Pagan & Beattie & Anor (No.3)

[2018] FCCA 606

FEDERAL CIRCUIT COURT OF AUSTRALIA

PAGAN & BEATTIE & ANOR (No.3) [2018] FCCA 606

Catchwords:

PRACTICE AND PROCEDURE – Costs – whether circumstances justifying a costs order – applicant in a case wholly unsuccessful – costs order made.

Legislation:

Family Law Act 1975, s.117

Federal Circuit Court Rules 2001, r. 21.02

Cases cited:

Cochrane & Cochrane [2012] FMCAfam 984
Collins & Collins (1985) FLC 91-603
Latoudis v Casey (1990) 170 CLR 534

Penfold & Penfold (1980) 144 CLR 311

Wrensted & Eades [2016] FamCAFC 46

Applicant: MR PAGAN

First Respondent: MR BEATTIE

Second Respondent: MS BEATTIE

File Number: PAC 5622 of 2016

Judgment of: Judge Obradovic

Hearing date: By Written Submissions

Date of Last Submission: 24 July 2017

Delivered at: Parramatta

Delivered on: 29 March 2018

ORDERS

1. That within 42 days the maternal grandparents pay the father’s costs in the amount of $3,480.50.

IT IS NOTED that publication of this judgment under the pseudonym Pagan & Beattie & Anor (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5622 of 2016

MR PAGAN

Applicant

And

MR BEATTIE

First Respondent

MS BEATTIE

Second Respondent

REASONS FOR JUDGMENT

1. These are Reasons for Judgment in respect of a costs application made by the Applicant[1] Father against the Applicants[2] (“grandparents”) in an Application for Case dismissed on 7 July 2017.

   [1] In the substantive proceedings

   [2] Maternal Grandfather and his wife

2. That costs application was brought by way of an Application in a Case filed on 1 September 2017. Due to administrative difficulties with the Court filing system, the father had difficulties in filing that application within the 28 day period provided for in the Federal Circuit Court Rules. However, leave was granted for such Application to be filed in Court on 1 September 2017. Submissions were received by the Court on behalf of the father on 24 July 2017.

3. The grandparents have not filed any submissions or evidence in response to the costs application, despite being given the opportunity to do so by 3 November 2017.

4. The starting position with respect to costs, as set out in s117 of the Family Law Act 1975 (Cth), is that, subject to subsection 117(2), each party to proceedings under the Family Law Act shall bear his or her own costs.

5. The discretion to award costs is a broad discretion.[3]

   [3]  see for example Collins & Collins (1985) FLC 91-603.

6. The High Court held in Penfold & Penfold[4] that it is necessary for the Court to make a finding of justifying circumstances as an essential preliminary to the making of an order for costs. The Court is not required to specify the circumstances which justify the making of such an order.

   [4] (1980) 144 CLR 311

7. As long as there is an essential preliminary finding that there are justifying circumstances to make a costs order, there is no additional or special onus which the Applicant needs to establish for an order for costs. It is not the law that a costs order can only be made in what has been described as a ‘clear case’. [5]

   [5] See in general the comments made by the Full Court in Wrensted & Eades [2016] FamCAFC and in particular where the Full Court approved the comments of the judge below at [103]

8. In Latoudis v Casey[6] the High Court stated as follows:

   … in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principle. If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of an unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings.”[7]

   [6] (1990) 170 CLR 534

   [7] Referred to in the context of family law proceedings by Judge Kemp in Cochrane & Cochrane [2012] FMCAfam 984 at [17]

9. The discretion to determine a costs dispute is a very wide one.

10. In determining what order, if any, should be made under s117(2) the Court must have regard to the prescriptive but non-exhaustive list of considerations in sub-section (2A).

11. Rule 21.02(2) Federal Circuit Court Rules2001 provides that in making an order for costs the Court may set the amount of costs; or set the method by which the costs are to be calculated; or refer the costs for taxation under Part 40 of the Federal Court Rules or under Chapter 19 of the Family Law Rules.

12. The Court refers to its Reasons for Judgment published on 7 July 2017, which set out the history of the relevant interim application and the reasons for its dismissal.

13. In respect of the s117(2A) factors, the Court additionally finds as follows:

    a)When the grandparents filed their application in February 2017, the mother had not yet filed a Response and her position was at that stage unknown.

    b)As at 5 April 2017, the mother had filed her Response and orders were made by consent between the parents on 6 April 2017. The grandparents had on that day a legal representative appear for them. Therefore, they would have known that the application for joinder was opposed by the father and that the child would be spending alternate weekends and special days with the mother, their daughter. The mother’s evidence as contained in her Affidavit filed on 5 April 2017, indicated that it was her intention when she is able to have the child, to further her relationship with all members of the maternal family.

    c)There was no evidence at the time of the determination of the joinder application and after the consent orders of 6 April 2017, that the mother had not been furthering the child’s relationship with the maternal family, but particularly that the mother had not been facilitating a relationship or time between the child and her parents.

    d)It was the grandparents who needed to convince the Court that its discretion should be exercised in the manner contended by them.

    e)They were wholly unsuccessful in the application for joinder.

    f)The father has incurred costs having to answer the application for joinder. The father seeks costs in accordance with Schedule 1 of the Federal Circuit Court Rules in the amount of $3,783.50.

14. The Court finds that there are circumstances justifying a costs order and having regard to the matters noted above that a costs order in accordance with Schedule 1 is appropriate.

15. As such, the Court orders that the following costs be paid by the grandparents within 42 days:

    a)Interim or summary hearing - as a discrete event: $1,832 and $1,099[8]

    b)Advocacy loading: $549.50

    Total: $3,480.50

    [8] Daily hearing fee for interim hearing as per schedule 1 item 3

16. For all of those reasons, costs as set out at the forefront of these Reasons shall be made.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date: 29 March 2018