Picken and Picken (No. 4)

[2008] FamCA 814

FAMILY COURT OF AUSTRALIA

PICKEN & PICKEN (NO. 4) [2008] FamCA 814

FAMILY LAW – PROPERTY – Enforcement of property orders - Wife's trustee in bankruptcy

Family Law Act 1975 (Cth)

APPLICANT: Ms Picken

RESPONDENT: Mr Picken

INDEPENDENT CHILDREN’S LAWYER

INTERVENOR: Mr P (as Trustee in Bankruptcy of the Estate of the Wife)

FILE NUMBER: MLF 503 of 2005

DATE DELIVERED: 2 OCTOBER 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 2 OCTOBER 2008

REPRESENTATION

FOR THE APPLICANT: IN PERSON

FOR THE RESPONDENT: IN PERSON

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms McNAMEE

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	VICTORIA LEGAL AID
COUNSEL FOR THE INTERVENOR:	MR NOTTAS

SOLICITOR FOR THE INTERVENOR: HUTCHINSON LEGAL

ORDERS

IT IS ORDERED UNTIL FURTHER ORDER:

1. THAT paragraphs 2, 3, and 4 of the orders pronounced 9 September 2008 continue in full force and effect.

2. THAT paragraph 8 of the orders of 9 September 2008 be suspended pending the adjourned date.

3. THAT the wife forthwith attend at the office of the Trustees and discuss or negotiate any proper and realistic agreement for her to vacate the property or to obtain any other options of accommodation.

4. THAT as soon as practicable the Trustee organise through appointed real estate agents an update appraisal of value of E property and a report on the internal and external condition of the property and what requires to be done, with what expenditure of money to best prepare and present the property for sale.

5. THAT if the husband or members of his extended family are to remove any other furniture, chattels or items from the property then all such actions must occur on or prior to Sunday 19 October 2008.

6. THAT the application of the intervenor filed 9 September 2008 be specifically listed for hearing on the adjourned date.

7. THAT the appearance of the Independent Children’s Lawyer on the adjourned date be excused (and it be noted that the Court will deal with property, financial and enforcement matters and no children’s matters on that hearing date).

8. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

9. THAT the costs of and incidental to the appearance of the solicitor for the intervenor this day be reserved to the adjourned date.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the Independent Children’s Lawyer and solicitor appearing as counsel for the intervenor.

IT IS NOTED

1. THAT the wife has had the assistance in Court of a Mandarin interpreter.

2. THAT the court is requested to arrange the attendance of a Mandarin interpreter to assist the wife on 21 October 2008 at 10.00 a.m.

3. THAT although the Court has reserved all possible orders and outcomes to the adjourned hearing date the wife has been clearly advised of the real likelihood of orders being made on that day for her to vacate E property and one of the reasons for the matter being adjourned from this day is to enable her further time to organise her future accommodation and life options.

IT IS NOTED that publication of this judgment under the pseudonym Picken & Picken is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 503 of 2005

MS PICKEN

Applicant

And

MR PICKEN

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

And

MR P (as Trustee in Bankruptcy of the Estate of the Wife)
Intervenor

REASONS FOR JUDGMENT

1. The matter of Picken is again before me.  The husband appears in person, as does his wife and she is assisted by a Mandarin-speaking interpreter.  Ms McNamee of counsel represents the children and Mr Nottas is the solicitor for the intervener who is the appointed Trustee in bankruptcy of the wife's estate.

2. The matter was last before me on 9 September 2008.  On that date I directed the wife vacate the property at E, on or prior to 29 November of this year.  She was ordered to leave the property in a reasonably clean and tidy condition.

3. I made further orders for the husband and wife to negotiate as to the storage or removal of furniture, chattels and personal possessions from the home.  I did so knowing that there were particular issues including that the husband or members of his family claimed ownership of various items.

4. I am advised this day by the husband that he and his family attended last weekend and many items have been removed from the home, though some items may still remain in the home or in the garage. 

5. At court today I have been advised that the wife remains living in the home.  She has made no effort to vacate the home.  There does seem to have been some level of discussion between the wife and the Trustee as to possible alternate accommodation and various suggestions have been made to the wife but seemingly none of them have been further considered or acted upon by her.

6. As background, there are final property orders pronounced 20 February 2008.  There is an order for the sale of the home.  Paragraph 3 appointed the intervener to have control of the sale and pursuant to paragraph 4, the apportionment of moneys from the sale were clarified.  It is important to understand that that order provided as follows:

   (a) the sale proceeds are first to pay the reasonable costs, commission and expenses of sale;

   (b) thereafter, encumbrances on title and outstanding rates and taxes are to be paid;

   (c) the then remaining sum of $450,000 is to be held by the intervener and from that sum, the debts of the bankrupt wife and other costs are to be paid with any surplus then being paid to the wife; and

   (d) any balance thereafter is to be paid to the husband, subject to his obligation to pay any capital gains tax or arrears of land tax or other tax costs or interests thereon.

7. I do not have a current market appraisal of the property.  It may well be that market conditions and the potential sale price has changed from earlier this year.

8. The husband has volunteered to the court that the inside condition of the home is quite poor.  Indeed, he was there last weekend and has advised of the need for an urgent clean, that there are walls where plaster is broken or smashed and generally money needs to be spent on the home to prepare and present the home for sale.

9. The wife has told the court that she has made no effort or has had no time or has not been in an emotionally appropriate state of mind to clean up and present the home. 

10. I have endeavoured to explain to the wife, yet again, that there are final property orders in place.  They were consent orders.  They were made at the time when she certainly indicated her understanding of the orders to the court.

11. The wife has a Trustee appointed for her estate and again I have clearly endeavoured to explain to the wife that she has no immediate right or standing or audience with the court and that her Trustee acts in financial matters on her behalf.

12. Presently, I do not know, and the solicitor appearing for the Trustee cannot provide any up-to-date advice on the value of the home or its current internal and external condition and I make that comment in no way critical of the professionals involved.

13. When the matter was last at court I permitted the Trustee to file an application where orders by way of enforcement are sought and ultimately vacant possession of the property and additionally for a warrant of possession to issue, requiring the Marshal to evict the wife from the property and provide vacant possession thereof to the trustee. 

14. I have encouraged the wife and I again encourage her to read that application and the substantial affidavit and annexures in support thereof and understand the looming urgency of this matter and the necessity for her to act, both in satisfaction of court orders and to try and protect and preserve her financial circumstances.

15. I have this day endeavoured to explain to the wife that the quantum of moneys that she one day receives will be dependent upon what the house sells for and she is to receive the balance up to $450,000 and after allowing for certain payments otherwise to be made pursuant to the manner in which the parties drafted the consent orders.

16. I record that the husband today has taken the position that he would permit the wife to remain in occupation of the home pending its sale, notwithstanding his entitlement is entirely dependent upon the net sale price of the home exceeding $450,000 and otherwise always subject to all of the clauses and conditions in paragraph 4 of those earlier property orders pronounced by consent on 20 February 2008. 

17. The wife has been given today a limited right of audience and has urged the court to understand her level of upset, depression and lack of understanding of the orders.  She has pleaded to the court that she is both a woman and of Chinese culture and background.  I do understand what the wife is saying to the court but I have explained to her, or on earlier occasions I have requested other professionals to explain to her, the force and effect of the order and what she has agreed to and what other courts have made by way of orders for payment against her and of course overwhelmingly, the nature and effect of her bankruptcy.

18. In the context of all of those concerns that I have allowed the wife to express today, the husband has also expressed general concerns about the past conduct of various unnamed solicitors in the court hearing process and has made somewhat wild and extravagant and certainly not factually based claims of fraud for inappropriate conduct.  The court does not know of these matters and as I have explained to the husband, will not investigate these matters.  They are matters that are appropriate for the police or for professional associations to otherwise investigated, if appropriate, and only on proper material.  I merely record these matters as they have been raised in court but I will make no orders or otherwise progress those matters in any way on the material before me.

19. I do propose to request the intervener to obtain, with the complete cooperation of the wife which is required, a valuation and an appraisal of the internal and external condition of the home.  What I am concerned to better understand is an option of whether the home could be sold without substantial work and preparation and with the wife in possession.  I understand that is not the outcome sought by the intervener.  It may be that it is not an outcome that is appropriate to the fair and proper sale of the property.

20. The wife must cooperate at all times and in all ways with any reasonable request of the intervener or the real estate agent to achieve the valuation and a property report. 

21. I will adjourn this matter to Tuesday, 21 October 2008, at 10.00 a.m.  I do have other matters listed on that day. 

22. I emphasise to the wife that there may well be orders on that day not just for her to vacate the property but if I am then satisfied, for the Marshal of the court thereafter to remove her and her chattels.  I do not prejudge that issue but what the wife must do over the next three weeks is make all reasonable opportunities to further discuss the matter with the intervener or otherwise move from the home into other accommodation, be it in Melbourne or in country Victoria, closer to the children. 

23. I take this opportunity to re-emphasise in these brief reasons that ultimately the sum of money the wife will get from the property sale will depend upon the price achieved at sale and all of the ever-increasing costs of the Trustee.  The more those costs are limited, the more she may ultimately receive. 

24. On present indications and merely as an overview and without committing the Trustee, it may be that on a sale price of $450,000, the wife could receive a sum of $200,000 as a surplus amount or thereabouts.

25. The one other matter that was raised today is that the wife presented to the court a letter received from a Trustee in bankruptcy of one of the solicitors who formerly acted of the wife and to whom moneys are owed.  There is some confusion before the court as to whether Mr McBain is owed and is claiming a sum of approximately $25,000, as per a letter, or otherwise whether it is $55,000 or thereabouts as per two accounts.  That matter can easily be clarified but it is a matter of some importance.  The wife has indicated to the court that it is the lesser amount and therefore her liabilities are reduced and she would argue to the court that it is easier for her now to pay off the reduced debt.  She may be in error.  There may simply be a misunderstanding or an error in the letter from the Trustee acting for Mr McBain to the wife.

26. I do require the Trustee to investigate and to explain that matter to the wife and to the court. 

27. I finally record on property matters that I have read the further affidavit of the wife filed 29 September 2008 and in particular as to property matters, paragraph 2 thereof.  The wife did have a bundle of documents that she wanted to hand to me today to read but I declined to receive the documents as they had not been served upon any other party, were not in affidavit form and from what she said, merely reiterated many of the past events and orders outside of this court. 

28. I record that the wife has had a Mandarin-speaking interpreter available to her throughout this day and that person has been seated at the bar table alongside the wife and I am satisfied has interpreted to her and communicated from her matters to the court.  In any event, the wife certainly has a reasonable understanding and comprehension of English.

29. As to children's matters, the one item of good news is that a letter dated 26 September 2008 from Dr C was presented to the court by counsel appearing for the children.  That letter highlights that there has been a remarkable turnaround in the health of the child R.  He is no longer a medical concern.  He is described by Dr C as -

    “an engaging young man, clearly demonstrating to me a lifting in his depressive condition.  He is now enthusiastic in discussing his weight issues, his improved weight, his interest in food and prospects of returning to school.  He has changed from a skinny, gaunt, anorexic child to a condition where his facial appearance has improved and his weight and height measurements have shown a startling increase.”

30. I will have that letter marked as an exhibit of the Independent Children's Lawyer and it will be retained upon the court file and if appropriate, my court officer will make copies available to all parties today.

31. I do not propose to change the current children's orders.  I know they are interim.  There is much to be organised between the parties as to more meaningful time to be spent by the wife with both children, be it in regional Victoria or elsewhere.  There are and seemingly have always been post-separation very real difficulties of transport, communication and cooperation between the parents.

32. The good news of R’s health is somewhat like a beacon in this case and one can only hope that his health and his state of mind continue to improve such as to enable him to return to school in the near future or at least the new year.

33. I am advised by the Independent Children's Lawyer that the wife has far exceeded her legal aid cap.  That is one of the tragic realities of this case.  What I will do is excuse from attendance on the adjourned date, the 21 October 2008 fixture, the further attendance, on that occasion only, of the Independent Children's Lawyer.  That means I will not deal with children's issues on that adjourned date.  I urge the parties and the Independent Children's Lawyer to discuss and try and finalise children's orders.  There would be a significant benefit to the children having a settled lifestyle and being out of this court.

34. I will have these brief extempore reasons transcribed and placed upon the court file and made available to the parties.  I will request the Mandarin-speaking interpreter to be present at court again on the adjourned date and my court officer will pass that request to the organisation at this court. 

35. I do understand and hopefully the parties understand that these reasons in many ways are merely a recapitulation of facts and matters that I have been told today.  I do so, so that there is a record for the parties and the court.  I make it perfectly clear to the wife that time is urgent and she must act to find a level of accommodation and vacate the home unless she has clear written agreement from the Trustees to the contrary.  There is some assistance now in knowing that the husband will allow the wife to remain in the home and the husband does not seek to enforce any payment that may have been one day available to him pursuant to paragraph 4(b) of those property orders of 20 February of this year.  At least I record his clear position to the court in that regard.  From recollection, that matter was earlier indicated by him on 9 September at the mention date.

36. For those brief reasons and in anticipation that the wife will take counsel from some people who can advise her outside of the court and will understand that she must act on the orders and either have a firm resolution with the Trustees or vacate the property or have the property ready for sale if ultimately I leave her in the property pending sale.  I urge the wife not to act upon the basis that I will simply leave her in occupation as that may substantially jeopardise the sale and ultimately the money that she will receive.  She must have regard long term to her financial interest.

37. If there is any other property, furniture or chattels to be taken by agreement by the husband or his family from the home, that must occur forthwith because if there is an order to vacate the property and furniture is moved, likewise any other furniture may also be removed from the property, so the husband has two weekends or thereabouts to travel to Melbourne with the children and others and remove what else is, by agreement, his property or his family's.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: