WHITE & WHITE
[2010] FamCA 1232
•17 December 2010
FAMILY COURT OF AUSTRALIA
| WHITE & WHITE | [2010 ] FamCA 1232 |
| FAMILY LAW – REVIEW OF REGISTRAR’S ORDERS – Costs |
| APPLICANT: | Ms White |
| RESPONDENT: | Mr White |
| FILE NUMBER: | SYC | 4545 | of | 2009 |
| DATE DELIVERED: | 17 December 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Stevenson J |
| HEARING DATE: | 13 December 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Jackson |
| SOLICITOR FOR THE APPLICANT: | APJ Law |
| COUNSEL FOR THE RESPONDENT: | Mr Johnson |
| SOLICITOR FOR THE RESPONDENT: | Christopher Levingston & Associates |
Orders
That the husband’s Application in a Case, filed on 16 September 2010, for a Review of a Registrar’s Order made on 9 September 2010 is allowed.
That the order made by Registrar Campbell on 9 September 2010: “that the husband pay the wife’s costs with respect to the application for disclosure as agreed or assessed, such payment to be made within 28 days of such agreement or assessment” is discharged.
IT IS NOTED that publication of this judgment under the pseudonym White & White is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 4545 of 2009
| MS WHITE |
Applicant
And
| MR WHITE |
Respondent
REASONS FOR JUDGMENT
the proceedings
Mrs White and Mr White are locked in heavily contested proceedings for settlement of property. Their court file is already several centimetres thick.
On 9 September 2010 a Registrar made an order “that the husband pay the wife’s costs with respect to the application for disclosure as agreed or assessed, such payment to be made within 28 days of such agreement or assessment”. On 16 September 2010 the husband filed an application for review of this order.
There are no written reasons why the Registrar made this order for costs against the husband. I was informed that the wife “is running a non-disclosure case against the husband”. Certainly it was submitted to me in this application that the orders made by the Registrar on 9 June 2010 were necessary to compel the husband to make full and frank disclosure.
I was urged by the wife’s legal representative to “treat [the application for review] as an appeal”. I am not entitled to do so as the legislation and the authority of Harris v Caladine; Commonwealth Attorney-General (Intervener) (1990) FLC 92-130 make it entirely clear that the procedure is a hearing de novo. The delegation of judicial power to a Registrar would otherwise be unconstitutional.
The husband’s solicitor, Mr Anthony Fox, set out in his affidavit sworn 2 August 2010 his attempts to comply with the requirement for disclosure. It seems that the wife’s solicitor has made very extensive requests for a production of documents and for provision of information.
The husband’s solicitor deposed that his client has suffered from depression since about 2000, with the consequence that he has an impaired memory. Another difficulty was that various of his financial records were lodged with the Supreme Court of New South Wales pursuant to a subpoena issued by the wife in different legislation. Yet another problem which the husband faced was that a solicitor who acted for him in another forum held relevant documents, which he was tardy in making available. It seemed to me that the husband made reasonable efforts to provide disclosure, given the extensive nature of the wife’s requests and in the context of these difficulties.
I see a problem in enforcement of the costs order made by the Registrar, as identified by counsel for the husband in this application. I was taken to “no application for disclosure” and the husband’s legal representative did not indicate upon what date the “order” should commence. In these circumstances, it would be difficult if not impossible for the relevant costs to be agreed or taxed.
For these reasons, and in the exercise of my discretion, I allow the application for review. The Registrar’s order of 9 September 2010 is accordingly discharged. I make this decision with great respect to the Registrar but I can determine the application only on the basis of the material and submissions which the parties elected to place before me.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 17 December 2010.
Associate:
Date: 17 December 2010
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