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.