Freeman and Guthrie

[2018] FCCA 1566

FEDERAL CIRCUIT COURT OF AUSTRALIA

FREEMAN & GUTHRIE [2018] FCCA 1566

Catchwords:
FAMILY LAW – Costs.

Legislation:

Family Law Act 1975 (Cth), ss.117, 118
Federal Circuit Court Rules 2001 (Cth), sch.1

Applicant: MS FREEMAN

Respondent: MR GUTHRIE

File Number: ADC 639 of 2014

Judgment of: Judge Mead

Hearing date: 26 September 2017

Date of Last Submission: 26 September 2017

Delivered at: Adelaide

Delivered on: 15 June 2018

REPRESENTATION

Counsel for the Applicant: Ms. N. Hurley

Solicitors for the Applicant: Barnes Brinsley Shaw Lawyers

Counsel for the Respondent: Self-represented

Solicitors for the Respondent: Self-represented

ORDERS

1. That on or before 31 August 2018 the respondent pay to the trust account of the applicant’s solicitors on account of the applicant the sum of $4,166.00 (inclusive of GST) such sum being on account of the applicant’s costs.

2. That in the event that the respondent fails to pay the said sum on or before 31 August 2018 he shall pay interest on any amount outstanding at the rate of 7.5% per annum from the date of default until payment shall be made in full.

3. That all extant applications including costs be otherwise dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 639 of 2014

MS FREEMAN

Applicant

And

MR GUTHRIE

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons relate to four applications for costs made in these proceedings by the applicant mother.

Background

1. Litigation commenced between the applicant mother Ms Freeman and the respondent father Mr Guthrie with respect to parenting issues by way of a parenting application filed by the mother on 24 February 2014.

2. In March 2016 the mother filed an amended application to include an application for settlement of property.

3. On 24 April 2016 final orders were made by consent with respect to property settlement issues.

4. The proceedings with respect to parenting issues were very protracted.  For part of the proceedings the respondent father, Mr Guthrie was legally represented and at other times he represented himself.

5. On 20 April 2016 the court ordered an Independent Children’s Lawyer be appointed for the parties’ child [X], who was born on 2012.

6. Ultimately final parenting orders were made by consent on 23 February 2017.

7. During the course of the proceedings the mother filed interim applications containing, inter alia, applications for costs as against the respondent father.

8. The first of those applications in a case was filed on 20 March 2014.  Following upon the hearing of that application on 4 April 2014 it was dismissed save that costs generally were reserved.

9. On 28 August 2014 the applicant mother filed a further application in a case containing, inter alia, an application for an order for costs as against the respondent father.  That application was listed for hearing on 2 September 2014, resolved by consent and was otherwise dismissed save as to costs, which were reserved.

10. On 27 August 2015 the applicant mother filed an amended initiating application adding an application for settlement of property to her pending application for parenting orders, as well as an amended application in a case.

11. On 27 March 2015 parenting issues were listed for trial at 10:00am on 6 April 2016.  The matter was adjourned for directions and interim issues to 13 October 2015 at 10:00am, and the amended application in a case was made returnable for that same date.

12. The matter was then further adjourned to 27 November 2015, with an order that the respondent file an affidavit in response to that of the mother filed 6 October 2015.  On 27 November 2015 certain interim and procedural orders were made.  The applicant mother’s application for costs made on that occasion was reserved.

13. The matter was adjourned to 3 March 2016 but upon the request of the applicant’s solicitors was relisted at 4:15pm on 23 February 2016.  The matter was further adjourned to 4 March 2016.

14. At the hearing on 4 March 2016, the applicant’s counsel sought an order for costs noting that the originating application filed by the mother on 24 February 2014 sought general orders for costs both in relation to interim and final applications.

15. Following upon final parenting orders being made by consent on 23 February 2017, the question of the mother’s application for costs in respect of applications filed by her on 28 August 2014, and the hearings on 4 April 2014, 27 November 2015 and 4 March 2016 were adjourned for hearing to 23 June 2017.

16. On that occasion the matter was further adjourned to 29 September 2017 and heard on that day.  The father was self-represented at that hearing, having been so since 11 May 2016.

Cost applications

First costs application

1. The first return date for the mother’s originating application and the interim orders sought therein was 25 February 2014. 

2. The effect of the orders made that day were that the child [X] be returned to the care of the mother, that [X] live with the mother during the period of the adjournment and spend time with the father supervised by one of two people, subject to their availability and their confirmation to the mother’s solicitor in writing that they were prepared to undertake the role of supervision and further acknowledge that they had read the pamphlet as to the responsibility of a supervisor.

3. The order provided for the mother’s solicitor to advise the proposed supervisors of those terms and the order provided for supervised time to occur on alternate Saturdays from 11:30am to 2:00pm and on intervening Sundays from 11:30am to 2:00pm.

4. One of the proposed supervisors Ms S lived at Suburb A.  The address of the other proposed supervisor Ms A was to be advised by the father to the mother’s solicitors by close of business on 28 February 2014.

5. The order of 25 February 2014 provided for the father to be restrained from attending at the address of either Ms S or Ms A other than during the actual supervised time or at the mother’s residential address or at the childcare centre attended by [X].

6. The father was ordered to file and serve responding documents by 17 March 2014 and the matter was adjourned to 4 April 2014.

7. On 17 March 2014 the father filed a response, an affidavit in support and notice of risk at a time when he was self-represented.  When the order was made on 25 February 2014 in relation to [X]’s time with his father and the proposed supervisors, the court had noted that the order for that supervision had been made by the court without knowledge of the capacity or preparedness of the proposed supervisors to supervise the time, but in circumstances where they had been nominated by the respondent father.

8. The mother’s first application in a case containing, inter alia, an application for costs was filed on 20 March 2014.

9. The mother sought that the orders for [X] to spend supervised time with the father in the presence of either Ms S or Ms A be discharged, and that in lieu thereof [X] spend time with the father on a supervised basis at the Children's Contact Service.  She also sought an order that the parties take the necessary steps to enrol at the Children's Contact Service.

10. The mother filed an affidavit in support of that application sworn 20 March 2014 and her solicitor Ms Nikoloudakis likewise filed an affidavit in support of the application on 20 March 2014.  The affidavit of Ms Nikoloudakis set out clearly correspondence that had transpired between she and the father between 28 February 2014 and 15 March 2014. 

11. On 4 April 2014 the court heard argument with respect to the mother’s application in a case.

12. Following upon such argument, the court discharged the order made on 25 February 2014 providing for [X] to spend time with his father supervised by Ms A or Ms S and in lieu thereof ordered that during the period of the adjournment [X] spend supervised time with his father at the Children's Contact Service on six occasions.

13. The court further ordered that both parties do all things necessary to enrol in the service by 11 April 2014 and further, that upon the completion of the sixth session of supervised time the father obtain, file and serve a report as to the progress of the sessions.

14. The mother’s application in a case filed 20 March 2014 was otherwise dismissed save as to the question of costs, which were reserved.

Second costs application

1. This application arose from an application in a case filed by the mother on 28 April 2014.  In that application the mother sought an order that either the father do everything necessary and sign all such documents as shall be necessary to enable her to obtain a passport for [X] at the parties’ joint expense, or in the alternative that the passport issue without the father’s signed consent.

2. That application was listed for hearing on 2 September 2014.  The adjourned date from 4 April 2014 had been 19 August 2014 but at the request of the father’s solicitor the court administratively adjourned the hearing to 2 September 2014 to enable the report from the contact service to be filed.  The application in a case was listed for that same date.

3. On that occasion the mother’s application in a case was dismissed save as to costs, which were reserved in circumstances where on the day of the hearing the parties resolved the passport issue by consent. 

4. The consent order provided for the father to complete and sign his section of [X]’s passport application form within seventy-two hours of the hearing date and provide it to the mother by 9 September 2014, for the mother to provide the father with a copy of the identifying pages of the passport, including the passport number to the father within seven days of the issue of the passport and for the mother to retain the passport in her possession.

5. The mother was also to provide an updated itinerary to the father if there were any changes to that provided by her to him on 19 August 2014.

6. At that same hearing further orders were made by the court after hearing argument with respect to [X]’s time with his father including provisions for specific time, handover arrangements and an exchange of contact details.

7. The substantive matter was then adjourned to 8 December 2014 to enable either further consent arrangements or orders for [X]’s time with his father.

Third costs application

1. The mother’s counsel agitated the question of costs at a hearing on 27 November 2015.  On that occasion the court made an order that costs be reserved.

2. The matter had previously come before the court on 13 October 2015 being an adjourned date from 27 March 2015.  At the March hearing the matter had been listed for trial for three days commencing at 10:00am on 6 April 2016.  Directions and interim issues had been adjourned to 13 October 2015 with each party to file and serve an affidavit as to the progress of [X]’s time with his father and their proposals for further interim orders on or before 6 October 2015.

3. On 6 October 2015 the mother filed an affidavit in compliance with that order.  No such affidavit was filed by the father.  The father was represented by his then solicitor at the hearing on 13 October 2015.  She advised the court she had been unable to obtain her client’s instructions in relation to the issue and he had not complied with the order for the filing of an affidavit.

4. On 13 October 2015 the court suspended previous orders made in the proceedings providing for [X] to spend time with his father, extended the time for the father to file his affidavit in relation to [X]’s time with him and in relation to his on-going proposals to 13 November 2015, with a further order being made that the father attend at the adjourned hearing even if legally represented and that failure by him to so attend may result in proceedings being finalised on an undefended basis.

5. The father was also represented at the hearing on 27 November 2015 and by then had filed an affidavit on 26 October 2015 in compliance with the earlier order.

6. On 24 November 2015 the father’s then solicitor Ms Dorling filed her own affidavit as to administrative mishaps in the office of Adelaide Lawyers which had resulted in the father being misinformed as to future court dates.

7. On 27 November 2015 orders were made for [X]’s ongoing time with his father including as to Christmas Day 2015, with trial directions and interim issues being adjourned to 23 February 2016 by which time it was anticipated a brief updated Family Report would be available to the court and to the parties.

8. Costs in relation to the matter on 27 November 2015 were reserved. 

9. Procedural orders were also made on that occasion in relation to a conciliation conference and to matters necessary for preparation for that conference.

10. The matter was adjourned to 3 March 2016.

Fourth costs application

1. The trial listing of 6 April 2016 remained in place.

2. At the request of the applicant’s solicitors the matter came before the court on 23 February 2016.  On that occasion the conciliation conference which had been ordered on 27 November 2015 was vacated in circumstances where the respondent had not complied with orders as to filing a response, affidavit and financial statement in relation to the mother’s application for settlement of property and where he had failed to comply with an order for discovery and an order in relation to valuations.

3. In circumstances where the updated Family Report was available to the court on 23 February 2016 the matter was further adjourned for directions to 4 March 2016 in relation to both children’s issues and property settlement.

4. At the hearing on 23 February 2016 the father was represented but did not attend and it was clear that his solicitor was bereft of current instructions.  In those circumstances the court ordered that if the father failed to attend at court personally on the adjourned date of 4 March 2016 children’s issues may be finalised on an undefended basis in terms of orders sought by the mother or similar orders and the court may order the mother’s application for settlement of property to proceed on an undefended basis.

5. On 4 March 2016, an order was made extending time for the respondent to file and serve a response in relation to property settlement issues to 31 March 2016, with a further order that failure by him to do so would result in the matter being listed for final hearing on an undefended basis.

6. The father was also ordered to file and serve a notice of address for service with respect to property settlement issues in the event that he elected to represent himself in that regard.

7. An order was made for a joint informal conference involving both parties and counsel instructed for trial to occur on or before 18 March 2016 in circumstances where the father had still not complied with respect to the order for the filing of documents in response to the mother’s application for settlement of property.

8. The trial listing of 6 April 2016 remained in place.  Directions with respect to children’s issues was adjourned to 21 March 2016.  The mother’s counsel sought an order for costs at the hearing on 4 March 2015, which application was reserved.

9. The hearing on 26 September 2017 related to those four specific applications for costs made by or on behalf of the applicant mother.

Fifth costs application

1. At the hearing on 26 September 2017 the mother’s counsel further sought costs in relation to the hearing on 26 September 2017.

Costs orders

1. Costs in relation to proceedings under the Family Law Act 1975 are regulated by Section 117 of the Family Law Act 1975 (as amended). The provision refers to each party in proceedings bearing his or her own costs subject to section 117(2) sub-section NFB(1) and sections 117(AA), 117(AC) and 118[1].

   [1] Family Law Act 1975 s.117(1)

2. The only section relevant to these proceedings is section 117(2), including of course section 117(2A).

3. For a court to make an order that one party pay all or part of the costs of another party, the court must be of opinion that there are circumstances that justify it in doing so. If the court is so satisfied orders may be made, subject to the provisions of sub-section 117(2A) for costs or security of costs whether by interlocutory order or otherwise as the court considers just[2].

   [2] (supra) s.117(2)

4. Section 117(2A) is in the following terms:

   “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.”

First costs application

1. Ms Hurley of counsel for the applicant mother submitted that the mother should succeed in her application for costs in relation to the application in a case filed on 20 March 2014 in that the father had failed to comply with the order of 25 February 2014, as evidenced by the material contained in the mother’s solicitors affidavit filed 15 September 2017 and in particular paragraphs four to eleven thereof as well as annexures “A” and “B” thereto.

2. She submitted that the order of 25 February 2014, insofar as it provided for [X] to spend time with his father under the supervision of either Ms S or Ms A, was an order that was made upon noting that the supervisors proposed by the father had not been consulted by him as to their capacity or preparedness to act as supervisors.  The mother had sought in her interim orders in her originating proceedings that any time that [X] spend with the father be supervised and that the supervisor be agreed between the parties or in default of agreement the role be undertaken by her father.  Ultimately the supervisors proposed by the father did not, in the case of Ms S, reply to correspondence from the mother’s solicitors and, in the case of Ms A, advised the mother’s solicitor that she was not available to supervise on the terms and conditions as provided for in the order.

3. Ms Hurley submitted that the correspondence between the mothers solicitor, the father and Ms A was extensive, that the negotiations were prolonged but where neither the father nor his proposed supervisors seemed to be in a position to comply with the order and where the father could have made his own application to vary the order in circumstances where one proposed supervisor appeared unavailable and the other not prepared to agree to the terms of the order.

4. Correspondence relied on by the mother from her solicitor to the father and his proposed supervisors is clear in its terms that at all times the mother was prepared to comply with the terms of the order and indeed was flexible as to dates and times to assist in accommodating the availability of the supervisor or supervisors.

5. The tenor of Ms A’s communications with the mother’s solicitor led to the mother forming the view that she was not confident in the appropriateness of Ms A as a supervisor, but it is further clear from the correspondence that such a position only manifested itself after extensive efforts on the part of the mother to comply with the terms of the order.

1. By the time of the hearing on 4 April 2014 the father had filed responding documents.  In his response filed 17 March 2014 and in his affidavit in support thereof he was opposed to any form of supervision whatsoever.

2. The non-compliance by the father with the terms of the order of 25 February 2014, relied upon by Ms Hurley in her submissions, was the failure of the father to provide the telephone number and address of his proposed supervisor, Ms A to the mother’s solicitors by close of business on Friday 28 February 2014 to enable them to give effect to the terms of paragraph 5 of the order of 25 February 2014. This was to advise the proposed supervisors of the terms of the order, provide them with the pamphlet as to supervision and request that they advise the mother’s solicitor as to their availability.

3. I accept the submission of Ms Hurley as to the father’s failure to comply with that part of the order, but of course the party most affected by such non-compliance was the father himself in that as a result of such failure the time spending for [X] with his father ordered did not take place.

4. The correspondence entered into between the mother’s solicitor, the father and in particular Ms A was extensive, as submitted by Ms Hurley.  It is clear that the mother was anxious to comply with the terms of the order.

5. Nevertheless, it was the father who failed to comply with the order and he did not see fit to attempt to bring the matter back before the court until the adjourned hearing of 4 April 2014.

6. I accept the submission of the mother’s counsel that significant cost was incurred by the mother with respect to the copious amounts of correspondence entered into as previously described.

7. Nevertheless, the order made on 25 February 2014 was made on the day after the filing of the mother’s initiating application containing her application for urgent interim orders, in circumstances where the father had been served at 7:40pm on 24 February 2014, had not filed responding documents and appeared in person.  Directions and interim issues were both adjourned to 4 April 2014 in anticipation of the court then having to hand the father’s responding documents which were due to be filed on or before 17 March 2014 and which were filed on that day.

8. It was clear from the terms of paragraph 10 of the order of 25 February 2014 that interim issues were live as between the parties.  It is difficult to see why an application in a case was required when further submissions could simply have been made on the adjourned date by the mother’s counsel relying on a further brief affidavit of the mother deposing to a lack of response by Ms S to the mother’s solicitors letter with respect to compliance by the mother with the terms of paragraph 5 of the order of 25 February 2014 and to the father’s failure to comply with the terms of paragraph 8 of the said order.

9. I am not persuaded that in relation to the mother’s first claim for costs that there are circumstances that justify an order for costs and accordingly I decline to make such an order.

10. I find that the application in a case was not necessitated by the failure on the part of the father to comply with the order of 25 February 2014 as submitted by the mother’s counsel. In those circumstances I do not consider any of the other factors referred to in section 117(2A) are relevant to that particular application for costs.

Second costs application

1. The mother’s second claim for costs arose out of an application in a case filed on 28 August 2014.  In that application the mother sought that the father sign documents necessary to enable her to obtain a passport for [X] or in the alternative that the passport issue without the father’s consent.

2. The application was supported by an affidavit of the mother wherein she deposed to her parents having booked travel for herself, [X], the mother’s brother, close family friends and the mother’s parents for the purpose of a cruise in 2015 to celebrate the maternal grandfather’s birthday.

3. The mother deposed to being unwilling to travel for the family event if [X] was not permitted to travel.

4. She deposed to correspondence from her solicitor to the father with respect to the proposed travel, as well as requesting his consent to [X] accompanying her, by letter dated 8 July 2014 and by way of further follow-up letter dated 19 July 2014.

5. She deposed to an email from the father’s solicitor to her solicitor on 21 July 2014 advising that a response to the letter of 8 July 2014 would be provided shortly.

6. No such response was received, and by way of further letter from the mother’s solicitor dated 19 August 2014 the mother deposed to notice being provided to the father that if consent was not received from him with respect to the signing of a passport application there would be no option other than to file an urgent application in the court, with such correspondence to be relied on with respect to the question of costs.

7. That correspondence included a detailed itinerary of the proposed travel.

8. The application in a case was listed before the court on 2 September 2014, being the ultimate adjourned date from the hearing on 4 April 2014.

9. At that hearing orders were made by the court after hearing submissions with respect to parenting issues generally, but an order was made by consent providing for the father to complete and sign his section of the passport application for [X] within seventy-two hours of the date of the order.

10. I am satisfied in the circumstances of this claim for costs that there are circumstances that justify the court in making an order for costs.

11. I find that prior to the issuing of proceedings the wife, through her solicitors, made every reasonable endeavour to resolve the issue in question by negotiation and further, that ultimately the respondent father was advised that if an urgent application was required the correspondence would be relied on in support of an application for costs.

12. I find that the father’s conduct with respect to his failure to respond to the correspondence from the mother was unhelpful, particularly in circumstances where on the day of the hearing the matter was resolved by consent.

13. The application was listed for hearing on a day when the matter was back before the court in any event in relation to substantive parenting issues, but I am satisfied that the applicant mother was put to unnecessary cost by virtue of the necessity for her to file and serve an application in a case and to prepare that part of the affidavit in support filed on 28 August 2014 relating to the issue of travel, being paragraphs nine to eighteen inclusive.

14. The amount of costs incurred by the mother with respect to that particular application, in accordance with the fees and retainer agreement entered into between the mother and her solicitors was, according to the material contained in paragraphs eighteen and thirty-three of the affidavit of the mother’s solicitor filed 15 September 2017, the sum of $4,786.60 inclusive of GST.

15. Schedule 1 to the Federal Circuit Court Rules 2001 is the schedule of costs that applies to proceedings in the Federal Circuit Court.  Item 3 of the costs schedule provides for an amount for a family law proceeding including GST for an interim or summary hearing as a discreet event.  The amount allowed pursuant to that schedule of $1,801.00, together with the daily hearing fee mentioned in item 13 applies to the hearing.  Item 12 of the schedule permits an advocacy loading of fifty percent of the daily hearing fee mentioned in item 13.

16. I find that if an order for costs were to be made it should be in the sum of $1,801.00 with respect to the cost of the application, together with the further sum of $294.00 for the hearing fee in circumstances where that discreet application was dealt with by way of a consent order and where counsel otherwise attended in any event with respect to substantive issues.

17. I find that it is not appropriate with respect to this particular application to increase the hearing fee by way of an advocacy loading.

18. Both parties filed financial statements.

19. The applicant mother deposed to total average weekly income of $1,058.00 being a combination of wages, Family Tax Benefit A and B and child support.  She deposed to total personal weekly expenditure in the sum of $1,190.00.  She deposed to very minimal property owned by her in the sum of $4,798.00, very limited superannuation in the sum of $26,640.00 and liabilities of $136,284.00, the majority of which related to a loan from her parents.

20. The father deposed to total average weekly income of $996.00, to total weekly personal expenditure of $569.00 and also to limited property owned by him in the sum of $20,773.84 and minimal superannuation entitlements in the sum of $37,245.00.  He deposed to child support liabilities in the total sum of $93.41 per week being the amount paid for his child [X] and his child [A] being a child of another relationship.

21. The father deposed to weekly loan repayments in the sum of $164.00 with respect to a motor vehicle.  He deposed to paying motor vehicle registration for a Vehicle 1 and a Vehicle 2 in paragraph 27 of his financial statement, being a weekly total of $39.74.  In item 40 of the statement he deposes to owning a Vehicle 2 motor vehicle with an estimated value of $12,000.00.  There is no mention of any Vehicle 1 motor vehicle.

22. The address on the father’s financial statement filed 2 June 2017 is 9 Suburb B (sic).  He does not depose to any rental or mortgage expenditure.  In a previous financial statement filed on 31 March 2016 he deposed to an address of Suburb C.  He further deposed to payments to Real Estate Agent by way of mortgage payments or rent in the sum of $330.00, with rates and unit levies in the sum of $40.00.

23. In paragraph twenty-six of an affidavit filed by the father on 24 January 2017 he referred to having co-purchased a home and then sold it with a friend and to having currently purchased a brand new home in Suburb D.  He deposed to having a vested interest in real estate, which he shares with a good friend who is a (occupation omitted). 

24. The father’s address deposed to in the affidavit filed on 24 January 2017 was Suburb D South Australia.  That was the address of the father on the orders made on 23 June 2017 and 26 September 2017.

25. There is no reference to that real estate in the father’s financial statement filed on 2 June 2017. His address deposed to in that financial statement was Suburb B (sic).

26. I find that the financial statement filed by the father on 2 June 2017 shows an excess of weekly income over weekly expenditure of over $400.00 but generally I find the financial statement to be unhelpful in terms of providing any clear picture of the father’s financial circumstances.  It was within the father’s ability at all times prior to the hearing on 26 September 2017 to put a detailed and accurate financial statement before the court.

27. I am satisfied that the father has the capacity to comply with an order for costs, in circumstances where the mother incurred such costs unnecessarily.

28. For those reasons I intend to make an order for costs in relation to the application in a case filed on 28 August 2014 in the total amount previously referred to herein, namely $2,095.00.

Third costs application

1. The mother’s next specific costs application relates to the oral application made by her counsel for costs on 27 November 2015, which application was reserved.

2. On 27 March 2015 the court made further interim parenting orders and listed the substantive proceedings for trial at 10:00am on 6 April 2016 with three days allowed.  Directions and interim issues were adjourned to 13 October 2015 at 10:00am.  The court further ordered “that on or before 6 October 2015 each party file and serve one affidavit only not to exceed three pages in length as to the progress of [X]’s time with his father and their proposals for further interim orders”.

3. On 13 October 2015 the father was represented by Ms Dorling of Adelaide Lawyers.  The mother had filed an affidavit in compliance with the terms of the order of 27 March 2015.  The father had not filed any such affidavit, nor had he provided his solicitor with current instructions.  In those circumstances the court made an order extending the time for the father to file his affidavit to 13 November 2015 and ordered that the father attend at the adjourned hearing even if legally represented.  The court further ordered “that failure by him to do so may result in the proceedings being finalised on an undefended basis” and the matter was adjourned to 27 November 2015.

4. The father complied with the order in relation to the filing of the affidavit as ordered on 27 March 2015 and amended on 13 October 2015.  In addition his solicitor filed an affidavit on 24 November 2015 deposing to errors in her office resulting in the father telephoning on several occasions to enquire as to the next hearing date and being informed that it was in April of 2016.

5. The mother’s counsel sought orders for the attendance at the hearing on 27 November 2015 in circumstances where in her submission the hearing was unnecessary in that the matters canvassed on that date should have, had the father complied with the order for the filing of an affidavit and properly instructed his solicitor, occurred on 13 October 2015.

6. The father submitted that there had been a breakdown in the relationship between he and his solicitors Adelaide Lawyers, that there had been miscommunication and that he was losing confidence.  He told the court that he had attended for every attendance of which he was aware and that he had tried to comply with all necessary attendances.

7. He further submitted that all of the proceedings were bizarre in that the mother could have contacted him at any stage and in any event had she kept to their original agreement about parenting issues there should have been no need for any proceedings in any event.

8. He submitted to the court that the whole matter was absurd and that it could have been done without lawyers.

9. Notwithstanding that the father had legal representation I find that it was incumbent on him to ensure that he knew each and every court date, to comply with orders of the court in relation to the filing of material and attendance at hearings and, if represented, to properly instruct his legal representation.

10. I accept that the hearing on 27 November 2015 was only necessary as a result of the father’s failure in relation to the matters to which I have just referred, such that the hearing on 13 October 2015 was effectively “wasted”.

11. The affidavit prepared by the mother for the hearing on 13 October 2015 was of course the affidavit upon which she relied for the hearing on 27 November 2015.

12. The costs incurred by the mother for the hearing on 27 November 2015 according to the affidavit of her solicitor filed 15 September 2017 and pursuant to the costs agreement with her solicitor were $1,054.05 inclusive of GST.

13. I find that there is no basis on which to make an order for costs with respect to the hearing of 27 November 2015.  This was a hearing which related to parenting issues and property settlement, which by then had been included in the proceedings by way of an amended application on the part of the mother.  This was a hearing that was necessary for the purposes of the substantive applications before the court.

14. I am satisfied however that there are circumstances that would justify the court making an order for costs “thrown away” with respect to the hearing on 13 October 2015.  That hearing was not complex, did not require the filing of any further application and the affidavit filed by the mother on 6 October 2015 for the purposes of that hearing was the affidavit ordered on 27 March 2015.

15. In those circumstances I find that the appropriate order for costs should simply relate to the daily hearing fee of the attendance on 13 October 2015, which in any event was a relatively brief hearing.  I am however satisfied that it is appropriate to add to that amount the advocacy loading of fifty percent in that counsel did attend for the mother on that day anticipating argument in relation to interim children’s issues.

16. For the reasons previously given herein I am satisfied that the father has the capacity to comply with an order for costs, that the mother is of limited financial means and has the primary responsibility of the parties child [X] and that it is appropriate for a costs order to be made in the sum of $441.00.

Fourth costs application

1. It was submitted by Ms Hurley of counsel for the applicant that the applicant’s solicitor had been required to request the matter be re-listed on 23 February 2016. This was in circumstances where the respondent had failed to comply with orders made on 27 November 2015 with respect to filing a response, affidavit and financial statement in relation to the mother’s application for settlement of property and further, where he had failed to comply with an order for discovery and an order in relation to valuations.  Although the respondent was represented at that hearing he did not attend at the hearing and his solicitor advised the court that she was without instructions.

2. The matter was further adjourned to 4 March 2016, and orders were made in relation to consequences if the respondent failed to attend at the next hearing.  Counsel submitted that the hearing on 23 February 2016 was necessitated by the failure of the respondent to comply with orders made on 27 November 2015 with respect to proper preparation of his response in relation to the mother’s application for settlement of property.  In addition she submitted that by the adjourned hearing on 4 March 2016 the respondent had still failed to comply with the order for the filing of responding documents.

3. The amount sought by the mother by way of costs in relation to the hearing on 4 March 2016 was the sum of $1,287.00 inclusive of GST, as referred to in paragraph 33 of the affidavit of the mother’s solicitor filed 15 September 2017.  That sum comprised an attendance fee of $300.00 for the instructing solicitor and counsel’s attendance in the sum of $800.00, together with GST in relation to both amounts.  

4. I am satisfied that the respondent failed to comply with the terms of the order made by the court on 27 November 2015 with respect to the requirement for him to respond to the mother’s application for settlement of property, such that the matter was properly prepared for a conciliation conference which was listed to take place on 3 March 2016.  The father made no specific submissions in relation to that particular costs application rather than to rely on the breakdown of his relationship with Adelaide Lawyers to which I have previously referred.

5. For the reasons given in relation to my decision with respect to the applicant’s third costs application, I find that the failure by the respondent to comply with the orders of the court resulted in delay in the proceedings.  The hearing on 4 March 2016 was unable to progress the matter any further either with respect to children’s issues or settlement of property.  Effectively the hearing on 4 March 2016 had the effect of the applicant’s costs being “thrown away” as a result of the respondent’s failure and his conduct generally with respect to progressing the proceedings.

6. I find that these are circumstances that would justify the court making an order for costs “thrown away” with respect to the hearing on 4 March 2016.  I accept that counsel needed to be properly prepared with respect to procedural arguments both in relation to the hearing on 23 February 2016, which was not attended by the respondent and nor in respect of which his solicitors were properly instructed, and further for the hearing on 4 March 2016.

7. I am satisfied that an advocacy loading is appropriate in the circumstances and find that the amount sought by way of counsel’s attendance being $800.00 plus GST is appropriate with respect to costs relating to the attendance on 4 March 2016.  I do not consider that it was necessary for the instructing solicitor to attend.  For the reasons previously given herein I am satisfied that the respondent has the capacity to comply with the order for costs.

Fifth costs application

1. An application for costs was made by counsel for the applicant in relation to the costs of the costs hearing itself on 26 September 2017.

2. For the reasons given herein I find that the applicant was partially successful with respect to her application for costs.  I have determined that it is appropriate that costs be paid by the respondent with respect to the mother’s second costs application, third costs application and fourth costs application.

3. The orders that I intend to make provide for costs in an amount significantly less than that sought by the applicant, but I am satisfied that that does not detract from the predominately successful application in relation to costs in respect of which I have determined that the applicant fails in that regard only with respect to the first costs application.

4. I find that the application for costs overall was justifiable in circumstances where the applicant has been put to significant unnecessary expense as a result of the failure on the part of the respondent to reasonably respond to the mother’s application in relation to [X]’s passport until the day of the hearing, and thereafter to comply with orders of the court in relation to the proper and orderly conduct of the proceedings such that hearings were wasted and the applicant put to unnecessary expense to properly progress the matter.

5. In those circumstances I intend to make an order for costs relating to counsel’s attendance to argue the matter on 26 September 2017 in accordance with schedule 1 of the Federal Circuit Court Rules 2001. The matter was not a short mention but nor was it a half day hearing and in those circumstances I find that costs should be paid in the sum of $500.00, with an advocacy loading of $250.00 making a total of $750.00.

6. I am satisfied for the reasons previously given herein that the respondent has the capacity to comply with the order for costs. It will be apparent from the order that I intend to make that I will give the respondent time to pay.

I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of Judge Mead

Date: 15 June 2018