Whitecross and Reilly (No 2)

[2016] FamCA 308

FAMILY COURT OF AUSTRALIA

WHITECROSS & REILLY (NO 2) [2016] FamCA 308

FAMILY LAW – COSTS

Family Law Act 1975 (Cth)

APPLICANT: Mr Whitecross

RESPONDENT: Ms Reilly

FILE NUMBER: MLC 2793 of 2008

DATE DELIVERED: 21 April 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 21 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Mcleod

SOLICITOR FOR THE APPLICANT: Altavilla Vessali

THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER

SOLICITOR FOR THE INDEPENDENT
CHILDREN’S LAWYER

Ms Treyvaud

Kenna Teasdale Lawyers

Orders

1. That the application in a case filed by the father on 13 April 2016 is struck out.

2. That the father pay the Independent Children’s Lawyer’s costs fixed in the sum of $4700.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Whitecross & Reilly (No 2) 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 2793 of 2008

Mr Whitecross

Applicant

And

Ms Reilly

Respondent

REASONS FOR JUDGMENT

1. This is an application by the independent children’s lawyer for costs arising out of two hearings, one last week and one this week.  The day upon which this trial concluded, I indicated that I would deliver judgment as quickly as possible and my usual practice would apply, namely that the parties did not have to attend, but they would otherwise be notified of the date and the judgment could then be disseminated electronically.  On 13 April 2016, which coincided with the date upon which the judgment would have probably been delivered, an application was made by the father to reopen on the basis of some evidence presented to him by a man by the name of V.

2. The application to reopen was going to be based upon the evidence of an incident said to have been as a result of a complaint by a child aged four.  Because of the nature of that application and the evidence in support of it, I thought it was necessary to give the parties an opportunity to argue it.  Indeed, counsel for the independent children’s lawyer indicated that if it was to be proceed on the evidence of Mr V, then he was required for cross-examination.

3. That necessitated the proceedings being adjourned until today, so that that witness could be called.  The applicant father has withdrawn his application for no reasonable explanation.  That means the independent children’s lawyer has incurred two days of counsel’s fees and obviously the preparation that goes with that. 

4. Section 117 of the Family Law Act provides that in proceedings in this court, under the Act, each party shall bear their own costs unless there are circumstances to justify departure from that principle. If there are such circumstances, the court must consider the matters set out in section 117(2)A of the Act.

5. The application was brought seriously on the basis of evidence that entirely came from one man, who I now understand is not to give evidence. The withdrawal of the application is therefore a justifiable reason to depart from s 117(1). If one considers the question of section 117(2)A, whilst the financial circumstances of the father are not entirely clear, he has had solicitor and counsel here on two occasions, so I presume that he is not impecunious. In addition, I presume he has contributed towards the costs of the witness attending.

6. The applicant for the costs is here at the taxpayer’s expense.  I see no reason why the taxpayer should bear the costs, having regard to what seems to have been a fruitless exercise.  The other point is the question of whether or not the applicant has been wholly unsuccessful.  It is hard to say that he has been unsuccessful, because I have not heard the matter on its merits.  But in any event, he has decided that he is not going to proceed with the application, bearing in mind the affidavit was before the court last week.

7. In this case, it is clear that an order for costs should be made, because to do otherwise would be unjust to the taxpayer.  In my view, the costs order should be made in the sum of $4700, there being no dispute as to quantum.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 21 April 2016.

Associate: 

Date:  5 May 2016