Atkinson and Atkinson (No. 3)

[2017] FamCA 968

FAMILY COURT OF AUSTRALIA

ATKINSON & ATKINSON (NO. 3) [2017] FamCA 968

FAMILY LAW – COSTS – Where application for costs of dismissed stay application – Where consideration of applicable principles – Where stay application wholly unsuccessful – Where proper for costs order to be made in assessed sum.

Family Law Act 1975 (Cth) s 117

Atkinson & Atkinson (No. 2) [2017] FamCA 544
Hawkins & Roe [2012] FamCAFC 77
Penfold v Penfold (1980) 144 CLR 311

APPLICANT: Mr Atkinson

RESPONDENT: Ms Atkinson

INDEPENDENT CHILDREN’S LAWYER: Mark Whelan

FILE NUMBER: PAC 4343 of 2013

DATE DELIVERED: 29 November 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: By way of written submissions last received on 28 August 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Taylor of Kheir Lawyers

SOLICITOR FOR THE RESPONDENT: Ms Khalil of Fay Rose Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Stolier

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mark Whelan Lawyer

Orders

1. That within one month from this date the father pay the mother’s costs in the sum of $3,263.00.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Atkinson & Atkinson (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4343  of 2013

Mr Atkinson

Applicant

And

Ms Atkinson

Respondent

REASONS FOR JUDGMENT

1. The present application for determination is the mother’s Application for costs arising from the father’s failed Application for Stay of certain interim parenting orders made that are presently the subject of an appeal to the Full Court of the Family Court of Australia.

2. The father’s application for stay was dismissed on 17 June 2017 (Atkinson & Atkinson (No. 2) [2017] FamCA 544).

3. It was otherwise ordered on that day:

   That any application for costs be by way of written submission filed within 28 days from this date with any submissions in response within a further 14 days thereafter judgment reserved to chambers.

4. Written submissions as to costs were received from the mother on 28 August 2017 supported by an Affidavit by her solicitor filed 28 August 2017.

5. No submissions have been received from the father.

Costs

1. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that each party to the proceedings shall bear his or her own costs.

2. That principle is, however, subject to the discretion afforded to the trial judge in subparagraph (2), which provides that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to further subsections thereof and the applicable Rules of the Court, make such order as to costs as the Court considers just.

3. Although s 117(2) requires a finding of justifiable circumstances as an essential preliminary to making an order for costs, there is no additional or special onus on an applicant who seeks an order for costs: see Penfold v Penfold (1980) 144 CLR 311.

4. The matters relevant to determining what order, if any, should be made for costs are set out in subsection (2A) of that section. They relate to the following:

   (a) the financial circumstances of each of the parties to the proceedings;

   (b) whether any party has legal aid and the terms of any grant of aid;

   (c) 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 answers, questions, admissions of facts, production of documents and similar matters;

   (d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;

   (e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f)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

   (g) such other matters as the Court considers relevant.

5. The Full Court in Hawkins & Roe [2012] FamCAFC 77 said:

   17. With respect to the application of the section, in Penfold and Penfold (1980) 144 CLR 311, the High Court said at 315 and 316:

   Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s. 117 (2) in "a clear case".

   Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised (Kent v Kent). Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.

   18.The weight to be given to a particular consideration under s 117(2A) is a matter for the discretion of the judge. However, in I and I (No 2) (1995) FLC 92-625 the Full Court of this Court held that the relevant matters in s 117(2A) “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs”. That is not to say that one single matter may not ultimately be determinative. The Full Court confirmed this in Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 at paragraph 41:

   … A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.

Discussion

1. Little is known of the parties’ financial circumstances. The father owns a business and at present has no dependents. The mother has the day-to-day care of four children including the subject child of the present proceedings, X.

2. The mother contends that the father is in a stronger financial position than she is.

3. Neither party is in receipt of a grant of legal aid. The mother has privately funded these proceedings.

4. The father’s Application for Stay was adjourned on his own application on one occasion by reason of the necessity to file an Amended Notice of Appeal.

5. Otherwise the father’s application for stay was wholly unsuccessful for the reasons published on 17 June 2017. Those reason included the following:

   27.The onus is on the father to demonstrate a proper basis for a stay of orders.

   28.A preliminary assessment of the grounds of appeal is set out above and overall there must be reservation as to the prospects of the appeal having regard to the grounds pleaded and the reasons for judgment delivered in considering the child’s best interests.

   29.A refusal of a stay will not render the appeal nugatory and no submission was made that it would. It was submitted on behalf of the father that in the event that a stay was not granted the orders would have an impact on the child’s relationship with the father pending determination of the appeal. The appeal is made in the context of interim parenting proceedings that will continue along the pathway to final hearing. The child will maintain a relationship with the father by reason of the orders made.  Such a relationship for the reasons given is to be in a protective circumstance for the reasons given and as provided for in the orders the subject of the appeal.

   30.The father may well be bona fide in pursuing the appeal. The merits of his grounds of appeal as discussed above are subject to significant reservation. However, it is accepted that he is concerned about his relationship with the child pending determination of the appeal and/or final hearing. The reasons for his relationship being circumscribed as provided for in the orders made are readily apparent. The circumstances of the child at interim hearing were most unsatisfactory by reason of the father’s own conduct.

   …

   34.The mother in her affidavit filed 14 June 2017 deposes as to a significant improvement in the child’s behaviour now that the child is in her primary care. The child, says the mother, continues to exhibit behavioural issues. His behaviour clearly exhibits an inappropriate alignment with the father. The mother on 7 May 2017 caused the child to attend upon [Dr N], paediatrician who has diagnosed the child with oppositional defiance disorder (ODD), global development delay, hyperactivity, social deprivation and ongoing psychological issues. She has enrolled the child in swimming and gymnastics classes as recommended by [Dr N]. The mother was to see [Dr N] again on 16 June 2017. The child’s behaviour at preschool has improved. The mother has observed that the child is now a lot calmer and settled. He is speaking a lot more fluently and his English skills are improving.

   35.The child is, otherwise, now properly engaged with his siblings that reside with the mother.

   36.The child’s present circumstances are clearly indicative of the child remaining in the mother’s primary care pending determination of the appeal.

6. Properly advised the father should have been well aware of the prospective outcome of his stay application.

7. In the circumstances of this matter it is proper that the father pay the mother’s costs of and incidental to the Application for Stay.

8. The mother’s solicitor has provided a detailed costs bill and a copy of the mother’s Costs Agreement. The mother seeks an order for costs in the sum of $3,263.00.  In circumstances where the stay application involved several appearances and written submissions the costs sought in the circumstances appear reasonable.

9. To put the parties to the expense of assessment would only add to their costs.

10. The father will be ordered to pay the mother’s costs in the sum of $3,263.00 within one month.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 29 November 2017.

Associate:

Date:  29 November 2017