Grant and Aiden (No. 3)

[2017] FamCA 834

FAMILY COURT OF AUSTRALIA

GRANT & AIDEN (NO. 3) [2017] FamCA 834

FAMILY LAW – COSTS – where the applicant father sought a costs order against the respondent mother following dismissal of her Application-Contempt against him – where the respondent mother is ordered to pay the applicant father’s costs on a party/party basis – where the respondent mother’s impecuniosity is not a bar to a costs order against her

Family Law Act 1975 (Cth) ss 117(1), (2) & (3)

APPLICANT: Mr Grant

RESPONDENT: Ms Aiden

INDEPENDENT CHILDREN’S LAWYER: McKean Park Lawyers

FILE NUMBER: MLC 5094 of 2008

DATE DELIVERED: 31 August 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 31 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Marchetti

SOLICITOR FOR THE APPLICANT: Trapski Family Law

COUNSEL FOR THE RESPONDENT:                  Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:  Ms Colla

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: McKean Park Lawyers

Orders

1. The Application-Contempt filed by the mother on 23 August 2017 is dismissed.

2. The mother shall pay the father’s costs of and incidental to the hearing of the failed Application-Contempt filed on 23 August 2017 on a party/party basis in the sum agreed or assessed.

3. The hearing of the Application in a Case filed by the mother on 23 August 2017 is adjourned until 10:00 am on Friday, 1 September 2017.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Grant & Aiden (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: MLC 5094 of 2008

Mr Grant

Applicant

And

Ms Aiden

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

1. I have just delivered ex tempore reasons for the dismissal of the mother’s Application-Contempt, which she filed against the father on 23 August 2017. It was summarily dismissed because it was entirely misconceived. 

2. Following the dismissal of the Application, the father sought an order for costs against the mother, which she resisted. These reasons relate to that application.

3. Section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that, ordinarily, each party to proceedings under the Act shall bear his or her own costs. Whilst that might be the orthodoxy, s 117(2) provides that, if the Court is of the opinion that circumstances justify it, the Court is entitled to make a costs order, but in those circumstances the Court is required by s 117(2A) to take into account certain factors.

4. The factor emphasised by the father was that prescribed by s 117(2A)(e) of the Act, namely, that the mother’s application was “wholly unsuccessful”. The mother did not contest that proposition. Indeed, it would have been impossible for her to do so, given the summary dismissal of her application. Rather, she placed emphasis on s 117(2A)(a), namely, that her financial circumstances were very modest and she has neither the income nor the assets to satisfy a costs order.

5. As would be obvious, tension exists between those two considerations. However, I am satisfied the mother should pay the husband’s costs of his successful defence of her Application because it was wholly without merit. In my view, in the circumstances of this case, the factor emphasised by the father carries greater weight than the factor emphasised by the mother. Her asserted impecuniosity is not, as the mother appeared to assume, a bar to a costs order against her.

6. The mother contended in submissions that she has been unemployed since about mid-2016, when the subject child was recovered from her care, and that she is now in receipt of a Centrelink benefit. She alleged she has no assets.  That may be true, but her submission should be contrasted with the evidence she affirmed only days ago, in the form of her affidavit. While she may not have any income, the evidence reasonably permits an inference she has a significant income-earning capacity, as was evident from the following portions of her affidavit:

   29.I completed my [U School] in [Suburb V].  [At U School], I sat a school certificate and participated in a student exchange to live in [Europe] for three months in my last year and after sitting for the higher school certificate, I accepted an offer at [W University].  I studied and became a qualified in [a profession] and worked in the [relevant] industry for 16 years, initially as a corporate …consultant for [Company 1] and [Company 2] and then became a lecturer in at a … college in … while I obtained a certificate IV in workplace training and assessment and accepted an offer into year 2 at [Y University] in a bachelor degree.

   30.I now have 11 years’ experience in education, three in tertiary and eight [in my field of specialisation].  I am a qualified [in this field].  I hold a certificate III … and a current working with children check card and police check.  I am trained and hold the relevant qualification…– mandatory reporting and other obligations as prescribed by the Victorian Government as a requirement of my job.

   …

   33.I alone paid for (my two older sons) private school education over 10 years, 2007 to 2011, and I alone paid for (the subject child’s) private school application at [X School] because (the father) withdrew his commitment to [X School] to pay for half (the child’s) school fees after her enrolment. 

7. Even though the mother may have no independent income and no assets, she plainly has an income-earning capacity and I have been given no explanation as to why she is not exercising it. Her significant income-earning capacity is a relevant factor (s 117(2A)(g)).

8. In the circumstances, I am satisfied the most significant factor is the entire lack of merit enjoyed by her Application and for those reasons she should pay the father’s costs of the failed Application on a party/party basis.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 31 August 2017.

Associate: 

Date:  18 October 2017