METFORD & FADDIN (No.3)

[2018] FCCA 3832

FEDERAL CIRCUIT COURT OF AUSTRALIA

METFORD & FADDIN (No.3) [2018] FCCA 3832

Catchwords:
FAMILY LAW – Costs.

Legislation:

Family Law Act 1975 (Cth), s.117

Cases cited:

Colgate-Palmolive Company and Colgate-Palmolive Pty Limited v Cussons Pty Limited [1993] FCA 536
Munday v Bowman (1997) FLC 92-784

Applicant: MR METFORD

Respondent: MS FADDIN

File Number: BRC 9993 of 2017

Judgment of: Judge Cassidy

Hearing date: On the papers

Date of Last Submission: 22 November 2018

Delivered at: Brisbane

Delivered on: 30 November 2018

REPRESENTATION

For the Applicant: Self-represented

Solicitors for the Respondent: Baker O'Brien & Toll

ORDERS

THE COURT ORDERS:

1. That the Applicant father pay the Respondent mother’s costs, fixed in the sum of $6000 by on or before 31 January 2019.

IT IS NOTED that publication of this judgment under the pseudonym Metford & Faddin (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 9993 of 2017

MR METFORD

Applicant

And

MS FADDIN

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an Application for costs made by the mother in this matter and a cross-application by the father for a costs order as well.  This judgment should be read in conjunction with the reasons for judgment delivered on 25 October 2018 and 18 July 2018. 

2. The mother seeks her costs on an indemnity basis for the whole of the proceedings.  The father opposes those orders and seeks his own costs set in the sum of $15,462. 

Background

1. The matter was initiated by the father arguing that there had been a change in circumstance. The father was successful in that argument, and a family report was ordered.  The matter then proceeded to hearing.  The father’s conduct in failing to return the children on five occasions necessitated the mother’s filing of an Application in a Case.  A judgment was delivered on the mother’s Application in a Case on 18 July 2018.  That judgment provided for the orders sought by the mother.  I note that the mother’s costs were fixed in the sum of $4682 arising out of that hearing and those costs were reserved to the final hearing.

2. At the final hearing of the matter, the mother was successful in retaining sole parental responsibility and successful in the children continuing to reside with her for five nights a fortnight, as opposed to the seven nights a fortnight sought by the father.  Otherwise, the parties had some success in that the father succeeded in the changeover point being varied, and the father was successful in ensuring that the changeover did not continue to occur on Sunday nights.

The Legal Principles

1. Section 117 of the Family Law Act 1975 (Cth) (“the Act”), sets out that:

   “(1)  Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.” Under subsection (2):

   “(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.” The considerations that I have to take into account in determining whether I should make a costs order are set out in section 117(2A), and they are:

   “(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;

   (which is really not relevant to a children’s matter but only relevant to a property matter); and

      (g)  such other matters as the court considers relevant.”

2. Indemnity costs are available under the provisions of the Act, in the sense that the decision of Holden J in Munday v Bowman (1997) FLC 92-784, pointed out that the Court can rely on the decision of Sheppard J in Colgate-Palmolive,[1] where circumstances warrant it.  I accept that the circumstances have to be special or unusual to justify a Court departing from an ordinary practice. Examples of where the Court may do so may include where it appears the action has been commenced or continued in circumstances where a party, properly advised, should have known that there was no chance of success. In such cases the action must be presumed to have commenced or continued for an ulterior motive.

   [1] Colgate-Palmolive Company and Colgate-Palmolive Pty Limited v Cussons Pty Limited [1993] FCA 536.

Discussion

1. In the present case, I do not consider this is a matter that meets the threshold set out in the indemnity costs cases, because the father has had some success in the litigation. The father indeed, was successful in initiating the litigation by arguing that there was a change in circumstance that justified commencing the further proceedings in this matter.

2. The Application in a Case where the mother was wholly successful, in my view, needs to be considered separately from any other costs application.  In that case, the wife sought costs in the sum of $4682.

3. That Application arose because the father failed to comply with the Orders of Coates J made in 2013.  The mother, as I have indicated, was wholly successful.  I note that the father has four real properties registered in his name, according to the Affidavit of Ms T. While they have mortgages registered over them, the father clearly owns real estate.  The father also is a tradesman who earns income from his trade.  I accept that the mother is also employed; however, in judging that matter, I am satisfied that I should make an order for costs that are costs according to scale fixed in the sum of $4682.

4. With respect to the final hearing, I accept that the final hearing saw both parties succeed in some areas of the litigation. However, the father was wholly unsuccessful in the sole parental responsibility application he made, and this needs to be seen in the context where this matter had already been heard and determined by Coates J in 2013. In that judgment, the Court ordered the mother to have sole parental responsibility. I also note there was a family report prepared by Ms H that recommended that the mother continue to have sole parental responsibility.

5. The final determination made in this Court left the mother with sole parental responsibility in circumstances where the reasons were similar to those provided by Coates J in his earlier decision. 

Orders

1. I will therefore increase the total order of costs by a relatively small amount, to a total of $6000, for the time taken up at the trial for the litigation in relation to sole parental responsibility.

2. I will not otherwise make any further order for costs in favour of the mother given that the father, as set out in his submissions, had some success in the litigation. 

3. I will dismiss the father’s costs application as the father was not legally represented. The father does not set out a foundation for the costs he alleges he has incurred. Furthermore, aside from the limited costs I have ordered, I do not see any reason to depart from the primary position, which is that each party should pay their own costs of, and incidental to the litigation.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Cassidy

Associate: 

Date:  18 February 2019