FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Boman & Boman (No 2) [2022] FedCFamC1F 363
File number(s): DGC 1412 of 2019 Judgment of: STRUM J Date of judgment: 23 May 2022 Catchwords: FAMILY LAW – COSTS – costs arising from a final application – where the respondent wife seeks the applicant husband pay her costs on an indemnity basis from a particular date – where the considerations set out in s 117(2A) do not warrant an order for costs – no costs ordered. Legislation: Family Law Act 1975 (Cth) ss 4(1), 117;
Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Cases cited: Prantage v Prantage (2013) FLC 93-544; [2013] FamCAFC 105 Division: Division 1 First Instance Number of paragraphs: 41 Date of last submission/s: 4 April 2022 Date of hearing: Written Submissions Place: Melbourne Counsel for the Applicant: Mr O’Grady Solicitor for the Applicant: Hosking Lawyers The Respondent: Litigant in person ORDERS
DGC 1412 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BOMAN
Applicant
AND: MS BOMAN
Respondent
ORDER MADE BY:
STRUM J
DATE OF ORDER:
23 MAY 2022
THE COURT ORDERS THAT:
1.The wife’s Application in a Proceeding filed 28 March 2022 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Boman & Boman has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRUM J:
INTRODUCTION
This is my judgment in respect of the Respondent Wife’s application for costs in relation to the final parenting and property proceedings heard in December 2021. My substantive judgment in the proceedings was delivered on 1 March 2022. The wife filed an Application in a Proceeding seeking an order for costs on 28 March 2022, together with written submissions in support thereof.
The wife seeks that the husband pay her costs of the proceedings on an indemnity basis from 18 November 2021 and that such payment be deducted from the payment of $106,000 required to be made by her to him pursuant to order 17(c) of the Orders made by me on 1 March 2022. Those orders are opposed by the husband.
BACKGROUND
I have set out the background of this matter in the reasons delivered on 1 March 2022; however, some background is of relevance to the question of what…
Continue reading Boman & Boman (No 2)
Sign in free to access the full text
Details
- AGLC
- Boman & Boman (No 2) [2022] FedCFamC1F 363
- Case
- [2022] FedCFamC1F 363
- Decision Date
CaseChat Overview and Summary
The wife in this matter sought an order that the husband pay her costs of the proceedings on an indemnity basis, and that such payment be deducted from the payment of $106,000 required to be made by her to him pursuant to order 17(c) of the Orders made by the court on 1 March 2022. These orders were opposed by the husband. The court had to determine whether there were circumstances justifying an order for indemnity costs and whether it should be made in this case.
In making its decision, the court considered the relevant legislation and principles, particularly section 117 of the Family Law Act 1975 (Cth). The court found that even if the wife's offer to settle exceeded the amount ordered to be paid by her to the husband by $9,000, it would not be minded to give substantial weight to it. The court also found that the wife had failed to adduce any evidence in relation to the relevance of the date of 18 November 2021, which she had proposed as the date from which her costs should be calculated. The court referred to the case of Prantage v Prantage (2013) FLC 93-544, where the Full Court had stated that making an order for indemnity costs was a very great departure from the normal standard or the usual rule relating to the basis upon which costs are ordered in this jurisdiction. The court concluded that it should not make an order for indemnity costs in this case.
The court dismissed the wife’s application for costs simpliciter and found it unnecessary to consider the issue of indemnity costs. The court did not need to consider the wife’s submission that if the court did not accept the principle of an order for indemnity costs or accept that the costs charged to the wife were in fact less than they would be at scale, then the wife would seek permission to undertake what the wife’s solicitor estimated would be 1 day to calculate costs at scale on Schedule 3. The wife’s Application in a Proceeding sought “an order that the husband pay the wife’s costs following the making of final orders pronounced on 1 March 2022” but her solicitor’s affidavit and her written submissions made it clear that she sought such an order in respect of her costs from 18 November 2021, without providing any evidence in relation to the relevance of that date. The court did not consider it appropriate to make an order for indemnity costs in this case.
In making its decision, the court considered the relevant legislation and principles, particularly section 117 of the Family Law Act 1975 (Cth). The court found that even if the wife's offer to settle exceeded the amount ordered to be paid by her to the husband by $9,000, it would not be minded to give substantial weight to it. The court also found that the wife had failed to adduce any evidence in relation to the relevance of the date of 18 November 2021, which she had proposed as the date from which her costs should be calculated. The court referred to the case of Prantage v Prantage (2013) FLC 93-544, where the Full Court had stated that making an order for indemnity costs was a very great departure from the normal standard or the usual rule relating to the basis upon which costs are ordered in this jurisdiction. The court concluded that it should not make an order for indemnity costs in this case.
The court dismissed the wife’s application for costs simpliciter and found it unnecessary to consider the issue of indemnity costs. The court did not need to consider the wife’s submission that if the court did not accept the principle of an order for indemnity costs or accept that the costs charged to the wife were in fact less than they would be at scale, then the wife would seek permission to undertake what the wife’s solicitor estimated would be 1 day to calculate costs at scale on Schedule 3. The wife’s Application in a Proceeding sought “an order that the husband pay the wife’s costs following the making of final orders pronounced on 1 March 2022” but her solicitor’s affidavit and her written submissions made it clear that she sought such an order in respect of her costs from 18 November 2021, without providing any evidence in relation to the relevance of that date. The court did not consider it appropriate to make an order for indemnity costs in this case.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
The wife seeks that the husband pay her costs of the proceedings on an indemnity basis from 18 November 2021 and that such payment be deducted from the payment of $106,000 required to be made by her to him pursuant to order 17(c) of the Orders made by me on 1 March 2022. Those orders are opposed by the husband.BACKGROUND I have set out the background of this matter in the reasons delivered on 1 March 2022; however, some background is of relevance to the question of what costs, if any, the court should order. I heard the trial of these proceedings on 6 and 10 December 2021. Both parenting and property matters were before the Court. On the second day of the trial, the husband was represented by different counsel than on the first day. After the luncheon adjournment that day, the husband dismissed his legal representatives and withdrew from the proceedings. He was the applicant and under cross-examination at that time. Thereafter, the matter proceeded undefended and concluded later that afternoon. I delivered judgment on 1 March 2022. I made parenting orders substantially in the terms proposed by the Independent Children’s Lawyer and supported by the wife. In relation to property, I found the value of the asset pool to be $424,000, which I divided in proportions of 75 per cent to the wife and 25 per cent to the husband, requiring her to make a payment to him of $106,000. On 18 March 2022, I ordered (inter alia) that:(a)any party seeking a costs order in the proceedings file and serve any written submissions in support thereof within 7 days;(b)any party opposing a costs orders file and serve any written submissions in opposition thereto within a further 7 days thereafter; and(c)any issues of costs be determined by me on the papers. On 25 March 2022, the wife filed an affidavit of her solicitor, Justin Hosking, of Hosking Lawyers, sworn that day, and emailed to my chambers written submissions, accompanied by a number of documents, including a schedule of counsel’s costs and what was said to be a Calderbank letter dated 18 November 2021. On 28 March 2022 the wife filed an Application in a Proceeding seeking costs. On 26 March 2022, the husband emailed to my chambers written submissions in response to the wife’s written submissions for costs. On 4 April 2022, he then filed a Response to the wife’s Application in a Proceeding and an affidavit sworn by him that day.RELEVANT LEGISLATION AND PRINCIPLES The wife’s application for costs fall to be determined within the framework of section 117 of the Family Law Act 1975 (Cth) (‘the Act’), in particular, subsections (1), (2) and (2A) thereof, which provide as follows:(1)Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.(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.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
However, even if it were in evidence, given the modest amount by which the wife’s purported offer exceeded the amount ordered to be paid by her to the husband ($9,000), I would not be minded to give substantial weight to it.CONCLUSION In all the circumstances, I shall dismiss the wife’s application for costs simpliciter. Accordingly, it is unnecessary for me to consider the issue of indemnity costs. However, even if I were prepared to make an order for costs, it would not be on an indemnity basis. Similarly, I do not need to consider the wife’s submission that –“If the court does not accept the principle of an order for indemnity costs or accept that the costs charged of the wife are in fact less than they would be at scale, then the wife would seek permission to undertake what the wife’s solicitor estimates will be 1 day to calculate costs at scale on Schedule 3”. The wife’s Application in a Proceeding seeks “an order that the husband pay the wife’s costs following the making of final orders pronounced on 1 March 2022” [sic]. However, her solicitor’s affidavit and her written submissions make it clear that she seeks such an order in respect of her costs from 18 November 2021, whilst failing to adduce any evidence in relation to the relevance of that date (given that the purported Calderbank letter is not in evidence). Further, in Prantage v Prantage (2013) FLC 93-544, the Full Court restated that, whilst there is nothing in the Act which inhibits the making of an order for indemnity costs and that there is a discretion, in an appropriate case, to make such an order, it is to be seen as a very great departure from the normal standard or the usual rule relating to the basis upon which costs are ordered in this jurisdiction, which the Full Court described as being “well entrenched” (at [96], per Thackray and Ryan JJ). Their Honours agreed (at [96] that there are “two seemingly irreconcilable objectives” at stake and said:Placing great emphasis on the importance of one objective, namely “relieving a successful litigant from the burden of costs which that litigant should not have been required to incur” will inevitably lead to insufficient emphasis being placed on the importance of the other objective of “protecting access to justice by only exposing an unsuccessful litigant in the usual course to an order for scale costs on a party and party basis”. Their Honours continued (at [97]):In our view, once it is recognised that ensuring access to justice is one of the key objectives of the “usual rule”, the claimed increasing disparity between scale costs and those being charged by lawyers becomes as much an argument against the awarding of indemnity costs as it is in favour of costs being ordered on that basis. In that case, their Honours concluded (at [143]):We are not persuaded that the costs we propose to order should be calculated on anything other than a party and party basis. It is true that, on the trial Judge’s findings, the husband’s behaviour was reprehensible, but his poor behaviour was primarily in his capacity as a parent rather than as a litigant. We also consider it relevant that the husband, albeit belatedly, consented to the children living with the wife after hearing the recommendation of an expert.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.