Moore & Shirley (No 2)
[2022] FedCFamC1F 830
•27 October 2022
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:
In November 2018, I made final parenting orders in relation to B, who was born 2013. As a result of these orders, B moved to live with his father and, from mid-April 2019 onwards, started to spend supervised time with his mother.
On 10 February 2022, Ms Moore filed an Amended Initiating Application (“the Application”) by which she sought the discharge of the November 2018 order and that parenting orders be made for B either to return to live with her or, at the very least, spend unsupervised time with her.
Mr Shirley sought that the Application be dismissed on the basis that Ms Moore had not established the existence of a sufficiently changed set of circumstances to warrant the Court, acting in B’s best interests, revisiting the current parenting arrangements.[1]
[1] See: Rice v Asplund (1979) FLC 90-725.
On 17 August 2022, I dismissed Ms Moore's Application for the Reasons delivered that day.
The competing proposals
Mr Shirley now seeks an order that Ms Moore pay his costs of and incidental to the Application and that such costs be paid on an indemnity basis. The order sought was that Ms Moore pay his costs of and incidental to “the … Initiating Application filed 17 August 2021, subsequent amended applications, and affidavits in support of BRC10882/2021” on an indemnity basis, with such costs to be paid within 60 days. The amount sought on an indemnity basis was, ultimately, $32,087.[2]
[2]Mr Shirley’s written submissions in reply filed 19 September 2022 at paragraphs 29 and 33.
Ms Moore opposed the making of any order for costs.[3] She submitted that each party should bear their own costs.
Broad overview of the submissions filed by each party
[3] See: Ms Moore’s written submission filed 13 September 2022.
Mr Shirley
Whilst the submissions made by Mr Shirley included references to costs he anticipated incurring as a result of Ms Moore filing a Notice of Appeal in relation to the August 2022 order and to costs he anticipated incurring as a consequence of her filing an Application-Contravention, I have disregarded any actions taken by Ms Moore after the August 2022 order was made in my consideration of Mr Shirley’s current application for costs.
Mr Shirley submitted that the Court would be persuaded that the circumstances justify the making of an order for costs because: Ms Moore was wholly unsuccessful in her application; the many changes Ms Moore made to the application in terms of the orders sought and the many affidavits filed had had the consequence that he had been put to significant cost in responding to the same; Ms Moore’s financial circumstances are such that the Court would not consider this to be a reason not to make an order as to costs; the Application has to be seen in the context of Ms Moore’s previous unsuccessful application to re-litigate the operative parenting orders.
Insofar as Ms Moore’s financial circumstances are concerned, Mr Shirley submitted that: she was not in receipt of legal aid funding; she was employed and was able to afford to travel to NSW every three weeks to spend time with B in accordance with the November 2018 parenting orders; she had previously paid those costs she had twice been ordered to pay; she had previously engaged her own legal representation and owned real property in which she lived.
Mr Shirley also submitted that costs should be ordered to be paid on an indemnity basis in order to compensate him for the costs he had incurred as a consequence of Ms Moore’s conduct – in terms of the manner by which she has prosecuted the Application. He submitted that the Court would be persuaded that it is unreasonable for Ms Moore to have subjected him to such expenditure and that an order for costs on the party and party basis would not compensate him appropriately or justly. He submitted, in essence, that the Court would have regard to the fact that the Application is the third proceeding prosecuted by Ms Moore in relation to parenting orders since the November 2018 orders were made.
Mr Shirley emphasised that Ms Moore had been wholly unsuccessful in her prosecution of the application and, in essence, the evidence she relied on in prosecuting the Application suggested that she had taken nothing from her previous unsuccessful attempt to have the Court revisit the current parenting orders.
Ms Moore
Ms Moore’s written submissions asserted, in essence, that she had not had sufficient time to address properly the application for costs made by Mr Shirley; she stated that any costs order made “without proper procedure taking place” will be the subject of an appeal. Whilst Ms Matten has the same rights of appeal as every other litigant in proceedings in this jurisdiction, I reject the suggestion that she has not been afforded a proper opportunity to be heard about the issue of costs; I also reject the suggestion that, in making the orders which I did on 17 August 2022 for the manner in which any application for an order as to costs would be considered, I failed to implement “proper procedure”.
A perusal of the submissions Ms Moore prepared seems to me to reveal that she opposes an order for costs being made against her because:
(a)Mr Shirley is unaware of her financial circumstances; and
(b)no order for costs should be made without each parent filing a financial statement; and
(c)the decision to dismiss the Application was wrong and “based on the lack of application of law and appropriate Rice v Asplund test”; and
(d)the Court should not proceed to determine Mr Shirley’s application for an order as to costs until the Application-Contravention which she has filed is determined; and
(e)any order as to costs needs to take into account that she needs to have a meaningful relationship with B – from which I infer she means that the Court should take into account the financial impost on her of an order for costs and the impact the same may be likely to have on her ability to be able to afford to spend time with B; and
(f)the quantum of her assessed child support is based on her pre-tax income of $104,231 per annum and her annual income, net of tax, is between about $70,000 and $80,000; and
(g)she is indebted to the Australian Taxation Office; and
(h)she has a home loan which has increased in the amount owing; and
(i)she has a personal loan relating to her previous engagement of legal representation; and
(j)the costs of daily living have all increased; and
(k)her monthly child support is almost $900; and
(l)the costs associated with her spending supervised time with B are about $2,000 per visit (when the costs of travelling to spend time with him, staying in a motel, feeding him during their time together and the costs of the supervisor are taken into account); and
(m)her costs of maintaining her motor vehicle are high as a result of the travel she undertakes to spend time with B; and
(n)Mr Shirley’s conduct in seeking an order for costs is nothing more than a manifestation of his greed and desire to control her financially; and
(o)Mr Shirley has not provided an accurate account of his financial circumstances; and
(p)there is no justification for an order as to costs other than if the same is being made to punish her for bringing the Application.
Reference to Ms Moore’s submissions also establishes that she does not accept the quantum of the costs Mr Shirley asserted he has spent in responding to her application for parenting orders; she also asserted, as I interpret her submissions at least, that the costs sought were excessive and the consequence of either or both of Mr Shirley adding unrelated costs to the same or deliberately acting to increase his costs by over-communicating with his lawyers.
I do not accept that the determination of Mr Shirley’s application for an order that Ms Moore pay his costs of and incidental to the Application should await the determination of the Application-Contravention filed by Ms Moore. Further, as I have previously remarked in disposing of Mr Shirley’s previous application for an order that Ms Moore pay his costs of earlier determined proceedings[4], an order for costs is not a punishment, nor is it an order to be made to deter litigants from prosecuting applications open to them; rather, it is made to compensate a party for the costs to which that party has been put.
[4] Shirley & Moore [2020] FamCA 220 at [17].
Should I conclude that the circumstances justify making an order that Ms Moore pay Mr Shirley’s costs of and incidental to the Application and that it is just to make such an order, it will not be made to punish Ms Moore for prosecuting an application by which she sought the Court revisit the existing parenting orders.
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.
The August 2022 conclusion that I was unpersuaded on the evidence adduced that Ms Moore had addressed the issues identified in the November 2018 Reasons for Judgment replicates the conclusion I reached in determining Ms Moore’s previous application for parenting orders (made after the November 2018 orders were made) – a conclusion I expressed in, for example, paragraphs [25] and [47] of the Reasons for Judgment delivered on 7 February 2020.[9]
[9] Moore & Shirley [2020] FamCA 56.
That Ms Moore failed to establish in 2022 that she had addressed the issues identified in November 2018, despite having had her previous post-November 2018 application for parenting orders dismissed on that very same basis, persuades me that, even taking into account the matters identified by Ms Moore as relevant to a consideration of her financial circumstances, the circumstances here justify making an order that she pay Mr Shirley’s costs of and incidental to the Application.
In considering Mr Shirley’s submissions that it is just to make an order that Ms Moore pay his costs on an indemnity basis, I take into account that authority makes it clear that, unless there are exceptional circumstances, an order for costs should be made on the party and party basis and that to order that costs be paid on an indemnity basis is something which is a “very great departure” from the “normal standard” in this and other jurisdictions. [10]
[10]See D & D Costs (No. 2) (2010) FLC 93-435; Limousin v Limousin (Costs) (2007) 38 Fam LR 478; Yunghanns v Yunghanns (2000) FLC 93-029; In the Marriage of Kohan (1993) FLC 92-340; Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 per Sheppard J.
As noted above, Mr Shirley seeks an order that Ms Moore pay him costs in the amount of $32,087. Whilst he has supported this claim by provision of accounts and invoices from his legal representatives, I consider that, on the evidence before me, I am unable to assess the extent to which the costs he sought exceed those which would likely be allowed if costs were assessed on the standard party and party basis.[11] This is, I think, relevant given the comments of the Full Court in Kohan[12] to the effect that the degree to which the costs, which would be payable if an indemnity costs order is made, depart from the established norm may itself be a reason for not ordering costs on an indemnity basis.
[11] In the Marriage ofKohan (1993) FLC 92-340.
[12] (1993) FLC 92-340.
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.
In the exercise of the broad discretion as to costs accorded to judges at first instance and having regard to the costs allowable according to scale, including, for example, that the maximum allowable for counsel is $2,040.64 (including GST), I intend to fix the amount payable by Ms Moore to Mr Shirley in the amount of $5,500.
Given the costs that Ms Moore incurs in spending time with B, I consider it appropriate and just that she be accorded three months to pay Mr Shirley the amount ordered.
Additional comments
I record my view that, in the event that Ms Moore applies again to vary the operative parenting orders without providing the Court with expert evidence to establish that she has successfully and appropriately addressed the issues identified and particularised in the Reasons for Judgment delivered in November 2018, April 2020 and August 2022, such subsequent application will highly likely have very limited prospects of success. Further, the absence of expert evidence of the kind noted would, it seems to me, make the prospects of an order for costs being made on the indemnity basis significantly higher.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 27 October 2022
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