METFORD & FADDIN (No.3)

FEDERAL CIRCUIT COURT OF AUSTRALIA

METFORD & FADDIN (No.3) [2018] FCCA 3832

Catchwords:
FAMILY LAW – Costs.

Legislation:

Family Law Act 1975 (Cth), s.117

Cases cited:

Colgate-Palmolive Company and Colgate-Palmolive Pty Limited v Cussons Pty Limited [1993] FCA 536
Munday v Bowman (1997) FLC 92-784

Applicant: MR METFORD

Respondent: MS FADDIN

File Number: BRC 9993 of 2017

Judgment of: Judge Cassidy

Hearing date: On the papers

Date of Last Submission: 22 November 2018

Delivered at: Brisbane

Delivered on: 30 November 2018

REPRESENTATION

For the Applicant: Self-represented

Solicitors for the Respondent: Baker O'Brien & Toll

ORDERS

THE COURT ORDERS:

1. That the Applicant father pay the Respondent mother’s costs, fixed in the sum of $6000 by on or before 31 January 2019.

IT IS NOTED that publication of this judgment under the pseudonym Metford & Faddin (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 9993 of 2017

MR METFORD

Applicant

And

MS FADDIN

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an Application for costs made by the mother in this matter and a cross-application by the father for a costs order as well.  This judgment should be read in conjunction with the reasons for judgment delivered on 25 October 2018 and 18 July 2018. 

2. The mother seeks her costs on an indemnity basis for the whole of the proceedings.  The father opposes those orders and seeks his own costs set in the sum of $15,462. 

Background

1. The matter was initiated by the father arguing that there had been a change in circumstance. The father was successful in that argument, and a family report was ordered.  The matter then proceeded to hearing.  The father’s conduct in failing to return the children on five occasions necessitated the mother’s filing of an Application in a Case.  A judgment was delivered on the mother’s Application in a Case on 18 July 2018.  That judgment provided for the orders sought by the mother.  I note that the mother’s costs were fixed in the sum of $4682 arising out of that hearing and those costs were reserved to the final hearing.

2. At the final hearing of the matter, the mother was successful in retaining sole parental responsibility and successful in the children continuing to reside with her for five nights a fortnight, as opposed to the seven nights a fortnight sought by the father.  Otherwise, the parties had some success in that the father succeeded in the changeover point being varied, and the father was successful in ensuring that the changeover did not continue to occur on Sunday nights.

The Legal Principles

1. Section 117 of the Family Law Act 1975 (Cth) (“the Act”), sets out that:

   “(1)  Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.” Under subsection (2):

   “(2)  If, in proceedings under this Act, the court is of opinion that there are circumstances that…