Moore & Shirley (No 2)

Case [2022] FedCFamC1F 830

Federal Circuit and Family Court of Australia

(DIVISION 1)

Moore & Shirley (No 2) [2022] FedCFamC1F 830

File number(s): BRC 10882 of 2021
Judgment of: HOGAN J
Date of judgment: 27 October 2022
Catchwords: FAMILY LAW – COSTS – Where the Court is persuaded that the circumstances justify the making of an order for costs but is not persuaded that it is just to make an order for costs on an indemnity basis – Where costs are ordered in a fixed amount.
Legislation: Family Law Act 1975 (Cth)
Cases cited:

Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119; [1995] FCA 350

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248; [1993] FCA 801

D & D (Costs) (No 2) (2010) FLC 93-435; [2010] FamCAFC 64

Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213

Idaport Pty Ltd v National Australia Bank Limited & Ors [2007] NSWSC 23

In the Marriage of Kohan (1993) FLC 92-340; [1992] FamCA 116

Limousin v Limousin (Costs) (2007) 38 Fam LR 478; [2007] FamCA 1178

Moore & Shirley [2020] FamCA 56

Rice v Asplund (1979) FLC 90-725; [1978] FamCA 84

Shirley & Moore [2020] FamCA 220

Yunghanns v Yunghanns (2000) FLC 93-029; [2000] FamCA 681

Division: First Instance
Number of paragraphs: 36
Date of last submission/s: 19 September 2022
Date of hearing: Determined in Chambers following the receipt of written submissions
Place: Brisbane
For the Applicant: Litigant in person by way of written submissions in response filed 13 September 2022
For the Respondent: Litigant in person by way of written submissions filed 31 August 2022 and by way of written submissions in reply filed 19 September 2022

ORDERS

BRC 10882 of 2021

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

MS MOORE

Applicant
AND:

MR SHIRLEY

Respondent

order made by:

HOGAN J

DATE OF ORDER:

27 OCTOBER 2022

THE COURT ORDERS THAT:

1.The Applicant pay the Respondent’s costs of and incidental to the Amended Initiating Application filed 10 February 2022, with such costs to be fixed in the amount of $5,500.00 and to be paid by 27 January 2023.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 a pseudonym Moore & Shirley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

HOGAN J:

  1. In November 2018,…

Continue reading Moore & Shirley (No 2)

Sign in free to access the full text

Details
AGLC
Moore & Shirley (No 2) [2022] FedCFamC1F 830
Case
[2022] FedCFamC1F 830
Decision Date

CaseChat Overview and Summary

In the matter of Moore & Shirley (No 2), the Federal Circuit and Family Court of Australia was tasked with determining an application for costs in the context of a parenting dispute. The application was brought by Mr Shirley against Ms Moore, seeking an order for costs following the dismissal of Ms Moore’s application to revisit final parenting orders. The court had to decide whether it was just to make an order for costs and, if so, on what basis.

The legal issues before the court involved the exercise of discretion in ordering costs, the appropriate basis for the order, and whether fixing the amount of costs was appropriate. The court considered the statutory framework under the Family Law Act 1975 (Cth), the nature of the proceedings, and the respective financial circumstances of the parties. The court also assessed whether the circumstances justified a departure from the usual party and party costs order to an indemnity basis. It was noted that this was the second occasion on which Ms Moore sought to revisit the parenting orders, and she had failed to demonstrate any change in circumstances warranting such a review.

The court held that while the circumstances did justify an order for costs, it was not persuaded that the circumstances were exceptional enough to warrant an indemnity basis for the costs order. Instead, the court opted to fix the amount of costs to be paid by Ms Moore to Mr Shirley. The reasoning behind this decision included the likelihood of further disputes over the costs amount, the parties’ disagreement over the reasonableness of the costs, and the potential for additional litigation if the costs were left to be assessed on a party and party basis. The court fixed the amount of costs at $5,500, to be paid by a specified date, considering the information available and the nature of the task in fixing such an amount. The court also noted that neither party had filed a financial statement, but this did not bar the court from making a costs order where circumstances warranted it.

The final orders of the court mandated that Ms Moore pay Mr Shirley’s costs of and incidental to the amended initiating application, in the fixed amount of $5,500, to be paid by a specified date. This decision reflects the court’s careful consideration of the statutory provisions, the principles of costs in family law proceedings, and the specific circumstances of the case.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The Applicant pay the Respondent’s costs of and incidental to the Amended Initiating Application filed 10 February 2022, with such costs to be fixed in the amount of $5,500.00 and to be paid by 27 January 2023.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In the broad exercise of discretion accorded to the Court in determining applications for costs – and even taking into account the submissions made by Mr Shirley and noting that this is the second occasion on which an application by Ms Moore seeking to revisit the exiting final parenting orders has been dismissed on the basis that she has failed to persuade that she has addressed the issues identified in the Reasons for Judgment delivered in November 2018 (such that the circumstances have changed sufficiently as to warrant a court, acting in B’s best interests, revisiting his current parenting regime) – I am not persuaded that the circumstances here are exceptional or extreme or such as to warrant departing from “the usual course” of ordering the payment of costs on the party and party basis to order that costs be paid on an indemnity basis. Conclusions For the reasons expressed above, I am persuaded that the circumstances justify the making of an order that Ms Moore pay Mr Shirley’s costs of and incidental to the Amended Initiating Application filed 10 February 2022 and that it is just that she do so on the party and party basis. Despite the Court having previously made an order fixing the amount of costs to be paid by Ms Moore to Mr Shirley,[13] neither party addressed that possibility in the written submissions that each provided. [13] Shirley & Moore [2020] FamCA 220. However, I consider that fixing the amount which Ms Moore is to pay to Mr Shirley is the most just course given that an order that the costs be paid in an amount agreed or as assessed on the party and party basis will only be much more likely to result in them incurring further costs and/or being involved in further litigation because:(a)on the evidence before me, it seems to be overwhelmingly unlikely that they will ever agree about the amount which Ms Moore should pay Mr Shirley (even with the guidance that the same be as assessed on the party and party basis); and(b)requiring them to have the costs assessed on the party and party basis will simply cause both of them to incur further costs, particularly given Ms Moore’s clearly articulated position that she does not regard the quantum of Mr Shirley’s costs as being reasonable and/or that they were reasonably incurred. I consider that, if the Court is to fix a sum payable by a party by way of costs:(a)such sum should be fixed broadly, having regard to the information before the Court;[14] and(b)the process to be undertaken in specifying or fixing such sum does not envisage that a process similar to that involved in a taxation or assessment of costs should occur;[15] and(c)there is no requirement to approach the task in any scientific or formulaic manner.[16] [14] Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at [24].[15] Idaport Pty Ltd v National Australia Bank Limited & Ors [2007] NSWSC 23; Harrison v Schipp (2002) 54 NSWLR 738.[16] Idaport Pty Ltd v National Australia Bank Limited & Ors [2007] NSWSC 23 at [10] per Einstein J.

Ratio Decidendi

Legal Principle Established

I also note that, whilst Ms Moore’s submissions included the assertion that Mr Shirley’s application for a vexatious litigant order was dismissed or refused, Mr Shirley did not press such application at the hearing before me.[5][5] Reasons for Judgment delivered 17 August 2022 at [32].Principles and consideration The usual course in relation to costs in proceedings under the Family Law Act 1975 (Cth) (“the Act”) is that each party bears their own costs.[6] However, if it is of the opinion that there are circumstances that justify it in doing so, the Court may, subject relevantly to s 117(2A) of the Act, make such order as it considers just.[7] In considering what order, if any, as to costs should be made, the Court must have regard to the matters set out in s 117(2A) of the Act. [6] Family Law Act 1975 (Cth) s 117(1).[7] Family Law Act 1975 (Cth) s 117(2). I am not persuaded that an order for costs cannot (or should not) be made absent each party filing a financial statement. Rather, I consider that – as is the case in all litigation – it is incumbent on the parties to decide what evidence they each wish the Court to have before it in determining the application. Neither party was in receipt of Legal Aid. Mr Shirley appeared by solicitor and counsel whilst Ms Moore appeared on her own behalf. Reference to the submissions filed by each party makes it clear that they are in dispute about their respective financial circumstances. Given that authority makes it clear that impecuniosity on the part of a party opposing the making of an order for costs is, of itself, no bar to an order for costs being made where it is otherwise warranted[8], such dispute is, it seems to me, of less relevance than might otherwise be the case. [8] See, for example, D & D (Costs) (No 2) (2010) FLC 93-435. However, I certainly accept that, in considering Ms Moore’s financial circumstances, it is relevant to have regard to her income and indebtedness, the costs she has which are associated with her spending time with B and her payment of child support to Mr Shirley – and I have done so. I am not persuaded that the proceedings commenced by the Application were necessitated by the failure of a party to them to comply with previous orders of the Court. It is clear that Ms Moore was wholly unsuccessful in her prosecution of the Application – for the reasons set out in the Reasons for Judgment delivered on 17 August 2022 – and that Mr Shirley was wholly successful in advancing that the Application should be dismissed. As noted at paragraphs [24] to [27] of the Reasons for Judgment delivered in August 2022, I was unpersuaded on the evidence presented by Ms Moore that she had addressed the issues I identified in the Reasons for Judgment delivered in support of the November 2018 parenting orders. It is trite to remark that addressing such issues and providing evidence from an appropriately qualified expert to substantiate any assertions about the same having been addressed falls entirely within Ms Moore’s control.