Bruin & Bruin (No 3)
[2024] FedCFamC2F 380
•26 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bruin & Bruin (No 3) [2024] FedCFamC2F 380
File number(s): MLC 1939 of 2022 Judgment of: JUDGE HARLAND Date of judgment: 26 March 2024 Catchwords: FAMILY LAW – costs – father seeks costs for the preparation of responding to the application in a proceeding filed by the mother – father privately funded – mother self-represented – mother seeks parties pay their own costs Legislation: Family Law Act 1975 (Cth) ss 67Z, 117(1), 117(2A), 117(4)
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 Schedule 1
Cases cited: Bruin & Bruin [2024] FedCFamC2F 102
Bruin & Bruin (No 2) [2024] FedCFamC2F 176
Division: Division 2 Family Law Number of paragraphs: 25 Date of last submission/s: 12 March 2024 Date of hearing: 7 February 2024 Place: Melbourne Solicitor for the Applicant Coote Family Law The Respondent Self-Represented. Solicitor for the Independent Children’s Lawyer Trapski Family Law ORDERS
MLC 1939 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BRUIN
Applicant
AND: MS BRUIN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
26 MARCH 2024
THE COURT ORDERS THAT:
1.The respondent pay the applicant’s costs in the sum of $2,712.97 within 30 days.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE HARLAND
On 14 February 2024, I delivered my reasons with respect to the mother’s application in a proceeding filed 31 January 2024. On the same day I also delivered my reasons in respect of the primary application for final parenting orders. My reasons for decision in relation to the mother’s application in a proceeding are set out in Bruin & Bruin [2024] FedCFamC2F 102 and my reasons for decision in the primary application are set out in Bruin & Bruin (No 2) [2024] FedCFamC2F 176. Both of these reasons should be read with these for background.
The father submits that this case justifies a departure from the usual position that the parties pay their own costs, and that the mother pay the father’s costs of $5,424 pursuant to schedule 1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021.
The mother submits she cannot pay the father’s costs sought due to financial hardship. She seeks that the parties bear their own costs of the proceedings. The mother also seeks the father pay half of the supervised visitation fees on an ongoing basis. This is beyond the scope of the cost application.
The Independent Children’s Lawyer (‘ICL’) does not seek costs.
BRIEF CHRONOLOGY
On 31 January 2024, the mother filed an application in a proceeding seeking further parenting orders which was listed before me for an interlocutory hearing 7 February 2024. The mother’s application was filed whilst judgment remained reserved on the primary application. Her application did not specifically seek to reopen the proceedings, however, it was clear from her supporting affidavit that she was seeking to reopen proceedings. The mother was self-represented.
The father was privately funded and was legally represented by Coote Family Law, and his solicitor advocate Mr BB. The father remains privately funded and represented by Coote Family Law.
The father and the ICL opposed the mother’s application.
I reserved my judgment and delivered my reasons for decision on 14 February 2024 dismissing the mother’s application in its entirety and ordered submissions for costs.
THE LEGAL PRINCIPLES AND SUBMISSIONS
The Court has discretion as to whether or not to order costs. Section 117(1) of the Family Law Act 1975 (Cth) (‘the Act’) provides that each party in family law proceedings shall bear their own costs. However, the Court retains a discretion to make an order as to costs as it considers just if there are circumstances that justify it doing so, having regard to the matters prescribed by s117(2A) of the Act.
The father submits the mother’s conduct in filing the application in a proceeding deferred the judgment in the substantial proceedings and that the proceedings were necessitated by the mother and not as a result of a party’s failure to comply with orders. The father submits the mother was wholly unsuccessful in her application quoting my reasons in Bruin & Bruin and that the mother’s complaints were “without foundation” and of “no substance”.
The father quotes the Department of Families Fairness and Housing (‘DFFH’) s67Z response dated 6 February 2024, in reply to the further concerns raised by the mother in support of her application to re-open and that they were “reported concerns that have previously been raised with Child Protection” and the report was closed at intake. Despite the mother confirming she had viewed this material via email correspondence to chambers, the mother chose to press her application.
The mother does not address her or the father’s conduct in the proceedings in her submissions. The mother claims she sought legal advice in preparation for the interim hearing, annexing a copy of an invoice dated 9 January 2024 to her costs submission. This does not assist the mother as her application to re-open was misconceived.
The father relies on a letter sent by his solicitor to the mother on 5 February 2024 as a letter of offer, outlining issues with her application and indicating the father would seek costs if the application was wholly unsuccessful. This letter was tendered by the mother and marked as Exhibit A during the interim hearing. This letter clearly put the mother on notice that her application was misconceived and that the father would seek costs if she was wholly unsuccessful.
As is apparent from my reasons in Bruin & Bruin, the mother was wholly unsuccessful in her application. She acknowledges this in her own submissions. The mother made a plethora of allegations against multiple personnel in her application that did not concern fresh evidence but sought to reagitate issues that had already been canvassed in the final hearing. I refer to paragraph 52 of my reasons in Bruin & Bruin as quoted by the father in his submissions that the mother’s application was an attempt “to trying to fix things she thought did not help her case and pre-empt the judgment”. The mother’s actions were self-serving and misguided.
Financial position of the parties
The mother submits that she is unable to pay the father’s costs due to changes in her financial circumstances and that she has been in financial hardship. She relies on her recent payslips, late payment of child support, and the costs of supervised visits to support these claims. Financial hardship is a consideration for an application for costs pursuant to s117(4) of the Act. This is not an application under that section, however, I am of the view the mother refers to financial hardship in its lay term to describe her financial position.
The father submits he is a sole trader tradesperson, and his income is dependent on his demand for work. He does not provide any further information identifying his income. The parties have never filed financial statements. The father has been privately funded for the entire proceedings. His cost notice filed 28 November 2023 states that prior to the final hearing, the father had incurred $82,616.85 in legal fees with $21,983.80 available in trust.
The children live with the father and spend supervised time with the mother. The father is solely financially responsible for the children except for receiving child support from the mother which he submits as of 1 March 2024, she is still in arrears of $1,502.69. The mother in her submissions admits she was late for a payment, annexing her child support summary. The summary does not show the payments she has made only when the next is due which is April 2024.
The father submits the mother has not provided any disclosure regarding her income. The mother’s income and financial position was unclear in the substantial application. I refer to paragraph 132 of my reasons in Bruin & Bruin (No 2) for context:
The mother's current financial position remains unclear. She told the report writer that she was earning $85,000 a year and that she had received a pay rise, but in cross examination she said her income had reduced to $65,000 and went on to refer to her work hours being reduced but her hourly rate increasing. This is yet another inconsistency in her evidence and it is difficult to know what is accurate and what the mother is saying in the hopes that it supports her case. When asked further about her financial circumstances she again had to be reminded to answer the questions that she was being asked. She resisted answering the questions about her properties on the basis of relevance but given the issue of the expense of supervision and affordability it is highly relevant. The mother said that she bought the [City K] house for approximately $345,000 unencumbered. When pressed she thought she sold her [Suburb M] home for $465,000 or $485,000 but could not be more precise. She agreed that she could afford to send the children to private school in [City K] and claims that she still can. She denied being in arrears of her child support payments. Recently, the mother unsuccessfully tried to reduce her child support obligations. In the lead up to the trial, the mother suggested she could not afford to continue to pay for supervision however during the trial she said she could. I accept that it is a considerable financial impost for the mother to pay for travel and supervision expenses. This is to her considerable credit and shows her commitment to her children.
The mother is the sole proprietor of the unencumbered property situate at CC Street, City K. She was legally represented throughout the substantial proceedings and includes a cost breakdown to date in her submissions amounting to $82,005 including fees for legal advice for her application.
The mother now annexes a copy of six of her most recent payslips to her submissions for the pay periods ending early 2024 to early 2024. The payslips indicate the mother is employed part-time with DD Company earning $36 an hour and is paid on a weekly basis. The mother appears to not work consistent hours but has the capacity to earn between $553.49 and $1,523 net per week. The mother pays for all costs of travel and for supervision expenses with the children. I accept this is a significant fee, however in the circumstances, I am of the view the mother is in a stronger financial position than the father.
DO THE CIRCUMSTANCES JUSTIFY THE MAKING OF A COST ORDER
In considering the relevant factors, I am satisfied that there should be a cost order made in favour of the father. I consider it appropriate that a costs order be made pursuant to schedule 1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021.
The father provides a breakdown of his costs sought purportedly in accordance with schedule 1 however, it is replete with errors referring to costs of opposing an application up to the first Court date and also referred to costs that pre-date the application in a proceeding. Further, the costs sought by the father are not in accordance with schedule 1 as the item numbers and cost do not equate. The total costs sought by the father are $5,424.
The matter was listed for an interlocutory hearing of a discreet issue only, for an application to re-open proceedings. It was not listed for a hearing for opposing an application up to the first Court date pursuant to item 1 of the schedule. The hearing duration was one hour. The father was represented by his solicitor advocate at the interim hearing. The submissions made on behalf of the father were brief, lasting 10 minutes. His solicitor advocate referred to the DFFH response, Dr B’s affidavit, and concluded that there was no evidence or significant change in circumstances to warrant re-opening proceedings and the application should be dismissed. No documents were tendered on the father’s behalf and I was not taken to any supporting case law. In the circumstances, I will not award costs for advocacy loading.
The only documents filed on behalf of the father were his cost submissions. The father’s solicitor claims up to five hours of drafting including to prepare those submissions. That is excessive, as the father chose not to file any responding material to the mother’s application. Therefore, he did not incur the expenses as would normally be the case of responding to an application in a proceeding. I do not think it would be appropriate to allow for five hours of drafting for preparing costs submissions. I will award costs pursuant to the table below:
Item Description Amount 4 Procedural or summary hearing—as a discrete event
$2,093.62 13(a) Daily Hearing Fee – for a short mention $342.19 15(c) Drafting, conferences and chamber work (not otherwise covered by other items in the table) for 1 hour at a solicitor’s fee $277.16 TOTAL $2,712.97
In those circumstances I will order the mother pay the father’s costs of $2,712.97.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland. Associate:
Dated: 26 March 2024
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