Heikki & Heikki

Case [2024] FedCFamC1F 833

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Heikki & Heikki [2024] FedCFamC1F 833

File number: DGC 1682 of 2022
Judgment of: WILLIAMS J
Date of judgment: 5 December 2024
Catchwords: FAMILY LAW – COSTS – PARENTING – Where the mother seeks costs following final consent orders made in relation to parenting proceedings – Consideration of relevant principles under s 117 of the Family Law Act 1975 (Cth) – Where the father should have resolved the parenting proceedings at the dispute resolution conference prior to the trial, because he knew his alcohol consumption had escalated and he was armed with the results of his hair follicle test – Circumstances warranting departure from the usual principle that each party bear his or her own costs – Order that the father pay the mothers costs fixed at $3,300 – Payment to be made in instalments
Legislation: Family Law Act 1975 (Cth) s 117
Cases cited:

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)v Fish (2005) 33 Fam LR 123; [2005] FamCA 158

In the Marriage of I & I (No 2) (1995) 22 Fam LR 557

Massalski & Riley (No 2) [2021] FamCAFC 152

Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157
Division: Division 1 First Instance
Number of paragraphs: 39
Date of last submission/s: 8 November 2024
Date of hearing: 14 October 2024
Place: Melbourne
Counsel for the Applicant: Mr Burns
Solicitor for the Applicant: Einsiedels
Counsel for the Respondent: Ms Swart
Solicitor for the Respondent: KM Law

ORDERS

DGC 1682 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS HEIKKI

Applicant
AND:

MR HEIKKI

Respondent

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

5 DECEMBER 2024

THE COURT ORDERS THAT:

1.The father pay the mothers costs fixed at $3,300.

2.The payment referred to in paragraph 1 hereof, be made by three equal payments of $1,100 on 1 January 2025, 1 March 2025 and 1 May 2025.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Heikki & Heikki has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

WILLIAMS J:

INTRODUCTION

  1. On 14 October 2024, at the final hearing of their respective parenting applications pertaining to their nine-year-old son, the parties to this application…

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AGLC
Heikki & Heikki [2024] FedCFamC1F 833
Case
[2024] FedCFamC1F 833
Decision Date

CaseChat Overview and Summary

The matter before the Court was a request by the mother, Ms Heikki, for costs following final consent orders made in relation to parenting proceedings. The parties had separated in 2021 and had a nine-year-old child together. The mother had raised concerns about the father’s alcohol consumption, which were substantiated in various reports. The father had been ordered to undergo hair follicle testing, and he had produced satisfactory results up until the trial date. However, on the day of the trial, he disclosed that his alcohol consumption had escalated, leading to the agreement on parenting orders. The mother sought costs from the father under s 117 of the Family Law Act 1975 (Cth).

The court needed to determine whether there were circumstances warranting a departure from the usual principle that each party bear their own costs. It had to consider the factors listed in s 117(2A) of the Act, as well as any other relevant matters. The court found that the father should have resolved the parenting proceedings at the dispute resolution conference prior to the trial, because he knew his alcohol consumption had escalated and he was armed with the results of his hair follicle test. This failure to disclose the test results in a timely manner led to the necessity to brief counsel for the trial and incur substantial costs. Therefore, the court was satisfied that there were circumstances warranting a departure from the usual principle that each party bear their own costs.

The court ordered that the father pay the mother’s costs fixed at $3,300. It considered it appropriate that the payment be made in three equal instalments over a six-monthly period, as the father had sought a progressive payment. The court took into account the relevant considerations and the fact that the mother’s unilateral relocation and the father’s failure to disclose the test results were distinct issues. The court did not consider it relevant that the mother had caused the father to incur costs arising from interim applications. The court concluded that the father’s failure to disclose the test results justified the costs order.

The court made orders that the father pay the mother’s costs fixed at $3,300, to be made by three equal payments of $1,100 on 1 January 2025, 1 March 2025 and 1 May 2025. The form of the order was subject to the entry in the Court’s records, and the Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors, or to record a variation to the order.

Orders

Orders of the court

DGC 1682 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS HEIKKI

Applicant

AND:

MR HEIKKI

Respondent

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

5 DECEMBER 2024

THE COURT ORDERS THAT:

1. The father pay the mothers costs fixed at $3,300.

2. The payment referred to in paragraph 1 hereof, be made by three equal payments of $1,100 on 1 January 2025, 1 March 2025 and 1 May 2025.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

On 8 November 2024 the father’s lawyers emailed to my Chambers a copy of his costs submissions.Background The parties commenced a relationship in 2010 and separated in March 2021. They are the parents to a nine-year-old son (“the child”). Following the breakdown of the relationship, the mother filed an Initiating Application on 31 May 2022, seeking a property settlement. On 16 August 2022 the father filed a Response, which also sought parenting orders. During the course of the proceedings, there were various interim applications. Protective concerns about the father’s parenting capacity were raised by the mother and referred to in the Child Impact Report dated March 2023. Paragraphs [18]-[21] inclusive deal with the father’s excessive alcohol abuse. This was also addressed in the Family Report dated 10 July 2023. At the time of separation, both parties and the child were living in Town B and the child attended a local primary school. On 20 October 2022, interim orders were made by consent for the child to live with the mother and spend time with the father. There were two Applications in a Proceeding filed by the father, the first being in April 2023 subsequent to the mother seeking an intervention order against him, and the second in January 2024, after the mother and child unilaterally relocated to Town C. Further orders were made on 22 May 2024, including the removal of supervision of the father’s overnight time with the child, because the father provided satisfactory hair follicle test results. The test results were for the periods of March 2023 – August 2023, and October 2023 – March 2024. The trial was initially fixed for 22 April 2024, but was unable to commence on that date. Thereafter the parties attended a dispute resolution conference on 23 and 26 August 2024 with a Senior Judicial Registrar, but were unable to reach agreement. The trial was listed for 14 October 2023, when the father produced the results of a further hair follicle test, which disclosed his excessive alcohol consumption. On that day, the parties reached agreement and final parenting orders were made by consent.LEGAL PRINCIPLES Parties to proceedings under the Family Law Act 1975 (Cth) (“the Act”) generally bear his or her own costs (s 117(1)), although if there are circumstances which justify doing so (s 117(2)), a court may make a costs order. In considering whether to make a costs order, the Court must have regard to certain mandated factors (s 117(2A)). In Massalski & Riley (No. 2) [2021] FamCAFC 152 at [8], the Full Court said, an order for costs:…falls to be determined within s 117 of the Family Law Act 1975 (Cth) (“the Act”). Section 117(1) provides that each party to a proceedings under the Act should bear his or her own costs unless the court is of the opinion that there are circumstances that justify making a costs order (s 117(2)). Section 117(2A) sets out matters to which the court should have regard to in determining whether there are circumstances which justify an order for costs, and if so, what, if any, order should be made. As well as the matters listed in s 117(2A), s 117(2A)(g) enables the court to take into account such other matters that are relevant.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The fact that the mother unilaterally relocated and caused the father to incur costs arising from interim applications, has no relevance to the father’s failure to disclose the test results in a timely manner and thereby avoid the necessity to brief counsel for the trial and incur substantial costs. It seems to be an attempt to conflate the two distinct issues. CONCLUSION Having weighed and balanced the relevant considerations, I am satisfied there are circumstances warranting departure from the usual principle that each party bear his or her own costs, and that the father should pay the mother’s costs fixed at $3,300. Because the father has sought a progressive payment, I consider it appropriate that the payment be made in three equal instalments over a six-monthly period. I will make orders accordingly.

Ratio Decidendi

Legal Principle Established

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