Tait and Densmore (No. 2)

[2007] FamCA 1397

FAMILY COURT OF AUSTRALIA

TAIT & DENSMORE (NO. 2) [2007] FamCA 1397

FAMILY LAW – COSTS – Child representative – Application dismissed

Family Law Act 1975 (Cth)

APPLICANT: Ms Tait

RESPONDENT: Mr Densmore

INDEPENDENT CHILDREN’S LAWYER: Loretta Terrill

FILE NUMBER: MLF 2039 of 2004

DATE DELIVERED: 27 November 2007

PLACE DELIVERED: Albury

PLACE HEARD: Melbourne/Albury

JUDGMENT OF: Justice Cronin

HEARING DATE: 17, 18, 19, 20, & 21 September; 23 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Stewart

SOLICITOR FOR THE APPLICANT: Robb & Associates Solicitors Pty Ltd

COUNSEL FOR THE RESPONDENT: Mr Robinson

SOLICITOR FOR THE RESPONDENT: Forte Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Weil

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Loretta Terrill Family Lawyers

Orders

Upon the application of the Independent Children’s Lawyer for an order for costs,

IT IS ORDERED

1. That the application be dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE/ALBURY

FILE NUMBER: MLF 2039 of 2004

MS TAIT  

Applicant

And

MR DENSMORE  

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT (COSTS)

1. This day I delivered reasons for judgment in relation to the parenting dispute and in particular, the wife’s application to relocate the children to Queensland.

2. As a consequence of the conclusion of the case, the Independent Children’s Lawyer pursuant to instructions from Legal Aid NSW sought an order that the parties contribute towards the costs of the Independent Children’s Lawyer.

3. I refused the application at that time.  These are my reasons for doing so.

4. Section 117 of the Family Law Act1975 (Cth) (“the Act”) requires that each party bear his or her own costs. However, if the Court is of opinion that there are circumstances that justify it doing so, the Court may make an order for costs subject to consideration of the matters set out in s 117(2A) of the Act.

5. Accordingly, the determination of the costs application is a two step process.

6. There must first be some circumstance that justifies the Court making the order.  In a relocation case of this nature, regardless of what assistance the parties and the Court is provided by an Independent Children’s Lawyer, it is hard for the parties who both have very close and strong relationships with the children, to capitulate.

7. Having regard to the extensive findings that I have made and in particular, the most recent report of Mr P which the parties had, it is understandable that the matter had to be litigated. 

8. It has been said many times in the Court that the most difficult cases that judges have to determine are those relating to a party relocating to such an extent as to affect the ongoing relationship with the other parent.  This case is not only no different from any other such case but one in which the husband not only will have to adapt to a different regime of maintaining his relationship with the children but also have to accept my findings that there was no real substance to the complaints that he was making about the wife’s parenting. 

9. In my view, it would be unjust to ask a parent in these circumstances to make a contribution towards the costs of the Independent Children’s Lawyer in circumstances where both parties had some legitimate expectations of a favourable outcome.

10. In addition, I am also mindful that the financial circumstances of each party were unclear but even on the findings that I have made, each will have to reorganise their financial lives substantially.  In the wife’s case, she will have to not only fund her own case but from her capital resources, organise some accommodation for the children in Queensland, set aside a fund for future airfares as well as provide travel on a regular basis for herself and the children to ensure that my orders are carried out.  The husband likewise will now have to face the prospect that his expenses associated with the travel will increase at a time when he says that he is still building his business.

11. It would not be reasonable to say that a party has been wholly unsuccessful in these proceedings nor that the proceedings were conducted on the basis that someone has not properly provided information to the Court.

12. In the circumstances, I decline to make any orders for costs.

I certify that the preceding Twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate

Date:  27 November 2007