HEWSON & HEWSON
[2020] FCCA 2886
•23 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HEWSON & HEWSON | [2020] FCCA 2886 |
| Catchwords: FAMILY LAW – COSTS – Application for costs on an indemnity basis – applicant self-represented. |
| Legislation: Family Law Act 1975 (Cth), ss.117 Federal Circuit Court Rules 2001 (Cth), r. 21.02 |
| Cases cited: Chocrane & Chocrane [2012] FMCAfam 984 Colgate & Palmolive Co and Anor v Cussons Pty Ltd (1993) 46 FCR 225 Collins & Collins (1985) FLC 91-603 Kohan & Kohan (1993) FLC 92-340 Latoudis v Casey (1990) 170 CLR 534 Penfold & Penfold (1980) 144 CLR 311 Sala & Habner (No.2) [2018] FCCA 2738 Wrensted & Eades [2016] FamCAFC 46 |
| Applicant: | MR HEWSON |
| Respondent: | MS HEWSON |
| File Number: | PAC 2084 of 2020 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 15 September 2020 |
| Date of Last Submission: | 21 September 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 23 October 2020 |
REPRESENTATION
| Appearing for the Applicant: | In person |
| Appearing for the Respondent: | No appearance |
ORDERS
That within six months of the date of these orders, the respondent is to pay the applicant’s costs in the amount of $2,802.
IT IS NOTED that publication of this judgment under the pseudonym Hewson & Hewson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2084 of 2020
| MR HEWSON |
Applicant
And
| MS HEWSON |
Respondent
REASONS FOR JUDGMENT
Introduction and Relevant Facts
The parties to these proceedings are the applicant father Mr Hewson and the respondent mother Ms Hewson.
There is one child of the relationship, namely, X born 2018. X lives with the applicant pursuant to final orders of this Court made on 15 September 2020.
On 15 September 2020 the applicant pressed the Court to make an order for costs as sought by him in paragraph 8 of his Amended Initiating Application filed 16 August 2020 being, “that the mother, Ms Hewson pay to the Father, Mr Hewson all associated costs incurred in this court matter”.
The Court directed the applicant to file an affidavit in support of his costs application within 14 days together with submissions as to why a costs order should be made as sought by him and that such application would be dealt with by the Court “on the papers”.
On 21 September 2020 the applicant filed an Affidavit as directed by the Court in support of his application for costs, together with annexures to his affidavit which was accepted for filing on 24 September 2020.
These are the Court’s Reasons for Judgment with respect to the applicant’s application for costs.
Summary of Costs Sought
In the applicant father’ affidavit filed 21 September 2020 he summarises the costs sought by him as follows:
a)$5,000 in payment to his legal representatives for legal fees;
b)$470 to the Court to commence proceedings;
c)$5,000 further payment to his legal representatives for legal fees;
d)$3,919.13 in owing legal fees to his legal representatives; and
e)$176.76 for the cost of serving the respondent with the initiating process.
The total amount of costs the applicant is seeking from the respondent mother is $14,565.89. The applicant in effect, seeks an order for costs on an indemnity basis.
The applicant submits that an order for costs should be made as sought by him for the following reasons:
a)The respondent failed to attend mediation resulting in the applicant’s necessity to commence court proceedings;
b)The respondent’s failure to file documents as ordered by the Court on 29 July 2020; and.
c)The respondent’s failure to attend and participate in Court proceedings.
In addition the applicant submits that he has not received any child support payments from the respondent as assessed by the Child Support Agency.
The Law
The principles in respect of costs orders in family law proceedings are well known. The starting position with respect to costs, as set out in s117 of the Act is that, subject to subsection 117(2), each party to proceedings under the Act shall bear his or her own costs.
The discretion to award costs is a broad discretion.[1]
[1] see for example Collins & Collins (1985) FLC 91-603.
The High Court held in Penfold & Penfold[2] that it is necessary for the Court to make a finding of justifying circumstances as an essential preliminary to the making of an order for costs. The Court is not required to specify the circumstances which justify the making of such an order.
[2] (1980) 144 CLR 311
As long as there is an essential preliminary finding that there are justifying circumstances to make a costs order, there is no additional or special onus which the Applicant needs to establish for an order for costs. It is not the law that a costs order can only be made in what has been described as a ‘clear case’. [3]
[3] See in general the comments made by the Full Court in Wrensted & Eades [2016] FamCAFC 46 and in particular where the Full Court approved the comments of the judge below at [103]
In Latoudis v Casey[4] the High Court stated as follows:
… in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principle. If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of an unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings.”[5]
[4] (1990) 170 CLR 534
[5] Referred to in the context of family law proceedings by Judge Kemp in Chocrane & Chocrane [2012] FMCAfam 984 at [17]
In determining what order, if any, should be made under s117(2) the Court must have regard to the prescriptive but non-exhaustive list of considerations in sub-section (2A).
Rule 21.02(2) Federal Circuit Court Rules2001 provides that in making an order for costs the Court may set the amount of costs; or set the method by which the costs are to be calculated; or refer the costs for taxation.
The Court has the power to order costs on an indemnity basis.[6] The principles in respect of indemnity costs orders are also well known[7], and in essence may be summarised as follows:
a. the application of the ordinary well-settled rule of costs being ordered on a party and party basis will usually result in the amount received by the successful party falling short of a complete indemnity;
b. some special or unusual feature of the case must, in the circumstances, warrant departure from the well-settled practice of awarding costs on a party and party basis including an imprudent refusal of an offer of compromise; and
c. even if facts exist to justify the making of an indemnity costs order, such an order need not necessarily be made because costs are always in the discretion of the court. [8]
[6] See for example: Kohan & Kohan (1993) FLC 92-340; Latoudis v Casey (1990) 170 CLR 534.
[7] See generally Sheppard J in Colgate Palmolive Co and Anor v Cussons Pty Ltd (1993) 46 FCR 225
[8] Sala & Habner (No. 2) [2018] FCCA 2738 at [3]
The Court finds, for reasons outlined below, that there are circumstances justifying the making of a costs order, but not an order for costs on an indemnity basis.
Determination as to Costs
The applicant is employed as a mechanic and he is the full-time carer for the parties’ only child, who was the subject of the substantive parenting proceedings. He does not receive any child support from the respondent. The parties’ financial circumstances are otherwise not the subject of any evidence.
It does not appear that either party was in receipt of assistance by way of legal aid. Certainly, the applicant was a private paying client prior to and at the commencement of the proceedings.
The applicant’s legal representatives ceased acting for him on 29 July 2020, after the proceedings commenced but before the first return date of the substantive application. On all occasions the matter was before the Court the applicant appeared as a self-represented litigant.
The applicant does not annex to his affidavit any of the invoices which were issued to him, nor the costs agreement which he says he signed with his legal representatives. He does however depose as to the amount of costs he has incurred, and he annexes to his affidavit the statements issued to him by his former legal representatives. It is inferred that all of the costs which were paid by the applicant to his legal representatives and which are the subject of this costs application, are costs which are associated with these proceedings.
The applicant filed the Initiating Application seeking final and interim orders with respect to the child on 6 May 2020. Together with the application, the applicant also filed a s60I certificate, which indicated that he had attempted Family Dispute Resolution in accordance with his legal obligations, but that the respondent refused or failed to participate. The certificate was issued on 20 November 2019.
On 29 July 2020, being the first return date of the applicant’s Initiating Application and the Court being satisfied that the respondent was served with the initiating documents on 19 May 2020, the Court made interim orders for the child to live with the applicant and to spend time and communicate with the respondent as agreed between the parents in writing. Further, the Court directed the respondent to file and serve a Response, Affidavit and Notice of Risk by 4pm on 28 August 2020. The matter was then listed for further directions on 15 September 2020.
The respondent did not comply with the Court’s filing directions made on 29 July 2020.
The matter proceeded on an undefended basis on 15 September 2020 as against the respondent due to her failure to participate in the proceedings.[9]
[9] The applicant’s primary affidavit sets out the relevant evidence as to how the child came to be in the applicant’s primary care and the lack of engagement by the respondent in the child’s parenting from November 2019.
On 15 September 2020, the Court made orders for the child to live with the applicant, for the applicant to have sole parental responsibility for the child and for the child to spend time with and communicate with the respondent as agreed to between the parties in writing. The applicant was wholly successful in the proceedings.
The proceedings were necessitated not only by the respondent’s failure to engage in Family Dispute Resolution but also her failure to engage in the proceedings, to comply with the Court’s rules and the Court’s orders.
The applicant’s primary affidavit sets out the attempts at settlement of the parenting dispute, however, there is no evidence of any formal written offer of settlement.
The parties’ only child is a vulnerable young child and it was entirely appropriate in the circumstances set out in the applicant’s primary affidavit, for him to apply to the Court for parenting orders. It is entirely unclear why the respondent has not participated in the proceedings.
The circumstances justify the making of a costs order. However, there is nothing unusual or special about the circumstances, which would justify the making of an order on an indemnity costs basis. Indeed, it is the amount of costs which the applicant appears to have been charged in respect of these proceedings that seem disproportionate to the circumstances.
It is appropriate that costs be ordered in accordance with item 2 of Schedule 1 of the Federal Circuit Court Rules 2001, in the amount of $2,802 being costs for initiating an application which includes interim orders, up to the completion for the first court date.
It is not appropriate, given that the applicant was not legally represented after the proceedings commenced that he be awarded any costs for the hearing fee on either the first court date or any subsequent court date. Apart from the documents filed at the time of the Initiating Application there do not appear to be any other documents filed by the applicant’s legal representatives on his behalf.
The respondent will be given a period of six months to pay the costs, and orders are made accordingly.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Associate:
Date: 23 October 2020
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