Chaborne and Chaborne
[2020] FamCAFC 9
•21 January 2020
FAMILY COURT OF AUSTRALIA
| CHABORNE & CHABORNE | [2020] FamCAFC 9 |
| FAMILY LAW – APPEAL – COSTS – Where the respondent sought her costs in a fixed amount – Where the applicant opposed a costs order being made – Where the applicant has been wholly unsuccessful and an order for costs is justified – Where there is insufficient information provided to enable a fixed costs order to be made – Costs ordered in favour of the respondent on a party/party basis with such costs to be taxed or assessed in default of agreement. |
| Family Law Act 1975 (Cth) – s 117 Family Law Rules 2004 (Cth) – r 19.18 |
| APPLICANT: | Mr Chaborne |
| RESPONDENT: | Ms Chaborne |
| INDEPENDENT CHILDREN’S LAWYER | Legal Aid Western Australia |
| APPEAL NUMBER: | WEA | 3L | of | 2019 |
| FILE NUMBER: | PTW | 2846 | of | 2017 |
| DATE DELIVERED: | 21 January 2020 |
| PLACE DELIVERED: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | Written Submissions |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Anderson |
| SOLICITOR FOR THE APPLICANT: | Kerr Fels Divorce & Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms McShera |
| SOLICITOR FOR THE RESPONDENT: | Anthony R Clarke & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Mr Martin |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Legal Aid Western Australia |
Orders
The father pay the costs of the mother of and incidental to the Application in an Appeal on a party/party basis with such costs to be taxed or assessed in default of agreement.
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 Chaborne & Chaborne 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).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WEA 3L of 2019
File Number: PTW 2846 of 2017
| Mr Chaborne |
Applicant
And
| Ms Chaborne |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
On 29 July 2019, this Court made an order dismissing the Application in an Appeal filed by Mr Chaborne (“the father”), seeking an extension of time to file an appeal against one of the interlocutory orders made by Magistrate Tyson (as her Honour then was) on 28 August 2018, and seeking that an expert report be admitted as further evidence in the appeal.
On 23 August 2019, Ms Chaborne (“the mother”) filed an Application in an Appeal seeking an order that the father pay her costs of and incidental to the father’s application, fixed in the sum of $8,000.
That application was supported by an affidavit of the Legal Practice Manager of the solicitors for the mother, and written submissions.
On 7 November 2019, the father filed written submissions in response, seeking dismissal of the mother’s application for costs.
The Legislation
The relevant section of the Family Law Act 1975 (Cth) (“the Act”) is s 117 which provides 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.
…
As can be seen, the primary rule is that each party is to bear their own costs (s 117(1)), but where there is a circumstance that justifies it, an order for costs can be made (s 117(2)). And, in determining that, and what order is to be made, regard must be had to the factors in s 117(2A).
Discussion
The mother says that the circumstances that justify an order for costs are as follows:
a.the father’s conduct caused the mother to incur extra and unnecessary costs (s 117(2A)(c)); and
b. the father was wholly unsuccessful (s 117(2A)(e)).
(Mother’s written summary of argument filed 23 August 2019, paragraph 8)
The only other factor said to be relevant is the financial circumstances of the parties (s 117(2A)(a)). In this regard, the mother asserts that the father’s financial circumstances allow him to meet the costs order sought, but the father submits, in effect, that the mother’s financial circumstances are better than his, and that should be taken into account in the exercise of discretion in determining the costs application.
As to their income, there is no doubt that the mother has a greater income than the father, but she has ongoing financial responsibilities for the child of the relationship, and his three step-sisters. As to property and superannuation, the final orders made by the Magistrate on 12 November 2018, divided the total value of the same, namely $1,011,777, 72.5 per cent to the mother and 27.5 per cent to the father.
Although approximately one third of the father’s entitlement was in the form of superannuation, it is readily apparent that the financial circumstances of the parties cannot prevent an order for costs being made in favour of the mother, if that is otherwise justified.
Turning then to the circumstances relied on by the mother.
The conduct of the father
It is claimed that the conduct of the father “has resulted in the mother being put to considerable financial, physical and emotional cost” (Mother’s written summary of argument, paragraph 13).
However, in reality, the complaint is that the father chose to make an application seeking an extension of time to appeal the interlocutory order, rather than to leave the challenge to that order to be considered in an appeal against the final parenting orders, and which appeal he has now filed in any event.
The mother has of course been put to cost and expense in meeting the application seeking an extension of time, but it is only because the father has been unsuccessful in that application, that that cost and expense has, in effect, been unnecessary.
Thus, although the conduct of the father in this regard remains relevant, that is in the context of the fact that he has been wholly unsuccessful, and it is that which provides the circumstance that would justify an order for costs.
The lack of success of the application
As referred to above, this is the factor which plainly justifies an order for costs in this case.
Having determined that there should be a costs order, the question is, what that order should be.
The mother seeks that this Court order costs in a specific amount, namely $8,000, and she relies on r 19.18(1)(a) of the Family Law Rules 2004 (Cth) (“the Rules”) for that purpose.
It is open to this Court to order a specific amount, and that would clearly be advantageous, because it would save the parties the time, trouble and expense of a taxation of the costs. However, it is not possible to do so in this case.
There is insufficient detail provided to enable this Court to fix upon a specific amount. All I am told by the Legal Practice Manager in her affidavit is as follows:
3. This Firm, like most others, charges time in units of 6-minute blocks.
4.I have reviewed the timesheet entries by [the mother’s solicitor] in relation to the work done by her with regards to the Appeal, and have accounted for 197 units of time, up to and including the delivery of the Judgment on 29 July 2019.
5.Calculated at scale, according to Schedule 3, Parts 1 and 2 of the Family Law Rules 2004 (Cth), the costs incurred by Ms Chaborne in relation to the Appeal, up to and including the delivery of the Judgment on 29 July 2019, is $8,262.
What is required is a schedule of costs in order that this Court can at least see the work that has been done, and the charges that have been made for that work.
I do note though that the calculation of costs has been undertaken according to scale, and thus I proceed on the basis that party/party costs are sought, and not indemnity costs.
Given the lack of relevant detail, all I can do is order that the father pay the mother’s costs of and incidental to the Application in an Appeal, on a party/party basis, with such costs to be taxed or assessed in default of agreement.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 21 January 2020
Associate:
Date: 21 January 2020
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