Hopkins & Elliott (No 4)
[2023] FedCFamC1F 532
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hopkins & Elliott (No 4) [2023] FedCFamC1F 532
File number(s): SYC 5636 of 2021 Judgment of: CAMPTON J Date of judgment: 29 June 2023 Catchwords: FAMILY LAW – COSTS – Costs of two unsuccessful applications for review of the wife and a successful application for enforcement of the husband – Costs ordered in a fixed sum. Legislation: Family Law Act1975 (Cth) ss 79, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Atkins & Hunt and Ors [2017] FamCAFC 131
Hopkins & Elliott (No 3) [2023] FedCFamC1F 531
Division: Division 1 First Instance Number of paragraphs: 12 Date of hearing: 29 June 2023 Place: Sydney Counsel for the Applicant: Ms Rusiti Solicitor for the Applicant: Parker Law Solicitor for the Applicant: Mr Neumann, Eddy Neumann Lawyers ORDERS
SYC 5636 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HOPKINS
Applicant
AND: MS ELLIOTT
Respondent
order made by:
CAMPTON J
DATE OF ORDER:
29 JUNE 2023
THE COURT ORDERS THAT:
1.The wife pay the husband’s costs of and incidental to his Application Enforcement filed 19 April 2023 as amended 16 May 2023, of and incidental to the wife’s Applications for Review as filed 6 June 2023 and amended 22 June 2023 and filed 19 June 2023, in the sum of $5,554. Such costs are to be paid within 14 days of compromise or determination of the wife’s s 79 claim.
2.The costs paid to the husband pursuant to [the above order] be secured with priority on the wife’s s 79 verdict.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Hopkins & Elliott (No 4) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
These reasons determine the husband’s application for costs made subsequent to my determination today of two Applications for Review of the wife from orders made by a judicial registrar enforcing an order made by a judge of this Court, and of his Application for Enforcement of the primary order.
These reasons assume familiarity with the reasons delivered earlier today determining each of those applications (see Hopkins & Elliott (No 3) [2023] FedCFamC1F 531 (“the earlier reasons”)).
The orders as to costs sought by the husband are that the wife pay him a sum of $5,554 within 14 days, and in the event she fails to do so, that her solicitor be responsible for and pay his costs.
The wife opposes the husband’s application for costs. It is her position that any costs be reserved.
The relevant principles as to costs are well settled and are set out in detail in the Full Court decision of Atkins & Hunt and Ors [2017] FamCAFC 131. While the starting position established by s 117(1) of the Family Law Act1975 (Cth) (“the Act”) is that each party pays their own costs, s 117(2) allows the Court to make such orders as to costs as it considers just if there are circumstances which justify it doing so. In considering what order for costs, if any, should be made, the Court is required to have regard to the matters set out in s 117(2A) of the Act insofar as they are relevant.
In this matter, the relevant circumstances are identified by the parties to be their respective financial circumstances, the necessity of the husband bringing the enforcement proceedings subsequent to a failure of the wife to comply with a primary order of this Court, and the fact that the wife has been unsuccessful at least in her Applications for Review as identified in the earlier reasons.
It is well settled that no one factor has priority under s 117(2A), nor must more than one factor be established. Any one factor may be sufficient. There may be dominant or outstanding features that makes a costs order appropriate.
In this matter, I am of the view that it would not be appropriate that costs be reserved, having regard to the history of the litigation as outlined in the earlier reasons.
I find that a costs discretion is justified and ought to be exercised in favour of the husband for the following reasons:
(a)The primary order enforced by the orders under review of the judicial registrar was made by Austin J on 17 March 2023. The wife exercised her rights at law to seek leave to appeal and to appeal itself from that order. Her appeal is yet to be determined. That said, Austin J refused the wife’s application for a stay of the order. The wife has not made a further application to Austin J as the primary judge for a stay. Her opposition to the husband’s Application for Enforcement was, in reality, attempting to obtain a stay of Austin J’s primary order by an alternative inappropriate method that may be considered to be an abuse of process;
(b)The husband’s application was for enforcement. This engages directly with s 117(2A)(d) of the Act. To my mind, this factor alone would be sufficient to ground a costs discretion; and
(c)The wife has been wholly unsuccessful in the Applications for Review. I am mindful that this is not affirming that the wife has been wholly unsuccessful in the proceeding, but is a factor identified as relevant pursuant to s 117(2A)(g) of the Act.
The quantum of costs sought at $5,554 is not dissimilar to what the husband would achieve by way of an assessment, having regard to the schedule of costs contained within the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). I am mindful of the litigation history and am of the find that is just and appropriate to fix costs in the sum sought by the husband of $5,554.
I accept that the wife’s financial circumstances, on the limited available evidence, would not permit her to pay an order for costs within 14 days. I am not satisfied that the husband has established a foundation to require a consideration that the wife’s solicitor pay the costs order.
In the exercise of my discretion, I consider it just and order that the payment of costs by the wife is to be made within 14 days of the determination or compromise of the wife’s substantive application for property adjustment and shall be secured upon any such verdict in priority to all other claims.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 29 June 2023
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