Latifi & Galica (No 2)
[2022] FedCFamC2F 1733
Federal Circuit and Family Court of Australia
(DIVISION 2)
Latifi & Galica (No 2) [2022] FedCFamC2F 1733
File number(s): SYC 8379 of 2021 Judgment of: JUDGE MURDOCH Date of judgment: 14 December 2022 Catchwords: FAMILY LAW – COSTS – where the father was wholly unsuccessful in his application for review of interim parenting orders – where the father was put on notice that in the event he proceeded with the application for review and was unsuccessful the mother would be seeking costs on an indemnity basis – the father is ordered to pay the mother’s costs in a fixed sum – the father is further ordered to pay the mother’s costs in bringing this costs application in a fixed sum Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) Sch 1
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.13
Cases cited: Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29;
Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432;
Colgate-Palmolive Company v Cussons Pty Ltd [1993] FCA 801;
In the marriage of Schwarz (1985) FLC 91-618;
Kohan & Kohan [1992] FamCA 116;
Latoudis v Casey [1990] HCA 59
Munday & Bowman (1997) FLC 92-784;
Penfold & Penfold [1980] HCA 4;
Yunghanns & Yunghanns [2000] FamCA 681
Division: Division 2 Family Law Number of paragraphs: 39 Date of hearing: 5 September 2022 Place: Parramatta Solicitor for the Applicant: Ms Mooney SC Solicitor for the Respondent: Mr Williams KC ORDERS
SYC 8379 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS LATIFI
Applicant
AND: MR GALICA
Respondent
order made by:
JUDGE MURDOCH
DATE OF ORDER:
14 DECEMBER 2022
THE COURT ORDERS THAT:
1.That within 28 days the father shall pay the mothers costs of and incidental to the application for review filed on 29 July 2022 assessed at $16,075 inclusive of GST.
2.That within 28 days the father shall pay the mothers costs of and incidental to this application for costs assessed at $260 inclusive of GST.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Latifi & Galica (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH
INTRODUCTION
These are parenting proceedings with respect to the two children of the relationship:
·X born in 2010 currently aged 12 years and 1 month; and
·Y born in 2013 currently aged 9 years and 1 month;
This is a determination of the mother’s application for costs arising out of the orders made by this court on 30 September 2022 effectively dismissing the father’s Application for Review of interim parenting orders made by a Senior Judicial Registrar of the court on a defended basis on 20 July 2022 (“the Review Application”).
The mother seeks orders in the alternative that father pay the mothers costs thrown away :-
·on an indemnity basis in the sum of $22,270.02; or in the alternative
·on a two thirds ordinary basis in the sum of $14,698.21; or in the alternative
·in accordance with the scale as set out in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 as agreed or assessed.
Orders were made on 30 September 2022 providing for each of the parties to file and serve a short Minute of Order particularising any orders sought as to costs together with any affidavit in support and for the provision of written submissions in support of same. Unless a party in their Minute of Orders objected, the issue of costs was to be determined in chambers on a date to be fixed.
The determination of the mother’s application for costs has been determined in chambers as no objection has been raised to same.
The mother has filed as directed and I have read:
·Minute of Orders sought by the mother – costs filed 12 October 2022; and
·the Affidavit in support filed 12 October 2022.
The affidavit refers to the mother’s Financial Statement filed on 21 April 2022 and that has also been read.
No written submissions were filed on behalf of the mother.
The father has not filed any material in response.
BACKGROUND
The parties commenced cohabitation in 2007/2008, were married in 2008 and separated on a final basis on 22 July 2021.
Subsequent to the parties’ separation final parenting Orders were made by consent on 7 December 2021.
On 18 March 2022 the father filed an Initiating Application seeking both interim and final property orders.
By way of her Response the mother sought that the final parenting orders made on 7 December 2021 be discharged.
An interim application was filed by the mother which sought to suspend some of the final parenting orders with respect to the children’s time with the father, and further orders for the parties and children to attend for reportable family therapy. The mother’s interim application was heard by a Senior Judicial Registrar on 19 July 2022. Oral reasons and Orders were made by the Senior Judicial Registrar on 20 July 2022 (“the current interim orders”).
The father’s Application for Review of the orders made by the Senior Judicial Registrar was heard by me on 5 September 2022 with Judgment delivered on 30 September 2022. The father’s application sought to review the time the children were to spend with the him pursuant to the current interim orders, together with additional orders that the mother be restrained from allowing the children to come into contact with two of the father’s family members and an order as to how the parties were to communicate with respect to parenting issues.
The mother sought simply that the father’s application for review be dismissed and that he pay the mother’s costs of the review application on an indemnity basis.
It was agreed during the course of the interim hearing that some of the final parenting orders would need to be suspended on an interim basis having regard to the current interim orders and Orders were so made.
The father’s application for review was ultimately dismissed in its entirety and the question of costs reserved. This is the judgment in relation to the mother’s application for costs.
THE LAW
Section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that each party to proceedings shall bear their own costs subject to subsection (2), which states that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may make such order as to costs as the Court considers just.
Although s 117(2) requires a finding of justifiable circumstances as an essential preliminary to making an order for costs, Penfold & Penfold (1980) FLC 90-800; [1980] HCA 4 states that there is no additional or special onus on the applicant who seeks the costs order.
Subsections 117(2A) (a) to (g) of the Act set out the matters that must be taken into account in determining whether to exercise the Court’s discretion and make a costs order. No one factor must be present, and no particular factor has more or less weight than any other. There may however be a dominant or outstanding feature that makes an order for costs appropriate.
It is a basic principle that an order for costs is compensatory and is not to be used to punish a party: Latoudis v Casey (1990) 170 CLR 534. Costs are awarded by way of indemnity; not as compensation for lost earnings or as a reward for a litigant's success: Bell Lawyers Pty Ltd v Pentelow (2019) 372 ALR 555 at [33].
CONSIDERATION
Rule 12.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provides that the Court may make an order for costs on its own initiative or on the application of a party. Rule 12.13(4) mandates that a party applying for an order for costs on an indemnity basis must inform the Court if the party is bound by a costs agreement and if so, the terms of such costs agreement. In circumstances where this evidence is not before the Court, the mother’s application for indemnity costs must fail. In any event, for the reasons set out below I am not satisfied that there are exceptional circumstances in this case that would warrant an order for indemnity costs: Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225.
Thus the remaining question to be determined is whether the father should pay the mother’s costs thrown away on a party/party basis. The mother seeks costs of a fixed sum of $14,698.21 or in the alternative in accordance with the scale as agreed or assessed.
Turning now to the relevant considerations.
The mother by way of her affidavit provides further evidence as to her current financial circumstances. The wife deposes she earns an income of approximately $850 per week and receives child-support of $317 per week; thus her total weekly income is approximately $1,167. The mother deposes her expenses are approximately $3,400 per week. She has liabilities of approximately $95,000.
The father’s financial circumstances are unknown. Senior Counsel was briefed to appear on his behalf at the hearing of the Review Application.
Neither party is in receipt of legal aid.
Annexed to the mother’s affidavit is a letter from the mother’s solicitors to the father’s solicitors dated 31 August 2022 inviting the father to withdraw his Application - Review on the basis that each party pay their own costs. The father was put on notice that in the event the father proceeded with the application and was unsuccessful the mother would be seeking costs on an indemnity basis and had briefed counsel to appear at an estimated cost of $20,000. There is no evidence that any response was received to such correspondence, but in any event the father pressed his Application - Review.
The mother deposes that the costs that she has incurred from the date that the father filed the application for review are as follows:
·costs and disbursements of the mother solicitors- $9,730.02; and
·costs of King’s Counsel for preparation for, and attendance at, the hearing of the father’s application for review on 5 September 2022 - $12,540; and
·the estimated costs incurred by the mother in making the costs application of $2,500.
The father was wholly unsuccessful in his application for review which was dismissed.
The interim issues between the parties had been determined by a Judicial Registrar. The father re-litigated those same issues again putting the mother to further costs and was entirely unsuccessful. The father was afforded the opportunity to withdraw his application on the basis that each party pay their own costs and chose not to do so. He should bear some responsibility for the costs thrown away by the mother in defending the Application – Review.
Having regard to the above considerations, I am satisfied that an order should be made for costs in favour of the mother.
The father was afforded the opportunity to put material before the court as to the costs issue and chose not to do. I am satisfied in circumstances where the mother will obtain a costs order in her favour, that a costs order should also be made for the mother’s costs in bringing the costs application.
QUANTIFICATION OF COSTS
Rule 12.17 of the rules states that the court may order costs:-
·of a specific sum;
·as assessed on a particular basis;
·to be calculated in accordance with a method determined by the court; or
·as assessed in accordance with Schedule Three. In circumstances where Schedule Three applies to Division One proceedings, rule 4.01 of the Federal Circuit and Family Court of Australia (Division 2) Family Law Rules 2021 (Cth) (“the Division 2 Rules”) permits the court to apply either the scale of costs at Schedule 3 or the scale of costs at Schedule 1 of the Division 2 Rules.
I am satisfied that it is appropriate to fix a lump sum of costs payable so as to avoid further delay and inconvenience to the parties by the requirements of a bill being taxed: see Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432 at [51].
I am satisfied it is fair and reasonable to apply the scale as set out in Schedule 1 of the Division 2 Rules together with the costs of King’s Counsel appearing in circumstances where both parties had Senior Counsel or King’s Counsel appear at the hearing of the review application. Both Counsel had solicitors instructing them on the day. Accordingly costs will be awarded in favour of the mother in the sum $16,075 in accordance with such schedule as set out hereunder.
Item
Description
Amount (including GST)
2 & 13
Initiating or opposing an application up to the completion of the first court date
5 September 2022 - 10:05am to 12:31pm
(a) $2,357; and
(b) $1,178 (half day hearing)
King’s Counsel
$12,540
Total
$16,075
Costs will be awarded in the mother’s favour in accordance with Schedule 1 of the Division 2 Rules arising from the costs application allowing one hour for a solicitor to draft the three pages of material relied upon for the costs application as follows:-
Item
Description
Amount (including GST)
15
Drafting, conferences and chambers work
(c) solicitor - $260 per hour
Total
$260
Orders will be made accordingly.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch. Associate:
Dated: 14 December 2022
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