Gingham and Gingham (No 2)

[2013] FamCA 883

FAMILY COURT OF AUSTRALIA

GINGHAM & GINGHAM (NO 2)	[2013] FamCA 883
FAMILY LAW – COSTS – Where the father seeks an order for costs on solicitor and client basis.

Family Law Act 1975 (Cth) s117(2A).

D & D (Costs) (No 2) (2010) FLC 93-435.

APPLICANT: Ms Gingham

RESPONDENT: Mr Gingham

FILE NUMBER: BRC 2720 of 2010

DATE DELIVERED: 14 November 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: By written submissions

REPRESENTATION

FOR THE APPLICANT:	Ms Gingham in person
COUNSEL FOR THE RESPONDENT:	Mr Hamwood of Counsel

SOLICITOR FOR THE RESPONDENT: Crowley Greenhalgh

Orders

1. That by 4.00pm on 31 December 2013 the Applicant, Ms Gingham, pay the Respondent’s costs of and incidental to the Application in a Case, filed on 27 September 2012, fixed in the amount of $5,725.72.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gingham & Gingham (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2720 of 2010

Ms Gingham

Applicant

And

Mr Gingham

Respondent

REASONS FOR JUDGMENT

1. On 17 September 2013 I dismissed the applicant’s Application in a Case filed on 27 September 2012 (“the Application”). I made orders which enabled the parties to provide written submissions in respect of any application by the respondent (“the father”) for an order that the applicant (“the mother”) pay his costs of and incidental to the Application.

2. Written submissions were filed on behalf of the father on 26 September 2013 and by the mother on 25 October 2013.

3. The father seeks an order that the mother pay his costs on a solicitor and client basis in the amount of $10,081.10.[1] The mother opposes the making of any order and seeks that there be no order as to costs or, alternatively, that any costs ordered to be paid by her is limited to an amount of $200.00 and “offset against costs order in the applicant’s favour”.[2]  The mother makes reference to an Order made on 1 April 2004 in which she asserts costs were reserved and another Order, which the mother states was made 20 February 2010. However records show that such an order was in fact made 26 February 2010, by which the father’s then application was dismissed.[3] Despite these references, I am unable to discern in the mother’s written submissions any basis for the proposed limitation of costs to the amount of $200.00 or the existence of any Order for costs in the mother’s favour against which any such amount could be offset.

   [1] Submissions on behalf of the Respondent Husband filed 26 September 2013, Schedule of Costs.

   [2] Submissions on behalf of the Applicant Wife filed 25 October 2013, page 7.

   [3] Submissions on behalf of the Applicant Wife filed 25 October 2013, paragraph 16. 

4. The general rule in proceedings under the Family LawAct 1975 (Cth) (“the Act”) is that each party bears his or her own costs. However, if the Court is of the opinion that there are circumstances that justify it in doing so the Court may, subject to certain considerations, make such order as to costs as the Court considers just.

5. In considering what order as to costs, if any, to make, the Court shall have regard to those matters prescribed in s 117(2A) of the Act.

6. The father is a self-employed professional who earns ‘a comfortable income’.[4] The mother submits that she lives in a condition of poverty and is impecunious and does not have the capacity to meet any costs order. Whilst the mother is an undischarged bankrupt, I accept that she appears to have access to funds, at least in an amount which enabled the purchase of a not insignificant discretionary item.[5] She has also been able to retain $2,000.00 in an account in the child’s name. [6]

   [4] Submissions on behalf of the Respondent Husband filed 26 September 2013, paragraph 5(a). 

   [5] Husband's affidavit filed 12 June 2013, Annexure ‘MHG5’.

   [6] Submissions on behalf of the Applicant Wife filed 25 October 2013, Annexure ‘A’.

7. Neither party is in receipt of assistance by way of legal aid. The father has engaged legal representation. The mother acts for herself but this is no ‘shield’ to an order for costs should the circumstances otherwise justify the making of such an order.[7]

   [7] e.g. see D & D (Costs) (No 2) (2010) FLC 93-435.

8. Given my findings and the reasoning expressed in the Reasons for Judgment delivered on 17 September 2013, I accept submissions made on behalf of the father that the mother’s pursuit of the Application was simply an attempt to rewrite previous Orders of the Court in accordance with her wishes.

9. It is clear, given the Order made on 17 September 2013, that the mother has been wholly unsuccessful in the proceedings. In contrast, the father has been wholly successful in his application for summary disposal of the Application.

10. The mother submitted that an order for costs against her would result in her inability to provide the child with future financial assistance. However, her pursuit of the Application in circumstances outlined in the Reasons delivered 17 September 2013 has resulted in the father incurring legal costs and spending money which could have been applied to the child’s financial support.

11. I do not accept that an order for costs in the circumstances of this particular case would have the wider implication of discouraging parents who are “financially disabled” from applying to the Court for parenting orders.

12. Given:

    a)that the orders sought by the mother in the Application in a Case dismissed by the Order made on 17 September 2013 were significantly similar to those litigated by her in the trial before Murphy J in 2010/2011;

    b)that Murphy J made this very point when he granted leave to the mother in November 2012 to pursue this Application;

    c)the conclusions reached and reasoning expressed in the Reasons for Judgment delivered 17 September 2013 as the basis for the order made that day;

    d)that, on the evidence relied upon by the mother in support of the Application, it had no prospects of success; and

    e)that the father has been wholly successful in seeking summary disposal of the Application in a Case,

    the circumstances are such as to justify the making of an order that the mother pay the father’s costs of and incidental to the Application.

13. The father seeks that these costs be paid on a solicitor and own client basis and be quantified in the amount of $10,081.10.  I am not persuaded that an order for the payment of costs in this amount is just. However, nor is it just that the father be put to the expense, in both a monetary and time sense, of having to undergo the assessment process in the highly likely event that the mother does not agree to the quantum of costs he proposes.

14. I consider it is a just outcome between the parties that I fix the quantum of the costs payable by the mother to the father in the amount of $5,725.72. I arrive at this figure using the $2,931.10 itemised as the solicitor’s costs in the submissions filed on behalf of the father on 26 September 2013 and allowing the following fees for Counsel’s work as prescribed by Part 2 of Schedule 3 of the Family Law Rules 2004: $1,720.74 (Item 204) and $ 1,073.88 (Item 201 – three (3) hours).

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 14 November 2013.

Associate: 

Date:              14 November 2013