Sammarra and Rostem (No 2)

[2015] FamCA 877

FAMILY COURT OF AUSTRALIA

SAMMARRA & ROSTEM (NO 2) [2015] FamCA 877

FAMILY LAW – COSTS

Family Law Act 1975 (Cth) s 117(2)

APPLICANT: Ms Sammarra

RESPONDENT: Mr Rostem

FILE NUMBER: BRC 7973 of 2013

DATE DELIVERED: 21 October 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: Considered in Chambers following the receipt of written submissions

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Macpherson + Kelly Lawyers

SOLICITOR FOR THE RESPONDENT: Thexton Lawyers

Orders

1. The Respondent’s application that the Applicant pay his costs of and incidental to the Application in a Case filed 23 June 2014 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sammarra & Rostem (No 2) 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 BRISBANE

FILE NUMBER: BRC 7973 of 2013

Ms Sammarra 

Applicant

And

Mr Rostem

Respondent

REASONS FOR JUDGMENT

1. The Respondent seeks an order that the Applicant pay his costs of and incidental to the Application in a Case[1] by which the Applicant sought that the Court make a suppression order.

   [1]           Filed 23 June 2014.

2. The matter first returned on 8 July 2014, at which time the Respondent did not appear.  The matter was then adjourned to 15 July 2014, at which time it was heard and Judgment reserved. On 22 July 2014, I made an interim suppression order pending the receipt of further written submissions. On 15 May 2015, I dismissed the Application in a Case and provided each party the opportunity to make submissions in relation to costs.

3. The Respondent sought an order that the Applicant pay $4,249.94, being his costs of and incidental to the Application in a Case, calculated according to scale.

Applicable Principles

1. Section 117(1) of the Family Law Act (1975)(Cth) provides that each party to proceedings under the Act shall bear his or her own costs. If, however, having regard to the matters set out in s 117(2A) of the Act, the Court is satisfied there are circumstances which justify it, the Court may make such order as to costs as it considers just.[2]

   [2] Section 117(2) Family Law Act (1975) (Cth).

2. I am not persuaded that the circumstances justify the making of an order requiring that the Applicant pay the Respondent’s costs of and incidental to the Application in a Case filed 23 June 2014. I arrive at this determination having taken into account the Respondent’s submissions that, as he privately funded the litigation, he has incurred the expense associated in responding to it, that the Applicant was wholly unsuccessful in her attempt to obtain a final suppression order on the basis that it was determined not to be necessary to protect her or the child’s safety and his submission that her attempt to obtain a suppression order was misguided as she sought to suppress the dissemination of information in Country C, a country in which any order made by this Court would not be enforced.

3. In refusing the Respondent’s application, I take into account the Applicant’s submissions to the effect that she has not received any child support from the Respondent in relation to their child since November 2014 and that his financial support for their child is limited to meeting the costs of flights associated with this time. I also take into account and accept as relevant that the Respondent did not appear on 8 July 2014, with the consequence that the Applicant incurred additional costs associated with the hearing of her Application in a Case. I accept the submission to the effect that appropriate concessions were made on her behalf in that no issue was taken with the enforceability of the order and that, upon receiving written submissions prepared on behalf of the Respondent, no further submissions were made on her behalf, thereby minimising the Respondent’s costs.

4. I also take into account and place particular weight upon the fact that the Applicant was successful in obtaining an interim order and that, in determining the application, the Court accepted the unchallenged expert evidence called in her case and acknowledged that her application was based upon her desire to return safely to Country C with the child so as to visit family members. I also take into account that the Applicant prosecuted the relief sought in her Application in a Case in circumstances where the Respondent offered no undertaking not to disseminate or provide material to authorities outside the Commonwealth of Australia. I accept, in these circumstances, that it was not unreasonable for her to seek that a suppression order be made.

5. For the reasons outlined above, I dismiss the Respondent’s application that the Applicant pay his costs of and incidental to the Application in a Case filed 23 June 2014.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 21 October 2015.

Associate: 

Date:              21 October 2015.