Bunson and Abbey (No 2)

[2016] FamCA 475

FAMILY COURT OF AUSTRALIA

BUNSON & ABBEY (NO. 2) [2016] FamCA 475

FAMILY LAW – COSTS – Where the applicant mother was entirely unsuccessful with her interlocutory application seeking a reconsideration of final parenting orders made in November 2015 – Where the father sought costs in the event that the mother’s application was dismissed – Where the application by the mother was not well considered and was entirely unsuccessful – Where orders were made for mother to file material in response but no material was filed-Mother to pay the father’s costs as agreed or assessed

Family Law Act 1975 (Cth), ss 117

APPLICANT: Ms Bunson

RESPONDENT: Mr Abbey

FILE NUMBER: NCC 3062 of 2013

DATE DELIVERED: 9 June 2016

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 8 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Harpers Legal

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Foat Roberts Lawyers

Orders

1. That the applicant mother, Ms Bunson, pay the costs of the father as agreed or assessed, in relation to the Application of the mother filed 1 March 2016 (dismissed 12 April 2016).

IT IS NOTED that publication of this judgment under the pseudonym Bunson & Abbey (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 3062 of 2013

Ms Bunson

Applicant

And

Mr Abbey

Respondent

REASONS FOR JUDGMENT

Introduction 

1. On 8 April 2016 there was an interlocutory hearing before me.

2. The mother of four subject children had applied for reconsideration of the final parenting Orders made on 6 November 2015 (“the 2015 Orders”) after a contested hearing.

3. The application was opposed by the father, with whom the children now live.

4. The question of whether there had been sufficient change of circumstances to justify or require reconsideration of the 2015 Orders was determined as a preliminary issue.

5. In his Response filed 23 March 2016, the father sought costs in the event that the mother’s application was dismissed.

Short History of Relevant Events

1. On the day when Orders were made and ex tempore reasons given

   
   

   (12 April 2016) the father pressed his application for costs.

2. Orders were made providing time for the mother to file any material she relied on in response by 10 May 2016 with the father to file any material in reply by 24 May 2016.

3. No material has been filed by the mother.

4. Accordingly, the further provision for reply by the father is otiose.

The Law

1. The principle established in s 117 of the Family Law Act 1975 (Cth) is that each party to proceedings shall bear his or her own costs.

2. If the Court is of the opinion that there are circumstances that justify making an order for costs, such an order must be considered by the Court to be just.

Considerations

1. In considering what order, if any, should be made, the Court must have regard to the following seven matters.

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

1. The mother nominated her occupation in her application as “[health professional]”, which suggests she is working.

2. I have no information about the following matters:

   a)The mother’s income;

   b)Any Child Support Assessment made for the mother; and

   c)The contribution of the mother to the household she shares with her partner.

3. The father nominated his occupation as “[tradesman]”. 

4. He has the full-time care of four children aged 12, 11, 10 and seven. He also has the obligation to contribute to the maintenance of the one year old child of his current relationship.

(b)      Whether any party to the proceedings is in receipt of Legal Aid.

1. I have no direct information, but neither party has advised that they have the benefit of a grant of Legal Aid.

(c)      Procedural conduct of the parties.

1. Each party complied with orders and directions in a timely way.

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

1. The mother asserted non-compliance by the father with certain aspects of his obligation to advise the mother of decisions arising from his exercise of parental responsibility.

2. However, these were not contravention or enforcement proceedings.  I have found there were circumstances which would reduce the significance of

   
   

   non-compliance, if there was any. No findings were made about that.

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

1. This is a significant consideration.

2. The mother has been entirely unsuccessful in her application. It has been dismissed.

(f)       Whether either party has made an offer in writing

1. Neither party made an offer to resolve the proceedings.

(g)      Such other matters as the Court considers relevant

1. I take into account that the mother instructed new solicitors in order to prepare this application.

2. The first letter from the solicitors for the mother came on 28 January 2016 to the father directly. It was three pages long.[1] The letter raised complaint about perceived non compliance by the father with orders to advise the mother in relation to schools.  Paragraphs 272 - 274 ;279 - 280 in particular refer to the authority of the father to change the three younger children’s schools and enrol the oldest child at the High School in consultation with the schools.

   [1] Affidavit of the mother filed 31/03/2016, Annexure F

3. The letter was consistent with a obligations arising from equal shared parental responsibility rather than sole parental responsibility. Demands were made and a proposal was put forward for the oldest child to return to live with the mother, at least in the interim.

4. The father consulted his solicitors who responded on his behalf, in a measured way, in a letter dated 22 February 2016.[2]  Raised in that letter was a report of the children returning from the mother’s care having been allegedly asked “to behave in a difficult manner to ensure that they can return to her care”.

   [2] Affidavit of the father filed 23/03/2016, Annexure A

5. Four days later the mother signed her application for change of residence.

6. Correspondence between the solicitors for the father and the school referred to the mother coming to the school and taking the children out of class.[3]  The mother denied such conduct when it was raised with her.[4]

   [3] Affidavit of the father filed 23/03/2016, Annexure C and D

   [4] Affidavit of the father filed 23/03/2016, Annexure D

Conclusion

1. The application by the mother was not well considered, and was entirely unsuccessful.

2. Rather than doing all she could (however personally difficult that was) to support the children living with the father, she has chosen to make a fresh application based on her dissatisfaction with information supplied to her and certain aspects of the children’s behaviours.

3. In the circumstances outlined above I consider that an order for costs is just.

4. An order has been accordingly, for costs as agreed or assessed.

I certify that the preceding thirty three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 9 June 2016.

Associate: 

Date:  6 June 2016