Dawe and Short (No 2)

[2018] FamCA 907

FAMILY COURT OF AUSTRALIA

DAWE & SHORT (NO. 2) [2018] FamCA 907

FAMILY LAW – PRACTICE AND PROCEDURE – Application for adjournment of interim hearing, pending the outcome of an appeal – Adjournment granted on the basis that the mother has recently retained legal representatives, who require further preparation to meet the application – Where the mother has not provided an explanation as to why she did not earlier retain legal representatives – Court orders that the mother pay the father’s costs thrown away as a result of the adjournment.

APPLICANT: Ms Dawe

RESPONDENT: Mr Short

FILE NUMBER: SYC 4480 of 2018

DATE DELIVERED: 15 October 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 15 October 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Barry Nilsson Lawyers

COUNSEL FOR THE RESPONDENT: Ms Eldershaw

SOLICITOR FOR THE RESPONDENT: Barkus Doolan

Orders

THE COURT ORDERS THAT:

1. The matter be adjourned to 14 December 2018 at 9:30am.

2. On a “without prejudice” basis, the mother respond to the father’s proposed mirror orders, within 14 days, with a view to identifying any areas of disagreement.

3. Pursuant to section 13C of the Family Law Act 1975 (Cth), the parties attend family dispute resolution or any other dispute resolution service that they may agree upon.

4. For the purpose of order 3 herein, within 7 days, the mother provide the father the names of three potential dispute resolution providers and within a further 7 days, the father select from that list the service provider to undertake the dispute resolution between the parties.

5. The parties are to share equally the costs of the relevant dispute resolution provider.

6. Within 28 days or such other time as the parties agree, the mother pay the costs thrown away by today’s adjournment, as assessed.

THE COURT NOTES THAT:

A.The parties are invited to consider, for the purposes of order 3 herein, engaging the services of International Social Services Australia to provide mediation services in respect to the issues in dispute.

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 Dawe & Short (No 2) 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: SYC 4480 of 2018

Ms Dawe

Applicant

And

Mr Short

Respondent

EX TEMPORE JUDGMENT

1. By orders made on 17 September 2018, I dismissed the mother’s application to vary orders made by the Family Court in the United Kingdom (“the UK Family Court”) on 15 June 2007.  The relevant background to this matter is set out in my Reasons for Judgment published on 17 September 2018.

2. Since that judgment was delivered, the mother has, by an Application in an Appeal filed on 11 October 2018, applied for an order to expedite her appeal against the dismissal of her interim application to vary those parenting orders.

3. The matter before me today concerns an application by the father to obtain orders from the Family Court of Australia that mirror the orders made by the UK Family Court. 

4. The mother has applied for an adjournment of today’s proceedings and I have granted that adjournment.  However, I make an order for costs against the mother for the following reasons.

5. By email sent to the father’s solicitors dated 10 October 2018 (Exhibit “A”), the mother requested an administrative adjournment of today’s proceedings.  That email essentially sought the adjournment of today’s proceedings pending the outcome of an appeal that the mother had filed and also to allow the father time to respond to the mother’s application for a stay of the orders being appealed against. 

6. I accept the advice of Counsel for the father that her client did not require any time to respond to the stay application or to consider the content of the Notice of Appeal and sought to press his application, which is before the Court today. 

7. The solicitor for the mother has read onto the transcript the content of an email sent by the mother to the father’s solicitors on 12 October 2018, which repeated the request for an administrative adjournment and indicated that the mother did not have sufficient time to reply to the Affidavit of the father filed on 11 October 2018.  The mother’s appeal documents were attached to that email. 

8. In terms of the mother’s inability to respond to the father’s Affidavit in time for today’s hearing, I accept the submission of Counsel for the father that it may well have been that the matter could have proceeded without the Affidavit of the father being read in these proceedings. 

9. The mother further advised the Court that she wished to rely upon a report from a paediatrician that the child has now attended.  The mother advised that she had only been able to arrange an appointment for the child with that paediatrician on 3 October 2018. 

10. The basis upon which I have granted the adjournment application is the fact that the solicitor for the mother was only retained last Friday, 13 October 2018, and in circumstances where the matters concerned in these proceedings are relatively complex, the solicitor for the mother has not had sufficient time to become fully appraised of the relevant issues and advise the mother in the context of instructions she has received.

11. However, the mother has not adequately explained why she left it so late to retain legal representation. If the mother had acted more expeditiously, the mother’s solicitor would have had the opportunity to become aware of the matters in issue and to obtain appropriate instructions. 

12. In those circumstances, it is appropriate for the mother to pay the costs that have been thrown away as a result of the adjournment of today’s hearing. 

13. I am not in a position to determine the reasonableness of the costs sought by the father, being $6,600.  Accordingly, I order that the costs should be those which are agreed or taxed.  I will order that the costs are to be paid within 28 days of that occurring. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 15 October 2018.

Associate: 

Date:              8 November 2018