Booth and Remington & Anor

[2020] FamCA 317

FAMILY COURT OF AUSTRALIA

BOOTH & REMINGTON AND ANOR [2020] FamCA 317

FAMILY LAW – COSTS – Application for costs by the applicant – Where the first and second respondent were wholly unsuccessful – Where an order to pay the whole of the applicant’s costs would cause some financial hardship – Cost application granted – Ordered the first and second respondent pay the applicant’s costs fixed in the amount of $500 each.

Family Law Act 1975 (Cth) s 117

APPLICANT: Ms Booth

FIRST RESPONDENT: Mr Remington

THIRD RESPONDENT: Ms B Remington

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: NCC 2009 of 2009

DATE DELIVERED: 4 May 2020

PLACE DELIVERED: In chambers

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 23 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: Ryan & Seton Lawyers

COUNSEL FOR THE RESPONDENT: N/A

THE FIRST RESPONDENT: Self-Represented

COUNSEL FOR THE THIRD RESPONDENT: N/A

SOLICITOR FOR THE THIRD RESPONDENT: Self-Represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: N/A

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

Orders

1. The First Respondent father shall pay to the Applicant mother costs in the fixed sum of $500 arising from the hearing on 23 July 2019 with six months allowed to pay.

2. The Second Respondent paternal grandmother shall pay to the Applicant mother costs in the fixed sum of $500 arising from the hearing on 23 July 2019 with six months allowed to pay.

3. The Initiating Application filed by the mother in the Federal Circuit Court on 8 November 2016 is dismissed.

4. The Response filed by the father in the Federal Circuit Court on 25 January 2017 is dismissed.

The Court Notes That

(A)There are other applications from 2017 outstanding.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Booth & Remington has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2009 of 2009

Ms Booth

Applicant

And

Mr Remington

First Respondent

And

Ms B Remington

Third Respondent

REASONS FOR JUDGMENT

Introduction

1. On 23 July 2019 orders were made in this Court granting an application of the mother, Ms Booth, to change the name of the subject child then aged seven years.

2. The application was opposed by the father, Mr Remington, and by the third respondent paternal grandmother, Ms B Remington.

3. At the conclusion of the hearing the mother pressed her application for costs.[1]  The Court heard the submissions of the father on costs immediately.

   [1] Initiating Application filed by the mother on 8/11/2016, Order 2.

4. The paternal grandmother was given 14 days to provide relevant financial information which she did on 25 July 2019.[2]

   [2] Exhibit 1.

5. It is regrettable that the parties have had to wait so long for an outcome in respect of this issue. The person most disadvantaged by the delay is the applicant mother.

The Law

1. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) states:

   (1) Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.

   (2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the Court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

   (2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:

   (a)The financial circumstances of each of the parties to the proceedings;

   (b)Whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

   (d)Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;

   (e)Whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f)Whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   (g)Such other matters as the court considers relevant.

2. The relevant factors which I take into account in this matter are set out as follows:

   ·(a) the financial circumstances of each party;

   ·(e) two of the parties being wholly unsuccessful.

3. I consider that the evidence relating to factor (e) justifies departure from the general principle that each party pay their own costs.  However evidence relating to financial circumstances moderates the sum to be ordered and calls for a reasonable period of time to pay.

FACTOR (e) Wholly unsuccessful

The Father

1. The father opposed the application of the mother.

2. His opposition was based on the father’s preference for the child to be kept aware of her paternal heritage.

3. The child was aged seven years at the date of hearing.  The father has not seen her for six of those years.

4. On 4 November 2013 when the child was two years old, orders were made by consent in the Federal Circuit Court (“FCC”).  Those orders gave sole parental responsibility and residence to the mother and for “no time with the father”.

5. On the same date similar arrangements were put in place for the father’s older child of another relationship.

6. The change of surname proposed by the mother did not involve a change of the father being named as father on the birth certificate.

7. A relationship between the father and the child does not exist.

8. Restoration of the relationship is a tenuous possibility.

9. The father was wholly unsuccessful.

10. The father did not attend Court to protect himself from any possible breach of a protective order. The Court indicated willingness to put questions on his behalf for cross-examination of the mother, but the father indicated that he had no questions to ask. That left the evidence of the mother unchallenged.

11. The father was, in addition, well placed to understand why the child might want to be known by the surname Booth.

12. She is the youngest member of a family of five, the other four of which have the surname Booth.  She has tried to use that surname herself.  The mother’s husband, Mr Booth, is, in all but biology, the child’s father.

13. The respondent father might have been hurt personally by the change but he must have considered that the interests of the child would prevail particularly in circumstances where he had agreed that she would spend no time with him.

14. Further, the circumstances are that there is an Apprehended Violence Order against him for the protection of the mother’s elder daughter and charges against him in respect of his daughter of another relationship.

15. Even in the event that the looming trial in respect of those charges returned a verdict of not guilty, it must be the case that the father would understand that the mother would not willingly welcome him as a presence in the life of the child.

16. In 2017 the father made an application to set aside the 2013 orders and for orders for time and communication. That application is outstanding until criminal proceedings have concluded.

17. The mother pressed for the name change on an interim basis but unsurprisingly a judge of the FCC declined to make such an order.

The Paternal Grandmother

1. The paternal grandmother and the mother entered into Consent Orders about the subject child on 4 November 2013.

2. The orders provided for defined written communication between the paternal grandmother and the child and the provision of school reports and photographs by the mother four times per year.

3. The mother concedes that those arrangements have fallen away.

4. The mother has an application pending to discharge those orders.

5. The paternal grandmother did not apparently consider the interests of the child in having the same surname as the family she has been raised in.

6. The submission about the child knowing who her birth parents are is misguided.  The name of both her biological parents is on her birth certificate and there was no proposal to change those details.

7. The paternal grandmother, although a party in her own right, ran her application as an advocate for her son and his rights as a parent. She was wholly unsuccessful in circumstances where the best interests of the child was the guiding principle.

Financial Circumstances

1. The father, aged 36, submitted that he is a student at D University with his only income being Austudy of $141 per fortnight.  He is said to live in rented premises with his partner.

2. The paternal grandmother receives a disability pension with an income after rental costs of $310 per fortnight.

3. The applicant mother paid private legal representation for the application.

4. The mother is married and has two older children of that marriage.  The subject child was born out of a short-lived relationship during a period of separation between the mother and her husband in 2009-2010.

5. The mother is a home maker and is not in the paid work force.

Conclusion

1. A costs order will likely cause some financial hardship for each of the respondents.

2. For that reason I have not made an order for the whole of the costs of preparation and hearing.

3. Further I have made an order for a fixed sum of $500 for each respondent to avoid the additional costs incurred by the mother of having an assessment of costs undertaken.

4. Six months time to pay has been allowed.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 4 May 2020.

Associate: 

Date:  4 May 2020