Halstron & Halstron (No 2)
[2021] FedCFamC1A 61
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Halstron & Halstron (No 2) [2021] FedCFamC1A 61
Appeal from: NA - Review of exercise of power by Appeal Registrar Appeal number(s): SOA 45 of 2021 File number(s): SYC 2788 of 2016 Judgment of: STRICKLAND J Date of judgment: 12 November 2021 Catchwords: FAMILY LAW – APPEAL – COSTS - Where the applicant has been wholly unsuccessful in the proceedings – Where the application was dismissed because the orders sought were not orders that this Court would make – Where the application should never have been filed and had no chance of success – Where the applicant has ample financial resources to meet any order for costs – Where the respondent was justified in taking part in the proceedings and opposing the application – Where nothing has been put to this Court which would prevent an order being made – Costs ordered to be paid by the applicant in the sum of $6,000. Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 12.17(1)(a)
Cases cited: Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 FamLR 123; [2005] FamCA 158
Halstron & Halstron [2021] FedCFamC1A 30
Number of paragraphs: 24 Date of last submission/s: 5 November 2021 Date of hearing: In Chambers on the papers Place: Adelaide Counsel for the Applicant: Mr Dura Solicitor for the Applicant: Crumpton Lawyers Pty Ltd Solicitor-Advocate for the Respondent: Ms Renwick Solicitor for the Respondent: Lander & Rogers ORDERS
SOA 45 of 2021
SYC 2788 of 2016FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS HALSTRON
Applicant
AND: MR HALSTRON
Respondent
ORDER MADE BY:
STRICKLAND J
DATE OF ORDER:
12 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The applicant wife pay the costs of the respondent husband fixed in the sum of $6,000.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRICKLAND J
INTRODUCTION
On 6 October 2021, this Court dismissed an Application in an Appeal filed by Ms Halstron (“the wife”) on 5 August 2021, seeking a review of the exercise of power by the Appeal Registrar, in refusing to accept for filing an Application in an Appeal sought to be filed by the wife on 27 July 2021.
In addition, this Court provided a regime for the filing of submissions in the event that either party sought an order for costs.
On 20 October 2021, Mr Halstron (“the husband”), filed written submissions seeking an order that the wife pay his costs of and incidental to her Application in an Appeal on a party/party basis.
On 27 October 2021, the wife filed written submissions opposing any order for costs being made.
For some unexplained reason, the amount of costs sought by the husband was not specified in his written submissions, and thus the Appeal Registrar required the husband to file and serve a schedule of the costs sought, and gave the opportunity to the wife to respond.
On 3 November 2021, the husband filed a schedule of costs, and the amount sought is $10,105.08.
On 5 November 2021, the wife filed a responding submission confirming her opposition to any order for costs being made, and in any event, challenging some of the items in the husband’s schedule of costs as being solicitor/client costs, or unnecessary.
THE LEGISLATION
The application for costs is governed by s 117 of the Family Law Act 1975 (Cth) (“the Act”), which relevantly provides as follows:
(1)Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.
(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) and 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.
(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 the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
DISCUSSION
The husband submits that there are two circumstances which justify an order for costs being made, namely:
(a)the wife has been wholly unsuccessful in the proceeding (s 117(2A)(e)); and
(b)the wife’s conduct in pursuing the application (s 117(2A)(c) and (g)).
The first is an obvious circumstance, and is all that is needed for an order for costs to be made (Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 FamLR 123 at [120]).
As to the second, the specific conduct identified is the wife choosing to pursue the application, despite the sound advice and warnings provided by the Appeal Registrar in relation to the application sought to be filed, and which the Appeal Registrar refused to file.
However, although these matters were addressed by this Court in [8]–[11] in Halstron & Halstron [2021] FedCFamC1A 30, it is unnecessary to make a finding about them because, to repeat, the circumstance of the wife being wholly unsuccessful is sufficient to allow this Court to make an order for costs. I note though that the conduct which is relevant would be limited to any conduct related to the Application in an Appeal seeking the review, and not necessarily any conduct that preceded that.
In respect of the first circumstance relied upon, the wife submits that although her application was wholly unsuccessful, “it was not wholly unsuccessful on the basis that there was a lack of identifiable power with which to entertain and/or grant such relief” (paragraph 21 of the submissions filed by the wife on 26 October 2021). However, I consider this to be a specious submission; the application was dismissed because the orders sought were not orders that this Court would make, and that should have been well known to the wife and her legal advisers.
Further, nothing in the reasons for judgment delivered on 6 October 2021 could be interpreted as accepting “that it was reasonable in the circumstances to file the Application in the form and manner that [the wife] did” (paragraph 23 of the submissions filed by the wife on 26 October 2021). It was an application that should never have been filed, and had no chance of success.
Next, it is necessary to mention that in considering whether to make an order for costs, the financial circumstances of the parties should be taken into account (s 117(2A)(a)). However, here, as submitted by the husband, “[t]he financial resources of the parties to these proceedings are extensive, as reflected in the uncontroversial facts recorded in the Reasons for Judgement [sic] delivered by [the primary judge] on 24 June 2021” (paragraph 15 of the submissions filed by the husband on 20 October 2021), and thus they do not provide any impediment to an order for costs being made in favour of the husband.
In this regard though, the wife submits that the financial circumstances of the parties had yet to be determined because there was an appeal against the order for property settlement made by the primary judge, and on the assumption that the appeal is successful, there is likely to be a further hearing to determine the property of the parties and their respective entitlements to it. That may well be the outcome of the appeal, but equally it may not. In any event, for current purposes, this Court does not need to look beyond the financial circumstances of the parties as revealed in the proceedings before the primary judge, and in the order for property settlement made by his Honour. Thus, the wife has ample financial resources to meet any order for costs.
I note that the wife also submits that given the nature of the application before the court, there was “no necessity for the Husband to appear” (paragraph 6 of the submissions filed by the wife on 26 October 2021). It is left unsaid in the wife’s submissions as to what effect that should have, but presumably, it was that no costs should be ordered. However, that is a submission I do not accept. The husband was perfectly justified in taking part in the proceedings and opposing the application, despite not being required to file a formal response.
Finally, it is also suggested by the wife that the court should take into account that “the Wife took steps prior to the filing of her Applications to resolve the issues with the Husband by seeking from him an Undertaking not to deal with the subject property (paragraph 24 of the submissions filed by the wife on 26 October 2021), and the husband refused.
Two comments about that; first, the undertaking was sought before the wife sought to file the Application in an Appeal which the Appeal Registrar refused to file, and secondly, in the circumstances the husband was justified in refusing to give the undertaking.
There is no merit in any of these submissions by the wife.
CONCLUSION
In summary, the Application in an Appeal seeking a review was wholly unsuccessful, and thus there is a clear circumstance justifying the making of an order for costs.
The application should never have been brought, and the husband has been put to unnecessary expense in responding to it, and seeking its dismissal.
Nothing of any substance has been put to this Court which would prevent an order being made. Thus, in the exercise of this Court’s discretion there will be an order for costs in favour of the husband. However, I am not prepared to make an order in the amount sought by the husband. Yet again, solicitors have revealed their lack of understanding of what party/party costs are as opposed to solicitor/client costs, and there are a number of items in the schedule of costs filed by the husband which are in the latter category. Further, counsel fees are sought in relation to work undertaken by senior counsel in conferring and settling an affidavit, and settling the outline of argument. However, it is also sought to claim counsel fees for the junior counsel who actually prepared for the hearing before this Court, as well as for the drafting of the submissions. Senior Counsel did not appear on this application, and indeed, that would not have been warranted. There is no basis for the costs order that is made to include the fees for senior counsel, when the matter has been run, as it should, by junior counsel.
Rule 12.17(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 provides for the court to make an order of a specific amount, and here I propose to order that the amount of costs to be paid by the wife is $6,000.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strickland. Associate:
Dated: 12 November 2021
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