Watson and Watson

[2009] FamCA 1008

FAMILY COURT OF AUSTRALIA

WATSON & WATSON [2009] FamCA 1008

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment

APPLICANT: Ms Watson

RESPONDENT: Mr Watson

FILE NUMBER: MLC 5375 of 2009

DATE DELIVERED: 15 October 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 15 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bartfeld QC with Ms Vohra of Counsel

SOLICITOR FOR THE APPLICANT: Webb Korfiatis

COUNSEL FOR THE RESPONDENT: Mr Mawson SC

SOLICITOR FOR THE RESPONDENT: Maeve O’Brien & Associates

Orders

1. That the further listing of the outstanding interim applications shall be adjourned until 10.00am on 4 November 2009 before me.

2. That the wife shall have leave to file her affidavit sworn today and the husband shall file and serve any further affidavit material by 4.00pm on 27 October 2009.

3. That the wife shall pay the husband’s costs thrown away this day fixed at $5,000 with a stay until a property settlement by consent or by court order.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5375 of 2009

MS WATSON

Applicant

And

MR WATSON

Respondent

REASONS FOR JUDGMENT

1. This case was due to go ahead in front of me today for an interim hearing.  The father seeks time with two young children of the marriage on an unsupervised basis.  The mother says that any time spent with the children must be supervised.  She also seeks spousal maintenance.  There are important issues, and I am keen to resolve them as quickly as possible.  Unfortunately, that has not been possible today because this morning the wife has sought to file a fresh affidavit. 

2. The husband wants the opportunity to answer that affidavit and seeks an adjournment to do so.  The wife opposes the adjournment.  I am satisfied that natural justice and procedural fairness dictate that I must allow the adjournment.  I am conscious of the fact that, at an interim stage, the matter proceeds by way of affidavit.  To shut one party out of responding to allegations – specific allegations that are made on the day of the hearing – simply would not be fair.

3. I do not accept from Senior Counsel for the wife that the way the matter was listed would in any way alter that obvious starting position.  The parties were told on 6 October that the matter would be listed before me today.  They were told that if for any reason it could not proceed, the next available date was likely to be 4 November.  In my view the matter was listed as any other interim issue, indeed as any case would be, subject to other court commitments.  Fortunately, the way things turned out, I had the whole day to hear this matter.  In any event, the way the matter was listed does not offer any reasonable explanation for the wife having filed an affidavit today.

4. As I said I am satisfied the matter should be adjourned. Mr Mawson, Senior Counsel for the husband, has sought costs thrown away this day. Mr Bartfeld, Senior Counsel for the wife, has said that if I take into account the disparity of income, as I am obliged under s 117 of the Family Law Act, there should be no order as to costs. 

5. I am satisfied there should be a costs order.  Today has been interrupted only because of the filing of late material.  And, although I have not yet read it, I have been told by counsel that it is not that it relates to any issues that have arisen in just the last couple of days – it is material that was within the ken of the wife and could have been produced earlier. 

6. As I am concerned about the disparity in the financial positions, I am willing in those circumstances to delay the payment of the costs until such time as the wife receives a property settlement, whether it be by consent or by order of the court.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  15 October 2009