Milton and Milton (No. 2)

[2013] FamCA 697

FAMILY COURT OF AUSTRALIA

MILTON & MILTON (NO. 2) [2013] FamCA 697

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Costs order.

Family Law Act 1975 (Cth)

APPLICANT: Ms Milton

RESPONDENT: Mr Milton

INDEPENDENT CHILDREN’S LAWYER: Ms Jenkins

FILE NUMBER: MLC 1427 of 2012

DATE DELIVERED: 10 May 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 10 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Devine

SOLICITOR FOR THE APPLICANT: Trapski Family Law

THE RESPONDENT: In Person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Jenkins, Victoria Legal Aid

Orders

1. Upon the oral application of the Independent Children’s Lawyer and the applicant wife to proceed on an undefended basis, such application is refused.

2. That paragraph 1 of the orders made on 6 March 2013 is varied by fixing the date as a one day fixture on 19 June 2013.

3. That paragraph 2 of the orders made on 6 March 2013 is varied such that the relevant date referred to for the filing by the husband of the response is 4.00pm on 14 May 2013.

4. That paragraph 5 of the orders made on 6 March 2013 is not varied and remains the filing date for the affidavit material of the husband.

5. That paragraph 10 of the said orders is varied to require the report of the family consultant to be released by 5 June 2013.

6. That paragraph 3 of the said orders is extended such that the date for the filing by the wife shall be 24 May 2013.

7. That the husband pay the Independent Children’s Lawyer’s costs thrown away this day of $893.

8. That the husband pay the wife’s costs fixed in the sum of $1800 thrown away this day.

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 Milton & Milton (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1427 of 2012

Ms Milton

Applicant

And

Mr Milton

Respondent

REASONS FOR JUDGMENT

1. This is an application for costs by the applicant wife and by the Independent Children’s Lawyer. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that in these proceedings, in this Court, each party bears their own costs, unless there are circumstances that justify a departure from that principle. If the Court is contemplating a justifiable circumstances, it must take into account the matters in s 117(2A) in respect of the wife and a specifically different provision in relation to the Independent Children’s Lawyer.

2. The husband’s position is that he opposes the order for costs in relation to the wife, but not in relation to the Independent Children’s Lawyer.  In both cases, however, the first question is whether or not there is a justifiable circumstance.  Here, this case was set down for hearing when I made orders on 6 March.  I made clear, as has been articulated in discussion this morning, what was to occur and the husband’s position was that he did not file a response because he had a problem with the Court’s portal and the way in which the portal apparently is regulated.

3. Having said that, he at that stage had had a number of weeks to file the document over the counter.  Some six weeks has gone by since then and it was only this morning that he produced any document to both of the other parties.  In my view, if a party takes that risk, particularly having regard to the fact that both the Independent Children’s Lawyer, who is funded out of the public purse, and the wife, who is obviously having to pay for this out of her own pocket, it seems to me that that is a justifiable circumstance.

4. If I look at s 117(2A), it is clear that the Court must look at the economic circumstances, but impecuniosity is not alone a basis for not making an order. As I understand it, there is a property dispute here and no doubt those sorts of considerations can be taken into account when that issue is determined. There are Legal Aid considerations here as I have just mentioned.

5. The major reason why we are here today at all is twofold.  First, because of the fact that the husband did not do what he was required to do and the Independent Children’s Lawyer, very sensibly, took the course of action to avoid the public purse being further embarrassed and the wife had little choice but to come along because there was going to be a hearing today that may have had some impact on her case.

6. The reality is that the Court has also been inconvenienced by having to spend its time today dealing with an issue that should have been very clear from the orders made on 6 March.  Notwithstanding the fact that the husband may claim to be impecunious, I am not in a position to make any finding about that.  It seems to me that that is an issue that can be determined at trial.  In my view, this is a case where an order for costs should be made.  The quantum sought by the wife was $1800 and that includes counsel’s fees and solicitor’s fees.

7. The solicitor’s fees sound to me to be a little on the light side, but that is what is claimed so I am not going to challenge that and counsel is no doubt charging fees according to the amount that is within the scale.  The Independent Children’s Lawyer seeks the Legal Aid fee, which is a very modest $893, according to the sort of things that I see in this Court every day.  So on that basis both of those amounts are reasonable.  Accordingly, I will make the order.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 10 May 2013.

Associate: 

Date:  21 June 2013