Davey and Yardley (No 2)

[2014] FamCA 547

FAMILY COURT OF AUSTRALIA

DAVEY & YARDLEY (NO 2) [2014] FamCA 547

FAMILY LAW – COSTS – where mother was wholly successful in her application to have the child returned to Australia – where no reliable information as to father’s financial circumstances – where application brought as a result of the father breaching orders of another jurisdiction - just and equitable for father to pay costs of the mother.

Family Law Act 1975 (Cth) s 117

APPLICANT: Ms Davey

RESPONDENT: Mr Yardley

FILE NUMBER: ADC 112 of 2014

DATE DELIVERED: 22 July 2014

PLACE DELIVERED: Darwin

PLACE HEARD: Darwin

JUDGMENT OF: Dawe J

HEARING DATE: 22 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr White

SOLICITOR FOR THE APPLICANT: White Berman

COUNSEL FOR THE RESPONDENT: n/a

SOLICITOR FOR THE RESPONDENT: n/a

Orders

1. The respondent husband pay the applicant wife’s costs fixed in the sum of EIGHTEEN THOUSAND NINE HUNDRED AND TWENTY FIVE DOLLARS [$18,925.00].

IT IS NOTED that publication of this judgment by this Court under the pseudonym Davey & Yardley (No 2) 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 DARWIN

FILE NUMBER: ADC 112 of 2014

Ms Davey

Applicant

And

Mr Yardley

Respondent

EX TEMPORE EASONS FOR JUDGMENT

1. This is the application made by the mother for costs of the litigation which resulted in the detailed orders that I made on 17 January 2014 requiring the father to deliver up the child E born in 2006 to the mother.  They were orders which included watch list and recovery orders.

2. The question of costs was reserved.  I have the application for costs on behalf of the mother and have received the detailed material annexed to the copy of the affidavit of the mother sworn on 9 July 2014.

3. I have also taken into account the E-filed document filed by the father which purports to be an affidavit.  It is headed as an “affidavit” but it is merely signed by the father and is not sworn.  In most cases it would be rejected as it is not evidence.

4. I have taken into account, however, the material in that document as if it were submissions on behalf of the father.  I note that he alleges that he has spent A$100,000 or to be seeking to recover that sum to quote, “compensate for the mentioned losses.” 

5. This is an application for costs in relation to a child order but not to within the provision of Division 13A.  I therefore have to take into account the provisions of section 117 when considering making the costs orders.  I am satisfied in this case that the mother was wholly successful and the father was wholly unsuccessful in the application concerning the return of the child which resulted in the order that I made on 17 January 2014.

6. There is considerable difficulty in this matter in taking into account the financial circumstances of the parties, but I have received submissions from the mother’s counsel which indicates that she is employed and has a salary and related expenses and has property in Australia with a small equity.  I have no reliable information concerning the father’s financial circumstances, but take into account his qualifications, experience and capacity for employment.

7. The provisions of section 117 do not require the Court to give significant weight to one of the particular factors but to weigh up all of the factors when deciding whether it is just and equitable to make an order, taking into account that the original provisions indicate that each party bear their own costs, unless the Court is satisfied that it is just and equitable to make an order for costs, taking into account the necessary factors.

8. The most significant factors in this matter are the mother’s need to bring proceedings in this Court as a result of the actions of the father in breaching the orders of Country B and removing the child without the mother’s permission and the fact that the mother has been wholly successful in obtaining the orders of the Court. 

9. I also take into account the expenses which the mother incurred in obtaining the necessary order for the return of the child to her care.  They were expenses but cannot be considered to be costs in these proceedings.

10. I am therefore satisfied that it is just and equitable and appropriate to make an order for costs in favour of the mother.  My concern is to reduce any further costs of making it necessary to have the assessment of the costs carried out by a Registrar.  It would appear quite apparent that there would be no capacity for the parties to agree the amount of the legal costs.

11. I have taken into account the background circumstances of this matter.  An order for indemnity costs is appropriate because of the behaviour of the father and the actions taken by him in removing the child contrary to the orders of the residence of the child and resisting the orders that have been made in this jurisdiction.

12. In relation to those costs, I am also satisfied that the translation costs and items in section C including travel for execution of document are appropriate disbursements associated with the legal costs.

13. The total of costs, therefore, that I calculate should be payable by the father to the mother is $18,925, being the indemnity costs in part A and the disbursements in part C.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 22 July 2014.

Associate: 

Date:  23 July 2014