Griffith and Bolger

[2014] FamCA 63

FAMILY COURT OF AUSTRALIA

GRIFFITH & BOLGER [2014] FamCA 63

FAMILY LAW – COSTS – Appellant fails to appear but says he is ill – Documents not in a position such that the case could proceed anyway.

Family Law Act 1975 (Cth)

APPLICANT: Mr Griffith

RESPONDENT: Ms Bolger

FILE NUMBER: MLC 9745 of 2013

DATE DELIVERED: 4 February 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 4 February 2014

REPRESENTATION

THE APPLICANT: No appearance

COUNSEL FOR THE RESPONDENT: Ms Stokie

Orders

1. That the application (by way of Notice of Appeal) filed by the applicant/appellant is adjourned to 10.00am on 28 February 2014 as a one day matter.

2. That the applicant/appellant (who is the respondent to the proceedings that were filed in the Geelong Magistrates Court on 9 August 2013) file and serve a proper application (setting out the response to the said application in the Geelong Magistrates Court) supported by an affidavit upon which he intends to rely by 4.00pm on 14 February 2014.

3. That the appellant pay the respondent’s costs fixed in the sum of $450.

4. That the respondent (to the appeal) serve a copy of this order upon the appellant by post to … C Street, Suburb B, as soon as practicable.

5. That the respondent to the appeal have leave to file and serve an affidavit and any application for orders upon which she intends to rely by no later than 4.00pm on 26 February 2014.

AND THE COURT NOTES

A.That the appellant provided the Court with an indication that he was ill and unable to attend but otherwise no documentation that would enable the Court to ascertain the appropriate outcome.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Griffith & Bolger has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9745 of 2013

Mr Griffith

Applicant

And

Ms Bolger

Respondent

REASONS FOR JUDGMENT

1. This is an application for costs by the respondent to an appeal from a court of summary jurisdiction in circumstances where the appellant has not attended.  I would not be unkind to describe this file as a mess.  The respondent to the appeal has not filed any material but had come along here today represented for the purposes of responding to the notice of appeal which was filed in the Family Court of Australia on 29 October 2013 at which time it was listed for hearing today at 10 am.  There is a note provided by the telephone service of the court indicating that the appellant would not be attending today because he had been up with asthma all night and he would get a medical certificate from the doctor.  That seems to be consistent with a discussion that he had with the solicitor for the respondent to the appeal.

2. Costs are not a punishment; they are intended to compensate a person who has had to participate unnecessarily.  The matter would not have gone very far today anyway, having regard to the state of the documents filed by the appellant.  If his Notice of Appeal is any indication, there is a lot more documents yet to cme. 

3. In proceedings in this Court, s 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that each party shall bear their own costs unless there are circumstances that justify a departure from that principle.  In my view, the failure to attend without reasonable excuse given to the court and to the other party, even if it is one relating to illness, justifies a departure from that principle. 

4. Although I do not understand what the full financial circumstances of each of the parties is, it seems to me that any costs order that I am being asked today is modest.  Having regard to the amount of time that the practitioner has been here, on the basis that the scale is around about $210 per hour, a request at 2.40 in the afternoon of the hearing for $450 does not seem to me to be at all unreasonable.  In those circumstances, and taking into account the matters that I have just mentioned, I will make an order for costs of $450 to be paid by the appellant. 

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 4 February 2014.

Associate: 

Date:  13 February 2014