Prendergast and Parsons (No. 4)

[2007] FamCA 447

FAMILY COURT OF AUSTRALIA

PRENDERGAST & PARSONS (NO. 4) [2007] FamCA 447

FAMILY LAW - PRACTICE AND PROCEDURE – Application by wife and Independent Children’s Lawyer to strike out certain material contained in husband’s trial affidavits

Rule 15.13; 15.09; 15.09 Family Law Rules 2004; s 97(3) Family Law Act 1975

APPLICANT: Mr Prendergast

RESPONDENT: Ms Parsons

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGF 764 of 2004

DATE DELIVERED: 27 March 2007

PLACE DELIVERED: Melbourne

JUDGMENT (NO. 1) OF: Guest J

HEARING DATE: 27 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 all paragraphs save for those numbered 3, 4, 15, 16, 17 (first sentence to “face”), 25, 28, 30, 41, 44, 48, 49, 51, 56 (from the words “have witnessed” to the words “on me”), 59, 60, 73 (first sentence), 78 (the top of page 13), 77, 97 (first sentence), 108, 211, 215 to 218 (inclusive) of the husband’s affidavit filed 28 February 2007 be struck out and that the annexures save for those numbered 6 (photographs) 9 and 13 be removed from the court file.

2. That all paragraphs save for those numbered 1 to 9 (inclusive), 12 to 20 (inclusive), 32 (two identically numbered paragraphs), 33, 35 (at the foot of the page), 36, 39, 53, (page 9, the last paragraph), 55 (save for the last sentence) and 64 of the husband’s affidavit filed 5 March 2007 be struck out and that the annexures save for those numbered 1, 2, 6, 7 and 9 be removed from the court file.

3. That the ex tempore judgment delivered this day be transcribed, placed on the court file and provided to the parties.

4. That the costs of the wife and the Independent Children’s Lawyer this day be reserved.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 764  of 2004

Mr Prendergast

Applicant

And

Ms Parsons

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT NO. 1

1. I have before me an application by both Mr Eidelson and Mr Brewer to strike out those parts of the husband's affidavits in these proceedings pursuant to rule 15.13 of the Family Law Rules 2004 (“the Rules”).

2. Dealing firstly with the welfare issue. Whilst acknowledging that the husband's affidavit is drawn by him as a litigant in person, it is clear by any reasonable objective standard that it is replete with material, including the annexures, that plainly and grossly offend Rule 15.13 of the Rules. It is 60 pages in length with about 80 unnumbered pages of annexures.

3. The husband annexed about 180 unnumbered pages to his affidavit dealing with the property issue, which comprised a very modest pool of assets. On 26 July 2005 he was, by order of the court, declared a vexatious litigant pursuant to the provisions of s 118(1)(c) of the Family Law Act (1975) (as amended), Morgan J being quite satisfied that "unless restrained the husband will continue to persist in filing unmeritorious and vexatious applications" (paragraph 12).

4. I have read the husband's affidavit dealing with the welfare issue which, it seems to me, unfiltered by objective and independent professional representation arguably may be said to reveal his personality and an intensely held bitter attitude towards the wife.  In that document he appears to present himself without fault as a parent and otherwise condemns the wife by bald assertion as an abusive mother, emotionally unstable and a "psychological threat" to their daughter, to use his term. 

5. Not only the content but its form, arguably, offends Rule 15.08 and 15.09.  In essence, it is a document designed to demote the wife's application and to denigrate her under the mantra that it is in the best interests of the daughter that the child reside with him.  In his affidavit, the husband appears to ridicule those professionals that offer an opinion and an evaluation inconsistent with his own views, for example, that of Mr P, and offers offence and opposition to practitioners such as the Independent Children's Lawyer and the wife's previous professional adviser.

6. I have rarely ever come across such an affidavit, unexpurgated in form and content, that unleashes such irrelevant commentary, relies upon hearsay and launches such a bitter attack upon the character, temperament and personality of the other parent, ignoring the observations otherwise made by independent professionals engaged in the litigation that address matters opposed to what may arguably be described as his own partisan view.  Speaking from a lay position and unassisted at this stage by any expert commentary, I am concerned with the contents of his affidavit which may arguably reflect his personality and temperament and which, in turn, has relevance to his application before the court dealing with the welfare of the child, a daughter, who is 7 years of age.  I have had occasion already to mention my disquiet to all parties and counsel before me.

7. It was the joint submission of Mr Eidelson and Mr Brewer that no objection was taken to paragraphs 3, 4, 15, 16, 25, 48, 49, 59, 60, 78 (the top of page 13), 77, 97 (first sentence), 108, 211, 217 and 218 of the husband’s affidavit. Their arguments were predicated and based upon the Rules and in particular Rule 15.13, to which I have earlier referred.

8. In his submissions, the husband said that he followed the “legal aid guidelines”, that it was "highly unacceptable" to leave only a few paragraphs and that if that was the end result, he would not be “given a chance”, by which I assume he meant, to be heard.  He said that it was “the history” of the mother's involvement in so many incidents that he directed his attention to, relying upon subpoenaed documents.  However, and I made it clear to him that the contents of such documents would be given consideration if relevant and tendered in proper form at the appropriate time.  The husband submitted that he had filed affidavits in the Supreme Court and VCAT following earlier comments made by me in previous proceedings.  I will indicate again that I will receive relevant documents at an appropriate time and when proper to do so.

9. The husband submitted that it was fundamental in a welfare case that all the information he detailed in his affidavit be "permitted".  He said the welfare of the child overrode any, what he described as, “technical issues”.  Whilst there may be some perceived merit in that submission, it ignored the basic tenet that evidence was only admitted when in proper form without which judicial management of the litigation process would descend into chaos.  In that regard, the husband failed and demonstrably so, in presenting his material.  He then, in the course of his submissions, reverted to a persistent theme that the child was "constantly suffering back head pains", and that she had "heartache".  He submitted that his written response, (which now bears part of Exhibit “H4”) detailed why his affidavit should not be struck out and urged me to read that document.  I adjourned the court in order to give it my careful consideration. 

10. Exhibit “H4”, tendered on 26 March 2007, comprised a letter from the wife's solicitors to the husband dated 13 March 2007.  In the course of that correspondence, the wife's solicitors put him on notice that they objected to the affidavits listed earlier in the letter and set out their objections as follows:

    “1. The material was filed and served out of time, after you had previously disregarded two (2) prior deadlines of the court; 

    2. The majority of all Affidavits are extraordinarily difficult, if not impossible, to understand, due to the broken English in which the Affidavits have been drafted.

    3. The extraordinary length of the two (2) affidavits filed on your behalf render them prolix, and of an unnecessary and indeed frivolous length.  We refer to the length of our client's affidavit by comparison.

    4. The majority of the material contained within the said Affidavits is one or more of the following:

    (a) Irrelevant to the matters at issue in Court;

    (b) Scandalous and/or offensive in either statement or implications against our client, her friends and associates or [the daughter];

    (c) Hearsay, in that the contents of the Affidavits comprise recitations of other people's statements for their factual value;

    (d) A repetition of matters canvassed in previous interim hearings before the Court;

    (e) Constitute allegations and accusations without foundation against experts appointed by Court Order to prepare Family Reports regarding issues in this matter.”

11. Thus it was that the husband was on notice that an application would be made concerning the affidavits filed by him.  This letter generated his response dated 20 March 2007, which also bears part of Exhibit “H4”.

12. In his response, the husband failed to grasp the gravamen of the issue for my determination.  He essentially relaunched his attack upon the wife, her personality, character and temperament and her mental health.  As with his affidavits, in particular that dealing with welfare issues, he responded by way of broad-sweeping assertions, matters of opinion and argument.  In addition, he made quite a concerted, gratuitous and accusatory attack upon the wife's solicitors (paragraphs 11 to 16).  For example, in paragraph 13 and onwards he had this to say:

    “13. Specifically, You have neglected and not addressed any concern regarding the child welfare, and her physical and psychological health, while being mistreated, brainwashed/neglected while with your client, despite many affidavit (sic) witnessing how the child is getting abused while with your client, and despite supportive doctors notes and letters.  You have a legal, and ethical obligation to address the issues, fundamentally relevant to the case.

    14. In quite (sic) evidence that you have provided unsupported, unsubstantial, false allegation, irrelevant, and offensive, repetitive, and scandalous content in your affidavit, but I have no fear to have your affidavit filed at court.  Because the content and its non supportive evidence of your affidavit speaks for itself.  and my evidence is strong evidence to establish and confirm your/and your client wrongdoing. The natural Question arise, Mr Burn, and that is if you think my affidavit are as you claimed, then why objecting to it of having it admitted in court anyway?

    15. Instead, you have constantly provided general and scandalous information, making reference to solicitor and so, and neglecting the real issue.

    16. I put you on notice/your client/and the manager of your firm you work in, of which I presume he/she is supervising the incoming/outgoing letters that you have the responsibility to address these issues, and that you and previous colloquies (sic) of your [Mr C] are and will be further responsibly (sic) to any negative effects have occurred and continue to occur on the child.”

13. Such comments vary little from his offensive attacks launched upon Ms K, the Family Consultant, who will be giving evidence in these proceedings, Mr P, former psychologist involved in the proceedings to prepare a welfare report in 2005, the Independent Children's Lawyer (two separate appointments) and the wife's solicitors.

14. I have carefully considered all the other paragraphs in addition to the ones unchallenged by Mr Eidelson and Mr Brewer, and in my view it would be proper to also permit paragraphs 17 (first sentence to "face") 28, 30, 41, 44, 51, 56 (the words "have witnessed" to the words "on me"), 73 (first sentence), 215 and 216 to remain as part of the husband’s affidavit, and for quite obvious reasons. 

15. The balance of the affidavit will be struck out as being variously inadmissible, unnecessary, irrelevant, scandalous and matters of argument.  Much of what the husband has had to say is hearsay and otherwise an expression of his own personal dogma.  That does not mean, however, and I make this clear to him, that he cannot cross-examine the wife or any other witness on a relevant issue arising from the medical reports, for example, and subject to any answer given, call a witness under subpoena to prove in proper form a fact in issue.  Nor does it mean that he will not be subject to some scrutiny about other paragraphs to which he has deposed and which have been struck out.

16. Many of the allegations raised by the husband are unintelligible in that they remain bald, unsourced and undated assertions. In admitting the particular paragraphs that I have, I also take into account s 97(3) of the Family Law Act (1975) and balanced fairness, with reason and practical reality. 

17. The husband has, for example, offered what may be best described as commentary upon the reports of Ms K and Mr P, to whom I have earlier referred.  I now regard what he had to say as placing the wife and the Independent Children's Lawyer on notice of that which he disputes in their reports.  I will, in the result, act upon admissible evidence and not bald assertion.  I also have regard to the fact that the probative value in many of the paragraphs drawn by him is substantially outweighed by the danger that the evidence might cause or result in an undue waste of time.

18. As to the annexures to the husband's affidavit, I propose to permit annexures numbered 6 (photographs), 9 and 13 to remain in evidence. The balance of the annexures are inadmissible, unless proven and tendered in proper form. I have considered the concessions made by Mr Eidelson and Mr Brewer as to those paragraphs not objected to and which I regard as both practical, indeed generous, but I do not propose to interfere and I act upon the provisions of s 97(3) of the Act to otherwise proceed without undue formality.

19. It is fundamental that this application is subject to my discretion within the discrete circumstances of the facts and issues before me.  In argument, and in addition to what I have earlier recounted, the response of the husband at first instance on 26 March 2007 was to baldly claim that he wanted the information "admitted in court" and that if objected to, he said he would seek an adjournment in order to obtain legal advice.  The husband has, it appears from the wife's affidavit, had legal advice in the past.  He was most ably represented by Mr McDermott before me on 3 January 2007.  He has assets.  The wife does not legal aid and is self-funding, which is a considerable financial drain on what little she has.

20. The husband has had ample opportunity to gain legal assistance but has elected to appear in person.  In his affidavit for example, in any event, he complained of delays in the court urging that the matter proceed.  In the circumstances, there will be no further delay and I propose to proceed with the hearing of the welfare application.  I am satisfied the husband has made all submissions.  He has been heard.

21. Insofar as the husband's affidavit dealing with property issue is concerned, it was Mr Eidelson's submission that he placed no objection to paragraphs 1 to 9 (inclusive) 12 to 20 (inclusive) 32 (two identically numbered paragraphs), 33, 35 (at the foot of the page), 36, 39, 53, page 9 (last paragraph) and 64. The balance of the paragraphs were objected to as offending Rule 15.13 of the Rules and for reasons I have variously outlined earlier in this judgment. I have already addressed the husband's argument. I have read his response. They do not persuade me otherwise from the view I take in this judgment.

22. The remaining paragraphs from those outlined by Mr Eidelson, I will strike out save for the last sentence of paragraph 55, (page 9), the sentence, "I resumed a full-time teaching job in the school in July 2006”.  However, I again make it clear to the husband that should an issue arise relevant to my determination, he will be free to debate further the question of admissibility.  The fault underlying the husband's affidavit is that it is replete with his personal views, matters of opinion and argument and are devoid of a relevant factual base underpinning its admissibility.

23. As to the annexures to the affidavit, I will admit, as matters currently stand, those numbered 1, 2, 6, 7 and 9.  There are certain annexures that are unintelligible, but I make it clear that it remains open to the husband to seek to demonstrate relevance and admissibility later in the course of the hearing. 

24. That upon hearing the wife’s oral application to strike out certain paragraphs of the husband’s affidavit material, IT IS ORDERED:

    1.That all paragraphs save for those numbered 3, 4, 15, 16, 17 (first sentence to “face”), 25, 28, 30, 41, 44, 48, 49, 51, 56 (from the words “have witnessed” to the words “on me”), 59, 60, 73 (first sentence), 78 (the top of page 13), 77, 97 (first sentence), 108, 211, 215 to 218 (inclusive) of the husband’s affidavit filed 28 February 2007 be struck out and that the annexures save for those numbered 6 (photographs) 9 and 13 be removed from the court file.

    2.That all paragraphs save for those numbered 1 to 9 (inclusive), 12 to 20 (inclusive), 32 (two identically numbered paragraphs), 33, 35 (at the foot of the page), 36, 39, 53, (page 9, the last paragraph), 55 (save for the last sentence) and 64 of the husband’s affidavit filed 5 March 2007 be struck out and that the annexures save for those numbered 1, 2, 6, 7 and 9 be removed from the court file.

    3.That the ex tempore judgment delivered this day be transcribed, placed on the court file and provided to the parties.

    4.That the costs of the wife and the Independent Children’s Lawyer this day be reserved.

I certify that the preceding twenty four (24) 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 PRENDERGAST & PARSONS