Parsons and Prendergast (No 2)

[2008] FamCA 105

FAMILY COURT OF AUSTRALIA

PARSONS & PRENDERGAST (NO. 2) [2008] FamCA 105

FAMILY LAW – PROCEDURAL – application for stay of orders – dismissed

Family Law Act1975 (Cth)

APPLICANT: MR PRENDERGAST

RESPONDENT: MS PARSONS

FILE NUMBER: MLC 264 of 2008

DATE DELIVERED: 11 February 2008

PLACE DELIVERED: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 11 February 2008

REPRESENTATION

THE APPLICANT: NO APPEARANCE

THE RESPONDENT: NOT REQUIRED TO ATTEND

Orders

1. That the application filed 11 January 2008 be dismissed.

2. That the reasons for judgment be transcribed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 264 of 2008

MR PRENDERGAST

Applicant

And

MS PARSONS

Respondent

REASONS FOR JUDGMENT

1. I have before me an application in a case filed on 11 January 2008 by the husband.  In that application he seeks permission to file another application in a case and affidavit which he swore on 12 December 2007 to stay the orders of Guest J made on 17 October 2007 relating to "welfare matters" as he describes it.  The case has been called in the duty list at 10 o'clock.  There has been no appearance of the husband and as will become apparent from some of the reasons that I briefly give, his former partner (the wife) has not been served.

2. I have been handed a letter which has been received by the Court apparently on Friday evening by facsimile transmission.  It seems to have been sent from an Officeworks premises at 6.34 pm on Friday 8 February.  The letter is marked "Urgent".  It requests that the letter be admitted in the file and read by the "appointed judge" regarding the hearing on Monday 11 February.  It is not a matter that I can give much weight to having regard to the fact that it is a letter rather than an affidavit, but in any event having regard to the fact that I have had the opportunity to look at the file, I am able to make some comment on it. 

3. The husband has been declared by the court to be a vexatious litigant. Morgan J made an order on 25 July 2005 under s 118 of the Family Law Act 1975 (Cth) (“the Act”). Subsequent to that time proceedings were brought in this Court by the husband seeking parenting orders in relation to his daughter. Orders were earlier made by Watt J on 21 January 2005, and then proceedings began in early 2007 relating to the parenting matters. This proceeding was before Guest J. The matter was part-heard and in July 2007 it seems that the husband made an application to the Full Court and Kay J in July 2007 dismissed his application for leave to appeal against the apparent interlocutory orders of Guest J.

4. It seems that Guest J delivered final judgment on 17 October 2007, and doing the best I can in working out exactly what has occurred, the husband has appealed against those orders.  He lodged an application for a stay of Guest J's orders and although it is not entirely clear I have presumed that someone in the Registry has determined that because he was declared to be a vexatious litigant he had to apply for leave to lodge the stay application.  I must say I have some reservations about whether or not he does have to make an application for leave having regard to the fact that he has lodged Notice of Appeal and the appeal is clearly pending.  It seems to me that there is a significant problem in precluding someone from applying after they have lodged Notice of Appeal for a stay of the orders.

5. However, that just compounds the problem that I have today because in the letter that the husband has faxed on Friday evening it seems to be saying that he wanted the application to proceed in his absence.  The letter started out by referring to the fact that he received in his mail some document which was unsealed together with an affidavit from the solicitor for the wife listing the matter of whatever was contained in the application for today, Monday 11 February.

6. I am not aware of any application having been filed.  The husband goes on to say in his letter that he was told that his Full Court appeal is to be heard on Monday 11 February 2008.  Again, that is today, and I have had an inquiry made as to the list of the Full Court and there is nothing listed in relation to this matter.  The letter that the husband has written is complex.  Taking into account the fact that the husband may not have English as his first language, it is still difficult to follow some of the things that he says.  Doing the best I can, it seems that he is of the view that something is happening today and if that is the case in relation to the Full Court, I would have thought that he would at least have been within the immediate vicinity of the court building.  Just after 10 o'clock this morning I had him called and there was no appearance.  I am puzzled as to what he really means by wanting me to deal with the matter on the basis of his letter.

7. In the letter he says that he wanted the Court to make the decision, presumably meaning the decision relating to his application for leave, based upon seven matters.  Those matters were first that I was to take into account all material filed so far regarding the appeal.  Secondly, I was to take into account the material that he filed in relation to his application to file a stay application.

8. Pausing at that point, the only material that I could possibly read in relation to the appeal would be his Notice of Appeal.  I have not done that.  I do not think it is appropriate that I should.  In relation to his application for permission to file the stay application, I only have his very brief material in which he says that his daughter's welfare is very much at stake and at risk having regard to the orders that Guest J made on 17 October.  Orders were made around January 2005 at which point in time the husband was seeing his daughter from some time early in the weekend until Sunday night.  Whatever the precise times were, he was clearly having most of the weekend.

9. What Guest J did in October 2007 was to discharge those orders and then made an order that the husband spend time with the child on each alternate Sunday between the hours of 10 am and 5 pm save for the month of January when all time between father and child was suspended.  It is therefore a little difficult to understand what the welfare issue is that the husband is talking about having regard to the fact that Guest J has made an order that he spend time with his daughter.  In addition I do not have any material as to whether or not he is in fact exercising that time. 

10. Returning then to the letter, the husband says that a further application has been sent to the Court with supporting letter but it has not been answered by the Court.  I am not sure what he is talking about but I have had a look at the file and I am not aware of any material that has been placed on it that I have not had an opportunity to read.  The fourth issue is that the husband requests that the hearing which I presume him to mean the hearing before me, is conducted by another judge different to Guest J because, "It is quite unjust to have the same judge hearing this matter after I have appealed the judge's final orders."

11. The difficulty for the husband is that under the Family Law Rules an application for a stay under Rule 11.05 would have to be made to Guest J unless there was some reason why Guest J was unavailable.  As it turns out, Guest J is available and had I been minded to grant the husband’s application today, I would have only been listing his stay application before Guest J in accordance with the rules. 

12. The fifth matter that the husband raises is that due to the urgency of the matter, all matters heard "according to the related above matters filed in court by myself" and I interpolate here that having regard to items 1 to 4, the husband seems to be saying that he wanted the application for permission to apply for a stay heard at the same time as the stay application itself.  As I have just pointed out, that would be in my view not what the rules provide. 

13. The sixth matter is that the husband says that the "imposed application in case of the solicitors of [the wife] is either dismissed or adjourned".  What he seems to be talking about there is the document that he earlier referred to in his letter as having been received last Thursday.  As I said I have made some inquiries and there does not seem to be any application filed.  So in that sense there is nothing for me to determine. 

14. The seventh matter relates to the application including all material referred to, to be heard by another judge on its evidence and merits.  Again, that seems to be a recurring theme of the husband, and as I have just pointed out, that would be inappropriate having regard to the rules.  The husband’s letter ends by saying that he has attended to the various matters that were "imposed" on him, and he then goes on to say, "I ask the court understanding for the reasons that I will not be attending this hearing despite its urgency."  He then went on to say, and I think this is relating to what I have just quoted, that he left the matter to be dealt with in court without the attendance of either party as to either the stay or the permission to apply for the stay.  He seems however to be saying that his wife does not need to attend that if they agreed to his request regarding their new proposed application whatever that may have been. 

15. Finally he says that he asked that there be no order for costs against him made by the Court.  There is no case here in which an application is being made by the wife for costs, nor is there any application by the Independent Children's Lawyer because neither of them has been served with the documents.  Whilst as I have pointed out, it is difficult to know exactly what the husband is talking about, and having had him called, it seems to me that his application, were it to have run on the material that I have read, would have been doomed to fail anyway, but having regard to the fact that he is not here and is aware that the proceedings were listed and chosen not to attend, it is appropriate that I simply dismiss his application.

I certify that the preceding Fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  19 February 2008