HUMPHREY & HUMPHREY
[2015] FCCA 3033
•16 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HUMPHREY & HUMPHREY | [2015] FCCA 3033 |
| Catchwords: FAMILY LAW – Children – parenting orders – contravention of parenting orders – application – contravention – where allegations denied. |
| Legislation: Family Law Act 1975 (Cth), s.117 Legal Aid Commission Act 1979, s.41 |
| Cases cited: Wade & McPherson [2014] FCCA 1321 |
| Applicant: | MR HUMPHREY |
| Respondent: | MS HUMPHREY |
| File Number: | SYC 6843 of 2012 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 3 November 2015 |
| Date of Last Submission: | 3 November 2015 |
| Delivered at: | Sydney |
| Delivered on: | 16 November 2015 |
REPRESENTATION
| Applicant: | No appearance |
| Solicitor for the Respondent: | Ms Nessworthy |
| Solicitors for the Respondent: | Hamish Cumming Family Lawyers |
ORDERS
The Applicant is to pay the Respondent’s costs fixed in the amount of $1,595.00 within three (3) months of the date of this Order.
IT IS NOTED that publication of this judgment under the pseudonym Humphrey & Humphrey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 6843 of 2012
| MR HUMPHREY |
Applicant
And
| MS HUMPHREY |
Respondent
REASONS FOR JUDGMENT
Application for costs
This is an Application by the Respondent for an order for costs arising out of the dismissal of an Application-Contravention brought by the Applicant.
The Application was listed for final hearing on Tuesday 3 November 2015 but was dismissed under the provisions of Rule 13.03C due to the unexplained non-appearance of the Applicant.
Procedural History
The Application-Contravention was filed on 8 April 2015 and was returnable on 6 July 2015. In that Application the Applicant set out some 57 separate counts, of which 48 related to allegations of contravention of the Interim Orders made on 6 March 2013 between 6 March 2013 and 10 September 2014. The other 9 counts related to allegations of contravention of the Final Orders made by consent on 11 September 2014, between 19 September 2014 and 23 March 2015.
I explained to the Applicant the difficulty he faced in seeking to enforce Interim Orders that had already been discharged by the Consent Orders of 11 September 2014, before the Application had been filed. I also pointed out the difficulty in making a plethora of allegations about contraventions said to have occurred more than a year prior to the Application being filed, referring to my comments in Hayes & Stapleton[1] at [108] to [113].
[1] [2015] FCCA 1948
The Respondent denied all of the allegations and the matter was listed for final hearing at 10:00 am on Tuesday 3 November 2015. There was no appearance by or on behalf of the Applicant when the matter was called and the Application was dismissed under the provisions of Rule 13.03C.
The Respondent seeks an order for costs.
Costs in Family Law Proceedings
The question of costs in proceedings under the Family Law Act 1975 (Cth) is governed by the provisions of s.117 of the Act. Subsection 117(2) of the Act provides that if the Court is of opinion that there are circumstances that justify it in doing so, the Court may, subject to subsection 2A (relevantly) and the applicable Rules of Court, make such order for costs as the Court considers just.
Subsection 117(2A) provides that in considering what order (if any) should be made under subsection (2), the court shall have regard to:
a)the financial circumstances of each of the parties to the proceedings;
b)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;
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, admission 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 either 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.
If the Court decides that there are circumstances that justify it in making an order for costs, what must then be decided is the quantum, or the amount of costs to be awarded. It is the usual case that where costs are awarded against a party they are awarded on a party and party basis. Costs would normally be awarded in accordance with the Court scale, which in this case is contained in Part 1 of Schedule 1 to the Rules.
Costs will only be ordered on an indemnity basis (also known as a solicitor-client basis) where there are unusual or exceptional circumstances (Colgate Palmolive Co v Cussons Pty Ltd[2]; In the Marriage of Kohan[3]; Prantage & Prantage[4]).
[2] [1993] FCA 536; (1993) 46 FCR 225; 118 ALR 248
[3] (1992) 16 Fam LR 245; (1993) FLC 92-340
[4] [2013] FamCAFC 105; (2013) 49 Fam LR 197; FLC 93-544
Consideration
In this case, the Respondent’s solicitor, Ms Nessworthy, has advised the Court that her client is in receipt of a grant of legal aid from Legal Aid NSW. She seeks a total amount of $1,595.00 in accordance with the Legal Aid scale of $150.00 per hour plus GST.
The amount of $1,595.00 is calculated as follows:
2 July 2015 Taking initial instructions $150
5 July 2015 Preparation for First Return Day $150
6 July 2015 Attendance at Court on First Return Day and report to client $375
2 November 2015 Preparation for final Hearing $300
3 November 2015 Attend Final Hearing and report to client $375
2 July – 3 November Disbursements including phone calls, photo copying, scanning and postage $100
TOTAL (excl. GST) $1,450
GST $ 145
TOTAL (incl. GST) $1,595
Conclusions
I have considered the matters set out in subsection 117(2A) of the Family Law Act 1975.
I have no evidence about the parties’ financial circumstances.
The Respondent is in receipt of a grant of legal aid, and the Respondent is accordingly bound to seek costs only in accordance with the Legal Aid Scale of Costs.
The Applicant’s conduct of the proceedings can be called into question, because he commenced the proceedings, requiring the Respondent to attend Court to defend the claim, and when the matter was listed for a final hearing he completely failed to attend Court. No explanation has been proffered as to his failure to attend. The Court did not receive any call from the Applicant or anyone on his behalf, advising that the Applicant had been hindered, delayed or prevented from attending court due to illness, injury or any other emergency or unforeseen circumstance. He just did not attend Court when his Application was due for final hearing.
Not surprisingly, the Applicant has been wholly unsuccessful in the proceedings.
The unexplained failure by the Applicant to appear and the subsequent dismissal of the Application in my opinion constitute circumstances that justify the Court in making an order for costs against the Applicant.
The Applicant seeks the amount of $1,595.00, calculated in accordance with the Legal Aid Scale. The Court Scale of Costs, as set out in Part 1 of Schedule 1 of the Rules, would allow the lump sum amount of $1,706.00 in accordance with Item 3 and a daily hearing fee of $1,024.00 under Item 13, a total of $2,730.00.
The amount allowed by the Schedule is considerably more than the amount claimed, which is a good indication that the amount sought by the Respondent is a very modest figure. As the Respondent’s solicitor cannot claim any amount over and above that allowed by the Legal Aid Scale under s.41 of the Legal Aid Commission Act 1979 (NSW) (see Wade & McPherson[5] at [71]), the total amount of costs that will be awarded is the amount of $1,595.00 allowed by the Legal Aid Scale.
[5] [2014] FCCA 1321
I will order that the Applicant pay the Respondent’s costs fixed in the amount of $1,595.00 and I will allow three months to pay.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 16 November 2015
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