JOANS and SINGERSON

[2017] FCWA 58

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: JOANS and SINGERSON [2017] FCWA 58

CORAM: DUNCANSON J

HEARD: WRITTEN SUBMISSIONS RECEIVED 31 MARCH, 21 APRIL AND 2 JUNE 2017

DELIVERED : 12 JUNE 2017

FILE NO/S: PTW 726 of 2011

BETWEEN: MS JOANS

Applicant

AND

MR SINGERSON
First Respondent

AND

MS SINGERSON
Second Respondent

Catchwords:

COSTS - enforcement proceedings - husband's failure to comply with previous orders - conduct - husband wholly unsuccessful - indemnity costs appropriate - costs of a specific amount ordered

Legislation:

Family Law Act 1975 (Cth) s 117
Child Support (Assessment) Act 1989 (Cth)
Family Law Rules 2004 (Cth) r 19.08, r 19.18

Category: Reportable

Representation:

Counsel:

Applicant: [Ms Kyle]

First Respondent : Self-Represented Litigant

Second Respondent : Mr K Mwende

Solicitors:

Applicant: DCH Legal Group

First Respondent : Self-Represented Litigant

Second Respondent : O'Sullivan Davies

Case(s) referred to in judgment(s):

Collins and Collins (1985) FLC 91-603

Fitzgerald v Fish (2005) 33 Fam LR 123

I and I (No 2) (1995) FLC 92-625

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1[Ms Joans], the wife seeks payment of her costs from the husband, [Mr Singerson] in relation to enforcement proceedings.

BACKGROUND

2On 28 June 2016 the wife commenced proceedings for enforcement, seeking orders that the husband pay various amounts to her. She subsequently amended her application on 28 July 2016 and sought payment of additional amounts.

3On 3 March 2017 I delivered judgment in the enforcement proceedings. On that date I made orders providing for payment of various sums by the husband to the wife.

4Relevantly I ordered that the wife shall file submissions as to costs within 28 days. I ordered that within 21 days of receipt of the wife’s submissions, the husband shall file submissions as to costs. I further ordered that within 14 days of receipt of the husband’s submissions, [Ms Singerson], the husband’s sister who was the second respondent shall file submissions as to costs.

5The wife filed her submissions as to costs on 31 March 2017.

6The husband sent a letter dated 21 April 2017 to the court, which was headed “Costs Submission – Enforcement Proceedings 15 November 2016”.

7In response to a request from the Principal Registrar seeking further information as to the basis of the costs sought, the wife filed supplementary submissions on 2 June 2017.

8No submissions have been received from the second respondent and I infer that she does not seek payment of her costs.

THE ORDERS SOUGHT

9The wife seeks an order that the husband pay her costs fixed in the sum of $23,200 as set out in the schedule attached to her submissions.

10It was difficult to find any meaningful reference to costs in the husband’s said letter. He contended he was too ill to properly prepare a costs submission as ordered and reserved the right to appeal any adverse finding against him. On the final page of his letter the husband wrote:

[Ms Kyle] fails to and or refuses to answer my written requests for a breakdown of her claimed costs in these proceedings – a breach in itself if I am not mistaken!

My guess is that within in the costs [Ms Kyle] is now claiming, she will be stupid enough to be trying to recoup the fees she charged to the case file while falsely, deceitfully, unethically and unscrupulous purporting to be my sister’s lawyer!!!!!

If I feel better soon I will file another costs submission – currently I am too stressed and ill to fight this disgrace of a Court

THE LAW

11Subsection 117(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that, subject to s 117(2), each party to proceedings shall bear his or her own costs. Subsection 117(2) provides that if the court is of the opinion there are circumstances that justify doing so, the court may, subject to s 117(2A), make such order as to costs as it considers just. Subsection 117(2A) provides as follows:

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.

12The Full Court of the Family Court of Australia in Collins and Collins (1985) FLC 91-603 described the discretion conferred by s 117 as being a “broad” one, and noted that the s 117(2A) factors are not to be read in a restrictive way. The Full Court said in I and I (No 2) (1995) FLC 92‑625 at 82,277, the relevant matters in s 117(2A) “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs”. The Full Court in Fitzgerald v Fish (2005) 33 Fam LR 123 also made clear that any one of the factors referred to in s 117(2A) may be the sole foundation for an order for costs.

The financial circumstances of the parties

13My findings as to the parties’ financial circumstances are as set out in the judgment. I found that the husband and his sister together own property and resources valued at $5,182,761. It was submitted by inference that the husband has property interests valued at about $2,500,000. He did not suggest otherwise.

14The husband does not provide any useful information regarding his financial position.

15The husband has the capacity to meet a costs order, should one be made.

Legal Aid

16Neither party to the proceedings is in receipt of assistance by way of Legal Aid.

Conduct

17The husband has not moderated his conduct as is evidenced by the terms of his said letter dated 21 April 2017.

18The schedule attached to the wife’s submissions refers to perusing in excess of 100 different emails from the husband concerning various different matters.

19At [90] of my judgment I found:

… Until the hearing, the approach taken by the first respondent has been to ignore the orders made for payment of sums due. Having regard to his attitude to the applicant and these proceedings as is evidenced by the orders sought by him, I have little confidence he will pay the outstanding amount unless the orders are enforced.

Failure to comply with previous orders of the Court

20The enforcement proceedings were necessitated by the husband’s failure to comply with previous orders. The amounts ordered to be enforced included amounts payable pursuant to Full Court orders, interest on a costs order and school fees ordered pursuant to the Child Support (Assessment) Act 1989 (Cth). I also ordered payment of the fees of Single Expert Witnesses.

21During the course of the proceedings the wife had to file various interlocutory applications necessitated by the husband’s failure to comply with orders for filing of documents, to attend court and to disclose financial information. The second respondent was joined upon an application by the wife. The husband’s psychiatrist gave evidence to the effect that the husband had the capacity to conduct the proceedings.

Wholly unsuccessful in the proceedings

22Most of the orders sought by the husband in his response dated 14 November 2016 and written submissions filed 1 December 2016 did not relate to the enforcement proceedings and were not the subject of evidence at the hearing. He sought an adjournment of the hearing, but his application in that respect had already been refused. He sought that I be discharged as the appointed Judge in respect of all current and future proceedings, but made no application for me to disqualify myself. The remaining orders sought related to matters which had no bearing on the enforcement proceedings. In that respect the husband was wholly unsuccessful in the proceedings.

23The orders sought by the wife at the hearing were contained in a minute of proposed enforcement orders filed 8 November 2016. At the conclusion of the hearing, the orders sought by the wife were contained in an amended minute of proposed enforcement orders attached to her closing submissions filed 16 February 2017. The most significant amendment to the orders sought by the wife was the introduction of child support modification orders, pursuant to which the wife sought lump sum child support. Those orders were not sought by the wife at the hearing. I declined to make the child support orders. The husband had not had an opportunity to respond to the amendment and the evidence did not enable me to satisfy myself as to the matters about which I was required to be satisfied.

24Almost all of the remaining orders sought by the wife were made and the husband’s opposition in those respects was without merit.

Offers

25There were no relevant offers.

Other matters

26No other matters are relevant.

CONCLUSION AS TO COSTS

27There are circumstances which justify the making of an order for costs in favour of the wife, including the husband’s conduct and his failure to comply with previous orders of the court. Having regard to and balancing all of the above matters I am satisfied the overall circumstances justify the making of an order for costs.

Indemnity costs or party/party costs?

28The fixed costs claimed as set out in the schedule attached to the wife’s supplementary submissions totalling $23,200 are those on an indemnity basis, noting however that the wife submits they do not comprise the entirety of the costs incurred by her.

29The costs sought by the wife do not include her costs for seeking advice from her legal representative nor for providing instructions on correspondence received from the husband and the second respondent.

30The wife explains that her total costs of the proceedings on an indemnity basis amount to in excess of $28,000. She does not seek the costs of the proceedings on an indemnity basis but she seeks that her costs for the specific work listed in the schedule attached to her supplementary submissions be paid on an indemnity basis in the sum of $23,200. The same costs on a party/party basis amount to $17,241.

31Although the wife seeks costs on an indemnity basis she has not complied with r 19.08(3) of the Family Law Rules 2004 (Cth). The purpose of that rule is to ensure the court is aware of the quantum of costs should an order be made on an indemnity basis. In the circumstances of this case I shall dispense with compliance with the rule. I do that because the schedule attached to the supplementary submissions provides me with information as to quantum on both an indemnity and party/party basis.

32The matter was complex and required a considerable amount of work, on behalf of the wife.

33Although an order for costs on an indemnity basis is a very great departure from the normal standard, I am of the view that such an order is appropriate in the circumstances of this case.

34I referred above to paragraph 90 of my judgment when considering the husband’s conduct.

35No improvement in the husband’s attitude to the applicant and these proceedings was evident from his submissions in which he wrote at the second paragraph:

I don’t even know where to start with this disgrace of a case, unethical lawyers, perjurous Applicant and intrinsically biased Bench/Court.

36The husband’s conduct as a litigant and failure to comply with court orders warrants an order for indemnity costs for the specific items of work set out in the schedule attached to the supplementary submissions, except for one item.

37Item 16 on the said schedule contains a charge of $3,500 for “Drawing closing submissions for enforcement hearing – 8 hours in total”. The wife’s closing submissions included an amended minute of proposed enforcement orders, in which she sought child support modification orders as explained at [23] above. In those circumstances, indemnity costs for that item of work are not appropriate and the party/party amount $2,220 is an appropriate charge. The difference between the two amounts is $1,280.

Costs fixed or assessed?

38The wife refers to rule 19.18 which sets out methods of calculation of costs. The wife seeks costs in accordance with rule 19.18(1)(a), namely an order for payment of the specific amount of $23,200 as itemised in the schedule attached to her supplementary submissions.

39In seeking a specific amount, the wife refers to matters contained in Rule 19.18(3) including:

•the complexity of the enforcement proceedings;

•the lack of evidence provided by the husband as to his financial circumstances requiring investigative steps through subpoena and disclosure from the second respondent;

•various hearing and interlocutory applications and the time taken as a result of those interlocutory proceedings;

•the husband’s unreasonable conduct in the proceedings.

40I accept the wife’s submission that the proceedings had a degree of complexity about them. That included the necessity for an assessment as to whether the husband had the capacity to conduct the proceedings. I further accept that the wife behaved reasonably throughout and the husband did not. Although his behaviour was mostly courteous and cooperative at the hearing, his opposition to the application was without merit and his approach to the proceedings was overshadowed by his poor attitude towards the wife and those advising her.

41The wife was put to expense by joining the second respondent and the various interlocutory hearings increased that expense. Although the enforcement application was dealt with contemporaneously with a part heard contempt application, most of the interlocutory hearings concerned the enforcement proceedings, and the contempt application was adjourned to a date to be advised. The husband’s failure to provide financial information and to file a financial statement necessitated the investigative work by the wife.

42The husband did not desist in his correspondence to the wife’s solicitors, incurring further expense, and his conduct in the proceedings was unreasonable.

43I consider I have sufficient information to enable me to broadly fix an amount on a logical, fair and reasonable basis.

44Having regard to the main purpose of the Rules, which is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case, I am satisfied I should make an order for payment of costs of a specific amount as sought by the wife. In doing so, I have had regard to the complexity of the issues, the husband’s behaviour and the time properly spent on these protracted proceedings.

45The amount sought by the wife is $23,200 which she says does not comprise the entirety of the costs incurred by her in the proceedings. I intend to reduce the amount sought by $1,280 for the reason set out at [37] above.

46To avoid the delay and expense of an assessment of costs and in my discretion I intend to order that the husband pay the wife’s costs in the specific sum of $21,920. I consider this is an order which is just having regard to the matters referred to above.

THE ORDER

1The husband shall pay to the wife the sum of $21,920 within 42 days.

I certify that the preceding [46] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate