BIGGS & POWELL
[2014] FamCA 1202
•3 December 2014
FAMILY COURT OF AUSTRALIA
| BIGGS & POWELL | [2014] FamCA 1202 |
| FAMILY LAW –Contravention withdrawn – Costs appropriate. |
| Family Law Act 1975 (Cth) |
| Prantage [2012] FamCAFC 84 |
| APPLICANT: | Mr Biggs |
| RESPONDENT: | Ms Powell |
| INTERVENOR: |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLC | 8800 | of | 2012 |
| DATE DELIVERED: | 3 December 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 3 December 2014 |
REPRESENTATION
| THE APPLICANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Mr Matta |
| SOLICITOR FOR THE RESPONDENT: | Barbayannis Lawyers |
Orders
That the applicant father have leave to withdraw his contravention application.
That all outstanding applications are otherwise dismissed.
That the father pay the mother’s costs fixed in the sum of $3000.
IT IS CERTIFIED:
That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Biggs & Powell 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: MLC 8800 of 2012
| Mr Biggs |
Applicant
And
| Ms Powell |
Respondent
REASONS FOR JUDGMENT
This is an application for costs arising out of the fact that a contravention application against the mother, filed on 28 October 2014, has been withdrawn. It is not appropriate that I delve into the circumstances of the application, save this: that I remarked earlier this morning, when one looks at the orders that were alleged to have been breached, to use legal jargon, they were doomed to fail. These parties in February 2014 could not agree on a whole raft of things associated with their two children, one of the most significant of which was the kindergarten which their youngest child was to attend in 2015. The allegations on their face would appear to be serious, but when one looks at them in the context of the orders to which I have just referred, one wonders what the applicant expected the Court would be able to do to solve the problem.
It seems to me, in circumstances where the respondent says that she was going to, deny every allegation, one must wonder why the application was brought if, indeed, the allegations were never going to succeed. I now have a problem where the applicant is withdrawing the application. The mother has said that she is impecunious. She is a woman of straw. She borrowed money to have her representation today. She is stressed by these proceedings, which she says have been going on and, indeed, there is about to be another proceeding in the State Magistrates Court for an intervention order. It is ironic in this case that the final orders were made by consent in February this year, and here we are, less than nine months later, back in Court arguing about whether or not someone has breached the order in relation to such things as a child attending a kindergarten in 2015, denigration of each other, and failing to give children privacy when attending telephone discussions.
It seems to me that this is a case which was not well thought out, and whether or not the father had some legal advice about it is irrelevant.
In my view, this is a case where there is a justifiable reason to depart from the principle in s 117, that each party pay their own costs. Before a Court can make an order, however, it has to look at the question of the provisions of s 117(2A). It is not disputed that the mother is impecunious, and she has borrowed the money from her family to be here today. As I earlier observed, it is the right of a person to be represented if they so wish, but in this case she maintains that she could not have faced the Court because of the nature of the communication between she and the father. In those circumstances it seems reasonable that she was appropriately represented.
Her financial position does not seem to be challenged. She is not represented by Victoria Legal Aid. The father was unsuccessful in a case like this where he withdraws the application. He could have withdrawn it a week ago, but he did not do so. He had legal advice from the duty lawyer this morning after the case was called on, and he has withdrawn the application after having had that advice. In those circumstances, it seems to me that the only question is whether or not he has the capacity to pay costs. His situation, he says he is unemployed, but he is buying a house and managing somehow or other to pay a mortgage.
I had been advised, and I have indeed read the Senior Registrar’s reasons in which an order was made against the father’s mother earlier this year for costs associated with an application that she brought, and the Senior Registrar seemed to be suggesting that he had a very strong feeling that the mother’s was really being orchestrated by the father. To a very significant degree, he seems to have conceded that in the discussions about costs. Notwithstanding he seems to be suggesting he is impecunious, he does have an interest in the home in C Town, although I am not sure what the equity is.
This is a case where an order for costs should be made. The application for costs is $5765, but to make that order it would be on an indemnity basis. Having regard to the fact that the father is unrepresented, he probably had not given sufficient thought to how much this would cost the mother, and it seems to me this is not an unusual case in the context of Prantage [2012] FamCAFC 84. In my view, it would not be appropriate to make an order for indemnity costs.
On the other hand, however, to do what the Senior Registrar did, which is to order that there be agreement, seems most unlikely to result in agreement having regard to my criticism that parties cannot even tell each other the name of the kindergarten that their child is going to attend in 2015. In those circumstances, to arrange an assessment is going to be costly, and time-consuming, in circumstances where neither party can afford it. It seems this is a case where I should exercise a discretion and fix the costs. I propose to order that the father pay the mother’s costs, fixed in the sum of $3000.
RECORDED: NOT TRANSCRIBED
In the matter then of Biggs & Powell, I will give leave to the father to withdraw the application filed 28 October 2014. All outstanding applications are otherwise dismissed, and the father is to pay the mother’s costs, fixed in the sum of $3000, and I will certify for counsel.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 3 December 2014.
Associate:
Date: 24 December 2014
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