O’Boyle and Salt (No 2)

[2014] FamCA 616

FAMILY COURT OF AUSTRALIA

O’BOYLE & SALT (NO 2) [2014] FamCA 616

FAMILY LAW – COSTS – Application for costs by the mother – where an application for adjournment was made by the father – where no notice given of the father’s intention to apply for an adjournment – Father should have sought advice in relation to his adjournment application and should have notified the other parties of his circumstances – Father to pay the wife’s costs to rectify the position where the grant of Legal Aid for the mother was reduced by the costs associated with the father’s adjournment  

Family Law Act 1975 (Cth) s 117

APPLICANT: Ms O’Boyle

RESPONDENT: Mr Salt

FILE NUMBER: (P)NCC 1801 of 2012

DATE DELIVERED: 5 August 2014
In Chambers

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: Written submissions

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Joplin Lawyers

RESPONDENT: In person

Orders

1. That the respondent Mr Salt pay to the applicant Ms O’Boyle the sum of TWO THOUSAND EIGHT HUNDRED AND FIFTY-SEVEN DOLLARS ($2857) for her costs thrown away on 14 January 2014, such costs to be paid within two months from the date of this order.

IT IS NOTED that publication of this judgment by this Court under the pseudonym O'Boyle & Salt (Costs) 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 NEWCASTLE

FILE NUMBER: (P)NCC 1801 of 2012

Ms O’Boyle

Applicant

And

Mr Salt

Respondent

REASONS FOR JUDGMENT

1. This is an application for costs by the mother, Ms O’Boyle.

2. The costs relate to an application for an adjournment made by the father, Mr Salt, on Monday 13 January 2014.  That was the first of three days allocated for a final hearing.  The application was opposed by the mother.  The Independent Children’s Lawyer did not support or oppose the application.

3. The application was granted for reasons delivered ex tempore on that day.

4. The hearing dates had been allocated on 20 September 2013.  The father was both present at Court and legally represented.

5. On 20 December 2013 the solicitor previously representing the father filed a Notice of Ceasing to Act. 

6. On 24 December 2013 the father’s mother sent an email to all parties and my associate:

   I cannot afford a barrister and so am applying [for] Legal Aid to help me in Court.

7. I infer although there was no evidence to that effect, that the father had not given his instructing solicitor funds for the hearing. 

8. The father forwarded a case outline document to the Court and obtained advice through my associate of the email addresses of the other two parties for provision of that document to them.

9. The father appeared on the first day of trial representing himself.  On that morning he advised the Court that he had filled in and signed a Legal Aid application but had not yet sent it in.  He had expected to ring the barrister who had been previously briefed and have him appear, without notice, that morning.  Unsurprisingly the barrister was unavailable.

10. The possibility of an adjournment and its consequences were explained to the father and he did make the application.

11. On behalf of the mother it is submitted, quite reasonably, she was adversely affected by the father having given no notice of his intention to apply for an adjournment.

12. The mother had a grant of Legal Aid.  She was present at Court with her solicitor and counsel.  Their costs, including travel for the solicitor from V Town to Newcastle, were later deducted from the mother’s grant of aid.

13. The costs were itemised in the written submission provided on behalf of the mother.  There was no submission in response by the father:

    Barrister  $1,300.00

    Solicitor  $1,557.05

    $2,857.05

14. The costs were apparently deducted from the grant of Legal Aid for the mother and form part of an overall contribution required from her by Legal Aid of $4,729.85.

15. The general principle set out in s 117 of the Family Law Act 1975 (Cth) is that each party shall bear his or her own costs.

16. If the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, having regard to defined considerations, make such order as to costs as the Court considers just.

17. In this matter the circumstances set out above justify a consideration of an order in favour of the applicant mother. Accordingly I consider the following matters pursuant to s 117(2A) of the Act.

(a)      The financial circumstances of each of the parties to the proceedings

1. The father was not in paid employment.  He was negotiating a compensation claim arising from an injury at work at the time the matter was adjourned.

2. A contributing factor to the adjournment was a tribunal hearing in Queensland due to take place on Friday 17 January 2014.  The father was flying to Queensland to participate. 

3. During the course of the hearing on the adjourned dates, the father referred to that litigation and the rejection by him of an offer to settle. Negotiations were to continue.  Accordingly, there will likely be a lump sum payable to the father in due course, if not already paid.

(b)      Whether any party to the proceedings is in receipt of assistance by way of legal aid

1. The mother had a grant of legal aid with the contribution referred to.  The father obtained a grant of legal aid, after the adjournment, for the four days of hearing.

(c)      The conduct of the parties to the proceedings

1. The father should have sought advice about the consequences of an adjournment prior to the 13 January 2014 hearing.  If he had, he would have known that costs might be ordered.  He should have advised the other parties and the Court that he would be unrepresented, had not yet applied for legal aid and would likely not be ready.  Discussions could have taken place.  An adjournment might have been agreed.

2. The applicant mother could not have been expected to assume that the matter might be adjourned, nor to take the risk of appearing unrepresented if she suspected it.

3. For those reasons I consider that an order for costs should be made to rectify the position where the grant of Legal Aid for the mother was reduced by the costs paid in respect of 13 January 2014.

4. An order is made accordingly with time to pay.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered in Chambers on 5 August 2014.

Associate:

Date:  5 August 2014