Collins and Jones

[2013] FamCA 229

FAMILY COURT OF AUSTRALIA

COLLINS & JONES [2013] FamCA 229

FAMILY LAW – COSTS – Application held to be without merit – costs ordered in favour of respondent mother for fixed sum

APPLICANT: Mr Collins

RESPONDENT: Ms Jones

FILE NUMBER: MLC 3287 of 2012

DATE DELIVERED: 1 March 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 1 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hutchins

SOLICITOR FOR THE APPLICANT: Peter Falconer & Associates

COUNSEL FOR THE RESPONDENT: Ms Weiner

SOLICITOR FOR THE RESPONDENT: Victoria Legal Aid

Orders

1. That the father’s Application in a Case filed 27 February 2013 shall be and is hereby dismissed.

2. That paragraph 8(a) of my orders of 11 December 2012 shall be varied so that the father shall spend time with B born … April 2011 from 1.30pm until 7.00pm today, in lieu of any other weekend time before the mother and child leave Australia on 3 March 2013.

3. That the father shall pay to the mother’s solicitor the mother’s costs of this application fixed at $2,250 and there shall be a stay of 90 days on that payment.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3287 of 2012

Mr Collins

Applicant

And

Ms Jones

Respondent

REASONS FOR JUDGMENT

ORDERS DELIVERED

1. Costs are a discretionary matter.  Under the Family Law Act each party will pay their own costs unless the Court exercises its discretion in favour of one party paying. 

2. There are a number of things that I need to take into account in exercising my discretion.  They include the parties’ respective financial positions, who is in receipt of legal aid, the conduct of the parties and the merit of the application. 

3. I have made my view in this case very clear.  I emphasise it is not a personal attack on anyone.  I am sympathetic to the emotion involved, but I cannot overlook the fact that that emotion has led to very poor judgment in this application being brought.  It is so clearly without merit in any legal sense to enable it to proceed to any conclusion other than the conclusion that has been reached, and in those circumstances, it is clear that costs should to be ordered in favour of the respondent mother. 

4. Taking into account what Ms Wiener has said for the applicant father, I am prepared not to order costs on an indemnity basis.  But this application was not fair to the mother, it has used court and community resources too quite inappropriately.

5. In any event, I am going to order costs, but I will not do it on that more punitive indemnity basis.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 1 March 2013.

Associate:

Date:  1 March 2013