Dhupam and Keyush (No. 2)

[2008] FamCA 1078

FAMILY COURT OF AUSTRALIA

DHUPAM & KEYUSH (NO. 2) [2008] FamCA 1078

FAMILY LAW – COSTS – Circumstances justifying order – father filed contravention application – mother had previously offered to discuss the issue of interpretation of orders and suggested a solution – application doomed to fail

Family Law Act 1975 (Cth)

APPLICANT: Mr Dhupam

RESPONDENT: Ms Keyush

FILE NUMBER: CAC 1684 of 2007

DATE DELIVERED: 11 December 2008

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 11 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Mr Power

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Mr Farrar

Orders

1. That the father pay the mother’s costs of and incidental to the application for contravention filed on 24 October 2008, such costs to be agreed or assessed in accordance with the Family Court of Australia Rules.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1684 of 2007

MR DHUPAM

Applicant

And

MS KEYUSH

Respondent

REASONS FOR JUDGMENT

Costs

1. On 24 October 2008 the father filed an application that the mother be dealt with for contravention without reasonable excuse of orders made on 19 August 2008.  On 11 November 2008, that application was withdrawn and dismissed.

2. In essence the allegations made in relation to the asserted contraventions were concerned with the appropriate interpretation of orders of the Court.  In the end, it appeared and the father at least implicitly accepted that the applications were doomed to failure.  Consequently, sensibly, his lawyer on his behalf withdrew the applications and they were dismissed. 

3. The respondent seeks costs in relation to the application.  The issue of whether or not costs should be awarded under the Family Law Act 1975 is governed by Section 117 which prescribes the primary rule that each party will bear his or her own costs in the proceedings.  Nevertheless, if the Court considers it to be appropriate in the circumstances of the matter before it to do so (Section 117(2)) the Court may make an order about the costs or for costs for the parties and shall make such order as it considers fit having taken account of the matters set out under Section 117(2A).

4. In this matter the main reason for making an order for costs would be the total failure of the father’s application and the fact that it not only did it not succeed but it could properly be said never to have had any prospect of success.

5. No other matters set out under Section 117(2A) would appear to be directly relevant to my determination.

1. In my opinion, given that in the correspondence that passed between the mother’s solicitors as annexed to the affidavit filed on behalf of the mother, the mother drew attention to the issue about interpretation and proposed a solution which was in the end the one adopted by the Court to resolve any future conflict, it would be appropriate that the father should pay the mother’s costs of and incidental to the contravention.  That will be my order.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Deputy Chief Justice Honourable Justice Faulks

Associate:     

Date:  11.12.2008