Ragsdale & Ragsdale (No 2)
[2023] FedCFamC1F 589
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ragsdale & Ragsdale (No 2) [2023] FedCFamC1F 589
File number: SYC 8067 of 2019 Judgment of: REES J Date of judgment: 17 July 2023 Catchwords: FAMILY LAW – COSTS – Where the respondent is not in a financial position to pay for costs – Application dismissed. Legislation: Family Law Act 1975 (Cth) s 117(2A)
Federal Circuit and Family Court of Australia (Family Law)Rules 2021 (Cth)
Division: Division 1 First Instance Number of paragraphs: 13 Date of last submission/s: 22 June 2023 In Chambers: 17 July 2023 Place: Sydney Solicitor for the Applicant: Russell Kennedy Lawyers NSW Solicitor for the Respondent: Long Saad Woodbridge Lawyers ORDERS
SYC 8067 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR RAGSDALE
Applicant
AND: MS RAGSDALE
Respondent
order made by:
REES J
DATE OF ORDER:
17 july 2023
THE COURT ORDERS:
1.That the application for costs filed 19 April 2023 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under Ragsdale & Ragsdale has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:
On 22 March 2023, I delivered reasons and made orders in parenting proceedings between Mr Ragsdale (“the applicant”) and Ms Ragsdale (“the respondent”). The orders provided for the children to live with the applicant and to spend time with the respondent, they having previously lived with the respondent.
The applicant now seeks an order that the respondent pay his costs of those proceedings.
The applicant seeks a lump sum of $80,000, in the alternate, an order that the respondent pay party and party costs and, again in the alternate, an order that the respondent pay his costs calculated in accordance with the scale prescribed in the Federal Circuit and Family Court of Australia (Family Law)Rules 2021 (Cth).
The applicant relies on an affidavit sworn by him on 19 April 2023, a tender bundle and written submissions.
The respondent relies on an affidavit sworn by her on 25 May 2023, a Financial Statement and written submissions.
The determination is governed by s 117(2A) of the Family Law Act 1975 (Cth) which provides:
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
The applicant deposed that he earns $1,538 per week from employment and that he owes money to his parents which was lent to the parties during the currency of their marriage. He bears the financial costs of the children’s care with minimal assistance from the respondent.
The respondent has filed a Financial Statement and an affidavit where she deposes to her financial position. She has an income of $1,741 per week from employment and her expenses slightly exceed her income. She is assessed to pay child support of $36 per week. She has no significant assets. She lives in rented accommodation and has a car which she estimates to be worth $12,000. She has minimal savings. She has a debt of $46,000 for money borrowed to pay legal fees which is being repaid in instalments.
I accept the submission of the applicant that legal fees were exacerbated by a number of interim applications in which he was successful because of the respondent’s unreasonable interpretation of orders which had been made and her refusal to accept recommendations in relation to the time that the children spend with the applicant.
The respondent was wholly unsuccessful in the proceedings.
The applicant made a number of offers of settlement which would have resolved the matter on a basis that the children remained living with the respondent but which she did not accept.
However, having regard to the respondent’s financial position, there is no utility in making an order for costs which she will not be able to pay.
The application will be dismissed.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 17 July 2023
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