Bale-Sutch and Bale-Sutch - [2007] FamCA 463

FAMILY COURT OF AUSTRALIA

BALE-SUTCH & BALE-SUTCH

[2007] FamCA 463

FAMILY LAW - PRACTICE AND PROCEDURE - Adjournments - Non-appearance of a party - Non attendance by father – Applications by both parties adjourned – Costs ordered

Family Law Act 1975: ss. 117, 117(2A), 117(2A)(c), 117(2A)(g)

In the Marriage of Kohn (1977) 30 FLR 175 at 177
Brown & Brown [1998] FamCA 115; (1998) FLC 92-822;
23 Fam LR 349
LAC & TRF & LKL [2005] FamCA 158 at paragraph 41; (2005) 33 Fam LR 123

APPLICANT:

Mrs Bale-Sutch

RESPONDENT:

Mr Bale-Sutch

FILE NUMBER:

MLC

3800

2007

DATE DELIVERED:

14 May 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

14 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Mercader

SOLICITOR FOR THE APPLICANT:

Mercader Barristers & Solicitors

COUNSEL FOR THE RESPONDENT:

Mr M. Clarke

SOLICITOR FOR THE RESPONDENT:

Tim Mepstead Barrister & Solicitor

Orders

That the outstanding contravention applications be adjourned before me for directions at 2:15pm on 25 May 2007, provided that if I am available to hear them on that day at that time I will do so.
That both parties are directed to attend court personally for the directions hearing before me on 25 May 2007.
That the father make a contribution to the mother’s costs thrown away on 7 May 2007 and this day be fixed respectively in the sum of $900 and $677, being a total of $1,577, such costs to be paid prior to 9am on 25 May 2007.
I DIRECT that my reasons for judgment be transcribed and when transcribed a copy be sent to each of the parties and the original be placed on the Court file.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3800 of 2007

Mrs Bale-Sutch

Applicant

And

Mr Bale-Sutch

Respondent

REASONS FOR JUDGMENT

(ex tempore)

This matter comes before me in the judicial duty list and concerns the young boys:-
a)THE ELDER SON who is nine and a half years old, and
b)THE YOUNGER SON who is seven years old.
Today is the adjourned return date of a contravention application filed by the father in the Federal Magistrates Court on 26 February 2007 which was transferred into this court by order of Hartnett FM on 7 May 2007. It is also the first return date of the mother's contravention application filed on 19 April 2007 in which she alleges that the father has failed to comply with parenting orders and seeks that the father be dealt with for that contravention. Interestingly, the first count alleged by the mother is alleged to have occurred on 24 February 2007 and the particulars are that the father failed to attend the changeover point or to avail himself of the time he was entitled to spend with the children. The other two counts alleged by the mother relate to over-holding the boys.
The respondent father is represented by Mr Clarke, of counsel. The father seeks an adjournment of the application on the basis that he is on his way to Melbourne by plane, but will not arrive at court in sufficient time to appear in court today.
The applicant mother, who is represented by Ms Mercader of counsel, does not seek to proceed in the absence of the respondent father but she submits that the contravention applications ought to be determined as soon as possible.
There are substantive proceedings returnable before the Senior Registrar on 25 May 2007 being interim parenting applications. The contravention applications are not within the delegated powers of the Senior Registrar. The 25^th of May falls on a Friday. Unfortunately, it is an interim defended day in the judicial duty list and the two available spots are already allocated. I do not wish to overlist before another judicial officer. Accordingly, I see no alternative but to adjourn it before me for directions at 2:15 pm on 25 May 2007.
On 25 May 2007, I require that each party attend court personally and remain for the duration of the mention before me. If my defended list is not busy, I will deal with the contravention applications there and then. If I am not readily available, I will make directions in respect of them.
The remaining applications are made orally on behalf of the mother and are that the father pay her costs of and incidental to the adjournments on 7 May 2007 and today.
The mother seeks costs of $1500 on both days, but when pressed said anything and between $677 and $1565 would suffice. Counsel for the mother says that she calculates the first by reference to the Federal Magistrates Court scale of costs, and I do not know how she calculates the second.
The mother’s application for costs is opposed.
Counsel for the respondent father submits that the mother’s costs of 7 May 2007 ought not be paid by his client because his client actually attended court of 8 May 2007. I do not see how that fact assists the father. Court file documents are clearly endorsed with the return date of 7 May 2007. The mother's costs were incurred for appearance on 7 May 2007.
Counsel for the respondent father concedes that some costs should be payable in respect of today's hearing.
Counsel for the father does not make any submissions in relation to quantum of costs claimed on either day.
Section 117 of the Family Law Act 1975 contains a general rule that each party shall be his or her own costs. The object of that rule is to ensure that spouses are not deterred from bringing or maintaining legitimate applications for fear of incurring an intolerable financial burden if they lose[1]. However, the court retains a discretion to make an order for costs if it is of the opinion that there are circumstances that justify that course and that it would be just to do so.
[1] In the Marriage of Kohn (1977) 30 FLR 175 at 177
In considering whether to make an order for costs, I have to have regard to the matters set out in s.117(2A). The submissions by the applicant and the respondent in this respect were not fulsome. They were practically non-existent. Nonetheless, doing the best I can, I still have regard to the matters set out in s.117(2A). The weight to be attached to those factors is wholly discretionary. Whilst no single factor need necessarily outrank any other, there is nothing to prevent one or other of them from being the sole foundation for a costs order[2]. As Kay J observed in Brown & Brown (1998) FamCA 115:
In many cases there will be an outstanding feature that makes an order for costs appropriate, a feature which so dominates the scene that it can outweigh any other section 117(2A) considerations.
[2] LAC & TRF & LKL (2005) FamCA 158 at paragraph 41
In this case it appears to me that the applicable matters to which I should turn my mind under s.117(2A) are subparagraphs (c) and (g), that is, the conduct of the parties to the proceedings and such other matters as the court considers relevant.
In this case it is conceded that the father came to court on the wrong day on

8 May 2007. I am satisfied that the costs of the mother being represented on the correct hearing date were wholly wasted. That is a very persuasive matter for me to consider in relation to the mother's application for costs and I do so.
In relation to today, everyone is at court except the father, he is on a plane. I am told that there were difficulties with the father securing an earlier plane trip which would have had him in Melbourne at 10 o'clock this morning, however, Mr Clarke, as counsel for the father, does not point to any advance notice or any steps taken by the father to have the mother minimise her costs of today.
The adjournment which I have granted results in the mother’s costs of today being thrown away. I am equally persuaded that he ought to be responsible for the mother’s costs of today as well.
I was not addressed in any particularity in relation to the financial circumstances of the parties. The mother says that she is on a welfare benefit. She receives no child support for the two children who are aged nine and seven. There were no submissions to the contrary by Mr Clarke.
I take into account as a relevant consideration that these are contravention applications and are expected to proceed on the first date.
I am comfortably satisfied that the circumstances of this case justify the father paying the mother’s costs of both days.
The father will pay the mother’s costs thrown away on 7 May 2007. I fix those costs at $900. In relation to the costs of today, I fix those in accordance with the scale provided in schedule 3 to the Family Law Rules. It seems that the relevant scale is $677 to $1565 and I will fix that at $677. The costs are to be paid prior to 25 May 2007.

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate:

Date: 23 May 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as BALE-SUTCH & BALE-SUTCH