Dinal and Tohim

[2009] FamCA 493

FAMILY COURT OF AUSTRALIA

DINAL & TOHIM [2009] FamCA 493

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Costs

Family Law Act 1975 (Cth)

APPLICANT: Mr Dinal

RESPONDENT: Ms Tohim

FILE NUMBER: MLC 46 of 2009

DATE DELIVERED: 2 June 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 2 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P.A. Marchetti

SOLICITOR FOR THE APPLICANT: Lampe Family Lawyers

THE RESPONDENT: Litigant in person.

Orders

1. That the application of the husband (as amended) be adjourned to 9.00am on 12 June 2009.

2. That the wife file and serve any response and affidavit material upon which she intends to rely by no later than 4.00pm on 9 June 2009 (including upon the husband’s lawyers).

3. That the wife pay the husband’s costs fixed in the sum of $1320 thrown away this day and the payment of such costs be stayed until the completion of the settlement of property as between the husband and the wife.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 46 of 2009

MR DINAL

Applicant

And

MS TOHIM

Respondent

REASONS FOR JUDGMENT

1. This is an application by the wife to adjourn proceedings which are part heard.  She did not participate on the last occasion and I adjourned the application to enable the husband to sort out some of the evidentiary matters that precluded the matter being concluded on that day.  The wife has attended today and handed me a number of documents which I will hand back so that they can be properly filed. 

2. The husband came along today with evidence to cure the problem on the last occasion and there are two paragraphs in the wife's affidavit handed to me today indicating that she disputes the husband's evidence. 

3. That evidence, unfortunately, is critical to this case because it is a question of whether or not the husband and the wife have been divorced according to Egyptian law.   In the circumstances, I think it is appropriate, having regard to the ramifications of any order that the court might make, for that evidence to be heard.     

4. Adjourning a proceeding like this, however, does not come without a cost. The husband has briefed counsel on the last occasion and again today. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides for a position under which each party pays their own costs. The court may depart from that rule if it feels it is justified in so doing.

5. When someone is aware of a particular application and effectively brings along evidence such as this that I have heard today, in my view it does justify the court departing from the rule that each party pays their own costs. If the court does depart from that rule it is obliged to take into account the matters set out in s 117(2A) of the Act, and I have taken into account the extremely modest assets. It would seem to me that the husband has very little by way of property and the wife seems to have the only equity that the parties have. I do not know exactly what that is, other than the fact that the husband said it is about $230,000. There is no financial statement from the wife on the court's file.

6. The wife points to the fact that she is a single parent living in a house which she inherited and she barely makes ends meet.  She lives on child support.  The question of payment of costs, however, can be ameliorated by making an order that the questions of those costs be paid out of any entitlement that the husband may have in the property settlement.

7. Counsel's fee is $1320 for the day.  I don't propose to allow the solicitors' costs having regard to the fact that that material will be used on the next occasion.  It seems to me that that is within the range of the scale, and in those circumstances, I propose to make an order that the wife pay the husband's costs of $1320 and that there be a stay of the payment until the determination of the property proceedings.

8. I am going to adjourn the proceedings until 9 am on 12 June 2009.

I certify that the preceding Nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  10 June 2009