Foley and Ford

[2011] FamCA 686

FAMILY COURT OF AUSTRALIA

FOLEY & FORD [2011] FamCA 686

FAMILY LAW – COSTS

Family Law Act 1975 (Cth)

APPLICANT: Ms Foley

RESPONDENT: Mr Ford

FILE NUMBER: MLC 900 of 2009

DATE DELIVERED: 1 July 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 1 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Stewart

SOLICITOR FOR THE APPLICANT: Resolve Conflict Pty Ltd

COUNSEL FOR THE RESPONDENT: Ms Lewenberg

SOLICITOR FOR THE RESPONDENT: Lewenberg & Lewenberg

Orders

1. That BY CONSENT there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

2. That the solicitor for the applicant engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

3. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

4. That all outstanding applications are dismissed.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

2. That the oral application for costs by the husband is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Foley & Ford has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 900 of 2009

Ms Foley

Applicant

And

Mr Ford

Respondent

REASONS FOR JUDGMENT

1. This is an application by the father in these proceedings for costs consequent upon me making orders of a final nature. 

2. The parties who have come up with this solution are to be commended for the fact that they are focusing on B’s best interests.  As I have indicated in discussion, from a Judge’s perspective, international relocation cases are the most difficult and taxing that can possibly be heard, because unlike many cases involving children, no one ever loses completely. In cases such as this, it is a significant change not only in the child’s life but also in the parents’ life. 

3. The difficulty in all cases in this jurisdiction is that Parliament declared, for good or worse, that in litigation each party pays their own costs.  The one exception to that rule is where there are circumstances that justify a departure from that principle.  The Court’s focus therefore must be on some circumstance that justifies the Court departing from the edict of Parliament.  A circumstance pointed to here is that there were offers of compromise, and I might say very significant compromise, yesterday, but those compromises were loaded with questions of matters that still needed to be negotiated, including the question of costs.

4. The minutes have been tinkered with today in a relatively minor way, but the substantial issue is that the mother is taking the child to a new world.  The difficulty I have in this case is finding a circumstance that I might say justifies a costs order. This is not a case where I could say that I am comfortable saying that someone has done something such that I can depart from the principle.  Under those circumstances, it is not appropriate for me to make an order for costs. 

RECORDED:   NOT TRANSCRIBED

ORDERS DELIVERED

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 1 July 2011.

Associate: 

Date:  18 July 2011