Rafter and Rafter (No. 2)

[2012] FamCA 644

FAMILY COURT OF AUSTRALIA

RAFTER & RAFTER (NO. 2) [2012] FamCA 644

FAMILY LAW – COSTS APPLICATION – Adjournment based on medical grounds

APPLICANT: Ms Rafter

RESPONDENT: Mr Rafter

FILE NUMBER: BRC 9414 of 2008

DATE DELIVERED: 21 June 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE: 21 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Galloway

SOLICITOR FOR THE APPLICANT: Rostron Carlyle Solicitors

SOLICITOR FOR THE RESPONDENT: Ms King
K L King & Associates

Orders

IT IS ORDERED

1. The wife’s application for costs filed 12 June 2012 is adjourned and be relisted for hearing at 10.00am on Tuesday 14 August 2012.

2. Any material to be relied upon by the husband must be filed and served by 4.00pm on Tuesday 7 August 2012.

3. Any material by the wife strictly in response to the husband’s material (if any) must be filed and served by 4.00pm on Thursday 9 August 2012.

AND IT IS ORDERED BY CONSENT

1. Any medical reports in relation to the husband may be annexed to an affidavit of the husband or his legal representative without the need for the preparing and filing of affidavits by any such medical practitioners.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rafter & Rafter (No. 2) 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 BRISBANE

FILE NUMBER: BRC 9414 of 2008

Ms Rafter

Applicant

And

Mr Rafter

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. Having heard the application by Ms King, Solicitor, for Mr Rafter, for adjournment of the wife’s costs application today I feel compelled to grant it. 

2. When I set the timetable on 4 June 2012 for the costs application to be heard today I was aware on that date that it would be a tight schedule, but as I have said earlier today, available on transcript if required, I endeavoured to have the matter disposed of by today rather than the matter having to go into July and drag on, as it were.

3. However there are two reasons why I am compelled to grant the adjournment.

4. The first is that unfortunately with the best intentions of Mr Atkinson, Solicitor for the wife the first part of the timetable was not met. Mr Atkinson did two “all-nights” in order to meet the deadline for the material for the costs application, which was only 8 days after my judgment. The judgment itself was extensive, covering about four or five or six different applications and cross-applications.  The matter also has had, unfortunately, a long history. It is quite understandable, thus, that the material was not able to be served by 12 June, the due date.  It was posted by express post, as I find by reference to the affidavit of service, on that date, and likely to have been in the husband’s PO box address for service the following day.

5. However, the second compelling circumstance is that Ms King, the Solicitor who appears today for Mr Rafter, limited to seeking the adjournment, has annexed without objection – and properly without objection in the circumstances – a medical certificate, seemingly 18 June 2012 which I will read into the record:

   This is to certify that I am the treating physician of [Mr Rafter].  [Mr Rafter] presents today in extreme distress as the result of the judgment.  He is suffering from acute anxiety, distress and depression and is requiring an extended time away from work, as well as increased medication and urgent referral to a psychiatrist.  I do not believe that he is emotionally well enough to attend to collation of information required for his costs case, and I respectfully ask that this be adjourned for approximately six weeks while he attends to his emotional care and wellbeing.

6. There is also, annexed to Ms WR’s affidavit, a letter from Ms King’s firm to Mr Atkinson’s firm enclosing that medical certificate and stating that Ms King understands that Mr Rafter has made an appointment to see a Dr TN, psychiatrist, at his earliest available time, and that in due course a report can be obtained from Dr TN. 

7. Now, the matter is one in which there ought not be delay in hearing it.  However, where there are genuine medical reasons preventing someone from giving instructions, the Court must accept that, because otherwise there would be a denial of procedural fairness. Six weeks is a long time.  However, it is not for me to second guess the medical evidence.

8. I will order by consent that any medical reports may be annexed to an affidavit of the husband or his legal representative.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 21 June 2012.

Associate:

Date:  7 August 2012