Fleming & Burnett (No 2)
[2022] FedCFamC2F 1080
Federal Circuit and Family Court of Australia
(DIVISION 2)
Fleming & Burnett (No 2) [2022] FedCFamC2F 1080
File number(s): ADC 1787 of 2021 Judgment of: DEPUTY CHIEF JUDGE MCCLELLAND Date of judgment: 16 August 2022 Catchwords: FAMILY LAW – COSTS – Review of a registrar’s decision – Where the father was wholly unsuccessful – Father ordered to pay mother’s costs in a fixed sum Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17
Family Law Rules 2004 (Cth) r 19.18
Cases cited: Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432
Cross & Beaumont (2008) 39 Fam LR 389; [2008] FamCAFC 68
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123; [2005] FamCA 158
Fleming & Burnett [2022] FedCFamC2F 276
Hitch & Hitch (2012) 47 Fam LR 603; [2012] FamCAFC 124
Idoport Pty Limited v National Australia Bank Limited & Ors [2007] NSWSC 23
Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4
Prantage v Prantage (Costs) [2014] FamCA 850
Robinson & Higginbotham (1991) FLC 92-209; [1991] FamCA 5
Stoian v Fiening (Costs) [2014] FamCA 944
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466; [2011] FamCAFC 126
Division: Division 2 Family Law Number of paragraphs: 28 Date of last submission/s: 13 April 2022 Date of hearing: On the papers Place: Sydney The Applicant: Litigant in person Solicitor for the Respondent: Mr Omerod of Adelaide Family Law ORDERS
ADC 1787 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR FLEMING
Applicant
AND: MS BURNETT
Respondent
order made by:
DEPUTY CHIEF JUDGE MCCLELLAND
DATE OF ORDER:
16 AUgust 2022
THE COURT ORDERS THAT:
1.Within seven (7) days of the date of these orders, the applicant father pay the respondent mother’s costs in the amount of $4,163.02 to the solicitor’s trust account of Adelaide Family Law.
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 Fleming & Burnett has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MCCLELLAND:
INTRODUCTION
By orders made on 15 March 2022, I dismissed an Application for Review of a decision by a senior judicial registrar dated 3 December 2021 as filed by the applicant, Mr Fleming (“the father”), which included both parenting and property orders. In circumstances where, shortly prior to the commencement of the hearing, the father had unilaterally retained the child, X (“the child”), contrary to orders of the Court, I varied the orders made by the senior judicial registrar to the extent that I required the child’s time with the father to be supervised. This was because, for reasons which I set out in my decision dated 15 March 2022,[1] I found there to be an unacceptable risk of the father repeating that conduct.
[1] Fleming & Burnett [2022] FedCFamC2F 276
In orders made on 15 March 2022, I made an order permitting the respondent, Ms Burnett (“the mother”), to file and serve written submissions in the event that she seeks an order for costs within 14 days of the date of the orders. The father was entitled to provide a response through written submissions within 14 days of the mother’s submissions.
The mother filed her written submissions on 29 March 2022, with the father filing his response on 13 April 2022.
The mother sought the following orders:
15.1 That within (7) days the Father do pay the Mother’s costs in the amount of $4,163.02 to the Trust Account of Adelaide Family Law.
15.2 In the event that the Father defaults in the payment of costs by more than (2) business days, then the total sum of $4,163.02 shall be distributed from the sale proceeds held in the Trust Account of Adelaide Family Law to the Mother.
The father’s submissions did not relate or refer to the mother’s costs submissions and instead he chose to re-file the submissions provided to the senior judicial registrar on 8 November 2021.
RELEVANT LEGAL PRINCIPLES
The issue of costs in respect to proceedings under the Family Law Act 1975 (Cth) (“the Act”) is to be determined in accordance with s 117 of the Act. That section relevantly provides that:
(1)Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(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.
The general rule, as set out in s 117(1) of the Act, is that each party to the proceedings shall bear his or her own costs. This is, however, subject to s 117(2) of the Act which provides that, if the Court is satisfied that there are circumstances justifying it, the Court may make an order as to costs as it considers just. Beyond the “essential preliminary” consideration of those matters set out in s 117(2A) of the Act, there is no “additional or special onus” on the applicant for the Court to make an order for costs: Penfold v Penfold (1980) 144 CLR 311 at [13].
In considering whether it is appropriate and just to make an order for costs in favour of a party, it is unnecessary for the Court to be satisfied in respect to each and every factor set out in s 117(2A) of the Act,[2] nor does any factor set out in that section have priority over another: Prantage v Prantage (Costs) [2014] FamCA 850 at [12].
[2] Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 at [41].
CONSIDERATION
It is convenient to address each of the matters set out in s 117(2A) to the extent that I have considered them relevant to the determination that I have made to award costs in favour of the mother.
The parties’ respective financial circumstances
The financial circumstances of the parties are set out in their respective Financial Statements as filed in the parties’ original proceedings in the Magistrates Court of Western Australia on 21 January 2021 in the case of the father and on 15 January 2021 in the case of the mother. I place limited weight on those documents in circumstances where they were filed in excess of 12 months old prior to the date of the hearing of this matter.
It was not disputed, however, that there is currently a sum of $135,966 in the trust account of the mother’s solicitors, being the net proceeds of the sale of a property which is the subject of family law proceedings.
During the course of the review proceedings, there was some evidence that the father had been unemployed for a period of time. For the purpose of this decision, I accept that he may have some difficulty in meeting the cost of the mother’s legal expenses. However, in Cross & Beaumont (2008) 39 Fam LR 389 at [60], the Full Court held that financial incapacity to pay a costs order is not a barrier to the making of such an order where the conduct of the party may warrant a costs order being made.
In this matter, I am satisfied that there are other conditions set out in s 117(2A), to which I refer, which justify an order for costs being made in favour of the mother.
Receipt of assistance by way of legal aid by either party
Neither party is in receipt of legal aid.
Conduct of the parties in relation to the proceedings
This section is focused on the conduct of the parties as litigants (Hitch & Hitch (2012) 47 Fam LR 603), rather than as separated parents generally.
In this matter, it is relevant that, while he pressed for financial orders, the father presented no evidence upon which his application in that respect could be determined. His conduct in failing to do so inevitably contributed to additional expense being incurred in the proceedings.
Whether the proceedings were necessitated by a party’s failure to comply with previous orders
In this matter, it is relevant that the mother’s application in response to the father’s Application for Review was necessitated by the father failing to return the child in accordance with both previous orders of the Court and an agreement entered into by the parties.
Whether any party has been wholly unsuccessful in the proceedings
In Robinson & Higginbotham (1991) FLC 92-209 at 78,417, Nygh J stated that the concept of being wholly unsuccessful is “a situation in which the proceedings as a whole have been unsuccessful. In other words, in which an application which was without merit has been dismissed.”
In this matter, the father was wholly unsuccessful in that his Application for Review of a decision by a senior judicial registrar was dismissed.
Whether an offer has been made in writing to settle the proceedings
The mother has not sought to rely upon this subsection.
Such other matters as the Court considers relevant
It is relevant that, in these proceedings, the mother’s application and associated costs incurred by her in seeking an order for the child’s return and also a variation of the orders made by the senior judicial registrar were necessitated by the conduct of the father in unilaterally retaining the child contrary to orders of the Court.
Summary and conclusion in respect to costs
For all of those reasons, I am satisfied that it is in the interests of justice for an order for costs to be made in favour of the mother. The question becomes in what sum.
Quantification of costs
Rule 12.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) 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)).
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)
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].
Having regard to the submissions of the mother and the schedule of costs provided in that document, I am satisfied that the costs have been assessed in accordance with the appropriate scale on a party/party basis and are fair and reasonable. On that basis, I will make an order that the father is to pay the costs incurred by the mother in the sum of $4,163 within 28 days of the date of these orders.
Should an order be made for distribution from a controlled monies account?
The solicitors for the mother, anticipating that the father will fail to comply with a costs order, have sought an order for the amount of costs to be paid from a controlled monies account currently held by those solicitors on behalf of the parties.
That proposed order is in the nature of an order for partial property distribution from the parties’ joint assets, which would require the Court to consider those matters set out in Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 at 85,635–85,636. As the Court has not been addressed in respect to those considerations, it would be inappropriate to make the order sought by the mother in that respect at this point in time.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Judge McClelland. Associate:
Dated: 16 August 2022
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