Hedger and Hedger

[2014] FamCA 624

FAMILY COURT OF AUSTRALIA

HEDGER & HEDGER [2014] FamCA 624

FAMILY LAW – PROCESS AND PROCEDURE – adjournment – hearing timetable – subpoenae – case management – costs

Family Law Act 1975 (Cth)

APPLICANT: Ms Hedger

RESPONDENT: Mr Hedger

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 2579 of 2013

DATE DELIVERED: 7 July 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 7 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr L. Glick QC

SOLICITOR FOR THE APPLICANT: Gadens Lawyers

COUNSEL FOR THE RESPONDENT: Mr O’Shannessy

SOLICITOR FOR THE RESPONDENT: Berger Kordos Lawyer

Orders

1. ALL APPLICATIONS ARE ADJOURNED AND FIXED FOR FINAL HEARING before the Honourable Justice Cronin as the 1^st  case in the monthly list commencing at 10.00am on 4 December 2014 as a three day matter.

2. The evidence in chief of all witnesses shall be given by affidavit.

   TIMETABLE:

3. By 4 pm on 7 November 2014 the applicant file and serve upon all other parties:

   (a)an amended application setting out with precision the orders to be sought;

   (b)       all affidavits of evidence to be relied upon; and

   (c)       a financial statement.

4. The applicant pay all required court fees by 4 pm on 7 November 2014.

5. By 4 pm on 21 November 2014 the respondent file and serve upon all other parties:

   (a)an amended response setting out with precision the orders to be sought;

   (b)       all affidavits of evidence to be relied upon; and

   (c)       a financial statement.

6. By 4 pm on 28 November 2014 the applicant file and serve any affidavit in reply.

7. Without leave of the Court, any affidavit filed beyond the timetable set out in these orders may not be relied upon.

   SUBPOENAE

8. All parties have leave to issue subpoenae for the production of documents. If a party is represented by a legal practitioner, the registrar shall, upon the certification of the legal practitioner, be satisfied as to relevance.

   CASE MANAGEMENT

9. The registrar may vary the filing timetable under these orders.

10. If a party fails to comply with these orders, a party who has complied may file an application in a case supported by an affidavit seeking to proceed on an undefended basis.

11. Any rulings required on objections to evidence shall be set out in the case outline.

12. By 4 pm on 2 December 2014 all parties file electronically to …  a case outline in one document setting out:

    (a)       a concise set of orders to be sought;

    (b)       the list of the affidavits to be read;

    (c)       the list of objections to evidence requiring a ruling;

    (d)       the outline of the issues in dispute; and

    (e)       a list of assets and liabilities.

COSTS

1. At the commencement of the hearing, each party shall provide the court with a statement setting out their costs incurred to that date, the source of any payments made and what costs are expected until the completion of the hearing.

2. That the husband pay the wife’s costs fixed in the sum of $2960 with a stay of 14 days for payment.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hedger & Hedger has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2579 of 2013

Ms Hedger

Applicant

And

Mr Hedger

Respondent

REASONS FOR JUDGMENT

1. This is an application for costs by the wife. Section 117 of the Family Law Act (Cth) (“the Act”) provides that in this Court each party shall bear their own costs unless there are circumstances that justify a departure from that principle. If the Court is contemplating a departure from the principle on such a justifying ground, then it must contemplate the matters set out in s 117(2)(a) of the Act.

2. On 1 July, the husband had had something like four or five weeks to file his material, and the request for the matter to be relisted on the basis that he could not meet the deadline was brought on urgently.  The wife, for good or bad, had no choice but to respond to the husband’s application, and therefore she incurred costs which I fixed on 1 July because they were not disputed.

3. It seems to me, this is a case where there is a justifiable reason to make an order for costs.  That said, I take into account the parties’ respective financial positions.  It would be hard for me to find that these people are impecunious.  There are no legal aid considerations.  It is quite clear that one of the factors in this case is the noncompliance with court orders.  In my view, it’s appropriate the husband pay the wife’s costs of $2960. 

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 7 July 2014.

Associate: 

Date:  4 August 2014