N & M

[2005] FamCA 233

[2005] FamCA 233

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA

AT MELBOURNE   Appeal No. SA 65 of 2003

File No. MLF 1232 of 2003

IN THE MATTER OF:

N

Appellant

- and -

M

Respondent

REASONS FOR JUDGMENT
WRITTEN SUBMISSIONS AS TO COSTS

BEFORE:                  Bryant CJ, Rowlands and May JJ
HEARD:  By written submissions
JUDGMENT:             7 April 2005

N and M SA 65 of 2003

Coram: Bryant CJ, Rowlands and May JJ

Date of Hearing: By written submissions
Date of Judgment: 7 April 2005

CATCHWORDS Family Law – Costs – Where appeal wholly unsuccessful – Whether Court should make a costs order against the appellant – Family Law Act, section 117(2A)

Bryant CJ and May J:

1. On 21 October 2004 we delivered reasons for judgment in this matter, at which time we made orders for the filing of written submissions on issues of costs arising out of the appeal.  These reasons are concerned with that issue.

2. Written submissions were filed on behalf of the respondent mother on 1 November 2004.  The appellant father has not filed submissions. 

3. The father has been wholly unsuccessful in the appeal and we note the trial judge’s comments in paragraph 22 of the reasons for judgement as to the position of the parties:

   “So the mother is in a very troubled situation.  She is reliant almost exclusively on social security for provision of economic support for herself and her five children.  N does the best he can in providing economic support but the best he can provide is not very much.  He is a trained chef but he is a man with a drug problem.  Much of the time his problem has left him out of the workforce.  He has gone back into the workforce but he is only capable, at least at the present time, of earning extremely modest income.  He has no apparent capital backing.” 

4. The submissions filed on behalf of the mother assert that the mother has funded the appeal from a grant of legal assistance from Victoria Legal Aid and, it seems, she has now exhausted her legal aid cap. She is in modest financial circumstances, and has the care of five children. She is reliant upon Centrelink benefits and receives nominal financial support from the father. The mother travelled from Queensland to Victoria to defend the appeal. She says that the conduct of the father has been such as to protract the proceedings, that he has failed to comply with the Family Law Rules 2004, and that the appeal had little prospect of success. The mother therefore seeks an order that the father pay her costs of and incidental to the appeal, in the sum of $1,946.

5. The father’s financial position is unclear and we have not received written submissions from him.

6. We note the submissions made on behalf of the mother as to the alleged conduct of the appellant father. However, notwithstanding that the father has been unsuccessful we note his Honour found the father’s evidence sincere and many of the things he said to be profound. The decision was a difficult one. There is nothing to suggest that the father was not bona fide both before the trial judge and in relation to the appeal. We agree with the trial judge that relocation cases are one of the hardest situations the court must deal with and in the circumstances, and in having regard to the matters in sub-section 117(2A), we see no reason to depart from the principle in section 117 of the Family Law Act that each party should bear their own costs.

7. We therefore make no orders for the costs of and incidental to the appeal.

Rowlands J: 

1. Accepting as I do the facts and circumstances as set out by the majority I would order the father make a contribution to the mother’s costs; this in the sum of $1,000 payable at the rate of $10 per week.

2. The father chose to initiate the appeal in respect of which he was wholly unsuccessful.  The mother has the children, she is on benefits and substantially out of pocket by having to travel from Queensland to defend the appeal successfully.  The father failed to avail himself of the opportunity to clarify his present financial position and should not gain any benefit from that course of action.

Mother’s application for costs dismissed.

I certify that the preceding nine paragraphs are a true copy of the reasons for judgment delivered by this Honourable Full Court
Kristen Murray

Associate