Richard and Briar (No. 5)

[2008] FamCA 991

FAMILY COURT OF AUSTRALIA

RICHARD & BRIAR (NO. 5) [2008] FamCA 991

FAMILY LAW – COSTS

APPLICANT: Mr Richard

RESPONDENT: Ms Briar

INDEPENDENT CHILDREN’S LAWYER: Danielle Webb

FILE NUMBER: MLF 2377 Of 2006

DATE DELIVERED: 7 November 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 7 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J. Melilli

SOLICITOR FOR THE APPLICANT: Forte Family Lawyers

COUNSEL FOR THE RESPONDENT: Litigant in person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER Ms Swart

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER Danielle Webb Lawyer

Orders

1. The wife shall pay the husband's costs, fixed at $14,000 and such sum shall be deducted from the share she shall receive under paragraph 20 of these orders.

2. A transcript of the costs reasons given by me this day shall be prepared and retained on the court file.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2377 of 2006

MR RICHARD

Applicant

And

MS BRIAR

Respondent

REASONS FOR JUDGMENT RE COSTS

1. The father has, as envisaged during the hearing of this case, made an application for costs against the mother. That is, the costs incurred by him in court proceedings when he was trying to find the child when he was abducted by his mother earlier this year.

2. He has sworn that those costs, incurred between February and June 2008, were a little over $60,000. 

3. The mother stands to receive just over $28,000 from the property settlement.  Although the father has consistently sought indemnity costs, as a gesture of goodwill, he is now prepared to seek $14,000, being half the moneys now due to the mother.

4. Costs are of course a discretionary matter, with the discretion guided by section 117(2A) of the Family Law Act. 

5. I am satisfied that in this instance, the conduct of the mother is such that there must be a costs order against her. 

6. Her argument, that she was forced to abscond, is contrary to the findings that I have made.  Her other argument, that the father could have found her without the court process is also contrary to findings.  It is fanciful.  She herself told me, and I have noted in my reasons for judgment, that she would not have brought the child out of hiding, where his name and physical appearance were altered, unless located by the Australian Federal Police.  He was located only after many court appearances and many subpoenas, one of which ultimately held the key to the mother's secret location.

7. There were at least eight court appearances before that; several others after the mother was located; 16 subpoenas; many attendances in the subpoena list; many conferences between the father and his solicitor and counsel; and, ultimately $4000 incurred by him in travel costs to bring the child back to Victoria.

8. I am satisfied that the fees referred to in the husband's affidavit (which can be filed today), were indeed incurred.  I am satisfied that the claimed sum of $14,000 is very significantly less.  I propose exercising my discretion to order that sum in his favour.  To do otherwise would be to overlook the most reprehensible conduct.  It would not be fair or proper, and it is on that basis that I exercise my discretion.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  7 November 2008