Hadlow & Davis (No 4)
[2022] FedCFamC1F 1094
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hadlow & Davis (No 4) [2022] FedCFamC1F 1094
File number(s): ADC 3076 of 2017 Judgment of: BERMAN J Date of judgment: 20 December 2022 Catchwords: FAMILY LAW – COSTS – Where the wife asserts that the husband was wholly unsuccessful – Where the husband was unsuccessful in relation to interim orders but the substantive orders remained on foot – where the Court finds that the husband is not wholly successful – Consideration s 117(2A) of the Family Law Act 1975 (Cth) – Where the Court declines to make any cost Order. Legislation: Family Law Act 1975 (Cth) ss 117, 117(1), 117(2A) Division: Division 1 First Instance Number of paragraphs: 14 Date of hearing: 20 December 2022 Place: Adelaide Counsel for the Applicant: Litigant in Person Counsel for the Respondent: Mr Pavic Solicitor for the Respondent: VP Lawyers ORDERS
ADC 3076 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HADLOW
Applicant
AND: MS DAVIS
Respondent
order made by:
BERMAN J
DATE OF ORDER:
20 DECEMBER 2022
THE COURT ORDERS THAT:
1.The interim orders sought in the father’s Initiating Application sealed 13 December 2022 be dismissed.
2.The mother’s Application to dismiss the father’s Initiating Application sealed 13 December 2022 be listed for hearing on 17 April 2023 at 9.15 am.
3.There be no order as to costs.
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 the pseudonym Hadlow & Davis has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
BERMAN J
The respondent mother seeks by way of final and/or interlocutory orders, an order that the father do pay the mother’s costs of and incidental to the within proceedings consequent upon the father’s Initiating Application being dismissed. Any application for costs must be considered pursuant to s 117 of the Family Law Act 1975 (Cth) (“the Act”). Section 117(1) of the provides that:
Subject to subsection (2), each party to proceedings under this Act shall bear his or her own costs.
The father is a self-represented litigant. The mother is represented by her solicitor. The mother’s solicitor has filed a Cost Notice on 19 December 2022 advising that the fees and disbursements incurred to date, but not yet billed, are in the sum of $2,294.51. Further, it estimates that the anticipated future costs up to and including this hearing will be an additional $3,000. The father has also filed a Cost Notice on 19 December 2022 advising that he was not in receipt of legal aid and that he had paid costs in the sum of $1,166.75. The mother was not in receipt of legal aid.
The consideration, therefore, is whether an order for costs should be made and that consideration must be informed by the provisions of s 117(2A) of the Act. In that respect, the Court must have regard to subparagraphs (a) through to (g).
In respect of s 117(2A)(a) of the Act, in considering what order, if any, should be made, the Court is required to have regard and consideration to the “financial circumstances of each of the parties to the proceedings”. In this case, I am satisfied that each of the parties have the ability to meet any order for costs, either by their own financial circumstances, or, in the unusual circumstance of this case, there is a substantial sum outstanding as between the mother and the father in respect of a previous cost order made at paragraph 2 of Orders dated 16 November 2022, which has not been satisfied in full.
Neither party is in receipt of any legal aid or other assistance and as such, s 117(2A)(b) of the Act is not applicable.
This is not a matter where the conduct of the parties to the proceedings is egregious, that is, the documents that each of them have filed have been entirely in compliance with the Rules of the Court, perhaps some might suggest unnecessarily so, given the limited scope and compass of the issues to be determined by the Court but nonetheless, s 117(2A)(c) of the Act is not applicable to the consideration of any costs order.
Subparagraph (d) concerns proceedings that were necessitated by the failure of a party to comply with previous orders. Again, that is not a relevant consideration in the present case
Subparagraph (f) relates to whether there has been any offer in writing to the other party and I note in this case that whilst apparently, there has been some proposal and/or counter-proposal passing, there is no evidence presented to me in respect of any offer made, and so subparagraph (f) does not apply.
Subparagraph (g) relates to any other matters as the Court considers relevant, which, of course, is of wide scope and compass.
Subparagraph (e) is the gravamen of the mother’s application for costs, which is whether any party to the proceedings has been wholly unsuccessful in the proceedings. In considering whether a party has been wholly unsuccessful in the proceedings, the father has been unsuccessful in respect of the interim orders sought in his Initiating Application sealed 13 December 2022. The response of the mother, however, seeks that the entirety of the Initiating Application be dismissed, and in that regard, the mother has not been successful.
The Court should be cautious when dealing with parenting matters to not let costs impose or interfere with the considerations that the parties should give as to what it is in a child or children’s best interests. That is not to suggest that I do not have some sympathy for the mother’s predicament, in the sense of the application that has been brought by the father.
However, in the circumstances of this case, there are issues relating to the circumstances in which the father sought orders that would fit, in some way, with some other arrangements he had with children of a different relationship that whilst he has been unsuccessful in having the current arrangements amended, the Initiating Application as to the substantive orders that he seeks, remains on foot. That is regrettable, but that is the position that the parties find themselves in.
In the circumstances of this case, I do not consider it appropriate that there should be an order for costs where the father has been unsuccessful in respect of an interim change, but the Initiating Application remains on foot and will continue until such time as it is dismissed, either by way of an application in respect of Rice & Asplund or by way a further order or amendment to be made.
I propose to make no order as to costs. I make orders as set out at the commencement of these reasons.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 6 June 2023
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