C and C - [2002] FMCAfam 407

FEDERAL MAGISTRATES COURT OF AUSTRALIA

C & C

[2002] FMCAfam 407

FAMILY LAW – Contravention application – referred to interim orders – final orders made without knowledge of applicant – Leave granted to amend Contravention application – times abridged.

PRACTICE AND PROCEDURE – Costs – No order for costs where error of Court.

Family Law Act 1975 s.117

Applicant:

C D C

Respondent:

B A C

File No:

MLM 9954 of 2002

Delivered on:

10 December 2002

Delivered at:

Melbourne

Hearing Date:

10 December 2002

Judgment of:

McInnis FM

REPRESENTATION

Applicant:

In person

Solicitor for the Respondent:

Ms S.B. Hamilton-Green

Solicitors for the Respondent:

Hogg and Reid

ORDERS

That the applicant be granted leave to file and serve an amended application for contravention whereby he shall refer to the orders made on 4 May 2001 and refer to each and every alleged contravention thereafter by 4 pm on 12 December 2002.
That the applicant shall file and serve any further affidavit in support of the amended application by 4 pm on 12 December 2002.
That the amended application be adjourned for hearing on 20 December 2002 at 10 am.
That the applicant be granted leave to file any application to vary the orders made by the court on 4 May 2001 and all times be abridged to permit that application to be heard together with the amended contravention application.
Any application to be filed and served by the husband shall be filed and served by 4 pm on 13 December 2002.
The respondent shall be granted leave to file and serve any response and affidavit material after determination of the amended contravention application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM 9954 of 2002

C D C

Applicant

And

B A C

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application which has been brought by way of a contravention application filed on 2 December 2002. In that application C D C (the Applicant) has sought application for contravention against B A C (the Respondent). The application recites alleged breaches of orders which were made on 7 December 2000 at the Federal Magistrates Court in Townsville.
This matter has been referred to the court during the duty list and before the matter proceeded it became clear at the outset that after 7 December 2000 the file had been transferred to Melbourne for further consideration and hearing. Certain orders have been made since

7 December 2000. In particular it is noted that on 13 March 2001 orders were made by Chief Federal Magistrate Bryant for counselling and further that the matter was listed for hearing on 4 May 2001 at 10 am with an estimated hearing time of one day. Further orders were made in relation to any response and affidavits.
It is said in the orders that if the father intends to file an affidavit in relation to the application of the mother, then he should make, file and serve those documents on the solicitors for the mother by 4 pm on 20 April 2001. In that order of 13 March 2001 the introduction says:
“This application coming on before the court and upon hearing Ms Hamilton-Green for the wife and there being no appearance for and on behalf of the wife.
That order is clearly in error. There was in fact no appearance for and on behalf of the husband. It should be made clear on the material there was at an earlier point in time a reference to a firm of solicitors acting for and on behalf of the father; that is, the firm Dean and Bolton of Cairns. It is also clear that firm had in fact ceased to act for and on behalf of the father by notice filed 5 December 2000.
When the orders were made by the court on 13 March 2001 it seems clear from the documentation on the court file that by that date the firm of solicitors to which I have referred had then ceased to act for and on behalf of the father. So much is clear from a notice that the solicitors ceased to represent the party being filed on what appears to be 5 December 2000. It was therefore appropriate that on the order of 13 March 2001 the address for the husband was his private residential address in Queensland.
For reasons which are not readily apparent from the file, having regard to that history that I have just recited, final orders were made, on

4 May 2001 when the matter was before Federal Magistrate Hartnett. On that day the preface to the order on file indicates, “This matter coming on for hearing before Federal Magistrate Hartnett and upon hearing Ms Hamilton-Green for the respondent wife.” No reference in the order is made as to whether there was or was not any appearance for the applicant father.
It is common ground, however, that on that date the applicant father did not attend. It also appears from the material on the file that between the date of the order made in March and the date of the order made in May only one other document appears to be filed for and on behalf of the wife; namely, an affidavit in support sworn by the wife on 4 May 2001 that is the day of the hearing though I note the affidavit has not been stamped by the Court. Other material on the file has been incorrectly stamped 7 December 2001 and clearly the date should be

7 December 2000. There does not appear to be any further material filed for and on behalf of the husband as apparently contemplated by the orders of 13 March 2001.
The orders of 4 May 2001 appear to indicate the address for the applicant as being “Dean & Bolton” of Cairns. It is clear from what I have just indicated in these reasons for decision that that firm of solicitors had ceased to act for and on behalf of the father as far back as December 2000. It is equally clear that there is nothing on the file to indicate why that address should have been chosen as the address to serve the final orders of this court.
In the circumstances I am satisfied that as a direct consequence of an error by the court, and in the absence of evidence to the contrary, I am further satisfied that the father has not received and did not receive a sealed copy of the final order of this court made 4 May 2001. That occurred through no error on the part of the parties.
In this matter having canvassed the various options that may be available I have decided that the applicant in the contravention application to which I have referred earlier, should be given the opportunity to file and serve an amended application where he now refers to the ‘final orders’ made on 4 May 2001 and where he now may refer to each and every alleged contravention. In addition, I have granted him leave to file and serve any further affidavits in support of the amended contravention application and I have endeavoured to abridge times to accommodate that hearing.
I have further granted leave to the applicant father to make application to vary the orders made in his absence on 4 May 2001 and in those circumstances have again abridged all times to allow that application to be brought before the court as a first hearing at the same time as the date fixed for the further hearing of the amended contravention application. I have further made an order that in the circumstances it would be inappropriate for the respondent wife to be required to file and serve a response and/or affidavit material to the proposed application for variation prior to the determination of the amended contravention application. This is clearly appropriate in circumstances where to require the respondent wife to do otherwise would be to contravene her basic rights not to provide material which may be used against her in the contravention application as amended.
Having made all those orders and indicated that that was the course to be followed in this matter, Ms Hamilton-Green for and on behalf of the respondent wife has made an application for costs. In considering an application for costs the court has to decide whether or not it is just to make such an order in circumstances where there is a normal presumption that there be no order for costs in family law matters (Family Law Act 1975 s.117). In my view, without having the need to hear from the Applicant in this matter, it is clear that there has been an error in terms of the service upon the husband of final orders made in his absence. I am satisfied that the orders did not come to his notice. I am further satisfied that as a direct consequence his contravention application would otherwise probably face the risk of being dismissed as it referred to interim orders no longer in force since May 2001.
It is acknowledged that as a matter of fairness the respondent wife through counsel has conceded that amendment could be made, although for the present purposes that amendment was going to be made in relation to only one breach where an admission would be made. In the circumstances the applicant father has indicated there is more than one breach alleged and in those circumstances it was appropriate that I grant him leave to amend his application.
Having regard to that detailed chronology, I have little doubt that it would be inappropriate in a matter of this kind to exercise my discretion to make an award for costs, notwithstanding the fact that I can see no fault or error on the part of the respondent wife. However, that is but one factor in relation to the award of costs which I must consider. In my view the more relevant issue is the fact that there is likewise no fault that I can readily detect for and on behalf of the father in this matter and no fault of his can be demonstrated in terms of what is now obviously an inadequate and misconceived contravention application. Further, in the circumstances, I am satisfied it is proper to give him an opportunity to consider the final orders made in his absence made on 4 May 2001 and bring an application, as indicated, to vary those orders if he chooses to do so.
For those reasons there will be no order for costs but I will make orders of a kind indicated. I will direct that the reasons for decision be transcribed and upon review shall constitute my reasons for decision.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 10 December 2002