him that leave.

10. The father asked for an order that the ICL effectively disclose her entire file to him. He is of the belief that the ICL has been involved in a conspiracy with the single expert psychiatrist and the Family Report writing social worker to pervert the course of justice in this case. He considers that her file will reveal that.

11. I will order the ICL to provide copies of all of her letters of instruction to the psychiatrist and to the family report writer that relate to the provision by each of them of reports that have been filed in these parenting proceedings. The ICL did not oppose such an order. She also did not oppose an order that she provide details of all the fees that have been paid to each of those single experts in the proceedings. I will make such an order as well.

12. The father also sought leave to cause subpoenas to issue out of the Court to each of the single experts in the parenting proceedings for them to produce all of their files. Again, he expects this will assist him prove the conspiracy he believes has occurred and will assist him in the preparation of his case for trial. I will make the orders he seeks for this but, as I told him at the hearing, I will also provide for him to inform the two experts that they are to determine the cost to them of compliance with such a subpoena and to inform the Court of that so that consideration may be given to an order for the father to pay those costs. That is only reasonable in the circumstances, in my judgment.

13. The father sought leave to cause subpoenas to issue to the Commonwealth Department of Immigration and Border Protection in respect of the visa status of the mother and their four children. I will make such an order. I will not make the order he sought for leave to issue subpoena directed at the Queensland Department of Transport for it to produce the driver’s licence history of the mother. After some discussion, it appeared there was no dispute between the parties as to the facts that the father was expecting the documents sought from that Department would prove.

14. I will order the mother to cause the father to be provided, at his email address, with copies of the enrolment forms completed in respect of each of the schools the children are enrolled at in Country F or in Australia (save for D School). Those documents have some relevance to the parenting orders proceedings and the mother did not oppose such an order being made.

15. At the hearing, it became obvious to me and all of the parties that the property adjustment proceedings could not appropriately proceed on 18 June. There is one major factual issue in dispute between the husband and the wife about which there are some likely determinative proceedings currently underway in Country F. I am satisfied that the property adjustment proceedings in this Court should not proceed until those proceedings in Country F are determined.

16. The wife has a brother and a sister who reside in Country F. Their mother lives there, too. Their father is deceased. The former family home of the wife’s parents is in a town in southern Region J in Country F, not far from the border with Country K. It appears not to be in dispute that when the wife’s father died a few years ago, it was considered that he had not left a will and his estate was dealt with as an intestacy. His interest in the home that he shared with his wife was apparently divided up between his wife as to 50 per cent and his three children as to the other 50 per cent in equal shares. The husband asserts the wife owns one sixth of the property as a consequence. The wife asserts that her mother already owned a half of the property, so that only her father’s half share was distributed to them, with her only receiving a one twelfth share.  

17. I had previously ordered that the wife take steps to have the property, which the husband asserts is worth around AUD4,000,000, valued in preparation for the trial.

18. Then, the wife asserts, a will was found by her mother in which her husband left the entirety of his interest in that property to his wife. That was apparently submitted to a Court in Country F and a new “Certificate of Inheritance” issued out of the Court. The wife asserts that, as a consequence, she no longer has any interest in that property and she unilaterally decided not to get it valued.

19. In the meantime, the husband communicated with the Court in Country F and informed them of the circumstances within which this purported will has been found and of his belief that this document has probably been forged as part of a conspiracy between the mother and the other members of her family to deprive the mother of an interest in the property so as to remove it from consideration in the property adjustment proceedings before this Court.

20. The wife gave evidence that as an apparent consequence of the husband communicating with the Court in Country F, that Court has required a forensic handwriting expert and document examiner to consider the document found and to provide opinion on whether the purported signature of the wife’s father is actually genuine. The wife’s family were asked to provide several samples of the deceased man’s handwriting for the expert to compare and consider. They have done that.

21. Neither the wife nor the husband were able to inform this Court as to how long it will be before the Court in Country F will decide on the validity of the document that was found that purports to be the will of the wife’s father. However, all parties agreed with me that it would be most appropriate to adjourn the property adjustment proceedings to a date to be fixed pending the determination by the Court in Country F as to the validity of the purported will that was found and the effect of determinations around that issue on the ownership of the property in Region J in Country F is more clear.

1. Accordingly, I will split the parenting orders and property adjustment proceedings and adjourn the property adjustment proceedings to a date to be fixed. The parenting orders proceedings, which include the mother’s application to be permitted to relocate the four children to Country F to live with her there, will continue to trial on 18 June 2019.

2. Affidavits of evidence in chief of the mother and the father are now to be filed and served on or before Friday, 24 May 2019. Such an order is necessary as neither party filed them, as previously ordered, once the February trial dates were vacated. I will also make some fresh orders about the filing of draft orders sought and a Case Outline document by the ICL. I will also order the ICL to prepare a bundle of documents and to file it by Wednesday, 12 June 2019, providing a copy to each of the mother and the father when she does.

3. The wife will be required to inform the Court and the husband as soon as the proceedings in Country F are finalised and she shall file and serve a certified copy of the determination by the Court in Country F in these proceedings. After that, the property adjustment proceedings will be listed before me for a further trial management event at which it will again be listed for trial with directions made.

4. The husband is concerned about the foreign exchange rates to be used in the property adjustment proceedings. I consider that the exchange rates published by the Australian Taxation Office on a daily basis are appropriate to be used by the parties in their trial affidavits and by the Court at the trial. My orders will reflect that.

5. The husband seeks further disclosure from the wife. I will make orders that she provide further disclosure, including with respect to specifically listed documents relating to the issue of the Country F property and the question of the inheritance and the wife’s share in the property or otherwise. I will also order further disclosure in respect of other relevant financial documents not yet disclosed.

6. I will also order the wife to file and serve an affidavit, as sought by the husband, in which she deposes to the full extent of her knowledge about the recent discovery of the purported will of her late father, including as to the identity of the person who discovered the document and any person who witnessed the discovery, the date and time of discovery and the location of the discovery, as well as her knowledge as to the “chain of custody” of the document up to the date hereof.  One calendar month is considered sufficient time for her to do this. These are clearly matters of relevance to the issues surrounding the wife’s purported interest in the Country F real property, though I expect a determination of the Court in Country F on the issue will be difficult to overcome by any of the parties in these proceedings.

7. The valuation issue, if not finalised by the wife before the Country F Court’s determination, shall await further consideration after the Country F Court’s determination is known and when the property adjustment matter is being set for trial. So too, the filing of updated Financial Statements and Balance Sheets of the parties.

8. I make the orders that are set out at the commencement of these written reasons.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 9 May 2019.

Associate: 

Date: