MACE & MACE (No.2)
[2020] FCCA 837
•16 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MACE & MACE (No.2) | [2020] FCCA 837 |
| Catchwords: FAMILY LAW – Interim hearing – costs – parenting – whether grounds to depart from usual rule – where both parties partly successful – whether affidavit evidence is offer to settle – where no grounds established to depart from usual rule – no costs awarded. |
| Legislation: Family Law Act 1975 (Cth), s.117 Family Law Rules 2004 (Cth), Sch 3 Federal Circuit Court Rules 2001 (Cth), rr.22.02, 22.10, 21.11 |
| Cases cited: Penfold v Penfold (1980) 144 CLR 311 Trevi & Trevi (No 3) [2019] FamCAFC 58 |
| Applicant: | MR MACE |
| Respondent: | MS MACE |
| File Number: | SYC 6319 of 2018 |
| Judgment of: | Judge Morley |
| Hearing date: | 20 September 2019 |
| Date of Last Submission: | 6 December 2019 |
| Delivered at: | Sydney |
| Delivered on: | 16 April 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Newnhams Solicitors |
| Solicitors for the Respondent: | DC Balog & Association |
ORDERS
That the application of the Respondent that the Applicant pay her costs of the interim proceedings heard 20 September 2019 is dismissed.
That in relation to the interim parenting proceedings heard 20 September 2019 and orders made on 15 October 2019 each party pay his and her own costs.
IT IS NOTED that publication of this judgment under the pseudonym Mace & Mace (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 6319 of 2018
| MR MACE |
Applicant
And
| MS MACE |
Respondent
REASONS FOR JUDGMENT
Introduction
On 3 October 2018, Mr Mace as applicant (“the father”) commenced these proceedings seeking orders for final property settlement between himself and Ms Mace as respondent (“the mother”). The mother filed her Response on 9 November 2018 seeking interim and final property settlement orders. The property proceedings were settled by consent orders between the parties made by the Registrar on 3 October 2019 at a Conciliation Conference.
On 5 August 2019 the father filed an Application in a Case seeking interim parenting orders concerning the parties’ children, X born in 2006 and Y born in 2009. In particular he sought an order “that the mother be restrained by injunction from relocating the children’s residence outside of a 15 kilometre radius of School B”.[1] The father also sought an order that the parties have equal shared parental responsibility for the children and orders, based upon certain alternatives, as to when the children would live with each parent.[2]
[1] Application in a Case of Father filed 5 August 2019, page 4.
[2] Application in a Case filed by the Father on 5 August 2019, page 4.
On 13 August 2019 mother filed her Response to an Application in a Case seeking interim orders that the “Respondent be permitted to reside at Street I, Suburb G (Region D) or within a 5 kilometre radius”[3] and that the “Applicant’s Application to be dismissed with costs.”[4] The mother did not seek any order in relation to where the children would live (as opposed to where she would live) or what time the children would spend with each parent or any order in relation to parental responsibility.
[3] Response to an Application in a Case filed by the Mother on 13 August 2019, page 2.
[4] Response to an Application in a Case filed by the Mother on 13 August 2019, page 2.
At no time has either party amended their Initiating Application or Response to seek final parenting orders despite the absence of applications for final parenting orders being commented upon in the Judgment resulting from the hearing of the interim parenting Applications.
On 20 September 2019 I conducted an interim hearing between the parties in relation to their interim parenting Applications. On the mother’s evidence at the hearing it became apparent that she had missed out on securing the property at Street I, Suburb G and in a Case Outline document provided to the Court at the interim hearing the mother’s Counsel indicated that “the mother proposes to move to the Region D from the Region P of Sydney, a distance of some 70 kilometres or about an hours’ [sic] drive.”[5]
[5] Mother’s Outline of Submissions for Hearing on 20 September 2019, [3].
The Region D of New South Wales covers an area of the state’s coastal area that is at least 70 kilometres north of the Region P of Sydney but extends for at least triple that distance.
At the end of the interim hearing, I reserved Judgment and on 15 October 2019, I delivered the Reserved Judgment and I made orders. In consequence of there being no Applications for final orders before the Court but only the Application in a Case and Response to an Application in a Case I did not express the orders that I made on 15 October 2019 as ‘pending further orders’.
The orders that I made on 15 October 2019 included an order that the mother “has leave to relocate the children’s place of residence whilst they are within her care to any place in the suburbs of the greater Town A area”.[6] That order was in keeping with the intent of the mother and her application before the court though the relocation being confined to "the greater Town A area”[7] was narrower than “Region D”.[8]
[6] Orders of Judge Morley on 5 October 2019, order 7.
[7] Orders of Judge Morley on 5 October 2019, order 7.
[8] Mother’s Outline of Submissions for Hearing on 20 September 2019, [3].
I also made an order that “the parties have equal shared parental responsibility”[9] for the children. Until I made that order the issue of parental responsibility for the children was governed by section 61C of the Act, with each of the parents having parental responsibility for the children. An order that the parties have equal shared parental responsibility for the children was sought by the father in his Application but was not sought by the mother, his Application was silent on the issue of parental responsibility.
[9] Orders of Judge Morley on 5 October 2019, order 1.
Accordingly, there was some success in the applications of each of the parties, though it cannot be said when one considers the actual words in the mother’s Response to an Application in a Case that she was wholly successful, the real parameters of the orders she sought only becoming apparent on final hearing. Each of the parties was partly successful in their application.
The law
Costs in relation to matters under the Family Law Act 1975 (Cth) (“the Act”) are governed by section 117 of the Act, which provides in subsection 117(1) that the normal position in relation to costs in Family Law matters is that “each party to proceedings under this Act shall bear his or her own costs.”[10]
[10] Family Law Act 1975 (Cth) s 117(1).
Subsection is 117(2) provides for a departure from the usual rule in subsection 117(1) as follows:
If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) in the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.[11]
[11] Family Law Act 1975(Cth) s 117(2).
Subsection 117(2A) provides as follows:
“In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle proceedings in the terms of any such offer; and
(g) such other matters as the court considers relevant.[12]
[12] Family Law Act 1975(Cth) s 117(2A).
If, having considered the matters referred to in subsection 117(2A) of the Act the Court is of the opinion that the circumstances justify a departure from the usual rule that each party bear his or her own costs, then the Court must determine the quantum of the costs to be awarded.
Pursuant to section 117(2) of the Act a finding by the Court of circumstances that justify the making of a costs order is the necessary preliminary finding to the making of such an order. Beyond that there is no additional or special onus on an applicant for a costs order.
In Penfold v Penfold[13] (‘Penfold’) the High Court discussed section 117 of the Act and said:
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 2 provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgement under appeal that an order can only be made under s. 117 (2) in “a clear case”.[14]
[13] Penfold v Penfold (1980) 144 CLR 311, 315 (Stephen, Mason, Aickin and Wilson JJ).
[14] Penfold v Penfold (1980) 144 CLR 311, 315 (Stephen, Mason, Aickin and Wilson JJ).
The Court’s discretion in relation to costs is broad and the considerations listed in subsection 117(2A) are not restrictive. There is nothing to prevent any one factor in this subsection being the sole determinant for an order for costs.[15]
[15] PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123 at 130.
Offers of settlement are an important section 117(2A) consideration in determining the question of costs. Section 117(2A)(f) requires the Court to consider any offer in writing to settle the proceedings and the terms of any such offer.[16]
[16]Trevi &Trevi (No 3) [2019] FamCAFC 58.
In Browne v Green[17] the Full Court said
We think that whilst s 117 (2A) does not provide any direct guidance to where weight should be given in any one particular case, it is very important for the court to give proper consideration to written offers of settlement that have been made. The insertion of s 117C into the legislation is a clear indication of the desire of Parliament to enable parties to avoid unnecessary litigation by indicating to the other party an appropriate basis upon which litigation can be settled. The failure to heed a reasonable offer in circumstances where there is adequate knowledge of the parties at the time the offer is made to give it proper consideration, is something to which very significant weight indeed ought normally to be given …[18]
[17] Browne v Green (2002) 29 Fam LR 428, [57].
[18] Browne v Green (2002) 29 Fam LR 428, [57].
Rule 21.02 of the Federal Circuit Court Rules 2001 (“the Rules”) provides:
(1) An application for an order for costs may be made:
(a) at any stage in a proceeding; or
(b) within 28 days after a final decree or order is made; or
(c) within any further time allowed by the Court.
(2) In making an order for costs in a proceeding, the Court may:
(a) set the amount of the costs; or
(b) set the method by which the costs are to be calculated; or
(c) refer the costs for taxation under Part 40 of the Federal Court Rules or under Chapter 19 of the Family Law Rules; or
(d) set a time for payment of the costs, which may be before the proceedings is concluded.[19]
[19] Federal Circuit Court Rules 2001 (Cth) r 21.02.
Rule 21.10 of the Rules provides:
Unless the Court otherwise orders, a party entitled to costs in a proceeding (other than a proceeding to which the Bankruptcy Act applies) is entitled to;
(a) costs in accordance with Parts 1 and 2 of Schedule 1; and
(b) disbursements properly incurred.[20]
[20] Federal Circuit Court Rules 2001 (Cth) r 21.10.
I note here that though rule 21.10 provides that costs in the Court be in accordance with Parts 1 and 2 of Schedule 1 to the Rules, rule 21.11(2) provides that if costs in the Court are taxed the taxing officer must apply the scale of costs set out in Schedule 3 to the Family Law Rules 2004 (Cth) (“the Family Law Rules”)[21] for Family Law or Child Support proceedings, with Schedule 1 of the Rules being composed of ‘composite amounts’ for stages in the proceedings and Schedule 3 in the Family Law Rules being composed of per item of work or per hour amounts.
[21] Family Law Rules 2004 (Cth) sch 3.
Relevant considerations under section 117(2A)
The financial circumstances of each of the parties to the proceedings following the making of the final parenting orders would not be a bar to the making of a costs order in favour of the mother against the father given that he has employment and has capital assets.
The only matter of conduct between the parties in relation to the proceedings is, as pointed out in the written submissions filed on behalf of the father on the question of costs, the late filing by the mother of two affidavits on 19 September 2019, the day before the interim hearing and not in compliance with the directions made on 14 August 2019 that both parties file and serve one affidavit on which they seek to rely at the interim hearing by 4PM on 13 September 2019.
The proceedings were not necessitated by the failure of either party to comply with any previous orders of the Court, there being no previous parenting orders relating to the children.
I have already considered above the question of whether either party has been wholly unsuccessful in the proceedings and I found each party has been successful, perhaps the mother to a greater degree given that the main issue in the interim hearing was a relocation of the children whilst they are in the mother’s care. Nevertheless, the orders made as a result of the interim hearing were not reflective of the orders sought by the mother in her Response to Application in a Case and no Minute of Orders was presented on behalf of the mother at the interim Hearing seeking orders in excess of her Response to Application in a Case. As I have said, the orders made were reflective of the mother’s real intent in the interim hearing, but that was a matter that evolved at the interim hearing and the mother did not gain an order that covered the Region D.
In the mother’s written submissions on the issue of costs it was submitted that the evidence contained in the mother’s affidavits relied upon by her in the interim hearing contained, in effect, an offer to settle. I find that that is not the meaning of the words “has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer” in section hundred 117(2A)(f) of the Act.[22] Further, in the mother’s affidavit relied upon by her in the interim hearing filed 13 August 2019 she is still speaking of an application for a lease for Street I, Suburb G and about the Region D generally. It is not until her affidavit (which was submitted on the Uniform Civil Procedure Rules form) affirmed on 19 September 2019 and filed at 3:52 PM on that day, the day before the interim hearing, that the mother gives evidence of having “now missed out on the Street I, Suburb G property that I wanted”[23] and stated in that evidence “however, I am still hopeful of finding a suitable property in the Region D area.”[24] Accordingly, even if the evidence in the mother’s affidavits relied on an interim hearing was taken to be “an offer in writing to the other party”, that offer would have been considerably wider (the Region D) than the order made (the greater Town A area) . This same reasoning has been applied above in relation to the consideration of whether the mother was wholly successful or the father was wholly unsuccessful in the proceedings.
[22] Family Law Act 1975 (Cth) s 117(2A)
[23] Affidavit of Mother filed 19 September 2019, [7].
[24] Affidavit of Mother filed 19 September 2019, [7].
These were parenting proceedings. The position taken by the father in opposing a relocation of the children’s place of residence whilst in the mother’s care, to a place at least 70 kilometres distant from where they were residing when in the mothers care at the time the application was made, was not unreasonable and, as I commented in my reasons for judgement giving rise to the parenting orders I made, “the father is obviously acting out of his parental concern for the children and there is no criticism to be found there.”[25]
[25] Mace & Mace (2019) FCCA 2969, [142].
I find that there are no other matters that I consider relevant in relation to the mother’s Application that the father pay her costs of the interim proceedings.
Conclusion
I find that there is no basis upon which the Court should depart from the general rule set out in section 117(1) of the Act that each party to proceedings under the Act shall bear his or her own costs. I will make an order accordingly.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Morley
Associate:
Date: 16 April 2020
Key Legal Topics
Areas of Law
-
Family Law
-
Civil Procedure
Legal Concepts
-
Costs
-
Remedies
0
3
4