CHADSEY & CHADSEY (No.2)

[2019] FCCA 1388

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHADSEY & CHADSEY (No.2) [2019] FCCA 1388

Catchwords:
FAMILY LAW – COSTS – General rule applies – application dismissed – no order as to costs.

Legislation:

Family Law Act 1975 (Cth), s.117

Federal Circuit Court Rules 2001 (Cth)

Applicant: MS CHADSEY

Respondent: MR CHADSEY

File Number: BRC 1618 of 2012

Judgment of: Judge Vasta

Hearing date: 27 March 2019

Date of Last Submission: 27 March 2019

Delivered at: Brisbane

Delivered on: 27 March 2019

REPRESENTATION

Solicitors for the Applicant: Hodgson Lawyers

The Respondent appearing on his own behalf

ORDERS

1. That the Application in a Case filed 13 February 2019 is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 1618 of 2012

MS CHADSEY

Applicant

And

MR CHADSEY

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 14 March 2018, I made orders by consent in this particular matter.  Those orders regarded the living arrangements of the three children, and they were made by consent after a first day of a trial. 

2. The orders, by consent, that I made included order number 6: that the father had leave until 13 March 2019 to bring an application to the Court to change the frequency of time and/or the nature of his time with the children having regard to the psychiatric or psychological counselling and/or intervention that the father had undertaken.

3. As soon as the father had completed his 10 sessions with a psychologist, Dr B, he filed an initiating application on 3 August 2018. That application sought final orders that there be a shared care regime put in place and that the parents have equal shared parental responsibility. 

4. As I noted on 17 January, these were seeking a radical departure from the orders that I had made.  The matter had a first mention date before His Honour Judge Coates in October 2018, and then it was sent to me to look at on 17 January 2019.

5. I summarily dismissed the application that day.  In doing so, I noted that there were no prospects of success and that the applicant had not, in any way, shown that he had met the threshold in Rice & Asplund for such a change of circumstances. 

6. In summarily dismissing the matter at that stage, it obviated quite a deal of expenditure by both the mother and the Independent Children’s Lawyer as well as saving a lot of time and emotional energy.

7. On 13 February 2019, the mother filed an application in a case wanting costs on an indemnity basis. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) says that:

   Subject to subsection (2) … each party to proceedings under this Act shall bear his or her own costs.

   The section further says that “if the Court is of the opinion that there are circumstances that justify doing so, the Court may order or make an order for costs or any other such order as the Court considers just”.

8. The legislation says that I have to have regard to a number of factors:

   a)the financial circumstances of each of the parties,

   b)whether any parties to the proceedings is in receipt of legal aid funding,

   c)the conduct of the parties,

   d)whether the proceedings were necessitated by failure of a party to comply with previous orders,

   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 to settle and,

   g)any other such matters as the Court considers relevant.

9. The mother, in very helpful written submissions, has pointed to the fact that the matter was always bound to be dismissed; that it was, in effect, a hopeless case in circumstances where the father should have known that he had no chance of success. Secondly, the mother says that in making his submissions, the father made allegations regarding the mother which he knew objectively to be false.

10. Whilst I have quite the sympathy for the mother, I have to look at the situation of the father. The father, despite his education, is not really a sophisticated person and, as I saw during the course of the hearing, has no real insight into what is going on. He really, without wanting to be cruel to him, is not a very intelligent person when it all comes down to it.

11. For the father to see an order such as order 6, it seems to me that, because of his lack of intelligence, he saw order 6 as an invitation to have, as it were, another go at getting parenting orders.  It is true that this was a hopeless matter, but that is the reason why the matter was summarily dismissed, so that there would be a saving in costs and in time and in emotional energy.

12. When I look at all of the matters that I have to look at in regard to s.117(2)(a), even though one can question the conduct of the father, he did this without any legal advice. His lack of intelligence is something that caused the matter to proceed the way it did and, ultimately, he was wholly unsuccessful.

13. But those matters do not get it to the point that it rises above the default position that is that each party pay their own costs.

14. Mr Chadsey tells me that the matter is still ongoing as an appeal, but the sort of matters that I have spoken of now do not apply to an appeal.  If it is he is unsuccessful in his appeal, I would expect that the submissions for the respondent mother as to costs would have even greater force, and I would think that the Independent Children’s Lawyer would join in those submissions. 

15. But at this point in time, I am not convinced that it has met that threshold; therefore, I dismiss the application.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  3 June 2019