Ballard and Diaz

[2011] FamCA 1046

FAMILY COURT OF AUSTRALIA

BALLARD & DIAZ [2011] FamCA 1046

FAMILY LAW – CONTRAVENTION

Family Law Act 1975 (Cth)

APPLICANT: Ms Ballard

RESPONDENT: Mr Diaz

FILE NUMBER: MLC 7334 of 2009

DATE DELIVERED: 27 July 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 27 July 2011

REPRESENTATION

THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: Ms Daly

SOLICITOR FOR THE RESPONDENT: Anthonys Solicitors

Orders

1. That the contravention application filed by the mother on 27 May 2011 is struck out.

2. That the mother pay the father’s costs fixed in the sum of $1298

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 7334 of 2009

Ms Ballard

Applicant

And

Mr Diaz

Respondent

REASONS FOR JUDGMENT

1. On 27 May 2011, Ms Ballard filed a contravention application in this Court supported by an affidavit.  The documents are handwritten indicating that she prepared them herself and there is certainly no indication of a lawyer being involved.  They were clearly served on the respondent because he has appeared here today by counsel.  In an email to the Court this morning, Ms Ballard has said that she was hospitalised and unable to attend and has a medical certificate. 

2. Ironically, the correspondence between lawyers - which would indicate that Ms Ballard got some legal advice - began last Friday week, 15 July.  There were clear indications in that correspondence that what Ms Ballard was concerned about was make up time.  On 22 July, which again is last Friday, there were serious discussions about the parties agreeing to the contravention application being withdrawn on the basis of some make up time.  At midday or thereabouts yesterday the solicitors acting for Ms Ballard corresponded with the respondent’s solicitors indicating that she had changed her mind. 

3. She is not here today and even if I was to accept that she is incapacitated in some way, she has put the respondent to the inconvenience of being here and incurring costs.  It is accepted that there is no res judicata issue and therefore if she reissues, no such defence would be raised.  Having regard to the nature of the correspondence however of 15 July and 22 July, Ms Ballard may have some difficulty in establishing that there was such a breach and that the Court should do something about it.  In the circumstances, I see no reason why the application shouldn’t be struck out. 

4. Consequent upon the application being struck out, the respondent has sought costs. I have agreed that this is an appropriate case for costs and that the scale should apply. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that each party bear their own costs unless there are circumstances justifying a departure from that principle. In departing from the principle the Court needs to take into account the matters set out in s 117(2A). The major issue here is that I do not know the financial circumstances of the mother but having regard to the fact that she had gone to lawyers, I can presume that she at least has some resources. The dilemma also is that she is not here today, and as I have indicated, has inconvenienced the party on the other side. In the circumstances, I see no reason why she should not pay the costs fixed on or around scale which I calculate at $1298.

ORDERS DELIVERED

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 27 July 2011.

Associate:  Elizabeth Hore

Date:  11 January 2012