Harris and Sloane

[2007] FamCA 1140

FAMILY COURT OF AUSTRALIA

HARRIS & SLOANE [2007] FamCA 1140

FAMILY LAW - REVIEW - Application brought by husband to review an order of a Registrar for costs associated with the appointment of an expert witness - Application made out of time - Furthermore, there appeared to be difficulties as to service - Husband sought adjournment which was refused - Husband elected to withdraw application - In the result, application was dismissed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 Rule 15.5 and 18.06(1)

APPLICANT: Mr Harris

RESPONDENT: Ms Sloane

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 6081 of 2003

DATE DELIVERED: 31 August 20007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 31 August 2007

REPRESENTATION

THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT: Marshalls & Dent

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Bowlen Dunstan & Associates Pty

Orders

1. That the Form 2 Application in a Case filed by the husband on 17 August 2007 be dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 6081 of 2003

MR HARRIS  

Applicant

And

MS SLOANE  

Respondent

REASONS FOR JUDGMENT

1. In this matter, the husband has caused to be filed a Form 2 Application in a Case on 17 August 2007.  By that application he sought a review of a decision by Registrar Sikiotis on 20 July 2007. 

2. On that day the learned Registrar ordered that the husband be responsible for payment of three‑quarters of the costs to be incurred by a single expert for the preparation of a welfare report and the wife be responsible for payment of one quarter of those costs.  The husband, aggrieved by the order, sought that the costs of the single expert witness be shared equally.  The order that was made by the learned Registrar was entered into the record on 20 July 2007. 

3. It appears to me, and I discussed this with the husband, who appeared in person, that there was a question of whether or not he was within time for the filing of his application for review. Rule 18.08 of the Family Law Rules 2004 (as amended) prescribes through Table 18.6, the time within which applications must be made when dealing with orders for review. Item 4 of Table 18.6 deals with orders made by a Judicial Registrar, Registrar or Deputy Registrar exercising a power delegated under Rule 18.06. The time within which such an application must be made is seven days after the Judicial Registrar, Registrar or Deputy Registrar has made the relevant order.

4. Item 4, as I said, deals with the delegated power under Rule 18.06.  Rule 18.06(1) provides for the delegated power of the Deputy Registrars and in particular Item 31 by reference to Rule 15.5 as a provision of the Rules, prescribes the power to make an order “in relation to” the appointment of an expert witness and expert evidence.  It appears to me from a plain reading that must include an order relating to the appointment of an expert witness and subsidiary orders arising therefrom, for example, associated costs. 

5. In my view the husband’s Application ought to have been filed within seven days of the order made by Registrar Sikiotis.  I discussed that issue with the husband and from which he drew no dissent other than to indicate that he had not addressed the issue and "thought" it was a time frame of 28 days within which he could file his Application.  The husband did not seek to argue the issue nor seek to make an oral application for an extension of time. 

6. With that said, I addressed the husband as to whether or not he had effected service of his Application upon the solicitors for the wife and the Independent Children's Lawyer.  He referred me to an affidavit of service in respect of each of those parties in which he deposed that the documents were served by “electronic communication”. 

7. It concerned me that there was no appearance by and on behalf of the practitioners for the wife or the Independent Children's Lawyer, in which circumstances I had my court officer telephone each of the practitioners to inquire whether or not they were interested in the outcome of the husband’s application this day.  I am informed by my court officer, and which I unreservedly accept, that they were quite unaware of the Application.  When I returned to court I raised this issue with the husband at which time he sought an adjournment on the basis I proposed to adjourn the matter over to 2.15 pm this day in order to give time for the solicitors for both the wife and the Independent Children's Lawyer to attend court to explain their absence.  

8. The husband however explained that he had “commitments” this afternoon and would be unable to attend.  I proposed as a matter of procedural fairness, that the practitioners for both the wife and the Independent Children's Lawyer, in the light of the communication I had received, should be heard on the issue and also on the Application.  The husband again made it clear then that he could not attend court in the afternoon and elected to “withdraw” his application. 

9. At that particular point of time, I indicated to the husband that in the circumstances it would be preferable to adjourn the matter to 2.15 pm in order to hear from the practitioners for the wife and the Independent Children's Lawyer and that I was not inclined to either adjourn the Application nor simply to have it withdrawn.  Following further discussion with the husband, he agreed to the Application being dismissed.  This I will do.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate

Date:  19 September 2007