Elton and Batey-Elton

[2010] FamCA 105

FAMILY COURT OF AUSTRALIA

ELTON & BATEY-ELTON [2010] FamCA 105

FAMILY LAW – REVIEW – Review of Registrar’s decision about directions for trial – Review rendered unnecessary by new trial directions – Application dismissed

Family Law Act 1975 (Cth)

APPLICANT: Mr Elton

RESPONDENT: Ms Batey-Elton

FILE NUMBER: TVF 2250 of 2004

DATE DELIVERED: 15 February 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Cronin J

HEARING DATE: 15 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Page SC

SOLICITOR FOR THE APPLICANT: Rod Madsen

THE RESPONDENT: In person

Orders

1. That the wife’s application under s 79A of the Family Law Act 1975 (Cth) be adjourned to 27 April 2010 for final hearing before me.

2. That the husband’s response to the s79A application and his application seeking summary dismissal filed 27 October 2008 be adjourned to 27 April 2010 before me.

3. That by 4.00pm on 26 February 2010 the wife if she be so advised, serve upon the solicitor for the husband a set of questions (up to Twenty in number) relating to the facts in dispute between the parties, enabling the husband to file a response thereto by 12 March 2010.

4. That the response of the husband to any such questions be filed and served by 4.00pm on 12 March 2010.

5. That paragraphs 1 and 3 of the application in case filed by the wife on 10 February 2010 is formally withdrawn.

6. That the application of the wife filed 10 February 2010 by way of review of Registrar Kane’s orders of 2 February 2010 is dismissed.

7. That the Case Management Judge for the Brisbane Registry appoint a registrar to case manage the proceedings pending hearing on 27 April 2010.

8. That the appointed registrar have power to extend the times for filing of affidavits by both parties but not such as to prevent the final hearing commencing on 27 April 2009.

9. That the application of the husband filed 31 March 2009 is withdrawn.

10. That the wife file and serve on the solicitor for the husband, any affidavit upon which she wishes to rely by 4.00pm on 19 March 2010.

11. That the husband file and serve any further material upon which he wishes to rely by 4.00pm on 16 April 2010.

12. That by 4.00pm on 22 February 2010, but not thereafter, the wife have leave to inspect the documents produced under subpoena by the National Bank of Australia (No 18 dated 13 November 2007) together with any other subpoenaed documents provided, within the precincts of the Court and for that purpose, Mr B be and is hereby precluded from attending.

13. That the registrar provide to the wife a copy of the affidavit of Mr R Madsen filed 31 July 2007.

14. That by 4.00pm on 26 February 2010 to the extent that they exist, the husband provide to the wife tax returns for:

    (a)himself;

    (b)C Company;

    (c)Elton Family Trust

    relating to the periods ending 30 June 2004, 2005 and 2006.

15. That in addition, the registrar issue any subpoenae requested by the wife provided she can establish apparent relevance to the issues in dispute as discussed this day.  In the event that the Registrar is in doubt as to whether or not to issue such subpoenae, the matters be referred to me for hearing and determination.

16. That the husband’s costs of this day be reserved to the trial judge.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: TVF 2250 of 2004

MR ELTON

Applicant

And

MS BATEY-ELTON

Respondent

REASONS FOR JUDGMENT

1. On 10 February 2010, Ms Batey-Elton, to whom I shall refer in these reasons as “the wife,” filed two applications.  The first of those applications related to an adjournment of these proceedings and other orders, and at her request I will mark paragraphs 1 and 2 of those applications, “Withdrawn.”

2. The second application filed the same day, appears to be a review of a decision made on 2 February 2010 by Registrar Kane. 

3. Chapter 18 of the rules provides that an application to review a deputy registrar’s decision, and Registrar Kane fits within that description, must be filed within seven days.  This is effectively filed a day late. Be that as it may, even if I was to grant the wife an extension of time to pursue that application, it could not advance the matter much further but I propose to give the wife leave to make the application out of time. 

4. What Registrar Kane was doing on 2 February was conducting a compliance hearing.  No one really has a clear definition of what a compliance hearing is, but, on any view, the registrar has, according to the wife, limited matters to recent directions orders and refused to hear various grievances about non-compliance with various orders over the life of this litigation.  That litigation includes complaints by the wife about a lack of discovery and so forth. 

5. At some length today I have gone through this matter and am about to make directions for trial. Despite the wife’s request for a directions hearing, I propose to make the directions myself and to have the matter readied for trial in April.  There is no point in me, therefore, on a de novo basis, dealing with the matters that the registrar heard on 2 February.  Effectively, therefore, I am in fact making the orders along the lines of what the wife desired namely to enable her access to documents and subpoenae.  There is no basis, therefore, for me to do anything other than to dismiss the wife’s application as it is satisfied by the orders I now make. 

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  18 February 2010