Imani & Etola (No 2)
[2024] FedCFamC1F 380
•4 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Imani & Etola (No 2) [2024] FedCFamC1F 380
File number: MLC 4188 of 2015 Judgment of: STRUM J Date of judgment: 4 June 2024 Catchwords: FAMILY LAW – COSTS – Where the husband has been wholly unsuccessful – Where the husband’s applications were held to be an abuse of process—Where the husband’s applications were held to be a waste of the Court’s and the wife’s time—Where there are circumstances that justify an order for costs in favour of the wife Legislation: Evidence Act (Cth) ss 128,128(5)
Family Law Act 1975 (Cth) ss 102QAB(6), 117, 117(2), 117(2A), 117AA, 117AC
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.09(1)(c)
Cases cited: Carson v Turner [2019] VSC 427 [67]
Imani & Etola [2023] FedCFamC1F 905
LGM & CAM [2011] FamCAFC 195 [171]
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.
Division: Division 1 First Instance Number of paragraphs: 31 Date of last submissions: 26 January 2024 Date of hearing: Hearing on the papers Place: Melbourne Counsel for the Applicant: Ms Lane Solicitor for the Respondent: Alexis Bebbington, Bebbington Lawyers ORDERS
MLC 4188 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS IMANI
Applicant
AND: MR ETOLA
Respondent
ORDER MADE BY:
STRUM J
DATE OF ORDER:
4 JUNE 2024
THE COURT ORDERS THAT:
1.The Respondent pay the Applicant’s costs in the fixed sum of $6,530, being the costs of and incidental to:
(a)The Respondent’s Application in a Proceeding filed on 11 July 2023; and
(b)The Respondent’s Application in a Proceeding filed on 14 September 2023; and
(c)The Respondent’s Application for Review filed on 15 September 2023 (as amended on 20 October 2023; and
(d)The Applicant’s Application in a Proceeding filed on 22 November 2023.
2.The Applicant’s Application in a Proceeding filed on 22 November 2023 and the Respondent’s Response to an Application in a Proceeding filed 28 December 2023 be otherwise dismissed.
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 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 the pseudonym Imany & Etola has been approved pursuant to s 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRUM J:
By Application in a Proceeding filed on 22 November 2023 the applicant wife seeks that the first respondent husband pay her costs (“Cost Application”), in a fixed sum, of and incidental to his Applications in a Proceeding filed on 11 July 2023 and 14 September 2023 (“husband’s Applications”), as well as of her Costs Application. The husband’s Applications were dismissed by Austin J on 23 October 2023 and his Honour delivered ex tempore reasons for judgment that day (Imani & Etola [2023] FedCFamC1F 905).
For the reasons which follow, I shall order that the husband pay the wife’s costs fixed in the sum of $6,530, as sought by her.
BACKGROUND
Final parenting orders were made in proceedings between the parties on 1 February 2018. Between 2018 and 2021, various orders were made allowing documents to be released and used in professional disciplinary and regulatory proceedings in relation to the husband.
In relation to the two Applications in a Proceeding filed on 11 July 2023 and 14 September 2023 by the husband, in his reasons for judgment, Austin J describes them as “seeking swathes of orders” (at [8]).
On 15 September 2023, a Senior Judicial Registrar referred discrete parts of the second Application in a Proceeding to me, to be heard on 1 December 2023, which hearing date was subsequently vacated and brought forward to 27 November 2023. The Senior Judicial Registrar otherwise dismissed the balance of the father’s Applications.
On 15 September 2023, the husband filed an Application for Review of the Senior Judicial Registrar’s orders, which he subsequently amended on 20 October 2023 (“Review Application”). That application was heard by Austin J on 23 October 2023, conducted electronically.
At [12] of his reasons for judgment, Austin J said:
There was no appearance by the applicant father at the hearing. He connected to the Microsoft Teams environment before 9.30 am using the connection details supplied, but then disconnected shortly before the hearing commenced. Nor was there any appearance by the mother.
Austin J dismissed the Review Application, as well as the remaining extant aspects of the husband’s Applications that were adjourned for hearing before me, and he vacated that hearing.
Austin J said:
21The review application is dismissed for lack of merit, rather than because of the father’s failure to appear and prosecute it.
…
32The review application is plainly an abuse of process. It and the interlocutory applications which preceded it should be summarily dismissed pursuant to r 10.09(1)(c) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), which means the listing before the other judge on 27 November 2023 may also now be vacated.
The wife filed her Costs Application on 18 November 2023, together with a supporting affidavit. The matter was listed for mention before me on 12 December 2023 and I made orders requiring the husband to file a Response to an Application in a Proceeding, as well as for each party to file any written submissions and thereafter for the mother’s Costs Application to be determined on the papers in chambers. The husband did not appear at the hearing that day.
On 28 December 2023, the husband filed a Response and supporting affidavit opposing the wife’s Costs Application.
Pursuant to the orders made by me on 12 December 2023, the wife filed written submissions on 5 January 2024. The husband filed two written submissions on 19 January 2024; the first spanning 55 pages and the second spanning 116 pages. The husband’s first submissions address the wife’s Costs Application, in the first six pages, and thereafter attach various transcripts, judgments and emails spanning the proceedings. The husband’s second submissions, filed without leave, are titled “SECOND SUBMISSION OF [sic] BEHALF OF RESPONDENT AS TO COSTS TO EXPLAIN HIS REQUEST FOR FILES”. At paragraph 2 of those submissions, the husband states: “This is to highlight the reason why I requested the files that I did as they formed the basis of errors in common law” [sic]. The husband appears to have mistaken the opportunity to file submissions in relation to the wife’s Costs Application as an opportunity to raise swathes of the errors he perceives were made in the course of the proceedings, which commenced in 2015. The second submissions do not address Costs Application; are largely unintelligible; are akin to wading through treacle; and are of no assistance to the Court. Accordingly, although I have read them, I do not take them into consideration when determining the wife’s Costs Application. Indeed, even his first submissions, which purport to address the wife’s Costs Application, are largely unintelligible and unhelpful, and do not address the relevant law and authorities in relation to orders for costs in this Court and the application thereof to the circumstances in this case.
The wife filed submissions in reply (to those filed by the respondent) on 26 January 2024.
RELEVANT PROVISIONS AND LEGAL PRINCIPLES
The starting point for the consideration of the wife’s Costs Application is s 117 of the Family Law Act 1975 (Cth) (“Act”), which relevantly provides as follows:
(1)Subject to subsection (2), subsection 102QAB(6) and sections 117AA, 117AC, each party to proceedings under this Act shall bear his or her own costs.
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A)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, 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.
…
Although s 117(2) requires a finding of justifying circumstances as an essential prerequisite 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.
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.
I will deal with such of the matters under s 117(2A) that are relevant.
(a) The financial circumstances of each party to the proceedings
There is no evidence before me as to the financial circumstances of the parties.
(b) Whether the parties are in receipt of legal aid
Neither party was in receipt of legal aid.
(c) The conduct of the parties to the proceedings
In her written submissions at paragraph 20, the wife submits:
The primary argument in support of the Applicant’s costs application is that the three Applications filed by the First Respondent were an abuse of process. Indeed, Austin J expressly made that finding in respect of the Application for Review. His Honour also considered that it was devoid of merit. Given the similarities between the Application for a Review and the two Applications in a Proceeding and also considering Austin’s J summary dismissal of the two Applications in a Proceeding, it is clear that His Honour also viewed the two Applications in a Proceeding as an abuse of process.
(Footnotes omitted)
The wife, in her submissions, at the footnotes within paragraph 20, refers to [21] and [32] of Austin J’s reasons for judgment, to which I have referred above. She submits that:
The primary argument in support of the Applicant’s costs application is that the three Applications filed by the First Respondent were an abuse of process. Indeed, Austin J expressly made that finding in respect of the Application for Review. His Honour also considered that it was devoid of merit.
(Footnotes omitted)
I agree with that submission.
The wife proceeds to address what she submits is an abuse of process by the husband through the filing of his Applications in a Proceeding and Review Application. She submits the three Applications of the husband were “manifestly without any proper basis or foundation and were vexatious” (at paragraph 22 of her written submissions). At [14]-[31] of his reasons for judgment, Austin J succinctly addresses why the husband’s Applications are fanciful and an abuse of process. I respectfully agree with his Honour’s reasons and will not repeat them here.
It is further clear from the husband’s Response to the wife’s Costs Application, and from his written submissions, that he seeks further orders that go beyond responding to the scope of the wife’s Costs Application, being (in his Response):
2.Issuance of retrospective s 128 certificates pursuant to s 128(5) of Evidence Act (Cth) for all documents summonsed and transcripts of cross-examination in relation to fertility clinics, sperm donation and communication with [Dr X] taking into consideration:
a)LGM & CAM [2011] FamCAFC 195 [171]: As can be seen, the scope of the word ''impropriety'' is wide and we are of the view that his Honour O'Ryan J's failure to alert the wife to her right against self incrimination and the subsequent limiting of the ambit of the s 128 certificate falls within the definitions of ''impropriety'' to which the Chief Justice referred at [29] in Parker.
b)Carson v Turner [2019] VSC 427 [67] determined the legal definition 'the use of the terms shall' and must' indicate that the power to inquire is a mandatory function'
I do not understand what the husband seeks in or by these orders. However, they are not germane to the determination of the wife’s Costs Application.
I am satisfied that the husband’s conduct, both in filing his Applications in a Proceeding and his Review Application that were dismissed by Austin J, and also by his written submissions in opposition to the wife’s Costs Application, has wasted both the wife’s and the Court’s resources and time. This is a factor I take into account in determining whether to make an order for costs.
(d) Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court
This subsection is not relevant to the wife’s Costs Application.
(e) Whether any party to the proceedings has been wholly unsuccessful in the proceedings
It is clear from Austin J’s judgment that the husband has been wholly unsuccessful in his Applications in a Proceeding, as well as his Review Application.
CONCLUSION
In the circumstances, and for the reasons above, I find that there are circumstances that well justify the Court making an order for costs.
The wife seeks costs in a fixed sum, relying upon invoices attached to her written submissions as “Schedule A”. She submits that, although she did not file documents or participate in the hearing before Austin J, she incurred fees in obtaining legal advice and, at paragraph 8 of her submissions in reply, she submits that having been served with the husband’s Applications, she was entitled to do so. She submits that she obtained such advice and decided not to participate in proceedings “which were doomed to fail”. That was insightful, if not prophetic. Hence, the quantum sought in her Costs Application is lower than otherwise would have been the case. I agree.
Accordingly, I will order that the husband pay the wife’s costs fixed in the sum of $6,530, as set out in Schedule A of her written submissions. The balance of the orders sought by the husband in his Response have no merit and his Response will be dismissed.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strum. Associate:
Dated: 4 June 2024
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