COUSINS & PEAKE (No.2)
[2017] FCCA 2431
•10 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COUSINS & PEAKE (No.2) | [2017] FCCA 2431 |
| Catchwords: HELD – orders made that the Mother pay the Father’s costs arising from her applications in accordance with the Federal Circuit Court scale. |
| Legislation: Family Law Act 1975 (Cth), s.117 |
| Cases cited: D & D (Costs) (No.2) (2010) FLC 93-435 |
| Applicant: | MR COUSINS |
| Respondent: | MS PEAKE |
| File Number: | MLC 4941 of 2014 |
| Judgment of: | Judge Bender |
| Hearing date: | Not applicable |
| Date of Last Submission: | 14 December 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 10 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Self-represented |
| Solicitors for the Applicant: | Not applicable |
| Counsel for the Respondent: | Self-represented |
| Solicitors for the Respondent: | Not applicable |
ORDERS
On or before 9 February 2018 the Mother pay the Father’s costs arising from the Mother’s child support departure application filed 11 November 2014 and her Application in a Case filed 13 November 2015 fixed in the sum of $8,932.
IT IS NOTED that publication of this judgment under the pseudonym Cousins & Peake (No.2) is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 4941 of 2014
| MR COUSINS |
Applicant
And
| MS PEAKE |
Respondent
REASONS FOR JUDGMENT
In this matter I handed down judgment on 9 November 2016 in relation to the Mother’s application for a child support departure order filed
11 November 2014 and her Application in a Case filed 13 November 2016 seeking enforcement of alleged monies owing to the Mother by the Father pursuant to order 8 of the orders made by the Court on 26 June 2014.
In relation to the child support departure order application, the orders of 9 November 2016 provide for the Father to pay one half of any medical and dental gap expenses in relation to the parties’ two children [X] born (omitted) 2008 and [Y] born (omitted) 2010 for treatment and procedures that the parties have agreed to prior to such treatment or procedures taking place. The Father consented to this order being made. The orders provide that the application for a child support departure order be otherwise dismissed.
The Mother’s applications were first listed for final hearing on 24 June 2016, but were unable to proceed due to the Mother’s failure to have her trial material properly before the Court. The matter was adjourned to 1 September 2016 for hearing and directions made for the filing of material. A notation to the orders made 24 June 2016 states:
“The Husband this day offered to resolve the matter on the basis he will pay half of medical gap payments and half of school fees at the children’s school ((omitted) Primary School)…”
Order 8 of the consent orders made 26 June 2014 provided that pursuant to section 116(1)(b) of the Child Support (Assessment) Act 1989 (Cth) the Father pay half of all school fees, including excursions, half of gap medical and dental costs and half the gap costs of speech pathology for [Y].
On 9 November 2016 an order was made by way of enforcement of order 8 of the orders made 26 June 2014 that the Father pay the Mother the sum of $527.16 being his half share of medical and school expenses, as well as [Y]’s pathology expenses from May to October 2015.
On 10 March 2016 the Father made a written open offer to the Mother to settle the enforcement application by paying her $582.16. On
24 June 2016 when the Mother’s enforcement application was first listed for final hearing the Father’s then-solicitor confirmed in open court the Father’s offer to resolve the Mother’s enforcement application by the payment to the Mother of $582.16 remained open.
After the judgment was delivered on 9 November 2016, the Father flagged he may seek the Mother pay legal costs incurred by him in these proceedings. Accordingly, orders were made on 9 November 2016 which afforded the Father an opportunity to file written submissions by 7 December 2016 on the question of whether the Mother should pay his costs of her two applications. The parties were advised that if submissions were filed, the question of costs would be determined on the papers in Chambers.
The orders also provided that if such written submissions were filed by the Father, the Mother was to provide the Court with answering submissions within 14 days of receipt by her of the Father’s written submissions.
The Father filed an affidavit setting out his submissions as to why the Mother should pay his costs, on 5 December 2016. The Mother’s answering affidavit containing her submissions on the question of costs was filed on 14 December 2016.
The Mother filed an appeal against the orders made 9 November 2016 on 28 November 2016.
The parties were advised that the Father’s application for costs would be held in stasis pending the determination of the Mother’s appeal. The Full Court dismissed the Mother’s appeal on 9 September 2017. Accordingly the Father’s application that the Mother pay his costs of the child support application and enforcement application will now be determined.
Background
The background to the parties’ litigation and the departure and enforcement applications are set out in paragraphs 1-30 of the reasons for judgment handed down on 9 November 2016 and will not be repeated here.
The Mother’s child support departure application was filed on
11 November 2014. At that time there were live parenting and property orders before the Court.
On 19 February 2015 final property orders were made. On 13 October 2015 final parenting orders were made. The Mother’s child support departure application remained live and it was adjourned for mention to 7 December 2015.
On 13 November 2015 the Wife filed an Application in a Case seeking enforcement of alleged arrears payable to her by the Father pursuant to order 8 of the orders made 26 June 2014 in the sum of $712.16.
On 7 December 2015 the Father filed an affidavit in response to the Mother’s applications as well as an outline of case document. On that date orders were made listing the matter for final hearing on 24 June 2016 and directions made for the filing of trial affidavits and up to date Financial Statements.
On 27 May 2016 the Mother filed a Financial Statement.
On 22 June 2016 the Father filed an outline of case, comprehensive affidavit and up-to-date Financial Statement.
When the matter came before the Court for hearing on 24 June 2016 the matter was unable to proceed. The Mother filed extensive material very late on 23 June 2016. The material was not in a form that enabled the matter to be heard. Further, because of its late filing, the Father had no opportunity to properly peruse or respond to the Mother’s material.
Orders were made adjourning the matter to 1 September 2016 for final hearing and for the filing of further material. The Father’s costs of the day were reserved.
As set out at paragraph 3 of this judgment, a notation to the orders of 24 June 2016 reads as follows:
“The Husband this day offered to resolve the matter on the basis he will pay half of medical gap payments and half of school fees at the children’s school ((omitted) Primary School)…”
As set out at paragraph 6 of this judgment, the Father’s solicitor indicated in open court that the Father’s offer to resolve the enforcement matter on the basis he pay the Mother $582.16 remained open.
After the 24 June 2016 hearing the Father’s solicitor filed a Notice of Ceasing to Act and thereafter the Father was self-represented.
The matter was heard on 1 September 2016 where both parties were self-represented. Judgment was delivered on 9 November 2016.
The Father is seeking that the Mother pay his legal costs in their entirety for the child support and enforcement applications. Annexed to the Father’s written submissions which are contained in an affidavit sworn by him on 25 November 2016 is a letter of account from the Father’s then-solicitors which show that the legal costs paid by the Father from 16 November 2016 until they ceased to represent the Father was $12,463.65. This is the amount being sought by the Father by way of costs order.
In the event that the Court is not persuaded to make orders that the Mother pay his costs on an indemnity basis, the Father seeks that the Court order that the Mother pay his costs in accordance with the Federal Circuit Court scale.
The Mother opposes any order that she pay the Father’s costs of the proceedings.
In the Mother’s affidavit sworn 14 December 2016 in which she sets out her submissions on the Father’s costs application, she seeks that the Father pay her costs of her enforcement application on an indemnity basis.
The Law
Section 117(1) of the Family Law Act1975 (Cth) (“the Act”) provides:
“(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.”
Section 117(2) provides that:
“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.”
The Court is therefore afforded a discretion to depart from the usual expectation that each party bear their own costs if it is satisfied that it is just to do so.
The Court is guided by section 117(2A) as to the matters which it can take into account when determining whether to make a costs order. Any one, or a combination of those matters, can be matters that will persuade the Court as to whether to make a costs order. Those matters are as follows:
(a) the financial circumstances of each of the parties to the proceedings;
(b) 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;
(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 answer 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.
I will consider each of the section 117(2A) subsections where relevant.
(a) financial circumstances of each of the parties to the proceedings
The Mother is currently a full-time student and it is her evidence she is not earning any income.
The Mother is also an undischarged bankrupt.
The Father is in full-time employment as a business consultant/internet website creator. He has remarried and he and his new wife have twin boys who were born on 6 March 2016. His wife is currently not working. The Father’s taxable income is approximately $110,000 per annum. It is the Father’s evidence, which was accepted at the final hearing of the child support departure/enforcement proceedings, that his current expenditure, including the payment of assessed child support to the Mother, is equal to or in excess of his income, as he is the sole breadwinner in supporting his family and children.
(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 answer questions, admissions of facts, production of documents and similar matters
It is the Father’s submission that the final hearing on 24 June 2016 was unable to proceed because of the Mother’s failure to comply with orders in the filing of her material. He notes that she filed her affidavit and case summary on 23 June 2016 and that this material did not properly place before the Court the requisite information that enabled the matter to proceed.
It is the Father’s submission that because of the Mother’s failure to properly prepare her case, the matter had to be adjourned, hence the order by the Court reserving his costs of that day.
It is the Mother’s submission that the inability to proceed on 24 June 2016 was as a result of the Father’s failure to make full and frank disclosure which was evidenced by orders being made requiring him to make available to the Court and to the Mother copies of his taxation returns, up to date profit/loss statements relating to his “consultancy” business and up to date business activity statements relating to the business.
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court
The Mother submits that the necessity for her application for an enforcement order was brought about by the Father’s failure to comply with order 8 of the orders made 26 June 2014.
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings
The Father submits that the Mother has been wholly unsuccessful in these proceedings. It is his submission that her application for a child support departure order was wholly unsuccessful save for that component to which he consented from the outset.
It is the Father’s further submission that the Mother was unsuccessful in her enforcement application in that she sought a payment of $712.16 and the order only provided for a payment of $527.16. Further, the amount ordered to be paid was less than the $582.16 that was the open offer made by him to the Mother to resolve this matter.
It was submitted by the Mother that she was successful in her enforcement application in that orders were made that required payment to her by the Father of arrears of medical expenses.
(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
An open offer of settlement was sent by the Father’s solicitors in writing on 10 March 2016 to the Mother to resolve the Mother’s enforcement application by payment of $582.16.
When the matter came before the Court on 24 June 2016 for hearing the Father’s offer to settle the Mother’s enforcement application by way of a payment for $582.16 was again repeated in open court.
When the matter was before the Court on 24 June 2016, the Father offered to resolve the child support departure application on the basis he would pay half of all medical gap payments and half of the children’s school fees at (omitted) Primary School. This is evidenced by the notation to the orders made that day.
The Mother rejected all offers of settlement made by the Father.
Conclusion
In this matter the Mother has been totally unsuccessful in relation to her child support departure application.
On 9 November 2016 the only order made pursuant to section 118(1) of the Child Support (Assessment) Act 1989 (Cth) was for the Father pay half of the children’s medical and dental gap expenses for any treatment and procedures the parties had agreed to prior to such treatment or procedures taking place. That order was consented to by the Father and reflected the offers made by the Father to resolve the matter throughout the entirety of the child support departure application being before the Court.
An order was made for the Father to pay a sum of $527.16 for and by way of enforcement of order 8 of the orders made 26 June 2014. The Mother was seeking an order that the Father pay $721.16. The Father made an open offer to pay the Mother the sum of $582.16 in full satisfaction of her claim on 10 March 2016 and again on 24 June 2016. The Mother rejected those offers of settlement.
Whilst the Mother submits the matter did not proceed on 24 June 2016 because the Father had failed to make full and frank disclosure, the proceedings were unable to be heard on 24 June 2016 as a result of the Mother’s failure to properly prepare her case and not because of the Father’s lack of disclosure.
Whilst it is the Mother’s evidence that she is impecunious, the case law is quite clear that a party’s lack of financial resources is not a barrier to a costs order being made (D & D (Costs) (No 2) (2010) FLC 93-435).
It is quite apparent that this matter was capable of resolution at its very outset as the Father made appropriate and proper offers to resolve the matter. Those proposals and offers were rejected by the Mother.
The Father has accordingly been put to considerable and unnecessary expense as a result of the Mother’s unsuccessful applications, her refusal to accept reasonable proposals to resolve the matter and also because of the manner in which she conducted the proceedings.
Accordingly, I am satisfied that this is a matter where the Court should exercise its discretion to make an order that the Mother pay the Father’s costs of the child support and enforcement proceedings.
Whilst the Father is seeking that an order for costs be made on an indemnity basis, I am not satisfied that this is a matter where the circumstances are so exceptional that it attracts an order for costs on an indemnity basis.
Accordingly, orders will be made that the Mother pay the Father’s costs of these proceedings in accordance with the Federal Circuit Court scale being an amount of $8,932.
I certify that the preceding fifty seven (57) paragraphs are a true copy of the reasons for judgment of Judge Bender
Date: 10 November 2017
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