Peters and Singer

[2014] FamCA 600

FAMILY COURT OF AUSTRALIA

PETERS & SINGER [2014] FamCA 600

FAMILY LAW – Adjournment of trial with costs.

Family Law Act 1975 (Cth)

APPLICANT: Mr Peters

RESPONDENT: Ms Singer

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 2157 of 2013

DATE DELIVERED: 24 June 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 24 June 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Agresta

SOLICITOR FOR THE APPLICANT: Melton Law Offices

THE RESPONDENT: No appearance

COUNSEL FOR THE RESPONDENT: Mr Arnold

SOLICITOR FOR THE RESPONDENT: Victoria Legal Aid

Orders

1. ALL APPLICATIONS ARE ADJOURNED AND FIXED FOR FINAL HEARING before the Honourable Justice Cronin as the fourth case in the monthly list commencing on 4 September 2014 not to be called before 10 am on 18 September 2014 as a two day matter.

2. Without leave of the Court, no further affidavit be filed.

3. That the respondent wife pay the husband’s costs fixed in the sum of $4550 as follows:

   (a)       $1000 forthwith; and

   (b)       The balance by no later than 4.00pm on 25 July 2014.

4. That the wife pay the Independent Children’s Lawyer’s costs fixed in the sum of $1998 as follows:

   (a)       $1000 forthwith; and

   (b)       The balance by 4.00pm on 25 July 2014.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Peters & Singer 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 MELBOURNE

FILE NUMBER: MLC 2157 of 2013

Mr Peters

Applicant

And

Ms Singer

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This is an application for costs by the applicant and also by the Independent Children’s Lawyer against the respondent wife.  I am putting these reasons on the transcript and court file because the wife has attended today unrepresented, and is really not in a position, in my view, to argue about her entitlements and obligations.  It is clear that this case has to be adjourned because of the serious nature of the proposals of both the father and the Independent Children's Lawyer. 

2. The wife’s position has been that she mistook the date, thinking that the hearing was to commence next month.  That makes me wonder about her truthfulness, bearing in mind that there has never been any suggestion of that before in circumstances where she has had two lawyers representing her at the first day hearing before me and since that time, had affidavits prepared and filed.  As I said, there are significant ramifications for these orders and the Court needs every help it can get in relation to a matter as serious as this. 

3. In respect of the costs application, s 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that, in this jurisdiction, each party shall bear their own costs unless there are circumstances to justify a departure from that principle.

4. If the Court finds there are circumstances to justify that principle, it must contemplate the matters set out in s 117(2A) of the Act. Through no fault of the husband nor the Independent Children's Lawyer, this trial has to be adjourned. The wife was represented by solicitors who, only a few days ago, sent to the Court a Notice of Ceasing to Act. There may be some doubt as to whether the wife received that document because of the email address that is shown in it. But, on any view, I should conclude that they were certainly prepared to advise her that the trial was on in June. In my view, there are circumstances, therefore, that justify a departure from the principle that each party pays their own costs.

5. Section 117(2A) has a number of considerations, one of which is the financial circumstances of each of the parties. Whilst I am not at all clear on what the wife’s financial position is, she is now married and has maintained vigorously today that her husband, who in his affidavit was described a homemaker, is indeed fully employed. Whilst it is clearly not his obligation to pay her costs, he seems very much embroiled in these proceedings because he has filed an affidavit. There are legal aid considerations here which has precipitated the application by the independent children's lawyer. Having regard to the obvious funding problems of Victoria Legal Aid, I can see absolutely no reason why the community should bear the costs of proceedings that are thrown away because of an error on the part of one of the litigants.

6. In terms of the error, as I said, it is hard to understand how that could have occurred in this environment, bearing in mind all of the preparation that had been done.  Whilst the other considerations are not entirely relevant, one of the important parts that should be taken into account is the fact that the husband has geared himself up for a hearing.  He has had counsel briefed, as well as having his instructing solicitor here today. The same should be said of the Independent Children's Lawyer.  In my view, this is a case where the costs should be borne by the wife.  An application was made for a total of $4750 on the husband’s part.  Doing the best I can on the scale, I should reduce that by $200, and the fee will be $4550.  Independent Children's Lawyer costs are those thrown away, and they are $1998 and that seems to me to be eminently reasonable in the circumstances. 

   ORDERS DELIVERED

7. The matter is otherwise adjourned to September and the proposed hearing date at this stage is 18 September.  I say proposed date because this will be the fourth case in the list that commences on 4 September, but it will not be before 18 September.  And, looking at the diary, it is most likely that it will start on the 18^th.  I certify for the attendance of counsel.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 24 June 2014.

Associate: 

Date:  25 July 2014