Kildea and Kildea

[2008] FamCA 68

FAMILY COURT OF AUSTRALIA

KILDEA & KILDEA [2008] FamCA 68

FAMILY LAW – CHILD SUPPORT DEPARTURE ORDER – Stay application pending application for leave to appeal – Costs of stay application – Mother’s application for costs of father’s failed application for stay dismissed

Family Law Act 1975 (Cth), s 117(1), s 117(2), s 117(2A)

Penfold v Penfold (1980) 144 CLR 311

APPLICANT: Mrs Kildea

RESPONDENT: Mr Kildea

FILE NUMBER: BRC 8727 of 2007

DATE DELIVERED: 14 February 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE: 1 November 2007 and by written submissions filed 8 November 2007 and 21 November 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Vachon, Christine Vachon Solicitor

SOLICITOR FOR THE RESPONDENT: Mr McMillan, McMillan Boylson Lawyers

ORDERS

1. The mother’s application for costs of and incidental to the father’s application filed on 19 July 2007 for a stay of the child support departure order made on 27 November 2006 is dismissed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice O’Reilly delivered this day will for all publication and reporting purposes be referred to as Kildea & Kildea.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC8727/2007

Mrs Kildea

Applicant

And

Mr Kildea

Respondent

REASONS FOR JUDGMENT

Application

1. This is an application by the mother that the father pay her costs of and incidental to his application filed on 19 July 2007, which application had sought an order that the child support departure order which I made on 27 November 2006 be stayed until the determination by the Full Court of appeal NA 16 of 2007, described in the father’s application as an appeal presently pending in the Full Court.

2. On 1 November 2007, I ordered that the father’s application for a stay be dismissed and published reasons for judgment in relation to the dismissal.

3. On that date the mother, by her solicitor, made an oral application for costs, resulting in further orders for the filing and service of written submissions in relation to the costs application and a consent order that it be dealt with on the basis of the written submissions without an oral hearing.

4. The mother’s written submissions were received on 8 November 2007 and the father’s on 21 November 2007.

5. The costs sought, according to an attachment to the mother’s written submissions, amount to $1,705.05.

Principles

1. Section 117 of the Family Law Act 1975 (Cth) applies. Pursuant to s117(1) and (2) the parties are to bear their own costs unless the Court forms the opinion that there are circumstances to justify a costs order in which case it may make such order as it considers just. Before making a costs order, the Court must identify the circumstance or circumstances on which it relies to justify the order and must have regard to the matters in s117(2A).

2. In Penfold v Penfold (1980) 144 CLR 311 the High Court said at 315:

   It is an accurate description of s.117(1) to say that it expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to s.117(2). As sub-s. (1) is expressed to be subject to sub-s. (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.

   Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order.  Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. …

The grounds relied upon by the mother

1. The mother’s brief written submissions seek to rely on the following s 117(2A) matters as amounting to circumstances justifying the making of a costs order:

   (1)S 117(2A)(a): The father is in better financial circumstances than the mother, as determined in the child support departure proceedings; the mother suffers financial hardship, not only as the primary carer of the two children in respect of whom the departure order relates, but also because the father has not complied with the departure order made in relation to the children, causing financial hardship also to the children.

   (2)S 117(2A)(c): The father did not, despite requests, provide financial documentation to “support and verify” his application for a stay; such placing the mother in a “detrimental position”.

   (3)S 117(2A)(e): The father was wholly unsuccessful in his application for a stay.

The grounds of resistance by the father

1. The father’s brief written submissions contend that there are no circumstances to justify the making of a costs order because:

   (1)The father’s application for a stay resulted in reasons for judgment of 16½ pages, inferring that although the application was dismissed it was not without at least some merit.

   (2)The reasons for judgment “canvassed not only the factual matrix”, “but as well the several issues of law which impacted on the Court’s determination”.

2. Thus, the father’s submission is that “the general rule” in s 117(1) should apply, namely that each party should bear his and her own costs.

3. As to the matters in s 117(2A) relied upon by the mother as circumstances justifying the making of a costs order, the father’s submissions include that in relation to:

   (1)S 117(2A)(a): The father is not in better financial circumstances than the mother, when consideration is given to their net monthly incomes; the children are not parties to the proceedings so that any financial hardship to them is irrelevant to the mother’s costs application; and it is “difficult to see” how the parties’ “relevant financial differences” are relevant to the issue of costs.

   (2)S 117(2A)(c): The question of any failure by the father to provide financial documentation “can only be judged against the background of its relevance”; it “can hardly be said” that the father’s failure to provide information placed the mother in a “detrimental position”; and “the relevant conduct of the parties in this instance can have no bearing on this issue of costs”.

   (3)S 117(2A)(e):  It is a “matter of fact” that the father did not succeed in his application for a stay.

4. The father relies also on s 117(2A)(g), submitting that the reasons for judgment do “not indicate that the application for the stay was frivolous” and that:

   … Clearly, by the close attention that the Court paid to the application in its detailed reasoning, it could not be said that the application was without foundation and had no basis.

Observations, decision and reasons

1. I have carefully considered the mother’s application, and the grounds she relies upon to make out her case of circumstances justifying the making of a costs order.

2. The mother’s strongest ground, in my view, is under s 117(2A)(e), namely that the father’s application for a stay was wholly unsuccessful. However, as the reasons for judgment show, his application for a stay was not one capable of being rejected other than upon a reasoned analysis of the relevant facts and application of the relevant principles to those facts. In my view, in this particular case, to find a justifying circumstance based on this ground would be to elevate the matter of the father’s application being wholly unsuccessful to a status of “costs following the event”. This is not was the legislation provides and, in the circumstances I have outlined, in this particular case the circumstance that the father’s application was wholly unsuccessful is not a circumstance justifying the making of a costs order. I hasten to say however that if I had in the reasons for judgment found the father’s application wholly unmeritorious, rather than one requiring a reasoned and considered judgment, the circumstance of his application being wholly unsuccessful may have assumed different colour and may well have amounted to a justifying circumstance to award the mother her costs of the application.

3. As to the mother’s reliance on s 117(2A)(c), I am not persuaded that the father’s failure to provide the requested documentation is a sufficiently material matter to amount to a justifying circumstance particularly as in any event I found in the mother’s favour in relation to the matters relevant to the absent documentation. See at pars 53, 60, 62 and 63 of the reasons for judgment.

4. As to the mother’s reliance on s 117(2A)(a), in my view the mother undoubtedly suffers financial hardship, as set out in the reasons for judgment, whereas the father (despite his contentions) in my view does not. However, inequality of the parties’ financial circumstances, of itself, in my view is insufficient in this particular case to amount to a circumstance to award the mother her costs.

5. I have considered whether collectively, as opposed to discretely, the matters relied upon by the mother amount to a justifying circumstance, in particular, that the father’s application was wholly unsuccessful and that the mother suffers financial hardship whereas, relatively, the father does not.  However, I am not persuaded that this or any other combination of matters relied upon by the mother amounts to a justifying circumstance to award the mother her costs, principally because the balancing factor in my view is that it cannot be said that the father’s application for a stay was wholly unmeritorious, although ultimately it was dismissed.

6. I will therefore with reluctance, but not hesitation, having regard to the principles I am bound to apply, dismiss the mother’s costs application.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly

Associate: 

Date: