Booth and Booth (No. 2)

[2016] FamCA 1181

FAMILY COURT OF AUSTRALIA

BOOTH & BOOTH (NO. 2) [2016] FamCA 1181

FAMILY LAW – PRACTICE AND PROCEDURE – Service – Concern about service of documents.

Family Law Act 1975 (Cth)

APPLICANT: Ms Booth

RESPONDENT: Mr Booth

FILE NUMBER: AYC 468 of 2010

DATE DELIVERED: 13 October 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 13 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McCreadie

SOLICITOR FOR THE APPLICANT: Marsh & Maher Richmond Bennison

THE RESPONDENT: No appearance

Orders

1. That the application in a case filed 11 October 2017 is adjourned to 10.00am on 25 October 2017.

2. That the applicant have leave:

   (a)to file an amended application in a case seeking different orders if she is so advised;

   (b)to file a contravention application; and

   (c)any further affidavit material upon which she is so advised to rely.

3. That for the purposes of any contravention application so filed, the return date is fixed as 25 October 2017 notwithstanding the requirements of Chapter 21 of the Family Law Rules 2004.

4. That the amended application and the contravention application are to be filed by 4.00pm on 16 October 2017.

5. That the said application for contravention and any amended application are to be served upon the respondent as soon as practicable.

6. That any affidavit of the applicant shall be served as soon as practicable.

7. That service of any contravention application shall be:

   (a)by personal service; and

   (b)by email service to the last known address of the respondent proof of which shall be by affidavit which may be filed at the forthwith return date.

8. All other documents may be served upon the respondent by email as set out in paragraph 7(b) above.

9. That the respondent personally attend the hearing at 10.00am on 25 October 2017.

10. If the respondent fails to attend the said hearing, the applicant has leave to seek a warrant for his arrest.

11. That the costs of the applicant of this day are fixed in the sum of $4000 and those costs are reserved to the return date.

12. That the reasons concerning the costs this day be transcribed.

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 Booth & Booth (No. 2) 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 MELBOURNE

FILE NUMBER: AYC 468 of 2010

Ms Booth

Applicant

And

Mr Booth

Respondent

REASONS FOR JUDGMENT

1. By her application in a case filed on 11 October, the applicant sought a range of orders which could generally be described as enforcement orders.  The respondent did not attend the hearing today, but I have seen the affidavit of Ms M, a solicitor, who deposes to the fact that on 11 October at 10.26 in the morning, she read a receipt from the respondent’s email address indicating that a letter she had sent him enclosing various documents had been read by the recipient.  On the same day, at 3.14 pm, she received an email from the respondent indicating that whatever the problem was, it was the responsibility of the applicant.  That particular email, however, is signed off:

   [Mr N], site manager

2. I have no idea whether that email was from the respondent or his agent.  For that reason, I am not entirely sure whether the respondent is aware of today’s proceedings and that, amongst other matters that arose in discussion, has precipitated an application to adjourn the proceedings until 25 October. 

3. However, the applicant also sought costs incidental to the proceedings on an indemnity basis.  The correspondence to which my attention has been drawn shows that the respondent was put on notice that costs on an indemnity basis would be sought.  Again, because of the service issue, I am not confident about the appropriateness of making an order for indemnity costs, let alone costs at all, without the respondent being given an opportunity to be heard. I am not sure that he knows what is happening today.

4. On a prima facie level, the evidence shows that the respondent is in breach of at least orders made on 7 February 2017 and not cooperative in respect of the execution of the orders that were made as long ago as 2015.  This is therefore a case where I should at least fix the costs and the question of whether they will be ordered can be dealt with on the return date. 

5. In assessing the question of the costs, however, one has to contemplate that the application is for indemnity costs.  Indemnity costs in this Court are the exception, rather than the rule, as there are, indeed, in most courts.

6. The scale costs in this case would be less than the amount claimed for counsel and solicitor for today, but what I have to take into account is whether there is first, a justification for making an order for costs and if so, why the scale should not apply.  Here, the evidence is perplexing, having regard to what has occurred at least since February 2017.  If it turns out that there is no justification for the respondent’s position and an order for costs is made, it would be likely that I would find that this is the exception, rather than the rule. 

7. It is hard to imagine why, a situation where someone is in defiance of a court order an order for indemnity costs ought not be made.  On that basis, I will fix the costs of the applicant in the sum of $4000 and reserve those to the return date. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 13 October 2017.

Associate: 

Date:  24 October 2017