WEERASINGHE & COOK

[2017] FamCA 1135

FAMILY COURT OF AUSTRALIA

WEERASINGHE & COOK [2017] FamCA 1135

FAMILY LAW – COSTS – Where the wife made an application seeking contribution to payment of legal costs incurred in her application – Where the husband did not oppose the orders sought – Where the husband did nothing to make it easy for the wife to give effect to that unspoken agreement – Where the wife has incurred legal expenses unnecessarily – Costs awarded.

Family Law Act 1975 (Cth) ss117, 117(2), 117(2)(a)

APPLICANT: Ms Weerasinghe

RESPONDENT: Mr Cook

FILE NUMBER: PAC 1753 of 2015

DATE DELIVERED: 20 December 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 20 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Harper

SOLICITOR FOR THE APPLICANT: Gordon & Barry Lawyers

THE RESPONDENT: No appearance

IT IS NOTED:

1. The wife has complied with Order 15 dated 19 December 2017.

2. There has been no appearance by the husband today.

3. Order 14 which stayed the operation of Orders 2 – 13 until 12 noon today is now spent.

4. Orders 2 – 13 dated 19 December 2017 are fully operative.

IT IS ORDERED:

1. That the husband contribute to the wife’s costs of and incidental to this application in the amount of $5,000 which is to be paid within 8 weeks of the date of these orders.

2. All outstanding applications are dismissed.

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 Weerasinghe & Cook 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 SYDNEY

FILE NUMBER: PAC 1753 of 2015

Ms Weerasinghe

Applicant

And

Mr Cook

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The applicant wife (“the wife”) has applied for a contribution by the respondent husband (“the husband’) to the costs she has incurred in this application.  The application sought a series of parenting and related orders concerning the parties’ two children, B and C (“the children”).  The children live with the wife and have done so since the parties separated on 12 July 2014.  The mother re-partnered and in late 2017, her partner was offered a position in the Caribbean to commence 1 January 2018.  As a result, the wife sought the husband’s agreement that she be allowed to take the children with her to the Caribbean for a period of approximately two years.

2. The husband’s role in the children’s lives since separation has been quite limited and he has not spent time with them since July 2017.  Given that there were no orders in relation to the children the wife could have taken the children out of Australia without approaching the husband.  She was very sensible not to do so.

3. It is accepted that it was necessary for the wife to approach the husband and seek his consent in order to give effect to her plans to join her partner and have the children with them in the Caribbean.  Notice was given to the husband and the plans for the trip were provided to him.  The pre-action protocols that one would hope to see completed were undertaken.  In the correspondence provided to me in support of the application, the husband did not oppose the children being taken to the Caribbean or any of the arrangements for them outlined by the wife in the correspondence that has passed from her and her lawyers. 

4. However, the husband did nothing to make it easy for the wife to give effect to that unspoken agreement.  Thus, the application was necessary and it has been entirely successful, subject to some minor tweaking of the orders sought.  Be that as it may, the husband ought to have cooperated with the wife and enabled the tacit agreement to be given effect to without the wife needing to spend as much money on lawyers as has, in fact, unfolded. 

5. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) is the governing provision concerning costs. The provision proceeds on the basis that parties ordinarily meet their own costs. That is unless the court is satisfied that there are circumstances which justify an order for costs. I am satisfied that the husband’s failure to properly engage with the wife’s attempts to resolve this matter by agreement and in a way which minimised the expense to her is a justifying circumstance.

6. Turning then to s 117(2A), the evidence suggests that the wife is financially secure and the husband may well be in somewhat strained financial circumstances. The application of s 117(2A)(a) thus weighs in favour of there being no order for costs. However, it is well settled that impecuniosity is no barrier itself to costs and notwithstanding that the husband’s apparently limited financial circumstances weigh in his favour, I give much greater weight to the fact that by virtue of his conduct the wife has incurred legal expenses unnecessarily.

7. The amount of $5000 is but a portion of the wife’s not insignificant legal expenses and I am satisfied, in the circumstances of this case, that the amount sought is proper.  In response to what seems to be the husband’s financial circumstances, I will make the order for costs payable in eight weeks. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 20 December 2017.

Associate:

Date:  2 February 2018