Turner and Alexander (No. 3)

[2014] FamCA 353

FAMILY COURT OF AUSTRALIA

TURNER & ALEXANDER (NO. 3) [2014] FamCA 353

FAMILY LAW – COSTS – father successful in his costs application against the mother – opportunity for parties to consider judgment and address further issue – issue as to the time for payment by the mother – where the mother says she cannot meet any order for costs – where the mother disputes the father’s financial circumstances as set out in his financial statement – order made for mother to pay costs within 90 days.

Family Law Act 1975 (Cth)

APPLICANT: Mr Turner

RESPONDENT: Ms Alexander

FILE NUMBER: MLC 7872 of 2007

DATE DELIVERED: 22 May 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 22 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Werner

SOLICITOR FOR THE APPLICANT: Hutchinson Legal

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: N/A

Orders

IT IS ORDERED THAT

1. By 4.00 pm on 15 August 2014 the mother pay the father’s costs fixed in the sum of $22,793.

2. The father’s costs application be otherwise dismissed and the matter be removed from the list of cases awaiting hearing.

IT IS DIRECTED THAT
All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Turner & Alexander (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:   MLC 7872 of 2007

Mr Turner

Applicant

And

Ms Alexander

Respondent

REASONS

1. I have this day published my reasons for judgment in the matter of Turner & Alexander (No. 2) in relation to the father’s application that the mother pay his costs of the hearing in relation to parenting matters in the sum of $44,587.35.  In those reasons I have concluded that the mother should pay costs and that those costs should be fixed in the sum of $22,793.  I indicated that I proposed to make that order and that the amount be payable 90 days from the date of the order, but that I would allow the parties the opportunity to make submissions with respect to the time for payment. 

2. The father did not seek to make any submissions with respect to the 90 day period I proposed to allow the mother in which to pay those costs.  The mother has made a number of submissions which include a submission that she does not have a capacity to meet the costs order that I propose to make and that it would take her years based upon her income to make that payment.  The mother has had some difficulty distinguishing between – and this is not a criticism at all – the issue of the time for payment and whether or not she should be required to make that payment as I have already concluded in my reasons she should do.

3. On 31 March 2014 I made orders in Chambers that the parties file and serve upon each other a financial statement in accordance with Chapter 13 of the Family Law Rules 2004 (Cth). The mother submits that the father has not accurately disclosed his financial position in the financial statement that he filed pursuant to that order.

4. My initial reaction was to allow the mother the opportunity to cross-examine the father in relation to his financial circumstances, however, upon reflection and after considering the submissions made by Mr Werner for the father, counsel is correct in submitting that I have already concluded in my reasons that the parties’ financial circumstances would neither preclude my making an order for costs nor lead me to the conclusion that I should, and that financial circumstances of the parties is just one of the factors that I have taken into consideration in relation to the orders I propose to make. 

5. In relation to the timeframe for the payment I have been advised by Mr Werner, having obtained instructions from his client, at my request, that the father has paid all his legal costs but that he has done so using a credit card which he is paying off as and when he is able to.  It is certainly the case, as I noted in my reasons, that he has a significant credit card debt in the sum of approximately $73,000.  The mother submits that she also had to borrow money to pay her legal costs and could not borrow further, which was in fact the reason why she said she appeared in person at the trial. 

6. The mother also has a credit card debt, however I note that according to her financial statement her credit card debt has a balance of $10,000 as against the $73,000 of the father.  I am also mindful of the fact that the father is only seeking costs in relation to the trial itself, when he would  no doubt have incurred significant legal costs leading up to that trial for which he has made no claim.  I must and have weighed up all these factors in relation to whether or not an order for costs is justified and then in exercising my discretion as to the quantum. 

7. The figure that I have determined the wife should pay, as referred to in my reasons, does take into account the parties’ respective financial circumstances and, in particular, I make reference to the fact that the father has a significantly greater income earning capacity than does the mother. However, I am also mindful of the fact that the amount I have ordered is only half of an amount that was limited to the costs of the trial which I also found were reasonable in all of the circumstances. 

8. I also must exercise my discretion with respect to the time for payment.  I am satisfied that if I allow the mother 90 days as I had originally proposed that it will give her the opportunity to investigate avenues of raising the necessary funds to meet the liability for costs that is now imposed upon her.  In all of the circumstances I therefore propose to allow the mother 90 days in which to pay the father’s costs fixed in the sum of $22,793. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 22 May 2014.

Associate: 

Date:  30 May 2014