FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Metaxas & Sargent (No 2) [2022] FedCFamC1F 238
File number(s): MLC 10093 of 2018 Judgment of: MCEVOY J Date of judgment: 13 April 2022 Catchwords: FAMILY LAW – COSTS – Circumstances justifying costs order – Where mother seeks indemnity costs against the father or alternatively costs on scale – Where the mother’s financial position is more parlous than the fathers – Where the father’s conduct prior to and during the trial put the mother to additional cost and inconvenience – Where the mother made an offer of settlement to the father on the day prior to trial – Where the final orders made differed to the mother’s offer in two key respects and so it cannot be said the mother did as well or better at trial – Where the circumstances are not so exceptional as to warrant an order for indemnity costs – Where an order for costs on scale is made – Where the scale under Sch 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) applies, not the scale under Sch 3 of the Family Law Rules 2004 (Cth) Legislation: Family Law Act 1975 (Cth) s 102NA and s 117
Family Law Repeal Rules2021 (Cth) sch 1
Family Law Rules 2004 (Cth) sch 3
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) sch 3 and r 12.17
Federal Circuit and Family Court of Australia, Practice Direction – Transitional Arrangements, 1 September 2021
Cases cited: Baum & Lokare (No 2) [2019] FamCA 292
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) Fam LR 123; [2005] FamCA 158
Hogan & Hogan (1986) FLC 91-704
I & I (No.2) (1996) FLC 92-62
In the Marriage of Kohan (1993) FLC 92-340; [1992] FamCA 116
Kelly & Kelly (No.2) (1981) FLC 91-108
Metaxas & Sargent [2022] FedCFamC1F 97
Moy & Pao [2022] FedCFamC1A 17
Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4
Stasiuk & Guild [2021] FamCAFC 62
Wrenstead v Eades (2016) FLC 93-697; [2016] FamCAFC 46
Yunghanns v Yunghanns (2000) FLC 93-029; [2000] FamCA 681
Division: Division 1 First Instance Number of paragraphs: 40 Date of last submission/s: 18 March 2022 Date of hearing: On the papers Place: Melbourne ORDERS
MLC 10093 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SARGENT
Applicant
AND: MR METAXAS
Respondent
ORDER MADE BY:
MCEVOY J
DATE OF ORDER:
13 APRIL 2022
THE COURT ORDERS THAT:
1.Pursuant to rule 12.17(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), within 90 days of the date of these orders the father pay to a nominated bank account of the mother:
(a)the mother’s costs for the preparation of the final hearing for the period 25 March 2021 to 8 June 2021 in accordance with scale fixed in the amount of $10,639.65; and
(b)the mother’s costs…
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- AGLC
- Metaxas & Sargent (No 2) [2022] FedCFamC1F 238
- Case
- [2022] FedCFamC1F 238
- Decision Date
CaseChat Overview and Summary
The case of Metaxas & Sargent (No 2) involves a dispute over costs between a mother and a father in the context of child support proceedings. The matter was heard in the Family Court of Australia. The primary issue before the court was the allocation of costs between the parties, particularly in light of the mother's application for a departure from the usual rule that each party bears their own costs, as stipulated in section 117(1) of the Family Law Act 1975. The mother sought an order for the father to bear her costs, citing the disparity in their financial circumstances and the father's conduct in the proceedings. In response, the father argued that the usual rule should apply and that the mother's conduct warranted a costs order against her.
The court considered the respective financial positions of the parties, as well as their conduct throughout the proceedings. The mother's financial situation was described as precarious, with her being unemployed, reliant on government support, and having limited income prospects. In contrast, the father was found to have a significantly higher income and substantial property holdings. The court also noted the father's arrears in child support payments to the mother. The mother's attempts to compromise and the father's conduct in the proceedings were also assessed. The court determined that the mother's financial position and the father's conduct justified a departure from the usual rule, warranting an order for the father to bear the mother's costs.
In light of the findings, the court ordered that the father bear the mother's costs in accordance with the scale specified in the 2021 Rules. The costs were quantified at $10,639.65 for the period of 25 March 2021 to 8 June 2021 and $9,647.45 for the period of 9 June 2021 to 11 June 2021. The court ruled that these costs must be paid within 90 days of the date of the orders to a bank account nominated by the mother. The court rejected the father's request for a longer payment period, finding that there was no compelling reason to grant him more than 30 days beyond the mother's proposed 60-day period.
The court considered the respective financial positions of the parties, as well as their conduct throughout the proceedings. The mother's financial situation was described as precarious, with her being unemployed, reliant on government support, and having limited income prospects. In contrast, the father was found to have a significantly higher income and substantial property holdings. The court also noted the father's arrears in child support payments to the mother. The mother's attempts to compromise and the father's conduct in the proceedings were also assessed. The court determined that the mother's financial position and the father's conduct justified a departure from the usual rule, warranting an order for the father to bear the mother's costs.
In light of the findings, the court ordered that the father bear the mother's costs in accordance with the scale specified in the 2021 Rules. The costs were quantified at $10,639.65 for the period of 25 March 2021 to 8 June 2021 and $9,647.45 for the period of 9 June 2021 to 11 June 2021. The court ruled that these costs must be paid within 90 days of the date of the orders to a bank account nominated by the mother. The court rejected the father's request for a longer payment period, finding that there was no compelling reason to grant him more than 30 days beyond the mother's proposed 60-day period.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
The father’s primary position is that there should be no order for costs at all. Alternatively, if costs are awarded against him on a scale basis, the father seeks that the costs are awarded in the fixed sum of $8,988.99 (in accordance with the 2004 Rules) for the period of 25 March 2021 to 8 June 2021 relating to the preparation for the final hearing, as well as $8,559.52 (in accordance with the 2004 Rules) for the period of the final hearing. Were a costs order to be made he would seek that the costs be paid within 120 days of the date of the order.THE EVIDENCE The mother filed an affidavit in support of her Application dated 10 March 2022. Her position in substance is that the father’s conduct is such as to justify a departure from the usual rule in s 117(1) of the Act that each party pay their own costs. She relies on her financial position relative to his, and the attempts she made to compromise the proceedings. The father’s position is that the usual rule in s 117(1) of the Act should prevail. Amongst other matters he purports to rely on the parties’ respective financial positions, and an argument that the conduct of the mother in the proceedings has been unsatisfactory. Financial position of parties The mother claims that her financial position is more parlous than that of the father. She is currently unemployed and has commenced studying a tertiary degree which will take approximately six years to complete. She is on government support and receives social security payments, as well as a small amount of tax benefit and rental assistance. She owns 50 per cent of one property, in which her equity is approximately $92,000. Whilst the mother is hoping to gain casual employment in the near future, she estimates that she will only be able to earn around $24,000 per annum. Additionally, she notes that the father is in arrears of $19,35.28 with respect to child support payments owing to her. The mother contends that the father’s financial position is significantly better than hers. She notes that he appears to have had stable employment since at least 2018 and that his provisional annual income for 1 July 2022 until 18 December 2022 is estimated to be $180,392, while her provisional income for this same period is $24,269. Further, she notes that he owns six properties, which she estimates have the capacity to bring in approximately $3,000 of rental income per week, and in which she says the father’s own evidence suggests his equity is at a minimum $2,060,000. The mother submits that the father’s equity is in fact around $4.3 million. The father submits that his financial position is not as strong as the mother suggests. He says that he had limited capacity to work and earn wages from 2017 to 2019. In 2017 he says that he did not work so that he could be the child primary carer while the mother continued to work. He says that in 2018 and 2019 he was only able to work for 9 months and 6 months respectively, due to his police record. The father was also legally aided during the trial, although it is to be noted that this was pursuant to a s 102NA order and was not means tested.
Decision
Reasons for decision
Insofar as the mother seeks to have her costs paid within 60 days and the father says that he should have 120 days, it is not apparent why any longer period to pay should be granted to the father. Nonetheless, he may have a further 30 days and there will be an order that these amounts be paid within 90 days.CONCLUSION There will accordingly be an order that the mother have her costs in accordance with scale as specified in accordance with the 2021 Rules, being $10,639.65 for the period 25 March 2021 to 8 June 2021 and $9,647.45 for the period of 9 June 2021 to 11 June 2021. These costs must be paid within 90 days of the date of the orders, to a nominated bank account of the mother.
Ratio Decidendi
Legal Principle Established
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