Kamryn & Kamryn
[2022] FedCFamC1F 298
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kamryn & Kamryn [2022] FedCFamC1F 298
File number(s): MLC 6779 of 2020 Judgment of: JOHNS J Date of judgment: 5 May 2022 Catchwords: FAMILY LAW – COSTS – where the wife seeks costs on an indemnity basis – where the husband opposes an order as to costs – consideration of s 117(2A) factors – where proceedings were conducted in Country B courts – where final orders were made by consent in another jurisdiction – where the wife seeks to claim costs associated with proceedings in another jurisdiction – where there has not been a testing of evidence – where the wife’s application is refused Legislation: Family Law Act 1975 (Cth) ss 117(1), 117(2), 117(2A)
Federal Circuit and Family Court of Australia (Family Law) Rules (2021) r 12.17(1)
Cases cited: I and I (1995) FLC 92-625 Division: Division 1 First Instance Number of paragraphs: 61 Date of hearing: Written Submissions in Chambers Place: Melbourne The Applicant: In Person Solicitor for the Respondent: Forte Family Lawyers ORDERS
MLC 6779 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS KAMRYN
Applicant
AND: MR KAMRYN
Respondent
ORDER MADE BY:
JOHNS J
DATE OF ORDER:
5 MAY 2022
THE COURT ORDERS THAT:
1.That the wife’s Application for Costs filed 18 October 2021 be 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).
Section 121 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 Kamryn & Kamryn is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
Final orders were made on 19 October 2021 (“the Final Orders”) dismissing all extant applications with respect to the parties’ parenting applications.
The parties consented to the dismissal of their applications before this Court on the basis that consent orders were made in the concurrent proceedings in Country B, the effect of which was to resolve the parenting dispute.
At an earlier hearing before me on 5 October 2021, I made an order reserving the parties’ costs.
Following the making of the Final Orders, the wife filed written submissions dated 18 October 2021 seeking a costs order against the husband. The wife seeks that the husband pay her costs of the proceedings on an indemnity basis, or alternatively, on a solicitor and client basis. In support of that application she relies upon a series of bank statements disclosing payments made by her to various solicitors in both Australia and Country B who the wife says acted on her behalf in the proceedings in both countries.
The orders sought by the wife are set out at paragraphs 89 and 90 of her written submissions and provide as follows:-
·Costs be awarded on an indemnity basis in the amount of the wife’s total legal costs, being $45,130.00, in addition to outstanding payments to her Australian solicitors in the amount of $22,608.30.
·In the alternative, the outstanding payments due to the wife’s Australian solicitors be borne by the husband, in the amount of $22,608.30.
The husband opposes the wife’s application for costs. He relies upon written submissions dated 3 November 2021 in reply which contend that the Court should adopt the usual position prescribed by the Family Law Act 1975 (Cth) (“the Act”), that is, that the parties should bear their own costs of the proceedings.
These are my Reasons for Judgment with respect to the wife’s application for costs.
BACKGROUND
The parties have been engaged in litigation in Australia and Country B since their separation in 2013.
There are three children of the marriage, Ms C, aged 22, Mr D, aged 18, and X, aged 9. All of the children lived with the wife upon separation.
Following separation proceedings were commenced in the Court of Country B with respect to both parenting and financial matters.
Following a contested hearing, final orders were made in Country B on 5 January 2016. Those orders were in effect until July 2018, when the wife and eldest child, Ms C, relocated to Australia. At the time, the two younger children, Mr D and X, remained in the husband’s care in Country B.
In June 2018 the wife filed in the Court of Country B an application seeking orders permitting Mr D and X to relocate to Australia with her. Orders were made in those proceedings on 30 December 2019 permitting the wife to relocate with X to Australia. Those orders made provision for the father to spend time with the child, X, on a number of occasions throughout the year.
The husband appealed those orders in the Court of Appeal of Country B. On 24 June 2020 that appeal was dismissed.
On 26 June 2020 the husband filed an Application for Final Orders in this court, effectively seeking a variation of the final orders made in the Court of Country B. The husband contended that the orders made by the Court of Country B were impractical, given the time and cost associated with travel between Australia and Country B as well as the impacts of the COVID‑19 pandemic and associated travel restrictions.
The matter first came before a Registrar in mid-2020. That day procedural orders were made, including listing the matter for hearing with respect to the threshold Rice & Asplund issue raised on behalf of the wife.
The matter first came before me for a First Day Less Adversarial Hearing on 25 February 2021. That day, I made trial directions and listed the matter for hearing to commence on 30 August 2021.
On 30 August 2021, the parties and their legal representatives appeared at Court. That day orders were made by consent dismissing parts of the applicant’s Further Amended Initiating Application filed 31 May 2021, relating to Child Maintenance. In addition the parties reached an agreement in principle with respect to the parenting dispute. It was agreed between them that the balance of the proceedings ought be adjourned for mention before me on 5 October 2021 to enable the parties to seek orders by consent in the proceedings between them in Country B so as to finalise the dispute. To that end, Notation A to the orders provides as follows:-
A.The parties agree to do all acts and sign all documents as are reasonably required to ensure that Consent Orders are made in Country B, subject to Country B law, to provide that:
(a)The Father Mr Kamryn and Mother Ms Kamryn have parental responsibility for X born in 2012 pursuant to section 4(1) of Country B Children Law (2012 Revision).
(b)Notwithstanding the orders made 30 December 2019:
(i)X spend time with the Father for a period of up to 5 weeks from 20 March 2022, as nominated by the Father no less than 60 days before the time commencing, with the Father to ensure school attendance;
(ii)At any other time that the Father travels to Melbourne, for the entire duration of his trip, provided that the trip is 5 weeks or less:
1. The Father has provided the Mother with written notice of the dates of his trip at least 60 days prior to his arrival in Australia; and
2. The Father facilitates X’s attendance at school on all compulsory school days, unless otherwise agreed between the parties in writing.
The orders also made provision for the parties to make application for costs upon the filing of written submissions.
When the parties returned to Court on 5 October 2021, it became apparent that the matter had not yet resolved due to delays in filing the proposed consent orders with Country B court. The matter was thus further adjourned for mention on 21 October 2021, with a Notation providing that orders would be made in Chambers dismissing the application in the event that the parties produced a joint letter confirming that Orders had been made in Country B to resolve the proceedings.
The parties did, in fact, produce such a joint letter, and on 19 October 2021 I made final orders dismissing all extant applications and vacating the hearing date listed for 21 October 2021.
POSITION OF THE PARTIES
By her submissions filed 19 October 2021 the wife seeks an order that the husband pay her costs of the proceedings, such costs to be paid on an indemnity basis. It is her case that the husband ought pay her costs in the amount of $67,738.30, that being the total legal costs of $45,130.00 paid by her as well as her outstanding legal costs of $22,608.30. In the alternative, the wife seeks that the sum of $22,608.30 payable to her previous solicitors be paid by the husband.
The husband opposes the wife’s application and submits that the parties should each bear their own costs.
In the event the Court were to orders costs, the husband submits the wife’s conduct in the proceedings justifies the making of a costs order against her.
It is the husband’s position that had the wife not initiated the application for costs, he would not have sought a costs order against her.
LEGAL PRINCIPLES
The question of costs is governed by s 117(1) of the Family Law Act 1975 (Cth) which provides:-
Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.
On that basis, the general rule in proceedings under the Act is that subject to the provisions of s 117(2), the parties to a proceeding shall bear their own costs of that proceeding.
Section 117(2) of the Act provides that if the Court is of the opinion that there are circumstances to justify it doing so, the Court may, subject to subsections (2A), (4), (4A), (5) and (6) and the relevant Rules of Court, make such order as to costs and security for costs as the Court considers just.
Section 117(2A) of the Act provides that in determining what, if any, order should be made under subsection (2), the Court must have regard to the following:-
(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.
Should it be determined that it is just to make an order as to costs, costs are not awarded to punish the unsuccessful party, but rather are compensatory in the sense that they are awarded to ameliorate the expense of the successful party resulting from their having been required to participate in the proceedings.
The discretion afforded by s 117 of the Act is broad and the relevant factors contained in s 117(2A) are not to be read in a restrictive way; any one of those factors may found an order for costs but all factors must be taken into account and balanced (I and I (1995) FLC 92-625).
The method of calculation of costs is prescribed by r 12.17(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules (2021) (“the Rules”), which provides:-
(1)The court may order that a party is entitled to costs:
(a)of a specific amount; or
(b)as assessed on a particular basis (for example, party and party, solicitor and client or indemnity); or
(c)to be calculated in accordance with the method stated in the order; or
(d)for part of the proceeding, or part of an amount, assessed in accordance with Schedule 3.
Rule 12.17(3) sets out the method of calculation of costs, providing that:-
(3)In making an order under subrule (1), the court may consider the following:
(a)the importance, complexity or difficulty of the issues;
(b)the reasonableness of each party's behaviour in the proceeding including by having regard to the matters set out in subrule 12.08(2);
(c)the rates ordinarily payable to lawyers in comparable proceedings;
(d)whether a lawyer's conduct has been improper, unfair, unreasonable or disproportionate;
(e)the time properly spent on the proceedings, or in complying with pre-action procedures;
(f)whether expenses (paid or payable) are fair, reasonable and proportionate.
Having regard to the above matters, I consider that I hold a broad discretion in respect of matters relating to any costs orders.
The wife's application for costs principally relies upon the considerations identified at ss 117(2A)(a), (c), (d), (e) and (f) of the Act. That is, the wife contends that the relevant considerations are:-
·The financial circumstances of the parties;
·The conduct of the parties in relation to the proceedings;
·Whether a party's failure to comply with previous Court orders necessitated the proceedings;
·Whether any party to the proceedings has been wholly unsuccessful;
·Whether either party to the proceedings has made an offer in writing to the other party to settle the proceedings and the terms of any such offer.
Section 117(2A)(a) – The Financial Circumstances of the Parties
The wife submits that she was awarded three years’ spousal maintenance from the husband pursuant to the final orders made in Country B proceedings. She does not identify the quantum of her maintenance entitlements.
The wife submits that she has been unable to re-establish herself as a result of the burden of legal costs associated with the ongoing proceedings in Country B, which continued for a period of approximately 8 years. Further, the wife submits that her legal expenses for the period September 2017 to July 2018 exceeded her income for the same period.
The difficulty with those submissions is that those costs incurred do not relate to the proceedings in this Court and the period to which they relate is approximately two years prior to the commencement of these proceedings.
The wife annexes to her submissions at Annexure MK-03 copies of her bank statements from E Bank in respect of account number ending …88 for the period 2 March 2020 to 31 August 2021 inclusive. Those statements disclose that as at 31 August 2021 the wife held savings in that account of (Local Currency)$6,573.59. Otherwise, the wife provides no additional information as to her current financial circumstances.
The husband made no submission as to his financial circumstances.
Section 117(2A)(b) – Whether either party is in receipt of Legal Aid
Neither the husband nor the wife is in receipt of Legal Aid.
Section 117(2A)(c) – The Conduct of the Parties in relation to the Proceedings
The wife principally relies upon the husband’s conduct as the basis of her application for costs.
The wife makes lengthy submissions in relation to her allegation that the husband has contravened orders made in Country B and further that his appeal against those orders is conduct which somehow justifies an award of costs in her favour in these proceedings.
The wife provides particulars of costs she alleges were incurred by her in Country B proceedings, and further asserts that the manner in which the husband conducted those proceedings somehow founds a basis for her seeking costs in these proceedings. I do not accept that submission. The reality is if the wife maintains that by reason of the husband’s conduct in those proceedings she has an entitlement to an award of costs, the appropriate forum in which to seek such costs is in the courts where those proceedings were conducted. That is, the Court of Country B.
This Court is not in a position to make an assessment of the parties’ conduct in proceedings conducted in another jurisdiction.
The wife also submits that the husband failed to engage in mediation prior to commencing proceedings in this Court.
In addition, the wife submits that:-
·The husband’s application before this Court was untenable in circumstances where the issues before this Court had been determined by the Court of Appeal some months earlier;
·The husband committed perjury;
·There had been no significant change of circumstances which would justify re-opening the parenting proceedings;
·The husband filed his application at a time when he was contravening orders made in Country B;
·The husband was conducting court proceedings in relation to the same issues in two jurisdictions, namely this Court and in Country B.
The husband rejects those contentions. It is his case that his application with respect to parenting matters was necessitated by the advent of the global pandemic which had the effect of thwarting his opportunity to spend time with the parties’ child pursuant to Country B orders. It is his case that in the face of the wife’s refusal to vary those orders, he was left with no alternative than to commence proceedings in this Court to ensure that he had the ability to communicate with and spend time with the parties’ youngest child.
The reality is that the issues before this Court were ultimately resolved by consent between the parties. There was no judicial determination in relation to the issues agitated by each of the parties before this Court. Absent a testing of evidence, there have been no findings made in these proceedings with respect to either party’s conduct. Given that circumstance, I am not in a position to make any findings with respect to the allegations made by each of the parties in their written submissions with respect to the other’s conduct.
Section 117(2A)(d) – Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court
The wife submits that the husband’s application in these proceedings was made “in defiance of overseas court orders”.
The wife also submits that the husband delayed in finalising the consent orders to be filed in Country B proceedings.
I do not accept the wife’s submission that the proceedings were necessitated by the failure of the husband to comply with previous orders of the court. The wife does not identify which orders of the court have not been complied with by the husband. As noted earlier, given the advent of the global pandemic and in circumstances where there was no agreement between the parties with respect to arrangements for the husband to communicate with and spend time with the parties’ child, in my view there was a sound basis for commencing the proceedings, particularly in circumstances where the wife and the child the subject of the application reside in Australia.
The wife also submits that the husband’s application in these proceedings was made with the ulterior motive of delaying enforcement proceedings already on foot in Country B. Absent a testing of the husband’s evidence, I am not in a position to make any finding as to ulterior motives possibly held by him in commencing these proceedings.
Section 117(2A)(e) – Whether a party to the proceedings has been wholly unsuccessful
Given the matter was resolved between the parties by consent, the proposition that the husband has been wholly unsuccessful in the proceedings cannot be maintained.
Section 117(2A)(f) – Whether either party to the proceedings has made an offer in writing to the other party to the proceedings and the terms of that offer
The wife submits that her offer to settle in relation to the parenting proceedings was “more advantageous” than the orders ultimately made by consent between the parties. The difficulty with that submission is that none of the offers made by either party are before the Court. Accordingly, I am not in a position to make any assessment as to whether the wife’s offers were “more advantageous” to the husband as asserted by her.
Section 117(2A)(g) – Any other matter the Court considers relevant
The wife asserts that the proceedings ought not have been brought in Australia in circumstances where there were already proceedings on foot in Country B. It is her submission that the Court of Country B was the appropriate forum for all aspects of the dispute, particularly given the parties’ history of litigation before that court and in circumstances where the husband continues to reside in Country B. The wife’s contention is that the proceedings were brought in this jurisdiction for the purpose of increasing the wife’ legal costs.
Whilst there is some force in the submission that the husband’s parenting application ought to have been commenced in Country B given that there were already proceedings on foot in that jurisdiction, the reality is that ultimately the parties resolved the dispute by consent, jointly approaching the courts in Country B to obtain consent orders in relation to those matters.
Given the manner in which the proceedings were resolved with the effect that a trial in this Court was avoided, I am not persuaded that there are circumstances that justify a departure from the usual position that each party bear their own costs.
It is clear from the submissions made by each of the parties that they have been engaged in a long-running and difficult dispute in relation to both parenting and financial matters following the breakdown of their relationship. The wife in her submissions contends that the husband has:-
·Contravened orders;
·Perjured himself in documents filed in the proceedings; and
·Conducted the proceedings in such a way so as to cause the wife to incur substantial and additional legal costs
The husband denies those allegations. The difficulty with each of those contentions is that this Court is not in a position to make findings with respect to those matters in circumstances where the evidence is either not before the Court or is untested.
That being the case, I am not persuaded that, in circumstances where the parties have resolved the issues before the Court by consent, it is appropriate to depart from the usual position that each party bear their own costs.
Having made that determination, and in circumstances where I am not persuaded that there should be an order for costs, I need not consider whether costs ought be paid on an indemnity, solicitor/client or party/party basis. Accordingly, I order as follows:-
1.That the wife’s Application for Costs filed 18 October 2021 be dismissed.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 5 May 2022
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