BARDON & BARDON
[2012] FMCAfam 1116
•24 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BARDON & BARDON | [2012] FMCAfam 1116 |
| FAMILY LAW – Review of Registrar's decision not to grant leave to serve short notice of an Application in a Case – where Application for review successful – where Application in a Case returnable on 5 September 2012 – review of Registrar’s decision to be conducted as a hearing de novo. COSTS – Where Applicant ordered to pay Respondent’s costs of the day. |
| Family Law Act 1975 (Cth), s.117 Federal Magistrates Act 1999 (Cth), ss.102, 103, 104 Federal Magistrates Court Rules 2001, Part 20, Division 20.2, Rules 20.01, 20.02, 20.03 |
| Myers & Myers [2011] FMCAfam 1104 Vibbard & Garcia [2012] FamCAFC 114 Zeller & Whitby [2011] FMCAfam 431 |
| Applicant: | MR BARDON |
| Respondent: | MS BARDON |
| File Number: | SYC 4449 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 24 August 2012 |
| Date of Last Submission: | 24 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 24 August 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Champion Legal |
| Solicitors for the Respondent: | Sydun & Co Solicitors |
ORDERS
The Application for Review of a decision of a Registrar filed on 15 August 2012 is granted.
The Application in a Case filed on 8 August 2012 is returnable at 10:00 am on Wednesday 5 September 2012.
The Respondent wife is to file and serve a Response to the Application in a Case by Tuesday 4 September 2012.
The Applicant husband is to pay the Respondent wife’s costs of today fixed in the amount of $550.00 by 26 October 2012.
IT IS NOTED that publication of this judgment under the pseudonym Bardon & Bardon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 4449 of 2009
| MR BARDON |
Applicant
And
| MS BARDON |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application for review of a decision by a Registrar not to grant leave to serve short notice of an Application in a Case.
The Application for Review filed on 15 August 2012 states:
The review is sought in relation to the decision not to grant short notice and to make the Application in a Case filed 8 August 2012 returnable on 8 October 2012.
The Application for Review appears to be reviewable by the Court, as the decision sought to be reviewed is a review of the exercise of the power to shorten or abridge a time fixed by the Rules and is therefore amenable to review under s.104(2) of the Federal Magistrates Act (see Vibbard & Garcia[1] at [26]). In Vibbard & Garcia, the Full Court of the Family Court endorsed the reasoning of Halligan FM in Myers & Myers[2] rather than the view put forward in Zeller & Whitby[3]
[1] [2012] FamCAFC 114
[2] [2011] FMCAfam 1104
[3] [2011] FMCAfam 431
The procedure for review of the exercise of a power by a Registrar under subsection 104(2) is contained in Division 20.2 of the Rules.
Shortening or abridging a time fixed by the Rules falls within the power described in s.102(2) of the Act as “exempting a party to proceedings in the Federal Magistrates Court from compliance with a provision of the Rules of Court”, which has been delegated to approved Registrars pursuant to s.103(1) by r.20.00A(1) (Vibbard & Garcia at [22]; Myers & Myers at [29]).
Subrule 20.01(1) prescribes times for application for review:
(1) For subsection 104(2) of the Act, application for review of the exercise of a power by a Registrar must be made within:
(a) for the exercise of a power of the Court under the Family Law Act or Family Law Regulations mentioned in items 3 to 30 of the table in rule 20.00A – 28 days; and
(b) otherwise – 7 days.
Making an order exempting a party to proceedings from compliance with a provision of the Rules is not the exercise of a power by a Registrar mentioned in items 3 to 30 of the table in rule 20.00A, rather it is contained in Item 2. Thus, such an application must be made within 7 days.
Under the provisions of rule 20.02, an application for a review of an exercise of power by a Registrar must be listed for hearing as soon as possible and, unless impractical to do so, within 14 days after the date of filing (Subrule 20.02(2)).
The applicant must serve a sealed copy of the application on each other party to the proceeding within 7 days after it is filed (Subrule 20.02(3)).
Thus, the Application for Review was listed for hearing on 24 August 2012 and the Applicant for review was directed to serve a sealed copy of the Application for Review on the Respondent to the Application by 22 August 2012.
Rule 20.03 provides that the review of an exercise of power by a Registrar must proceed as a hearing de novo.
Background
The substantive Application is an Application by the wife for financial orders. The husband, who is the Applicant in this proceeding, seeks parenting orders in his Response.
The proceedings are listed for final hearing on 25 and 26 October this year.
On 9 July 2012 the substantive Application was listed for call-over, along with a number of other applications for financial orders, for the purpose of ascertaining whether the matter was suitable for referral to mediation as part of a scheme put forward by the Law Society of New South Wales and the New South Wales Bar Association. Orders were made by consent referring the matter for mediation. I understand that this mediation has not taken place.
On 9 July the solicitor for the husband asked the Court for an assurance that the hearing dates of 25 and 26 October would still be retained. That assurance was given. He then told the Court that an Application in a Case would be made in respect of the matters set out in the Application in a Case that forms the subject of the Application for Review.
I granted leave to file and serve an Application in a Case returnable on 7 August 2012 and adjourned the proceedings to that date. I made the following directions:
a)The Respondent is to file and serve the Application in a Case and a supporting affidavit within 14 days;
b)The Applicant is to file and serve a Response to the Application in a Case and an affidavit within 21 days.
On 3 August 2012 the parties’ solicitors forwarded a written request for an administrative adjournment of the mention on 7 August, but unfortunately it did not reach the Court in time and the lawyers for both parties appeared before the Court on 7 August.
There was no Application in a Case or affidavit in support available to the Court that day. No application was made for a further return date for such an Application. No documents were sought to be tendered in support of the application the subject of the Application in a Case. The matter was then adjourned to 25 October, the first day of the final hearing.
The following day, the husband’s solicitors filed the following documents:
a)the Application in a Case;
b)an affidavit of the husband sworn 7 August 2012; and
c)a Financial Statement sworn 7 August 2012.
The Application in a Case sought:
a)leave to serve short notice of the Application;
b)an order that the parties do all things necessary to cause an available sum of $87,055.00 in the Commonwealth Bank to be redrawn to be paid to the Trust Account of the husband’s solicitors; and
c)an order that the husband not permit any of the monies held in the Trust Account to be used for any purpose other than legal fees and disbursements in relation to the proceedings.
As referred to in paragraph [2] above, the Registrar declined to grant short notice and the Application in a Case was given a return date of 8 October 2012.
The husband then filed an Application for Review on 15 August 2012, accompanied by an affidavit sworn the day before.
The Application for Review
The husband is seeking an earlier return date of the Application in a Case because he claims that 15 October is too late to enable him to obtain necessary valuations and make other preparations for the final hearing, which is listed for 25 and 26 October 2012.
The husband deposed in his affidavit that:
a)he does not have the necessary funds to pay his legal representatives to prepare his case or to brief counsel and instruct expert valuers;
b)he believes that expert reports will be needed to value the wife’s legal practice, the parties’ self-managed superannuation fund and the jointly-owned real property; and
c)the return date of 8 October is too late for him to obtain the funds in the bank account, if his application is successful, and make the necessary arrangements in time for the hearing commencing on 25 October.
Accordingly, the Application for Review was listed for hearing today and the husband was ordered to serve the Application and Affidavit on the wife’s solicitors.
The solicitor for the wife opposes the review.
Conclusions
The review is a hearing de novo (Rule 20.03). The Court may receive as evidence any affidavit or exhibit tendered before the Registrar and may, with leave, receive further evidence (see Subrule 20.03(c)).
The husband’s affidavit of 14 August 2012, filed in support of the Application for Review, was taken into account.
In my view, it was appropriate to grant the Application for Review and allocate an earlier return date for the Application in a Case. It was within the knowledge of the parties that the Application would be made, as the issue had been raised by Mr Jamieson when the matter was before the Court on 9 July. It was for that reason that leave was given to file and serve the Application in a Case returnable on 7 August. Regrettably, the husband was not able to organise all of the necessary affidavit material in time. This led to the mention date of 7 August being unnecessary, although the husband was able to file the necessary documents the very next day.
The Application in a Case will be returnable at 10.00 am on Wednesday 5 September 2012, at which time the Court will consider the husband’s application for the release of money from the Commonwealth Bank to fund his legal proceedings.
It appears to be reasonable to make an order for costs against the husband in all the circumstances, noting the matters the Court is required to consider under s.117 of the Family Law Act. The conduct of the parties to the proceedings in relation to the proceedings, as described in paragraph 117(2A)(c) of the Act is particularly relevant and an order will be made that the husband pay the wife’s costs of the day, fixed at $550.00.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 17 October 2012
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