G and M - [2004] FMCAfam 201

FEDERAL MAGISTRATES COURT OF AUSTRALIA

G & M

[2004] FMCAfam 201

FAMILY LAW – Family Law Rules 1984 (Cth) Order 35 Rule 6 – requirement to file affidavit in support of Form 49 application – “must” – discretion – necessity that respondent travel interstate to attend hearing – custodial sentence – video link – costs – financial position of each party – stay.

Family Law Act 1975 (Cth)

Family Law Rules 1984 (Cth)

Applicant:

GNM

Respondent:

MHM

File No:

MLM 9029 of 2003

Delivered on:

16 March 2004

Delivered at:

Melbourne

Hearing Date:

16 March 2004

Judgment of:

Hartnett FM

REPRESENTATION

Counsel for the Applicant:

Mr Howe

Solicitors for the Applicant:

McNab McNab & Starke

Counsel for the Respondent:

Mr J. Cantwell

Solicitors for the Respondent:

Victoria Legal Aid

ORDER

Leave to the applicant to withdraw his Form 3 application filed
30 January 2004.
The Form 49 application filed 12 March 2004 is struck out.
The father pay the mother's costs fixed in the sum of $2,951 which is inclusive of the earlier amount reserved on 10 February 2004. There be a stay in relation to the payment of such costs of 24 months.

AND IT IS DIRECTED THAT:

Any further proceedings between the parties be filed in the Family Court of Australia

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM 9029 of 2003

NMG

Applicant

and

HMM

Respondent

REASONS FOR JUDGMENT

This is an ex tempore judgment in a duty list.
The father is the applicant in an amended application for contravention of child order filed 12 March 2004. This is a Form 49 application. The father alleges in that amended application three counts of contravention as set out in paragraph 8. Those counts are said to have occurred on the 16th day of December 2003, 19 December 2003 and 10 January 2004.
The father annexes to his application a copy of orders made in the Family Court of Australia at Melbourne on 19 November 2003 before The Honourable Kay J. Those orders were made following the hearing of a contested proceeding between the parties. The father, as I am told in submissions from the bar table, has appealed the making of those orders and that appeal is still to be heard by the Full Court of the Family Court of Australia. There were also proceedings by the father in the Family Court of Australia by the father seeking a stay in relation to the operation of those orders. The father’s Form 49 application was filed in this Court on 17 December 2003 and subsequently amended.
On 30 January 2004 the applicant filed a second application being a Form 3 application in this Court. He filed an affidavit in support of that application on the same date. That affidavit is quite voluminous. That affidavit has various annexures to it and deals with a raft of issues.
The matter first came before the Court (that is, the father's Form 49 application) on 10 February 2004. Each of the parties were represented and on that day the court ordered by consent that all extant applications were adjourned to 16 March being the return date of the Form 3 as known to counsel. The costs of the parties were reserved with those of the mother being fixed in the sum of $900. The mother had travelled from B in the State of Queensland. The mother this day travelled from B to answer the contravention application.
The father seeks to withdraw his Form 3 application. I have granted him leave to withdraw that application filed 30 January 2004. The Court then moves to a consideration of his amended contravention application. The father seeks to rely on, in support, the affidavit he filed in support of his Form 3 application which is now withdrawn. The father then withdrew from this course and sought to rely only upon paragraphs 1, 2, 4, 12.2, 12.4, 12.5 and 13 together with oral evidence. He desisted from that course that is, the giving of oral testimony, when it was suggested by the Court that the mother would have insufficient notice of the factual basis forming the alleged counts against her.
Counsel for the respondent mother objects to the father proceeding with his contravention application in this manner. He submits that the Rules of the Court must be complied with; that the Court should not exercise any general discretion; and that those Rules (Order 35 Rule 6) indicate that with the Form 49 application there must - and I stress the word `must’ - be filed an affidavit in support which deposes as to the facts which are sought to be relied upon. Counsel for the mother says that the affidavit of 30 January 2004 is contaminated and that it is not appropriate in proceedings of this kind to try and extract parts of that affidavit and say that they are the facts relied upon in these proceedings.
I accept the submissions of counsel for the mother. I think that the mother as a respondent to a contravention application is entitled to know precisely those facts which are relied upon without contamination of any sort from any other matter which is prejudicial to her. I think that the inclusion of the word "must" directs the court as to that which is required to be filed in an application of this type.
The next issue which I must address is one of costs. The mother seeks an order for costs. The mother's costs in the sum of $900 were reserved on the last occasion. At that point in time the father had not filed his amended application and did not have before the Court an application which he desired in its then form to proceed with. It was questionable as to whether he could have. He has now amended his application but failed to address the requirement that there be an affidavit in support. Significant costs, including travel costs, have been occasioned to the mother again this day.
I find that the amount of $2951 should be paid by the father to the mother. That amount is calculated as follows: Costs were fixed for the mother in the sum of $900 on 10 February 2004 by consent. It is quite clear that those costs were occasioned to the mother by the father whom desired to adjourn the matter in order to amend his application. He is responsible for the payment of those costs. Indeed his counsel does not argue against that. That is a sum of $900.
The mother has this day attended and incurred an airfare of $524 in presenting herself at Melbourne. She is the respondent to a Form 49 application. The argument has been put by counsel for the father that the mother could have applied to the court for a video‑link of this hearing. No thought was given in this submission to the Court’s possible requirement that the mother meet the cost of such video-link where she requests it. I accept the submissions by Counsel for the mother that this is a serious application and that were a judicial officer inclined to impose a custodial sentence, it is important that the mother be here. In addition and compellingly, the mother sought to call a witness in her defence who resides in Melbourne. That person is in the courtroom this day and was here and available to give evidence. In all of those circumstances it is appropriate that the mother attended this day. She now seeks those costs from the father.
The Court’s scale of costs as set out in Schedule 1 of the Federal Magistrates Court Rules 2001 makes an allowance of $1027 for counsel's fees on a half‑day hearing. That is inclusive of the 50 per cent advocacy loading for counsel. I have allowed a further amount of $500 for solicitors' fees. That is a discounted amount. Our scale in fact allows a greater amount than that. In light of the husband's financial position to which I shall turn I have discounted that amount. I do not propose to discount the preceding amounts, indeed, cannot discount the fixed amount. The total amount is $2951.
The husband says that he is in receipt of a Newstart allowance of $165 a week and pays rent of $115. He claims to have no assets of any description to his name. He describes himself as “worse than broke”. That is clearly a matter which I must take into account under section 117(2A) of the Family Law Act 1975. However, the mother's position is that she is in receipt of a supporting pension and has the care of five children. I am mindful that neither of these parties can readily afford legal costs. I am mindful that both are currently legally aided.
It is appropriate that the father meet the mother's costs. He is wholly unsuccessful in the proceedings and his conduct has been such that the mother is the named respondent to a number of applications initiated by him including one withdrawn this day and one struck out. I propose to order a stay in relation to the payment of those costs. I shall order a stay of some 24 months given the current income of the father. There is nothing before me which would lead me to conclude that he has not an earning capacity greater than the Newstart allowance and I take that also into account albeit, even were this not so, I have determined that the husband should pay this sum of costs over a 24 month period.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate: Sophie Killen

Date: 3 May 2004