Scailer and Tusk

[2007] FamCA 1631

FAMILY COURT OF AUSTRALIA

SCAILER & TUSK [2007] FamCA 1631

FAMILY LAW – PRACTICE AND PROCEDURE – Application – Dismissal or struck out

Family Law Act 1975 (Cth)

APPLICANT: Mr Scailer  

RESPONDENT: Ms Tusk

FILE NUMBER: NCF 620 of 2006

DATE DELIVERED: 11 December 2007

PLACE DELIVERED: Newcastle

JUDGMENT OF: Mullane J

HEARING DATE: 11 December 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT : In person

COUNSEL FOR THE RESPONDENT: Mr Bates

SOLICITOR FOR THE RESPONDENT: Ms Julia Clarke

Orders

1. The wife's Application in a Case filed on 4 July 2007 is withdrawn and dismissed.

2. The mother must, within 28 days, pay to the father $236 towards his costs of opposing her application

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCF 620 of 2006

MR SCAILER

Applicant

And

MS TUSK  

Respondent

REASONS FOR JUDGMENT

1. The usual rule in relation to costs is contained in s.117 of the Family Law Act, particularly in subsec 1 which provides that subject to certain other provisions each party shall pay his or her own costs in proceedings under the Act.

2. Sub-s.(2) of the section is one of the provisions referred to and that provides that the Court has power to make an order for costs where it is satisfied the circumstances justify it.  It says that that power should be exercised having regard to the matters listed in sub-s.(2A).

3. The first of those are the financial circumstances of the parties.  So far as I am aware the mother is in paid work in the health industry and the father is unemployed. 

4. The second is whether any party to the proceedings is in receipt of Legal Aid in respect of the proceedings and I am not aware that either party has Legal Aid. 

5. The third matter is the conduct of the parties to the proceedings in relation to the proceedings.  The only relevant matter that I am aware of is that the mother has brought this application as an appeal or a review of a previous decision and that she has withdrawn the proceedings at the end of the hearing of the evidence.

6. The next matter is whether the proceedings were necessitated by a failure of a party to comply with previous orders of the Court. That is not applicable.  I am required to take into account that the mother has been wholly unsuccessful in the proceedings and I am not aware of any settlement offer being made or any other matter that is relevant to the costs issue. 

7. In the circumstances the facts that the mother has withdrawn the application, has been wholly unsuccessful and has superior financial circumstances dictate that she should pay the husband's expenses.

I certify that the preceding 7 (seven) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mullane

Associate

Date:  31 January 2008