Studdenor and Studdenor

[2009] FamCA 478

FAMILY COURT OF AUSTRALIA

STUDDENOR & STUDDENOR [2009] FamCA 478

FAMILY LAW – PRACTICE AND PROCEDURE – Case management – Costs

APPLICANT: Mr Studdenor

RESPONDENT: Ms Studdenor

FILE NUMBER: DGC 3724 of 2007

DATE DELIVERED: 20 May 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 20 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr R.J. Spicer

SOLICITOR FOR THE APPLICANT: McCarthy Hoey

COUNSEL FOR THE RESPONDENT: Ms Tulloch

SOLICITOR FOR THE RESPONDENT: Nicholes Family Lawyers

Orders

1. That all outstanding applications be adjourned to Registrar Riddiford for further management at 10.00am on 16 July 2009.

2. That the case not be listed for final hearing until all practitioners satisfy Registrar Riddiford that the matter is ready for final hearing including the completion of discovery and the filing of all affidavit material for trial.

3. That in the event that one party complies with all directions and is ready to proceed but the other party fails to do likewise, the complying party have liberty to have matters listed for determination as an undefended proceeding.

4. That the wife pay the husband’s costs fixed in the sum of $2565 within 30 days.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  DGC 3724 of 2007

MR STUDDENOR

Applicant

And

MS STUDDENOR

Respondent

REASONS FOR JUDGMENT

1. This is a matter in which the parties have been in the system for quite some time, having separated in June 2004.  The application was listed, when the parties thought they were ready for trial.  It is clear from reading material and discussions with counsel that it is a long way from being ready.  As counsel for the wife says, she needs to file further material.

2. Under those circumstances, I will adjourn the hearing and the parties will be going back to a registrar and not being relisted for final hearing until such time as the registrar is satisfied that it is ready for trial.

3. I have an application made orally for costs.  The husband's position is that I should fix the costs thrown away or as a fall-back position, they be reserved.  The wife's position is that I should reserve the costs of both sides to the trial judge.

4. Section 117 of the Family Law Act 1975 (Cth) governs the question of costs. It provides that as a matter of law, each party should bear their own costs, except in the circumstances where a court feels that it is justified in departing from that rule. If in fact it decides to depart from that rule, then it has to consider all of the matters set out in s 117(2A).

5. The application in this case is being made by the wife.  The husband is indicating a willingness to proceed.  Although acknowledging that the wife probably cannot on the basis of the material that she has filed, I think this is an appropriate case where the husband should have his costs.  I do not see any reason why the wife should have hers.  In those circumstances, it is appropriate to depart from the rule that each party pays their costs and I propose to order that the wife be responsible for the husband's costs and that they be paid at a time between the parties as agreed.

6. I propose that those costs be only the costs thrown away for today on the basis that the husband's material will be used in the trial.

7. I am going to allow the scale costs for a day for counsel and a day for an instructor.  That is a total of $2565. 

I certify that the preceding Seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin 

Associate: 

Date:  1 June 2009