REGAN & REGAN

[2012] FamCA 104

FAMILY COURT OF AUSTRALIA

REGAN & REGAN [2012] FamCA 104

FAMILY LAW - PRACTICE AND PROCEDURE – where the husband seeks an adjournment to file responding documents – where the wife opposes the adjournment – where the Court does not have full information before it – orders that the matter be adjourned.

FAMILY LAW - COSTS – application by the wife seeking costs arising out of the husband’s application for an adjournment – where the Court does not have sufficient information before it to make such a determination – orders that the question of costs be adjourned.

Family Law Act 1975 (Cth) s 117

APPLICANT: Ms Regan

RESPONDENT: Mr Regan

FILE NUMBER: SYC 767 of 2012

DATE DELIVERED: 2 March, 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Dawe J

HEARING DATE: 2 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR Campton

SOLICITOR FOR THE APPLICANT: Matthews Dooley & Gibson

COUNSEL FOR THE RESPONDENT: Mr Maddox

SOLICITOR FOR THE RESPONDENT: Streeterlaw

Upon Noting:

1. Both Minutes of Orders to be engrossed by the solicitors for the wife and be emailed to my Associate for sealing within seven [7] days from today.

2. Both Minutes (Consent and Minutes of Order) dated 2 March 2012 are now Exhibits 1 and 2 respectively.

Orders

1. The adjournment is granted and the interim matter is adjourned to 22 March 2012 at 10.00 am before the Honourable Justice Bell.

2. The question of costs of the adjournment of today’s attendance is adjourned generally to the Judicial Officer considering the interim applications which have been adjourned to 22 March 2012 at 10.00 am.

3. Orders in terms of the Minutes of Order this day signed by the Honourable Justice Dawe provided by Counsel for the wife SAVE AND EXCEPT paragraph 9 is deleted and instead orders are made adjourning the question of the costs of the adjournment and the interim application generally also to 22 March 2012 at 10.00 am.

4. Orders are made in terms of Consent Minutes of Order this day signed by the the Honourable Justice Dawe in relation to the question of interim spouse maintenance which was provided to Her Honour today.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Regan & Regan 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 767 of 2012

Ms Regan

Applicant

And

Mr Regan

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is a first hearing of an Initiating Application by the wife filed on 14 February 2012, which included a request for interim orders.  I am informed that the application and supporting affidavit material was served upon the husband on 15 February this year.  He appears today represented by counsel, but has not filed any documents yet. 

2. The matter listed before me today has resulted in a request for an adjournment by the husband, in order that he may file appropriate documents and allow the Court to give consideration to those when determining what orders to be made.

3. The wife does not consent to the adjournment.  She has provided the Court with orders which she seeks to be made if the Court decides to grant the adjournment.  The husband has not opposed those orders being made as a condition of the adjournment, save and except the order so far as it related to the order for costs. 

4. The matter is appropriately adjourned to another date;  namely, 22 March 2012, in order for the Court to have before it the full information which would enable the Court to make the proper orders in accordance with the provisions of the Family Law Act 1975 (“the Act”).  I propose, therefore, to grant the adjournment.

5. The question of costs, however, needs to be seen in the whole context of the matter.  The orders which the Court makes as a condition of the adjournment will provide the wife with some success in many of the applications that she has sought in the interim application. 

6. The question of costs of this adjournment needs to be considered as required by the provisions of section 117 of the Act, which says that each party bear their own costs except where the Court considers it would be just and equitable for one party to pay costs.

7. Of the factors to be considered, one of significance in this case is that the adjournment has been brought about by the need for the husband to file his answering documents.  The Court is given very little explanation for the delay in the filing of documents save and except counsel informs the Court that the husband made approaches to various solicitors and finally gave instructions to his present solicitors only on Wednesday of this week.

8. The complexity of the matters before the Court is also a factor that the Court can take into account. 

9. The other significant factor is the success of the wife in obtaining by consent the conditions which attach to the orders.  However, in all of these circumstances it is correct to say (as submitted by her husband’s counsel) that the Court does not have information on oath from the husband as to his current financial circumstances, save and except the evidence which he gave in Court today, as to his ability to make a payment in relation to interim spouse maintenance during the period of the adjournment.

10. As a result of that evidence and comments made from the bench, I now have before me a Minute of Consent Order, which provides for the wife to have access to an account which may provide her with $3000.  That is an account in the United Kingdom, which may provide the husband with an ongoing overdraft facility with enough of that facility to meet the amount, but that is an unknown factor.

11. The matter is generally being adjourned to the judicial officer on 22 March 2012, the Honourable Justice Bell, at 10.00 am.  The factors which relate to the application for the adjournment I have referred to in my judgment and will, therefore, be capable of being taken into account by that judicial officer. 

12. The factors which otherwise require to be taken into account under section 117, will also be before the judicial officer, but by that stage should be in a much better state. Therefore, the careful consideration of the costs of this general application and the cost of the adjournment could be given better consideration by that judicial officer.

13. I, therefore, adjourn the question of costs of the adjournment and today’s attendance, generally, to the judicial officer considering the interim applications which are adjourned to 22 March at 10 am. 

14. I have indicated that I am granting the adjournment.  Therefore, I also make orders in terms of the Minute of Order provided by counsel for the wife, save and except that I delete paragraph 9 and have, instead, made orders adjourning the question of the costs of the adjournment and of the interim application generally, also to 22 March at 10.00 am. 

15. I also make orders in terms of the Minute of Consent Order in relation to the question of interim spouse maintenance which was provided to me today.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 2 March 2012.

Associate: 

Date:  7 March 2012