Thomas and Guan

[2012] FamCA 410

FAMILY COURT OF AUSTRALIA

THOMAS & GUAN [2012] FamCA 410

FAMILY LAW – PROPERTY – interim

Family Law Act 1975 (Cth)

APPLICANT: Mr Thomas

RESPONDENT: Ms Guan

FILE NUMBER: SYC 6051 of 2011

DATE DELIVERED: 28 May 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 28 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Johnston

SOLICITOR FOR THE APPLICANT: Harris & Company

COUNSEL FOR THE RESPONDENT: Ms Bridges

SOLICITOR FOR THE RESPONDENT: Austin Haworth & Lexon Lawyers

Orders

1. Both parties’ costs of this interim application be reserved for further determination if required by either party at the conclusion of the substantive proceedings.

2. The document “List of Subpoenas” be marked as Exhibit 2. The respondent has leave to issue subpoenas in relations to item 1 through to 11 in the first list of Exhibit 2.  The applicant has leave to issue subpoenas in relation to items 1 through to 7 in the second list on Exhibit 2.

NOTATION:

1. I note at this stage the parties estimate that the hearing in relation to whether or not a declaration of the existence of a de facto relationship is made, will take three days.  There are three witnesses in the applicant’s case, including the applicant, all of whom require an interpreter.

2. The witnesses in the husband’s case will be himself and perhaps one other lay witness.

IT IS REQUESTED THAT:

1. The Docket Registrar relist this matter before herself/himself one month after the return of subpoenas in respect of which leave to issue has been ordered today for the purposes of making directions in relation to the filing of any further evidence that either party seeks to file. After all evidence is filed, the Docket Registrar shall, if necessary, reassess the amount of time the application pursuant to s 90RD Family Law Act will take and the Docket Registrar is then to refer the matter to the list clerk for the purpose of the list clerk listing the matter for hearing in relation to the discrete issue as to whether or not the declaration should be made as to the existence of a de facto relationship in this case.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Thomas & Guan 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 6051 of 2011

Mr Thomas

Applicant

And

Ms Guan

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The application that was listed before me today was an application by the respondent for a summary dismissal of an application pursuant to s 90SM Family Law Act, which made a property claim arising from a de facto relationship.

2. The application by the applicant was filed in November 2011 and was responded to by Mr Thomas in November last year. In his response at that time he sought an order seeking that the application filed 4 October 2011 be dismissed. At that time he did not seek any order by way of preliminary declaration under s 90RD Family Law Act.

3. On 6 February 2012 he filed an application seeking that declaration together with an affidavit in support.

4. On 8 February 2012 the Registrar made an order in chambers by telephone requiring Ms Guan to file and serve her material in reply by 7 March 2012. That did not happen but there was some correspondence between the lawyers for the parties which is contained in Exhibit 1. In a letter dated 15 March 2012 the lawyers for the applicant raised with the lawyers for the respondent the difficulties that then existed in relation to the jurisdiction of the Family Court to make orders pursuant to the Family Law Act in relation to the alteration of property interests between de facto couples.

5. Arguably as at the date the Registrar made the order on 8 February 2012, there was no power to make such an order. That order was retrospectively validated by legislation which became effective on 22 March 2012.

6. At that time the applicant was unwell and on 9 April 2012 she took a large quantity of sleeping pills and ended up in hospital for a period of time.

7. The solicitors for the applicant were in communication with the solicitors for the respondent late last week. It was clear that the application which the respondent wanted to pursue before the court today could no longer succeed in the face of the material that the applicant had now filed. The respondent however wished to proceed today in relation to the issue of costs. The respondent could have agreed last week to adjourn the matter without attending today.

8. The appropriate order in the circumstances is to adjourn questions of costs to be determined at the same time as any cost application that is associated with the substantive hearing. It might well be that in the substantive hearing the applicant’s position is vindicated and a costs order would then be made against the respondent and it would be inappropriate for the respondent to have the benefit of a cost order arising from today in those circumstances.

9. Accordingly I will make an order that both parties’ costs of this interim application be reserved for further determination if needed at the conclusion of the substantive proceedings.

I certify that the preceding nine (9) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 28 May 2012.

Associate:   

Date:  31 May 2012