Matthews and Norris (No 2)

[2018] FamCA 800

FAMILY COURT OF AUSTRALIA

MATTHEWS & NORRIS (NO. 2) [2018] FamCA 800

FAMILY LAW – COSTS – Where the father made an application for costs – Where there was non-appearance by or on behalf of the mother at Court for an application initiated by her to set aside child support assessment – Where that application and response were dismissed – Where the mother had made the decision not to attend Court prior to the event – Where a recovery order was made against the mother for return of the parties’ child the previous day – Application for costs as sought is granted.

Family Law Act 1975 (Cth)

APPLICANT: Mr Matthews

RESPONDENT: Ms Norris

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: NCC 2226 of 2015

DATE DELIVERED: 5 October 2018

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 7 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Carty

SOLICITOR FOR THE APPLICANT: Oliver Campbell Heslop Lawyers

COUNSEL FOR THE RESPONDENT: Not Applicable

THE RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. That the mother pay, within 28 days of the date of these Orders, the costs of the father in the sum of $1980 in respect of the Amended Application in a Case filed 19 October 2017. 

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 Matthews & Norris 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 NEWCASTLE

FILE NUMBER: NCC 2226 of 2015

M4r Matthews

Applicant

And

Ms Norris

Respondent

REASONS FOR JUDGMENT

1. On 7 February 2017, an application came before this Court initiated by the mother.  The mother had applied for a stay of child support assessments.  The application had been adjourned from a date in December 2016 to the date in question.  That adjournment was as a result of a deficiency in the application, service on the Child Support Registrar, and an opportunity for the mother to address that deficiency.

2. On 7 February 2017, there was no appearance by or on behalf of the mother, nor any direct explanation to the Court for her absence.  The respondent father was present at Court, represented by counsel. 

3. The application of the mother and, subsequently, the response of the father were dismissed. The father applied for costs thrown away in the sum of $1800 plus GST.

4. In her absence, the mother was granted leave to file and serve written submissions within 14 days of the date of the orders in respect of the costs application of the father.  The father had the opportunity to respond to any such submissions.  The mother did file submissions on 20 February 2017, as did the father on 24 February 2017. 

5. The submissions, through no fault of the mother, did not come to the attention of the hearing judge until 2018. 

6. The submissions of the mother related to her asserted ill-health arising from her pregnancy at that time.  She referred to suffering from nausea, vomiting and occasional incontinence. 

7. The mother asserted that she had rung the “National Enquiry number”:

   But, after half an hour, I was still not put through to anybody.  After that, it was too late to notify the court.

8. I cannot accept this explanation for the absence of the mother.  If the mother was suffering, as she said, with those conditions, she could have let the court know prior to the very hour that her matter was due to be heard.  She could have contacted the father himself or his solicitor whose details were revealed in the response and affidavit, which he had filed.

9. It must be the case that, prior to that morning, the mother had made the decision not to attend Court.  In such circumstances, medical evidence and financial information were necessary to explain her failure to appear without explanation.

10. There is also force in the submission of the father that the mother wished to avoid the Court on that day.  A recovery order for the return of the parties’ child had been made on the previous day, 6 February 2017, by another judge of this Court.  The child was, at that time, with the mother at an unknown location.

11. Finally, the application itself to set aside child support assessments had little or no prospects of success.

12. For that reason, an order for costs as sought is made.

13. Orders are made accordingly.

Evidence

1. The documents relied on in respect of this application are:

For the mother:

a)    Amended Application in a Case filed 19/10/2016;

b)   Affidavit of the mother filed 18/10/2016;

c)   Mother’s written submissions 20/02/2017;

For the father:

d)   Response to an Application in a Case filed 17/11/2016;

e)   Affidavit of the father filed 17/11/2016;

f)    Father’s submissions in reply (two pages)24/02/2017;

Orders made 7 February 2017.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 5 October 2018.

Associate:

Date:  5 October 2018