Adamo & Vinci (No 2)
[2022] FedCFamC1F 128
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Adamo & Vinci (No 2) [2022] FedCFamC1F 128
File number(s): SYC 3598 of 2018 Judgment of: MCCLELLAND DCJ Date of judgment: 15 February 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – Where during the hearing the applicant sought to adduce further evidence by way of letter in support of application in a proceeding – Where the Court requires evidence by way of affidavit and to be filed no later than 2 days before the hearing – Where the respondent seeks a costs order on basis of time wasted by applicant – Application granted on basis of applicant giving an undertaking to the Court Legislation: Family Law Act 1975 (Cth) s 79A
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 5.07, 8.04, 12.17
Cases cited: Re WS (No 3) (2017) NSWSC 1160 Division: Division 1 First Instance Number of paragraphs: 8 Date of hearing: 15 February 2022 Place: Sydney The Applicant: Litigant in person Counsel for the Respondent: Mr Livingstone Solicitor for the Respondent: Alidenes & Co Solicitor ORDERS
SYC 3598 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ADAMO
Applicant
AND: MS VINCI
Respondent
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
15 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The adjournment application of the applicant father is granted on the basis of the undertaking provided by the applicant father today.
2.The matter is adjourned for hearing at 2:00 pm, 18 March 2022.
THE COURT NOTES THAT:
A.The undertaking provided by the applicant father to the Court is as follows:
a.Within 14 days of the date of these orders he will comply with the direction at order 3 made by Judicial Registrar Bardetta on 14 December 2022;
b.Within 14 days pay to the solicitors for the wife the sum of $6,600 in respect to a lump sum costs representing costs thrown away by the adjournment.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Adamo & Vinci has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
MCCLELLAND DCJ:
In this matter the applicant husband has sought to proceed with an application in a proceeding filed on 24 December 2021. Upon being asked what evidence he intended to rely in support of that application the applicant husband advised the Court that he sought to rely upon the contents of a letter which he sent directly to my chambers yesterday, 14 February 2022. The applicant also asserted that he provided a copy of that letter by way of email to the solicitors for the respondent wife. The solicitor for the respondent wife has however checked her email inbox and has not ascertained that any such letter was ever provided to that firm.
In any event, it is quite improper for a party, especially one who is legally qualified, to communicate directly with chambers in respect to the substance of the matter without the consent of another party: Hallan J in Re WS (No 3) (2017) NSWSC 1160 at [15]-[20]. Further, r 8.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“Family Law Rules 2021”) requires evidence in support of an application in a proceeding to be by way of an affidavit and r 5.07 of the Family Law Rules 2021, requires that any such affidavit be served at least 48 hours prior to the hearing.
The reasons for those rules are quite clear. They are so that the respondent to the application is aware of the nature of the case that they have to meet. Secondly, to ensure that any orders of the court are made on an appropriate evidentiary basis.
In those circumstances I indicated to the applicant that he was entitled to apply for an adjournment subject to such argument as may be presented by the respondent. He sought such adjournment. The adjournment was opposed by counsel for the respondent in circumstances where, firstly, the applicant husband has failed to comply with orders made by a judicial registrar on 14 December 2021 to file points of claim setting out the basis upon which he is proceeding with his application under s 79A of the Family Law Act 1975 (Cth) and, secondly, on the basis that the applicant will suffer prejudice in respect to the question of costs.
The question of costs is a live issue in circumstances where the applicant has discontinued one application for review, that being an application for review of a decision of the judicial registrar also made in December 2021 and, also in circumstances where the applicant has been unsuccessful in seeking a review of the decision of the judicial registrar made on 14 December 2021; see Adamo & Vinci [2022] FedCFamC1F 127.
The respondent has indicated that the costs thrown away as a result of the matter not proceeding today is the sum of $6600. Rule 12.17 of the Family Law Rules 2021 empowers me to require that costs be paid on lump sum basis. In circumstances where the application before the Court today involved three separate applications for review, together with, additionally, an application in a proceeding, it is my view that the costs sought by the respondent are fair and reasonable.
Accordingly, in those circumstances, I indicated to the applicant that, as a condition to the Court granting the adjournment, two things would be required. Firstly, that he provide an undertaking that he will, within 14 days, file and serve points of claim in accordance with the directions made by the senior judicial registrar on 14 December 2021. Secondly, to avoid prejudice to the respondent as a result of the applicant’s failure to comply with his obligations under the rules, that he undertake to meet the costs thrown away of the respondent wife in the sum of $6,600.
On the basis of the applicant providing an undertaking in those terms for the Court, I grant the adjournment sought by the applicant and will list the matter before me on 18 March 2022.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 15 February 2022
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