Drew & Drew

[2007] FamCA 646

FAMILY COURT OF AUSTRALIA

DREW & DREW [2007] FamCA 646

FAMILY LAW – COSTS – Recovery proceedings

Family Law Act 1975 (Cth)

APPLICANT: Mrs Drew

RESPONDENT: Mr Drew

INDEPENDENT CHILDREN’S LAWYER: Krstina Wooi

FILE NUMBER: NCF 133 of 2006

DATE DELIVERED: 22 June 2007

PLACE DELIVERED: Newcastle

EX TEMPORE JUDGMENT OF: Steele J

HEARING DATE: 22 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Tregilgas

SOLICITOR FOR THE APPLICANT: Burke & Elphick Lawyers

COUNSEL FOR THE RESPONDENT: Mr Peattie

SOLICITOR FOR THE RESPONDENT: Paul Gowran & Co

Orders

1. That compliance with the Rules which require a Notice of Ceasing to Act to be filed is waived and the husband’s solicitor, Mr. Gowran’s application for leave to withdraw is granted conditional upon him filing a Notice of Ceasing to Act within 7 days.

2. That the husband pay the wife’s costs of the recovery proceedings.  Those costs to be as agreed or taxed.

3. That the husband has leave to file within 14 days an application to set aside these orders, which must be supported by an affidavit relating to his capacity to instruct, his inability to attend today and any issue relating to the merits of the costs issue.

4. That the wife has leave to serve a copy of these Orders on the husband at E and at G no later than 5:00 pm Monday 25 June 2007.

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCF 133 of 2006

Mrs Drew

Applicant

And

Mr Drew

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter the wife brings an application for an order for the costs of proceedings of and associated with the recovery proceedings, orders in respect of which were made on 22 May 2007 by me.  The matter came back before me on 25 May after the recovery order had been executed. 

2. It is important to note that the orders made on 22 May specifically required and provided for a warrant for the recovery order not to issue until 10 am on the following day in order to give the husband time to return the child. 

3. An order was also made at the same time that the husband be served with the orders by, I think, 9 o'clock that evening, but in any event the orders were served on him at five to six that evening.  Nonetheless he made no attempt to comply with the Court order which required that he return the child forthwith.  The police were thus required to execute the warrant the following day with the attendant community costs and embarrassment, perhaps, to the child involved.

4. It seems to me that the wife has in fact done all she could have done to avoid the recovery proceedings being taken and all that she could have done to avoid the costs of those proceedings being incurred. 

5. In those circumstances I would make an order, firstly, that the hearing of these proceedings proceed on an undefended basis.  The counsel, who previously represented the husband, appearing only as amicus curie in circumstances where his solicitor was unable to obtain any instructions, the circumstances where the wife says that she has seen the husband working on two occasions at least within the last few weeks, and the circumstances which are disclosed in the letter from the counsellor who has apparently been seeing the husband, are matters that I take into account. 

6. I think it probable in all the circumstances that the husband may in fact be well enough to deal with this matter and to give instructions.  However, because of things that were said to me by counsel as to the views that he formed on the occasion of 5 June 2007, then I have some reservations about it.

7. However, in the circumstances I am prepared to proceed with the matter on an undefended basis and I am satisfied that it is appropriate to make an order that the husband pay the wife's costs of the recovery proceedings.  Those costs to be as agreed or taxed. 

8. The further order that I make is that the husband has leave to file within 14 days an application to set aside these orders, which must be supported by an affidavit relating to his capacity to instruct, his inability to attend today and any issue relating to the merits of the costs issue.

9. I grant leave to the wife to serve copy of these orders by post to the husband at E and G  no later than 5:00 pm Monday 25 June 2007.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Steele

Associate: 

Date:  28 June 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as DREW & DREW