Flynn and Troy (Costs)

FAMILY COURT OF AUSTRALIA

FLYNN & TROY (COSTS)

[2009] FamCA 767

FAMILY LAW - COSTS

Family Law Act 1975 (Cth) s 117(1), 117(2A)

I v I (1995) FLC 92-625

APPLICANT:

Mr Flynn

RESPONDENT:

Ms Troy

FILE NUMBER:

BRC

1045

2009

DATE DELIVERED:`

24 August 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:	8 May 2009
Written submission by Respondent received 22 May 2009 Written submission by Applicant received 9 June 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

HERBERT GEER

SOLICITOR FOR THE RESPONDENT:

BARRY & NILSSON

Orders

The question of the costs of and incidental to the Application in a Case filed 12 March 2009 (including the oral application for re-opening) be reserved for determination by the trial judge.
The parties be at liberty to use the written submissions filed on behalf of each of them at such adjourned hearing.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC1045 of 2009

MR FLYNN

Applicant Father

And

MS TROY

Respondent Mother

REASONS FOR JUDGMENT

COSTS

On 8 May 2009 I delivered reasons for judgment and made orders in circumstances where applications for parenting orders in respect of the parties’ child, aged seven, had been commenced in different countries.
The parties and the child are citizens of the United States. The mother and child were, at the time of the proceedings before me, living in Brisbane with the mother’s partner and the child’s siblings.
Consent arrangements between the parties had seen the child spend a period of six months with each of his parents (and their respective partners and the child’s siblings in each family) in Brisbane and in Utah in the United States.
The father applied in this court for a stay of these (Australian) proceedings by reason of proceedings in the United States. Ultimately, in those substantive proceedings, I concluded that the application brought by the father for stay should be dismissed.
On 8 May 2009 (the day upon which the reasons for judgment just referred to were scheduled to be delivered), an application was made by the father to re-open the proceedings just described. The oral application for re-opening was also dismissed. Reasons were given for that decision extempore on 8 May 2009.
The wife seeks her costs of and incidental to the proceedings just described.
So as to overcome the legislative requirement that each party to proceedings under the Family Law Act bear his or her own costs (s 117(1)) a party seeking costs must establish circumstances which justify a departure from that position. A court must take into account all of the facts and circumstances relevant to the particular case before it and balance any such matters as are relevant pursuant to s 117(2A) of the Act against the statutory starting point provided by s 117(1). (see eg. I v I (1995) FLC 92-625).
Written submissions were received on behalf of each of the parties in respect of the application for costs.
Evidence with respect to the financial circumstances of the parties is scant. In her affidavit of evidence-in-chief the mother deposes (paragraph 53) that she does not work in paid employment and is the primary carer to three children, including the child the subject of the instant proceedings. She deposes to not receiving benefits and to being reliant on her current partner for financial support.
At the time of delivering reasons on 8 May 2009 I found (paragraph 80) that “the financial circumstances of the father are unknown save that he has been employed with the same company for the past seven years”.
In the written Outline of Argument on behalf of the mother it is pointed out that at paragraph 59 of her affidavit the mother deposes that the father is a construction worker with a company in Utah. She attaches to that Outline of Argument three documents said to be three of the father’s pay slips dated late 2008. I do not propose to receive that evidence.
There is no question that the continuing proceedings with respect to the child (whether in this country or in America) are likely to involve a significant financial burden for each of the parties.
The mother submits that the father has been “wholly unsuccessful” in relation to his application in this court as well as his application to re-open in this court. In response, the father argues that “the application of the father in this jurisdiction reflects similar proceedings taken by the mother in the Utah District Court”. Those proceedings remain on foot.
It seems to me relevant to take into account that the evidence before this court in respect of the oral application to re-open was to the effect that the court in Utah had delivered a judgment on 6 May 2009. I said in my earlier reasons that there were some troubling aspects about that. The Utah decision says, at page 2, “The Australian court has not presided over any hearings concerning this case”.
I said in my reasons “furthermore, the (Utah) reasons do not refer to the fact that, some nine days previous to the hearing and decision made by the Utah court, a contested application involving the very issue of forum had been fully argued on behalf of each of the parties by senior counsel and was the subject of a reserved decision. No reference whatsoever is made to that fact and the decision of the Utah court.”
I pointed out that it was plainly not right to say (as judgment of the Utah court did) that, as at 6 May 2009, the Australian court had not presided over any hearings concerning this issue. Not only had an Australian court presided over proceedings in respect of this case, it had reserved a judgment in respect of the very issues the Utah court was being asked to determine.
The mother said the position was even murkier because she was not aware that a determination was being made by the Utah court and had not been made aware of the decision itself –as far as she and her attorney were aware as at 7 May 2009, the matter was proceeding in the Utah court on 28 May2009. I made the point in my earlier reasons, though, that “these are not the proceedings in which issues disputed factually can be resolved, but I should say that I find each of the circumstances just described to be troubling and puzzling”.
I am unaware of any material put before the Utah court by the husband to that effect (whether sworn or otherwise) and the evidence about the mother’s knowledge of those proceedings is also as yet untested.
There is in my view a degree of artificiality about saying that a party has been “wholly unsuccessful” in proceedings (although that might fairly describe the result) in circumstances where he has been (perhaps) entirely successful in pursuing similar proceedings in another place.
There is the potential for the “conduct of the parties to the proceedings in relation to the proceedings” to have a significant bearing upon whether an order for costs is made in respect of the instant application.
For example, a situation where the husband proceeded on the basis of the actions, judgments and comments of an American court to the effect that that court had jurisdiction and power to determine the issue might be distinguished from a situation where a party had misled (for example by omission) that American court about the existence, and/or the stage of, proceedings in Australia with respect to the same issues.
A determination about that matter is beyond the scope of the evidence before me and the nature of the proceedings which have thus far taken place in this court.
It seems to me that the question of the costs of this application should be reserved for determination by the trial judge.
In reserving those costs, I also make it clear that I specifically reserve the question of whether any costs have been incurred by reason of the late attendance at court by Mr Page SC, who represented the husband in the substantive proceedings.
In a similar vein, an application made for indemnity costs would depend, in large part, on factual findings beyond the scope of the current evidence and the current proceedings.
The order I will make then is that the question of the costs of and incidental to the Application in a Case filed 12 March 2009 (including the oral application for re-opening) be reserved for determination by the trial judge.
I direct that the parties be at liberty to use the written submissions filed on behalf of each of them at such adjourned hearing.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.

Associate:

Date: 24 August 2009

[2009] FamCA 767

24 August 2009

Key Legal Topics

Areas of Law

Civil Procedure

Legal Concepts

Costs

Stay of Proceedings