Fabron & Fabron
[2022] FedCFamC1F 312
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fabron & Fabron [2022] FedCFamC1F 312
File number(s): SYC 1089 of 2019 Judgment of: HARPER J Date of judgment: 10 May 2022 Catchwords: FAMILY LAW – COSTS – Respondent Mother seeks costs of parenting proceedings – Where father commenced parenting proceedings in 2019 – Where mother is self-represented – Where one child was already over the age of eighteen, and another child reached majority after proceedings were commenced – One remaining child aged sixteen within the Court’s jurisdiction – Parenting dispute dismissed by consent – Mother seeks indemnity costs – Disparate financial circumstances not itself sufficient to justify an order for costs – Where father’s conduct does not justify an order for costs – Application dismissed. Legislation: Family Law Act 1975 (Cth) ss 117(1), 117(2), 117(2A) Cases cited: Atkins & Hunt and Ors (Costs) [2017] FamCAFC 131
B v J (2006) FLC 93-259; [2006] FamCA 256
D & D (Costs) (No 2) (2010) FLC 93-435; [2010] FamCAFC 64
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish and Anor (2005) 33 Fam LR 123; [2005] FamCA 158
Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116
Limousin v Limousin (Costs) (2007) 38 Fam LR 478; [2007] FamCA 1178
Moorcroft & Moorcroft (2020) 60 Fam LR 361; [2020] FamCAFC 83
Parke & The Estate of the Late A Parke (2016) FLC 93-748; [2016] FamCAFC 248
Prantage & Prantage (Costs) [2014] FamCA 850
Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184; [1998] HCA 44
Division: Division 1 First Instance Number of paragraphs: 36 Date of last submission/s: 14 April 2022 Date of hearing: On the papers Place: Sydney Solicitor for the Applicant: Barkus Doolan The Respondent: Litigant in person ORDERS
SYC 1089 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR FABRON
Applicant
AND: MS FABRON
Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
10 MAY 2022
THE COURT ORDERS THAT:
1.The application in a proceeding filed on 1 February 2022 by the Respondent Wife, seeking a costs order in her favour, be dismissed.
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 Fabron & Fabron has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:
INTRODUCTION
This judgment considers a costs application made by the Respondent Mother in the substantive proceedings, Ms Fabron (“the mother”) against the Applicant Father in the substantive proceedings, Mr Fabron (“the father”).
The parties have three children, one of whom was over the age of 18 at the time the father commenced proceedings on 22 February 2019 seeking interim and final property and parenting orders. Of the two remaining children, only one remains in the court’s jurisdiction, the other having reached majority since the proceedings commenced.
On 10 July 2019, interim parenting orders were made by consent. In August 2021, the matter went before Wilson J in the winter callover, and was subsequently placed in my docket.
During the first listing before me on 20 December 2021, all outstanding parenting applications were dismissed by consent. I note that, at this point, there remained only one child, who was still under the court’s jurisdiction. It was considered appropriate, this child now being 16, for the parenting aspect of the proceedings to cease. The property issues remain to be determined. I also granted leave for either party to file and serve any application for costs by 31 January 2022, in relation to their parenting dispute.
The mother sought to file an application for costs out of time, on 1 February 2022. I granted leave on 17 March 2022 for the mother to file her application, as well as setting down a timetable for the filing and serving of material for the costs application. The parties have complied with this timetable.
I note that although she briefly retained solicitors and counsel for appeal proceedings, the mother has been self-represented since late 2019, including for the purposes of her costs application.
ORDERS SOUGHT AS TO COSTS
According to her application in a proceeding filed on 1 February 2022, the mother seeks the following:
1.That within 21 days of the date of these Orders the husband pay the sum of $31,992.08 to the wife for the payment of legal fee and disbursements of the wife on an indemnity basis.
The father did not file a response, nor were the orders he sought particularised in his written submissions. However, he states at [22] of his affidavit of 16 March 2022 that “I oppose any costs order being made in the parenting proceedings.” I will take this to mean that he seeks a dismissal of the mother’s application.
The mother was previously represented by H Solicitors. Her claim for costs relates to the period of time when she was represented, including by junior counsel. Her affidavit filed on 1 February 2022 annexes relevant costs agreements. She annexed a schedule of costs incurred between 27 March 2019 and 29 July 2019.
THE LAW
The relevant principles with respect to costs are well settled, and have been discussed by the Full Court in Parke & The Estate of the Late A Parke (2016) FLC 93-748, and followed in Atkins & Hunt and Ors (Costs) [2017] FamCAFC 131. The Court has a wide discretion, which is to be exercised judicially.
In proceedings to which the Family Law Act 1975 (Cth) (“the Act”) applies, the starting point is that each party shall bear his or her own costs: s 117(1). If, however, the Court is of the opinion that there are justifying circumstances, the Court may make such order as to costs and security for costs as the Court considers just: s 117(2). In Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184, the majority of the High Court (Gaudron, Gummow, Hayne and Callinan JJ, Kirby J dissenting) held that s 117(2) referred to costs in the conventional sense, that is, as indemnity for another’s liability for professional fees and out of pocket expenses reasonably incurred in the litigation (see eg Hayne J at [97]). This position has been followed in the Full Court (B v J (2006) FLC 93-259).
When considering what, if any, order for costs should be made, the Court must have regard to the factors set out in s 117(2A):
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(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.
It is well settled that no one factor in s 117(2A) has priority, nor must more than one factor be satisfied; rather, any one factor may be sufficient; Prantage & Prantage (Costs) [2014] FamCA 850 at [12] (“Prantage”); Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish and Anor (2005) 33 Fam LR 123 at [41].
The Full Court in Moorcroft & Moorcroft (2020) 60 Fam LR 361 upheld that indemnity costs orders are awarded only in exceptional circumstances (Kohan & Kohan (1993) FLC 92-340; Limousin v Limousin (Costs) (2007) 38 Fam LR 478; D & D (Costs) (No 2) (2010) FLC 93-435).
Both parties rely upon each subsection of s 117(2A) to establish grounds for and against a costs order.
The first question is whether the mother has established any circumstances which justify departing from the position that each party pay their own costs, and the making of a costs order in her favour. The second question is whether, if there are circumstances justifying a costs order, the father should pay the mother’s costs on an indemnity basis.
DISCUSSION
Section 117(2A)(a) – the financial circumstances of each of the parties
The mother filed an updated financial statement on 31 March 2022 for the purposes of her application. In it, she notes that her income is a total of $1693 per week, consisting of income from casual employment, Centrelink, and child support paid by the father. Her income in 2020/21 was said to be $23,742, and she anticipates her income for 2021/22 to be similar. Furthermore, her expenses appear to total her average weekly income.
By comparison, having regard to his financial statement filed on 18 November 2019, the father’s occupation was listed as a manager at F Company with a weekly income of approximately $4215. I note that the evidence indicates he has now taken a position as a consultant at G Company. However, he has not filed any updating financial statement. In his 2019 financial statement, the father states that his expenditure exceeds his average weekly income, largely due to an outstanding tax liability to the Australian Taxation Office. Furthermore, the mother relies upon a Child Support Assessment dated 26 November 2021, where the father’s taxable income was listed as $282,143.
The father argues that s 117(2A)(a) is not a justifying circumstance in this case because the funds used by the wife to pay for her legal fees were matrimonial funds transferred from the parties’ joint account, and she also used a loan secured over the former matrimonial home. I do not understand this submission. Section 117(2A)(a) requires consideration of the parties’ financial circumstances, not the way in which they may have conducted litigation or obtained funds.
It is clear that the mother’s income is significantly lower than the father’s. She continues to care for the parties’ two adult children, which both study full-time and reside with the mother, as well as the younger child. She currently receives no financial contribution from the father to support the adult children. I take this into account.
Section 117(2A)(b) – whether any party is in receipt of legal aid
Neither party is in receipt of legal aid. This factor is irrelevant.
Section 117(2A)(c) – the conduct of the parties
Here, the mother argues that the father put her through the unnecessary cost of responding to an application for parenting orders. I am unable to accept that it was unnecessary, at least when the proceedings were first commenced. At that point, the parents sought vastly divergent orders which they believed to be in the best interests of their children, and two of their three children were still within the court’s jurisdiction.
She further submits that the father’s solicitor was uncooperative in failing to engage with her prior to the interim hearing on 10 July 2019, and refusing to participate in settlement discussions until the morning of the hearing. Her evidence does not support these assertions and it is clear the parties reached consent orders on 10 July 2019.
She also submits that the father has not complied with “the great majority of the Consent Orders and has not attended to collect the children on most occasions.” Although this may well be true, I do not accept that this has contributed to any costs being incurred by the mother. There have been no contravention applications filed, and furthermore, the mother notes herself that “the orders do not require any action of the mother.”
Finally, the mother argues that “there was not a rational basis on which the father’s parenting Application could have succeeded,” citing amongst other factors the children’s ages and wishes, and the intractable conflict between the parents. This, she appears to argue, supports her submission that the father should never have commenced parenting proceedings in this court. I reject this submission. Conflict between the parents is, in the majority of cases, the driving factor behind seeking court orders, and often requires the ultimate intervention of the Court. The father argued the mother, at the time, was refusing to facilitate any overnight time. The father’s conduct in commencing proceedings was not reprehensible nor irrational, such that it should justify a departure from the ordinary rule on costs in s 117(1).
The father makes reference to the mother’s failure to make any offers in writing to settle. I address this factor below, in discussion of s 117(2A)(f). However, he also asserts that the children’s views, as expressed to the Family Consultant, were influenced by the mother. I do not accept this submission. The father provides no evidence in support of this allegation, nor is a judgment on costs the appropriate forum in which to entertain such submissions. He also submits that the relief sought by the mother at interim hearing was amended substantially only five days prior to the hearing date.
I do not accept the father’s conduct in the proceedings justifies an order for costs in the mother’s favour.
Section 117(2A)(d) – whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court
In relation to this consideration, the father relied upon the fact that the proceedings were commenced by him in circumstances where the mother refused to facilitate any overnight time between the children and the father, and this is what “necessitated” the proceedings. However, this misconceives the wording of s 117(2A)(d), which requires there to be proceedings necessitated by a failure to comply with previous court orders. No such orders were in place.
Section 117(2A)(e) – whether any party has been wholly unsuccessful
The mother states that she incurred costs “responding to the father’s application in relation to parenting that has now been withdrawn by the father.” This is incorrect, for the parenting proceedings were dismissed by consent.
The parties both submit that the other was wholly unsuccessful, with the father conceding that he was unsuccessful at interim hearing. He did not get equal time, as he agitated for, and the mother was unable to resist an order for no overnight time between the children and father.
The father initially sought orders for the two children to live with both parents on a week about basis, whilst in her Amended Response filed on 5 July 2019, the mother sought that no orders be made in respect of the children, of whom only two remained within the court’s jurisdiction at that time.
Given the consensual dismissal of the parenting proceedings, I do not accept the father was wholly unsuccessful. This factor does not justify a costs order in the wife’s favour.
Section 117(2A)(f) – whether any party made an offer in writing to settle
The mother does not address this factor, however the father argues that at no point did he receive an offer of settlement from the mother. I conclude no offers were made.
Section 117(2A)(g) – such other matters the Court considers relevant
The father submits that the mother does not come with “clean hands” to this application, there being an order by the Full Court dated 9 November 2020 for the mother to pay his costs of the appeal in the amount of $5,243.40, which she has yet to comply with.
CONCLUSION ON JUSTIFYING CIRCUMSTANCES
Taking the above factors into consideration, I am not satisfied that there are circumstances justifying an order for costs in the mother’s favour for the period when she was represented. Although the parties have disparate financial circumstances, this is not, of itself, sufficient to grant an award of costs in the mother’s favour. Since there is no basis to justify any costs order, the question of indemnity costs does not arise.
The wife’s application for costs will be dismissed.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 10 May 2022
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