ILT & GH
[2005] FMCAfam 339
•11 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ILT & GH | [2005] FMCAfam 399 |
| FAMILY LAW – Costs – indemnity costs. |
| Family Law Act 1975 |
| Kohan and Kohan (1993) FLC 92–340 |
| Applicant: | ILT |
| Respondent: | GH |
| File Number: | PAM 5201 of 2004 |
| Judgment of: | Sexton FM |
| Hearing date: | 8 August 2005 |
| Delivered at: | Parramatta |
| Delivered on: | 11 August 2005 |
REPRESENTATION
| Solicitors for the Applicant: | Christopher M Edwards Solicitors |
| Solicitors for the Respondent: | John Burton & Associates |
ORDERS
That the respondent pay the applicant’s costs in the sum of $1,180.00 within two (2) months.
That all outstanding applications otherwise be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 5201 of 2004
| ILT |
Applicant
And
| GH |
Respondent
REASONS FOR JUDGMENT
Applications
This is an application by Mr ILT, [“the applicant”] for Mr GH, now known as Mr GC, [“the respondent”] to pay his costs incurred in proceedings for declarations pursuant to section 69VA of the Family Law Act 1975 and section 106 of the Child Support (Assessment) Act 1989 in relation to the child TEC born 9 January 1991 [“TEC”].
The application for final orders was filed on 18 October 2004 and served on the respondent on 28 January 2005. On 8 August 2005 this court, with the consent of both parties, made orders in accordance with the orders sought by the applicant with the exception of costs. The respondent was on notice that the applicant intended to pursue his costs application and that if not resolved, the costs application would be heard on 8 August 2005. The respondent appeared personally at court with his solicitor to oppose the application. The applicant relied on his affidavit sworn 14 October 2004 but filed no other material in support of his costs application. The respondent filed no affidavit material in the proceedings. Given the appearance of the respondent and his solicitor, I did not accept the submission for the applicant that the costs application should proceed on an undefended basis.
In summary, Mr Burke for the applicant submitted that the proceedings could have been avoided altogether, or at least finalised much earlier if the respondent had cooperated with the applicant from the outset. Ms Dawson for the respondent submitted that the respondent had cooperated with the court process as soon as he was on notice of the orders sought by the applicant.
The applicant sought costs on an indemnity basis in the sum of $7,595.56 which sum included the costs of parentage testing, filing and service fees. The respondent agreed to meet the costs of parentage testing only, in the sum of $990.00.
In accordance with section 117(1) of the Family Law Act 1975 the usual rule in family law proceedings is that each party will pay their own costs. However, section 117(2) provides that the court may order costs if it is satisfied that there are circumstances that justify it in doing so. The Full Court in Kohan and Kohan (1993) FLC 92-340 said that although the Court has a discretion to order costs on an indemnity basis, such an order is an exception in the Family Court and is “a very great departure from the normal standard.”
When the court is considering what order should be made the court must have regard to the matters referred to in section 117(2A) subsections (a) to (g).
a)the financial circumstances of each party;
The applicant filed an affidavit sworn by him on 14 October 2004 in which he deposed to being employed as a technician. I have no evidence before me as to his present income, assets or financial resources. The applicant was not present in court for this hearing. It is not in dispute, and I am satisfied that the applicant has supported the respondent’s son, TEC, without assistance from the respondent, at least since his wife, TEC’s mother, died on
22 September 2003, if not from the time he married TEC’s mother. The respondent filed no affidavit evidence in the proceedings.
I granted leave to the respondent to give oral evidence in relation to his financial circumstances. He said he worked full time as a fork lift driver at P.O.C.S earning a weekly income of $798.00 after tax. He earned $63,891.00 in the 2004 financial year but in that year he worked some overtime, which he was now unable to do because of a shoulder injury. The respondent said he had weekly commitments of $500.00 for mortgage loan repayments, $69.00 for AGC repayments, $25.00 for Select Credit Union repayments, $138.00 for GE Finance repayments. He is married and his wife earns approximately $110.00 per week although her income varies. He and his wife own a home with a value of less than $330,000.00 subject to a mortgage of $285,000.00 and have additional debts of about $80,000.00. They own two motor vehicles both over 12 years old. I am satisfied the respondent is living in modest financial circumstances. I have taken this matter into account.
b)whether any party is assisted by legal aid;
Neither party was assisted by legal aid.
c)the conduct of the parties to the proceedings;
Mr Burke for the applicant submitted and I accept that the respondent did not file a Response and affidavit in accordance with the Federal Magistrates Rules after being served with the Application on 28 January 2005. The respondent failed to comply with orders of the court of 18 February 2005 to file responding material by 11 March 2005. In fact, the respondent did not file responding material at any time during the course of the proceedings. However, on 22 March 2005 orders were made by consent for parentage testing and such testing was undertaken by the respondent. Had those orders been made on 18 February 2005, by which time the respondent was on notice of the proceedings, I am satisfied one mention date could have been avoided. However, I find from the correspondence between solicitors in May 2005 [Exhibit 1] that once the results of parentage testing were known, the respondent’s solicitors were engaged in negotiations with the applicant’s solicitors. There was some short delay when the applicant’s solicitor was on leave but I am satisfied the respondent did nothing to prolong the proceedings from that time.
d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
Although Mr Burke submitted otherwise, this sub-paragraph is not relevant and the matters in relation to the respondent’s non-compliance with court orders is addressed in sub-paragraph (c) above.
e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
I accept Mr Burke’s contention for the applicant that the applicant has been largely successful in the proceedings, as orders were made on 8 August 2005 in the terms sought by the applicant with the exception of the order for payment of the costs and disbursements of the applicant. I have taken this matter into account.
f)whether either party has, in accordance with section 117C or otherwise, made an offer in writing to the other party to settle the proceedings and the terms of any such offer;
Neither party made an offer in accordance with section 117C. The applicant deposed to having sought assistance from the Parramatta office of the Legal Aid Commission in late 2003 and early 2004 in relation to the respondent assisting in TEC’s financial support. He deposed to the Legal Aid Commission writing to the respondent and to the respondent replying at that time. However, in the absence of any evidence before me as to the contents of any such correspondence, I cannot make a finding as to whether or not an offer of some kind was made. Mr Burke submitted that the letter from his firm to the respondent of
22 September 2004 annexed to the applicant’s affidavit should be taken into account as it provided the respondent with an opportunity to confirm his paternity of TEC without the need for paternity testing or court proceedings. However, as conceded by Mr Burke, the letter of 22 September 2004 was addressed to the respondent at the wrong street number. I cannot therefore make a finding that the respondent received the letter of 22 September 2004. Mr Burke submitted that the application itself constituted an offer which should be considered. While I accept that the respondent, once served with the application could have responded more promptly to the interim application, I am not satisfied the application itself constituted what could be termed an offer. The application contemplated a first step, parentage testing. The results of that test would determine the second step and final outcome. There was further correspondence in evidence [Ex 2] which included a letter of offer from the applicant’s solicitor of 28 July 2005 in relation to costs. As the offer well exceeds the order I propose to make, the letter does not assist the applicant.
g)any such matters as the court considers relevant.
These were proceedings by a step-father of a child, now 14 years of age, against the child’s biological father. The respondent had never lived with TEC’s mother. The applicant has supported the child TEC, although he has been under no legal obligation to do so. It was submitted by Mr Burke that these unusual circumstances should be taken into account in deciding the question of costs. The applicant married TEC’s mother in June 2001 when she already had 9 children, 3 of whom were living with her. There was only very limited evidence before me to suggest the respondent had any relationship with TEC during the period the applicant was married to TEC’s mother, and there is no evidence before me as to efforts made by TEC’s mother to obtain child support from the respondent in relation to TEC. There was no evidence before me sufficient to support a finding that the respondent knew he was TEC’s biological father before the parentage testing was undertaken in 2005.
As a preliminary step to making a costs order, I must find that there are circumstances which justify the making of such an order. Mr Burke submitted that the very fact that a child’s non-biological parent was making an application for financial support from the child’s biological parent was enough to warrant a departure from the general rule that each party pay their own costs. I do not accept this submission. However, I am satisfied on the basis of the respondent’s non-compliance with court orders, his delay in responding to the applicant’s interim application that there should be a limited costs order in favour of the applicant.
I am not satisfied that the circumstances in this case warrant a costs order on an indemnity basis. As the Full Court said in Kohan’s case (already cited), the circumstances justifying a departure from the ordinary rules relating to party and party costs should be of an exceptional kind. I find no such circumstances in this case.
In the exercise of my discretion, I make a costs order in favour of the applicant in the sum of $1,180.00 payable within two months.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Sexton FM
Associate: Collette McFawn
Date: 11 August 2005
0
0
1