Turney and Turney

[2007] FamCA 691

FAMILY COURT OF AUSTRALIA

TURNEY & TURNEY [2007] FamCA 691

FAMILY LAW - ORDERS - Application to vary children's and property orders - No appearance by husband

Family Law Act 1975 (Cth)

APPLICANT: MRS TURNEY

RESPONDENT: MR TURNEY

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 2628 of 2007

DATE DELIVERED: 2 July 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 2 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Korfiatis

SOLICITOR FOR THE APPLICANT: Webb Korfiatis

COUNSEL FOR THE RESPONDENT: Mr Mecoles

SOLICITOR FOR THE RESPONDENT: Patrick Cash & Associates

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr D.S. Lampe

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Donald S Lampe

Orders

1. That all outstanding final applications be adjourned to the Judicial Duty List on 13 August 2007 at 10 am.

2. That the hearing on 26 July 2007 in the Senior Registrar's list be vacated.

3. That the wife as soon as practicable serve upon the husband:

   (a)       a copy of this order;

   (b)       a copy of my reasons for orders this day;

   (c)       a copy of the form 2 application filed 14 June 2007;

   (d)       a copy of the affidavit in support of that form 2 application; and

   (e)any further affidavit on which she intends to rely for the proceedings listed on 13 August 2007.

4. I give leave to the solicitor on the record for the husband to withdraw.

5. I discharge paragraphs 2, 3, 4 and 6 of the orders made on 17 May 2007.

6. That the children, a daughter A, born in May 1996, and a son C born in September 1999, live with the wife.

7. That in respect of the children's orders referred to in paragraph 6 hereof, if the husband fails to make any application relating to children's matters by 4 pm on 27 July 2007,

   (a)       the orders in respect of the children shall be final; and

   (b)the Independent Children's Lawyer is discharged from the proceedings.

8. That until further order, the husband is restrained from attending at or upon the premises at L, or the premises at H.

9. That subparagraphs (ii) and (vi) of the orders of paragraph 13 of the orders made on 17 May 2007 are varied to read as follows: 

   "That the reserve price for the [L] property and the [H] property be determined by the wife together with all of the normal terms and conditions required of a vendor on a sale, including, pursuant to section 106A of the Family Law Act, the power to sign any necessary document in the name of the husband for the purposes of such sales."

10. I discharge the undertaking given by Ms K referred to in the orders of 4 April 2007.

11. That until further order, the wife be at liberty to collect all rental payments in relation to the property at H from the tenant for the purposes of satisfying the mortgage obligations of the husband and the wife in respect of that property.

12. That the wife be at liberty to serve upon the tenant of H a copy of these orders.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2628  of 2007

MRS TURNEY

Applicant

And

MR TURNEY

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This is a matter in the Judicial Duty List.  It is a case that started out in March of 2007, when the wife filed applications for final orders in respect of children and property proceedings. 

2. The children's matter relates to a boy and a girl, A, who was born in May 1996, and C, who was born in September 1999.

3. It seems that the proceedings have had a chequered history, but they came on before Kay J on 5 April, at which time the father appeared on his own behalf and the wife was represented by counsel.  At that time, Ms Buchanan appeared as amicus curiae on behalf of the Department of Human Services.  There is a transcript of those proceedings on the Court file, and his Honour appeared to be endeavouring to sort out a whole variety of interim matters as well as the children's issues.

4. The Department of Human Services intervened, as Ms Buchanan described it, in a voluntary way on the basis that the children at that stage had been with the husband for some time, and there is an interesting observation by Ms Buchanan that the Department had assessed the husband as a protective parent but there were protective concerns about the children's mother.  To that extent, his Honour asked Ms Buchanan whether she had a watching brief or was there to give his Honour some assistance, and she replied:

   To assist the Court, because the Department would issue a protection application if the mother's application for the children to live with her was successful.

5. Thereon after, the matter came back to Court, and the important date is 17 May before Bennett J.  On that day, matters appear to have been largely resolved by consent orders, but the children's issue was to some extent still alive.  An undertaking has been given by the maternal grandmother in the orders that were made on 4 April, and I intend to discharge that undertaking now on the basis of what I have read and what I have heard today.

6. Needless to say, on 17 May the orders set out that the parties were to share parental responsibility for the children and also that the other was to have some defined time with the children.  In addition, the parties consented to orders that the time that the mother spent with the children was subject to a stringent condition, that she abstain from drinking alcohol at any time and that she continue to live with her parents.

7. Things seem to have overtaken those orders substantially, because the husband has now effectively abandoned not only the property that he was then living in with the children, but sadly also the children themselves.  I have had the advantage of reading the affidavit of the wife concerning the period of time subsequent to the orders, and it is quite clear that the children are distressed and confused about the attitude that their father is taking; but needless to say, the wife has endeavoured to ensure that the orders of 17 May were implemented and has been rebuffed by the husband.  I am told that the husband has effectively not spent any time with the children since those orders were made.

8. Accordingly, the wife issued the application in the case and filed it on 14 June 2007.  Because the husband had legal representation, the documents appear to have been brought to his solicitor's attention, and today Mr Mecoles, who was his solicitor, attended and he did so for the proper reason of seeking to formally withdraw on the basis that he no longer has instructions from the husband.  He however told me that he had sent the husband the appropriate notice so that he could continue to act for himself but no documentation has been filed by the husband.  Mr Mecoles told me that he had also set out quite specifically, the details of the wife's proposed application before me today, but again the husband has not responded.

9. In the orders of 17 May, Bennett J also required the husband to file an affidavit setting out what had happened to increase the debt on one of the properties that is the subject of the property proceedings, and that has not been done.  Her Honour also made an order in relation to the parenting issues that the parents attend upon a psychologist named Mr L for the purposes of the preparation of a family report, intending that the matter go back into the Senior Registrar's duty list on 26 July.  I have evidence to show that the mother and children attended Mr L, but the husband has not.

10. Mr Korfiatis, who appears for the wife, has also added that subsequent to the filing of the material, the parties went to the S Magistrates Court on the basis of the husband's application for an intervention order that he had issued in January.  Interestingly enough - and this shows how things have changed - when the application for the intervention order was filed, the husband not only sought an intervention order against the wife but he also sought one on behalf of the children. 

11. I am told by Mr Korfiatis that before the Magistrate at S, the husband indicated that he proposed to proceed but that he didn't want to have any contact with the children.  Sadly, and perhaps worse still, he indicated that he wanted DNA testing of the children and made the rather bold statement that he believed they were not his.  He said that even if they were his, he didn't want to have anything further to do with them. 

12. The Magistrate then invited him to indicate what he wanted to do about the application in respect of himself, and he said that he did not need the order and - perhaps in a rather foreboding way - indicated that he would resolve any of those types of problems himself.  Accordingly, the Magistrate dismissed the husband's application for the intervention order, and needless to say, the earlier interim orders were therefore discharged.

13. It is fair to say that on any objective reading of the material and listening to what I have been told today, the husband is behaving in a very bizarre way.  To that extent I am a little unsettled about making final orders in relation to the children without being confident that the husband knows what he is doing, and of course the husband can make an application to see the children any time in the future and, subject to the usual constraints of being able to satisfy a court that it is in their interests that he should do so, the court would obviously entertain the application.

14. The difficulty now is that I have Mr Mecoles saying that the husband is aware of the proceedings today but I do not have any indication from him in any way at all what he wants to do.  He was called and did not appear.

15. In the circumstances, what I propose to do is to make orders in relation to the children and give the husband some time after service of the orders to bring any application that he so desires.  Otherwise, the orders in relation to the children will become final and the Independent Children's Lawyer will then be discharged.

16. One of the matters in relation to the children's orders that was obviously somewhat disconcerting was the fact that the wife had troubles earlier in the year which precipitated the intervention order and also the rather restrictive orders made by Bennett J in May.  I am told by the Independent Children's Lawyer that he is satisfied that those orders no longer need to remain, and certainly if the husband is not monitoring what is happening there is little point in continuing orders in relation to drug testing and also restrictions on the wife's movements.  So I propose to discharge those orders as a matter of commonsense.

17. Turning then to the property issues, it is premature to issue final orders today, apart from the fact that there is not sufficient material before the Court to enable that to occur.  However, to ensure that any next step in the property proceedings is not only expedited but done properly, I propose to vary orders of a very comprehensive nature that were made by Bennett J back on 17 May.

18. Essentially there are two real properties in this case, in addition to a restaurant business.  The husband was living in one of the two properties, and the wife's Form 2 application proposes that he be excluded from that property, and some severe orders were to be sought against him.  It now transpires that he has vacated the property, albeit in a mess, and turned up again at the property on the weekend seeking the keys.

19. Her Honour in May indicated very clearly - and the parties consented to these orders - that this property was to be sold.  Without the husband's cooperation, that sale would be somewhat difficult.  Her Honour made orders that the reserve price for the L property be as agreed between the husband and the wife, and in default of agreement the price be fixed by a valuer appointed by the REIV. 

20. Having regard to the husband's bizarre behaviour and the fact that he has now absented himself from the property, I propose to discharge that subparagraph of the order and give the wife the responsibility for making the decisions about the sale.  I will not alter the other orders because of the fact that they are detailed and the bottom line is that on the sale, the money is to be used to discharge various liabilities of the parties and any balance left over is to be paid into the trust account of the wife's solicitor.

21. The obvious other order that needs to be made in relation to the L property is the fact that the husband needs to be excluded from it.  The order was made for the property to be sold by private treaty, although suborder (iii) of paragraph 13 of the orders refers to the word "publication", which is clearly a typographical error.  I propose not to alter those orders on the basis that the wife anticipates that the market is good at the moment and it is likely that the property will be sold.

22. The second of the real properties that the parties own is a property at H, and again the orders of 17 May make very clear provision for the sale of that property.  The property has a reserve price to be fixed by agreement, and it seems logical that the issue of the determination of that sale price be sorted out in the same way as the L property, so I propose to alter that particular provision as well. 

23. Otherwise, the respective balances of the two properties appear to me to be safely covered by the orders of 17 May, and their ultimate proceeds will need to be dealt with in due course in the property proceedings.  I propose that the proceedings come back on 13 August, at which time, if the husband has still not participated in the proceedings and ignored the opportunity to so participate then, subject to any orders of the judge on the day, the matter can be dealt with as an undefended property proceeding.

24. There is some urgency about this case as well, having regard to the fact that it is alleged by the wife that, subsequent to separation, the husband has encumbered one of the properties, and that was why on 17 May the Court made an order that the husband explain exactly what had happened.  The mortgagee is pursuing the property, but to its eternal credit has indicated a willingness to wait until the outcome of these orders.  Having regard to that indication, I think it is appropriate that the matters be properly and quickly handled. 

25. Without the assistance of the husband, it seems that the wife should have the control of matters and should not have to keep returning to Court to get orders to get things done.  So on that basis, I feel it is appropriate in the circumstances to put in place the interlocutory orders that will enable the mortgagee to hold back from taking any action that might otherwise prejudice the interests of the parties.

26. Because of the fact that the husband may not necessarily know the precise details of what is happening today, I will also make orders for the service of documents on him making it clear that on the return date, if he does not attend, then he may face the prospect that the wife will proceed on an undefended basis.  He is therefore clearly on notice, and I will have my reasons for today transcribed and a copy made available to the wife.  I would expect that she would make available a copy of these reasons to the husband, along with the documents that I propose to have him served, so that he can be under no misapprehension that the Court is concerned about his behaviour but also the fact that if he does not decide to participate in the proceedings then it is on his head that he does not necessarily get what he thinks is a just and equitable outcome.

I certify that the preceding Twenty Six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  12 July 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as TURNEY & TURNEY