Hong and Wai (No.2)

FEDERAL CIRCUIT COURT OF AUSTRALIA

HONG & WAI (No.2) [2015] FCCA 3484

Catchwords:
COSTS – Mother seeks indemnity costs after bringing urgent parenting proceedings – father abducted son from China to Australia – father files submissions in response which are in part inappropriate.

Legislation:

Family Law Act 1975, s.117

Federal Circuit Court Rules 2001 (Cth), Schedule 1

Hong & Wai [2015] FCCA 3448
Prantage & Prantage [2013] FamCAFC 105
Medlon and Medlon (No. 6) (Indemnity Costs) [2015] FamCAFC 157
Medlon and Medlon (No. 7) [2015] FamCAFC 246
The Marriage of Kohan (1992) 16 Fam LR 245

Applicant: MS HONG

Respondent: MR WAI

File Number: MLC 11287 of 2015

Judgment of: Judge Harland

Hearing date: 8 December 2015

Date of Last Submission: 22 December 2015

Delivered at: Melbourne

Delivered on: 23 December 2015

REPRESENTATION

Counsel for the Applicant: Mr Strum SC appearing with Ms Renwick

Solicitors for the Applicant: Nicholes Family Lawyers

Counsel for the Respondent: Mr Davis

Solicitors for the Respondent: Blackwood Family Lawyers

ORDERS

1. That the respondent pay the applicant’s costs in the sum of $14,337.20 within 90 days.

IT IS NOTED that publication of this judgment under the pseudonym Hong & Wai (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 11287 of 2015

MS HONG

Applicant

And

MR WAI

Respondent

REASONS FOR JUDGMENT

1. The mother seeks an order for costs in her favour on an indemnity basis as a result of the proceedings she had to initiate to be able to return to China with the child of the relationship. The circumstances of that application are set out in my first judgment Hong & Wai [2015] FCCA 3448. At the end of that hearing I made directions for the filing of written submissions with respect to costs.

2. The amount she seeks on an indemnity basis is $21,723.

3. The mother seeks indemnity costs on several grounds including:

   a)The father’s conduct in abducting the child to Australia;

   b)The father’s conduct in lying to the mother and her parents, putting arrangements in place so he could obtain a passport and abducting the child to Australia without the applicant’s consent or knowledge;

   c)The father’s disregard for the child’s best interests;

   d)The father’s actions required the mother to litigate in a foreign country and to have the child and his passport returned to her;

   e)Mother incurred additional costs which she cannot recover including flights and accommodation.

4. The mother’s written submissions annex the costs agreement she signed and set out the costs she incurred both in accordance with the costs agreement and the Federal Circuit Court scale of costs. The mother’s current counsel calculated that the costs in accordance with the scale amount to $7,168.60.

5. The mother’s counsel also refers to the fact that the proceedings were urgent and complex, involving international issues and that in those circumstances it was appropriate to engage senior counsel. The costs also include the cost of a translator and that would have increased…