Rudd and Riddick (No 3)

[2019] FamCA 908

FAMILY COURT OF AUSTRALIA

RUDD & RIDDICK (NO. 3) [2019] FamCA 908

FAMILY LAW – PROPERTY – Interim applications – where Applicant seeks to place chattels and personal items of the Respondent into storage – whether the Respondent should have continuous access to the parties’ property until the sale of the property – where the Respondent seeks a stay of sole use and occupation order pending an appeal – where the appeal is unlikely to be heard before the final trial – orders made – stay refused.

Family Law Act 1975 (Cth) s 94AA

Aldridge & Keaton(Stay Appeal) [2009] FamCAFC 106

APPLICANT: Ms Rudd

RESPONDENT: Mr Riddick

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 5036 of 2018

DATE DELIVERED: 4 December 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Hartnett J

HEARING DATE: 25 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schmidt

SOLICITOR FOR THE APPLICANT: KCL Law

THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Parker

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

1. The Respondent be at liberty to attend the property situate at and known as 29 G Street Suburb C in the State of Victoria (‘the G Street property’) for the sole purpose of removing his personal chattels and other items between the hours of 9.00am and 5.00pm on each of three days prior to 31 December 2019. The Respondent to provide four days prior written notice of his election as to his intention to attend on each of those days. The Applicant shall ensure the Respondent has entry to the G Street property.

2. As from 1 January 2020, the Applicant, after consultation with the selling agent as to the chattels of the Respondent required to remain in the home for the purposes of enhancing it for sale, be at liberty to otherwise cause any and all chattels and other personal items of the Respondent then remaining upon the G Street property to be placed into storage with such costs to be borne by the Applicant at first instance and thereafter, any adjustment as to which of the parties, and/or both, should bear such expense to be determined at trial or as otherwise agreed.  The Respondent is granted unfettered access to those chattels and other items placed in storage to sort, dispose of and/or otherwise deal with at his sole discretion.

3. Otherwise all extant interim applications are dismissed.

4. The costs of the Applicant of these interim proceedings are reserved.

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 Rudd & Riddick 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 5036 of 2018

Ms Rudd

Applicant

And

Mr Riddick

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. I refer to my reasons for judgment in an earlier interim hearing on an application for sole use and occupation of the former matrimonial home by the Applicant, with such reasons supporting orders made 26 September 2019.  I refer to those reasons by way of background and shall not repeat the matters stated therein here. 

2. The Amended Application in a Case on which the Applicant proceeded on this occasion was that filed 12 November 2019.  In support of that application, the Applicant relied upon the contents of her earlier affidavit affirmed 17 September 2019, and a more recent affidavit affirmed 12 November 2019, together with annexures marked with the letters ‘MsR1’ to ‘MsR10’, which were tendered in evidence in the proceeding. 

3. The Respondent relied upon affidavits affirmed by him on 7 October 2019; 12 November 2019 (together with relevant annexures); and an affidavit sworn by him on 4 November 2019, together with exhibits ‘MrR1’ to ‘MrR6’.  Included in this evidence were medical reports of 8 November 2019 and 22 November 2019 of Dr P of U Medical Centre in respect of the Respondent.

4. Tendered in evidence in the proceeding by the Independent Children’s Lawyer was a family report dated 23 October 2019 prepared by Dr T. That report considered in particular how to promote the best interests of the child, X born in 2007 who is now 12 years of age.  

5. In these most recent competing interim applications the parties were able to resolve a not inconsequential part of the issues that were before the Court.  The resolution was arrived at because the Respondent now accepts that the parties’ real property situate at and known as G Street Suburb C in the State of Victoria (‘the G Street property’) must be sold, and sold promptly. The mode of sale and terms of sale were agreed by the parties. That left few matters to be determined by the Court.

6. These were, in essence, whether the Respondent would have continuous, and as agreed, access to the G Street property between now and the settlement of the sale of the property, or not; whether the Applicant could place the Respondent’s chattels and personal items still in the G Street property  (after the Respondent had been afforded an opportunity to remove same) in storage with the costs of such storage to be borne in the first instance by the Applicant with adjustment as to that payment to be determined at trial, or not; and whether the Applicant could continue in sole occupation of the G Street property, or not. The Applicant proposes, in the event she is successful in removing the Respondent’s chattels and personal items from the home, that the Respondent have unfettered access to the storage unit such that he can sort, dispose of, or otherwise deal with his personal property so stored. The Respondent wishes for reasonable access to the G Street property at times and dates to be agreed so that he can continue his process of decluttering the home and also spending time in the home with other family members. The Applicant seeks fixed times at which the Respondent attends upon the G Street property with notice given to her and, by that notice, also to the children, so that they can all vacate the home during the Respondent’s attendance upon it. 

7. The Respondent has filed a Notice of Appeal in respect of the making of the sole use and occupation order in the Applicant’s favour of 26 September 2019, and he seeks in these proceedings a stay with respect to the operation of that order until determination of his appeal. He has not sought in his Notice of Appeal leave to appeal the interim decision which he was required to do pursuant to s 94AA(1) of the Family Law Act 1975 (Cth) (‘the Act’). Nevertheless for the purposes of addressing that issue for the benefit of the parties I set out the following paragraphs.

8. The applicable principles relating to a stay pending appeal application are as set out in Aldridge & Keaton(Stay Appeal) [2009] FamCAFC 106. There the Full Court of the Family Court of Australia said, relevantly, in the context of those proceedings, that:-

   a)the onus to establish a proper basis for the stay was on the Applicant for the stay. However, it was not necessary for the Applicant to demonstrate any “special” or “exceptional” circumstances;

   b)a person who has obtained a judgment is entitled to the benefit of that judgment;

   c)a person who has obtained a judgment is entitled to presume the judgment is correct;

   d)the mere filing of an appeal is insufficient to grant a stay;

   e)the Court should consider the bona fides of the Applicant.

9. As to the other relevant matters to be considered in this type of proceeding, the Court notes the best interests of X are a significant consideration, and it is desirable to limit the frequency of any change in X’s current living arrangements.

10. As set out in the family report prepared by Dr T, Dr T interviewed and observed the Applicant, the Respondent, X and the adult child Mr Y born in 2004. That process for the children included interviews conducted individually, and together with each of their parents and other sibling. 

11. Psychological testing was administered to each of the Applicant and Respondent, and the family consultant consulted by telephone with Dr M, X’s paediatrician, and with Ms O of the Child and Youth Mental Health Service (‘CYMHS’), in respect of X.  Dr T noted in paragraph 87 of her family report dated 23 October 2019 that X is “a vulnerable child who has a mild ASD, moderate to severe anxiety, and a history of entrenched school refusal established in late 2018, with ongoing issues”. 

12. Dr T noted in paragraph 88 of her family report that more recently X “has established an avoidance of his father following the parental dispute over sole occupancy”.  Of particular significance for X, was the experience of feeling unheard by his father against the backdrop of very limited contact for some months. Dr T noted that much of the information supplied by X about his home environment was corroborated by his elder brother, Y, who impressed as an:-

    …articulate and intelligent young man with a balanced view of his parents that was consistent with the writer’s own observations.

13. Dr T noted that she was:-

    …persuaded by the children’s message that they found the “separated under one roof” environment highly stressful and detrimental to their well-being, and that their concerns went unheeded by Mr Riddick, both when living together and apart.[1]

    [1] Family Report dated 23 October 2019, [88].

14. She noted, further, in paragraph 91 of that report that:-

    It might assist X if Mr Riddick could tell X that he now understands that living all together was not working for X and that he is sorry he did not realise this earlier, though this would need to be a genuine sentiment to be effective.

15. Essentially, the contents of Dr T’s family report, including the expression of the wishes of the children X and Y, supported the continuation of the sole use and occupancy order in favour of the Applicant. Great hardship would be occasioned to her and the children should the stay as sought by the Respondent be granted. There is no real prejudice to the Respondent in the refusal to grant a stay. The G Street property must now be prepared for sale and be imminently sold. The Respondent has been provided with $5,000 in funds from the Applicant to obtain alternate accommodation. It was not clear on the evidence before the Court how, precisely, the Respondent has used those monies. He is currently residing with friends. The G Street property is to be placed on the market for sale to enable each of the parties to have access to funds as soon as possible so that each may obtain other accommodation and have the necessary capital to do so. The Applicant will continue to provide accommodation for the children or at the least for X, who is very dependent upon her.

16. The Respondent’s mental health functioning has caused concern to his treating General Practitioner, Dr P. Dr P noted in his report of 22 November 2019 that, relevantly:-

    I feel that until the uncertainty about his accommodation is resolved, Mr Riddick will continue to struggle day-to-day with his mental health.

    In an earlier report dated 8 November 2019 Dr P had noted, relevantly:-

    I feel that the uncertainty of his living arrangements and lack of contact with his children is having a major contributing impact on his health.

17. The Respondent has now agreed to a process which should see capital available to him to secure other permanent accommodation in the near future. This should provide the necessary certainty to benefit his mental health functioning. The improvement of his relationship with his children is a matter that requires addressing by him but on the basis of the (as yet) unchallenged evidence of Dr T, the current altered living arrangements provide some assistance in that regard. 

18. The financial positions of both the Applicant and Respondent are strained. The Applicant receives Centrelink payments. She receives no assistance from the Respondent in respect of the expenses of the children. Her extended family, who have provided her with financial assistance of approximately $4,000 each month can no longer continue that support. The Applicant requires her present accommodation to be able to house the parties’ children.

19. The Independent Children’s Lawyer joined with the Applicant in opposing the stay application of the Respondent. The Respondent living in the home with the Applicant and children is not viable. It is emotionally destructive of the children’s well-being. It is very unlikely that the Respondent’s appeal could be heard before the trial of this matter in March 2020. The evidence and factors required to be considered by the Court all weigh against the Court exercising its discretion to allow the application of the Respondent and grant the stay he seeks. 

20. The Respondent has already attended on a number of occasions at the G Street property for the purpose of collecting his belongings or to attend to the garden. Additionally he lived in the property from 14 September 2019 to 3 October 2019. His presence at these times did not remove the now urgent need for decluttering of the home, and proper maintenance of the garden, the latter which has been addressed by the Applicant in the engagement, by her, of a gardener to restore and maintain the garden.

21. The Applicant attempted to engage the Respondent in a dialogue as to how best to prepare the G Street property for sale. No agreement was forthcoming from the Respondent and in respect of some proposals put forward by the Applicant, essentially the Respondent provided a non-response.

22. The orders as sought by the Applicant shall be made, the evidence supporting the making of those orders. The Court shall provide however for one additional day on which the Respondent can attend at the G Street property to remove his personal belongings and/or to effect any gardening maintenance tasks.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hartnett delivered on 4 December 2019.

Associate: 

Date:  4 December 2019