ASPERY & ASPERY

[2018] FamCA 882

FAMILY COURT OF AUSTRALIA

ASPERY & ASPERY [2018] FamCA 882

FAMILY LAW – PRACTICE AND PROCEDURE – Review of Registrar’s decision – Where the husband sought a review of directions made – Where the review is futile as the operative dates of all of the directions which the husband seeks to discharge have passed – Where the application is dismissed.

APPLICANT: Mr Aspery

RESPONDENT: Ms Aspery

FILE NUMBER: SYC 7771 of 2016

DATE REASONS PUBLISHED: 31 October 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE AND DATE OF ORDERS: 19 September 2018

Orders

1. The Application in a Case filed on behalf of the husband on 2 August 2018 is dismissed.

2. The application for costs contained in the Response to an Application in a Case filed on behalf of the wife on 24 August 2018 is referred to the Senior Registrar for hearing.  [10.45 am on 12 November 2018]

Note:  The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Aspery & Aspery has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC7771 of 2016

Mr Aspery

Applicant

And

Ms Aspery

Respondent

REASONS FOR JUDGMENT

1. On 4 June 2018 the husband filed an Application in a Case seeking, among other orders, that the directions made by Senior Registrar Campbell on 16 April 2018 be discharged. On 30 July 2018 the Senior Registrar dismissed that application. On 2 August 2018 the husband filed an application in which he sought that the order of the Senior Registrar of 30 July 2018 be reviewed (“the Application for Review”). That application came to me for hearing.

2. On 19 September 2018 the Application for Review was heard by me in chambers and was dismissed. No reasons issued at the time the order was made.

3. There has subsequently been a request for reasons for my decision and what follows are those reasons. A Notice of Appeal was filed in respect of the decision of 19 September 2018 on 17 October 2018.

4. Following receipt of the Application for Review directions were made on 17 August 2018 providing that the application would be determined in chambers and that any written submissions should be filed and served within seven days. The husband’s submissions were filed on 24 August 2018 and the wife’s submissions were lodged in the form of a letter also dated 24 August 2018. Suffice it to say that the husband’s application was opposed.

5. No supporting affidavit was filed with the Application for Review but by the husband’s written submissions, he indicated that he relied on his affidavit filed 16 May 2018 and those of his solicitor filed 4 June 2018 and 24 August 2018.

6. A review application proceeds by hearing de novo. That is to say, I am to hear the husband’s application of 4 June 2018 afresh and am not required to revisit, let alone to find fault with, the processes before the Senior Registrar.

7. Relevantly, the application of 4 June 2018 sought:

   “…

   2.THAT the Directions made by Senior Registrar Campbell on 16 April, 2018, be discharged.

   …”

8. The particular directions in question were not identified in the application but a copy of the orders, directions and notations made on 16 April 2018 was attached to the affidavit of the husband’s solicitor of 24 August 2018. Omitting the formal parts they are:

1.

I note that this matter was listed before me today for a conciliation conference.

2.

I further note that upon analysis of the Husband’s assertions in his parts of the Joint Balance Sheet, it appears that the Husband has failed to provide full and frank disclosure. The Husband, through his lawyer, acknowledges that the Husband has failed to provide full and frank disclosure.

3.

I also note the requirements of the Pre-Action Procedures (Item 4(1) of Part1, Schedule 1 of the Family Law Rules 2004 (“the Rules”)), Rule 13.01 of the Rules and the decision of Smithers J in Briese and Briese (1986) FLC 91-713 concerning the duty of full and frank disclosure

4.

I also the provisions of Rule 11.02(2)(a) of the Rules.

5.

I finally note that the conciliation conference was rendered impotent largely as a consequence of the Husband’s failure to provide full and frank disclosure.

Listing

6.

All applications are listed before the docket Registrar at 10.45am on 23 July 2018 in court for consideration of the following:

6.1     Striking out the Husband’s Response pursuant to Rule 11.02,

6.2     If the Response is struck out, listing the matter for undefended hearing,

6.3     Determining the Applicant Wife’s application for costs.

Documents to be filed

7.

The Respondent Husband must file and serve by 4pm 7 May 2018 any affidavit on which he intends to rely in relation to the matters set out in order 6 above.

8.

The Applicant Wife must file and serve by 4pm 21 May 2018 any affidavit on which she intends to rely in relation to the matters set out in order 6 above.

9.

Each party must file and serve by 4pm 4 June 2018 any written submissions on which he or she intends to rely in relation to the matters set out in order 6 above.

1. The only orders made on 16 April 2018 were set out in paragraphs 6, 7, 8 & 9. All of the operative dates in those orders have passed. Indeed they had passed on the day of the order that is the subject of the review.

2. I could find no reference in the husband’s material to the listing foreshadowed in paragraph 6 of the orders, i.e. 23 July 2018. However, I gather that the matters flagged for consideration on that date have yet to be considered by the Court. Attached to the affidavit of the husband’s solicitor filed 24 August 2018 is a copy of an email from the Senior Registrar to the husband’s solicitor dated 8 June 2018 which includes the following:

   “…

   I can confirm that no decision has yet been made by the court to strike out the Husband’s Response. Given his change of legal representatives and uncertainty about the directions made I can confirm that no final decision will be made in that regard until further notice.

   To that end I intend listing the matter for file review and further directions sometime in July or August 2018.

   …”

3. To the extent that the order of particular concern was order 6, it is an order flagging that a particular course would be considered on a future date. One would think that the time for complaint would be when and if there was an adverse outcome from such a consideration. However, the review is futile as the operative dates of all of the directions which the husband seeks to discharge, have come and gone. Indeed that point is made in the submissions provided on behalf of the husband.

4. For those reasons the Application for Review was dismissed.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 19 September 2018.

Associate:

Date:  31 October 2018