LASKARI & LASKARI

[2013] FamCA 18

FAMILY COURT OF AUSTRALIA

LASKARI & LASKARI [2013] FamCA 18

FAMILY LAW – PRACTICE AND PROCEDURE – Short service of an application in a case – Where such service allowed no time for proper consideration of the application.

APPLICANT: Mr Laskari

RESPONDENT: Ms Laskari

FILE NUMBER: SYC 450 of 2010

DATE DELIVERED: 25 January 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 25 January 2013

Orders

1. That the Application filed by the Husband on 24 January 2013 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Laskari & Laskari 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 SYDNEY

FILE NUMBER: SYC 450/2010

Mr Laskari

Applicant

And

Ms Laskari

Respondent

REASONS FOR JUDGMENT

Introduction

1. This application is a review of a Registrar’s decision made yesterday to refuse an application by Mr Laskari (the husband) seeking short service of an application. The application sought orders directed to the wife Ms Laskari (the wife) requiring her to make the former matrimonial home, in which she presently resides, open for inspection to potential purchasers for four hours on Saturday 26 January 2013, and to require her to provide written approval for certain advertising material to be loaded up on the agent’s website.

2. This matter is listed for hearing before Justice Le Poer Trench on 18 February 2013 for 10 days. On 24 August 2012, his Honour noted that the husband and wife agreed that the Suburb B property would be listed for sale from the date 7 days after the child S’s last HSC exam, provided such date was not later than 15 November 2012. Apparently on 12 December 2012, an order was made allowing access to the property to the husband to enable beautification, which has occurred.

3. Agents have been engaged to sell the property, and on 5 December 2012 the wife informed the agent the date for the auction should be 23 February 2013. On 21 January 2013, the husband sent an email to the wife concerning an email that the wife had sent to the agent (that email was not annexed to the affidavit of the husband). In the husband’s email to the wife, he asked for confirmation that the house would be available for showing this coming weekend, and that if that written confirmation was not given, he would urgently file an application forcing her to make the house available. If there was a response to that email, it is not annexed to the husband’s affidavit.

4. At 3.59 p.m. on 22 January 2013, the husband sent another email to the wife, seeking her written confirmation by 4.00 p.m. on the same day that she would make the property available for showing on the coming Saturday, or an urgent application would be filed on Wednesday.

5. Again, if there was a response to that email, it has not been put before the Court.

6. Annexed to the affidavit are two emails from two of the agents referring to the desirability of the house being open for inspection on 26 January 2013 if the auction is to proceed on 23 February 2013, although there is a suggestion in one of the emails from the husband to the agents that his wife has suggested the auction be held on 2 March 2013. Finally, the affidavit expresses the view that it would be advantageous for the auction to be held before the conclusion of the proceedings before Le Poer Trench J.

7. The application for short service came before a Registrar of this court yesterday and was refused. The application for review was heard this morning in chambers. I refused the application because:

   a)There was no adequate explanation given as to why the application for short service was not made earlier in the week;

   b)The late application for short service meant that there would be no reasonable time for the wife to consider the application, take advice from solicitors if she saw fit, and to appear at a hearing, which would, necessarily, have taken place some time this afternoon. Hence the notice to her would have been very short and too short in my opinion;

   c)The subject matter of the application does not involve any issues of substance. No substantive rights of the parties will be affected if the property is not shown to the public to potential purchasers this coming weekend; and

   d)The subject matter of the application was not grave enough to justify a hearing at very short notice.

8. For these reasons, I decline to allow short service of the application.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 25 January 2013

Associate: 

Date:  25 January 2013