G and F
[2003] FMCAfam 476
•31 October 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| G & F | [2003] FMCAfam 476 |
| PRACTICE AND PROCEDURE – FAMILY LAW – Notice of discontinuance – failure to serve upon respondent – costs order. |
Family Law Act 1975
| Applicant: | GIE |
| Respondent: | FMC |
| File No: | MLM5066 of 2003 |
| Delivered on: | 31 October 2003 |
| Delivered at: | Melbourne |
| Hearing date: | 16 September 2003 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| Counsel for the Applicant: | No appearance |
| Counsel for the Respondent: | Ms Glaister |
ORDERS
Leave to the applicant to withdraw his Form 49 application filed
6 August 2003.The applicant pay the respondent’s costs fixed in the sum of $2,050 within 6 months hereof.
The solicitors for the respondent notify the applicant’s solicitors of the making of this order within 21 days hereof.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLM5066/2003
| GIE |
Applicant
And
| FMC |
Respondent
REASONS FOR JUDGMENT
The applicant father filed an application for contravention contained in form 49 on 6 August 2003. As required by the Federal Magistrates Court Rules 2001 an affidavit in support of that application was filed and sworn by the application, the date of swearing being 31 July 2003. The father resides in the State of New South Wales and is a truck driver by occupation, the mother resides in B and is in receipt of a pension. The four children of the relationship reside with her. They are all young children.
The applicant filed a notice of discontinuance on 15 September 2003 and the application was returnable on 16 September 2003 which is this day. The father did not appear and nor was he represented before me this day. Counsel appeared briefed by a firm of solicitors and acting on behalf of the respondent.
There was no service of the notice of discontinuance upon the respondent mother prior to today's date. The mother has travelled from B to attend Court only to discover that placed upon the Court file is a notice of discontinuance.
The mother is in receipt of legal aid and is in receipt of social security payments. The father works in the trucking industry.
The mother sought costs of the proceedings.
Pursuant to subsection 117(2) of the Family Law Act 1975 this Court can determine that there are circumstances that justify the making of a costs order. The matters to be taken into account are those as set out in subsection 117(2A) of the Act.
Counsel was unable to assist me as to whether the mother is in receipt of child support. Likewise there is no material before me as to the father's financial position, save that he is a truck driver and in employment. The mother is in receipt of Legal Aid. The conduct of the father has been such that the mother has attended this day with counsel acting on her behalf in circumstances where had she been advised of a discontinuance of the proceedings by the father the expense and inconvenience to her would not have been caused this day. The failure to serve upon the other party the notice of discontinuance is in my view conduct which merits the making of a costs order against the applicant. It has been no easy matter for the mother to travel from B to Melbourne this day.
Costs claimed by counsel acting on behalf of the mother are according to the schedule of fees provided by this Court's rules. Cost claims which I propose to award are in the sum of $1,365 being stage 1 initiating and $685 being a half day hearing fee. This amount totals $2,050. I shall provide time for the applicant to comply with this order given my lack of information pertaining to his immediate personal circumstances.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Harnett FM
Associate: T. Jones
Date: 31 October 2003
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