Maier and Tunnecliff

[2018] FamCA 959

FAMILY COURT OF AUSTRALIA

MAIER & TUNNECLIFF [2018] FamCA 959

FAMILY LAW – CONTRAVENTION – where applicant father files contravention application and respondent mother appears represented – where Court is told the matter is proceeding and is contested – where the managing Judge directs the parties to go to a courtroom for the matter to proceed – where the father absents himself without telling anyone where he is going – where the Court telephones the father and calls him outside the courtroom unsuccessfully – application struck out.

Family Law Act 1975 (Cth)

APPLICANT: Mr Maier

RESPONDENT: Ms Tunnecliff

FILE NUMBER: MLC 1268 of 2011

DATE DELIVERED: 14 November 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 14 November 2018

REPRESENTATION

THE APPLICANT: No Appearance

COUNSEL FOR THE RESPONDENT: Mr Hannan

SOLICITOR FOR THE RESPONDENT: Berry Family Law

Orders

1. The father’s contravention application filed on 18 January 2018 is struck out.

2. The respondent mother’s costs of this day are fixed in the sum of $4092 and those costs are reserved to the trial judge in respect of the outstanding substantive parenting case.

3. The solicitor for the respondent forthwith send a Microsoft Word (.doc or .docx) copy of the orders made on 22 June 2018, together with a certification by the lawyer that the orders are a true copy of those orders, to the Associate to Judge Curtain of the Federal Circuit Court of Australia, by sending same to ….

4. Paragraph 3 of the minute of orders made on 22 June 2018 is extended until further order.

5. The reasons this day be transcribed and made available to the parties.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1268  of 2011

Mr Maier

Applicant

And

Ms Tunnecliff

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. Before the Court is a contravention application filed by Mr Maier (“the father”) to which Ms Tunnecliff (“the mother”) is the respondent. The matter was listed before Johns J this morning in the callover in a very judicial busy duty list.  Her Honour indicated that the matter was not something that she could hear by virtue of a previous involvement in the matter, and as such, the matter was transferred to me. I am told, and I have no reason to doubt, discussions took place between counsel for the wife and the husband in person. Thereafter my Court staff have made a telephone call to the husband and there has been no response to that call.  He has been called outside the court room and searches have been made outside for him. As at 11.20am, he has not appeared. This is a busy duty list and there are other cases to be heard.  On that basis, the application is struck out. 

2. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that in proceedings under the Act each party shall bear their own costs unless there are reasons, or justifiable circumstances, to depart from that principle. If the Court is intending to find such a circumstance, then the Court must consider the matters set out in s 117(2A) of the Act. In this case I have already struck out the husband’s contravention application on the basis that he has not attended here this morning and has given no reason for his non-appearance bearing in mind that he appeared before Johns J sometime after 10.00 am.

3. That strike out gives rise to the question of the wife’s costs. Counsel has, with leave, filed an affidavit sworn 13 November 2018, but that raises two issues.  One goes to the issue of the costs incurred by the wife, but also in respect of an order to which I shall return in a moment.  The wife’s costs, unfortunately in this case, have been run up to the extent of over $26,000 on an indemnity basis.  In my view, this is not a case which fits within the exceptional circumstances, such as to justify an indemnity costs order.

4. It is certainly one in which the circumstances justify an order for costs being made.  Here, the husband has persisted with his application for contravention notwithstanding the events which were the subject of that application occurred almost 12 months ago.  In addition, there was no dispute in this case that the wife’s response to that contravention was to admit that the order had not been fulfilled, but she was pleading a reasonable excuse and she has done so in an affidavit that I have now read.  The persistence of the husband in wanting the contravention to proceed is perplexing, having regard to the fact that time has moved on. 

5. For him then to not appear today, when that issue could have been determined, is perplexing. In my view, that is a circumstance that justifies the Court departing from the principle in s 117 of the Act. I have had the advantage previously in September of dealing with an application in this case relating to an expedited hearing, during which I canvassed all of the financial circumstances which had been pleaded by the husband about the question of his incapacity to continue to fund his lawyers. I am therefore aware that he does have some financial resources available to him. I see no reason in this case why the wife should be out of pocket to the extent that she has been, but as I said, I would not make an order for indemnity costs.

6. Using the scale that the wife has considered, I calculate the costs at $4,092.  There are no legal aid considerations here. The conduct of the husband in not being present, having regard to the nature of what I have just said is also perplexing and a basis to say that the wife should not be out of pocket, particularly bearing in mind that she has briefed counsel to attend to assist the Court today.  In those circumstances, I make an order that the amount of costs be fixed in the sum of $4,092 and that includes counsel’s fees on the relevant scale. 

7. I propose not to order that the husband pay those immediately, but rather to reserve them to the trial judge on the basis that it is conceivable that there may be some plausible explanation for his non-attendance this morning. 

8. The second issue relates to the fact that when the matter was transferred from the Federal Circuit Court, Judge Curtain made orders by consent of the parties and there was a specific order that the solicitors for the husband be responsible for their engrossment.  I would like to think that notwithstanding that his solicitors have gone off the record, they still maintain that responsibility, but for whatever reason they have not and the solicitors for the wife have taken the view that they will fix the problem. They have provided to the Court today a typed version of the minutes, which will become the engrossed copy of the order. That needs to go to the Associate to Judge Curtain.

9. Significantly, what was anticipated in that order was that there would be a final hearing on 12 July 2018.  This case involves children and one of the orders that was obviously not contentious, because the husband conceded the order, was that until that trial date he would not take the children to B Town.  The order specifically says the trial date was to be 12 July 2018.  That date has now passed and the trial has not only not taken place, but is unlikely to take place until sometime in 2019 because of the resources of this Court.  In the circumstances, having regard to the husband’s concession that the order should be made effectively until trial, the appropriate order here is to extend it until further order.  Accordingly, paragraph 3 of the minute of orders of 22 June 3018 is extended until further order.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 14 November 2018.

Acting Associate:

Date:  21 November 2018