HUGH & SAWER (COSTS OF STRIKE OUT)
[2010] FamCA 453
•31 May 2010
FAMILY COURT OF AUSTRALIA
| HUGH & SAWER (COSTS OF STRIKE OUT) | [2010] FamCA 453 |
| FAMILY LAW – COSTS – application for costs – where father’s application to remove independent children’s lawyer wholly unsuccessful and father did not attend court or discontinue proceedings – where offer made by the mother – consideration of financial hardship where application to pay costs of independent children’s lawyer – applications for costs allowed |
| Family Law Act 1975 (Cth) s 117(4)(b) |
| APPLICANT: | Ms Hugh |
| RESPONDENT: | Mr Sawer |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Walker |
| FILE NUMBER: | LNC | 511 | of | 2008 |
| DATE DELIVERED: | 31 May 2010 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 18 and 19 May 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Lewis |
| SOLICITOR FOR THE APPLICANT: | Levis Stace & Cooper |
| THE RESPONDENT: | No appearance |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | David Walker & Co |
Orders
That the father pay the mother’s costs of the application filed 29 April 2010 and thrown away, fixed in the sum of $1,753 and payable by 1 July 2010.
That the father pay the costs of the independent children’s lawyer of the application filed 29 April 2010 and thrown away, fixed in the sum of $1,700 and payable by 1 July 2010.
IT IS NOTED that publication of this judgment under the pseudonym Hugh & Sawer is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: LNC 511 of 2008
| MS HUGH |
Applicant
And
| MR SAWER |
Respondent
And
| INDEPENDENT CHILDREN’S LAWYER |
REASONS FOR JUDGMENT
On 18 and 19 May 2010 I heard an application by the father to remove the independent children’s lawyer (“ICL”). The application was struck out with a right of reinstatement. My reasons for that decision are published at [2010] FamCA 388 and I incorporate those reasons into these reasons. At the conclusion of the hearing, I heard applications for costs and reserved my decision as to costs. This is my decision in relation to costs.
The mother and the ICL seek costs.
The mother seeks costs as follows:-
a)$200 travelling petrol 400km
b)$625 travelling time of 5 hours
c)$928 appearance at Hobart.
That is a total of $1,753.
The ICL seeks as follows:-
a)$963 travelling time to Hobart
b)$277 mileage and petrol
c)$622 appearance and prepare affidavit.
That is a total of $1,862.
Both the mother and the independent children’s lawyer were required to attend court, in Hobart, for the hearing. Each had previously obtained leave to appear by telephone if the hearing was to be in a conference room at Launceston. Consequent upon my decision that the Launceston registry was not adequate for the purposes of this case, they were required to attend at Hobart.
I am informed by counsel for the mother that she is a private client, not in receipt of legal assistance. She works three days per week in a clerical capacity. She earns less than $40,000 per annum. Her de facto husband is in full time employment. I am satisfied that her means are modest and that she cannot afford these proceedings.
The father’s application was listed to be heard, as a matter of urgency, and did not proceed through no fault of the mother or the ICL. The urgency was because of the relative late filing of his application to remove the ICL having regard to the hearing which is listed for 24 May 2010. The father did not file the application until 29 April 2010 and did so with other significant applications, including a stay pending appeal and an application for me to disqualify myself, all needing to be heard sequentially.
I have ordered that the application to remove the ICL be struck out with a right of reinstatement. The matter could not proceed on 18 May 2010 due to the father’s outburst in court and also due to the fact that he served an affidavit on the ICL, on that morning, which the ICL was entitled to have time to answer. Now, the ICL has had an opportunity to respond and secure court facilities are available but the father does not attend court.
If the father was not going to pursue his application to remove the ICL, he should have withdrawn it or filed a notice of discontinuance. If he sought an adjournment then it is incumbent upon him to appear or to retain someone to appear on his behalf. If he is medically unfit to attend court, he must produce evidence which can be tested in cross examination. The father has failed or neglected to do any of those things. The father’s conduct in the running of this application is a factor which weighs heavily in favour of him being responsible for the costs of the other parties.
I am informed that on 18 May 2010 the mother put a proposal whereby the father withdraw the application to remove the ICL and she would not seek costs. The father did not avail himself of that offer and the mother incurred further costs as a result.
The father has not been successful in his application to remove the ICL. It is struck out and may be re-instated at another time but the costs of this hearing are costs thrown away.
In my view, these factors justify an order that the father pay the costs claimed. The costs claimed are modest costs and appear to be only in relation to the hearing on 19 May 2010 when the hearing was over two days. I will, however, discount the ICL’s allowable costs by an amount for preparation by the ICL of his affidavit in response. Those costs are not thrown away by reason of the application being struck out. He ought not recover those costs at this stage. The mother’s costs will be fixed in the sum sought. The costs of the ICL will be fixed in the reduced sum of $1,700.
I have regard to any financial hardship occasioned to the father by paying the costs of the ICL pursuant to s 117(4)(b). The father’s application was directly related to the ICL. I am not satisfied that a costs liability approximating $1,700, which together with the mother’s costs total $3,453, is a hardship. It is an expense, it is an outlay, I am sure that it is something that the father does not wish to pay but I am not satisfied that it is a hardship.
The costs will be payable within 30 days.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett.
Associate:
Date: 31 May 2010
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