Myron & Milson (No 2)
[2024] FedCFamC1F 336
•17 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Myron & Milson (No 2) [2024] FedCFamC1F 336
File number(s): BRC 4579 of 2022 Judgment of: BAUMANN J Date of judgment: 17 May 2024 Catchwords: FAMILY LAW – COSTS – Where the mother sought an order for costs in a fixed sum – Where the father did not file a response – Father to pay costs of mother fixed in a sum by refence to the total grant of legal aid received from Legal Aid Queensland Legislation: Family Law Act 1975 (Cth) s 117 Cases cited: Myron & Milson [2023] FedCFamC1F 1077 Division: Division 1 First Instance Number of paragraphs: 13 Date of last submissions: 15 January 2024 Date of hearing: On the papers in chambers Place: Brisbane Solicitor for the Applicant: Litigant in person Solicitor for the Respondent: KLM Solicitors ORDERS
BRC 4579 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MYRON
Applicant
AND: MS MILSON
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
17 MAY 2024
Amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 28 June 2024.
THE COURT ORDERS:
1.That within sixty (60) days of the date of this Order, the Applicant pay to the Respondent the costs of and incidental to the Application filed 20 April 2022 and the Response filed 6 July 2022 by refence to the total grant of legal aid received from Legal Aid Queensland, fixed in the sum of $4,797.10.
the solicitors for the mother, within sixty days, in circumstances where
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Myron & Milson has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
Mr Myron (“the father”) filed a parenting Application on 20 April 2022 seeking to discharge and then vary Orders relating to his two youngest children now aged 13 and 15 years.
Final parenting Orders were made by a Family Court judge (as she then was) in February 2019, the effect of which was the father was restrained from communicating with the children and no prescribed order for time was made.
After the father’s Application was filed, Ms Milson (“the mother”) filed a Response on 6 July 2022 seeking orders that the father’s Application be dismissed and that he pay the mother’s legal costs.
Between April 2022 until a hearing before me on 6 December 2023, a number of events took place – mostly delaying the hearing so as to allow the father to pursue to finalisation proceedings in Queensland Civil and Administrative Tribunal (relating to his professional licence) and an Appeal in the District Court of Queensland (about a family violence order), that could have (depending on the outcome) had some relevance to the Application before this Court.
For further Reasons published on 15 December 2023 (see Myron & Milson [2023] FedCFamC1F 1077) the father’s parenting Application was effectively summarily dismissed, applying the principles in Rice & Asplund (1979) FLC 90-725.
As a consequence of the dismissal of the father’s Application, and within the time frame directed by the Court in orders made 15 December 2023, the mother pursues her application for costs, and relies upon her affidavit filed 15 January 2024 and written submissions filed 15 January 2024.
Although the father was given an opportunity to file submissions in response, he has not done so. I am satisfied that the father, who is a professional, is well aware that his failure to engage in the issue of costs permits the Court to consider the question of costs in absence of any submissions from him. I do so.
The Court’s jurisdiction to make an order for costs is well settled and is prescribed by s 117(2) of the Family Law Act 1975 (Cth) (“the Act”), which provides that although the “general rule” is that parties bear their own legal costs of proceedings under the Act (s 117(1)), if circumstances exist which justify an order for costs, then subject to a consideration of any relevant factors set out in s 117(2A), the Court may make such order as it deems to be just.
THE WIFE’S APPLICATION
The wife seeks an order that the father “pay her costs of an incidental to the proceedings by reference to the total grant of legal aid she received from Legal Aid Queensland; being fixed in the amount of $4907.10.” The written submissions identify the circumstances which the mother says justify an order for costs, and the affidavit clarifies how the quantum of costs was calculated.
DISCUSSION
With an eye to s 117(2A), I find:
(a)although I have no current financial details of the parties, the father has regained his professional licence (after the QCAT decision) and has the capacity to earn income. The mother is employed. The father owns real estate;
(b)the mother’s level of renumeration from employment was such that after she provided an initial contribution of $990 to Legal Aid Queensland, she otherwise satisfied the relevant “means test” requirements of Legal Aid Queensland.
(c)the father was wholly unsuccessful in his Application and was on notice, from the mother’s initial Response and her persistent opposition to the father’s Application, that she resisted the Application and would seek an order for costs; and
(d)the mother was obliged, on her position, to contest the father’s Application as being contrary to the best interests of the children. She was entitled to seek legal representation and did so.
CONCLUSION
The circumstances justify an order for costs against the father. In some respects, the quantum of costs sought may well be less than might have been payable had the mother retained private legal representation and, in the same circumstances as do exist, sought an order for indemnity costs.
I agree with the mother’s submissions that there “is no reason why the legal aid authority (the taxpayers, in essence) should carry the financial consequences of the Applicant father’s unmeritorious Application”.
I make the order as sought by the mother, with payment to be made to the solicitors for the mother, within sixty days, in circumstances where I accept the mother’s solicitors will make such payment as necessary to Legal Aid Queensland.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 17 May 2024
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