Bond and Pearcy (Costs)

[2010] FamCA 1217

FAMILY COURT OF AUSTRALIA

BOND & PEARCY (COSTS) [2010] FamCA 1217

FAMILY LAW – COSTS – where the mother failed to participate early in mediation – serious offers of settlement should be seriously considered – where the mother made a serious offer of settlement – where the father failed to give proper consideration to the mother’s offer – where the parties’ financial circumstances are modest – on balance of factors orders are made in favour of the mother – father to pay one quarter of the mother’s costs

Family Law Act 1975 (Cth) s 117

Penfold v Penfold (1980) 144 CLR 311
Robinson & Higginbotham (1991) FLC 92-209

APPLICANT: Ms Pearcy

RESPONDENT: Mr Bond

FILE NUMBER: (P)NCC 3453 of 2007

DATE DELIVERED: 20 December 2010

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Ryan J

HEARING DATE: 13 December 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Jarratt & Webb

Mr Jarratt

RESPONDENT: In person

Orders

1. That the father pay the mother’s costs in the sum of EIGHT THOUSAND DOLLARS ($8,000).

2. The costs payable by the father are reduced by the amount payable to him by the mother pursuant to the costs order made by Collier J on 2 October 2009.

3. The balance of the costs which remain payable by the father pursuant to order 1 shall be paid within 18 months.

4. All outstanding costs applications are dismissed.

5. In the event a party seeks costs of the mother’s application for costs, they shall file and serve written submissions within 14 days.

6. Any submissions in response shall be filed and served within a further 14 days.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC3453 of 2007

MS PEARCY

Applicant

And

MR BOND

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 22 September 2010 I made parenting orders in relation to the parties’ daughter M.  An application was brought by Mr Bond, who is the child’s father, to vary orders made on 6 March 2006 so that she would spend equal time with him and her mother, Ms Pearcy.  Equal time was not ordered.  The orders were largely in accordance with recommendations made by the family consultant and almost identical to settlement offers the mother made in early July 2009 and late September 2009.

2. Summarised, the mother seeks costs of the entire proceedings calculated on a party/party basis, including costs of her application for costs.  Although the mother’s application would suggest differently, she does not seek to disturb a costs order made against her by Collier J on 2 October 2009.  Collier J dismissed the mother’s application which sought to dismiss the father’s application for parenting orders.  At the mother’s request, her application for a Rice and Asplund (1979) FLC 90-725 dismissal was listed for a discreet threshold hearing and, having been unsuccessful, an adverse costs order was made against her. This costs order required the mother to…