Prendergast and Parsons (No. 4)

In the Family Court of Australia at Melbourne, Mr Prendergast (the husband) and Ms Parsons (the wife) were parties to proceedings concerning the welfare of their daughter and the division of property. The husband, representing himself, had filed affidavits that were challenged by the wife and the Independent Children's Lawyer. The core of the dispute involved applications to strike out substantial portions of the husband's affidavits and their accompanying annexures, pursuant to Rule 15.13 of the Family Law Rules 2004, which governs the admissibility and form of evidence.

The court was required to determine which paragraphs and annexures within the husband's affidavits were admissible, relevant, and properly presented, and which should be struck out for being irrelevant, scandalous, hearsay, argumentative, or otherwise offending the Rules. Specifically, the court had to consider the husband's submissions that the welfare of the child overrode technical evidentiary rules and his assertion that he was following legal aid guidelines. The court also had to assess the husband's prior declaration as a vexatious litigant.

The court reasoned that while the husband was a litigant in person, his affidavits were replete with material that plainly and grossly offended Rule 15.13. The judge found that the affidavits contained irrelevant commentary, relied on hearsay, and launched a bitter attack on the wife's character, ignoring professional opinions. The court noted that the husband's submissions failed to grasp the fundamental tenet that evidence must be in proper form to be admitted, and that judicial management would descend into chaos otherwise. The court applied the principles of balanced fairness, reason, and practical reality, considering section 97(3) of the Family Law Act 1975, and found that much of the husband's material was inadmissible, unnecessary, irrelevant, scandalous, or mere argument.

Consequently, the court ordered that significant portions of both the husband's affidavit concerning welfare and his affidavit concerning property be struck out. Certain annexures were also removed from the court file. The court noted that the husband would still have opportunities to cross-examine witnesses or call evidence in proper form on relevant issues, and that the striking out of paragraphs did not preclude scrutiny of other deposed matters. The costs of the wife and the Independent Children's Lawyer were reserved.