Bannan & Galiano
[2024] FedCFamC2F 1104
•26 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bannan & Galiano [2024] FedCFamC2F 1104
File number(s): ADC 5288 of 2023 Judgment of: JUDGE PARKER Date of judgment: 26 July 2024 Catchwords: FAMILY LAW – COSTS – costs application following unmeritorious application to review interim parenting orders made by a Senior Judicial Registrar Legislation: Family Law Act 1975 (Cth) ss 95, 96, 117
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) Schedule 1
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rule 10.13
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 191
Cases cited: Lawson & Glenning [2021] FedCFamC2F 118 Division: Division 2 Family Law Number of paragraphs: 24 Date of hearing: 26 July 2024 Place: Adelaide Counsel for the Applicant: Self-Represented Solicitor Advocate for the Respondent: Mr Omidvour Solicitor for the Respondent: Debra Spizzo And Associates ORDERS
ADC 5288 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BANNAN
Applicant
AND: MS GALIANO
Respondent
ORDER MADE BY:
JUDGE PARKER
DATE OF ORDER:
26 JULY 2024
THE COURT ORDERS THAT:
1.The Mother pay the Father’s costs in the sum of $3,731, such sum to be paid into an account nominated by the Father within thirty (30) days.
2.The Review Application filed 13 March 2024 is otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE PARKER:
These reasons were delivered ex tempore and have been settled from the transcript. Grammatical errors have been corrected, citations have been added and amendments have been made to make the orally delivered reasons clearer and easier to read.
The application before the Court is the Father's application for costs arising from an Application for Review filed by the Mother on 13 March 2024 which sought to review interim parenting orders made by a Senior Judicial Registrar on 21 February 2024.
At the hearing this day, the Mother made an oral application for dismissal of the application for costs, or, in the alternative, an adjournment, based on an asserted lack of procedural fairness arising primarily from the Father's failure to comply with an order made on 29 April 2024 requiring the filing of a schedule setting out the calculation of the basis upon which costs were sought.
Any unfairness arising from the Father’s non-compliance with that order was resolved by the fact that at the hearing, the Father did not press an application for indemnity costs and instead simply relied on the scale of costs set out in Schedule 1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth), which has of course been available to the Mother and her legal representatives at all material times.
The Mother has been on notice that costs were sought for a number of months and has certainly had the opportunity to prepare to address the Court in relation to the Court scale if not indemnity costs. The adjournment application was refused.
The review application was misconceived from its inception in a number of respects.
In part, it sought variations to correct minor errors in the orders of the Senior Judicial Registrar which should have been addressed by way of the slip rule pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), which would have been a significantly more proportionate and cost-effective means by which to address those errors. Indeed, the relevant corrections had been made pursuant to the slip rule prior to the hearing of the review application.
More significantly, the orders of the Senior Judicial Registrar provided for a short-term parenting arrangement pending a further interim hearing, which hearing the Senior Judicial Registrar listed to take place after the preparation of a Child Impact Report. This was an obvious and appropriate course, so much so that on the day of the review hearing, Counsel for the Mother sought an adjournment of that hearing until after the Child Impact Report had been prepared.
That is, having filed a review application and used the limited judicial resources of the Court and having required the Father, who was then represented, to expend funds on a review hearing, the Mother attended at that hearing and sought the exact outcome that was already provided for in the Senior Judicial Registrar's orders. I emphasise that I am not critical of Counsel for the Mother for this approach. Awaiting the impending Child Impact Report and then embarking on a further interim hearing was an entirely sensible course and is what the Mother should have done in the first place.
Furthermore, the affidavit material filed in support of review application demonstrated that the Mother had, on her own evidence, failed to comply with her obligations pursuant to the orders of the Court, which was evidence which was hardly likely to lead to an outcome more favourable to the Mother than the previous orders.
The Mother also continued to rely on improperly prepared material which had also been before the Senior Judicial Registrar, including an affidavit to which there was an entire other affidavit annexed. Ultimately, on the day of the hearing, the review application was sensibly withdrawn, but this did not occur before the resources of the Court and the parties’ money had been dedicated to it.
The general rule, as each party submitted today, under subsection 117(1) of the Family Law Act 1975 (Cth) (‘the Act’) is that each party must bear that party’s own costs. Subsection 117(2) provides that if the Court is of the opinion that there are circumstances that justify so doing, the Court may depart from that general rule. The considerations relevant to departure from the general rule are set out in subsection 117(2A).
Those relevant to the present matter are:
Firstly, the financial circumstances of each of the parties to the proceedings.[1] In this regard, the Mother’s solicitor submitted that the Mother ‘does not make much money,’ but there is no evidence before the Court to that effect.
[1] Family Law Act 1975 (Cth), s 117(2A)(a).
The next relevant consideration is whether either party is in receipt of legal aid funding.[2] Both parties are professionals and both were, at the time of the hearing in question, privately funded. The Father is now self-represented.
[2] Family Law Act 1975 (Cth), s 117(2A)(b).
The next relevant consideration is the conduct of the parties to the proceedings in relation to the proceedings.[3] In this regard, the Mother improperly brought the aforementioned review application and, on her own evidence, failed to comply with her obligations pursuant to orders of the Court by which she was legally bound.
[3] Family Law Act 1975 (Cth), s 117(2A)(c).
Finally, I turn to consideration whether any party to the proceedings has been wholly unsuccessful.[4] It was submitted on behalf of the Mother today that she had not been not wholly unsuccessful. I do not accept that submission. The Mother withdrew her review application in its entirety when it came before the Court, and therefore, other than the slip rule amendments, which, as I have already mentioned, should have been dealt with in a different way, was entirely unsuccessful.
[4] Family Law Act 1975 (Cth), s 117(2A)(d).
I am required to have regard to the overarching purpose, which is now imposed by section 95 of the Act, but which at the time of the review application and hearing was enshrined in section 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (‘the FCFCOA Act’). The overarching purpose is, in summary, to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible, including by having regard to the efficient use of the judicial and administrative resources available for the purpose of the Court and the resolution of disputes at proportionate cost.
Also relevant for present purposes is section 191 of the FCFCOA Act (the contents of which are now reflected in section 96 of the Act), which requires parties and their lawyers to act consistently with the overarching purpose.
I also have regard paragraph 1.4 of the Court's Central Practice Direction: Family Law Case Management, which provides that:
The court expects parties and their lawyers to have in mind, at all times, the cost of each step in the proceedings and whether it is necessary, and to avoid unnecessary process-driven costs and unjustified use of Court resources. In everything they do, parties and lawyers are expected to approach proceedings in a manner directed towards identifying the issues in dispute and ascertaining the most efficient, including cost-efficient, method of resolution or determination.
This includes, relevantly, making appropriate admissions, pressing only issues of genuine significance and, at all stages of the proceedings, avoiding filing evidence that is unnecessarily lengthy. Paragraph 1.5 of the Central Practice Direction provides that any failure to comply with these requirements may attract costs orders against parties. One of the core principles outlined in schedule A to the Central Practice Direction provides that:
Non-compliance with orders, Practice Directions, the Rules, or the obligations imposed on parties or their lawyers to conduct proceedings in a manner consistent with the overarching purpose will be taken seriously by the Court. Non-compliance may lead to serious consequences for parties and for their lawyers including… costs orders being awarded against parties and/or their lawyers.
In my view, the mother's conduct in bringing the review application was entirely inconsistent with her obligations pursuant to the overarching purpose.
The Court has also made clear in a number of cases that parties who bring unwarranted review applications can expect to be met with costs orders. As Judge Riethmuller (as his Honour then was), said in Lawson & Glenning,[5] parties should not simply lodge review applications without giving careful consideration of the need for a review application and the importance of properly using the Court's resources, and litigants and practitioners who do not heed this warning can expect costs orders and other consequential orders, to ensure that the processes of the Court are not misused or wasted.
[5] [2021] FedCFamC2F 118 at [27].
Having regard to these considerations, I am satisfied that the circumstances justify an order for costs. The applicable scale items are item 3, which is $1964; the daily hearing fee, item 13, $1178; and the advocacy loading in item 14 at $589. That comes to a total of $3,731.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Parker. Associate:
Dated: 21 August 2024
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