Paige & Tzu (No 2)

Case [2023] FedCFamC1F 340

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Paige & Tzu (No 2) [2023] FedCFamC1F 340

File number: MLC 9235 of 2022
Judgment of: WILLIAMS J
Date of judgment: 5 May 2023
Catchwords: FAMILY LAW – COSTS – Application for child to be placed on watch list after the mother travelled with the child overseas in breach of final consent orders – Application for costs – Consideration of relevant principles under s 117 provisions – indemnity costs – mother ordered to pay father’s costs on a party/party basis
Legislation: Family Law Act 1975 (Cth) ss 60CC, 117
Cases cited:

Buckley & Buckley [2013] FamCAFC 150

In the Marriage of I & I (No 2) (1995) 22 Fam LR 557

Lenova & Lenova (Costs) [2011] FamCAFC 141

Worth & Worth (No.2) [2019] FamCAFC 126

Division: Division 1 First Instance
Number of paragraphs: 69
Date of hearing: 28 March 2023
Place: Melbourne
Counsel for the Applicant: Ms Bastick
Solicitor for the Applicant: Cahill & Rowe Family Law
Solicitor for the Respondents: Litigant in person
Counsel for the Respondents: Ms Mariole
Solicitor for the Respondents: Coulter Legal

ORDERS

MLC 9235 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR PAIGE

Applicant
AND:

MS TZU

First Respondent

MR B PAIGE

Second Respondent

MS C PAIGE

Third Respondent

order made by:

WILLIAMS J

DATE OF ORDER:

5 MAY 2023

THE COURT ORDERS THAT:

1.The mother’s oral application for the discharge of order 3 of the Orders made by the Hon. Justice Christie on 10 March 2023 (placing the child X born 2018 on the watch list) is dismissed.

2.Order 1 & 2 of the Orders made by the Hon. Justice Christie on 10 March 2023 are discharged.

3.The mother pay the father’s costs and disbursements of and incidental to the father’s Initiating Application filed 28 March 2023 on a party/party basis fixed at $11,646.

4.The mother pay the costs referred to in paragraph 3 hereof to the father’s solicitors on his behalf, contemporaneously with the settlement of the sale of the property situated at F Street Suburb G, or in the event the settlement has occurred, within 7 days of these orders.   

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Paige & Tzu has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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AGLC
Paige & Tzu (No 2) [2023] FedCFamC1F 340
Case
[2023] FedCFamC1F 340
Decision Date

CaseChat Overview and Summary

In the matter of Paige & Tzu (No 2), the parties were in dispute over two key issues, which were brought before the Court. The first issue was whether the child should remain on the Airport Watch List for two years, as per an ex parte order made by Justice Christie on 10 March 2023. The second issue was whether the mother should be held responsible for the costs incurred by the father and the paternal grandparents due to the mother's breach of the parenting orders.

The legal issues that the Court had to decide upon included whether the mother's breach of the parenting orders warranted the continuation of the Airport Watch List for the child and whether the mother should bear the financial burden of the costs incurred by the father and paternal grandparents due to her actions. The Court also had to determine the appropriate quantum of costs to be awarded to the father.

After considering all the factors and evidence presented, the Court ruled that the mother's conduct was a breach of the orders, but the child was returned to Australia after a few days. The Court also noted that the mother had a modest financial position, even after receiving her share of the proceeds from the sale of a property. The Court decided not to order indemnity costs against the mother, but instead opted to order the mother to pay the father's costs on a party/party basis. The Court fixed the father's costs at $11,464, which is the midpoint of the estimated costs range, and ordered that these costs be paid contemporaneously with the settlement of the sale of the property or within 7 days of these orders.

Orders

Orders of the court

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Background

Background to the litigation

The parties are in dispute about two discrete issues. First, whether the child should remain on the Airport Watch List for a period of two years, in accordance with an ex parte order made by her Honour Justice Christie on 10 March 2023. Secondly, whether the mother should pay the costs incurred by the father and the paternal grandparents because of the mother’s breach of the parenting orders.Background The father is aged 32 and is an Australian citizen. The mother is aged 36 and was born in Country E. She is a Country E citizen and also holds permanent residency status in Australia. The parents commenced a relationship in 2014, married in 2018 and separated in January 2022. Subsequent to the parental separation the child lived with the paternal grandparents from around August 2022 until February 2023. The father commenced proceedings in Division 2 of this Court on 19 August 2022. The paternal grandparents joined the proceedings on 26 October 2022. Following a mediation between all parties on 14 February 2023, agreement was reached for the child to live with the mother, spend time with the father each alternate weekend and during holidays and spend time with the paternal grandparents each Thursday overnight for 2023, with their time to move to alternative weeks from 2024 onwards. On 21 February 2023, final parenting orders were made by consent reflecting the agreement reached at mediation. The parenting orders also prescribe the arrangements for the child’s future interstate and international travel and for the child’s Australian passport and Country E travel documents to be held by the father. Order 45 of the parenting orders provides that if either parent seeks the child travel interstate or overseas, then 60 days prior notice must be provided to the other parent for international travel and 14 days’ notice for interstate travel. The travelling parent is also required to provide details of the proposed trip to the other parent, including flight, accommodation and contact details. Order 46 of the parenting orders provides for the mother to return the child’s Australian passport and Country E travel documents to the father’s solicitor’s office on or before 28 February 2023. Order 49 of the parenting orders regulates interstate travel for the child with the paternal grandparents. There are no orders providing for the child to travel internationally with the paternal grandparents. Because the mother failed to comply with paragraph 46 of the parenting orders on 1 March 2023 and again on 3 March 2023, the father’s solicitor wrote to the mother’s solicitor seeking the urgent return of the documents. In March 2023, the mother’s solicitor responded and advised the mother was not prepared to return the child’s passport and travel documents to the father and proposed the documents be held by an independent party. The letter sent by the mother’s lawyers included the following:We wish to make it very clear that our client fully intends on complying with the balance of the Final Parenting Orders, including the provisions which deal with interstate and overseas travel. Our client has no intention of abducting the child or travelling anywhere without the consent of the father.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Although the mother breached recent consent orders, presumably instructed her solicitors to write the letter of 6 March 2023, and failed to respond to offers to resolve the application, on a finally balanced consideration of all factors relevant to indemnity costs, I am not persuaded to make an order for indemnity costs. Whilst the mother’s conduct was a breach of the orders, ultimately the child was returned to Australia after a few days and she advised the father in early 2023 prior to his pursuing his “Hague” application later that day. Furthermore the financial position of the mother will remain modest, even after she receives her share of the proceeds of sale of the property. I will order the mother to pay the father’s costs on a party/party basis.CONCLUSION In the Outline of Case document filed on behalf of the father, he sought costs against the mother in the sum of $18,936.50, calculated on an indemnity basis. As an alternative position, his counsel sought party/party costs between $9,992 and $12,937.22 calculated according to the relevant scale. The mother did not make any submissions about quantum. In order to avoid further litigation and legal costs about the appropriate quantum of party /party costs, I propose to fix the father’s costs at $11,464 which is the midpoint of the estimated costs range. The costs will be payable contemporaneously with the settlement of the sale of the F Street, Suburb G property, or if settlement has taken place within 7 days of these orders. I will make orders accordingly.

Ratio Decidendi

Legal Principle Established

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