BAUM & LOKARE

[2016] FamCA 981

FAMILY COURT OF AUSTRALIA

BAUM & LOKARE [2016] FamCA 981

FAMILY LAW – COSTS

APPLICANT: Ms Baum

RESPONDENT: Mr Lokare

FILE NUMBER: DNC 17 of 2013

DATE DELIVERED: 17 November 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: In Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Corbett Jessop Law

SOLICITOR FOR THE RESPONDENT: Self-represented

Orders

IT IS ORDERED

1. That the father pay the mother’s costs of the application to review the orders of the Principal Registrar filed 14 May 2015 as agreed or assessed.

2. That such costs be paid within 42 days of agreement or assessment.

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 Baum & Lokare 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 SYDNEY

FILE NUMBER: DNC 17 of 2013

Ms Baum

Applicant

And

Mr Lokare

Respondent

REASONS FOR JUDGMENT

1. On 5 June 2015, judgment was delivered and orders made in an application by Mr Lokare (“the father”) to review orders made by Principal Registrar Fillipello on 20 March 2015. Those orders related to the parenting arrangements for the child of his relationship with Ms Baum (“the mother”).

2. The mother has applied for an order that the father pay indemnity costs in relation to that application, by an Application in a Case filed 23 June 2015, supported by an affidavit affirmed by her on 22 June 2015.

3. On 4 August 2016 the father was notified that he was required to file any evidence upon which he relied and any submissions he wished to make in relation to the application for costs. He did not do so.

4. On 9 November 2016, the father was informed that the Court would proceed to judgment in the absence of his material having been filed by 14 November 2016 and that judgment would be delivered on 16 November 2016.

5. The father has not filed an affidavit or written submissions.

6. The principles to be applied in determining the application are set out in s117(2A) of the Family Law Act 1975 (Cth):

   (2A)  In considering what order (if any) should be made under subsection (2), the court shall have regard to:

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

   (b)  whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (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 answer 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.

7. The mother’s financial position is set out in her affidavit affirmed 2 June 2015. She is in receipt of Centrelink benefits. She lives with her parents. She has borrowed money from her parents to pay her legal fees.

8. There is no evidence before the Court from the father of his financial position. The mother, in her affidavit affirmed 2 June 2016, deposed that the father lives in their jointly owned property which has a mortgage with an outstanding balance of about $30,000. The mortgage payments are $60.50 per week. He is a professional by occupation. He has not paid child support since April 2015. He has been assessed to pay child support of $173.58 per month.

9. His financial position is superior to that of the mother.

10. Neither party is in receipt of legal aid.

11. The father was wholly unsuccessful in his application to review the orders of the Principal Registrar. The orders which were made were almost in identical terms as the orders made by the Principal Registrar.

12. The mother relies on an offer of settlement contained in a letter to the father dated 18 June 2015. That offer was in relation to the costs of the proceedings, not in relation to settlement of the substantive proceedings. It is not relevant to this consideration.

13. The general approach of the Court in parenting proceedings has been that each party should pay his or her own costs.

14. In Hawkins and Roe (2012) 47 Fam LR 526, their Honours May, Thackray and Ainslie-Wallace JJ stated at 529:

    [13] In considering the law applicable to the determination of costs applications, it is important to recall the general principle under the Act as expressed in s 117(1), that each party to proceedings shall bear their own costs.

    [14] 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.

15. An application by the mother for an order that the father pay her costs of the proceedings before the Principal Registrar might have been met with opposition based on the principle enunciated in the Full Court.

16. However, the father sought to review the decision of the Principal Registrar and to re-litigate the issue.

17. Thus, the mother was put to the cost of re-litigating the same issue. The father was no more successful.

18. In those circumstances, he should pay the mother’s costs.

INDEMNITY COSTS

1. The mother seeks an order for indemnity costs.

2. The Full Court has most recently considered the law in relation to indemnity costs in Prantage & Prantage [2013] FamCAFC 105 (“Prantage”). The majority (Thackray and Ryan JJ) set out the principles to be applied, holding that the principles enunciated by Sheppard J in Colgate-Palmolive Co v Cussons Pty Limited (1993) 118 ALR 248 (“Colgate-Palmolive v Cussons”) should continue to be applied in the Family Court of Australia. The principles (as summarised by Cooper and Merkel JJ in Re Wilcox, Ex parte Venture Industries Pty Ltd (1996) 72 FCR 151 at 156-157) were reproduced in Prantage at [82]:

   82.      …

1.Section 43 of the FCA confers an absolute and unfettered discretion on the Court to make orders as to costs but the discretion must be exercised judicially.

2.In order to exercise the discretion judicially the following principles have been accepted by the Court as applicable:

(a)   the Court ought not to depart from the rule that costs be ordered on a party and party basis unless the circumstances of the case warrant the Court in departing from the usual course;

(b)  the circumstances which may warrant departure from the usual course arise as and when the justice of the case so requires or where there may be some special or unusual feature in the case to justify the Court in departing from the usual course;

(c)  whilst the circumstances in cases in which indemnity costs have been ordered offer a guide, the question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for costs other than on a party and party basis.

1. There is nothing special or unusual in the father unsuccessfully seeking to review the orders of the Principal Registrar.

2. The situation is no different from the father’s unsuccessfully appealing against the order made by me. The Full Court did not consider that the father should pay costs on an indemnity basis.

3. The mother has not established that circumstances exist to warrant the order for indemnity costs.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 17 November 2016.

Associate: 

Date:  17/11/2016