Lagan and Willcott

[2017] FCCA 1943

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAGAN & WILLCOTT [2017] FCCA 1943

Catchwords:
FAMILY LAW – Costs –Application Contravention dismissed as no prima facie case – costs sought.

Legislation:

Family Law Act 1975, ss.70NBA, 70NCB, 117

Federal Circuit Court Rules 2001, sch.1, r.21.02

Cases cited:

Braithwaite & Braithwaite [2007] FamCA 468
Collins & Collins (1985) FLC 91-603
Fitzgerald (as Child Representative for A (Legal Aid Commissioner of Tasmania) v Fish & Anor (2005) 33 Fam LR 123

Penfold & Penfold (1980) 144 CLR 311

Re David Costs (1998) FLC 92-809

Applicant: MR LAGAN

Respondent: MS WILLCOTT

File Number: CAC 2089 of 2010

Judgment of: Judge Obradovic

Hearing date: 9 March 2017

Date of Last Submission: 27 July 2017

Delivered at: Parramatta

Delivered on: 18 August 2017

REPRESENTATION

Appearing for the Applicant: Self-represented

Counsel for the Respondent: Ms Dart

Solicitors for the Respondent: Chalker Gray Lawyers

ORDERS

1. Application for costs of the Application-Contravention is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Lagan & Willcott is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

CAC 2089 of 2010

MR LAGAN

Applicant

And

MS WILLCOTT

Respondent

REASONS FOR JUDGMENT

1. On 30 November 2016, the Applicant father filed an Application–Contravention alleging contravention of final parenting orders made on 30 May 2012 by the Respondent mother. The first return date of the Application – Contravention was 13 February 2017.

2. On 9 February 2017, the mother filed an Initiating Application seeking to vary the final parenting orders. That Application was supported by an Affidavit of the mother filed on the same date.  The first return date of that Application was 28 March 2017.

3. On 13 February 2017, the Court listed the Application – Contravention for hearing on 9 March 2017, vacated the first return date of the Initiating Application and instead listed that Application for directions after the hearing of the Application – Contravention.

4. The father’s Application – Contravention was heard on 9 March 2017. The father was cross-examined. The Court found that the alleged contraventions had not been established and dismissed the Application-Contravention. 

5. On the mother’s Application to vary the Orders of 30 May 2012 following the contravention hearing, the Court made orders pursuant to s70NBA Family Law Act 1975 (Cth) suspending orders Order 4(e) and 5(d) made on 30 May 2012. The Court also made a number of interim orders for the children’s time with the father.

6. Also on 9 March 2017, the Court made orders directing the father to file a Response, Affidavit and Notice of Risk by 31 March 2017, and it directed the parties to attend a Child Dispute Conference on 20 July 2017.  

7. On 7 April 2017, submissions in relation to costs were filed on behalf of the mother, seeking costs in the amount of $6,770 in accordance with Schedule 1 of the Federal Circuit Court Rules 2001 being costs for preparation for final hearing and a daily hearing fee (items 6 and 13 of the Schedule).

8. The father filed his submissions in respect of the mother’s costs application on 27 July 2017.

9. The relevant legislative provisions are contained in ss70NCB and 117 of the Act. The discretion to award costs is a broad discretion.[1]

   [1]  see for example Collins & Collins (1985) FLC 91-603.

10. The starting position with respect to costs, as set out in s117 of the Family Law Act 1975 (Cth), is that, subject to subsection 117(2), each party to proceedings under the Family Law Act1975 shall bear his or her own costs.

11. The High Court held in Penfold & Penfold[2] that it is necessary for the Court to make a finding of justifying circumstances as an essential preliminary finding to the making of an order for costs. The Court is not required to specify the circumstances which justify the making of such an order.

    [2] (1980) 144 CLR 311

12. In determining what order, if any, should be made under s117(2) the Court must have regard to the prescriptive but non-exhaustive list of considerations in sub-section (2A).

13. Rule 21.02(2) Federal Circuit Court Rules2001 provides that in making an order for costs the Court may set the amount of costs; or set the method by which the costs are to be calculated; or refer the costs for taxation under Part 40 of the Federal Court Rules or under Chapter 19 of the Family Law Rules.

14. Section 117(2A) of the Family Law Act provides the factors that the Court in ordering what costs, if any, should have regard to. All relevant matters referred to in s117(2A) must be taken into account: Re David Costs (1998) FLC 92-809; and Braithwaite & Braithwaite [2007] FamCA 468 at [115]).

15. In Fitzgerald (as Child Representative for A (Legal Aid Commissioner of Tasmania) v Fish & Anor (2005) 33 Fam LR 123, the Full Court held that there is nothing to prevent any one factor being the sole determinate for an order of costs to be made.

16. The Court does not find that there are circumstances which justify the displacing of the ordinary rule that each party bear his/her own costs and/or that justify the making of an order for costs. 

17. While the Application-Contravention was wholly unsuccessful in the sense that it was dismissed, the proceedings which were commenced by the father alleging the contravention ultimately resulted in orders being made pursuant to s70NBA. Proving contravention allegations is always difficult, such applications being quite technical. While appropriate forethought needs to be given to such an application being brought, the Court does not find that the application was wholly misconceived as submitted on behalf of the mother. The Court finds that it was a bona fide application.

18. In any event, the Court was able to make other orders on the day of the hearing of the contravention, those orders dealing with the mother’s substantive application. It was not a wasted Court event in terms of progressing the matter. The orders which were made on 13 February 2017 ensured that there was not a further Court event for the mother in respect of her Initiating Application. Indeed the first listing of the Application-Contravention and the orders made on that first listing date brought forward the first mention date of the Initiating Application.

19. Section 70NCB(1) provides the Court ‘may’ make an order that the person who brought the proceedings pay some or all of the costs of another party. It is discretionary.

20. Nothing submitted on behalf of the mother has persuaded the Court that the ordinary rule that each party bear its own costs ought to be departed from, that is, that there are circumstances justifying an order for costs.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date: 18 August 2017