Boreham and Dawkins

[2011] FamCA 59

FAMILY COURT OF AUSTRALIA

BOREHAM & DAWKINS [2011] FamCA 59

FAMILY LAW – PRACTICE AND PROCEDURE – Dismissal of interim application

Family Law Act 1975 (Cth)

APPLICANT: Mr Boreham

RESPONDENT: Ms Dawkins

FILE NUMBER: MLC 8489 of 2009

DATE DELIVERED: 28 January 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 28 January 2011

REPRESENTATION

THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: Mr Weil

SOLICITOR FOR THE RESPONDENT: M K Steele & Giammario

Orders

1. That the application of the father filed 12 January 2011 is struck out.

2. That the father pay the mother’s costs fixed in the sum of $3000.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8489 of 2009

MR BOREHAM

Applicant

And

MS DAWKINS

Respondent

REASONS FOR JUDGMENT

1. This is an application that the father, Mr Boreham filed on 12 January 2011.  It is a contravention application returnable today.  The father has emailed to the court, I am told, this morning, and apparently notified the practitioners for the respondent that he is ill and attending a doctor.  Normally, I would not have hesitated that if a person is ill, the matter should be adjourned and they should be given an opportunity to have their case heard properly.  There is an exception in this case because the father is a man who knows this court fairly well.  He appeared before me only 14 days ago in an application relating to parenting orders at which there was some sensible discussion about a trial that is pending in April.

2. The fact that the contravention application was listed today was, in fact, discussed.  The contravention must be seen as somewhat academic, having regard to what was discussed on 14 January, but also because of the pending final trial.  In any event, as was pointed out by Mr Weil of counsel on behalf of the mother, the contravention application is flawed because it does not comply with the rules, and the materials that support it are certainly lacking.  It is conceivable in the circumstances that the application would have been struck out.  The father needs to understand that even if he is ill, he can file a further application if he so desires.  But in the circumstances, I see little point in adjourning this application, particularly with the proceedings pending in April.

3. I propose, therefore, to strike out his application. 

4. The mother applies for costs.  I had indicated in discussion that that order is somewhat academic because as I understand it, the father was made a bankrupt in the middle of 2010, and there have been a number of costs orders against him in previous proceedings where he has been unsuccessful;  and none of those have been paid.  I would be very doubtful as to whether any order might be satisfied. 

5. The costs in proceedings such as this, however, fall within section 117 of the Family Law Act 1975 (Cth) (“the Act”). That provision requires that each party pays their own costs unless there are circumstances justifying a departure from that principle.

6. Notwithstanding the father might contend that he is ill, it seems to me this is a circumstance where there is a reason to make an order for costs, particularly having regard to the discussion that was had on 14 January. If the court decides to depart from the principle in s 117, then it must consider the matter set out in section 117(2)A and although the father maintains that he has a bankruptcy problem and has lost his house, in the discussion that took place on 14 January, he indicated that in the proceedings in April, he was going to be calling expert evidence from a variety of chemists about the impact of an ethanol product on a breathalyser machine that has a severe impact on his liberty to spend time with his daughter.

7. I conclude that he probably has got some resources to support himself and to pay costs if ordered.  Costs are not intended as a punishment.  They are intended to compensate the party who has been brought into the proceedings and has to follow the lead of the applicant.  In these circumstances, it seems to me that it is appropriate to make an order for costs.  The costs sought are $3000 for the brief fee for counsel and the attendance of the solicitor, including the responding instructions to the application.  $3000 in the circumstances seems to be not only reasonable, but probably a little on the light side.  I am prepared to make an order in these circumstances, notwithstanding the father’s suggested impecuniosity. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 28 January 2011.

Associate: 

Date:  15 February 2011