Morricca and McPaul

[2010] FamCA 267

FAMILY COURT OF AUSTRALIA

MORRICCA & MCPAUL [2010] FamCA 267

FAMILY LAW – CHILDREN – Child related proceedings

Family Law Act 1975 (Cth)

APPLICANT: Mr Morricca

RESPONDENT: Mr McPaul

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: MLC 1576 of 2009

DATE DELIVERED: 17 March 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Fowler

HEARING DATE: 17 March 2010

REPRESENTATION

APPLICANT: No appearance

SOLICITOR FOR THE RESPONDENT: Ms Schofield

INDEPENDENT CHILDREN’S LAWYER: Ms Connor

Orders

1. The applicant’s Application for Final Orders filed 29 July 2009 is dismissed.

2. The applicant is to pay the respondent’s costs of and incidental to the proceedings in the sum of $15,000 within three months.

3. The applicant is to pay the Independent Children’s Lawyer’s costs of and incidental to the proceedings in the sum of $1,600 within three months.

IT IS NOTED that publication of this judgment under the pseudonym Morricca and McPaul is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: MLC 1576  of 2009

MR MORRICCA

Applicant

And

MR MCPAUL

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. Before the court is an application brought by the father of a child who was born in September 1998.  The child is a child of a relationship between the respondent to these proceedings and his mother but is the biological child of the applicant.

2. There have been previous proceedings concerning this child and pursuant to orders previously made by this court the care of the child was placed with the respondent whose partner, the mother of the child, unfortunately has died.

3. The application before the court today is for an order that the application be dismissed.

4. The applicant does not appear and the following appears to be the history of non-appearance associated with this case.

5. On 7 January 2010 the respondent met with the Family Consultant.  The applicant did not participate and attempts to contact him were unsuccessful.  The parties were required to attend that intake event for the Child Responsive Programme pursuant to orders made by Registrar Campbell on 24 November 2009 on which date it was noted that the parties were advised if they failed to attend any appointment with the Family Consultant or failed to comply with any instructions given to a party by the Consultant that the Consultant would have to report that failure to the court and the court could then make such order as it considers appropriate on its own initiative or on the application by a party or the Independent Children’s Lawyer.

6. On 13 January 2010 a Notice of Ceasing to Act was filed by the applicant’s former solicitors D&M Lawyers.  The Notice provided the father’s last known residential address that being …., S.

7. On the same date a Notice of Address for Service was filed on behalf of the father also providing the S address as his contact address for service.  No further Notice of Address for Service has been filed.

8. On 24 February 2010 there was no appearance by or on behalf of the applicant at the directions hearing before Registrar Campbell.

9. The father was sent a letter on 25 January 2010 informing him of this listing and that directions had been made for all parties and legal representatives to appear on that occasion.  The matter is listed today at 11.30 am.  It is now

   
   

   11.45 am and the applicant does not appear.  I note that a letter was sent on

   
   

   9 February 2010 to the father’s last known address informing him of this listing.

10. The last appearance on behalf of the applicant was on 23 November 2009 when the proceedings were before Judicial Registrar Johnson.  The applicant was then represented by an agent solicitor.

11. Given the applicant’s failure to appear and the history of his failure to appear in this matter it seems to me that he has abandoned the application and in the circumstances I propose to dismiss his application.

12. I am asked to make an order for costs in these proceedings.

13. This is a case in which the provisions of section 117 of the Act apply and they give to the court a broad discretion to make an order for costs.

14. In making an order for costs under section 117 I am obliged to take into account the various matters set forth in section 117(2) of the Act.

15. This is a case in which I believe it is appropriate that an order for costs be made and, so far as the respondent is concerned, given the history of the matter and the failure of the applicant to abide by directions and orders of this court I believe that the order for costs should be made on an indemnity basis.

16. There are however a number of matters that I must take into account and the first is the financial circumstances of the parties.

17. I am informed by the respondent’s solicitor that the respondent would have qualified for legal aid but chose not to undertake legal aid because of difficulties he has had in communication and the fact that his solicitor had been previously involved in the matter.

18. There is no evidence before me of the financial circumstances of the applicant and of course financial circumstances is only one of a number of matters required to be taken into account by me in making a determination on the question of costs.

19. So far as I know no party therefore in these proceedings is in receipt of legal aid although there appears today Ms Connor who is representing the independent children’s lawyer who is funded through the legal aid system.  She also makes an application for an order for costs.

20. Given the conduct of the respondent in complying with the orders of the court and to appear when required, and the failure of the applicant to do so, and the fact that the respondent has wholly succeeded in his application before the court and the overall circumstances of the case I believe it is an appropriate case in which I make an order in favour of the respondent that the applicant pay the respondent’s costs of and incidental to the proceedings in the sum of $15,000.  I allow three months to pay.

21. In relation to the Independent Children’s Lawyer, a claim is made for the sum of $1,600 in costs.  I believe the claim to be reasonable and it seems to me to be a case in which the community should not have to bear the cost of that representation.

22. Accordingly I make an order also that the applicant pay the Independent Children’s Lawyer’s costs in the sum of $1,600.  I allow three months to pay.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate: 

Date:  17 March 2010