Myron and Milson

[2018] FamCA 361

FAMILY COURT OF AUSTRALIA

MYRON & MILSON [2018] FamCA 361

FAMILY LAW – COSTS – Circumstances justifying order – Where the father did not press his application seeking that he and his child be granted certificates under s 128 of the Evidence Act 1995 (Cth) – Where the mother made an application for indemnity costs – Where the Independent Children’s Lawyer made an application for a fixed sum – Where the circumstances do not warrant costs on an indemnity basis but do warrant a costs order in favour of the mother – Where the father did not seriously contest the costs claimed by the Independent Children’s Lawyer.

Evidence Act 1995 (Cth)
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 Fam LR 123
Kohan and Kohan (1993) FLC 92-340
Yunghanns v Yunghanns (2000) FLC 93-029

APPLICANT: Mr Myron

RESPONDENT: Ms Milson

FILE NUMBER: BRC 3628 of 2018

DATE DELIVERED: 23 May 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 21 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Taylor

SOLICITOR FOR THE APPLICANT: Becker Watt Lawyers

COUNSEL FOR THE RESPONDENT: Mr Alexander

SOLICITOR FOR THE RESPONDENT: KLM Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: CNG Law

Orders

1. The applicant father to pay the respondent mother’s costs of and incidental to the Application in a Case filed 9 May 2018 fixed in the sum of $5,500.

2. The applicant father to pay the Independent Children’s lawyer’s costs of and incidental to the Application in a Case filed 9 May 2018 fixed in the sum of $1,356.30.

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 Myron & Milson 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 3628  of 2018

Mr Myron

Applicant

And

Ms Milson

Respondent

REASONS FOR JUDGMENT

1. The only application listed for hearing today was an application filed by the father on 9 May 2018 seeking that he and the child B be granted certificates under s 128 of the Evidence Act 1995 (Cth) (“the Evidence Act”) relating to interviews conducted in these proceedings by a family report writer and medical practitioners and relating to evidence filed by the father by affidavit in connection with the proceedings.

2. Another application filed by the child’s father on 17 May 2018 was listed for mention only.

3. The father ultimately did not press his application filed 9 May 2018, it being conceded that it was not an application that could succeed.

4. As a consequence, an application was made by the mother and the Independent Children’s Lawyer for costs. The mother seeks an order for indemnity costs in the sum of $11,409 while the Independent Children’s Lawyer seeks a sum of $1,356.30. The costs order sought by the Independent Children’s Lawyer was not seriously contested by the father. The mother submitted that if the application for indemnity costs failed an order for a fixed sum should be ordered.

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]Family Law Act 1975 (Cth), s 117(1).

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 Fam LR 123 at [41].

5. When considering an application for costs by an Independent Children’s Lawyer the additional matters required to be considered are as set out in sub ss 117(3), (4) and (5) of the Act.

6. When considering what specific order to make, r 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:

   (a)the importance, complexity or difficulty of the issues;

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

   (c)the rates ordinarily payable to lawyers in comparable cases;

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

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

   (f)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.[3]

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

application of legal principles

1. The circumstances said to justify an order for indemnity costs are:

   a)On 4 May 2018 (in response to a suggestion by the father of a hearing relating to the issue at hand) the mother’s solicitors:

   i)suggested the interviews with the family report writer be postponed until after the disposal of the criminal matters;

   ii)noted that there has twice been the opportunity to raise the proposed issue of a s 128 certificate in court and objection was raised to a separate listing for this purpose; and

   iii)objected to a separate listing of the application when the matter was already listed before the Court on 4 June 2018.

   b)On 15 May 2018 the mother’s solicitors suggested that s 128 of the Evidence Act had no application in the circumstances and invited the father to immediately withdraw his application failing which indemnity costs would be sought.

   c)The letter from the father’s solicitors dated 18 May 2018 was unclear about whether the application would be proceeded with in that it said: “we are instructed the Father seeks to withdraw his application for an indemnity certificate at this time” and the letter indicated that other “more pressing matters” would need to be determined on 21 May 2018.

2. I do not regard the proffered reasons sufficient to warrant a costs order on an indemnity basis. The matters raised do have relevance to the application for costs more generally and additional matters raised are:

   a)The financial circumstances of each party, namely, the father’s 2017 taxable income of $360,462 as opposed to the mother’s 2017 adjusted taxable income of $20,207;

   b)The mother has received a one off payment of child support from the father of $400 for three children.

3. The order for costs sought by the mother was resisted on the basis that:

   a)The day was not wasted as the parties were able to reach agreement and an order was made in relation to certain financial matters;

   b)The father gave notice on Friday 18 May 2018 that he intended to withdraw his application for the s 128 certificates;

   c)Counsel for the father confirmed with counsel for the mother on Friday 18 May 2018 that the s 128 certificates would not be pressed; and

   d)Another application was listed for mention so an appearance was required in any event.

4. If an order for costs is to be made the father submits that it should be on the standard basis and be as agreed and failing agreement as assessed.

5. This is a matter that warrants a costs order. The father’s application was unnecessary and one that had little prospect of success. The matter was already listed in court on 4 June 2018 and any such application could have been listed for hearing on that day. The offer to withdraw the application came too late in the day for the mother to avoid the costs already incurred. The mother and Independent Children’s Lawyer have been put to unnecessary expense. As noted the father did not seriously contest the costs claimed by the Independent Children’s Lawyer.  

6. The father is in a far stronger financial position than the mother.

7. I consider an appropriate award for the mother’s costs to be in the sum of $5,500.

conclusion

1. I propose to make an order that the father pay the costs of the Independent Children’s Lawyer fixed in the sum of $1,356.30 and the mother’s costs fixed in the sum of $5,500.

2. The matter was already listed for hearing on 4 June 2018 and there was no need to have a separate hearing for this application which had little prospect of success in any event. These factors were pointed out to the father well prior to 21 May 2018 and his belated offer to withdraw his application came too late in the day. The father is in a much stronger financial position than that of the mother and a contribution to her costs should be made.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 23 May 2018.

Associate: 

Date:  23 May 2018