Lovell and Winter (No.2)

[2016] FCCA 2850

FEDERAL CIRCUIT COURT OF AUSTRALIA

LOVELL & WINTER (No.2) [2016] FCCA 2850

Catchwords:
FAMILY LAW − Where father’s application dismissed on Rice & Asplund grounds – whether father should pay mothers costs.

Legislation:

Family Law Act 1975 (Cth), s.117

Federal Circuit Court Rules 2001 (Cth)

Rice & Asplund (1979) FLC 90-725
Marston & Winch [2009] FamCAFC

Applicant: MR LOVELL

Respondent: MS WINTER

File Number: DGC 411 of 2014

Judgment of: Judge Phipps

Hearing date: Chambers – on the papers

Date of Last Submission: 27 October 2016

Delivered at: Dandenong

Delivered on: 4 November 2016

REPRESENTATION

The Applicant: Appearing on his own behalf

Solicitors for the Respondent: Guthrie & Associates

ORDERS

1. That the father pay the mother’s costs of opposing the father’s Initiating Application fixed at $7,000.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 411 of 2014

MR LOVELL

Applicant

And

MS WINTER

Respondent

REASONS FOR JUDGMENT

1. The mother applies for an order that the father pay her costs.

2. The father filed an application on 6 April 2016 to have new orders made in relation to the parties’ child X born (omitted) 2011.  Previous orders were made on 28 August 2013.  These orders were made when the child was two.  The child is now five.  The father had alternative proposals in his Initiating Application.  He proposed an order that the child live with him, or alternatively that the child live with each parent for alternating one-week periods.  The respondent mother applied to have the application dismissed on the basis that no new circumstances were shown applying Rice & Asplund (1979) FLC 90-725.

3. Costs are dealt with in s.117 Family Law Act 1975 (Cth):

   (1)  Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.

   (2)  If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

   (2A)  In considering what order (if any) should be made under subsection (2), the court shall have regard to:

   (a)  the financial circumstances of each of the parties to the proceedings;

   (b)  whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (c)  the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

   (d)  whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

   (e)  whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f)  whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   (g)  such other matters as the court considers relevant.

4. The order made on 28 August 2013 provided for the parties to have equal shared parental responsibility for the child and for the child to live with the mother.  The order provided for different regimes of spending time with the father:

   a)Until April 2014; commencing April 2014 until December 28 2014; from December 2014 until December 2015; then commencing January 2016;

   b)Commencing January 2016 the order provides for the child to spend time with the father:

   (i)Each alternate weekend from Friday at 3.30pm until Sunday at 5.00pm;

   (ii)Each alternate Wednesday from 2.30pm until Thursday at midday subject to kindergarten or pre-school times;

   (iii)On the child’s birthday, if it does not fall on a day which would otherwise be with the father, as agreed between the parties and in default of agreement for four hours from 10.00am to 2.00pm if a weekend and from 3.00pm to 7.00pm if on a weekday;

   (iv)On Father’s Day weekend, if it is not a weekend he would otherwise be with the father, from 4.00pm Saturday until 4.00pm Sunday;

   (v)For 5 nights in each school term holidays;

   (vi)On a week about basis for the 2016 long summer school holidays with the father having the second week subject to these orders;

   (vii)From 4.00pm on 24 December until 4.00pm on 25 December in odd numbered years and from 4.00pm on 25 December until 4.00pm on 26 December in even numbered years;

   (viii)As otherwise agreed in writing.

5. Under the heading “AND THE COURT NOTES” there is the following:

   These Orders are intended to be re-visited by the parties, by mediation first if necessary, when the child is at kindergarten and certainly not less than six months before the child commences school.

6. I delivered judgement on 21 October 2016, Lovell & Winter [2016] FCCA 2679. I ordered the father’s application be dismissed. The mother’s response sought to have the father’s application dismissed and then sought orders in relation to the child’s school and whether the child should have a tonsils operation. I listed those for mention and ordered that each party file written submissions on costs and the question of costs be decided without a further oral hearing. This has been done.

7. The relevant considerations under s.117(2A) are the financial circumstances of the parties, whether any party to the proceeding has been wholly unsuccessful in the proceedings and any other relevant matter.

8. The father is self employed as a (occupation omitted).  He says that his 2014/2015 taxable income was $1,725.  He is married to Ms F a self-employed (occupation omitted).  The father deposed that he and his wife are purchasing a block of land in (omitted) and engaging a builder to construct a five bedroom house on the property.  He pays no child-support.

9. The mother is employed as a (occupation omitted) and earns approximately $75,500 per annum.  She and the child live with her parents in (omitted).

10. The father has been wholly unsuccessful in his application.  Some adjustment was necessary because the child is commencing school next year and the parties had anticipated this in a notation to the order.  I concluded in my reasons that this did not justify bringing a claim for a change of the lives with order or a claim for equal time.  I referred to the Full Court’s statement in Marston & Winch [2009] FamCAFC at [46] “small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation”.

11. The other relevant matter is that the father claimed a mistake was made in the order of 28 August 2013 because commencing in 2016 the child spent every second Wednesday with him instead of each Wednesday as before.  At paragraph 20 of the reasons for judgement I pointed out that there did not appear to have been a mistake.  The father made no application under the slip rule.  Almost certainly it would have been unsuccessful.

12. The father’s financial position must be better than he puts because he could not have purchased a block of land and be building a house on it if his income is only $1,725 per year.  The mother has a modest income and while she has the advantage of living in her parent’s home she has the whole expense of caring for the child except for some expenses when the child is spending time with the father.

13. While the father has been wholly unsuccessful in his application, some of the costs relate to the dispute about school and tonsils.  On the first Court Date, 1 June 2016, I made an order that the mother was authorised to enrol the child for the school year 2017 at the (omitted) Primary School, (omitted).  Which school the child will attend after that is apparently still an issue as are the tonsils.  Some of the costs incurred are in relation to the issue of schooling and the tonsils. 

14. The father should pay the mother’s costs of his unsuccessful application less some allowance for schooling and tonsils issues.  Paragraph 9 of the mother’s submission on costs sets out the relevant items and amounts in accordance with Schedule 1 of the Federal Circuit Court Rules 2001 (Cth). The total is $8,803. I will allow $7,000.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date: 4 November 2016