Meekes and Meekes

[2013] FamCA 696

FAMILY COURT OF AUSTRALIA

MEEKES & MEEKES [2013] FamCA 696

FAMILY LAW – Contravention application: dismissed – Interim parenting orders sought but not supported by any evidence – Final orders sought adjourned to trial list.

Family Law Act 1975 (Cth)

APPLICANT: Mr Meekes

RESPONDENT: Ms Meekes

FILE NUMBER: MLC 4828 of 2008

DATE DELIVERED: 9 May 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 9 May 2013

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms Wiener

SOLICITOR FOR THE RESPONDENT: Perry Watson Lawyers

orders

1. That the contravention application of the husband is struck out.

2. That all interim applications set out in the parties’ respective application and response filed 22 March 2013 and 24 April 2013 are dismissed.

3. That all applications for final orders are adjourned to the Registrar to be listed for final hearing before a judge.

4. That the husband pay the wife’s costs thrown away this day fixed in the sum of $2650 such payment to be made within one month.

5. That the reasons for judgment this day be made available to the parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Meekes & Meekes 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 4828 of 2008

Mr Meekes

Applicant

And

Ms Meekes

Respondent

REASONS FOR JUDGMENT

1. I have before me today two applications and a response.  The two applications are an application for the respondent to be dealt with by the Court for breaching orders made by this Court in 2005.  In other words, it is a contravention application.  The second application by the husband is an application initiating proceedings.  The third matter that I need to deal with is the response by the wife in these proceedings, which effectively only seeks final orders, the first of which is that the applicant’s application be dismissed. 

2. The starting point is that it is appropriate to deal with the contravention application first.  After an hour’s discussion in this case, I have isolated the fact that the only allegation against the wife is that on 23 February 2013, she failed to bring the child, B, to the husband and it is asserted that that is a contravention of an order. 

3. Sadly, or otherwise, the applicant husband has not any information in an affidavit, which would be evidence to justify me making a finding of fact that that date was a date which satisfied the terms of the order and that there has been a breach of it. 

4. Notwithstanding all of the attempts to try and isolate what this is about, the wife denied the allegation and the onus, therefore, falls on the applicant to prove the breach.  There is no evidence that would enable me to make the finding that the breach occurred. 

5. There are a whole lot of other matters surrounding this case, in which the husband says that there have been problems since 2005 in respect of a girl who is now 19 years of age and that he is not seeing his son.  On a contravention application, as I pointed out, I have to deal specifically with the allegation.  The consequences of the finding of a breach are serious.  Because there is no evidence to support the allegation, the application must be struck out.

6. Turning to the second application, it seeks two things:  first that the existing orders be enforced;  secondly, it, in essence, seeks compensation for the fact that the husband has not seen his now 19 year old daughter.  There is no power for me to make the order for compensation.  In respect of the existing order being enforced, I have been unable to ascertain how I could do that or the circumstances under which I could force a boy, who is nearly 16 years of age, to participate in the order.  More importantly, what was sought was a final order only.  In the interim part of the application, the husband added the words “as above” so to that extent, I presume that he was seeking an interim order.  There is no evidence that would enable me to work out exactly what order should be made.  The problem starts with the way in which the application is set out.  The husband says that he cannot afford legal advice and has not sought it. 

7. On that basis, the husband is running the risk that he is relying on the court to try and sort the matter out for him.  The response to that application simply sought that the application be dismissed.  That was on the basis of a final order and there was no reference to the interim orders.  I could not interpret the wife’s response as an application for summary dismissal.  On that basis, what I have is a live application and a live response which, in due course, should go into the trial list and, in the case of the applicant, only if it is properly pleaded. 

8. The application for interim orders is not supported by any material that would justify orders being made.  To the extent that there is an interim application before the court today, it must be dismissed. 

9. It is not appropriate, therefore, to dismiss the final orders sought by either party, and I note that the wife in her response also seeks positive orders in relation to the child, but effectively leaving the whole of the issue in the child’s hands.  Whether that is a good idea or not, having regard to the child’s age, is a matter for some other time and place.

10. The appropriate order for me to make, therefore, is to adjourn the matter into the trial list, and at the appropriate time, the court can look at the matter again.  If, indeed, there is to be some sort of interim application in the meantime, either for summary dismissal or for proper interim orders, the court can deal with it at that stage. 

11. The other matter then concerns an application by the wife for costs.  The husband, as the applicant, also seeks his out of pocket expenses, but as I have pointed out to him, the court does not have power to make an order for compensation. 

12. In relation to the wife’s application for costs, unashamedly, she has had her counsel and solicitor bill her for the attendance today.  Nothing has been achieved, even though she has not succeeded in having the application dismissed.  All of this has been a complete waste of time. 

13. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that each party in these proceedings shall bear their own costs unless there are circumstances that justify a departure from that principle. It is appropriate to find that there is a justifiable circumstance here because the husband has not brought a proper application that the court can deal with.

14. Before making an order, however, the court has to consider the matters set out in 117(2A) of the Act. The first of those relates to the financial circumstances of the parties. The husband tells me that he is earning about $100,000 per annum in an employment situation where he works for a management company involved in traffic management plans. Even though he may have expenses, the reality is that there is no good reason why he cannot pay the sort of costs that are being sought by the wife.

15. One of the other circumstances in s 117(2A) relates to the process and what parties have done. Here, whether for good or bad, the applicant has tried to do his own handwritten application, and it is unfortunate that he has not succeeded in making it clear to the court, or to the respondent, exactly what orders he is seeking.

16. I understand there are no legal aid considerations here, and quite frankly, this has been, unfortunately, a complete waste of time for everybody, including the husband himself. 

17. This is a case where there ought to be an order for costs, and the question is what they should be.  It seems to me that counsel’s brief fee of $1650 which is not unreasonable, having regard to the scale; and the estimated costs of $1000 for the lawyer, based on the scale, would be consistent with a lawyer having prepared a comprehensive response, an affidavit and briefed counsel and taken instructions.  So $1000 seems to me to be reasonable in the circumstances. 

18. In those circumstances, I propose to make an order that the husband pay the wife’s costs, fixed in the sum of $2650. 

RECORDED:   NOT TRANSCRIBED

1. In this matter, the contravention application is struck out.  The initiating application and the response thereto are adjourned to a date to be fixed in the trial list, to be called upon as soon as a judge is available.  The interim application set out in the application filed 26 March 2013 is dismissed.  And there’s an order for costs.  The husband pay the wife’s costs, fixed in the sum of $2650 within one month.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 9 May 2013.

Associate: 

Date:  17 July 2013