Cole and Santos (No.2)

[2016] FCCA 2582

FEDERAL CIRCUIT COURT OF AUSTRALIA

COLE & SANTOS (No.2) [2016] FCCA 2582

Catchwords:
FAMILY LAW – Costs – Application for costs – indemnity costs – fixed costs – party and party costs – justification of departure of normal costs position – no justification – no costs awarded.

Legislation:
Family Law Act 1975 (Cth), s.117
Federal Circuit Court Rules 2001 (Cth), Sch.1, Pt.1

Cases cited:
Cole & Santos [2016] FCCA 674
Penfold v Penfold (1980) 144 CLR 311
Treadwell v Hickey [2010] NSWSC 1119
Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2006] NSWSC 583

Applicant: MR COLE

Respondent: MS SANTOS

File Number: SYC 1232 of 2013

Judgment of: Chief Judge Pascoe

Final Hearing date: 14 July 2016

Date of Last Submission: 14 July 2016

Delivered at: Sydney

Delivered on: 17 October 2016

REPRESENTATION

Counsel for the Applicant: Mr Matthew Wong

Solicitors for the Applicant: Doolan Callaghan Family Lawyers

Counsel for the Respondent: Mr David Dura

Solicitors for the Respondent: Paltos Milevski Family Lawyers

ORDERS

THE COURT ORDERS THAT:

1. No orders as to costs

IT IS NOTED that publication of this judgment under the pseudonym Cole & Santos (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1232 of 2013

MR COLE

Applicant

And

MS SANTOS

Respondent

REASONS FOR JUDGMENT

Issue for Determination

1. This is an Application in a Case, filed 29 April 2016, by the Respondent Mother for costs in relation to a matter, commenced by way of Initiating Application, filed 8 March 2013, by the Applicant Father. I heard the matter on 16 and 17 December 2015, and delivered judgment in that matter on 1 April 2016 (Cole & Santos [2016] FCCA 674)

2. The Mother seeks costs of, and incidental to, the parenting aspect of that matter, fixed in the amount of $100,000, or as determined by the Court. The Mother also argued in the alternative for a costs award on an indemnity basis or on a party – party basis.

3. The Application in a Case in its entirety is opposed by the Father. The Father seeks that the Mother’s Application be dismissed and that the Mother should pay his costs of, and incidental to, her costs application.

Evidence and Submissions

1. Counsel for the Mother made clear that this costs Application relates only to the Parenting portion of the litigation, and not to costs relating to Child Support. This was due to the fact that my decision relating to Child Support is presently under appeal, and so total costs with regard to Child Support cannot be quantified.

2. The submissions by the Mother largely relate to a series of communications between the parties. This evidence was set out as Annexures in the Mother’s Affidavit, sworn and filed 29 April 2016, relevantly: “Annexure C” (correspondence from the Mother’s solicitors to the Father, dated 19 January 2015) (“Mother’s Annexure C”); “Annexure D” (correspondence from the Father to the Mother’s solicitor, dated 1 February 2015) (“