Harold and Raymond (No.2)

[2016] FCCA 1976

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAROLD & RAYMOND (No.2) [2016] FCCA 1976

Catchwords:
FAMILY LAW – Ruling on costs application.

Legislation:

Family Law Act 1975, s.117

Applicant: MS HAROLD

Respondent: MR RAYMOND

File Number: MLC 99 of 2012

Judgment of: Judge Burchardt

Hearing date: 27 July 2016

Delivered at: Melbourne

Delivered on: 27 July 2016

REPRESENTATION

Counsel for the Applicant: Ms Harold, in person

Counsel for the Respondent: Mr Raymond, in person

Counsel for the Independent Children’s Lawyer: No appearance required

ORDERS

1. The application for costs filed on 15 July 2016 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Harold & Raymond (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 99 of 2012

MS HAROLD

Applicant

And

MR RAYMOND

Respondent

REASONS FOR JUDGMENT

1. On 11 July 2016, I published my Judgment and orders.  I dismissed the mother’s main application, namely, that the father pay the child’s school fees at (omitted) College, however, I allowed her claims as to half X’s orthodontic and spinal treatment and also overseas travel.  I ordered any submissions as to costs to be filed and served within 48 hours.  On 15 July 2016, the mother filed costs submissions.  In part, although it is only a very small part, she seeks disbursements.  In part, she seeks that the father pay outstanding fees for (omitted) College.  It is immediately apparent that this seeks to reverse the outcome of my Judgment, a matter that could only be achieved by appeal.

2. I will start with s.117 of the Family Law Act 1975 (“the Act”), which is the relevant section of the Act dealing with matters as to costs. Section 117(1) of the Act reads subject to subsection (2) and the other sections which are not relevant, “each party to proceedings under this Act shall bear his or her own costs.” Subsection (2) reads “[i]f, in proceedings under the Act, the court is of opinion that there are circumstances that justify it in doing so, the court may…”, subject to subsections which are not relevant “…and the applicable Rules of Court, make such order as to costs and security for costs, as the court considers just.”

3. Pursuant to s.117(2A), if the Court is considering what orders should be made as to costs, there are a number of matters to which regard must be had to which I shall come. Subsection (1) is often described as the general rule, but there is clearly an exception to it. Subsection (2A) refers to the following matters.

4. First, the financial circumstances of each of the parties to the proceedings.  As recorded in my earlier Judgment, both of these parties owned a property. The mother has a far greater degree of equity in her property.  Her net income is approximately $80,000 a year.  The father’s is not entirely clear but is in excess of $100,000 from which tax must be paid.

5. The next matter the Court is required to have regard to is legal aid and neither party is in assistance of it.  Indeed, both parties are self-represented, so the question of what costs they might have engendered would seem to me to be rather small.  Thirdly, the Court is required to consider the conduct of the parties in relation to the proceedings, including, without limiting the generality of the full going, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of fact, production of documents and similar matters.  In my opinion, there are no matters which would fall for consideration under this heading, particularly bearing in mind that the parties are self-represented. Likewise, subsection (d), whether the proceedings were necessitated by the failure of a party to proceedings to comply with previous orders of the Court, is not engaged. 

6. The next matter to consider is whether any party to the proceedings has been wholly unsuccessful in the proceedings.  While the main claim brought by the mother has failed the fact is both parties had a measure of success and failure in the proceedings, as I have earlier described.  There are no offers to settle that have been made apparent to me and that, therefore, is also not a relevant matter.

7. In truth, of the sums claimed by the mother, only $67.70 is costs.  The rest reflects the negative outcome of the case from the mother’s point of view insofar as it sought payment of the fees for (omitted) College.  The application is completely misconceived and lacks merit.  Accordingly, the application for costs is dismissed.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 1 August 2016