Berrington and Farndale (No 2)

[2015] FamCA 237

FAMILY COURT OF AUSTRALIA

BERRINGTON & FARNDALE (NO 2) [2015] FamCA 237

FAMILY LAW – COSTS – costs sought by father in circumstances where a final hearing was aborted due to the mother’s ill-preparedness incurring him in fees and expenses but at the same time, he obtained an interim order for residence – Mother’s costs submissions not consistent with the reality of the evidence given – No costs ordered.

Family Law Act 1975 (Cth)

APPLICANT: Mr Berrington

RESPONDENT: Ms Farndale

FILE NUMBER: SYC 7554 of 2008

DATE DELIVERED: 10 APRIL 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: By way of written Submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Boehm

SOLICITOR FOR THE APPLICANT: White Berman

SOLICITOR FOR THE RESPONDENT: A K Reeves & Associates

Orders

1. That the father’s application for costs is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Berrington & Farndale (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: SYC 7554  of 2008

Mr Berrington

Applicant

And

Ms Farndale

Respondent

REASONS FOR COSTS JUDGMENT

1. On 20 March 2015, the Court made parenting orders. As part of his case and very clearly set out in his final written submissions, the father sought a costs order against the mother. That related to some specific events which included an aborted hearing in July 2014.

2. As the mother’s counsel did not address the costs issue, I provided for her to have an opportunity to respond to the father’s submissions. That was done on 31 March 2015 in a submission prepared and signed by the mother’s solicitor.

3. The father sought costs of $11,084.72 and he set out how that was calculated. The mother submitted each party should pay their own costs.

4. It is the general rule, as prescribed in s 117(1) of the Act, that each party should bear their own costs. However, the Court is empowered by s 117(2) of the Act to make an order for costs if it is of the opinion that there are “circumstances that justify it in doing so”. If the Court finds a justifying circumstance, it still has to have regard to the factors in s 117(2A) (which are those to which the applicant pointed in his submission) in considering what order, if any, should be made (see I and I (No 2) (1995) FLC 92-625).

5. The father’s position was that he incurred costs for an interim application, his counsel’s fees in July 2014 and various expenses associated with his own attendance in Adelaide in July 2014 bearing in mind that he lived in Sydney and came specifically prepared for a final hearing.

6. It was submitted:

   ·There was a good reason to depart from the general rule;

   ·The father was wholly successful in achieving a change of residence in July;

   ·The mother had not negotiated;

   ·The father was put to needless expense;

   ·The mother had not prepared for a final hearing;

   ·The mother had acknowledged that her father paid all of her bills and various expenses and had therefore resources to meet costs;

   ·The father was cross-examined and challenged about the costs.

7. The mother’s solicitor submitted:

   ·The mother was unemployed and had no savings and had not been able to obtain employment because of her sole care of the child from birth;

   ·The father had been employed to January 2015;

   ·The mother had a credit card debt;

   ·The mother was legally aided and had to pay back $10,600 to the Commission;

   ·The mother had been self-represented and was “confused”;

   ·The trial was “vacated” because of the mother’s illness;

   ·The mother incurred contact costs and they will now be ongoing.

8. Each of those submissions needs only a simple response. In respect of the father, in July 2014, he was wholly successful in achieving a change of residence. His trip was therefore not wasted and he achieved what he had desired. His legal expenses were not therefore entirely wasted. In respect of the mother not negotiating, I consider a fair reading of my judgment to have been very critical of both parents. To submit that, was like the proverbial pot calling the kettle black. On any view, even with the magnanimous assistance of her father, the mother was still a low income earner who was expected to travel consistently to Sydney.

9. The mother’s submission does not fare much better. Whilst she might indicate she was unemployed, she told the Court she was about to commence a business with employees all lined up and ready to go. The submission may portray the reality but it does not reflect the evidence of only weeks ago.

10. I accept that the mother was legally aided, and presumably her practitioners have told the Commission of her business venture.

11. The trial was not vacated in July necessarily because of the mother’s illness but because of her lack of preparedness and poor behaviour. The submission also does not address the reality of the evidence.

12. Each party seems to have looked at the matter in their own jaundiced way.

13. No one factor in s 117(2A) is decisive of the outcome but the preponderance of those factors would indicate that neither party was particularly attentive to their duties as a litigant. The mother failed to comply with orders but so did the father in an overholding incident in 2014.

14. I consider that neither party in this case is in a position where a costs order would adversely affect them but then again neither should have that advantage. Of the two, the mother will now need more money than the father because of her contact travelling costs.

15. Neither has resources of significance and a costs order may very well affect the contact regime. The fact that the mother has the benefit of her father is immaterial. That can be stopped at any time. In addition, it is not the grandfather’s responsibility to be paying the costs directly or indirectly.

16. There are certainly Legal Aid considerations here but just how much they authority has been made aware of the mother’s apparent financial position, I am unable to say. I do not see the legal aid dollar as relevant in this costs application.

17. There is little about this case that was unusual. The parties needed a resolution from the Court because they could not work it out themselves. Neither party covered themselves in glory.

18. On balance, I am satisfied that it would not be just to make an order departing from the principle that each party should pay their own costs.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 10 April 2015.

Associate:

Date:  10 April 2015