MOTHER SEEKS THAT THE FATHER PAY FOR HER COSTS IN THE LITIGATION INSTITUTED BY THE FATHER WHICH AIMED TO RE-ESTABLISH THE FATHER’S RELATIONSHIP WITH THE CHILD AND ALSO TO SEEK FOR PARENTAGE ORDER
Pedders & Becking [2020] FCCA 2641 (23 September 2020)
This case involves the mother seeking the father to pay her cost of litigation after the father instituted the application to re- establish his relation with his child and also to seek for parentage order.
Facts:
On 5 April 2018 orders were made by consent, at a time when both parties were legally represented, in respect to the child X. The orders required X to live with the mother, who was granted sole parental responsibility, and the father’s time was limited essentially to cards, letters and presents.
On 16 July 2020 the father sought various orders designed to re-establish a relationship between him and X, whom he had not seen since 2018. He also sought a parentage order. That test was conducted and it became apparent that the child is indeed his. To make such an application some six years after separation, it is immediately apparent, is somewhat strange. Hence, the court dismissed the father’s application.
The mother seeks that the father pays her costs of the most recent tranche of litigation between the parties. The father naturally resists that application.
In her written submission, the mother states that her expenses do not outstrip her income or she would not have been able to save while the father is in an extremely secure financial position.
Issue:
Should the father pay the mother’s cost?
Law:
- The general rule is that each party bears their own costs (section 117(1))
- The Court, however, may, if it is of the opinion that there are circumstances that justifies in doing so and subject relevantly to subsection (2A), make such orders as to costs as the Court considers just (section 117(2)).
Analysis:
Taking into consideration the father’s complete lack of success in the proceeding and the somewhat misconceived basis upon which he pursued it, and bearing in mind his healthy financial situation and the mother’s strained one, the court thinks it is entirely appropriate that he pay costs. The court notes that the mother does have some financial resources and is notes that it would seem that her expenditure does not exceed her income. Nonetheless, she is the one living on statutory benefits.
Conclusion: The applicant father is hereby ordered to pay the mother’s cost.