Horner & Horner
[2024] FedCFamC1F 334
•20 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Horner & Horner [2024] FedCFamC1F 334
File number(s): MLC 8067 of 2021 Judgment of: CARTER J Date of judgment: 20 May 2024 Catchwords: FAMILY LAW – COSTS – Where the mother seeks costs in the amount of $21,720 for counsel disbursements – Where both parties have retained senior counsel – Where the father was wholly unsuccessful – Orders made. Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 12.08, 12.17
Division: Division 1 First Instance Number of paragraphs: 27 Date of hearing: 14 May 2024 Counsel for the Applicant: Ms Mallet KC Solicitor for the Applicant: Aston Legal Group Counsel for the Respondent: Ms Costello KC Solicitor for the Respondent: Sage Family Lawyers Counsel for the Independent Children's Lawyer: Mr O’Connell Solicitor for the Independent Children's Lawyer: Robert Halliday & Associates ORDERS
MLC 8067 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HORNER
Applicant
AND: MS HORNER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CARTER J
DATE OF ORDER:
20 MAY 2024
THE COURT ORDERS THAT:
1.The applicant pay the respondent’s costs of and incidental to the Application in a Proceeding filed by him on 26 March 2024 fixed at $21,720 within 60 days.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER
On 14 May 2024 I made orders dismissing the Application in a Proceeding filed by the father on 26 March 2024. The mother seeks her costs of $21,720, being the fees for senior and junior counsel to prepare and appear at the hearing on 13 May 2024 and for senior counsel to prepare and appear at the hearing on 14 May 2024.
Counsel for the Independent Children's Lawyer had no instructions to seek costs.
FACTORS TO BE TAKEN INTO ACCOUNT
The general rule in relation to costs, as set out in s 117 of the Family Law Act 1975 (Cth) is that each party will bear their own costs. However, that rule is subject to the provisions of s 117(2) which provides that a Court may make such order for costs as it considers just if “…the court is of opinion that there are circumstances that justify it in doing so…”.
Subsections 117(2A)(a)-(g) of the Family Law Act set out the matters the Court must consider in determining whether to exercise its discretion and make an order as to costs. No one factor must be present, and no particular factor is to be given more or less weight than any other.
Financial circumstances of the parties;
The wife is engaged in full time home duties. She is not in paid employment and is wholly dependent on Centrelink payments.
The father is a professional and earns $115,000 per annum. According to his material he also works as a sessional educator and is a Director of B Business. I do not know how much the father earns in these two roles.
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;
Neither party is in receipt of legal aid.
The conduct of the parties to the proceedings in relation to the proceedings;
Both parties complain in relation to the other’s conduct as a litigant.
The mother asserts that including this Application in a Proceeding, she has had to respond to five interlocutory applications and a Contravention Application. She said the father discontinued his Contravention Application. The mother has filed one interlocutory application, and has attempted to file a Contravention Application. The mother also sought reviews in December 2022 and on 24 March 2023 in relation to interim decisions made by a Senior Judicial Registrar. In relation to the December 2022 review, it appears from the Court file that on one attempt the application was voided and on the other she was given leave to withdraw. The 24 March 2023 review was successful in part. She says further that the father’s opposition to her being granted leave to amend both her Response to Initiating Application and her Response to a Application in a Proceeding was overly technical – unnecessarily burdening the Court, and increasing the parties’ costs.
The father asserts the mother’s failure to respond to his ongoing attempts to negotiate and compromise the parenting proceedings in March this year led him inexorably to filing the Application in a Proceeding. He says further he did not know at the time he filed that application that the mother had changed her position quite fundamentally from what she had sought at trial, instead labouring under the misapprehension that the parties were close to a resolution that he was keen to secure.
In addition, the father says that when his solicitors sought a listing by approaching chambers (as the parties had been invited to do in the event the issues were narrowed, and the estimated time for hearing reduced such that an earlier trial date could potentially be secured) this was opposed by the mother, and it was the mother who insisted that he bring an Application in a Proceeding.
Whilst that might explain the context in which the Application in a Proceeding was filed, it does not, in my view, sufficiently explain the father’s continued pursuit of that application in circumstances where it became plain that the mother’s position had altered. The father may – and does – disagree that the mother’s position should have changed, as he said there was no evidentiary basis for her to now seek different orders. However, as I said in my oral reasons delivered on 14 May 2024, the mother’s material filed first on 12 April and then on 6 May 2024, did outline sufficiently her ongoing concerns about the parties’ child’s behaviour, and the father’s alcohol use in light of the non-provision of hair follicle tests this year such that the Court could be satisfied at this juncture that there was a proper basis for the amendments sought.
I accept it must be frustrating for one party to believe that issues have narrowed, and consent orders are almost finalised, only to find that the agreement has fallen apart. Of course, consent orders can only be made when all parties to a proceeding are in accord. They were not and are not. The issues and concerns outlined by the mother do require a testing of the evidence, in the event the parties remain in disagreement as to the appropriate orders to meet their child’s best interests.
Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;
This consideration is not relevant.
Whether any party to the proceedings has been wholly unsuccessful in the proceedings;
The father has been wholly unsuccessful. I did not make any of the orders sought by him.
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;
The mother’s solicitors wrote to the father’s representatives on 7 May 2024. In that correspondence the father was invited to withdraw his Application in a Proceeding “and save the parties and the Court the time and costs of preparing for and appearing at 13 May 2024 hearing”. He was further advised that if the application was not discontinued, and was dismissed, the mother would seek a costs order against the father with respect to the fees of senior and junior counsel.
DETERMINATION
In the exercise of what has been described as a wide discretion, and taking all of the factors into account, I am satisfied there are circumstances that warrant a departure from the usual rule that each party meet their own costs. In particular, I accept the submissions made by senior counsel for the mother that it is appropriate to make an order for costs, particularly in light of the mother’s strained financial circumstances, that the father was wholly unsuccessful, and the offer made on 7 May 2024 inviting the father to withdraw his application.
As set out, the mother sought costs fixed at $21,720. Those costs comprised of;
(a)the fee charged by the mother’s senior counsel for appearing at and preparing for the hearings on 13 and 14 May 2024 of $17,000; and
(b)the fee charged by the mother’s junior counsel for appearing at and preparing for the hearing on 13 May 2024 of $4,720.
Senior counsel for the father did not cavil with the quantum of costs sought save to query whether it was appropriate for junior counsel to also have been briefed. Both parties regarded the matter as sufficiently complex to require senior counsel. Senior counsel for the father appeared without a junior on 13 and 14 May 2024. Senior counsel for the mother appeared with a junior on 13 May – being the substantive hearing of the interlocutory proceeding. She appeared without a junior on 14 May to receive judgment and to make submissions as to costs.
It is a centuries old tradition that senior counsel appear with junior counsel. In circumstances where the parties both took the view that the matter warranted senior counsel, it is not unreasonable, given the long-standing tradition, that junior counsel would also be briefed. In my view, there is no proper basis to order costs for senior counsel but to not order costs for counsel who appear as their junior.
Pursuant to rule 12.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), I can fix an amount for costs. This enables the parties to avoid the expense, delay and inconvenience involved in taxation. In making an order under rule 12.17(1), as I am, I may consider:
(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness of each party’s behaviour in the proceeding including by having regard to the matters set out in sub-rule 12.08(2);
(c) the rates ordinarily payable to lawyers in comparable proceedings;
(d) whether a lawyer’s conduct has been improper, unfair, unreasonable or disproportionate;
(e) the time properly spent on the proceeding, or in complying with pre-action procedures;
(f) whether expenses (paid or payable) are fair, reasonable and proportionate.
Rule 12.08 provides in considering legal costs and whether they are fair and reasonably and proportionately incurred, the Court must consider a number of matters. Relevantly, I note that the mother had not complied with all relevant rules, by filing her Further Further Amended Response to an Initiating Application and her Amended Response to Application in a Proceeding without first seeking leave as she was required pursuant to the rules.
However, I am of the view that it was not reasonable for the father to pursue his Application in a Proceeding – particularly to seek that the matter proceed by way of submissions only after the mother filed material providing a reasonable justification for her changed position in relation to the child’s care arrangements.
The father did seek to narrow the issues and resolve the dispute. It appears the mother was tardy in responding to the father’s correspondence seeking to reach agreement.
I have already referred to the parties’ behaviour in the proceedings generally and my view that it was unreasonable that the father pursued his Application in a Proceeding after receiving the mother’s Further Further Amended Response and then her Amended Response to an Application in a Proceeding and the affidavit that accompanied that.
The costs sought in my view were not unreasonable. I note senior counsel for the mother provided a calculation of counsels’ fees on scale – which came very close to the figure sought. As indicated, senior counsel for the father did not dispute the quantum of costs.
In those circumstances, I am ordering that the father pay the mother’s costs of senior and junior counsel appearing on 13 May and senior counsel appearing on 14 May fixed in the sum of $21,720.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter. Associate:
Dated: 20 May 2024
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