WOOTON & HILLIER

[2017] FamCA 732

FAMILY COURT OF AUSTRALIA

WOOTON & HILLIER [2017] FamCA 732

FAMILY LAW – INTERIM PROCEEDINGS – Where procedural orders not complied with – Where reasonable excuse not given – Where costs order made against noncompliant party

APPLICANT: Ms Wooton

RESPONDENT: Mr Hillier

FILE NUMBER: CAC 2423 of 2007

DATE DELIVERED: 13 February 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 13 February 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Pigdon Norgate Family Lawyers

SOLICITOR FOR THE RESPONDENT: Mills Oakley Lawyers

Orders

IT IS ORDERED THAT

1. The husband pay the wife’s costs of the Application today. 

2. The sum of the costs be as agreed within 14 days or otherwise as taxed or assessed, as is appropriate. 

3. Mr R is appointed as the agreed Single Expert for the valuation of the property situate and known as N Street, Suburb O in the Australian Capital Territory and the property situate and known as P Street, Suburb Q in the Australian Capital Territory.

4. Within 7 days of today’s date the respondent is to provide to the applicant a proposed draft letter of instruction for Mr R.

5. Within 7 days of compliance by the respondent with the above order, the applicant is to provide to the respondent her comments and any proposed changes to the draft letters of instruction to the valuer and the letter of instructions is to forthwith thereafter be provided to Mr R.

6. The cost of the valuations provided by Mr R is to be shared equally between the parties as and when they fall due.

7. The respondent provide to the applicant a response to the proposed amendments to the letter of instructions for Ms S provided to the respondent on 3 February 2017 within 7 days of today’s date.

8. The next date for directions of 3 April 2017 is vacated.

9. The matter is relisted for further directions on 29 May 2017 at 9:30am.  The parties are at liberty to attend by telephone provided they make arrangements for the Canberra Registry to do so 7 days in advance.

10. The parties are at liberty to seek a relisting of this matter on 7 days’ notice in writing to the other parties should the need arise. 

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 2423 of 2007

Ms Wooton

Applicant

And

Mr Hillier

Respondent

REASONS FOR JUDGMENT

1. Having heard from Ms Pigdon and Ms Warda, (in particular having heard and adopted the factual outline given by Ms Pigdon and not the subject of any dispute by Ms Warda), the proceedings today follow the making of procedural orders by me on 15 December 2016.  The primary matter to be dealt with today related to the appointment of an expert.  A regime for the appointment of that expert was set out in the procedural directions. 

2. The wife has been compliant in respect of dealing with that matter and filed material in compliance with that.  The husband has not.  I understand that there is a late offer which may be acceptable in relation to who may be appointed as a valuer.  Regardless of whether or not that matter is accepted by the wife, and regardless of whether or not it is necessary to continue on to hear the balance of the matter today, these proceedings have been necessitated by the husband’s failing to comply with the orders.

3. The husband has explained, through his lawyer, that he was not fit to deal with the matter.  The material presented does not establish that proposition.  The material from the orthopaedic surgeon does not establish that the husband was unfit to give instructions.  The material from the husband’s solicitor does not establish that fact either.  If that was the case and if that was communicated adequately at an early enough basis, that may have been sufficient to have resisted the making of a costs order today.  I do not determine at this stage whether or not it would have been.  The evidence does not show that it was done.

4. Principally, by virtue of the failure to comply with orders necessitating today’s proceedings, I order that the wife’s costs of the application today be paid by the husband.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 13 February 2017.

Associate:

Date:  23 August 2017