Lagana and Lorenzo (No.2)

[2014] FCCA 1770

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAGANA & LORENZO (No.2) [2014] FCCA 1770

Catchwords:
FAMILY LAW – Costs – application for costs – contravention proceedings – where respondent unsuccessful in three out of four counts – failure to comply with court orders – whether costs should be ordered on an indemnity basis – no basis for an order for costs other than in accordance with Rules.

Legislation:

Family Law Act 1975 (Cth), s.117

Federal Circuit Court Rules 2001, Sch. 1, Part 1

Cases cited:
Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225; 118 ALR 248
In the Marriage of Kohan (1992) 16 Fam LR 245; (1993) FLC 92-340
Lagana & Lorenzo [2014] FCCA 1618
Prantage & Prantage [2013] FamCAFC 105; (20130 49 Fam LR 197; FLC 93-544

Applicant: MS LAGANA

Respondent: MR LORENZO

File Number: CRC 170 of 2013

Judgment of: Judge Scarlett

Hearing date: In chambers

Date of Last Submission: 5 June 2014

Delivered at: Sydney

Delivered on: 13 August 2014

REPRESENTATION

Solicitor for the Applicant: Ms Lee

Solicitors for the Applicant: Leckie Law

Solicitor for the Respondent: Mrs Tanner

Solicitors for the Respondent: Coffs Coast Family Law

ORDERS

1. The Respondent is to pay the Applicant’s costs of the Application – contravention filed on 6 May 2014 fixed in the sum of $3,985.50.  

2. The Respondent is allowed 6 months to pay.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

CRC 170 of 2013

MS LAGANA

Applicant

And

MR LORENZO

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application for costs by the Wife, who was the successful Applicant in contravention proceedings against the Husband. The Wife had commenced proceedings against the Husband claiming that he had on four occasions contravened parenting orders made by consent on 17^th September 2013.

2. On 23^rd May 2014 the Court found that four of the alleged contraventions proved. It was held that the Respondent had established a reasonable excuse for one of the four contraventions but not the other three (Lagana & Lorenzo [2014] FCCA 1618).

3. The Applicant now seeks an order for costs.

Submissions

1. The parties’ solicitors have each filed written submissions.

2. For the Applicant, Ms Lee has submitted that the Respondent should pay the Applicant’s costs in the sum of $4,960.00, and has provided a copy of a memorandum of fees in that amount forwarded to her client. In her submission, Ms Lee has addressed the various relevant paragraphs of s.117(2A) of the Family Law Act 1975 (Cth), which is the subsection to which the Court must have regard when deciding whether it is of the opinion that there are circumstances justifying the making of a costs order.

3. It is submitted on behalf of the Applicant that:

   a)her financial circumstances are such that her net income averages $550.00 per week and her regular outgoings are in the order of $425.00 per week;

   b)the Applicant is not in receipt of a grant of legal aid but she believes that the Respondent is legally aided for the substantive matters but not the contravention proceedings;

   c)the Respondent when giving evidence could not explain the documents that he produced relating to his failure to notify the Applicant as soon as possible that one of their children had been admitted to hospital;

   d)the proceedings were necessitated by the Respondent’s failure to comply with previous Court orders;

   e)the Applicant was not wholly unsuccessful in her Application; and

   f)the Applicant made a written offer to the Respondent to accept an amount of $3,000.00 by way of costs, which was not accepted.

4. The Respondent’s solicitor, Mrs Tanner, stated in paragraph 2 of her submission:

   The applicant mother brought a contravention application on 4 counts. His Honour found on 3 counts that the contravention was made out without a reasonable excuse. Facts arose after judgment that count 4, regarding a child being taken to hospital was not in fact a contravention as the child was not admitted, but simply went to the ER with a sore throat, not a serious medical emergency, not a specialist appointment. The applicant was only successful on 2 of the 4 counts and was therefore not wholly successful in this matter.

5. This matter cannot be taken into account. If the Respondent had evidence that went towards showing that there was not a contravention, the evidence should have been brought at the hearing. It is too late to raise exculpatory matters after judgment has been delivered. The Respondent did not appeal against the decision.

6. Mrs Tanner submitted that:

   a)the Respondent was not in receipt of a grant of legal aid for the proceedings;

   b)the contravention proceedings could have been contained within the substantive litigation;

   c)the applicant was not successful in obtaining all of the relief that she sought, in that the Court only allowed two days’ make-up time and the court did not accede to the Applicant’s application about telephone time;

   d)the Respondent does not have the funds to meet an order for costs; and

   e)the applicant may, by bringing a contravention application, have sought to influence the outcome of the substantive proceedings.    

Conclusions

1. The Court, in deciding whether there are circumstances that justify making an order for costs, must have regard to the matters contained in subsection 117(2A) of the Family Law Act 1975. I have done so. Not all of those considerations are relevant.

2. I find that:

   a)neither party is in a favourable financial situation;

   b)neither party is in receipt of a assistance by way of legal aid for the contravention proceedings;

   c)neither party can be criticised for the way in which the proceedings were conducted, as each of the solicitors concerned concentrated on presenting a focussed and concise case, without causing any waste of time or unnecessary expense;

   d)the proceedings were necessitated by the failure of the Respondent to comply with previous orders of the Court;

   e)the Respondent was unsuccessful in the proceedings in that three of the four counts alleged against him were found proved without reasonable excuse, notwithstanding the matter raised by his solicitor in her submission referred to in paragraph [7] above; and

   f)the Applicant’s solicitor has made an offer in writing to settle the application relating to costs for an amount of $3,000.00.

3. Where a party has been found to have failed to comply with court orders, it is highly likely that a Court will find that the other party should be entitled to some relief by way of costs. The Respondent established a reasonable excuse for only one of the contraventions alleged.

4. Financially straitened circumstances of the parties must be considered, but this does not mean that the Court will not make a costs order where it is justified; however, a party’s financial circumstances may well be relevant in allowing time to pay a costs order.

5. I am satisfied that the Respondent should pay the Applicant’s costs of the contravention Application. However, the Applicant is seeking costs on an indemnity basis, in the sum of $4,960.00.

6. Costs will be ordered on an indemnity basis only in unusual or exceptional circumstances (Colgate-Palmolive Co v Cussons Pty Ltd[1]; In the Marriage of Kohan[2]; Prantage & Prantage[3]). I am not satisfied that there are any unusual or exceptional circumstances that would justify an order for costs on anything other than in accordance with the Court scale set out in Part 1 of Schedule 1 to the Rules.

   [1] [1993] FCA 536; (1993) 46 FCR 225; 118 ALR 248

   [2] [(1992) 16 Fam LR 245; (1993) FLC 92-340

   [3] [2013] FamCAFC 105; (20130 49 Fam LR 197; FLC 93-544

7. The scale in Part 1provides for a lump sum of $1,661.00 plus the daily hearing fee, for which I am satisfied should be added the Advocacy loading. I propose to add the fee to take this judgment and an amount of $558.00 for the preparation of the submissions.

8. All in all, I am satisfied that the proper figure is the amount of $3,985.50.

9. An order will be made that the Respondent is to pay the Applicant’s costs fixed in the sum of $3,985.50. I will allow 6 months to pay.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  13 August 2014