Patera and Cameron

[2007] FamCA 596

FAMILY COURT OF AUSTRALIA

PATERA & CAMERON [2007] FamCA 596

FAMILY LAW - PROPERTY SETTLEMENT - Husband asserts that he holds interests in various properties on trust for his parents – Adjournment of property proceedings to permit husband’s parents a third and final opportunity to become parties to proceedings – Conspicuous lack of documentary evidence – Prejudice to wife of the adjournment – Costs ordered

Family Law Act 1975

APPLICANT: Mr Patera

RESPONDENT: Ms Cameron

INDEPENDENT CHILDREN’S LAWYER: Pearsons Schetzer & Associates

FILE NUMBER: MLF 1116 of 2006

DATE DELIVERED: 25 May 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 24 and 25 May 2007

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr S.M. Fookes

SOLICITOR FOR THE RESPONDENT: V. Caltabiano

COUNSEL FOR THE

INDEPENDENT CHILDREN'S LAWYER:

Mr R.P. Hutchins

SOLICITOR FOR THE

INDEPENDENT CHILDREN'S LAWYER:

Pearsons Schetzer & Associates

Orders

1. I DIRECT that all references to the children show their family name as Cameron-Patera.

2. That the extant property proceedings be adjourned to the Defaulters List before Registrar Field on 6 July 2007 at 9:30am.

3. That I dispense with compliance with chapter 6 of the Family Law Rules 2004 insofar as it is necessary to permit the husband’s parents […] to intervene in these proceedings.

4. That the interveners file and serve the following documents by not later than 4pm on 15 June 2007:-

   (a)A Form 2 application in which they seek leave to intervene (which has already been granted);

   (b)An affidavit setting out the facts relied upon them in support of the application including the statement of their relationship to the parties and to the assets which are divisible between the parties and attach a schedule setting out the orders that they will seek at the final hearing of this matter and the basis upon which such orders are sought.

5. That the interveners pay the wife’s costs thrown away this day fixed in the sum of $3500 such costs to be paid by 4pm on 15 June 2007 direct to the solicitors for the wife.

6. That in the event that there is a failure to comply with these orders the Registrar convening the next court event consider the appropriateness of setting the matter down as an undefended matter.

7. That the Court certifies that it was reasonable to employ an advocate.

8. I DIRECT

   that a sealed copy of this Order be sent by my Associate to

   
   

   Mr Michael Lipshutz.

9. That my reasons for judgment this day be transcribed and when transcribed a copy be sent to each of the parties and the original be placed on the court file.

IT IS NOTED INCONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Bennett delivered this day will for all publication and reporting purposes be referred to as Patera & Cameron.

FAMILY COURT OF AUSTRALIA AT MELBOURNE  

FILE NUMBER: MLF 1116 of 2007

MR PATERA

Applicant

And

MS CAMERON

Respondent

REASONS FOR JUDGMENT

(EX TEMPORE)

1. This matter comes before me as the second day of the time allocated for the final defended hearing of proceedings between the husband and the wife in relation to their children and a final alteration of property interests.

2. The wife is represented by Mr Fookes of counsel, who is instructed by Vince Caltabiano, solicitor.  The husband was until recently represented by Mr Michael Lipshutz.  The husband's parents are … of … . 

3. The children are a daughter, born … August 1997, and, a son, born … March 1999.  Matters in relation to the children were resolved yesterday, by agreement, and final orders were made yesterday afternoon.  That has the effect of these proceedings being able to be taken out of the Magellan list. 

4. After the parenting orders were made, the court and the parties were ready to proceed with the property matter.  However, the husband and his parents seek an adjournment of the property application.  The wife opposes the adjournment.  Her position is understandable given the history of the matter which I will come to shortly.  However, I have come to the conclusion that an adjournment is warranted. 

5. These reasons are my reasons for granting the adjournment over the opposition of the wife. 

6. The property proceedings were initiated by the husband's application which was filed in the Federal Magistrates Court on 10 November 2005.  It was first returnable in that court on 25 January 2006. 

7. Now, the husband and his parents seek that his parents become parties to these proceedings for the purpose of claiming a beneficial interest in the following properties:-

   a)P, which is a property currently registered in the names of the husband, the husband's father and the husband's mother;

   b)D, which is a property which is currently registered in the names of the husband, the husband's father and the husband's mother; and

   c)M - I am uncertain from reading the documents in whose name that is registered, but it may be registered in the name of the husband and the wife in these proceedings. 

8. As I understand the husband's case, whatever registered interest he has in those properties is wholly beneficially owned by his parents. 

9. The husband's parents also assert that the husband owes money to them.  I do not know whether they assert that the wife owes money to them.  So, apart from seeking to establish their beneficial interest to the whole of the three properties to which I have referred above, there is also the issue of a debt. 

10. As I have said, the proceedings, as indicated, were initiated in November 2005.  As will become apparent, this is not the first occasion on which the husband's parents have considered intervening in these proceedings.  Nor is it the first occasion on which the husband must have considered joining his parents to proceedings as respondents – something which he could have done at any time.

11. The matter was first returnable in the Federal Magistrates Court in January 2006.  It was then transferred into the Family Court, to be put into the Magellan list of cases, arising out of allegations of both of the children at being at risk of sexual abuse.  The matter has been managed in the Magellan list of cases and has come to court a number of times. 

12. On 4 August 2006 Brown J made orders in the matter which contemplated the intervention of the paternal grandparents.  At that point, it is fair to say, that they would have had an interest to intervene in the proceedings in relation to the children, wherein the primary allegations were made against the paternal grandfather, as well as property matters. 

13. In paragraph 7 of the orders made by Brown J on 4 August 2006 Her Honour ordered:

    That in the event the husband's father seeks leave to intervene in these proceedings he file and serve an application within 28 days hereof.

    On that occasion the husband was represented by his solicitor, Mr Lipshutz.  The husband's father did not file any documents within 28 days. 

14. The matter then came before me on 8 September 2006.  On that day the husband was still represented by Mr Lipshutz and the wife has remained represented by Vince Caltabiano.  Extensive orders were handed up in relation to the children, and the matter was adjourned for a trial notice listing so that a final hearing date could be obtained.  In minutes of orders which were prepared by the solicitors for the parties and handed up to the court there is noted as recital E at the end of the orders the following:

    The parties' grandparents will not intervene in the proceedings in relation to the children and property.  So all matters can proceed together. 

    I made a similar notation in the court's part of the order. 

15. The matter proceeded to a trial notice listing before Registrar Mestrovic on 24 November 2006.  Each party was required to file further documents and an affidavit of evidence-in-chief.  Still there was no mention of intervention by the husband’s parents and nor did the husband seek to join them. 

16. The matter was then set down for a pre-trial conference on 28 March 2007.  At that point the husband remained represented by Mr Lipshutz, the wife again by Mr Caltabiano and there's an independent children's lawyer.  It is not apparent that the husband's parents sought or had any involvement in the pre-trial conference which was conducted by Registrar Williams. 

17. Amongst other directions made by the Registrar convening the pre-trial conference was a notation to the orders which is as follows:

    The parties advise that if the children's matters resolve the matter will not proceed in the Magellan list as a financial matter only. 

    It does appear on the court record that the husband and his parents have come to court in the knowledge that, if only property matters remained in issue the proceedings, then property matters will not be accommodated in this list.  Children’s matters have resolved, only financial matters remain.  The notation is not binding on me in any way and is not a notation that I would have been inclined to make myself.  However, I do have to consider the reasonable expectations of the parties and the potential interveners as they approached this hearing.  Whereas I am satisfied that an adjournment prejudices the wife,

    
    

    I must assume that she was heard on the issue of a notation in those terms.  All in all, it is an unsatisfactory situation. 

18. The adjournment of the property proceedings comes at prejudice to the wife.  This is prejudice she would not have suffered had the children's matter proceeded and the property matter been able to proceed also.  I have read the material on the file.  It appears that the wife has been prepared to run the property proceedings to their conclusion.  I am satisfied that the wife had no choice but to prepare the property hearing for today because, if children’s issues had not been resolved by agreement, then the property proceedings would have been determined along with the children’s proceedings.  The husband, on the other hand, has filed only an affidavit of evidence-in-chief, which is conspicuous in the lack of information it gives in relation to fairly extensive acquisitions and dispositions of property in the last 16 years. 

19. Very briefly, and only from my perusal of the file, it appears that part of the history of the property matters is as follows. 

    a)In 1991 the husband and wife purchased a property at A and, it is alleged, received from the husband's parents some $25,000.  In September 1997 that property was sold. 

    b)In 1994 a property at P was purchased and registered in the joint names of the husband, the husband's father and the husband's mother.  The husband asserts that he holds his interest in that property entirely on trust for his parents. 

    c)In 1995 the property at R was acquired, it would appear, in the name of the wife.  A Commonwealth Bank mortgage was taken at that time.  That property is still held.  It is tenanted and returns a gross income of $195 per week, and part of the holding costs are a mortgage of not less than $100 per week.

    d)In 1996 a property was purchased at T; that appears to be purchased in the name of the husband.  The husband asserts an advance from his father in respect of that as well as works to improve the property. 

    e)In February 1998 a property was acquired at H, allegedly for $75,000.  It appears from the documents on the court file that it was registered in the name of the husband, although the husband says that his father purchased the property.  In September 2001 that property was sold for $105,000.  The husband says that his father lent him all of the proceeds of sale with which to acquire a property at M, to which I will come in a moment.

    f)On 3 June 1998 it appears that the property at D was acquired for $60,000 and registered in the joint names of the husband, the husband's father and the husband's mother.  The husband says that his interest in the property is held wholly on trust for his parents and that his parents have control of and the benefit of all income from that property. 

    g)Also in 1998 there appears to have been the sale of a previously owned property at F.  The husband alleges that this was the source of further funds which were advanced by his father to him. 

    h)In 2001 the property at M was acquired as vacant land for $76,000.  It is not clear from my reading of the affidavits in whose name that property was registered.  It may be that it was registered in the name of the husband and the wife.  The husband says that his father lent him the whole of the moneys to acquire the property and that amounted to some $80,000.

    i)In January 2002 the property at T burnt down.  It was subsequently sold in late 2004 for $90,000. 

20. None of the transactions which I have recited above constitutes any finding of fact by me.  I have set out what details are alleged in the affidavits of the husband and the wife to draw attention to the fact that there must be a significant amount of records evidencing those transactions and how and for whose benefit those transactions were completed.  Insofar as solicitors would have done conveyancing and some financial institutions or insurance companies would have required disclosure, it should be apparent why the registration of ownership in the properties was effected as it was. 

21. Surely, the sooner these documents are sought to be retrieved, the better.  I note that some of them would be quite old now.  I note that there is no mention in the husband's affidavit material of efforts made to retrieve documents.  

22. This is a case that the husband would have had difficulty presenting himself.  However, if he has to represent himself on the next occasion, so be it.  Today he says he has spoken to Mr Michael Lipshutz, who will now act for him again on the basis that by next week the husband will be paying Mr Lipshutz $15,000. 

23. I am advised from the bar table that the firm of Glazer Lanteri and Associates of … are likely to act on behalf of the husband’s parents.  The husband says he has "seen" Ms S, who is a lawyer at that firm.  I do not know why the husband should have seen Ms S.  It would be more sensible for his parents to have had an appointment at Glazer Lanteri and Associates by now.

24. Going back to the prejudice which I am satisfied the wife will suffer by virtue of the adjournment, I am advised, and accept, that, whilst the wife has the management and the benefit of the R property, the income from that is minimal.  The rent is $195, the mortgage is $100 a week, but there are going to be holding expenses for the property. 

25. The wife does not work outside the home.  She has the primary care of two children of the marriage, a daughter who is nearly 10 and a son who is eight years of age.  I am advised that the husband pays very little child support, if any child support at all, which is unusual, seeing as his Form 13 financial statement appears to depose to an income of some $1000 a week.

26. The wife has now to contend with the uncertainty of when proceedings will come on in the future.  She also has the legal costs of today to meet.  The costs thrown away of today are claimed in the sum of $3500, and that appears to me to be a conservative estimate.  In that regard, I have reference to the scale of costs set out in schedule 3.  Counsel's fees are $2300 per day, and I accept that is appropriate.  There is a conference for counsel at $300 a day. 

27. There is the fact that Mr Caltabiano, the solicitor has been at court for two or three hours this morning, or will have been by the time this matter is concluded.  There is the fact that further documents will have to be engrossed to bring the matter back on for trial, even if there was not any further affidavit material by the wife that was required, given that issues may now expand. 

28. There is also the fact that I have no alternative but to send this matter to another listing before a Registrar for the purpose of having it set down for hearing.  This will be the second time around for the wife through no fault of her own.  She has already paid for it and she has already been through the process; and now she will have to go through the process again. 

29. I am satisfied that the estimate of costs thrown away, at $3500, is more than reasonable, and I propose to fix them rather than invite the parties to tax them.  In doing so, I have regard to the need to ensure some proportionality and I do not want to put the parties through a costs assessment procedure.  It is also important that everyone knows where they stand from the time they leave court today.  I will be making the husband’s parents responsible for the costs because they, more than anyone else, seek the court’s indulgence to adjourn this matter to allow them to put a case which, it seems clear, they could (and perhaps should) have put much earlier than now.  The husband’s parents must know what they have to pay because, if they do not pay it, there is a very real possibility that they will not be permitted to proceed as participants in these proceedings.  

30. I have advised the husband’s father that he will be responsible for the costs.  Both he and his wife are sitting at the bar table and have indicated that they understand what I mean.  They have not said anything to dissuade me from that course and they have not abandoned their application for the proceedings to be adjourned.

31. This is a matter in which it would be wholly inappropriate for the wife to have to bear the costs of today.  The husband has come to court, he says, not prepared to run his own case.  More significantly, he now wants to add two further parties who have had not one but two chances to intervene in proceedings and have failed to do so, and I am satisfied they would have had knowledge of the proceedings for much longer than that. 

32. The matter will go to the defaulters list, simply because it will then come before Registrar Field, who will set the matter down for hearing. 

33. It is a matter which should be accorded a hearing as quickly as possible.  In this respect, I have regard to the financial circumstances of the wife - who, I should add, is on an income tested pension or benefit.  I am mindful that the husband appears to have control of a number of other properties, or at least proprietorship of a number of properties, and is residing with his parents and paying next to no child support.  Delay in allocating a final hearing in this matter, over and above the time necessary to accord the husband’s parents one final opportunity to intervene on a legitimate basis, is much worse for the wife than it is for the husband.  It is a hardship for her and, through her, for the children who are in her care. 

34. Finally, I should make clear that the costs which I have ordered do not cover the cost of any further valuations or other matters which must be obtained in the event that evidence which was obtained for this week’s hearing becomes stale and has to be updated before the matter is set down again.  Responsibility for payment of those costs will fall to be assessed as and when they arise and if and when a party makes application for payment of part or all of those costs.

I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  18 June 2007