Denver & Fitzgerald
[2022] FedCFamC1F 989
Federal Circuit and Family Court of Australia
(DIVISION 1)
Denver & Fitzgerald [2022] FedCFamC1F 989
File number(s): SYC 5569 of 2019 Judgment of: BRASCH J Date of judgment: 14 December 2022 Catchwords: FAMILY LAW – COSTS – Where a costs order was made against the husband in favour of the wife – Where the husband had not complied - Whether the costs order ought be varied to include a timeframe for compliance – Where the wife proposed 30 days for the timeframe for compliance – Where the husband did not attend the hearing – Where Orders were made for the husband to make written submissions – Where no submissions were received – Order varied to 30 days for compliance Legislation: Family Law Act 1975 (Cth) s 117 Cases cited: Allesch v Maunz(2000) 203 CLR 172; [2000] HCA 40 Division: Division 1 First Instance Number of paragraphs: 18 Date of last submissions: 2 December 2022 Date of hearing: 25 November 2022 Place: Sydney The Applicant: Litigant in person The Respondent: Litigant in person (did not participate) Solicitor for the Independent Children's Lawyer: Legal Aid NSW Sydney Central Family Law ORDERS
SYC 5569 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DENVER
Applicant
AND: MR FITZGERALD
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BRASCH J
DATE OF ORDER:
14 DECEMBER 2022
THE COURT ORDERS THAT:
1.Order 8 of the 8 February 2022 Order be varied to read:
The husband pay the wife’s costs of proceedings in the sum of $25,000 within 30 days from the date of this Order.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Denver & Fitzgerald has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BRASCH J:
The parents are in dispute about the parenting arrangements for their children X born in 2007, Y born in 2008 and Z born in 2011.
Due to the limited scope of the issue before me, I will not provide any background or procedural history. Suffice to say, in the event the parties are unable to resolve their dispute through a Family Dispute Resolution process to be proposed by the Independent Children’s Lawyer (“the ICL”), then the ICL will arrange for an updated Family Report to be prepared by the Single Expert, Dr D. I have also made trial directions and set the matter down for trial for four (4) days commencing 8 August 2023 in the event it does not resolve.
On 8 February 2022, the Registrar ordered the following:
8. The husband pay the wife’s costs of proceedings in the sum of $25 000.
When the matter came before me on 25 November 2022 for Case Management and to set the matter down for trial, the applicant mother informed me that the February 2022 costs Order had not been paid. I was told the Order was not the subject of appeal.
I am satisfied that the father was well aware of the costs Order of 8 February 2022, because the Order provided that he was in attendance:
UPON APPLICATION MADE TO THE COURT by [Mr Q] of Counsel for the Applicant mother, the Respondent father in person and [Ms R] as the Independent Children’s Lawyer
The respondent father did not appear at the November 2022 Case Management Hearing, despite notice of the hearing being sent to the address for service he filed with the Court. He, like the mother and ICL, was given notice of the 25 November 2022 hearing date on 9 August 2022 by email. When the mother and ICL appeared, the ICL indicated she had heard from the father during the week that his wife was about to give birth. I note he was able to communicate with the ICL in the lead up to the hearing, but did not provide any communications to the Court that he could not attend.
I confirm the father was called three times and there was no response.
Turning to the costs Order of February 2022, it is obvious that the Order does not provide a timeframe for the father to pay the costs.
The notations to my Order of 25 November 2022 indicated the mother’s position was that the costs Order be paid within 30 days. Understandably, the ICL did not make any submissions about this.
An officer of this Court has determined that there were circumstances justifying an order that the father pay the mother’s costs and in the sum of $25,000. It is therefore unnecessary for me to work through the relevant s 117 Family Law Act 1975 (Cth) factors. That was done by the the Registrar.
All that is before me now is whether I ought vary the February 2022 costs Order to provide a timeframe for payment. As said, it was the mother's position that the costs be paid within 30 days. She also said that the father was able to take the children on holidays to Country S over Christmas, so, she said, it seemed he had available funds. I will not place any weight on that evidence from the bar table.
Noting the father did not attend the November 2022 hearing, I gave the father the opportunity to be heard about a timeframe for payment, by making Orders as follows:
7.By 4.00 pm 2 December 2022 the respondent is to provide brief written submissions (by email to associate.…@...) with respect to the time frame he proposes to comply with the costs order of the Registrar of February 2022 Order 8 which is:
8. The husband pay the wife’s costs of proceedings in the sum of $25 000.
8. In the event the respondent does not provide any submissions, then Order 8 will be varied to include a timeframe as determined by the Court in chambers.
(Orders 7 and 8 of the Orders made 25 November 2022)
The Order was emailed to the parties at their addresses for service at 3.35 pm on 25 November 2022. I am thus satisfied the Order came to the father’s attention. It is also the case that the Order was made some 10 months ago.
The father did not provide any submissions, or even ask, for example, for an extension of time to make submissions due to some reason which may warrant same.
Procedural fairness requires the opportunity to be heard. So much so was apparent from what Kirby J said in Allesch v Maunz(2000) 203 CLR 172 at [38]-[40]:
.. Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.
Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.
Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment. The rights of other parties are commonly involved. In the Family Court, the rights of non-parties (especially children) may be affected. Additionally (as this Court has itself accepted, the rights of the public in the efficient discharge by courts of their functions must be weighed against unreasonable delay in concluding litigation.
(emphasis added)
By giving the father the opportunity to be heard, I am satisfied he has been afforded procedural fairness. In the meantime, there is a costs Order for the mother’s benefit, which remains unpaid.
The mother proposed payment be made within 30 days. I agree. That is not such a short period of time as to leave the father to “scramble" to find the money, but, it is equally not such a long period of time to render the Costs Order futile in the hands of the mother. It has already been 10 months since the order was made.
I therefore will vary the order of 8 February 2022 and require the father to pay the mother’s costs of $25,000 within 30 days of this Order.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 14 December 2022
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