Iaconi & Anor and Iaconi

[2011] FamCA 459

FAMILY COURT OF AUSTRALIA

IACONI AND ANOR & IACONI [2011] FamCA 459

FAMILY LAW – PRACTICE AND PROCEDURE - Adjournment

Family Law Act 1975 (Cth)

1st APPLICANT: Mr Iaconi

2nd APPLICANT: Ms C

RESPONDENT: Ms Iaconi

FILE NUMBER: MLC 7653 of 2008

DATE DELIVERED: 1 April 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 1 April 2011

REPRESENTATION

COUNSEL FOR THE 1ST APPLICANT: Mr Nehmy as case guardian

SOLICITOR FOR THE 1ST APPLICANT: Schetzer Constantinou

Orders

1. That all outstanding applications are adjourned to 10.00am on 11 April 2011.

2. That the wife pay the husband’s costs of this day fixed in the sum of $1565 and the question of whether the wife or her solicitor should pay those costs is adjourned to the return date.

3. That the husband file and serve any application in a case seeking interim orders and any affidavit in support thereof that he is so advised to file by no later than 4.00pm on 7 April 2011.

4. That the reasons this day be transcribed.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7653 of 2008

Mr Iaconi and Ms C

Applicant

And

Ms Iaconi

Respondent

REASONS FOR JUDGMENT

1. This is an application that was commenced in 2008 for property settlement between Mr and Ms Iaconi.  Subsequent to the proceedings being issued, and bearing in mind the elderly age of the parties, a case guardian was appointed for the husband.  Subsequent to those orders, the husband died.  His death gave rise to some legal complexities, one of which was that a probate application had to be made to the Supreme Court of Victoria.  I am told today that that application was lodged yesterday.  I note that on 28 February 2011, a caveat was lodged in the Supreme Court of Victoria to the Registrar of Probates indicating that the probate is disputed.  The caveat document does not disclose exactly what the ground is, but I understand from a previous hearing that it may be the question of whether or not there is a valid will of the deceased.

2. This case was listed before me as the first day of a final hearing on 31 January this year.  On that day, Mr Schetzer, as the solicitor for the husband and/or the case guardian appeared, as did Mr Lanza, as the solicitor for the wife.  There was considerable discussion that day about the nature of the dispute between the parties, but I do not recall any indication that the wife was objecting to the husband’s interests in the property proceedings being precluded from being included by virtue of the fact that there was no legal personal representative appointed.

3. It seems now that matters have become more complex.  When the matter was before me on 31 January 2011, I made an order that all applications were adjourned part heard to today.  This morning Mr Nehmy of counsel appears on behalf of the applicants in whatever guise that may be, but there has been no appearance of either the respondent or Mr Lanza.  I note that on the last occasion the wife did not appear and Mr Lanza gave me a reason why that was so.  My recollection was that the wife was an elderly woman.  It was also a day, as I recall, where Melbourne had a heatwave of something like 40 degrees and that was the reason why the wife could not attend the court. 

4. Whatever it may have been, the matter was clearly adjourned to today, and the orders made it clear that I was to resume the hearing today for the purposes of trying to conclude the proceedings, which I note have been in the system since 2008.  Mr Nehmy, at my request, made a telephone call to Mr Lanza and was not successful in getting through.  There is no explanation in any correspondence to the court or to Mr Nehmy’s instructors as to why Mr Lanza is not here.

5. One of the issues that was raised on 31 January was the question of the creation of a trust into which property owned by the wife was settled.  The trustee, as I recall, and the beneficiary is the wife’s daughter.  Although there was some hesitancy on the part of Mr Lanza at the time, my recollection is that he indicated that it was his office that had drafted the trust deed.  I raised at the time the question of whether or not Mr Lanza may have had a conflict of interest.  It would appear that not much more has occurred, although I am told there has been correspondence between the lawyers, but there has certainly been no further activity on the court’s file.

6. I also raised at the time the fact that orders had been made in 2009 for the wife to comply with discovery orders and obligations and that those, according to Mr Schetzer at that time, had still not been complied with.  More fundamentally no formal response seeking final orders was ever filed by the wife.  This case is a mess, but it is made complex by the death of the husband.  I am not assisted by a solicitor simply ignoring orders of the court. 

7. The husband’s relatives, who have continued the litigation, incurred costs today in excess of $2000, and whilst I accept without any hesitation that that is an appropriate fee for them to pay, I could not make an order for costs against the wife beyond the scale unless I was satisfied that there was a basis to exercise the discretion to make an indemnity costs order.  It might be premature to do that in this particular case, but there is no basis for me not to make an order for costs having regard to all of the matters that have gone on, particularly on 31 January, and again today.

8. I propose to fix the husband’s costs of $1565 and order that the question of who, out of the wife or Mr Lanza pays those costs on the adjourn date, which I propose to fix as 11 April.  11 April will also be the day upon which I hear any application by the husband for various injunctions, if he or his relatives are so advised, to seek to deal with the proceedings that may delay this court hearing the property dispute.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 1 April 2011.

Associate: 

Date:  16 June 2011