Bletch and Douglas (No. 4)

[2008] FamCA 563

FAMILY COURT OF AUSTRALIA

BLETCH & DOUGLAS (NO. 4) [2008] FamCA 563

FAMILY LAW – COSTS

Family Law Act 1975 (Cth)

APPLICANT: Ms Douglas

RESPONDENT: Mr Bletch

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of NSW

FILE NUMBER: SYF 2318 of 2003

DATE DELIVERED: 24 July 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Le Poer Trench

HEARING DATE: 2 April 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Johnston

SOLICITOR FOR THE APPLICANT: Mr Beazley, Beazley Singleton Lawyers

COUNSEL FOR THE RESPONDENT: Mr Kearney

SOLICITOR FOR THE RESPONDENT: Ms Linden, York Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Karagiannis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of NSW

Orders

1. The father pay the mother’s costs of and incidental to the hearing of his stay application determined by me on 12 March 2008. Such costs to be as agreed or in the absence of agreement, as assessed.

2. The father pay the mother’s costs of and incidental to the hearing of recovery application determined by me on 2 April 2008. Such costs to be as agreed or in the absence of agreement, as assessed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2318 of 2003

Ms Douglas

Applicant

And

Mr Bletch

Respondent

REASONS FOR JUDGMENT

1. The application for determination is the application of the mother seeking payment of her costs in relation to the application for stay determined by me on 12 March 2008 and the application for orders determined by me on 2 April 2008.

2. On 2 April 2008 I made orders for the parties’ child to be delivered to his school the following day, 3 April 2008. The purpose of the order was to permit the mother then to collect the child from the school on that day and retain him in her care until she left Australia on 6 April 2008. I also granted leave to the mother to list her application for a recovery order before me on 3 April 2008 should that be necessary.

3. Further, on 2 April 2008 I made the following order:

   A. In relation to the costs sought by the mother in relation to this application and the stay application heard by me, I DIRECT the Applicant mother provide written submissions including quantification of costs sought to myself and to the father’s solicitor within fourteen (14) days of the date hereof and the father file and serve any response to those submissions within fourteen (14) days thereafter.

4. On 17 April 2008 the mother provided me with written submissions.

5. Section 117(1) of the Family Law Act 1975 (Cth) provides that subject to other sections of the Act each party to proceedings under the Act shall bear his or her own costs. s117(2A) of the Act requires the court when considering an application for costs to have regard to the matters referred to in paragraphs (a) to (g) of that subsection.

6. In relation to the costs of the stay application, the relative financial position of the parties was referred to. I was referred to the evidence of the father found in paragraphs 209 through to 212 of his affidavit sworn 18 January 2008. He estimated that his income for 2008 would be $180,000.

7. Having learnt a considerable amount about the parties’ financial circumstances during the course of the hearing, which gave rise to the judgement permitting the mother to remove the child from Australia to reside with her in the United States of America, I am satisfied that each of the parties have significant financial resources and I am satisfied that the father would have the capacity to meet any order made by me for costs as sought by the mother.

8. I accept that neither of the parties is in receipt of any Legal Aid grant.

9. The stay order which was made by me on 12 March 2008 was conditional and was made in circumstances where I was satisfied that the father would be pressing his application for expedition of his appeal on 17 March 2008 and that there was capacity in the Full Court to hear the appeal urgently.

10. The appeal was subsequently listed for hearing on 2 April 2008. On 1 April 2008 the father notified that he was abandoning his appeal.

11. The wife particularly relies on the question of conduct in support of her application for costs. She says that the husband ultimately withdrew his appeal and consequently, it must be seen that the necessity for a stay was never required. Accordingly, the mother says that her costs application in relation to the stay should be granted. The husband opposes the order and submits, inter alia, that the appeal should not be seen as having been “without merit”.

12. It seems to me that whether or not the appeal had merit was a matter that would principally be considered in the costs application that was heard by the Full Court. Had the husband proceeded with his appeal and been unsuccessful then the wife, in my view, would have a substantial claim for her costs of the stay application being made. The fact is that the stay application was only necessary because the father did file an appeal against the orders made by me at the conclusion of the children’s case. Ultimately the appeal was not proceeded with for whatever reasons. The wife has been put to cost as a result of the actions of the father.

13. In my view, it is appropriate for the Court to order that the father pay the mother’s costs of the stay application heard and determined by me on 12 March 2008.

14. The next application for costs sought by the mother is in relation to the recovery proceedings which were heard and determined on 2 April 2008. On that day I made orders as referred to earlier in these reasons. Both the mother and father were represented in Court on that day. It was argued on behalf of the father that he should be allowed further time with the child before he left Australia with his mother.

15. The orders I made at the conclusion of the hearing of the principal proceedings in 2008 provided for the father to have the child with him for a period of time before the mother left Australia. I was advised by the parties’ legal representatives on 2 April 2008 that the father had exercised that time provided for under those orders and accordingly, I made orders which provided for the return of the child to his mother forthwith.

16. The same considerations apply in this case as in the hearing of the application for costs of the father’s stay application and, in my view, the most significant matter which warrants an order in favour of the mother is the conduct of the father in failing to return the child to his mother as requested by her. Consequently, that conduct gave rise to the application by the mother which was heard by me on 2 April 2008.

17. In my view, an order should be made for the father to pay the mother’s costs of and incidental to the application for the recovery order heard by me on 2 April 2008.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.

Associate: 

Date:  24 July 2008