Pickering and Pickering (No 4)

[2010] FamCA 981

FAMILY COURT OF AUSTRALIA

PICKERING & PICKERING (NO. 4) [2010] FamCA 981

FAMILLY LAW – COSTS – where the father has filed numerous contravention applications –where the mother has incurred significant solicitor’s costs and counsel fees – where the father’s lack of preparation resulted in the waste of half a day of the scheduled Court hearing – where the father has been wholly unsuccessful in the proceedings – orders that the father pays part of the mother’s legal costs

Family Law Act 1975 (Cth) ss 70NCA, 70NCB &117

APPLICANT: Ms Pickering

RESPONDENT: Mr Pickering

FILE NUMBER: ADF 1919 of 2005

DATE DELIVERED: 29 October 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 29 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Eid

SOLICITOR FOR THE APPLICANT: Nicholls Gervasi & Co

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT:

Orders

1. The husband pay the wife’s costs fixed in the sum of TWO THOUSAND DOLLARS [$2,000.00] payable ONE THOUSAND DOLLARS [$1,000.00] within three [3] months from today and the balance of ONE THOUSAND DOLLARS [$1,000.00] within six [6] months from today.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1919 of 2005

MS PICKERING

Applicant

And

MR PICKERING

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is an application by the mother for an order for costs in relation to the contravention proceedings which I have heard this week.  Section 70NCA applies in this case and the provisions, therefore, of section 70NCB in relation to costs apply.  Section 70NCB(1) says:

   “The Court may make an order that the person who brought the proceedings pay some or all of the costs of another party or other parties to the proceedings.”

2. That section applies where there was a contravention alleged and the Court does not find that the respondent committed the contravention of the primary order.  Those facts apply in this case, as I have heard and dismissed the contravention proceedings or upon the contravention proceedings commencing, the father has withdrawn those contraventions. 

3. I accept the submissions on behalf of the mother that she has incurred significant solicitor’s costs and counsel fees in attendance in preparation for the matter being listed before me.  The matter was listed before me to commence on Wednesday and to proceed on Thursday and, if necessary, to conclude today.

4. Significant in the matter is that when the matter was in the process of being heard by me on Wednesday, the father indicated that he had not made any arrangements for the care of his daughter and was therefore required to leave the Court at 2.15 pm in order to collect her from school.  That meant that the Court was, therefore, adjourned for the afternoon.  The matter has, therefore, continued on into this morning, which would not otherwise have been the case.  That is a significant factor which the Court will bear in mind when considering the factors set out in section 117.

5. It is acknowledged that section 117 provides for the parties to each bear his or her own costs, subject to the provisions of subsection (2).  Subsection (2) of section 117 makes it clear that if the Court is of the opinion there are circumstances that justify it in doing so, the Court may, subject to the various subsections and the Rules of Court, make an order as to costs and security for costs as the Court considers just.

6. There are matters required to be considered in subsection (2A). 

7. Subsection (a);  is the financial circumstances of each of the parties to the proceedings.  The Court has before it Statements of Financial Circumstances filed by each of the parties this year and submissions on behalf of the parties.  The father’s Statement of Financial Circumstances, filed in Court, indicated that he was then in receipt of some form of social security.  He says from the bar table today that for about six weeks he has not been receiving it and he is in the process of making an application for it.

8. The Court’s attention has been drawn to the orders by way of property settlement made in October 2009, which was altered.  The husband received approximately, $190,000 in December 2009.  His affidavit, on Court file, earlier this year, accounts for some $70,000 of that money with the rest being spent on living expenses and what is described as debt consolidation.  The husband says, from the bar table, that he is currently living on credit card. 

9. The mother’s financial circumstances are set out in her Financial Statement.  She is not in receipt of any income of significance and is residing with her partner who assists her with the liability to pay the child support to the father.  But she has not been paying it recently.

10. I do not understand that any party is in receipt of any Legal Aid so subsection (b) is not relevant.

11. Subsection (c);  is the conduct of the parties in relation to the proceedings.  To that extent the conduct of the father in not making any arrangements for the care of his daughter nor informing the Court of any difficulty until the proceedings had commenced is a significant factor, particularly, in relation to the costs incurred for that half day. 

12. Subsection (d);  relates to whether proceedings were necessitated by the failure of a party to comply with previous orders.  That is not relevant to this matter. 

13. Subsection (e);  is whether any party to the proceeding has been wholly unsuccessful in the proceedings.  In this matter the father has been wholly unsuccessful in that all of the contravention proceedings have either been withdrawn or dismissed. 

14. Subsection (f);  is not relevant as I am not aware of any offers being made. 

15. Subsection (g);  is any such other matters, as the Court considers relevant.  The matters that the Court considers relevant in these proceedings is the significance of the provisions of the Family Law Act 1975 (Cth) so far as it deals with contraventions and, in particular, the section which highlights the fact that if the contraventions are dismissed then the Court may consider making a costs order.

16. In this case the significant matters to be balanced up are the financial circumstances of the parties, the wasted time of the half day of Court hearing which had previously been set aside and the fact that the father has been wholly unsuccessful in the proceedings. 

17. Taking into account the financial circumstances of the father, it is not appropriate to make an order that he pay the mother’s costs of all of the proceedings on the solicitor/client basis which indicated that the mother has incurred costs of approximately $8,000, being some $2,300 for preparation and some $5,700 counsel fees.  It is, however significant that a portion of the counsel fees, extending the matter into today, was brought about by the actions of the father.  It is also significant that all of the contravention proceedings have been dismissed.

18. Taking all of those matters into account, I consider that all the circumstances justify the Court making an order for costs and it would be just to order that the husband pay some of the wife’s costs but provide for him to have time to make arrangements to either borrow the funds or commence employment or undertake business, so that he can pay the funds.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe.  

Associate: 

Date:  4 November 2010