Rickard and Griffin

[2009] FamCA 89

FAMILY COURT OF AUSTRALIA

RICKARD & GRIFFIN [2009] FamCA 89

FAMILY LAW – PRACTICE AND PROCEDURE – Case management orders

APPLICANT: Mr Rickard

RESPONDENT: Ms Griffin

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 2650 of 2006

DATE DELIVERED: 27 January 2009

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 27 January 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr D.E. Whitchurch

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER Ms C. Smith

Orders

1. That any chattels (save for the children’s books and photos) held by the husband following the separation including the washing machine in his possession, may be used by him to the exclusion of the mother, including that he may dispose of them, as she makes no further claim against him in relation to them.

2. That otherwise the application of the husband filed 12 January 2009 shall be and is hereby dismissed.

3. That the listing before me due to commence on 30 March 2009 shall be vacated.

4. That all financial applications shall be adjourned for final hearing before Justice Bell as the fourth case in the list of cases to be heard by his Honour commencing on 14 April 2009 at 10.00am as a three day matter.

5. That if the husband proposes to bring any Child Support application before the court he shall do so by filing and serving it by 4.00pm on 30 March 2009, and it shall proceed with the other financial applications before Justice Bell.

6. That all parenting applications shall be adjourned to a mention before Registrar Field on a date to be advised to the parties in September 2009 with liberty to each party to apply to the Registrar before then.

7. That there shall be a transcript of my reasons for judgment given this day and that it shall remain on the Court file.

8. That the wife’s documents referred to in paragraph 8 of my orders of 26 August 2008 shall be made available for inspection by the father at the Law Institute on a date and at a time notified in writing to the husband by the wife’s solicitors.

9. That the husband shall pay the wife’s costs of this application, such costs to be taxed and to be deducted from the father’s share of the property settlement.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2650 of 2006

MR RICKARD

Applicant

And

MS GIFFORD

Respondent

REASONS FOR JUDGMENT

1. Mr Rickard’s application filed 12 January 2009 seeks four broad orders.  One is in relation to parentage testing in relation to the two children, nine-year-old B and six-year-old T.  The second is in relation to disposing of chattels - most notably a washing machine - that he says, he has held in storage since June 2006.  The third is for him to retain 100% of funds held in trust and all superannuation and other items in his possession.  The fourth is in relation to non-payment of Child support.

2. The case started before me in February 2008.  The final property application and the interim children's issues were due to be heard before me on 24 November 2008.  The husband did not appear on that day.  In light of the evidence of his serious mental health issues, I refused the wife’s application to determine the case in his absence and I adjourned it to be heard on 30 March this year, giving him the opportunity in the meantime to seek the medical assistance that the assessing psychiatrist, echoed by the Family Report writer, strongly advised.

3. The history of the proceedings to that point was set out in Reasons for Judgment given that day, and I will not repeat them here.  I do note that when it came to the children's issues, it appeared that they were no longer proceeding to an interim hearing, the husband having written to the ICL a few days before the hearing - on 20 November 2008 – saying that in view of the apparent wishes of the children not to see him in the short term, he would make no further application in that regard.  He had earlier told the court that with the various criminal proceedings on foot, and his proposal to pursue them through to whatever appeal rights were available to him, there would be a considerable period before the children's matter would be heard to conclusion.

4. The husband’s 12 January 2009 application was accompanied by a 46-page, 516 paragraph affidavit, with annexures A to Z covering a further very many pages in themselves.  Today I have received another affidavit, although it was filed on 21 January 2009.  That is also a reasonably lengthy affidavit. 

5. This morning the husband has sought to file a third affidavit.  I was not persuaded that it added to this interim application, so far as any new material that he referred to within it.  In any event, I permitted him to tell me that pursuant to my orders of 24 November last year, he had sent the appropriate forms to GordonCare, but that the mother had not. Similarly, he was able to refer to a recently received Child Support Assessment.  Otherwise, the only new issue he raised in the affidavit related to complaints about the ICL and bias.  I have just had a brief discussion with the husband about that.  If that is a matter that he wishes to pursue when the children's matters proceed in the future, he can raise it then.  It was not an application before me today.

6. As to the parentage testing, the reason for raising that aspect for the first time in the proceedings, at least so far as I am aware, is very scant.  Whilst there is a heading referring to it just before paragraph 52 of his first supporting affidavit today, what follows is mostly the husband assertions about the mother having lied to preclude him from seeing the children, and various related matters.  When distilled, they show how much he misses his children, even though he has heavy heartedly decided not to pursue time with them at present, and even though it was his decision back on 6 July 2007, when he knew he faced criminal charges, that he would not see the children until the criminal charges were resolved.

7. Then at paragraph 83, the husband swore as follows:

   The applicant thus submits to the court that a parentage order is necessary to establish the paternity of the children on the grounds that no reasonable mother would deny access, contact and communication unless by way of mental defect or on the grounds that the biological paternity of the children is in issue or dispute. 

8. Otherwise, although the husband swore that his advice by letter to the ICL immediately before the interim children's issues were due to be heard in November 2008, by which he said he would not at that stage pursue the application to see the children, was taken out of context, nevertheless he repeats it in this affidavit.  See for example, paragraph 100 and the following paragraphs.  He goes further and says that although he has signed the GordonCare application and the mother has not, he says that he wants to withdraw from that application and he does not want to see the children in that setting. 

9. All in all, as noted, it is a very lengthy affidavit and it contains a great deal of negative material about the wife.  It also shows the sadness and anger that the husband feels of what has occurred since separation, and his very evident sadness at not having seen his children. 

10. The second affidavit traverses much the same ground, but with slight variations.  The only reference to the paternity testing in the second affidavit, filed on 21 January, is somewhat tangential.  It is in paragraphs 16 and 17 where he says that he has changed his will and changed the superannuation beneficiaries away from his children, pending paternity testing, if ordered, and the resolution of other matters.

11. Today the mother has filed a response and a supporting affidavit.  She seeks that the husband’s application in relation to parentage testing and all the other applications be dismissed.  She points out that he failed to appear when the case was to proceed, but that he now files two lengthy affidavits about matters which are either irrelevant or due for the pending trial. 

12. The ICL did not receive the application.  I have told her of the application for parentage testing and I have not called upon her to address me about it as the husband’s evidence does not satisfy me that he has met the legal test for an order to be made.

13. There is a presumption of parentage under s 69R of the Family Law Act, in that a person whose name is entered on the register of births is presumed to be a child's parent. Section 69U(1) provides that the presumption is rebuttable by proof on the balance of probabilities. Under the further provisions in that part of the Family Law Act, if the parentage of a child is a question in issue in proceedings, the court may order parentage testing or such other evidence material to the question. The child's best interests are a relevant consideration.

14. In 2005 in the marriage of Lee and Tse (2005) 33 Fam LR 167, the Full Court identified the two requirements for a court to order parentage testing as first, that parentage must be relevant to the nature of the proceedings. It clearly is in this case. Secondly, that there must be evidence which places the parentage of the child in doubt.

15. As to that second aspect, the Full Court referred to a case of Duroux v Martin (1993) FLC 92-432, where a differently constituted Full Court had agreed with the trial Judge that one could not envisage a situation where the court will order parentage testing merely because it is requested to do so. An applicant must have an honest, bona fide, and reasonable belief as to doubt about paternity. It is not an objective test, but the court will objectively assess the circumstances giving rise to the applicant's belief. That principle was restated by the Full Court in OP and HM (2002) FLC 98-017 at page 251.

16. I have cited the only basis for the test as sworn by the husband.  The material does not disclose an honest, bona fide, and reasonable belief as to any doubt of paternity on his part.  In those circumstances, it simply cannot be in these children's best interests for samples, to be taken and/or for the question of their paternity to be raised for them.

17. Dealing then with the disposal of assets that was raised by the husband at paragraph 149 of his first affidavit.  The next 30 or so paragraphs dealt with his experience and views in relation to intervention orders as a former member of law enforcement, and his concerns about maintaining the washing machine in particular in storage, the expense involved, and that disposing of it would breach an order.  Today that has been dealt with by Mr Whitchurch obtaining instructions from the wife that all chattels, including the washing machine, but specifically excluding the children's books and photographs, can be dealt with by the husband in any way that he sees fit.  She makes no further claim upon them.

18. So far as the children's books and photographs are concerned, the husband has made his view clear that he does not propose returning them.  It is a matter for the trial Judge in dealing with all property issues. 

19. Under the heading “Property Settlement Relevant and Related”, after a long passage in his affidavit dealing with the pending criminal charges, the husband then deals with his allegations that it is the wife who has delayed a property settlement.  He does so from paragraph 303 to paragraph 348.  At paragraph 309 he specifically seeks an order for costs in the proceedings so far.  I conclude that any such order would be premature, as would any other property order.

20. The property part of this case shall be heard soon.  It is obvious that just as the wife was pressing me to resolve the property issues when the case was due to go ahead but the husband failed to appear on 24 November, the husband is now pressing for those issues too to be completed.  I take no persuading that the matter does need to be resolved. 

21. The husband then deals with Child Support matters, starting at paragraph 349.  He asserts that an agreement was reached between the parties for non-payment.  Today he says he has received a Child Support Assessment, as I have noted, and I have told him that if he disagrees with that assessment - as it appears he does - he needs to follow the process advised in the assessment letter.  He should otherwise seek legal advice.  He should act quickly.  If the husband does then decide to bring a Child Support application before the court, he should do so by 30 March, so it can be dealt with with the property orders, because much of the evidence will overlap.

22. As to the listing of the property case, as I advised earlier this morning, it has been opportune to inform the parties today that there have been calls on my docket that have rendered the trial date of 30 March 2009 unavailable.  Mindful of the rigours to both parties of the financial issues simply being held in abeyance, and given that, as I have noted, both parties in different ways have now expressed the desire to have that aspect resolved, alternative arrangements have been made by the court so that the matter will be moved by only the shortest period, to be heard in Bell J's rolling list of defended cases, commencing on 14 April at 10 am as a three-day matter.

23. When you receive these orders, you will also receive a notice as to how his Honour’s list will be conducted, for you to understand when you need to appear and when the case will proceed.  Most matters in that list will have a mention beforehand, but I do not want to trouble you with more returns to court and more expense.  I am simply going to list it.  The evidence is already to hand, as it was for the previous proceeding.  It is prepared in relation to the financial matters presently on foot, including Child Support if that becomes an issue. 

24. The husband is presently not seeking interim orders for time with the children and I emphasise, given what he said earlier, it is not said by me as a matter of criticism.  He has explained his reasoning.  I propose to put the children's issues on after August, but with liberty to apply before then.  Otherwise, the intent is to wait until after the criminal proceedings.  I will adjourn those matters for mention before the Registrar in September, but with liberty to apply before then.  If there is an application before then about the children, I can deal with it.

Costs

1. Mr Whitchurch for the wife has today sought an order for the costs reserved in November, to be determined today. I remain of the view that the issue can best be determined after the property case has been decided.  Judges are frequently required to look at questions of costs reserved by another judge.  In this case, I set out the history, because I specifically set out the history in my reasons on 24 November.  The trial Judge can deal with that aspect.

2. So far as costs for today are concerned, I cannot see any reason not to specifically order the costs in the wife’s favour. Considering s 117 of the Family Law Act and taking into account that the case could not go ahead in November because the husband failed to appear, and that the case was then listed to start shortly on 30 March, to have his application in the meantime, seeking Parentage testing, which I have said has no legal basis, property orders that are clearly the domain of the property hearing, and the small issue of chattels upon which he was successful, I conclude that the wife has suffered unreasonable expense, and that the husband was largely unsuccessful in this application.  I am going to order her costs thrown away today.  There are several ways of doing that, of course.  One is to actually fix the amount.  Another is to have them taxed.  The advantage in having them taxed is that it is precise.  But it involves more expense.  Another way is for you to advise me what the costs are today and I can determine whether they are reasonable.  Otherwise, you can send a letter to the husband, setting out the proposed costs, and he can either accept them or have the matter taxed.

DISCUSSION

1. In those circumstances I shall order that the costs be taxed, and paid from Mr the husband’s share of the property settlement.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  27 January 2009