Parsons and Prendergast

[2008] FamCA 36

FAMILY COURT OF AUSTRALIA

PARSONS AND PRENDERGAST [2008] FamCA 36

FAMILY LAW – PROCEDURAL – Application to fix for hearing part-heard property proceedings in circumstances where welfare proceedings have also been heard and determined, but subject to appeal.  Husband failed to attend hearing and orders made for continuation of the property aspect of the application.  Comment on long overdue judgment from VCAT and effect on the property proceedings.

Family Law Act 1975 (Cth) (as amended)

APPLICANT: Ms Parsons

RESPONDENT: Mr Prendergast

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGF 764 of 2004

DATE DELIVERED: 23 January 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 23 January 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Byrne

SOLICITOR FOR THE APPLICANT: Berry Family Law

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Halliday

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Robert Halliday & Associates

Orders

1. That the part-heard property proceedings between the parties be fixed for final hearing and determination on a date to be advised in March 2008.

2. That the costs of the applicant (wife) and Independent Children’s Lawyer of this day be reserved.

IT IS DIRECTED

1. That the ex tempore judgment delivered this day be transcribed, placed on the Court file and a copy be made available to the parties.

IT IS CERTIFIED

(4) That pursuant to rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 764 of 2004

Ms Parsons

Applicant

And

Mr Prendergast

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This matter comes before me by way of mention.  Mr Byrne, solicitor for the wife, appears this day and Mr Halliday, the Independent Children's Lawyer, also appears as a matter of courtesy.  There is no appearance by or on behalf of the husband. 

2. I am satisfied that the husband is aware of the hearing this day as he has caused to be forwarded to my Chambers a facsimile transmission dated 22 January 2008 in which he acknowledges having received a letter from my Associate dated 11 January 2008 advising that the matter was listed for mention. 

3. In the course of his communication the husband goes on to say this:

   “I wish to advice (sic) that I do not consent to have this mention conducted by the Honourable Guest J for the following reasons:”

   and he there sets out what I can describe as a narrative summary of historic events and reasons asserting that I should no longer conduct the hearing of the property application which is currently before me and part-heard. 

4. If the husband proposes to make an application for my disqualification in continuing to hear the property aspect of the proceedings, substantial evidence of which has already been given in the year 2007, then it should be made in proper form and with accompanying submissions.  However, he has chosen not to do so and it appears to me that his transmission is merely an advice that he does not consent to the mention this day but has elected not to advance his claim in court.

5. The purpose of the mention is to discuss a convenient date to continue the part‑heard property proceedings which commenced before me in March 2007.  I have heard some evidence from both the wife and the husband on the property issues.  In the course of the trial in 2007 and on two occasions Russell Kennedy, solicitors, for P Ltd (“the mortgagee”) sought leave to mention the position of the mortgagee in relation to three properties that were owned by the husband and/or the wife.  On each occasion that the mention came before me, I delivered extempore judgments, which appear on the court file, detailing the reasons for my decision on each of those two days. 

6. I have this day been informed by Mr Byrne that the former matrimonial home of the parties has been sold with a contract of sale being signed in the sum of $265,000.  A prior settlement date in January 2008 was abandoned for appropriate reasons, as I understand it, and it was understood by Mr Byrne that settlement will now take place in a few weeks.  He reminded me that the sale price was greater than the estimate given at the time of trial which was $225,000.  He further advised that the wife will seek leave to lead additional evidence as to the condition of that property left by the husband at the time of its sale.

7. Insofar as the two investment properties are concerned, I have been advised by Mr Byrne that they are to be sold by mortgagee auction on 2 February 2008.  Being as it is, a mortgagee auction, he has submitted that they will be sold at auction for the best price to be achieved. 

8. Accordingly, it appears that within a matter of a few weeks there will be a defined position as to the current market value and sale proceeds of these properties, together with a statement of debt owing to the mortgagee pursuant to the terms of the mortgage loans.  In addition, I recall that there will be some dispute as to the quantum of costs incurred by the mortgagee and responsibility for payment. 

9. All that currently remains is a reserved judgment from VCAT which has now been outstanding for, in my view, far too long a period.  It concerns the former matrimonial home.  It is not right that litigants this day are required to wait long periods of time to receive a judgment in a matter that has little associated complexity.  There is, in my view, a public interest issue involved and which has been before the press in the past commenting upon this situation.  I agree that judgments should be delivered with due expedition and that failure to do so is a matter requiring accountability by the administrators of the court overseeing the timely operation of their respective jurisdictions. 

10. It concerns me that this judgment has been outstanding for such a long period of time, for it has impacted upon the continuation of the property proceedings thus far and, I would suspect, agitate the costs issues in my court. 

11. I am shortly due to retire from the court and being part-heard, I will be required to finalise the property aspect despite the fact that my commitments are extensive.  I will, however, by reason of priority, hear and complete the contested property applications of these proceedings which I estimate will take a further two days.  This will be done in the month of March 2008. 

12. By that time, as I said, the net proceeds of sale from all three properties will be realised.  That will assist in an assessment of the asset pool available for distribution between the parties in the proceedings.  If it eventuates that the outstanding judgment in the VCAT proceedings is delivered, so much the better.  If not, it appears to me that I should proceed notwithstanding for the net pool of available assets is very modest indeed, interest is running at penalty rates, the wife has limited income and is alone responsible for the support of the one child of the marriage.  The husband has chosen not to work or make any contribution towards the child’s support.

13. One final matter is this.  I have earlier in this judgment referred to the fact that I have received a facsimile transmission from the husband.  The husband appealed my orders of 17 October 2007 in the substantive welfare proceedings.  There were earlier appeals against orders made by me, including that the parties attend for a psychiatric assessment.  That appeal, it seems to me, would now be moot. 

14. As at 29 November 2007 a pre‑argument statement pursuant to the Family Law Rules 2004 which was due on 23 October 2007 was not filed. In those circumstances, the parties were advised that the husband’s appeal was deemed abandoned pursuant to the provisions of Rule 22.56(1). However, as I understand the submissions of Mr Byrne, the husband has now filed a pre-argument statement.

15. I am further advised by Mr Byrne that the husband's current appeal against my orders of 17 October 2007 is listed for a Directions hearing with the Regional Appeals Registrar on 30 January 2008.  In those circumstances, and subject to appeal books being filed, inclusive of a transcript which the husband would be required to provide at his expense, it would be anticipated that an appeal could be heard some time in May 2008.  That does not interest me in the sense that I am now dealing with the property proceedings. 

16. The husband, in his transmission of 22 January 2008, appears to "not consent" to my conducting this hearing.  If he has an application to make, then as I said earlier in the course of these extempore remarks, it should be placed before me in proper form. 

17. The husband's various narrative references set out in his correspondence concerns an application by him for a stay of my orders of 17 October 2007.  As I understand Mr Byrne's submissions, the application of the husband for a stay was filed on 27 October 2007.  That was rejected by Client Services as the husband had been, by an order earlier made, as I recall by Morgan J in 2005, declared a vexatious litigant.  He needs to apply for leave to issue any such application and this he has not done. 

18. In paragraph 7 of his correspondence the husband has this to say:

    “7.The father has filed financial application and affidavit and wanted this matter to be finalised after the finalisation of the welfare, however, this matter continue to be non finalised in court, causing the father unemployment, and costs claimed by the other parties while disputed by the father, while the Judge have accused the father to be unemployed.  The father request to have this matter finalised as soon as possible by with due respect to be conducted by another Judge as to the reasons above.”   

19. Thus it is that it appears to me the husband too desires the property aspect to be finalised as soon as possible.  He appears to suggest that it be finalised after the welfare issues have been determined.  That aspect has been determined with orders made by me on 17 October 2007.  All that is currently in process is an appeal from those orders subject to compliance by him with procedural orders to enable the hearing of that appeal.  In any event there is every good reason why the property proceedings should be heard and finally determined.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  31 January 2008.