Langcaster & Langcaster

[2007] FamCA 651

FAMILY COURT OF AUSTRALIA

LANGCASTER & LANGCASTER [2007] FamCA 651

FAMILY LAW - PRACTICE AND PROCEDURE - Application to transfer proceedings to Federal Magistrates Court - Transfer would be prejudicial to parties - Application dismissed

FAMILY LAW - PROPERTY- Condition of former matrimonial home - Expert to attend property to inspect and provide report on construction and deterioration of property

Family Law Act 1975 (Cth)

APPLICANT: Mrs Langcaster

RESPONDENT: Mr Langcaster

FILE NUMBER: ADF 335 of 2005

DATE DELIVERED: 11 May 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 11 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Parker

SOLICITOR FOR THE APPLICANT: Norman Waterhouse Lawyers

COUNSEL FOR THE RESPONDENT: Ms Morosini

SOLICITOR FOR THE RESPONDENT: Di Morosini and Co

Orders

1. That upon the wife providing to the husband’s solicitors seven [7] days notice, the husband facilitate the attendance and entry of Mr T at the former matrimonial property at A for the purpose of inspecting the property to provide a report in relation to the construction of the property and the building product Rapid Wall.

2. That the wife have leave to file an affidavit of Mr T following the inspection of the former matrimonial property.

3. That paragraph 3 of the Form 2 Application filed by the wife on 24 April 2007 be dismissed.

4. That the Form 2 Application filed by the wife on 24 April 2007 be removed from the active pending cases list.

5. That the Form 2A Response filed by the husband on 3 May 2007 be dismissed and removed from the active pending cases list.

6. That the wife’s solicitors provide the husband’s solicitors with a copy of all correspondence passing between them and Mr T in relation to his attendance at the former matrimonial home and his report.

7. That the husband pay to the wife’s solicitors on behalf of the wife costs in the sum of $500.00, such sum to be paid within 5 months of the date hereof.

   IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Strickland delivered this day will for all publication and reporting purposes be referred to as Langcaster and Langcaster. 

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 335 of 2005

MS LANGCASTER

Applicant

And

MR LANGCASTER

Respondent

EX TEMPORE REASONS

1. I have before me a Form 2 Application filed by the wife on 24 April 2007 wherein she seeks orders that the husband facilitate the attendance and entry of Mr T at the former matrimonial home for the purpose of inspecting the property to provide a report in relation to the construction of the property and the building product Rapidwall.  The wife also sought liberty to attend at the home at the same time, but I understand she is not pressing that, and that the wife have leave to file an affidavit of Mr T following upon that inspection.  There is a lengthy affidavit in support of that application. 

2. The husband has filed a Form 2A Response on 3 May 2007 wherein he sought the disqualification of the Honourable Justice Dawe, but that is a matter that has been determined and disposed of.  He now seeks the matter be transferred to the Federal Magistrates Court and he opposes the orders sought by the wife in relation to Mr T.  There is an affidavit of the husband in support of his response. 

3. This is a matter which I understand has reached the stage where affidavits of evidence in chief have been filed.  There has been a single expert witness appointed for the purpose of valuing the former matrimonial home and there is a report of that witness before the court. 

4. The matter came before the Honourable Justice Dawe on 16 February 2007 when her Honour ordered that within 28 days both parties file and serve any updated or further affidavit material upon which they rely including an affidavit setting out amendments to the husband's affidavit by way of schedule.  There was then an order about a further pre-trial conference. 

5. I know from the file that the pre-trial conference has not yet occurred.  There is a differing view about why that is, but that is between counsel.  The long and the short of it is that in any event the pre-trial conference cannot take place until all affidavit material is filed.  Obviously Her Honour's order needs to be complied with but it has not been complied with insofar as the wife is concerned.  The husband in his affidavit says something about that order and he makes some comment that he proposes to file a further affidavit about providing the schedule referred to by the Honourable Justice Dawe.  I don't know how he proposes to file such an affidavit because the 28 days has now expired, but that is a matter for him and his solicitor.

6. In any event, the wife wants to file a further affidavit and for whatever reason, the pre-trial conference has not occurred. 

7. The wife says that there is an issue about the state of the former matrimonial home.  That issue arose out of the report of Mr B who was the real estate valuer appointed by both parties.  There has been correspondence and affidavit material about that where the wife's position is that the husband has allowed the former matrimonial home to deteriorate.  The husband denies that and honing in on this particular product that has been used the husband says in his most recent affidavit that there have been problems with it.  It is not a case of him allowing the property to deteriorate, it is a case of that product having been improved. I imply that he is saying that if, for example, the property was built now and that product was used, it is now a better product and the deterioration which has occurred may not have occurred.

8. As I say, though, the wife is most concerned about the deterioration that is apparent at the home.  It appears it is a primary reason for the valuation being lower than otherwise according to the report of Mr B.  Ms Morosini has rightly pointed out, though, that there are other issues that Mr B referred to as affecting the valuation.  However, there can be no dispute that a primary issue is this product, Rapidwall, and what has happened to it.  Whether it is a natural deterioration or whether there has been some maintenance issue or some neglect which the husband has been responsible for, that is the dispute.  It is the wife's case that the husband should have some responsibility for that.  She wants an expert to attend at the property and provide a report about the use of Rapidwall there and the cause of the deterioration.

9. The husband opposes that.  He says that that is an attempt to revalue this property and it should not be allowed, given there has been a single expert appointed for that purpose and he, Mr B, has valued it.  He says through his counsel that he doesn't object to an expert giving evidence about the product but he says there is no need and it should not be permitted for the expert to attend at the home and make a report specifically about the product and its use in that home. 

10. However, in my view the wife's position is perfectly justifiable and I reject that submission by the husband. 

11. It is suggested that Rule 15.49 bears upon this, but in my view that is totally irrelevant.  There is a different expert being proposed, and there is evidence required about a different subject.  As far as I am concerned this is not an attempt to revalue the property, it is a legitimate and proper exercise in relation to a particular aspect of the building and construction and subsequent maintenance of this home where expert evidence is clearly required and where obviously, that expert needs to attend at the home and provide a report to this court. 

12. There has been ample opportunity for the parties to agree on a single expert and the wife has been at pains to have the husband agree, but the husband has simply ignored those efforts.  After the order of the Honourable Justice Dawe of 16 February 2007, as I can see from the affidavit material, there has been letter after letter sent to the husband's solicitors which have been totally ignored.  The husband says in his affidavit that he instructed his solicitor not to respond to those letters because he was concerned about the cost and delay and other issues.  However, I find that an unbelievable explanation and I find it totally discourteous that there has not been even a perfunctory response to the correspondence sent by the wife's solicitor to the husband's solicitor.  Therefore I propose to allow the wife to instruct an expert and I propose to order that the husband allow that expert to attend at the home.

13. It is obvious that a single expert witness would not be able to be agreed in this case and in my view there are clear circumstances why each party should be allowed to obtain their own expert and tender a report from that expert at the hearing of this matter.  The wife has put her cards on the table as to who she wants and what she wants, but the husband has not.  Of course, I will give him the same leave to tender a report from an expert witness of his choosing if he is so advised but I will not make any order about that now because there is no application before the court yet as to him wanting his own expert.

14. The other matter that is before me is an application by the husband to transfer the proceedings to the Federal Magistrates Court.  Ms Morosini has put that this is a matter that should be in the Federal Magistrates Court, and I agree.  It should never have started in this court.  It should have been in the Federal Magistrates Court from day one, however, it is too late.  The husband should have made his application well before now.  These parties will be clearly prejudiced if this matter now goes to the Federal Magistrates Court, given the pressure on their lists and when they are able to list matters for final hearing. 

15. This matter has proceeded in this court under its rules and reached a point where there is about to be a pre-trial conference, affidavits will be finalised and the matter will be listed for hearing.  I am not going to prejudice the parties' positions by now transferring this to the Federal Magistrates Court, which would have the prospect of further delays in this case.  Thus I propose to dismiss that application.

16. I now have an application for costs before me by the wife. The wife seeks the sum of $750, being solicitor's and counsel fees in relation to the application and the hearing today. Ms Morosini quite properly concedes that there is probably a justifiable basis for costs given my order, but asks me to take into account particularly - and as I must under Section 117 - the financial circumstances of her client and also Ms Morosini rightly refers to the small pool in this case and suggests that somewhat less than half of the amount sought by wife may be appropriate. This application is, of course, governed by Section 117 of the Family Law Act and in my view there is justification for an order for costs.  The husband, for instance, has been wholly unsuccessful in his response whereas the wife has been wholly successful in her application.

I certify that the preceding
16 numbered paragraphs are
a true copy of the reasons herein of the
Honourable Justice Strickland.
The 11^th day of May 2007.

……………………………………….
Associate