MISRA & YENDRAMBAM

[2017] FamCA 771

FAMILY COURT OF AUSTRALIA

MISRA & YENDRAMBAM [2017] FamCA 771

FAMILY LAW – COSTS – Where the wife makes an application for costs – Where this application for costs was determined in chambers with the consent of the parties – Where the father’s non-appearance in court on multiple occasions caused significant inconvenience to the Court and the mother – Where costs are awarded in the sum of $4,092 – Where the husband has 30 days to pay.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 FamLR 123
Kohan & Kohan (1993) FLC 92-340
Penfold v Penfold [1980] HCA 4; (1980) 144 CLR 311
Prantage & Prantage [2013] FLC 93-544
Yunghanns v Yunghanns (2000) FLC 93-029

APPLICANT: Ms Misra

RESPONDENT: Mr Yendrambam

INDEPENDENT CHILDREN’S LAWYER: Berck Solicitors

FILE NUMBER: BRC 11174 of 2012

DATE DELIVERED: 27 September 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: In chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Salvos Legal Humanitarian

SOLICITOR FOR THE RESPONDENT: Self-represented

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Berck Solicitors

Order

1. The father shall pay the mother’s costs of and incidental to her Amended Application in a Case filed 30 June 2017 fixed in the sum of $4,092.

2. The father shall pay the said costs within thirty (30) days of this order.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Misra & Yendrambam has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11174 of 2012

Ms Misra

Applicant

And

Mr Yendrambam  

Respondent

REASONS FOR JUDGMENT

1. This is an application for costs determined with the consent of the parties in chambers.

2. When the matter was last before me on 17 July 2017 I made the following order relevant to the issue of costs.

   10. In respect to the issue of whether a costs Order, if any, might be made regarding the costs of and incidental to the Amended Application in a Case filed by the mother on 30 June 2017:

   (a) By no later than 31 July 2017 the mother shall file and serve any further affidavit in support of her application for costs and written submissions;

   (b) By no later than 14 August 2017 the father shall file and serve one affidavit of evidence relevant to the issue of costs and written submissions in response; and

   (c) The issue regarding costs shall be determined in chambers without the necessity of further appearance by any party.

3. At the hearing on 17 July 2017 the father was represented by a solicitor who has since filed a Notice of Ceasing to Act.

background

1. The background to this application for costs arises in circumstances where the mother filed an Application in a Case on 2 June 2017 seeking inter alia holiday time with the child, V born … 2008 for the period 30 June to 1 July 2017.

2. The mother lives in the United States of America. It was clear from her Application that she would be travelling to Australia for the purposes of spending time with the child.

3. The child and father now live in B Town, New South Wales.

4. The mother’s application was returnable before the Court on 30 June 2017.

5. The father filed a Response to the Application on 29 June 2017 wherein he sought inter alia for the mother’s application for holiday time to be dismissed.

6. In support of his Response the father swore and filed an affidavit on 29 June 2017 where he said the following:

   9. As this application was listed at such a short notice and is conflicting with a pre-arranged medical appointment I am unable to attend the hearing in person. Hence I request to be heard through Electronic communication lodged with the court. (Annexure-C).

   …

   11. Further child and Father have pre-planned lot of activities and major travel for this holiday breach and it is not possible to change them at this stage.

   12. As I can’t be there personally due to necessary medical surgery on 30/6/2017, I request the court not to make any orders in Hast (sic) which will put the welfare of child at risk. 

7. The father also filed on 29 June 2017 a Request to attend by electronic communication at the hearing on 30 June 2017. In that document the father stated his reasons as including the following:

   4. Respondent [Mr Yendrambam] has a pre-arranged medical appointment conflicting with the date of Hearing. Hence unable to attend in person.

8. The father also requested the Court to call him at the time of the hearing and supplied a number or in the alternative asked to be provided with a number on which he could call the Court.

9. The Request document also annexed to it an email from the independent children’s lawyer in the matter stating she had no objection to the father appearing by telephone but seeking his advice on whether he would agree to the child spending holiday time with the mother.

10. The mother filed an Amended Application in a Case on 30 June 2017 seeking to spend time with the child on different dates to those originally proposed namely from 1 July to 17 July 2017 no doubt because the date allocated for the hearing was originally to be the commencement of the holiday time.

11. The father failed to make an appearance on 30 June 2017 despite the Court making a number of attempts to call him on the number provided. The matter was adjourned to 4 July 2017 and the father was ordered to attend in person at that hearing. 

12. On 4 July 2017 the father appeared by telephone and informed the court that he was overseas with the child. I note that there remains in force an order dated 1 June 2015 restraining the father from removing the child from Australia.

13. On 4 July 2017 the mother’s solicitor stated in an affidavit that the father and child had departed Australia at 6am on 30 June 2017 on his way to New Zealand. The source of the information was stated to be two phone calls received from the Family Court Registry on 30 June 2017 at 2.55pm and 4.39pm. The mother informed the Court that she was due to depart Australia on 19 July 2017 and this was noted on the order that issued on 4 July 2017. Leave was given for the father to be served with any documents via his email address.

14. The matter was further adjourned to 17 July 2017.

15. On 7 July 2017 a Notice of Address for Service was filed by a solicitor representing the father.

16. On 17 July 2017 the father was represented by a solicitor and an order was made by consent in relation to the child communicating with the mother. It was further ordered that within 7 days after his return from overseas the father deliver up all passports for the child to his solicitor and he was restrained from applying for a new passport for the child. The order included the provision in relation to the costs application set out above.

17. On 25 July an affidavit was filed on behalf of the mother in which her solicitor informed the Court that the mother was represented by solicitors on a pro bono basis and would not be seeking costs however costs incurred for counsel who appeared on 4 July and 17 July were sought. A costs agreement and tax invoices were annexed to the affidavit. The invoices indicate that counsel discounted his fees for both appearances and rendered a fee for $2,772 for the appearance on 4 July and $1,320 for the second appearance.

18. On 1 August 2017 a further affidavit was filed on behalf of the mother annexing written submissions in support of the application for costs. While the submissions refer to costs being sought on an indemnity basis for the appearances on 4 July and 17 July there is nothing to indicate that the mother’s position in relation to costs was other than as expressed in the affidavit filed on 25 July, namely, an order was sought for the two counsel’s fees. I have proceeded on that basis.

19. The father has not filed any material in relation to the costs application.

how costs applications are determined

1. In this jurisdiction parties are generally required to bear their own costs.[1] However, where justifying circumstances exist, s 117(2) of the Family Law Act 1975 (Cth) (“the Act”) empowers the Court to make such order for costs as the Court considers just.

   [1] Section 117(1) Family Law Act 1975 (Cth)

2. In the exercise of that discretion regard must be had to the factors set out in s 117(2A) of the Act, so far as they are relevant.

3. Those factors are as follows:

   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.

4. No one factor has more weight than any other nor is it necessary for more than one factor to be present.[2]

   [2] see Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 FamLR 123 at 130

5. When discussing the subparagraphs in s 117 the High Court in Penfold v Penfold[3] 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 two 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 judgment under appeal that an order can only be made under s. 117 (2) in “a clear case”.

   [3] [1980] HCA 4; (1980) 144 CLR 311 at 315

6. When considering what specific order to make, Rule 19.18 of the Family Law Rules 2004 (Cth) (“the Rules”) empowers the Court to make an order:

   a)of a specific amount;

   b)as assessed on a particular basis (eg lawyer and client, party/party or indemnity);

   c)to be calculated in accordance with the method stated in the order; or

   d)for part of the case, or part of an amount, assessed in accordance with Schedule 3.

7. In considering what specific order should be made the same Rule provides that the Court may consider any of the following factors:

   e)the importance, complexity or difficulty of the issues;

   f)the reasonableness of each party's behaviour in the case;

   g)the rates ordinarily payable to lawyers in comparable cases;

   h)whether a lawyer's conduct has been improper or unreasonable;

   i)the time properly spent on the case, or in complying with pre-action procedures; and

   j)expenses properly paid or payable.

8. A court will not lightly make an order for costs to be paid on an indemnity basis. There would need to be some circumstance of an exceptional nature to justify that course.[4]

   [4] Kohan & Kohan (1993) FLC 92-340; Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248; Yunghanns v Yunghanns (2000) FLC 93-029

9. The Full Court in Prantage & Prantage[5] discussed the meaning of ‘indemnity costs’ and said:

   [5][2013] FLC 93-544

   16. Before discussing the merit of the appeal, we should state our understanding of the meaning of the expression “indemnity basis”.

   17. Although the Explanatory Guide to the Family Law Rules 2004 (“the Rules”) is not formally part of the Rules, we accept as accurate its definition of “indemnity basis” when applied to a costs order as being:

   an entitlement to  costs , including  costs  under a  costs agreement, for all  costs  incurred, other than  costs  that are unreasonable in amount or that have been incurred unreasonably.

discussion

1. The father is employed in B Town. The mother moved to the United States of America to take up employment prior to the determination of her substantive application to relocate with the child.

2. The father has recently undertaken an overseas holiday with the child.

3. Neither party is in receipt of legal aid.

4. The father was aware of the mother’s application originally returnable on 30 June 2017 and misrepresented his inability to appear on that date stating that he had to undergo a surgical procedure. As is now apparent he left Australia with the child, contrary to a court order, early on the morning of 30 June 2017.

5. As a result of his non-appearance the mother’s application was adjourned to 4 July 2017. The father did not attend in person although an order had been made for him to do so. The father informed the Court by telephone that he and the child were overseas. The matter was again adjourned to 17 July 2017.

6. The father’s conduct has been a disgrace and has caused significant inconvenience to the Court and to the mother.

7. The mother has also been put to the added expense of retaining counsel on two occasions. The application itself was originally anticipated to be reasonably straight forward and on the first return date the mother was represented by her solicitor without counsel. I consider it to be perfectly reasonable in the circumstances for the mother to have retained counsel for the further hearings.

8. This is an appropriate case for an award of costs as sought by the wife and the fees sought by counsel are more than reasonable in my view. This is a case where the mother should not be out of pocket given the father’s conduct.

9. Accordingly I propose to order that the father pay the wife’s costs fixed in the sum of $4,092. Payment is required within 30 days. 

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 27 September 2017.

Associate:

Date:  27 September 2017