BEYERSDORF & CHU

[2014] FamCA 364

FAMILY COURT OF AUSTRALIA

BEYERSDORF & CHU [2014] FamCA 364

FAMILY LAW – COSTS –Where the matter would have proceeded to a hearing today had it not been for the fact that the affidavits of the applicant are not in the proper form – Where the court determined in those circumstances that it is appropriate that the matter be adjourned and that the applicant will pay the respondent’s costs today.

Family Law Act 1975 (Cth)

APPLICANT: Mr Beyersdorf

RESPONDENT: Ms Chu

FILE NUMBER: SYC 3587 of 2012

DATE DELIVERED: 30 April 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 30 April 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kearney SC

SOLICITOR FOR THE APPLICANT: Barkus Doolan

COUNSEL FOR THE RESPONDENT: Ms Coulton

SOLICITOR FOR THE RESPONDENT: Accentro Legal

Orders

1. That I adjourn this matter today.

2. That the wife shall pay the husband’s costs of these proceedings today as agreed or assessed.

3. That I stand this matter over to the duty list on 14 July 2014 at 9.30am.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3587 of 2012

Mr Beyersdorf

Applicant

And

Ms Chu

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter would have proceeded to a hearing today had it not been for the fact that the affidavits of the applicant are not in the proper form.  This is because the affidavits are in English and sworn in English and do not carry with them a certificate of an interpreter attesting to the affidavit having been read to the deponent in her primary language prior to them being sworn.

2. An interpreter has attended court today and is in the process of reading the affidavits to the applicant. That is unlikely to be completed in sufficient time for the matter to proceed to a hearing today.  The choice is therefore to force the matter on with the applicant not being able to rely on her affidavits or to adjourn the matter.  The latter is the only available course.  The issue then arises as to the costs.

The issue of costs

1. It is submitted on behalf of the applicant that the costs should be preserved so that evidence can be given of the following things.  The applicant is suffering from depression and anxiety, English is her second language, that when the matter was adjourned on the last occasion it was adjourned so that the wife could put on an affidavit in response to matters just raised by the husband.  That affidavit, it is said, required very much more information than previously thought to be put into the affidavit and that it was difficult for her lawyers to do in the time prescribed and given the depression and anxiety and language difficulties and the nature of the material to be placed in the affidavit. 

2. The affidavit was directed to be filed by 21 April 2014 which was Easter Monday. It was in fact filed on 24 April 2014.  I accept for today’s purposes all those things to be true and there is no point to adjourn the proceedings for that evidence to be given.

3. The difficulty in the matter proceeding today does not arise from any of those matters but because the affidavit did not carry with it a certificate of interpretation from an interpreter.  There is no reason why the affidavit could not have been served in its present form on 24 April 2014 and as soon as possible thereafter a further copy served after it had been interpreted. That would have enabled the matter to proceed today.

Conclusion

1. Accordingly, it follows that the only reason the matter is not proceeding today is that the affidavits were in an improper form. They were not, on their face, interpreted to the witness prior to them being sworn with her not being able to read and understand English at least to the extent to be able to swear the affidavit.

2. In those circumstances it is appropriate to adjourn the matter.  The applicant will pay the respondent’s costs of today. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 30 April 2014.

Legal Associate: 

Date:  29 May 2014