Nellums & Clemen (No 3)
[2022] FedCFamC1F 934
Federal Circuit and Family Court of Australia
(DIVISION 1)
Nellums & Clemen (No 3) [2022] FedCFamC1F 934
File number(s): BRC 11282 of 2014 Judgment of: CAMPTON J Date of judgment: 30 November 2022 Catchwords: FAMILY LAW – COSTS – Where the father seeks costs of and incidental to the determination of two contravention applications and substantive parenting proceedings – Where the father was self-represented at the hearing – Costs of supervision services and travel not recoverable under s 117 of the Family Law Act 1975 (Cth) (“the Act”) – Quantification and identification of costs not sufficiently specific so as to ground an order under s 70NFB(1)(e) of the Act – Application dismissed. Legislation: Family Law Act 1975 (Cth) ss 117, 70NFB
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Barre & Barre [2021] FedCFamC1F 61
Cachia v Hanes (1994) 179 CLR 403; [1994 HCA 14
Nellums & Clemen (No 2) [2022] FedCFamC1F 801
Oscar & Traynor [2008] FamCAFC 158
Division: Division 1 First Instance Number of paragraphs: 39 Date of last submission/s: 23 November 2022 Date of hearing: On the papers Place: Sydney The Applicant: Litigant in person The Respondent: Litigant in person ORDERS
BRC 11282 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CLEMEN
Applicant
AND: MR NELLUMS
Respondent
order made by:
CAMPTON J
DATE OF ORDER:
30 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The applicant father’s application for costs of the applications and responses determined by way of the orders made 19 October 2022 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).
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 the pseudonym Nellums & Clemen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
On 19 October 2022, for reasons then delivered, orders were made determining:
(a)two Application-Contraventions filed by the father on 6 December 2019 and 25 February 2022 (collectively, “the Contravention Applications”), alleging contraventions by the mother of orders as to the parenting of X, born in 2011. The Contravention Applications were first determined on an undefended basis by a registrar, and then following an Application for Review of the registrar’s exercise of delegated power filed by the mother, determined by me as an original hearing;
(b)an Initiating Application filed on 4 February 2022 by the mother seeking on a substantive basis the discharge or variation of prior final orders regulating X’s time spent with the father, together with the father’s Response to that Initiating Application.
The orders made 19 October 2022 directed that in the event either party sought costs of the determined applications, written submissions were to be filed and served and any costs application made would be determined in chambers. This is that determination.
The father filed written submissions on 2 November 2022. He applied for orders as to costs in the following terms:
1. …a dismissal of the respondents Applications in full should result in costs awarded to me for the airfares to the value of 3200 AUD (4 flights)
2. Costs Awarded to me for the life care costs for the applications and failed access 1220 AUD
3. Costs Awarded to me for the court filing fee @ 280 AUD per application total of 840 AUD
(As per the original)
The father did not identify the relevant head of power supporting the orders sought. Implicitly, his application is grounded from either s 117(2) or s 70NFB(1)(e) of the Family Law Act1975 (Cth) (“the Act”), the latter being relevant in circumstances where a finding was made as to the mother’s contraventions being of a nature and character as identified by Pt VII, Div 13A, Subdivision F, which governs contraventions without a reasonable excuse (more serious contraventions). The identification of the source of power determines what legal requirements must be met before orders will be made.
By way of his submissions, the father sought additional relief for leave to file an Enforcement Application and a further Contravention Application. Such relief was not the subject of reservation as recorded in the orders made on 19 October 2022, and hence shall not be considered for the purpose of these reasons. That also applies to the matters identified in the email sent inappropriately by the father to chambers on 23 November 2022.
The mother filed written submissions on 13 November 2022 (“the mother’s submissions”), implicitly opposing the costs relief sought by the father. For the same reasons as recorded above, the contents of the mother’s email sent to chambers on 23 November 2022 shall not be considered for the purpose of these reasons.
These reasons assume familiarity with the reasons for judgment delivered on 19 October 2022, being Nellums & Clemen (No 2) [2022] FedCFamC1F 801 (“the primary judgment”). Those reasons record that:
(a)The parents have been continuously litigating as to X in Country A since 24 November 2011, and in Australia since 14 December 2014;
(b)Final orders have been made as to X’s parenting pursuant to the Family Law Act 1975 (Cth) (“the Act”) on two prior occasions, the second being 1 March 2019;
(c)X has not spent time with his father pursuant to the 1 March 2019 final orders or at all since January 2019;
(d)As part of both the contravention proceedings determined on review and the substantive proceedings concluded by way of the orders made on 19 October 2022, both parents sought either a discharge or variation of the last set of final parenting orders made on 1 March 2019;
(e)The orders made on 19 October 2022 represent the third set of final orders as to X’s parenting made in Australia.
The law as to costs
Costs pursuant to s 117 of the Act
While the general position established by s 117(1) of the Act is that each party should bear their own costs, s 117(2) allows the Court to make such costs order as it considers just if there are circumstances which justify doing so.
In considering what order for costs should be made (if any) and in what form, the Court is required to have regard to the considerations set out in s 117(2A) of the Act. The relevance of the particular matters will depend on the circumstances of each case.
It is well settled that no one factor has priority under s 117(2A), nor must more than one factor be satisfied; any one factor may be sufficient to warrant an order for costs. The discretion conferred by s 117 of the Act is a broad one, and the factors under s 117(2A) are not to be read in a restrictive way.
I have considered each such consideration as is relevant and engaged by each party in the circumstances of this costs determination if grounded s 117(2) of the Act.
Each of the parents appeared as self-represented parties for the purpose of the hearing before me on 29 and 30 October 2022. Over the course of that hearing, each referred to having retained lawyers and paying those lawyers’ costs for prior court events over the course of the current tranche of the litigation, and for the purposes of obtaining advice and drafting documents.
There is no definition of costs in the Act. Rule 1.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the current Rules”) confines costs as monies paid to a lawyer, or liabilities incurred by retaining a lawyer, for professional legal services. Self-represented parties are therefore unable to recover costs for their time spent in preparing and conducting their own case (see Cachia v Hanes (1994) 179 CLR 403).
What is considered an “expense” for the purpose of the Rules is not defined, however has been clarified by way of considerable case law. The Full Court in Oscar & Traynor [2008] FamCAFC 158 (“Oscar & Traynor”) reviewed the kinds of expenses that were recoverable by a self-represented litigant under the then-applicable Family Law Rules 2004 (Cth). These included court fees, costs of obtaining a transcript, fees for conducting searches, and other incidental expenses, but did not include expenses of travel, or lost time. Since the introduction of the Rules, Harper J in Barre & Barre [2021] FedCFamC1F 61 expressed doubt that “expenses” for the purpose of the Rules may not extend to expenses paid by a self-represented litigant to third parties (at [30]).
Costs pursuant to s 70NFB of the Act
Section 70NFB of the Act provides that if Pt VII, Div 13A, Subdivision F applies, as is the case here (see [112] of the primary reasons), then:
(2) The orders that are available to be made by the court are:
(f) if:
(i) the current contravention is a contravention of a parenting order in relation to a child; and
(ii) the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); and
(iii) the person referred to in subparagraph (ii) reasonably incurs expenses as a result of the contravention;
to make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii);
The Act does not specify the considerations relevant to the exercise of discretion pursuant to this section, save to say that the orders made must be the “most appropriate” orders of those available as identified in subsection (2).
The construction of subsection (1)(e)(iii) requires a nexus between the costs incurred and the contravention established. Hence, it would appear to be logical and sensible that at least one aspect of the discretionary exercise is to ensure that the person seeking to enforce orders is not left out of pocket as a result of the conduct of the person who committed a contravention, such that they ought be compensated by that person for some or all of the expenses reasonably incurred as a result of the contravention.
Consideration
The mother paints a dire portrait of her current financial circumstances. She works in full time employment. In the 2021 financial year, her taxable income was $32,167. It is her assertion that she does not own real property, nor a motor vehicle, and that she does not have any funds in the bank or assets of notable value. Her evidence is that her superannuation entitlements are valued $2,770. She says that she lives with X in a rented apartment. She gives evidence as to having outstanding credit card liabilities and personal loans of a value close to $38,000.
The mother says she is enforcing in Country A:
(a)Arrears of non-periodic school fee expenses contended to be payable by the father for the period 2019 to 2022 pursuant to undertakings given by the father in Country A; valued in the range of $ 44,494; and
(b)Outstanding costs orders payable in her favour achieved in Country A having a value of slightly in excess of $111,000.
The prior reasons for judgment record her efforts to enforce outstanding periodic child support liabilities payable by the father in Australia valued in the range of $15,953.42.
Hence, the mother contends that she has no financial capacity to pay any order for costs.
The mother’s evidence and submissions as to her dire financial circumstances does not sit comfortably with her evidence at trial that she has travelled regularly to Country A for extended periods, the fact of X attending a private school which charges significant annual fees, or with her capacity to retain lawyers in both Australia and Country A at different stages throughout these proceedings.
The father gave no specific evidence as to his financial circumstances. During the course of the hearing before me he promoted that he had a capacity to travel to Australia, either from Country B or Country A, at short notice, to spend time with X and to attend Court events.
The father did not directly engage with the mother’s evidence at trial as to the integrity of the value of the periodic child support sought to be enforced, the reasons for arrears of that liability accumulating, or as to matters that could provide context to the enforcement of the undertaking arising from the Country A litigation. He wildly submitted, absent evidentiary foundation, that the mother is in some way evading the efforts of the Child Support Agency in Australia in its evaluation of her income and current financial status.
In their written submissions, each of the parents were unrestrained in their criticisms of the other being obstructive and misleading in the conduct of the litigation. They each contended that the other attempted to rely on irrelevant material and had engaged in conduct amounting to an abuse of the Court’s processes, and that the other had failed to comply with the overarching purpose identified in the Federal Circuit and Family Court of Australia Act 2021 (Cth) and the Rules.
The mother contends that she corresponded with the father in 2021 to reduce the litigation. Her own evidence does not support that conclusion. As recorded in the primary reasons, the father having blocked the mother’s emails and not being accessible at his recorded address for service does him little credit. That said, I was very much left with the impression that neither of these parties had any desire to quell the rage that has burnt unabated for all but the first few months’ of X’s life, and that they have used these proceedings as a vessel to ventilate and stoke that rage.
The father’s submissions focussed on the fact that the contravention proceedings were necessitated by a failure of the mother to comply with previous orders of the court. The enforcement character of his Contravention Applications carries significant weight in the costs discretion. That is compounded by the father broadly achieving enforcement of the March 2019 final orders by way of the orders made 19 October 2022.
An additional factor in favour of the exercise of a cost discretion as sought by the father was the relative success of the matters litigated and determined in the orders made on 19 October 2022. The father was initially successful, albeit on an undefended basis, in the hearing before the registrar. By way of her Application for Review of the exercise of power by a Registrar filed on 7 July 2022, the mother challenged the decision of the umpire and lost. Albeit that the father was not successful on all of the charges of contravention he prosecuted, the result the mother achieved on review was substantially inferior from her perspective when compared to that as determined by the registrar on 7 July 2022. Putting it simply, the mother exercised her right of review, and the consequences that flowed from her doing so, being the findings made against her and the sanction imposed on her, reflected a poor decision made on her behalf. It is indicative of her blinkered and litigious approach to the parenting of X.
That said, the fact that the mother has not been successful or the father has not been wholly successful in these highly-contested parenting proceedings does not mean that the mother’s position was entirely unmeritorious. Rather, each of these parties made substantially differing contentions as to how factual matters should be interpreted, cast against a background of their relentless conflict.
There is some support to the gravamen of the father’s submissions as to the mother’s lack of respect of the authority of this Court. So much was made clear by the mother’s conduct of the hearing before me, and her historic cavalier attitude to the obligations imposed on her by Court orders, as recorded at [146]-[150] of the primary judgment.
Although not put into issue by the mother, the father has not put into evidence any documents verifying the fact of or the quantum of the expenses he has claimed.
The first category of costs claimed by the father is $3,200 comprising four airfares to and from Australia. The asserted the value of the costs of this travel to attend court and meet with the Court Child Expert was broad and not grounded in evidence. The Full Court confirmed in Oscar & Traynor that the costs of travel to attend court events were not recoverable by a self-represented party under s 117 of the Act. If I am in error in that regard, I am not satisfied on the evidence (more aptly identified as the lack of evidence) so as to find the fact and quantum of those travel costs to ground the quantification of such costs as claimed. Hence, those costs will be excluded for the purposes of this s 117 determination.
The next expense which the father claims is $1,220 paid to J Consultancy. Even if the current Rules permitted the recovery of a self-represented party’s expenses, it is unlikely that this particular expense would be allowed. Consistent with the Full Court’s reasoning in Oscar & Traynor, those costs are not properly costs of the proceedings nor are they expenses paid by the father “in his capacity as a party” to the proceedings, albeit that they are related to the proceedings.
It may have been possible for the father to recover the expenses reasonably incurred by him as a result of the mother’s contravention, including the costs of his travel to spend time with X, and the costs of J Consultancy, pursuant to s 70NFB(1)(e) of the Act. However, it is unclear what portion of the flight expenses claimed related to the father’s travel to Australia for the purpose of spending time with X that did not eventuate, and what portion related to other unspecified court events, including attendance upon the Court Child Expert. Hence I cannot be satisfied in relation to these costs claimed were expenses incurred “as a result of the contravention”. Further, as recorded earlier, the father’s assertion as to the value of his costs of travel and the costs paid to J Consultancy was not grounded in any documentary evidence (by way of receipts or otherwise).
The father in seeking the benefit of s 70NFB(1)(e) was obliged to put before the Court clear and unequivocal evidence of the costs incurred, together with evidence that those costs claimed are both fair and reasonable (see Wallington & Wallington [2021] FamCAFC 58 at [43]-[44]). There is no such evidence on which I could safely rely to make an order under s 70NFB(1)(e). Therefore, to the extent that the father’s application for costs is brought under this section of the Act for travel or of the provision of services by J Consultancy, it is not successful.
This would leave the claim for costs being the filing fees paid by the father in the sum of $280. I am satisfied that such fee is ostensibly recoverable pursuant to s 117 of the Act (see Oscar & Traynor at [85]).
However, doing the best that I can on the limited evidence available to me, I am not satisfied in all of the circumstances that it would be just to make the orders for costs as sought by the father. The filing fee sought to be recovered, when considered against a background of the father having capacity to travel internationally to and from Australia, is de minimis.
Nor am I satisfied that the circumstances of this case justify the making of an order for expenses incurred by the father especially having regard to the father’s current arrears of periodic and non-periodic child support notwithstanding the enforcement character of the Contravention Applications substantially determined in his favour on review.
The father’s application for costs will be dismissed.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 30 November 2022
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