Preiss and Preiss (No. 2) - [2018] FamCA 805

FAMILY COURT OF AUSTRALIA

PREISS & PREISS (NO. 2)

[2018] FamCA 805

FAMILY LAW – CASE MANAGEMENT– enforcement of orders–where husband fails to file admissible evidence to justify a s 79A claim–husband says he will get legal advice–adjournment with costs.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Preiss

RESPONDENT:

Mr Preiss

FILE NUMBER:

MLC

10148

2014

DATE DELIVERED:

21 September 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

21 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms S. Fisken

SOLICITOR FOR THE APPLICANT:

Gadens Lawyers

THE RESPONDENT:

In Person

Orders

All outstanding applications are adjourned to 10:00am on 2 November 2018 for the determination of any outstanding interlocutory or interim issues.
The Husband file and serve an amended application (if he is so advised) together with any affidavit upon which he intends to rely by no later than 4pm on 5 October 2018.
The Wife file and serve any response to any such amended application as the Husband may so file by no later than 4pm on 19 October 2018 (noting that the wife intends to bring an application for summary dismissal).
That the Husband and the Wife immediately do all things necessary to register at the contact centre nearest to the residence of B for the purposes of any future order relating to supervision by the contact centre of time between the Wife and B noting that such supervision will not start before 2 November 2018.
That the solicitors for the Wife (and to the extent that the Husband has legal representatives on the court record, those solicitors) send to:
(a) The Department of Health and Human Services; and
(b) The Victorian Police Force,
copies of the Wife’s proposed orders relating to B for the return date of the interim applications where they request that the relevant authority provide to the court before the return date a written indication of that body’s views as to whether such orders should be made and/or whether they will intervene in the proceedings.
Leave be granted to the wife to issue two subpoenae to
(a) Mr Kelly to produce records; and
(b) The various banking organisations of the Husband to produce his records.
That within 14 days, the Husband provide to the solicitors for the Wife, the documents set out in paragraph 14 (a) to (f) of the proposed interim orders of the Wife.
That the Husband pay the Wife’s costs thrown away this day in the sum of $2950.
That the reasons this day be transcribed.

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 Preiss & Preiss (No. 2) 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 MELBOURNE

FILE NUMBER: MLC 10148 of 2014

Ms Preiss

Applicant

And

Mr Preiss

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This matter was listed before the Court today after an adjournment some weeks ago from the judicial duty list to enable Mr Preiss to file what he then foreshadowed at least through my interpretation, an application to set aside final property orders and vary, if not discharge, final parenting orders. I set a timetable for the parties to do things and urged Mr Preiss to get some legal advice.
Mr Preiss filed material which included a notice of child abuse, family violence or risk of family violence along with some other documents on 18 and 19 September 2018. His initiating application sought final orders from which one might interpret his intention, but it is not at all clear exactly what he wants by way of parenting orders and it is not at all clear from any material supporting his application how he justifies what appears to be an application under s 79A(1)(d) of the Family Law Act 1975 (Cth) (“the Act”). I appreciate that Mr Preiss is not a lawyer and this is a complicated exercise.
The wife, for her part, sought final orders as well. Her focus is really on enforcing the property orders that were made in 2017, but she also seeks a number of parenting orders which are, at best, vague at this stage. The Court would not, then, be in a position today to do more than try to confine the parties to the various issues in dispute and set the matter down for trial at some stage in the future.
That said, both parties then, as part of their respective applications, sought interim orders. The interim orders sought by Mr Preiss are, at best, confusing and, at worst, incomprehensible. I had a discussion with him on a number of attempts to try and find out what it was that he was seeking and whilst I appreciate that it has been a difficult time since December last year, these proceedings have to be wound up at some stage.
As such, it is not at all easy to know exactly what orders he wants the Court to make on an interim basis let alone a final one. For her part, the wife also sought interim orders. The first order that she sought was an order for security for costs, but I am taking it that that is not pressed immediately. She also seeks an order for the bifurcation of any property application by Mr Preiss from the parenting issue. Part of the dilemma – at least from Ms Preiss – is that she, apparently, has been charged by the police but I do not know the details and she is currently awaiting a trial which is said to be likely to take place in the County Court of Victoria in 2019.
Ms Preiss does not want to disclose details which might prejudice her rights of silence at this stage. That compounds the difficulty in working out what should happen not only with the property matter – in other words, the bifurcation application, but also she seeks parenting orders for her resumed relationship with 9 year old B. It seems that the existing arrangement is a weekly telephone call between B and his mother, which is said to be supervised.
Ms Preiss does not tell me any details about how that is working, other than it is relatively satisfactory. I do not know anything about the supervisor and what role he is playing with B and I have little understanding of how Mr Preiss participates in that activity. What is now proposed by Ms Preiss is that the parties enrol at a contact centre so that she can have some face-to-face time with B as may be available by the contact service. But to do that, I have no idea of their delays. The starting point ought to be at least to register there. Mr Preiss does not seem to have an objection to that course of action.
However, as simple as that may sound, there are two other considerations. The first is the question of whether the Department of Health and Human Services, who seem to have stepped back from any role in B’s life at this stage, may take the view that such an order is not in B’s psychological and emotional best interests. On the other hand, they may say from what they have perceived of B, bearing in mind that he is having some telephone contact with his mother, that there is no problem.
The fact that Mr Preiss has now filed a notice of risk of abuse means that the Court has an obligation to provide the Court file to the department to hear from them as to whether or not they have any concerns. It would be inappropriate for the Court to make orders of the nature that might start up a face-to-face contact when that advice has not been provided.
The second consideration is that it seems clear that the police have taken a view about whatever occurred to B and, at the moment I am unaware of whether or not B may be a police witness.
Having regard to the fact that I am aware that the proceedings are in the County Court of Victoria, I think it is a reasonable inference to assume that whatever occurred was serious. Ms Preiss, describes what occurred as something arising from a psychotic episode and, ultimately, she ended up in hospital. I know little more than that. Mr Preiss has not assisted me either because he has provided virtually no indication other than the fact that he is very concerned for the welfare of his son. I respect that but, at the same time, the Court needs to know the limits of the problem.
As such, it may be that the police or the Crown has an objection to any orders being made on the basis that B may be a witness or, indeed, may need some protection. In my view, both the Department of Health and Human Services and the police ought to be heard on the subject if they want to be.
Mr Preiss now makes an application for an adjournment acknowledging that his case is not in a condition where the Court can do much about it. Ms Fiskin, for the wife, Ms Preiss, says that she is ready to proceed and has come here again and faces the same problem that she faced on the last occasion. The Court can only do so much with people who will not provide it with information to enable a determination to be made according to law. Mr Preiss has not provided the assistance that the Court is entitled to expect even from a litigant who does not have legal representation in circumstances where the focus in on the best interests of B. Mr Preiss now says that he is going to get some legal advice and I am very comforted by that fact because it must mean that the lawyers will start to focus on what issues are, in reality, in dispute here.
The request for the adjournment was followed by Ms Fiskin asking for costs. She sought an order for $4,970, being $3,500 for counsel’s fees, $1,470 for solicitor’s fees, although she says she does not want indemnity costs. The reality, however is that an order of that nature would border on indemnity costs. Looking at the scale and having regard to what I have heard, it seems to me the appropriate order for costs is $2,950.
The Act says that each party in proceedings under the Act shall bear their own costs, unless there are circumstances, as a starting point, to justify departure from that principle. Mr Preiss had the opportunity to get his house in order in circumstances where even he concedes this is a very complex and serious case and he has not done so – on that basis, he should pay the costs in this particular case. Before a Court can make an order for costs, though, it must contemplate the matters set out in s 117(2A) of the Act.
The financial circumstances of the parties would tend to suggest that, after a property settlement, neither of them is impecunious, although the wife has difficulties getting access to what she has entitled to under the orders. I see no reason, in the circumstances, why she should have to pay her legal costs for the day in circumstances where it is Mr Preiss who wants to rectify his own problems.
There are no legal aid considerations here, but the conduct if Mr Preiss as a litigant has not been what the Court expects. In those circumstances I make an order for $2,950 costs in favour of the wife.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 21 September 2018.

Acting Associate:

Date: 8 October 2018