Zammit and Zammit and Anor (No 2)

[2018] FamCA 677

FAMILY COURT OF AUSTRALIA

ZAMMIT & ZAMMIT & ANOR (NO 2) [2018] FamCA 677

FAMILY LAW – Case management – where financial and parenting proceedings were approved for expedited hearing – each issue likely to take four days to hear – discrete evidence different parties - bifurcation of hearing – parenting matter allocated a hearing as soon as possible -financial matter returned to case management judge to be allocated to another judge for a separate determination.

APPLICANT: Mr Zammit

RESPONDENT: Ms Zammit

SECOND RESPONDENT: Ms B Zammit

INDEPENDENT CHILDREN’S LAWYER: Ms A Cheevers

FILE NUMBER: MLC 10480 of 2016

DATE DELIVERED: 24 August 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 24 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr C.P. Arnold

SOLICITOR FOR THE APPLICANT: Collins House Legal

COUNSEL FOR THE FIRST RESPONDENT: Mr D.W. Laidlaw CSC

SOLICITOR FOR THE FIRST 

RESPONDENT:

McNamaras

COUNSEL FOR THE SECOND 

RESPONDENT:

Ms S. Bastik

SOLICITOR FOR THE SECOND

RESPONDENT:

DSA Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Strong

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Victoria Legal Aid

Orders

IT IS ORDERED THAT:

(1)This matter be fixed for final hearing before me on 18 February 2019 at 10.00 am estimated to take 4 to 5 days (“the final hearing”).

BY CONSENT IT IS ORDERED THAT:

(2)Unless the applicant, respondent and the second respondent agree in writing by 1 October 2018 as to the value of the following real properties, being:-

a)      1 E Street, Suburb F;

b)      2 E Street, Suburb F;

c)      G Street, Suburb H;

d)      J Street, Suburb F; and

e)      The holiday house located in Country K;

then the parties shall jointly appoint a valuer to value the said properties as a single expert. (Amended 30 August 2018)

(3)For the purpose of the valuation pursuant to paragraph 1 herein:-

a)      The valuer shall be selected by the respondent wife from a list of not less than three suitably qualified valuers to be submitted by the applicant husband;

b)      The costs of such valuations shall be borne in first instance by the applicant husband with the respondent wife to reimburse half of such cost to the applicant husband upon the resolution of the property application herein. (Amended 30 August 2018)

(4)Any party may submit a list of requested documents sought by way of financial disclosure from any other party with such requests to be answered by provision of copy documents to the requesting parties’ solicitor for such documents that are in that parties’ possession, power or control and such request to be answered within 14 days.

IT IS FURTHER ORDERED BY THE COURT THAT:

(5)To the extent that the parties need permission to do so, they may each cause an unlimited number of subpoenas to produce documents to issue provided that:

a.      Such subpoenas are made returnable before 1 October 2018;

b.      The parties do all acts and things necessary to ensure that inspection and photocopying of documents produced on subpoena is completed by not later than 1 November 2018; and

c.      Until further order, the parties’ practitioners / independent children’s lawyer be permitted to photocopy documents produced on subpoena.

(6)Either party may serve on any other party:-

a)      A request for further and better particulars of any pleading;

b)      A list of specific questions pursuant to the Rules;

c)      A Notice to Admit Fact or authenticity of any document; and

in each case the party so served shall answer within 14 days.

(7)For the avoidance of doubt, no party is confined to serving only one such list of specific questions or Notice to Admit as provided herein.

(8)The property and parenting proceedings be bifurcated and the property proceedings be referred back to the Case Management Judge for allocation to the docket of another judge for final hearing.

(9)This matter be listed for mention by telephone before me to immediately follow upon the completion of the Family Dispute Resolution Conference provided for in paragraph 15 of this Order.

(10)Each party file and serve an undertaking as to disclosure by 1 November 2018.

(11)In anticipation of the final hearing, each party file and serve any amended application or response and all affidavit material or proofs of evidence in support of his/her case, as follows:-

a.      The applicant husband by not later than 5 November 2018;

b.      The respondent wife by not later than  19 November 2018; and

c.      The husband in reply by not later than 26 November 2018.

(12)The parties do all acts and things necessary to obtain a family assessment from Dr L, or if she is not reasonably available, Mr M to be published by 14 January 2019 at 5.00 pm.

(13)The family assessment deal with the following matters:-

a)      any views expressed by the children X born … 2008 and Y born … 2011 and any factors (such as the children’s maturity or level of understanding) that may affect the weight that the court should place on those views;

b) the matters set out in s60CC of the Family Law Act;

c)      an assessment of the capacity of the parents to cooperate with one another in relation to day to day parenting matters as well as long term parenting issues;

d)      an observation of each of the parties with the children (unless it appears to the Counsellor that such an observation taking place is not in the immediate best interests of the children);

e)      recommendations as to how the matters in issue between the parties and/or arising out of the proceedings, may be resolved in the children’s best interest to the greatest extent possible including consequential orders.

(14)The parties share equally in the cost of the report and deposit an amount equivalent to one half of the estimated cost into the trust account of his or her lawyer not less than 7 days prior to the first appointment for either of the parties and be paid out to the expert upon production of an invoice for same.

(15)For the avoidance of doubt the report writer be and is hereby authorised to have reference to:-

a)      all documents filed in these proceedings;

b)      any documents produced on subpoenae and released for inspection by all parties;

c)      any documents provided to him/her by the independent children’s lawyer who will give notice to the other parties to the proceedings of what documents are so provided;

d)      any documents or things referred to in this Order.

(16)The mother and the father participate, by themselves and their legal advisers, in any round table conference which the independent children’s lawyer appoints, through the Victoria Legal Aid Family Dispute Resolution Service, in the week commencing 21 January 2019 and the independent children’s lawyer notify my Associate, … – … - as soon as possible of the date and time of the conference, once appointed.

(17)IT IS REQUESTED that the report writer be available to discuss the matter by telephone with the independent children’s lawyer on the day of any round table conference appointed pursuant to paragraph 16 of this Order.

(18)Notwithstanding any other order to the contrary, for the purpose of application to Victoria Legal Aid Round Table Dispute Management the independent children’s lawyer is hereby authorised to provide to Victoria Legal Aid Family Dispute Resolution Service Management:-

a.any family report;

b.any document referred to in this Order;

c.any document filed in these proceedings; and

d.any other report by a professional in this matter that the independent children’s lawyer considers is necessary.

(19)By way of compliance with Rule 19.04 of the Family Law Rules 2004 by not later than 12.00 noon on 7 February 2019, the practitioner for each party provide notice in writing to his/her client of:-

a)     the actual costs incurred by the client up to and including that date;

b)     any expenses paid or payable to an expert witness or, if those expenses cannot be ascertained, after the making of all reasonable enquiries, an estimate of any expenses;

c)     the costs payable for each day of the Family Dispute Resolution Service conference;

d)     the costs payable for each day of the trial,

e)     the estimated length of the trial; and

f)     the date of payments made and the source of the funds for the costs paid or to be paid so that:-

i.if costs have been paid by cheque, details must be provided of the account on which the cheque was drawn;

ii.if costs have been paid by credit card, the details must identify the finance provider and number and name of the credit card facility; and

iiiif costs have been paid in cash, the details must identify the payer.

(20)Contemporaneously with compliance by the practitioner concerned with paragraph 17 of this Order, the practitioner provide to my Associate -  email …- a copy of the notification given to his/her client pursuant to paragraph 17 of this Order AND IT IS DIRECTED that my Associate send a copy of the notification to the other parties to the proceedings.

(21)In the event that this matter resolves prior to the hearing date, the solicitors for the parties and the independent children’s lawyer notify my Associate promptly.

(22)My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.

IT IS DIRECTED:

(23)That the minute of orders as amended be marked Exhibit “A” and remain on the Court file.

AND IT IS NOTED BY THE COURT that, in the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.

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 Zammit & Zammit and Anor (No 2) 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 10480

Mr Zammit

Applicant / Husband

And

Ms Zammit

First Respondent / Wife

And

Ms B Zammit

Second Respondent / Paternal Grandmother

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me as the first day of hearing following priority being granted to it by Johns J on 20 July 2018.  The proceedings comprise property/financial proceedings and parenting proceedings.  Neither aspect is without complication.

2. The property aspect involves the husband’s mother who is the owner of real property and liquid funds, which the wife alleges were transferred to the husband’s mother by the husband, with the intention of limiting the pool of real and personal property to which the Court may have regard on a final alteration of property interests. I am informed that, to date, the wife has not elected to make an application under section 106B of the Family Law Act 1975, but she may do so in the future.  It is estimated by all concerned that the property aspect of the matter would take not less than four days, and that seems to me to be a reasonable estimate. 

3. Last week, the parties undertook a mediation with Mr N of the Victorian Bar.  It did not resolve either issue.  It appears to me that it could have been nothing more than a goodwill gesture, for which the parties deserve credit, but it leaves the matter essentially unmediated.  That is because the parties did not have sufficient information with which to approach the mediation. 

4. At my invitation today, they have prepared some minutes of order which provide for a mechanism for valuation of properties, if such properties need to be valued, and are not the matter of agreement, for further discovery, and adopted my suggestions in relation to specific questions and a notice to admit facts.  Additionally, the applicant wife is likely to seek further and better particulars from the husband’s mother as to the claim of the husband’s mother. 

5. The parenting case is a serious matter.  The children have not seen the father for some time.  It appears to be common ground that the children are rejecting any relationship with the father at this point, and at least some of the social science evidence which I have read in preparation for today indicates that that rejection may not be a reasonable reaction by the children based on the children’s own experiences, but might be as the result of inappropriate parenting by the mother, influence by her through which she seeks to undermine the capacity of the children to have a relationship with the father. 

6. All parties agree that the proceedings should be bifurcated, because the evidence is not common evidence and each aspect of the matter are likely to take four or more days to adumbrate. This was initially the application of the second respondent, who is the paternal grandmother of the children and the mother of the father.  On the basis of bifurcation, the husband’s mother will not be required to attend the parenting hearings as a party; she may be called as a witness. 

7. The father has recently filed an amended application in which he seeks a change of residence of the children.  The matter was accorded priority, as I understand it, mainly on the basis of the children’s issue.  It is certainly the children’s issue which the parties acknowledge needs a hearing as soon as possible.  It is estimated by the parties that that will take not less than four days, and that, to me, seems to be an underestimate.  I could imagine it taking at least five days or more, as the parties have been through a supervised contact regime, as well as family therapy with Ms D, who has prepared a detailed report.

8. The earliest date by which I could take the parenting matter as a primary matter is April or May 2019.  However, I have double listed the matter in February. That is not to say that this matter ranks second in priority to the matter that was first listed.  I will determine which matter is to proceed, if that is necessary, closer to the date.  I have warned the parties that the date for hearing may change, and the Court will give them as much notice as possible of that, but I will be confident that it would be reached some time in February, and I will certainly endeavour to make it the date that the orders reflect.

9. The earliest time by which a s.62G(2) family report could be prepared by a family consultant is April 2019.  The parties have therefore elected to obtain a private report.  However, the mother cannot afford to contribute to that report at this point in time.  The father has agreed to pay all costs initially, inclusive of costs of attendance and cross-examination, on the basis that he will recover the amount equivalent to one half thereof from any entitlement of the wife to an alteration of property interests. 

10. The available private family report writers were Mr M and Dr L.  The report will be prepared by Dr L.  Interviews will be held in December 2018 and the report released in the second week of January 2019.  It is important that timetable be kept. 

11. The parties have agreed, as a basis upon which I have listed the matter in February 2019, to attend a family dispute resolution conference with Victoria Legal Aid on 21 January 2019. 

12. The family report must be available well before the Family Dispute resolution Service mediation so that it can be carefully considered by the parties and those who advise them. 

13. Additionally, the orders that I make provide that the parties do all acts and things necessary to ensure that Dr L would be available by telephone to discuss the matter with the Independent Children’s Lawyer or the parties on that day of the family dispute resolution conference, if needed.  The matter will return to Court that afternoon, and I will make any further directions for the trial, as are necessary, which is currently to commence to 18 February 2019. 

14. I raised with the parties that after I make a decision in relation to parenting, one or other of the parties may seek to have me recuse myself based on findings of credit, or the like.  Ms O (for the paternal grandmother) indicated that she was instructed to make an application that the property aspect of the matter be dealt with by another judge.  That appears to be prudent, and it is timely that that be decided now, because it means that the matter can be referred out to another judge as and when one becomes available or has a place in her docket.  I will accede to that application.

15. I will refer the property aspect of the matter back to the case management judge.  To the extent that I have made directions in relation to the property matter, the parties understand that the judge who is finally to hear the matter may well make other or alternative directions or orders. 

16. Finally, if the financial matter is not resolved by the time the parenting matter is concluded and I can allocate the matter either a final hearing or a Judicial Settlement Conference without objection by any party, I would be happy to do so.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 24 August 2018.

Associate: 

Date:  4 September 2018