Pillai and Doshi (No 3)

[2010] FamCA 754

FAMILY COURT OF AUSTRALIA

PILLAI & DOSHI (NO. 3) [2010] FamCA 754

FAMILY LAW – CHILDREN AND PARENTING ISSUES – Case management to a defended hearing – Documents to be filed

APPLICANT: MR PILLAI

RESPONDENT: MS DOSHI

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGC 664 of 2007

DATE DELIVERED: 12 AUGUST 2010

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 12 AUGUST 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms McCREADIE

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

IT IS ORDERED:

1. THAT the parenting and children’s applications be listed for a defended hearing commencing Monday 20 December 2010 (four day hearing).

2. THAT all extant applications be listed for case management, and on the property and financial issues, on Friday 1 October 2010 at 10.00 a.m.

3. THAT on or before Monday 13 September 2010 the husband make, file and serve:

   (a)an amended application for all parenting, children and related orders;

   (b)     his affidavit in support of all such orders;

   (c)     the affidavits of the witnesses upon whom he intends to rely.

4. THAT on or before 15 October 2010 the wife and the Independent Children’s Lawyer make, file and serve:

   (a)their response particularising the parenting, children and related orders sought;

   (b)the affidavits upon which they intend to rely.

5. THAT the Independent Children’s Lawyer is to advise the Family Consultant of the date and time of trial.

6. THAT the applicant husband pay such trial or hearing fee as may be imposed or make application for a waiver of such fee as may be available to him in his current financial circumstances.

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

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 wife.

IT IS NOTED

A.THAT on the case management date of 1 October 2010 the Court will consider the current circumstances of the sale of the home and the financial situation of the parties and determine whether that property and financial matter could or should be consolidated with the children’s matters before the Court for hearing commencing 20 December 2010.

B.THAT the parties have given an estimate to the Court of a three day hearing and all of them have been advised that every effort must be made to hear and consolidate the matter within three days, albeit that four days has been allocated in the fixing of this matter.

C.THAT no documents are to be faxed to, or delivered to the Court save by filing in the Registry of the Court pursuant to the Family Law Rules.

D.THAT if the child minding centre of the Family Court is to be facilitated by the parties for the children during the hearing then proper notice is to be given to the Court.

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

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This matter is before me for an assessment of the current children and property issues, and, if applicable, to list matters for trial.  The husband appears in person.  Ms McCreadie of counsel appears for the wife and Mr Tesoriero appears as the independent children's lawyer.  On 3 August 2010, Registrar Sikotis released the family report of Mr U, and that document is now in evidence before the court.  I have read that document and perused its recommendations.  I make no comments in respect thereof, and these matters will be before the court at the defended hearing. 

2. I do not intend to order any further updated report, notwithstanding that I will list this matter for what is intended to be a defended hearing, on at least children's issues, commencing on Monday 20 December 2010.  The independent children's lawyer must advise Mr U of that date and ascertain his availability.  I also record that, in material filed by leave of the court by the husband this day, some objections are taken to Mr U as to his professional qualifications, his report and his recommendations.  But all of those matters will have to be dealt with in a proper manner by the husband in his cross‑examination of Mr U on the hearing date. 

3. This matter has a lengthy history and now occupies a box file and six volumes.  I have ascertained, as an overview with the assistance of counsel for the wife, the briefest history of recent orders in this court and in the Federal Magistrates Court.  That summary, by way of a brief background, relevantly commences on 20 April 2009 in the Magistrates Court at Dandenong where orders of the previous year were discharged and orders were made for the parents to have equal shared parental responsibility for the two children, S, born in June 2004, and K, born in January 2007 ("the children"). 

4. The children were to live with the wife and spend time with the husband as provided for in those orders.  There were other particular orders as to the venue for change‑over, for co‑operation between the parties, and certain injunctions and other like orders.  The matter then came before the court on 30 July before Riethmuller FM, again at the Dandenong Court.  The matter was then to be fixed for a final hearing with an estimate of two days, and various restraining orders were made.  A family report was to be updated and orders were made for the appointment of an Independent Children's Lawyer and directions given for trial.

5. Next the matter came again before the Federal Magistrates Court, presumably for a final hearing on 28 October 2009, and the Magistrate on that day simply referred the matter out of that court and transferred it to the Family Court and did not hear or determine the matter that was then listed properly before him for a defended hearing.  On arrival in this court the matter was before the Senior Registrar on 16 December 2009.  Seemingly, that was a date of some importance because the husband had both children in his possession and they were with him from 27 November until he was directed to bring them to the childminding facility in this court on the following day, that is, 17 December 2009. 

6. On that day the Senior Registrar made orders releasing the children to the care of the wife and for them to live with her and suspended the father's time spent with the children pursuant to previous orders of 20 April 2009.  Again an order was made for separate representation of the children and a further order was made directed to the Department of Human Services for there to be an intervention by them in the proceedings and a report prepared pursuant to section 91B of the Act.  Other orders were made as provided for in paragraphs 9, 10 and 11 thereof. 

7. The matter then returned on 13 January, again before the Senior Registrar, and at that time an order was made for the parties to do all things necessary to make application to G Children's Contact Service, for the family to use that facility as the venue for supervised time.  By a separate order the husband was to spend not less than two hours a fortnight with the children there to be supervised.  The parents were required to attend a psychiatric examination as nominated by the independent children's lawyer.  Other orders were made to urgently re-list the matter before the court and to assess a final hearing.  As to the eldest of the two children, orders were made for enrolment at a primary school, that to be organised by the wife. 

8. There were ex tempore reasons for judgment delivered by the Senior Registrar on that occasion which are on the file, and which I have read, and which have been made available to all parties. On 24 February 2010, the matter came before Cronin J and further orders were made, both on children issues and on property issues. As to property it was then ordered that the home at W, was to be transferred to the wife upon trust for sale. The wife was to organise that sale and an order was made under section 106A of the Family Law Act1975 (Cth), for documents to be signed in the name of the husband if he failed to sign appropriate documents.

9. Orders as to the division of net proceeds of sale were made, including holding the balance of monies in an interest bearing account pending order of the court on any section 79 application.  His Honour provided detailed and lengthy ex tempore reasons for judgment on all issues.  On 2 March 2010, the matters returned to his Honour and various interim applications were dismissed.  The matter again returned on 21 April 2010, and other applications were dismissed, and consequential orders pronounced and again ex tempore reasons for judgment delivered. 

10. On 12 May 2010, the matter came before Registrar Field in Chambers, who assigned the matter to me for a defended hearing, and granted leave for subpoenas to issue to various medical practitioners, the Department of Human Services, Victoria Police, child care, kindergartens and schools.  Thereafter, on 8 June, the matter first appeared in my docket and I made separate orders as to property and as to children's issues.  As to property, an auction was scheduled for 10 July.  A reserve price was fixed at $390,000, and otherwise the matter was then to return to court. 

11. Both the husband and wife were to co‑operate with the appointed estate agent and to use their best endeavours for the home and garden to be presented appropriately, that primary onus, of course, being upon the husband, as he lives in the home with his parents.  Otherwise there were orders made for financial disclosure and inspection and the filing of documents.  There was a watch list order made that day covering both children and restraining the husband and the wife from removing those children from Australia. On children's issues I ordered the update report from Mr U, and that has now been completed. 

12. The issues that have been touched upon in relation to alleged criminal conduct, and the bail conditions imposed upon the husband, were the subject of order 7 on that day.  I again provided brief ex tempore reasons and the matter was then adjourned - on a basis that it was not part heard before me, and that the hearing had not commenced - to this day for further assessment of the case and how it best should be dealt with by the court.  This day the husband had prepared, and, ultimately with the leave of the court, has filed an affidavit affirmed 9 August 2010, and a financial statement of that same day.  I have had my court officer file in court the documents and they will be entered on the court file. 

13. The husband’s obligation is to serve sealed copies of those documents upon all other parties.  The affidavit is extensive and identifies, in paragraphs 64, 65 and 66, the orders sought on behalf of the husband.  Otherwise it deals with property and financial matters, takes objection to Mr U’s qualifications and report, and raises other financial matters and generally concerns of and related to the children and DHS and other individuals who have offered assistance to the wife.  Prior to the further hearing, I will make an order today that the husband is to re-file one comprehensive affidavit on the children and all related parenting issues. 

14. That will be read and relied upon, and I take the time, care and effort in the presence of the husband, and in open court, to emphasise that he will have only one trial affidavit before the court which the court will read.  The wife will be in the same position;  one trial affidavit only, and all of these prior affidavits will not be read and will not be part of the court hearing.  That is the only way to somewhat condense and organise evidence in this matter that is seemingly flowing in all directions.  I observe in the financial statement of the husband, his income, which is $1,250 per week gross on which he pays tax and superannuation instalments and continues to pay Westpac the home mortgage. 

15. The other matter I observe is the husband has deposed to his current market value of the home at $360,000.  I record that without making any orders in respect to the property on this occasion, noting that the current reserve price as ordered is $390,000 and having been told in open court there is a conditional offer, subject to finance, of $370,000 made and current for the home but which has not been accepted by one or both parties. 

16. There are other documents of and around the file that were faxed by the husband to the court, including to my associate. 

17. I have taken the opportunity to say to the husband that these documents are not in evidence.  They are not being accepted into evidence and they are going to be returned by the court to him today.  What I will read in this matter is what is in the trial affidavit and other proper documents.  I am also aware that there is an intervention order hearing listed in the Dandenong Magistrates Court on 20 August of this month.  The husband has sought an adjournment or delay of those proceedings, or initially had thought that it be fixed for the following week.  Whatever occurs there, the court needs to be told of in affidavit form but certainly not by letter or fax to the court. 

18. The other document that was received at the court from the husband was a statement of his witnesses.  I have had some discussion in open court with the husband today.  Within reason, and subject to the best interests of the children, the welfare report that will be read is that of Mr U; that is the most recent report.  If there are past reports from earlier years they most likely have been wholly overtaken by the current report and it is not my current intention to read past historical documents without absolute good reason in the best interests of the children. 

19. Likewise, there are intended witnesses that the husband has there identified including Ms I and Ms L.  I will not be accepting any witness without an affidavit or, if appropriate, a proper explanation of why an affidavit could not be obtained for good and proper reason.  The wife's counsel has indicated her one additional witness will be Ms B, who must be on affidavit if to be called and then can be cross‑examined appropriately by the husband. I am endeavouring to reasonably curtail witnesses.  I have been given an assessment of three days for the hearing.  I note that the Magistrates’ Court formally allowed two days when it was to be heard in Dandenong. 

20. Given the length of documents already filed I have the gravest of concerns as to that time limit but it is all that I will have available on 20 December and I indicate that I will be apportioning the time effectively so that the husband has one day, the wife has one day, and the independent children's lawyer has one day.  I do not want the matter to run into a fourth day but I will endeavour to reserve a fourth day if that be absolutely required.  I take this opportunity to record that that hearing date will only be available if the parties comply with a time limit for the filing of material. 

21. That time limit will be set out in the orders but will basically require, within one month, the husband to file his amended application for orders sought and his affidavit material. That material must be carefully drafted without vexatious comment or extraneous and inadmissible comments or observations.  It must be directed at issues of the best interests of the children: Thereafter the wife and the independent children's lawyer must file, within the appropriate time limit, documents that are likewise concise and relevant.  From the independent children's lawyer I understand the evidence will be that of Mr U and the psychiatrist, Dr D. 

22. I will take the precaution of listing for mention before me this matter on 1 October 2010 at 10.00 a.m. for the dual purpose of assessing the documents that are then filed, and the progress of the matter towards trial, and also of updating the issues with the sale of the home and all property and financial matters.  If the home has sold, or otherwise if it is just and equitable, I may then be persuaded to consolidate the property matters with the children's matters before the court.  I reserve that matter for submissions from counsel and the husband on the adjourned case management date of 1 October of this year.  If the wife has not yet filed an updated financial statement that must be done. 

23. What has emerged in the course of submissions this morning is that the husband has substantial objection to the current orders of the court in terms of his time to be spent with both children at a contact centre.  He objects to the contact centre, to the security and safety provided to him by the contact centre, and above all, to the cost of the contact centre.  There are past orders of the court which are not the subject of an appeal.  What I intend to do in the defended hearing is to assess all issues in the best interests of the children and that will include parental orders, live with orders, and time spent and communication orders, and all relevant matters to be considered within the parameters of section 60CC(2) and (3) in the best interests of the children, and other orders under section 61DA and section 65DAA. 

24. All parties must direct their evidence and the conduct of the case to those relevant subsections and the best interests of the children.  I touch on matters current only to emphasise that the husband does not see the children and I have respectfully indicated to him that he should reassess his current circumstances, and spending time with the children, in whatever circumstance, should be a priority.  At the moment he has not completed the intake form for G Contact Centre. The wife has completed the form.  There can be no opportunity to be assigned any time unless those documents are completed and even then there will be a waiting list and a fee to pay.  There is somewhat of a stand-off in this matter and I make no further comment upon that situation but I record the facts as I currently have been advised of them in general terms, this day. 

25. There are associated matters of and related to the best interests of the children and past history involving the Department of Human Services, certain community and welfare issues and police issues, all of which, if they are to be before the court, must be there in a concise manner and those comments are directed to all parties.  I will be assisted by a concise and relevant chronology, that perhaps, from the children's point of view, should best be prepared by the independent children's lawyer, together with a brief summary of argument from each party as to orders sought and the manner in which the case is to be presented to the court. 

26. I will have these brief reasons transcribed, placed upon the court file and made available to all parties. 

I certify that the preceding twenty-six
(26) paragraphs are a true copy of the
reasons for judgment of the Honourable
Justice Young delivered on 12 August 2010.

Associate: ………………………………

Date:  ………………………………