RAMON & LEMOND
[2020] FamCA 801
•24 September 2020
FAMILY COURT OF AUSTRALIA
| RAMON & LEMOND | [2020] FamCA 801 |
| FAMILY LAW – COSTS – Application for costs made by the mother against the father following the parties entering into consent orders resolving all parenting issues in dispute – Where the mother contends that the father did not comply with s 60I of the Family Law Act1975 (Cth) by engaging in family dispute resolution with the mother prior to the commencing of proceedings – Where the father applied for and was successfully granted by a Registrar of the Court an exemption to the filing of a s 60I certificate due to circumstances of urgency – Where the mother contends that the father did not adhere to provisions for service of documents – Where the father acknowledges he experienced issues with the timely service of documents on the mother – Consideration of whether the failure to comply the father’s service requirements justifies making an order for costs against him – Consideration given to whether an order for costs should be made in circumstances where there is no determination of an application on its merits, as the parties have resolved their dispute by way of compromise – Application dismissed. |
| Family Law Act 1975 (Cth) ss 60I, 117 Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) Family Law Rules 2004 (Cth) Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) |
| Australian Securities Commission v Aust Home Investments Ltd (1993) 116 ALR 523 Brook & MacKenzie Pty Ltd v EL-Gra Engineering Pty Ltd (2015) 331 ALR 535 Byrnes v Brisconnections Management Company Limited (No 2) [2009] FCA 1432 Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123 Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664 Mineralogy Pty Ltd v National Native Title Tribunal [1998] FCA 1700 Penfold v Penfold (1980) 144 CLR 311 Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex Parte Lai Qin (1997) 186 CLR 622 Stoian & Fiening (Costs) [2014] FamCA 944 Wrensted & Eades (2016) FLC 93-697 |
| APPLICANT: | Ms Ramon |
| RESPONDENT: | Mr Lemond |
| FILE NUMBER: | SYC | 7830 | of | 2018 |
| DATE DELIVERED: | 24 September 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney by web conference |
| JUDGMENT OF: | McClelland DCJ |
| HEARING DATE: | 27 August 2020 |
REPRESENTATION
| THE APPLICANT IN PERSON |
| THE RESPONDENT IN PERSON |
Orders
The mother’s Application for costs is dismissed.
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 Ramon & Lemond 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 SYDNEY |
FILE NUMBER: SYC 7830 of 2018
| Ms Ramon |
Applicant
And
| Mr Lemond |
Respondent
REASONS FOR JUDGMENT
Introduction
This decision concerns an Application for costs by Ms Ramon (“the mother”) who is the Respondent in parenting proceedings commenced by Mr Lemond (“the father”) that resolved by way of consent Orders made on 27 August 2020. The consent Orders established parenting arrangements for the parties’ child, X born in 2012 (“the child”), presently aged eight (8) years.
The consent Orders have been made in circumstances where the mother has, since 10 December 2018, lived in New Zealand and, since that time, the child has lived in Australia with the father. The child does, however, communicate on a daily basis with her mother and spends half of the school holiday periods with her mother in New Zealand.
In summary, the consent Orders, essentially, provide for the child to continue living with the father and his new partner in Australia until she completes her primary education and, thereafter, to change residence to live with her mother in New Zealand at the commencement of 2024.
In addition to providing for the child to spend school holiday periods with the non-resident parent, the Orders also provide for the non-resident parent, in each case, to provide notice of their intention to travel to the other parties’ country of residence in order to spend time with the child as agreed between the parties.
At the commencement of the proceedings, the Court commended the parties in respect to the fact that, despite their respective emotions associated with the Court proceedings, they have engaged in communication in a courteous and respectful manner in arriving at parenting arrangements, as best they can in the circumstances, which are in the best interests of the child. The Court also commended the work of the Independent Children’s Lawyer in assisting the parties to reach a resolution of issues in dispute between them.
The mother’s Application for costs is made in circumstances where she expresses concern that the proceedings were commenced by the father without first attempting to reach an agreement by way of family dispute resolution. The mother further contends that the father has not served relevant Court documents upon her in a timely and appropriate manner. Specifically, the mother alleges, in her Affidavit filed 18 July 2020, the following:
7. Mr Lemond filed his Initiating Application with the Court on 6 December 2018. I believe the due process was not done properly as he had known my plan of relocation for approximately two years. The procedures under the Family Law Act 1975 (the Act) requires an applicant to obtain a certificate from a registered family dispute resolution practitioner before filing an application for an order in relation to a child under Part VII of the Act.
8. On 8 December 2018, I became aware of the proceedings as I was shown the Initiating Application in person by Mr Lemond and his wife (Ms C), however I was not given a copy on that date.
9. I did not receive a copy of Initiating Application until 28 December 2018. Furthermore, Mr Lemond did not serve me with an Affidavit or Notice of Risk.
10. Since becoming aware of the proceedings, I have asked Mr Lemond a number of times to provide me copies of all Court documents.
…
11. On 22 January 2019, I instructed my former lawyer to email Mr Lemond to request that he serve Navado Lawyers with copies of the:
• Initiating Application,
• Affidavit of Mr Lemond,
• Notice of Risk, and
• Any other Affidavits that have been filed with the Court.
…
12. At this point, Mr Lemond had still refused to provide me with all the court documents. Therefore, I needed to hire a lawyer in order to meet the deadline that I was given in the Initiating Application. Thus, I have pressed cost order against the Applicant father.
Annexed hereto and marked with the letter “C” is a copy of the email sent from my former lawyer to me confirming that Mr Lemond did not properly serve me with the court documents, as well as my reasons for cost order, and summary of all legal and court costs.
At Annexure C to her Affidavit, the mother has attached an invoice from the solicitors who she engaged to act on behalf of herself. That invoice relates to legal services they provided in the period from 8 January 2019 until 28 May 2019. The mother has also included, in a document titled “Summary of Cost Order”, costs rendered by the Australian High Commission in New Zealand in respect to fees of a Notary including foreign currency exchange transaction fees.
The law – concepts and principles
Section 117 of the Family Law Act 1975 (Cth) (“the Act”) sets out the basis upon which the Court is empowered to award costs. That section relevantly provides:
(1) Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(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;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
Those provisions make clear that, while the general rule in family law proceedings is that each party bears his or her own costs, the Court may order a party to pay the costs of another where there are circumstances justifying the making of such an order.
The considerations set out in s 117(2A) of the Act must be taken into account in deciding whether or not to order a party to pay the costs of another. No one factor under s 117(2A) prevails over any other factor. It is a matter of weight that is accorded to each of the relevant factors in the trial judge’s discretion: Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664 per Strickland J.
As such, a litigant seeking a costs order must establish that the justice of the case requires an order for costs, by reference to the non-exhaustive list of statutory considerations set out in s 117(2A) of the Act, before such an order is made. Although the applicant for costs must establish circumstances which would justify such an order, it is not the case that a costs order can only be made in what has been described as “a clear case”: Penfold v Penfold (1980) 144 CLR 311 at 315.
Accordingly, there is “nothing to prevent any factor being the sole foundation for an order for costs” being made: Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123 at 130.
In Wrensted & Eades (2016) FLC 93-697 (“Wrensted & Eades”), the Full Court expressly disagreed with an earlier decision of the Full Court which had determined that different considerations applied in respect to the Court contemplating a possible order for costs in parenting proceedings as opposed to property proceedings. In that respect, the Full Court said, at 81,153:
… if the majority in Hawkins & Rowe, by the use of the words “the occasions on which such an order should be made in a parenting dispute should have some particular features”, were intending to indicate that certain features need to be present before a costs order can be made, we respectfully disagree. The wide discretion in s 117(2) of the Act and lack of distinction between categories of family law cases (including the lack of distinction between parenting and property cases) would in our view render such a conclusion plainly erroneous, place a fetter on discretion which does not have a legislative basis and require us to depart from that conclusion (Nguyen v Nguyen 169 CLR 245 at 268-270; Gett & Tabet (2009) ALR 504 at [261]-[301] especially at [294]; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 per Heydon J at [84] and [85]; F Firm & Ruane and Ors (2014) FLC 93-611) at [163].
I respectfully agree with the reasoning of the Full Court in Wrensted & Eades (supra) in finding that there is no distinction in the legislative considerations that the Court is required to have regard to in respect to an application for costs in parenting proceedings as opposed to property proceedings.
Consideration
It is necessary to determine whether the mother, who seeks an order for costs, has established circumstances justifying such an order which displaces the position articulated in s 117(1) of the Act. It is not necessary to establish extraordinary or exceptional circumstances, however, there must be circumstances which, at the absolute discretion of the Court, justify a costs order: Stoian & Fiening (Costs) [2014] FamCA 944 at [19] having regard to the matters set out in s 117(2A) of the Act.
Subsection (2A)(a) – The financial circumstances of each of the parties to the proceedings
The Court is without information concerning the financial circumstances of the parties. Nevertheless, I note that both parties have young families and both have chosen to be self-represented in these proceedings rather than incurring expenses associated with retaining a lawyer. It is, therefore, open for the Court to infer that both parties would be challenged by an obligation to pay legal fees.
Subsection (2A)(b) – Whether any party to the proceedings is in receipt of assistance by way of legal aid
Neither party was legally aided and, accordingly, s 117(2A)(b) of the Act is not a relevant consideration.
Subsection (2A)(c) – The conduct of the parties to the proceedings in relation to the proceedings
The mother contends that the father inappropriately commenced these proceedings without first obtaining a certificate pursuant to s 60I of the Act.
Section 60I was introduced by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). The explanatory memorandum to the legislation states:
New Subdivision E deals with family dispute resolution and family counselling. It inserts new section 60I into the Act which provides for compulsory attendance at family dispute resolution in a range of circumstances, prior to lodging an application with the court. This is a key change to encourage a culture of agreement making and avoidance of an adversarial court system.
82. The object of new section 60I, which is set out in subsection 60I(1), is to ensure that parties attempt to resolve their disputes about children’s matters that can be dealt with under Part VII of the Act, before commencing a court process. This will assist people in resolving family relationship issues outside of the court system, which is costly and can lead to entrenched conflict. This item substantially implements recommendation 9 of the FCAC Report.
Section 60I(10) of the Act contemplates a situation where a person may commence proceedings without having previously attempted to undertake family dispute resolution. The explanatory memorandum further states:
101. If a person does not attend family dispute resolution in accordance with this new section 60I before applying for a Part VII order, for whatever reason, subsection 60I(10) provides that the court must consider making an order that the person attend such a process. Any such decision will be made at the discretion of the court. For example, if the applicant has claimed that the application was urgent under the exception in paragraph 60I(9)(d), but the court considers that it was not urgent, it may make an order that the parties must attend family dispute resolution before the court will deal with the matter. The court could also order costs in appropriate cases. This will discourage parties from trying to avoid the provisions and will ensure that the court considers the reasons for exemption.
102. Subsection 60I(10) will also allow the court, in appropriate cases, to send a party to a specific program even if he or she has met an exception where the court considers that the program will be beneficial. This is consistent with the overall shift to ensure that all matters that can be resolved outside the court system are.
It certainly would have been preferential for the father to have attempted to resolve the dispute with the assistance of a qualified family dispute resolution practitioner prior to commencing proceedings in this matter. However, the father explains that the proceedings were commenced hastily, in circumstances where the mother was proposing to travel to New Zealand with the child, and he believed that steps were urgently required to prevent the child leaving the Commonwealth of Australia. The mother, on the other hand, contends that the father was well aware of the mother’s proposed travel and had been so aware for approximately two (2) years. She contends that the father, therefore, had ample time to attempt to resolve his concerns through family dispute resolution.
Again, there is some substance to the mother’s concerns, however, the question becomes whether the father’s failure to comply with s 60I of the Act justifies an order for costs.
I note that, on 7 December 2018, a Registrar of this Court made a determination that the father was exempt from the requirement of filing a s 60I certificate as his Application was made in circumstances of urgency. In those circumstances, I am not satisfied that the presumption set out in s 117(1) of the Act should be displaced by the father’s failure to obtain a certificate under s 60I(8) of the Act, in circumstances where the mother was proposing to remove the child from the Commonwealth within the following week.
Subsection (2A)(d) – Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court
The mother contends that the father was discourteous and failed to comply with the Family Law Rules 2004 (Cth) (“the Rules”) and Court Orders in respect to the service of documentation upon her. The father acknowledged that this did occur on occasions and he apologised to the Court and the mother for his omission. The father contended, however, that, in circumstances where he has been self-represented, he had endeavoured to serve the documents by electronic means but had been incapable of doing so.
Again, there is some substance to the mother’s concerns, however, it is not clear, on the basis of the material presented, that the mother incurred additional costs as a result of the failure of the father to serve the relevant Court documents in a timely way and, specifically, within the time limits prescribed by the Rules and Orders of the Court.
Subsection (2A)(e) – Whether any party to the proceedings has been wholly unsuccessful in the proceedings
In terms of s 117(2A)(e) of the Act, it is generally accepted that, in determining whether an order for costs should be made in circumstances where there is no determination of an application on its merits, including as a result of proceedings being resolved by way of compromise, it is inappropriate “to seek to make a prediction as to the outcome of the proceeding”: Brook & MacKenzie Pty Ltd v El-Gra Engineering Pty Ltd (2015) 331 ALR 535 at 541; Mineralogy Pty Ltd v National Native Title Tribunal [1998] FCA 1700 at [11].
In Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex Parte Lai Qin (1997) 186 CLR 622 (“Lai Qin”) at 624, McHugh J said:
In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or costs. Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order. When there has been no hearing on the merits, however, the court is necessarily deprived of the factor that usually determines whether or how it will make a costs order. [Citations omitted]
McHugh J further said at 625:
If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases. [Citations omitted]
One of the authorities referred to by McHugh J in Lai Qin (supra) was the decision of Hill J in Australian Securities Commission v Aust Home Investments Ltd (1993) 116 ALR 523, wherein his Honour said at 530:
It will rarely, if ever, be appropriate, where there has been no trial on the merits, for a court determining how the costs of the proceeding should be borne to endeavour to determine for itself the case on the merits or, as it might be put, to determine the outcome of a hypothetical trial… This will particularly be the case where a trial on the merits would involve complex factual matters where credit could be an issue. [Citations omitted]
In this case, consideration of the parties’ respective Applications would have involved consideration of what the Independent Children’s Lawyer accurately, in my view, described as exercising a finely-balanced discretion. It is, therefore, not possible, in circumstances where the parties did not present their cases, to give a definitive or even predictive finding as to which of the parties would have been successful if they had each pressed their original Applications.
Subsection (2A)(f) – Whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer
This consideration is not relevant.
Subsection (2A)(g) – Such other matters as the Court considers relevant
Save to the extent that the mother has raised complaints in respect of those aspects of the father’s conduct in these proceedings to which I have referred, the parties have been commendable in the way they have engaged with each other. They have communicated in a child-focused manner and have successfully reached agreement on matters that are in the best interests of the child.
The parties have also engaged constructively with the Independent Children’s Lawyer in reaching agreement that ensures the child will continue to have the security of her current home and family, friends and school peers, during her primary school years. Noting that the Family Consultant expressed the view that it may be preferable, as the child reaches puberty, to be in the primary care of her mother, the parties, sensibly in my view on the facts of this case, reached an agreement that the time at which the child is to leave her current primary school will mark an appropriate stage for the child to change residence to the care of the mother. This is in circumstances where both parties acknowledge that the other is a confident and caring parent and there are no issues of risk.
Having regard to those matters, including the parties’ financial circumstances, I dismissed the Application of the Independent Children’s Lawyer for an order providing for the parties to pay the costs of the Independent Children’s Lawyer.
Those considerations are also relevant to my determination that the presumption, set out in s 117(1) of the Act, that each party should pay their own costs is not displaced in the circumstances of this case.
Conclusion
Accordingly, although I acknowledge that the concerns raised by the mother, to which I have referred in this decision, have some substance and, indeed, with respect to him, were also acknowledged by the father, I am not satisfied that it is appropriate to make an order for costs against either of the parties.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 24 September 2020.
Associate:
Date: 24 September 2020
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