Grant and Curtis and Anor

[2010] FamCA 1089

FAMILY COURT OF AUSTRALIA

GRANT & CURTIS AND ANOR [2010] FamCA 1089

FAMILY LAW – CONTRAVENTION – No appearance by father – Order that father pay other parties’ expenses

Family Law Act 1975 (Cth)

APPLICANT: Mr Grant

1st RESPONDENT: Ms Curtis

2nd RESPONDENT: Ms Warner

FILE NUMBER: MLC 1992 of 2008

DATE DELIVERED: 16 November 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 16 November 2010

REPRESENTATION

THE APPLICANT: No appearance

1ST RESPONDENT: In person

2ND RESPONDENT: In person

Orders

1. That the application for contravention filed by the father on 30 September 2010 is struck out.

2. That the father pay to the respondent Ms Curtis the sum of $249.90 by no later than 4.00pm on 16 December 2010.

3. That the father have liberty to apply within 7 days of this date to set aside paragraph 2 of these orders on condition that he files an affidavit as to why he did not notify the respondents of the fact that he was not attending the hearing.

4. That the reasons this day be transcribed and be made available to the parties.

IT IS NOTED that publication of this judgment under the pseudonym Grant & Curtis and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1992 of 2008

MR GRANT

Applicant

And

MS CURTIS

Respondent

MS WARNER

Respondent

REASONS FOR JUDGMENT

1. On 30 September 2010, the father Mr Grant filed an application in this Court returnable on 10 November 2010. His application was against two respondents, Ms Curtis and Ms Warner.  Ms Curtis is the grandmother of J, and Ms Warner is the mother.  Why both respondents were joined is not at all clear from the application.  The application is a contravention application alleging that there have been four breaches of orders made by the Court.  Those allegations related to August and September.  The matter was listed on 10 November in the duty list.  That was a very busy day, and I made it clear that I was not going to be able to hear the case that day but at the request of the parties specifically set it down for hearing today when I had a little more time.

2. One of the issues that was raised on 10 November was an impending application by the Department of Human Services relating to J in the Children’s Court.  The grandmother indicated to me at the time that she was aware that the application, although not having been served upon her, was going to be brought.  The father’s response at the time was that he knew nothing about that but it did not trouble him because he said this had been something that the grandmother had said on previous occasions.  He was asserting, as I understood what he was saying, that it was all untrue.  That is perplexing because the very basis upon which the father brought the application was the fact that J was not handed to him at the contact centre.  Even on the father’s version of things there have been significant problems with the child attending. 

3. The other unusual feature of the case was that the grandmother filed an affidavit responding to the allegations.  The father’s application set out very little detail other than the fact that he said that he had been denied time with the child without reason being given.  The grandmother set out very comprehensive information, and I have been told today that the document was served on the father by a process server.  There could be no doubt, therefore, that the father was well aware of the nature of the dispute when it came before the Court on 10 November.  The very day after that hearing was adjourned until today, the father was served with a protection application returnable in the Children’s Court on 29 November.  I know that because the father has written to the Court on that same day indicating that he had received a protection application and enclosing a copy of it.  That is obviously important because it was a subject of discussion on 10 November. 

4. The father in his letter says and I quote:

   I will not be attending the Federal Magistrates Court hearing on next Tuesday, 16 November 2010, because the proceedings in the Children’s Court take precedence over matters in the Federal Magistrates Court.  Also, I start a new job on Monday, 15 November 2010 and will, therefore, not be able to attend the Court.

   Leaving aside the issue of the mixing up of courts which is understandable, the fact that the father was served with the contravention, does not entitle him to simply ignore the fact that there was a court sitting today.  I am troubled about the fact that he said on the very day after the hearing before me that he was to start a job on Monday, November 15.  It defies logic that he did not know that on 10 November.

5. All of that pales into insignificance though, because this morning, the grandmother and the mother as the respondents (as they should) have driven down from regional Victoria because they have not been given any notice of the fact that the father was not going to attend.  They too were served with the protection application but only yesterday.  That might give rise to some issue about jurisdiction.  However, the fact that they were not notified has meant that they have come all the way from regional Victoria today at considerable expense.  The grandmother says that she has driven down and in so doing lost about $32.70 for an hour as work as a lollipop lady, $40 for petrol and $8 for an E-tag.  In addition, she claims the costs of $169.20 for the process server who served the father.     

6. No professional costs are claimed, but I see no reason in the circumstances why the grandmother should be out of pocket at all having regard to the fact that it was the father’s application.  He did not have the courtesy to let the respondents know that he was not going to proceed with his application.  There is every reason under those circumstances to make an order that he pay the expenses of the grandmother for what she has lost today.  The mother makes no claim for moneys on the basis that she drove down with her mother.  Thef ather must understand that the whole nation cannot simply sit around and wait for him.  He cannot simply send a letter, like he has, having activated the court process in the first place.  It is the height of rudeness to not tell the respondent that he is not going to proceed with his application.  And he clearly indicates in his letter that he is aware there is a jurisdictional problem even though he describes it as the Children’s Court taking precedence over matters in this Court.

7. I made it abundantly clear to him on 10 November that there was a jurisdictional problem.  In those circumstances, I have no idea when, if at all, the Children’s Court is going to complete the matter and if the jurisdiction of the Children’s Court means that the orders of this Court lapse, then that is a matter that the Children’s Court no doubt will consider.  The applicant not having attended, it is appropriate that his application filed 30 September 2010 be simply struck out.  I propose these reasons be transcribed and to be made available for all parties and be placed on the court file.

8. I will make an order that the father pay to the grandmother $249.90 within 30 days.  I will also make an order that the father have liberty to apply within seven days of this date to set aside the orders relating to the order for expenses providing he files an affidavit in support as to why he did not notify the respondents about the fact that he was not going to continue his application.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 16 November 2010.

Associate: 

Date:  2 December 2010