Granger and Bennett-Slattery

[2007] FamCA 391

FAMILY COURT OF AUSTRALIA

GRANGER & BENNETT-SLATTERY [2007] FamCA 391

FAMILY LAW - PRACTICE AND PROCEDURE – Application by father for leave to file an amended response and an affidavit of evidence in chief – Non-compliance with orders by father – Long-standing order for child (aged 12 years) to live equal time with each parent – Leave granted to father to take part in proceedings on a defended basis
FAMILY LAW - COSTS – Awarded against father

Family Court Act 1975 (Cth)

APPLICANT: Mr Granger

RESPONDENT: Ms Bennett-Slattery

FILE NUMBER: DNF 271 of 1998

DATE DELIVERED: 2 March 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 2 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Black

SOLICITOR FOR THE APPLICANT: Cecil Black

COUNSEL FOR THE RESPONDENT: Ms Morgan

SOLICITOR FOR THE RESPONDENT: Maleys Barristers & Solicitors

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Strickland delivered this day will for all publication and reporting purposes be referred to as Granger & Bennett-Slattery.

Orders

1. That leave be granted nunc pro tunc to the father to file an amended response to an application for final orders.

2. That leave be granted to the father to file and serve his affidavit of evidence in chief, such affidavit to be filed and served by 4:00pm (NT) on 2 March 2007.

3. That leave be granted to the father to issue subpoenae to the Northern Territory Police and Family and Community Services seeking production of relevant documents, such subpoenae to be returnable on 15 March 2007.

4. That this matter be listed for trial in the Judicial Circuit in Darwin commencing on 19 March 2007 on the basis of not before 10:00am on 21 March 2007.

5. That the father pay the sum of $800.00 by way of costs to the mother’s solicitors, such amount to be paid within 2 months of the date hereof.

6. That leave be granted to the mother to file and serve a responding affidavit to the affidavit of evidence in chief filed by the father, such affidavit to be filed by 4:00pm on 14 March 2007.

7. That leave be granted to the mother to issue any subpoena that she may be advised to issue subsequent to receiving the affidavit of evidence in chief of the father, such subpoena to be returnable on 15 March 2007.

8. That the Form 2 Application filed by the father on 22 February 2007 be dismissed and removed from the pending cases list.

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: DNF 271 of 1998

MR GRANGER

Applicant

And

MS BENNETT-SLATTERY

Respondent

REASONS FOR JUDGMENT

1. Before me today is the Form 2 Application filed by the father on 22 February 2007 in which he seeks various orders, the effect of which is to allow this matter to proceed on a defended basis rather than the undefended basis on which it is currently listed.

2. I am not going to dwell too long on the history of the matter, but I need to say some things about that.  It seems this matter commenced this time around in March 2006.  I put it like that because there were proceedings in 1998 and there were orders made at that time in relation to the child the subject of these proceedings, and then the proceedings were commenced again in March with an application by the mother.  The mother filed a Form 1 Application on 30 March 2006 and the father filed a Form 1A Response on 24 August 2006.

3. As I understand it, the long-standing arrangement was that the residence of the child was shared equally between the parties.  The mother in her Form 1 Application filed in March 2006 sought a change to that arrangement such that the child reside primarily with her.  The father filed his response and the orders he sought were to maintain the long-standing position, namely the child live with the father in each alternate week and with the mother in each other week.

4. There was a Family Report ordered, which was prepared in November 2006.  In that report the Family Consultant recommended that the child continue to live with both parents on an equal time basis.  The Family Consultant indicated though that some changes in the time schedules and days of handover would assist in making the arrangement easier for the child.

5. The matter came before Registrar Dore on 25 August 2006, when orders were made to prepare the matter for trial.  Indeed that was when the order for the Family Report was made.  In any event, both parties were ordered to file their documents in time for a pre‑trial conference to take place on 17 November 2006.

6. Neither party complied with those orders and, on 17 November 2006, the time for filing documents was extended to 31 January 2007 and the pre-trial conference was adjourned to 16 February 2007.

7. The parties failed to comply with the orders made by the Registrar and the matter came before her on 12 February 2007, when the Registrar was advised that the mother sought orders somewhat different than in her Form 1 Application and that her affidavit of evidence in chief was almost ready.

8. The Registrar was asked to maintain the pre-trial conference which she did, and she extended the time for both parties to file and serve their affidavits of evidence in chief to 4:00pm on Thursday 15 February 2007.

9. On 12 February 2007 the mother complied with the orders made by the Registrar and there was a compliance certificate filed on 15 February 2007.  However, the father again failed to comply.

10. As a result, on 16 February 2007, Registrar Dore listed the matter for trial as a possibly undefended matter in the pool of cases not before 10:00am, Tuesday 20 March 2007, before me. 

11. The father has now filed his Form 2 Application, which I have referred to already, and a supporting affidavit.  In the supporting affidavit, the father attempts to explain why he has not filed the documents in compliance with the orders made by this court.

12. I am told that his affidavit, if he is allowed to file it, is now prepared and there is an amended response which was filed without leave on 27 February 2007 and thus is of no effect.  Ms Morgan has apologised for that.

13. The father also seeks an order that he have leave to issue subpoenas.  He wishes to have the Family Report writer attend and give evidence at the hearing.  You do not need a subpoena for that, that is a matter of request, but Ms Morgan tells me that the father wants to issue subpoenas to the Northern Territory Police and FACS, as a result of matters referred to in the Family Consultant's report.

14. There are no other witnesses that the father proposes to call and, as I understand it, the subpoenas would be subpoena duces tecum as opposed to subpoena ad testificandum.  Thus, the issuing of those subpoenas would not then lead to any further witness being required.

15. I am told by Ms Morgan that her time estimate of the hearing, if it is allowed to proceed as a defended matter, is 2 days.  I have explored that with Mr Black.  Mr Black does not have the father's affidavit although it was sent to him by post yesterday.  Doing the best he can, Mr Black has suggested it might be a 3 day case and also doing the best I can, I agree with him.  Thus, it is a 2 to 3 day case on that time estimate.

16. Initially Mr Black's instructions were not to oppose the application.  Upon me indicating to Mr Black though that if I made the orders sought in the application the matter may not be heard as a defended hearing in the next circuit Mr Black took instructions and came back to me with renewed instructions to oppose the application.  He says that this is a matter that needs to be heard in the interests of the child.  This case has been hanging over the child's head now certainly since March 2006 and I suspect even before that, because of course I am sure the dispute was well joined prior to March 2006.  In any event, this child who is now aged 12 years of age, does not deserve to have a dispute between her parents continue for longer than is necessary. 

17. As I have said, there is an affidavit filed by the father which attempts to provide reasons for his failure to comply with orders of this court.  Ms Morgan has spoken to that affidavit and made submissions to me.  As should be obvious though from my remarks to Ms Morgan along the way, I do not accept that the father has any proper excuse for not complying with orders of this court.

18. The excuses put are lame and do not provide any legitimate or reasonable basis for his failure to comply with orders of this court.  At the very least, once it was apparent that there were difficulties - if there were difficulties - in complying with the orders, rather than simply sitting back and doing nothing an application should have been made to this court seeking further time or to rearrange the pre-trial conference, but nothing like this was done.

19. In my view the father has simply thumbed his nose at this court, and I do not know why.  His affidavit does not tell me the real reasons as to why he has not complied with the orders of this court.  That said, the only submission that Ms Morgan has left is that it is in the best interests of this child that the father be allowed to be involved in the case and be permitted to present evidence in support of the orders that he seeks.

20. Mr Black in response, reminded me of his client's position namely that in the best interest of the child if there is any doubt about this matter being heard in March, it should proceed undefended.

21. Reluctantly and with grave misgivings, but because the interests of the child are paramount - which is something perhaps that the father might like to take a step back and put at the forefront of his mind - I propose to allow the application, even though that may mean the matter cannot be heard.

22. I will do everything I can despite the difficult and almost impossible position that the father has placed this court in doing its duty to the best interests of the child to have this matter finalised and dealt with in March.  However, if it cannot then unfortunately the child will be the one who suffers, in that the matter would not then be heard until June.

23. In light of the orders that I propose to make, which is to give leave to the father to file an amended response and an affidavit of evidence in chief, and to issue two subpoenas, Mr Black on behalf of his client has made an application for costs.  He seeks the amount of $1000.00 and he seeks that the costs be paid on an indemnity basis.

24. I have identified with Mr Black that the work involved in relation to this application would date back to 16 February 2007 when the parties appeared before Registrar Dore.  Since then of course there has been this application and the supporting affidavit.  Mr Black has had to peruse and consider that, and take instructions from his client and then attend today for this hearing, which has been quite an extensive and lengthy hearing.  He tells me that he has a costs agreement which provides for an hourly rate of $220.00 plus GST.  His assessment of $1000.00 is on the basis of 4 to 5 hours' work for this case.

25. Ms Morgan’s first application before me is that the costs should be reserved to the Trial Judge.  However in my view there is no basis whatsoever why the costs should be adjourned to the Trial Judge, and so I refuse that application.

26. Next, on the basis that I propose to deal with the application, Ms Morgan has said her client is in a difficult financial position.  Although he works as a horticulturalist, he has had to borrow money to pay his legal fees for the purpose of preparing documents on the assumption he would be allowed to take part in the case.  Ms Morgan says he simply cannot afford to pay any order for costs.  Ms Morgan, although invited to do so, made no submission in relation to the question of whether the costs should be paid on an indemnity basis.

27. Mr Black has further submitted that his client is also in a difficult financial position and she is struggling to fund her legal costs in relation to this matter and the trial.

28. As always, any application for costs is governed by Section 117 of the Family Law Act.  Subparagraph 117(2A) sets out the factors which I must take into account in considering whether there is any circumstance that justifies an order for costs and also in fixing any order for costs.

29. In my view there are ample circumstances here which justify an order for costs.  I need do no more than refer to my reasons for judgment just delivered in relation to the Form 2 Application filed by the father.

30. The fact of the matter, and as Mr Black rightly points out, is that if the father had complied with the orders of this court, this application would have been unnecessary.  Not only would the mother have not been put to meeting legal costs in relation to it, but the father would have not had to borrow money for this purpose either.

31. As a result of the husband’s failure to comply with the orders this application has had to be brought and it has had to be then met by the mother.  To repeat, there are ample circumstances in the conduct of the father which justify an order for costs.

32. As to the question of the amount of the costs, there is clear authority that it is only in exceptional circumstances that indemnity costs should be ordered. 

33. In my view though, there is a good argument why there should be indemnity costs ordered in this case and I refer again to my reasons for judgment delivered in relation to the Form 2 Application.  However, I do not propose to make an order for indemnity costs.  I propose to make an order as best I can in accordance with the scale of costs.  I certainly do not want to send this to taxation.  It is always my preference to fix the costs if I can, and I think that I can in this case.

34. In summary, in my view there are circumstances justifying an order for costs and I propose to make an order for costs.  I will come to that when I make the orders that I need to on the Form 2 Application.

I certify that the preceding
34 numbered paragraphs are
a true copy of the reasons herein of the
Honourable Justice Strickland.
The 2^nd day of March 2007.

……………………………………….
Associate