Oberon and Barstow (No.2)

[2012] FMCAfam 860

FEDERAL MAGISTRATES COURT OF AUSTRALIA

OBERON & BARSTOW (No.2) [2012] FMCAfam 860

FAMILY LAW – Costs.

Family Law Act 1975, ss.117(2) and 117(2A)
Federal Magistrates Court Rules2001, r.21.02

Applicant: MR OBERON

Respondent: MS BARSTOW

File Number: BRC 563 of 2007

Judgment of: Pascoe CFM

Hearing date: 6 July 2012

Date of Last Submission: 6 July 2012

Delivered at: Sydney

Delivered on: 23 August 2012

REPRESENTATION

Counsel for the Applicant: Mr Othen

Solicitors for the Applicant: Mullane & Lindsay

Counsel for the Respondent: Self-represented

Solicitors for the Respondent: Self-represented

ORDERS

1. The father shall pay the mother costs in the sum of $2,500.00 in respect of the hearing on 1 June 2012.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

BRC 563 of 2007

MR OBERON

Applicant

And

MS BARSTOW

Respondent

REASONS FOR JUDGMENT

1. This matter was listed for final hearing on 7 March 2012 and proceeded over a period of 2 days. On 1 June 2012 when final judgment was due to be handed down, the Applicant advised the court that he had just accepted a position in (omitted) which required him to spend time both in (omitted) and in Perth for work purposes. No prior notice had been given to the Respondent.

2. Because of the changed circumstances I made Interim Orders on 1 June 2012 and the parties returned to court on 6 July 2012.

3. At the end of the proceedings the respondent made an application for costs which was narrowed to costs for the day on which she expected to receive final orders and preparation time for that day. Mr Othen on behalf of the Applicant conceded that a claim for such costs “to scale” was not unreasonable.

4. Section 117(2) of the Family Law Act 1975 gives the court discretion in relation to the making of a costs order.

5. In exercising discretion I am required to consider s 117(2A) of the Act. I note that there was no independent Children's Lawyer appointed in this case.

6. Turning first to the financial circumstances of the parties, the applicant father has recently secured full time employment at a salary in excess of $100,000 per annum. The respondent mother does some part-time work as an (omitted) and also receives Centrelink benefits. X is the only child of the parties. The father has purchased a home in Wollongong and the mother currently resides at X’s maternal grandparent’s home in (omitted), Sydney. The mother is the primary carer. No further detailed financial information was presented on behalf of either party.

7. Neither of the parties received legal aid funding (s 117(2A)(b)).

8. Turning to the conduct of the parties in relation to the proceedings. It is quite clear that the father’s situation changed dramatically when he accepted his new position. This was only announced when the parties appeared at Court for Final Orders. There was no prior notice to the mother of this substantial change.

9. I find that there is no evidence that the proceedings were necessitated by the failure of a party to comply with previous orders (s 177(2A)(b)).

10. Neither party to the proceedings was wholly unsuccessful and to the credit of the parties much of the matter was in fact resolved by negotiation. Accordingly sections 117(2A)(e) and (f) are not relevant.

11. Section 117(2A)(g) allows the Court to have regard to such other matters as the Court considers relevant. I have already mentioned the sudden major change to the father's circumstances which necessitated the continuation of these proceedings and the lack of prior notice to the mother. The mother incurred costs and the inconvenience of a further hearing during which, due to her financial circumstances, she was unrepresented.

Conclusion

1. In light of the factors outlined above I am of the opinion that the father should pay the mother's costs in respect of the hearing on 6 July 2012 and for preparation in relation to that hearing. The mother did seek to present some bills from her lawyers in this regard but there was not sufficient specificity for the Court to rely on these documents. Mr Othen for the Applicant put to me that Ms Barstow was entitled only to scale costs whereas Ms Barstow wanted her actual costs paid. In all the circumstances and having regard to rule 21.02(2) of the Federal Magistrates Court Rules2001 I order that the father pay the mother costs in the sum of $2,500.00.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Pascoe CFM

Date:  23 August 2012