FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Pascoe & Larsen (No 2) [2022] FedCFamC1A 126
Appeal from: Pascoe & Larsen [2021] FedCFamC2F 529 Appeal number(s): NAA 78 of 2021 File number(s): WOC 655 of 2021 Judgment of: MCCLELLAND DCJ Date of judgment: 16 August 2022 Catchwords: FAMILY LAW – APPEAL – COSTS – Where the appellant has been wholly unsuccessful – Where an offer of settlement was made but particulars were not provided to the Court – No basis for indemnity costs – Appellant to pay costs of the respondent and the ICL relating to the appeal Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 12.13, 12.17
Cases cited: Byrnes v Brisconnections Management Co Ltd (No 2) [2009] FCA 1432
Colgate-Palmolive Company and Anor v Cussons Pty Limited (1993) 46 FCR 225; [1993] FCA 801
Cross & Beaumont (2008) 39 Fam LR 389; [2008] FamCAFC 68
D & D (Costs)(No 2) (2010) FLC 93-435; [2010] FamCAFC 64
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123; [2005] FamCA 158
Hitch & Hitch (2012) 47 Fam LR 603; [2012] FamCAFC 124
Idoport Pty Limited v National Australia Bank Limited & Ors [2007] NSWSC 23
Munday v Bowman (1997) FLC 92-784
Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4
Phillips & Hansford [2020] FamCAFC 28
Prantage v Prantage (Costs) [2014] FamCA 850
Robinson & Higginbotham (1991) FLC 92-209; [1991] FamCA 5
Number of paragraphs: 32 Date of last submission/s: 17 June 2022 Date of hearing: On the papers Place: Sydney The Applicant: Litigant in person Solicitor for the Respondent: Broun Abrahams Burreket Solicitor for the Independent Children's Lawyer: Venus & Smart ORDERS
NAA 78 of 2021
WOC 655 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR PASCOE
Applicant
AND: MS LARSEN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
16 AUGUST 2022
THE COURT ORDERS THAT:
1.The appellant father pay the costs of the respondent mother of and incidental to the appellant’s Amended Notice of Appeal filed 15 December 2021 within 28 days of those costs being agreed or assessed.
2.The appellant father pay the costs of the Independent Children’s Lawyer in the fixed sum of $4,150 within 28 days.
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…
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- AGLC
- Pascoe & Larsen (No 2) [2022] FedCFamC1A 126
- Case
- [2022] FedCFamC1A 126
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether it was appropriate and just to make an order for costs in favour of the respondent and the ICL. The court had to consider the relevant factors outlined in section 117(2A) of the Family Law Act 1975, including the parties' financial circumstances, receipt of legal aid, and the conduct of the parties in relation to the proceedings. The court also had to determine whether the proceedings were necessitated by a party's failure to comply with previous orders.
The court found that the appellant's financial circumstances, while impacted by the COVID-19 pandemic, did not preclude an order for costs. The court noted that the appellant had chosen to pursue an appeal despite the primary judge's offer for the parties to file a further interim application once they had a report from a joint expert. The court further found that the appellant's conduct, although lacking focus due to his self-representation, was not wilfully obstructive. The court concluded that other factors, such as the conduct of the parties and the appellant's rejection of a settlement offer, justified an order for costs.
The court ordered that the appellant pay the costs of the respondent relating to the appeal, and a fixed sum of $4,150 to the ICL. The court noted that the form of the order was subject to minor variations to correct typographical errors or record changes in the court's records.
Orders
Orders of the court
NAA 78 of 2021
WOC 655 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MR PASCOE
Applicant
AND:
MS LARSEN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
16 AUGUST 2022
THE COURT ORDERS THAT:
1. The appellant father pay the costs of the respondent mother of and incidental to the appellant’s Amended Notice of Appeal filed 15 December 2021 within 28 days of those costs being agreed or assessed.
2. The appellant father pay the costs of the Independent Children’s Lawyer in the fixed sum of $4,150 within 28 days.
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In considering whether it is appropriate and just to make an order for costs in favour of a party, it is unnecessary for the Court to be satisfied in respect to each and every factor set out in s 117(2A) of the Act,[1] nor does any factor set out in that section have priority over another: Prantage v Prantage (Costs) [2014] FamCA 850 at [12].[1] Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 at [41].CONSIDERATION It is convenient to address each of the matters set out in s 117(2A) to the extent that I have considered them relevant to the determination that I have made to award costs in favour of the mother.The parties’ respective financial circumstances The appellant father refers to his Financial Statement filed in the proceedings and contends that he is unable to meet his own legal costs, let alone the costs of the respondent mother. He further contends that his employment as a creative artist and music producer has been adversely affected by the COVID-19 pandemic and that “if costs [are] ordered against [the appellant] this will adversely impact upon [his] ability to provide necessities for [himself and his children], as [he] would not be able to meet the costs of food, electricity and other fixed expenses.” The appellant father’s Financial Statement is attached as Annexure C to his written submissions filed 17 June 2022 and indicates that his personal expenditure exceeds his income and that his liabilities exceed the value of his property. I accept that the appellant father’s income may have been adversely impacted by the COVID-19 pandemic, however, it was the appellant father who chose to file an appeal against interim parenting orders in circumstances where the primary judge, in Order 14, granted leave to the parties “to file a further interim application in relation to parenting proceedings for [the child] in the event that the parties has [sic] a report from a joint expert providing information relevant to consideration of s 60CC(3)(h) and s 61F of the Family Law Act 1975.” Further, although the appellant father was self-represented at the appeal, he had managed to engage the services of senior counsel to provide advice to him. In any event, in Cross & Beaumont (2008) 39 Fam LR 389 at [60], the Full Court held that financial incapacity to pay a costs order is not a barrier to the making of such an order where the conduct of the party may warrant a costs order being made. In this matter, I am satisfied that there are other conditions set out in s 117(2A), to which I refer, which justify an order for costs being made in favour of both the respondent mother and the ICL.Receipt of assistance by way of legal aid by either party Neither party is in receipt of legal aid.Conduct of the parties in relation to the proceedings The respondent mother contends that she presented the appellant father with an opportunity to resolve the matter but the appellant father rejected the offer, which resulted in the parties incurring the legal costs associated with the appeal. The respondent mother did not, however, provide particulars in respect to the offer, including when it was made and the nature of the offer. In that respect, it has been determined that subsection (c) is focused on the conduct of the parties as litigants: Hitch & Hitch (2012) 47 Fam LR 603. While the appellant father’s submissions, with respect, lacked focus at times, that was in my opinion more reflective of the fact that he was self-represented rather than being wilfully obstructive of the expeditious determination of the proceedings. Whether the proceedings were necessitated by a party’s failure to comply with previous orders