Royce & Royce (No 4)

[2012] FamCA 1047

FAMILY COURT OF AUSTRALIA

ROYCE & ROYCE (NO 4) [2012] FamCA 1047

FAMILY LAW – PARENTING – proceeding on an undefended basis – Consequences of a contravention of orders.

Family Law Act 1975 (Cth)

APPLICANT: Mr Royce

RESPONDENT: Ms Royce

FILE NUMBER: MLC 11662 of 2011

DATE DELIVERED: 11 December 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 11 December 2012

REPRESENTATION

THE APPLICANT: No Appearance

THE RESPONDENT: In Person

Orders

1. The wife have leave to proceed on an undefended basis, the husband having had notice of the proceedings.

2. The wife have sole parental responsibility for making the long term decisions concerning the child D born … June 1999.

3. That the child live with the wife.

4. That paragraph 3 of the orders made 12 July 2012 is forthwith discharged.

5. All applications of the husband the wife are otherwise dismissed.

6. Exhibit 1 to these proceedings be returned to the wife upon the publication of the reasons for these orders.

7. That any documents produced under a subpoena be returned to the recipient of the subpoena.

8. That pursuant to s.65DA(2) and s.62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Royce & Royce has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11662 of 2011

Mr Royce

Applicant

And

Ms Royce

Respondent

REASONS FOR JUDGMENT

1. Ms Royce (the wife) and Mr Royce (the husband) were married in 1996 and separated on a final basis in December 2011. In between those years, there were other separations. Indeed, in December 2003, in a separated state, they sought and obtained from the Court, final property orders.

2. They also have a child, D, who was the subject of a parenting dispute which I am now finalising.

3. The subsequent resumption of cohabitation saw the parties acquire property. On the evidence before me, that property was at least two blocks of vacant land both of which have been encumbered by mortgage. That gives rise to the question of jurisdiction to make property orders because of the 2003 orders. Ultimately, the issue did not require determination.

4. What was also a live issue was the wife’s claim for spousal maintenance along with a claim for lump sum child support.

5. These proceedings today have been determined on an undefended basis. Upon the day that the matter was ultimately set down for today, the husband appeared, acknowledged that he had not filed material and did not want to participate in any further proceedings. Whilst the wife has since filed a further affidavit and a minute of the orders that she was seeking, none of those documents would have been of interest to the husband nor taken him by surprise.

6. Earlier today, upon the conclusion of the hearing at which the wife appeared and represented herself, I made the orders which appear at the head of these reasons. I indicated that I would later give reasons. These are those reasons.

Background

1. The wife is aged 54 years and is reliant upon Centrelink for her support and that of the parties’ daughter. She has not worked in paid employment for a long time.

2. The husband is a cartage contract driver aged 53 years. Doing the best I can, he is the sole director of two companies. Those entities conduct the cartage contracting business.

3. The wife’s income is the pension and the husband seems to earn what he can from the two companies. The uncertainty lies in the paucity of evidence to which I shall return.

4. As indicated, D is the parties’ only child. She is aged13 years and on the evidence, does not have any relationship with her father. Whilst that may have been controversial in the past, it would seem that the husband now accepts that this is not the time to be pursuing a relationship with the child through parenting orders.

The proceedings

1. The court file is contained in 4 volumes and contains many documents most of which were of little assistance to the matters before me.

2. The wife sought the following orders (as interpreted by me):

   (a)that she has sole parental responsibility for the child and that the child live with her;

   (b)that interlocutory orders made by the Court on 12 July for the sale of one vacant block of land be discharged;

   (c)that the husband pay damages to a builder who was to have built a home on the land for the wife;

   (d)that the husband pay lump sum child support and spousal maintenance totalling $365,040;

   (e)that the husband pay the wife’s costs of $7,116; and

   (f)the husband pay $40,000 to cover mortgage arrears, land tax and rates that have not been paid.

3. In respect of (f) above, the wife said she sought the order because the husband lodged a caveat against one of the properties. I am not sure that there is any connection between the two points.

4. It was difficult to confine the wife to what documentary evidence that she relied upon despite clear indications that this was to be the final hearing and she had to put proper evidence before the Court. She did her best bearing in mind that she was unrepresented. Her materials relied upon and which I have taken into account were:

   (a)her amended response filed 19 October 2012 but with the variation to the orders sought as set out above;

   (b)her affidavits filed 17 May 2012, 15 June 2012, 6 September 2012 and 10 December 2012; and

   (c)Material subpoenaed from an accountant for the Mentor Group.

5. Two other documents relied upon by the wife were of some importance. The first was the husband’s financial statement filed in February 2012 and the second was the Child Support Agency’s assessment for November 2012.

6. On 13 November 2012, I discharged the Independent Children’s Lawyer from the proceedings on the basis that there was no longer a disputed parenting issue. On the same day, I struck out the husband’s amended application filed 22 June 2012 at his request. I granted the wife permission to proceed on an undefended basis.

The parenting issue

1. The husband had commenced the proceedings in December 2011 by seeking parenting orders about the child. This saw the wife respond. The Court made orders for the appointment of an independent children’s lawyer and later a family report.

2. The family report drew criticism from the wife but having regard to the husband’s withdrawal from the proceedings that no longer matters.

3. Suffice to say, the child appears to have made her views clear through the wife and the husband respects that.

4. There is scant evidence about the child but what is available to me shows that she is doing well at school, is well cared for by the wife and is happy not to see her father.

5. Whilst an order for sole parental responsibility and no parenting contact is an unusual if not drastic step for a court to take having regard to s 60B of the Act, this is a case where there is no alternative. Importantly, I was not asked to make injunctive orders against the husband about the child.

6. On the evidence set out in the affidavits, I am satisfied that it is in the best interests of the child that I make the orders sought by the wife.

7. Section 61DA requires the Court to start with a presumption that if parenting orders are to be made, it is in the best interests of a child that those parents have equal shared parental responsibility. That presumption may be rebutted if the Court considers that it is not in the child’s best interests for that order to be made. I find that is the case here having regard to the absence of the husband, the existence of serious complaints about violence upon which I am not asked to make any findings and the inability of the parents to communicate at all.

Property

1. In 2003, the final property orders exhausted the Court’s jurisdiction under s 79 of the Act. However, it would appear that the reconciliation saw the parties acquire more property albeit in the name of the wife only.

2. When interlocutory proceedings were brought in July 2012, neither party seemed to turn their minds to the jurisdictional issue if it existed at all.

3. In these proceedings, the only property appears to be the two vacant blocks of land the legal title to which vests in the wife. The husband has lodged caveats over those blocks but the caveats were not produced in evidence. I do not know the nature of his interest now claimed. It is inevitable as a result of the conclusion of these proceedings that he no longer could make such a claim because he did not pursue it. That gave rise to the striking out of his application in November. There is therefore no basis for the sale of one of the properties and for the proceeds of sale to be held in trust. As the orders of July 2012 were interlocutory, they must now be set aside. That means that the legal title to the two properties remains with the wife and I now note that there is no pending application by the husband to otherwise adjust any portion of the wife’s interests in them.

4. The wife indicated that she would pursue the removal of the caveats through the Transfer of Land Act 1958 (Vic).

5. There being no request for an adjustment of interests in that land, I propose to simply see the end of such proceedings included in the overall dismissal of all outstanding applications of both parties.

The wife’s application for maintenance and child support

1. The wife sought only a lump sum for child support and spousal maintenance.

2. Leaving aside any legitimate evidentiary basis to do so, it became clear on the documents she had, the husband’s interest in the two companies referred to above was about $77,000 in 2011. I do not know what his current equity may be. That evidence came from the material produced under subpoena.

3. The wife acknowledged that she knew of no other assets and that she did not want the trouble of enforcement through a transfer of the shares and liquidation of the entities.

4. The wife had produced an assessment by the Child Support Agency showing that the husband has a child support obligation of about $16,000 per annum. She conceded she was better to seek enforcement of the periodic payments through the agency.

5. There was no application for periodic spousal maintenance notwithstanding earlier applications under what the wife described as ss 72, 75 and 77 of the Act. It was the lump sum she was seeking.

6. In discussion, the wife conceded there was little prospect of getting anything unless she took on the companies and she was not prepared to do that. There is no evidence that would enable me to be satisfied that the husband could pay a periodic sum let alone a lump sum. In February, the husband’s financial statement showed no income and the child support assessment showed $90,000 income in his hands. The taxation return documents which are now over a year old showed slightly less. I am not sure what his current capacity is even though the wife asserted that he had a recent project building a by pass. That evidence showed significant invoices were sent to the builder by the husband’s company but how that translates into income or money in the hands of the husband, I am unable to say.

7. Accordingly, the wife’s application for spousal maintenance must fail.

8. In respect of the potential damages claim, there is no jurisdiction for me to make orders. The evidence does not support any conclusion that would enable me to find a basis for an order under the Act. Indeed, the claim by the builder is not even yet on foot. That claim by the wife must therefore fail.

9. The wife also sought costs. These costs were incurred by her in the parenting proceedings initially when she was the recipient of a grant of legal aid. Victoria Legal Aid has lodged a caveat against the vacant land but as the wife conceded, there is little chance of there being any money left over after secured debts are paid. There is no evidence in any event that would enable me to make an order having regard to the requirements of s 117 of the Act. That claim too must fail.

10. The final claim for $40,000 arises out of the lack of contribution by the husband to a debt that seems to belong to the wife. Absent some evidence about his capacity to pay let alone his obligation to do so, I could not make such an order.

Conclusion

1. It is appropriate that I make the parenting orders sought by the wife but there is no evidence upon which I could make any of the financial orders. The relevant parts of the application for orders will therefore be dismissed. In respect of the July 2012 orders for the sale of one of the blocks of land, there are no pending proceedings and that order should therefore be discharged.

I certify that the preceding Thirty Nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 11 December 2012.

Associate:

Date:  11 December 2012