SIMPSON & DAVIDSON

[2012] FamCA 965

FAMILY COURT OF AUSTRALIA

SIMPSON & DAVIDSON [2012] FamCA 965

FAMILY LAW– COSTS – Where wife applied for an order that the husband pays her costs of appearance – Where husband’s concession made earlier in the day that the wife could relocate the parties’ children back to the United Kingdom was subsequently withdrawn – Where the matters requiring the Court’s attention hinged upon the concession – Whether the fact of the concession and the impact it had upon the course of the day’s proceedings amounts to justifying circumstances pursuant to s 117 of the Family Law Act 1975 (Cth) – Where wife’s application for costs is granted – Where husband is to pay wife’s costs on party/party basis.

Family Law Act 1975 (Cth) s 117

APPLICANT: Mr Simpson

RESPONDENT: Mrs Davidson

FILE NUMBER: SYC 321 of 2012

DATE DELIVERED: 22 October 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 22 October 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Johnston

SOLICITOR FOR THE APPLICANT: Aitkens Lawyers

COUNSEL FOR THE RESPONDENT: Mr Batey

SOLICITOR FOR THE RESPONDENT: Clayhills

Orders

1. Pursuant to s 68L of the Family Law Act 1975 (Cth) that the children, H born …2006, S born …2007 and E born …2009 be represented and I request that Legal Aid NSW provide that representation.

2. As soon as each party is notified by the Independent Children’s Lawyer (“ICL”) of the ICL’s appointment, each party shall serve copies of all applications and affidavits filed by the party upon the ICL.  In addition, the applicant shall provide the ICL with a copy of orders and reports.

3. That the final proceedings are expedited.

4. That the parties have leave to approach the List Clerk for allocation of a final hearing.

5. That the father file and serve written submissions in relation to his assertion that the Court lacks jurisdiction in relation to the mother’s application for property adjustment and spousal maintenance within two weeks.

6. That the father file and serve a Reply within two weeks.

7. That the father pay the mother’s costs thrown away today in the amount of $4,000.00 within 28 days.

8. The parties have leave to approach the List Clerk for the allocation of a further interim hearing date.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Simpson & Davidson 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 SYDNEY

FILE NUMBER: SYC 321 of 2012

Mr Simpson

Applicant

And

Ms Davidson

Respondent

REASONS FOR JUDGMENT

1. These reasons are delivered orally.

2. Before the Court is an application by the respondent mother that the applicant father pays her costs for today.  At the commencement of the duty list today there was listed for hearing the father’s Application in a Case filed 8 August 2012 and the Amended Response to an Application in a Case filed by the mother on 15 October 2012.  Between them those applications raised issues about the interim parenting arrangements of the parties’ three children, H, S and E, interim asset preservation orders, interim costs and a child support departure order.

3. These matters arose in the shadow of competing applications for final orders as to parenting, property and allied financial matters.  At the heart of the parenting application is the mother’s application that she be permitted to relocate with the children to the United Kingdom.  As I understand it, there is no issue that the parties and children migrated to Australia from the United Kingdom in late 2010 as part of the applicant father’s work arrangements.  Having migrated to Australia and subsequently separated.

4. In relation to the property matters there is an issue as to this Court’s jurisdiction.  Perhaps I stated things bullishly, but it remains my view that notwithstanding a challenge to jurisdiction a court has jurisdiction pending determination of the jurisdictional facts. 

5. This morning counsel for the father informed the Court that his client agreed that the mother could relocate the children back to the United Kingdom.

6. This important concession set the scene for the rest of the day.  It is apparent from the exchanges that have taken place on the numerous occasions the matter has been mentioned during the course of the day that the discussions that have occurred throughout the day and the focus of the matters which the Court was informed would require the Court’s attention all hinged upon the concession.

7. A short time ago counsel for the father and, indeed, the father himself informed the Court that he withdrew his agreement to the children’s relocation.  This fundamentally changed the dimension of the case today and going forward.  As a consequence the matters that were listed this morning must still be addressed.  Consequently, the mother submits she has incurred costs unnecessarily, they being the costs of appearance today, which she claims should be met by the father.

8. On the father’s behalf it is submitted that the Court should not make an order for costs.  It is emphasised the decision he faces is an incredibly difficult one and, in effect, that a parent should not be penalised for conceding and then withdrawing is a difficult decision.  The point being because the issues are so difficult it really should not come as a surprise that in the ordinary course a person may find a concession such as this too difficult to maintain.  Whilst I agree with aspects of the submissions made by counsel for the father, particularly the gravity of the decision that he is called upon to make, it was incumbent upon him to reflect very carefully before making a concession such as that made earlier today.

9. Context is important where a concession which goes to the heart of a piece of litigation made at a time when the Court is dealing with allied issues is a concession that should only be made, wisely and confident that it can be and will be maintained.  It would seem this did not occur this morning.  So that it is clear these remarks are not intended in any way to be critical of those advising the father and, in a sense, they are not critical of the father himself.

10. But the fact of the concession and the impact it has had upon the course of these proceedings today amounts to justifying circumstances pursuant to s 117 of the Family Law Act 1975 (Cth) (“the Act”). It is similarly the most weighty factor in terms of whether an order for costs should or should not be made and strongly weighs in favour of an order for costs to the mother on a party/party basis. I take into account the material contained in the parties’ respective Financial Statements. I agree with the submission made by counsel for the mother that she is in a difficult financial position and that to the extent financial considerations are relevant they weigh slightly in her favour.

11. Lest the point be lost, it is not the parties’ financial circumstances that is the key factor in my decision that an order for costs should be made.  It is, as I have said earlier, a concession made which changed the events of the day only to find at the end of the day the concession is withdrawn.  In the true meaning of the words the mother has incurred costs today which will be thrown away unnecessarily and for which she should be reimbursed. 

12. There is no basis for an order for indemnity costs and it is not contentious that on a party/party basis the appropriate quantum is $4,000.00.  The father will be given one month within which to pay. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 22 October 2012.

Associate:     

Date:              15 November 2012