Farquar & Farquar (No. 2)

[2008] FamCA 682

FAMILY COURT OF AUSTRALIA

FARQUAR & FARQUAR (NO. 2) [2008] FamCA 682

FAMILY LAW – COSTS – application by father seeking costs incurred successfully pursuing contravention application against mother – father unrepresented – consideration of costs able to be recovered by unrepresented litigants – Cachia v Hanes and Anor (1994) 179 CLR 403 cited – application for costs dismissed.

Family Law Rules 2004 (Cth) r 19.01

Cachia v Hanes & Anor (1994) 179 CLR 403
B and P [2000] FamCA 392
H and H [2006] FamCA 257

APPLICANT: Mr Farquar

RESPONDENT: Ms Farquar

FILE NUMBER: DNC 431 of 2007

DATE DELIVERED: 1 August 2008
(In Chambers)

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: BURR J

HEARING DATE: 22 JULY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not applicable

SOLICITOR FOR THE APPLICANT: Father in Person

COUNSEL FOR THE RESPONDENT: MS HOLTHAM

SOLICITOR FOR THE RESPONDENT: DAVID CHARLES STORY

Orders

1. That the father’s application for costs made on 6 June 2008 in relation to his Application for Contravention filed on 27 September 2007 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Farquar & Farquar is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: DNC 431  of 2007

MR FARQUAR

Applicant

And

MS FARQUAR

Respondent

REASONS FOR JUDGMENT

1. On 6 June 2008, I heard and determined the father’s Application for Contravention filed 27 September 2007.  My finding was that the mother had contravened 18 counts of alleged contravention of Orders made in this Court on 19 June 2000.

2. The father then made an application for costs, an application which was initially adjourned before Justice Strickland on 12 June 2008 and then before me on 22 July 2008.  On 10 June 2008 the father filed an Affidavit detailing the expenses and costs that he had incurred in pursuing his successful Application for Contravention against the mother.  Those expenses and costs fall into the following categories:-

   2.1.Loss of wages;

   2.2.Motor vehicle operating expenses; and

   2.3.Fuel costs.

3. Pursuant to the Family Law Rules 2004, “costs” are defined in the dictionary as:

   “an amount paid or to be paid for work done by a lawyer and includes expenses”

4. Rule 19.01 provides:

   “(1) Subject to subrule (3), this Chapter:

   (a)applies to costs for work done for a case, or in complying with pre-action procedures, in relation to a fresh application, paid or payable by one party to another; and

   (b)creates a duty for lawyers to give information about costs to their clients.

   (2)A party may only recover costs from another party in accordance with these Rules or an order.

   Note:  A self-represented party is not entitled to recover costs for work done for a case (except work done by a lawyer) but, if so ordered, may be entitled to recover some payments.

   .....”

5. The leading decision on the question of the recovery of costs by unrepresented litigants is the decision of the High Court in Cachia v Haines &…