ELLIS & CROSS

[2015] FamCA 814

FAMILY COURT OF AUSTRALIA

ELLIS & CROSS [2015] FamCA 814

FAMILY LAW – COSTS – father’s application for costs against the mother on an indemnity basis – where mother foreshadowed filing a notice of appeal on the day final parenting orders were made and reasons delivered – matter listed for stay hearing – mother subsequently determined not to file a notice of appeal – where father seeks costs of and incidental to the stay hearing – circumstances did not justify making of an order for costs – application dismissed.

Family Law Act 1975 (Cth)

Kohan and Kohan (1993) FLC 92-340
Prantage & Prantage [2013] FamCAFC 105

APPLICANT: Ms Ellis

RESPONDENT: Mr Cross

INDEPENDENT CHILDREN’S LAWYER: David Stagg Tonkin & Co

FILE NUMBER: MLC 6590 of 2007

DATE DELIVERED: 1 October 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATES: 27 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O’Shannessey

SOLICITOR FOR THE APPLICANT: Coote Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Meehan

SOLICITOR FOR THE RESPONDENT: Vassis & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Marchetti

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: David Stagg Tonkin & Co

ORDERS

IT IS ORDERED THAT

1. The father’s oral application that the mother pay his costs of and incidental to the hearing on 27 May 2015 on an indemnity basis be dismissed.

2. All extant applications be otherwise dismissed and the matter removed from the list of cases awaiting hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ellis & Cross has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6590 of 2007

Ms Ellis

Applicant

And

Mr Cross

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. On 22 May 2015 I delivered my reasons for judgment and made orders following a final hearing in relation to parenting issues which was heard over six days commencing in mid November 2014 and concluding on 19 December 2014 (“the final orders”).

2. Immediately after I had made the final orders and published my reasons counsel for the mother indicated to the Court that he had instructions to file a notice of appeal and to seek a stay of the final orders. On that basis further orders were made by consent suspending paragraph 17 of the final orders which provided for a family consultant of the Melbourne Registry to explain to the children the effect of the final orders prior to releasing them into the father’s care. A further order was made by consent for the children to spend time with the father until further order and the matter was adjourned for further hearing before me on 27 May 2015 in anticipation of the mother filing both a notice of appeal and an application seeking a stay of the final orders which provided for the children to live primarily with the father.  

3. On 27 May 2015 counsel for the mother advised the Court that the mother had not filed a notice of appeal and that one would not be lodged in the foreseeable future as a result of which counsel for the father sought an order that the mother pay his costs of the hearing before me on 27 May 2015 on an indemnity basis in the sum of $6,600. Counsel for the father’s brief for the hearing before me was marked at $3,300 for reading and preparation and $3,300 for the hearing itself.  

Legal Principles

1. The general rule in proceedings in this Court is that parties bear their own costs of the proceedings (s 117(1) Family Law Act 1975 (Cth) (“the Act”)). However s 117(2) of the Act provides that if the Court is of the opinion that there are circumstances that justify it making an order for costs it may make such order as it considers just. Section 117(2A) of the Act sets out the matters the Court must have regard to when considering what if any order it should make. Those matters are:

   (a)the financial circumstances of each of the parties to the proceedings;

   (b)whether any party to the proceedings is in receipt of legal assistance by way of legal aid;

   (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 either party to the proceedings has been wholly unsuccessful;

   (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.

2. It is trite to say that not all of the matters to which the Court must have regard will be relevant in each case.

3. It is well settled that although this Court has a discretion as to whether to make an order for costs on an indemnity basis it is also well established that “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” (Kohan and Kohan (1993) FLC 92-340, 79,614). These principles have been affirmed by the Full Court on numerous occasions (see Prantage & Prantage [2013] FamCAFC 105).

4. Counsel for the husband relied primarily upon the mother’s conduct of the proceedings in support of his application that she should pay the father’s costs on an indemnity basis. It was his case that the mother having committed to an appeal, without having herself had the opportunity to read or consider the judgment or have the benefit of legal advice as to the merits of an appeal, set in train the process which lead to the father incurring the costs he now sought to be paid by the mother.  And that it was not until almost 5.00 pm on the day prior to the hearing before me that the mother advised that she would not be lodging an appeal or seeking a stay of the final orders.

5. I am satisfied, as submitted by counsel for the Independent Children’s Lawyer, that the cost of the proceedings have been a financial burden for both the father and the mother and it would seem their respective families. Neither party in this case was in receipt of legal aid.

6. The father is in full time employment earning a modest income. On the basis of my orders he will have the primary care of the children which will no doubt be an added financial burden. The mother for her part has been engaged in home duties and although she may now have a greater opportunity to pursue employment it may take some time for her to do so. In all of those circumstances whilst the parties’ respective financial positions would not preclude me from making an order for costs in favour of the father if there were circumstances which would otherwise justify the Court doing so, it would also not lead me to conclude that an order should be made.

7. In my view counsel for the father’s submissions with respect to the mother’s conduct of the proceedings do not take into account either the nature of the proceedings or the likely impact of the orders that I made upon the mother and for that matter the children. As submitted by counsel for the mother she has been the children’s primary carer since birth and I found that both of the children have a strong emotional attachment to the mother as she does to them. The mother was faced with orders which had the immediate effect of reversing the arrangements for the children’s care.

8. The mother’s decision in those circumstances to advise the Court that she was intending to file a notice of appeal and thereafter deciding that she would not do so does not in my view amount to conduct that in all of the circumstances of this case would justify an order for costs in favour of the father on a party/party basis let alone indemnity costs.

9. The other matters to which I must have regard have little or no relevance to this application. These proceedings were not necessitated by the failure of either party to comply with previous orders nor have there been any offers in writing to settle the matter. I also do not consider that it can be said on the basis of the mother’s decision not to appeal that she has been wholly unsuccessful given the circumstances the mother faced upon judgment being delivered. The mother no doubt having had the benefit of legal advice made what must have been a very difficult decision.

10. As I do not consider that there are circumstances that would justify an order for costs it is not necessary for me to consider whether it would be appropriate to make an order for costs on an indemnity basis albeit that it follows logically that in my view the exceptional circumstances required for the purposes of an order for indemnity cost are not present in this case.

11. In all of the circumstances having regard to all of the matters I must consider I am not satisfied that there are circumstances which would justify the Court making an order for costs and propose to dismiss the husband’s oral application for the costs of and incidental to the hearing before me on 27 May 2015.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered 1 October 2015.

Associate: 

Date:  1 October 2015