Franklin and Riley (No 2)

[2014] FamCA 1250

FAMILY COURT OF AUSTRALIA

FRANKLIN & RILEY (NO 2) [2014] FamCA 1250

FAMILY LAW – CONTRAVENTION – COSTS

APPLICANT: Mr Franklin

RESPONDENT:	Ms Riley
INDEPENDENT CHILDREN’S LAWYER:	Ms Hansen

FILE NUMBER: CAC 676 of 2013

DATE DELIVERED: 8 September 2014

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 8 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:	In Person
COUNSEL FOR THE RESPONDENT:	Mr Harrison

SOLICITOR FOR THE RESPONDENT: Barron Law

Orders

1. The applicant’s Application filed on 7 July 2014 that the respondent be dealt with for contravention of an order without reasonable excuse is dismissed.

2. There be no order for costs.

3. This interim matter is removed from the Pending Cases Inventory.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Franklin & Riley 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 CANBERRA

FILE NUMBER: CAC 676 of 2013

Mr Franklin

Applicant

And

Ms Riley

Respondent

REASONS FOR JUDGMENT

1. In this matter I am asked to make an order for costs. Ordinarily, in matters of this sort, an order for costs would follow the event. However, under s 117 of the Family Law Act 1975, the basic proposition in subsection (1) is that each party to proceedings under this Act shall bear his or her own costs.  The Court is entitled in accordance with subsection (2), if it is satisfied that the circumstances justify it in doing to, to make such order as to costs as the Court considers just. 

2. In coming to that conclusion, the Court must have regard to the financial circumstances of each of the parties to the proceedings to the extent that they are put before the Court;  whether any party to the proceedings is in receipt of legal aid;  the conduct of the parties in relation to the proceedings, including the way in which the proceedings were conducted;  whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;  whether any party to the proceedings has been wholly unsuccessful;  whether either party has made an offer in writing to settle the proceedings and the terms of such an offer;  and such other matters as the court considers relevant.

3. In this matter, I have limited information about the financial circumstances of each of the parties.  I note that the applicant, Mr Franklin, asserts that his circumstances are significantly straitened by his various obligations.  This is a matter untested at this point and not given on evidence but, nevertheless, I am prepared to accept that continuing with legal proceedings in relation to children is likely to have that effect upon him. 

4. I note that Ms Riley is in receipt of legal aid and in accordance with the ordinary processes that are involved in this, that does not alleviate or remove from the Court an obligation to make an order for costs if it would otherwise be justified.  The public purse is designed to go as far as it reasonably can and in circumstances where a costs order would otherwise be justified, it would not be a proper ground for refusing an order for costs simply to say that one of the parties was on legal aid.

5. The conduct of the parties in this matter has not caused any particular concern.  Mr Franklin was late in filing one affidavit in these proceedings, but in the end that has not had any effect upon the way in which the matter proceeded.  The proceedings were asserted by Mr Franklin to be necessitated by the failure of Ms Riley to comply with previous orders of the Court but, in fact, he was unsuccessful in establishing that, even at a prima facie level.  He has, it follows, been wholly unsuccessful in relation to the proceedings.

6. There was correspondence in an effort to resolve the matter before it came before the court but I do not consider that that was relevant, in particular, to the circumstances as they appear today. 

7. I do not consider there are other matters that would be regarded as relevant in the circumstances.

8. In this case, Mr Franklin’s application failed substantially because he, in the end, was unable to marshal the evidence he needed to establish some of the factors that were relevant.  I make no comment about whether or not a reasonable excuse might have been made out, but the case might have been made out at a prima facie level if the evidence of Ms B, for example, had been presented in a form that had been admissible to the Court. 

9. If, in fact, a party to proceedings, and I make it abundantly clear to Ms Riley in these proceedings - if a party pre‑empts the compliance with an order by saying the order will not be complied with, he or she cannot thereafter complain about the fact that people do not then turn up at the relevant time to make the relevant collection.  However, there is no evidence of that in relation to this matter and that is one of the reasons why Mr Franklin was unsuccessful.

10. Equally, it does not lie in the mouth of one of the parties to the proceedings to say, “Well, it’s very important that the orders of the Court be complied with but not the orders that relate to me,” and the orders that relate to Mr Franklin have not been complied with by him either, although no one is taking any proceedings to enforce them. 

11. I accept that Mr Franklin has been wholly unsuccessful.  I accept that there were attempts made to resolve the matter in all of the circumstances.  However, I think it is not appropriate that there should be an order for costs.  I do not think it advances the cause of the parties or of the matters for an order to be made.  I do take account of the fact, indirectly in that respect, that Ms Riley will not be out of pocket as a consequence of the order that I make. 

12. The application for costs is dismissed. 

13. I simply add as a postscript that I had considered the provisions of s 70NCB in relation to costs but it does not alter the decision I have made.  This matter is now adjourned. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 8 September 2014.

Associate:

Date:  8 January 2016