Harlem and Wenfeld

[2020] FamCA 224

FAMILY COURT OF AUSTRALIA

HARLEM & WENFELD [2020] FamCA 224

FAMILY LAW – COSTS – Circumstances justifying an order – Where the mother seeks costs on an indemnity basis – Where the father also seeks costs – Where the father filed an Application for Contravention as a self-represented litigant – Where the father was wholly unsuccessful – Where the mother is in receipt of a grant of Legal Aid – Where there was a delay with the hearing of the mother’s application for costs and the father incurred costs – Orders.

Family Law Act 1975 (Cth) s 117(2A)
Family Law Rules 2004 (Cth) rr 19.08(1), 19.08(3), 19.10, 19.18(1), 19.18(3), sch 3

APPLICANT: Mr Harlem

RESPONDENT: Ms Wenfeld

FILE NUMBER: ADC 2214 of 2011

DATE DELIVERED: 9 April 2020

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 21 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Miller

SOLICITOR FOR THE APPLICANT: Clelands Lawyers Adelaide Pty Ltd

COUNSEL FOR THE RESPONDENT: Ms Lee

SOLICITOR FOR THE RESPONDENT: Peter Fisher Lawyers

Orders

1. That the father pay the mother’s costs fixed in the sum of ONE THOUSAND NINE HUNDRED AND SIXTY FIVE DOLLARS AND FIFTY FIVE CENTS ($1,965.55) within five (5) calendar months of the date of this order.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harlem & Wenfeld has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2214  of 2011

Mr Harlem

Applicant

And

Ms Wenfeld

Respondent

REASONS FOR JUDGMENT

INTRODUCTION 

1. Consequent upon an Application for Contravention filed by Mr Harlem (“the father”) being dismissed on 3 December 2019, Ms Wenfeld (“the mother”) seeks her costs.

2. The contravention application, filed 4 September 2019, alleged that the mother was in breach of orders made 23 July 2018.  The final orders provided for the mother to do all things necessary to engage a psychologist to undertake reunification therapy.

3. At the completion of six periods of therapeutic intervention the children were to spend time with the father, gradually increasing over time.

4. The contravention application came before the Registrar on 1 October 2019.  It was adjourned for a judicial mention before me on 15 November 2019.

5. On 15 November 2019 the father appeared in person and the mother was represented by counsel.

6. The contravention application was listed for mention on 3 December 2019.  The father was represented by a solicitor who had not yet filed a Notice of Acting.  The mother was represented by counsel.

7. There was discussion in respect of the merits of the contravention application resulting in it being dismissed.

8. The mother’s application for costs was listed for hearing on 19 December 2019.  Both parties were represented by counsel and whilst it was the intention of the Court that the outstanding costs application would be heard and determined, I was not prepared to do so in circumstances where the mother was in receipt of a grant of Legal Aid and the Court was not provided with any information as to the extent, if any, of any indebtedness that the mother may have to the Legal Services Commission of South Australia (“Legal Services Commission”).

9. It was uncontroversial that the mother’s costs were likely to be a modest sum.  As such, the Court considered that it would be of little utility to consider the question of costs at large because if costs were to be awarded, the parties would then have to undergo a taxation of costs before a Registrar.

10. Subsequently, the proceedings, including the father’s application for costs thrown away, were adjourned for submissions to 21 February 2020.

APPLICATION FOR COSTS

1. Pursuant to sub-r 19.08(1) of the Family Law Rules 2004 (Cth) (“the Rules”), the mother has applied for orders that the father pay her costs.

2. The mother also seeks that the order for costs be determined on an indemnity basis. Subrule 19.08(3) provides:-

   A party applying for an order for costs on an indemnity basis must inform the court if the party is bound by a costs agreement in relation to those costs and, if so, the terms of the costs agreement.

3. The method of calculation of costs is referred to in sub-r 19.18(1) of the Rules which provides:-

   The court may order that a party is entitled to costs:

   (a)of a specific amount;

   (b)as assessed on a particular basis (eg lawyer and client, party/party or indemnity);

   (c)to be calculated in accordance with the method stated in the order; or

   (d)for part of the case, or part of an amount, assessed in accordance with Schedule 3.

4. Subrule 19.18(3) of the Rules provides that the Court may consider:-

   (a)the importance, complexity or difficulty of the issues;

   (b)the reasonableness of each party’s behaviour in the case;

   (c)the rates ordinarily payable to lawyers in comparable cases;

   (d)whether a lawyer’s conduct has been improper or unreasonable;

   (e)the time properly spent on the case, or in complying with pre-action procedures; and

   (f)expenses properly paid or payable.

5. In considering what orders should be made, if any, in respect of the respondent’s costs, s 117(2A) of the Family Law Act 1975 (Cth) (“the Act”) requires the Court to have regard to the following:-

   (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.

6. Accordingly, I consider that I have a wide discretion in respect of matters relating to a potential costs order.

THE MOTHER’S COSTS

1. The mother relies upon an affidavit of her solicitor filed 14 February 2020.

2. The affidavit confirms that the mother is in receipt of Legal Aid and whilst there was some delay in the mother’s solicitor obtaining confirmation from the Legal Services Commission, as to the extent of a statutory charge that the mother was required to enter into, the mother seeks her costs thrown away by reference to the amount outstanding to the Legal Services Commission, calculated as follows:-

Advice and report (less client contribution)	$312.80
Client contribution	$70.00
Process Server fee	$176.00
Contravention (solicitor)	$957.00
Contravention (counsel)	$1,320.00
Total Costs (LSC & client)	$2,835.80

1. The affidavit refers to correspondence forwarded by the mother’s solicitors to the father’s solicitors, dated 13 December 2019, setting out the total amount of the statutory charge.

2. It is not suggested by the father’s counsel that the amount is in dispute or that the quantum claimed is excessive.

3. The father opposes the mother’s application for costs on the basis that he was a self-represented litigant, that the application was reasonable in the circumstances namely, that he was not spending time with the children and that the mother’s conduct should be considered as a relevant factor, and that the adjournment of the hearing on 19 December 2019 would not have been necessary but for the inadequacy of the mother’s application in not providing assistance as to quantum.

SHOULD AN ORDER BE MADE?

The financial circumstances of the parties

1. Initially the father was self-represented.  He obtained representation when it became apparent that a more detailed consideration of the merits of the application may assist.

2. The mother is in receipt of Legal Aid, but the grant is subject to a charge.  The mother has a genuine debt to the Legal Services Commission and at some point the outstanding liability will be paid.

3. The financial circumstances of each of the parties are modest at best.  There is not a significant disparity in the financial circumstances of the parties.

4. Impecuniosity will not in and of itself be a barrier to an order being made.

5. The amount sought by the mother is modest but nonetheless significant in terms of her financial resources.  Equally, whilst the father highlights he would have difficulty in paying the mother’s costs, given his surplus income over expenditure equates to about $30 per week, there is no reason why the mother’s financial circumstances should be a disadvantage to her in terms of a sum that is required to be paid.

Receipt of legal aid

1. As discussed, the mother is in receipt of a grant of Legal Aid.  The grant is a relevant matter given that it is secured by a charge and the sum expended will at some stage have to be repaid.

Conduct of the parties

1. The mother argues that the father’s contravention application, whilst not malicious, was nonetheless misconceived.  The document was inexpertly prepared, in circumstances where the nature of a contravention application requires a high level of precision in terms of identifying the order that is alleged to have been breached and to set out a statement of particulars that would enable the mother to understand the case that she is required to meet.

Failure to comply with previous orders

1. The father argues that the contravention application, albeit poorly drafted, had at its core a genuine focus namely, that the orders of 23 July 2018 had not had the intended outcome of re-establishing a relationship between the children and the father and reinstating the children spending time with him.

2. The mother does not assert that the children are spending time with the father but does not accept that this is because of any breach or failure to comply with an order.

3. The father made the decision to file a contravention application as opposed to an application to revisit or reconsider the parenting arrangements.

4. It is not suggested that the father had a malicious purpose but that he must take responsibility for the consequences of any application that he files.

5. As such, I do not consider that the father’s allegation that the mother has frustrated the final order is a relevant consideration.

Whether a party has been wholly unsuccessful

1. There is some complexity to a determination as to whether a party, in this case the father, has been wholly unsuccessful.  The contravention application was dismissed on 3 December 2019.  The application for contravention was ready to be heard and it was after there had been some consideration of the apparent deficiency in the drafting of the application, that the father considered his position and determined not to proceed further. 

2. The contravention application was not discontinued by the father prior to the hearing.  If it had been, it could not be said that the father was wholly unsuccessful in circumstances where a determination was not made.

3. The contravention application was dismissed after the proceedings had commenced.

4. It is appropriate to find that the father has been wholly unsuccessful in the prosecution of his application.

Offers to settle

1. There are no circumstances relevant to this consideration.

Other matters relevant

1. There are no other relevant circumstances.

Quantum

1. The mother seeks total costs in the sum of $2,835.80.  Costs have been assessed having regard to the Legal Services Commission grant of aid which in all the circumstances is reasonable.

Father’s costs thrown away on 19 December 2019

1. Following the father’s application being dismissed on 3 December 2019, the mother’s application for costs was listed on 19 December 2019.

2. That hearing was not able to proceed in circumstances where the mother’s counsel was not able to present or identify any evidence as to the basis and quantum of the mother’s claim for costs.  It was not known whether the Legal Services Commission would seek repayment of the grant of Legal Aid.  The mother’s solicitor filed an Affidavit on 14 February 2020 as to the quantum of the mother’s costs and conceded that as a consequence of the lack of a statutory charge not claimed, he initially did not know what costs had been incurred.

3. It was only upon a response being received from the Legal Services Commission on 3 February 2020 that the mother’s solicitor was able to quantify the mother’s costs.

4. The hearing could have been administratively adjourned to await further information.

5. It is acknowledged that the hearing date of 19 December 2020 was inconvenient given it represented the penultimate sitting day of matters in my list.

6. The costs sought by the father are comprised of fees for the father’s instructing solicitor to attend on 19 December 2019 for one hour and fifteen minutes and for counsel’s attendance being less than three hours. The amounts claimed are consistent with the itemised scale of costs in Sch 3 of the Rules and as such are reasonable.

7. I propose to bring to account the total costs claimed by the father in the sum of $870.25 as an offset against the mother’s costs of $2,835.80, noting that whilst no application has been made, the mother’s solicitors should consider the provisions of r 19.10 of the Rules in deciding, whether in the circumstances of this case it is reasonable for the mother to incur a set-off of the father’s costs for the attendance of solicitor and counsel on 19 December 2019 and also the attendance of her solicitor and counsel on the same day.

CONCLUSION

1. The mother’s costs are in the total sum of $2,835.80, less the costs of the father thrown away at $870.25 leaving a balance of $1,965.55.

2. I propose to make an order that the father pay the mother’s costs fixed at $1,965.55.

3. I accept that the father is in a poor financial circumstance but am satisfied that the mother’s circumstances are not dissimilar.

4. Some reasonable time should be permitted but I do not consider that the balance of convenience favours one party or the other and as such I propose to allow the father five calendar months to pay.

5. I make orders as appear at the commencement of these reasons.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 9 April 2020.

Associate: 

Date:  9 April 2020