Benson and Costa

[2011] FamCA 475

FAMILY COURT OF AUSTRALIA

BENSON & COSTA [2011] FamCA 475

FAMILY LAW – Contravention – Where the mother has been twice ordered to provide the father with an amended copy of the child’s birth certificate within 28 days – Where the mother has twice failed to comply with the order – Almost twelve months  has passed since the original order was made – Mother  to be fined $100 if she fails to provide to the father the amended birth certificate within 28 days of this order.

APPLICANT:

Mr Benson

RESPONDENT: Ms Costa

INDEPENDENT CHILDREN’S LAWYER: Mr Damian Carter, Solicitor

FILE NUMBER: BRC 13714 of 2007

DATE DELIVERED: 17 June 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 17 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O'Neill of Counsel appearing for the Applicant Father

SOLICITOR FOR THE APPLICANT: Blanch Towers Lawyers

SOLICITOR FOR THE RESPONDENT: The Respondent Mother appearing by telephone (not legally represented)

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Stewart, Solicitor appearing as town agent for Mr Damian Carter, Solicitor of Carter Farquar Lawyers

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

Father’s Contravention Application filed 28 July 2009

1. In the event the Mother does not provide the amended birth certificate of the child, B born … 2001, to the Father’s legal representatives by 4.00 pm on 18 July 2011, then the penalty to be imposed upon her for the contravention is a $100.00 fine.

Father’s Application in Form 1 filed 16 February 2010

1. Leave is given to the Family Consultant to inspect the Court file and subpoenaed documentation.

1. Leave is given to all parties to inspect subpoenaed documentation with no copies to be taken without the leave of the Court other than by the Independent Children’s Lawyer.

1. A further copy of the Order of Registrar Coutts made 13 May 2011 be provided to the Mother.

1. An extension of time is granted to the Mother to comply with the directions contained in the Order of 13 May 2011 to 4.00 pm on 27 June 2011.

1. The Mother to provide in writing to the Registrar of this Honourable Court and the Independent Children’s Lawyer her current residential address, telephone numbers and place of employment within seven (7) days of the date hereof.  This information is not to be disclosed to the Father or his legal representatives.

IT IS FURTHER ORDERED THAT:

1. The proceedings are adjourned for further directions and listing before another Judge before a Registrar at 2.15 pm on 27 June 2011 at the Family Court, Brisbane Registry.

NOTATION:

A Registrar of this Honourable Court is requested to forward to the Registrar of Births Deaths and Marriages in Brisbane a copy of this Order and the Reasons for Judgment delivered on 17 June 2011.

IT IS NOTED that publication of this judgment under the pseudonym Benson & Costa 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 BRISBANE

FILE NUMBER: BRC 13714 of 2007

Mr Benson

Applicant

And

Ms Costa

Respondent

REASONS FOR JUDGMENT

1. An order was made on 16 July 2010.  At that time, I dismissed the other contraventions.  I found one established namely a breach of the order whereby the mother was ordered to amend the birth certificate of the child B and provide a copy of the child’s amended birth certificate to the father within 28 days of the date of this order.  I indicated I was prepared to find the contravention was a serious one.

2. The matter came back to court in January this year and on 31 January 2011, I heard much the same that I am hearing now from Ms Costa, namely it is all the fault of the Registrar of Births Deaths and Marriages in Brisbane and there is nothing further she can do.  Paragraph 3 of the order of 31 January 2011 was that within 28 days of that date hereof, the mother was to comply with paragraph 3 of the order of 16 July, to obtain and provide to the father’s legal representatives a copy of the amended birth certificate of the child, B, born in 2001.

3. I am making a conditional order today that if she has failed to provide the birth certificate in 28 days she is to be fined.  I do not accept that she can simply wash her hands and say, “It is the bureaucracy’s fault.”  She should be providing chapter and verse all communications with the Registrar of Births Deaths and Marriages and the obligation is on her to establish she has a reasonable excuse.  She has done no such thing.  The father has said, “The order provided for me to receive an amended birth certificate, that has not been done.”  The onus is on Ms Costa to show why it has not been done.  She adduces no evidence whatsoever.

4. Now, what I am going to do is direct a registrar of this Court to forward a copy of this order and a copy of these reasons to the Registrar of Births, Deaths and Marriages in Brisbane and hopefully this will draw the attention of the registrar to the fact that a subpoena may well issue, if the birth certificate is not corrected by the mother. 

5. There may well be some explanation.  It could be a breakdown in communication, it could be that once one hears from the registrar, that a totally different picture emerges.  I am unable to speculate about that.  Suffice it to say that this was an outstanding matter in my list and I have now completed it.  I will be adjourning this matter for further directions to a registrar for the listing before another Judge.

   RECORDED  :  NOT TRANSCRIBED

6. For the purpose of completing the Family Report, the Family Consultant has permission to inspect the court file.  She has leave to read any documents produced on subpoena.

   RECORDED  :  NOT TRANSCRIBED

7. Now, as I understand it in this matter, six subpoenas have been issued by the independent children’s lawyer.  

   RECORDED  :  NOT TRANSCRIBED

8. I will give leave to all parties to inspect the subpoenaed material, with only the independent children’s lawyer given leave to take copies at this point in time.  The others may not take copies unless they have the leave of the court.

   RECORDED  :  NOT TRANSCRIBED

9. I will direct that a further copy of the order of 13 May 2011 be sent to the mother.

   RECORDED  :  NOT TRANSCRIBED

10. The Registrar made an order that the father file and serve an amended initiating application, which sets out all final orders sought by 20 May 2011.  He has done this.  There has been no compliance by the mother to date.  I will extend time for compliance by her to 27 June 2011.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry delivered on 17 June 2011.

Associate: 

Date:  17 June 2011