Pillai and Doshi (No 2)

[2010] FamCA 380

FAMILY COURT OF AUSTRALIA

PILLAI & DOSHI (NO. 2) [2010] FamCA 380

FAMILY LAW – PRACTICE AND PROCEDURE – Priority hearing

Family Law Act 1975 (Cth)

APPLICANT: Mr Pillai

RESPONDENT: Ms Doshi

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGC 664 of 2007

DATE DELIVERED: 21 April 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 21 April 2010

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms Phelan

SOLICITOR FOR THE RESPONDENT: Perry Weston

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Tesoriero

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Townsend Wylde Lawyers

Orders

1. That save for the order as set out below, the applications in a case filed 30 March 2010 and 21 April 2010 are otherwise dismissed.

2. That the parties attend a first day of hearing as soon as possible to be fixed by the co-ordinating registrar on a priority basis.

3. That the husband pay to the wife her costs thrown away this day of $470.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  DGC 664 of 2007

MR PILLAI

Applicant

And

MS DOSHI

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. In this matter, I have two applications in a case in the duty list.  Both applications are brought by the husband and father of the children.  Counsel appears on behalf of the wife, and the independent children’s lawyer appears through his firm. 

2. There are two applications, as I have indicated.  The first was filed on 30 March 2010, and the second was filed this day.  The one filed this day had been faxed to the court some days ago but the formal filing of the original has been accepted by the court today.

3. I dealt with these parties’ applications on 24 February 2010.  On that occasion there were extant orders of the Senior Registrar that the husband could see the children by arrangement through a contact centre, and orders were made that the parties enrol.  It seems that the wife has enrolled but the husband has not, although he seems now to have made some inquiries. 

4. On the same day, I made orders in relation to the sale of the former matrimonial home.  I do not propose to recite the reasons why I made those orders.  Suffice to say, however, that the husband has filed notice of appeal against the financial orders and, doing the best I can with what I have been told, he has not sought an application to stay the orders pending the hearing of the appeal.  He has had a directions hearing before Strickland J who indicated that he would not make directions for the appeal until the matter came back before me.

5. I turn then to the orders that the husband seeks.  In the application of 30 March he seeks an order that there be a stay of the orders I made on 24 February 2010 until further orders of the court in relation to property.  I have had discussion with everyone this morning and it is quite clear that that is not an application for a stay pending the hearing of any appeal.  It is what it says;  a stay pending the final determination of the property settlement.  There are a number of other orders sought as to who is to pay what payments under mortgages and what might occur to the proceeds of the sale.  None of those matters need any further attention this day. 

6. The next important order sought by the husband is that the matter be urgently listed for trial for the purposes of property settlement.  In a moment I will turn to his application filed on 21 April wherein he includes the children’s matters in that document.  It is common ground between all parties that this matter needs an urgent hearing because the husband is currently not seeing the children.  For the purposes of this order, I propose to grant a priority hearing but I have warned all parties that there will still be a considerable delay, having regard to the significantly diminished resources of the court.

7. The husband then sought a variety of orders relating to, what might loosely be described as, discovery.  I do not propose to deal with any of those matters today.  Those matters are already set out in previous orders and the rules of the Court.  If there are to be proceedings associated with non-compliance, that is for another day.

8. The husband then sought liberty to issue a variety of subpoenae to financial institutions, persons, Centrelink and an organisation called C Organisation.  All of those matters really need to wait for the first day of the hearing.  There is no evidence presented to me as to how a subpoena would resolve any of the issues concerning documents that are alleged not to have been produced by the wife.

9. I then turn to the application filed this day.  The husband seeks an order that his time with the children be immediately restored to every weekend from Friday through to Sunday, and that a changeover take place at the Safeway shop at D.  He then seeks an order that the Department of Human Services’ files be ordered back to the court for the purposes of the final hearing and trial.  I do not propose to order today because that is a subject for discussion with whoever the trial judge is going to be.

10. The husband sought an order that all child support payments “stop” pending the outcome of the final hearing.  There is no material before me that would enable me to make that order, and I have no indication that the child support registrar has been served with the application in any event. 

11. The next order the husband sought was that the Independent Children's Lawyer be discharged, although he actually does not say that.  What he says is that “the role” be discharged because the Independent Children's Lawyer has not “acted in the best interests of the children in this case”.  There is no evidence before me to justify making that order.

12. I then turn to the two major issues that come out of those applications.  The first is, effectively, a stay pending the further hearing of the property matters; the second relates to reverting to the orders that were made some time in 2009.  Any application that I deal with has to be supported by an affidavit.  The husband has filed two affidavits. 

13. In the affidavit of 30 March 2010 he set out that he strongly believed and “knew” that the wife had intentions of hiding moneys and not complying with the orders that I made on 24 February.  He then said that there was strong evidence to say that in 2008, the wife pocketed approximately $37,000 but only $14,700 was used by the Child Support Agency to make assessments.  I presume by that what he is saying is that they had incorrectly assessed her income.  He said he would provide bank statements to the Child Support Agency, the Social Security Appeals Tribunal and Centrelink so that they could rectify their decisions.

14. He said that he believed that he did not have the time and financial resources and other resources to keep coming to the court to inform the court of the breaches by the respondent of the various orders, the abuses of children, and her financially benefiting by making fraudulent claims.

15. His second affidavit, which was filed this day, is a little more expansive.  It says that he strongly believed that no contact with the children was emotionally traumatic for the children, his parents and him.  He said there was “absolutely no evidence” that he had ever abused the children or put them at risk.  He said there were “evidences” that he had taken all precautionary measures to protect the children.  He then went on to set out what he had done with the Department of Human Services, and then he said:

    This is a shocking case where child abuse is brushed aside for the financial gain of the wife and her social worker, all at the expense of taxpayers.  The evidence needs to be tested.

16. He then said the children were never at risk with him as he had never, ever abused them or coached them in any way.  He said again that the evidence needed to be tested in court.  He made reference to an incident back in July 2009 involving an organisation known as C Organisation, and he drew inferences about the evidence in that file.  Finally, what he said was that the credible evidence that was the underlying fact, was that the wife’s intentions were that she would leave home when she was financially able to do so, and he presumed that her plans were premeditated and her actions from that time were key arguments in the case that had to be tested in the court.

17. If I return then to the two issues:  should there be a stay of the orders I made in February pending the final determination of the case?  It is clear in this case, although the file does not tell me much, that there is a pending appeal.  I note that it is an appeal against an interlocutory order and, as such, the husband will need leave.  However, there is no evidence presented to me that, subsequent to the orders in February 2010, anything further has occurred that justifies me revising the orders that I made.  It is not appropriate for parties to constantly come back and change things on a whim.  If there was new evidence, the husband would have presented it;  he has not. 

18. In respect of the second issue to which I have referred, which is the question of the husband’s time with the children, it is clear that there is currently the prospect of the husband seeing the children through a contact centre.  It is the husband’s view that that should not happen because he sees no reason why he should have to pay to see his children.  I dealt with all of those matters when I dealt with the hearing in February 2010.  There is no evidence before me today in either of the two affidavits to which I have referred which would show that there has been a change of circumstances, or that there are new facts and circumstances that have arisen since 24 February.  On that basis, there is no ground for me to make the orders sought by the husband, either in respect of the orders concerning the sale of the home or a variation of the orders in relation to his time with the children.

19. The only order that I, therefore, am prepared to make today is the one relating to the question of granting the husband, and all the parties, a priority hearing. 

20. An application has been made by the respondent wife for costs, a reasonable sum of $470.  Section 117 is the power for the court to make an order for costs.  It provides that each party shall bear their own costs.  The exception to that rule is where the court is satisfied that there are circumstances that justify a departure from the rule.  The circumstances that justify an order in this case are that the application was doomed to fail, having regard to the nature of the evidence presented by the husband.  That, in my view, is sufficient to justify the departure from the rule.

21. Section 117(2A) requires a court to consider all of the matters set out in that section before making an order for costs.  I am conscious of the fact that the financial circumstances of the parties are limited.  There are considerable problems for both parties.  However, I see no reason why the wife should be out of pocket in a situation in which the husband complains about having to come back to the court all the time but, in fact, is the person who brought the parties here today.

22. It seems to me that in the circumstances and factoring all of the matters in section 117(2A) into account, that the sum of $470 is a very reasonable sum and should be paid by the husband.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  14 May 2010