Jukes and Hepples

[2018] FamCA 963

FAMILY COURT OF AUSTRALIA

JUKES & HEPPLES [2018] FamCA 963

FAMILY LAW – COSTS – costs incurred in relation to parenting proceedings – where mother proposed consent orders in terms largely identical to father’s orders sought – where proceedings did not resolve until first day of proceedings – costs ordered against father.  

Family Law Act 1975 (Cth)

APPLICANT: Ms Jukes

RESPONDENT: Mr Hepples

FILE NUMBER: AYC 92 of 2014

DATE DELIVERED: 19 November 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 19 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr G Blank

SOLICITOR FOR THE APPLICANT: Robb & Associates

SOLICITOR FOR THE RESPONDENT: Self-representing (assisted by duty lawyer)

Orders

1. The Father pay the Mother’s costs incurred from 14 November 2018 until the expiration of the first day of trial on 19 November 2018 as agreed or as assessed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jukes & Hepples has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: AYC 92 of 2014

Ms Jukes

Applicant

And

Mr Hepples

Respondent

REASONS FOR JUDGMENT

1. An application has been made by the Mother for costs in respect of the trial of this matter.  The relevant background is that trial directions were made some time ago requiring each of the parties to file their updated material well in advance of the trial.  The Father filed his material on 16 November 2018, however, he had earlier provided it to the Mother on 11 November 2018.  Within that affidavit the Father substantially changed the position from that which he had previously pursued setting out in general terms the orders that he would seek.  Promptly following the receipt of that affidavit the Mother amended her Initiating Application and so the Third Amended Initiating Application was filed by her on 14 November 2018. 

2. That Third Amended Initiating Application provided for orders almost precisely in accordance with the orders that are being made at present by agreement between the parties, also sought costs but also reflected the orders that have been set out by the Father in his affidavit.  There are two matters of uncertainty in relation to that, that firstly relate to the precise terms of parental responsibility which were expressed by the Father to be equal but are set out in the application rather than being equal to be jointly shared, and secondly, there are a number of other provisions which were not dealt with by the Father in his affidavit, for example, relating to the nature of the FaceTime contact that he might have.

3. From the filing of the Third Amended Initiating Application the Mother pursued with the Father whether or not that position would terminate the proceedings leading ultimately to correspondence from the Mother's solicitors to the Father on the Friday before the trial was due to start on the Monday indicating that if the Father did not take up what was contained in the Third Amended Initiating Application that the Mother would be required to prepare for the trial and would also seek to depart from the orders that she there sought for parental responsibility.  Rather she indicated that she would seek sole parental responsibility. 

4. The parties appeared before me on Friday to ascertain their readiness to pursue the matter to trial.  The Father indicated some uncertainty as to the orders that he would be seeking partly on the basis that there were a number of matters that he wished to raise with the Court.  He subsequently raised those matters with the Court and subsequently had the assistance of Ms C from the Legal Aid Office who has helped him on a duty lawyer basis. 

5. Consequently, the parties have resolved the matter this morning, by consent, in accordance with the Mother’s Third Amended Initiating Application with one variation to provide for further medical information to be given to the Father. 

6. Despite the usual rule contained at s 117 of the Act that each party should bear his or her own costs, this matter falls into circumstances which justify the making of a costs order by virtue of the offers that have been made and the manner in which each of the parties has conducted the proceedings in the last week.  What is of essential importance is that the Mother sought by her Third Amended Initiating Application to adopt what it was that the Father said that he would seek in the proceedings and then pursued the resolution of the proceedings to the Friday and was then put to the position where there was no option but to prepare for trial.  She has attended today represented by counsel, but without the representation of a solicitor in order to keep those costs as minimal as possible.  Under those circumstances it is appropriate that the Father pay the Mother's costs in the proceedings from the point of the filing of the Third Amended Initiating Application. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 19 November 2018.

Associate: 

Date:  19 November 2018