Allison & Tripp (No 2)
[2022] FedCFamC1F 310
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Allison & Tripp (No 2) [2022] FedCFamC1F 310
File number(s): SYC 5040 of 2021 Judgment of: HARPER J Date of judgment: 10 May 2022 Catchwords: FAMILY LAW – COSTS – Where the parties and child relocated to Country B – Where the mother made the decision to remain in Country B with the child due to work opportunities – Where the father returned to Australia – Where the father commenced proceedings seeking parenting orders – Where the ICL filed an application in a proceeding contesting jurisdiction – Matter was discontinued by consent – Orders made for parties to file written submissions on costs – Mother did not file any submissions – Father does not seek departure from ordinary rule in s 117(1) of the Act – No orders as to costs. Legislation: Family Law Act 1975 (Cth) ss 111CD(1)(c)(v), 111CD(3), 117(1), 117(2) Division: Division 1 First Instance Number of paragraphs: 16 Date of last submission/s: 19 April 2022 Date of hearing: On the papers Place: Sydney Solicitor for the Applicant: Ivy Law Group The Respondent: Litigant in person ORDERS
SYC 5040 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ALLISON
Applicant
AND: MS TRIPP
Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
10 MAY 2022
THE COURT ORDERS THAT:
1.There be no orders as to the costs of the proceedings.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Allison & Tripp has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:
The substantive dispute in this matter concerns the child, X born in 2011 (“the child”), who is presently residing in Country B with the Respondent Mother, Ms Tripp (“the mother.”) The Applicant Father is Mr Allison (“the father”), who resides in Sydney, Australia. The parties married in 2010 in Australia.
In January 2019, the mother relocated to Country B, having taken what was intended to be a one-year secondment with her company. The father and child joined the mother in around March 2019. The mother was offered permanent, full-time employment in Country B in December 2019, which she accepted. In July 2020, the parties entered into an interim agreement concerning the child. The father returned to Australia shortly after as he had no income nor family support to enable him to remain in Country B. Due to restrictions on travel caused by the Covid-19 pandemic, the child was unable to accompany the father.
The child is an Australian citizen, although he was issued a residency permit for Country B which expires on 1 February 2025.
The parties’ had an interim parenting agreement which expired on 30 June 2021. Accordingly, the father commenced parenting proceedings in the Federal Circuit and Family Court of Australia (Division 2) on 8 September 2021 seeking orders for the child to return and live in Australia. The child has been residing in Country B since April 2019, which, as will be explained below, has led to a possible issue of jurisdiction under the Family Law Act 1975 (Cth) (“the Act”).
On the first return of the father’s application on 14 September 2021, the matter was referred to the National Assessment Team for consideration of a transfer to Division 1 of this court due to the international aspects of the dispute. The matter was subsequently transferred to Division 1 on 21 September 2021.
An Independent Children’s Lawyer (“ICL”) was also appointed by consent on 14 September 2021.
On 14 December 2021, the ICL filed an application in a proceeding raising the issue of the child’s habitual residence under s 111CD of the Act, and thus, whether this court has jurisdiction to make orders concerning the child.
On 7 February 2022, a Child Impact Report was released to the parties.
On 18 March 2022, the matter came before me for interim hearing of the ICL’s application in a proceeding. Initially, the father argued that the court did have jurisdiction because the child was habitually resident in Australia, and alternatively that the court had jurisdiction under ss 111CD(1)(c)(v) and 111CD(3) of the Act due to concurrent divorce proceedings. In the alternative, he argued the court should assume jurisdiction.
The mother disputed that the child was habitually resident in Australia and sought dismissal of the father’s application. I note here that the mother has been self-represented since approximately November 2021.
During the interim hearing, the parties made consent orders for the father to discontinue his Initiating Application filed on 8 September 2021, as well as for all extant applications and responses in relation to that application to be dismissed. However, it was anticipated that there would be proceedings commenced in the Country B courts concerning the child. The parties therefore raised a new dispute, namely whether the father should be permitted to utilise documents produced on subpoena in these proceedings, in proceedings that are anticipated in a Country B court. I ordered for this issue to be determined on the papers.
Those consent orders also provided for the parties to each pay 50 per cent of the ICL’s costs, fixed in the sum of $1,650 each, as well as making the following provisions for any costs applications as between the parties:
5. In relation to any application for cost orders, the matter be dealt with on the following basis:
5.1 within 14 days of the date if these orders, the Respondent Mother file and serve written submissions and any supporting affidavit material in relation to any orders sought as to costs;
5.2 within 14 days, thereafter, the Applicant Father has leave to file and serve written submissions and any supporting affidavit material in relation to any orders sought as to costs; and
5.3 within 7 days, thereafter, the Respondent Mother has leave to file and serve written submissions and any supporting affidavit material in reply.
6. The determination on the issue of costs is to be considered:
6.1 on the written submissions filed pursuant to Order 5 above; and
6.2 dealt with in Chambers, in the absence of the parties, without the need for any appearance.
As seen above, the mother was to file written submissions in support of any application for costs within 14 days of 18 March 2022. This time has now passed. The father filed written submissions on 19 April 2022, together with a supporting affidavit. In his submissions, he sought the following orders:
1. There be no order for costs in favour of, Ms Tripp, the Respondent Mother, as against, Mr Allison, the Applicant Father.
2. Both the Respondent Mother and Applicant Father are each to bear their own costs of and incidental to these parenting proceedings.
Notation:
A. The Court dispenses with any requirement for the Applicant to file an Application in a Proceeding with respect to the above orders and given the orders made on 18 March 2022.
B. Orders were made on 18 March 2022 by the Honourable Justice Harper for a mechanism to deal with any costs sought by either party.
In proceedings to which the Act applies, the starting point is that each party shall bear his or her own costs: s 117(1). If, however, the Court is of the opinion that there are justifying circumstances, the Court may make such order as to costs and security for costs as the Court considers just: s 117(2).
Neither party sought an order for costs in their favour. The father merely sought an order consistent with the terms of s 117(1).
There is no reason to depart from the general rule under s 117(1) of the Act. There will be no order as to costs.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 10 May 2022
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