Falconer and Falconer

[2009] FamCA 151

FAMILY COURT OF AUSTRALIA

FALCONER & FALCONER [2009] FamCA 151

FAMILY LAW – PRACTICE AND PROCEDURE – Third party intervention – Case management – Adjournment

Family Law Act 1975 (Cth)

APPLICANT: MR FALCONER

RESPONDENT: MS FALCONER

INTERVENOR: MR P

FILE NUMBER: MLF 3127 of 2005

DATE DELIVERED: 2 MARCH 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 2 MARCH 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR GILLARD

SOLICITOR FOR THE APPLICANT: RENNICK & GAYNOR

COUNSEL FOR THE RESPONDENT: MS GOMES (Duty Solicitor)

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INTERVENOR: MR RAMSEY

SOLICITOR FOR THE INTERVENOR: MR P

ORDERS

IT IS ORDERED:

1. THAT MR P, solicitor, be granted leave to intervene in these proceedings.

2. THAT the application in a case filed by the intervenor on 18 November 2008 be otherwise consolidated with all substantive applications and be heard and determined at the time of any defended property and financial hearing.

3. THAT the application in a case filed 18 February 2009 on behalf of the husband be adjourned for hearing in the Judicial Duty List at 10.00 a.m. on 16 March 2009.

4. THAT the intervenor be excused from attendance at court on that adjourned hearing date and that the solicitor for the husband be requested to keep the intervenor informed of the progress of these proceedings.

5. THAT the costs of the husband of and incidental to any appearance at court this day be reserved to the trial Judge.

6. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to all parties.

7. THAT the solicitor for the husband make, file and serve any further affidavit as to the appointment process or the identity of any appropriate case guardian to be further considered by the court on the adjourned date.

8. THAT the Form 1 application filed on behalf of the husband on 18 October 2005 and the subsequent application in a case filed by the intervenor on 15 October 2008 be all consolidated and adjourned to 16 March 2009 Judicial Duty List date.

9. THAT until further order any documents for service upon the wife be effected by service upon Victoria Legal Aid.

IT IS NOTED:

A.THAT in respect of subpoenaed documents produced to court pursuant to subpoena the Office of Public Prosecutions has elected to raise no issue and indeed consents to the release of the medical opinion identified in the subpoena but the wife is yet to have explained to her and otherwise is yet to give instructions on that issue and the husband’s solicitor has advised the court he will not inspect the document pending the further hearing of this aspect of the case.

IT IS NOTED that publication of this judgment under the pseudonym Falconer & Falconer is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3127 of 2005

MR FALCONER

Applicant

And

MS FALCONER

Respondent

And

MR P
Intervenor

REASONS FOR JUDGMENT

1. The matter of Falconer is listed in the Judicial Duty List this day.  Mr Gillard, solicitor, appears for the husband who is not present at court today.  Ms Gomes, Duty Solicitor and from Victoria Legal Aid, has announced an appearance on the basis of amicus curiae for the wife, who is an in-patient of the Psychiatric Division of the E Hospital.  Mr Ramsey of counsel made a fleeting appearance on behalf of the potential intervenor Mr P, a solicitor who previously acted for the wife in both Family Court and criminal proceedings. 

2. I first raise the issue of service upon the wife and there are presently on file various affidavits of service on behalf of the husband and Mr P.  These were respectively filed 12 February 2009 and an earlier filing date of 17 December 2008.  Mr Gillard has advised the court that he is still waiting on further documentation to be received and filed.  Ms Gomes advised the court that she has had a telephone conversation this morning with the wife, which was arranged through another legal officer of Legal Aid who has more direct liaison with the wife on some supervisory role, bearing in mind that the wife's criminal appeal to the Full Court of the Supreme Court of Victoria is outstanding.

3. I am told today that the wife knows of these proceedings, has received the various documents served upon her and does understand that there are disputes both as to property and financial issues pursuant to section 79 of the Family Law Act, and otherwise in relation to the costs of her former solicitor.

4. Mr P filed an application in a case on 18 November 2008 (court index document 13).  He therein sought orders (in summary) as follows:

   §leave to intervene in the proceedings;

   §payment of a sum of $18,866.14 for past criminal and family law legal representation and disbursements;

   §the further costs of this application;

   §an injunctive order against the wife in respect of receiving or disposing of any property settlement moneys;

   §notification and information to be provided to the solicitor in respect of property proceedings.

5. Mr Ramsey interrupted a trial that he was appearing in downstairs to briefly attend and request intervention, and otherwise for his client to be excused pending the final hearing, but on the basis that he is notified of the ongoing negotiations out of court (if there are ever such discussions) and otherwise of the conduct of the proceedings.

6. The husband's solicitor consents to Mr P’s intervention.  The solicitor for the wife has no instructions in the light of her limited role today.  I am conscious that there will be ongoing legal costs of and associated with intervention if this matter is not dealt with on an efficient and speedy basis.  Given that the claim by the intervener relates to a payment of moneys only from what the wife receives in the proceedings, and given that quantum is not yet the subject of agreement or contest, then the wife's position is largely not compromised by such intervention.  Indeed I am satisfied that there may likely be a sum of money owing to the solicitor for past work, services and disbursements.  It is appropriate that he has a convenient forum to seek financial redress, if appropriate.  I propose therefore to order, not by consent but by the court, that Mr P, solicitor, be given leave to intervene in the proceedings and that his application in a case be consolidated with the substantive property and financial matters before the court.

7. Turning to the wife's present position, I have read the judgment of the sentencing Judge annexed to the affidavit of husband and otherwise read that affidavit which was filed 18 February 2009.  An issue that arose this morning was whether there should be any ongoing and updated report of the current mental health of the wife obtained, upon request, from Dr B, Consultant Psychiatrist who is identified in paragraph 33 of the sentencing judgment (and thereafter).  I am advised that Dr B continues to oversee the wife. 

8. I will not order such a report at this date and time.  I am very conscious of the outstanding Victorian Supreme Court Full Court appeal and that process and in any event this property, financial, matrimonial proceeding is not ready for, and has not been prepared, to a final defended hearing position. 

9. Ms Gomes asked for further time, both to get more meaningful instructions and to confirm whether Victoria Legal Aid can or are able to be further involved in proceedings in this court.  Those instructions are in the context of the husband's application in a case filed 18 February 2009 where he seeks the appointment of a Case Guardian.  The wife has not indicated any consent and that matter may well seem necessary, but it is the subject of a request for the adjournment by Ms Gomes.

10. The relevant Family Rule is Chapter 6 and a case guardian can be appointed by the court or otherwise nominated by the attorney-general pursuant to Rule 6.11.  The provision for the cost of the guardian are provided for in Rule 6.14.  I have engaged the legal practitioners in somewhat of a general discussion about the assistance to the court and the likely outcome in the particular circumstances of the wife of the appointment application.  Indeed, one could not imagine this case proceeding, on current evidence before the court, without such an appointment.  I currently would be reluctant to nominate the Attorney-General to provide such an appointment, and similarly the process of requiring the husband's solicitor to approach the Victorian Civil and Administrative Tribunal may be a further step that will be both costly and involve further delay.  I however have an open mind on all of those issues.

11. I record that Mr Gillard has indicated that there may be a practical approach taken by the father further investigating and seeking the consent of a lawyer familiar in family law work and being wholly independent of the parties, and probably being well-known to Victorian Legal Aid, being offered a position as case guardian.  If there is appropriate material as to the suitability of any such person before the court, it may well be more appropriate for the court to act on its own motion, and in accordance with a proper request from the husband and without any direct opposition of the wife (though of course that matter remains wholly unknown) to make such an appointment.  In any event I again emphasise that Ms Gomes seeks a period of some two weeks, but no more, to take further instructions and consolidate their position.

12. The principal asset is the former matrimonial home in which the tragedy occurred, that is a property in N.  Its valuation may be flexible in this current market, but paragraph 26 of the most recent affidavit of the husband states it to be $700,000.  The equity available for distribution between husband and wife in that paragraph is recorded as being $670,000 or thereabouts, in all ways subject to sale expenses of the home and other ongoing costs and values.  It may be that this court will be asked to sell the home as an interim order.  That could do no disadvantage to the wife, but the husband is yet not decided and reflecting on his position. 

13. Likewise, if moneys are ultimately realised and held in trust, there is the option that I have discussed with Mr Gillard of being a partial property order, or other determination of matters that are just and equitable on an interim basis.  That would require a stand-alone application from the husband, and the next two weeks will facilitate the opportunity for those instructions to be taken, for decisions to be made and for appropriate documents to be filed. 

14. I will require Mr Gillard to provide a copy of his affidavit and application and any other relevant document to Victorian Legal Aid for them to consider over the next two weeks. 

15. I will continue the listing of this matter in the Judicial Duty List and adjourn the matter to the first available date within the two-week period which happens to be Monday, 16 March 2009 and if it can be accommodated in the list that day, it will be listed at 10.00 a.m.

16. I will make no further orders in respect of documents to be filed by or on behalf of the wife, as that will simply need to await further instructions.

17. I, at this stage, will not canvas any orders for there to be a hearing by way of electronic communication or for there to be a video-link between this court and the E Hospital.  Those matters can be considered on the adjourned hearing date. 

18. I have been handed a notice of address for service on behalf of the wife care of Victorian Legal Aid and I will have that document filed with the court and that address recorded within transcript, though I really do understand that the appearance today is on the basis of providing help to the court and may not be ongoing. 

19. The other issue that was clarified today is that there has been a subpoena served on the Director of Public Prosecutions and a request to deliver and then to inspect documents.  There is now received and on the court file a letter from the policy and advice directorate of the Office of Public Prosecutions, dated 26 February 2009, advising that they no longer object to inspection or copying of the report of Dr S, the subject of the earlier notice of objection, and on that basis documents which are not the subject of objection or any form of privilege can be inspected and copied at the expense of the appropriate party. 

20. I will have these brief extempore reasons transcribed and placed upon the court file, so there will be an understanding of the matters before and the discussion in court this day.  I will have those reasons made available to all parties. 

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

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Associate: