Galang & Pamplin
[2021] FedCFamC2F 473
•30 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Galang & Pamplin [2021] FedCFamC2F 473
| File number(s): | MLC 8956 of 2018 |
| Judgment of: | SENIOR JUDICIAL REGISTRAR SUDHOLZ |
| Date of judgment: | 30 November 2021 |
| Catchwords: | FAMILY LAW – COSTS – Mother’s Application for costs – No matter of principle |
| Legislation: | Family Law Act 1975 (Cth), s. 117. Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 |
| Cases cited: | Hawkins & Roe [2012] FamCAFC 77 I and I (No 2) (1995) FLC ¶92-625 Kohan & Kohan (1993) FLC 92-340 Wrensted & Eades [2016] FamCAFC 46 |
| Division: | Division 2 Family Law |
| Number of paragraphs: | 25 |
| Date of last submission/s: | 30 October 2021 |
| Date of hearing: | 10 September 2021 |
| Place: | Melbourne (via Microsoft Teams) |
ORDERS
| MLC8956/2021 | ||
| FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) | ||
| BETWEEN: | MS PAMPLIN Applicant | |
| AND: | MR GALANG Respondent | |
ORDER MADE BY: | SENIOR JUDICIAL REGISTRAR SUDHOLZ |
DATE OF ORDER: | 30 NOVEMBER 2021 |
THE COURT ORDERS THAT:
There be no order as to costs with respect to the Application in a Case filed on 1 September 2021 and the Response thereto.
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 a pseudonym Pamplin & Galang has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SENIOR REGISTRAR SUDHOLZ
INTRODUCTION
This matter comes before me as a consequence of an oral application for costs made by Ms Pamplin (“the Mother”) following the hearing of her Application in a Case filed on 1 September 2021.
At the hearing on 10 September 2021 I reserved the Mother’s costs to Chambers and ordered the filing of submissions, including submissions with respect to the relevant costs scale.
The Mother has not filed submissions with respect to costs sought. The Father filed submissions on 30 October 2021.
The Mother seeks costs on scale. The Respondent Father opposes that application.
The amount set by the Rules for an application of this type is ordinarily at Item 11 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021. The amount is $997 for the preparation of documents together with Items 13 and 14 (where applicable).
This matter proceeded as an interim defended hearing on 10 September 2021. Accordingly, the appropriate fee is $1178 (Item 13) and $589 (Item 14). This means the total amount permitted on the scale is $2764. This presumes that the Mother sought costs with respect to the Division 2 Rules.
RELEVANT LEGISLATION AND LEGAL PRINCIPLES
The general rule with respect to costs in proceedings before this Court is that parties shall each bear their own costs unless there are circumstances which would justify the Court departing from that general rule. In determining what, if any, order should be made the Court must consider the matters in s 117(2A) of the Family Law Act 1975 (“the Act”).
If the Court forms the view that an order for costs ought to be made, then the general rule with respect to quantum is that costs ought to be payable on a party/party basis. Although the Court does have the power to make orders for the payment of costs on an indemnity basis, it is well settled, as set out in Kohan & Kohan (1993) FLC 92-340 at page 79,614 (“Kohan”), that the Court “…should not depart lightly from the ordinary rules relating to costs between party and party and the circumstances justifying the departure should be of an exceptional kind”.
I am required to consider all of the factors in section 117(2A), so far as they are relevant, as the authorities state that these “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs”[1]. I will address each factor in turn.
[1] I and I (No 2) (1995) FLC ¶92-625 at p 82,277
(a) The financial circumstances of each of the parties to the proceedings;
The Mother has not filed any material in her documents filed on 31 August 2021 or 9 September 2021 which particularise her finances. She has not filed written submissions as required by my Orders made 10 September 2021. She has not sought an extension of time to comply.
The Father sets outs in his written submissions that he is “in financial hardship” and “can’t pay for the Mother’s costs”.
In light of the above, I am unable to draw any conclusion about the financial circumstances of the parties.
(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;
The Father is not in receipt of legal aid.
It is not clear whether the Mother is in receipt of legal aid or not.
(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;
I am not satisfied that this section is relevant to the proceedings that were heard before me.
(d) Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
This hearing was necessitated entirely by a failure of the Father to comply with previous orders.
He submits, in his written submissions, that “it is my duty to protect my little girl from harm”. This is how he explains his non-compliance with orders, which led to the Mother issuing a recovery order.
However, the Father says at paragraphs 5 and 6 of his written submissions:
5. The Mother brought this action fully aware that I intended to return the Child, once DFFH was satisfied that the Child was safe in the Mother’s care.
6. The Child was returned to the Mother 10 days before these Court proceedings, giving the Mother time to withdraw this Application, but she did not.
That being said, the Father persisted with a Response which was ultimately dismissed.
(e) Whether any party to the proceedings has been wholly unsuccessful in the proceedings;
As Thackray J wrote, “even a meritorious case can be ‘unsuccessful’ when the other case is found to have greater merit.” [2] This has been endorsed by the Full Court of the Family Court of Australia.[3]
[2] Hawkins & Roe [2012] FamCAFC 77
[3] Wrensted & Eades [2016] FamCAFC 46
I am satisfied that the Mother was wholly successful whereby her Application was granted and the Father’s Response was dismissed.
(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
I am not satisfied that this section is relevant to the proceedings that were heard before me.
(g) Such other matters as the court considers relevant.
This is a matter where I have no submissions from the Mother with respect to either the quantum of costs sought or submissions with respect to why I ought to make the orders, including addressing the relevant considerations in section 117(2A).
As a result of the lack of submissions from the Mother I am placed in an invidious position. I am not persuaded it would be procedurally fair to the Father to presume the amount of costs sought by the Mother or her financial circumstances and/or legal aid status.
CONCLUSION
In the circumstances, I am satisfied that it is not appropriate to make an order for costs.
| I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Senior Judicial Registrar Sudholz |
Associate:
Dated: 30 November 2021
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