Fowles & Fowles (No 5)
[2023] FedCFamC1F 1113
•19 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fowles & Fowles (No 5) [2023] FedCFamC1F 1113
File number: MLC 8587 of 2015 Judgment of: HARTNETT J Date of judgment: 19 December 2023 Catchwords: FAMILY LAW – COSTS – Where the husband filed a stay application – Where the husband’s appeal was considered abandoned – Where the parties consented to an order for the husband’s stay application to be dismissed – Where the wife seeks an order for costs against the husband arising from the stay application – Where the husband opposes such an order – Order made for the husband to pay costs to the wife 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 13.14
Cases cited: Penfold v Penfold (1980) 144 CLR 311 Division: Division 1 First Instance Number of paragraphs: 23 Date of hearing: 8 December 2023 Place: Melbourne Counsel for the Applicant: Ms Matson Solicitor for the Applicant: Barry Nilsson Lawyers Counsel for the Respondent: Mr Sheales Solicitor for the Respondent: Lander & Rogers ORDERS
MLC8587 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR FOWLES
Applicant
AND: MS FOWLES
Respondent
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
8 DECEMBER 2023 (AMENDED PURSUANT TO R 10.13 OF THE FAMILY LAW RULES 2021 ON 19 DECEMBER 2023)
THE COURT ORDERS, BY CONSENT, THAT:
1.The application for a stay filed by the husband on 6 November 2023 is dismissed.
THE COURTS ORDERS THAT:
2.The husband pay one part of the costs of the wife fixed in the sum of $1,000. There shall be a stay of payment until 22 December 2023.
3.The wife’s application for costs
forof the proceeding filed 3 November 2023 is adjourned for hearing by the trial Judge on a date to be fixed.
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 Fowles & Fowles has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
The discrete issue before the Court to provide reasons for judgment relates to an application made by the applicant wife (“the wife”) for costs against the respondent husband (“the husband”) following the husband filing a stay application on 6 November 2023 and subsequently consenting to an order for the application to be dismissed at hearing on 9 December 2023.
BRIEF BACKGROUND
On 6 October 2023, Bennett J made final property orders (“the final orders”) in the parties’ substantive property proceedings.
On 3 November 2023, the wife made an application for a costs order in her favour in respect of the substantive proceeding. Also on 3 November 2023, the husband filed a Notice of Appeal in respect of the final orders.
On 6 November 2023, the husband filed an Application in a Proceeding for a stay of some of the final orders as made by Bennett J and being Orders 1 to 5 (inclusive), 6(c), 6(d), 6 to 8 (inclusive), 10 and 13 – 15 (inclusive).
On 1 December 2023, the husband’s appeal was taken to be abandoned for failure to file a draft index to the proposed appeal book pursuant to r 13.14(3) of the Family Law Rules 2021 (“the Rules”). An Appeal Judicial Registrar notified the husband’s solicitors by email that day that the husband’s appeal was deemed abandoned by operation of the Rules and an Application in an Appeal was required to reinstate the appeal, in the event that reinstatement of the appeal was sought. The husband seeks to have his appeal reinstated, with a proceeding to that end before Austin J later this month.
Despite the above, the stay application remained on foot. The wife responded to the application, by filing a Response to Application in a Proceeding on 4 December 2023, together with supporting affidavit evidence. She sought that the husband’s stay application be dismissed. The wife sought further orders in relation to the implementation of the final orders and costs.
Thereafter, it was conveyed by the solicitors for the husband to the solicitors for the wife that no appeal was on foot and that, accordingly, the husband would not be proceeding with his application for a stay.
Regardless of this communication and subsequent communications had between the solicitors, the stay application remained on foot for hearing on 8 December 2023. No communication was had with the Court to advise of the withdrawal or discontinuance of the application. At the commencement of the hearing, the parties agreed that there should be a consent order that the stay application be dismissed, and such an order was made.
The wife initially sought an order for costs in her favour totalling a sum of $10,902 for the preparation of the wife’s response filed 4 December 2023 and affidavit filed 4 December 2023; cost of two solicitors instructing at the hearing on 8 December 2023; and costs of counsel appearing at the hearing on 8 December 2023. The sum of $10,902 was ultimately not pressed by the wife, the parties having agreed prior thereto that costs would not be pursued in respect of the actual hearing on 8 December 2023. There remained outstanding, the preparation of the wife’s response filed 4 December 2023, affidavit filed 4 December 2023 and costs incurred in relation to that preparation. The wife entered into a costs agreement with her solicitors, and the costs pursuant to that agreement of drafting and attending to the preparation and filing of the response and affidavit were in the sum of $1,420.45, as submitted by the wife’s counsel at the hearing. It was that amount which the wife claimed by way of a costs order in her favour.
The husband opposed the making of any costs order and observed that any such order should, in any event, be party-party costs on scale.
The Court proposed that an amount of $1,000 be an appropriate lump sum for payment and on a party-party basis. There remained no agreement by the husband as to the payment of any amount. Counsel for the wife conceded the reduction in the quantum to the wife to be recovered from the husband in a lesser sum, namely, $1,000.
LEGAL PRINCIPLES
Section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) sets out the general rule that each party shall bear their own costs. However, the Court, being satisfied that there are circumstances justifying it doing so, may make such order for costs as it considers just in accordance with the Court’s discretion. In considering what (if any) order for costs it should make, the Court shall have regard to the matters in s 117(2A) of the Act which are as follows:
(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.
Although the Court must have regard to all of the matters in s 117 of the Act, each matter’s particular relevance will depend upon the particular circumstances of each case. The Court is not required to consider these matters in any particular order, and no matter takes precedence over another. It is also not necessary for there to be more than one relevant consideration for the purposes of deciding that an order is justified.
In Penfold v Penfold (1980) 144 CLR 311 at 315, the High Court of Australia (Stephen, Mason, Aickin and Wilson JJ) held that:
It is an accurate description of s. 117(1) to say that it expresses a general rule, provided that it is firmly understood that the subsection is not paramount to s.117(2). As subsec (1) is expressed to be subject to subsec (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.
Subsection (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently …... we do not agree with the suggestion….... that an order can only be made under s.117(2) in a 'clear case'.
CONSIDERATION
I shall consider s 117 of the Act as applicable and otherwise the matters in s 117(2A) of the Act, whilst not containing the power to make an order for costs, shall be considered by me to inform the exercise of my discretion in determining a costs order where the normal course would be that costs follow the event.
In the circumstances of the case, not all of the matters set out in s 117(2A) of the Act are relevant. Accordingly, only those relevant matters are discussed hereafter.
Each of the parties have expended significant costs on legal fees.
The husband has paid legal costs of $363,326.95 in the period between his current solicitor’s engagement on 11 October 2023 and 7 December 2023.[1] This sum was inclusive of counsel’s fees already paid.
[1] Husband’s Costs Notice filed 7 December 2023, Item 1.
At hearing, it was submitted on behalf of the husband that he had spent a sum approaching $3,000,000 on legal costs in the substantive proceeding.
As at 7 December 2023, the wife had incurred legal costs approaching $2,000,000 of which $1,266,096 remained unpaid.[2]
[2] Wife’s Costs Notice filed 8 December 2023, Item 1.
I find that each of the parties’ financial circumstances do not preclude the making of any costs order in the quantum as proposed in this application.
The principal matter to be considered here is s 117(2A)(e) of the Act, which is whether any party to the proceedings has been wholly unsuccessful in the proceedings. Clearly, the husband has been unsuccessful in relation to his stay application and, indeed, consented to an order that his application be dismissed. That was not his position as conveyed to the wife at the time the work was done in respect of which she this day seeks a costs order.
CONCLUSION
In the exercise of the Court’s discretion and in the circumstances of this hearing, I am satisfied that an order for the husband to pay the sum of $1,000 to the wife is warranted. The dismissal of the husband’s application is a circumstance which justifies a departure from the general rule that each party pay their own costs. Counsel for the wife proposed a period of time for the husband to meet such costs order, being 14 days, and no submissions were made by counsel for the husband as to that stay proposed. In my view, that is a reasonable time for a stay, after which payment should be made by the husband to the wife.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 19 December 2023
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