Diop & Gueye
[2022] FedCFamC1F 845
•3 November 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Diop & Gueye [2022] FedCFamC1F 845
File number(s): SYC 9309 of 2020 Judgment of: SCHONELL J Date of judgment: 3 November 2022 Catchwords: FAMILY LAW – COSTS – Where the applicant filed two contempt applications – Where the contentions advanced did not support a contempt application – Where the applicant withdrew the applications – Where the respondent sought a costs order – Consideration of factors in s 117(2A) of the Family Law Act 1975 (Cth) – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) ss 112AP, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Bant & Clayton (Costs) (2016) 56 Fam LR 31; [2016] FamCAFC 35
Colgate Palmolive Company & Anor v Cusson Pty Ltd (1993) 118 ALR 248; [1993] FCA 801
Ganem & Ganem (No. 2) [2013] FamCA 257
Ibbotson and Wincen (1994) FLC 92-496; [1994] FamCA 103
Schwarz and Schwarz (1985) 10 FLC 91-618; [1985] FamCA 21
Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116
LGM & CAM (Contempt) (No. 2) (2008) FLC 93-355; [2008] FamCAFC 1
Pascoe & Larsen (No 2) [2022] FedCFamC1A 126
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158
Penfold and Penfold (1980) 144 CLR 311; [1980] HCA 4
Yunghanns & Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029; [2000] FamCA 681
Division: Division 1 First Instance Number of paragraphs: 28 Date of hearing: 1 November 2022 Place: Sydney Solicitor for the Applicant: Kassira Law Counsel for the Respondent: Ms Abdelraheem Solicitor for the Respondent: Branston Neville ORDERS
SYC 9309 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DIOP
Applicant
AND: MS GUEYE
Respondent
order made by:
SCHONELL J
DATE OF ORDER:
3 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The applicant father pay the respondent mother’s costs assessed in the sum of $2,500, with such sum to be paid within twelve months.
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 Diop & Gueye has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
These are proceedings brought by the applicant father against his former partner seeking that she be dealt with pursuant to s 112AP of the Family Law Act 1975 (Cth) (“the Act”). There were two Application – Contempt filed, one on 5 April 2022 and another on 5 August 2022. The applications contended eight breaches arising out of orders made by a judge of the Federal Circuit and Family Court of Australia on 10 February 2022. The alleged contempts were said to include continuing contempts in failing to comply with orders for telephone time and supervised time at a contact centre.
The applications are but part of a broader dispute between the parties in relation to their two children.
Both parties were represented before the Court. The applicant was represented by his solicitor, the respondent by counsel. The applicant sought an adjournment of the proceedings in circumstances where a grant of aid had only just been approved and the applicant had not been able to obtain counsel to appear for him. His solicitor contended that in those circumstances it was appropriate that there should be an adjournment of the proceedings. The adjournment was opposed by counsel for the respondent. She contended that she was briefed to appear to meet the applications and that she was ready to meet those applications. The applications have been before the Court for at least six months.
I declined to grant the application for adjournment. I asked the applicant’s solicitor what his position was in relation to the objections pressed by the respondent. The applicant sought a short adjournment and upon returning to Court indicated that the applications were withdrawn. I consequently made an order noting that the applications were withdrawn and dismissed.
I am of the view that the applications in and of themselves had no merit. An application under s 112AP involves as it does “a flagrant challenge to the authority of the Court”. It is a most serious application. The words “flagrant challenge” were the subject of comment by the Full Court in Ibbotson and Wincen (1994) FLC 92-496, where their Honours said at 81,162:
… The use of the term “flagrant challenge” to the authority of the Court is intended to underline the exceptional or striking nature of the contravention in question and thus to differentiate it from what might be described as the general run of breaches which are intended to be dealt with under s. 112AD.
The seriousness of the application is underscored by the provision of s 112AP(4), which provides as follows:
Contempt
…
(4) where a natural person is in contempt, the court may punish the contempt by committal to prison or fine or both.
In Ganem & Ganem (No. 2) [2013] FamCA 257, Aldridge J observed:
10. Contempt pursuant to section 112AP is a criminal proceeding and accordingly each element of each charge must be proven beyond reasonable doubt. (In the Marriage of Tate (2002) 29 Fam LR 195;(2002) FLC 93 107)
11. Contempt under section 112AP has four elements each of which must be proven beyond a reasonable doubt. The first three involve the acts and intentions of the respondent. The fourth is a finding to be made by the trial judge. These four elements are:
•The respondent knew the terms of the orders. (Mead and Mead (2006) FLC 93 267 at 80, 536)
•The respondent deliberately did an act. The act must be wilful and deliberate as opposed to accidental or inadvertent. (In the Marriage of English (1986) FLC 91 729 at 75, 294)
•The act must be intentional. This is not to say that the respondent must intend that the act was in breach of the order, which would make the respondent’s actions contumacious, but the respondent must have intend to do the act which is alleged to be the contempt. In the Marriage of English, above.
•The act must involve a flagrant challenge to the authority of the court. In Bande and Cade 45 FAM LR 376 at 39 the Full Court said:
The concept of a “flagrant challenge” involves conduct of an exceptional, striking or repeated nature. In Ibbotson and Wincen (1965) 18 Fam LR 164; (1994) FLC 92 – 496 the Full Court held (at Fam LR 175; FLR 81, 162): “the use of the term “flagrant challenge” … is intended to underline the exceptional or striking nature of the contravention in question and thus to differentiate it from what might be described as a general run of breaches which are intended to be dealt with under section 112AD … it is a question of fact and degree whether the stringent terms of the section are satisfied.
In light of the seriousness of the application, the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) are required to be adhered to. As Finn J observed in LGM & CAM (Contempt) (No. 2) (2008) FLC 93-355:
123. … I endorse the following remarks by his Honour in his reasons for judgment:
8. It is the case, and has been for well over a century, that procedural requirements in contempt proceedings are to be strictly adhered to unless there are strong reasons to do otherwise. As proceedings in which the respondent faces the possibility of imprisonment or other penalty, the applicant and the Court must take them very seriously. As a mark of their seriousness the rules are generally strictly applied.
Counsel for the respondent relied upon a Case Outline document, which made a number of observations in relation to the evidence of the applicant. In broad terms, the Case Outline identified that there was little evidence to support many of the contentions and that the charges as framed failed to provide proper particulars. A perusal of the objections made it clear that if successful, there would be little, if any, evidence to support the application. The applications, however, faced a bigger problem. The contentions that are advanced do not support the filing of an Application – Contempt. As made clear in these reasons, a flagrant challenge to the authority of the Court is an essential element to the charge that must be established beyond reasonable doubt. The conduct complained of must be of an exceptional and striking nature, distinguishing it from contravention of orders that are intended to be dealt with under other sections of the Act. Putting to one side the objections properly made to the applicant’s evidence, the evidence, even at its highest, would not have fallen within the descriptor of exceptional or striking.
As a consequence of the withdrawal and dismissal of the applications, the respondent sought an order for costs. The respondent sought an order both on an indemnity or party/party basis.
Indemnity costs
The authorities make it plain that an order for indemnity costs is not one that is made lightly and there should be circumstances of an exceptional kind that warrant orders for costs on an indemnity basis. In Kohan & Kohan (1993) FLC 92-340, their Honours in the Full Court observed at 79,614:
The intent of s117(1) and 117(2) is that in this jurisdiction costs should not follow the event as a matter of course. However, where the justice of the matter so requires, the Court may make such order as the Court considers just. As we have pointed out, the Court may depart from the scale of costs prescribed under the rules. However, the purpose of fixing a scale of costs must be understood to signify that they contain the normal rates of charges. By O. 38 r. 2, the provisions of O. 38 apply to costs ordered to be paid or taxed, and costs payable or to be taxed between solicitor and client. O. 38 r. 7 makes provision for the allowance of additional amounts for complexity, difficulty or novelty and special skill, knowledge or responsibility. Consequently, the Court should not depart lightly from the ordinary rules relating to costs between party and party and the circumstances justifying the departure should be of an exceptional kind. See Degmam v. Wright (No.2) “(supra); Wentworth v. Rogers (No. 5) (1986) 6 NSWLR 534; Hobartville Stud v. Union Insurance Co. (1991) 25 NSWLR at 368 to 370.
Indemnity costs orders are still an exception in this and other jurisdictions. …
Justice Sheppard in Colgate Palmolive Company & Anor v Cusson Pty Ltd (1993) 118 ALR 248 observed as follows at 256–257:
It seems to me that the following principles or guidelines can be distilled out of the authorities to which I have referred:
1. The problem arises in adversary litigation, ie litigation as between parties at arm’s length. Different considerations apply where parties may be found to be entitled to the payment of their costs out of a fund or assets being administered by or under the control of a trustee, liquidator, receiver or person in a like position, eg a government agency or statutory authority.
2. The ordinary rule is that, where the court orders the costs of one party to litigation to be paid by another party, the order is for payment of those costs on the party and party basis. In this court the provisions of O 62, rr 12 and 19, and the Second Schedule to the rules will apply to the taxation. In many cases the result will be that the amount recovered by the successful party under the Order will fall short of (in many cases well short of) a complete indemnity.
3. This has been the settled practice for centuries in England. It is a practice which is entrenched in Australia. Either legislation (perhaps in the form of an amendment to rules of court) or a decision of an intermediate Court of Appeal or of the High Court would be required to alter it. No doubt any consideration of whether there should be any change in the practice would require the resolution of the competing considerations mentioned by Devlin LJ in Berry v British Transport Commission and Handley JA in Cachia v Hanes on the one hand and by Rogers J in Qantas on the other. The relevant passages from the respective judgments have been earlier referred to.
4.In consequence of the settled practice which exists, the court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the court in departing from the usual course. That has been the view of all judges dealing with applications for payment of costs on the indemnity or some other basis whether here or in England. The tests have been variously put. The Court of Appeal in Andrews v Barnes (39 Ch D at 141) said the court had a general and discretionary power to award costs as between solicitor and client “as and when the justice of the case might so require”. Woodward J in Fountain Selected Meats appears to have adopted what was said by Brandon LJ (as he was) in Preston v Preston ([1982] 1 All ER at 58) namely, there should be some special or unusual feature in the case to justify the court in departing from the ordinary practice. Most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of factors which would be capable, if they existed, of warranting a departure from the usual rule. But as French J said (at 8) in Tetijo “the categories in which the discretion may be exercised are not closed’’. Davies J expressed (at 6) similar views in Ragata.
5. Notwithstanding the fact that that is so, it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes (1989) 92 ALR 131 at 152 evidence of particular misconduct that causes loss of time to the court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp);the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525; Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal); Crisp v Kent (SC(NSW)(CA), 27 Sept 1993, unreported) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records). Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis.
6. It remains to say that the existence of particular facts and circumstances capable of warranting the making of an order for payment of costs, for instance, on the indemnity basis, does not mean that judges are necessarily obliged to exercise their discretion to make such an order. The costs are always in the discretion of the trial judge. Provided that discretion is exercised having regard to the applicable principles and the particular circumstances of the instant case its exercise will not be found to have miscarried unless it appears that the order which has been made involves a manifest error or injustice.
The category of cases in which a court may make an indemnity costs order are not limited to those identified by Shepard J. In Yunghanns & Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029 at 87,471, the Full Court said:
… It will suffice to say that the categories of circumstances which enliven the discretion to award indemnity costs are not closed, and that it is not a condition precedent to the exercise of the discretion that some collateral purpose or species of fraud be established against the party against whom such an order is sought. All that is required is that the Court asked to exercise the discretion be satisfied that some '”particular facts and circumstances of the case in question warrant the making of an order for the payment of costs other than on a party and party basis”: per Shepherd J in Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 233.
Whilst I am of the view the applications should never have been brought under s 112AP, I am not satisfied that there is a basis for an order for indemnity costs.
An application for costs is governed by the provisions of s 117 of the Act, which provides a general rule that each party to the proceedings should bear their own costs.
Section 117(2) reposes in the Court a discretion to make a costs order in circumstances where the Court determines that there are circumstances that justify it making an order and, if there are such circumstances, the Court may make such order as it considers just, having regard to the matters set out in s 117(2A).
In Penfold and Penfold (1980) 144 CLR 311, the plurality in the High Court determined that to make an order under s 117(2), the Court needs to make a finding of justifying circumstances as a preliminary prerequisite to the making of an order. Their Honours also observed that terms such as an exceptional case, special circumstances or a clear case are not necessary determiners of whether or not an order for costs should be made. All that is required or necessary is that there are justifying circumstances.
It is well-settled law that no one factor under s 117(2A) is determinative and the Court may give such weight as it considers relevant to any factor. In PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123, the Full Court observed:
41. … Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs
Dealing now with the relative subsections in s 117(2A).
(a) The financial circumstances of each party to the proceedings
There was no sworn evidence before the Court as to the financial circumstances of each of the parties. I was informed by her counsel that the respondent was working but I was provided with no evidence as to how much the respondent earns. It was agreed that the applicant is on a bridging visa and that the bridging visa does not permit the applicant to work in Australia. I have no evidence otherwise before me as to the applicant’s capacity to meet an order for costs.
(b) Whether the parties are in receipt of legal aid
The applicant is in receipt of a grant of legal aid. The respondent is not in receipt of a grant of aid.
In Schwarz and Schwarz (1985) 10 FLC 91-618, the Full Court observed the fact that a party in receipt of legal aid is not in and of itself an impediment to the award of costs and indeed a refusal to make a costs order on the sole ground that a party is legally aided may constitute an injustice to the other party. Likewise, the Full Court observed that the mere fact that there was no prospect of recovery against the assisted person should not stand in the way of the making of an order.
(c) The conduct of the parties to the proceedings
What is relevant is conduct of a party, which in some way or other leads to an increase in costs by the other party. Such factors may include uncooperative behaviour, obstruction, prolonging litigation or the bringing of unreasonable or unmeritorious applications. It may include non-disclosure or a failure to comply with the Rules of Court in relation to disclosure.
I have already observed in relation to the conduct of the litigation that I am of the view that the applications should never have been brought.
(d) Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court
The applicant would contend that the proceedings were brought by virtue of a failure on the part of the respondent to comply with previous orders. However, given his withdrawal of the application, this fact has not been established.
(e) Whether any party to the proceedings has been wholly unsuccessful in the proceedings
The term “wholly unsuccessful” refers to a situation in which proceedings as a whole have been unsuccessful, rather than necessarily an application (see Bant & Clayton (Costs) (2016) 56 Fam LR 31). Neither party was wholly unsuccessful in the proceedings.
(f) Whether any party has made an offer in writing
No offers of settlement have been made.
(g) Any other matter the Court considers relevant
For the reasons as stated earlier, I am of the view that the applications should never have been brought. The applicant’s solicitor withdrew the applications. The respondent has, however, been put to some costs.
The Rules and authorities make plain that I can fix an amount for costs. As McClelland DCJ observed in Pascoe & Larsen (No 2) [2022] FedCFamC1A 126:
27.Rule 12.17 of the Rules sets out the methods of calculating costs. These include the Court fixing a specific amount for costs (r 12.17(1)(a)) or an order for the costs to be assessed on a particular basis (r 12.17(1)(b)).
28.In Stoian v Fiening (Costs) [2014] FamCA 944 at [91], Kent J endorsed the principles for applying a rule equivalent to r 12.17 when referring to r 19.18 of the now repealed Family Law Rules 2004 (Cth) as adumbrated by Einstein J in Idoport Pty Limited v National Australia Bank Limited & Ors [2007] NSWSC 23 at [9]. Those principles include:
i.the purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation;…
ii.the touchstone requires that the Court be confident that the approach taken to estimate costs is logical, fair and reasonable;…
iii.the fairness parameter includes the Court having sufficient confidence in arriving at an appropriate sum on the materials available;…
iv.a gross sum assessment, by its very nature, does not envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place;…
iv.the gross sum “can only be fixed broadly having regard to the information before the Court”;…
(Citations omitted)
29.Consistent with those principles, it has been determined that where a Court orders a party to pay costs, it may be appropriate for the Court to fix a lump sum. By doing so, the Court can avoid further delay and inconvenience being occasioned by the requirement to tax a bill: Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432 at [51].
I am satisfied that it is just that an order for costs should be made but not in the quantum as sought by the respondent. I am of the view that an order for costs should be made and I will order the applicant to pay the respondent’s costs assessed in the sum of $2,500. I am satisfied that that amount is fair and reasonable. I will order the applicant to pay that sum to the respondent within twelve months of the date of the making of this order.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 3 November 2022
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