HIKMAT & JARMAIN

[2020] FamCA 19

FAMILY COURT OF AUSTRALIA

HIKMAT & JARMAIN [2020] FamCA 19

FAMILY LAW – COSTS – Between parties - section 117 (2A) factors – application for enforcement of final parenting orders made by consent – where the applicant seeks party party costs due to the respondent’s failure to comply with final orders – where the proceedings only commenced due to the respondent’s failure to not accept the applicants offers of settlement before the issuance of the application –
 where the respondent is ordered to pay costs on a party and party basis in a fixed sum.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 19.18

APPLICANT: Ms Hikmat

RESPONDENT: Mr Jarmain

FILE NUMBER: MLC 3873 of 2017

DATE DELIVERED: 17 January 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: Written Submissions

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Kennedy Partners

THE RESPONDENT: In Person

Orders

IT IS ORDERED THAT

1. By 4pm on 17 February 2020 the respondent pay the applicant’s costs fixed in the sum of $9,251.

2. All extant applications be otherwise dismissed and the matter removed from the list of cases awaiting hearing.

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 Hikmat & Jarmain 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 MELBOURNE

FILE NUMBER: MLC 3873 of 2017

Ms Hikmat

Applicant

And

Mr Jarmain

Respondent

REASONS FOR JUDGMENT

1. The applicant mother is seeking an order that the father pay the costs of and incidental to her Application in a Case filed 8 August 2019 on a party and party basis, fixed in the sum of $9,251. The respondent father opposes the mother’s application for costs.

Background

1. On 5 April 2019, Justice Williams made final parenting orders by consent (“final orders”). Both parties were legally represented when the orders were made.

2. On 8 August 2019, the mother filed an Application in a Case seeking orders by way of enforcement of the final parenting orders, in particular paragraph 9 of those orders, which required the father to execute all the documents required to change the child’s name by deleting the name C and to apply for an Australian passport for the child. On 2 October 2019, I made orders dismissing the wife’s Application in a Case and the father’s Response to an Application in a Case and made orders with respect to the parties filing submissions with respect to any application for costs.

3. As referred to in my reasons for judgment delivered on 2 October 2019 (“my reasons for judgment”), the matter was first set down for hearing in the Judicial Duty List on 13 August 2019, on that date the matter was adjourned for further hearing in the Judicial Duty List on 11 September 2019. The father was ordered to file any answering material by 4.00 pm on 27 August 2019. On 6 September 2019 he filed his Response to an Application in a Case and an Affidavit in support of that Response and by way of reply to the mother’s Affidavit. Significantly as referred to in my reasons for judgment the father was seeking to vary the final parenting orders.

4. Between the first hearing on 13 August 2019 and the second hearing before me on 11 September 2019, the parties resolved the issue with respect to changing the child’s name and during the hearing before me the father signed the passport application for the child. Although this left at least from the mother’s point of view only the question of costs, the father continued to agitate for the orders he sought in his Response to an Application in a Case. I ultimately found that there was no changed circumstance that would warrant the Court entertaining an application to vary final parenting orders made less than six months earlier and I dismissed the mother’s Application in a Case and the father’s Response to that application.

Legal Principles

1. The general rule in proceedings in this Court is that the parties to the proceedings each bear their own costs of those proceedings. However s117(2) of the Family Law Act 1975 (Cth) (“the Act”) provides that if the court is of the opinion that there are circumstances that justify it doing so subject to subsections (2A), (4),(4A), (5) and (6), it may make such orders for costs as it considers just. Subsection (2A) set out the matters the court must have regard to when considering what if any order it should make. They include the following matters:

   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, inspections, 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 weiting 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.

Financial Circumstances of Each of the Parties

1. I accept the mother’s submission that the parties’ respective financial circumstances do not militate against and order for costs being made.

2. Although the father submitted that the mother has assets in excess of $1.2 million and earns over $200,000 per annum, he also concedes as submitted by the mother that he received $700,000 by way of property settlement and earns $100,000 per annum. The fact that the husband spent a significant part of that $700,000 on legal fees would also not preclude an order being made for costs in the mother’s favour. It is also the case as submitted by the mother that she bears a greater proportion of the financial responsibility for the child, in circumstances where the child spends 12 out of each 14 nights in her care. Although the father conceded that there are arrears of child support, he asserted that the child support had been incorrectly assessed. I cannot make any findings in relation to this issue.

Legal Aid

1. Neither party in this case is in receipt of legal aid.

The conduct of the Parties to the Proceedings

1. I accept as submitted by the mother that as a result of the father’s application for an adjournment, she incurred the additional cost of a second day of hearing.  Although it is the father’s case that the adjournment of the first hearing was occasioned by him not having been given enough time to file answering material, that submission is not particularly persuasive in circumstances where the mother had plans to travel overseas in October/November and in those circumstances sought an urgent hearing. The issues were limited and the father ultimately complied with the orders albeit he only signed the passport application during the course of the second hearing.  It is also the case that the father’s Response and his answering Affidavit were primarily focused on a variation of the final orders, rather than his failure to comply with those orders. In circumstances where I found that there were no changed circumstances that warranted the Court entertaining an application to vary the final parenting orders.

2. It is also the case as submitted by the mother that notwithstanding the orders made on 13 August 2019, the husband did not file his answering material until 6 September 2019. I accept as submitted by the mother that this occasioned additional costs both because of the late filing but also because the mother was required to respond to the father’s application to vary the final orders. I also accept the mother’s submission as to the length of the father’s material and its limited relevance and the fact that the father was not represented does not in my view alter the impact of that upon the mother and her case in those circumstances. 

Failure to Comply

1. I am satisfied that the mother’s application was necessitated by the father’s failure to comply with the final orders. The father’s submission was in summary that although he had failed to comply with the orders, he did so out of frustration at what he asserted was the mother’s refusal to allow the child to spend time with him in accordance with the orders. Even if the mother has not complied with the orders, there are other remedies the father could have availed himself of and he did not do so.

Wholly Unsuccessful

1. The parties had resolved one of the outstanding issues between the first and second hearing and ultimately the father signed the passport application during the course of the second hearing. Although in these circumstances he cannot be said to be completely unsuccessful, his concessions are relevant for the purposes of the determination I must make. The father was certainly wholly unsuccessful in respect of the orders he sought in his Response.

Settlement Offers

1. The mother relied upon two letters sent to the father by her solicitor. The first of those letters highlighted the urgency and in those circumstances the need for her to issue proceedings in the event that the father did not comply with the orders and sign the child’s Australian passport application. That letter pointed out that the mother would be seeking costs in the event that she was required to issue proceedings. The father could have been under no illusion as to the likelihood of an application for costs, as a result of an application occasioned by his ongoing failure to comply. The second letter was written shortly prior to the second hearing, in circumstances where as previously referred to the father had failed to comply with the orders for the filing of answering material. In that letter, the mother advised that notwithstanding she had incurred costs of approximately $6,000, if the father signed the passport application, she would accept a payment of $3,000 and the hearing on 11 September 2019 could be vacated. Although the father referred in his submissions to the mother’s solicitor refusing negotiate with him at the hearing on 11 September 2019, he did not dispute as submitted by the mother that he had ignored her offer of settlement. There is some force in these circumstances in the mother’s submission that “the proceedings only commenced as a consequence of the respondent’s decision not to accept te applicant’s offers before the issuance of proceedings.”

2. I am satisfied that there are circumstances in this case that justify the Court departing from the general rule that the parties should each bear their own costs.

Quantum of Costs

1. Although the mother submitted that there were circumstances in this case justifying an order for costs on an indemnity basis, she ultimately sought an order for costs on a party and party basis. In these circumstances it is not necessary to determine whether or not indemnity costs are justified. The mother’s costs were set out in the schedule annexed to the submissions filed on her behalf. Rule 19.18(1) of the Family Law Rules 2004 (“the Rules”) provides that the court may make an order that a party is entitled to costs of a specific amount, as assessed on a particular basis, to be calculated in accordance with the method stated in the order or as assessed. Rule 19.18(3) sets out various matters the court may consider. I am satisfied that the costs sought by the mother in this case which have been calculated in accordance with Schedule 3 of the Rules and are reasonable in all of the circumstances of this case.

2. The father’s submissions, although quite lengthy, did not address the the quantum of the costs.

3. These were enforcement proceedings and there are otherwise no extant proceedings. In all of the circumstances, I am satisfied that the appropriate course is to order costs of a specific amount, avoiding the necessity for or even the possibility of further proceedings with respect to the quantum of costs and I propose to accede to the mother’ application that the father pay her costs fixed in the sum of $9,251.  

4. Neither party made any submissions with respect to a time for payment of those costs. It is reasonable to infer that it is the mother’s case that those costs be paid forthwith, however I propose to allow the father one month to pay the costs.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 17 January 2020.

Associate: 

Date:  17 January 2020