Westlake and Trask - [2013] FamCA 345

FAMILY COURT OF AUSTRALIA

WESTLAKE & TRASK

[2013] FamCA 345

FAMILY LAW – COSTS – Husband to pay wife’s costs thrown away by reason of adjournment

Family Law Act 1975 (Cth) s 117

APPLICANT:

Ms Westlake

RESPONDENT:

Mr Trask

FILE NUMBER:

SYC

1788

2010

DATE DELIVERED:

10 May 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

10 May 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Harper

SOLICITOR FOR THE RESPONDENT:

Mr Stubbs

Orders

That leave is granted to the Respondent Husband to rely upon the affidavit of Mr Stubbs sworn and filed 9 May 2013.

That the Respondent Husband shall pay the Applicant Wife’s costs thrown away by reason of the adjournment of the proceedings on 1 May 2013 as agreed and assessed.

That leave is granted to the Respondent Husband to file in Court an affidavit of Mr L sworn on 8 May 2013.

That leave is granted to the Husband’s legal representatives to uplift the Exhibit folder attached to the husband’s affidavit of 26 April 2013 and replace it with a bundle as agreed between the parties.

That I fix this matter for a continuation of the hearing at 10 am on Wednesday 9 October 2013 for one (1) day.

That leave is granted to the Applicant Wife to file and serve an affidavit of an adversarial expert in relation to the employment of the Husband. Such affidavit is to be filed and served by no later than close of business on Friday 28 June 2013.

That leave is granted to the parties to each file and serve an updated affidavit dealing only with matters between the part-heard hearing 1 May 2013 until 9 October 2013. Such affidavit is to be filed and served by no later than close of business on 27 September 2013.

That leave is granted to the Applicant Wife to issue subpoena to Mr L and Mr C. Such subpoenae are to be made returnable and inspected prior to the hearing fixed on 9 October 2013.

That, in the event of any difficulties, liberty is granted to the parties to restore the matter to the list upon giving seven (7) days notice.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Westlake & Trask has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1788 of 2010

Ms Westlake

Applicant

And

Mr Trask

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons were delivered orally.
This matter commenced before me on 29 April 2013 as a three day property matter. On day three, that is, 1 May 2013 the court started late due to other court commitments. It was my intention on that day to sit extended hours to enable the matter to conclude on that day and for that purpose there was a shortened luncheon adjournment and I indicated I would sit until the end of…

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 Westlake and Trask

Details

AGLC: Westlake and Trask [2013] FamCA 345
Case: [2013] FamCA 345
Decision Date

CaseChat Overview and Summary

In *Westlake & Trask*, the Family Court of Australia considered an application for costs following an adjournment of proceedings. The applicant was Ms Westlake (the wife) and the respondent was Mr Trask (the husband). The dispute concerned property matters, and the hearing was part-heard when an adjournment became necessary.

The primary legal issue before the court was whether the husband should be ordered to pay the wife's costs thrown away by reason of the adjournment of the proceedings on 1 May 2013. This required the court to consider the conduct of the parties and whether the adjournment was necessitated by the failure of one party to comply with previous orders or to properly prepare for the hearing.

Justice Aldridge reasoned that the adjournment was primarily caused by the husband's late service of an affidavit from Mr C on the third day of the hearing, which sought to rebut inferences the wife intended to draw regarding his employment prospects. The husband also caused delays concerning the report of an expert, Mr B. The court found that the wife was entirely innocent of causing these delays and that the matter would likely have concluded on 1 May 2013 but for these issues. The court noted that while it was not inappropriate to bring updating evidence, it was inappropriate to do so at such a late stage of the hearing.

Consequently, the court ordered that the respondent husband pay the applicant wife's costs thrown away by reason of the adjournment of the proceedings on 1 May 2013, as agreed and assessed. Leave was also granted to the husband to rely on certain affidavits and to the wife to issue subpoenas, and the matter was fixed for a continuation of the hearing.

Orders