SUK & FULHAM

[2019] FamCA 53

FAMILY COURT OF AUSTRALIA

SUK & FULHAM [2019] FamCA 53

FAMILY LAW – COSTS
APPLICANT:	Ms Suk

RESPONDENT: Mr Fulham

FILE NUMBER: SYC 6579 of 2011

DATE DELIVERED: 8 February 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 11 January 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Blanchfield Nicholls

SOLICITOR FOR THE RESPONDENT: Crawford Ryan Lawyers Pty Ltd

Orders

IT IS ORDERED

1. That, within 28 days of the date of these orders, the husband pay to the wife the sum of $1,120 on account of the costs of her application filed 10 January 2019.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:SYC6579/2011

Ms Suk

Applicant

And

Mr Fulham

Respondent

REASONS FOR JUDGMENT

1. Ms Suk (“the wife”) and Mr Fulham (“the husband”) are parties to ongoing litigation.

2. On 22 February 2017, final parenting orders were made which provided, inter alia, for each of the parents to travel overseas with the children during periods when the children were holidaying with that parent. The orders required the travelling parent to provide not less than 28 days’ notice of the proposed travel.

3. The children’s passports are held by the Court. Both parents must consent to the release of the passports to facilitate overseas travel. The wife sought release of the child’s passport to facilitate the travel. The husband did not release the passport. The wife filed an application for release of the passport.

4. The husband opposes the wife’s application for costs of the application. He relies on an affidavit sworn by him on 6 February 2019 and written submissions filed the same day. Much of that affidavit consists of complaints by the husband of past difficulties in negotiating holiday arrangements, and time with the children, with the wife.

5. The events unfolded in the following way.

6. On 19 October 2018, the wife informed the husband that she intended to travel, with their almost 17 year old child, to Country B during the January 2019 school holidays. The husband did not respond.

7. On 28 November 2018, the wife’s solicitors wrote to the husband’s solicitors providing all of the necessary information relating to the proposed travel. There was no response. I do not accept the husband’s evidence that the letter from the wife’s solicitor did not require him to take any particular step. Clearly, he was required to authorise the release of the passport.

8. On 21 December 2018 the wife’s solicitors wrote again. There was no response. The husband deposed that he received a copy of the letter from his solicitor on 21 December 2018 but did not look at his emails until 1 January 2019.

9. On 1 January 2019, the wife contacted the husband directly asking him to release the passport so that a visa could be obtained. The father responded in terms that he was “not comfortable” with the child going to Country B and that “[Country B] can have extreme conditions”. He was also concerned about who would care for the child while the wife attended a conference.

10. The wife responded “Lectures are 4.30pm to 7pm. Also [three named adults] are in [Country B] with me. The conditions are NOT EXTREME. Skiing weather. Have you been to [Country B]?”

11. The husband did not respond.

12. The wife wrote to the husband’s solicitors on 3 January 2019 urgently requesting the release of the passport. There was no response. The husband deposed that he was in Tasmania and out of internet range.

13. The wife’s solicitors wrote to the husband’s solicitors on 10 January 2019 giving notice that an application would be filed if consent to the release of the passport were not forthcoming. The husband’s solicitors responded that they were seeking instructions.

14. On 10 January 2019 the wife filed an application seeking the release of the passport, supported by a short affidavit. The matter was listed before me at 12.30pm on 11 January.

15. At about 11.40am on 11 January 2019, the husband consented to the release of the passport.

16. The application is governed by the provisions of s117 (2A) of the Family Law Act 1975(Cth).

17. There was no evidence before me of the parties’ respective financial positions.

18. Neither party is in receipt of legal aid.

19. The husband’s conduct, in failing to respond to the wife’s proper notice of her intended travel, and then not responding to the repeated correspondence from the wife’s solicitors and, with one exception, from the wife, necessitated the filing of the application. The wife was entitled, according to the orders, to travel with the child as she proposed. The husband was given ample opportunity to facilitate the travel in compliance with the orders, as he was obliged to do. The husband’s failure to facilitate that travel was unreasonable.

20. It is appropriate that he pay costs.

21. The authorities in relation to indemnity costs are well known and do not need to be repeated here. I do not consider that the facts in these proceedings justify a finding that there is “some special or unusual feature to justify the Court in departing from the ordinary practice”, to use the words of Sheppard J in Colgate-Palmolive v Cussons Pty Limited (1993) 46 FCR 225.

22. This is not a matter where indemnity costs are appropriate.

23. There is no calculation of costs at scale and I propose to make an arbitrary quantification. The husband will pay the wife’s professional costs of $1,000 together with the filing fee of $120.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 8 February 2019.

Associate: 

Date:  8 February 2019