Morton and Morton (No. 2)

[2008] FamCA 855

FAMILY COURT OF AUSTRALIA

MORTON & MORTON (NO. 2) [2008] FamCA 855

FAMILY LAW – COSTS – Application for extension of time to seek costs

Family Law Rules 2004 r 1.14

Clivery & Conway [2007] FamCA 1435

APPLICANT: Ms Morton

RESPONDENT: Mr Morton

FILE NUMBER: MLC 9844 of 2007

DATE DELIVERED: 1 September 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Watt J

HEARING DATE: By written submission

REPRESENTATION

SOLICITOR FOR THE APPLICANT: David Stagg Tonkin & Co

SOLICITOR FOR THE RESPONDENT: Aitken Partners Pty Ltd

Orders

1. I dismiss the wife’s application filed 6 May 2008.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9844  of 2007

MS MORTON

Applicant

And

MR MORTON

Respondent

REASONS FOR JUDGMENT

Application for extension of time to file costs submissions

1. In this matter, the husband instituted proceedings for property settlement in this court after the wife had, to his knowledge, already instituted proceedings in an English court seeking property settlement, spousal maintenance, and divorce.

2. The wife sought a stay of the husband’s proceedings in this court and in response, the husband sought an order restraining the wife from continuing with her proceedings in the English court. The case turned on whether the Family Court of Australia was a clearly inappropriate forum and I found that it was so.

3. On 10 January 2008 I granted the order sought by the wife staying the husband’s proceedings in this court, being satisfied that this court was a clearly inappropriate forum for the determination of the parties’ property proceedings. I gave reasons orally, indicating that they would be published when revised.

4. A major factor in my decision was that the English court in which the wife had instituted her proceedings had jurisdiction to make a pension sharing order in respect of the superannuation entitlements of the husband accumulated while he was a serving member of the UK armed forces during the marriage, but the Family Court of Australia could not, as I found, make a splitting order that would bind the UK trustee of that fund: see my reasons for judgment published on 7 March 2008 in this matter. There has been no appeal against that judgment.

5. On 18 March 2008 the wife’s solicitors wrote to my associate advising that the wife wished to make application for her costs of the proceedings before me. The letter sought direction as to whether the application should be made at an oral hearing, or based on written submissions. If the latter, the wife proposed the following timetable:

   1.That the applicant wife provide written submissions as to costs within 21 days;

   2.That the respondent husband respond within 14 days;

   3.That any reply of the applicant wife be delivered within a further 7 days.

6. In response to this letter, a telephone mention was listed for 9.30am on 27 March 2008, and the parties’ solicitors…