Monette & Monette (No 3)

Case [2024] FedCFamC1F 786

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Monette & Monette (No 3) [2024] FedCFamC1F 786

File number: ADC 2811 of 2021
Judgment of: MCCLELLAND DCJ
Date of judgment: 20 November 2024
Catchwords: FAMILY LAW – COSTS – Where the mother seeks costs from the father on an indemnity basis – Where the father seeks an order that each party should bear their own cost – Where the father abandoned his Initiating Application – Where the Court is not satisfied there are exceptional circumstances warranting indemnity costs – Consideration of s 117(2A) of the Family Law Act 1975 (Cth) – Where the matter did not proceed to a final determination by the Court – Where the father has a superior financial position to the mother – Father to pay costs incurred by the mother on a party/party basis.
Legislation:

Family Law Act 1975 (Cth) ss 60I, 65DAAA, 69ZK, 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 68

Family Law Rules 2004 (Cth) r 19.18 (repealed)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) sch 1, r 12.17

Children and Young People (Safety) Act 2017 (SA) s 41
Cases cited:

Anchorage Capital Partners Pty Ltd v ACPA Pty Ltd (No 2) [2018] FCAFC 112

Baumann & Rushbrooke (No 2) [2017] FAMCA 293

Brook & MacKenzie Pty Ltd v EL-Gra Engineering Pty Ltd (2015) 331 ALR 535; [2015] FCA 1495

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123; [2005] FamCA 158

Hunter v Roberts (No 2) [2019] NSWCA 235

I and I (No 2) (1995) FLC 92-625; [1995] FamCA 80

Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23

Kohan and Kohan (1993) FLC 92-340; [1992] FamCA 116

Mineralogy v National Native Title Tribunal [1998] FCA 1700

Monette & Monette (No 2) [2024] FedCFamC1F 481

Prantage & Prantage (Costs) [2014] FamCA 850

Stoian v Fiening (Costs) [2014] FamCA 944
Division: Division 1 First Instance
Number of paragraphs: 41
Date of last submissions: 8 October 2024
Date of hearing: Determined on the papers
Place: In Chambers
Counsel for the Applicant: Ms O’Connor SC
Solicitor for the Applicant: Eastern Legal
Counsel for the Respondent: Mr Morris
Solicitor for the Respondent: Alex Mandry Legal Group

ORDERS

ADC 2811 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS MONETTE

Applicant
AND:

MR MONETTE

Respondent

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

20 NOVEMBER 2024

THE COURT ORDERS THAT:

1.Mr Monette pay Ms Monette’s costs of and incidental to his Initiating Application filed on 7 August 2024, on a party/party basis, assessed at scale, within 28 days of being agreed or assessed.

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…

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AGLC
Monette & Monette (No 3) [2024] FedCFamC1F 786
Case
[2024] FedCFamC1F 786
Decision Date

CaseChat Overview and Summary

In the case of Monette & Monette (No 3), the mother, Ms Monette, applied for costs from the father, Mr Monette, following the abandonment of his initiating application. The matter did not proceed to a final determination by the Court. The mother sought indemnity costs amounting to $30,431.50, while the father argued for a party-and-party cost-bearing arrangement and claimed the amount sought was excessive. The court was required to decide whether to award the mother indemnity costs, and if so, in what amount. Additionally, the court had to consider the financial circumstances of both parties and the conduct of the parties in determining the appropriate costs order.

The court examined the financial circumstances of the parties, noting that the father's income was significantly higher than the mother's, and his financial security was superior in the long term. The court also considered the conduct of the parties, finding that the father's actions, including the filing of the initiating application without notice and the failure to inform the court of ongoing proceedings, were inappropriate. The court concluded that while the mother's application for indemnity costs was not appropriate, the father should bear the costs of the mother on a party-and-party basis due to his superior financial position and inappropriate conduct.

The court ordered that Mr Monette pay Ms Monette's costs of and incidental to his initiating application on a party-and-party basis, assessed at scale, within 28 days of being agreed or assessed. This decision reflects the court's consideration of the financial circumstances and conduct of the parties in making its costs order.

Orders

Orders of the court

ADC 2811 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS MONETTE

Applicant

AND:

MR MONETTE

Respondent

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

20 NOVEMBER 2024

THE COURT ORDERS THAT:

1. Mr Monette pay Ms Monette’s costs of and incidental to his Initiating Application filed on 7 August 2024, on a party/party basis, assessed at scale, within 28 days of being agreed or assessed.

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.

Background

Background to the litigation

The mother’s costs application is made in circumstances where the father’s application was discontinued shortly after it was filed and, as a result, the matter did not proceed to a final determination by the Court. BACKGROUND On 23 July 2024, Berman J made final parenting orders. Relevantly to this application, those orders provided that the parties have shared parental responsibility for the children; the mother have sole parental responsibility for major issues relating to the medical health of the children; and the children live with the mother and that the father spend time with the children, with such time to increase gradually. On 26 July 2024, the Department for Child Protection (“the DCP”) visited each parent and issued a Removal of a Child or Young Person Notice pursuant to s 41 of the Children and Young People (Safety) Act 2017 (SA) (“s 41 Notice”). The effect of the s 41 Notice was that the children would not be spending time with the father in accordance with the orders of Berman J. On 7 August 2024, the father filed an Initiating Application. That Application sought the variation of the final orders made by Berman J on 23 July 2024 pursuant to s 65DAAA of the Family Law Act 1975 (Cth) (“the Act”). On 15 August 2024, the parties – both represented by counsel – appeared before Berman J for the first return of the matter. Shortly thereafter, on 28 August 2024, the father filed a Notice of Discontinuance. The mother now seeks her costs on an indemnity basis, in respect to the father’s abandoned Initiating Application, in the sum of $30,431.50. The father contends, firstly, that there is no reason to depart from the general rule set out in s 117(1) of the Act that parties should bear their own costs and, secondly, that the amount sought by the mother is “grossly excessive” (father’s written submissions filed on 30 September 2024, paragraph 2). The parties consented to the Court’s proposal to determine the mother’s costs application on the papers, and subsequently submitted written submissions as directed by Orders dated 9 September 2024. LEGAL PRINCIPLES Section 117(2) of the Act 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. In determining whether it is appropriate and just to award costs to a party, all relevant factors outlined in s 117(2A) of the Act must be considered and balanced to establish if the overall circumstances warrant such an order (I and I (No 2) (1995) FLC 92-625 at 82,277). This does not mean that a single factor cannot be decisive, nor does any factor have precedence over another (Prantage & Prantage (Costs) [2014] FamCA 850 at [12], citing Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123). Ultimately, it is up to the presiding judicial officer to determine the importance of each factor.CONSIDERATION The following are what I consider to be the relevant s 117(2A) considerations.Financial Circumstances (s 117(2A)(a))

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In determining whether it is appropriate and just to award costs to a party, all relevant factors outlined in s 117(2A) of the Act must be considered and balanced to establish if the overall circumstances warrant such an order (I and I (No 2) (1995) FLC 92-625 at 82,277). This does not mean that a single factor cannot be decisive, nor does any factor have precedence over another (Prantage & Prantage (Costs) [2014] FamCA 850 at [12], citing Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123). Ultimately, it is up to the presiding judicial officer to determine the importance of each factor.CONSIDERATION The following are what I consider to be the relevant s 117(2A) considerations.Financial Circumstances (s 117(2A)(a)) Justice Berman set out the parties’ respective financial positions in his judgment Monette & Monette (No 2) [2024] FedCFamC1F 481. By way of summary:652The [father] is employed as a manger in his family’s business and has an average weekly income of about $2,000 per week. I have found that his employment is secure and as time passes it is likely that he will take on higher duties which will necessarily command a higher level of income.653The financial circumstances of the [mother] are dependent upon a government benefit of $373 per week together with child support paid in the sum of $423.37 per week resulting in a total income of $796 per week. In addition, I accept that the [mother’s] expenses are supported by assistance provided by the maternal grandparents in particular, by providing rent free board and some further benefit for nappies, groceries and other expenses.…667If the mid to long term future is considered, the [father’s] financial security is significantly superior to that of the [mother’s]. Another factor that I have had regard to is that the former matrimonial home is currently advertised for sale pursuant to the final orders. The mother contends, at paragraphs 17–18 of her affidavit filed 3 September 2024, that she cannot pay her legal fees until the former matrimonial home sells, and she obtains a property settlement sum pursuant to the final orders. I accept that while the mother will have some difficulty in meeting her legal fees in the immediate future, she will have that capacity once the former matrimonial home is sold. Accordingly, this consideration has not influenced my decision.Conduct of the Parties (s 117(2A)(c)) The mother contends that it was entirely inappropriate for the father to request the matter be listed before Berman J for its first return as his Honour was clearly in conflict (mother’s Case Outline filed 3 September 2024, paragraph 15). To exacerbate matters, according to the mother’s case, the father failed to inform the Court of ongoing proceedings in the Youth Court and his undertaking not to seek time with the children. Additionally, the mother contended that: ·The father gave no notice to the mother before filing his Application.·The father’s Application was vexatious and should have been discontinued at the first return date.·The father’s Application was brought with “a wilful disregard of the known facts, or for some ulterior motive or with groundless contentions” (mother’s written submissions filed 24 September 2024, paragraph 11(m)).