Cong & Krause (No 2)

[2022] FedCFamC1F 142

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Cong & Krause (No 2) [2022] FedCFamC1F 142

File number(s):

BRC 9014 of 2015

Judgment of:

BAUMANN J

Date of judgment:

15 March 2022

Catchwords:

FAMILY LAW – COSTS – Application dismissed

Legislation:

Family Law Act 1975 (Cth), ss 117

Cases cited:

Cong & Krause [2019] FamCA 810

Cong & Krause [2021] FedCFamC1F 52

Division:

Division 1 First Instance

Number of paragraphs:

9

Date of last submission/s:

11 October 2021

Date of hearing:

On the papers

Place:

Brisbane

Solicitor for the Applicant:

TLG Law

The Respondent:

Litigant in person

ORDERS

BRC 9014 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS CONG

Applicant

AND:

MR KRAUSE

Respondent

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	15 MARCH 2022

THE COURT ORDERS:

1.That the Applicant’s Application for costs be dismissed.

2.That there be no orders as to costs.

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 Cong & Krause has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

BAUMANN J:

1. On 21 September 2021, in this matter, the Court delivered Reasons for amending, pursuant to s 90SN of the Family Law Act 1975 (Cth) (“the Act”), Orders made by consent on 11 May 2018 (see Cong & Krause [2021] FedCFamC1F 52).

2. Where the Applicant, Ms Cong, wished to pursue an application for costs against the Respondent, Mr Krause, directions for the filing of submissions as to costs were made and on 11 October 2021, the Applicant filed written submissions within the time limit directed.

3. The Respondent has not filed any written submissions.

   PRINCIPLES

4. Section 117(1) of the Act provides that each party should bear their own costs of proceedings, however if the Court is satisfied the circumstances justify an order for costs, then after consideration of the factors set out in s 117(2A), the Court is empowered to make such order as to costs as is just.

   CONSIDERATION

5. The written submissions of the Applicant seeks an order for the Respondent to pay the Applicant the sum of $10,202.50 (inclusive of GST).

6. On the basis of the claim by the solicitors for the Applicant for $1,100 “being two hours of Ms Cong’s solicitors fees for work done since 10 October 2021”, I infer the claim for fees is on an indemnity basis.  No affidavit has been filed setting out the costs agreement between the Applicant and her solicitors, to support the claim for indemnity costs.

7. In any event, before any consideration of “quantum” is required, the Court must first decide whether the circumstances justify the Court departing from the usual rule.  In my assessment, for the reasons set out, I am not satisfied an order for costs is justified in the circumstances of this case, because:

   (a)there is little information to enable the Court to assess the respective financial circumstances of each party.  At the time the Orders were made in May 2018, both parties had modest assets and income;

   (b)neither party was in receipt of legal aid;

   (c)in respect of the “conduct of the parties”, the ultimate decision of the Court was that it would be a “miscarriage of justice” if the Respondent “was permitted to take advantage of an error in drafting as did clearly occur in this matter” (Reasons at [24(d)]).  However the conduct of the Applicant’s solicitors (the poor drafting) cannot be ignored in the exercise of my discretion;

   (d)until the Orders were ultimately set aside under s 90SN, the Respondent was entitled to file and prosecute his Application for enforcement – with that Application being the catalyst for an earlier Application by the Applicant to set aside the consent Orders under r 17.02 (see Cong & Krause [2019] FamCA 810). The Applicant was “wholly” unsuccessful in that earlier Application but has been “wholly” successful in the current Application filed 3 March 2020;

   (e)the Applicant relies upon the fact that the Orders made by the Court were “exactly” as set out in her Initiating application.  I of course take this into account; and

   (f)I accept the Applicant, after receiving the Reasons for Judgment, and one day before filing the costs submissions, an offer to settle the costs dispute was made, however as it was emailed so late to the unrepresented Respondent, little turns on that email.

   RESULT

8. The errors in drafting that arose on 11 May 2018 caused an Application to amend under the slip rule to be dismissed, but the later Application to set aside and vary under s 90SN to succeed. In some sense a comedy of errors occurred – however on balance I am not satisfied that the circumstances justify an order for costs for either party.

9. The Applicant’s Application for costs will be dismissed.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann.

Associate:  

Dated:       15 March 2022