Stokes and Stokes & Anor

[2020] FamCA 1086

FAMILY COURT OF AUSTRALIA

STOKES & STOKES AND ANOR [2020] FamCA 1086

FAMILY LAW – PRACTICE AND PROCEDURE – where the matter is listed for final hearing for three days in 2021 in relation to property matters only – where the wife subsequently filed an amended initiating application seeking to also ventilate parenting issues – where the wife seeks to bifurcate the proceedings so that the property and parenting matters are heard separately – where the husband seeks that both parenting and property issues be determined at the same time – where ventilating all of the issues in one hearing will save the parties time and costs – where the Court does not have capacity to add a further three days to the current listed hearing – order that the final hearing be vacated and that both parenting and property issues be listed before me for final hearing.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) rr 1.04, 1.06

APPLICANT: Ms Stokes

FIRST RESPONDENT: Mr Stokes

SECOND RESPONDENT: Ms B Stokes

FILE NUMBER: MLC 6528 of 2018

DATE DELIVERED: 7 December 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 7 December 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Isaacson

SOLICITOR FOR THE APPLICANT: Whyte Just & Moore

THE FIRST RESPONDENT: In person

SOLICITOR FOR THE SECOND

RESPONDENT:

Mr Ghabrial, Zervos Lawyers

Orders

IT IS ORDERED THAT

1. That the final hearing commencing on 22 March 2021 be vacated and Orders 1 to 14 of the Orders made on 12 October 2020 be discharged and that all applications for final parenting and property orders be adjourned for hearing before Justice Johns on 19 July 2021 at 10 am as a six day matter and that the evidence in chief of all witnesses be given by affidavit.

2. The requirements of s 102NA(2) of the Family Law Act 1975 will apply to any cross-examination occurring in the proceedings.

3. That by 4.00 pm on 22 February 2021 the applicant file and serve upon all other parties:

   (a)an amended application setting out with precision the orders to be sought;

   (b)the affidavits of evidence in chief of all witnesses including the applicant relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief); and

   (c)a financial statement that complies with chapter 13 of the Family Law Rules.

4. That if not already paid, the applicant pay all setting down and trial fees by 4.00pm on 22 February 2021.

5. That by 4.00pm on 22 March 2021 the respondent file and serve upon all other parties:

   (a)an amended response setting out with precision what orders are being sought;

   (b)the affidavits of evidence in chief of all witnesses including the respondent relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief);

   (c)a financial statement that complies with chapter 13 of the Family Law Rules.

6. That by 4.00pm on 5 April 2021 the applicant file and serve any affidavit in reply to that of the affidavits of the respondent.

7. That by 4.00 pm on 5 July 2021 the Independent Children’s Lawyer file and serve upon all other parties, any affidavit material relied upon.

8. Leave is granted to the parties and the Independent Children’s Lawyer to file a report in relation to the issues in dispute attached to an affidavit in accordance with the dates identified in paragraph 3, 5 and 7 from any treating doctor, psychologist or therapist; contact centre staff member, professional supervisor, childcare worker or teacher.

9. If there is no agreement as to the value of the property the subject of the proceedings by 1 March 2021, the parties do all acts and things necessary to appoint and instruct such single expert as may be agreed by 8 March 2021 (“the date”) and in default of agreement, within seven days of the date the applicant serve on the respondent a list of three suitably qualified valuers and within 14 days of receipt of the said list, the respondent nominate a single expert from that list, such single expert to value:

   (a)       The property at C Street, D Town.

10. The cost of any valuation is to be paid in equal shares by the parties.

11. The valuation is to be completed and released to the parties by 31 May 2021.

12. That no party file any further material other than as provided by these orders without leave of the Court.

13. If a party takes objection to any evidence of another party:

    (a)any objection be taken no later than 20 days prior to the trial by service of written notice on the solicitor for the other party;

    (b)the party so served shall notify the objecting party in writing no later than 10 days prior to the trial of which objections so taken are the subject of agreement and which require determination;

14. That pursuant to s 62G (2) of the Act, the parties and the children attend upon and at the direction of Mr E (Family Report writer) for the purposes of the preparation of a family report on 19 April 2021 and to be completed and released by 24 May 2021, and that the cost of the report (being $10,000 plus GST) be paid from monies held in trust by the Wife’s former solicitors on behalf of the parties.

15. That the Family Report Writer be at liberty to inspect the court file and all documents produced under any subpoena to which objection to release has not been taken, and for these purposes the Independent Children’s Lawyer is at liberty to provide a copy of all such documents which have been made available for inspection and photocopying to the Family Report Writer.

16. That all parties have leave to issue subpoenae for the production of documents by arrangement with the registrar docketed with the management of the file.

17. That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

18. Should any party fail to comply with these orders or the ensuing amending directions of the docketed registrar:

    (a)The Court may relist the case requiring the parties to justify why it should not be taken out of the list; and

    (b)The party who has complied may immediately thereafter file an application in a case supported by an affidavit seeking for the matter to proceed on an undefended basis.

19. That the practitioners for the parties file and serve electronically to associate.justicejohnsfamilycourt.gov.au by 4.00pm on 12 July 2021 the following:

    (a)a concise set of orders to be sought if different from those already filed;

    (b)a list of the applications and affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon;

    (c)a list of assets and liabilities;

    (d)a list of objections to evidence upon which rulings are required; and

    (e)a bullet-point summary of argument in relation to the issues in dispute.

20. That each party provide to the court at the commencement of the hearing, a statement setting out the costs incurred to that date and from what source those funds have been paid and what costs are expected to be incurred until the completion of the hearing.

21. Pursuant to s 68L(2) of the Family Law Act 1975 (Cth) (‘the Act’) the children be independently represented by an Independent Children’s Lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and such arrangement be as soon as and as often as may be practicable having regard to the processes adopted by Victoria Legal Aid to consider such appointments and that:

    (a)Forthwith upon the appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer file a Notice of Address for Service;

    (b)Within 48 hours of notification of such appointments the parties (by their solicitors if represented) provide to the Independent Children’s Lawyer copies of all relevant documents.

22. That paragraphs 3 and 4 of the Application in a Case filed by the Mother 21 October 2020 be listed for hearing before Senior Registrar Hoult at 10:00am on 8 February 2021.

23. That by 4.00 pm on 18 January 2021 the respondent file and serve upon all other parties any response to application in a case setting out the interim orders sought by him and any affidavit on which he seeks to rely at the listing on 8 February 2021.

24. That by 4.00pm on 1 February 2021 the applicant file and serve upon all other parties any response and affidavit she seeks to rely on at the hearing listed on 8 February 2021.

25. THAT BY CONSENT UNTIL FURTHER ORDER the Husband do all things and sign all documents necessary to pay to ANZ the amount of $3,800 towards the loan secured by mortgage over the property at C Street, D Town by 4:00pm today and continue to pay to ANZ the amount of $3,800 on a monthly basis thereafter, and provide to the Wife’s solicitor proof of payment including a receipt of payment and bank statements on each occasion when the payment has been made.

26. That the Application in a Case filed 21 October 2020 be otherwise dismissed.

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 Stokes & Stokes 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 6528 of 2018

Ms Stokes

Applicant

And

Mr Stokes

First Respondent

And

Ms B Stokes

Second Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter comes before the Court today upon the filing of an Application in a Case by the wife on 21 October 2020.

2. The parties have a property proceeding listed for final hearing before me, to commence on 22 March 2021.  Since trial directions were made listing those competing financial applications for hearing, the wife has filed an amended Initiating Application in which she seeks that the Court also make parenting orders.  The Application in a Case before the Court today seeks the bifurcation of the proceedings, such that the property applications proceed on their listed trial dates and that the parenting matters be listed for hearing at a later time.

3. The husband’s position is that it would be inappropriate for the property proceeding to continue, as the determination of parenting matters may well affect the assessment of any property division, particularly given that it is his position that he seeks a shared care arrangement in relation to the children. 

4. The second respondent, who has an interest in the property the subject of the proceedings, indicates their preference that the property proceedings continue on the listed trial date. 

5. The background to the proceedings is as follows.  The applicant wife is aged 29 years.  The husband is aged 46 years.  The parties commenced cohabitation in January of 2011.  They married in November of 2013 and separated on a final basis in December of 2017.  There are three children of the relationship, X, who is aged almost seven years, Y, who is aged five years, and Z, who is aged four years.

6. The parenting proceedings have had a difficult history.  Although there were originally parenting applications before this Court, due to protective concerns, proceedings were commenced in the Children’s Court of Victoria (“Children’s Court”). The children have been subject to family protection orders made in that Court, those orders expiring in November of this year.  It is as a result of the expiration of those orders that the wife has now revived her application for parenting orders in this court.

7. It is the wife’s application that she have sole parental responsibility for the children and that they live with her.  The wife’s position is that the children should not spend time with the father.  The father is yet to file any response to the wife’s amended application.  He represents himself in these proceedings.  Whilst he has forwarded emails to the Court over the past weekend, he has not filed any response or affidavit material in relation to the parenting matters raised by the wife.  He indicates today, in the course of his submissions, that he will be seeking orders that he share the care of the children.

8. It is common ground between the husband and the wife that it would be appropriate for this Court to make orders for the appointment of an Independent Children’s Lawyer, particularly in light of the allegations raised as to whether or not the children are at risk in the father’s care.  There is a history of alleged family violence, and as I have already noted, there is a long history of proceedings in the Children’s Court.  The wife has caused to be filed a Notice of Risk on 16 November 2020.  The wife there outlines her concerns in relation to risk for the children, including that the children have been exposed to or experienced family violence.  She also alleges that the husband has caused harm to her.

9. Through the course of the Children’s Court proceedings, there have been attempts to reunite the children with the husband.  Those attempts have been largely unsuccessful and the wife relies upon the short-form update summary provided by the Department of Health and Human Services which is annexure A-2 to her affidavit filed 20 October 2020. It notes the history of the protection proceedings and the allegations as to family violence by the husband and the impact of that upon the children.  It also notes the difficulties that have arisen in relation to the children’s contact with the husband, and it sets out a history of occasions when the children have indeed refused to attend supervised contact with the support of the department.

10. As a result of that history, it is the wife’s submission that the property proceedings are capable of continuing on their listed date in March. Counsel for the wife submitted that even if the parenting application were able to proceed, the outcome would likely be that the husband would have little or certainly very limited time with the children at best. As a result, the assessment of s 75(2) factors is easily made, notwithstanding that there would not have been a consideration and determination of the parenting matters.

11. During the course of the submissions, I indicated to the parties that I would have the capacity to relist the matter to deal with all matters in July 2021.  Therefore, the potential delay of the property proceedings would be for a period of four months only.  I would have the capacity to list the matter for a six-day hearing and would be able to make the necessary orders to ensure that the matter was able to proceed in relation to all issues on that listed date. 

12. The husband asks that I make orders facilitating that approach.  That position is opposed by the wife.  She indicates that she has significant concerns as to the position in relation to the parties’ equity in the property the subject of the proceedings.

13. The husband concedes before the Court today that he has not met the mortgage payments in relation to that property for a period in excess of 12 months.  He indicates to the Court, although there is no evidence of this, that he has been in discussion with the mortgagee, and that there are arrangements on foot for him to resume making mortgage repayments with a reduced interest rate in relation to that mortgage.  The husband indicates that he is prepared to consent to an order today that he will meet the mortgage payments pending the conclusion of these proceedings, and it is on that basis that he seeks that the applications proceed at the same time.

14. The Family Law Rules 2004 (Cth) (“the Rules”) govern the management of Court hearings. Rule 1.04 sets out the main purpose of the Rules, which is to ensure that each case is resolved in a just and timely manner, at a cost to the parties and the Court that is reasonable in the circumstances of the case. The reality is that there would be a significant cost to both parties were they to have two trials. Inevitably, there would be duplication of costs in terms of preparation for two hearings, and my assessment is that there would likely be more hearing days required in the event of two hearings. The property proceedings were listed for three days. I am told that were the two issues to proceed together, the matter would likely take six days. Given the history of the matter and the fact that the husband is self-represented, in my view that is a realistic assessment.

15. Rule 1.06 of the Rules provides that in promoting the main purpose of the Rules, the Court is required to actively manage each case by identifying and matching types of cases to the most appropriate case management procedure. Achieving that purpose requires the Court to consider the promoting of the saving of costs as well as giving an appropriate share of the Court’s resources to a case, taking into account the needs of other cases. That these proceedings and the issues between these parties have occupied substantial Court time is a significant factor in this matter,

16. The proceedings commenced their life in the Federal Circuit Court.  There have been interim hearings in that Court.  There have been proceedings in the Children’s Court, reviews of decisions from the Children’s Court to the County Court of Victoria.  There are proceedings now in this Court.  This matter came before me on the first occasion in a Judicial Duty List.  It is as a result of that history that I made the assessment that this matter should have some priority, and it was on that basis that I afforded it priority and listed it for trial before me at the then earliest possible date, which was in March 2021.  Again, the matter comes before me because of the desire of the parties to ventilate additional issues.

17. In my view, having regard to the need to ensure a fair allocation of Court resources, and having regard to the costs that will be incurred by the parties in preparing for two hearings, I am satisfied that the appropriate course in this matter is to vacate its listed trial date in March, and to make trial directions listing it for a hearing in relation to all issues in July of 2021.  In doing so, the parties’ legal costs incurred in preparation for one hearing rather than two, are likely to be reduced.  Given the modest pool of assets available to them, in my view, it is appropriate that every step be taken to ensure that their costs are minimised.

18. The delay, whilst not desirable, is relatively short, of only some four months.  That delay will enable all issues to be finalised, and to ensure that these proceedings are brought to a conclusion.  In my view, that is appropriate, given the sad history of the proceedings relating to these children; they have been the subject of litigation, whether it be in the Federal Circuit Court, the Children’s Court, or this Court, for more than half their young lives.  They need certainty and finality as to their future care arrangements.  In my view, a continuation of these proceedings, potentially into 2022, is likely to be contrary to their best interests.  Accordingly, I will make orders listing all applications for final hearing before me in July 2021 to ensure that the proceedings are able to be finalised without further delay.  

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 7 December 2020

Associate: 

Date:  7 December 2020