Beza & Hann (No 2)
[2024] FedCFamC1F 372
•6 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Beza & Hann (No 2) [2024] FedCFamC1F 372
File number(s): PAC 1339 of 2018 Judgment of: BAUMANN J Date of judgment: 6 June 2024 Catchwords: FAMILY LAW – COSTS – Where the father sought an order for costs in a fixed sum – Where the father submitted the mother’s application was wholly unsuccessful – Where the Court found that where the mother’s orders sought for parenting proceedings were not made on final basis does not equate to her application being wholly unsuccessful - Where the father chose to be privately represented during the final hearing in favour of being appointed legal representation under a grant of legal aid pursuant to the s102NA cross-examination scheme Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court (Family Law) Rules 2021
Cases cited: Beza & Hann [2023] FedCFamC1F 942 Division: Division 1 First Instance Number of paragraphs: 6 Date of last submission/s: 16 February 2024 Date of hearing: On the papers in chambers Place: Brisbane Solicitor for the Applicant: Long Saad Woodbridge Lawyers Solicitor for the Respondent: Lamrocks Solicitors ORDERS
PAC 1339 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HANN
Applicant
AND: MS BEZA
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
6 JUNE 2024
THE COURT ORDERS:
1.That the father’s Application in a Proceeding filed 15 December 2023 be 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 the pseudonym Beza & Hann has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
On 17 November 2023, the Court published Reasons and pronounced Orders in respect to a disputed parenting application between the mother Ms Beza (“the mother”) and the father Mr Hann (“the father”) relating to their 6-year-old son (see Beza & Hann [2023] FedCFamC1F 942).
On 15 December 2023, the father filed an Application for costs and pursuant to directions made in chambers, the Court has received and considered the following further material, in respect of the costs issue, namely:
(a)the father’s Application in a Proceeding filed 15 December 2023;
(b)the father’s affidavit filed 15 December 2023;
(c)the father’s Financial Statement filed 15 December 2023;
(d)the father’s written submissions filed 16 February 2024 contending for an order either:
(i)under Schedule 1 of the Federal Circuit and Family Court (Family Law) Rules 2021 (“the Rules”); or
(ii)fixed in the sum of $87,061; or
(iii)on a solicitor/client basis; or
(iv)on an indemnity basis; and/or
(v)costs of the Costs Application fixed in the sum of $5000.
(e)the mother’s Financial Statement filed 1 February 2024; and
(f)the mother’s written submissions filed 1 February 2024 contending for a finding that there be no order for costs.
The principles that apply to cost applications are well settled. Section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) prescribes a “general rule” that each party bear their own costs of family law proceedings. However, if after a consideration of the factors set out in s 117(2A) the Court is satisfied that circumstances exist which justify a costs order, then the Court is empowered to make such order as to costs which is just. The quantum of costs, if an order is made, is a matter guided by wide judicial discretion.
In respect of the relevant s 117(2A) factors, and after consideration of the material earlier identified including the published Reasons for Judgment, I make the following findings:
(a)The father’s income is superior to that of the mother. He has a home with an estimated equity of around $450,000 whilst the mother pays rent, and the father has outstanding legal fees owed to his solicitors of $30,013. Comparatively, the father is in a much stronger financial position to the mother;
(b)The mother was in receipt of legal aid funding for the entirety of the proceedings. The father at times was representing himself, although for the trial and from approximately 4 August 2023, he privately funded his representation. The father, like the mother, was entitled to access the funding that flows from legal aid for persons who are prohibited from cross-examining the other party, because of the operation of s 102NA of the Act. The father chose not to take up that option;
(c)The father asserts that the mother’s conduct in the proceedings (as particularised at paragraph 17 of the written submissions) justifies an order for costs and even on an indemnity basis . I do not accept, in the circumstances where the mother persisted with a “no time” case, that this amounts to an “undue prolongation of a case by groundless contentions”. The mother instituted fresh proceedings as a result of a serious episode of mental health affecting the father, just one month after final orders were made on 9 July 2021. The mother’s position was shaped by her lack of confidence that the father’s mental health had stabilised. She was, in these circumstances, entitled to test the evidence. Her final position did not change, even when the evidence had been tested. That of itself, in the history of this matter does not justify an order for costs;
(d)Whilst I accept the general submissions of the father that s 117 of the Act does not distinguish between parenting and property proceedings, the test of “wholly unsuccessful” is more easily applied in financial proceedings. This is so, in part, because the need for orders to be in the best interest of the child, even allow the Court to consider options not identified by the parents. Most parenting orders include many orders – from those of a substantive character such as parental responsibility or where a child lives and what time they spend with the other parent – to less substantive; but still important, orders. I am not satisfied the mother was “wholly unsuccessful” in these proceedings as the father contends – even though the Court did not support the mother’s position, shaped by her concerns; and
(e)I accept that once the father recovered from the events (on two occasions) post the final Orders of July 2021, he felt there was no basis for the mother to hold any concerns at all. In this case, with the history set out in the Reasons for Judgment, the mother’s concerns had a basis. A party is encouraged to consider the expert evidence (in this case two family reports by Dr N) and the evidence of the father’s treating health professionals – but is not bound to accept that evidence. Neither is the Court until it is properly tested. I have considered the father’s offer of settlement made 7 August 2023, but note that “offer” was made before significant evidence on oath was filed by the father from Ms R; Dr O and Dr S, all then being the subject of cross-examination at the trial. I also do not regard the mother’s resistance in accepting the "offer” to settle in August 2023 as unreasonable in the circumstances of this case.
CONCLUSION
The Court finds, relying on the matters earlier discussed, that circumstances do not exist to justify on order for costs.
The father’s Application for costs is therefore dismissed. I would not order the father to pay a contribution to the mother’s costs of opposing his Application for costs.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 6 June 2024
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