Pint and Harper (No 2)

[2010] FamCA 988

FAMILY COURT OF AUSTRALIA

PINT & HARPER (NO. 2) [2010] FamCA 988

FAMILY LAW – PROCEDURE – Children’s and financial issues – Case management

Family Law Act 1975 (Cth)

APPLICANT: MS PINT

RESPONDENT: MR HARPER

FILE NUMBER: MLC 8349 of 2009

DATE DELIVERED: 13 OCTOBER 2010

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: CRONIN J

HEARING DATE: 13 OCTOBER 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: IN PERSON

SOLICITOR FOR THE RESPONDENT:

Orders

1. That all outstanding interim applications of each party be struck out.

2. That all contravention applications by both parties be withdrawn.

3. That all outstanding substantive applications seeking final orders be adjourned for final hearing before the Honourable Justice Bennett as a two day matter commencing at 10.00am on 20 December 2010.

4. That the matter be listed for mention before the Honourable Justice Bennett on a date to be advised.

5. That for the purposes of both financial and parenting issues, the mother be deemed to be the applicant.

6. That by 4.00pm on 19 November 2010, the applicant mother file and serve:

   (a)an amended application setting out with precision, the orders she seeks;

   (b)the affidavits of evidence in chief of all witnesses relied upon; and

   (c)a financial statement that complies with Chapter 13 of the Family Law Rules 2004.

7. That unless the application obtains a waiver of the relevant trial fee including the daily hearing fee, the applicant mother pay that sum by 4.00pm on 19 November 2010.

8. That by 4.00pm on 3 December 2010, the respondent father file and serve:

   (a)an amended response setting out with precision what orders he seeks;

   (b)the affidavits of evidence in chief of all witnesses relied upon; and

   (c)a financial statement that complies with Chapter 13 of the Family Law Rules 2004.

9. That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

10. Should either party fail to comply with these orders, the party complying shall have liberty to make an application to the trial judge to proceed on an undefended basis.

11. That in so far as the father is an undischarged bankrupt, he provide to the Trustee of the Insolvency Trustee Service of Australia details of all outstanding applications being pursued.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8349 OF 2009

MS PINT

Applicant

And

MR HARPER

Respondent

REASONS FOR JUDGMENT

1. On 13 October 2010 I made a variety of orders setting this case down for final hearing.  That occurred in a very busy Duty List and I was unable to give the parties lengthy reasons.  These are the reasons.

2. Ms Pint (“the mother”) and Mr Harper (“the father”) have two children.  B was born in October 2008.  A second child A was born in March 2010.  That was after the separation of the parties which occurred in August 2009.

3. In the Duty List on 13 October 2010 were a variety of applications and affidavits all prepared by the parties neither of whom is represented.  Quite disconcertingly, it was apparent that their applications were lodged in September 2010 and not content with disputing about matters associated with those things, further applications were lodged which were put into the Duty List for hearing on 10 November 2010.

4. The parties are at war and the absence of legal representation has made it impossible for them to retain any objectivity. 

5. The proceedings on 13 October 2010 were the fifth appearance by the parties in this Court inside one year.  I have already given a number of judgments in the matter.

6. The parenting issues have a number of controversial issues.  Because of the age of A, the father has spent no time developing a relationship.  He says that he wants to begin that process.  The parties could not agree on how that was to be done.  The father has been spending time with B twice per week for daytime contact.  From the mother’s perspective, that has not been successful.  She now seeks to discharge those orders.  Initially her position was that the father was just being difficult by not agreeing to times that would fit around her working schedule but as I probed, it is clear that there are significant issues which concern the mother and she now alleges abuse of B by the father.  In an affidavit filed 24 September 2010, she attached a photograph of what she said was bruising.  I have advised her about the need to file a necessary notice alleging abuse and its consequences being that a notification would follow to the Department of Human Services in Victoria.

7. For his part, the father said that the mother was unreasonable but also had contravened orders. 

8. Accordingly, there is a live parenting dispute that needs a resolution and relatively quickly.  After much discussion, the parties agreed that the father’s contravention application would not resolve the dilemma and the parenting application could not be determined on the papers because it required not only further evidence but the testing of that evidence.

9. I have therefore searched the Registry for some Judge time and have set the matter down using what little resources the Court has.

10. I have ordered the appointment of an Independent Children’s Lawyer but not a Family Report.  A Family Report in this case would probably do little to assist the parties or the Court having regard to the ages of these children.

11. I shall deal with the financial issues in a moment but at various times during the morning, the mother turned to the father with a plea for him to go to mediation.  He rejects that saying that it is pointless.  Nothing can be achieved by negotiation any longer.  It is with much sadness that I have to agree.

12. On the face of the documents, there would appear to be a relatively modest parenting dispute revolving around arranging the changeover times but there are now the issues of protecting the children from harm and the father working out some way of commencing a relationship with his new born child.  Even that child’s paternity was contentious.  The mother suggested that an introduction program could be undertaken by a contact centre but that would do little for a child so young who knew nothing of the supervisor let alone her father.

13. The position was clouded further by the mother indicating that she is desirous of moving to New South Wales where she has accommodation with a friend.  She says that she can obtain employment there which will help her support herself and the children.

14. Thus, with the parties’ concurrence, all interim applications relating to parenting issues were withdrawn save for the substantive issues. The contravention applications were also withdrawn. I have made procedural orders for the matter to proceed as best it can.  These parties have to end this war.

15. This case is not just about parenting issues.  Throughout the proceedings in 2010, much argument has taken place over money.  It seems common ground that there is a modest home in which there is no equity.  There is a mortgage to the Westpac Bank and a debt of the mother to her brother which is secured by the brother’s borrowing against his own house.  On any view, the liabilities in respect of the house exceed its value.  There is about $30,000 in superannuation and a modest car.  The mother claims that she is owed money by the father.  She said that those funds arose from monies lent by her parents.  That has been an issue all of the way through.  In respect of matters before Barry J earlier in 2010 and also before me subsequently, it became clear that the father quite inappropriately took funds and wasted them at a casino.  Whilst that course of action warrants significant criticism of the father, there is no equity here for the parties to divide.

16. The mother’s proceedings before the Court on 13 October 2010 ostensibly appeared to be disputes about discovery, orders for the provision of pay slips by the father and for him to make payments against a mortgage encumbering the home in the event that he earned more than $500 per week.  Lurking underneath that however, was the fact that the father has now filed a petition with the Insolvency Trustee Service of Australia to become bankrupt.  That was not apparent on the papers and it appeared to distress the mother significantly.  Despite open offers in Court to take over his debts and then to argue about property matters later, it is apparent in this case that nature will take its course.  I have ordered the father to notify his Trustee in Bankruptcy when he is so advised that he is bankrupt, while there are outstanding financial issues.  It must be apparent from what I have earlier said that there will be no appearance on behalf of the Bankruptcy Trustee because there is no equity.  Even if the secured creditor sells the property leaving cash over, that must go towards the payment of debts.  Whilst it is clear that the father has a right to argue about the division of superannuation and the mother seeks 100% of the father’s superannuation, it is an amount of $30,000.

17. This sort of case is well within the jurisdiction of the Federal Magistrates Court of Australia but unfortunately, the case was sent to this Court for some reason and it is inappropriate in the circumstances for it to be returned.  For that reason again, this case needs to be resolved and I have provided the only resources the Court has.

18. The Court’s file is now in three volumes and as at 5 October 2010, 58 documents have been filed by the parties.  It is nothing short of scandalous. 

19. The specific proceedings in the Duty List on 13 October 2010 were the mother’s application for parenting orders and discovery and a contravention application she filed because the father had not complied with previous orders for the production of documents.  The father filed an application in a case on 4 October seeking a variety of financial orders but on the same day, the mother filed a further application in a case.  The father then filed a response.  That ignores all of the pending applications.

20. Common sense did not and will not prevail.  Accordingly, it is appropriate that all interim applications and contravention applications be withdrawn so that the matter can be determined on a final basis.  Even at that point, the parties could not agree on who was the applicant.  Accordingly, I have made an order that the mother will be the applicant for the purpose of the proceedings and she will file her affidavit material first.  I have made it clear that if in fact the father is bankrupt by that stage, she will need to be able to convince the Court of the jurisdiction to be able to make orders.  What does concern me however is the need for some urgent finality rather than interim orders in relation to these two children.  If it be that the Department of Human Services does intervene, they will no doubt have a say. 

21. I have therefore made orders setting the matter down for trial. 

I certify that the preceding twenty-one
(21) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Cronin
delivered on 13 October 2010

Associate: ……………………………………………………………

Date:  …………………………………………………………………