Charles and Hughes

[2017] FamCA 133

FAMILY COURT OF AUSTRALIA

CHARLES & HUGHES [2017] FamCA 133

FAMILY LAW – PRACTICE AND PROCEDURE – COSTS – Where section 117 considered – Where costs on an indemnity basis sought – Where the failure to provide a copy of a costs agreement is fatal to the application for indemnity costs – Where the respondent was wholly unsuccessful in opposing interim orders sought by the applicant – Where appropriate to award costs on a party/party basis against the respondent

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 19.08

Charles & Hughes [2016] FamCA 1010
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123
Hawkins & Roe [2012] FamCAFC 77
I and I (No 2) (1995) FLC 92-625
Penfold v Penfold (1980) 144 CLR 311

APPLICANT: Mr Charles

RESPONDENT: Ms Hughes

INDEPENDENT CHILDREN’S LAWYER: Ms Hafey

FILE NUMBER: SYC 3333 of 2011

DATE DELIVERED: 10 March 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: By way of written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sansom SC

SOLICITOR FOR THE APPLICANT: Abrams Turner Whelan Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Fermanis

SOLICITOR FOR THE RESPONDENT: Marriott Oliver Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Hafey of Legal Aid NSW Sydney Central Family Law

Orders

1. That the mother pay the father’s cost of and incidental to the father’s Application in a Case as agreed within one month of this order and in default of agreement as assessed with such costs payable within one month of agreement or assessment.

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 Charles & Hughes 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).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC 3333  of 2011

Mr Charles

Applicant

And

Ms Hughes

Respondent

REASONS FOR JUDGMENT

1. This is an application for costs arising from the determination of a discrete interim parenting issue.

2. Reasons for judgment were delivered on 25 November 2016: Charles & Hughes [2016] FamCA 1010. Those reasons set out the background of that interim issue.

3. Orders were made on 25 November 2016 as follows:

   (1)That the father is permitted to remove the child [C] born … 2003 from the Commonwealth of Australia for the period 18 December 2016 to 10 January 2017 inclusive for the purposes of an overseas holiday to Honolulu and Canada.

   (2)That the mother do all necessary things and sign all necessary documents in a timely manner as are reasonably on her part to facilitate the child’s travel as permitted.

   (3)That no later than 14 days prior to the date of departure the father shall provide to the mother a copy of flight bookings showing the date of departure and date of return and copies of the details of the accommodation arranged for the trip including location of that accommodation and contact numbers for such accommodation.

   (4)That the mother be at liberty to provide to the said child a mobile phone or other electronic device such as would facilitate the child having communication with the mother and/or her older sister or other members of her family at such times and on such occasions as the child may wish during the period of the child’s absence from Australia and such mobile phone or other device shall be paid for by the mother and remain at all times in the possession of the child.

   (5)That the father shall not remove from the child the mobile phone or other device provided for pursuant to the preceding order and the father shall at all times afford to the child, if requested by the child, privacy in her communications with the mother or her older sister or other members of her family.

   (6)That the mother or her nominee facilitate the child being delivered to the father at the McDonalds Family Restaurant [Suburb G] (or such other location or time as agreed in writing such writing to include SMS or email communication) at 10.00 am on Saturday 17 December 2016.

   (7)That otherwise all interim applications be dismissed.

4. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that each party to the proceedings shall bear his or her own costs and is in the following terms:

   (1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, 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) and (5) 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..

5. Although s 117(2) requires a finding of justifiable circumstances as an essential preliminary to making an order for costs, there is no additional or special onus on an applicant who seeks an order for costs: see Penfold v Penfold (1980) 144 CLR 311.

6. The matters relevant to determining what order, if any, should be made for costs are set out in subsection (2A) of that section. They are the following:

   a)the financial circumstances of each of the parties to the proceedings;

   b)whether any party has legal aid and the terms of any grant of aid;

   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 answers, 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.

7. The Full Court in Hawkins & Roe [2012] FamCAFC 77 said:

   17.With respect to the application of the section, in Penfold and Penfold (1980) 144 CLR 311, the High Court said at 315 and 316:

   Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s. 117(2) in "a clear case".

   Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised (Kent v. Kent). Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.

   (footnotes omitted)

   18. The weight to be given to a particular consideration under s 117(2A) is a matter for the discretion of the judge. However, in I and I (No 2) (1995) FLC 92-625 the Full Court of this Court held that the relevant matters in s 117(2A) “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs”. That is not to say that one single matter may not ultimately be determinative. The Full Court confirmed this in Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 at paragraph 41:

   … A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.

8. The father’s application is for costs to be awarded on an indemnity basis or in the alternative as determined by the Court or as agreed or assessed.

9. The application for indemnity costs is readily resolved by reference to Rule 19.08 of the Family Law Rules 2004.

10. Rule 19.08 of the Family Law Rules 2004 provides:

Order for costs

(1)A party may apply for an order that another person pay costs.

(2)An application for costs may be made:

(a)at any stage during a case; or

(b)by filing an Application in a Case within 28 days after the final order is made.

(3)A party applying for an order for costs on an indemnity basis must inform the court if the party is bound by a costs agreement in relation to those costs and, if so, the terms of the costs agreement.

1. The husband has failed to disclose or provide a copy of his Costs Agreement as between himself and his solicitors in compliance with rule 19.08(3). Failure to do so is fatal to his application for indemnity costs.

2. Otherwise as to the relevant considerations in s117(2A):

   a)Financial circumstances: there is no evidence in the context of the interim application as to the financial position of either party. The father makes no submission as to the consideration. The mother contends somewhat curiously that an order for costs would impact on her financial capacity to care for the children. No submissions are made in support of that contention.

   b)Legal aid: not applicable.

   c)Conduct of the parties: This consideration relates to the proceedings themselves, not otherwise the merits of same. This is not a relevant consideration.

   d)Failure to comply with orders: Not applicable.

   e)Wholly unsuccessful: The father contends that the application should not have been necessary as it related to an overseas holiday substantially in the period that the child, aged 13, was to spend with him in any event. It is further contended that the application was necessary as a result of the mother’s intransigence. Such is apparent from the reasons for judgment. The mother was wholly unsuccessful in her opposition to the orders sought by the father.

   f)Offer of Settlement: Not applicable.

   g)Any other fact or circumstance: Not applicable.

3. It is contended by the mother that if an order for costs is proposed that she be required to pay only a proportion of the father’s costs.

4. In the circumstances discussed above it is appropriate that there be an order that the mother pay the father’s costs of and incidental to the application on a party/party basis as agreed or assessed.

5. Orders will be made accordingly.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 10 March 2017.

Associate: 

Date:  8 March 2017