GILMAN & MEREDITH
[2019] FCCA 1890
•19 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GILMAN & MEREDITH | [2019] FCCA 1890 |
| Catchwords: FAMILY LAW – Parenting – de facto relationship – undefended hearing – application for costs – Applicant to pay Respondent’s costs. |
| Legislation: Family Law Act 1975 (Cth), ss.11F, 62G, 117 |
| Cases cited: Penfold v Penfold (1980) 144 CLR 311. |
| Applicant: | MS GILMAN |
| Respondent: | MR MEREDITH |
| File Number: | SYC 42 of 2018 |
| Judgment of: | Judge Morley |
| Hearing date: | 14 May 2019 |
| Date of Last Submission: | 14 May 2019 |
| Delivered at: | Sydney |
| Delivered on: | 19 July 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Riad of Olivia Wilkins, Phillip A Wilkins & Associates |
| Counsel for the Respondent: | Mr Longworth |
| Solicitors for the Respondent: | Hogg and Associates Lawyers |
| Solicitors for the Independent Children's Lawyer: | Ms Elve of Auslawyers |
ORDERS
That within 3 months the Applicant mother pay to the Respondent father costs of the matter before the Court of 8 March 2019 and 14 May 2019 in the sum of $4310.50.
IT IS NOTED that publication of this judgment under the pseudonym Gilman & Meredith is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 42 of 2018
| MS GILMAN |
Applicant
And
| MR MEREDITH |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Gilman, the Applicant mother (“the Applicant”), and Mr Meredith, the Respondent father (“the Respondent”), commenced a de facto relationship in about … 2011. They separated in October 2017. There is one child of their relationship, [X], born … 2013 (“the child”).
This matter came before me on 14 May 2019 for an undefended final hearing of the Respondent’s application for parenting orders for the child. The matter had been set down for an undefended final hearing by an order of his Honour Judge Harper (as his Honour then was) on 8 March 2019 in consequence of the non-appearance of the Applicant before the Court on that day.
In preparation for the undefended final hearing the Respondent, through his solicitors, prepared, completed, and filed documents upon which he intended to rely in the undefended final hearing. The undefended final hearing did not proceed on 14 May 2019 as on that day the Applicant appeared before the Court and was represented by her solicitor.
Between 8 March and 14 May 2019, the Applicant filed an Amended Initiating Application, Notice of Risk, and an affidavit by herself.
The Respondent attended before the Court represented by Mr Longworth of Counsel, instructed by his solicitor. The Independent Child’s Lawyer, Ms Elve, appeared on her own behalf.
The undefended final hearing did not proceed and the parties entered into some interim consent orders.
The Respondent made an application that the Applicant pay his costs thrown away consequent upon her nonappearance on 8 March 2019 and his preparation for an undefended final hearing and appearance with Counsel for an undefended final hearing on 14 May 2019. The issue of the Respondent’s costs was reserved.
The Proceedings
The proceedings were commenced by an Initiating Application filed by the Applicant on 5 January 2018 seeking interim and final parenting orders that the child live with the Applicant, spend time with the Respondent as agreed between the parties in writing, and an Airport Watchlist order for the child. The Applicant filed an Amended Initiating Application on the same day, only adding in the child’s second name, [X].
The matter came before Judge Henderson (as her Honour then was) for its first return date on 14 March 2018 and her Honour made orders appointing an Independent Child’s Lawyer, for the parties to attend a Child Dispute Conference on 20 April 2018, and the matter was adjourned to 21 June 2018.
On that occasion the Applicant was represented by a legal practitioner as an amicus. The Respondent appeared in person.
The parties attended the Child Dispute Conference on 20 April 2018 and on that same date the Family Consultant Ms A provided to the Court a Child Dispute Conference Memorandum to Court (“CDC Memorandum”).
The CDC Memorandum noted that the parties had reached agreement in relation to having equal shared parental responsibility for the child, for the child to live with the Applicant and spend frequent and substantial time with the Respondent as agreed between the parties, and that the child’s name remain on the Airport Watchlist.
Under the heading “Issues in dispute” it was noted:
There are no issues in dispute between the parents
The parties reported an intention to file final parenting consent orders for the child. The Family Consultant noted that:
There is history of family violence, which may require further assessment by the Court if the matter does not settle
The matter was mentioned before the Court on 21 June 2018 at which time the Applicant appeared by telephone, a legal practitioner appeared for the Respondent and Ms Elve appeared on her own behalf as the Independent Child’s Lawyer. Written consent orders were tendered to the Court on behalf of the parties but her honour Judge Henderson refused to make those consent orders.
Her Honour noted that:
The parents provided orders to the Court that the Independent Children’s Lawyer is of the view are not in the best interests of the child. The Court agrees with the Independent Children’s Lawyer and refuses to exercise its discretion to make the orders. The parents are not prevented from parenting the child as they deem appropriate.
Her Honour made an order that the parties have equal shared parental responsibility and adjourned the matter for mention to 27 September 2018 with an order that the Respondent file and serve his Response and an Affidavit in support by 27 July 2018, and that the Applicant file and serve any Amended Application and Affidavit in support by 17 August 2018.
The Respondent filed his Response on 27 July 2018 seeking interim and final orders, in summary, as follows:
a)The parties have equal shared parental responsibility for the child;
b)The child spend equal time with the parties on a revolving Monday to Thursday and Thursday to Monday basis in each two (2) week period during school term time, half school holidays with each parent, with changeovers to occur at Suburb B Train Station and orders for special occasions;
c)There be telephone communication and notification between the parties; and
d)The parties be permitted to travel interstate with the child on giving two (2) weeks’ notice to the other parent and out of the Commonwealth of Australia for holidays with the child on giving four (4) weeks written notice and an accurate itinerary to the other parent.
At mention of the matter before the Court on 27 September 2018, the matter was adjourned to 8 March 2019 for mention to allow the parties to attend a Legal Aid New South Wales Family Dispute Resolution mediation.
Her Honour noted that:
It is this Court’s view that there is no justiciable issue before the Court
On that occasion, the Applicant appeared before the Court in person, a legal practitioner appeared for the Respondent and an agent appeared on behalf of the Independent Child’s Lawyer.
On 8 March 2019 the matter was mentioned before His Honour Judge Harper (as His Honour then was) and there was no appearance by or on behalf of the Applicant. A legal practitioner appeared for the Respondent. His Honour adjourned the matter to 14 May 2019 at 9:30am for a final hearing on an undefended basis.
The Respondent was directed to cause the Applicant to be served within seven (7) days of the orders being sealed with a sealed copy of the orders made 8 March 2019 and with any further material filed with the Court on which the Respondent would seek to rely upon at the undefended final hearing.
The Respondent was further directed to make and file an Affidavit of Service in relation to his compliance with the service order on or before the final hearing.
His Honour noted that:
The child subject of the proceedings is currently living with the Respondent.
In preparation for the undefended final hearing the Respondent, by his solicitors, prepared and filed an Amended Response to Application for Final Orders, an affidavit by the Respondent affirmed 14 March 2019 setting out his evidence for hearing, an affidavit by Ms C, the Respondent’s partner, setting out her evidence for final hearing, and a fresh Notice of Risk. Those documents were all e-filed with the Court on 15 March 2019.
On 27 March 2019 the Respondent filed an Affidavit of Service to the effect that at 2:35pm on 19 March 2019 the Applicant had been personally served with his documents filed 15 March 2019 and with a copy of the order made 8 March 2019.
On 9 May 2019 solicitors for the Applicant filed a Notice of Address for Service at 3:58pm. On 10 May 2019 (a Friday) those solicitors filed on behalf of the Applicant an Amended Initiating Application, an affidavit by the Applicant sworn or affirmed on 9 May 2019 and a Notice of Risk. The affidavit was filed at 10:12am, while the Amended Initiating Application was filed at 1:33pm and the Notice of Risk was filed at 1:36pm.
In preparation for the undefended final hearing set down for 14 May 2019, the Respondent through his solicitors briefed Mr Longworth of Counsel. In compliance with the orders made on 14 May 2019, Mr Longworth prepared a Case Outline document which bears a print mark date of 9 May 2019.
In the Respondent’s Amended Response he sought final orders that the child live with him and spend time with the Mother each alternate weekend from after school on Friday to 5:00pm on Sunday, for half the school holidays, with arrangements for special occasions and for changeovers not occurring at the child’s school to take place as agreed or failing agreement, at Suburb E train station.
The Applicant’s Amended Initiating Application sought interim and final orders that the child live with the Applicant, that the “parties share parental responsibility”, that the child spend time with the Respondent every weekend from 3:00pm on Fridays until 12:00pm Sunday, for the whole of the two-week school holiday period up until three days prior to the commencement of the school term and for four (4) weeks at the commencement of the Christmas school holidays, with arrangements for special occasions. The Applicant also sought an Airport Watchlist order.
As can be seen, contrary to the situation reflected in the CDC Memorandum and, by implication, the rejected consent orders tendered by the parties to Judge Henderson (as Her Honour then was) on 21 June 2018, the Amended Application and Response showed the parties to be in dispute as to live-with and spend-time arrangements, and with overseas travel.
14 May 2019, the date on which the undefended final hearing was set down, was a Tuesday. I do not have evidence as to when the Applicant’s documents filed 10 May 2019 were served upon the solicitors for the Respondent. In any event, the preparation on behalf of the Respondent for an undefended final hearing had been completed in March 2019 and Counsel had been briefed by 9 May 2019.
On 14 May 2019 the Applicant was present at Court and represented by Ms Riad, solicitor. The Respondent was present at Court and represented by Mr Longworth of Counsel, instructed by his solicitor. Ms Elve appeared on her own behalf as the Independent Child’s Lawyer.
Sensibly and properly, no submissions were made by Mr Longworth that the matter proceed by way of an undefended final hearing despite the Applicant’s freshly filed documents and appearance with representation before the Court. The matter was stood in the list and the parties held some discussions that gave rise to a Minute of Interim Orders.
That Minute provided for the child to live with the Respondent and spend time with the Applicant as agreed, and failing agreement each weekend on Saturday from 10:00am to 5:00pm and each Tuesday from 3:00pm to 6:00pm, with changeovers to be as agreed, and failing agreement either at the child’s school, if occurring on a school day, or on Platform 1 at Central (Sydney) Train Station.
The Minute provided for the Applicant to communicate with the child by telephone or FaceTime between 6:00pm and 7:00pm each Thursday. The Minute contained other orders including some orders by way of restraints.
On call of the matter again before the Court I made orders in accordance with the Minute of Interim Order and an order pursuant to section 11F of the Family Law Act 1975 (Cth) (“the Act”) for the parties to attend a Child Inclusive Conference on 26 September 2019. I made an order pursuant to section 62G of the Act for preparation of a Family Report and listed the matter for further mention at 9:30am on 14 October 2019 and for further mention at 9:30am on 5 June 2020 following release of the Family Report.
The Costs Application
At the end of the mention on 14 May 2019, Mr Longworth made an Application on behalf of the Respondent that the Applicant pay the Respondent’s costs in a total sum of $5431.50 composed as follows:
a)$1120 being the set fee in Item 13 “Daily hearing fee” for half day hearing in “Schedule 1 – Costs” (“the Schedule”) in the Federal Circuit Court Rules2001 relating to the wasted mention before the Court on 8 March 2019;
b)$1867 being the set fee in Item 3 “Interim or summary hearing – as a discrete event” in the Schedule;
c)$2241 being the set fee in Item 13 referred to as the “Daily hearing fee”, and being for a full day hearing; and
d)$203.50 being a disbursement pursuant to Item 14 in the Schedule, being the fee paid to the process server for compliance with the order made on 8 March 2019.
The Law
Costs in relation to matters under the Act are governed by section 117, which provides in subsection 117(1) that the normal position in relation to costs under the Act is that each party to proceedings under this Act shall bear his or her own costs.
Subsection 117(2) provides for a departure from the usual rule in subsection 117(1) as follows:
(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) in 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.
Subsection 117(2A) provides as follows:
(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 proceedings in the terms of any such offer; and
(g) such other matters as the Court considers relevant.[1]
[1] Family Law Act 1975 (Cth) s 117(2A).
If, having considered the matters referred to in subsection 117(2A) the Court is of the opinion that the circumstances justify a departure from the usual rule that each party bear his or her own costs, then the Court may determine the quantum of the costs to be awarded.
In Penfold v Penfold[2] the High Court discussed section 117 of the Act and said:
It is an accurate description of section 117(1) to say that it expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to sub-section (2). As sub-section (1) is expressed to be subject to sub-section (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.
Sub-section (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 2 provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgement under appeal that an order can only be made under section 117(2) in “a clear case”.[3]
[2] Penfold v Penfold (1980) 144 CLR 311.
[3] Penfold v Penfold (1980) 144 CLR 311 at 315 (per Stephen, Mason, Aickin and Wilson JJ).
The Court’s discretion in relation to costs is broad and the considerations listed in section 117(2A) are not restrictive.[4] There is nothing to prevent any one factor in this subsection being the sole determinant for an order for costs.[5]
[4] Penfold v Penfold (1980) 144 CLR 311.
[5] PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123, 130.
Rule 21.02 in Part 21 “Costs”, division 21.2 “Orders for costs” of the Federal Circuit Court Rules 2001 (“the Rules”) provides:
(1) An application for an order for costs may be made:
(a) at any stage in a proceeding; or
(b) within 28 days after a final decree or order is made; or
(c) within any further time allowed by the Court.
(2) In making an order for costs in a proceeding, the Court may:
(a) set the amount of the costs; or
(b) set the method by which the costs are to be calculated; or
(c) refer the costs for taxation under Part 40 of the Federal Court Rules or under Chapter 19 of the Family Law Rules; or
(d) set a time for payment of the costs, which may be before the proceedings is concluded.[6]
[6] Federal Circuit Court Rules 2001 (Cth), r 21.02.
Rule 21.10 of the Rules provides:
Unless the Court otherwise orders, a party entitled to costs in a proceeding (other than a proceeding to which the Bankruptcy Act applies) is entitled to:
(a) costs in accordance with Parts 1 and 2 of Schedule 1; and
(b) disbursements properly incurred.[7]
[7] Federal Circuit Court Rules 2001 (Cth), r 21.10.
I note here that though Rule 21.10 provides that costs in the Court be in accordance with Parts 1 and 2 of the Schedule, Rule 21.11(2) provides that if costs in the Court are taxed, the taxing officer must apply the scale of costs set out in Schedule 3 to the Family Law Rules 2004 (Cth) for family law or child support proceedings, with the Schedule in the Federal Circuit Court Rules being composed of “composite amounts” for stages in the proceedings and Schedule 3 in the Family Law Rules being composed of per item of work or per hour amounts.[8]
[8] Federal Circuit Court Rules 2001 (Cth), r 21.11.
It was established by the decision of Raphael FM (as His Honour then was) in Colan Products Pty Ltd v Luxon Pty Ltd(No 2)[9] that, when applying the scale provided by the Rules, Counsel’s fees are not claimable as a disbursement and what is to be claimed is the advocacy loading on the daily hearing fee. That is applicable in this matter as what is sought by way of costs on behalf of the Respondent is the cost of attendance before the Court by Counsel to conduct an undefended final hearing.
[9] Colan Products Pty Ltd v Luxon Pty Ltd (No 2) [2002] FMCA 90.
Discussion
I do not have specific evidence in relation to the financial circumstances of each of the parties. However, there is some assistance in the affidavits filed by each for the purpose of the undefended final hearing listed on 14 May 2019.
In the Respondent’s affidavit affirmed 14 March 2019, he indicates that his occupation is a “labourer”. In paragraph 71 the Respondent deposes:
I am currently working 5 days a week in the … industry
In the Applicant’s affidavit sworn or affirmed 9 May 2019, she deposes that she is:
Currently in a relationship with Mr D
In paragraph 132 she deposes:
I am currently unemployed and expecting my second child in … 2019.
In paragraph 29 she deposes that:
On 7 May 2019, Legal Aid funding was approved
The Applicant does not provide any evidence in explanation of her failure to attend Court on 8 March 2019. I do not have any evidence in relation to the Applicant’s overall financial circumstances and in particular, how those financial circumstances are affected by her relationship with Mr D.
As stated above, according to paragraph 29 of the Applicant’s affidavit, she has been in receipt of a grant of Legal Aid to assist her with the cost of these proceedings since 7 May 2019. I do not have any evidence as to the terms of the grant of Legal Aid assistance to the mother.
It is the conduct of the Applicant in failing to appear before the Court or being represented before the Court on 8 March 2019 that led to the matter being listed for an undefended final hearing on 14 May 2019, and the Respondent’s expenditure on legal costs in having his solicitors prepare the matter for the hearing by way of preparation, completion, filing and service of documents and the briefing of Counsel.
I certify that it was reasonable for the Respondent, through his solicitors, to brief Counsel to appear on the proposed undefended final hearing. If the Applicant had appeared or been represented before the Court on 8 March 2019, the listing for undefended final hearing on 14 May 2019 would not have occurred.
It is not possible to know what Orders or directions may have been made on that day given that the Respondent’s Amended Response and the Applicant’s Amended Initiating Application were both filed after 8 March 2019. Certainly, the whole proceeding before the Court on 8 March 2019 was a waste caused by the Applicant’s non-appearance, and the Respondent’s preparation for undefended final hearing was a waste caused by the Applicant’s non-appearance on 8 March 2019 and appearance with representation on 14 May 2019.
This conduct by the Applicant warrants the making of a costs order in favour of the Respondent, and it is an exercise of the Court’s discretion under section 117 of the Act.
The proceedings before the Court on 14 May 2019 were necessitated by the failure of the mother to comply with previous orders of the Court, being the order of the Court made 27 September 2018 adjourning the matter to 8 March 2019 9:30am, because inherent in that order was the requirement that the parties appear themselves or be represented before the Court on that adjourned date.
The question of the success or lack of success of either party in relation to the occasions under question in this Application for cost is irrelevant, the exercise having been largely wasted time and, on the Respondent’s part, wasted expense.
Despite, on her evidence, the Applicant’s circumstances of being currently unemployed and in receipt of a grant of Legal Aid, there is uncertainty as to the realities of her financial position, including the nature of her current relationship with Mr D. It is not known whether the relationship is de facto or non-cohabitative, financially supporting or non-supporting.
I find that despite the implication of her current financial circumstances, the Applicant’s conduct warrants the making of an order for costs in the Respondent’s favour.
There was some utility to the Respondent in the proceedings before the Court on 14 May 2019. After negotiations an agreement was reached, and on the Application of both parties, and with the approval of the Independent Child’s Lawyer, I made orders in accordance with the Minute of Interim Orders which included an order that the child live with the Respondent and to define the time that he would spend with the Applicant failing agreement between the parties.
The occasion was also used for the making of the further order pursuant to section 11F of the Act for the parties to attend a Child Inclusive Conference and for an order under section 62G of the Act for preparation of a Family Report. On that basis I will not allow the full amount of the scale costs under the Schedule sought by the father for the daily hearing fee in Item 13 (part of Item 3) being $2241, but will allow the scale amount for half day, being $1120.
As the service of the Respondent’s documents filed in preparation for the proposed undefended final hearing was served personally on the mother in compliance with the Order made on 8 March 2019, I will allow the disbursement for process service fees in the sum of $203.50 as sought by the Respondent.
Accordingly, I will order that the Applicant pay the Respondent’s costs of 8 March 2019 and 14 May 2019 in the sums of $1120, $1867, $1120 and $203.50, being a total of $4310.50.
In view of the provisions of section 47 of the Legal Aid Commission Act1979 (NSW) I specify that an amount of $1120 and the disbursement amount of $203.50 relate to the mention before the Court on 8 March 2019, that the amount of $1867 accrued due to preparation by the Respondent for the undefended final hearing prior to 7 May 2019 (the date on which the mother deposes she received a grant of Legal Aid) and an amount of $1120 relates to the mention/hearing before the Court on 14 May 2019.
I make the Orders as set out at the start of these reasons.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Morley
Date: 19 July 2019
Key Legal Topics
Areas of Law
-
Family Law
-
Civil Procedure
Legal Concepts
-
Costs
0
1
4