Kaysen & Landis
[2024] FedCFamC2F 783
•16 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kaysen & Landis [2024] FedCFamC2F 783
File number(s): DGC 768 of 2022 Judgment of: JUDGE JENKINS Date of judgment: 16 May 2024 Catchwords: FAMILY LAW – costs certificates – where Court has had previous involvement with one party but this was not realised until part way through cross-examination – where it is not appropriate for Court to continue hearing the matter – where the familiarity would not have been realised in the usual conflict checks Legislation: Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) Sch 1 Items 13, 14
Federal Proceeding (Costs) Act 1981 (Cth) s 10
Cases cited: Griffin & Croft [2015] FCCA 2685
Lindner & Lindner (1985) FLC 91-638
Redshaw & Redshaw (1989) 13 FamLR 495
Division: Division 2 Family Law Number of paragraphs: 14 Date of hearing: 16 May 2024 Place: Dandenong Counsel for the Applicant: Ms Teicher Solicitor for the Applicant: Pentana Stanton Lawyers Counsel for the Respondent: Mr McIvor Solicitor for the Respondent: CMA Law ORDERS
DGC 768 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KAYSEN
Applicant
AND: MR LANDIS
Respondent
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
16 MAY 2024
THE COURT ORDERS THAT:
1.The matter is adjourned for Defended Hearing on 12 and 13 September 2024 at 10.00am before Judge Burt with an estimated hearing time of 2 (two) days.
2.Judge Jenkins is recused from any further involvement in these proceedings.
3.The Order made on 13 July 2023 that section 102NA applies to these proceedings will remain in full force and effect.
4.The Court grants to the applicant, a costs certificate pursuant to the provisions of section 10 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act, fixed in the amount of $3,768.84 (three thousand, seven hundred and sixty eight dollars and eighty four cents), to the applicant in respect of the costs incurred by them in relation to the incomplete proceedings.
5.The Court grants to the respondent, a costs certificate pursuant to the provisions of section 10 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act, fixed in the amount of $3,768.84 (three thousand, seven hundred and sixty eight dollars and eighty four cents), to the respondent in respect of the costs incurred by them in relation to the incomplete proceedings.
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 an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(EX TEMPORE)JUDGE JENKINS:
These reasons were delivered orally and have been corrected from transcript.
BRIEF BACKGROUND
By way of brief background, this matter came before me initially on 15 May 2024. It was listed for the determination of a threshold question of whether the parties were in a de facto relationship.
The parties are the applicant, Ms Kaysen, and the respondent, Mr Landis. The matter was listed for a two-day hearing commencing yesterday on 15 May 2024. It was not reached as the court was completing another part-heard matter. The parties were advised at 2.15 pm on 15 May 2024 that it would not be reached and would commence at 10.00 am on 16 May 2024. I am not aware, nor do I need to be aware, whether the parties’ discussions continued on 15 May 2024 or whether they remained at court for the remainder of the day.
The matter commenced this morning, shortly after 10.00 am. After preliminary matters, the applicant, Ms Kaysen, was the first witness, and cross-examination commenced. It was during that process that the applicant became increasingly familiar to the Court. I raised with the applicant whether she had had any other proceedings in this Court or any court and whether she had gone by any other names. The applicant advised the Court that she had other proceedings and that she had potentially gone by the name of, I think it was …. I was not however familiar to the applicant. Cross-examination continued until I was informed by my Associate they had located a court file which may indicate my involvement in representing one of the parties. The matter was stood down.
In that period, I was able to ascertain that I had appeared for Mr B who I understand is the father of two of the applicant’s children. In any event, I acted for him in proceedings, firstly not involving the applicant in 2011, but later again involving the applicant in about 2016 and 2017.
I was able to locate my notes from that time and several memorandums and it was readily apparent I had had extensive involvement with Ms Kaysen who was representing herself. At least one of those hearings involved a defended interim hearing and I had involvement with her in Court and discussions with her out of Court. Based on my involvement and my notes, there was no question in my mind that I could not continue to hear the matter.
I promptly advised the parties in open Court and neither counsel took issue with this. The trial is therefore aborted, for want of a better word, and the matter will have to be re-listed before another judge on a date to be fixed.
COST CERTIFICATES
The parties both now seek cost certificates pursuant to the Federal Proceeding (Costs) Act 1981 (Cth) (“the Act”). The Act makes provision for limited reimbursement of costs incurred by a party in certain circumstances. The Court can, at its discretion, issue a certificate if the court is of the opinion that it would be appropriate for the Attorney-General to bear some or all part of the parties' costs. It has been the subject of a number of authorities.
Section 10(3) of the Act provides:
Subject to this Act, where:
(a)the hearing of any proceeding in a court to which this section applies is discontinued and a new hearing is ordered; and
(b)the discontinuance and new hearing are not attributable to the neglect, default or improper act of any party to the proceedings;
the court may, on the application of a party to the proceedings, grant to that party a cost certificate in respect to the proceedings.
Section 10(3) of the Act makes reference to a matter being discontinued. The authorities make it clear that in circumstances where the matter has not commenced, for example if a judge is not available because they are unwell, that the court ought not issue a certificate.[1] Although the authorities differ on whether a broader or narrower view of “discontinued” should be taken. However, in this case there is no question that the matter has commenced and has been discontinued and a new hearing ordered which satisfies all of the requirements.
[1] See: Lindner & Lindner (1985) FLC 91-638 and Redshaw & Redshaw (1989) 13 FamLR 495
It is also not in dispute that this has occurred through no fault of the parties. It is most unfortunate that the conflict of interest was not identified at an earlier stage. However, the usual conflict check, which involves checking previous orders and if possible, in related proceedings, would not likely have picked up the conflict and the party I represented was not involved in these proceedings, was not the previous partner referred to in the material, and, to my knowledge is not named elsewhere in the evidence. However, even if he was, the Court does not conduct a check of all related persons and their involvement with the Court.
CONSIDERATION
In all of those circumstances, it is appropriate, in my view, to exercise the discretion to grant a cost certificate to each of the parties. However, in granting a certificate there are two options open to the court under s 10(4) of the Act. The first option is that I simply grant the cost certificate and the parties apply to the Attorney-General with respect to what they say those costs should be. The second option, pursuant to authorities such as Griffin & Croft,[2] is that I fix the costs at this hearing.
[2] [2015] FCCA 2685.
In this case I am minded to fix the costs to avoid the parties having to incur the further administrative cost of applying to the Attorney-General's Office. I understand the policy of the Attorney-General, which is on their website, is to assess costs on scale. Using the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth), schedule 1, which sets out costs on scale, the relevant items are items 13 and 14. In regard to item 13, in my view it is appropriate to assess costs of a full day hearing, albeit it is now only two o’clock. A half day is arguable, but in my discretion, I determine that a full day fee of $2,512.56 is appropriate given there has been no real break in the proceedings for the parties. In keeping with this, the 50% advocacy loading is $1,256.28, bringing total costs of each party to $3,768.84.
For all of the foregoing reasons I make the orders as set out at the beginning of this judgment.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Jenkins. Associate:
Dated: 16 May 2024
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