NSW Family Court - Changing Family Court Orders - Can Ex Pay the Costs?

[Corinne]

Hey,

Hypothetical situation that could possibly become a reality very soon:

A mother wants to move 3.5 hours away with her child. The father reluctantly consents based on false promises provided by the mother which she goes back on later and keeps the child in the new location.

The father goes to family court trying to get the child back to their town of origin, but the mother uses the excuse of a sick new child with her new partner and provides good reason to stay and refuses to come back, whilst also adding that she thinks the father doesn't have the capacity to look after his child primarily, etc. She gives no reasons for that last opinion by the way.

Child stays in the new location and reasonable visitation orders are put in place for the father. 10 weeks after the judge signs these orders, the mother says, "Oh actually I think we might move back."

Can we bill her for all past and future legal costs if we have to get these family court orders changed so soon? Seeing as the reason she wants to move back is that it's, in fact, her and her partner who don't have the capacity to look after the kids. And if she comes back, we'll be filing for 50/50 care and custody of children straight away but I think she should foot the bill seeing as we were only in court two months ago with her refusing to budge.

Thanks in advance.

 

[AllForHer]

You can apply for a costs order but there's only some circumstances where a court will actually make one in family law matters.

See section 117 of the FLA here: http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s117.html

Do I think you would win a costs order? No. The father consented, no matter what promises were made. He should have had those promises turned into a parenting plan if he didn't want to get stiffed. Realistically, she could apply for costs against him on grounds he consented and then sought a relocation order after the relocation had taken place.

 

[Corinne]

It wasn't a relocation order;; it was parenting orders sought with trying to get them to move back included in his final orders, which the barrister said to not bother with because we had no hope.

So they actually ended up being consent orders made at the interim hearing where everyone agreed to follow orders written by her lawyers which prevented it from going before the judge.

So that was all sorted.

Now she's changed her mind, realising she shouldn't have moved 3.5 hours away from support and will inevitably drag the whole thing back to court to get the orders changed again. Her orders.

What I'm saying is, she's not moving back because of any previous court issue, that was all settled and signed.

In fact, she was threatening to move further away, which is why it went to court in the first place.

 

[AllForHer]

It doesn't matter what label it's given or how that conclusion was reached. The bottom line is that he still consented to the move.

Your question was about costs, my view is that he won't get an order to that effect. You'd be asking the court to make a costs order based on a speculation about what *might* have been ordered had the mother not relocated in the first place. It's not grounds for a costs order.

Was there another question you wanted to ask?

 

[Corinne]

No, the main basis of the costs order would be because of needing new orders written up so soon after her orders were already enforced, purely because of a change of mind.

Because what you're saying sounds like if you consent to one move and sign parenting orders, that then gives them the right to fluff around and keep wanting to move to all these different places without ever being held financially responsible for the legal costs this erratic behaviour incurs on the other party?

 

[AllForHer]

If he consents to the orders, then yes, that is what I'm saying. Why not include a clause that restricts the mother from relocating again? Why not include an alternative set of orders for the event the mother lives closer to the father?

See, the current orders can still be upheld whether she's living 3.5 hours away or 5 minutes away. There are practical difficulties that certainly warrant a review of the orders, like the clause about the father's time being spent with the child at the mother's location, but it will be your decision to have those orders reviewed, and a lack for foresight about future movements and a failure to include alleviating clauses for the event the orders do become impractical doesn't warrant a costs order.

On top of that, the mother could argue that she didn't know at the time that consent orders were made that she would be relocating. If you were just seeking to change that one order but retain the same amount of time spent with the child, then I would argue there might be justification for a costs order, but you're saying you will seek 50/50. That's a significant change to care arrangements.

As I said earlier, you can definitely try for a costs order. I'm just saying that it might not be granted.