Hong and Wai (No.2)
[2015] FCCA 3484
•23 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HONG & WAI (No.2) | [2015] FCCA 3484 |
| Catchwords: COSTS – Mother seeks indemnity costs after bringing urgent parenting proceedings – father abducted son from China to Australia – father files submissions in response which are in part inappropriate. |
| Legislation: Family Law Act 1975, s.117 Federal Circuit Court Rules 2001 (Cth), Schedule 1 |
| Hong & Wai [2015] FCCA 3448 Prantage & Prantage [2013] FamCAFC 105 Medlon and Medlon (No. 6) (Indemnity Costs) [2015] FamCAFC 157 Medlon and Medlon (No. 7) [2015] FamCAFC 246 The Marriage of Kohan (1992) 16 Fam LR 245 |
| Applicant: | MS HONG |
| Respondent: | MR WAI |
| File Number: | MLC 11287 of 2015 |
| Judgment of: | Judge Harland |
| Hearing date: | 8 December 2015 |
| Date of Last Submission: | 22 December 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 23 December 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Strum SC appearing with Ms Renwick |
| Solicitors for the Applicant: | Nicholes Family Lawyers |
| Counsel for the Respondent: | Mr Davis |
| Solicitors for the Respondent: | Blackwood Family Lawyers |
ORDERS
That the respondent pay the applicant’s costs in the sum of $14,337.20 within 90 days.
IT IS NOTED that publication of this judgment under the pseudonym Hong & Wai (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 11287 of 2015
| MS HONG |
Applicant
And
| MR WAI |
Respondent
REASONS FOR JUDGMENT
The mother seeks an order for costs in her favour on an indemnity basis as a result of the proceedings she had to initiate to be able to return to China with the child of the relationship. The circumstances of that application are set out in my first judgment Hong & Wai [2015] FCCA 3448. At the end of that hearing I made directions for the filing of written submissions with respect to costs.
The amount she seeks on an indemnity basis is $21,723.
The mother seeks indemnity costs on several grounds including:
a)The father’s conduct in abducting the child to Australia;
b)The father’s conduct in lying to the mother and her parents, putting arrangements in place so he could obtain a passport and abducting the child to Australia without the applicant’s consent or knowledge;
c)The father’s disregard for the child’s best interests;
d)The father’s actions required the mother to litigate in a foreign country and to have the child and his passport returned to her;
e)Mother incurred additional costs which she cannot recover including flights and accommodation.
The mother’s written submissions annex the costs agreement she signed and set out the costs she incurred both in accordance with the costs agreement and the Federal Circuit Court scale of costs. The mother’s current counsel calculated that the costs in accordance with the scale amount to $7,168.60.
The mother’s counsel also refers to the fact that the proceedings were urgent and complex, involving international issues and that in those circumstances it was appropriate to engage senior counsel. The costs also include the cost of a translator and that would have increased the complexity of obtaining instructions in drafting her affidavit. I accept the submission given the complexity of the issues and urgency which the matter needed to be brought on that it was reasonable to engage senior counsel. It is the usual practice for senior counsel to require junior counsel to assist. Interestingly, the father says that the case law is well settled, that the background facts were largely not in dispute and the outcome was not unpredictable. If the father knew that to be the case, then it was open to him to consent the orders sought by the mother. This type of application is not commonly brought. I do not accept the father’s submissions in this regard.
The mother’s submissions also refer to the relevant authorities which I will address below.
The father filed submissions in response. His lawyers emailed a notice of address for service signed by their client. They were unable to file via the Commonwealth Courts Portal. They did not file a notice of ceasing to act which may have been because of the short time frame. The father emailed his submissions to Chambers directly. This is significant because in parts his submissions are inappropriate and scandalous.
The father uses emotive language for much of his submissions. The father refers to Prantage & Prantage [2013] FamCAFC 105. It appears he had some assistance preparing his submissions but most of his submissions refer to his affidavit evidence. As pointed out in my primary decision the matter proceeded in a summary manner on the papers with detailed oral submissions. The evidence be refers to in detail in his submissions is untested.
Under the section entitled “Respondent Father’s Instructions” the father is highly critical of the mother’s actions over the years. It is important to note that the father has never instituted proceedings in any court with respect to parenting issues in the past 10 years. It is also his wrongful actions that caused the mother to have to issue these proceedings urgently. The father complains that the mother may only allow him to see the child in China. Again, if that is the case, and this is speculation, it is understandable that the mother may be concerned that the father would take the same unilateral actions that he undertook previously. It is clear from the tone of his submissions that he takes no responsibility for his actions which have put him in this position.
In the last part of the father’s submissions, the father purports to write directly to me. He complains that the order I made has caused him to lose his son “almost certainly forever.” The father did not appeal my order. It is utterly inappropriate for a party to communicate to the Court in this manner. I place no weight on those parts of his submissions which do not address the factors I have to consider pursuant to s.117 of the Family Law Act 1975 (Cth).
In order for the Court to make a costs order in favour of the parties, there must be justifying circumstances as set out in section 117(2A) of the Family Law Act. I will address each of these matters in turn.
(a) The financial circumstances of each of the parties to the proceedings
The mother submits that whilst both parties own real estate she says her income is approximately $32,608 AUD a year. She lives with her parents.
The father is married. He says his wife is not working. Their child is currently living in China with his parents. The mother says that the father earns $110,000 AUD a year. The father does not deny this but says that the mother has lied about her financial position and earns much greater than he does.
These statements are untested but what seems apparent is that the father has a capacity to pay costs. Even if the father was impecuniosity that is not a reason not to order costs. I refer to the recent decisions of Strickland J in Medlon and Medlon (No. 6) (Indemnity Costs) [2015] FamCAFC 157 and Medlon and Meldon (No. 7) [2015] FamCAFC 246 in this regard. In the second judgment he stated at paragraph 33:
… even if the wife is not able to meet an order for costs, there is clear Full Court authority that impecuniosity is not a bar to a costs order being made, and particularly where there are circumstances which otherwise justify an order for costs (e.g. see D & D (Costs) (No 2) (2010) FLC 93-435), as is the case here.
(b) Whether any party to the proceedings is in receipt of assistance by way of legal aid
Neither party is in receipt of legal aid.
(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, inspection, directions to answer questions, admissions of facts, production of documents and similar matters
In this case, as I have stated elsewhere, the mother had to bring urgent proceedings because of the father’s conduct in bringing their son to Australia without the mother’s knowledge and consent. As China is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, she was not able to use that mechanism which would have been at a considerably less expense for her. I find that this is a relevant factor which favours the mother’s costs application. It is also of some significance that the father did not bring proceedings and has never brought proceedings previously despite his complaints about the mother.
(d) Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court
This factor is not applicable.
(e) Whether any party to the proceedings has been wholly unsuccessful in the proceedings
The father has been wholly unsuccessful in these proceedings.
(f) Whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer
That factor is not relevant.
(g) Such other matters as the court considers relevant.
It is important to note that in family law matters s.117(1) of the Family Law Act provides that the usual rule is that each party shall be responsible for his or her own costs.
To make a costs order at all is a departure from the ordinary rule. Schedule 1 of the Federal Circuit Court Rules2001 (Cth) sets out a scale of costs to be applied in family law proceedings and in general Federal Law proceedings. It is an events based costs scale. Part 21 of the Rules deals with costs and disbursements. If the court decides that it is appropriate to order costs then in usual cases the scale of costs found at schedule 1 of the Federal Circuit Court Rules should apply.
In The Marriage of Kohan (1992) 16 Fam LR 245 the Full Court of the Family Court discussed the issue of indemnity costs in the context of family law proceedings. The Full court observed that the judge should understand that an indemnity costs order is such a great departure that it is necessary to know the impact on the financial position of each of the parties and to know the terms of the agreement which exceed the costs scale. It is necessary to know the extent of the departure from the scale and its likely impact on the parties' financial circumstances. By fixing a scale that must be understood that the scale contains the normal rates of charges. Indemnity costs are the exception in this and other jurisdictions.
I also note the comments of the Full Court in Prantage & Prantage which both parties refer to in their submissions. The Full Court refers to the need to know how the amount sought for indemnity costs have been arrived at. The mother has provided a copy of the costs agreement she signed and a break down of the fees she has incurred. There was a prior court appearance before Judge Curtain where the mother succeeded in obtaining an order placing the child on the Watch List. This was an appropriate order for her to seek in the circumstances. Appropriately, junior counsel appeared on that occasion.
I accept that it is unusual to depart from the usual rule that each party pay their own costs. It is even more unusual to depart from this rule in parenting matters. However, I am comfortably satisfied that it is appropriate in the circumstances of this case to depart from that rule.
When a Court does determine that an order for costs should be made it is usually appropriate to apply the scale. In this case, I am satisfied that the scale does not adequately deal with the mother’s costs. The mother had to engage lawyers very quickly, in a country and legal system she is not familiar with. Her lawyers had to engage interpreters which would have increased her costs and she also had other expenses including flights, accommodation and food.
The mother had senior counsel, junior counsel and instructing solicitors appear at the interlocutory hearing. Whilst I understand why this was done it has added to the costs and I am not satisfied that the father should pay all of those costs. The father has also incurred his own legal costs and certainly his legal team acted appropriately and conducted the matter efficiently, as did the mother’s legal team.
Weighing up all of the circumstances, I find it is appropriate that the father pay the mother’s costs in the sum of $14,337.20 which is double the scale amount. Particularly noting the time of year, and noting that neither party made submissions as to the timeframe for the payment of costs, I will give the father 90 days to pay.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 23 December 2015
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