Munro and Elmi (No 2)

[2012] FamCA 270

FAMILY COURT OF AUSTRALIA

MUNRO & ELMI (NO 2) [2012] FamCA 270

FAMILY LAW - COSTS

Family Law Act 1975 (Cth)

Charles and Charles [2007] FamCA 276

APPLICANT: Ms Munro

RESPONDENT: Mr Elmi

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGC 1749 of 2009

DATE DELIVERED: 30 April 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: By way of written submissions

SUBMISSIONS RECEIVED FROM

SOLICITOR FOR THE APPLICANT:	Howard Bear Legal Consulting Services
SOLICITOR FOR THE RESPONDENT:	Sharrock Pitman Legal

Orders

1. That the father pay one half of the mother’s costs by agreement and failing agreement as assessed pursuant to a schedule to the Family Law Rules 2004.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Munro & Elmi (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: DGC 1749  of 2009

Ms Munro

Applicant

And

Mr Elmi

Respondent

REASONS FOR JUDGMENT

1. On 9 March 2012, I made orders relating to a parenting dispute between the parties which varied orders that they had consented to on 23 February 2010 in the Federal Magistrates Court. 

2. It is significant to note that the orders I made were different from those to which they had consented in 2010. 

3. In the final orders, I provided for either party to make an application for costs.  By written submission dated 19 March 2012, the mother made that application for costs.

4. By written submission filed on 5 April 2012, the father opposed any order for costs being made at all.

5. This was a parenting dispute conducted over five consecutive days.  The duration occurred because of the number of witnesses, the significant cross-examination of each of the primary parties and the requirement that there be findings of fact in relation to a number of contentious issues.

6. The submission of the father ran to 35 pages.  It traversed many things but many of them were irrelevant to the issue that I have to determine.  The issue of what counsel said at pre-trial hearing in September 2011 was highlighted.  It was not what counsel said in September but what the father said in the witness box of his counsel’s statement that assists in the determination of this matter.  There was also a reference to the earlier proceedings in the Federal Magistrates Court.  It was submitted that in relation to the conduct of the proceedings by the father, what occurred in that court was relevant.  I reject that because it was not in evidence before me.  Much criticism was made in the submission about the conduct of the mother in the trial before me relating to the voluminous emails she sent the father.  To the extent that that was an attempt to rerun the case, I refer only to the matters that I ruled in my reasons for judgment.  Much was made of the statements about the parties wanting to end matters but…