Marshall and Castles

[2012] FamCA 873

FAMILY COURT OF AUSTRALIA

MARSHALL & CASTLES [2012] FamCA 873

FAMILY LAW – Final orders previously made – Judicial Settlement Conference – Notation to order that if issues arose the matter was to be referred to another Judge – Notice given that husband has successfully had his financial guardian and trustee dismissed – Husband has engaged solicitors on his own behalf – Proceedings being drawn to set aside s 79 orders – Consent orders as to case management and reserved costs

Family Law Act 1975 (Cth)

APPLICANT: Ms Marshall

RESPONDENT: Mr Castles

FILE NUMBER: MLC 6697 of 2009

DATE DELIVERED: 8 OCTOBER 2012

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: Young J

HEARING DATE: 8 OCTOBER 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR Wood

SOLICITOR FOR THE APPLICANT: Robinson Gill

COUNSEL FOR THE RESPONDENT: Ms Stoikovska

SOLICITOR FOR THE RESPONDENT: Lennon Mazzeo Lawyers

Orders

IT IS ORDERED BY CONSENT:

1. THAT on or before 29 October 2012 the husband make, file and serve an application pursuant to s 79A of the Family Law Act 1975 (Cth) together with affidavits in support thereof.

2. THAT on or before 19 November 2012 the respondent wife make, file and serve any response thereto together with her affidavits in support thereof.

3. THAT otherwise I transfer for all future hearings and directions the proceedings to Registrar Field with a request that she allocate this matter to a Judge of the Melbourne Registry (other than myself) for future hearings and that the file then be docketed to such Judge.

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

5. THAT the wife’s costs of and incidental to her representation at Court on 11 July 2012 and this day, and the necessary costs of her solicitor in preparation of her initiating application filed 19 June 2012 and the affidavits in support thereof are all reserved for consideration, upon further submissions, to the trial Judge as appointed.

IT IS CERTIFIED

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

IT IS NOTED:

A.THAT pursuant to my earlier order dated 16 November 2010, and my subsequent involvement in the Judicial Settlement Conference in this matter, I have now directed that the matter can no longer be listed before me on any defended issue and I have thereby disqualified myself from any future hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Marshall & Castles has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6697 of 2009

Ms Marshall

Applicant

And

Mr Castles

Respondent

REASONS FOR JUDGMENT 

1. The matter of Marshall and Castles is listed before me today as a result of case management orders that I made on 11 July 2012.  The background to this matter is substantially explained in the earlier affidavits of or on behalf of the husband and wife.  Previously the husband had appointed as his legal and financial guardian the State Trustees and they were before the Court represented by solicitors, Messrs Bailey, Timms, Hansen and Rossi.  They engaged Mr Glover of Counsel, and other Counsel from time to time, to represent the interests of their client, the husband.

2. There have been separate proceedings on children and parenting matters and on property division and the continuing issue before the Court is related only to the s 79 proceedings under the Family Law Act 1975 (Cth). I was the appointed judge/manager and I pronounced final orders on the children’s issues in 2010 and that left alive the property and financial matters.

3. On 16 November 2010 the matter came before me when Mr Wood, of Counsel, represented the wife and Mr Glover, of Counsel, the State Trustees in their capacity as the legal and financial administrator of the respondent husband.  I was asked by Counsel, and agreed, that this matter should proceed by way of a Judicial Settlement Conference and I directed that to occur the following day, that is, 17 November 2010, before myself.

4. I made appropriate procedural orders that day and annexed to the orders, as a notation, is the following:

   A.That the Judicial Settlement Conference will be conducted on the basis of confidentiality, the proceedings in Court will not be recorded and if the whole process is unsuccessful the matter is, thereafter, not to be listed on any contested issue before Young J, save and except as to issues of:

   (a)the determination of costs and disbursements for Monday 15, Tuesday 16, and Wednesday 17 November 2010;

   (b)the ongoing issues of sale of the former matrimonial home, the payment of the mortgage encumbering its title and the other urgent liabilities of the parties and the quantum of the wife’s ongoing maintenance and issues as to its payment.

   B.That if the judicial settlement conference is unsuccessful then all outstanding children and parenting issues will likewise be transferred with the file to another Judge of this Registry allocated to be the ongoing docket judge in the proceedings.

5. As it transpired the parties were able to settle all questions of division of property and orders by consent were made by me on 26 November 2010.  Those orders were expressed to be final property orders and there was a s 81 notation attached to the orders and otherwise all property and financial proceedings before the court were concluded.

6. A reading of those orders identified the sale of the home at V Street, S suburb.  Orders made pending settlement of sale and other ongoing financial orders which formed the basis of those agreed orders.  It is important to record that the State Trustees again represented the husband when those final orders were pronounced, the solicitor, Mr Hansen, then appearing in Court as did Mr Wood for the applicant wife.

7. Subsequently, and in brief summary, the husband made application to the Guardianship Board to be released from financial and management control by State Trustees and that order was granted.  The financial aspects of the matter came back to this Court on 11 July of this year, as a result of an Initiating Application filed on behalf of the wife who sought to effectively vary or extend the operation of paragraph 5 of those earlier section 79 orders made 26 December 2010.

8. The wife’s primary concern was for authorisation to be given to the appropriate financial entity, nominated as Colonial Mutual Life Assurance Society Limited, to pay a sum equal to one half of the husband’s payment under his policy of insurance to her and other subsequential orders, including an order under s 106A of the Act to characterise the further payment of moneys to her as had been agreed, but in such a way as to ensure their continuity.

9. It was that application that was returnable on 11 July 2012, when both the husband personally, and the wife personally, were represented by solicitors.  My orders of that day noted the decision made by the Victorian Civil and Administrative Tribunal on 3 May 2012, to revoke the appointment of the State Trustees.

10. The notation that day also confirmed the intent of the husband and the instructions given to his solicitors, for payments as were required pursuant to the s 79 order to continue to be made to the wife, ie, by either direct bank debit or otherwise.

11. On that occasion the solicitors requested an opportunity to investigate and better structure the property order in view of the change in the husband’s personal circumstances and it was for that reason that the matter was put over before me to this day.

12. Today Mr Wood of Counsel again appeared for the wife. Ms Stoikovska of Counsel has announced an appearance for the husband, instructed by his solicitors, Lennon Mazzeo Lawyers. What has arisen today is that Counsel for the husband has advised the Court that she and her leader have been drafting an application under s 79A of the Act, to set aside or otherwise vary or amend the existing the property orders. That document is not yet filed.

13. I am asked by consent to fix a timetable for the filing of that document, which ordinarily is not the domain of the Court, because it needs to be filed when appropriate.  However, I am asked to – and by consent I will – require the document to be filed by 29 October.  I will give to the wife respondent until 19 November to file her response.

14. A number of issues have arisen.  Given that the husband was previously represented by State Trustees, I raised in court any need or requirement to give notice to State Trustees or to former solicitors or Counsel engaged.  On reflection I would make no such order, as that would be anticipating what might be claimed in and sought in the application.

15. Mr Wood identified that there has been no response to any issue raised in their previously filed application. He advised the Court that there had been absolutely no prior notice given of the intended course of action in applying to set aside or vary current orders. He asserted that the wife has unnecessarily expended funds on 11 July 2012 and again this day in attendances at Court and in the preparation of her application and supporting affidavit which remain extant, but which now will likely be overtaken by the filing of a s 79A application.

16. Thus, he sought costs of and incidental to each of the past appearances (that is including this day) and of his solicitors drawing the documents of and related to the earlier hearing.  Ms Stoikovska objected to any costs order and in summary did so on the basis that it would anticipate or cut across the orders sought by the husband, that it was unnecessary for her solicitors to reply to the current application in a case before the Court, and, in any event, I should not make such orders as previously I have indicated that I would have no other involvement in this matter, save on the basis defined by the notation which I exhibited to my orders of 16 November 2010.

17. It is, however, not suggested that I cannot appropriately reserve costs to another Judge and I think that is both proper and leaves for argument before another Judicial Officer whether there should be any and, if so, what costs. I am asked and I will make case management orders and otherwise this matter will find another docket. There was some discussion in Court about whether I required the s 79A application to be served upon other potentially interested parties and organisations. On reflection I declined to make any such order and will leave that to the case management of another Judge or the commonsense of solicitors.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young delivered on 8 October 2012.

Associate: 

Date: