Huffman and Gorman (Costs)
[2014] FamCA 323
FAMILY COURT OF AUSTRALIA
| HUFFMAN & GORMAN (COSTS) | [2014] FamCA 323 |
| FAMILY LAW – COSTS – Whether there should be a departure from the general rule in Section 117(1) of the Family Law Act 1975 (Cth) that each party bear their own costs – Father’s interim/procedural application wholly unsuccessful – Mother put to expense in resisting the father’s application – Costs order made on party/party basis. |
| Family Law Act 1975 (Cth) ss 117(1), (2) & (2A) |
| Huffman & Gorman [2014] FamCA 150 PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL (2005) 33 Fam LR 123 |
| Penfold v Penfold (1980) 144 CLR 311 |
| APPLICANT: | Mr Huffman |
| RESPONDENT: | Ms Gorman |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Parramatta |
| FILE NUMBER: | PAC | 3882 | of | 2011 |
| DATE DELIVERED: | 20 May 2014 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 7 March 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Thomas |
| SOLICITOR FOR THE APPLICANT: | Caldwell Martin Cox |
| COUNSEL FOR THE RESPONDENT: | Ms Judge |
| SOLICITOR FOR THE RESPONDENT: | Redmond Hale Simpson Solicitors & Barristers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Parramatta |
Orders
That the father pay the mother’s costs of and incidental to the Application in a Case filed by the father on 9 December 2013 (as subsequently amended), as agreed between the parties, and in the event of agreement, within one (1) month from the date of agreement or such other period as is agreed in writing by the parties, or otherwise as assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Huffman & Gorman (Costs) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 3882 of 2011
| Mr Huffman |
Applicant
And
| Ms Gorman |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
On 17 March 2014 reasons for Judgment were delivered and Orders were made in respect of a discrete Application in a Case made by the father in these proceedings (Huffman & Gorman [2014] FamCA 150).
In brief, the father in that application sought orders that would facilitate the single expert psychiatrist retained in the proceedings receiving tapes of secretly recorded conversations between himself and the mother comprised on various USB drives, purported transcripts of those tapes and a number of photographs.
The mother and the Independent Children’s Lawyer opposed such orders.
The issue appears to have been first raised before a Registrar on 24 October 2013, with the father being directed to file an affidavit in support of such application within one month. That affidavit was not filed until 2 December 2013.
On 9 December 2013 the father filed a formal Application in a Case. The Court made directions for the further conduct of the application and adjourned the application to 7 February 2014 for hearing.
On 7 February the application was further adjourned for hearing to 7 March 2014 by reason of an issue as to the integrity of the purported transcripts provided by the father.
The matter proceeded to hearing on 7 March 2014, with reasons for Judgment delivered on 17 March 2014. The father’s application was dismissed.
Costs
Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that each party to the proceedings shall bear his or her own costs.
That principle is, however, subject to the discretion afforded to the trial judge in subparagraph (2), which provides that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to further subsections thereof and the applicable Rules of the Court, make such order as to costs as the Court considers just.
Although s 117(2) requires a finding of justifiable circumstances as an essential preliminary to making an order for costs, there is no additional or special onus on an applicant who seeks an order for costs: see Penfold v Penfold (1980) 144 CLR 311.
The matters relevant to determining what order, if any, should be made for costs are set out in subsection 117(2A). They are relevantly, in these proceedings, the following:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party has legal aid and the terms of any grant of 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 answers, 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 writing 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.
There is nothing to prevent any one factor being the sole determinant for an order for costs: see PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL (2005) 33 Fam LR 123.
The issues for determination
The issue for determination is whether, by reason of a consideration of the statutory provisions, the general rule provided for in s 117 is displaced.
The question of costs is to be determined on the basis of the parties’ written submissions as provided for in orders made on 17 March 2014.
The section 117(2A) factors
The factors are considered below:
a)The financial circumstances of the parties.
There is no evidence as to the parties’ financial circumstances before the Court, save that there are pending property proceedings.
b)whether any party has legal aid and the terms of any grant of aid;
This is not a relevant consideration in this case.
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 answers, questions, admissions of facts, production of documents and similar matters;
The mother asserts that the conduct of the father in secretly taping conversations and their accuracy is relevant in this context. That submission is rejected. The factor for the Court to consider focuses on the interlocutory conduct of the parties. This is not a relevant consideration.
d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;
This is not a relevant consideration in this case.
e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
The mother contends that she has been wholly successful in that the father’s application was dismissed. Indeed, the mother in her Case Outline of 6 February 2014 adopted a position that was ultimately adopted by the Court. The father contends otherwise, suggesting that it was a procedural hearing and a “skirmish”. However, the fact is that the mother was required to meet the father’s application that was ultimately unsuccessful.
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; and
This is not a relevant consideration.
g)such other matters as the Court considers relevant.
The father contends that in the circumstances the application was appropriate. However, in the absence of the evidence being prima facie inadmissible by reason of illegality and the need for the Court at hearing to determine admissibility, the application was untimely and inappropriate. Indeed, as is contended by the father “(t)he matters that have been put in issue by this application are not matters that can be determined on an interim hearing, in the absence of cross-examination and the testing of the parties’ evidence.” Yet, the father sought to agitate the issue on an interim basis.
In the circumstances, it is justified that there be a departure from the general rule. The father was unsuccessful in his application, with the mother put to the expenses of resisting an application that was in the end dismissed.
An order will therefore be made for the father to pay the mother’s costs of and incidental to the application.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 20 May 2014.
Legal Associate:
Date: 20 May 2014
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