KAMINSKI & MCCARTHY AND ANOR

[2014] FamCA 453

FAMILY COURT OF AUSTRALIA

KAMINSKI & MCCARTHY AND ANOR [2014] FamCA 453

FAMILY LAW – COSTS – Where the respondent sought costs against the applicant for a Contravention Application which was dismissed by the court – Where relevant legal principles applied – Where the impecuniosity of a party is not a bar to making a costs order against them – Where the court determined that the applicant’s financial position is such it outweighs the consideration that arises from the failure of the contravention proceedings – Where no order made as to costs.

Family Law Act 1975 (Cth) ss 117, 117(2), 117(2A)

D & D (Costs)(No 2) (2010) FLC 93-435

APPLICANT: Ms Kaminski

FIRST RESPONDENT: Mr McCarthy

SECOND RESPONDENT: Dr D Kaminsky

FILE NUMBER: SYC 6500 of 2010

DATE DELIVERED: 27 June 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 28 April 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hill

SOLICITOR FOR THE APPLICANT: Batey’s Family Lawyers

THE FIRST RESPONDENT IN PERSON: No appearance

COUNSEL FOR THE SECOND RESPONDENT: Mr Hodgson

SOLICITOR FOR THE SECOND RESPONDENT: Prime Lawyers

Orders

1. That there be no order as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kaminski & McCarthy and Anor 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 SYDNEY

FILE NUMBER: SYC 6500 of 2010

Ms Kaminski

Applicant

And

Mr McCarthy

First Respondent

And

Dr D Kaminski

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 28 March 2014 I dismissed a Contravention Application filed by Ms Kaminski on 26 September 2013 (‘the applicant’).  Dr D Kaminski (‘the respondent’), who is the applicant’s mother now seeks an order for the costs of those proceedings.

2. I found that the applicant had failed to establish that the respondent was aware of the orders said to have been breached.

3. I further found that, in any event, the evidence was not capable of establishing a prima face case in three out of the four alleged contraventions.

4. The proceedings were thus dismissed without the respondent presenting any evidence to the court.

5. Pursuant to section 117 of the Family Law Act 1975 (Cth) (‘the Act’) each party to proceedings under the Act shall bear his or her own costs. Pursuant to section 117(2) if the court is of opinion that there are circumstances that justify it in doing so it may make such order as the court considers just. In considering whether or not to make a costs order the court is to have regard to the matters contained in section 117(2A).

6. The applicant’s financial position is poor.  She has the care of three children between the age of four and six.  She deposes in her affidavit filed 11 April 2014 to a weekly income of $959 and expenses of $988 per week.

7. Although she has a higher degree in a field of science she has not been employed in that field since June 2006 and has not worked at all for some years.

8. She receives a rental income of $220 per week from a property at Q Town.  The respondent has taken proceedings against the applicant in the Supreme Court of New South Wales alleging that she and the applicant’s father are beneficial owners of at least 6/7ths of that property.  Those proceedings are yet to be determined.

9. Apart from her interest in the Q Town property the applicant’s assets are meagre.

10. She has a debt to lawyers previously engaged by her in the sum of at least $20 000 and has a personal loan from cousins in the sum of $20 000.

11. She has incurred fees in the Supreme Court proceedings in relation to the Q Town property in the sum of $43 000.

12. She currently has on foot property proceedings between herself and her former partner.

13. Although she paid her solicitor for the Contravention Application she was able to secure the pro bono attendance of counsel.

14. The respondent to the Contravention Application is employed in a profession.  In her Financial Statement filed 16 April 2014 the respondent states she has an average weekly income of $2 800. She asserts that she has weekly expenses of $4 565 but did not say how that total was calculated.

15. In lengthy parenting proceedings between the applicant and the applicant’s former partner the respondent intervened and she was ordered to pay the costs of the Independent Children’s Lawyer and a proportion of the partner’s costs.

16. She is a party to the current property proceedings between the applicant and her former partner and has incurred fees of nearly $100 000 in that matter.

17. Further, in her Financial Statement, she asserts that she has property interests in the sum of $798 845 plus a superannuation entitlement of $425 000.

18. These factors support there being no order to costs.  Whilst both parties have and are continuing to incur considerable expense in the proceedings between themselves and the applicant’s former partner there is a huge disparity in income and assets between the two.

19. So far as I am aware neither party is in receipt of legal aid.

20. The applicant was wholly unsuccessful in the contravention proceedings.  Indeed, in relation to three of the four contraventions they should not have been brought before the court at all.  The evidence was not capable of establishing a breach of the orders.

21. To the fourth contravention the applicant alleged that the respondent breached an order not to approach or attend the children’s playgroup by:

    Waiting for the mother and the children on the walking route between the mother’s home and play group.  When spotted, the intervener drove away but had merely relocated to a place closer to the children’s play group.  The intervener called out to [B] ‘hello [B]’.

22. Whilst I found that there was evidence capable of supporting that allegation it was by no means certain that it would have been established.

23. Whilst the respondent filed evidence which, she says, establishes she did not breach the orders, without the benefit of extensive cross-examination of the parties the court cannot determine which version should be accepted.

24. Contravention applications need to be taken extremely seriously.  The court can impose serious sanctions if contraventions are established.

25. This factor supports an order that the applicant pay the respondent’s costs.

26. No other matters raised by section 117 that are relevant.

The issue as to costs

1. The issue then is to weigh the impecuniosity of the applicant against the complete failure of the contravention proceedings.

2. It was submitted on behalf of the respondent that the court could ameliorate the harshness of any costs order by ordering that the costs be paid only at the end of the outstanding property proceedings.  There is some attraction to that submission, notwithstanding I do not know when the property proceedings are likely to take place and what is the subject matter of those proceedings.  What the financial position of the applicant will be at the end of that proceeding is entirely unknown.

3. I take into account that, in the appropriate circumstances, the impecuniosity of a party is not a bar to making a costs order against them (D & D (Costs)(No 2) (2010) FLC 93-435).

Conclusion

1. On balance, having regard to the relatively modest costs incurred by the respondent  in defending the contravention proceedings (approximately $9 000) I am persuaded that the applicant’s financial position is such it outweighs the consideration that arises from the failure of the contravention proceedings and, accordingly, there should be no order as to costs.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 27 June 2014.

Legal Associate: 

Date:  27 June 2014