Maheris and Prentice (No 2)

[2009] FamCA 984

FAMILY COURT OF AUSTRALIA

MAHERIS & PRENTICE (NO. 2) [2009] FamCA 984

FAMILY LAW – PRACTICE AND PROCEDURE – Case management – Property and children’s issues – Defended hearing fixed for five days – Updated medical reports – Subpoenas and other evidence issues – Order pursuant to s 106A – Valuation issues – Husband’s refusing to allow access by valuer for internal inspection of property – Dispute as to ownership of property – Contravention application adjourned part-heard – Costs fixed but payment stayed

Family Law Act 1975 (Cth)

APPLICANT: MS MAHERIS

RESPONDENT: MR PRENTICE

FILE NUMBER: MLC 11939 of 2007

DATE DELIVERED: 6 OCTOBER 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 6 OCTOBER 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: MR PUCKEY

SOLICITOR FOR THE RESPONDENT: TAUSSIG CHERRIE & ASSOCIATES

Orders

IT IS ORDERED:

1. THAT the case management date listed for hearing before Young J on 28 October 2009 be vacated.

2. THAT the further case management hearing of this matter be listed on Friday 6 November 2009 at 11.30 a.m.

3. THAT the husband have leave to hand to the court his affidavit to be relied upon in these proceedings this day and thereafter he is to make, file and serve that affidavit this day.

4. THAT the time for compliance by the husband with paragraph 9 of the previous orders of the court dated 2 June 2009 be further extended to 16 October 2009 for the filing of affidavits of all witnesses upon whom he intends to rely in the final hearing, save that affidavits of his brother and mother are to be then delivered in final form to the solicitors for each of the other parties but they may be sworn, in that form, by them upon their return to Australia in late October 2009 and then filed.

5. THAT the husband this day file and serve the affidavits of Mr GE, Mr AV and Ms CG.

6. THAT the affidavits which the husband has foreshadowed from Mr ME and Ms JW are to be filed and served on or before 16 October 2009.

7. THAT otherwise no other affidavits are to be filed by or on behalf of the husband without a formal application served upon all other parties and prior leave of the court being obtained.

8. THAT the solicitors for the wife provide forthwith to Dr L a copy of the updated report of Dr D and the husband is to provide Dr L, by himself or through the Independent Children’s Lawyer, with a true copy of the report of Dr O dated 1 October 2009 and Dr L is requested to read these reports and, at his discretion, consider the contents thereof in his further report to the court.

9. THAT Dr L be at liberty to request from the court, or from the Independent Children’s Lawyer, any further updated affidavit of the parties, or such of their witnesses, as he considers to be appropriate to and necessary for the completion of his updated report.

10. THAT the husband have leave to forthwith issue a subpoena requesting production to court of the records and documents that are of relevance to any child / parenting issue in the matter from:

    (a)Dr TT, the current treating medical practitioner for both the wife and child;

    (b)the attendance records of the child at M Primary School;

    (c)the attendance or documentary records of MA;

    (d)the attendance or other procedural records of Ms NH, Lifeworks.

11. THAT subject to the following order no other subpoenas to produce documents or to require attendance of any individual at court to give evidence, or for any other reason, are to be issued by the Melbourne Registry, Family Court, save upon further court order or direction.

12. THAT the Independent Children’s Lawyer have leave to issue any subpoena of and related to evidence to be called by her as part of the case presented to the court for the child.

13. THAT as to the issue of make up time with the child raised by the husband in paragraph 12 of his affidavit filed by leave this day there be no orders made and the parties be requested to confer and reach agreement on that issue.

14. THAT on or before Thursday 5 November 2009 the husband and wife are to make, file and serve:

    (a)         a Chronology of dates and events;

    (b)        a summary of legal argument;

    (c)        a detailed orders sought in the proceedings;

    (d)        a letter in compliance with Family Law Rule 19.04;

    (e)the list of affidavits and witnesses to be called in the proceedings;

    (f)a list identifying what witnesses are required for their cross examination;

    (g)a single page balance sheet of the assets, financial resources and liabilities of the parties.

15. THAT pursuant to s106A of the Family Law Act 1975 a Registrar of this Court be forthwith appointed to execute in the name of the husband any authority, instruction, notice or other document that is or may be required to give effect to paragraph 6 of the order of the court made 3 September 2009 and, in the event that the husband fails to execute all such documents within twenty-four (24) hours of delivery of any such documentation to him by post to his notice of address for service, then the Registrar is empowered to execute all such documents and otherwise to do all such acts and things as are necessary to give effect, validity and operation to the orders of the court.

16. THAT the husband be and is hereby restrained by himself, his servants and agents from preventing, hindering or otherwise obstructing the appointed single expert valuer, or the firm V Real Estate Valuers from attending at the real property situate at and known as 2-4 K Road, K and from making all necessary inquiries and inspections, and from entering upon the property for the purposes of both an internal and external inspection (both upstairs and downstairs) as may be necessary and appropriate to complete a value of that property pursuant to the orders of the court made 3 September 2009.

17. THAT the contravention application of the wife filed 25 September 2009 be otherwise adjourned on a part-heard basis and be listed before Young J at 11.30 a.m. on 6 November 2009.

18. THAT the wife’s costs of and incidental to the hearing this day be fixed in the sum of $4,350 and the question of the payment of those costs and any timetable for payment be adjourned as a part-heard issue before Young J on Friday 6 November 2009 at 11.30 a.m.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the wife.

IT IS NOTED:

A.THAT the court has this day delivered three (3) extempore judgments as to case management and procedural issues, the contravention application and costs and each of them are to be transcribed and placed upon the court file, either separately or in a consolidated form.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11939 of 2007

MS MAHERIS

Applicant

And

MR PRENTICE

Respondent

REASONS FOR JUDGMENT

1. The matter of Prentice & Maheris has again been listed before me for procedural and direction issues and otherwise on the return date of an application filed by the wife on 25 September 2009 for alleged contravention of a court order.  I will hereafter deal with that contravention matter and hear the issues and evidence before the court, but I commenced the hearing this day on the various procedural and case management issues that have occupied the first hour of discussion between the parties and myself and are detailed in previous orders, an earlier ex tempore judgment of the court and an updated affidavit of the husband filed by leave this day.

2. Mr Puckey of counsel instructed by Ms Formica, solicitor, appeared for the wife who is not in court.  The husband appeared in person.  Leave was sought by the husband this morning to file an affidavit as a response to contravention issues and otherwise raising ongoing case management issues including the filing of further affidavits, various subpoena issues, and the concern that he has in respect of make-up contact time for the forthcoming weekend of 24/25 October 2009.  I have had limited submissions from the wife’s counsel and from the husband on these case management issues. 

3. The relevant order of the court is that of 7 August 2009 where I directed the husband to file all documents to the extended date of 5 October 2009.  It is a further extension of that period that the husband now seeks.  He has three affidavits of witnesses at court and they are to be filed this day.  They are identified in paragraph three of this affidavit which he has filed by leave this day and they are from the witnesses Mr GE, Mr AV and Ms CG.  There are two other witnesses identified, Mr ME and Ms JW.  Those two affidavits are to be filed on or before 16 October and if not filed by that date then it is most unlikely that they will be part of the evidence in the proceedings. 

4. Two other deponents that the husband intends to have on affidavit are his brother and mother and they are said to be out of Australia at the present time.  Their affidavits can of course be prepared whilst they are overseas through email or facsimile and it is a reasonable requirement of the wife that she knows the contents of those documents before she makes, files, and serves her affidavit on 23 October pursuant to the current order. 

5. I well understand the husband has had very substantial leniency afforded him in filing material and if it be that the wife’s document cannot be filed by 23 October it has to be filed as close to that date as is reasonable and certainly by the end of the month.  I do not formally grant that extension but I understand that if the wife is to file a comprehensive affidavit she would want to deal with issues raised by both the husband and all of his witnesses who have any relevant material on either child or financial/property issues to give evidence upon and thus have before the court.

6. I currently have this matter listed for a defended hearing of up to five days’ duration commencing on Monday, 30 November.  The matter cannot and will not take more than five days or otherwise it will be part heard until mid next year or thereabouts.  I have been perfectly frank with the parties in terms of any division of time and they will each have approximately two days to put their case in its entirety.  The husband is applicant.  He will need to ensure that his case is covered including reasonable cross-examination of himself and his witnesses within the two days and then the wife, identically, on the same timetable, allowing the fifth day for submissions, legal argument, clarification of orders, and hopefully though not likely an ex tempore judgment. 

7. I did have this matter booked in for case management on 28 October but in the reality of the timetable and the filing of affidavits I intend to vacate that date and have the matter listed before me at 10 am on Friday, 6 November 2009 for case management.  I will also require on or before that date the chronology, the joint summary of argument, the particular orders sought, and compliance with the Family Law Rule 19.04 as to disclosure of costs.  I will make appropriate orders for those matters shortly.

8. As to subpoenas, the husband in paragraphs 4-11 (inclusive) of his affidavit this day highlights numerous potential witnesses or documents.  Again this matter must be dealt with in the available timeframe and I have always had an estimate of four but no more than five days and there is no other time that the court can afford this matter.  Accordingly, the evidence must be refined and relevant and not simply a fishing expedition on matters that may or may not have occurred or may be, medically, available from past years.  Again I make no final determination of any of those matters.

9. The husband has obtained an updated report from Dr O and that has been seen by the court and the wife’s solicitors for the first time this day as it is marked as an annexure to his affidavit.  The report concentrates upon the alleged Obsessive-Compulsive Disorder of the wife and its impact or effect upon the child.  That report is not in evidence, Dr O is not a witness in the proceedings, there is one professional witness and that is Dr L.  In the context of this case it may not be inappropriate for Dr L to both know of and have the opportunity to read this report dated 1 October 2009 and I will direct that he at least have that document to do with as he wishes and I do not require any particular response or commentary by Dr L.  Thereupon I leave all matters to his knowledge, experience, and discretion.

10. As to the various other subpoenas I am reluctant to further extend the potential range of evidence as I have no clear understanding of what may or may not be relevant and I am very much aware that the husband now acts for himself in the proceedings.  Dr D is a witness in the proceedings and providing an updated psychiatric report and that matter has been confirmed by the wife’s counsel this day.  If matters arise out of that, one would well understand that there is a medical background to the wife that is known to that psychiatrist and/or to Dr L and relevant information will be dealt with by the wife, one would imagine, in her trial affidavit. 

11. Insofar as it is relevant I will permit a subpoena to be issued to the treating current doctor, that is Dr TT, both in respect of the child and the wife.  Otherwise, where records are sought as to school attendance, I will facilitate that subpoena to be issued.  I will not allow any subpoena to Dr D or to past treating doctors as identified in paragraphs eight and nine of the husband’s affidavit now before me.  If there are records that might form the basis of some cross-examination of the wife, identified in paragraphs six or seven of the affidavit, they can be subpoenaed to court as records but not in terms of any viva voce evidence to be given in respect thereof. 

12. In paragraph 12 the husband identifies issues of make-up time for contact.  There does seem to have been a level of discussion between the husband and the Independent Children’s Lawyer that is not known to the wife’s lawyer.  I will not entertain any agreement for make-up contact in the absence of the Independent Children’s Lawyer who is reportedly on holidays and not available to be at court this day and has had no one else from her office able to be in attendance at court.  Whatever discussions are to take place can be arranged between all practitioners and the husband and that matter can be considered out of court. 

13. Finally, as to Dr L, I am not going to direct what other documents he should receive save that I have earlier referred to Dr O’s report and I would request that Dr L at least be aware of and read that report and give it due and proper consideration.  It is otherwise suggested that all affidavits, documents, and reports be referred to Dr L but the immediate difficulty is that the husband may have filed all of his updating affidavits but the wife will not have filed all of her like documents prior to whatever meeting is arranged in late October.

14. Clearly it is important as Dr L is preparing a further updated report to his earlier reports that he has current knowledge but in a structured form so as not to wholly overwhelm him and his professional views which must be concluded on his knowledge and observation and on the basis of professional experience.  If Dr L requires any further documentation he of course knows, and no doubt the Independent Children’s Lawyer will explain to him, that he can request of the parties further information. 

15. If Dr L requests access to affidavits that are then available, I would be confident there would be a level of cooperation in providing him required information relevant to the child/parenting issues before the court.  For those brief ex tempore reasons as to management procedures I will pronounce orders now incorporating those matters.  I will have these reasons for judgment transcribed, placed upon the court file, and made available to the parties including the independent children’s lawyer and in due course I will return to the primary contravention application before the court. 

16. The orders are drawn on the basis of the 7 August orders as to children, that is, with the three parties – the husband, the wife and the independent children’s lawyer.  The husband’s address for service is now, as he acts for himself, it is no longer G.R. Campbell, it is now 1 K Road, K.  The wife’s solicitors remain Taussig Cherrie.  The Independent Children’s Lawyer remains Victoria Legal Aid. 

17. I turn now to the substantive matter before the court this day and that is the contravention application filed by the wife on 25 September 2009 which document is marked number 66 in the court index file.  The contravention alleged is that the husband, without reasonable excuse, refused or failed to comply with paragraph six of my order made 3 September 2009, and thereby to permit the appointed real estate valuer to enter upon and to wholly value both internally and externally the property at 2-4 K Road, K. 

18. I have re-read paragraph six of my order in that regard and that order identified that the husband as one of two registered proprietors of that property together with his brother, Mr K Prentice, was required, as a tenant in common of that property, to do all acts and things and give all necessary and proper instructions within his power and sign all such documents as may be required to make that property available for both internal and external inspection by the appointed single expert valuer. 

19. In support of the contravention application the wife has filed an affidavit and various annexures by way of letters from her solicitor and instructions given to that valuer. The husband has had explained to him the nature and effect of a contravention application and, in general terms, the options and penalties available to the court and in particular the sanctions as identified in section 112AD of the Family Law Act 1975.

20. Paragraph two of the husband’s affidavit filed by leave this day does put before the court his explanation and, additionally, his statement that he has not wilfully or otherwise breached the court order and allegedly he has to the best of his ability been helpful to the valuer.  The bottom line of what the husband would purport to have in evidence before the court is that “he cannot force his brother to make the property available for inspection.”  That statement is taken from subparagraph (g) of paragraph two of his affidavit filed this day.

21. At the commencement of this substantive application I provided both an explanation to the husband of the proceedings and sought his response by way of an appropriate plea.  The husband pleaded not guilty.  In the course of brief submissions from counsel for the wife there was a request to cross-examine the husband, more particularly upon the current circumstances of the property, the tenants occupying the property, both upstairs and downstairs, and related matters. The husband declined to make himself available for cross-examination.  One of the options to the court may then be as to how I appropriately deal with his affidavit as to paragraph two, before the court.

22. I have had an exchange with the husband and have clearly indicated that if this property be of relevance its value must be known.  I will not repeat what is said in earlier ex tempore judgments.  An option might simply be, though I make no further comment upon or finding in this regard, that the property be externally valued by a properly qualified valuer and, unless there is other evidence as to actual valuation by a court-appointed valuer, then it may ultimately be that all matters of valuation will be determined by such an external valuation.

1. However, the husband still has time either by himself or jointly with his brother to have the appointed valuer inspect and value the property comprehensively.  Ultimately, the lack of an internal valuation, if it is unable to be arranged, cannot and will not stand in the way of the progress of this case.  Matters must be concluded and the primary issues in respect of the property are value and ownership.  Very much the issue before the court in contest is whether the husband, as a previous owner (as he alleges) sold his interest pursuant to a contract to his brother such as that he now has no legal or equitable interest in that property. 

2. That is both a matter of fact and law to be hereafter determined but valuation is important and in someway there must be a value before court of the property.  If the husband or his brother maintain total objection to any valuation of the property they will not be able to be heard to complain if only an external valuation is available.  Given all of the real opportunities that the husband has had and as is clear from his submissions to the court and evidence that his brother is both aware of the process but denying any form of entry to a valuer I reinforce that observation because evidence is before me that the brother had instructed a firm of solicitors, Pana Dokos, to liaise by correspondence with the wife’s solicitors and those matters are all as a matter of record in the proceedings. 

3. On the basis of the contravention application before me today, what I propose to do is to simply adjourn that application to 6 November 2009 at 11:30 a.m.  I have already further case management of the matter listed on that day and I will therefore list and consolidate the, as yet to be determined, contravention application to that day. 

4. In the meantime, I am asked by the solicitor for the wife to make two further orders pursuant to either the injunctive power of the court or pursuant to section 106A of the Family Law Act 1975. A copy of these orders was provided in draft to the husband prior to the matter being commenced this day. It is appropriate that orders be made to bring about, on the particular facts of this case and certainly having regard to the existing certificate of title of the subject property, a valuation.

5. These orders are directed to the husband or to the Registrar of the Family Court as to the appropriate signature of the husband required to give effect and validity and operation to any such authority.  Both orders are clearly within power of the court and are not necessitated upon any outcome of the contravention proceeding.  I conclude it is appropriate to make these orders as part of the ongoing requirement of the better management and conduct of this file as he prepares for trial and on the evidence before me and without the necessary determination of the contravention application.

6. For those reasons I propose to make an order under section 106A requiring a signature in the name of the husband to give authority and instruction to the valuer or any other appropriate person so as to give effect in the operation of paragraph six of my earlier orders of 3 September 2009. The husband in his submissions to me has carefully and clearly said that he has not obstructed the valuer but there has clearly been either a disinterest or a concern of the valuer to approach the tenants, but in the context of this case and again prefaced on the basis that the husband is a co-owner of the property on title (and without determining any of the issues before the court in accordance with the husband’s evidence that he has foreshadowed) I will make orders so as to give a level of confidence to the valuer who at least can then approach the property and seek entry from the tenant or tenants and endeavour to complete the evaluation task.

7. I conclude there is reasonable and appropriate evidence before me and such an issue of significance as to facilitate these orders being made by the court.  I record the husband does not consent but nevertheless they are orders that will be made by the court.  I will have again these reasons transcribed, placed upon the court file, and made available to the parties.

8. The final issue that has arisen by way of application from counsel for the wife is an order for costs of and incidental to the issues arising out of the filing of the contravention application and the hearing this day. At the outset I have particular regard to section 117 of the Family Law Act 1975. The primary obligation is for parties to pay their own costs save and unless, in the opinion of the court, there are circumstances such as to arrive at a just outcome for there to be a costs order. The central focus is upon what is just. That is the exercise that I have undertaken in examining the s117 (2A) factors.

9. Mr Puckey seeks a costs order in the sum of $4,350 of and incidental to today inclusive of both the costs of his instructing solicitor who has been at court with him throughout all of the proceedings and counsel’s fee on brief.  I have been reminded by Mr Puckey that on the last occasion, 3 September 2009, I made a costs order but somewhat discounted the quantum to a sum of only $3,700 and on that occasion I subsequently stayed the payment to a further date at the conclusion of the case or until 3 December 2009.

10. The husband’s position is to oppose any order for costs. The matter has been before me all morning. Other than the contravention application I have dealt with various case management and procedural issues as are clear from the consolidated orders that I have pronounced this day. I have pronounced further orders pursuant to section 106A of the Family Law Act 1975 and an extended injunctive order directed to the husband.

11. The contravention application stands adjourned, part heard before me until 6 November 2009. In determining what is just I have proper regard to the factors as outlined in subsection 2A of section 117 of the Act and, in particular and generally, the financial circumstances of the parties, the conduct of the proceedings, and the outcome. What I determine is just today is that I intend to fix a sum of costs but make no order as to payment until the 6 November and/or the contravention proceedings being concluded. They are matters before me and I have both ex tempore reasons from this day and my own memory to ensure I do not forget matters of importance to one or both parties.

12. I will fix costs at $4,350 and I will adjourn the issue of the determination of the payment thereof by the husband in favour of the wife to the adjourned hearing date of 6 November 2009.  I likewise will have these reasons transcribed, placed upon the court file, and made available to the parties. There will be an order certifying for counsel for the wife in the usual terms.

13. It is noted that the court has this day delivered three ex tempore judgments to be consolidated into one judgment.

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

………………………………………………………..
Associate: