Malden & Danbury
[2024] FedCFamC2F 869
•9 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Malden & Danbury [2024] FedCFamC2F 869
File number: SYC 4939 of 2023 Judgment of: MCCLELLAND DCJ Date of judgment: 9 July 2024 Catchwords: FAMILY LAW – REVIEW – Application brought by the father to review a senior judicial registrar’s decision – Hearing de novo – Where the father filed a Notice of Discontinuance and the senior judicial registrar made orders as sought by the mother and awarded costs in the mother’s favour – Where the mother seeks costs pursuant to s 117 of the Family Law Act 1975 (Cth) of the father’s Application for Review on an indemnity basis – Father’s Application for Review is dismissed – Father to pay the mother’s costs in a fixed sum. Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 256
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 12.17, 14.07
Cases cited: Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432
Cross & Beaumont (2008) 39 Fam LR 389; [2008] FamCAFC 68
Feiteiro & Feiteiro [2019] FamCA 647
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish (2005) 33 Fam LR 123; [2005] FamCA 158
Henley & Henley [2019] FamCA 101
Hitch & Hitch (2012) 47 Fam LR 603; [2012] FamCAFC 124
I and I (No 2) (1995) FLC 92-625; [1995] FamCA 80
Kohan and Kohan (1993) FLC 92-340; [1992] FamCA 116
Munday v Bowman (1997) FLC 92-784
Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4
Prantage & Prantage (Costs) [2014] FamCA 850
Robinson and Higginbotham (1991) FLC 92-209; [1991] FamCA 5
Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369
Division: Division 2 Family Law Number of paragraphs: 62 Date of hearing: 5 June 2024 Place: Sydney The Applicant: Litigant in person Solicitor for the Respondent: Ms Piotrowski, KLH & Associates ORDERS
SYC 4939 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MALDEN
Applicant
AND: MS DANBURY
Respondent
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
9 JULY 2024
THE COURT ORDERS THAT:
1.The father’s Application for Review filed 14 May 2024 is dismissed.
2.Within 60 days of the date of these orders, the father pay the mother’s costs of and incidental to:
(a)the father’s Initiating Application filed on 7 July 2023 in the sum of $15,000; and
(b)the Application for Review filed 14 May 2024 assessed in the sum of $1,500.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 the pseudonym Malden & Danbury has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:
INTRODUCTION
The applicant father has applied for review of a decision by a senior judicial registrar dated 23 April 2024, to award costs in circumstances where he discontinued his application for parenting orders and the senior judicial registrar proceeded to make final parenting orders as sought by the mother.
Consideration of an application for review of a decision by a senior judicial registrar is conducted by way of a rehearing. Having considered the evidence presented by the parties and their respective submissions, I have dismissed the father’s Application for Review filed 14 May 2024 and order costs in favour of the respondent mother.
BACKGROUND
The father was born in 1990. He is currently 33 years old. The father contends that he is unemployed and has been in receipt of social security benefits for at least the past three years.
The mother was born in 1988 and is currently 35 years old. The mother is employed as a health care worker. She has re-partnered and has since had children with her new partner.
The parties met in around 2010 and commenced a relationship in 2012. In 2013, the mother fell pregnant. The parties separated prior to the mother giving birth to X (“the child”) in 2014. X is the child of the parties and is the subject of final parenting orders made by this Court.
A BRIEF OUTLINE OF THE PROCEDURAL HISTORY
The proceedings that gave rise to the costs order were commenced by the father on 7 July 2023. Despite having very little contact with the child since the child’s birth, the father sought orders which included that the child live with him (proposed Order 3) and a “Recovery Order” (proposed Order 14) that:
The Marshal of the Court, all officers of the Australian Federal Police and all state and territory police officers are requested to find and recover [the child] and deliver the child to [the father] and for that purpose to stop and search any Vehicle [sic], vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that [the child] may be found.
The orders sought by the father also included an order compelling the mother to unblock his telephone number (proposed Order 4) and further, for the mother to meet with him for an hour once per week “to discuss [the child’s] life” (proposed Order 9).
On 11 August 2023, the mother filed her Response to Final Orders in which she sought orders for the child to live with her (proposed Order 3) and for her to have sole parental responsibility (proposed Order 1). The mother’s orders proposed that the child spend no time with the father (proposed Order 4) and that certain restraints be issued for the personal protection of the mother and the child (proposed Orders 5–6).
On 14 August 2023, an order was made appointing an independent children’s lawyer.
On 23 November 2023, a Child Impact Report was issued.
On 4 December 2023, a judicial registrar made directions regarding the further progress of the case, together with notations. Those notations included the following:
C. The Child Impact Report by Court Child Expert, [Ms B] dated 15 November 2023 has been released during the listing today, as provided for the orders herein. The Applicant Father and Family Advocacy Support Service (“FASS”) worker, [Mr C], were in attendance during the release of the report. The Respondent Mother together with her solicitor, as well as the Independent Children’s Lawyer were also present in Court.
D. The respondent has provided to the Court today a minute of order for the purpose of the applicant undertaking CDT testing and hair follicle testing and orders in relation to the applicant are consulting with a psychiatrist for a report.
E. The applicant informs the Court that he requires a short period of time to consider the proposed orders, including the financial consequences associated with the psychiatric report.
F. The proceedings will be adjourned for a very short period for consideration regarding the future progress of the matter including the CDT and hair follicle testing, for the applicant to consider the costs of the psychiatric report and for the parties to progress the matter towards a court-based family dispute resolution conference.
On 6 December 2023, the matter returned before the same judicial registrar for further case management, directions, and orders. The judicial registrar made detailed orders for the father to submit to a carbohydrate-deficient transferrin test and also for a liver function test. Orders were also made for the father to undertake a hair follicle test for drugs and alcohol.
On 21 December 2023, the father filed an Application for Review of the orders made on 6 December 2023 in respect to drug and alcohol testing. That Application for Review was subsequently heard and dismissed by Judge Vasta on 24 January 2024. His Honour also extended the time for the father to undergo the relevant drug and alcohol tests to 9 February 2024 and awarded costs in favour of the mother fixed in the sum of $1,000.
On 5 February 2024, four days prior to the court ordered deadline for the father to undertake the drug and alcohol tests, the father filed a Notice of Discontinuance.
On 14 March 2024, the senior judicial registrar made final parenting orders as sought in the mother’s response. The senior judicial registrar also made orders for the parties to file respective applications and submissions in respect to costs.
Despite filing a Notice of Discontinuance, the father was permitted to participate in that hearing.
On 23 April 2024, the senior judicial registrar made an Order that:
[W]ithin 28 days, the Applicant Father pay the Mother’s costs of the Review hearing before His Honour Judge Vasta and determined by His Honour in the sum of $1000.00 and otherwise the costs of and incidental to the proceedings quantified at $15,000.00.
The father seeks a review of that Order.[1]
[1] Application for Review filed by the father on 14 May 2024.
NATURE OF A REVIEW APPLICATION
Section 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides for judicial supervision of orders made by registrars under delegated authority by enabling a party to seek the review of a power exercised by a delegate of Division 2 of the Court, namely, a registrar. Rule 14.07 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) sets out the procedure for the hearing of a review.
The effect of these rules is that the review of a registrar’s determination is an original hearing, in the sense that error does not need to be established: Feiteiro & Feiteiro [2019] FamCA 647 at [17], citing Henley & Henley [2019] FamCA 101 at [7]. Thus, the review is taken to mean a re-examination of the matter afresh: Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [43]. To that extent, the review is considered a de novo hearing.
DOCUMENTS RELIED UPON
In conducting the review as a rehearing, I considered the following documents.
In support of his position, the father relied upon the following documents:
(a)The father’s Application for Review filed on 14 May 2024
(b)Documents tendered on the day of the hearing being marked Exhibits A–G, which included:
(i)NAB Bank Statement for account ending …76 in respect to period 15 March 2024 to 14 May 2024
(ii)Email from the father to Judge Kirton’s Associate dated 2 June 2024 attaching Application for Exemption for Paying Court Fee and NAB Bank Statement for account ending …76 in respect to period 15 March 2024 to 14 May 2024
(iii)Westpac Choice Bank Statement for account ending …87 in respect to period 9 October 2023 to 9 April 2024
(iv)Screenshot of Child Support including four entries between 2019/2020, 2020/2021, 2021/2022 and 2022/2023
(v)Email from the father to Judge Kirton’s Associate dated 3 June 2024
(vi)Initiating Application filed by the father on 7 July 2023
(vii)Centrelink 2023 PAYG Payment Summary from 1 July 2022 to 23 June 2023
In support of her position, the mother relied upon the following:
(a)Affidavit of the mother filed 13 November 2023
(b)Financial Statement of the mother filed 23 January 2024
(c)Notice of Discontinuance filed by the father on 5 February 2024
(d)Application in a Proceeding filed by the mother on 4 March 2024
(e)Affidavit of the mother filed 4 March 2024
(f)Costs Notice filed 13 March 2024
(g)Mother’s Written Submissions in Reply filed 28 March 2024
(h)Costs Notice filed 4 June 2024
THE ISSUE
The issue to be determined in these proceedings is whether an order for costs should be made against the father consequent to the discontinuance of his application, and the court making orders in accordance with those sought by the mother.
PRINCIPLES FOR CONSIDERING COSTS IN FAMILY LAW PROCEEDINGS
The issue of costs in respect to proceedings under the Family Law Act 1975 (Cth) (“the Act”) is to be determined in accordance with s 117 of the Act. That section relevantly provides that:
(1)Subject to subsection (2), subsection 102QAB(6) and sections 117AA and 117AC, each party to proceedings under this Act must bear the party’s own costs.
(2)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) and 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.
[Notes omitted]
(2A) 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 the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
The general rule, as set out in s 117(1) of the Act, is that each party to the proceedings shall bear his or her own costs. This is, however, subject to s 117(2) of the Act which provides that, if the Court is satisfied that there are circumstances justifying it, the Court retains a discretion to make such order as to costs as it considers just. Beyond the “essential preliminary” consideration of those matters set out in s 117(2A) of the Act, there is no “additional or special onus” on the applicant for the Court to make an order for costs: Penfold v Penfold (1980) 144 CLR 311 at 315.
In considering whether it is appropriate and just to make an order for costs in favour of a party, it is necessary to take into account and balance all relevant matters referred to in s 117(2A) of the Act to determine whether the overall circumstances justify the making of an order for costs.[2] However, that is not to say that one single matter may not ultimately be determinative, nor does any factor set out in that section have priority over another.[3] Ultimately, the weight to be given to each factor is a matter for the judicial officer.
[2] I and I (No 2) (1995) FLC 92-625 at 82,277.
[3] Prantage & Prantage (Costs) [2014] FamCA 850 at [12], citing Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) & Fish (2005) 33 Fam LR 123 at [41].
CONSIDERATION
It is convenient to address each of the matters set out in s 117(2A) of the Act to the extent that I have considered them relevant in my determination to award costs in favour of the mother.
The parties’ financial circumstances (s 117(2A)(a))
The father contends that he lacks the financial capacity to satisfy an order for costs. He has tendered bank statements indicating that he has effectively no cash deposits from which to draw. The father has also tendered a screenshot of his “Income Overview” from the Child Support agency, which shows that his taxable income in respect to the financial years 2019 to 2023 are as follows:
(a)2019/2020 – $23,956
(b)2020/2021 – $39,733
(c)2021/2022 – $35,433
(d)2022/2023 – $26,763
I have also considered the father’s Financial Statement filed on 21 March 2024. Relevantly, in that document, the father states that he has no liabilities and an average weekly income of $400 per week which he receives by way of Centrelink government benefits. He fails to identify any items of personal expenditure in Part G other than a personal loan repayment of $50 per week and a child support obligation in the sum of $21 per week. The only other items of expenditure identified by the father are set out in Part N of his Financial Statement, which declares that he attends to weekly expenses of the following:
(a)Food – $120
(b)Household supplies – $25
(c)Telephone bill – $10
(d)Chemist/pharmaceutical – $30
Accordingly, on the father’s own evidence, he has a surplus of income over expenditure in the sum of $144 per week.
Comparatively, the mother’s Financial Statement filed on 23 January 2024 states that she has an average weekly income working as a part-time health care worker in the sum of $151 per week and that her total personal expenditure for herself and her children is approximately $1,247 per week. Her current partner, who resides with the mother, earns approximately $500 per week. The mother notes in Part F of her Financial Statement that she can make up the surplus of expenditure as a result of assistance provided by her parents.
In the circumstances of this case, I am satisfied that it would be unfair to the mother to require her to meet the totality of her legal costs and a factor that I have taken into consideration in requiring the father to meet the mother’s costs is that, on his own evidence, he has a surplus of income over expenditure.
In any event, I note that in Cross & Beaumont (2008) 39 Fam LR 389 at [60], the Full Court held that financial impecuniosity to pay a costs order is not a barrier to the making of such an order where the conduct of the party may warrant a costs order being made.
Receipt of assistance by way of legal aid by either party (s 117(2A)(b))
By way of evidence from the bar table, the father asserted that he had been provided with a grant of legal aid for the purpose of a lawyer that he consulted attending a mediation. The terms of the grant of legal aid were not, however, provided to the Court. Self-evidently, as and from 4 December 2023, the father was self-represented in the proceedings.
I accept the father’s evidence that at one stage, he received a limited grant of legal aid. I have not regarded that fact, however, as being relevant to my determination to award costs in favour of the mother.
Conduct of the parties in relation to the proceedings (s 117(2A)(c))
This section is focused on the conduct of the parties as litigants (Hitch & Hitch (2012) 47 Fam LR 603), rather than as separated parents generally.
The mother’s affidavit filed 4 March 2024, described a history of the father prevaricating in respect to his position during court appearances and making unhelpful, long winded and unstructured submissions.
Specifically, the mother contended that when the parties appeared before a judicial registrar for directions on 6 December 2023, the father “kept speaking about things in a ‘roundabout, non‑committal way’ – for example, in one sentence he would say that he had no problem with the drug testing, and in the next sentence completely disagree that he had to do it”.
The father subsequently sought a review of the orders made by the judicial registrar requiring the drug and alcohol testing to occur and also sought that a range of penalties be imposed on the mother.
I accept that the mother has incurred additional legal expenses as a result of the father’s changed position in respect to undertaking drug and alcohol tests.
It is also contended that I should have regard to the fact that the father discontinued the proceedings at the eleventh hour – specifically, four days before he was required to submit to the relevant drug and alcohol tests and three weeks before a court based mediation was scheduled.[4] Self-evidently, the mother has incurred additional expenses as result of the father not filing a Notice of Discontinuance sooner.
[4] Affidavit of the mother filed 4 March 2024, paragraph 15.
Having observed the manner in which the father presented submissions in the hearing before me, I have no difficulty in accepting that his presentation at the relevant court events to which I have earlier referred, was as described in the mother’s affidavit and that additional expenses were incurred as a result of the additional length of the proceedings.
Accordingly, the manner in which the father has conducted the proceedings is a matter that I have had regard to in determining that he should pay the costs of the mother.
Whether the proceedings were necessitated by a party’s failure to comply with previous orders (s 117(2A)(d))
The mother contends that the father’s failure to comply with orders made on 6 December 2023 in respect to submitting for drug and alcohol tests is a matter that the Court should consider in determining the issue of costs.
I am satisfied that the father’s non-compliance with the order for drug and alcohol testing and his Application to Review, necessarily resulted in further proceedings. However, the award of costs made against the father by Judge Vasta in respect to the failed Review Application, that he considered, addresses that issue. Accordingly, I have not had regard to that issue in determining to award costs in favour of the mother.
Whether any party has been wholly unsuccessful in the proceedings (s 117(2A)(e))
In Robinson and Higginbotham (1991) FLC 92-209 at 78,417, Nygh J stated that a party has been wholly unsuccessful if their “application which was without merit has been dismissed”.
The solicitor advocate for the mother appropriately, in my view, acknowledged that in circumstances where the proceedings were discontinued by the father, the Court should not determine that the father was wholly unsuccessful. This is because, as a result of the discontinuance, the Court did not make a determination in respect to the father’s application.
Whether an offer has been made in writing to settle the proceedings (s 117(2A)(f))
The father contended that he had made oral offers to settle this matter but accepted that there had been no offer in writing. Accordingly, I have not regarded this consideration as being relevant.
Such other matters as the Court considers relevant (s 117(2A)(g))
While I have not determined that the father was wholly unsuccessful in respect to his application, it is clear that the mother was wholly successful in respect to her application, with final orders being made in terms of those sought by her.
SUMMARY AND CONCLUSION IN RESPECT TO COSTS
For those reasons, I am satisfied that it is in the interests of justice for an order for costs to be made in favour of the mother. The question then becomes, in what sum should an order for costs be made.
Quantification of costs
Rule 12.17 of the Rules sets out the methods of calculating costs. These include the Court fixing a “specific amount” for costs (r 12.17(1)(a)) or an order for the costs to be assessed on a “particular basis” (r 12.17(1)(b)).
Should be awarded on an indemnity basis?
The mother contends that the manner in which the father conducted the proceedings justifies an order for indemnity costs in respect to the entirety of the proceedings.
In Kohan and Kohan (1993) FLC 92-340, the Full Court stated at 79,614:
[T]he Court should not depart lightly from the ordinary rules relating to costs between party and party and the circumstances justifying the departure should be of an exceptional kind.
(Citations omitted)
The category of cases in which a Court may make an indemnity costs order is not closed. Holden CJ in Munday v Bowman (1997) FLC 92-784 at 84,660 provided some examples of circumstances that might justify the awarding of indemnity costs, including, relevantly, “the undue prolongation” of a case. In written submissions filed by the mother on 28 March 2024, the mother provides the following illustrations of how the father has occasioned delays since commencing proceedings:
iv.Necessitating numerous attendances by the Court’s registry staff addressing the continuous erroneous documents which he had filed and then had voided.
ii. Taking up valuable judicial time and resources by venting his grievances and being allowed to speak at length instead of advancing the matter towards a final hearing.
iii. On 4 December 2023, the matter was before the Court. The Child Impact Report was released to the parties on this day. The [father] informed the Court that he required a short period of time to consider the Mother’s proposed orders (in relation to a psychiatric report, and CDT / hair follicle testing). As a result, a further Court appearance was required on 6 December 2023.
iv. Orders were made on 6 December 2023 in relation to the [father] undergoing CDT and hair follicle testing. The [father] did not comply with the Court Orders. Instead, the [father] sought to review those orders. As a result, a further Court appearance was required on 24 January 2024. On that occasion, His Honour Judge Vasta dismissed the [father’s] application for review, extended time for compliance with the CDT and hair follicle testing, and awarded costs to the Mother, fixed in the sum of $1,000.00.
(Footnote omitted)
In this matter, I am satisfied that the conduct of the father in prevaricating in respect to undertaking drug and alcohol tests consequent upon the orders made on 6 December 2023 justifies an exercise of discretion to award indemnity costs in favour of the mother from that date until the date of discontinuance of the proceedings on 5 February 2024.
The difficulty, however, is that the documentation provided by the mother does not enable me to differentiate between costs incurred during that period and costs incurred prior to orders being made on 6 December 2023. To require the mother to prepare a detailed memorandum of costs would, in my view, be counter productive.
Accordingly, instead, I have determined that it is appropriate to make an order for costs in accordance with a lump sum amount assessed on a party and party rather than indemnity basis.
It has been determined that where a Court orders a party to pay costs, it may be appropriate for the Court to fix a lump sum. By doing so, the Court can avoid further delay and inconvenience being occasioned by the requirement to tax a bill: Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432 at [51].
The mother’s Costs Notice records that she has been billed $26,044.78 as of 4 June 2024. The difficulty I have, however, is that she has not itemised the work. In those circumstances, I propose to award her costs in the sum of $15,000 being the costs awarded by the registrar and which I regard as being fair and equitable in respect to the legal work associated with the substantive parenting proceedings.
I will also award costs in respect to the Review Application which, as at 4 June 2024, the mother estimated to be $1,000. However, as a result of the manner in which the father conducted himself on the day of the hearing, the proceedings went considerably longer than the anticipated time. I will therefore award the mother costs in respect to the Review Application in the sum of $1,500.
I will require those costs to be paid within 60 days.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge McClelland. Associate:
Dated: 9 July 2024
0
7
3