FEDERAL COURT OF AUSTRALIA

Carey v Carey [2007] FCA 2045

MARK CAREY AND MARION CAREY v IAN CAREY

NSD1565 OF 2007

FLICK J

6 DECEMBER 2007

SYDNEY

THE COURT ORDERS THAT:

1.         The Application to vacate or vary the orders of 29 November 2007 be dismissed.

2.         The Respondent to pay the Applicants’ costs of the proceedings today.

3.         The matter be stood over for further mention at 9:15am on 10 December 2007.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

REASONS FOR JUDGMENT

1                     Presently before the Court is an Application to vacate, or at least vary, orders made on 29 November 2007.  Those orders inter alia set down motions for hearing on 10 and 11 March 2008 and require the attendance in person of the Respondent. 

2                     The oral Application made this morning has been variously expressed as an Application to vacate those orders or an Application to have a preliminary question determined pursuant to O 29 r 2 of the Federal Court Rules.  That application for the determination of a separate question sought to raise for resolution the jurisdiction of the Court to make the orders first made on 10 August 2007 by Cowdroy J pursuant to O 15A r 12.

3                     The jurisdiction of the Court to make such an order, it was said, was not self-evident.  The Application to have a separate question determined is rejected for either of two reasons, namely: one, it is considered to be too late in the day for such a question to now be raised; and second, this Court has long expressed a reservation about the utility of the determination of separate questions. 

4                     To the extent that an Application has been made to vacate the orders made on 29 November 2007, that Application was substantially based upon an Affidavit of Mr William Beilby sworn on 5 December 2007.  That Affidavit sets forth difficulties of the Respondent attending in person due to his work commitments where he lives, namely Rotterdam in The Netherlands. 

5                     In cross‑examination by Mr Street SC, Mr Beilby’s attention was drawn to the evidence given by Mr Carey on 13 August 2007 in proceedings then before Moore J of this Court.  General evidence was then given by Mr Carey as to his practice in visiting Australia regularly and in particular in February of each year.  The conversations between Mr Beilby and Mr Carey, however, were conducted by Mr Beilby without the benefit of having read the transcript of those proceedings.

6                     It remains my view that there is an apparent inconsistency between what Mr Carey told Mr Beilby and what Mr Carey told Moore J on 13 August 2007.  Had the matter been left there, any Application to vary the dates would have been rejected.  Mr Beilby, however, in his Affidavit annexes evidence as to the fact that Mr Carey’s wife is pregnant and the estimated date of delivery is 19 March 2008.  Had more detailed instructions been obtained from Mr Carey as to when it was convenient for him to attend to give evidence in Australia in about March of 2008, the Court may have been minded to vacate the orders previously made on 29 November or at least to have varied those orders.  There was, however, no evidence at all as to when the Respondent could attend to give evidence in Australia.  No inquiries were made of him and in the absence of such evidence I am not minded to vacate the orders previously made.  An Application to vacate the orders on that basis is also rejected. 

7                     The Court, however, is minded to accommodate the concerns of the Respondent and his wife to the extent that that is possible and, should a future Application be made to have Mr Carey attend in person at a date convenient to the parties and the Court, that Application will be separately dealt with. 

8                     The Application to vary the orders or to vacate the orders made on 29 November is therefore rejected.

ORDERS

9                     The orders of the Court are:

1.                  The Application to vacate or vary the orders of 29 November 2007 be dismissed.

2.                  The Respondent to pay the Applicants’ costs of the proceedings today.

3.                  The matter be stood over for further mention at 9:15am on 10 December 2007.

Associate:

Dated: 28 December 2008