Srbinovska and Srbinovska

[2012] FamCA 249

FAMILY COURT OF AUSTRALIA

SRBINOVSKA & SRBINOVSKA [2012] FamCA 249

FAMILY LAW – PRACTICE AND PROCEDURE – Application to reopen case to admit further evidence

Family Law Act 1975 (Cth)

APPLICANT: Mr S Srbinovska

1^st RESPONDENT: Ms J Srbinovska

2^nd RESPONDENT: Mr R Srbinovska

FILE NUMBER: SYC 1484 of 2010

DATE DELIVERED: 3 April 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 3 April 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Todd

SOLICITOR FOR THE APPLICANT: One Group Legal

COUNSEL FOR THE 1^ST RESPONDENT: Mr Gould

SOLICITOR FOR THE 1^ST RESPONDENT: Wilshire Webb Staunton Beattie Lawyers

SOLICITOR FOR THE 2^ND RESPONDENT:

Ms Wilson

Swaab Attorneys

Orders

1. The husband is granted leave to reopen his case in order to read two affidavits, one sworn by him on 20 March 2012 and one sworn by his solicitor on 2 April 2012.

2. The husband is to pay the wife’s costs of attendance at Court today.

3. The costs of the second respondent in relation to this application are reserved to a time following the determination of the outstanding interlocutory proceedings currently reserved before myself.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Srbinovska & Srbinovska has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1484 of 2010

Mr S Srbinovska

Applicant

And

Ms J Srbinovska

1^st Respondent

And

Mr R Srbinovska

2^nd Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application by the first respondent filed on 23 March 2012 seeking that he be granted leave to tender and rely upon fresh evidence in relation to the hearing commenced 6 February 2012 and currently reserved in the decision phase.  That application was served on both the second respondent and the wife.  The second respondent and the wife do not oppose leave being granted as sought. However, the wife seeks an order for costs. The application to reopen will be granted.

2. The wife’s costs application is based on the fact that on 29 March 2012 the wife’s solicitors wrote to the husband’s solicitors by email acknowledging receipt of the husband’s application, advising that they do not oppose the husband being able the rely on the additional material or the matter being relisted before the Court on the date suitable to their Counsel. The email also states “On that basis, would you please mention the matter on our behalf on Tuesday? We will provide a list of our available dates”

3. It is not quite clear in that email as to what the wife understood was to happen today, but in any event there was a clear invitation to avoid costs on behalf of the wife.  Apparently there was no response to that email. As such I do not consider that the wife could simply have not attended. She is represented today by her lawyers on the record.  They have been advised as to a listing of the matter before the Court today, and I do not think it is open to them to simply not attend. I propose therefore to order that the husband pay the wife’s costs of her attendance at Court today.

4. The second respondent also seeks an order for costs.  Whilst before the Court to answer the husband’s application, it was pointed out by the second respondent that the rates which have been paid by the husband, as deposed to in his affidavit, do not cover the entirety of the relevant property. The property the subject of dispute between all parties was subdivided, at least so far as the council was concerned, into two separate lots, and there is still outstanding rates in respect of one of the lots. That directly affects the second respondent in the proceedings and thus his application which is currently before the Court.

5. I propose to reserve the question of the second respondent’s costs of attendance at Court today until a time convenient to the second respondent and the Court and the other parties upon the determination of the second respondent’s application currently reserved.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 3 April 2012.

Associate: 

Date:  23 April 2012