Pryor and Judd

[2017] FamCA 55

FAMILY COURT OF AUSTRALIA

PRYOR & JUDD [2017] FamCA 55

FAMILY LAW – COSTS – Between parties – Where the mother filed all relevant material whereas the father had filed none by the first day of trial – Where the mother has the full time care of the subject child – Where the mother did not have the benefit of a grant of Legal Aid –Where the father or his new partner have not complied with previous orders – Where the mother is entirely successful with her application and the father entirely unsuccessful – Ordered the father pay 50 per cent of the mother’s costs of final hearing

Family Law Act 1975 (Cth), ss 68B, 117

APPLICANT: Ms Pryor

RESPONDENT: Mr Judd

FILE NUMBER: (P)NCC 3004 of 2014

DATE DELIVERED: 9 February 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 22 & 23 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Bithrey
SOLICITOR FOR THE APPLICANT:	Powe & White Family Lawyers

THE RESPONDENT: In person on the first day and no appearance thereafter

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Carty
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Krstina Wooi

Orders

1. The Respondent father pay to the Applicant mother within three months of the date of these Orders 50 per cent of her costs of final hearing as agreed or assessed.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC3004/2014

Ms Pryor

Applicant

And

Mr Judd

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application by the Applicant Ms Pryor for the costs of final hearing to be paid by the Respondent Mr Judd.

2. The Application for Costs was contained in the Amended Initiating Application of the Applicant mother filed 21 December 2015.

3. The final hearing commenced on 22 August 2016 and was concluded within two days.  Four days had been allocated for the final hearing.

4. Orders and Reasons for Judgment were delivered on 28 September 2016.

5. The Respondent father participated briefly in the proceedings on the afternoon of the first day.  The matter otherwise proceeded undefended.

6. In those circumstances an Order was made[1] that the father file within 28 days any written Response on which he relied to the Application by the mother for her costs.  There was nothing filed in accordance with these orders or at all.

   [1] Order 6 of the Orders made 28 September 2016

7. The proceedings related to parenting arrangements for one child aged 11 years and four months. The final orders made provided for the child to live with the mother and for the mother to have sole parental responsibility for him. There was an order that there be no time between the child and the father and an order pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”) that the father be restrained from attending the child’s home, school and before and after school care service.

The Law

1. Section 117 of the Act sets out the general principle that each party to proceedings under the Act shall bear his or her own costs subject to s 117(2) which says this:

   If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

2. Section 117(2A) of the Act sets out the matters which the Court must have regard to in the event that the Court holds the opinion that there are circumstances justifying departure from the general principle.

3. In these circumstances where the mother filed all relevant material and attended at Court with a solicitor and counsel and the father filed no material and attended only for a brief period of time in the circumstances set out in the Reasons for Judgment, the circumstances justify a departure from the rule.

4. I therefore turn to the mandatory considerations:

   a)Financial circumstances - the Respondent father has chosen to put no material before the Court.  The evidence of the Applicant mother is that she works casually and her husband works full time and that between the two of them, they are responsible for the care of the subject child and also the child of their marriage.

   b)Legal Aid – the Applicant mother did not have the benefit of a grant of Legal Aid.  The Respondent father advised the Court on 18 August 2016 that his Legal Aid grant “was cancelled”.[2]

   c)Conduct of the parties – the Applicant mother filed all relevant documents; her Amended Application, an Affidavit by herself and her husband.  The Respondent father filed no material and was given the opportunity when he attended on the afternoon of the first day to read material produced on subpoena, in particular the tender bundle produced on behalf of the Applicant mother and the Independent Children’s Lawyer.

   d)Failure to comply – the Respondent father did not comply with the orders that were made on 16 September 2015 which provided for the father to spend supervised time with the child at a contact centre.  The Respondent father did not take up that time at all.  Further, the Respondent father’s partner did not attend as directed for the preparation of the Family Report and a supplementary report was required to enable the Respondent father’s partner to be interviewed.

   e)Success in the proceedings – the Applicant mother has been entirely successful with her application and the Respondent father entirely unsuccessful.

   [2] Reasons for Judgment dated 28 September 2016, par 82

5. There is no evidence before me of any offer in writing by either party to the other to settle the proceedings.

Conclusion

1. In the circumstances it is appropriate that there be some contribution by the Respondent father to the Applicant mother’s costs, not the whole amount and not on an indemnity basis. 

2. However, the Applicant mother was obliged to take the matter to conclusion in order to resolve a long running dispute between the parties, culminating in litigation in the Federal Circuit Court and this Court over the past two years.  For that reason, an Order will be made for the Respondent to pay 50 per cent of the Applicant mother’s costs of final hearing [22 and 23 August 2016].

3. An Order is made accordingly.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 9 February 2017.

Associate

Date:  8 February 2017