Stephens and Stephens - [2011] FamCA 78

FAMILY COURT OF AUSTRALIA

STEPHENS & STEPHENS

[2011] FamCA 78

FAMILY LAW – PRACTICE AND PROCEDURE – where there are outstanding costs applications to be determined – where there is an application before the High Court seeking special leave to appeal – where the husband failed to attend the hearing – where the husband sent a letter to the Court advising he would not be attending – whether it was appropriate for such a letter to be forwarded to the Court – matter further adjourned

Family Law Act 1975 (Cth)

BuljubasicvBuljubasic (1999) FLC 92-865

APPLICANT:

Mr Stephens

RESPONDENT:

Ms Stephens

FILE NUMBER:

MLF

2847

2002

DATE DELIVERED:

9 February 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

9 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

No appearance

COUNSEL FOR THE RESPONDENT:

Ms Grobtuch

SOLICITOR FOR THE RESPONDENT:

Kennedy Partners

Orders

That this matter be further adjourned for mention to 9:30am (Melbourne time) on Thursday 28 April 2011.
That leave be given to both parties and their legal representatives to attend the said mention by way of telephone link.
That the application for costs made by the wife in relation to costs thrown away on 18 November 2010 and the costs of and incidental to the oral application for an adjournment made by Mr Stephens on 19 November 2010 be further reserved to the adjourned mention date.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

File Number: MLF 2847 of 2002

MR STEPHENS

Applicant

And

MS STEPHENS

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This matter is before me again today having been adjourned on 19 November 2010. I am not going to repeat what occurred on 18 November and 19 November, save and except in one respect.
The position still in this case is that although the wife’s costs application is ready to proceed, in the sense that both parties have filed written submissions, Mr Stephens still has before the High Court an application seeking special leave to appeal against orders made by the Full Court of this Court on 27 October 2010. I understand, and it has been confirmed by Ms Grobtuch today, that that special leave application has not yet been heard by the High Court.
I confirm that I have been reluctant to adjourn the costs hearing, albeit there is that special leave application, but as Ms Grobtuch has again said today, she, on behalf of her client, takes a pragmatic approach and suggests again that the matter be further adjourned.
Mr Stephens has not attended today which concerns me greatly. I am aware that Mr Stephens forwarded a letter to the Court on 30 January 2011 addressed to my Associate and in that letter, in effect, he said two things. One is that he required that any further correspondence to him be sent by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Stephens and Stephens

Details

AGLC: Stephens and Stephens [2011] FamCA 78
Case: [2011] FamCA 78
Decision Date: 9 February 2011

CaseChat Overview and Summary

In the matter of *Stephens and Stephens*, Strickland J of the Family Court of Australia considered an application concerning costs. The proceedings involved a dispute between a husband and wife, though the precise nature of their underlying dispute is not detailed in the provided text.

The primary legal issue before the court was the determination of costs, specifically relating to costs thrown away on 18 November 2010 and the costs of an oral application for an adjournment made by the husband on 19 November 2010. The court was required to decide whether to reserve these costs or make an immediate order.

Strickland J ordered that the matter be further adjourned for mention to 9:30 am on Thursday, 28 April 2011, with leave granted for both parties and their legal representatives to attend by telephone. Crucially, the application for costs made by the wife, in relation to costs thrown away on 18 November 2010, and the costs of the husband's oral application for an adjournment on 19 November 2010, were further reserved to this adjourned mention date.

Orders

Orders of the court

That this matter be further adjourned for mention to 9:30am (Melbourne time) on Thursday 28 April 2011.

That leave be given to both parties and their legal representatives to attend the said mention by way of telephone link.

That the application for costs made by the wife in relation to costs thrown away on 18 November 2010 and the costs of and incidental to the oral application for an adjournment made by Mr Stephens on 19 November 2010 be further reserved to the adjourned mention date.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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