Mairie & Malak (No 2)

[2011] FamCA 1051

FAMILY COURT OF AUSTRALIA

MAIRIE & MALAK (NO. 2) [2011] FamCA 1051

FAMILY LAW – COSTS – father to pay the mother’s costs thrown away by adjournment

Family Law Act 1975 (Cth)

APPLICANT: Ms Mairie

RESPONDENT: Mr Malak

INDEPENDENT CHILDREN’S LAWYER

FILE NUMBER: MLC 2355 of 2010

DATE DELIVERED: 12 September 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 12 September 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Laidlaw

SOLICITOR FOR THE APPLICANT: Rigoli Lawyers

THE RESPONDENT: In Person

COUNSEL FOR THE

INDEPENDENT CHILDREN’S LAWYER:

Ms Spehr

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

1. That all outstanding applications are adjourned until 10.00am on 18 November 2011 for a half day interim fixture.

2. That paragraphs 5(k) to (m) of the orders made on 8 April 2009 are discharged.

3. That the issue of whether paragraph 6 of the orders made on 8 April 2009 should continue or be varied shall be the subject of the hearing on 18 November 2011 along with any application that the father may otherwise seek to have the Court determine.

4. That the father file and serve any application seeking final and interim orders that he proposes by no later than 4.00pm on 21 October 2011.

5. That the mother file and serve any response to the said proposed applications by no later than 4.00pm on 4 November 2011.

6. That the father pay the mother’s costs thrown away this day including the preparation costs for this trial including the attendance of counsel and the preparation by counsel for trial, such costs to be by agreement and in default of agreement, such costs shall be assessed.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mairie & Malak has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 2355 of 2010

Ms Mairie

Applicant

And

Mr Malak

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This is an application, an oral application made by Ms Mairie, (“the mother”) for costs arising out of the fact that the proceedings today effectively cannot be finalised and the matter cannot go much further.  I will refer to the transcript in relation to all of the discussions about why that is the case.

2. Mr Malak (“the father”) was quite open in saying that he had legal aid granted to him in April for these proceedings and because of some problems associated with him being in prison in New South Wales and the various problems he had with a lawyer who ultimately indicated that he would not undertake legal aid work, which seems to me to be rather odd, the matter has been transferred to another firm, and that transfer is still in process.  Whether or not legal aid is the critical issue remains to be seen, but it seems to me that to get this far down this track and to have the proceedings adjourned is an extraordinary imposition upon the mother, who has been funding her own legal case.

3. This is not a new matter.  These proceedings are of long standing, and I note that the file is in a variety of volumes.  The father ought to know the complications associated with simply adjourning matters at the last minute where parties have expended significant funds.  Section 117 of the Family Law Act provides that each party pay their own costs unless there are circumstances that justify the Court departing from that principle, and this is one of those cases where I think there is ample indication of a justification, and I propose to make an order for costs.

4. The problem, however, is the question of the matters set out in subsection (2A) of that particular provision that require the Court to consider a number of matters, including the financial position of either party.  At best, I have some submissions from the parties about their respective financial positions, and I’m a little concerned that the father is making some arrangements with his wife that might resolve some of his financial problems and divest himself with assets, but that’s a matter for the parties to sort out.

5. Impecuniosity is not a basis not to make an order for costs, because costs orders obviously last for a considerable period of time.  In this case, it seems to me that the financial position of the father is a little unclear, but he ought to be able to contribute something towards the costs in the future even if he can’t now.

6. What is sought is $15,000 by way of costs, but that is obviously on an indemnity basis. There is no suggestion of what the basis would be on the Family Law Rules scale, and on that consideration, I could not, therefore, make an order for a fixed amount, and the only order that I can really make in those circumstances is an order that the costs be by agreement, and failing agreement, that they be assessed by the Registrar.

ORDERS DELIVERED

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 12 September 2011.

Associate: 

Date:  11 January 2012