Beyer and Varnir
[2010] FamCA 895
•29 September 2010
FAMILY COURT OF AUSTRALIA
| BEYER & VARNIR | [2010] FamCA 895 |
| FAMILY LAW – COSTS – Where the Department of Communities (Child Safety Services), became a party to Family Court proceedings, and then ousted Family Court jurisdiction in the Children’s Court - Comment in relation to remedies available to a Department as a party under the Family Law Act – Consideration of discretionary matters – No costs orders against the Department |
| Family Law Act 1975 (Cth) |
| Director-General of the Department of Human Services (NSW) & Tran and Anor [2010] FamCAFC 151 |
| APPLICANT: | Mr Veyer |
| RESPONDENT: | Ms Varnir |
| INTERVENER: | Director-General, Department of Communities (Child Safety) |
| FILE NUMBER: | CSC | 429 | of | 2010 |
| DATE DELIVERED: | 29 September 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 5 August 2010 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Preston Law |
| SOLICITOR FOR THE RESPONDENT: | Daniel Towne & Associates |
| SOLICITOR FOR THE INTERVENER: | Department of Communities (Child Safety) |
Orders
No order for costs be made against the Department of Communities (Child Safety Services).
IT IS NOTED that publication of this judgment under the pseudonym Beyer & Varnir is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: CSC 429 of 2010
| MR BEYER |
Applicant
And
| MS VARNIR |
Respondent
And
| DEPARTMENT OF COMMUNITIES (CHILD SAFETY) |
Intervener
REASONS FOR JUDGMENT
INTRODUCTION
The question for consideration is whether or not the court of its own motion, makes an order for costs against the Department of Communities (Child Safety Services).
The question arises in the following circumstances.
On 30 July 2010 the father, supported by a Departmental officer appearing as a friend of the court, made an interim application for a child to live with him.
That child was the subject of a court assessment order under the Child Protection Act 1999 (“CPA”) until 5 August 2010.
The mother was present in court on 30 July 2010. The child had been removed from her care on 6 July 2010 and placed in foster care. The main reason for this happening was the mother’s alleged alcoholism and resulting neglectful behaviour. The mother sought and obtained an adjournment.
The matter came back before me on 5 August 2010 (the day the order under the child welfare law was to expire). Both parents were represented by lawyers and had filed evidence in support of their respective interim positions. Initially the Department again sought leave to appear in the proceedings as a friend of the court. The matter was stood in the list to give the Department the opportunity of looking at the mother’s affidavit.
The matter was called again later in the morning. At that time the lawyer for the Department sought and was granted leave to become a party to the proceedings.
The Department was then asked what interim orders they wished the court to make and was informed that the Department would be seeking that the matter be dealt with in the Children’s Court jurisdiction and that they did not consent to the matter being dealt with in the Family Court. In other words, the Department informed the court, that they intended to go to the Children’s Court which effectively ousted the Family Court’s jurisdiction under s 69ZK Family Law Act.
The Department has provided written submissions as to why a costs order should not be made to reimburse the parents for the costs thrown away by the duplication of the proceedings.
I accept that, as a result of the material filed by the mother on 4 August 2010, the Department needed more time to consider its position.
I raised with the lawyer for the Department during the proceedings what it was that the Department asserted could be ordered in the Children’s Court that could not be ordered by the Family Court under Part VII Family Law Act, in circumstances where the Department was a party to the proceedings. The Department’s submission did not address that question.
As I pointed out during discussions, the Family Court has the power, once the Department is a party to the proceedings, certainly in circumstances where the Department has consented to that happening, to make an order providing sole parental responsibility to the Department and an order that the Department have parental responsibility in relation to a child’s living arrangements (see Director-General of the Department of Human Services (NSW) & Tran and Anor [2010] FamCAFC 151). These are orders that the Department could have sought, having become a party to the proceedings in the Family Court.
In their submissions, the Department have explained why, having initially supported the father’s position, the Department wanted time to reconsider their position. The matter could have been adjourned for a short time so the Department could make whatever inquiries it wished to make and thereafter return for a consideration of what interim orders should be made in the child’s best interests.
Neither of the parties themselves made an application for costs against the Department. I accept that the Department might feel more comfortable in the court in which it ordinarily operates but the Department has failed to explain in this case why it believed its statutory obligations could not be properly exercised as a party in the proceedings in the federal jurisdiction in which the mother and father were also parties.
The Department submits that as a discretionary matter, no costs order should be made in favour of the father because the Department asserts the father provided the Department with information that may have been misleading. I do not have sufficient information to make a decision about whether or not that submission has substance.
The Department submits that as a discretionary matter I should not make an order in favour of the mother because the mother had not told them of the matters that favour her position prior to the mother giving material to the Department late on 4 August 2010. Again, I have insufficient information to make a determination as to the strength of that submission.
I do not want to put the parents to any further costs. In my view it is unfortunate that the Department has taken the attitude that they have by and in doing so have ignored remedies available to it as a party to the parenting proceedings under the Family Law Act.
In the circumstances, however, I do not intend to make any order for costs against the Department.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 29 September 2010
Associate:
Date: 29.9.2010
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