ABARA & SCANLAN (No.2)

[2020] FCCA 3005

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABARA & SCANLAN (No.2) [2020] FCCA 3005

Catchwords:
FAMILY LAW – Ruling on costs application.

Legislation:

Family Law Act 1975 (Cth), s.117

Cases cited:

Rice v Asplund (1979) FLC 90-725

Spencer & Spencer (No. 3) [2020] FamCA 145

Applicant: MS ABARA

Respondent: MR SCANLAN

File Number: DGC 2345 of 2017

Judgment of: Judge Burchardt

Hearing date: 31 August 2020

Date of Last Submission: 18 September 2020

Delivered at: Dandenong

Delivered on: 13 November 2020

REPRESENTATION

Counsel for the Applicant: Self-Represented

Solicitors for the Applicant: Not Applicable

Counsel for the Respondent: Ms Mansfield

Solicitors for the Respondent: Walls Bridges Lawyers

ORDERS

1. The wife pay the husband’s costs fixed at $8,442.

IT IS NOTED that publication of this judgment under the pseudonym Abara & Scanlan (No.2)is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2345 of 2017

MS ABARA

Applicant

And

MR SCANLAN

Respondent

REASONS FOR JUDGMENT

1. This is an application for costs by the husband, it is resisted by the wife.  The sum sought is $8,442, this being the figure on the Court’s scale of fees.

2. The matter has a long and unfortunate history.  The applicant husband’s initiating application was originally lodged on 28 July 2017, and in due course, following the appointment of an Independent Children’s Lawyer, final orders were made on 29 March 2018.  The wife did not participate in most of the hearings leading up to the final orders being made and did not attend on 29 March 2018.  Pursuant to those orders the two children of the relationship lived with the father and the wife’s time with the children was essentially reserved (it was described as agreed between the parties in writing). 

3. Property orders were made, the relevant substance of which was that the husband would pay the wife a cash sum of $60,000.  There was an annotation to the orders that “the mother is to engage with psychiatrists and psychologists and remain fully compliant with any prescribed medication and recommended treatment for any mental illness and provide proof of such fact from her treating medical practitioner to the father, in order for her to resume any substantial and significant time with the children”

4. Those orders were varied on 22 October 2018, the wife once again not participating, and owing to non-compliance on the wife’s part a further order for a warrant of possession was made on 20 November 2018.

5. Thereafter no materials were filed in the Court until 17 January 2020 when the wife filed an initiating application seeking that she spend time with the children.  The wife’s accompanying affidavit (she was legally represented at the time) pointed to the fact that she had not been permitted to spend time with the children since the 2018 orders.  She also deposed to having engaged with a psychologist and that she continued to engage with her general practitioner.

6. The husband’s response filed 12 March 2020 sought the dismissal of the application.…