POYZER & TRITTON

[2011] FamCA 515

FAMILY COURT OF AUSTRALIA

POYZER & TRITTON [2011] FamCA 515

FAMILY LAW - COSTS – where the wife seeks costs for legal expenses incurred in preparing for the hearing of the husband’s application – where the husband was not in attendance at the hearing due to sickness – where the husband has not had an opportunity to respond to the question of costs – orders that the question of costs be adjourned.

Family Law Act 1975 (Cth)

APPLICANT: Mr Poyzer

RESPONDENT: Ms Tritton

FILE NUMBER: ADF 1063 of 2001

DATE DELIVERED: 28 June 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 28 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: Mr Jordan

SOLICITOR FOR THE RESPONDENT: City East Legal

Orders

1. Paragraph 4 of the Order of the Honourable Justice Dawe dated 30 September 2010 is discharged.

1. The question of the wife’s application for costs of today’s hearing is adjourned to 8 September 2011 at 9.15 am before the Honourable Justice Dawe for further order with liberty to vacate that listing if the parties reach agreement on costs and both parties request the Case Coordinator to vacate the listing date.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1063 of 2001

Mr Poyzer

Applicant

And

Ms Tritton

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The material now provided to the Court, in particular the correspondence between the husband, his solicitors and the wife’s solicitors, indicates, firstly, that the wife was not aware until she received the application in the case and supporting affidavit of the husband, that the husband had made arrangements to leave Australia on 3 July.  The Application in a Case was filed on 20 June 2011. 

2. The chain of correspondence between the husband and the wife’s solicitors includes an indication that the wife had “no difficulty” with the husband and his forthcoming overseas travel, but was asking for particulars in relation to the parties’ son L. 

3. Notwithstanding those matters the husband made an application to the Court.  He does not attend today, but instead has sent correspondence to the Court by facsimile with a facsimile that has a date “5 February 2011” on the facsimile. 

4. I understand that the facsimile was received this morning, and therefore the date on the facsimile itself bears no resemblance to reality.  The letter is dated 27 June 2011, and is addressed to my Associate.  There is no suggestion that the husband was given permission to send any correspondence direct to my Associate. 

5. He has apparently had telephone communication with the Case Coordinator who required him to provide a Medical Certificate to explain his absence today.  The Certificate of Sickness received is dated 27 June 2011 at 19.18 which I presume means 18 minutes past 7.00 pm last night.  It comes from the cardiac section at Hospital 1, certifying that Mr Poyzer attended the cardiac section on 27 June 2011.  The note then reads “unable to attend Court 28/6 due to medical condition”.  Then it is apparently signed by Dr A.  That is the only information we have to explain the husband’s non-attendance today.

6. The response to an Application in a Case received by the Court this morning from the wife’s solicitors, seeks that the husband’s application be dismissed and that the husband pay the wife’s costs fixed in the sum of $1,250. 

7. Counsel before the Court this morning indicates that the orders which restrain the husband from leaving Australia and which were made on 30 September 2010 were suspended on 29 October 2010.  That is in fact the case.  The order of 29 October 2010 said in paragraph 4:

   “The injunction restraining the husband from leaving the Commonwealth of Australia be suspended on the condition that the wife received the payment of $200,000 on 9 November 2010.  And on condition that the husband return to the Commonwealth of Australia within 6 weeks of 11 November 2010.”

8. Paragraph 5 of that order is:

   “The Registrar is to deliver up to the husband his Australian and British passports upon proof of payment to the wife the said sum of $200,000.”

9. I am told from the bar table that the payment was made and the passports were returned by the Registrar to the husband.  There was no order requiring the husband to again deliver up the passports. 

10. It is clearly possible therefore for it to be perceived that the order of 29 October 2010 suspended the order restraining the husband from leaving Australia;  and that suspension still remains. 

11. The wife has been put to the cost of attending today and preparing answering documents.  Whilst not objecting to the husband travelling overseas, she has incurred the costs due to the timing of the husband’s application. 

12. In order to clarify the situation, I propose to discharge paragraph 4 of the order of 30 September 2010 which states:

    “Until further order is made by this Court or the full Court the husband is restrained from leaving the Commonwealth of Australia and within 14 days the husband to deliver up to the registry manager of the Family Court of Australia, Adelaide Registry, his British and Australian passports.”

13. Paragraph 4 of 30 September 2010 is clearly an order made until further order.  The order made on 29 October 2010 was such another order.  Therefore I accept counsel for the mother’s interpretation that the order of 30 September 2010 paragraph 4 is no longer in force.  I make it clear however that simply by way of clarification the order of paragraph 4 of 30 September 2010 is now discharged. 

14. As to the question of costs prima facie I accept the argument of the wife’s counsel that the order for costs should be made in favour of the wife.  However, the Medical Certificate provided by the husband raises the issue of fairness being done to the husband in allowing him to respond to the question of costs.  Of course by adjourning the question of costs thus leaves open the question of the husband being liable for a further amount of costs when it comes to argue the question of costs. 

15. I propose to adjourn the wife’s application for costs of this particular issue.  It would appear that due to the lack of urgency of that matter I would have to adjourn it to September 2011.  But I would propose to grant liberty to vacate the order on the parties reaching agreement as to the costs. This might avoid the necessity of incurring further costs to argue the question of costs. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 28 June 2011.

Associate: 

Date:  1 July 2011