Sully and Paulus

[2018] FamCA 419

FAMILY COURT OF AUSTRALIA

SULLY & PAULUS [2018] FamCA 419

FAMILY LAW – COSTS – Where the mother seeks an order for the father to pay her costs of an Application in a Case – Where the father opposes the application – Consideration of section 117(2A) of the Family Law Act 1975 (Cth) – Where the Court finds the circumstances do not justify a costs order being made in favour of the mother –Application for costs dismissed.

Family Law Act 1975 (Cth) s 117

APPLICANT: Ms Sully

RESPONDENT: Mr Paulus

FILE NUMBER: SYC 3972 of 2014

DATE DELIVERED: 17 May 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: Dealt with by written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Finan

SOLICITOR FOR THE APPLICANT: Barkus Doolan

COUNSEL FOR THE RESPONDENT: Mr Sim

SOLICITOR FOR THE RESPONDENT: Crowther Sim Lawyers

Orders

1. The mother’s application that the father pay her costs of the Application in a Case filed on 26 March 2018 is dismissed.

2. Each of the parties will pay his and her own costs of and incidental to the Application in a Case filed by the mother on 26 March 2018.

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 Sully & Paulus 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: SYC 3972  of 2014

Ms Sully

Applicant

And

Mr Paulus

Respondent

REASONS FOR JUDGMENT

The proceedings

1. On 23 April 2018 an Application in a Case filed by the mother,

   
   

   Ms Sully, on 26 March 2018 came before me in a Duty List.  This Application in a Case sought the following Orders:

   1.That the respondent father and the applicant mother forthwith upon the making of these Orders do all acts and things and sign all documents necessary to apply for and/or renew the Australian passport for the child [B], born … 2008 (“the child”).

   2.In the event that the respondent father fails to sign any document necessary to apply for and/or renew the child’s Australian passport within 7 days of receiving a request from the applicant wife to do so, then:

   2.1The applicant mother shall have sole parental responsibility in relation to the application for the Australian passport for the child;

   2.2The applicant mother is permitted to apply for and/or renew an Australian passport for the child.

   3.The effect of Order 2 is to the extent required, the requirement of the respondent father’s consent and execution of documents to enable the Australian passport to be issued for the child is dispensed with.

   4.All officers of the Australian Passport Office any other Regulatory body responsible for the issue of Australian passports are authorised and directed to issue the new passport for the child upon the application by the applicant mother, without the necessity for the respondent father to provide his written consent to the issue of such passport.

   5.That the respondent father pay the applicant mother’s costs of and incidental to this application.

2. At the interim hearing on 23 April 2018 the father, Mr Paulus, was represented by his solicitor but did not appear in person as he is a resident of the US.  The father’s solicitor advised me that her client had signed the passport application and arranged to have the document delivered to her office by FedEx.  The father’s solicitor advised further that the document was expected to arrive at her office on 23 April 2018.

3. I made the following orders on 23 April 2018:

   1.In the event that the father fails to deliver to the mother by 4.00 pm on Friday, 27 April 2018 an application properly signed by him and without defect for the issue of an Australian Passport for the child [B] born on … 2008, a Registrar of the Family Court of Australia is authorised to execute such an application on behalf of the father.

   2.The mother is directed to file and serve written submissions in support of her application for costs within 7 days and the father is directed to file and serve his submissions in reply thereto within a further 7 days thereafter.  A determination as to costs will be made in chambers.

4. The mother now seeks an order that the father pay her costs of the Application in a Case, which she assesses at a sum of $4,750.  No breakdown of this figure was provided in the written submissions on behalf of the mother.  These submissions offered the following justification for this quantum of costs:

   Given the documents filed, the repeated attempts by correspondence and in person to seek the Father’s cooperation and resolve the matter, the significant time spent at Court on 23 April 2018, and the resources involved in preparing and filing the Application in a Case and cost submissions, the mother proposes that the Court fix costs in the sum of $4,750, with payment to be made within 21 days of date of order.

5. The father opposed the application of the mother for costs.  He sought an order that each party pay his and her own costs of the Application in a Case.

Background

1. The parties are the parents of one child, B, born in 2008 and presently 10 years of age.  The child lives with the mother and spends six weeks per year with the father.  Since 2013 the father has lived in the US.

2. On 22 March 2017 interim orders were made by consent by the Federal Circuit Court.  These Orders included the following:

   11.The child is at liberty to leave the Commonwealth of Australia with the mother for holidays, provided that the mother notifies the father of the proposed travel and contact numbers for the child not less than 14 days prior to the intended date of departure and provides detailed itineraries and copies of any plane tickets.”

3. According to the affidavit of the mother affirmed on 23 March 2018, the child’s passport expired on 20 March 2018 and her solicitor requested that the father sign an application for renewal by letter dated 18 January 2018.  The mother deposed that the father provided no response to this letter or similar communications on 20 January 2018 and 22 February 2018.  The mother deposed further that her solicitor wrote to the father’s lawyer on 8 March 2018, making another request that he sign the renewal document and foreshadowing an Application in a Case in the event that he refused or failed to do so.  This letter also put the father on notice that the mother would pursue her costs of any such Application in a Case.

4. The mother deposed that the father’s lawyer replied by letter of 16 March 2018, which stated inter alia:

   We are instructed that our client does not agree to sign the child’s passport application.  We are advised that our client will not agree to signing of any passport application until such orders are put in place concerning the child’s travel outside of Australia.

5. This letter went on to state:

   Our client only wishes to ensure that any travel by the child outside of Australia is properly provided for by Court Orders.

   The latter sentence was omitted from the body of affidavit on behalf of the mother but the full letter was annexed thereto.

6. As noted, the mother filed an Application in a Case on 26 March 2018, with the first return date being 23 April 2018.  In her affidavit the mother deposed that she intended to travel to Europe with the child between 20 June 2018 and 22 July 2018.

7. The mother deposed further that the child had travelled overseas with her on five previous occasions in 2014, 2015 and 2016.  On the occasion in June/July 2015 the mother and child were accompanied by her partner Mr C.  In November/December 2015 and June/July 2016 the mother and the child were accompanied by Mr C and the child D, who was born in 2015.

8. The written submissions on behalf of the father stated that his solicitor advised the mother and her lawyer on 19 April 2018 that he had signed the passport application, which would be couriered to Australia.  These submissions stated further that on 20 April 2018 the father advised his solicitor that the document would reach her office on 23 April 2018.  The father’s solicitor provided this advice to the mother’s lawyer on 20 April 2018.

9. On 23 April 2018 the mother’s Application in a Case was listed in a callover before a Registrar.  The father’s solicitor informed the Registrar that the passport application had been despatched to Sydney by FedEx and was expected to arrive later that same day.  The mother’s solicitor insisted that the proceedings be transferred to the Judicial Duty List and then required that the Application in a Case be dealt with on that day.

10. During the morning of 23 April 2018 the solicitor for the father attempted to obtain information concerning the precise whereabouts of the signed passport application.  The written submissions on behalf of the father indicated that his solicitor attempted to obtain a FedEx tracking number for that purpose.  The submissions indicated further that the father was in transit in the US and could not obtain this number, as that information was located at his home.

11. The written submissions on behalf of the father stated that the signed passport application was delivered to the office of the mother’s lawyer at 4.00 pm on 23 April 2018.  The written submissions on behalf of the mother agreed with that statement.

Consideration

1. Section 117 of the Family Law Act 1975 (Cth) governs the determination of applications for costs. Relevantly for present purposes section 117(1) provides that, subject to section 117(2), each party shall bear his or her own costs. Section 117(2) provides that the court may make such order as it considers just in relation to costs, if there are justifying circumstances.

2. Section 117(2A) sets out a number of factors to which the court must have regard in determining what order, if any, should be made pursuant to section 117(2). Section 117(2A) provides as follows:

   (2A)  In considering what order (if any) should be made under subsection (2), the court shall have regard to:

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

   (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;

   (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;

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

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

   (f)  whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

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

3. I will now consider in turn each of these factors.

Section 117(2A)(a) the financial circumstances of each of the parties to the proceedings

1. There was no evidence in relation to the financial circumstances of either of the parties.  The written submissions on behalf of the mother referred to a Child Support Agency Assessment dated 20 April 2018, which was not in evidence before me.  Accordingly, I will ignore that part of the written submissions on behalf of the mother.

Section 117(2A)(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

1. There was no indication that either party was in receipt of a grant of legal aid.

Section 117(2A)(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

1. It was submitted on behalf of the mother that “the filing of the Application in a Case and appearance at Court on 23 April 2018 arose solely because of a persistent and obstructionist course of conduct by the father.”  It is true that the father could have signed and returned the passport renewal application at any time after the mother’s initial request on 18 January 2018 and prior to the filing of the Application in a Case on 26 March 2018.

2. On the other hand, I see merit in the submission on behalf of the father that:

   12.The solicitors for the mother were advised on the Thursday and Friday prior to the Monday’s Court appearance that the father had signed the application for the passport and that it was in transit from [the US].

   13.It is submitted that this matter could have been adjourned by Consent, the costs at that time reserved, in the event that the father failed to comply with having the application for the passport signed and received by a particular date.

3. It was the mother’s insistence that her Application in a Case be dealt with on 23 April 2018 which caused the “significant time spent at court” to which reference was made in her written submissions.  The proceedings could have been adjourned by consent before the Registrar and the Application in a Case dealt with at a later date, in the event that the passport application was not delivered as foreshadowed on the afternoon of 23 April 2018.

4. In these circumstances it seems to me that the conduct of each of the parties could have been more constructive, with the consequence of a saving of costs.

Section 117(2A)(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court

1. Neither party failed to comply with an order of the court.  The orders of 22 March 2017 contained no provision that the father execute an application for renewal of the child’s passport.

2. The written submissions on behalf of the mother complained “The Father failed to comply with the direction of [a Registrar] that he file a Response to the Mother’s Application in a Case by 12 April 2018.”  These submissions did not indicate how “the proceedings were necessitated by the failure of [the father]” to comply with this direction.

Section 117(2A)(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings

1. Neither party was wholly unsuccessful in the proceedings.

Section 117(2A)(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer

1. I was taken to no offer of settlement which was submitted by either party.

Section 117(2A)(g) such other matters as the court considers relevant

1. No relevant considerations arise pursuant to this subsection.

Conclusion

1. For all of these reasons I conclude that the mother failed to establish that there are circumstances which justify the making an order for costs in her favour.  Accordingly, I dismiss the mother’s application that the father pay her costs of the Application in a Case filed on 26 March 2018.

I certify that the preceding thirty-one paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 17 May 2018.

Associate: 

Date:  17 May 2018