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THE FATHER SEEKS ORDERS FROM COURT FOR MATERNAL GRANDMOTHER TO PAY HIS LITIGATION COSTS

PALMA & MURPHEY

FEDERAL CIRCUIT COURT OF AUSTRALIA

[2020] FCCA 120

 

This is the determination of the father’s application for costs, seeking an order for the maternal grandmother to pay his costs in responding to her Contravention Application.

Facts:

Ms. A Murphey (Maternal Grandmother and Respondent) filed a Contravention Application against Mr. Palma (Father and Applicant) as the latter had not been willing to negotiate a change in the orders of the Family Court of Australia.  The Contravention Application was dismissed after the Court determined that the paternal grandmother’s evidence in support of the filed application did not prove alleged contraventions.  Mr. Palma then filed an application for costs, seeking for Ms. A Murphey to pay his costs in responding to the Contravention Application. 

Issue:

Should the Court make orders for costs as sought by Mr. Palma against Ms. A Murphey?

Held:

The Court held that it would not be just for it to make an order of costs against Ms. A Murphey.

The Court referred to section 117 of the Act,[1] which relates to costs.[2]  Under the said section, it is provided that each party to proceedings under this Act shall bear his or her own costs. 

Further, Ms. A Murphey asserted that she does not have the funds to pay for Mr. Palma’s legal fees.  Moreover, she asserted that she had no choice but to file the Contravention Application as Mr. Palma had not been willing to negotiate a change in the orders of the Family Court of Australia.  Finally, the Court acknowledged that Ms. A Murphey’s Contravention Application led the Court to make variation orders under section 70 NBA (1)(b)(i) of the Act.  Hence, with these circumstances, the Court dismissed Mr. Palma’s Application.

 

Section 117 of the Family Law Act provides that each party to proceedings under this Act shall bear his or her own costs.  In addition, given the circumstances of Ms. A Murphey, including her financial circumstance, it is not just for her if she would be made to pay Mr. Palma’s court costs.

 

[1] FAMILY LAW ACT 1975 - SECT 117 Costs.

[2] (2A)  In considering what order (if any) should be made under subsection (2), the court shall have regard to:

  1. the financial circumstances of each of the parties to the proceedings;
  2. whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
  3. the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
  4. whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
  5. whether any party to the proceedings has been wholly unsuccessful in the proceedings;
  6. whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
  7. such other matters as the court considers relevant.
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