Whitmore and Patrick

[2009] FamCA 1212

FAMILY COURT OF AUSTRALIA

WHITMORE & PATRICK [2009] FamCA 1212

FAMILY LAW – COSTS

APPLICANT: Ms Whitmore

RESPONDENT: Mr Patrick

FILE NUMBER: SYF 4075 of 2005

DATE DELIVERED: 10 December 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: COHEN J

HEARING DATE: 10 November 2009

REPRESENTATION

APPLICANT: Mr Hamilton of counsel

RESPONDENT: In person

Orders

1. The mother’s Application in a Case filed 2 May 2008 is hereby dismissed.

2. There shall be no order for costs of that application.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4075 of 2005

MS WHITMORE

Applicant

And

MR PATRICK

Respondent

REASONS FOR JUDGMENT

Introduction

1. Her Honour Justice Moore delivered judgment in children’s proceedings between the parties on 4 April 2008.  The mother filed an application for costs on 2 May 2008 but for reasons which warranted the delay which has occurred in hearing that application it was not heard before her Honour retired.  I am now required to determine the costs issue.

2. The mother argued that the disparity in the parties financial circumstances, the fact that the orders which were made were such that the father could be regarded as wholly unsuccessful and the fact that the father, by his conduct, unduly delayed and prolonged the hearing and also failed to comply with orders warrant an order for costs.  The order of the Court largely coincided with the contact regime the mother first indicated preparedness to concede in March 2007.  That the orders the father sought were so dissimilar to those which were made and were always by their nature highly unlikely to be made were said to be the basis for a finding that the father was wholly unsuccessful.  The conduct of the father which was said to delay and prolong the proceedings unduly was said to be his prolixity while giving evidence under cross examination and his late decision to call additional witnesses and to rely on matters which had not been the subject of earlier filed affidavits.

3. The mother also says that the father, despite the proceedings and orders for contact, has failed from January 2009 to take the contact he was granted. She claims this has made the proceedings redundant and that is a further circumstance which warrants a finding that an order for costs against the father pursuant to s 117(2A)(g) is justified.

4. I note that counsel appeared for the mother on the costs application.  He did not press all the arguments contained in the mother’s solicitor’s affidavit filed 2 May 2008.

5. The father has argued that there was no adverse finding against him about his conduct.  The orders he sought were mainly in relation to a single contact period.  He assumed that otherwise the contact routine would settle into something much like the mother had agreed to.  He submitted that the financial disparity between the parties in his favour…