Hale and Hale

[2012] FMCAfam 684

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HALE & HALE [2012] FMCAfam 684

FAMILY LAW – Costs – application for costs following contested contravention of children’s orders proceedings – applicant commenced proceedings following failure of children concerned to attend for holiday time – parties live interstate following contested relocation proceedings – previous contested proceedings concerning living arrangements of children – respondent criticised for failing to support children’s relationship with father – contravention proceedings dismissed – reasonable excuse established – mother seeks cost – father opposes application for costs citing mother’s previous poor behaviour – matters to be considered in costs application.

Family Law Act 1975, ss.69ZN, 117(1), 117(2), 117(2A), 117(2A)(f)
Federal Magistrates Court Rules, rr.21.02(2), 21.10, 21.15, 25B.04

Hale & Hale (No.2) [2009] FMCAfam 873
Hale & Hale [2011] FMCAfam 1107
In the marriage of I and I (No.2) 22 Fam LR 557
Penfold v Penfold (1980) 5 Fam LR 517

Applicant: MS HALE

Respondent: MR HALE

File Number: ADC 3419 of 2007

Judgment of: Brown FM

Hearing date: 29 June 2012

Date of Last Submission: 29 June 2012

Delivered at: Adelaide

Delivered on: 27 July 2012

REPRESENTATION

Counsel for the Applicant: Mr Kane

Solicitors for the Applicant: Elringtons

Counsel for the Respondent: Ms Lewis

Solicitors for the Respondent: Lessli Strong & Associates

ORDERS

1. The applicant Mr Hale pay the respondent Ms Hale the costs of the contravention proceedings herein fixed in a sum of eight thousand two hundred dollars ($8,200.00) within twenty eight (28) days of the date of these orders.

2. The application for costs is otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Hale & Hale is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADC 3419 of 2007

MS HALE

Applicant

And

MR HALE

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings relate to costs. The applicant for costs is Ms Hale “the mother”. The respondent to her application is Mr Hale “the father”. The parties are the parents of three children, [X] born [in] 1996 and twins, [Y] and [Z] born [in] 1999.[1]

   [1]  The parties married in 1989. They have been separated since March of 2002 and are long divorced.  In these circumstances the convention of referring to them as husband and wife in these reasons for judgment seems inappropriate.

2. Mr and Mrs Hale separated over a decade ago now.  Since that time, they have been engaged in several protracted pieces of litigation.  Initially, the mother sought property settlement orders and more importantly, in the context of the current proceedings, the court’s authority to move with the children from [D] to Adelaide. 

3. The father has been [living on property omitted] at [D], in Southern New South Wales, for all of his life.  The parties themselves spent their married life on the [property] and each of the children was born in [D]. 

4. In these circumstances, the father was vehemently opposed to the children moving away from [D].  His position was that the…