Parsons and Prendergast (No. 2)

[2007] FamCA 446

FAMILY COURT OF AUSTRALIA

PARSONS & PRENDERGAST (NO. 2) [2007] FamCA 446

FAMILY LAW - PRACTICE AND PROCEDURE – Application by wife to proceed on an undefended basis that husband was out of time in the filing of his affidavit material for trial purposes – Exercise of Court’s discretion – Application dismissed.

Rule 15.13; 16.04; 1.12 Family Law Rules and s 97(3) Family Law Act 1975

APPLICANT: Ms Parsons

RESPONDENT: Mr Prendergast

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGF 764 of 2004

DATE DELIVERED: 26 March 2007

PLACE DELIVERED: Melbourne

JUDGMENT (NO. 1) OF: Guest J

HEARING DATE: 26 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Eidelson

SOLICITOR FOR THE RESPONDENT: Berry Family Law

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr Brewer

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Robert Halliday & Associates

Orders

1. That the oral application made on behalf of the wife that her application proceed on an undefended basis be dismissed.

2. It is directed that the extempore judgment delivered this day be transcribed, placed on the court file and made available to the parties.

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. I have before me an application by Mr Eidelson on behalf of the wife that the wife’s Amended Form 1A Response filed 15 January 2007 and before me this day proceed on an undefended basis.  The competing applications concern the welfare of the daughter, who was born in February 2000. 

2. By way of short background, the wife was born in Basra, Iraq in September 1970.  The husband was also born in Basra, in October 1963.  As I understand it, he immigrated to Australia in or about 1993.  The parties first met in early 1998 in Jordan.  The wife was then a refugee.  Following a short courtship they married in Jordan in February 1998.  The husband returned to Australia after about 10 days and the wife followed in about July 1998, following the processing of her visa.  She obtained Australian citizenship in February 2003.

3. The parties lived in Sydney for about 12 months and moved to Melbourne in 1999.  Their relationship fell upon unhappy times and they separated in February 2003.  They have one child, a daughter, to whom I have already referred and who is 7 years old.

4. These proceedings were commenced by the husband in 2004.  They came before me on 13 February 2007 to make orders preparing the matter for final hearing.  Mr Byrne, solicitor, then appeared for the wife and the husband appeared in person.  Mr Halliday, solicitor appeared as the Independent Children's Lawyer.  After having given the matter my careful consideration I made orders that the husband file and serve his affidavit of evidence‑in‑chief and Form 13 Financial Statement, together with any affidavit or affidavits to be relied upon by not later than 10 am on 26 February 2007, which I defined as the “due date”.  I further ordered, in the light of the history of the matter that in the event he failed to comply with my orders, the application proceed to be heard on an undefended basis.

5. In addition, I further ordered that each of the parties file and serve their Case Outline Documents not later than the due date, with specific reference to a number of particulars to be addressed in those documents.  I also made provision for an order that Ms K, a Family Consultant, give her evidence by video‑link.  As I understand it, Ms K is attached to the Sydney registry of the Family Court of Australia. 

6. The husband has sought leave to file his Case Outline Document this morning, far out of time.  The wife's practitioners, as I understand it, emailed their Case Outline Documents to my Associate on 23 March 2007, again, out of time.

7. The wife's affidavit material was filed before 13 February 2007 and spelled out with clarity her case before the court.  There was no objection taken by the husband on that date as to the time frame I ordered for the filing of his documents.  In the result, he has caused to be filed his affidavits, insofar as the property matter is concerned, on 5 March 2007 and insofar as the child welfare matters are concerned, his affidavit was filed on 28 February 2007.

8. The application now made by Mr Eidelson is that the wife’s Amended Form 1A Response proceed undefended.  He emphasised in his submissions that the orders I made were clear, providing for his affidavits to be filed “not later than” 16 February 2007, and urged me to proceed on an undefended basis. 

9. There are two areas to this matter.  There is the property application in respect of which the husband’s affidavit and his Form 13 Financial Statement have been filed well out of time.  The husband’s affidavit in the child welfare aspect of the proceedings is two days out of time. 

10. Mr Brewer, counsel for the Independent Children's Lawyer, opposed the application, despite its technical merit.  He expressed the view that the affidavits have now been filed and that the proceedings should be heard and determined, dealing of course with the best interests of the daughter. 

11. Rule 16.04 of the Family Law Rules 2004 (as amended) provides that the court must ensure, in the conduct of a trial, that the parties focus on issues that are in dispute and the case be conducted expeditiously. The Rules also provide that the court may dispense with compliance (see Rule 1.12). Section 97(3) of the Family Law Act 1975 provides that the court should proceed “without undue formality” and endeavour to ensure that the proceedings are not protracted. 

12. There is a discretion available to me in this matter which I propose to exercise in favour of the husband and receive his documents.  However, that is not the end of the matter.  It appears also on the face of the material, and the transcript this morning would reveal, that there has been considerable discussion concerning the husband's affidavits which so blatantly offend Rule 15.13 of the Rules.

13. That Rule provides that the court may order material to be struck out of an affidavit if the material “is inadmissible, unnecessary, irrelevant, unreasonably long, scandalous or argumentative” or “sets out the opinion of a person who is not qualified to give it”.  It is further provided in the Rules (subrule (2)) that if the court orders material to be struck out of an affidavit, the party who filed the affidavit may be ordered to pay the costs “thrown away by any other party because of the material struck out”. 

14. It is not unfair to say, on a broad reading of, for example, the husband's affidavit dealing with the welfare issue, that there is an abundance of material that grossly offends the Rule, and I propose to hear submissions as to admissibility or otherwise of his affidavit.  Both Mr Eidelson and Mr Brewer have already made submissions pre-empting an application of this nature. 

15. It seems to me, if their preliminary submissions thus far have merit, then what would be left of the husband’s affidavit, dealing with the child welfare issues, would be a mere skeletal structure which would hardly hold together any narrative understanding of his case.  I could proceed on the basis of a strike‑out application of the material, which would necessarily take some time.  In his earlier submissions, Mr Eidelson submitted that it would be "simpler to give a list of things that don't offend" the Rules.  That, to me, has merit. 

16. The husband's affidavit in the welfare proceedings is about 60 pages in total with about 80 unnumbered pages of annexures.  In the property proceedings, his affidavit has about 180 unnumbered pages, which either will stand or fail.  However, my reading of the documents thus far strongly suggest, and I will hear what the husband has to say in argument, that very little, if anything, of his affidavit will remain. 

17. In the circumstances, I refuse Mr Eidelson's application to proceed on an undefended basis and I will deal with a strike‑out application of the husband’s affidavits and annexures.  If that results in a document that has little cohesion or narrative form, then I will permit the husband to give some short oral evidence‑in‑chief of his proposals.  Undoubtedly he will be cross‑examining the wife and it may well be that he too will be cross‑examined on the details of his affidavit, notwithstanding parts of it being struck out, as evidencing what Mr Eidelson has submitted is essentially an utter inability on the husband’s part to separate his condemnation of the wife from the welfare of the daughter, for it is plain that he addresses her in rancorous and belligerent terms.  However, I will wait and hear what is to be said.

18. The husband has also pre‑empted in submission that he seeks to discuss a certain issue with the Duty Solicitor.  It is now 20 past 11.  I propose to stand the matter down for one hour in order to give him the opportunity to do so.  The husband appears to be suggesting in correspondence that he has earlier addressed to my Associate, to the Attorney‑General of the Commonwealth of Australia and to the Chief Justice of the Family Court of Australia that I should not be the judge hearing this matter, and, from what I can make out, he appears to be suggesting that I have predetermined various issues.  I will listen carefully to his application and rule on it after I have heard his arguments.

19. I order that the wife’s oral application be dismissed.

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

Associate: 

Date:  16 May 2007.

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as PARSONS & PRENDERGAST