Nardo & Acuna
[2024] FedCFamC2F 772
•18 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nardo & Acuna [2024] FedCFamC2F 772
File number: CAC 1488 of 2022 Judgment of: JUDGE NEWBRUN Date of judgment: 18 June 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Costs. Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17
Cases cited: Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225
Hawkins & Roe [2012] FamCAFC 77
Joyce & Fante [2013] FamCAFC 141
Division: Division 2 Family Law Number of paragraphs: 27 Date of last submission/s: 13 June 2024 Date of hearing: 27 May 2024 Place: Parramatta Counsel for the Applicant: Ms Bateman Solicitor for the Applicant: Christina Lam & Associates Solicitor for the Respondent: Godden Lawyers Counsel for the Independent Children's Lawyer: Ms Yu Solicitor for the Independent Children's Lawyer: Mahony Family Lawyers ORDERS
CAC 1488 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR NARDO
Applicant
AND: MS ACUNA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
18 JUNE 2024
THE COURT ORDERS THAT:
1.The father pay the mother’s costs fixed in the sum of $9,000 within 8 months.
2.The ICL’s costs application is dismissed.
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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
This is the determination of:
(a)The mother’s oral application that the father pay her costs of the proceedings;
(b)The ICL’s oral application that the mother and father equally share her costs in the amount of $3,971 each or, in the alternative, that the father pay the entirety of the ICL’s costs in the amount of $7,942.
The mother seeks an order that the father pay her costs for trial preparation and attendance on an indemnity basis. In the alternative she seeks costs calculated in accordance with Schedule 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Division 1 scale”).
The father opposes the mother’s application for costs. The father submits that each party should pay their own costs arising from the proceedings.
At the start of the hearing, the Independent Children’s Lawyer (“ICL”) sought costs in the total sum of $7,942 to be paid by both parties. Following the mother’s submissions, the ICL sought an alternative order for costs only against the father. The father contends that no order should be made for him to pay the ICL’s costs, due to his financial circumstances. He further submitted that it would be unjust to order him to meet the entirety of the ICL’s costs.
In relation to the quantification of her costs, the mother relies upon her costs notice filed on 27 May 2024. She also relies on her Financial Statement filed 6 March 2023 and three written offers of settlement dated 23 August 2022, 16 January 2024 and 8 April 2024. The mother further relied on written submissions filed on 13 June 2024.
The father relied upon his oral submissions and written submissions filed 31 May 2024 and Financial Statements filed 2 February 2023 and 2 June 2024.
Section 117(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that each party to proceedings shall bear their own costs. Section 117(2) of the Act states that if the Court is of the opinion that there are circumstances that justify in doing so, the Court may make such order as to costs as the Court considers just. Section 117(2A) of the Act provides that in considering what order, if any, should be made as to costs, the Court shall have regard to the following matters:
(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.
The Court now turns to relevant matters that the Court should consider under section 117(2A) of the Act.
As to the financial circumstances of each of the parties to the proceedings, s 117(2A)(a), the mother relies on her Financial Statement filed 6 March 2023. It was submitted that the mother is employed full-time and earns an income of $819 per week and her expenditures are $665 per week. It was submitted on the mother’s behalf that she has five children in her care, including the subject child of these proceedings.
In respect of the father’s financial circumstances, the mother referred to the father’s Financial Statement of 2 February 2023 wherein he deposes that he holds a 20 per cent share of a property in City B, worth $240,000. The mother further submitted that the father had privately funded his legal representation throughout the proceedings, up until the time that a s 102NA order was made, when the matter was set down for final hearing.
The father relied on his Financial Statement dated 2 June 2024 which states that earns $2,000 per week with expenses of $1,755 per week. In his written submissions, the father stated that his family currently occupy the City B property in which he has an interest, and it would be unjust for this property to be sold in order to meet a costs order made against him. His superannuation asset was not disclosed in his recent Financial Statement, nor his motor vehicle (he had particularised motor vehicle expenses), and he had particularised $100 per week in entertainment/hobby expenses. The Court is satisfied that the father has only a modest capacity to meet a costs order.
In respect of s 117(2A)(b), the mother’s representation is privately funded. The ICL is funded by Legal Aid. The father was represented at final hearing pursuant to the Commonwealth Family Violence and Cross Examination of Parties Scheme.
As to the parties’ conduct in the proceedings, s 117(2A)(c), the mother submits that the father did not file any trial material, but she was put to the expense of filing such material before the commencement of the final hearing. At the hearing the mother sought that the father pay her costs from 5 February 2024 to the date of the hearing, fixed in the sum of $31,000. By her written submissions filed 13 June 2024 the mother revised this amount to $28,015. The mother submits that these costs are “purely” trial preparation and attendance costs which would have been avoided if the father had accepted her offers of settlement earlier.
The father contends that the parties were still having negotiations on the first day of the final hearing in May 2024 and such settlement negotiations suggest that the parties engaged in constructive and meaningful discussions. He submitted that it is to his credit that he made the decision to settle the parenting dispute.
The Court notes that the matter was first called at 10.11 am and stood down at 10.13 am for the parties to engage in discussions. It was re-mentioned at 10.50 am at which time the parties handed up consent terms.
As to whether any party to the proceedings has been wholly unsuccessful in the proceedings, s 117(2A)(e) of the Act, the Court accepts the submission by the mother that the final orders represent an almost complete capitulation by the father, albeit that Order 4 entitles the father to send cards, letters, and photographs to the child, which was not expressly replicated in the mother’s written offer of 16 January 2024.
As to 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, s 117(2A)(f) of the Act, the Court has before it three formal offers made by the mother to the father to resolve the proceedings, which were not accepted by the father prior to the final hearing, that can be summarised as follows:
·On 23 August 2022, following a mediation, the mother offered that she have sole parental responsibility, the child live with her and spend no time and have no contact with the father. She also proposed that she be permitted to apply for an Australian passport for the child and be at liberty to travel outside of Australia without the father’s permission.
·On 16 January 2024, following the release of the Family Report, the mother offered that she have sole parental responsibility, the child live with her and spend no time with the father. She also proposed that the father be at liberty to send the child one card on her birthday and one card on Christmas each year and that she be permitted to apply for an Australian passport for the child and be at liberty to travel outside of Australia with her without the father’s consent.
·On 8 April 2024, the mother renewed her offer of settlement from 16 January 2024 for a period of 7 days.
On the material before the Court, having regard to the Court’s above discussions under section 117(2A) of the Act, it will be just for the Court to depart from the usual rule that each party meet their own costs, and order that the father pay the mother’s costs for preparation and attendance at the final hearing.
The mother seeks such costs to be paid on an indemnity basis. She submits that the father had no prospects of success in his application for time with the child given the history of the parties and in light of the findings in the Family Report.
The law in respect of indemnity costs and the relevant principles are set out in Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225. Sheppard J refers to the need for there to be “some special or unusual feature in the case to justify the Court departing from ordinary practice”. His Honour also provided examples where the exercise of discretion to award indemnity costs is warranted, these include:
(a)false and irrelevant allegations of fraud;
(b)misconduct that causes a loss of time to the Court and other parties;
(c)where the proceedings were commenced or continued for an ulterior motive;
(d)the undue prolongation of a case; or
(e)wilful disregard of known facts and clearly established law.
The Full Court stated in Joyce & Fante [2013] FamCAFC 141 at [11]:
… In short, it is beyond doubt that in order to justify an award of indemnity costs, it must be demonstrated there are exceptional circumstances such that the usual order of party-party costs should be departed from.
In Hawkins & Roe [2012] FamCAFC 77, the Court said at [147]:
Whilst the categories of occasions when costs may be ordered is not limited, the occasions on which such an order should be made in a parenting dispute should have some particular features. Where there is a complete absence of preparedness to compromise in the face of unambiguous expert evidence, where false allegations are made, or where one party is clearly motivated by self-interest rather than the best interests of a child, then a judge may well conclude that there are circumstances justifying an order for costs.
While the conduct of the father in these proceedings has been, on one view, unreasonable, the Court is not satisfied that it meets the high bar required to justify an order for indemnity costs.
In respect of quantum, the Court has the discretion to order costs in a fixed amount: r 12.17. The Court is satisfied that it is appropriate to do so here, in order to avoid further delay and expense. In making such an order the Court may take into account the matters set out in r12.17(3):
(a)the importance, complexity or difficulty of the issues;
(b)the reasonableness of each party’s behaviour in the proceeding including by having regard to the matters set out in subrule 12.08(2);
(c)the rates ordinarily payable to lawyers in comparable proceedings;
(d)whether a lawyer’s conduct has been improper, unfair, unreasonable or disproportionate;
(e)the time properly spent on the proceeding, or in complying with pre‑action procedures;
(f)whether expenses (paid or payable) are fair, reasonable and proportionate.
Taking into account the above discussed matters, the Court is satisfied that it is just in all the circumstances to order that the father pay the mother’s costs fixed in the amount of $9,000. He should have 8 months to pay such costs.
Turning to the ICL’s costs application, the Court refers to the matters set out above.
The Court is not satisfied that it would be just to order that the father meet the ICL’s costs particularly that the Court is to order that the father be the subject of a costs order in favour of the mother. The Court is not satisfied that it would be just to order that the mother meet half of the ICL’s costs, noting in particular her financial circumstances, childcare responsibilities, and the significant amount she has already expended on legal fees.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 18 June 2024
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