Maddison & Forbes (No 2)
[2023] FedCFamC2F 214
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Maddison & Forbes (No 2) [2023] FedCFamC2F 214
File number(s): PAC 5080 of 2021 Judgment of: JUDGE GLASS Date of judgment: 2 March 2023 Catchwords: FAMILY LAW – COSTS – where the Respondent has been found to have repeatedly contravened parenting orders without reasonable excuse – where the Court is not satisfied that it would not be in the children’s best interests for the Respondent to pay all of the Applicant’s costs Legislation: Family Law Act 1975 (Cth) Part VII Div 13A sub F, ss 70NFB(1)(a), 70NFB(2)(g), 117(1) Cases cited: D & D (Costs) No 2 (2010) FLC 93-435
Maclean & Greenwood (2022) FLC 94-117
Roffe & Huie [2016] FamCAFC 166
Sheill & McMurr (No 2) (2014) FLC 93-599
Short v Trevilian [2008] FamCA 866
Division: Division 2 Family Law Number of paragraphs: 12 Date of last submission/s: 27 February 2023 Date of hearing: 23 January 2023 Place: Melbourne Counsel for the Applicant: Mr Harper Solicitor for the Applicant: King Cain Solicitors Counsel for the Respondent: Mr Laughton SC Solicitor for the Respondent: No Solicitor ORDERS
PAC 5080 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR FORBES
Applicant
AND: MS MADDISON
Respondent
order made by:
JUDGE GLASS
DATE OF ORDER:
2 March 2023
THE COURT ORDERS THAT:
1.On or before 2 June 2023, the Respondent pay the Applicant’s costs in the amount of $25,870.
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 Maddison & Forbes has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS:
On 31 January 2023, pursuant to subdivision F of Division 13A of Part VII of the Family Law Act 1975 (the Act), I found that Ms Maddison had contravened, without reasonable excuse, parenting Orders providing for the parties’ children to spend time with Mr Forbes on 20 occasions between October 2021 and July 2022. I ordered Ms Maddison to enter into a bond without surety or security for a period of two years.
Mr Forbes seeks Ms Maddison pay his costs on an indemnity basis in the amount of $25,870 within three months. The application is opposed by Ms Maddison.
Pursuant to paragraphs 70NFB(1)(a) and (2)(g) of the Act, I must make an order for Ms Maddison to pay “all of the costs” of Mr Forbes unless I am satisfied that it would not be in the best interests of the children to make the order. Contrary to the submissions of both parties, that statutory formulation appears to require that any costs order be made on an indemnity basis.[1]
[1] Roffe & Huie [2016] FamCAFC 166 (“Roffe & Huie”) at [18].
The usual rule that each party pay their own costs in proceedings under the Act is inapplicable.[2] In determining what is in the children’s best interests, I am to consider the matters prescribed by section 60CC of the Act. It is not, however, necessary to traverse each and every paragraph of that section “like some form of mantra”. Rather, I must consider the relevant facts and circumstances that are determinative of the particular decision, having regard to how the case is put.[3] Those observations are particularly apposite given the apparent irrelevancy of the majority of the section 60CC considerations to the issue arising for determination.
[2] Family Law Act 1975 (Cth) ss 117(1); Roffe & Huie at [35]; Short v Trevilian [2008] FamCA 866 (“Short v Trevillian”) at [80].
[3] Maclean & Greenwood (2022) FLC 94-117 at [27] and the cases there cited.
Ms Maddison submits that I ought not make an order for costs in circumstances of her impecuniosity. She deposes to her net earnings for the period from 20 July 2020 to 20 June 2021 being $70,165,[4] although elsewhere suggests that amount related to the period 20 July 2020 to 20 June 2022.[5] Her Australian Taxation Office (ATO) Assessed Income for the Financial Year ending 30 June 2022 was $59,953.[6] Ms Maddison submits that her financial hardship has been exacerbated by modest and irregular child support payments made by Mr Forbes.
[4] Ms Maddison’s Affidavit filed 20 January 2023 (“Ms Maddison’s Affidavit”), paragraph 208.
[5] Ms Maddison’s Affidavit, paragraph 235.
[6] Ms Maddison’s Affidavit, Annexure I, page 155.
It is well established that impecuniosity does not operate as a bar to the making of an order for costs,[7] albeit such dicta is typically applied in the context of the exercise of discretion under section 117 of the Act.
[7] Sheill & McMurr (No 2) (2014) FLC 93-599 at [92].
Ms Maddison submits that the making of an order for costs would be futile as it could never be paid. Concerns about the recoverability of costs are not a reason to decline to order costs if Mr Forbes otherwise establishes an entitlement to such an order.[8]
[8] D & D (Costs) No 2 (2010) FLC 93-435 at [21].
Inconsistently with the previous submission, Ms Maddison submits that imposing a costs order upon her will cause her financial difficulties which would impact on the children who would suffer the financial burden imposed on her. She submits her capacity to provide for the children’s needs would be reduced. She deposes to expending 79% of her net income on the children’s expenses from 20 July 2020 to 20 June 2022.[9]
[9] Ms Maddison’s Affidavit, paragraph 235.
Aside from the identified inconsistency in Ms Maddison’s submission, there is a circularity to her argument. Mr Forbes has expended substantial funds on his lawyers to successfully prosecute an application arising only as a result of Ms Maddison’s repeated and extensive failure to comply with the Court’s Orders. Those funds could have otherwise been made available for the payment of child support or indeed applied to the children by Mr Forbes himself. Whilst his income exceeds Ms Maddison’s, it is relatively modest. His ATO Assessed Income for the Financial Year ending 30 June 2022 was $68,443.[10] He has accordingly expended nearly half his net annual income on legal fees relating to this application.
[10] Ms Maddison’s Affidavit, Annexure I, page 155.
Whilst I accept that an order for costs will reduce Ms Maddison’s capacity to provide for the needs of the children who live primarily with her, it will increase Mr Forbes’ capacity to do so, both when the children are spending time with him, and through child support. Further, it is in the children’s best interests for Ms Maddison to be encouraged to obey all Court orders.[11]
[11] Short v Trevillian at [90].
On balance, I am not satisfied that it would not be in the children’s best interests for Ms Maddison to pay all of Mr Forbes’ costs. Ms Maddison does not submit that the quantum claimed, nor the terms proposed for its payment, are inappropriate.
I will accordingly require Ms Maddison to pay all of Mr Forbes’ costs within three months.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass. Associate:
Dated: 2 March 2023
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