Hopkirk and Hopkirk (Costs)
[2010] FamCAFC 225
•28 October 2010
FAMILY COURT OF AUSTRALIA
| HOPKIRK & HOPKIRK (COSTS) | [2010] FamCAFC 225 |
| FAMILY LAW - COSTS – Application for costs certificates – Where both the Applicant and the Respondent were self represented – Where the appeal succeeded on a question of law – Where the prescribed maximum amount payable in family law matters is $4000 according to the Federal Proceedings (Costs) Regulations 1991 (Cth) – Where there is a significant disparity between the costs incurred by each party – Where if granted a certificate the Respondent would be fully indemnified – Where a granting of a costs certificate to the Respondent would be unfair to the Appellant – Where the court is not satisfied that it has the power to specify an amount that the Attorney-General may authorise or make a formulaic order – Costs certificate granted to the Appellant but not to the Respondent |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) Federal Proceedings (Cost) Act 1981 (Cth) Federal Proceedings (Costs) Regulations 1991, Statutory Rules 1991 No. 267 |
| CachiavHanes (1994) 179 CLR 403 Casley & Casley [2010] FamCAFC 189 Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 Oscar & Traynor [2008] FamCAFC 158 Penfold v Penfold (1980) 144 CLR 311 |
| APPELLANT: | Ms Hopkirk |
| RESPONDENT: | Mr Hopkirk |
| FILE NUMBER: | MLC | 7678 | of | 2008 |
| APPEAL NUMBER: | SA | 2 | of | 2010 |
| DATE DELIVERED: | 28 October 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | O'Ryan J |
| HEARING DATE: | 27 October 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 3 December 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 1162 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person |
Orders
The Appellant Mother is granted a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Appellant in respect of the costs incurred by the Appellant in relation to the appeal determined by judgment pronounced on 17 September 2010.
The application by the Respondent Father for costs be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Hopkirk & Hopkirk (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: SA 2 of 2010
File Number: MLC 7678 of 2008
| Ms Hopkirk |
Applicant
And
| Mr Hopkirk |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Before me for hearing are applications for costs of an appeal that I determined by judgment pronounced on 17 September 2010.
The first application is by Ms Hopkirk (“the Mother”). The Mother seeks that “a Costs Certificate be issued by the Court in respect of the costs incurred by the Applicant in issuing Appeal proceedings”. The Mother is seeking a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).
The second application is by Mr Hopkirk (“the Father”). The Father seeks the following:
1. The Appellant mother [the Mother] make payment of $1789.30 to the respondent father [the Father] within 28 days of the order being made.
2. A cost certificate be orderded [sic] for the court to make payment of $1,789.30 to the respondent father [the Father] within 28 days of the order being made.
BACKGROUND
On 3 December 2009 Federal Magistrate Riley made the following orders in relation to a four year old child:
ORDERS
(1) All previous parenting orders be discharged.
ORDER BY CONSENT
(2) The mother and father have equal shared parental responsibility for [the child] born [date] 2006 (“[the child]”).
ORDERS
(3) Pursuant to section 13C(1)(a) of the Family Law Act 1975, the parents attend therapeutic family counselling to deal with their issues relating to the care of [the child], and in particular:
(a)their difficulties in communicating with each other about matters concerning [the child]; and
(b)their difficulties in cooperating with each other about matters concerning [the child].
(4) The family counselling occur at an organisation nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia.
(5) The parties attend counselling at such times as are directed by the therapeutic counsellor.
(6) Each party attend such individual counselling as the therapeutic counsellor recommends at such times and at such places as the recommended individual counsellor directs.
(7) Each parent pay for their own individual counselling and for half of the joint therapeutic counselling.
(8) Until 1 January 2012:
(a)[the child] live with her mother;
(b)[the child] spend time with her father:
(i)from 5.00pm Saturday to 6.00pm Monday each alternate week;
(ii)from 7.30am to 6.00pm Monday in the other week; and
(iii)from 7.30am Thursday to 7.30am Friday each week; or
(iv)as otherwise agreed by the parents.
(9) From 1 January 2012 until 31 December 2012:
(a)[the child] live with her mother;
(b)[the child] spend time with her father:
(i)from 3.30pm each alternate Thursday to 6.00pm the following Sunday; and
(ii)from 3.30pm each alternate Thursday to 9.00am the following Friday;
(c)[the child] spend half school holidays with each parent by agreement and, in default of agreement, from the end of school until the midpoint of the holidays with the mother in odd numbered years and with the father in even numbered years; or
(d)as otherwise agreed by the parents.
(10) From 1 January 2013:
(a)[the child] live with her mother;
(b)[the child] spend time with her father:
(i)from 3.30pm each alternate Thursday to 9.00am the following Monday; and
(ii)from 3.30pm each alternate Thursday to 9.00am the following Friday;
(c)[the child] spend half school holidays with each parent by agreement and, in default of agreement, from the end of school until the midpoint of the holidays with the mother in odd numbered years and with the father in even numbered years; or
(d)as otherwise agreed by the parents.
(11) Notwithstanding the foregoing:
(a)for the purposes of celebrating [the child]’s birthday:
(i)in 2009 and alternate years thereafter, [the child] spend from 8.00am until 6.00pm (subject to any kindergarten/school attendances) on her birthday with her mother;
(ii)in 2010 and alternate years thereafter, [the child] spend from 8.00am until 6.00pm (subject to any kindergarten/school attendances) on her birthday with her father;
(b)for the purposes of celebrating either the father’s or the mother’s birthdays, [the child] shall spend time with the parent on their birthday from 8.00am until 6.00pm (subject to any kindergarten/school attendances);
(c)for the purposes of celebrating Christmas:
(i)in 2009 and alternate years thereafter, [the child] spend from 9.00am Christmas Eve until 9.00am Christmas Day with the father and from 9.00am Christmas Day until 9.00am Boxing Day with the mother;
(ii)in 2010 and alternate years thereafter, [the child] spend from 9.00am Christmas Eve until 9.00am Christmas Day with the mother and from 9.00am Christmas Day until 9.00am Boxing Day with the father;
(d)for the purposes of celebrating Mother’s Day, [the child] spend time with the mother from 6.00pm on the Saturday preceding Mother’s Day until 6.00pm on Mother’s Day;
(e)for the purposes of celebrating Father’s Day, [the child] shall spend time with the father from 6.00pm on the Saturday preceding Father’s Day until 6.00pm on Father’s Day.
(12) Notwithstanding the foregoing:
(a)when [the child] is three years old, she may spend three holidays of five days each with each of her parents at times to be agreed and in default of agreement:
(i)with the father for five days commencing at 6.00pm on the Friday before the first Saturday that [the child] would be due to spend with her father during the Victorian school term holidays; and
(ii)with the mother for five days commencing at 6.00pm on the Monday during the Victorian school term holidays that [the child] will not be on holiday with her father; and
(b)when [the child] is four years old, she may spend three holidays of seven days each with each of her parents at times to be agreed and in default of agreement:
(i)with the father for seven days commencing at 6.00pm on the Friday before the first Saturday that [the child] would be due to spend with her father during the Victorian school term holidays; and
(ii)with the mother for seven days commencing at 6.00pm on the previous or subsequent Friday such that [the child] will be on holiday with her mother during the other week of the Victorian school term holidays.
(13) Changeover occur at [the child]’s child care or school where practicable and otherwise at the father's home unless he moves more than five kilometres from his current address when changeovers not at [the child]’s childcare or school are to occur at the mother’s home.
(14) If [the child] will not be spending a night at a parent’s home, the relevant parent notify the other in writing seven days in advance of:
(a)the address and contact details of the place where [the child] will be staying;
(b)the details of the flight or other means of transportation to the place where [the child] will be staying.
(15) If [the child] is to be away from a parent for more than seven days, the other parent is to ensure that [the child] speaks to the first parent by telephone at least once each week.
(16) The mother within seven days ensure that [the child]’s passport is delivered to the Registrar of this court who is requested to hold [the child]’s passport until further order.
(17) Until further order, the father and his servants and agents are restrained from removing or attempting to remove [the child] from the Commonwealth of Australia.
(18) Until further order, the mother and her servants and agents are restrained from removing or attempting to remove [the child] from the Commonwealth of Australia.
(19) The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders, including all things necessary to include and retain [the child]’s name on the airport watch list in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain [the child]’s name on the airport watch list until further order of the court.
(20) The father, at the request of the mother, from time to time, sign all necessary documents to enable [the child] to have a valid Australian passport.
(21) Except for the purposes of changeover in accordance with order 13 hereof, the father be restrained from knowingly being within 100 metres of the mother’s home without her prior consent in writing.
(22) The father and the mother consult each other prior to enrolling [the child] in any organised activity during the time [the child] spends with them.
(23) If a parent thereafter enrols [the child] into an organised activity, such parent provide the other parent with all contact information, confirmation of enrolment and dates and times for the activity, and ensure the other parent is fully apprised of all the activities [the child] is undertaking with each parent from time to time.
(24) Save for in emergencies, both parents continue to facilitate [the child] attending Medical One, …, for all general practitioner consultations.
(25) [The child]’s immunisation books and any other medical records remain in the possession of the mother and the mother continue to be responsible for arranging all of [the child]’s immunisations, maternal and child health check ups and any other routine medical appointments.
(26) For the purposes of this process, the mother is to arrange all such appointments and thereafter she is to promptly notify the father of the appointment details.
(27) The father is at liberty to attend the arranged appointments with the mother and [the child] should he wish to do so.
(28) In the event that [the child] requires medical care or becomes seriously ill or injured whilst in the care of either parent, such parent shall ensure the other parent is notified forthwith and facilitate the other parent communicating with [the child]’s treating health provider.
(29) Unless the parties otherwise agree, [the child] be enrolled in [T] Childcare kindergarten and she commence attending 3 year old kindergarten at the commencement of Term 1, 2010.
(30) The father and the mother be at liberty to provide a copy of these orders to the manager or principal of any childcare centre, kindergarten or school attended by [the child] from time to time.
(31) Subject to the discretion of the manger or principal, and subject to each parent being responsible for meeting any associated costs, the father and the mother be at liberty to:
(a)receive copies of all childcare/kindergarten/school reports, notices, newsletters and like correspondence customarily provided to parents; and
(b)attend all childcare/kindergarten/school concerts, functions, parent teacher interviews and any other events customarily attended by parents.
(32) Until such time as the parents otherwise agree in writing, the parents are to continue using a communication book for the purposes of communicating brief factual messages in respect of the issues concerning [the child]’s care, welfare and development.
(33) The communication book is to be passed over with [the child] at changeover and the communication is to include, but not be limited to, details of the following:
(a)the sleep that [the child] had that day;
(b)the meals [the child] has had and when they last occurred;
(c)any special child activity [the child] has undertaken during her time with each parent;
(d)details of any symptoms if a parent suspects [the child] may be unwell; and
(e)toilet training progress notes.
(34) In the event that either parent moves residence or his or her contact details vary, that parent forthwith notify the other parent in writing (when practicable at least 14 days prior to the change occurring) of any variation to his or her residential address, mobile telephone number or email address.
(35) The father and the mother each be readily contactable to the other parent, by ensuring his or her mobile telephone remains charged where practicable and promptly returning any messages that may be left by the other parent from time to time.
(36) The father, the mother and his and her servants and agents are restrained from:
(a)harassing, verbally abusing, denigrating or threatening the other parent; and
(b)discussing the making of these orders or future care arrangements for [the child];
in the sight, hearing or presence of [the child].
AND THE COURT NOTES THAT:
Pursuant to ss.62B and 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
The Mother then appealed against orders 16, 17, 18 and 19.
On 11 February 2010 an order was made by the Chief Justice pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”) that it was appropriate that the jurisdiction of the Family Court in relation to the appeal be exercised by a single judge.
In my reasons for judgment delivered on 17 September 2010 I observed:
5. The orders sought by the Mother are consistent with what she sought at the hearing before the Federal Magistrate. However, she had sought that the first overseas trip occur in 2009.
6. During discussion before me it was agreed that there are three and perhaps four categories of orders.
7. The first category is reflected in order 1 and is intended to make provision for the Mother to travel with the child to the United Kingdom every second year for a period of three weeks. The maternal family reside in the United Kingdom.
8. The second category is reflected in order 2 and is intended to provide for the circumstance where the Father and the Mother may travel outside Victoria but within the Commonwealth of Australia. This order was not dealt with in the written submissions of the Mother.
9. The third category is reflected in order 3 and is intended to provide for the circumstance where during a period of time when the child is residing with a parent that parent may travel with the child outside the Commonwealth of Australia.
10. In relation to this third category, during the hearing before me, I was informed that this order was not the Mother’s “primary concern” although it would, for example, enable the Father to take the child overseas for a holiday. The Mother never asserted that if the Father took the child overseas for a holiday he would not return the child to Australia. Nor was it ever suggested that if the Mother took the child overseas for a holiday she would not return the child to Australia (Transcript, 4 May 2010, p 37).
11. There is perhaps a fourth category being orders 4, 5 and 6 which relate to the passport of the child.
12. I also understood that the requirements of notice reflected in orders 2 and 3 would also apply in relation to order 1.
At the hearing of the appeal the Mother was represented by counsel and the Father appeared without legal representation.
On 17 September 2010 I pronounced judgment in relation to the appeal and made the following orders:
1. The appeal be allowed.
2. Orders 16, 17, 18, 19 and 20 made by Federal Magistrate Riley on 3 December 2009 be discharged.
3. In respect of the child born on 17 November 2006 of the relationship of the Mother and the Father, subject to the Mother providing the Father with 45 days written notice setting out:
a)dates of travel;
b)all flight arrangements;
c)the general itinerary of where the child of the relationship will be staying overseas; and
d)the contact details for all accommodation overseas;
orders 8, 9, 10, 11 and 12 made on 3 December 2009 be suspended for a period of 23 days in 2010 or 2011 and in each alternate year thereafter, with such time to be offset against any time provided to the Mother by orders 12(a) and 12(b) of the orders of 3 December 2009, and the Mother be entitled to remove the child from the Commonwealth of Australia so as to travel overseas with the child to visit members of the maternal family.
4. The Mother and the Father do all acts and things and execute all documents and writings necessary to ensure that a valid Australian passport is issued for the child at all times until the child attains the age of 18 years.
5. In the event a parent refuses or neglects to comply with their obligations pursuant to order 4 hereof within 21 days of being served with written notice from the other party seeking compliance with that order, an officer of the Federal Magistrates Court be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such document or documents as may be necessary in order to issue a valid Australian passport in the name of the child.
6. Save and except for a period of 7 days prior to the child’s departure from the Commonwealth of Australia with the Mother pursuant to order 3 and a period of 7 days after the child’s return to the Commonwealth of Australia the child’s passport is to remain in the possession of the Registry Manager of the joint Family Court of Australia and Federal Magistrates Court Melbourne Registry.
7. Within 7 days prior to the departure from the Commonwealth of Australia of the Mother with the child pursuant to order 3 hereof the Mother may collect the passport of the child from the said Registry Manager for the purposes of removing the child from the Commonwealth of Australia and Mother shall return the passport of the child to the said Registry Manager within 7 days of her return to the Commonwealth of Australia with the child.
8. To facilitate order 7 hereof the Mother shall provide the Registry Manager with a copy of the written notice given to the Father in accordance with order 3 hereof.
In my reasons for judgment I said:
147. I propose to allow the appeal in so far as the Mother complains that the Federal Magistrate failed to make orders that would enable the Mother to travel with the child to the United Kingdom in each alternate year for a period of three weeks. I also propose to allow the appeal of the Mother in so far as she complains that her Honour did not make orders in relation to a passport for the child so as to enable the child to leave Australia and travel to the United Kingdom.
148. I do not propose to allow the appeal in so far as the Mother complains that the Federal Magistrate failed to make orders that in the event that either parent intends to travel with the child outside of Victoria during periods of time the child is scheduled to spend time with them, the parent intending to travel is to provide the other parent with at least 14 days notice in writing, including details of the flight arrangements, the general itinerary of where the child will be staying and the contact details for all accommodation; and upon the child attaining the age of five years, proposals for how the child will contact and speak with the non travelling parent, once weekly, during such holiday. No submissions were made to me in relation to this category of relief.
149. Further, I observe that the orders made by the Federal Magistrate do not prevent either parent taking the child outside Victoria during periods when the child is in his or her care and order 14 provides that if the child will not be spending a night at a parent’s home, the relevant parent has to notify the other in writing, seven days in advance, of the address and contact details of the place where the child will be staying and the details of the flight or other means of transportation to the place where the child will be staying.
150. I also do not propose to allow the appeal in so far as the Mother complains that the Federal Magistrate failed to make orders that would enable each parent to take the child outside Australia during periods of time the child is scheduled to spend time with them. This is what I have earlier described as the third category of orders and as I have also observed, during the hearing I was informed that this order was not the Mother’s “primary concern”. No submissions were made in relation to this category. It follows however that the Father is prevented from removing the child from the Commonwealth of Australia.
On 4 October 2010 an application in an appeal was filed by the Mother in which she sought the costs certificate. The application was supported by an affidavit sworn by the Mother on 4 October 2010.
On 12 October 2010 an application in an appeal was filed by the Father in which he sought the order for costs against the Mother and a costs certificate. The application was supported by an affidavit sworn by the Father on 12 October 2010.
In her affidavit the Mother deposed:
2. The costs I have incurred in issuing Appeal proceedings are quantified as follows:
a.Appeal filing fee of $840.00 to the Family Court of Australia.
b.Legal fees totalling $7,324.30 for the Applicant’s lawyer, [Ms A] of Marshalls & Dent, to provide legal advice and assistance in preparing Appeal documentation for filing. The Applicant sought legal assistance with Appeal matters from23 December 2009 concluding at the Appeal hearing on 4 May 2010.
c.Legal fees totalling $2,709.58 for the Applicant’s barrister, Rozeta Stoikovska, to review Appeal documentation and representation at Appeal hearing on 4 May 2010.
d.Transcript costs totalling $3,865.32 to obtain the court transcripts of the hearing before Federal Magistrate Riley on 10, 11 and 12 August 2009.
3. Invoices and receipts for the above expenses are attached in Annexure A.
4. In view of the above proceedings, and with consideration that the Appeal was allowed, I seek that the Court consider issuing a Costs Certificate in respect of the costs incurred by the Applicant in issuing these Appeal proceedings.
During the hearing before me, the Mother informed me that she incurred costs of approximately $14,000.00. The Mother attached to her affidavit invoices and receipts for a total of $14,739.20.
During the hearing before me the Mother also informed me that she is in part time employment and has assets comprising a home, subject to a mortgage debt, a motor vehicle and some shares.
I do not propose to set out all of what is in the affidavit of the Father. However the Father conceded that “there were 4 distinct parts to the appeal” as I have described above. The Father did depose:
In his conclusion at paragraph 135 to 139 and 143 to 146 Justice O'RYAN states that he allowed the parts of the appeal he did because of errors made by her Honour, Federal Magistrate RILEY. Due to these errors the father should not be responsible for the costs associated to prepare for and attend the appeal hearing.
As detailed in preceding paragraphs significant portions of the mother's appeal were dismissed. The father should not have to bear the costs associated to prepare for and attend the appeal hearing.
To prepare for and attend this appeal hearing the father incurred costs to the value of $3,578.60
Upon receipt of the notice of the appeal the father retained the services of Gallbally and O'Brien solicitors. The total of fees incurred were $1718.60.
Further costs were incurred by the father in relation to preparation of the case. This was discussed before Justice O'RYAN in the appeal hearing.
Orders were made by Justice O'RYAN on 23 February 2010, which included requiring the mother to file and serve amended notice of appeal, summary of argument, list of authorities, list of documents sought to be relied on and transcripts by 31 March 2010. The mother retained this material until close of business on Thursday 1 April 2010 at which time it was served on the father. The following Friday 2 April 2010 was the start of the Easter long weekend break and as a result he was not able to provide the material to his solicitor until 6 April 2010. When he did have the opportunity to discuss the case with the solicitor he was informed of the difficulty of retaining counsel to prepare a response at such short notice. As a result the father was forced to take leave from his employer, Victoria Police, and prepared the response and other material himself and also represent himself at the hearing.
His Honour, Justice O'RYAN made comment, at paragraph 75, that no prejudice was caused to the father as a result of the actions of the mother, but clearly it did cause him to lose time from his work and he should not be required to bear the costs associated with this.
Time taken from work
$1,550.00 5 days preparation from 12 April 2010 to 16 April 2010. $38.75 hourly rate $310.00 1 day court attendance 4 May 2010
I respectfully submit that the costs incurred by the father as detailed above are borne by both the mother and the court. I request that orders be made that the sum of $3,566.50 be paid in equal share by the court fund and the mother.
I request that orders be made for a costs certificate of $1,789.30 from the court fund.
I request orders be made for the mother to pay $1,789.30.
The Father attached a tax invoice from Galbally & O’Bryan Lawyers who represented the Father between 19 January and 19 April 2010. The total costs on that invoice amount to $1,429.60.
Relevant Principles
General
Section 117(1) of the Act provides that “[s]ubject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs”.
Section 117(2) of the Act provides that if, in proceedings under the Act the court is of opinion that there are circumstances that justify it in doing so, it may, subject to sub secs (2A), (4) and (5), and the applicable rules, make such order as to costs whether by way of interlocutory order or otherwise, as it considers just.
Section 117(2A) of the Act provides that in considering what order, if any, should be made under s 117(2), the court shall have regard to the matters set out in paragraphs (a) to (g). In Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 the Full Court (per Kay, Warnick and Boland JJ) referring to s 117(2A) said at 130:
A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
As to the relationship between s 117(1) and s 117(2) of the Act in Penfold v Penfold (1980) 144 CLR 311 in joint reasons Stephen, Mason, Aickin and Wilson JJ said at 315-16:
It is an accurate description of s. 117 (1) to say that it expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to s. 117 (2). As sub-s. (1) is expressed to be subject to sub-s. (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.
Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s. 117 (2) in “a clear case”. (emphasis added)
As to the nature of the hearing of an application pursuant to s 117 of the Act their Honours said at 315:
Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised (Kent v. Kent [(1970) 92 W.N. (NSW) 503, at p. 505]). Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.
There are various machinery provisions within Chapter 19 of the Family Law Rules 2004 (Cth) (“the Rules”). Chapter 19 regulates the costs between parties for applications in family law cases.
Rule 19.01 of the Rules deals with the application of Chapter 19 and provides:
(1) Subject to subrule (3), this Chapter:
(a) applies to costs for work done for a case, or in complying with pre-action procedures, in relation to a fresh application, paid or payable by one party to another; and
(b) creates a duty for lawyers to give information about costs to their clients.
(2) A party may only recover costs from another party in accordance with these Rules or an order.
Note A self-represented party is not entitled to recover costs for work done for a case (except work done by a lawyer) but, if so ordered, may be entitled to recover some payments.
(3) This Chapter does not apply to costs in any part of a case in which a Family Court is exercising its jurisdiction under section 35 or 35B of the Bankruptcy Act.
Rule 19.02 of the Rules provides that interest is payable on outstanding costs at the rate mentioned in r 17.03.
Rule 19.08 of the Rules provides:
(1) A party may apply for an order that another person pay costs.
(2) An application for costs may be made:
(a)at any stage during a case; or
(b)by filing an Application in a Case within 28 days after the final order is made.
(3) A party applying for an order for costs on an indemnity basis must inform the court if the party is bound by a costs agreement in relation to those costs and, if so, the terms of the costs agreement.
Part 19.5 of the Rules deals with the calculation of costs. Rule 19.18 provides:
(1) The court may order that a party is entitled to costs:
(a)of a specific amount;
(b)as assessed on a particular basis (eg lawyer and client, party/party or indemnity);
(c)to be calculated in accordance with the method stated in the order; or
(d)for part of the case, or part of an amount, assessed in accordance with Schedule 3.
Example
For paragraph (1) (c), the stated method may be in accordance with Schedule 3 but with an additional percentage for complexity.
(2) If costs are payable under the Act or these Rules, or the court orders that costs be paid and does not specify the method for their calculation, the costs are to be assessed on a party/party basis.
(3) In making an order under subrule (1), the court may consider:
(a)the importance, complexity or difficulty of the issues;
(b)the reasonableness of each party’s behaviour in the case;
(c)the rates ordinarily payable to lawyers in comparable cases;
(d)whether a lawyer’s conduct has been improper or unreasonable;
(e)the time properly spent on the case, or in complying with pre-action procedures; and
(f)expenses properly paid or payable.
Division 19.6.2 of Chapter 19 provides an assessment “process”.
Schedule 3 to the Rules provides an itemised scale of costs for work done.
In relation to the amount of costs that a self-represented litigant may recover, in Casley & Casley [2010] FamCAFC 189 I observed:
35. In my view, it is well established that a litigant in person may seek an order for costs pursuant to s 117(2) of the Act. Such a litigant will not recover an amount for time spent in preparing and conducting his or her case. However, such a litigant may recover disbursements being out of pocket expenses which would have been recoverable had he or she been legally represented.
See also CCH Australia, Australian Family Law & Practice, Vol 2 (at 61-370); CachiavHanes (1994) 179 CLR 403 at 410 - 417; and Oscar & Traynor [2008] FamCAFC 158 (27 October 2008) at [85] – [87].
Section 9 of the Federal Proceedings (Costs) Act provides:
(1) Subject to this Act, and in particular without limiting section 6, where:
(a)a Federal appeal referred to in paragraph (d), (j), (ja) or (k) of the definition of Federal appeal in subsection 3(1) succeeds on a question of law; and
(b)in accordance with section 117 of the Family Law Act 1975, each party to the appeal bears his or her own costs;
the court that heard the appeal may, on the application of the appellant to the appeal, grant to the appellant a costs certificate in respect of the appeal.
(2) The certificate that may be granted under subsection (1) by a court to an appellant to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney‑General to authorize a payment under this Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
Section 6(1) of the Federal Proceedings (Costs) Act provides that “where a Federal appeal succeeds on a question of law, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal”.
In s 3 of the Federal Proceedings (Costs) Act a “Federal appeal” is defined in paragraph (ja) to include an appeal to the Family Court from a judgment of the Federal Magistrates Court.
Section 16 of the Federal Proceedings (Costs) Act provides:
costs certificatecosts(1) A person who has been granted a (not being a certificate that has been vacated under section 15) may apply to the Attorney-General for payment in accordance with this Act in respect of the certificate.
(2) Subject to section 17, where an application is made by a person under sub-section (1) in respect of a , the Attorney-General may, having regard to the provisions of section 18 and to the moneys available at the time of the application for making payments under this Act, authorize the payment under this Act to that person of an amount not exceeding the amount or the sum of the amounts of the to which the certificate relates, and a payment so authorized shall be made accordingly.
Section 18 of the Federal Proceedings (Costs) Act provides:
(1) In this section, “prescribed maximum amount”, in relation to a court specified in column 1 of the table in the Schedule, means the amount specified in column 2 of that table opposite to that court or such higher amount as is prescribed.
costs certificatecostscertificate(2) The Attorney-General shall not authorize the payment under this Act in respect of a or (other than a granted under sub-section 10(2) or (3)) in relation to an appeal or a of an amount that, or amounts the sum of which, exceeds the amount that is the in relation to the court that heard that appeal or the last of those appeals.
(3) For the purposes of this section, a granted under sub-section 8(1) in respect of a new trial shall be deemed to be a in relation to the appeal in which the new trial was granted.
(4) A reference in this section to a court shall be read as a reference to that court however constituted.
In the Schedule to the Federal Proceedings (Costs) Act the “prescribed maximum amount” in relation to the Family Court is $4,000.00.
I observe that s 22 of the Federal Proceedings (Costs) Act empowers the Governor-General to make regulations, not inconsistent with the Act, prescribing, inter alia, matters which are convenient to be prescribed for giving effect to the Act. The “prescribed maximum amount” may be increased by regulation. The current “prescribed maximum amount” was set by the Federal Proceedings (Costs) Regulations 1991, Statutory Rules 1991 No. 267.
CONCLUSION
The appeal was a Federal appeal for the purposes of the Federal Proceedings (Costs) Act and it succeeded on a question of law.
The Mother did not specifically make an application for an order pursuant to s 117(2) of the Act and no submissions were made by her in relation to each of the matters in paragraphs (a) to (g) of s 117(2A). However, I note that the Father appeared before me without legal representation and in the submissions of the Mother it was conceded by her that in the appeal she was not successful in all respects. It was also not controversial that both parties are in modest financial circumstances. I therefore infer that the Mother accepted that in the circumstances of this case, s 117(1) would still apply, namely that each party bear his or her own costs.
In the circumstances, I am satisfied that in accordance with s 117(1) of the Act the Mother should bear her own costs and that a certificate be granted to her pursuant to s 9 of the Federal Proceedings (Costs) Act in respect of the appeal.
As to the application by the Father he is seeking to recover an amount of $3,578.60. The Father seeks that one half of the amount be paid by the Mother. However, I am only prepared to consider recovery by the Father of the amount of $1,429.00 being the amount of his costs incurred with Galbally & O’Bryan. In his affidavit the Father deposed that upon receipt of the notice of the appeal he retained the services of Galbally & O'Bryan and that the total of fees incurred was $1,718.60. However the Father only produced an invoice from the solicitors for the amount of $1,429.00. As the Father was a self represented litigant I am of the view that he can only recover disbursements being out of pocket expenses which would have been recoverable had he been legally represented. Thus the Father can only recover the amount of $1,429.00.
In so far as the Father seeks an order against the Mother, I am not persuaded that the Father has established a justifying circumstance and thus am satisfied that in accordance with s 117(1) of the Act the Father should bear his own costs.
As to the application by the Father for a certificate pursuant to s 6 of the Federal Proceedings (Costs) Act I observe that there is a significant disparity between the costs incurred by each party. The Mother has incurred costs of $14,739.20 and the Father has incurred costs of $1,429.00. The total of the legal costs incurred by both parties was $16,168.20 ($14,739.20 plus $1,429.00). In other words the Mother has paid approximately 91 per cent and the Father has paid approximately nine per cent.
If the Attorney‑General authorized a payment to the Father in the amount of $1,429.00 and the Mother only received $4,000.00, being the “prescribed maximum amount”, then this outcome would be inherently unfair to the Mother. It would mean that the Father was fully indemnified for his costs but the Mother would only recover approximately 27 per cent of her costs.
I am not satisfied that I have the power to specify an amount that the Attorney-General may authorise or make a formulaic order. However, assuming that I had such power I am unable to resolve an appropriate order that would achieve justice between the parties. Thus, in all the circumstances, I do not propose to make an order for a certificate for the Father. I propose to dismiss the application by the Father.
I certify that the preceding forty five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Ryan delivered on 28 October 2010.
Associate:
Date: 28 October 2010
0
4
4