BANHAM & BANHAM (No.3)

[2020] FCCA 2514

FEDERAL CIRCUIT COURT OF AUSTRALIA

BANHAM & BANHAM (No.3) [2020] FCCA 2514

Catchwords:
FAMILY LAW – Application for costs – parenting case – no features present to warrant an order for costs – court astonished at the level of fees charged to the father in circumstances where all documents (save for a notice address for service and a brief submission) were filed when the father was self-represented.

Legislation:

Family Law Act 1975 (Cth), ss.117(1), 117(2A)

Cases cited:

Hawkins & Roe [2012] FamCAFC 77

Applicant: MS BANHAM

Respondent: MR BANHAM

File Number: MLC 881 of 2015

Judgment of: Judge McNab

Hearing date: 3 September 2020

Date of Last Submission: 3 September 2020

Delivered at: Melbourne

Delivered on: 3 September 2020

REPRESENTATION

Solicitors for the Applicant: Kennedy Partners

Counsel for the Respondent: Mr G Thompson

Solicitors for the Respondent: Nicholas James Lawyers

ORDERS

1. The respondent father’s application for costs be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Banham & Banham (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 881 of 2015

MS BANHAM

Applicant

And

MR BANHAM

Respondent

REASONS FOR JUDGMENT

Delivered Extempore (Revised From Transcript)

1. On 3 September 2020 orders were made dismissing the mother’s application and all other extant applications. Following delivery of the judgment, Counsel for the respondent father made an application for costs, and made submissions that the father had incurred costs of $19.376.00 in responding to the mother’s application. The mother opposed the father’s application for costs.

2. Upon questioning from the bench, Counsel for the father indicated he was not making an application for indemnity costs or solicitor–client costs. He could not say what the scale costs were and said that he lacked expertise in that area. He said he did not have a copy of the rules with him. He was able to make submissions on s117(2A) of the Family Law Act 1975 (Cth) (‘the Act’). He asked whether it might be appropriate to file written submissions regarding costs. The Court responded that if the father had already been charged $19,376.00, then it did not wish to see the father charged an extra cent (assuming that written submissions would come at a cost).

3. Ordinarily in such matters, each party to a proceeding under the Act shall bear their own costs, pursuant to s117(1) of the Act.

4. In Hawkins & Roe [2012] FamCAFC 77, May & Ainslie-Wallace JJ stated at [147]:

   “Whilst the categories of occasions when costs may be ordered is not limited, the occasions on which such an order should be made in a parenting dispute should have some particular features. Where there is a complete absence of preparedness to compromise in the face of unambiguous expert evidence, where false allegations are made, or where one party is clearly motivated by self interest rather than the best interests of a child, then a judge may well conclude that there are circumstances justifying an order for costs.

5. At paragraph [87] of my reasons dated 3 September 2020, I make reference to the fact that neither party to this proceeding, can actually afford this litigation. Both are in financially straitened circumstances. This proceeding has not been conducted in a way that has been wasteful of either the parties’ resources or the Court’s resources. Whilst the Court has made an order dismissing the application, it has done so as a result of an exercise of discretion after carefully considering the matter. The father made reference to s117(2A)(e) of the Act in support of the application or costs. While the father has succeeded in obtaining orders dismissing the application, that of itself is not a sufficient reason to award costs in this proceeding.

6. In this matter, there are no ‘particular features’ which would displace the ordinary rule under s117(1) of the Act that each party to a proceeding under the Act shall bear their own costs.

7. I am astonished that the father has been charged $19.376.00 for the legal work rendered on his behalf in this proceeding.  I am not aware of the accounts that have been rendered or how they have been calculated.  However in this matter, I note:

   a)the father engaged legal representatives only six days prior to the hearing of the application on 9 July 2020, as evidenced by the Notice of Address for Service filed on 3 July 2020;

   b)the hearing on 9 July 2020 was interlocutory in nature and there was no cross examination of any parties. The hearing was relatively brief and the written submissions filed by the father were brief.

   c)the evidence that was relied upon by the father in the matter, which were his two  affidavits filed on 3 June 2020 and 25 June 2020, was filed prior to father engaging legal representatives;

   d)the affidavit material and subpoenaed documents referred to in the hearing were not voluminous; and

   e)it would seem that the fees are attributable to the appearance on 9 July 2020.

8. As such, if the appearance fees for the father’s solicitors and Counsel are the sum of $19.376.00, I again say that I am astonished by the level of fees that have been charged and the father would be best served by obtaining his own advice in relation to that matter. 

9. For these reasons I dismiss the application for costs.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:

Date: 8 September 2020