BOLTON & KING
[2010] FMCAfam 1040
•15 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BOLTON & KING | [2010] FMCAfam 1040 |
| FAMILY LAW – Costs ─ case turns on its own facts. |
| Family Law Act 1975 (Cth) |
| Hogan (1986) FLC 91-704 I & I (No 2) (1996) FLC 92-625 Kelly & KellyNo 2 (1981) FLC 91-108 Penfold (1980) FLC 90-800 |
| Applicant: | MR BOLTON |
| Respondent: | MS KING |
| File Number: | MLC 2313 of 2010 |
| Judgment of: | Walters FM |
| Hearing date: | 15 June 2010 |
| Date of Last Submission: | 15 June 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 15 June 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Coleman |
| Solicitors for the Applicant: | Coleman Lawyers |
| Solicitors for the Respondent: | Unrepresented |
ORDERS
The respondent’s objection to jurisdiction filed 15 June 2010 be dismissed.
The respondent do file and serve a Response, financial statement and supporting affidavit by not later than 4.00 p.m. on 6 July 2010.
The parties attend a Conciliation Conference with a Registrar of the Federal Magistrates Court of Australia at the Melbourne Registry on
10 September 2010at 11.00 a.m.
The matter be adjourned to 20 October 2010 at 10.00 a.m. for final hearing before Hartnett FM (with an estimated hearing time of 2 days).
In the event of any applicable filing, setting down, mediation or enforcement fee or fees (“the Fees”) not having been waived, the party responsible for the payment of the Fees or any of them do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Magistrates Court Regulations.
The applicant do file and serve all further affidavits and other material to be relied upon by not later than 28 days prior to the trial date.
The respondent do file and serve all further affidavits and other material to be relied upon by not later than 14 days prior to the trial date.
Both parties do file and serve an Outline of Case document in an appropriate form by not later than 72 hours prior to the trial date.
The respondent pay the applicant’s costs fixed in the sum of $1465.00 ─ such costs to be paid within 60 days.
AND THE COURT NOTES THAT:
In the event of non compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:
(a)the filing of documents;
(b)the payment of any applicable filing, setting down, mediation or enforcement fee or fees; and/or
(c)any other procedural issues,
the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.
To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial Federal Magistrate, or by another appropriate court officer, shortly prior to the final hearing date.
IT IS NOTED that publication of this judgment under the pseudonym Bolton & King is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT Melbourne |
MLC 2313 of 2010
| MR BOLTON |
Applicant
And
| MS KING |
Respondent
REASONS FOR JUDGMENT
(Ex tempore)
The question of costs in Family Law proceedings is dealt with in section 117 of the Family Law Act. A judicial officer has a broad discretion in costs matters – and the Full Court has said, for example, that it will not ordinarily intervene unless the proposed order for costs is plainly unreasonable.
Indeed, a court exercising jurisdiction under the Family Law Act has been held to have an almost unlimited jurisdiction in relation to costs, although, clearly, any proposed costs order must be just.[1]
[1] See in that regard Kelly & Kelly (No 2) (1981) FLC 91-108, Hogan (1986) FLC 91-704 and I & I (No 2) (1996) FLC 92-625.
It is not the law that a costs order can only be made in what has been described as “a clear case”, and although a finding of justifying circumstances is an essential preliminary to the making of a costs order, there is no additional or special onus on an applicant for an order for costs.
The general rule is that each party shall bear his or her own costs, but that general rule is expressed to be subject to section 117(2), and it must yield whenever the judicial officer finds that there are circumstances which justify the making of a costs order.[2]
[2] See in that regard the High Court decision of Penfold (1980) FLC 90-800.
I turn now to the matters that I must consider under section 117(2A) of the Family Law Act. That subsection deals with a number of factors, the first of which comprises the financial circumstances of each of the parties to the proceedings.
I have seen the financial statement of the applicant in this matter. It is clear – on his case – that he is not in a strong financial position. Obviously, there has been no testing of his evidence at this stage, but the argument before me today was an interlocutory matter only, based on jurisdiction. That application (to the effect that this Court lacked jurisdiction to deal with the applicant’s claim) was wholly unsuccessful. In my view, it should never have been made. In other words, if she had been properly advised, the respondent would never have filed the application objecting to jurisdiction as she did. It would appear that that document was prepared by somebody else, and (as I said before) I certainly hope that the respondent did not have to pay money for it.
As far as the respondent is concerned, I note that she elected not to file material in response to the applicant’s case at this stage – even though the Rules required her to do so. Instead, she relied on her objection to the jurisdiction of this Court to deal with the matter.
That objection was always misconceived, as I indicated during the course of submissions. I described the written submission as an almost incomprehensible polemic and, in my view, that is not an unfair description of the document. It certainly reveals no grounds whatsoever upon which this Court could properly conclude that it is without jurisdiction. Nor, indeed, does it reveal any grounds upon which this Court could properly refer the matter on for a further hearing relating to or other analysis of its disputed jurisdiction.
The respondent’s argument appeared to be based on a submission to the effect that the Federal Government, in legislating in relation to de facto property disputes, was relying on the marriage power – or some other Constitutional power that it had no right to rely on. That, of course, is simply wrong. The Federal Government relied on the referral of power from the States. There can be no doubt that the States have jurisdiction in areas of this nature; nor can there be any doubt that they have properly referred their powers to the Federal Government.
That part of the respondent’s submission that deals with the need to determine with the jurisdictional argument at the outset is not without merit. It is true that whenever a jurisdictional question is raised the Court must deal with that question first, in order to determine whether it has got power to deal with the principal dispute between the parties before it; but I have dealt with that contention and, in my view, it was always clear that this Court does not lack the relevant jurisdiction. As to whether the Court will ultimately conclude that there was indeed a de facto relationship, that is a matter for evidence. In due course the relevant evidence will be placed before the Court, and it will decide if a de facto relationship existed at the appropriate time.
As I have indicated, the respondent elected not to file a financial statement. She told me today that she has had to borrow funds to pay for legal fees, but that clearly suggests that has the capacity to obtain funds if she needs to do so. Given the respondent’s failure to file material when, of course, she should have, I am otherwise unable to comment on the respondent’s financial position. In any event, I find that section 117(2A)(a), being the financial circumstance of each of the parties, is not the most significant of the criteria that I need to consider.
The next factor is whether either party is in receipt of assistance by way of legal aid. That is not a relevant consideration.
The next factor is the conduct of the parties to the proceedings in relation to the proceedings – in other words, the conduct of the parties as litigants. That is a relevant consideration, in my opinion.
The respondent could have and should have filed her response, affidavit in support and financial statement well before today. The matter could then have been programmed in the usual way. If there were preliminary issues which related to the existence or otherwise of a de facto relationship, then those issues could have been identified and dealt with in an appropriate manner.
Unfortunately though, the manner in which the respondent elected to argue her case meant that the Court was taken off on a tangent and, of course, the applicant was taken by surprise. As I understand the submissions made to me today, the applicant only found out only last Friday that the jurisdictional question was to be raised. Indeed, it was only today that the applicant was told of the precise nature of the respondent’s opposition to the Court’s jurisdiction. I take into account the respondent’s conduct in that regard.
The next factor is whether the proceedings were necessitated by the failure of a party to comply with previous orders. That is not a relevant consideration.
The next factor is whether any party to the proceedings has been wholly unsuccessful in the proceedings. In this case, the proceedings involved the determination of the issues raised in the notice of objection to the Court’s jurisdiction. The respondent has been wholly unsuccessful in relation to those issues. She sought “a declaration as to the question of jurisdiction for the Federal Magistrates Court to hear this matter”.[3] I am not sure what that means, but the next order sought was that the initiating application be dismissed or otherwise struck out. The respondent was wholly unsuccessful in that respect. I have held that the Court does indeed (and obviously does) have jurisdiction to deal with this dispute. The respondent also sought that she be awarded costs on a party/party basis, but I am not prepared to make that order. Clearly, the respondent has been wholly unsuccessful in the application that she made to the Court at the eleventh hour and the 59th minute.
I propose to take these matters into account.
[3] See paragraph 1 of the orders sought by the respondent in her application in a case (objection to jurisdiction) filed 15 June 2010.
The next factor is whether either party has made an offer in writing to the other. That is not a relevant consideration in these proceedings.
The final factor comprises such other matters as the court considers relevant. In my view, there are no other matters which are obviously relevant.
In all the circumstances, I am persuaded that there are circumstances which justify the making of an order for costs against the respondent. Those circumstances, most relevantly, are:
a)the fact that she was wholly unsuccessful in her application challenging the Court’s jurisdiction; and
b)her conduct as a litigant in failing or refusing to file her material in a timely fashion.
In my opinion, those matters are relevant, and I have taken them into account. I have determined that there are circumstances which justify the making of an order for costs against the respondent, and have decided that such an order should be made.
Stage 2 of Part 1 of Schedule 1 (of the Federal Magistrates Court Rules 2001) deals with an interim or summary hearing as a discrete event. It provides for a lump sum of $1465 and, on top of that, court attendance at the rate of the daily hearing fee. The daily hearing fee for a half-day hearing is $880. There is no loading for counsel (because the applicant did not retain counsel), so the appropriate figure is the rate for solicitors, being $880. It follows that, in my view, there would be a strong argument for the respondent to have to pay costs totalling well in excess of $2000.
However, the amount that is claimed by Mr Coleman on behalf of the applicant is $1465 only. In my opinion, that is a reasonable and modest claim. I propose to order that the respondent pay the applicant’s costs fixed in the sum of $1465, such costs to be paid within 60 days.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Walters FM
Date: 24 September 2010
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