Tillman and Tillman (No 4)

[2016] FamCA 691

FAMILY COURT OF AUSTRALIA

TILLMAN & TILLMAN (NO 4) [2016] FamCA 691

FAMILY LAW – Final orders – parens patriae jurisdiction – orders affecting the property of children

APPLICANT: Mr Tillman

RESPONDENT: Ms Tillman

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 1102 of 2014

DATE DELIVERED: 9 August 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 9 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT: Self-represented

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED THAT:

1.The father have leave to file the Affidavit of Service and Acknowledgement of Service completed by Ms Q on 5 August 2016.

2.The six pages of bank statements tendered by the husband be marked Exhibit “H1”, be copied and the copies remain on the Court file with the original documents being handed back to the husband.

3.Pursuant to s 106A(1) of the Family Law Act 1975 a Registrar of this Registry be and is hereby appointed to sign all necessary documents and give any necessary authorisations in writing to the Proper Officer of Bankwest to make the father, Mr Tillman, signatory to the following accounts to the exclusion of the mother, being Ms Tillman:-

a)      BSB Number … Acc. No. … in the name of N;

b)      BSB Number … Acc. No. … in the name of N

c)      BSB Number … Acc. No. … in the name of E

d)      BSB Number … Acc. No … in the name of E.

4.The respondent mother reimburse to each of the children E born … 2001 and N born … 2002 any monies which she has withdrawn from the said bank accounts from the accounts from and including 14 February 2014 including, but not limited to $6,000 referred to by the father in paragraph 1 of his affidavit sworn on 22 July 2016.

5.The reimbursement provided for in the preceding paragraph of this Order be effected by the father deducting from the monies which he is required to pay the mother pursuant to paragraph 8 of the final property order made on 27 January 2015 an amount equivalent to the withdrawals made by the wife and paying those monies into the accounts of the children in the same amounts as were withdrawn by the wife.

6.There be liberty to apply in relation to the implementation of this Order and in the event that either party files an application in the next 12 months in relation to this Order that application may be listed before me initially.

7.Otherwise the Initiating Application of the father and filed on 22 July 2016 be and is hereby dismissed.

IT IS DIRECTED:

8.That my reasons for decision this day be transcribed and when settled a copy be placed on the Court file and provided to the parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tillman & Tillman (No 4) 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 1102 of 2014

Mr Tillman

Applicant

And

Ms Tillman

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. This is the father’s initiating application filed on 22 July 2016 in which he seeks orders to effectively have the mother reimburse moneys which she has withdrawn from the accounts of the two children of the marriage, being E who is 15 years old and N who is 14 years old, and to transfer to him control of the accounts in which the children’s money previously was and in which some of the children’s money may now remain.

2. The father represents himself. There is no appearance by or on behalf of the mother.

3. This is the second time in a few months that Mr Tillman has come before me. On 7 July 2016, I made orders appointing a registrar pursuant to section 106A(1) of the Family Law Act 1975 (Cth) (“the Act”) to sign documents necessary to give effect to final property orders made by Cronin J on 22 January 2016 for the sale of property at B Street, C Town in the United Kingdom. Registrar Sikiotis executed the documents. The sale of that property is yet to be effected.

4. I am satisfied that the mother has been accorded procedural fairness in relation to this application concerning the children’s money. The father has filed an affidavit of service in which a process server, Ms Q, deposes to having served the mother with the father’s application, his affidavit sworn 13 July 2016 and his financial statement on 1 August 2016 at 6.50 pm at Suburb N. There is an acknowledgement of service attached to the affidavit of service that appears to be the same signature as appears on documents in the Court file attributable to the mother. Furthermore, the process server deposes that she recognised the mother from the photograph which was supplied by the father. There is a photograph attached to the acknowledgement of service which the father says is of the mother and the process server says is the recipient of the documents. The process server and the person served also had the following conversation: the process server asked, “Are you [Ms Tillman], the person referred to in these documents?” to which the person served replied, “Yes.”

5. The mother has been notified that the matter may proceed in her absence and, in that respect, I refer to the “Important Notice to Respondents” which appears at page 10 of the father’s application, which requires the mother to have filed documents before today in the event that she opposed the application or otherwise and to attend the hearing. In bold type and underscored, there appears the warning “Please note: If you do not attend the hearing orders may be made in your absence”.

6. The application is clear as to what it seeks. The affidavit of the father sworn on 13 July 2016 makes clear the context in which he seeks the orders sought. This is not the first time the matter of the children’s money in savings accounts has been raised. When this matter was before me earlier this year the father swore an affidavit on 6 May 2016 in which, at paragraph 2 and thereafter, he recites the same facts and matters in relation to the mother’s withdrawals of the moneys from the bank account, including his concern that the children be repaid the funds. I was satisfied in May 2016 that the mother had been served with that affidavit as well, so this is not a new issue for her.

7. In support of his application today, the father deposes that the children’s bank accounts were kept with BankWest for the benefit of the children. He has handed up statements on the accounts showing four accounts; there are two accounts in the name of E, being accounts numbered … and …; and there are two accounts in the name of N, being account numbers … and ... I have regard to the statements as business records within the meaning of s 69(1)(a) of the Evidence Act 1995 (Cth). The father deposes that those accounts are both able to be operated by the mother but not by the children nor by himself.

8. He further deposes that his perusal of bank statements reveals that on 14 February 2014, the mother withdrew $3000 from two separate accounts, being $6000 in total. The father deposes that the moneys are beneficially owned by the children and that the children have now requested that he take over stewardship of the accounts to prevent, inter alia, further moneys being withdrawn by the mother.

9. The father seeks that a registrar be empowered to sign documents in the place of the mother to transfer control over the children’s bank accounts into his name and that the respondent reimburse the children the sum of $6000 which was withdrawn from the accounts of the children without their consent or notice in February 2014. The father seeks that repayment or reimbursement of the funds be effected by that amount being deducted from moneys which he is responsible for paying the mother pursuant to paragraph 8 of the final property orders made by Cronin J on 22 January 2016 in the approximate sum of $290,000. Those moneys are to come from the sale of the property in the United Kingdom, so will not be paid for some time.

10. The father has provided bank statements for the bank accounts mentioned above. Statements, of which there are six pages, show that there was a withdrawal of $3000 from E’s account on 14 February 2014, which left a balance of $97.98. The father informs me from the bar table, and I accept, that there is an identical transaction for the account operated by N. The father says that he has inadvertently left it with his lawyer rather than bringing it to Court today.

11. There has been an alteration of property interests between the father and the mother pursuant to Part VIII of the Act. The orders that I will make today are not under Part VIII of the Act but under Part VII.

12. The orders that I make are made pursuant to the Court’s parens patriae jurisdiction over the property of children and how that is held.

13. The effect of this order will be to replace the father as trustee of the moneys for the benefit of the children. It will also be to require the mother to reimburse the moneys which she has withdrawn from those accounts and to do so in the manner proposed by the father.

14. Nothing requires the mother to attend Court today. As indicated I am satisfied that she has been accorded procedural fairness in relation to this application the basis of which was rehearsed by the father in his affidavit in support of the application he ran before me on 7 July 2016, at which the mother also failed to appear. I am satisfied that it is in the best interests of the children, appropriate and proper to make the orders sought by the father.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 9 August 2016.

Legal Associate:

Date: 22 August 2016