FAMILY LAW – Costs – Parenting proceedings – Where proceedings relate to temporary relocation of children – Where father opposed temporary relocation – Where father was wholly unsuccessful in the proceedings – Relevance of father's conduct as a litigant – Consideration of parties' financial circumstances – Consideration of mother's offer to settle and father's response to that offer – Whether other factors in Family Law Act s 117(2A) outweigh father's inability to meet a costs order – Where mother sought costs on an indemnity basis – Father ordered to pay mother's costs on party/party basis

Legislation:

Family Law Act 1975 (Cth), s 117, s 117(1), s 117(2A), s 117(AB)
Family Law Rules 2004, r 19.18, r 19.34, r 19.04(6)

Category: Not Reportable

Representation:

Counsel:

Applicant: Ms G Anderson
Respondent: Self Represented Litigant

Solicitors:

Applicant: Cullen Babington & Hughes
Respondent:

Case(s) referred to in judgment(s):

Baker & Darzi [2013] FCWA 84
Bouras v Grandelis (2005) 65 NSWLR 214
Braithwaite & Braithwaite [2007] FamCA 468
Cross v Beaumont (2008) 39 Fam LR 389
Eades & Wrensted [2014] FCWA 15
Edgar v Halle (No 2) [2010] FamCA 260
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 191 FLR 294
Hand and Bodilly [2013] FamCAFC 98
Hawkins & Roe [2012] FamCAFC 77
Hitch & Hitch (2012) 47 Fam LR 603
I and I (No 2) (1995) FLC 92-625
Kohan and Kohan (1993) FLC 92-340
Maker & Jets (No 3) [2012] FMCAfam 1104
Marinko & Marinko (1983) FLC 91-307
Munday & Bowman (1997) FLC 92-784
NMFM Property Pty Ltd v Citibank Ltd (No 11) (2001) 109 FCR 77
Penfold & Penfold (1980) 144 CLR 311
Prantage & Prantage [2013] FamCAFC 105
Re David Costs (1998) FLC 92-809

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL
JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN

CHANGED

Introduction

1This is an application for costs made by [Ms Eades] arising out of proceedings in which she was involved with her former husband, [Mr Wrensted]. Ms Eades ("the mother") and Mr Wrensted ("the father") were married in December 2005. They separated in January 2010. They have two children – [Child A] (born [in] 2003) and [Child B] (born [in] 2010).
2On 2 October 2013, the mother filed an application in this Court, seeking orders which would allow her to relocate Child A and Child B to Thailand for a period of approximately 18 months. The mother's fiancé, [Mr D], had obtained employment in Thailand as an electrical and instrumentation inspector. The mother proposed that she and the children should live with Mr D for the duration of his period of employment in that country.
3The father opposed the temporary relocation for a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Eades & Wrensted

Details

AGLC: Eades & Wrensted [2014] FCWA 64
Case: [2014] FCWA 64
Decision Date: 26 SEPTEMBER 2014

CaseChat Overview and Summary

Eades & Wrensted was a case in which the Family Court considered the costs of parenting proceedings relating to the temporary relocation of children. The father opposed the mother's application for the children to relocate, but was unsuccessful in the proceedings. The court was required to determine the costs of the proceedings, taking into account a range of factors, including the parties' financial circumstances and the conduct of the father as a litigant. The court also considered the mother's offer to settle and the father's response to that offer. The court found that the father's conduct as a litigant had been unreasonable and that his opposition to the relocation was not well-founded. The court also found that the father's financial circumstances were not such that they should be taken into account in determining the costs of the proceedings. The mother's offer to settle was also taken into account, as was the father's response to that offer. The court ultimately decided that the costs of the proceedings should be awarded to the mother, with some reduction for the father's partial success in the proceedings.

The court noted that in cases involving the relocation of children, the best interests of the children are the paramount consideration. The court found that the father's opposition to the relocation was not in the best interests of the children, and that his conduct as a litigant had been unreasonable. The court also noted that the mother's offer to settle was reasonable, and that the father's response to that offer was not. The court considered these factors, along with the parties' financial circumstances, in determining the costs of the proceedings. The court found that the mother was entitled to costs, with some reduction for the father's partial success in the proceedings. The court emphasised that the costs of parenting proceedings should be awarded on a just and equitable basis, taking into account all relevant factors.

Orders