Tatnall and Harthope (Costs)

[2011] FamCA 395

FAMILY COURT OF AUSTRALIA

TATNALL & HARTHOPE (COSTS) [2011] FamCA 395

FAMILY LAW - COSTS – oral application made by the mother - relevant legal principles - relevant matters

Family law Act 1975 (Cth): section 117(2), 117(2A)

APPLICANT: Ms Tatnall

RESPONDENT: Mr Harthope

FILE NUMBER: NCC 66 of 2008

DATE DELIVERED: 31 May 2011

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Rose J

HEARING DATE: 31 May 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mark Evans Solicitor

COUNSEL FOR THE RESPONDENT:	I Duane
SOLICITOR FOR THE RESPONDENT:	Mullane & Lindsay Lawyers

Orders

1. That the father pay the mother’s costs of and incidental to the Contravention Application filed 9 November 2010 limited to the alleged contravention referred to in paragraph seven of the application as assessed and agreed upon or, failing agreement as taxed.

   
   
   

2. That the oral application of the mother for an order for costs against the father in respect of the Contravention Application filed 25 February 2011 is dismissed.

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

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: NCC66 of 2008

Ms Tatnall

Applicant

And

Mr Harthope

Respondent

REASONS FOR JUDGMENT

Introduction

1. An oral application was made on behalf of the mother for an order for costs against the father in relation to the two contravention applications filed 9 November 2010 and 25 February 2011 respectively as referred to in the substantive judgment.

2. The general principle in this jurisdiction is that each party bears his or her own costs.  Costs do not follow the event as is the case in other jurisdictions.

3. However, the Court has a wide discretionary power to make an order for costs provided that a circumstance has been established which may make such an order proper in accordance with section 117(2) and also having regard to relevant matters that arise under section 117(2A).

Oral application of the mother for costs with respect of the contravention application of the father filed 9 november 2010

1. So far as the first contravention application is concerned it was dismissed without the respondent mother having to go into evidence.  On that basis, in my view, a circumstance has been established which may make it proper for an order for costs to be made.  When I refer to the first application I am referring to the contravention alleged in terms of Order 3.35(v)(a) of the consent orders otherwise particularised in paragraph seven of the first application.  The alleged contravention referred to in paragraph nine was no longer pressed.

2. In my view, the evidence in support of the application was not persuasive to attract the provisions of section 70NAC of the Act. 

3. The financial circumstances of the parties are very limited.  The only evidence I have before me is that each of them is in employment.  I do not have any other evidence of any other significant property or liabilities or their estimated reasonable financial commitments, let alone their income.

4. I also take into account that whilst the applicant father may not have known of the date and time when the mother communicated with Contact Centre 1 or the circumstances which led her to believe that communication had taken place through her solicitor in accordance with the relevant order.  Nonetheless, to have persisted with the application when arrangements subsequently were made for him to see L, albeit in distressing circumstances for the child and no doubt for each of the parties, represented a litigious attitude that someone more pragmatic and intent on focussing on more substantive issues may not have taken.

Conclusion

1. Consequently, for those reasons and in particular that the application was dismissed without the need for the respondent mother to enter into evidence are the reasons why I have concluded that an order for costs will be made in favour of the mother against the father.

Oral application of the mother for costs with respect of the contravention application of the father filed 25 February 2011

1. So far as the second contravention application is concerned, the discretionary power to make an order for costs also dictates the outcome together with not only the sections to which I have referred, but other relevant parts of the legislation to which counsel for the father helpfully referred.

2. There is a circumstance which may make an order for costs proper and that is that the father was unsuccessful in his application and indeed wholly unsuccessful.

3. I am however, required to taken into account other relevant matters pursuant to section 117(2A). 

4. The matters to which I will refer are those the subject of submissions by the solicitor for the mother and counsel for the father.

5. The evidence of the financial circumstances of the parties is very limited to which I have earlier referred.

6. So far as the conduct of the proceedings is concerned this must be seen in the light of consent orders having been made on 22 October 2010.  Those consent orders set out in considerable detail the expected furtherance of the relationship between the father and the two children of the relationship and in particular L.  This is against a background of litigation between the parties in this Court and litigation in which issues between them, indirectly in relation to the two children, were the focus of apprehended violence proceedings in the Local Court.

7. Consent orders that were made are impressive in their detail and thought.  Unfortunately, the focus of both parents at times seems to have been of finding fault with the other.  The child has become embroiled in their disputes regardless of the merits.  I can understand the sense of frustration that the father has undoubtedly experienced when, against a background of very detailed consent orders, each attempt to spend time with the child has been marked with tension, pressure and trauma for the child despite what the father considers to have been his best efforts.  As I have already found the father’s best efforts at times have been misguided whether that is solely due to his mindset at the time or influence by others close to him, I am not in a position to say.

Conclusion

1. The second application in my view represented a case of substance.  The application failed because of the more complete evidence that I have had to consider represented by the evidence of the mother and her witnesses and importantly the clinical notes of the two psychologists which became Exhibits 2 and 3.

2. In those circumstances, I am not persuaded that an order for costs should be made against the father, but rather that the general rule should apply, namely that each party bears his or her own costs.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose delivered on 31 May 2011.

Associate: 

Date:  1 June 2011