Gordon and Westmead

[2012] FamCA 58

FAMILY COURT OF AUSTRALIA

GORDON & WESTMEAD [2012] FamCA 58

FAMILY LAW - PRACTICE AND PROCEDURE - Amendment under slip-rule - Where a party opposes an application to correct a clear error - Where costs are ordered

Family Law Act 1975 (Cth)

APPLICANT: Mr Gordon

RESPONDENT: Ms Westmead

FILE NUMBER: SYC 2433 of 2011

DATE DELIVERED: 8 February 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Kent J

HEARING DATE: 8 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lethbridge SC

SOLICITOR FOR THE APPLICANT: McDonnell Milne Toltz

SOLICITOR FOR THE RESPONDENT: Barkus Doolan Kelly

Orders

1. The Application filed by the Father on 3 February 2012 be granted and the Orders of 16 December 2011 be amended pursuant to Rule 17.02 of the Family Law Rules 2004 (Cth).

1. The Respondent pay the Applicant’s costs of and incidental to this Application.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gordon & Westmead 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 SYDNEY

FILE NUMBER: SYC 2433 of 2011

Mr Gordon

Applicant

And

Ms Westmead

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In respect of the interim hearing of these proceedings, my reasons for judgment following that interim hearing make it plain that what was intended by the Orders made on 16 December 2011 was a continuation of the then-existing arrangements via previous Orders. That is obvious from paragraph 80 of the judgment, where reference is made to the specific times and dates in terms of the return Orders referred to in the expert evidence in the case; and reliance was placed on that expert evidence as paragraphs 94 and 96 of the reasons make plain; leading to the conclusions in paragraphs 122 and 123. Plainly on the reasons as a whole any reasonable reading would lead to the conclusion that the entered Order does not correctly express the Court’s decision in the respects identified in the application to correct the Order. I have made Orders amending those Orders under the slip rule.

2. In my view, it is clear enough that this Application might have been avoided by the application of a more reasonable approach in terms of a mature reflection and consideration of the reasons as a whole. Whilst I am personally embarrassed to have made the Order in the form that it is expressed, my embarrassment does not extend to shielding the conduct of the Mother or her solicitors in terms of taking the approach they have apparently taken to requiring the Father to make a formal application to the Court to have the matter corrected. More significantly, if it has meant that K has lost some opportunity of spending time with his father that was otherwise not intended. Subsection 117(2A) of the Family Law Act 1975 (Cth) expresses the considerations the Court takes into account in making an Order for costs. In particular, for present purposes, the conduct of a party in relation to the proceedings is relevant.

3. There was evidence before me, in terms of the interim application, that the Mother is working and that she is employed in a professional capacity. Her application included, for example, seeking an Order that she be permitted to travel to the United States with K, and that was the Order that was ultimately made.

4. In those circumstances, I infer that the Mother is in a financial position to meet an Order for costs and I therefore further Order that the Mother pay the Father’s costs of and incidental to the Application before me today.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 8 February 2012.

Associate: 

Date:  17 February 2012