Southwell and Jane

[2010] FamCA 381

FAMILY COURT OF AUSTRALIA

SOUTHWELL & JANE [2010] FamCA 381

FAMILY LAW – COSTS – Interim

Family Law Act 1975 (Cth)

APPLICANT: Mr Southwell

RESPONDENT: Ms Jane

FILE NUMBER: MLC 1893 of 2007

DATE DELIVERED: 19 April 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: The Honourable Justice Cronin

HEARING DATE: 19 April 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wood

SOLICITOR FOR THE APPLICANT: Middletons

COUNSEL FOR THE RESPONDENT: Mr Thompson

SOLICITOR FOR THE RESPONDENT: Pinto Law Pty Ltd T/A Issac Brott

Orders

1. The costs of the husband in the sum of $1000 are to be paid by the wife by 4 pm on 19 May 2010.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1893 of 2007

MR SOUTHWELL

Applicant

And

MS JANE

Respondent

REASONS FOR JUDGMENT

1. This is an application for costs by the applicant husband.  The matter was before me on 4 March and adjourned until today on the basis that I could not, at that stage, set the matter down because I was not satisfied about discovery, let alone some other maters which would have allowed me to determine the time the case required.  I specifically ordered the husband to file an affidavit as to the discovery issues and according to the court file, that was done.

2. The wife had a right of reply which was to be completed and filed by 14 April.  It seems common ground that the affidavit by the wife was not completed on the due date and an explanation has been given as to why that is so.  Be that as it may, the matter still now has to be adjourned because there is still an argument about ongoing discovery.  That may have been avoided had there been some earlier filing of the affidavit by the wife indicating what issues were still in dispute.

3. Section 117 of the Act provides that each party bears their own costs.  The exception to that rule is in circumstances where the court is satisfied that there should be a departure from the rule and in those circumstances the court is obliged to take into account the matters set out in section 117(2A).  One of the considerations is whether or not there has been compliance with orders of the court.  In this case the proceedings today have really advanced little, having regard to the fact that the affidavit was not filed by the wife.

4. This is a case therefore, where I am justified in departing from the rule and making an order for costs.  Mr Wood, of counsel, has another matter today so to some extent his costs will be ameliorated and his instructor has been here for one hour.  I will allow $800 for counsel's fees and $200 for the solicitor.  The sum of $1000.

5. RECORDED  :  NOT TRANSCRIBED

6. The costs of the husband in the sum of $1000 are to be paid by the wife by 4 pm on 19 May 2010.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  30 April 2010