Robinson and Farthing (No 2)

[2011] FamCA 473

FAMILY COURT OF AUSTRALIA

ROBINSON & FARTHING (NO 2) [2011] FamCA 473

FAMILY LAW – COSTS – one party wholly unsuccessful

APPLICANT: Ms Robinson

RESPONDENT: Mr Farthing

FILE NUMBER: MLC 8085 of 2010

DATE DELIVERED: 1 June 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 1 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Stewart

SOLICITOR FOR THE RESPONDENT:	Richard Calley Lawyers
COUNSEL FOR INDEPENDENT CHILDREN’S LAWYER	Ms Harris
INDEPENDENT CHILDREN’S LAWYER	Victoria Legal Aid

Orders

1. That the wife shall pay the husband’s costs of this day fixed at $1,600 and the ICL’s costs of this day fixed at $620.

IT IS NOTED that publication of this judgment under the pseudonym Robinson & Farthing (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 8085 of 2010

Ms Robinson

Applicant

And

Mr Farthing

Respondent

REASONS FOR JUDGMENT

1. Section 117 of the Family Law Act governs costs.  It provides that each party shall bear their own costs unless in my discretion I make a different order. 

2. This is a case in which I am satisfied a different order should be made, taking into account the relevant matters under s 117(2A) of the Act. In particular, I am taking into account that Ms Robinson (“the wife”) has brought an application that has been wholly unsuccessful. The husband’s solicitor wrote to her telling her precisely the basis upon which it was likely to be unsuccessful, and it was. She had the opportunity to withdraw and she did not. Mr Farthing (“the husband”) suffered expense as a result. She does have the capacity to pay an order. The husband does not have legal aid. The Independent Children’s Lawyer has also been put to expense.

3. I think this is a situation where an order should be made now, rather than reserving to decision.  It is a discrete and clear-cut issue, unlike the matters before the Senior Registrar which were very much part of the wash of the whole case. 

4. This is what I propose.  I agree entirely with the wife that today has not been totally wasted.  A great amount has been achieved, and there has been a fairly substantial saving in terms of the parties not having to appear now on 27 June. 

DISCUSSION

1. My strong preference is to fix the costs now, rather than putting you through the expense of having costs taxed.  I then propose halving the costs.  It is impossible for me to be precise as to which part of today is wasted which part is saved.  Accordingly, I propose half and half as the result. 

FURTHER DISCUSSION

ORDERS DELIVERED

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 1 June 2011.

Associate: 

Date:  1 June 2011