Ready & Ready
[2021] FedCFamC1F 197
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ready & Ready [2021] FedCFamC1F 197
File number(s): PAC 2441 of 2017 Judgment of: HOGAN J Date of judgment: 15 November 2021 Catchwords: FAMILY LAW – COSTS – Where the father sought changes to final parenting orders made in January 2020 – Where the father was wholly unsuccessful – Whether circumstances justifying order that he pay the mother’s costs on an indemnity basis or party/party basis – Where there are costs associated with the father spending time with the children. Legislation: Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) Sch 3
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Ready & Ready [2020] FamCA 6
Ready & Ready [2021] FamCA 331
Number of paragraphs: 10 Date of last submission/s: 8 July 2021 Date of hearing: Determined in Chambers following the receipt of filed documentation in relation to costs Place: Brisbane The Applicant: Self-represented Solicitors for Respondent: Simpson Family Lawyers ORDERS
PAC 2441 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1) BETWEEN: MR READY
Applicant
AND: MS READY
Respondent
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
15 NOVEMBER 2021
IT IS ORDERED THAT:
1.The Application in a Case filed 19 June 2021 is dismissed.
2.Each party shall bear their own costs of and incidental to the Initiating Application filed 21 October 2020 and the Application in a Case filed 19 June 2021.
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 the pseudonym Ready & Ready has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOGAN J:
The parents were involved in a two day trial on 18 and 19 November 2019. The primary issue to be determined was whether the mother should be permitted to relocate the children to live with her in Ireland (where both parents were born and grew up) or whether they should move from her primary care to live with their father in order to facilitate their continued residence in Australia.
On 13 January 2020, I made orders which permitted the mother to relocate the children to live in Ireland after giving the father 14 days’ notice of her intention to do so. The January 2020 order did not require the mother to remove the children from Australia by any particular date.
The mother and the children were still living in Australia when the world was gripped by the COVID-19 pandemic. They were still living in Australia when, on 21 October 2020, the father filed a new Initiating Application seeking to vary aspects of the January 2020 order (“the October 2020 Initiating Application”). Following a hearing on 22 January 2021, the October 2020 Initiating Application was ultimately dismissed by order made on 21 May 2021.
By Application in a Case filed 19 June 2021, the mother sought an order that the father pay her costs of and incidental to the October 2020 Initiating Application on an indemnity basis in the amount of $14,287.25; in the alternative, she sought an order that he pay her costs in an amount to be assessed on a party/party basis, to be assessed in accordance with Schedule 3 of the Family Law Rules 2004 (Cth).[1] On the evidence before me, such assessment would likely result in the quantification of her costs in an amount of about $5,085.80.
[1]See now the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Rule 1.02 and Note 1 to the same.
The father sought, by way of Response to an Application in a Case filed 8 July 2021, that the Application in a Case filed 19 June 2021 is dismissed and that no order as to costs is made.
Consideration of applicable legislative provisions and principles
The usual course in relation to costs in proceedings under the Family Law Act 1975 (Cth) (“the Act”) is that each party bears their own costs.[2] However, if it is of the opinion that there are circumstances that justify it in doing so, the Court may, subject relevantly to s 117(2A) of the Act, make such order as it considers just.[3]
[2] Family Law Act 1975 (Cth) s 117(1).
[3] Family Law Act 1975 (Cth) s 117(2).
Neither parent was in receipt of legal aid. On 22 January 2021, the mother was represented by solicitors, whilst the father appeared on his own behalf. The father’s conduct in relation to the proceedings does not persuade that there are circumstances justifying the making of an order departing from the starting point provided by s 117(1) of the Act. The proceedings commenced by the October 2020 Initiating Application were not necessitated by the failure of either parent to comply with previous orders of the court.
Whilst others may disagree, I am not satisfied that the circumstances in the present case – which can be gleaned by reference to the Reasons for Judgment delivered on 13 January 2020[4] and those delivered on 21 May 2021[5] in support of the decision to dismiss the October 2020 Initiating Application – justify the Court making an order that the father pay the mother’s costs of and incidental to the October 2020 Initiating Application, whether on an indemnity basis or on a party/party basis assessed according to the applicable Rules.
[4] Ready & Ready [2020] FamCA 6.
[5] Ready & Ready [2021] FamCA 331.
I have arrived at this conclusion having taken into the account that the father was wholly unsuccessful in his attempt to seek the relief particularised in the October 2020 Initiating Application; whilst I have had regard to the mother’s evidence about her current financial circumstances, I have also taken into account and placed particular weight upon the father’s evidence about his current financial circumstances, the property available to each parent and its asserted approximate value and the costs associated with the father spending time with the children: in particular, I have accepted the father’s evidence that, despite living in Sydney for work each week, he has not applied to have his assessed child support reduced because of the costs associated with him spending time with the children in Brisbane.
For these short reasons, I dismiss the Application in a Case filed 19 June 2021. It is, I think, appropriate and just that I make an order that each party bear their own costs of and incidental to the October 2020 Initiating Application and the Application in a Case filed 19 June 2021.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 15 November 2021
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