Rittman and Rittman & Anor (No 3)

[2009] FamCA 1138

FAMILY COURT OF AUSTRALIA

RITTMAN & RITTMAN AND ANOR (NO. 3) [2009] FamCA 1138

FAMILY LAW – PROPERTY SETTLEMENT – Interim property distribution – Sum agreed on for each parties’ legal costs – Sum in dispute for the Wife’s re-establishment costs – Sum in question distributed to both parties for their use

FAMILY LAW – CHILDREN – Interim parenting orders – Orders sought for holiday time – The Wife seeks to place the Child in holiday care – The Father seeks week about – The Father’s application acceded to

FAMILY LAW – PRACTICE & PROCEDURE – Conciliation conference ordered – Directions

APPLICANT:

Mr Rittman

FIRST RESPONDENT: Ms Rittman

SECOND RESPONDENT	Mr Clarence
INDEPENDENT CHILDREN’S LAWYER	Mr Damian Carter, Solicitor
FILE NUMBER:	BRC	2571	of	2009

DATE DELIVERED: 16 November 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 16 November 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Page, Solicitor of  Harrington Family Lawyers appeared for the Applicant Father

COUNSEL FOR THE FIRST RESPONDENT: Mr Galloway of Counsel appeared for the First Respondent Mother

SOLICITORS FOR THE FIRST

RESPONDENT:

Pippa Colman & Associates

FOR THE SECOND RESPONDENT:	There was no appearance by the Second Respondent
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Carter, Solicitor of Carter Farquar Lawyers appeared as the Independent Children’s Lawyer

Orders

IT IS ORDERED THAT:

1. The proceedings be adjourned for a financial mediation conference before a Registrar at 11.00 am on 14 January 2010 at the Brisbane Registry of the Family Court.

2. On or before 23 November 2009, the Wife’s solicitors cause to be paid from their trust account to:

   a.the Husband – the sum of $120,000 such sum to be paid to Harrington Family Lawyers’ Trust Account; and

   b.The Wife – the sum of $170,000, such sum to be paid to Pippa Colman and Associates’ Trust Account

   such sums to be taken into account by the trial Judge as to the parties’ respective entitlements as to property settlement.

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT:

1. The Father spend time with the child, O, born … January 1999, at all times as agreed between the Father and Mother, but otherwise:

   a.during school term each weekend from 8.30 am Saturday (with collection to be from H Contact Centre) to before school Monday or at 8.30 am at H Contact Centre on non-school days.

   b.IT IS FURTHER ORDERED UNTIL FURTHER ORDER THAT during the child’s school holidays:

   i.during the 2009/2010 Christmas school holidays, from school on 11 December 2009 until 8.30 am on 19 December 2009, 8.30 am on 26 December 2009 until 8.30 am on 2 January 2010 and 8.30 am on 9 January 2010 until 8.30 am on 16 January 2010;

   ii.during the first half of other school holidays, to commence from school on the last day of school to 8.30 am on the mid-Saturday, or if not a Saturday then the mid-point day of those holidays; and

   iii.changeover shall occur at H Contact Centre when outside school hours, but if H Contact Centre is not available, at N police station.

IT IS FURTHER ORDERED BY CONSENT THAT:

1. The Independent Children’s Lawyer shall obtain a report from a paediatrician chosen by him as to the child’s medical needs.  Such paediatrician shall:

   a.be chosen by the Independent Children’s Lawyer in consultation with the solicitors of the Father and the Mother;

   b.be someone who has not previously provided treatment to the child;

   c.be a single expert witness, appointed by the Independent Children’s Lawyer, and the Father and Mother, within the meaning of Rules 15.45(1) and 15.48(2);

   d.attend upon the child and each of the Father and the Mother for the purposes of preparation of the report.

2. The Father, Mother and Independent Children’s Lawyer shall confer for the purposes of settling an agreed letter of instruction to the paediatrician.

3. The fees and expenses of the paediatrician shall be met jointly by the Father and Mother from the joint monies held in trust by Pippa Colman and Associates.

IT IS FURTHER ORDERED THAT:

1. Leave given to the Independent Children’s Lawyer to provide to Dr MG with copies of all correspondence which has been exchanged between the Mother and Father.

2. The parties file and serve financial questionnaires and a joint balance sheet by

   
   

   4.00 pm on 7 January 2010. 

3. The parties file a case information document incorporating a minute of orders sought in relation to financial issues by 4.00 pm on 7 January 2010.

4. The parties file and serve a list of proposed witnesses by 4.00 pm on 7 January 2010.

5. The Applicant is to pay the hearing fee by 4.00 pm on 7 January 2010 unless the Applicant obtains a waiver of the fee.

6. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2571 of 2009

MR RITTMAN

Applicant

and

MS RITTMAN

Respondent

And

MR CLARENCE
Second Respondent

REASONS FOR JUDGMENT

1. I have previously given reasons for judgment on interim issues, on 11 June and 30 July this year.  On today’s date the issues are confined to the draft orders as proposed by the respective parties.  I will mark as exhibit 1A the draft orders proposed by the father and 1B, orders proposed by the mother.  Thankfully there is considerable agreement on many issues.

2. In relation to financial issues the parties were the proprietors of a property in the N district.  It was recently sold.  I am informed that the net amount currently available is about $1.2 million.  I understand that that is to be invested, apart from certain distributions to be made on account of legal fees and other outgoings.  I proceed on the basis that there has been agreement on how the money is to be invested.  $50,000 was previously distributed on account of legal fees as a result of an agreement made at an earlier point in time.  The draft orders propose that there be $100,000 paid to the husband, which is unclassified, but one assumes is largely to be expended on legal fees.  There is $150,000 to go to the wife’s solicitors, again largely for legal fees.  The only dispute at this point in time is the wife seeks a further sum of $20,000 on account of accommodation re-establishment costs.  Such sum is to be paid to her solicitor’s trust account and is to be taken into account by the trial Judge as to the parties’ respective entitlements to property settlement.  I am informed the wife has had a litigation funder and that accounts for the fact that she is receiving the extra $50,000 on account of her fees at this point in time. 

3. By any measure the amount expended on legal fees to date to reach this stage, where there has not even been a conciliation conference, nor a date of trial set, is, quite frankly, ludicrous. 

RECORDED  :  NOT TRANSCRIBED

1. The reason why the wife seeks the additional $20,000 is classified as

   
   

   accommodation re-establishment costs.  She asserts the husband has retained items of furniture and personal property of the two children and herself.  She sets out, in an affidavit recently filed, 12 November, in considerable detail what she says are the items – annexure 4 to that affidavit.

2. The husband says, for his part, that the wife has received many of these items.  He says that the items have been equally distributed and she does not need the $20,000 because she already has necessary furniture and chattel items.  At the present time, the husband is residing in a four bedroom rental accommodation.  He has re-partnered and is having the child O stay with him on a regular basis.

3. The mother has been living in emergency accommodation provided by the Salvation Army since the last court hearing.  She has to leave that accommodation and it is to set up a new household in some form that she seeks additional funds.  I accept the money belongs to the parties.  Rather than having to decide, at this point in time, when I only have an assertion and denial, I propose to provide an additional $20,000 for the husband, if he wants to invest it or spend it on legal fees, it is his money, he is free to do with it as he wishes.  If the mother wants to spend it on re-establishment costs over and above the chattel items she already has, it is a matter for her.

4. I do not propose to classify the particular payment.  It is simply a distribution of their own money.  The balance remains frozen. 

5. It will be a matter for the trial Judge.  I intend to put the matter in my Docket, so it will be my decision.  How the funds are distributed to date will be treated in the final determination.  Whether they are treated as an add-back into the pool of funds, or whether they are ignored or some other option is adopted, is a matter for evidence and submissions at a later date.

6. In relation to the time to be spent during school term between the father and the child, the parties are in agreement.  That will be from 8.30 am Saturday to before school Monday each weekend, and that is not dissimilar to the overall arrangement of four nights out of 14 with the father, except it is in a configuration that provides for less changeovers and hence less disruption to the child and less room for conflict.

7. The parties are not agreed as to what should happen during school holiday periods, in particular the forthcoming school holidays.  The husband proposes week about.  I note that in putting that proposal he does not seek to have either Christmas Eve or Christmas Day.  He is having the first week of the holidays, and that will allow Christmas time to be with the respondent.

8. The wife’s proposal is that the child be placed in Vacation Care for the six weeks duration, and the father can have the child at the usual times that he has had the child, namely from, as I understand it, Saturday morning through until delivering the child to Vacation Care on Monday morning, but she stipulates in her proposal that the father is at liberty to attend with the child on any excursion organised by Vacation Care or to attend at Vacation Care for other activities.

9. There is not one scintilla of evidence before me as to where the Vacation Care takes place, what it costs, what is done, what is done if it is raining, how many children attend, how many carers they have.  I have some experience over the years of people who have to resort to Vacation Care.  Generally, the impression I have is, whilst it is a worthy system, it is a system for people who do not have any other choice.

10. I propose to make an order as proposed by the father.  I fail to see why Vacation Care is in any way superior, in any way shape or form, to the care that could be offered by a parent.  The father says he is more than happy to have the child for three weeks out of six.  If the mother sees Vacation Care as superior to the care that she can provide for the other three weeks, it is a matter for her as a parent, but I am certainly prepared to back the father’s care over Vacation Care as being the superior option in the best interests of young O, and I propose to so order.

11. The other orders are largely as agreed, a couple of minor changes – deletion of the word “reasonable” in relation to the paediatrician’s fees, which the parties have agreed to share and which presumably will come out of the invested funds.

12. I propose to make an order the parties attend a conciliation conference at 11 am on 14 January 2010.  That is some attempt to move this matter along.  I propose to order that the parties file and serve financial questionnaires and a joint balance sheet by Thursday, 7 January 2010.  I assume the parties and their lawyers understand what I mean by a joint balance sheet.  That is, that there will be a column for what the wife asserts to be the value and what the husband asserts and in this particular case, if there is agreement, well, it probably falls within the description of random chance.  If there are assets that are asserted, and one party says that the assets exist and the other says not, well, then it just appears as a blank in one column, or denied, or whatever, but the best effort should be made to put before the registrar a joint balance sheet.

13. The husband is the applicant in these proceedings, is to pay the hearing fee.  I note that the second respondent was to file a response and affidavit in accordance with the orders previously made, I believe on 30 July.  He has not done so.  I do not have proof of service of the order upon him, although I note that the orders would have been sent out to him.  Clearly, the main issue as between the parties is whether there is an existing liability to Mr Clarence.

14. The parties are to file a case information document incorporating minute of orders sought in relation to financial issues, again by 7 January 2010 - that is file and serve the orders that they are seeking.  I note that the father seeks an equal division of property.  The mother seeks 80/20 in her favour.  The parties also to file and serve a list of proposed witnesses by that date, 7 January.  As I have said, I direct the registrar to list the matter in my docket for any further hearing.  I will not allocate it to a date of hearing at this point in time.  For example, the property settlement issues may resolve.  I will wait to see the assessment by Dr MG.  I have serious reservations whether her report would be available by Christmas, but regardless of that, I will see her report before determining how long this matter will take.  I assume that at some point in time there will probably be a need for an updated family report based on any recent developments.

15. I direct that the independent children’s lawyer be at liberty to forward to Dr MG copies of all correspondence which has been exchanged between the parents themselves.

16. I will make the orders that I have already indicated on today’s date.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry.

Associate: 

Date:  16 November 2009