Whipp and Richards

[2009] FamCA 134

FAMILY COURT OF AUSTRALIA

WHIPP & RICHARDS [2009] FamCA 134

FAMILY LAW – COSTS

APPLICANT: Ms Whipp

RESPONDENT: Mr Richards

FILE NUMBER: SYC 4363 of 2007

DATE DELIVERED: 26 February 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 26 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Knox

SOLICITOR FOR THE APPLICANT: Diana Perla & Associates

COUNSEL FOR THE RESPONDENT: Mr Campton

SOLICITOR FOR THE RESPONDENT: Meyer Pigdon

Orders

IT IS NOTED THAT:

1. The applicant mother has discontinued the application for a stay filed on 9 January 2009. 

IT IS ORDERED THAT:

1. The father’s application for costs in relation to the stay proceedings be dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4363 of 2007

MS WHIPP 

Applicant

And

MR RICHARDS

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter I have made an order for the child to have time with her father in April and the mother has appealed the terms of those orders.  An application was made by the mother for a stay of orders that I have made but has now discontinued her application for a stay.  The father seeks the mother pay his costs of that application. 

2. For reasons explained in my reasons, I was unable to deliver reasons for the orders made until 11 February.

3. The mother filed the application for a stay on 9 January and it was given a return date on 16 January at 4 pm.  I was on leave at that time and the matter came before another Judge who correctly indicated that it would be more appropriate for the matter to be listed before me and I am satisfied it was then listed at a time that was at one point said to be convenient to counsel for the mother.  For reasons that have not been explained Mr Batey did not turn up on that morning.  The mother’s former solicitor was ill and in fact is so ill that he was no longer able, in the end, to continue acting for the mother in the matter and Ms Perla came into the matter shortly before February. 

4. It should have been clear to the mother that the application for a stay was doomed on the basis that if I had granted the stay it would have rendered any defence to the mother’s appeal nugatory in circumstances where I had already found that it was in the child’s best interests to have the time that I had ordered with the father.  The appropriate application to have made was for expedition to the Full Court so that my reasons for judgment be tested prior to the operation of the order which is for a discrete one-off period of time that commences in the beginning of April.  That application has now been filed.

5. It might therefore be said that the application for the stay has been wholly unsuccessful.  That is one of the matters I have to take into account under s. 1172(A) but there are extenuating circumstances in this case, particularly the mother’s former solicitor’s illness, the very late entry into the proceedings by the mother’s new lawyers, the circumstances which dislocated the orders I made from the delivery of my reasons and my reasons not actually being delivered until 11 February.

6. The other aspect of the matter that would mitigate against me making no order for costs in this case is the fact that I have to take into account the relative financial position of the parties.  I have heard evidence about what the mother’s financial position is and there is some question, having heard that evidence, as to whether or not she has got the capacity in her own right to pay any order.  She gave evidence that her parents are funding the proceedings but no application is made against them. 

7. The husband’s financial circumstances are a total mystery to me on the evidence before me.  All I know is that he lives in New York and I know he has the capacity to make flights to Australia, I have been told previously on a quarterly basis.  Otherwise I do not know what his financial position is.  The mother, in her most recent affidavit which was not the subject of any testing, indicates that he is not actually paying any money currently for the child’s support.  I am really uncomfortable about the fact that I do not know what the relative financial strengths of the parties are.

8. The father did make an offer to the mother’s new solicitor that the father would consent to withdrawal of the stay application without cost penalty but the timing of that offer, relative to when that solicitor commenced to act for the mother, means that it is not a matter of great weight in my deliberations. 

9. For the reasons expressed, I dismiss the application for costs.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts

Associate: 

Date:  26.2.2009