Green and Kettle

[2013] FamCA 913

FAMILY COURT OF AUSTRALIA

GREEN & KETTLE [2013] FamCA 913

FAMILY LAW – APPLICATION IN A CASE – COSTS – practice and procedure - father’s application in a case unsuccessful – father did not seek leave to file application in accordance with previous orders – financial circumstances of each party considered – father given three months to pay the mother’s costs

Family Law Act 1975 (Cth)

APPLICANT: Mr Kettle

RESPONDENT: Ms Green

FILE NUMBER: BRC 6527 of 2009

DATE DELIVERED: 14 October 2013
EX TEMPORE

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Cleary J

HEARING DATE: 14 October 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Burchill & Horsey Lawyers

Ms Ellis

RESPONDENT: In person

Orders

1. That the Application in a Case filed by Mr Kettle on 27 March 2013 is dismissed.

2. That the Applicant shall pay the Respondent’s costs of and incidental to this Application, to be agreed or assessed NOTING that the Respondent’s solicitor estimates the costs to be in the sum of $2,500 and that such costs be paid within three months of the date of this Order.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Green & Kettle 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 BRISBANE

FILE NUMBER: BRC 6527 of 2009

Ms Green

Applicant

And

Mr Kettle

Respondent

REASONS FOR JUDGMENT

1. The mother in these proceedings has applied for costs as a result of an application brought by the father being dismissed today. 

2. The usual principle in the Family Court is that each party bears his or her own costs.  However, if the Court thinks that it is just to do so, a costs order may be made.  In considering what order, if any, should be made, the Court must have regard to the financial circumstances of each of the parties.

3. The applicant is a primary producer by occupation.  That is contained in his affidavit.  The property is valuable, although there is apparently a dispute about its value.  It is not less than $1 million and may be two or more.  There is $240,000 outstanding on a mortgage, and mortgage payments, I am told, are being made at the rate of $1600 to $1700 a month, interest only.  The evidence of the applicant was that his only source of income at present is $378 per fortnight on a reduced Newstart Allowance.  That leaves a shortfall of about $800 a month at least for the payment of the mortgage, interest only, as described. 

4. The evidence suggests that the applicant must have some other source of income to be paying the mortgage at that rate, and even if I accept that his parents help him out with money from time to time, and that his wife has worked but is now intending to seek Centrelink benefits, I take into account the applicant’s financial circumstances in that way.

5. The mother does not have a grant of legal aid.  The conduct of the parties to the proceedings is directly relevant, in that this application by the applicant was brought in contravention of an order made in 2008, restraining him from making any such application without the leave of the Court.  The applicant properly concedes that he did not seek leave.  That is a matter that has put the respondent to unnecessary cost by having her solicitor here in this Court and before the Registrar, to defend the application.

6. The applicant has been entirely unsuccessful with his application, not only because it was brought without leave but because it lacked any of the substantive evidence which could have given rise to a consideration of making the kind of order that was sought.  Undoubtedly, there were other problems, given that the applicant had made relevant declarations in the past about paternity. 

7. On that basis, and given a long history to the matter, the applicant must have known that he was likely to pay costs if unsuccessful, and chose to bring the application, although he should not have in any event.  Accordingly, I consider it is appropriate to make an order for costs, and I will do so as agreed or assessed, noting that Ms Ellis’ best estimate is of $2500. 

8. I will allow Mr Kettle three months to pay that amount.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Clear delivered ex tempore on 14 October 2013.

Associate: 

Date:  25 November 2013