Ward and Merry

[2010] FamCA 674

FAMILY COURT OF AUSTRALIA

WARD & MERRY [2010] FamCA 674

FAMILY LAW – CHILDREN

Family Law Act 1975 (Cth) ss 117(2A), Div 12A,

APPLICANT: Ms Ward

RESPONDENT: Mr Merry

INDEPENDENT CHILDREN’S LAWYER:  Stephen Marks

FILE NUMBER: NCC 2962 of 2008

DATE DELIVERED: 9 July 2010
EX TEMPORE

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Ryan

HEARING DATE: 9 July 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr T Street

SOLICITOR FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Mr S Marks

Orders

1. The response filed by the respondent father on 8 July 2009 is struck out for want of prosecution.

2. The applicant mother shall file and serve an amended application within seven days.

3. The applicant mother’s amended application referred to in the above order is listed for hearing before me in Sydney at 10 am on 26 July 2010 as an undefended application.

4. I vacate the further dates allocated of 27 and 28 July 2010.

5. The independent children’s lawyer has leave to photocopy documents produced on the subpoena for provision to Dr B.

6. I give the mother and independent children’s lawyer leave to make an oral application for costs against the father.

7. The respondent father shall pay the costs of the independent children’s lawyer, the sum of $130, within 28 days.  I make the same order in relation to the mother.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  (P)NCC 2962 of 2008

MS WARD

Applicant

and

MR MERRY

Respondent

and

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

2. Ms Ward (“the mother”) initiated these proceedings on 19 November 2008.  They relate to the parties’ two children.  Since then, the children have lived with the mother and she has been attempting to bring to finality the application commenced on the date mentioned.  The father has a history of non-compliance with the court’s directions designed to bring the matter to a final hearing.

3. As has been correctly summarised by the mother’s solicitor, there have been three occasions when because of the father’s lack of participation in the proceedings the mother’s application has been listed for an undefended hearing.  At the last moment, on each occasion, the father has sought and been given an adjournment with directions for him to file material and directions designed to have an orderly hearing.  He has, at best complied on occasions, in a cursory manner.

4. Eventually the matter was listed before me for the commencement of Div 12A less adversarial trial.  The father participated to an extent.  The last occasion he appeared before me was 25 February 2010.  I was troubled by the father’s presentation that day, but not so troubled that the Court would be concerned about his capacity.  It was more a presentation by him, which suggested the mother’s evidence in relation to his treatment of her might have real force.

5. That day the matter was listed for final hearing on 26 July 2010.  Because of the security issues involved in the proceedings, I was particularly concerned that a safety plan could not be implemented with sufficient protection, for the mother and perhaps others involved in the case at Newcastle, and directed that the hearing would continue in Sydney.  This was not without inconvenience to the mother, her lawyer, the Independent Children’s Lawyer and the Court.

6. In any event that day trial directions were made, which relevantly required the parties to file and serve all affidavits upon which they relied by 25 June 2010.  On 30 June 2010, I reviewed the file and saw that the father had not complied with these directions.  Accordingly, I made a series of chambers orders, which resulted in the matter being listed today.  The father given notice by Order 2 that he would need to demonstrate today why his Response should not be struck out for want of prosecution and the mother’s application listed for final hearing on an undefended basis.

7. Those orders were forwarded to the address identified in the father’s address for service, namely, his mother’s address.  The orders were also sent to the Department of Corrective Service attentioned to the father with his prisoner number attached.  Court staff ensured the orders were sent to the correct prison.

8. The mother has spoken with the father’s mother and understood she and the father believed the hearing would not take while he was in custody.  I do not know when those conversations took place but I infer that they occurred prior to 30 June 2010.  It is clear from my directions and notations dated 30 June 2010 that the hearing would proceed and that the father’s obligation to comply with the directions for that hearing had not been suspended.

9. Today there is no appearance by or on behalf of the father.  He still has not filed his trial affidavits.

10. In the face of the father’s long history of non-compliance with directions I am satisfied his Response should be struck out and the matter proceed hereafter on an undefended basis.  Accordingly the orders I make are as follows:

    1.That the response filed by the respondent father on 8 July 2009 is struck out for want of prosecution.

    2.The applicant mother shall file and serve an amended application within seven days.

    3.The applicant mother’s amended application referred to in the above order is listed for hearing before me in Sydney at 10.00 am on 26 July 2010 as an undefended application. 

    4.I vacate the further dates allocated of 27 and 28 July 2010.

    5.The Independent Children’s Lawyer has leave to photocopy documents produced on the subpoena for provision to Dr B. 

    6.I give the mother and Independent Children’s Lawyer leave to make an oral application for costs against the father.

11. As I have earlier indicated, the matter is listed for me today purely as a consequence of the father’s failure to comply with trial directions.  Although the general rule is that parties in family law proceedings pay their respective costs, where there are justifying circumstances the Court may, by reference to the factors contained in s 117(2A) of the Act, order costs against a party. 

12. The justifying circumstances are the history of non-compliance by the father with trial directions and the appearance today is purely because he has failed to comply with the most recent round of directions made for trial.  The mother and Independent Children’s Lawyer are in receipt of a grant of legal aid.  I infer the father is not.

13. I know little about the parties’ financial circumstances other than the mother is in receipt of Centrelink benefits and, I recall, little child support.  It would appear the father is presently incarcerated and his financial situation would comprise such assets as he has.  He has previously referred to having received a sizeable compensation claim last year, and thus the application of s 117(2A)(a) favours the mother.  The only other relevant matter is s 17(2A)(d), that being the non-compliance with directions to which I have referred.  On balance I am satisfied the father should pay the costs sought by the mother and Independent Children’s Lawyer today.

14. Further orders are the respondent father shall pay the costs of the Independent Children’s Lawyer in the sum of $130 within 28 days.  I make the same order in relation to the mother.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate: 

Date:  5 August 2010