Crafter and Crafter and Ors (No 3)

[2009] FamCA 1341

FAMILY COURT OF AUSTRALIA

CRAFTER & CRAFTER AND ORS (NO. 3) [2009] FamCA 1341

FAMILY LAW – PRACTICE AND PROCEDURE – Orders for filing of affidavit material
FAMILY LAW – COSTS – Order made pursuant to s 117 – determination made pursuant to s 117(2A)

Family Law Act 1975 (Cth)

APPLICANT: Ms Crafter

1^ST RESPONDENT: Mr Crafter

2^ND 3^RD 4^TH 5^TH RESPONDENTS: M Crafter
W Crafter
D Pty Ltd
P Crafter

FILE NUMBER: ADC 142 of 2007

DATE DELIVERED: 6 November 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 6 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr K Tredrea

SOLICITOR FOR THE APPLICANT: Jo-Ann Milen & Associates

COUNSEL FOR THE RESPONDENT: Mr J McGinn

SOLICITOR FOR THE RESPONDENT: Lindley Solicitors

COUNSEL FOR 2^ND TO 5^TH RESPONDENTS: Mr G Stevens

SOLICITOR FOR 2^ND TO 5^TH RESPONDENTS: Stokes Legal

Orders

1. That the affidavit filed by the husband on 12 October 2009 be uplifted and returned to the husband’s solicitors.

2. That by 4:00pm on 22 January 2010 the husband file and serve an updated financial statement.

3. That by 4:00pm on 24 November 2009 the husband file and serve any proposed application together with any supporting affidavit seeking leave to amend his response.

4. That any response including any affidavit material of the wife or the other parties be filed and served by 4:00pm on 4 December 2009.

5. That the said application and any response thereto be listed for hearing at 9:00am on 10 December 2009.

6. That further consideration of this case generally be adjourned to 9:00am on 10 December 2009.

7. That the husband pay to the trust account of the solicitor for the wife on behalf of the wife the sum of FOUR HUNDRED AND FIFTY DOLLARS [$450.00] plus GST by way of costs within two [2] months of the date hereof.

8. That the husband pay to the trust account of the solicitors for the other parties on behalf of the other parties the sum of ONE THOUSAND DOLLARS [$1,000.00] plus GST by way of costs within two [2] months of the date hereof.

IT IS NOTED that publication of this judgment under the pseudonym Crafter & Crafter and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 142 of 2007

MS CRAFTER

Applicant

And

MR CRAFTER

Respondent

And

M CRAFTER
W CRAFTER
D PTY LTD
P CRAFTER

2^ND - 5^TH Respondents

EX TEMPORE REASONS

1. This matter was adjourned to today from 7 September 2009 to address any further matters relevant to the listing of this matter for trial. 

2. I made certain orders on that day which needed to be addressed today and also the question of when the matter could be listed for trial was to be canvassed.

3. Just looking at the orders that I did make on 7 September 2009 and identifying issues from them. I made an order by way of partial property settlement. Mr Treadrea has raised an issue about that, but I am not being asked now to make any further order about that. It seems that the issue that Mr Treadrea has raised may be able to be sorted out without any further order and I hope that will be the case. I gave leave to issue a subpoena, that subpoena was issued, the documents have been produced and now inspected and no issue arises from that exercise and no further order is sought today. I gave leave for the husband to serve a request to answer specific questions. That has been attended to and answers have been provided and nothing flows from that in terms of the need for any further orders.

4. Importantly I made an order that the husband file and serve a further affidavit of evidence-in-chief within five weeks. The husband did file such an affidavit, and it is document 80 in the court file. I will not repeat all that I have said in relation to that matter, but the long and the short of it is that the affidavit that has been filed bears no resemblance to the affidavit that I anticipated would be filed, given what I was told about that on 7 September 2009. Further, what this affidavit does is seek to amend the husband’s application to include a number of declarations pursuant to s 78 of the Family Law Act 1975. What should have happened is that, firstly, I should have been told about the nature of the material that was intended to be put before me on 7 September 2009, and as a result the other parties would be on notice about that and could have said something about it at the time. Secondly, a formal application in a case should have been filed seeking leave to amend the husband’s application, not simply looking to cover that in a paragraph of an affidavit.

5. An attempt has been made in this affidavit to justify the amendment sought. In my view that attempt fails, and it has been highlighted by an affidavit which I have received today from one of the respondents. That is an affidavit which in effect opposes the amendment sought by the husband and raises issues which, as I say, highlight the concerns that I have about the affidavit filed by the husband. 

6. It is unfortunate that this issue has arisen in this way because this case is to be shortly listed for trial, hopefully in February or March next year, yet this issue is being raised late in the piece and for all sorts of reasons, including just that, both the wife and the other parties oppose any amendment to the husband’s application. How this is to be dealt with though is that I propose to uplift the affidavit and return it to the husband’s solicitors. I do not need in that event to receive formally and place on the court file the affidavit tendered today by Mr Stevens because as I have said my view about that affidavit is that it is an inappropriate affidavit, it is not an affidavit which complies with the order that I made on 7 September 2009 when looked at in the context of what it was meant to contain, and it is an inappropriate method of attempting to seek leave to amend an application.

7. If so advised the husband will need to file an application, a proper application, together with an affidavit in support which hopefully will provide a basis for the amendment sought, and that application and affidavit will need to be served and listed for hearing. The effect of that is a good deal of the time that was allocated today to advance this case has been wasted in dealing with that inappropriate affidavit filed by the husband. Thus, the issue of costs looms large, and I have an application for costs before me by both the wife and the other parties. Before I deal with that though, I confirm that I am still looking at listing this matter for trial in February or March. I am now told that instead of a five to 10‑day estimate it is possibly a trial which might last up to eight days, perhaps six to eight days, at this stage. That helps in terms of me being able to list the matter, but unfortunately I still cannot give a date for the commencement of the trial today.

8. The proposed application for leave to amend and the supporting affidavit need to be dealt with relatively quickly so that that does not impact upon the listing of this matter for trial, which I know is a concern to the parties, and particularly the wife, and also this court. Thus, I have identified a date in December when I can hear the proposed application and I will set up a regime for the filing of documents in relation to that proposed application.

9. On a separate issue, I omitted to make an order on the last occasion for the husband to file an updated financial statement. I propose to make an order for that to be filed in mid to late January.

10. Dealing with the issue of costs, the amount sought by the wife is $600, and the other parties seek an amount of $1400. Although Mr McGinn has not said it in the sense of conceding the point, as far as I am concerned there are clear circumstances which justify an order for costs in this case and I refer to s 117 of the Family Law Act 1975 in that regard and the factors that I have to take into account in determining whether there should be an order for costs as set out in s 117(2A). What Mr McGinn does suggest is that the amounts sought by the wife and the other parties are too high and he says that, on the scale, the amounts respectively should be about $200 to $220 for the wife and $750 to $760 for the other parties.

11. My position always in costs applications is to look to fix the costs where I can and not send the matter off to taxation and put the parties to further expense and delay. My approach, unfortunately, has to have some roughness and readiness about it for obvious reasons, for example, I do not have an itemised costs account in front of me and thus I need to do the best I can on the information that I have.

12. The next issue is time to pay, and Mr McGinn has sought two months. I would be concerned if time to pay extended beyond the likely trial date of this matter, and it seems to me that the costs should be paid before the trial commences. Two months would fit that bill. 

I certify that the preceding 12 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 6 November 2009.

Associate