Jacob and Barker (No 2)
[2011] FamCAFC 98
•2 May 2011
FAMILY COURT OF AUSTRALIA
| JACOB & BARKER (NO. 2) | [2011] FamCAFC 98 |
| FAMILY LAW - COSTS – where the father failed to comply with orders preparing the appeal for hearing – the mother seeks an order for costs – failure of father to appear at hearings – satisfied there are circumstances that justify an order for costs being made – father wholly unsuccessful in the appeal and conduct of the father in failing to comply with orders – amount of costs sought in accordance with Schedule 3 of the Family Law Rules – costs sought are reasonable and appropriate – costs order made. |
| Family Law Act 1975 (Cth) s 117 |
| APPELLANT: | Mr Jacob |
| RESPONDENT: | Ms Barker |
| FILE NUMBER: | ADC | 2344 | of | 2009 |
| APPEAL NUMBER: | SA | 69 | of | 2010 |
| DATE DELIVERED: | 2 May 2011 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 2 May 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 25 August 2010 |
| LOWER COURT MNC: | [2010] FMCAfam 1134 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Hurley |
| SOLICITOR FOR THE RESPONDENT: | Holding Redlich |
Orders
The father pay to the mother’s solicitor’s Trust Account the sum of ten thousand six hundred and nineteen dollars and twenty-four cents [$10,619.24] by way of costs such sum to be paid within six [6] weeks of the date hereof.
IT IS NOTED that publication of this judgment under the pseudonym Jacob & Barker is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SA 69 of 2010
File Number: ADC 2344 of 2009
| Mr Jacob |
Appellant
And
| Ms Barker |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
The mother seeks an order for costs. The specific application in which that order is sought is the application in an appeal filed on 3 February 2011. In addition though this matter has been before me on a number of occasions stretching back to 23 November 2010, and on that occasion, and on each subsequent occasion, I have reserved the question of the mother’s costs.
This was an appeal filed by the father on 22 September 2010 wherein he sought to appeal against an order made by Federal Magistrate Lindsay of 25 August 2010. That appeal was dismissed pursuant to orders that I made on 1 February 2011.
Mr Jacob has not appeared today. He also failed to appear on the last occasion which was the 8 April 2011, when I adjourned the matter to today. That hearing on 8 April 2011 was specifically to address the application for costs made by the respondent and I adjourned the matter to today to enable the schedule of costs sought to be provided to the father. In that regard I note that by letter and email dated 19 April 2011 Mr Jacob was provided with a copy of the itemised costs account and he was advised by the mother’s solicitors that if he failed to attend the hearing on the adjourned date, namely 2 May 2011, orders may be made against him.
To repeat, the father has not in fact appeared and Ms Hurley for the mother has asked me to proceed with the matter, which I have done, and I have heard submissions in support of the application.
I am not in a position to provide extensive reasons for judgment but what I propose to do is complete these brief reasons and make the order sought because I am satisfied that it should be made. I will then deliver expansive reasons as soon as I can to finalise the matter.
As with any application for costs this application is governed by s 117 of the Family Law Act, and pursuant to s 117(2) if the court is of the opinion that there are circumstances which justify it in doing so the court may make such order for costs as the court considers just. In considering what order, if any, should be made under that subsection, ss 117(2A) sets out the matters which the court must have regard to, but obviously, only to the extent that they are relevant.
Ms Hurley has taken me to the relevant sub-paragraphs of ss 117(2A) and I am satisfied that there are circumstances that justify an order for costs being made, not the least of which being the father has been wholly unsuccessful in the appeal. Mr Jacob failed to comply with orders made on 11 February 2011 for the purpose of preparing the appeal for hearing, and those orders provided for not only the preparation of the matter for hearing, but also, given the history of the father’s failure to comply with orders to that date, that in the event that the father failed to comply with paragraphs 1 or 2 of the order then his notice of appeal was to be dismissed and the hearing date vacated. That self-executing order came into force and the appeal was dismissed.
There are other factors which justify an order for costs being made including, in particular, the conduct of the father failing to comply with orders that I have made in attempting to have the appeal heard and determined, and I will expand on that in my further reasons for judgment.
One difficulty that I have had though is that I do not have any information as to the father’s financial circumstances. I am aware from documents that have been filed that he is employed, he works full-time as an optical dispenser but beyond that there is no detail of his financial circumstances. However the onus is on the father to provide that information and yet he has chosen not to appear.
I will elaborate on the mother’s financial circumstances in my expanded reasons for judgment.
In terms of the amount of the costs sought I observe they are in accordance with Schedule 3 of the Family Law Rules and as a result of my perusal of the schedule presented to me I am satisfied that the costs sought are reasonable and appropriate. In addition Ms Hurley has sought a counsel fee for today in the sum of $660 and that is also in accordance with the relevant scale. The total of the costs sought, including GST, is ten thousand six hundred and nineteen dollars and twenty-four cents.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 2 May 2011.
Associate:
Date: 3 May 2011
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