Richards and Holmes and Anor

[2008] FamCA 655

FAMILY COURT OF AUSTRALIA

RICHARDS & HOLMES AND ANOR [2008] FamCA 655

FAMILY LAW – CHILDREN – With whom a child lives – Nanny
FAMILY LAW – COSTS – Circumstances justifying order – Failure to submit documents

Family Law Act 1975 (Cth)

APPLICANT: MS RICHARDS

RESPONDENTS: MR HOLMES and MS S

FILE NUMBER: MLC 762 of 2008

DATE DELIVERED: 30 June 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 30 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms S. MacGregor

SOLICITOR FOR THE APPLICANT: Macgregor Solicitors

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

1. That all interim applications be adjourned to the Senior Registrar’s Direction List at 9.45am on 18 August 2008.

2. That pursuant to s 11F of the Family Law Act1975 (Cth) the applicant and the father participate in a child responsive program.

3. That the father hand to the Registrar of the Registry of this Court by 4.00pm on Friday 4 July 2008 the passport for the child.

4. That the father file and serve upon the applicant via her solicitors, any response and affidavit in support of it by 4.00pm on 18 July 2008.

5. That the applicant file and serve any affidavit in reply upon which she intends to rely by 4.00pm on 8 August 2008.

6. That a transcript of the reasons for judgment this day be obtained and placed on the file and be made available to the parties.

7. That the father pay the applicant’s costs of $750 thrown away this day.

8. That there be a stay in relation to the payment of costs until 4.00pm on 2 September 2008.

AND THE COURT NOTES that the question of the appointment of an Independent Children’s Lawyer will be contemplated at the hearing before the Senior Registrar.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 672 of 2008

MS RICHARDS

Applicant

And

MR HOLMES and MS S

Respondent

REASONS FOR JUDGMENT

1. This is an application that has come to be in the Duty List from the Registrar's list.  The application was originally filed by Ms Richards, who is not the biological parent of the child.  The child is the subject of the proceedings.  She was born in January 2006, so is just two and a half years of age.  It seems common ground that Ms Richards was the nanny for the child.  The circumstances under which Ms Richards became the person responsible for the care of the child do not really matter today because of the fact that I am dealing with a discrete issue.

2. Ms Richards filed her application in the court on 30 January 2008 and was returnable at 11 am on 4 March 2008 and on that occasion, Registrar Riddiford ordered that as there had been no appearance by the biological parents, at least both parties be served.  The matter was then transferred to the Senior Registrar's list and it came before him on 14 March.  On 14 March, it seems that the Senior Registrar had the necessary service documents because I have an affidavit filed 19 February 2008 in which the licensed private investigator says that he served the father personally at C.

3. When the matter came on for hearing before the Senior Registrar, there was no appearance and the Senior Registrar was satisfied that service on the mother of the child be dispensed with unconditionally.  He then suspended orders made in April 2007 and made a variety of orders which included that Ms Richards have the shared parental responsibility for the child and that she also live with her.  A variety of orders were then made in relation to service and I have an affidavit of service on the file indicating that that was done.  The matter was otherwise adjourned to 30 June 2008 at 9.45 in the Senior Registrar's duty list.

4. The father has appeared today without legal representation, as is his right, but he still has filed no application or other documents.  He has told me that he wishes to have his daughter come home to live with him and that there are two other children who are stressed by the fact that they have no contact with their sibling.  The father has still not filed any documents, so it is hard to have a lot of sympathy for his position because of the time that has elapsed.  He says that he has been threatened, but that does not excuse the fact that the documents indicated that anything he wanted to say could be served upon the lawyers for the applicant.

5. Having been told that he wants to defend these proceedings and seek orders himself, notwithstanding he has probably had his chance, I propose to give him one final opportunity to put his documents before the court.  I am told that one of the applications that does need some attention today by Ms MacGregor on behalf of Ms Richards is that the child's passport should be handed in to the court.  The father has some problem with that, but the fact of life is that the Senior Registrar granted orders giving Ms Richards shared parental responsibility, so the passport should at least be in the care of the Court and I propose to make that order.

6. This Court is going to have its resources stretched, so it is hard to see how I am going to be able to put the case back before the Senior Registrar for some weeks.  In any event, what I want to have happen is for the parties to attend the child responsive program to try and see whether they can understand what all this is doing to the child in these proceedings.  In addition, I want the father to have an opportunity to show that he is really serious about what he says and he can file his material if he so desires.

7. The final problem is the question of costs.  I have been told by Ms MacGregor that her client is out of pocket to the extent of $750, and even without contemplating the amount in the scale, I can see that that is extremely reasonable in the circumstances.  The father says that he should not have to pay costs because he has come along here to defend himself today, but having regard to the fact that he has filed no material and wants to make an application himself, it is hard for me to see how he has much of a leg to stand on.

8. Section 117 of the Family Law Act1975 (Cth) says that in proceedings of this nature, parties should bear their own costs, unless there is some justifiable reason to depart from the principle. If I do decide to depart from that principle of each party paying their own costs, then I have to contemplate the matters set out in sub-s (2A) of the Act. In this case, notwithstanding the father says that he is financially strapped and that he has millions of dollars of losses, the reality is that the applicant has also spent $750 today unnecessarily, having regard to the very clear warning to the father which is set out at the back of the application about what he had to do if he wanted to participate in the proceedings. It seems to me that notwithstanding his financial circumstances which are not backed up by any financial documents, it is appropriate for me to depart from the ruling to make an order that he pay the $750 costs.

I certify that the preceding Eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: …

Date:  11 July 2008