Pelster & Pelster
[2020] FCCA 3072
•13 November 2020
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
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.
I made an order for written submissions as to costs and both parties have filed such submissions.
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)).
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.
Accepting those figures as a concession against interest, his monthly take home wage must be of the order of $7,500 per month. I note that the father says that he is supporting his wife and her children as the wife is currently out of work and he asserts that he is unable to pay the mother’s costs. On any view of the matter, the father is much better resourced financially than the mother.
The next matter to consider is the question of Legal Aid (section 117(2A)(b)). Plainly neither party is in receipt of such aid.
The next matter to consider is the conduct of the parties to the proceeding (section 117(2A)(c)). In my view there is nothing relevant in the conduct of either party as to their actual conduct of the proceeding that calls for any comment one way or the other.
On the father’s case the proceedings were necessitated by the failure of the mother to comply with her obligations under the April 2020 orders to ensure X’s schooling progressed in an appropriate manner. As I observed in my reasons for judgment given orally on 15 September 2020, the Independent Children’s Lawyer has spoken to X who conceded that she struggled at first when the COVID restrictions came in but her results had now substantially improved. It was also noted that the Department of Health and Human Services contact with the educational authorities suggested nothing untoward. It is, however, the case that X’s results apparently dipped at the start of the year.
In my view, however, this did not arise from any failure on the part of the mother to properly comply with her obligations under the orders. It was a happenchance arising out of the particular circumstances of the COVID pandemic, (section 117 (2A)(d)).
The father has plainly been entirely unsuccessful in the proceedings. Indeed as I observed in my reasons for judgment, the father’s position was, in my view, fatally flawed. Not only as it emerged was there nothing of any real concern about X’s education to consider, the question of the supervision of X’s education on an ongoing basis is not a matter for the court. As I observed at the time it is a matter for the parents and for the relevant education authorities including, of course, X’s teachers. The father’s endeavour to reagitate the matter to deal with what, if he had only waited and been somewhat less precipitate, was a minor glitch in X’s educational development, would have made it clear to him that no application was appropriate (section 117 (2A)(e)).
Having said all this it must be noted that the position of the Independent Children’s Lawyer at the hearing in September 2020 was more nuanced. Mr Lynch proposed that there be further steps taken to, as it were, progress X’s education. I did not, however, accede to that position and for the reasons given dismissed the application.
In my view, balancing all these relevant considerations together, it is clear that the husband should pay the wife’s costs fixed in the sum that she claims which is the sum of $2,851 being fixed by the court’s relevant fee schedules. The husband has been entirely unsuccessful in this application. The application was, in my view, while no doubt well-intentioned as he saw it, completely misconceived. I note that the father has said that he is in straitened circumstances financially and I am prepared to accept that this may be so, but as the Full Court said in Spencer & Spencer (No.3) [2020] FamCAFC 145 at [128]:
“Impecuniosity ought not be a bar to a costs order where meritless application puts the other party to expense”
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Associate:
Dated: 13 November 2020
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