Pelster & Pelster

FEDERAL CIRCUIT COURT OF AUSTRALIA

Pelster & Pelster [2020] FCCA 3072

File number(s):	MLC 2804 of 2016
Judgment of:	JUDGE BURCHARDT
Date of judgment:	13 November 2020
Catchwords:	FAMILY LAW – COSTS – Ruling on costs where one party wholly unsuccessful
Legislation:	Family Law Act 1975 (Cth) s.117
Cases cited:	Spencer & Spencer (No.3) [2020] FamCAFC 145
Number of paragraphs:	12
Date of last submission/s:	4 October 2020
Date of hearing:	15 September 2020
Place:	Dandenong
Counsel for the Applicant	Self-Represented
Counsel for the Respondent	Ms Charak
Advocate for the Independent Children’s Lawyer	Mr Lynch

ORDERS

MLC 2804 of 2016

IN THE MATTER OF PELSTER

BETWEEN:

MR PELSTER

Applicant

AND:

MS PELSTER

Respondent

ORDER MADE BY:	JUDGE BURCHARDT
DATE OF ORDER:	13 NOVEMBER 2020

THE COURT ORDERS THAT:

1.The Applicant Husband pay the Respondent Wife’s costs fixed at $2,851

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

REASONS FOR JUDGMENT

JUDGE BURCHARDT

1. This is a costs application by the mother following orders that I made on 15 September 2020.  Relevantly I dismissed the father’s application to revisit the question of X’s schooling as sought in his application filed 3 August 2020.  I noted that it was not clear if the father was in fact prosecuting his claim for a change of residence for the child X but I also noted that X, who is now 14 years old, had expressed a clear view to the Independent Children’s Lawyer that she did not wish to live with the father.  In summary I found that there had been no material change of circumstances since the final orders made in this matter as recently as April 2020. 

2. I made an order for written submissions as to costs and both parties have filed such submissions.

3. The position as to costs is contained in section 117 of the Family Law Act 1975 (Cth). The ordinary rule is that each party bears their own costs (section 117(1)). The court may, however, if it is of the opinion that there are circumstances that justify it in doing so, make, subject relevantly to subsection (2A), such order as to costs as it considers just (section 117(2)).

4. Turning to the matters in section 117(2A), the first is the financial circumstances of each of the parties to the proceeding. The mother’s written submissions assert that she works as a temporary casual office worker, has had very little work since April and is not earning a wage. She is currently receiving JobKeeper payments of $750 per fortnight and is not in receipt of Legal Aid. The father’s responding submissions (it should be noted that the court does not have financial statements from either party) relevantly asserts that he continues to support the mother by paying the calculated child support payments that are nearing $3,300 per month, being 44 per cent of his take home wage.

5. Accepting those figures as a concession against interest,…