Keith & Zemlinsky (No 2)

[2013] FamCA 770

FAMILY COURT OF AUSTRALIA

KEITH & ZEMLINSKY (NO 2) [2013] FamCA 770

FAMILY LAW – COSTS

Family Law Act 1975 (Cth)

APPLICANT: Ms Keith

RESPONDENT: Mr  Zemlinsky

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 8374 of 2009

DATE DELIVERED: 10 October 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: By Way Of Written Submissions

SUBMISSIONS RECEIVED FROM:

SOLICITOR FOR THE APPLICANT: Perisic & Thomas Lawyers

Orders

1. That the father pay the mother’s costs fixed in the sum of $9000.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Keith & Zemlinsky 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 MELBOURNE

FILE NUMBER: MLC 8374  of 2009

Ms Keith

Applicant

And

Mr Zemlinsky

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR COSTS JUDGMENT

1. Upon making final orders and delivering reasons for judgment, I directed that if any application for costs was to be made, it should be filed and served by 30 August 2013 and the respondent to any such application file and serve material by 13 September 2013.

2. The mother filed her application electronically on 30 August 2013 seeking an order for costs totalling $10,000.  No response was received from the father by the due date and no application has been made for an extension of time.

3. This case was a parenting dispute.  It ran over four days.  The applicant mother was represented by counsel and the father represented himself.  Counsel also appeared for the Independent Children’s Lawyer.

4. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that in proceedings under the Act each party shall bear their own costs unless the Court is satisfied that there are circumstances that justify a departure from that principle. In this case, the mother asserted that the justification for the claim for costs lay in the fact that the father was unresponsive to medical issues associated with medication, would not recognise a diagnosis of ADHD and required the calling of the child’s teacher. All of those matters were unnecessary having regard to the fact that the child’s position was hardly controversial at least for some months prior to the trial.

5. The father also made allegations of abuse of the child and there was no evidence to support that.

6. The father also sought to include property orders in his application notwithstanding the statutory limitation for such an application had long expired.  Whilst he thought that it had been a matter always on the table for discussion, no application was ever filed nor did he give formal notice until very late of his intention to make the application.  Even then, he did not make an application for leave to apply out of time.  Some small amount of time and costs was incurred as a result of that application.

7. In my view, subject to the matters to which I shall turn in s 117(2A) this is a case where there is a justification for departing from the principle that each party pays their own costs.

8. Here, the financial circumstances of the parties were modest.  There was a difference between the financial circumstances of the parties and I am satisfied that the father was in a stronger position.

9. It was not suggested that either party was in receipt of a grant of legal aid. 

10. The Court is obliged to take into account the conduct of the parties in relation to the proceedings including in relation to questions of how they prepared for matters and complied with orders.  Whilst the father was criticised for his material, he otherwise presented the material that he thought was relevant.  The mother had lawyers acting for her and presented material as best she could.

11. The Court is also obliged to take into account whether a party has been wholly unsuccessful in the proceedings.  True it is that the father made an application for property settlement which could not have proceeded on the basis of the application he made, that did little to distract the attention of anyone from the proceedings.  As counsel submitted, they at least had to read his material.  In my view, that would not have taken very long.

12. In terms of the parenting issues, a modification of the existing arrangements was ordered having regard to the fact that this child needed a settled routine.  It could not be said that the father was wholly unsuccessful albeit that he was much more unsuccessful than the mother.

13. All of those matters are things to be taken into account and none of them is specifically determinative of the issue.

14. The mother incurred significant legal costs but her application related to the $10,000 which it was said, the father had in savings. 

15. The scale of costs guides the Court and counsel for the mother appears to have been charging less than that scale.  It was referred to in the submission of the mother that her counsel was doing some work at legal aid rates.  That is commendable.

16. On any view, a trial over four days is expensive.  This trial was made more expensive by the fact that the father persisted with matters that should never have been the subject of contention.  The mother on the other hand did have issues to which she had to respond so that a proper understanding of the child’s best interest could be ascertained.  It would therefore not be appropriate to say that all of the costs of the mother should be borne by the father.

17. In my view, the mother seeks $10,000 and I propose to find that at least half of those fees were thrown away as a result of the way in which the father conducted the proceedings.

18. The scale costs for counsel alone would have been something in the vicinity of $6800 but there were also three hearings prior to the final trial at which the costs of the parties were noted as being reserved by the Court.  Even there, the mother only sought her counsel’s fees.  It would seem from the matter that I have mentioned above, the father should have known by at least two of those reserved costs hearings what this case was really about and he must have known that the expert evidence was against him.  The mother has unnecessarily incurred costs both in respect of the reserved hearings and also the trial.

19. On any view, the costs of the mother if calculated according to scale would far exceed $10,000 and more likely come to some figure close to what she indeed has paid.  In my view, she should have her counsel’s fees for the four days of trial but not the preparation fixed according to the scale and that totals $6800.  She should have the counsel’s fees thrown away for at least two of those hearings.  I propose therefore to allow a total costs sum of $9000.

I certify that the preceding Nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 10 October 2013.

Associate: 

Date:  10 October 2013