Devesh and Devesh (No. 2)

[2007] FamCA 1399

FAMILY COURT OF AUSTRALIA

DEVESH & DEVESH (NO. 2) [2007] FamCA 1399

FAMILY LAW – COSTS – Between parties

Family Law Act 1975 (Cth)

APPLICANT: Mrs Devesh

RESPONDENT: Mr Devesh

FILE NUMBER: DGF 687 of 2004

DATE DELIVERED: 14 November 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 14 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms B.C. Melita

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

IT IS NOTED that publication of this judgment under the pseudonym Devesh & Devesh is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 687 of 2004

MRS DEVESH  

Applicant

And

MR DEVESH  

Respondent

REASONS FOR JUDGMENT

1. I have now been asked in this matter to make various costs orders. 

2. The wife has sought the sum of $1760 pursuant to paragraph 7 of the orders made by Mushin J on 5 April 2007.  I have no difficulty making that order.  It is simply reiterating his Honour's order. 

3. I have been asked to make an order in relation to reserved costs on 2 July 2004. Costs are a discretionary matter under s 117 of the Family Law Act.  I do not propose exercising my discretion in favour of a costs order in relation to the court appearance on 2 July 2004.  The matter was adjourned from a previous date.  There were some orders about service and other things.  I am unclear as to the upshot of all of that.  I do not feel I am on sufficiently solid ground to be making an order for costs against the husband for that day.

4. The next date I have been referred to is to 1 July 2005.  The scale costs of $730 were sought. The husband failed to appear.  He was ordered to file and serve certain documents and if he failed to do so, the case was to proceed on an undefended basis.  The wife had already been put to the expense and trouble of having to file two Form 2 applications, seeking restraining orders against the husband, and I am satisfied particularly in light of the difference in their financial positions - the husband being employed, the wife being unemployed and in receipt of legal aid - that it's appropriate that the costs for 1 July should be ordered in the wife’s favour. 

5. Similarly, I am satisfied that the costs sought in relation to the proceedings on 22 March 2007 should be ordered in the wife’s favour.  That was the second return date of the wife's application, she having just discovered that the husband had a bank account.  The husband did not attend at court but instead went to withdraw monies from that account, when the very application of the wife was to restrain him from doing that. 

6. Finally, orders are sought in relation to today's appearance. Based on the husband's course of conduct, I am satisfied that orders should be made, again in light of the difference in  the parties’ financial positions and the fact that these proceedings have clearly been delayed by the husband's lack of co-operation throughout.  I point to the matters put to me in submissions - that he has not attended court at least seven times, or eight times, counting today.  There have been no less than five orders to the effect that unless he complies with orders, the case will proceed on an undefended basis.  I have already outlined a history whereby he has failed to act in accordance with orders, and further proceedings have been necessitated. 

7. The sum sought though today strikes me as unreasonable in the circumstances.  It was clearly known that today would proceed as an undefended matter, and I propose allowing $1760 in total for the wife’s costs of today. 

8. That means I shall add to the orders.  Paragraph 12 shall provide that the husband pay the following costs to the wife:

   a)the sum of $730 in relation to the proceedings on 1 July 2005;

   b)the sum of $730 in relation to the proceedings on 22 March 2007; and

   c)the sum of $1760 in relation to today's proceedings.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate

Date:  14 November 2007