Gillam and Waxweiler (Costs) - [2020] FCWA 186

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: GILLAM and WAXWEILER (COSTS) [2020] FCWA 186
CORAM: SUTHERLAND CJ
HEARD: WRITTEN SUBMISSIONS
DELIVERED : 20 OCTOBER 2020
FILE NO/S: PTW 5345 of 2014
BETWEEN: MR GILLAM
Applicant
AND
MRS WAXWEILER
Respondent

Catchwords:

COSTS - Between parties in relation to parenting international relocation case - Circumstances not justifying order - Case turns on its own facts

Legislation:

Family Court Act 1997 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Not applicable
Respondent	:	Not applicable

Solicitors:

Applicant	:	Tolcon Legal
Respondent	:	Anthony R Clarke & Associates

Case(s) referred to in decision(s):

B & B [2015] FCWA 65
Collins & Collins (1985) FLC 91-603
Fitzgerald v Fish (2005) 33 Fam LR 123
Gillam and Waxweiler [2020] FCWA 66
Greedy and Greedy (1982) FLC 91-250
Hawkins & Roe [2012] FamCAFC 77
I and I (No 2) (1995) FLC 92-625
Luadaka v Luadaka (1998) FLC 92-830
Rice & Asplund (1979) FLC 90-725

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gillam and Waxweiler has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

Introduction

1[Mrs Waxweiler] (“the mother”) sought costs against [Mr Gillam] (“the father”), fixed in the amount of $105,000.[1] The father opposed the costs order sought by the mother and sought that there be no order for costs.
[1] The mother attached to her written costs submissions, a schedule setting out her total costs calculated at “scale rate” in the amount of $107,374. The schedule lacked sufficient detail for me to determine exactly how many of the costs claimed at scale were in fact calculated. In my view, on their face, a number of the costs claimed appeared to be high in light of the brief description provided as to the work undertaken. For example: (1) on 26/3/2018 charging $1,050 in relation to drafting a letter to “OP”; (2) on 16/4/2018 charging $1,250 for “an attendance on the file”; (3) on 26/4/2018 charging $2,000 to draft a 7 page letter to the father’s solicitor; (4) on 18/6/2018 charging $1,000 to draft a 5 page letter to the father’s solicitor; (5) on 9/8/2018 charging $1,000 to draft a 4 page letter to the father’s solicitor; (6) on 14/3/2019 charging $1,000 to draft a letter to the father’s solicitor; and (7) charging $34,875 in relation to drafting the mother’s trial documents, including multiple attendances upon the mother and the court for this purpose.
2The defended trial in relation to parenting issues concerning the parties’ young son took place before me over five days in January 2020 (“the 2020 trial”). The primary orders sought by the mother were that: she have sole parental responsibility for the child, and the child live with her and spend time with the father on the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCWA 186
Decision Date: 20 OCTOBER 2020

CaseChat Overview and Summary

The case involved a dispute between Gillam and Waxweiler, both parents of a child, regarding the relocation of their child overseas. The matter was heard in the Family Court of Australia. The primary concern was the financial burden of the litigation, specifically the costs incurred by both parties throughout the proceedings.

The legal issues before the court centred on whether the costs incurred by both parties should be ordered to be paid by one party. Both parties argued that the circumstances warranted an order for the other party to bear the costs, while the court had to determine if the case's unique circumstances justified such an order.

The court found that the case did not present circumstances that warranted an order for one party to bear the costs of both parties. The court emphasised that each case must be considered on its own facts, and in this instance, there were no exceptional circumstances that would warrant such an order. Consequently, the court ruled that neither party was entitled to an order for the other to bear the costs of both parties. The court's decision highlighted the need for a case-by-case approach when determining costs in international relocation cases, as each case presents unique facts and considerations.

Orders