Costa & Drake

Case [2021] FamCA 202

FAMILY COURT OF AUSTRALIA

Costa & Drake [2021] FamCA 202

File number(s): SYC 4757 of 2019
Judgment of: MCCLELLAND DCJ
Date of judgment: 19 April 2021
Catchwords: FAMILY LAW – COSTS – Review of a Senior Registrar’s decision – Where the father brought an application for the parties and child to undergo parentage testing and for a declaration for parentage to be made in respect to the child – Where the mother made an application for the father to pay her costs of and incidental to that parentage application on an indemnity basis following the Senior Registrar dismissing the parentage application – Where the Senior Registrar further dismissed the mother’s costs application – Where the mother seeks a review of the Senior Registrar’s decision to dismiss her application for costs on an indemnity basis – Where the father’s application for parentage testing had no reasonable prospects of success – Orders made for the father to pay the mother’s costs of and incidental to the father’s parentage application and this review application on a party/party basis as assessed or agreed.  
Legislation:

Family Law Act 1975 (Cth) ss. 37A, 69P, 69W, 69VA, 117

Family Law Rules 2004 (Cth) r. 18.10(1)

Cases cited:

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248

D & D (Costs) (No. 2) (2010) FLC 93-435

Feiteiro & Feiteiro [2019] FamCA 647

Henley & Henley (2019) FamCA 101

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123

Hawkins & Roe (2012) 47 Fam LR 526

I and I (No 2) (1995) FLC 92-625

Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664

Munday v Bowman (1997) FLC 92-784

Nada & Nettle (Costs) (2014) FLC 93-612

Penfold v Penfold (1980) 144 CLR 311

Re C(No 2) (1992) FLC 92-284

Schwarz, C.L. and Schwarz, G.J. (1985) FLC 91-618

Teasdale & Rossell & Anor [2021] FCCA 58

TNL & CYT (2005) 33 Fam LR 167

Wrensted & Eades (2016) FLC 93-697
Number of paragraphs: 68
Date of hearing: 30 March 2021
Place: Sydney by web conference
Solicitor for the Applicant: Mr Lindo of Macarthur Law Group
Solicitor for the Respondent: Ms Hennigan of Reid Family Lawyers
Solicitor for the Independent Children's Lawyer: Ms Webber of Legal Aid NSW

ORDERS

SYC 4757 of 2019
BETWEEN:

MR COSTA

Applicant
AND:

MS DRAKE

Respondent

LEGAL AID NSW SYDNEY CENTRAL FAMILY LAW

Independent Children’s Lawyer

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

19 APRIL 2021

THE COURT ORDERS THAT:

1.Mr Costa (“the father”) pay Ms Drake’s (“the mother”) legal costs of and incidental to his Application for orders for parentage testing and a section 69VA declaration and, in respect to this Application for review, in respect to the period subsequent to 24 November 2020 in accordance with the scale prescribed by the Family Law Rules 2004 (Cth).

2.The costs payable by the father in respect to Order 1 are to be paid within seven (7) days of agreement or assessment…

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Details
AGLC
Costa & Drake [2021] FamCA 202
Case
[2021] FamCA 202
Decision Date

CaseChat Overview and Summary

This matter concerned a review of a Senior Registrar's decision regarding costs. The father, Mr Costa, had applied for parentage testing and a declaration of paternity concerning the parties' child. The mother, Ms Drake, subsequently applied for her costs of and incidental to that parentage application to be paid on an indemnity basis after the Senior Registrar dismissed the father's application. The Senior Registrar also dismissed the mother's costs application. The mother sought a review of the Senior Registrar's decision to dismiss her application for indemnity costs.

The court was required to determine whether the Senior Registrar erred in dismissing the mother's application for costs on an indemnity basis. Specifically, the court needed to consider the father's prospects of success in his parentage application and whether his continued pursuit of that application warranted an order for indemnity costs in favour of the mother. The court also had to consider the relevant factors for awarding costs, including the financial circumstances of the parties and any legal aid assistance received.

McClelland DCJ found that the father's parentage application had no reasonable prospects of success, as the mother had not disputed his paternity and no plausible evidence had been presented to cast doubt on it. The court noted that a review of a Registrar's decision is a hearing de novo. Applying the principles for awarding costs, and considering that the father had continued with an application that lacked reasonable prospects of success, the court ordered the father to pay the mother's legal costs of and incidental to his parentage application and the review application on a party/party basis. The court acknowledged that this order might present some hardship to the father, but found it warranted given the circumstances.

Orders

Orders of the court

SYC 4757 of 2019

BETWEEN:

MR COSTA

Applicant

AND:

MS DRAKE

Respondent

LEGAL AID NSW SYDNEY CENTRAL FAMILY LAW

Independent Children’s Lawyer

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

19 APRIL 2021

THE COURT ORDERS THAT:

1. Mr Costa (“the father”) pay Ms Drake’s (“the mother”) legal costs of and incidental to his Application for orders for parentage testing and a section 69VA declaration and, in respect to this Application for review, in respect to the period subsequent to 24 November 2020 in accordance with the scale prescribed by the Family Law Rules 2004 (Cth).

2. The costs payable by the father in respect to Order 1 are to be paid within seven (7) days of agreement or assessment of the quantum of those costs.

THE COURT NOTES THAT:

A. The father has been ordered to pay costs in this matter as a result of him continuing with an Application for orders requiring the mother and the child to undergo parentage testing when his Application had no reasonable prospects of success in circumstances where the mother has not disputed that the father is the biological father of the child and where no plausible evidence has been presented to cast in doubt the father’s paternity of the child.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

In circumstances where a review of a Registrar’s decision is a hearing de novo, I have made an order for the father to pay costs of the mother incurred on a party/party basis in respect to legal work undertaken from 24 November 2020, being the date that the father’s parentage Application was set down for hearing as a discrete issue. For reasons which I will expand upon further below, it was apparent that the father’s parentage Application had no reasonable prospects for success in circumstances where, at no stage, has the mother disputed that the father is the biological father of the child and, further, in circumstances where the father has not presented any plausible evidence that could reasonably cast doubt on that fact.RELEVANT BACKGROUND In 1977, the mother was born. She is currently aged 43 years. In 1981, the father was born. He is currently aged 39 years. In 2016, the parties married. On 15 November 2018, the parties separated and, in January 2021, the parties divorce took effect. In 2019, the child was born. He is currently aged two (2) years. On 22 July 2019, the father filed an Initiating Application seeking, inter alia, that the parties and the child undergo DNA parentage testing and for a declaration of paternity to be made pursuant to s 69VA of the Family Law Act 1975 (Cth) (“the Act”): see Orders 8, 9, 10 and 11 of the Initiating Application. On 24 November 2020, a Registrar of this Court made orders for the parties’ respective Applications, other than in respect to the father’s parentage Application, to be listed for a procedural hearing on 1 March 2021. Those orders noted “the father is pressing his application for paternity test”. The orders included a further notation that: The Application for a DNA test will be listed before the Senior Registrar and directions are made under cover of separate orders. By separate orders, also made on 24 November 2020, the Registrar listed the father’s parentage Application before a Senior Registrar of the Court at 10am on 16 February 2021. On 16 February 2021, Senior Registrar McGrath made the following orders: 1.Orders 8, 9, 10 & 11 of the orders sought in the Amended Initiating Application filed 29 January 2021 is dismissed.2. The Respondent’s oral application for actual costs of approximately $15,000 is dismissed.3. The Respondent’s oral application for costs on an indemnity basis is dismissed.… APPLICATIONS The mother sought that orders be made in accordance with those set out in her Application in a Case filed 8 March 2021, as follows: 1. That the applicant father pay the respondent mother’s legal costs of and incidental to his application for orders for parentage testing and a section 69VA declaration, on an indemnity basis.2. In the alternative to Order 2. herein, that the applicant father pay the respondent mother’s legal costs of and incidental to his application for orders for parentage testing and a section 69VA declaration, in accordance with the scale prescribed by the Family Law Rules.3. That the applicant father pay the respondent mother’s legal costs of this Review application. …

Evidence

Evidence Before The Court

The Independent Children’s Lawyer did not seek to be heard in respect to the parties’ respective Applications and was excused from the proceedings. EVIDENCE The mother relies upon the following documents: (a)Application in a Case filed 8 March 2021; (b)Affidavit of the mother filed 8 March 2021; and (c)Written submissions filed 26 March 2021. The father relies upon the following documents: (d)Response to Application in a Case filed 26 March 2021; (e)Affidavit of the father filed 26 March 2021; and (f)Written submissions filed 26 March 2021. THE LAW – CONCEPTS AND PRINCIPLES Section 37A of the Act relevantly sets out delegation of powers to Registrars. Sub-sections 37A(9) and (10) are as follows: (9)A party to proceedings in which a Registrar has exercised any of the powers of the Court pursuant to a delegation under subsection (1) may, within the time prescribed by, or within such further time as is allowed in accordance with, applicable Rules of Court made by the Judges or a majority of them for the purposes of this subsection, apply to the Court to review that exercise of power.(10) The Court may, on application under subsection (9) or of its own motion, review an exercise of power by a Registrar pursuant to a delegation under this section and may make such order or orders as it considers appropriate with respect to the matter with respect to which the power was exercised. Rule 18.10(1) of the Family Law Rules 2004 (Cth) (“the Rules”) provides that a court must hear an application for review of an order of a Judicial Registrar, Registrar or Deputy Registrar as an original hearing, in other words proceeds by hearing de novo. The review of a Registrar’s determination is an original hearing in the sense that error does not need to be established: Feiteiro & Feiteiro [2019] FamCA 647 referring to Henley & Henley (2019) FamCA 101 at [7]. Parentage Application Relevant to these proceedings, s 69P of the Act creates a presumption of paternity arising from marriage such that: (1)If a child is born to a woman while she is married, the child is presumed to be a child of the woman and her husband. Section 69W of the Act provides that: Orders for carrying out of parentage testing procedures (1) If the parentage of a child is a question in issue in proceedings under this Act, the court may make an order (a parentage testing order) requiring a parentage testing procedure to be carried out on a person mentioned in subsection (3) for the purpose of obtaining information to assist in determining the parentage of the child.(2) A court may make a parentage testing order:(a) on its own initiative; or (b) on the application of:(i) a party to the proceedings; or (ii) an independent children's lawyer representing the child's interests under an order made under section 68L.(3) A parentage testing order may be made in relation to:(a) the child; or (b) a person known to be the mother of the child; or (c) any other person, if the court is of the opinion that, if the parentage testing procedure were to be carried out in relation to the person, the information that could be obtained might assist in determining the parentage of the child.(4) A parentage testing order may be made subject to terms and conditions.(5) This section does not affect the generality of section 69V. (emphasis added)

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

I respectfully agree with the reasoning of the Full Court in Wrensted & Eades in finding that there is no distinction in the legislative considerations that the Court is required to have regard to in respect to an Application for costs in parenting proceedings, as opposed to property proceedings.CONSIDERATION The financial circumstances of each of the parties to the proceedings The father has presented evidence that he works in several part-time jobs. He attests to having a gross salary of $500 per week. The mother questions whether the father has accurately stated the full amount of his average weekly income. Nevertheless, for the purpose of these proceedings, I accept that the father does in fact receive a gross weekly salary of $500 per week. I accept, in those circumstances, that an order requiring the father to pay the mother’s costs would present some hardship. However, in circumstances where the mother is solely responsible for meeting the needs of both herself and the child, I am also satisfied that the cost she has incurred in responding to this aspect of the father’s Application, being the parentage Application, would similarly present a hardship to her. In Nada & Nettle (Costs) (2014) FLC 93-612, the Full Court held at [11] that “a party [being] impecunious, even indigent, is not a bar to the making of a costs order if the Court is otherwise of the opinion that such an order ought to be made”. Despite being satisfied that an order for costs would present a hardship to the father, for reasons which I set out below, I am of the opinion that such an order should nonetheless be made.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 The father has a grant of legal aid which is specified as being:… Client’s matter SYC4757/2019 is next listed for an interim hearing (via telephone) on 1 March 2021 at the Family Court of Australia (Sydney). Client needs a Country F speaking Solicitor and/or Interpreter. (Emphasis added) (see annexure B to the Affidavit of the father filed 26 March 2021) In circumstances where the grant of legal aid is dated 18 December 2020, that is the date postdating the orders made on 24 November 2020, and in circumstances where those orders, made on 24 November 2020, listed the father’s parentage Application for hearing, as a separate and discrete issue to be heard on the 16 February 2021, I am not satisfied that the grant of legal aid, as set out in annexure B to the Affidavit of the father filed 26 March 2021, applies to this aspect of the proceedings. As noted, the grant related to a procedural hearing which was to occur on 1 March 2021 in respect to the father’s substantive application other than his parentage Application. However, for completeness, I can indicate that, even if I am wrong in that determination, I would nonetheless have made an order for costs against the father for the reasons which I set out below. In that respect, I note that in Schwarz, C.L. and Schwarz, G.J. (1985) FLC 91-618, the Full Court at 80,002 stated that “[t]he fact that the wife has few assets and is in receipt of legal aid is not by itself a barrier to the award of costs. It is, of course, a factor to be taken into account under sec. 117(2A)(b)”.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