FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Defrey & Radnor [2021] FedCFamC1A 18
Appeal from: Defrey & Radnor [2020] FCCA 713 Appeal number(s): EAA 54 of 2020 File number(s): SYC 3980 of 2012 Judgment of: AINSLIE-WALLACE, WATTS & TREE JJ Date of judgment: 23 September 2021 Catchwords: FAMILY LAW – APPEAL – COSTS – The parties asked the Court to resolve all issues as to costs for the proceedings overall – Where, although the father succeeded on certain grounds, his appeal was substantially unsuccessful and on a re-exercise his application was wholly unsuccessful – Where no offer made by either party to settle the proceedings was relevant to the issue of costs – Where it is just to make an order in the mother’s favour – Where the father is to pay the mother’s costs in a fixed sum. Legislation: Family Law Act 1975 (Cth) s 117
Federal Proceedings (Costs) Act 1981 (Cth) ss 8, 9
Family Law Rules 2004 (Cth) Sch 3
Family Law Repeal Rules 2021 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3
Cases cited: Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119; [1995] FCA 350
Defrey & Radnor (No 2) (2021) FLC 94-044; [2021] FamCAFC 139
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
Stopford Malloy & Malloy and Anor (Costs) [2018] FamCAFC 6
Number of paragraphs: 59 Date of last submissions: 25 August 2021 Date of hearing: By way of written submissions Place: In chambers Counsel for the Appellant: Mr Weightman Solicitor for the Appellant: Conditsis Lawyers Counsel for the Respondent: Dr Smith Solicitor for the Respondent: Lander and Rogers ORDERS
EAA 54 of 2020
SYC 3980 of 2012FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR DEFREY
Appellant
AND: MS RADNOR
Respondent
ORDER MADE BY:
AINSLIE-WALLACE, WATTS & TREE JJ
DATE OF ORDER:
23 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.Leave is granted to the father to rely on submissions filed 25 August 2021.
2.The father pay the mother’s costs of these proceedings fixed in the sum of $35,510 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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Defrey & Radnor has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AINSLIE-WALLACE, WATTS & TREE JJ:
INTRODUCTION
The father and mother in this case make competing applications for costs orders in relation to these proceedings.
The father seeks an order that the mother pay…
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CaseChat Overview and Summary
This case involves a mother who is seeking an order for the father to pay her costs associated with a legal dispute on a party/party basis, as well as a costs certificate for the costs of and incidental to the appeal. The father has filed an appeal against orders made by a judge of the Federal Circuit Court, which dismissed his application for variation of parenting orders. The mother has sought costs for the primary proceedings, the re-exercise of discretion, and the appeal. The father has filed submissions in reply out of time, but the court has allowed him to rely on them.
The legal issues the court was required to decide were whether the primary judge had made any errors in dismissing the father's application for changes in usual time, school excursions, international travel and passports, extra-curricular activities and changeovers, and whether the primary judge had misinterpreted Order 23 of the final parenting orders made in 2015. The court found that the primary judge had made errors in his application of the test in Rice and Asplund, and that he had misinterpreted Order 23 of the final parenting orders made in 2015.
The court reasoned that the error of law made by the primary judge was acknowledged at the outset by the mother, but the appeal was not run on that basis. The father sought to have all orders made by the primary judge set aside, and until 3 June 2021, the father resisted this Court re-exercising the primary judge's discretion. In those circumstances, it was not appropriate to make any order under the Costs Act. The court found that the father was substantially unsuccessful, a matter which in the complexities of this case is a consideration of significant weight. The court concluded that it was just to make a costs order in the mother's favour.
The court ordered that the father pay the mother's costs of the initial hearing in the sum of $5,509.74 within 28 days. The court also ordered that the father pay the mother's costs of the appeal on a party/party basis fixed in the amount of $29,106.78. The court considered the schedule of costs provided by the mother and the observations made by the father when reaching a fixed sum costs order. The court found that the costs claimed by the mother were reasonable and appropriate, and that the father was wholly unsuccessful in relation to the application he made to the primary judge.
The legal issues the court was required to decide were whether the primary judge had made any errors in dismissing the father's application for changes in usual time, school excursions, international travel and passports, extra-curricular activities and changeovers, and whether the primary judge had misinterpreted Order 23 of the final parenting orders made in 2015. The court found that the primary judge had made errors in his application of the test in Rice and Asplund, and that he had misinterpreted Order 23 of the final parenting orders made in 2015.
The court reasoned that the error of law made by the primary judge was acknowledged at the outset by the mother, but the appeal was not run on that basis. The father sought to have all orders made by the primary judge set aside, and until 3 June 2021, the father resisted this Court re-exercising the primary judge's discretion. In those circumstances, it was not appropriate to make any order under the Costs Act. The court found that the father was substantially unsuccessful, a matter which in the complexities of this case is a consideration of significant weight. The court concluded that it was just to make a costs order in the mother's favour.
The court ordered that the father pay the mother's costs of the initial hearing in the sum of $5,509.74 within 28 days. The court also ordered that the father pay the mother's costs of the appeal on a party/party basis fixed in the amount of $29,106.78. The court considered the schedule of costs provided by the mother and the observations made by the father when reaching a fixed sum costs order. The court found that the costs claimed by the mother were reasonable and appropriate, and that the father was wholly unsuccessful in relation to the application he made to the primary judge.
Orders
Orders of the court
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Background
Background to the litigation
The mother seeks an order that the father pay her costs on a party/party basis fixed in an amount of $29,106.78 and in the alternative, be granted a costs certificate for the costs of and incidental to the appeal. In addition, the mother seeks an order that the father pay her costs on a party/party basis in relation to the re-exercise of discretion fixed in the amount of $14,169.65 or alternatively, a costs certificate of and incidental to the re-exercise of discretion. The mother also seeks that this Court make an order that the father pay her costs in relation to the primary proceedings on a party/party basis fixed in the sum of $5,509.74.BACKGROUND The father filed written submissions on 12 August 2021 and the mother on 19 August 2021. The father filed submissions in reply out of time, nevertheless we give the father leave to rely on them. By Notice of Appeal filed 7 May 2020, the father appealed orders made by a judge of the Federal Circuit Court on 9 April 2020 dismissing his application for variation of parenting orders, having determined, as a preliminary issue, that the father’s application did not satisfy the threshold test in Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”) and the subsequent cases which have amplified that test. By Ground 1, the father complained that the primary judge had ordered that the parties attend arbitration to resolve any continuing disputes in relation to passports and information sharing about the children’s participation in non-school activities (Order 4) or any “other issue relating to the past and current parenting Orders” (Order 5). That ground was conceded by the mother prior to the father filing his Summary of Argument on 23 September 2020 and the mother agreed that Orders 4 and 5 be set aside in their entirety. By Ground 2, the father asserted that the primary judge’s exercise of discretion in dismissing his application miscarried because of 13 errors the primary judge had made either individually or cumulatively which infected the exercise of discretion. The father failed in relation to Grounds 2(c)–(l) (10 out of the 13 asserted errors). There was merit in Grounds 2(a) and (b) of the father’s appeal which complained that the primary judge’s application of the test in Rice and Asplund when dismissing the father’s application for changes in usual time, school excursions, international travel and passports, extra-curricular activities and changeovers was infected by the assertion the primary judge made that such disputes should be resolved by counselling, mediation and arbitration. The father was successful in arguing that whatever processes for alternate dispute resolution may be available, they are largely irrelevant to the determination which the primary judge was required to make, namely, whether the father’s application should be dismissed because new events were insufficient to provoke a new inquiry. Ground 2(m) was a ground similar to Grounds 2(a) and (b). There was merit in the father’s argument that the primary judge misinterpreted Order 23 of the final parenting orders made in 2015, incorrectly reading it to mean that it provided a machinery provision for the alternative resolution of further disputes between the parties.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
We accept that there were aspects of offers made by the mother which could have been accepted by the father and he would be in a better position than the result from the proceedings. However, because of the multiplicity of issues it is difficult for the mother to make the case that the father should have accepted an offer that she made in the form in which it was made at the time it was made.CONCLUSION The error of law made by the primary judge was acknowledged at the outset by the mother. That is not why the appeal was run. The father sought to have all orders made by the primary judge set aside and up until 3 June 2021, the father resisted this Court re-exercising the primary judge’s discretion. In those circumstances, it is not appropriate to make any order under the Costs Act. When the proceedings are looked at overall the father was substantially unsuccessful, a matter which in the complexities of this case is a consideration of significant weight. Having considered the relevant matters pursuant to s 117(2A) as discussed above, we conclude that it is just to make a costs order in the mother’s favour.QUANTUM Both parties seem content for this Court to re-exercise the discretion in relation to the mother’s application before the primary judge for costs of the initial hearing. The father’s submissions in reply do not assert that it would be inappropriate for us to consider the mother’s application but rather that, it would not be appropriate to depart from the general rule that each party pay their own costs in respect of that application. The father does not dispute the quantum of costs claimed in accordance with the Federal Circuit Court scale in the sum of $5,509.74. Indeed that is a modest amount given the extent and nature of the material provided by both parties to the primary judge. The father has ultimately been wholly unsuccessful in relation to the application he made to the primary judge which was dismissed in its entirety by us on 5 August 2021. Accordingly, at the request of the parties, we deal with the question of costs of proceedings before the primary judge on the basis that we find that it is just that the father pay the mother’s costs fixed in the sum of $5,509.74 within 28 days. As indicated, the mother seeks costs of the appeal on a party/party basis fixed in the amount of $29,106.78. The purpose of the usual practice to attempt to fix costs is to “avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation” (Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 120). Whilst this Court does not involve itself in a process akin to how a taxing office would approach the task, we take into account the schedule of costs provided by a party and the comments made by the other party when reaching a fixed sum costs order (Stopford Malloy & Malloy and Anor (Costs) [2018] FamCAFC 6). The father makes a number of observations about the mother’s schedule of costs:a)There are various e-mails and telephone calls to Senior Counsel without any indication as to their purpose. This is not to suggest that the work was not undertaken, but rather that such items would more probably than not fall into the category of solicitor/client costs rather than party/party costs);b) The mother claims for her solicitor spending 4-hours “reviewing” the Appeal Book which contained documents that which no doubt were read as part of the first instance proceedings (12 August 2020);c) The mother claims for 6-hours and 6-minutes preparing and settling the costs schedule, the first 4-hours of which seems to have been undertaken by a paralegal (when regard is had to the notation for 6 February 2021), yet is charged at the rate of a solicitor d) The mother claims an 8-hour charge for “attendance on file from 21 January 2021 to 16 February 2021” (see entry 16 February 2021), in circumstances where there is a whole raft of individual charges throughout that period.e)The mother claims costs for Senior Counsel when the nature and complexity of the appeal did not warrant the briefing of Senior Counsel. (Father’s costs submissions in reply filed 25 August 2021, paragraph 13)
Ratio Decidendi
Legal Principle Established
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