Czeb and Czeb
[2010] FamCA 310
•15 April 2010
FAMILY COURT OF AUSTRALIA
| CZEB & CZEB | [2010] FamCA 310 |
| FAMILY LAW – REVIEW – Application for review of Registrar’s orders refused |
| APPLICANT: | Mr Czeb |
| RESPONDENT: | Ms Czeb |
| FILE NUMBER: | SYC | 7329 | of | 2008 |
| DATE DELIVERED: | 15 April 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Cohen J |
| HEARING DATE: | 15 April 2010 |
REPRESENTATION
| APPLICANT: | By telephone |
| SOLICITOR FOR THE RESPONDENT: | Ms Hallis, PIGOTT STINSON |
Orders
That the husband’s application for review of Registrar Crawford’s orders dated 16 February 2010 in regard to filing an affidavit in reply of the wife’s affidavit filed 5 February 2010 is dismissed.
That leave is granted to the husband to file an amended response together with an amended affidavit within 14 days.
That that the wife shall provide the husband within 14 days with her three most recent Tax Returns and Tax Assessments and is hereby granted leave to obscure any information on the documents provided which may identify her employer, her work address or her home address.
That that the wife shall provide the husband within 14 days with all documentation in relation to her superannuation interests and is hereby granted leave to obscure any information which may identify her employer, her work address or her home address.
That the wife’s solicitors shall provide the husband a written statement of the conditions of the wife’s employment in a manner which does not identify the wife’s employer, her work address or her home address.
That the wife’s solicitors shall provide the husband with a statement of the benefits and entitlements of the wife’s employment since 2006 in a manner which does not identify the wife’s employer, her work address or her home address.
That the following issues in the application of the husband are stood over to a date to be fixed before Judicial Registrar Johnston:
a)Request to adduce evidence from a transcript;
b)Request to adjourn the hearing until after the decision of the New South Wales Court of Criminal Appeal on the husband’s appeal against his conviction for attempting to murder the wife: and,
c)Request by the husband to attend in person.
That the matters stood over to the Judicial Registrar, as mentioned above, are to be initially listed for mention only before him so he can determine whether or not to have a separate preliminary hearing of these matters or wishes to deal with them at the commencement of the final hearing.
IT IS NOTED that publication of this judgment under the pseudonym Czeb & Czeb is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 7329 of 2008
| MR CZEB |
Applicant
And
| MS CZEB |
Respondent
REASONS FOR JUDGMENT
In these proceedings, the husband has asked for a number of orders by his application filed on 18 March 2010. I propose to deal with each of the orders he has sought individually, because that is the most convenient thing to do. The first of his applications is a review of the decision of Registrar Crawford, which was made on 12 February, in which the husband sought to file an affidavit in reply to the wife’s affidavit. Registrar Crawford refused the application and, in doing so, he relied upon the Rules of Court. This is a rehearing, so I am not really concerned with Registrar Crawford’s reasons for refusing the husband’s application.
The husband has made submissions to me in writing. I have read them, and, in my opinion, they confirm the very good sense that is contained in the rules to the extent that they do not allow affidavits in reply. The purpose is, essentially, to prevent people from filing affidavits in reply because they over‑complicate and extend the issues in relation to irrelevancies or matters which are insufficiently relevant. The need to reply can be dealt with at the hearing, and, in those circumstances, the Court can control the amount of material that is put before it, and, therefore, prevent undue prolixity in litigation. I am of the view that, in this particular instance, the Rules should be upheld, and that the husband should not be given leave to file an affidavit in reply. He has, in fact, provided no reasons why he should be allowed to provide such an affidavit.
I shall refuse that application.
The next application that the husband makes is to file an amended response to the wife’s initiating application sworn on the 9th and filed on 19 August 2009, together with an amended affidavit by himself. He has already filed an affidavit of 20 January 2010, on 9 February 2010. I can see no reason why, at this early stage, the husband should not be permitted to file an amended affidavit, together with an amended response to the wife’s application, provided each is filed within 14 days of today. The husband should understand that he will be allowed to rely upon only one affidavit from himself, so his amended affidavit should contain all of the evidence that he, himself, wishes to give by way of his personal affidavit. I shall allow paragraph 2 of the application to the extent that the husband will be permitted to file his own amended affidavit and his own amended response.
The next application the husband makes is that the wife comply with the rules as to disclosure. He seeks that she file copies of her three most recent tax returns and assessments, documents about her superannuation interest, about the conditions of her current employment and any benefit or entitlement from her present or past employments since 2006, that she either has received or might receive.
The wife’s opposition to this is a very simple one. It is that she has great fear of the husband. She says she fears him because he has been convicted of attempting to murder her and that that is a proper basis for her not wishing to provide the husband with documents which would reveal her living circumstances, or working circumstances; meaning, where she lives and where she works. The wife’s solicitor, however, is quite content to provide the necessary material if it can be altered to the extent, and only to the extent, that it does not identify her address or her employer. In my view, that is a perfectly reasonable stance to take in the circumstances.
The next thing that the husband seeks is to be permitted to rely upon evidence contained in statements and transcripts from the attempted murder trial in which the husband was ultimately convicted. It’s my view that this is a matter for the trial judge or, in this case, a judicial registrar, and I shall stand that application over to be dealt with by the judicial registrar who hears the matter to finality.
The next claim that the husband makes is to vacate the hearing until after an appeal that he has filed, or intends to file, against his conviction is heard. This, too, in my view, is a matter for the judge or judicial registrar who is to hear the matter. He will be in a better position to know whether the outcome of that appeal is so intrinsically important in the determination of the issues between the parties that the trial should be adjourned until that outcome. It may be that it is possible to hear the proceedings in part, then adjourn them pending the outcome of the husband’s appeal. I shall stand that matter over to the judicial registrar.
Finally, the husband seeks to attend the final property and maintenance hearing in person. This, too, is a matter which should be dealt with by the judge or judicial registrar who hears the matter. Each judge is entitled to, and, in my experience, may well have a different opinion about how to deal with people who have problems with appearances in person including people who are afraid of the other party. This is a matter which should be dealt with by the Judicial Registrar, so I shall stand this matter over to the judicial registrar that is going to hear the matter.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen
Associate:
Date: 23 April 2010
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