Rafter and Rafter (No. 2)

This matter concerned an application for costs filed by Ms Rafter (the applicant wife) against Mr Rafter (the respondent husband) in the Family Court of Australia. The hearing was scheduled for 21 June 2012.

The primary legal issue before the court was whether to grant an adjournment of the wife's costs application, sought by the husband on medical grounds. The court was required to consider the husband's medical condition and its impact on his ability to participate in the proceedings, balanced against the general principle that costs applications should not be unduly delayed.

Justice O’Reilly granted the adjournment, finding two compelling reasons. Firstly, there had been a delay in the wife's solicitors meeting the initial timetable, which was understandable given the complexity and history of the case. Secondly, and more critically, the husband's solicitor presented a medical certificate indicating that the husband was suffering from acute anxiety, distress, and depression as a result of a recent judgment, rendering him unable to collate the necessary information for his costs case and requiring an extended period for medical care. The court held that genuine medical reasons preventing a party from giving instructions must be accepted to avoid a denial of procedural fairness, and it would not second-guess the medical evidence.

By consent, the court ordered that any medical reports relating to the husband could be annexed to an affidavit of the husband or his legal representative without requiring the medical practitioners to file their own affidavits. The wife's costs application was adjourned and relisted for hearing on 14 August 2012, with specific deadlines set for the filing and service of further material by both parties.