Quoc and Quoc

[2008] FamCA 39

FAMILY COURT OF AUSTRALIA

QUOC & QUOC [2008] FamCA 39

FAMILY LAW – Costs

APPLICANT: Ms Quoc

RESPONDENT: Mr Quoc

FILE NUMBER: (P)BRF 2737 of 2006

DATE DELIVERED: 5^th February 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carmody J

HEARING DATE:

11^th December 2006

30^th August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Hogan

SOLICITOR FOR THE APPLICANT: Ryan Kruger Lawyers

COUNSEL FOR THE RESPONDENT: Mr Hodges

SOLICITOR FOR THE RESPONDENT: Bronwyn Hay & Associates

Orders

1. That within ten (10) days the HUSBAND pay the WIFE’s costs of and incidental to the  “forum proceedings” before the Honourable Justice Carmody on 11^th December 2006 and  of and incidental to “the overseas travel proceedings” before the Honourable Justice Carmody on 30^th August 2007, in the amount agreed or as taxed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Carmody delivered this day will for all publication and reporting purposes be referred to as Quoc & Quoc

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: (P)BRF2737/2006

Ms Quoc

Applicant

And

Mr Quoc

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for reserved costs in a combined parenting and property case. The mother seeks compensation from the father for professional and other costs expended in bringing proceedings relating to (a) forum and (b) overseas travel.

Forum proceedings

1. The mother contends that the father’s defended application for summary dismissal of the Australian proceedings on forum non conveniens grounds filed in October 2006 amounted to “inappropriate” litigation conduct and for the reasons relied on appearing at par 21 of her written submissions “was always… doomed to fail”.

2. The husband’s response is that no adverse finding of impropriety was made against him by the court in refusing his applications and, in any event, his behaviour is beyond valid criticism.

3. The statutory principles governing costs decisions are contained in s 117 of the Family Law Act 1975. The general rule in subs (1) is that each party is to bear their own costs in a proceeding. This rule negates any suggestion that costs follow the event in the Family Court: see Collins (1985) FLC 91-603.

4. Exceptions to this rule are found in s 117(2), 117AA and 118. The Court may make any order as to costs it considers just in any case where it finds there are justifying circumstances. The relevant factors in making this determination are set out in s 117(2A). Section 118(1)(b) makes the same provision with respect to frivolous or vexatious claims.

5. The obligation to have regard to the s 117(2A) considerations is mandatory.

6. Whether a favourable exercise of discretion should follow in this case depends on a consideration of the financial circumstances of the parties; the availability of legal aid; the parties conduct in relation to interlocutory matters; their level of compliance with previous court orders; the degree of success or failure; the reasonableness of any offers to settle and other legitimately influential matters.

7. It is possible for any one of these factors to overshadow all others.

8. Neither party raised financial circumstances, legal aid, non compliance, settlement negotiations or other matter.  The mother stakes her claim mainly on the husband’s lack of success in the proceedings and his overall litigation conduct.

9. In my view the wife has made out her application here. The husband clearly used the procedures in the Solomon Islands to his tactical advantage and precipitated the wife’s application in this country. When he took that step he chose his consequences. In the end it turned out to be counter productive and because the burden of the loss must lie somewhere it is only fair that it is with him.

10. His attempt to summarily dismiss the wife’s application before this court was highly speculative in the legal sense with only a rank outside chance of success. In my view his conduct can properly be categorised as unreasonable or needlessly provocative rather than improper or unconscionable.

11. I will allow the wife’s costs claimed under this head either to be agreed within 7 days or taxed.

The departure order

1. Having failed to bring the wife’s proceedings to a premature end the husband then applied to temporarily take the children to China and the Solomon Islands. Neither of these countries is a signatory to the Hague Convention. The proposed trip to China was later abandoned.  His Solomon Islands application failed due to adequate security against the risk of non return and because it was open ended and non specific.

2. The genuineness of the husband’s application was not the subject of any judicial finding. However his conduct in litigating in spite of the mother’s valid concerns coupled with the significant disparity in their financial circumstances make it just and appropriate in my view, that she recover the professional costs incurred in what turned out to be a reasonable resistance of an unsuccessful application initiated by the father.

3. The husband is ordered to within 10 days pay the wife’s costs of and incidental to both the forum and overseas travel proceedings in the sum agreed within 7 days or otherwise as taxed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carmody

Associate: 

Date:  5^th February 2008