Theodore and Theodore (No. 2)

[2018] FamCA 292

FAMILY COURT OF AUSTRALIA

THEODORE & THEODORE (NO. 2) [2018] FamCA 292

FAMILY LAW – COSTS – Where application for costs of father’s further interim parenting proceedings – Where father totally unsuccessful – Where application precipitate in time – Consideration of applicable principles – Where general principle displaced – Where father ordered to pay costs as agreed or assessed.

Family Law Act 1975 (Cth) ss 117
Family Law Rules 2004 (Cth) rr 19.08, 19.18, Sch 3

Beach Petroleum NL v Johnson (No 2) (1995) 135 ALR 160
Collins and Collins (1985) FLC 91-603
Greedy and Greedy (1982) FLC 91-250
Hawkins & Roe [2012] FamCAFC 77
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Luadaka v Luadaka (1998) FLC 92-830
Parke & the Estate of the Late A Parke (2016) FLC 93-748
Penfold v Penfold (1980) 144 CLR 311
Theodore & Theodore [2017] FamCA 588
Theodore & Theodore [2018] FamCA 188

APPLICANT: Mr Theodore

RESPONDENT: Dr Theodore

INDEPENDENT CHILDREN’S LAWYER: Ark Law Lawyers

FILE NUMBER: PAC 5789 of 2014

DATE DELIVERED: 4 May 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: By way of written submissions last received on 23 April 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Batey

SOLICITOR FOR THE APPLICANT: Rowlandson & Co Solicitors

COUNSEL FOR THE RESPONDENT: Ms De Vere

SOLICITOR FOR THE RESPONDENT: Withstand Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Rutkowska of Ark Law Lawyers

Orders

1. That the husband pay the wife’s costs of and incidental to the further application for interim parenting orders and of this costs application such costs as agreed within one month from this date or otherwise as assessed.

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 Theodore & Theodore (No. 2) 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 PARRAMATTA

FILE NUMBER: PAC 5789 of 2014

Mr Theodore

Applicant

And

Dr Theodore

Respondent

REASONS FOR JUDGMENT

1. The application for determination is the mother’s application for costs as to the father’s further interim parenting proceedings subsequent to the dismissal of the father’s further application.

2. Orders as to interim parenting were made on 11 August 2017 following an interim hearing: Theodore & Theodore [2017] FamCA 588. Those orders provided:

   (1)That all previous parenting orders are suspended.

   (2)That the mother have sole parental responsibility for the children B born … 2009 and D born … 2010.

   (3)That the children live with the mother.

   (4)That the children spend time with the father as agreed between the father and…