Noelle and Fournier (No. 3)

[2007] FamCA 1557

FAMILY COURT OF AUSTRALIA

NOELLE & FOURNIER (NO. 3) [2007] FamCA 1557

FAMILY LAW – COSTS – application unsuccessful

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

In the Marriage of Kohn (1977) 30 FLR 175
LAC & TRF & LKL [2005] FamCA 158
Brown & Brown (1998) FLC 92-822 at 85,347
P & P (No. 2) (2005) FMCAfam 22

APPLICANT: Ms Noelle

RESPONDENT: Mr Fournier

INDEPENDENT CHILDREN’S LAWYER: McBain Lawyers

FILE NUMBER: MLF 6279 of 2003

DATE DELIVERED: 13 December 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 5 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hoult

SOLICITOR FOR THE APPLICANT: Donald S Lampe

COUNSEL FOR THE RESPONDENT: Mr Schetzer

SOLICITOR FOR THE RESPONDENT: Pearson Schetzer & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr McBain

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Hale & Wakeling

Orders

1. That the mother pay the father’s costs of and incidental to her application filed 24 August 2007 which are fixed in the sum of $1,857.90 together with the costs of the costs application which are fixed in the sum of $207, being a total of $2,064.90.

IT IS NOTED that publication of this judgment under the pseudonym Noelle & Fournier is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11838 of 2007

MS NOELLE

Applicant

And

MR FOURNIER

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. On 5 September 2007 I heard the mother’s application for a stay pending appeal.  I reserved my decision.  I made orders and delivered reasons for judgment on 10 September 2007.  My orders included:-

   [1]. I dispense with the operation of the Family Law Rules 2004 to such extent as is necessary to enable the mother to rely on her application filed 24 August 2007 (in which she seeks a stay pending appeal of the operation of orders made be me on 23 August 2007) notwithstanding that such application was filed prior to any Notice of Appeal having been filed. 

   [2]. That the mother’s application filed on 24 August 2007 be dismissed.

   [3]. I dispense with any requirement under the Family Law Rules 2004 for applications or responses to be filed or served in relation to costs and I direct that any dispute over costs be dealt with by written submissions. 

   [4]. That any party wishing to seek costs of or incidental to the mother’s application file and serve submissions in writing to that effect by not later than 28 September 2007 including, but not limited to, an itemised memorandum of the costs sought calculated in accordance with the scale set out in the Family Law Rules 2004.

   [5]. In the event that any party seeks costs against another party, the party against whom costs are sought file and serve any written submissions in opposition thereto by not later than 15 October 2007.

   [6]. I direct that my Associate review the file on 22 October 2007 to ascertain whether there is any dispute in relation to costs and, if so, to draw same to my attention.

   [7]. That the Court certifies that it was reasonable to employ an advocate.

2. The only applicant for costs is the husband whose submissions in that respect were filed on 27 September 2007.  No submissions in opposition to the costs application have been filed. 

3. Section 117 of the Family Law Act1975 contains the general rule that each party to proceedings under the Act shall bear his or her own costs.  The object of the rule is to ensure that spouses are not deterred from bringing or maintaining legitimate applications for fear of incurring an intolerable financial burden if they lose.[1]  However, the Court retains a discretion to make an order for costs if it is of the opinion there are circumstances that justify that course and it would be just to do so. 

   [1]  In the Marriage of Kohn (1977) 30 FLR 175 at 177.

4. In considering whether to make an order the Court must have regard to the matters set out in s 117(2A). The weight to be attached to any of the considerations in sub-s (2A) is wholly discretionary. However, while no single factor out-ranks any other, there is nothing to prevent one or other of them from being the sole foundation for a costs order.[2]  As Kay J observed in Brown & Brown[3] :

   "In many cases there will be an outstanding feature . . . that makes an order for costs appropriate, a feature which so dominates the scene that it can outweigh any of the other s 117(2A) considerations".

   [2]  LAC and TRF and LKL [2005] Fam CA 158 at [41].

   [3] (1998) FLC 92-822 at 85,347.

5. The applicant for costs contends that this application raises the matters in paragraphs 117(2A)(a), (c), (e) and (g).  They are:-

   (a)  the financial circumstances of each of the parties to the proceedings;

   (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; 

   (e)  whether any party to the proceedings has been wholly unsuccessful in the proceedings. 

6. Having heard an application for an adjournment, a parenting proceeding and an application for a stay pending appeal, I have some familiarity with the financial circumstances of the parties. 

7. The father is of modest means.  He is employed on a casual basis as is his wife.  The mother has previously advised the court that she is employed full time and that she has the financial backing of her partner, Dr W.  I do not have details of the respective capital positions of the parents.  I am satisfied that the mother has a superior income position to that of the husband.  

8. The stay application was argued by counsel retained on behalf of the mother. 

   
   

   I say nothing adverse about Counsel’s presentation of the mother’s case. However, in circumstances where one of the main contentions of the mother was that I had incorrectly refused her application for an adjournment and therefore fell into appealable error, counsel was not briefed with the reasons for my decision to refuse the adjournment. Furthermore, where one of the other significant contentions of the mother was that my refusal of the adjournment precluded her from being able to put relevant medical evidence before the court, some weeks later the mother did not adduce any such evidence in support of her application for a stay. These were deficiencies in the mother’s stay application which I take into account pursuant to ss 117(2A)(c) of the Act.

9. The most significant factor in relation to costs is, however, that the mother was wholly unsuccessful in her application for a stay which was dismissed. This is relevant pursuant to ss 117(2A)(e) of the Act and is supportive of the costs order which the father seeks be made in his favour.

10. I take into account the relevant factors under s 117(2A) of the Act. I am satisfied that the overall circumstances of the stay application justify an order that the mother pay the father’s costs of the stay application.

11. I directed that an applicant for costs submit a memorandum of costs calculated in accordance with the family law scale.  The husband has done so.  There has been no submission which takes issue with the quantification either as to the items claimed or the amount claimed for each item.  The costs claimed by the father are quantified in the sum of $2,064.90 although that includes costs of the application for costs which appear as the last two items totalling $207.  

12. I have considered whether I ought to send the matter to a costs assessment in accordance with the rules of court.  The main purpose of the Family Law Rules 2004 is set out in r 1.04 as being “to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.”  I am satisfied that a costs assessment is not warranted in this relatively simple case.  

13. I find that the itemised estimates of costs to be reasonable. 

14. I will grant the father’s application that the mother pay his costs of the stay application fixed in the sum of $1,857.90.  It is also appropriate that the mother pay the father’s costs of this application, as itemised, which I allow in the sum of $207. 

15. The mother has not sought time to pay so the order which I make will operate forthwith. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate 

Date: 13 December 2007