THOMAS & WINN (No.2)

FEDERAL MAGISTRATES COURT OF AUSTRALIA

THOMAS & WINN (No.2) [2005] FMCAfam 357

CHILD SUPPORT – Costs – applicant wholly unsuccessful – costs ordered against applicant.

Family Law Act1975, s.117

In the marriage of Kelly (No.2) (1981) FLC ¶91-108

Penfold v Penfold, (1980) 144 CLR 311
Re Collins and Victorian Legal Aid Commission (1984) FLC ¶91-508

Applicant: GLEN PHILLIP THOMAS

Respondent: BERNADETTE MARY WINN

File No: TVM 218 of 2003

Delivered on: 15 July 2005

Delivered at: Melbourne

Date of Last Submission: 20 May 2005

Judgment of: Riethmuller FM

REPRESENTATION

Counsel for the Applicant: Applicant appeared on his own behalf

Counsel for the Respondent: Wayne Pennell

Solicitors for the Respondent: Lee Turnbull & Co

ORDERS

1. The applicant pay the respondent’s costs fixed in the sum of $10,943.00.

2. The applicant pay the reasonable costs of International Risk & Development Consultants Pty Ltd and Janco Developments Pty Ltd, as agreed, and failing agreement to be assessed by the Registrar of the Family Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
Townsville

TVM 218 of 2003

GLEN PHILLIP THOMAS

Applicant

And

BERNADETTE MARY WINN

Respondent

REASONS FOR JUDGMENT

1. This is an application for costs by each party to the litigation.  The costs application follows my judgment in the substantive matter, Thomas & Winn [2004] FMCAfam 184.

2. The respondent seeks costs in the sum of $14,227.00 against the applicant.  The applicant seeks costs in the sum of $14,182.73 against the respondent.

3. Costs in child support matters are governed by s.117 of the Family Law Act. Section 117(1) states that subject to subsection 2, each party shall bear their own costs. Subsection (2) provides that if:

   (2)  If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

4. The relevant considerations are set out in s 117(2A), which is in the following terms:

   (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…