Stoppford and Stoppford

[2008] FamCA 529

FAMILY COURT OF AUSTRALIA

STOPPFORD & STOPPFORD [2008] FamCA 529

FAMILY LAW – COSTS – passport application – wife seeking costs - husband consented to application on day of hearing – husband not prevented from responding in writing to wife’s requests notwithstanding the family violence order in place – costs order made.

Family Law Act 1975 (Cth) s 117

APPLICANT: Mrs Stoppford

RESPONDENT: Mr Stoppford

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: HBC 674 of 2007

DATE DELIVERED: 28 APRIL 2008

PLACE DELIVERED: HOBART

EX TEMPORE REASONS OF: Burr J

HEARING DATE: 28 APRIL 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Mr Trezise

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Ms Mussared

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Orders

1. That the husband pay the wife’s costs of and incidental to these proceedings fixed in the sum of ONE THOUSAND DOLLARS [$1,000.00] and payable within sixty [60] days of the date hereof.

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 674  of 2007

MRS STOPPFORD

Applicant

And

MR STOPPFORD

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. I have this day made Orders by consent on the wife’s Application for the issue of passports for the children E born in May 1992 and H born in August 1994 and enabling them to travel to Vietnam with their mother between on or about 10 June to 22 June 2008.  The wife’s Application filed on 4 April 2008 was preceded by a letter of 18 March 2008 seeking the husband’s approval and permission to proceed as the wife now seeks in her Application.  The wife received no response from the father to that request.  In the letter of 18 March 2008 a response was sought by 26 March 2008.  No response was provided by the husband prior to the Application being filed and indeed, no consent was proffered by him to that arrangement until today when he had the opportunity to consult with the Duty Solicitor.

2. The wife seeks her costs of the Application, being an amount of $1,420.00.

3. In determining any application for costs I must have regard to the provisions of Section 117 of the Family Law Act 1975 as amended, and in particular sub-section (2A). That requires me to consider:-

(a)the financial circumstances of each of the parties to the proceedings;

1. I am advised from the bar table that the husband is in employment as a tradesman and hence I am satisfied that he would have the capacity to pay an Order for costs.

(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

and

(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

and

(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

1. These sub-sections are not relevant for my determination.

(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

1. This sub-section is probably the most significant and is clearly the case here.  The husband has been wholly unsuccessful in relation to the wife’s application in that Orders in terms of those that she sought have been made this day.

(f)whether either party to the proceedings has, in accordance with section 117C or otherwise, made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer

1. This sub –section is also relevant.  The wife made just such a proposal as is contained in her Application in the letter of 18 March 2008 to the husband.  In that letter, being annexure “B” to her Affidavit filed on 4 April 2008, she identifies the exact details of her wishes to travel to Vietnam with the children.  She then provides significant other detail as to her proposals in that regard.  Her request that the husband co-operate in the obtaining of passports for the children is clear in that letter.  The husband could have been left in no doubt as to what it was that she was seeking and, of course, she has now secured Orders in almost identical terms to the offer she made earlier to resolve the matter – an offer which the husband either ignored or chose not to accept.

(g)such other matters as the court considers relevant.  

1. Ms Mussared for the husband indicated that he had a number of concerns in terms of responding to the wife’s letter, the first of which being that he was the subject of a police family violence order and the terms of which are annexed to the wife’s Form 1 Application filed on 4 April 2008.  Upon my reading of that police family violence order which is dated 15 August 2007, there is nothing there which ought to have concerned the husband in terms of him responding by mail to the wife’s request. She further referred to the poor communication between the parties to the effect that they do not or cannot communicate with each other.  Again that would not have inhibited the father from responding in writing to the quite reasonable request of the wife made in her letter through her solicitors of 18 March 2008.

2. In all of the circumstances, I am satisfied that it is appropriate to make an order for costs against the husband.  The amount sought is $1,420.00.  Ms Mussared made the point that there may have been some capacity for the parties to engage in a mediation process prior to the institution of the proceedings.  I accept that as being a possibility, although timelines were tight.

3. In all of the circumstances, I deem it appropriate for the husband to pay the wife’s costs fixed in the sum of $1,000.00 and payable within 60 days of the date hereof.

I certify that the preceding eleven (10) paragraphs are a true copy of the Ex tempore Reasons for Judgment of the Honourable Justice Burr

Associate:

Date:  28 April 2008