Edwards and Truscott

[2014] FCCA 1508

FEDERAL CIRCUIT COURT OF AUSTRALIA

EDWARDS & TRUSCOTT [2014] FCCA 1508

Catchwords:
FAMILY LAW – Costs – conduct of the parties.

Legislation:  
Family Law Act 1975

Federal Circuit Court Rules 2001

Applicant: MR EDWARDS

Respondent: MS TRUSCOTT

File Number: MLC 9360 of 2013

Judgment of: Judge Riethmuller

Hearing dates: 7 & 14 February 2014

Date of Last Submission: 14 February 2014

Delivered at: Melbourne

Delivered on: 14 February 2014

REPRESENTATION

Counsel for the Applicant: Mr Gates

Solicitors for the Applicant: Falcone & Adams

Counsel for the Respondent: Mr Kanarev

Solicitors for the Respondent: Ian Robertson Legal

ORDERS

1. The matter be transferred to the Melbourne Registry of the Family Court of Australia.

2. The Respondent Mother pay the Applicant Father’s costs thrown away on 3 February 2014 fixed at $3,630 within 120 days.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 9360 of 2013

MR EDWARDS

Applicant

And

MS TRUSCOTT

Respondent

REASONS FOR JUDGMENT

(As Revised from Transcript)

1. I have reflected on this case for a few days now and have been troubled by the way in which it has been presented.  The conduct of the mother and the way in which she has presented the case has made it far more difficult than would ordinarily be the situation, having failed to file anything for the first date and then, frankly, the affidavit that was filed for the second date was obviously her stream of consciousness: a self-prepared affidavit unedited by a solicitor, containing all manner of things, including allegations that are said to be supported by text messages but which were not, further complicating an already difficult case.

2. At its core though, there are allegations of some sexualised behaviours by the child which are troubling and some allegations around the father’s beliefs which are at least eccentric, if not indicative of further concerns.  I have also reflected upon the fact that had the matter come before me in the ordinary course in the duty list, it would have had, at the very least, a s.11F report later in the duty list week. Because of the procedural problems created by the late filing of material that is not able to occur, because the application did not actually get heard until the Friday of the duty week.

3. The way in which the concerns around the father have been raised leads to a strong inference that given the method of raising them (and the timing of them), one ought to discount them. However, the issues that they raise are certainly disconcerting and, to some extent, there is some corroboration at least with respect to his eccentric beliefs.  The question of the actual risk to the child because of the way in which this case has been presented is very difficult to ascertain. It seems to me that this is the type of case that requires such nuance of considerations and procedural interventions that it is appropriate that I transfer it to the Family Court of Australia.  

4. Costs in matters under the Family Law Act 1975 are dealt with under section 117. Generally speaking, costs are not ordered, particularly in children’s matters where the parties are expected to bear their own costs. This is obviously the appropriate rule given the nature of the issues between parties generally when dealing with children’s matters.

5. The difficulty that arises in this case is that effectively costs of a day were thrown away. It is appropriate that I turn to section 117(2A) in considering what orders should be made with respect to costs when an application for costs is made in this court.

6. I am told there is nothing about the financial circumstances of each of the parties that bears upon this question.

7. The parties are not in receipt of a grant of Legal Aid.

8. The conduct of the parties to the proceedings is significant and, in this case, the mother brought an urgent initiating application on 29 October 2013 to obtain orders for a passport to take the child on a trip to Bali with her; the reasons for travel being part work, part holiday. This was opposed by the father.  It was expedited and heard very quickly so that, despite the fact that it was only filed on 29 October, orders were made on 4 November 2013. 

9. On 26 November, the father filed an initiating application seeking time with the child and this was served upon the mother.  The matter came before me and the mother had not filed any response, nor had she filed any affidavit, nor any notice of risk of child abuse.  However, she had applied to the state courts upon her return from Bali for a family protection order in terms that do not correspond with the notice of risk that she ultimately filed in this court.  Indeed, on the case as put by her to the state courts, it is difficult to see that there would have been a basis for restricting the father’s contact regime that he had had in the past.

10. The case that she then presented on the first court date here was articulated initially in loose terms by counsel at the bar table. I stood it down for them to actually compile a notice of risk and a brief affidavit. On the issues then raised, it seemed to me to relate to serious questions about whether or not the child was at risk and I put the matter over to later in the week to enable her to file an affidavit. The affidavit that was filed is clearly constructed entirely by her if one has regard to the terms of it.

11. The reality is that the mother is well aware of the court process.  She has been to court before.  She has had a matter brought on urgently to be dealt with quickly to obtain orders that she wanted.  She had been aware of these proceedings since before Christmas.  The material that she filed ought to have been filed at least a fortnight before the court date to enable the husband and his lawyers to review it and file an appropriate response. The effect of it all is that the court date on 3 February was, in my view, entirely wasted. A further court date was necessitated by that failure to comply with the ordinary rules about responding to an initiating application.

12. There is no offer in writing that I need to consider. The proceedings generally are not determined.

13. The question of costs on the mother’s urgent application for a passport order was not determined. It seems this was because of the urgency, the lateness in the day and that counsel did not move on to the question of costs. Counsel attempted to raise it orally today, but there has been no notice to the other side.  It seems to me that under the Federal Circuit Court Rules that such an application could be brought as an application in a case, although it may be out of time at this point and that it is a matter for the wife and counsel to look at the court rules to determine. What the outcome would be is not appropriate for me to speculate upon at this point.

14. In these circumstances, it seems to me that the conduct of the mother has caused the father to entirely waste a day of fees which was $3,630, as assessed upon the scale on the previous occasion. In these circumstances, it seems to me that it is appropriate that she pay those costs. I do not need to fix them, as I have done so on a previous occasion.  I do not propose to make them payable immediately. I will order that they be paid within 120 days; (that is four months), which would allow her time, (if she so seeks) to bring an application for costs with respect to the application concerning the child’s travel.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date: 24 July 2014