Russell and West (No.2)

[2012] FamCA 627

FAMILY COURT OF AUSTRALIA

RUSSELL & WEST (NO.2) [2012] FamCA 627

FAMILY LAW - COSTS

Family Law Act 1975 (Cth)

APPLICANT: Mr Russell

RESPONDENT: Ms West

FILE NUMBER: DGC 4352 of 2008

DATE DELIVERED: 26 July 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 26 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Robinson

SOLICITOR FOR THE APPLICANT: Holding Redlich

THE RESPONDENT: In person

Orders

1. That the application filed 27 June 2012 is adjourned to 10.00am on 15 August 2012.

2. That the mother file and serve a response and any affidavit material upon which she intends to rely by 4.00pm on 8 August 2012.

3. That the mother pay the father’s costs fixed in the sum of $2420 such costs to be paid to the applicant father from the mother’s entitlement to the settlement arising out of the property proceedings.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Russell & West has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 4352 of 2008

Mr Russell

Applicant

And

Ms West

Respondent

REASONS FOR JUDGMENT

1. This matter was listed before me today at 9.00 am in an application in a case, but substantive proceedings are listed in 2013.  The application today seeks a variety of orders, including costs on an indemnity basis backdated to December 2012, together with the mother contributing towards the costs of a supervisor of a parenting regime and also some experts.  She was also asked to agree to an order enabling the father to inspect subpoenaed documents. 

2. This morning, the mother attended without representation and without having filed any material.  She sought an adjournment after having had a discussion with the duty solicitor.

3. The documents relied upon by the father were filed on 27 June, and, I am told, served at that time on the solicitors who were then acting for the respondent.  Subsequently, the solicitors filed a notice of ceasing to act. 

4. It is suggested by counsel for the applicant and I have no reason to doubt that the subject of these costs was not new, and a number of attempts were made by on Friday of last week and again on Monday of this week to find out the respondent’s position.  Remarkably, none of that information seems to have come to the attention of the mother.  That may very well be a credit issue in the ultimate trial.

5. Be that as it may, the application is based on some facts which she disputes.  It makes it so much easier for me to determine the matter, according to law, if I have her position in respect of those facts.  It may be that the facts are sufficiently controversial that they require cross-examination.  Accordingly, the matter needs to be adjourned to enable her to do that. 

6. The father, through his counsel, seeks $2420 costs, which includes his own brief fee and that of his instructing solicitor’s attendance.  That seems to me to be somewhat on the light side, but having regard to what I am told, I accept the quantum is reasonable.

7. When I asked the mother whether she would agree to pay the costs thrown away, bearing in mind that the father will incur those costs and she has not assisted by being ready to proceed today, she has declined to do so, requiring me to make this ruling. 

8. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that in proceedings in this court each party should bear their own costs unless there are circumstances that justify a departure from that principle. If the Court is contemplating departing from that principle, it must take into account the matters set out in s 117(2A).

9. The mother has had time in this case to get herself ready and has not done so.  There are justifiable circumstances here. 

10. Because there are pending property proceedings between the parties, which are acknowledged by the mother to be controversial, (because the father, in her view, will not settle), I can be satisfied that at least there are reasonable financial resources in the hands of both parties.  There are no legal aid considerations here because the mother said that she was unable to get legal aid.  I would be very surprised if she is entitled to legal aid having regard to the fact that there is an impending property proceeding.

11. Another factor in s 117(2A) is what the parties have done in relation to the procedural side of things, and clearly, having been warned by the notice attached to the application in the case that she had to file material, and not having done so, she has not assisted the Court or the father.

12. It is often said that costs are not a punishment but rather to compensate a person who has had to participate in the proceedings.  The mother has been told that she needed to get the material ready, and, accordingly, costs having been thrown away, this is a case where the costs of $2400 ought to be ordered.  Mr Robinson has indicated that the father is prepared to wait for those costs to be paid out of the property proceedings.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 26 July 2012.

Associate: 

Date:  3 August 2012