Atuk and Atuk (No. 2)
[2017] FamCA 648
•25 August 2017
FAMILY COURT OF AUSTRALIA
| ATUK & ATUK (NO. 2) | [2017] FamCA 648 |
| FAMILY LAW – COSTS – Application for costs of discrete parenting application – Where objectively at outset prospects of application poor – Consideration of general principles – Where order made for mother to pay father’s costs. |
| Family Law Act 1975 (Cth) s 117 |
| Atuk & Atuk [2016] FamCA 283 Hawkins & Roe [2012] FamCAFC 77 |
| APPLICANT: | Ms Atuk |
| RESPONDENT: | Mr Atuk |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Truong |
| FILE NUMBER: | PAC | 4209 | of | 2014 |
| DATE DELIVERED: | 25 August 2017 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | By way of written submissions last received on 4 August 2017 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr Hawach of McAuley Hawach Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Mr Atila of Atila Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Truong of Legal Aid NSW Bankstown Family Law |
Orders
That within three months from this date the mother pay to the father or as he may otherwise direct in writing the sum of $3,600.00.
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 Atuk & Atuk (No. 2) 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 4209 of 2014
| Ms Atuk |
Applicant
And
| Mr Atuk |
Respondent
REASONS FOR JUDGMENT
The discrete application for determination is the father’s application for costs against the mother in respect to an interim parenting issue heard on 15 May 2017 with the reasons for judgment delivered 27 June 2017: Atuk & Atuk [2017] FamCA 441. These reasons assume familiarity with those reasons for judgment and reasons for judgment delivered in relation to interim parenting orders on 29 April 2016: Atuk & Atuk [2016] FamCA 283.
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.
That principle is, however, subject to the discretion afforded to the trial judge in subparagraph (2) that provides that in proceedings under this Act, where the Court is of opinion that there are circumstances that justify it in doing so, the Court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the Court considers just.
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.
In proceedings involving children’s or parenting matters, the general rule is not often displaced. The rationale for this practice is that in such matters it is proper that parents are able to put their case in seeking orders which they believe to be in the best interests of their children. It hardly needs to be said that the nature of family court litigation in relation to children is quite different to a commercial dispute in the state or federal courts: Hawkins & Roe [2012] FamCAFC 77.
The matters relevant to determining what order, if any, should be made for costs are set out in subsection (2A) of that section. They relevantly, in these proceedings, 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.
The Full Court in Hawkins & Roe (supra) said:
17. With respect to the application of the section, in Penfold v 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.
(footnotes omitted)
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.
The mother’s discrete application for overseas travel proposed that she be able to travel with the children to Country D, a country subject to an Australian government travel warning. In the context in which the application was made where there were pending final parenting issues for trial the application could be regarded as bold.
The relevant considerations
The father contends that he has an earning capacity of about $80,000.00 per annum but he has elected to care for his elderly mother who does not reside with him. The mother is in receipt of income of about $1,340.00 per week but has the primary care of the three children of the marriage and receives only minimal child support.
The father complains that the mother has acted unreasonably in the conduct of the proceedings by commencing an application that was highly likely to be unsuccessful. Ultimately that proved to be the case.
Neither party is in receipt of a grant of legal aid.
The mother for her part contends that she wrote to the father on at least three occasions endeavouring to discuss and resolve the issue of overseas travel. He, she says, was non-responsive thus necessitating her application to the Court to seek orders. However, the father proposed that he care for the children whilst the mother undertook travel to Country D should she wish and he enquired as to what guarantee she could provide that she would return with the children if he provided his consent. He asserts he received no satisfactory response to that request.
The mother was in terms of the discrete application wholly unsuccessful.
The father seeks an order that the mother pay his costs in the sum of $3,600.00. In the context of an interim parenting application that proceeded to hearing and judgment. Such sum is not the subject of any comment by the mother and appears reasonable.
It is not uncommon for discrete parenting issues to be determined in the context of pending final parenting proceedings. This matter is an illustration of such a circumstance.
Having regard to the mother’s proposed destination being a country the subject of a significant travel warning and notwithstanding her reasons for such travel being to visit her parents (who had previously been able to visit the mother in Australia for the period from June 2014 to February 2016) it is to be inferred that the mother must have had some circumspection as to the outcome of her application.
In all of the circumstances it is proper that the mother should pay the father’s costs that are reasonably assessed in the sum of $3,600.00. Such sum to be paid within a reasonable period.
An order will be made accordingly.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 25 August 2017.
Associate:
Date: 24 August 2017
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