NELLUMS & CLEMEN
[2019] FamCA 219
•12 April 2019
FAMILY COURT OF AUSTRALIA
| NELLUMS & CLEMEN | [2019] FamCA 219 |
| FAMILY LAW – COSTS – finalised parenting proceedings – cross costs applications – where the Court is not satisfied circumstances exist to justify an order for costs – no order made. FAMILY LAW – COSTS –where the Court previously ordered costs be paid in a timeframe to be determined at final hearing – order made for costs to be paid within sixty days. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Cachia v Hanes (1994) 179 CLR 404 Doherty & Doherty (1996) FLC 92-652 |
| APPLICANT: | Mr Nellums |
| RESPONDENT: | Ms Clemen |
| FILE NUMBER: | BRC | 11282 | of | 2014 |
| DATE DELIVERED: | 12 April 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Baumann J |
| HEARING DATE: | By written submissions |
REPRESENTATION
| FOR THE APPLICANT: | Self-represented |
| FOR THE RESPONDENT: | Self-represented |
Orders
That the father pay a contribution to the costs of the mother for the Application in a Case considered on 24 April 2018, fixed in the sum of $1,500 within sixty (60) days.
That otherwise, there shall be no order for costs.
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 Nellums & Clemen 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 11282 of 2014
| Mr Nellums |
Applicant
And
| Ms Clemen |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a costs application brought by two articulate parents who were represented at various points of the proceedings, however were self-represented at the time the final parenting orders were made. The context of this matter is relevant to the costs application and is as follows.
On 10 May 2013, a Court in Country A ordered joint custody for their only child and gave the mother leave to relocate with the child to Australia from 2014, with provision made for the father to spend time with the child during school holidays in Australia. The mother moved to Australia with the child in 2014.
The father commenced the parenting proceedings to which this costs application relates on 20 October 2015 in the Federal Circuit Court of Australia, seeking:
a)equal shared parental responsibility;
b)the child to live in Australia with the mother; and
c)to spend time with the child each month and during school holidays, with the child permitted to travel overseas with the father to countries including Country A and Country B.
In her Response document filed 11 December 2015, the mother sought:
a)sole parental responsibility;
b)the father to spend time with the child each month and during school holidays; and
c)to restrain the father from removing the child from Australia.
On 20 December 2016, the mother filed an amended Response seeking leave for the child to live in the Country C with the mother from January 2019.
The matter was listed for trial in March 2017 in the Federal Circuit Court of Australia, however was vacated on 27 January 2017 by Judge Demack and the matter was transferred to the Family Court of Australia. I note the protocol of international relocation cases generally being dealt with in the Family Court of Australia.
The Court made final orders, some of which were by consent, on 22 January 2019 and 1 March 2019. The effect of the final orders is as follows:
a)The mother to have sole parental responsibility for the child’s education and health and the parents to have equal shared responsibility for all other major long term issues;
b)By consent, the child to live with the mother in Australia and the father, who lives overseas, to spend time with the child in Australia; and
c)By consent, the child placed on the Airport Watch List until further order.
Both parents were partially successful in their applications and they now seek costs against the other.
Type of costs sought
The father seeks an order for costs against the mother for the finalised proceedings:
a)on an indemnity basis totalling $80,627; or
b)in the alternative, a party and party basis, totalling $9,328.
The mother seeks an order for costs against the father for the finalised proceedings. The mother identifies her legal costs to Harrington Family Lawyers as of 27 June 2018 as being $123,108.41. This is clearly a claim by the mother for indemnity costs.
In addition, the mother seeks costs against the father pursuant to the Orders made 24 April 2018, where I ordered the father pay the mother’s costs of her interim application “in an amount and in a timeframe determined at a final hearing.” The mother asserts she incurred $2,692.25 in legal costs for this application and seeks to recover this amount from the father.
To determine
The issues are:
a)What are the principles for determining an application for costs?
b)Should an order for costs be made in favour of either party?
Principles in determining costs applications
The general rule in Section 117(1) of the Family Law Act 1975 (“the Act”) is that each party shall pay their own costs of proceedings.
The Court has the power under s 117(2) of the Act to award costs if there are circumstances that justify it doing so and the form of a costs order must be just.
To determine if there are circumstances that exist to justify an order for costs, the Court shall consider the factors set out in s 117(2A) of the Act as are relevant.
If the Court considers that a costs order is appropriate, the Court has the power to make an order in the forms set out in Rule 19.18 of the Family Law Rules 2004 (“the Rules”). In considering what specific orders should be made, the Court may consider the factors set out in r 19.18 of the Rules. Authority identifies that the Court has a wide discretion in respect of costs but it is not unfettered.[1]
[1] For instance: Doherty and Doherty (1996) FLC 92-652 per Baker J at 82-684
I also note that a self-represented party cannot seek costs for legal work they have personally performed, such as time preparing for and conducting their own case.[2] A self-represented party can only claim costs for legal work that was performed by a lawyer who was representing them. The fact that the parties are now self-represented is therefore no bar to the parties seeking costs that were incurred when they were legally represented.
[2]Cachia v Hanes (1994) 179 CLR 404
Should an order for costs be made?
I make the following findings under the matrix of considerations prescribed by s 117(2A) of the Act:
a)The father’s Financial Statement filed 24 April 2017 lists his average weekly gross income as being $1,645.16, with his average total personal expenditure being $1,351, leaving the father with approximately $294.16 of surplus income. The mother does not agree this is accurate, but for the parenting proceedings this evidence was not tested. The father’s occupation is described as “manager” and he is employed overseas. The mother’s Financial Statement filed 21 September 2017 lists her average weekly gross income as being $826, with her average total personal expenditure being $1,684, leaving a shortfall of $858 each week. The mother’s occupation is listed as “student – graduate diploma” and is unemployed. This evidence was not tested;
b)Neither party was in receipt of legal aid funding;
c)The trial set for March 2017 was vacated and the matter transferred to the Family Court of Australia upon the mother first expressing her intention to relocate to the Country C with the child in late 2016[3]. The matter came before me on 13 August 2018 and I noted the father, at this point, consented to the mother’s application to relocate with the child to the Country C. However, the mother had no documentary evidence to support the mother and child’s entitlement to reside permanently in the Country C. Therefore, I ordered that upon the mother filing such evidence, the matter could be re-listed to determine the mother’s application. The mother filed an Affidavit in January 2019 which she argued showed a right to reside in the Country C. No visa application, visa approval or rejection or similar documentation was provided. The Affidavit went to advice of a lawyer from Country C. I was not satisfied on this evidence that the mother had taken steps to apply for a visa, let alone be entitled to reside permanently in the Country C. I find that the mother’s failure to produce probative evidence protracted the proceedings and has at the very least lead to the mother and child continuing to live in Australia;
d)On 24 April 2018, I ordered the father pay the costs for the mother’s Application in a Case filed 6 April 2018 “in an amount and in a timeframe determined at a final hearing”[4] for the mother’s mostly successful Application in a Case filed 6 April 2018. I consider that the mother brought this application due to the father not responding to the mother’s disclosure on specific topics sought. While I ruled that not all of the mother’s questions were to be put to the father, there was an inevitable delay from the father not responding to the questions or alerting the Court to the appropriateness of the questions earlier through his own Application in a Case;
e)On 24 April 2018, the father’s solicitor at the time also orally confirmed to the Court that the father no longer sought to spend time with the child in one of the two countries he previously sought orders for, namely Country A or Country B (the father being a Country B national). While it is inevitable that the position of a party can - and should - change in light of new information or upon legal advice or personal introspection, such changes should be brought to the Court’s attention in a timely and appropriate manner. An ad hoc approach to proceedings, which the mother is also culpable of in this case, causes delays;
f)Both parents were partially successful in their final applications;
g)The matters that could resolve by agreement were ultimately resolved. What clearly continues to agitate the parties are the unresolved proceedings (relating it seems to issues of spouse maintenance) still before the Courts of Country A;
h)The parents have been in conflict since the child was born in 2011. The mother appears to also maintain her apparent desire to relocate to the Country C where her partner resides, which may hint at future parenting proceedings being enlivened. The Airport Watch List order continues to operate for this reason.
[3] Further Amended Response to Initiating Application filed 20 December 2016
[4] Order 8
I find that an order for costs would not be appropriate in the circumstances save for the reserved costs order made.
In respect of the order made 24 April 2018, the order clearly indicates that for the reasons expressed orally at the time, circumstances did exist to justify a costs order for that event, however the quantum of the costs and when such costs should be paid would be left to the final hearing. Nothing related to the event on 24 April 2018 would justify an indemnity costs order as the mother seeks. In my view, it is appropriate to fix costs which I do at a figure of $1,500, payable within sixty (60) days.
I find that these proceedings were expensive, stressful and time-consuming for both the parties, however circumstances do not exist that would justify an order for costs otherwise.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 12 April 2019.
Associate:
Date: 12 April 2019
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