Harrell & Hancock (No. 2)
[2021] FamCA 588
•9 August 2021
FAMILY COURT OF AUSTRALIA
Harrell & Hancock (No. 2) [2021] FamCA 588
File number(s): BRC 1164 of 2014 Judgment of: BAUMANN J Date of judgment: 9 August 2021 Catchwords: FAMILY LAW – COSTS – Where the mother seeks costs against the father on the scale – Where the father has been whole unsuccessful in his application – Costs order made in favour of the mother. Legislation: Family Law Act 1975 (Cth) s 117 Cases cited: Harrell & Hancock [2020] FamCA 583 Number of paragraphs: 10 Date of last submission/s: 26 February 2021 Date of hearing: On the papers in chambers Place: Brisbane ORDERS
BRC 1164 of 2014 BETWEEN: MR HARRELL
Applicant
AND: MS HANCOCK
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
9 AUGUST 2021
THE COURT ORDERS:
1.That within sixty (60) days of the date of this Order, the Applicant father pay to the mother a contribution of her costs, fixed in the sum of $3,220.90.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Harrell & Hancock has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
The mother, Ms Hancock, seeks an order for costs against the father, Mr Harrell, as a result of a decision published 5 February 2021 for dismissing the father’s parenting application filed 7 October 2020, applying the principles in Rice & Asplund (1979) FLC 90-725.
The determination of the application for costs awaited the finalisation of an Appeal the father filed against my Order. On 15 July 2021, the Full Court dismissed the father’s application.
I have now considered the mother’s written submissions filed 26 February 2021. The father has filed no submissions in response.
The general rule in family law proceedings is that each party bears their own costs (s 117(1) of the Family Law Act 1975 (Cth)), however if, after consideration of the matters set out in s 117(2A), the Court forms the view that the circumstances justify an order for costs, the Court may make a costs order as it deems to be just. I now deal succinctly with the relevant s 117(2A) factors.
Whilst there is no evidence as to the father’s financial position, the mother’s evidence is she has a gross income of less than $40,000, accumulated from two jobs and some government benefits. She receives $8.80 a week from the father for child support for the parties’ nearly 10 year old son.
The mother is in receipt of a grant of Legal Aid and was required to pay, and has paid, a contribution to her costs in the sum of $750.
The mother points quite properly to the conduct of the father in commencing proceedings by this application, essentially on the same basis as he had filed an earlier application, dismissed by the Court on 22 July 2020 (see Harrell & Hancock [2020] FamCA 583). The mother, even though she was successful in that earlier application in achieving an order for dismissal, did not seek an order for costs. The mother further points, as did the Full Court, to the “plethora of proceedings filed in both the Federal Circuit Court of Australia and Family Court of Australia” since the final parenting Orders of Tree J made 29 September 2016. This includes an unsuccessful earlier Appeal where the Full Court ordered the father pay costs of $2,568 by April 2020. The mother deposes that these costs have not been paid.
The father was wholly unsuccessful in the recent application, and in the absence of any new probative evidence, the application was doomed to fail. As a result of the father’s continual applications, an order requiring him to obtain leave before filing any future application was made – an order that was supported by the Full Court.
CONCLUSION
In my assessment, the circumstances set out above justify an order for costs. The mother should be entitled to recover her contribution of $750. Legal Aid Queensland should not be “out of pocket” for representing the mother in this application.
The submissions seeks costs on the scale (not indemnity costs) in the sum of $3,220.90. I regard the estimate (calculated at Annexure “A”) is fair and so order – payable within 60 days.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 9 August 2021
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