Benir and Mehmen

[2009] FamCA 1279

FAMILY COURT OF AUSTRALIA

BENIR & MEHMEN [2009] FamCA 1279

FAMILY LAW – COSTS – Costs thrown away

Family Law Act 1975 (Cth)

APPLICANT: Mr Benir

RESPONDENT: Ms Mehmen

FILE NUMBER: MLC 9667 of 2009

DATE DELIVERED: 7 December 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 7 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dean

SOLICITOR FOR THE APPLICANT: Buxton & Associates

COUNSEL FOR THE RESPONDENT: Ms Dolphin

Orders

1. The application filed on 28 October 2009 is struck out.

2. The solicitors for the applicant on the record are released from the proceedings and, therefore, have leave to withdraw.

3. The applicant pay the respondent’s costs thrown away this day, in the sum of $192.90.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9667 of 2009

MR BENIR

Applicant

And

MS MEHMEN

Respondent

REASONS FOR JUDGMENT

1. This is an application in the duty list brought by the applicant, seeking that the respondent be dealt with for contravention of orders made by this court as long ago as February 2007.  In passing, I note that it should have been issued in the Federal Magistrates’ Court, but, be that as it may, it is now here.  There are a number of defects in the application in that there is no supporting affidavit.  Ms Dolphin, who appears on behalf of the respondent wife, said the wife was not served with the affidavit either, but was only given documents days ago.

2. Mr Dean, who acted on behalf of the applicant husband, said that he has had no instructions from his client, and appears as a matter of courtesy to the court.  He said his client took the documents from his office and filed them himself.  Why he did that remains a mystery but Mr Dean says that he has no recent contact with the husband, nor with any of his “known associates”.  I note also, in passing, that despite the orders being made in 2007, there does not appear to have been any time spent between the applicant and the children for a long time.  Perhaps the application was misguided in the first place.

3. On the basis that Mr Dean has no further instructions, he has sought leave to withdraw from the record, and I propose to make that order.  The wife then applies to have the application struck out, and that is the appropriate order in the circumstances. 

4. The wife also seeks an order for costs.  The costs thrown away today amount to $192.90, being one hour of the lawyer’s time. 

5. An order for costs can be made under s 117 of the Family Law Act 1975 (Cth) (“the Act”). That provision says that each party should pay their own costs unless there are circumstances which justify a departure from that principle. If the court decides there are justifying circumstances, then the court has to take into account the provisions of s 117(2A).

6. In this case, there are circumstances justifying an order for costs.  The husband filed the application on 28 October, has not been in touch with his lawyers of late, is aware of the proceedings and has put a number of people to inconvenience. 

7. In terms of the provisions required by the subsection (2A), I am satisfied that Mr Dean has been engaged and, as such, I am entitled to conclude that there were reasons for him to believe that his client had sufficient funds to support the payment of legal costs.  There are no Legal Aid considerations here for the husband.  I am satisfied also that the conduct of the husband in not being here today justifies the order for costs being made as well.  In those circumstances, I will make an order for costs.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  31 December 2009