Eliot and Maxfield (No 2)

[2017] FamCA 1096

FAMILY COURT OF AUSTRALIA

ELIOT & MAXFIELD (NO. 2) [2017] FamCA 1096

FAMILY LAW – ORDERS – Contravention – Parenting – Where the applicant father did not appear at the hearing – Where the application was dismissed for want of prosecution.

FAMILY LAW – COSTS – Where the respondent mother and Independent Children’s Lawyer sought costs against the applicant father – Where an order for costs is made.

Family Law Act 1975 (Cth)

APPLICANT: Mr Eliot

RESPONDENT: Ms Maxfield

INDEPENDENT CHILDREN’S LAWYER: Ian Field

FILE NUMBER: BRC 2474 of 2013

DATE DELIVERED: 28 November 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 28 November 2017

REPRESENTATION

THE APPLICANT: No Appearance

SOLICITOR FOR THE RESPONDENT:

Ms Huth

Legal Aid Queensland

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Field

Aylward Game Solicitors

Orders

1. That the Application – Contravention filed by the father on 6 July 2017 be dismissed for want of prosecution.

2. That the father shall pay the mother’s costs of and incidental to the application dismissed for want of prosecution, fixed in the sum of $1,695.

3. That the father shall pay the Independent Children’s Lawyer’s costs of and incidental to the application dismissed for want of prosecution, fixed in the sum of $1,215.

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 Eliot & Maxfield (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 BRISBANE

FILE NUMBER: BRC 2474 of 2013

Mr Eliot

Applicant

And

Ms Maxfield

Respondent

And

Independent Children's Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. On 6 July 2017 the father in this parenting disputed filed an Application in Contravention in which he alleges a number of contraventions by the mother of parenting orders made in proceedings between them that regulate their parenting of their child, B, who is seven years of age. 

2. As I read it, the father makes allegations in respect of five alleged contraventions by the mother. The matter was listed, when filed, for hearing before me today, just under five months after its filing date, which shows the nature of the lists in this Court.  The father filed an affidavit in support of his application on the same day.  The mother, as is her right, has obviously elected not to file an affidavit but is here today represented by her solicitor from the Legal Aid Office of Queensland. 

3. This morning, 28 November 2017, the day of the hearing, that was allocated nearly five months ago, I have been informed by my associate that she has been informed by registry staff that the father has contacted the Registry by email indicating that he was not going to turn up and appear this morning on what is his application to have the mother dealt with for contravention.  Indeed, as was passed on to me by my associate, the father told the Court that he had no intention of turning up because he did not expect “true justice” from the Court. 

4. It was apparent to me that the solicitor for the mother and the Independent Children's Lawyer who have attended and appeared this morning in response to the application, were not given the same courtesy that the Court at least was given by the father, if it can be called that, by being told that he was not going to turn up.  They have both confirmed that to me in open court just now that the first they heard that the father had made a conscious and wilful decision not to turn up was when I told them from the bench this morning.  

5. Of course it follows that the Contravention Application has to be dismissed for want of prosecution.  The solicitor for the mother makes an application for the father to pay the mother’s costs of and incidental to responding to the application.  The Independent Children’s Lawyer makes a similar application.  In support of the application for costs, Ms Huth tendered into evidence, which I have made Exhibit 1 in the proceedings, a letter written by the Legal Aid Office to the father and sent to him on 5 October 2017, nearly two months ago. 

6. Although it is the right of a respondent in contravention applications to keep their defence to themselves until the hearing, in this particular case, the mother’s solicitor informed the father effectively of what sort of things the mother was going to be raising in her defence.  The solicitor effectively invited the father to withdraw the Contravention Application, in the event that he did not, it would be necessary for the solicitor to obtain a Legal Aid grant for their client to defend the proceedings and they put him on notice that should he be unsuccessful in his Contravention Application if he determined to proceed with it, that they would be seeking costs against him.  Clearly he was aware that if he was unsuccessful he would have to face a costs application.  Indeed, implicit in that is, in my view, knowledge that if he chose on the morning of the hearing simply not to turn up to prosecute his application, that a costs application would probably follow.

7. Section 117 of the Family Law Act 1975 that applies, in sub-section (1) sets out the general proposition that proceedings under the Family Law Act, which proceedings these are, each party bears his or her own costs. However, that is subject to a conferral of discretion on this Court to determine otherwise if the Court is satisfied that the circumstances so justify and if the Court is so satisfied, the Court may make an order that it considers just. The Court must have regard to matters that are set out in s 117(2A), and without listing all of those, having read them too many times to remember in my 30 years as a family lawyer, I take account of them all, including the last one which is sub-section (g) which says “any other matter that the Court considers relevant”.

8. Two of those perhaps in this particular case are from my point of view are determinative in this matter.  The father’s conduct in bringing, not for the first time a Contravention Application against the mother and then on the morning of the hearing simply telling the Court that he was not going to attend is conduct sufficient, when combined with giving no notice to the other parties, to warrant, in my view, an order for costs being made against him, both in respect of the costs incurred by the respondent mother and the costs incurred by the Independent Children’s Lawyer. 

9. The fact that both the mother and the Independent Children's Lawyer are funded by the Legal Aid Commission in one respect is relevant because it, for the father’s sake, reduces the amount of costs that he is going to be required to pay pursuant to a costs order, because had the mother been represented privately, one would expect him to be ordered to pay a lot more in costs thrown away by her.  Secondly though, the public purse, as we all know these days is relatively bare, at least in terms of monies advanced to the Legal Aid offices of this country by those responsible for advancing them for use in family law proceedings.  Simply because it is public funds is no reason in my view not to order a person to pay costs, and in this case I will be making the orders.

10. I have been informed by Ms Huth that the costs incurred by the mother in respect of her defence of this application that is now being dismissed for want of prosecution, are $1,695.  I am informed by Mr Field, the Independent Children’s Lawyer that his costs are $1,215.

11. I order accordingly.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 28 November 2017.

Associate: 

Date:  22 December 2017