Collins and Monroe (No 2)

[2022] FedCFamC1A 15

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Collins & Monroe (No 2) [2022] FedCFamC1A 15

Appeal from:

Monroe & Collins [2021] FamCA 315

Appeal number(s):

EAA 63 of 2021

File number(s):

SYC 809 of 2014

Judgment of:

TREE, GILL & HARTNETT JJ

Date of judgment:

10 February 2022

Catchwords:

FAMILY LAW – APPEAL – COSTS – Where the appeal was dismissed – Where the respondent mother sought costs at scale against the appellant father – Where the father did not file written submissions in opposition to an application for costs – Costs ordered in favour of the respondent mother.

Legislation:

Family Law Act 1975 (Cth) ss 117(1), 117(2), 117(2A)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3

Cases cited:

Lenova & Lenova (Costs) [2011] FamCAFC 141

Number of paragraphs:

15

Date of last submission/s:

21 December 2021

Date of hearing:

28 September 2021 and by way of written submissions on 21 December 2021

Place:

In Chambers, delivered in Cairns

Counsel for the Appellant:

Ms Gillies SC

Solicitor for the Appellant:

Santo Family Lawyers

Counsel for the Respondent:

Ms Lioumis

Solicitor for the Respondent:

Pearson Emerson Family Law

Counsel for the Independent Children's Lawyer:

Mr Harris

Solicitor for the Independent Children's Lawyer:

Legal Aid NSW

ORDERS

EAA 63 of 2021 SYC 809 of 2014
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR COLLINS Appellant
AND:	MS MONROE Respondent
INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	TREE, GILL & HARTNETT JJ
DATE OF ORDER:	10 FEBRUARY 2022

THE COURT ORDERS THAT:

1.The appellant father pay the respondent mother’s costs in the sum of $16,636.60 within 28 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 the pseudonym Collins & Monroe (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

TREE, GILL AND HARTNETT JJ:

INTRODUCTION

1. On 6 December 2021, we dismissed an appeal brought by the appellant Mr Collins (“the father”) against interim parenting orders made 18 May 2021. On the hearing of the appeal, the respondent mother, Ms Monroe (“the mother”) sought an order that, in the event the appeal was dismissed, the father pay her costs of the appeal at scale in accordance with Sch 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). At the request of senior counsel for the father, our orders of 6 December 2021 made provision for the filing of any further evidence and/or submissions as to costs as claimed by the father and mother, and otherwise reserved the question of those parties’ costs. On the hearing of the appeal, the Independent Children’s Lawyer (“the ICL”) sought an order that, in the event the appeal was dismissed, the father pay the costs of the ICL in the sum of $4,356. There was no dispute as to the quantum of costs. Upon dismissal of the appeal, Order 2 provided for the father to make payment of these costs to the ICL.

2. On 21 December 2021, the mother filed written submissions together with annexures as to costs. The father filed no further evidence nor any submissions.

3. Costs sought by the mother are in the sum of $16,636.60 in accordance with Sch 3 of the Rules.

   COSTS

4. The default position established by ss 117(1) and 117(2) of the Family Law Act 1975 (Cth) (“the Act”) is that each party should bear their own costs, unless there are circumstances which justify the Court making such other costs orders as the Court considers just. In doing so, the Court must have regard to the list of considerations set out in s 117(2A) of the Act.

5. In seeking an order for costs, the mother relied upon the written offers of settlement made by her.

6. On 9 August 2021, the father made an offer of settlement to withdraw his appeal and discharge the stay orders made 16 July 2021, on the basis that the mother agreed to suspend her supervised school holiday time with the child X (“the child”) born in 2011, and that each party bear their own costs in relation to the appeal and the stay application.[1]

   [1] Written submissions of mother filed 21 December 2021, Annexure A.

7. On 11 August 2021, the mother agreed to the appeal being discontinued and the stay orders being discharged but did not agree to the father’s proposal to suspend the mother’s supervised time during school holidays.[2] Further, the mother sought costs of $12,500 for work performed in relation to the appeal and stay application up until 11 August 2021. The father did not respond to the mother’s counter-offer.[3]

   [2] Ibid, Annexure B.

   [3] Ibid, paragraph 5.

8. On 24 September 2021, the mother made another offer of settlement as follows:[4]

   (a)for the appeal to be withdrawn or dismissed;

   (b)for the stay ordered by the primary judge to be lifted;

   (c)for the father to pay the mother’s costs of the appeal and stay application, being $16,636.60 for the appeal, at scale; and $6,294 for the stay application, at scale;

   (d)for the mother’s supervised time to be suspended during school holiday periods which occur at the conclusion of Term 2 (June/July) for three weeks and for three weeks during the December/January school holiday period; and

   (e)for the orders to provide for advanced notice of intended travel and make up supervised contact sessions before or after the school holidays for the missed sessions during the suspended period.

   [4] Ibid, Annexure C.

9. The father did not respond to the mother’s offer made 24 September 2021.[5]

   [5] Ibid, paragraph 7.

10. The Full Court held in Lenova & Lenova (Costs):[6]

    11.A timely offer in writing genuinely made might, then, be seen as an important part of a limited armoury available to prospective litigants seeking to avoid the costs of litigation. Conversely, where, consequent upon success in an action, a litigant can point to the making of a genuine and timely offer having been made, that offer might be seen as an important (albeit not the only) matter in the exercise of the discretion as to the ordering of costs.

    12.That consideration must, of course, be balanced against a litigant having a limited capacity to meet a costs order, as well as any other relevant considerations. But, a limited financial capacity to meet an order cannot be determinative; if it were, a party would always be able to plead impecuniosity as a means of avoiding a costs order in circumstances where pursuit of the litigation has continued in the face of a reasonable offer to cease that litigation and the incurring of its attendant costs.

    [6] [2011] FamCAFC 141 at [11]–[12].

11. The father’s capacity to meet a costs order was a matter considered by the Court. The father described himself as an investor. It was common ground however that neither party placed evidence before the Court as to their respective financial positions.

12. The father’s application was wholly unsuccessful, a matter considered pursuant to s 117(2A)(e) of the Act.

13. The mother made offers in writing to the father to settle the proceedings pursuant to s 117(2A)(f) of the Act. The mother’s offers in writing made at [7] and [8] above were consistent with the orders made by the Court on 6 December 2021 to dismiss the father’s appeal, and indeed included greater flexibility as afforded to the father in respect of arrangements for the child. It was always open to the father to accept such offers and discontinue the appeal. He did not do so.

14. The above circumstances justify the exercise of our discretion to make an order for costs as sought by the mother.

15. The mother provided to the Court a schedule of costs in the appeal of $16,636.60 at scale and $24,290 for indemnity costs. On the hearing of the appeal, and in her further written submissions, the mother sought scale costs and not indemnity costs. There will be an order that the father pay the mother’s costs in the terms sought.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Tree, Gill & Hartnett.

Associate:

Dated:       10 February 2022