Vestri & Vestri (No 2)
[2024] FedCFamC1F 201
•25 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vestri & Vestri (No 2) [2024] FedCFamC1F 201
File number(s): CAC 405 of 2022 Judgment of: GILL J Date of judgment: 25 March 2024 Catchwords: FAMILY LAW - PRACTICE AND PROCEDURE – Adjournment – Where the applicant father made an oral application for adjournment of the final hearing – Final hearing adjourned
FAMILY LAW - COSTS – Payment of costs of the Independent Children's Lawyer of costs thrown away - Payment of costs on an indemnity basisDivision: Division 1 First Instance Number of paragraphs: 5 Date of hearing: 25 March 2024 Place: Canberra Solicitor for the Applicant: Dr Kennedy, Farrar Gesini Dunn Counsel for the Respondent: Mr Haddock Solicitor for the Respondent: Neilan Stramandinoli Family Lawyers Solicitor for the Independent Children's Lawyer: Ms Cruise, Legal Aid, ACT ORDERS
CAC 405 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR VESTRI
Applicant
AND: MS VESTRI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
GILL J
DATE OF ORDER:
25 MARCH 2024
THE COURT ORDERS THAT:
1.The trial dates of 2 to 6 April 2024 are vacated.
2.The matter is listed for trial commencing at 10 am on 8 April 2024 and then continuing on 17, 18 and 19 April 2024.
3.The husband is granted liberty to file his consolidated trial material by no later than 4 pm on 2 April 2024.
4.The husband is to pay, at the direction of the Independent Children’s Lawyer, the sum of costs of $1,760 for the Independent Children’s Lawyer as to costs thrown away.
5.The husband is to pay the costs thrown away incurred by the wife on an indemnity basis with quantum to be established as agreed or as assessed.
6.The further costs of the wife, insofar as they relate to re-preparation of the trial following the filing of trial material by no later than 4 pm on 2 April 2024, are otherwise reserved to the trial of the matter.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
GILL J
The husband has been in serious default of his obligations both as to disclosure and for the filing of trial material. The husband concedes his default in respect of disclosure and seeks the indulgence of the court to allow him further time to file trial material and to remedy his default in respect of disclosure. Despite being placed on clear notice as to the ramifications of not filing his material the husband has repeatedly failed to do so, even when granted the indulgence of extensions of time to enable him to do so.
The matter was relisted by the court following the husband’s failure to file in accordance with the most recent trial directions and is before the court just over one week in advance of the scheduled commencement of the trial date.
The circumstances are such as to have justified the refusal of the husband’s application for a further extension of his schedule to produce trial material and refuse his oral application for a vacating of the trial date to enable him to do so, given the nature of his default.
However, it is highly preferable that cases are determined on a proper assessment of their true merits and the capacity of the court to do so in the absence of the filing of trial material by the husband is hampered.
In this instance there was available to the court trial dates in the short future which ameliorated the disadvantage to be caused to the system as a whole and to the parties in particular by a deferral of the trial for that short period. However, the deferral of the trial comes at a significant cost to the parties which requires amelioration by the payment of costs, including the payment of costs on an indemnity basis justified by the egregious departure from accepted litigation standards by the husband.
I certify that the preceding five (5) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 25 March 2024
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