Mortimer & Grealy (Costs)

[2009] FamCAFC 75

FAMILY COURT OF AUSTRALIA

MORTIMER & GREALY (COSTS) [2009] FamCAFC 75

FAMILY LAW – COSTS - APPEAL – APPEAL FROM FEDERAL MAGISTRATE – INTERIM ORDERS – Where the appeal was dismissed but was not entirely without merit

FAMILY LAW – COSTS – No order as to costs 

Family Law Act 1975 (Cth)

APPELLANT: MS MORTIMER

RESPONDENT: MR GREALY

APPEAL NUMBER: NA 17 of 2009

FILE NUMBER: TVC 1256 of 2008

DATE DELIVERED: 29 April 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: May J

HEARING DATE: 28 April 2009

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 5 March 2009

LOWER COURT MNC: [2009] FMCAfam 236

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Anderson

SOLICITOR FOR THE APPELLANT: Klimek & Co

COUNSEL FOR THE RESPONDENT: Mr Fellows

SOLICITOR FOR THE RESPONDENT: Bevan & Griffin

Orders

1. That there be no order as to costs.

IT IS NOTED that publication of this judgment under the pseudonym Mortimer & Grealy is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 17 of 2009
File Number: TVC 1256 of 2008

MS MORTIMER

Appellant

And

MR GREALY

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. At the conclusion of this matter the judgment was delivered and orders made. An application was made on behalf of the respondent father for costs.  Mr Fellows, counsel for the respondent, made it clear in his submissions that it was the preference of his client not to make an application for costs but he was, of course, obliged to because the father is in receipt of Legal Aid.

2. Mr Fellows also told me that the father is in employment, as described in his affidavits. His income is about $42,000 per annum but he has no assets of any significance.

3. The application is resisted on behalf of the mother, the appellant.  It was submitted that her current financial circumstances are poor and she would not be able to meet an order for costs. 

4. It could not be said that this appeal was entirely without merit.  The subject matter relates to what is in the best interests of a child, the mother wishing to relocate to Perth.

5. The only matter which could be said to be against the mother in a consideration of costs is the contents of the letter sent by the solicitors for the father on 24 October 2008.  In that letter the solicitor said this:

   Our client has contacted the Family Relationship Centre for the purpose of arranging Counselling but has been told there is a six (6) to eight (8) week wait for counselling.  You have also told our client that you and [C] are leaving on 1^st December 2008.

   It was submitted by Ms Anderson, counsel for the mother, that going to counselling would have been futile. 

6. In addition, it was said by the solicitors:

   He is quite willing to have [C] remain with him whilst you travel to Perth to sort out your relationship with [J].  He does not consent to you taking [C] with you and attempting to destroy the relationship that he has with his son. 

   We advise that should you not agree to leave [C] here, or alternatively, indicate that you intend to take [C] with you permanently; our client will have no other alternative than to bring an Urgent Application in the Federal Magistrates Court for an Injunction/Restraining Order preventing you from removing the child from this jurisdiction.  If however you continue to do so, our client will have no other alternative than to bring an Application for a Recovery Order entailing further costs to you and the costs and inconvenience of having [C] move to Western Australia and then return to Townsville at short notice.

   And in the final paragraph:

   We hereby put you on notice that unless we hear further from you confirmation, within the next 14 days, that you will leave [C] in Townsville to live with his Father whilst you sort yourself out in Perth, our client will have no other alternative than to bring an Application on an urgent basis to the Court. 

7. In many circumstances that letter would almost automatically result in the Court making an order for costs, however, this matter involves a mother who is now in poor financial circumstances and the central issue in this being what is in the best interests of the child.

8. The letter put the mother on notice of what the father intended to do, which he did, however, there are otherwise no particular features of this case which would justify an order for costs. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate: 

Date: 12 May 2009