Robinson and Farthing

[2011] FamCA 445

FAMILY COURT OF AUSTRALIA

ROBINSON & FARTHING [2011] FamCA 445

FAMILY LAW – PRACTICE AND PROCEDURE – Registrar – review of decision

APPLICANT: Ms Robinson

RESPONDENT: Mr Farthing

FILE NUMBER: MLC 8085 of 2010

DATE DELIVERED: 1 June 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 1 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Stewart

SOLICITOR FOR THE RESPONDENT:	Richard Calley Lawyers
INDEPENDENT CHILDREN’S LAWYER	Victoria Legal Aid
COUNSEL FOR ICL	Ms Harris

Orders

1. That the wife’s Application filed 15 April 2011 as amended on 27 May 2011 shall be and is hereby dismissed.

2. That paragraph 2(c) of the Orders of this Honourable Court made on 14 January 2011 be varied to include the following sub-paragraphs:

   (iii)For the purpose of paragraph 2(c)(i) and 2(c)(ii) week 1 shall commence on 29 July 2011 and be each alternate week-end thereafter and week 2 shall commence on 21 July 2011 and be each alternate week thereafter;

   (iv)For the purpose of paragraph 2(g) and (h) the time with the husband provided for in 2(c)(i) and 2(c)(ii) shall be suspended during the school holiday periods and shall recommence in the same pattern and sequence as if the time with the husband as provided for in 2(c)(i) and 2(c)(ii) had not been suspended during the school holiday period.

3. That the child shall spend additional time with the husband:

   (a)From the end of school on 24 June to the commencement of school on 27 June 2011; and

   (b)From 1.00pm 17 July 2011 until the commencement of school on 19 July 2011

   and that the husband’s time with the child on 23 June 2011 shall be suspended.

4. That all existing applications shall be adjourned for a final hearing before me for five days starting at 10.00am on 14 November 2011.

5. That the wife attend an appointment with Dr E on 31 August 2011 at the time advised by Dr E and pay on the day of her attendance her half of the costs of the Report to be prepared by Dr E as provided for in paragraphs 16 and 17 of the orders of 14 January 2011 and paragraph 13 of the orders of 4 April 2011.

6. That the husband and the wife do all things necessary to:

   (a)Attend upon Mr H on 12 September 2011 at times as advised by Mr H for the purposes of an updated Family Report;

   (b)Cause the child D born … October 2002 (“the child D”) to attend upon Mr H on 12 September 2011 at times as directed by Mr H; and

   (c)Pay on the day of attendance half each of the cost of Mr H’s report.

7. That the ICL send to Mr H a copy of Dr E’s report as soon as practical following its receipt by the ICL.

8. That the ICL have leave to forward to Mr H copies of all court documents and documents produced on subpoena.

By Consent

1. That order 22 of the Orders made 4 April 2011 (being the order transferring these proceedings to the Federal Magistrates Court) be discharged.

2. That if necessary each party do everything necessary to lodge orders in the Federal Magistrates Court consenting to the transfer of these proceedings to the Family Court of Australia.

By the Court

1. That on or before 31 July 2011 each party exchange with each other party:

   (a)Copies of all documents mentioned in Rule 12.02; and

   (b)The following documents:

   (i)     Evidencing medical issues of either party potentially impacting on his or her capacity to earn;

   (ii)    That support the information contained in their respective Financial Statements;

   (iii)     Evidencing any inheritances, gifts or compensation payments received during cohabitation;

   (iv)   Evidencing any purchase or disposal of property in the 12 months prior to and since separation;

   (v)    Evidencing any increase or reduction of liabilities since separation;

   (vi)   Evidencing the value of any superannuation interest of a party, including the basis on which the value has been calculated and any documents used to calculate the value;

   (vii)    Evidencing the inheritance received by the wife post separation including but not limited to the relevant Grant of Probate and any documents evidencing any future entitlement or claim of the wife to the Estate of her late mother;

   (viii)  All bank statements, credit card statements and loan statements for the past two years;

   (ix)   Evidencing all shares and investments held by either or both parties at separation and currently.

2. That the wife forthwith provide the husband with a copy of her current employment contract.

3. That on or before 1 September 2011 the parties do all such acts and things to jointly obtain a sworn valuation of the following:

   (a)The property situate at and known as … P Street, Melbourne Suburb 1 in the State of Victoria; and

   (b)The property situate at and known as … N Street, Melbourne Suburb 2 in the State of Victoria;

   and the parties equally bear the cost of such valuations.

4. That the docketed Registrar is requested to advise the parties of a telephone mention in the last week of September 2011 to explore any settlement possibilities, or to make orders for trial documents.

5. That the wife shall pay the husband’s costs of this day fixed at $1,600 and the ICL’s costs of this day fixed at $620.

IT IS NOTED

1. That the parties and their legal representatives have been advised not to attend the Federal Magistrates Court on 27 June 2011 as, on the basis of these orders it is expected that the date should be vacated.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 8085 of 2010

Ms Robinson

Applicant

And

Mr Farthing

Respondent

REASONS FOR JUDGMENT

1. D is 8½ years’ old.  Her parents separated in May last year.  There has been ongoing litigation about her since August last year.  There is already a two-volume court file, and the case is not yet at the final stage of hearing, at which time a full range of parenting and financial issues will need to be resolved. 

2. Today, her mother, Ms Robinson, (“the wife”) seeks to extend time for a review of certain of the orders made by Senior Registrar FitzGibbon on 14 January 2011.  Her father, Mr Farthing, (“the husband”) asks that the wife’s application be dismissed. 

3. The procedural history is a little unusual. 

4. In short form, the Senior Registrar made detailed interim parenting orders after delivery of judgment on 14 January, the case having been heard by him the day before.

5. On 9 February the wife filed an application in a case to vary the interim orders by changing some of the orders on which the Senior Registrar had recently ruled, and by adding others.  Her application was supported by an affidavit filed that same day.  The application came before Mushin J in March 2011.  He could not hear the matter and it was adjourned to the Senior Registrar’s list to be dealt with on 4 April 2011. 

6. The Senior Registrar heard the case on 4 April.  He delivered judgment and again made very detailed orders on 5 April 2011, varying some of his 14 January 2011 orders and adding others. 

7. On 15 April 2011, the wife then filed another application in a case, this time seeking a review of paragraphs 2(g), 2(h) and 8 of the Senior Registrar’s orders, not of 5 April 2011, but of the original orders of 14 January 2011, and seeking an extension of time for the review to be heard.  She filed a supporting affidavit on that same date.

8. Then on 27 May 2011, the wife filed an amended application in which she also sought a review of the Senior Registrar’s order contained in paragraph 9 of the original 14 January 2011 orders, a different order in lieu of paragraph 2(h) of the January orders, that is, different from what she had actually sought in her April application and, again, some other orders not previously sought in the April application.  Again, she filed an affidavit that day. 

9. The husband filed his response on the same day, seeking that her application be dismissed. 

10. The wife, who had been unrepresented throughout those earlier hearings, was also unrepresented today.  She says that she is now arranging to obtain a lawyer.  That is a very good idea. 

11. Today I have heard from her, from counsel for the husband and from counsel for the Independent Children’s Lawyer.

12. The first question for me is as to the extension of time for the review. 

13. Both counsel for the husband and counsel for the ICL urge me not to grant an extension, and to dismiss the wife’s application.  I need to consider the explanation for the delay, any prejudice to either party of the grant or the refusal of the application, and the applicant’s reasonable prospects of success, as part of the fundamental principles in an application to extend time. 

14. The wife submits that the extension should be granted because within the 28-day period after the 14 January orders, she brought her application in a case, but simply did not tick the Review of a Decision box on the application, being unrepresented and at that point having some serious surgery looming.

15. She said it was only after her application in a case proceeded to conclusion on 5 April 2011 that she, first, got legal advice (from a lawyer client) that she should have reviewed the earlier decision rather than seeking its variation and, secondly, that she saw the Senior Registrar’s reasons pertaining to the 14 January decision, so that she realised he had made a serious error. 

16. Otherwise, in summary, the wife’s submissions related to what was wrong with the Senior Registrar’s January orders.  She said he had acted against a Family Report, that the husband had since breached orders, and that in the further hearing on 4 and 5 April this year the Senior Registrar simply failed to address some of these outstanding issues.  Moreover, as she primarily sought to review the orders relating to September 2011 holidays and the long summer holidays of 2011/2012, it was her submission that there was no prejudice to the husband as they are still into the future.

17. Counsel for the husband submitted, in summary, that the wife’s lack of legal advice, given that she is a qualified professional earning $200,000 per annum, is very much by choice and cannot in itself be a basis to extend the time.  Her account of ticking the wrong box on her application of 9 February has never been mentioned before in the various affidavits filed leading up to today.  And, the orders she seeks to review and the issues pertaining to them were all raised before Senior Registrar FitzGibbon on 4 April and were dealt with by him, and, further, that she is an aggrieved litigant who won't stop litigating and is causing prejudice to the husband, both financial and otherwise, and, indeed, to the child’s well-being, with the continuing applications.

18. Counsel for the ICL, as I noted, also did not support an extension of time.  She described the same issues “going round and round and round”.  She said that the issues have been canvassed.  She said that the wife was in Court when judgment was given on 14 January.  She almost immediately received the orders after that.  She chose an application to vary them.  Her application, in fact, re-canvassed the same as well as additional matters, and in this respect it was pertinent that counsel referred me to paragraph 12 of the Senior Registrar’s reasons for judgment given on 5 April 2011 in which he said:

    The issue and the documents have not been confined to the immediate and pressing concerns regarding the health issues of [the wife].

19. I just pause there to explain that a substantial part of the application at that point related to the times that the wife would see D while she was in hospital. 

20. Returning to the quotation, I note that the Senior Registrar said:

    She sought to open up and put at large all of the matters that I had addressed in my orders of 14 January.

21. The Senior Registrar went on to outline the sorts of things that had been raised and then he gave his reasons.  I am satisfied that the Senior Registrar arrived at detailed orders after the January hearing and I am satisfied that the wife, an intelligent woman, capable of understanding process and/or arranging for and paying a lawyer to represent her, chose to proceed without a lawyer, and chose to bring an application to vary the Senior Registrar’s orders, seeking at that point a mixture of old and new orders.

22. I dismiss her account that she simply failed to tick the right box on the application.  That is a recent account, and it does not sit with the history, including the nature of the applications in her 9 February 2011 application or what happened thereafter. 

23. On 4 April 2011, the wife canvassed the very same, and then some other matters, before the Senior Registrar. Again, he made his decision and gave reasons for it.  She has not sought to review that decision.  Instead she has sought to review the earlier decision, seeking to review paragraph 2(g) of the order, which results in the husband having the Jewish New Year and the Day of Atonement with D.  She now says that the Senior Registrar had said in his reasons that the parents would share the “High Holy Days” and that these were the holiest so that, accordingly, the orders did not accord with what he had said. 

24. She is not being forthright in two respects.  First, to say that she only discovered this “error” when she saw the written reasons, could be described as opportunistic.  The wife was in Court when the reasons were given.  Secondly, although she protested before me that Passover, particularly the second day of Passover, did not rate as an important High Holy Day, as it were, it became clear from the material that she had agreed to divide Passover this year on the basis that she would enjoy the second day with D and the husband would have the first day.  Moreover, it becomes apparent that paragraph 10 of her application of 9 February this year attempted to canvass a whole range of other Jewish holidays which suggests somewhat of a moveable target.

25. She also seeks to review paragraph 2(h) of the earlier orders, as to the structure of the 2011/2012 summer school holidays.  I am satisfied, first, that they were already a part of the orders she specifically sought to vary in her 9 February 2000 application that was dealt with again by the Senior Registrar in April.  Moreover, if I can now arrange the case management that I have in mind, as I know that I can, this case will be dealt with before then.  The wife made it clear she would be content with that because it removes the issue. 

26. Otherwise, she seeks to review an order precluding the parties from enrolling the child in further activities without the written consent of the other party or without court order.  Not only has she, on her own admission, already breached that order by starting the child in a dance class, I see the thread through all the material of how very heavily committed this little girl is with extra-curricula activities.

27. I would take enormous convincing that it is contrary to the child’s best interests, at the age of eight, to have to wait just several months more until the final hearing, to add to what I can see is, at the very least, more than 12 hours’ of gym training each week as well as, I think, swimming. 

28. Otherwise, the order that the wife seeks by way of review is about the exchange of uniforms between the parents.  It is more a complaint about compliance than a genuine review point this late in the piece.  

29. I am certainly sympathetic to the wife that since the January order she has undergone serious surgery.  In this case, however, that does not really explain the history as it has unfolded since then in terms of how she has approached these proceedings.  And I am left without a satisfactory explanation as to why the review application was only filed in April this year.  What it smacks of is several bites at the same cherry, to use the colloquial expression.

30. The wife was comfortable to pursue a variation of the January orders, until she failed to succeed on that application.  Only then did she seek another route to revisit those orders.  I am satisfied that the prejudice to the husband is greater if the orders are opened again than to the wife if they are not.  It is simply too financially and emotionally draining to keep litigating the same issues. 

31. I am satisfied that there is no unduly significant prejudice to the wife in missing the two particular religious holidays in September this year and it is certainly something that can be made up for next year, if considered appropriate by me when I hear the case in its entirety. 

32. As noted, D’s wellbeing will not be impeded at the age of eight without another extra-curricula activity in the short term.  Again, that is something I can consider in more detail very soon. 

33. The case will proceed before the summer holidays this year so, again, there is no prejudice in that regard. 

34. I propose dismissing the wife’s application.  I am mindful of my obligations under the Rules to take a practical approach, even to defective process.  That is why I raised the possibility of proceeding on an application to vary, even though the application was to review, but the ICL urged me against that course.  I agree that the interim issues, for the reasons I have given, need to be contained and finite.  There are two small exceptions.

35. One is the listing aspect.  I have to say for the record, I was reticent to alter the existing listing arrangement because I am conscious that the parents have been in this Court, they have been sent to the Federal Magistrates Court, and I am now about to say that they should stay here.  On balance however, this is very much to their benefit, in the sense that they have not actually reached the Federal Magistrates Court yet, so nothing is lost.

36. I am satisfied on what I have been told, and experience tells me that it is accurate enough, that it could be up to a year before the matter would be listed in the other court.  I am concerned about two things that arise from that.  One is that the complexity of the various dynamics might then dissuade a Magistrate from hearing it, in which case a great deal of time would be lost and the parties would only be sent back here in any event.  Secondly, I am concerned that this case needs to be dealt with sooner than later for D’s best interests and both of the parents’ peace of mind.  Their peace of mind, of course, also impacts on her well-being.  Given that my docket has the capacity to have the case listed within a relatively short time after all the interim matters have been attended to, I think that is well worth doing. 

37. The second small matter is that I have asked the parties to draw up a Minute just to clarify a little gap in the orders.  There has been an ongoing issue between the parents as to the sequence of weekends and how they should recommence after each term holidays.  So I hope I am about to be told that that has been worked into a Minute.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 1 June 2011.

Associate: 

Date:  1 June 2011