Perry and Buckwater

[2008] FamCA 654

FAMILY COURT OF AUSTRALIA

PERRY & BUCKWATER [2008] FamCA 654

FAMILY LAW – CHILDREN – s 118 application – Application dismissed

Family Law Act 1975 (Cth)

APPLICANT: Ms Perry

RESPONDENT:	Mr Buckwater
FILE NUMBER:	MLC	6223	of		2008

DATE DELIVERED: 14 July 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 14 July 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr S. Taghdir

SOLICITOR FOR THE APPLICANT: Robb & Associates

COUNSEL FOR THE RESPONDENT: No appearance

Orders

1. That the oral application for an order under s 118 of the Family Law Act 1975 (Cth) be dismissed.

2. That my reasons given this day be transcribed, placed on the court file and sent to the parties.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 6223 of 2008

MS PERRY

Applicant

And

MR BUCKWATER

Respondent

REASONS FOR JUDGMENT

1. Before me today is an application made by Ms Perry for an order under s 118 of the Family Law Act 1975 (Cth) (“the Act”). The respondent to the application is Mr Buckwater. Mr Buckwater and Ms Perry were married to each other.

2. I heard the case over some three days in Albury in November 2007 and gave a judgment that runs to 126 paragraphs.  My recollection of the matter is still reasonably clear.  The husband did not have very much respect for court orders or any indication being given to him that he ought to think about his children.  In other words, the husband felt that he could do what he liked.

3. It seems that notwithstanding the orders that I made, there have been ongoing problems.  Prophetic as that may have been, I made orders that in the event that the husband did not comply strictly with the orders that I imposed, the arrangements would be suspended.  I am told by counsel on behalf of the wife today that that is exactly what happened. 

4. On 8 July 2008, the husband filed an application in this court, seeking in essence a recovery order for the three children specifically for the New South Wales school holidays.  He seems to rely on the provisions of the orders but I am told that he had no basis to make the application because of the fact that the orders had been suspended for the reasons I have just mentioned.

5. In his affidavit that was attached to the application, the husband somehow managed to convince a registrar to list the matter on short notice, presumably because of the impending school holidays.  That was perhaps unfortunate because had in fact somebody had the opportunity to read the orders, they would have seen it most likely that the husband had no right to bring the application.  He certainly might have had an application before the court to reinstate his relationship with his children but that was not what he sought.

6. The wife filed a response to the proceedings.  She filed that on 11 July 2008 which was last Friday.  Her response seeks two orders; the first is that the father's application be dismissed and the second, that he would pay her costs associated with the application.  The matter was listed before the senior registrar today and it seems that the husband did not arrive.  He wrote by fax a letter indicating that he was currently in Tasmania and unfortunately could not attend but wanted the matter to go ahead in his absence.  He apologised, but the Spirit of Tasmania was not due back until the morning of 15 July and as such, that was out of his control.  There have also been conversations between counsel for the wife and the husband and they produced very little that might be flattering to the husband. 

7. As a result of the matter being heard by the senior registrar, the husband’s application was dismissed on its merits and an order for significant costs has been made against the husband. The senior registrar then transferred the proceedings to me on the basis that the wife has now sought an application under s 118 of the Act.

8. There is no written application before the court. The response to the application which was filed on 11 July 2008, which I am told was served on the husband by email, does not say that the wife intends to seek an order under section 118. Counsel for the wife has strongly argued today that the application should be granted on an oral basis and that it should be dealt with ex parte.

9. I think this is a case in which there is every reason to give serious contemplation to an order under s 118 of the Act but I certainly would not be prepared to grant it on an ex parte basis. One of the fundamental tenements of the common law is that parties have not only a right of access to justice but that they know that proceedings are to be heard. It seems to me that it is inappropriate for me to hear the matter on an ex parte basis and accordingly I decline to do so.

10. However, having said that, if the husband manages to read these reasons, he might give careful consideration to his position, having regard to what I have read. If what the wife says in her affidavit filed 11 July 2008 is right, then insofar as he makes the sorts of application that he made on 8 July 2008, it seems to me a very good basis to make an order under section 118.

11. In the circumstances, I decline to make the order on an ex parte basis and it is accordingly dismissed.

I certify that the preceding Eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date:  23 July 2008