Dometis and Dometis

[2009] FamCA 266

FAMILY COURT OF AUSTRALIA

DOMETIS & DOMETIS [2009] FamCA 266

FAMILY LAW – PRACTICE AND PROCEDURE – Case Management – Leave to file – Form 10 – Application – Dismissal – Costs awarded

Family Law Act 1975 (Cth)

APPLICANT: Mr Dometis

RESPONDENT: Ms Dometis

FILE NUMBER: MLC 10972 of 2007

DATE DELIVERED: 6 April 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 6 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Holmes

SOLICITOR FOR THE RESPONDENT: Grice & Grice

ORDERS

IT IS ORDERED:

1. THAT the applicant in a case issued by the husband on 16 March 2009 be dismissed.

2. THAT the husband have leave to make, file and serve a further application in a case supported by an appropriate and detailed affidavit.

3. THAT within thirty (30) days the husband pay or cause to be paid to the solicitors for the wife a sum of $1,600 in payment of the brief fee of counsel in the proceedings this day.

4. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the wife.

IT IS NOTED

A.THAT the husband filed a Notice of Discontinuance on Friday 3 April 2009, most likely as a genuine mistake, as he intended to file an amended application and that Form 10 Notice of Discontinuance is not to be taken as his concluding all proceedings before the court.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10972 of 2007

MR DOMETIS

Applicant

And

MS DOMETIS  

Respondent

REASONS FOR JUDGMENT

1. The matter of Dometis is before the court in the Judicial Duty List. The husband appears in person.  Mr Holmes of counsel instructed by the law firm Grice and Grice solicitors appears for the wife.  The wife is not present at court today.

2. The actual application of the husband was filed 16 March 2009.  What was sought was an urgent hearing and for a payment of $30,000 to be paid to the husband from the joint interest-bearing account held with the Commonwealth Bank in joint names.

3. The affidavit in support is brief but highlights that the wife has previously received a payment of $25,000 pursuant to an order made by Dessau J on 12 November 2007.  That payment was made by consent.  Additionally, at that time, a sum in excess of $10,000 was paid out to the husband.  The balance of moneys in that joint account is now approximately $209,000.  The husband seeks a payment for the reasons set out in the affidavit, and although he now acts for himself it would seem that the payment is largely to meet past legal costs or other expenses of and related to this hearing.

4. The facts would appear that the solicitors for the wife prepared a response and affidavit material and that was faxed to the husband, either late Thursday or on Friday, at a date and time of which I have no evidence. The husband's evidence which I accept is that he was working on Friday and when he returned from work, he received in the mail the wife's documents.  What is undisputed is that, at between court hours, on Friday, 3 April, the husband filed a Form 10 Notice of Discontinuance with the court.  The husband explains his actions on the basis that he did not intend to discontinue his application but wanted to subsequently file an amended increase the sum of $30,000 to that which he said he now needs or should be paid.  The husband has filed no other affidavit and intends to file a fresh further application and affidavit hereafter.

5. The solicitors for the wife had already briefed and Mr Holmes of counsel as of Friday, was appearing in this matter.  His brief fee is $1,600, including GST.  The sum claimed for the solicitors is $1,500 for preparation of documents.  The reality is that those documents can and will be used in the continuing proceedings as this matter proceeds before the court.  The costs of preparation, therefore, are not wasted and I reject the submission of Mr Holmes that those costs be paid today.

6. What I intend to do is to strike out the existing application in a case because it does not accurately reflect the moneys that the husband now seeks.  I will, however specifically empower him to reissue a further application in a case, supported by a proper, full and detailed affidavit explaining where the moneys are to be spent, his full liabilities and why it just and proper for these moneys to be awarded as security for costs or any other basis that a trial judge may deem appropriate.

7. I will make a costs order in the sum of $1,600. I formally declare, pursuant to section 117 of the Family Law Act 1975, that such an order is just. I have regard to the factors pursuant to subsection (2A) of that section. The husband must have known that his application would be opposed and to discontinue on Friday was both inaccurate and unreasonable in the circumstances. I am told the husband is in secure, responsible and full‑time employment and there are both property and children's issues before the court. I make no judgment whatsoever on any of those matters as the court file is substantially incomplete.

8. I will make interim orders.  I will have these short reasons delivered extempore, transcribed and placed upon the court file and made available to the parties.

I certify that the preceding paragraphs are a true copy of the reasons for judgment herein of The Honourable Justice Young

Associate

Date: 6 April 2009