M and B
[2002] FMCAfam 173
•21 June 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M & B | [2002] FMCAfam 173 |
| FAMILY LAW – Costs – section 117 Family Law Act 1975 – applicant successful in obtaining an order to take the child of the parties for a two-week holiday to the Republic of China – respondent required to pay costs. |
Penfold & Penfold (1980) 5 Fam LR 579
| Applicant: | P M |
| Respondent: | P J B |
| File No: | ZM 9338 of 2001 |
| Delivered on: | 21 June 2002 |
| Delivered at: | Melbourne |
| Hearing Date: | 19 June 2002 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | Ms Melita |
| Solicitors for the Applicant: | Victor Tse & Associates Level 7, 459 Little Collins Street MELBOURNE VIC 3000 |
| Counsel for the Respondent: | Ms Goldsworthy |
| Solicitors for the Respondent: | Wilmoth, Field & Warne 154 A’Beckett Street MELBOURNE VIC 3000 |
ORDERS
IT IS ORDERED
THAT the Husband pay the Wife’s costs fixed at $6,915.00 together with 2/3 of her disbursements on or before 4.00pm on the 16th day of August 2002.
IT IS CERTIFIED
THAT pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001 this matter reasonably required the attendance of Counsel as advocate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
ZM 9338 of 2001
| P M |
Applicant
And
| P J B |
Respondent
REASONS FOR JUDGMENT – Costs
Introduction
On the 24th day of May 2002 the Applicant Wife filed an Application in the Family Court of Australia which sought an Order permitting her to take the child N B aged 5 out of the Commonwealth of Australia and an Order which would enable her to have his passport renewed notwithstanding that the consent of the Husband has not been obtained. The Affidavit in support of that Application indicated that the Wife wished to take N to China during the forthcoming school holidays from the 27th day of June 2002 until the 11th day of July 2002. The Wife is Chinese and the parties were married in Beijing in January 1995. The Husband is Australian and is a Barrister practising at the Victorian Bar.
The Wife’s Father died last year and one of the activities the Wife has planned is to take N to a ceremony with her relatives which involves visiting her Father’s grave and is known as grave sweeping.
The trip was prompted by the fact that the Wife won a return ticket to China as a result of having a term deposit with the Bank of China. There were time limits applicable to when the award could be redeemed and the Wife believed that she had to complete her trip within a 6 month period. It was issued in February and she believed that it expired on the 30th day of August 2002. Because it was a free ticket, there were some limitations on the dates on which she could travel and it was not until April 2002 that dates were confirmed. She was fortunate in being able to negotiate travel time which fell during the school holidays. In her initial Affidavit filed with her Application, she indicated that she had always held N’s passport since the parties’ separation without any disagreement from the Husband and his passport had expired in April 2001.
She indicated in the same Affidavit that she had no funds of her own, but could borrow $10,000.00 and could provide that as security. She also indicated that the former matrimonial home had been sold in April 2002 and the Husband had applied the proceeds of sale to the purchase of a $1.6 million home in P H. The parties had placed $30,000.00 from the sale proceeds by agreement in the trust account of their solicitors pending resolution of property matters between themselves.
The Husband opposed the Application. He filed a Response on the 24th day of May 2002 in which he sought that the Wife’s Application be dismissed. He also sought an Order that the Wife be restrained from removing N from the Commonwealth of Australia. He then sought a number of parenting orders including a proposal that N live with him each alternate week and that he be permitted to enrol N at Ivanhoe Grammar School at the start of the 2003 Academic year.
The Husband filed an Affidavit which he swore on the 23rd day of May 2002 in support of his Response. When the matter came on for hearing before Registrar Fitzgibbon in the Family Court of Australia on the 24th day of May 2002, it was further adjourned to the 6th day of June 2002 and the Wife was required to provide to the Husband by the 28th day of May 2002 a number of documents relating to her financial position. This was because the Husband raised concerns about the amount of security being offered by the Wife and from whom it was offered, and submitted that the Wife may have other funds of her own.
The Wife was required to provide details of all bank accounts, travel documents in relation to the trip, details of her employer and landlord and agent and confirmation that she was going to return to her job and accommodation. The Husband was also entitled to issue subpoenas to the Wife’s employer, landlord and banks and financial institutions in which she has had an account. I am satisfied from all of the material filed, that the Wife has complied with these Orders.
The Husband filed a further Affidavit on the 5th day of June 2002 and on the 6th day of June 2002 an Order was made dismissing the interim application of the Wife for orders, but transferring the Application to the Federal Magistrates Court to be listed for a one day hearing with priority. It was clear that the issue related to the Wife’s intended trip to China.
The matter was given a Final Hearing date on the 18th day of June 2002 and commenced on that day. It was not concluded at the end of that day and continued on the 19th day of June 2002. At the commencement of the hearing, the Husband, through his Counsel, sought an adjournment of the proceedings. For the reasons that I then gave, that Application was rejected and the matter proceeded.
In view of the fact that there was at that point at least, an apparently significant dispute about residence and the parties had not attended counselling, I indicated that the matter would proceed on the question of whether the Wife should take N to China, that I would make interim orders for residence and contact, but that the final hearing in relation to residence and contact, if there were matters still in dispute, would be conducted at a later date.
On the first day of the hearing the Wife gave evidence. Despite the fact that there were three Affidavits filed by each, some financial transactions had been put into issue by the Husband and the Wife gave evidence about those transactions. Her evidence concluded at the end of the first day.
At the commencement of the second day, the parties asked for some time to negotiate and without the matter resuming, they resolved the terms upon which the Wife would be permitted to travel with N for the period sought and interim arrangements in relation to residence and contact. Orders were made on the 19th day of June 2002 and reflect these matters. As far as the further disposition of the matters are concerned an order for Counselling was made, a Family Report was ordered and the matter was otherwise adjourned for a Final Hearing in November this year.
Notwithstanding their agreement in relation to most of the other issues, (determination on a few minor issues had to be made) the parties could not agree on the question of costs and the Wife’s Counsel had sought that the Husband pay the Wife’s costs in relation to the proceedings to date. The Husband opposes that Application.
Background facts
The Wife is 37 and the Husband 49 and they were married in China in January 1995. They came to Australia in June 1995 and N was born on the 29th day of September 1996. In May and June 1997, the Wife travelled to China with N.
Later that year, a friend of the parties, N, lent the parties $5,000.00 to help them purchase an apartment which they later repaid. Between December 1997 and February 1998 the Wife again travelled to China with N.
The Wife commenced full-time study at Deakin University in October 1998. About that time the parties separated under the one roof and in January 2000, they physically separated and the Wife left the former matrimonial home. She obtained employment as a teacher/lecturer and moved to her current address at Preston.
On the 26th day of January 2000, the Wife became an Australian citizen. In April 2000 she again travelled to China with N. There appear to have been some difficulties between the parties with the Husband not seeing N to start with, but his contact recommenced in October 2000 and he has had regular contact with him since that time, essentially each alternate weekend.
Between December 2000 and January 2001 the Wife travelled to China with N to visit her ill Father who died in early January 2001. The Wife went back to China for the funeral but N did not accompany her on this trip.
Despite the fact that the parties physically separated in 2000, neither party had ever sought any parenting orders. There were no orders in place for residence or contact, nor was there any order restraining the Wife from removing N from the Commonwealth of Australia.
The Husband commenced proceedings for divorce by an Application filed on the 21st day of November 2001. In the Application he indicated that N was living with the Wife, that over the last few months he has been having contact each alternate weekend from 12.30pm Saturday until 6.00pm Sunday. He indicated that he was then paying child support pursuant to an Assessment. The Assessment in fact provided for him to pay $5.00 per week. In the section headed “Do you propose any changes to these arrangements”, the Husband said:
“The Husband seeks to obtain Court Orders in relation to the times N is in the Husband’s care and in relation to his welfare arrangement.”
Notwithstanding that statement, until the Wife filed these Applications in May, no such application to the Court had been made by the Husband. On the 24th day of January 2001 the divorce was granted, the Husband being represented on that occasion and the Court making orders that the arrangements for N were proper. The first time that the Husband sought parenting orders of any kind was in his Response to the Wife’s Application to take N to China and obtain a new passport for him.
Matters raised by the Husband
The Husband filed three Affidavits. His first Affidavit (sworn on the 23rd day of May 2002) is essentially in response to the Wife’s Affidavit of the 10th day of May 2002. Much of it is non-responsive and irrelevant. For example, in paragraph (8) of her first Affidavit (10th May 2002) the Wife sets out in that paragraph what is clearly a concise history of her employment in Australia. She says:
“I came to Australia with the Husband in June 1995. I undertook language studies for 6 months after arrival and also assisted the Husband as his secretary until the end of 1996. From the beginning of 1998 I studied full-time at Deakin University for two years…”
In response to what is clearly a simple statement of fact about her employment history, the Husband responds by saying (paragraph 2.3.3):
“I agree that I employed the Wife as my secretary, but I disagree that she assisted me. The Wife refused to take messages, do paperwork, type or act generally as a secretary. The Wife would enter my chambers during conferences and lie down on my couch in front of my clients. The Wife refused to leave during such conferences or would abuse me in front of my clients. I had to terminate several conferences because of her behaviour.”
Not only is that paragraph non-responsive to the assertions that the Wife was making about her employment history, but it is completely irrelevant to any issue in these proceedings. The fact that the Husband is a practising barrister at the Victorian Bar and is aware of the rules of evidence makes comments like the one I have described, which is one example of many, inexcusable. What it does do in my view, is to indicate a hostile and obstructive attitude to the Wife’s Application right from the start.
That approach permeates the rest of the Affidavit. However, distilling from it the Husband’s objections to the trip, the Husband asserts that the Wife threatened to take N back to China and that he would never see him again. In paragraph (2.5) he says:
“During the marriage and subsequently the Wife expressed a dissatisfaction with her life in Australia and stated her desire to return to China to reside. She has threatened that she would take N back to China and that I would never see him again.”
No dates accompanied the assertions of these threats and I note that they appear on the Husband’s evidence to have been made during the marriage and subsequently. Notwithstanding these assertions, the Husband did not consider it necessary to obtain an injunction to restrain the Wife from leaving Australia and she appears to have had at least two trips to China with N after the alleged threats the Husband relied upon.
The Husband goes on to assert that the Wife has no ties in Australia and that China is not a signatory to the Hague Convention on the Abduction of Children. He asserts that she is not truly tied to Australia, unpredictable in her behaviour towards him and his contact with N and that there is nothing to stop her from remaining in China. It is not clear whether the further allegations he makes relate to the China trip or to parenting orders generally, but he complains that in 1999, 2000 and 2001 he had no consistent contact with N. He says that he habitually tried to resolve questions of contact and other family law matters by agreement and appeasement.
In response to the Order that required the Wife to provide details of her financial position, she did so by filing an Affidavit by her solicitor which annexed the documents that were subject of the order. The annexures included bank statements for her accounts at the National Australia Bank, the Bank of Melbourne and the Commonwealth Bank and term deposits with the Bank of China. Her cheque butts for the relevant periods were annexed, as was a letter from her employer indicating that she was employed at Collingwood College as a teacher and was on a fixed term contract until December 2002. The Affidavit also annexed a document relating to the prize of the trip to China that she had won, terms and conditions of the trip and the tickets that she had obtained for herself and purchased for N. A copy of her Chinese passport which had expired was attached as was a letter from the estate agent indicating that she was on a periodic tenancy and no notice to quit or indication that she was leaving had been given.
As I have previously indicated, I am satisfied that she complied with the orders completely.
When the Husband saw the bank statements, they indicated that some substantial funds had been transferred from the Wife’s account in December and January and the Husband’s solicitor wrote to the Wife’s solicitors making enquiries about these funds.
In response to those enquiries, the Wife swore an Affidavit on the 5th day of June in which she explained that N (who had previously lent the parties money) had lent her $25,000.00 which she had intended to use as a deposit on a property purchase and she had repaid these funds to N between December 2001 and February 2002. The Affidavit of the Wife is accompanied by an Affidavit of N sworn on the 30th day of May 2002 indicating that she had lent $25,000.00 together with interest to the Wife to enable her, together with the funds that she was expecting from the Husband, to purchase a home for her and N. The funds from the Husband were not forthcoming and as the Wife was not able to purchase a home, she had returned the money to N and paid interest. She further indicated that she was prepared to offer the sum of $10,000.00 by way of security for the trip.
In the Wife’s Affidavit of the 5th day of June 2002, she also explained other withdrawals from her bank account over that period. She explained that cash withdrawals were made for her fortnightly rental payment and weekly living expenses. She explained that she withdrew the maximum ATM limit of $1,000.00 when making withdrawals in order to minimise bank fees which were payable if the transactions exceeded a certain number. In addition she annexed a letter from the Child Support Agency indicating that although the Husband had reached an agreement that he would pay $150.00 per week to her in January that there was $2,600.00 owing and it was common ground at the hearing that the Husband has not paid any child support to the Wife since January this year.
To further endeavour to satisfy the Husband, the Wife filed Affidavits by others. She filed an Affidavit by the principal of the primary school at which she taught in the past who indicated that he knew her and of her commitment to residing in Australia. She filed an Affidavit from the Melbourne branch manager of the Bank of China in relation to the air ticket; from Sandra Fueggle, a friend, who confirmed that she was planning on purchasing a home last year but did not do so because the money was not forthcoming from property settlement and who also attested to believing that she was committed to Australia. She filed an Affidavit from V M who also indicated her knowledge of the Wife’s commitment to Australia and from H W, a teacher, who deposed to matters concerning the Wife’s commitment to N having contact to the Husband.
In my view, the Husband’s attitude to the proceedings to which I have previously referred is exemplified by an indication at the commencement of the hearing (after his application for an adjournment had been disallowed) that he wished to cross-examine some of these deponents.
The Husband filed a further Affidavit on the 5th day of June 2002 in which he said that in addition to his concerns about the Wife’s threats to take N overseas, he was now concerned that she had financial transactions which appeared to him to be suspicious and to suggest the she may have been moving funds out of Australia. This implied that he did not believe what the Wife or N had said. In light of the Husband’s unwillingness to accept her explanation, the Wife filed a further Affidavit on the 15th day of June 2002. She had filed an Affidavit in response to the Husband’s first Affidavit (31st day of May 2002) in which she responded to the Husband’s first Affidavit and explained that she did not have Chinese citizenship because she could not hold dual citizenship once she became an Australian citizen.
Her Affidavit of the 15th day of June 2002 was detailed and explained in detail the larger financial transactions in her bank statements between May 2001 and February 2002.
The Affidavit explains that deposits over that period total about $38.000.00 and she explains that in addition to return of funds to N to what use she has put the other funds.
Apart from living expenses the other funds were used for legal expenses, car repairs, car insurance, an air ticket for N, travel to China for the funeral of her Father, a holiday in Merimbula, Christmas spending and gifts to her mother for her first Chinese New Year without her Father. None of these in my view are exceptional or suspicious transactions given that the moneys in the bank were all derived from the earnings of the Wife.
She explains in that Affidavit why it was that she had three bank accounts, why the term deposits were in the Bank of China and the background to why she borrowed from N hoping that the issue of property settlement would have been resolved with the Husband.
The property the parties owned at Sassafras which was the former matrimonial home was in the Husband’s name. She placed a caveat on that property in December 2001 after negotiating unsuccessfully to resolve property matters. The Husband required her to remove the caveat as he had bought another property. The parties agreed that $30,000.00 should be placed in a joint trust account of the solicitors pending a final property order. Those funds were there at the time of this hearing. The Sassafras property was sold in March 2002 for about $505,000.00.
In that Affidavit in addition, the Wife indicates that the Husband had seen N regularly since separation and that in all of that time the Husband had not instituted any proceedings regarding N. She in fact asserted that there were problems with the Husband from time to time about returning N. She denied the assertions that she had threatened to remove N from Australia.
The orders
The basis upon which the parties have agreed that the Wife will go to China with N is that the present injunction restraining her from removing N from Australia will remain, subject to the agreement that she can take him for this specified trip. She is to provide security of $10,000.00 as she originally offered and a sum of $30,000.00 which is in trust pending property settlement resolution is also to be used as security in the event that she does not return. By way of additional security she is providing her car.
The cost argument
The Wife sought costs on the basis that the Husband had been wholly unsuccessful in the proceedings. That is to say that he sought that the Wife’s Application be dismissed but the parties have arrived at an arrangement whereby the Wife was to go to China with the child for the period sought. She also relied upon the conduct of the Husband in initially putting into issue her bona fides and commitment to Australia and then subsequently when he became aware of her financial position, refusing to accept her evidence corroborated by N as to the nature of the transactions and failing to accept the documentary evidence filed in support of them. Encompassed in this argument was a submission that it was unreasonable in any event for the Wife to have had to provide the level of detail required by the Husband. Alternatively, it was submitted that having been provided with the information, to proceed to a hearing was of itself unreasonable conduct and caused expense to the Wife. The Wife also relied upon the fact that she had written to the Husband through her solicitors initially and no response had been forthcoming by the Husband which caused her to make the Application.
The Husband relied upon what he asserted to be the Wife’s erratic behaviour, difficulties with contact and her threats to leave as all being reasons why his Response was appropriate. I reject the submission that the Wife’s Application on its face did not give sufficient detail to the Husband as to what the Wife wanted. The Application sought to remove the child from the Commonwealth of Australia but when read with the Affidavit filed with it, the details contained in the Application were perfectly clear, and the Husband was under no doubt as to what the Wife sought.
Having determined that there were financial transactions which needed to be investigated, the Husband argued that the investigation was entirely reasonable given the nature of the transactions and that the information forthcoming was piecemeal and did not enable him in the time available to properly assess it. It was not until he received her final Affidavit received on the Friday before the hearing commenced (on Tuesday) and then heard her evidence in the witness box that he was able to fully appreciate the nature of the transactions and to satisfy himself from sighting receipts for legal fees etc., that she had disposed of the funds in the manner that she said.
In summary, the Husband’s argument was that the nature of the last minute application necessitating a fairly speedy hearing, and the time in which the case came on for hearing, did not give him sufficient time to assess the information which the Wife was providing. To put it another way, had the Wife approached the matter in a different way and not left it until the last minute the matter could have been dealt with differently.
The law
Section 117 of the Family Law Act 1975 provides that unless the Court otherwise orders, each party should bear their own costs. The High Court in Penfold & Penfold (1980) 5 Fam LR 579 has indicated that there is no presumption in a particular case as to whether costs will or will not be ordered. It is a matter to be determined if the issue arises in each case.
In considering whether to make an order for costs, the matters in section 117(2A) need to be considered. The relevant subsections relied upon in this case are as follows:
Financial position of the parties
I am satisfied that the Wife has only her income from her employment to support her. Despite the arrangement with the Husband to pay child support he has not done so since January. She has no other assets although she perhaps has an inchoate interest in the funds which are presently held in the trust account of the solicitors pending resolution of property matters. She is borrowing the sum of $10,000.00 to be used as security for her return.
The Husband is a barrister practising at the Victorian Bar. When submissions for costs were being made, Counsel for the Husband started to make a submission which went to the financial circumstances of the Husband. I indicated to her that I was not prepared to hear a statement from the Bar Table which appeared to be contentious but if she wished to put information before me as to the Husband’s financial position then she would have to call him, or alternatively reach agreement with Counsel for the Wife as to an agreed statement of facts regarding his income. I stood the matter down and when the matter came back on, no further submission in respect of the Husband’s income was made. I indicated when I had raised the matter earlier that in the absence of any specific evidence or agreement as to the Husband’s financial position, I would draw the inference that he was gainfully employed at the Victorian Bar and had an income. The Wife has asserted and the Husband has not denied, that he has recently purchased a house in P H for $1.6 million. I do not know whether he has purchased that property with his present Wife or on his own, but the evidence also indicates that the former matrimonial home at Sassafras was settled earlier this year and there was in excess of $0.5 million emulating from that sale. I do not know if this is a gross or net sum, but I can infer from those facts that the majority of the proceeds of sale from Sassafras went into the purchase of a property at P H worth, on the evidence, $1.6 million.
Whether one party has been wholly unsuccessful
I indicated to the parties that as far as the orders for residence were concerned, they would not form part of any costs order which might be made and that I would have regard to the fact that those proceedings are yet to be determined. I indicated to the parties that I would only contemplate a cost order in relation to the Wife’s costs confined to the Application to take N to China. In that respect the Husband has been wholly unsuccessful. His Application sought that the Wife’s Application be dismissed and he maintained that position at the commencement of the hearing.
Conduct of the parties in relation to the proceedings
The Husband’s opposition to the proceedings really falls into two parts. The first part did not involve any financial element at all and was based upon in the main, his assertion that the Wife’s behaviour to him regarding contact had been erratic and she had threatened to remove N from Australia and that he could not trust her to return.
As I indicated to the parties, I must be careful in assessing evidence which is contested. The Wife gave evidence but she was not cross-examined and the Husband was not cross-examined or called. Accordingly, I must assess the evidence in that light and look to uncontested facts. First I take into account the context of this matter. The context of the Wife’s request was that the Wife had come to Australia in 1995, had become an Australian citizen, had been at her present address since separation and had been in constant employment. These facts were all known to the Husband. None of these objective facts suggested any intention on the Wife to depart from Australia permanently.
Furthermore, the Wife had been on several trips to China including the two trips when she took N and brought him back to Australia. These facts further confirm the unlikelihood of the Wife leaving.
In addition, the Wife’s trip was motivated by having won a prize which was a ticket to China which had to be taken within a specified period. Accordingly, there was a good reason for her to go. In addition to her winning the prize, she wished to have N visit relatives he had not previously seen and to attend a grave sweeping ceremony with her family. This created another legitimate reason for her to travel with him.
The Husband was well aware of the Wife’s limited financial position. He knew that she had no funds of her own because the parties were engaged in property settlement negotiations over the sum of $30,000.00 which was held on trust. This sum could at all times have been used as security if the Husband was not initially satisfied with the $10,000.00 which was being lent by a friend who was known to the Husband. The Husband was aware of the Wife’s financial position. None of these facts, in my view, suggest that the Wife was likely to leave Australia.
As far as the Husband’s assertions that the Wife had threatened to take N and stay in China were concerned, these were not tested. The Wife refuted them. The evidence however, does enable me to draw inferences as to whether or not I should accept the Husband’s version. Despite the Husband’s assertions of threats by the Wife, he had at no time prior to the institution of her proceedings sought to have any parenting orders, or sought to prevent her from removing N from Australia. It seems to me inconceivable that he would not do so if he had any real concerns that she might take N knowing that she had a passport and that she had travelled with him previously. In the face of not seeking any parenting orders or a restraint on her leaving Australia, I can infer from these facts that the Husband’s assertions of threats by the Wife to take the child were untrue, or if they were true he did not take them seriously. Furthermore, when the Husband brought an Application for Divorce which was heard in January 2002, he did not indicate at that time that there was any concern about N being removed from Australia, or any suggestion that the arrangements were otherwise than proper. Even though he indicated in the Application filed in November 2001 that he intended to seek parenting orders, by early May he had still not done so. These facts lead me to the only inference possible which is that the Husband had no concerns that the Wife would remove N from Australia permanently and when faced with her Application to leave had no genuine basis for opposing it.
The second part of the Husband’s objection came after the Wife had been required to produce information about her financial affairs relating to security. This information indicated transactions which the Husband asserted were suspicious in nature. This part of the Husband’s case was opportunistic because he had no idea that she had been lent money prior to that time. As soon as the Wife became aware of his concerns she explained them and she obtained an Affidavit from N. Whilst the Husband’s Counsel argued that there were other transactions beyond the money repaid from N, I regard the Husbands conduct in this respect as unreasonable as well. He knew N She had previously lent money to the Husband and Wife. It was entirely consistent with her past behaviour that she would lend money to the Wife.
Furthermore, the context of the loan was also known to the Husband. It was at a time when the Husband and the Wife were negotiating property settlement and the Wife had lodged a previous caveat which she had withdrawn, but had then not been able to reach agreement with the Husband. All of these facts were known to him. The context of a borrowing to assist her in the purchase of a home when she was expecting to get a property settlement from him was entirely believable and reasonable.
The Wife did everything she could to produce financial information. Each provision of financial information however, rather than appeasing the Husband, sent him off on another enquiry. I reject the argument that the Husband needed further explanation of where other funds had gone from the Wife's account. In her Affidavits the Wife explained in detail where the money went, including payments to her solicitor and for her motor vehicle. The Husband knew she had a solicitor. He knows she drives a motor vehicle. These are normal expenses connected with vicissitudes of life and there is nothing inherently suspicious in them. The withdrawals did not suggest on their face a suspicious disposition of funds.
In my view the Husband’s conduct has unreasonably prolonged the inevitable conclusion of the Wife’s Application. Looking back at her Application to take N to China for two weeks during the school holidays, in the circumstances of these parties, it is hard to conceive that that Application would not in almost any circumstances have been successful, subject to provision of adequate security. As a result, in my view, the Husband should be required to pay the Wife’s costs.
However, I do not consider it reasonable for the Husband to pay all of the Wife’s costs. The Wife is not without some fault in what has occurred. Early in the year she became aware that she had won the trip to China and although the date was not confirmed until April, she could have advised the Husband much earlier in the year that she was planning the trip and if she had done so there would have been more time to deal with the issues that arose and with a bit more time, they may have been resolved without the necessity for the proceedings, or at least for the proceedings to go as far as they did.
It seems that the Wife only approached the Husband at all when she found N’ passport had expired and needed his consent for the renewal. She was it appears, intending to go without any reference to the Husband. In some respects this in understandable as she had been previously without apparently any opposition from the Husband. However, it was imprudent, and the haste in which the matter then had to be dealt may well have led to further suspicion on the part of the Husband which may otherwise not have happened.
In the circumstances, it seems reasonable that the Wife should bear some of the expense and I propose to order that the Husband pay two-thirds of the Wife’s costs. Those costs will be calculated on a party/party basis according to the Federal Magistrates' Court scale. I propose to treat the second day of the hearing as a day on which directions in relation to the parenting orders would otherwise have been give and to exclude that day from any calculation of costs. The calculation of costs is as follows:
| Stage 1 – 24/05/02 | |
| Initiating an opposing application up to completion of first Court day | $1365.00 |
| Plus Daily hearing fee (1/2 day) (no certificate) | $685.00 |
| $2050.00 | |
| Stage 2 – 06/06/02 | |
| Interim or summary hearing as a discrete event | $1135.00 |
| Plus Daily hearing fee (1/2 day) (no certificate) | $685.00 |
| $1820.00 | |
| Stage 5 –Preparation for Final Hearing | |
| 1 day matter | $2900.00 |
| Stage 6 – Final Hearing costs for solicitors | |
| Attendance at Hearing | $1365.00 |
| To take judgment and explain orders | $190.00 |
| Counsels fee including advocacy loading (1.5 x daily hearing fee) | $2047.50 |
| Total | $10372.50 |
| 2/3 = | $6915.00 |
| Plus 2/3 disbursements |
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate: Mardi Jarvis
Date: 21st June 2002
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