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Awarding costs
Posted 06 February, 2012, 04:00 PM
#44945
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My ex has remarried. She has custody of our daughter but I see her every second weekend. She is relocating with her new husband as he has been promoted. I am opposing the relocation. She has initiated court action and I have just received the paperwork from the balif. I noticed that as part of her application she is asking for costs to be awarded as well. I want to minimise my expenses and as such have decided to self litigate. What are the chances that the court will award costs in her favour? As such I could be liable for expenses as well as the costs of a family report should the court order one.
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Posted 06 February, 2012, 04:23 PM
#44948
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If I may ask on what grounds are you opposing? If your argument, especially as you want to represent yourself, comes across as being "selfish" the court might just award costs against you if judgement is not in your favour.

How old is your daughter? Do you already have orders perhaps?
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Posted 07 February, 2012, 07:20 AM
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Stoog,
         costs are generally only awarded if the party is wholly unsuccessful. It is very common for costs to be claimed as a tactic to try to scare a party into relenting to the demands of the party claiming the costs. Around 95% of matters do not go the distance of actually being decided upon by a judge or magistrate but rather they get settled out of court (you will very likely be given chances to settle along the journey).

I'd suggest that you ignore quests very limited observation regarding being selfish. It is unlikely that a judge or magistrate would award costs simply for being selfish. However, if one is selfish it could lead to that selfishness leading to demands that result in a wholly unsuccessful result. However, there are other traits that could lead to the same wholly unsuccessful result, one of those could be being unselfish.

The age of the child, rather the mental maturity of the child, could be a contributory factor as if the child is given a say then the weight of the child's expression will increase with the maturity of the child.

You may wish to search austlii for judgements where costs have been awarded. A search on here for "costs" would show some discussions regarding costs.

Disclaimer - I apologise for any adverse reaction/feeling you may have if you are not of sound mind and therefore take this disclaimer and everything I post ridiculously out of context and see the hidden gender-biased messages that my lack of self-awareness allows me to actually be aware of and compose without actually even composing them.

Thanking Larissap for the inspiration behind this signature.

When asked about hand written notes on the document marked as Exhibit 3 the best that the Applicant maternal grandmother could say was :
 It looks like my handwriting!
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Posted 07 February, 2012, 07:36 AM
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Do your current orders say anything about relocation?

Were you asked about relocation or just told about it?

Cost is just the usual 'scare 'em tactic' in to not fighting their request.

Ignore what the miscreant guest poster said. She is just one of 'those' idiots.

Executive Member of SRL-Resources, the Family Law People on the site (Look for the Avatars).   Be mindful what you post in the public areas
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Posted 07 February, 2012, 11:27 AM
#44968
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Thank you MikeT and montiverdi for your comments.

For information my daughter is 5 and we don't have any orders at present. We have not been able to agree on a number of issues during the course of three mediation sessions and as such we have not agreed to any Parenting Plans.

My ex did not just "tell" me about the relocation. She did ask my permission first in an e-mail, after which she put forward a Parenting Plan which was quite reasonable I guess. We then went for mediation but then I decided to oppose as I feel it is not in our daughters best interest for her to relocate, hence her court application.
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Posted 07 February, 2012, 12:25 PM
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At age 5, it is highly unlikely that the child's views will not be given much weight. At this age they often say what they think is wanted to be said i.e. they are susceptible to suggestion.

There are plenty of posts regarding relocation. I'd suggest having a read through those posts, which should provide an insight into what is a much debated and controversial subject.



Disclaimer - I apologise for any adverse reaction/feeling you may have if you are not of sound mind and therefore take this disclaimer and everything I post ridiculously out of context and see the hidden gender-biased messages that my lack of self-awareness allows me to actually be aware of and compose without actually even composing them.

Thanking Larissap for the inspiration behind this signature.

When asked about hand written notes on the document marked as Exhibit 3 the best that the Applicant maternal grandmother could say was :
 It looks like my handwriting!
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Posted 07 February, 2012, 02:18 PM
#44979
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montiverdi, a huge assumption on your part as to me being a "miscreant" female. What gave you that impression?

 
Have you ever had to deal with a judge that is over worked? Try putting you case forward, as a SL, to a judge that is cranky due his workload (I assume it is his workload as he is the only resident judge in my town). I thought I had a good case but I got eaten up by my ex's legal team. In the end I was branded as being selfish, uncooperative... I am one of the blokes that ended up with the bill, sold my car to pay the said bill and ended up seeing my boys during holidays in any case.

Stoog, if you really think you have a strong case, get a lawyer, don't go down the path of self litigation, mate. It ain't worth it.

 
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Posted 07 February, 2012, 04:31 PM
#44985
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I have just spent my whole afternoon looking at relocation cases on the Austlii site. I am stumped. The chance of me actually being able to put a strong enough case forward is nearly zero based on what I read. I did not see a lot of applications for costs associated with these cases but that is now irrelevant for me. I am not going to win this one, am I? Some people were allowed to relocate for far inferior reasons as my ex's.
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Posted 07 February, 2012, 05:14 PM
#44989
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Stoog,
         it's impossible to say whether or not you have a chance or not, there is simply not enough information. I believe that some have said that relocation is 50/50. The fight is basically what are the advantages for the child going or not going. Certainly in your favour is the status quo, the contact/care you have reducing, any activities the child regularly does, perhaps other family members in the locality. I certainly can't see that you have zero going for the child not relocating. Perhaps go around some solicitors and use any free 1st consultations to get some ideas.

Disclaimer - I apologise for any adverse reaction/feeling you may have if you are not of sound mind and therefore take this disclaimer and everything I post ridiculously out of context and see the hidden gender-biased messages that my lack of self-awareness allows me to actually be aware of and compose without actually even composing them.

Thanking Larissap for the inspiration behind this signature.

When asked about hand written notes on the document marked as Exhibit 3 the best that the Applicant maternal grandmother could say was :
 It looks like my handwriting!
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Posted 07 February, 2012, 07:44 PM
#45006
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hi Stoog...relocation is a tough call.  However, Mike T's synopsis of costs is a "standard" wish list on most applications.  Given you have advised us that there was a fairly reasonable parenting plan provided to you; perhaps with a little more conciliation, and flexibility, would be beneficial for ALL concerned.

It is not the intention of any Government policy to further break down families.  Your daughter has alreadily accepted that daddy and mummy don't live in the same house.  She has a home (with Mummy) and this stability is important in her life.  

Today's technology allows Skype email telephone distance options for keeping in touch.  Your role as parent is to promote (and this is difficult) a positive approach to an adult decision.  This may result in a hugh sacrifice for the parent with the lower contact periods.

My only comment in relation to costs applications...is, that is, behaviours and motives of the partys' to initiate litigation. The intention of the legislation is that each party bears their own costs.  I suppose, for instance, where a parent accuses a parent of sexual misconduct with a child, without merit. Then the maliciousness, the wastage of court process, the the court would consider awarding of costs by way of a deterrent to the wider society, as well as (I don't know this) a deterrent to the litigation parent that to consider their own behaviors to using the courts to resolve issues, which a descent counciling; grief cycle analysis would be a better forum.





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Posted 07 February, 2012, 09:09 PM
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Stoog - Keep in mind that the courts sees the best interests of the child as paramount. The following cases will give you an idea of what is considered. They are all on AustLii and I don't know if you have looked at them.

W & W [2002] FMCAfam 356 (8 November 2002) (seems to be the most relevant on what information you had given) but Barningham & Barningham [2011] FMCAfam 1420 (19 December 2011) is a recent case that refers to the recent legislative changes.

There has been a High Crt decision re contact & relocation U v U [2002] HCA 36; 211 CLR 238; 191 ALR 289; 76 ALJR 1416 (5 September 2002)

I agree with the other posts re the scare tactics - don't worry too much about that.
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Posted 07 February, 2012, 10:21 PM
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Thank you all for your input. Researching cases in Austlii dated the last 2 years has given me a fairly good indication. I found 31 cases. In 23 the relocation was granted. In the 8 not granted 5 was due to a unilateral decision being made to relocate without concent. The 3 others were due to insufficient reason.
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Posted 07 February, 2012, 11:22 PM
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Stoog for 2012(1)-2011 using relocation as the search argument for the 3 Family Law databases I found 151 hits. To find all of these click on Advanced search, type in relocation as the search term and then hold down CTRL and left click on Commonwealth:Family Law Court of Australia, Commonwealth:Family Law Court of Australia(Full Court), and Commonwealth:Federal Magistrates Court of Australia - Family Law.

The full court(23 hits) is for appeals where 3 (I think) more senior judges review a case.
The Family Law Court(53 hits) will tend to take on the more difficult cases.
The starting point is I think the Federal Magistrates Court(75 hits).

Disclaimer - I apologise for any adverse reaction/feeling you may have if you are not of sound mind and therefore take this disclaimer and everything I post ridiculously out of context and see the hidden gender-biased messages that my lack of self-awareness allows me to actually be aware of and compose without actually even composing them.

Thanking Larissap for the inspiration behind this signature.

When asked about hand written notes on the document marked as Exhibit 3 the best that the Applicant maternal grandmother could say was :
 It looks like my handwriting!
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Posted 08 February, 2012, 11:08 AM
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I did the search, Mike. Concentrated on the Magistrates court as per your comment.

From January 2011 - 75 Hits - 41 Has nothing to do with relocation - 27 Relocations allowed - 7 Not allowed (5 Unilateral relocation and 2 insufficient reason to relocate).

Only in one case were costs applied for and awarded.

I don't know what to do now. I started off wanting to know what the odds are of having to pick up her legal tab but now I am not so sure that I even have a reasonable case in the first place. A case that springs to mind is Kidd & Kidd. Two great parents yet the court still allowed the relocation. I have a great relationship with my daughter but so does her mother and she lives with her. She does not go to school at present as my ex don't want to enrol her now in the event that she is allowed to relocate. She does not want to subject her to too much change as my daughter does not like it. I cannot put an argument forward at present about family as we don't have family where we live currently. My daughter does not have very close friends except for the ones that she plays with at church on Sundays and maybe some from her ballet class. How much weight will that hold?
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Posted 08 February, 2012, 12:30 PM
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Stoog,
         if there's little weight (although perhaps not as little as you think e.g. it looks as though she has regular activities, church and ballet that would be disrupted to some extent, the people she meets will be replaced with other people (assuming that ballet and church continue)), then the main point would be why the relocation and is there ample reason to justify the disruptions to the stability of the current situation. The distance may also be a factor (e.g. overseas/international would need a more compelling argument for relocation than a move within Australia). Another factor would be the reasonableness and practicability aspect in regard to facilitating a meaningful quality relationship with yourself.

I'm not sure that I've said this, but in case I haven't. I'm normally one to talk about or help with Child Support issues rather than Family Law. My actual Family Law experience is limited. I was really trying to get the ball rolling and hoped that others with greater experience would provide some input. However, I'd suggest that awarding court costs aren't likely to be an issue rather that your issue is to whether or not to try to contest relocation or whether you can get a better arrangement by perhaps using or partially using the court process.

Disclaimer - I apologise for any adverse reaction/feeling you may have if you are not of sound mind and therefore take this disclaimer and everything I post ridiculously out of context and see the hidden gender-biased messages that my lack of self-awareness allows me to actually be aware of and compose without actually even composing them.

Thanking Larissap for the inspiration behind this signature.

When asked about hand written notes on the document marked as Exhibit 3 the best that the Applicant maternal grandmother could say was :
 It looks like my handwriting!
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Posted 08 February, 2012, 01:00 PM
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You are right. My issue has changed in the space of a day from costs to contesting the relocation.

With regards to the reason for relocation - her new husband has been transfered with a substantial promotion (money and responsibility). I know he was reluctant to take up the offer but in the end I believe he had no choice. The sort off promotion that he got only comes around once in a life time. The transfer is interstate and not international.

She offered to cover all transport costs for my daughter, Skype calls 2 - 3 times a week, half of all school holidays...Can it be considered as fostering a meaningful relationship with me?
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Posted 08 February, 2012, 02:56 PM
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Stoog,
         Assuming that your daughter currently gets to see you quite frequently and that there is little, if anything,  regarding the relocation that's in the best interest of your daughter. I don't believe that half of school holidays + skype a few times a week is that good in regards to your daughter's right to have meaningful relationship with yourself. It's certainly not ideal. I'd say that at least monthly for the best part of a weekend should really be the minimum, preferably weekly or fortnightly. However, do you have that sort of level of care now? I've also assumed that there are no other complications such as protection orders.

What and how would consideration of the other parent's partner being the person who relocates or travels be taken? There would then be no impact upon the current, I assume reasonably effective, situation and thus no impact upon the best interests of the child. How strong an argument could you make for such a proposal? (perhaps a rhetorical question).

What if the child were to not relocate but reside with you with you providing the other parent with ample contact? (again perhaps a rhetorical question).

What are the practicalities of the new location? e.g. is there an airport close by and if so how regular are the flights. (at 5 your daughter could fly unaccompanied at least with Qantas). Would other means of travel be possible/ practical and reasonable? Perhaps try to work out theoretical travel plans including costs; these could be put forward in negotiations.

I suppose I'm suggesting that you could put a number of proposal forward in negotiations or via court.

Another consideration, more down my street, is as to how CS will be impacted? If the relocation goes ahead, half of school holidays would equate to 42 nights which would be under regular care and thus you would could lose the 24% or more CS reduction due to the care dropping (there's a CS calculator available from the home page, actually two but I recommend the advanced calculator). Could there be an agreement that should the relocation go-ahead that the level of care for CS purpose remain at it's current level of care? This could be made into an agreement/court order.  Some would argue that you should pay more CS due to the lesser care, but my reasoning is that the lesser care would only to be to facilitate an improvement primarily for the parents rather than the child.

Another consideration is to try to attempt to join the SRL-Resource. However, some are finding it hard to get any response and I'm not sure whether they are still operating or are very selective or are simply bogged down with work. You could try going to SRL-Resouce. Have you been to Family Law Courts - Relocation and Travel as you could try to get an order stopping the relocation until a court can decide (or you negotiate outside of court). However, it does appear the other parent is going about matters in the correct way and seeking a relocation order. It is quite pertinent what the Family Law Courts website says:

Family Law Courts Website said

If moving is going to limit the time the children live with or spend with a parent or another significant person in their lives, a court may not give permission.

i.e. there is quite a large emphasis, as it's basically the only issue mentioned, on the time the children live with or spend with a parent.

Disclaimer - I apologise for any adverse reaction/feeling you may have if you are not of sound mind and therefore take this disclaimer and everything I post ridiculously out of context and see the hidden gender-biased messages that my lack of self-awareness allows me to actually be aware of and compose without actually even composing them.

Thanking Larissap for the inspiration behind this signature.

When asked about hand written notes on the document marked as Exhibit 3 the best that the Applicant maternal grandmother could say was :
 It looks like my handwriting!
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Posted 08 February, 2012, 04:39 PM
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Stoog, it is and will always be a very difficult issue to resolve. MikeT certainly made some valid comments with regards to CS and travel plans etc. I perhaps do not share his view iro his question about the child not relocating and residing with you. I fully understand your situation but I fail to see, given the information that you have provided, how it will be in your daughter's best interest to reside with you and only see the person, who has been her primary caregiver to date, during school holidays etc. I am assuming that the distance between the two of you, once she relocated, will be such that it is impractical to commute frequently.

You mentioned the absense of family in your current city...your daughter not currently attending school... If that had not been the case I would like to think that you would have had a fairly strong case. I don't think the friends that she sees at church on Sunday or the dance classes are going to carry that much weight. I can be completely wrong though.

I would really like to suggest that the two of you sit down and come to some sort of an agreement on the lessor of the evils. When the court makes a decision there can only be loosers and most often than not it is the children who cops the brunt of it.
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Posted 08 February, 2012, 06:27 PM
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I have decided to follow your advice, Mike. I have made an appointment with a solicitor (free) to get some perspective. Depending on on the web outcome I might try to make another appointment.

Thanks for the feedback. Much appreciated.
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Posted 08 February, 2012, 08:33 PM
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Just from another perspective, based upon the facts in the High Court decision, is there any reason that the other parent's partner can't do a 'fly in/fly out' arrangement (i.e. work interstate during the week, fly home on weekends) and the other parent stay put with the child? Is there any reason you can't relocate to be near the child?.... these are options that may be considered

NOTE I am not advocating these ideas as being the ideal solution, but bear in mind, they should be explored.
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